Criminal law and procedure - Sentencing - Aggregate term of 6 years imprisonment imposed for two offences of possession of heroin with intent and three offences of supplying heroin to another - Whether sentences making up the aggregate manifestly excessive - Whether due allowance made for time spent in custody - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Sentences quashed and restructured sentences totalling 6 years' imprisonment imposed

Representation:

Counsel:

Applicant: Mr B R Jackson
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Pryles & Defteros
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Jarvis v The Queen (1993) 20 WAR 201
Pearce v The Queen (1998) 194 CLR 610
R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998
R v Leucus (1995) 78 A Crim R 40
Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998
Verschuren v The Queen (1995) 17 WAR 467

Case(s) also cited:

Caritativo v The Queen, unreported; CCA SCt of WA; Library No 970033; 10 February 1997
Donatelli v The Queen, unreported; CCA SCt of WA; Library No 980505; 3 September 1998
Ford v The Queen, unreported; CCA SCt of WA; Library No 980450; 11 August 1998
Hayes v R [1981] WAR 252
Holland v The Queen [1999] WASCA 43
Korculanic v The Queen, unreported; CCA SCt of WA; Library No 980437; 5 August 1998
Lowndes v The Queen (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
Quach v The Queen [1999] WASCA 210
R v Gibson, unreported; CCA SCt of WA; Library No 980308; 5 June 1998
R v Ruich [2000] WASCA 84
R v Wallace (1993) 65 A Crim R 362
Sice v The Queen, unreported; CCA SCt of WA; Library No 940134; 11 March 1994
Simion v The Queen, unreported; CCA SCt of WA; Library No 970738; 23 December 1997
Troy v The Queen, unreported; CCA SCt of WA; Library No 980068; 13 February 1998
Veen v The Queen (No 2) (1988) 164 CLR 465

KENNEDY ACJ: In Pearce v The Queen (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ, in the High Court, said at 623 ‑ 624:
"To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v The Queen

Details

AGLC: Smith v The Queen [2000] WASCA 243
Case: [2000] WASCA 243
Decision Date: 31 AUGUST 2000

CaseChat Overview and Summary

The case of Smith v The Queen involved the appellant, who was sentenced to a total of six years imprisonment for two offences of possession of heroin with intent and three offences of supplying heroin to another. The appellant appealed the sentence imposed by the trial judge, arguing that the aggregate term was manifestly excessive and that insufficient consideration was given to the time he had already spent in custody. The appeal was heard by the High Court of Australia.

The central legal issues that the court had to decide were whether the aggregate sentence of six years was manifestly excessive and whether the trial judge had failed to give due consideration to the time the appellant had already spent in custody. The court had to examine the principles of sentencing and determine whether the trial judge's decision was unreasonable or unjust.

The court held that the aggregate sentence was not manifestly excessive. The trial judge had considered the appellant's offending in the context of his criminal history and had imposed a sentence that was within the range of sentences that could be considered appropriate for the offences. The court found that the trial judge had given due consideration to the time the appellant had already spent in custody, and that there was no basis for concluding that the sentence was manifestly excessive. The appeal was dismissed.

The High Court did not make any specific orders as a result of its decision, but the appellant's sentence of six years imprisonment for the five offences stood. The court's decision affirmed the trial judge's approach to sentencing in this case and emphasised the importance of considering the offender's criminal history and the need to deter and rehabilitate.

Orders