Smith v The State of Western Australia
[2012] WASCA 91
•24 APRIL 2012
SMITH -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 91
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 91 | |
| Case No: | CACR:100/2011 | 22 FEBRUARY 2012 | |
| Coram: | McLURE P BUSS JA NEWNES JA | 24/04/12 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MATTHEW JOHN SMITH THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing 130 drug offences 40g of heroin Possession of firearm and ammunition Total effective term of 4 years' imprisonment Some convictions for earlier drug offences subsequently set aside Whether effect was that different sentence should have been imposed Criminal Appeals Act 2004 (WA), s 31(2), (4) Appeal dismissed |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(2), (4) |
Case References: | Bosworth v The State of Western Australia [2007] WASCA 144 Cant v The State of Western Australia [2009] WASCA 188 Dann v The State of Western Australia [2006] WASCA 254 Haasy v The State of Western Australia [2010] WASCA 207 Narkle v Hamilton [2008] WASCA 31 O'Driscoll v The State of Western Australia [2011] WASCA 156 Smith v Hazlitt [2011] WASC 154 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- BUSS JA
NEWNES JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SLEIGHT DCJ
File No : IND 1335 of 2010
Catchwords:
Criminal law - Sentencing - 130 drug offences - 40g of heroin - Possession of firearm and ammunition - Total effective term of 4 years' imprisonment - Some convictions for earlier drug offences subsequently set aside - Whether effect was that different sentence should have been imposed - Criminal Appeals Act 2004 (WA), s 31(2), (4) - Appeal dismissed
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 31(2), (4)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms K Farley
Respondent : Mr J McGrath
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bosworth v The State of Western Australia [2007] WASCA 144
Cant v The State of Western Australia [2009] WASCA 188
Dann v The State of Western Australia [2006] WASCA 254
Haasy v The State of Western Australia [2010] WASCA 207
Narkle v Hamilton [2008] WASCA 31
O'Driscoll v The State of Western Australia [2011] WASCA 156
Smith v Hazlitt [2011] WASC 154
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1 JUDGMENT OF THE COURT: The appellant pleaded guilty in the District Court to 130 drug offences and was sentenced to a total effective term of 4 years' imprisonment. The appellant appeals against the sentence.
2 The appeal notice was filed out of time. The time for the filing of the appeal notice expired on 2 December 2010. It was not filed until 20 June 2011. The appeal notice was accompanied by an affidavit, sworn by the appellant, deposing that the delay occurred because the present appeal depended upon the result of an appeal against a conviction for offences committed in 2008. The appeal against the 2008 conviction was upheld on 25 May 2011: Smith v Hazlitt [2011] WASC 154.
3 We would extend the time for the filing of the appeal notice, but would dismiss the appeal for the reasons which follow.
Background
4 In December 2009, police commenced an investigation into illicit drug dealing activities of the appellant and his partner. As a result of those investigations, including telephone intercepts, it was revealed that between 19 April 2010 and 15 May 2010, the appellant and his de facto partner had manufactured home-bake heroin in their home using pharmaceutical drugs (count 5). Between the same dates, on 118 occasions the appellant offered to sell varying amounts of heroin to third parties. The amounts involved were between 0.2 g and 0.5 g and the price of the heroin was from $50 to $800 (counts 13 - 75, 77 - 131). In that period, the appellant also conspired with his partner to obtain a quantity of heroin from a supplier for the purpose of supplying heroin to others (count 12).
5 On five occasions between 26 April 2010 and 14 May 2010, the appellant sold heroin to others at meetings pre-arranged for that purpose (counts 6 to 11).
6 On 7 May 2010, the appellant contacted an associate to obtain 1.75 g of heroin for the purpose of selling the drug to others. The associate agreed to supply the appellant with 1 g of heroin and made arrangements to meet the appellant for that purpose (count 1).
7 On 14 May 2010, the appellant drove to Mt Lawley where he met another person. He got into the person's vehicle where he was supplied with heroin in exchange for cash. They then left the scene separately.
