The State of Western Australia v Bruce

[2004] WASCA 226

WA -v- BRUCE [2004] WASCA 226

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 226
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:64/2004	Heard:	6 SEPTEMBER 2004
Coram:	MURRAY ACJ STEYTLER J MCKECHNIE J	Delivered:	18/10/04
No of pages:	25	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	THE STATE OF WESTERN AUSTRALIA RODNEY JOHN BRUCE
Catchwords:	Criminal law and procedure Sentencing Conspiracy to possess prohibited drug charged on separate indictment from offences of possession with intent and sale of the drug Undesirability of that mode of indictment Indictment dealt with by different Judges Undesirability of that process Sentence for conspiracy suspended imprisonment Undue leniency of sentence established on State appeal Mode of establishing facts for sentencing purposes Relevance of hardship to offender's family Relevance of sentences of imprisonment for substantive offences
Legislation:	Criminal Code (WA), s 617A Sentencing Act 1995 (WA), s 11, s 15
Case References:	Dinsdale v R (2000) 202 CLR 321 Everett v R (1994) 181 CLR 295 Hodder v R (1995) 15 WAR 264 Langridge v R (1996) 17 WAR 346 Malvaso v R (1989) 168 CLR 227 Moore v R [1988] 1 Qd R 252 R v Allpass (1993) 72 A Crim R 561 R v Aloia [1983] WAR 133 R v Boyd [1984] WAR 236 R v Boyle (1987) 34 A Crim R 202 R v Chick (2000) 114 A Crim R 417 R v Clarke [1996] 2 VR 520 R v Hoar (1981) 148 CLR 32 R v Ryan (1984) 55 ALR 408 R v Weaver (1931) 45 CLR 321 Rogers v R [1999] WASCA 239 Savvas v R (1995) 183 CLR 1 R v "B" [2004] WASCA 1 R v Campbell (2002) 129 A Crim R 531 R v Peterson [1984] WAR 329 R v Tait (1979) 46 FLR 386 R v Vletter [2004] WASCA 96 R v Weston [2000] WASCA 389

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : WA -v- BRUCE [2004] WASCA 226 CORAM : MURRAY ACJ

STEYTLER J
MCKECHNIE J

HEARD : 6 SEPTEMBER 2004 DELIVERED : 18 OCTOBER 2004 FILE NO/S : CCA 64 of 2004 BETWEEN : THE STATE OF WESTERN AUSTRALIA

Appellant

AND

RODNEY JOHN BRUCE
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : O'SULLIVAN DCJ

File Number : IND 641 of 2003

Catchwords:

Criminal law and procedure - Sentencing - Conspiracy to possess prohibited drug charged on separate indictment from offences of possession with intent and sale of the drug - Undesirability of that mode of indictment - Indictment dealt

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with by different Judges - Undesirability of that process - Sentence for conspiracy suspended imprisonment - Undue leniency of sentence established on State appeal - Mode of establishing facts for sentencing purposes - Relevance of hardship to offender's family - Relevance of sentences of imprisonment for substantive offences

Legislation:

Criminal Code (WA), s 617A

Sentencing Act 1995 (WA), s 11, s 15

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr D Dempster & Mr L M Fox
Respondent : Mr I L K Marshall

Solicitors:

Appellant : State Director of Public Prosecutions
Respondent : J A Bougher

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

Dinsdale v R (2000) 202 CLR 321
Everett v R (1994) 181 CLR 295
Hodder v R (1995) 15 WAR 264
Langridge v R (1996) 17 WAR 346
Malvaso v R (1989) 168 CLR 227
Moore v R [1988] 1 Qd R 252
R v Allpass (1993) 72 A Crim R 561
R v Aloia [1983] WAR 133
R v Boyd [1984] WAR 236


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R v Boyle (1987) 34 A Crim R 202
R v Chick (2000) 114 A Crim R 417
R v Clarke [1996] 2 VR 520
R v Hoar (1981) 148 CLR 32
R v Ryan (1984) 55 ALR 408
R v Weaver (1931) 45 CLR 321
Rogers v R [1999] WASCA 239
Savvas v R (1995) 183 CLR 1

Case(s) also cited:

R v "B" [2004] WASCA 1
R v Campbell (2002) 129 A Crim R 531
R v Peterson [1984] WAR 329
R v Tait (1979) 46 FLR 386
R v Vletter [2004] WASCA 96
R v Weston [2000] WASCA 389


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MURRAY ACJ:

A Chronology

1 Having regard to the way in which this State appeal was presented to the Court it is of some importance that a broad chronology of the progress of the case through the courts be attempted, at least from the point in the process when the respondent was indicted.