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- The appellant was arrested outside his home shortly afterwards. Heroin weighing 3.44 g, of 34% purity, was found concealed on him (count 2).
8 A search warrant then executed at the appellant's home located a home-made 0.22 calibre handgun in a wall-mounted air-conditioning unit. An attempt had been made to silence the firearm. The firearm had one round of ammunition in it and the cocking mechanism was armed (count 3). In excess of 80 rounds of 0.22 calibre ammunition was located in the house (count 4).
The sentencing remarks
9 The sentencing judge noted that the total amount of the heroin with which the appellant had been involved over the period was approximately 40 g and the total value of the heroin which the appellant sold or offered to sell was approximately $4,000. The explanation offered by the appellant for dealing in drugs was that it was to fund his own heroin addiction and that of his partner.
10 Turning to the appellant's personal circumstances, the sentencing judge observed that the appellant was 29 years of age. The appellant's parents had separated when he was 7 or 8 years old. The appellant's father had a major difficulty with substance abuse and a dependence on alcohol. The appellant had behavioural problems from an early age and was diagnosed with attention deficit hyperactivity disorder when he was 8. The appellant was expelled from school in year 9 and since then had worked intermittently in the construction industry. His Honour noted that the appellant's work history had not been good due to acute substance abuse. The appellant had been in a number of relationships and at the time of sentencing had been in a relationship for about one year with a young woman who was also a heroin addict.
11 The sentencing judge observed that the pre-sentence report, a psychological report and a psychiatric report all confirmed that the appellant had been using heroin since his mid-teens and that he had a very entrenched addiction. The psychiatric report indicated that the heroin dependency dominated the appellant's existence. It stated that the appellant had anti-social and borderline personality traits. It also stated that there was unlikely to be any improvement in the appellant's anti-social activities unless his substance abuse problem was addressed.
12 His Honour noted that the appellant had a long history of prior offending including stealing, offences involving violence, and drug convictions. The transcript of his record of convictions ran to 15 pages.
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- The appellant's convictions included a conviction in 1999 for possession of heroin for which he was fined, a further conviction for possession of heroin and other drugs in 2002 for which he was sentenced to 1 month's imprisonment, a conviction in 2004 for possession of a prohibited drug for which he was sentenced to 3 months' imprisonment, a conviction in January 2006 for possession of a prohibited drug for which he was fined, a further conviction in October 2006 for possession of methylamphetamine for which he received a suspended sentence, and a conviction in 2007 for possession of a prohibited drug for which he was fined. His Honour further noted that on a number of occasions in the past the appellant had breached community based orders.
13 At the time of sentencing, the appellant's convictions also included convictions in 2008 for possession of heroin and methylamphetamine with intent to sell or supply, for which the appellant had received a total effective sentence of 15 months' imprisonment. His Honour noted that some doubt had arisen about the convictions but said he was required to take them into account in sentencing the appellant. It will be necessary to come back to those convictions.
14 In sentencing, his Honour took into account that the appellant had pleaded guilty to the current offences. He imposed the following sentences:
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15 The total effective sentence was 4 years' imprisonment.
The 2008 convictions
16 It is necessary before turning to the grounds of appeal to say something about the 2008 convictions.
17 On 1 July 2008, the appellant was convicted on his own plea of guilty of a number of offences, including three counts of possession of prohibited drugs with intent to sell or supply. The offences related to three amounts of crystalline and powder substances believed to be amphetamine.
18 The preliminary analysis of the substances in question had suggested they contained a total of 9.41 g of amphetamine. The final certificates of analysis, dated 10 June 2008 and 3 July 2008, disclosed that the substances did not in fact contain any prohibited drugs. However, it appears that at the sentencing hearing on 27 August 2008 neither the prosecutor nor the appellant or his counsel were aware of the final certificates or their contents.
19 The appellant was sentenced to a total effective term of 15 months' imprisonment for the three drug offences. The sentence was backdated to commence on 29 June 2008. The appellant was released on 28 September 2009, having served the sentence.
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20 It seems that the contents of the certificates of analysis did not come to light until shortly before the appellant was sentenced on the current charges on 11 November 2010. At that hearing, the appellant's counsel submitted that the sentencing judge should take into consideration the fact that the appellant had spent 15 months in custody 'unnecessarily'. His Honour declined to do so. Rather, he proceeded, as in my respectful opinion he was required to do, to treat the convictions as extant.
21 On 8 March 2011, the appellant filed a notice of appeal seeking leave to appeal against his 2008 convictions. The State conceded the appeal. On 25 May 2011, Hall J allowed the appeal and set aside those convictions: Smith v Hazlitt.
22 The appellant now appeals against the sentence of 4 years' imprisonment imposed by the sentencing judge in relation to the 2010 offences.
Grounds of appeal
23 The grounds of appeal are as follows:
1. The sentence of four years' imprisonment imposed upon the appellant led to a miscarriage of justice in that the sentence failed to reflect the time the appellant spent in custody on relevant prior offences, of which he was subsequently acquitted on appeal.
2. In the alternative, the sentence imposed was manifestly excessive given the time previously spent in custody on relevant prior offences, of which the appellant was subsequently acquitted on appeal.
24 Leave to appeal on those grounds was granted by Mazza J on 21 August 2011.
Disposition of the appeal
25 Notwithstanding the grounds of appeal, on the hearing of the appeal counsel for the appellant did not seek to argue that the sentencing judge should have taken into account the time the appellant had spent in custody for the 2008 offences, conceding that that was not open. That concession was properly made. As this court pointed out in Narkle v Hamilton [2008] WASCA 31 [43], where an offence is committed after serving time in custody in respect of a charge upon which the offender was subsequently acquitted, there would ordinarily be no reason to take the prior period of custody into account so as to reduce the sentence imposed in respect of the current offence. In the present case there was nothing
(Page 8)
- which would justify the court taking into account the time the appellant was in custody for the 2008 offences.
26 The appeal was put instead on the basis that there had been a miscarriage of justice because the sentencing judge had sentenced the appellant on the basis that he had been convicted of the 2008 offences, whereas those convictions had since been set aside. It was argued, in effect, that when that was taken into account the total effective sentence was disproportionate to the overall criminality involved.
27 Whilst that is not a contention which is clearly reflected in the grounds of appeal, if it is reflected at all, no objection was taken by the respondent to the appeal being determined on that basis.
28 It is clear that there was no relevant error by the sentencing judge in proceeding upon the basis that the appellant had been convicted of the 2008 offences. However, in determining the appeal, this court is entitled to have regard to the fact that since the appellant was sentenced for the 2010 offences his convictions for the 2008 offences have been set aside: Criminal Appeals Act 2004 (WA) s 31(2). Nevertheless, the appeal may be allowed only if this court is of the opinion that a different sentence should have been imposed: s 31(4).
29 We are not persuaded that a different sentence should have been imposed. In our view, putting aside the convictions for the 2008 offences, the total effective sentence fell within a sound discretionary range. That is manifest when regard is had to sentences customarily imposed for offences of the type of the 2010 offences. Of course, in considering sentences imposed in other cases it is necessary to bear in mind that the circumstances of offences and offenders vary greatly. The range of sentences customarily imposed for a particular offence does not establish the range of a sound sentencing discretion in a particular case. But, bearing that in mind, a consideration of other cases provides no basis for a contention that a different sentence should have been imposed.
30 We have considered the sentences imposed in a number of other cases, including Bosworth v The State of Western Australia [2007] WASCA 144 where a large number of previous authorities were reviewed. For present purposes, it is sufficient to refer to four cases: O'Driscoll v The State of Western Australia [2011] WASCA 156, Dann v The State of Western Australia [2006] WASCA 254, Haasy v The State of Western Australia [2010] WASCA 207 and Cant v The State of
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- Western Australia [2009] WASCA 188. A brief description of those cases will suffice.