2 Between 19 October 2001 and 31 January 2002 the respondent and a co-offender, Kevin Allan Smoker, were under police investigation. During the course of that investigation the police intercepted a number of telephone calls on the respondent's mobile phone. Ultimately, on 31 January 2002 a vehicle in which at least the respondent was travelling was stopped and searched by the police. The respondent was found in possession of about 28 grams of methylamphetamine and a firearm, which it was accepted was a family heirloom, but the serial number of the weapon had been drilled out and obliterated.

3 The respondent was interviewed by the police on video. He had nothing to say about his activities in relation to drugs but he admitted that the firearm, a handgun, belonged to him.

4 It seems that the respondent was originally charged with a number of substantive offences in relation to the sale and possession of methylamphetamine. An indictment numbered 1177 of 2002 was presented in the District Court. As I understand it, there was negotiation between the State and the respondent, as a result of which a nolle prosequi was filed on 7 May 2003 in relation to two charges. The remaining substantive offences were –

(1) A sale of about 13 grams of methylamphetamine on 28 November 2001;

(2) A sale of about 7 grams of methylamphetamine on 18 January 2002. Intercepted telephone conversations related to the purchase of the drug by the respondent and Smoker from an unidentified male. A subsequent telephone intercept concerned the respondent arranging to meet a woman named Narelle Howe at a McDonalds fast food outlet in Ascot. The police covertly observed the sale being made. Immediately afterwards they stopped Ms Howe's vehicle, seized the amphetamine and charged her;

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(3) The possession, with intent to sell or supply the drug, of about 28 grams of methylamphetamine on 31 January 2002, and

(4) The possession at that time of the defaced handgun.

5 The respondent pleaded not guilty to those offences and he was tried and convicted by a jury in June 2004. On 23 July 2004 Crisford DCJ sentenced the respondent to 2 years imprisonment for the first offence referred to above; 2 years imprisonment for the second offence; 3 years and 3 months imprisonment for the third offence, and 1 year imprisonment for the fourth. All of those sentences were ordered to be served concurrently with eligibility for parole. It is clear that Crisford DCJ was aware that for a related offence of conspiracy a suspended sentence had been imposed and the State had already launched an appeal against the inadequacy of that sentence. The sentences imposed by her Honour dated from 23 July 2004.

6 I do not know the precise history of the conspiracy charge, the subject of the present State appeal. The indictment is dated 4 August 2003. It charges the respondent and Smoker with conspiracy to possess methylamphetamine with intent to sell or supply it to another between 1 January 2002 and 1 February 2002. It will be observed that the second and third of the substantive drug offences of which the respondent was ultimately convicted fall within that period but not the first. It is clear that the offence of a sale of methylamphetamine on 28 November 2001 was committed during the same process of investigation as the later offences.

7 I have mentioned that the respondent was sentenced for the substantive offences on 23 July 2004 after the trial held in June. By then, the respondent had been sentenced for the conspiracy offence on 5 May 2004. He was sentenced to 2 years imprisonment suspended for a period of two years. Of course, the substantive offences having been committed long before the sentence of suspended imprisonment was imposed, the suspension period continues to elapse while the respondent serves the aggregate term of 3 years and 3 months, or at least the non-parole period of a little over 19 months: Sentencing Act 1995 (WA), s 77(2)-(4). The suspension period will therefore almost completely elapse while the respondent is in prison serving the later sentences.

8 The term of 2 years imprisonment suspended for two years which was imposed for the conspiracy offence followed the respondent's conviction upon his plea of guilty on 18 March 2004. That plea of guilty made unnecessary a 7 day trial which had been fixed for August 2004. As

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has been seen, the entry of the plea was significantly delayed following the filing of the indictment in August 2003. As I have mentioned, the State's appeal against the inadequacy of the suspended sentence of 2 years imprisonment was instituted promptly. The notice of appeal is dated 18 May 2004.

The Undesirability of Separate Indictments

9 The sentence for the conspiracy offence was imposed by O'Sullivan DCJ. I have mentioned that separate indictments were presented for the conspiracy and the substantive offences. It is not clear why that was so. But it certainly had the consequence that the two indictments proceeded independently through the District Court and were dealt with by different Judges. The undesirability of that occurring is made manifest when, as in this case, the separately indicted substantive offences were, at least in part, directly offences committed by way of the implementation of the conspiracy offence. Further, in relation to the first offence of sale of amphetamine, the offence was related in the sense that it was committed by the same offender subject to the same investigation process. And yet it is clear that O'Sullivan DCJ was not completely informed about the circumstances surrounding the commission of those substantive offences. The sale on 18 January 2002 was mentioned, as was the possession with intent offence committed on 31 January 2002. But the particulars given were sparse when the facts were related to the Court by prosecuting counsel.

Charging Conspiracy and Substantive Offences

10 There is no rule of law that a person should not be charged with conspiracy to commit a crime where the facts establish the commission of the substantive offence the subject of the conspiracy: R v Weaver (1931) 45 CLR 321. But it is well accepted that it is generally undesirable to charge the conspiracy where substantive offences, the product of that conspiracy can be charged and proved, as was the case here. The difficulties if both a conspiracy and substantive offences are charged, which may be occasioned in the trial process are discussed in R v Hoar (1981) 148 CLR 32, 38 and Moore v R [1988] 1 Qd R 252, 261-2, but for sentencing purposes the difficulties may be no less acute. They will be concerned with the care which must be taken by the sentencing court to avoid breaching the spirit, if not the letter, of s 11(1) of the Sentencing Act which provides:

"If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the

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evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences."

11 This was not a case directly caught by that provision and the sentence for conspiracy was imposed before those imposed for the substantive offences. But in my opinion, so far as this Court is concerned, in considering the adequacy of the exercise of sentencing discretion in relation to the conspiracy offence we must bear in mind the sentences imposed for the substantive offences and the fact that the commission of those offences is properly to be regarded as the manifestation of the implementation of the conspiracy, with the result that the sentences for the substantive offences should be regarded as being, at least to some degree, punishment for the conspiracy.

The Grounds of Appeal

12 Against that background I turn to address the matters raised in the State's grounds of appeal. It is convenient to set them out in full:

"1. The learned sentencing Judge erred in imposing a sentence which was manifestly inadequate in all the circumstances.

PARTICULARS
(a) The sentence failed to adequately reflect the seriousness of the offence and the circumstances in which it was committed, including:

(i) the offending behaviour was conducted over a period of several months between 19 October 2001 and 31 January 2002;

(ii) particular conversations that were recorded between 18 January 2002 and 31 January 2002 involved the Respondent discussing with his co-accused the purchase of drugs from different suppliers;

(iii) those conversations also included discussions as to the on-selling of the drug to an existing customer base;

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(iv) the logical inference is that the Respondent and his co-accused repackaged the drugs for sale;

(v) the Respondent admitted that his motivation for being involved in the offending conduct was financial, and in fact, he played the role of financier in the conspiracy.

(b) The learned sentencing Judge gave too much weight to matters personal to the Respondent such as:

(i) his plea of guilty in circumstances where the Crown case, due to the intercept material, was very strong;

(ii) the financial difficulties the Respondent was experiencing due to his inability to work at the time of the offending behaviour;

(iii) the claim by the author of the pre-sentence report that the Respondent is unlikely to re-offend in this way again in the future;

(iv) the character references provided by the Respondent;

(v) the difficulty to the Respondent's wider family caused by the incarceration of the Respondent.


(c) The learned sentencing Judge erred in failing to have regard or sufficient regard to the need for specific and general deterrence in respect of such offences.

2. The learned sentencing Judge erred in fact in finding that the Respondent made frank admissions to the police and in sentencing the Respondent on that basis.

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PARTICULARS

(a) The Respondent refused to participate in a video record of interview at the time of his arrest;

(b) There was no evidence before the sentencing Judge to suggest that the Respondent assisted the police or indeed made frank admissions to them at any stage.