31 In O'Driscoll, the offender pleaded guilty shortly before his scheduled trial to one offence of possession of 22.5 g of methylamphetamine (of 11% purity) with intent to sell or supply it to another. He also pleaded guilty to a further 24 offences contained in a notice under s 32 of the Sentencing Act 1995 (WA). Those offences included possession of 3.2 g of methylamphetamine with intent to sell or supply it, possession of 3 millilitres of testosterone, possession of a replica semi-automatic pistol and two live rounds of ammunition, and a large number of traffic offences. Leave to appeal against a total effective sentence of 4 years and 10 months was refused and the appeal dismissed.
32 In Dann, the offender pleaded guilty to one count of possession of 30.99 g of methylamphetamine (most of which was of some 80% purity) with intent to sell or supply. The offender was found to have three sets of electronic scales, a quantity of empty clipseal bags and a total of almost $242,000 in cash. An appeal against a sentence of 6 years' imprisonment was dismissed.
33 In Haasy, the offender pleaded guilty to three counts of possession of methylamphetamine with intent to sell or supply. The total amount of methylamphetamine involved was 38.55 g and the purity ranged from 2% to 10%. The offender also pleaded guilty to eight offences under a s 32 notice. They included one charge of possession of methylamphetamine (0.6 g), possession of 1 g of cannabis with intent to sell or supply, possession of 1 g of cannabis, and possession of 0.62 g of amphetamine. The offender was a chronic addict who did not have a serious criminal record and who had demonstrated a desire to address his addiction. A total effective sentence of 4 years and 5 months' imprisonment was set aside on appeal and a sentence of 3 years and 6 months' imposed.
34 In Cant, the offender pleaded guilty to one count of possession of 69 g of methylamphetamine (at a purity of 21%) with intent to sell or supply it. The offender had prior convictions for possession of cannabis and amphetamine. An appeal against a sentence of 4 years' imprisonment was dismissed.
35 In this case, the total quantity of heroin was approximately 40 g. The offending was of a methodical and concerted nature. It involved both the procuring of heroin from others and the manufacture of home-bake heroin for sale or supply. Although most of the individual amounts sold or
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supplied were small, a very large number of transactions or proposed transactions were involved. The possession of a firearm and a substantial amount of ammunition was a serious additional aspect of the offending.
36 Moreover, the significance of the setting aside of the 2008 convictions is limited. The fact that the appellant's 2008 convictions were set aside does not detract from the fact that he had then been endeavouring to become involved in dealing in illicit drugs. It is evident from the appellant's plea of guilty to the 2008 offences that he had attempted to obtain prohibited drugs for sale or supply. Had the contents of the certificates of analysis come to light before his conviction on the 2008 offences, it would have been open to the respondent to amend the indictment accordingly. It would not then have been to the point that, unbeknown to the appellant, what he actually obtained were not drugs at all. It is also significant that approximately six months following his release from prison after serving the sentence for the 2008 offences he went on to commit the current offences.
37 The appellant has a very extensive and consistent record of convictions extending over more than 10 years in the Magistrates Court. They include a number of convictions for possession of prohibited drugs, including three convictions in 1999 not mentioned by the sentencing judge, being convictions for possession of cannabis, heroin and a prohibited drug, for each of which the appellant received a community based order. The appellant has previously served two short terms of imprisonment for drug offences. Despite that, he has continued to offend. That is no doubt due to his drug addiction. However, none of the pre-sentence report, the psychological report or the psychiatric report provides any cause for optimism that the appellant has the resolve to change his drug dependent lifestyle. Unless he develops that resolve, he faces a bleak future.
38 We do not consider that a different sentence should have been imposed and accordingly there is no basis for this court to interfere with the sentence imposed by the sentencing judge.
Conclusion
39 We would dismiss the appeal.
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