3. The learned sentencing Judge erred in suspending the sentence.

PARTICULARS

(a) The suspension of the sentence failed to adequately reflect the seriousness of the offence and the circumstances in which it was committed, including:

(i) the offending behaviour was conducted over a period of several months between 19 October 2001 and 31 January 2002;

(ii) particular conversations that were recorded between 18 January 2002 and 31 January 2002 involved the Respondent discussing with his co-accused the purchase of drugs from different suppliers;

(iii) those conversations also included discussions as to the on-selling of the drug to an existing customer base;

(iv) the logical inference is that the Respondent and his co-accused repackaged the drugs for sale;

(iv) the Respondent admitted that his motivation for being involved in the offending conduct was financial, and in fact, he played the role of financier in the conspiracy.

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(b) The learned sentencing Judge gave too much weight to matters personal to the Respondent such as:

(i) his plea of guilty in circumstances where the State case, due to the intercept material, was very strong;

(ii) the financial difficulties the Respondent was experiencing due to his inability to work at the time of the offending behaviour;

(iii) the claim by the author of the pre-sentence report that the Respondent is unlikely to re-offend in this way again in the future;

(iv) the character references provided y the Respondent;

(v) the difficulty to the Respondent's wider family caused by the incarceration of the Respondent."

13 This being an appeal by the State it is important not to overlook what has been described as the element of double jeopardy involved in such an appeal, particularly where, as in this case, a principal thrust of the appeal is the contention that the exercise of sentencing discretion miscarried because, by a combination of the mistake of fact of which ground 2 complains and the errors in principle of which ground 1 complains, the sentence imposed was manifestly inadequate. In addition, it will be noted that by ground 3, by reference to the matters particularised, which are, appropriately, the same as those in particulars par (a) and (b) of ground 1, it is contended that his Honour's exercise of discretion miscarried again when he ordered suspension of the service of the sentence imposed.

14 In short, the State's appeal seeks a more severe sentence of imprisonment to be immediately served and in those circumstances it is manifestly the case that the respondent is by the appeal, for a second time, placed in jeopardy of the loss of his liberty which, in the form originally imposed, the sentence preserved. In dealing with such an appeal the Court will apply the same process of review of a discretionary judgment as in the case of an appeal against sentence by a convicted person. The appeal will not be allowed unless some error of principle or otherwise in

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the exercise of the discretion is identified, if by no more than the manifest inadequacy of the sentence imposed, in just the same way as such error may be established by pointing to a manifestly excessive punishment.

15 But the State appeal against sentence will be approached by the appellate court with a restraint additional to that attendant upon the disposition of an appeal against sentence by a convicted person. The Court will require error to be identified with abundant clarity and, where it is established that the discretion has miscarried, the appellate court will intervene to re-sentence by substituting a sentence at the lower end of the range of available dispositions: Dinsdale v R (2000) 202 CLR 321, 339 - 341 [57] - [62].

The Establishment of the Facts

16 I turn to some more specific matters. Ground 1(a)(i) – (iv) rely heavily upon the content of intercepted telephone conversations in which the respondent participated as demonstrating the serious nature of the conspiracy to possess methylamphetamine of which the respondent was convicted. In a supplementary appeal book, we were supplied with transcripts of telephone conversations on 18, 19, 21, 23 and 24 January 2002, but despite the best efforts of counsel on the hearing of the appeal, there is an unresolved doubt as to whether that material was made available to O'Sullivan DCJ.

17 On 18 March 2004 prosecuting counsel opened the sentencing proceedings in a conventional manner by stating aloud the material facts of the case: Code s 617A. But she did not, as is often done, tender the depositions and any other relevant documents, incorporating that tender in the facts being placed before the Court. She certainly referred to the intercepted telephone conversations between the respondent and Smoker. She said there were many conversations recorded between 18 and 31 January 2002. She said that the two men discussed the purchase of the drug from two different suppliers. They discussed the cutting of the drug to reduce its concentration for disposition on the street. They discussed the sale of the drug "to an existing customer base of theirs".

18 In submitting, immediately prior to the passing of sentence on 5 May 2004, that the conspiracy offence was of such seriousness that it demanded the conclusion that the only punishment which was appropriate was a sentence of imprisonment to be immediately served, prosecuting counsel again relied upon some of the things which had been said in the telephone conversations as indicating that they were dealing with

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substantial quantities of the drug. But again, there was no particularity in the remarks made.

19 In Langridge v R (1996) 17 WAR 346 I made some obiter remarks about the fact-finding process for sentencing purposes. At 381-2 I referred to s 617A and the judgment of Burt CJ in R v Aloia [1983] WAR 133, and to unreported decisions. Reference may also be made to what was said by Olney J in R v Boyd [1984] WAR 236.

20 In the circumstances of this case, it is necessary, I think, to develop the central observation that care must be taken to provide a sentencing court with a firm factual foundation for the imposition of sentence. As it then was, the Code s 656, and now the Sentencing Act, s 15, provides:

"To decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit."

In Langridge at 383, I said:

"The provision is obviously designed to facilitate proof by providing for a relaxation of the process of proof and the laws of evidence which the Court would generally be required to observe strictly in the course of the trial of the accused person's guilt or innocence."

21 After a trial there will, of course, be information available for sentencing purposes in the form of the evidence led at trial. But on a plea of guilty the information may acceptably be provided by the statements of counsel from the bar table, supplemented by the tender of such documents and other things as counsel may be advised will assist the Judge. Obvious examples are victim impact statements, references, antecedent reports, criminal histories, pre-sentence reports and the like.

22 In a case where the facts are disputed they may need to be tried out in a process which will involve adducing evidence in the ordinary way and subject to the usual rules. But in one way or another the necessary factual material must be put before the court if it is to be asked to rely upon it. I am not satisfied that that occurred in this case in relation to the transcripts of the principal telephone conversations upon which the State now seeks to rely and I do not think it is proper for this Court to have regard to that material for the purpose of testing whether O'Sullivan DCJ arrived at a proper view of the seriousness of the offence before him.

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The Seriousness of the Conspiracy

23 What may be said however, having regard to the factual material which was before the Court, is that his Honour found that the conspiracy went on for a period of time (that charged in the indictment was January 2002), that it involved the acquisition of drug of a high degree of purity, in an ongoing course of conduct, from more than one source, before the drug was cut in strength and resold to what was described as "an existing customer base". It was proper for the trial Judge to have regard to the established duration of the conspiracy and its features, although of course, the offence of conspiracy was complete upon the formation of the agreement to commit the crime alleged, the respondent intending to implement that agreement: Savvas v R (1995) 183 CLR 1, 7, 8.

24 The sentencing Court was entitled to have regard, as his Honour did, to the fact that methylamphetamine has long been accepted by the courts to be at the high end of the scale of seriousness of prohibited drugs. Its deleterious effect puts it in the order of drugs such as heroin and cocaine, having regard to the harm caused by its distribution in the community.

25 Furthermore, although there was little to distinguish between the criminality of the conduct of the respondent and Smoker in their respective involvement in the conspiracy, the seriousness of the respondent's conduct was elevated by his assertion, almost as if he put it forward as a matter in mitigation, that he was effectively the financier, whereas it was generally for Smoker to acquire the drug, deal with it and implement the conspiracy. The respondent and those who reported on him told the Judge that he was in financial difficulty arising out of his business activities and his efforts to repay debt which was apparently accumulated by his father. He was involved purely for monetary gain.

26 He said he was raised by his parents to be "anti-drugs". And he even told the community corrections officer in the course of preparation of the pre-sentence report that he was not involved in the distribution of the drugs. That report was dated 29 April 2004 and it was prepared for the sentencing proceedings which occurred on 5 May. Of course, the statement is at odds with his later convictions for selling the drug and possessing it with intent to sell it, the offences committed in November 2001 and January 2002.

27 However that may be, the respondent does not appear to have appreciated that to be involved in a conspiracy for the purpose of acquiring and distributing methylamphetamine in the community on what was apparently a substantial scale purely for purposes of monetary gain

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increased his culpability rather than diminishing it. It amounts to this; the respondent apparently was unable by his legitimate business activities to acquire sufficient funds for his particular needs. He therefore chose to supplement his income by engaging with Smoker in a conspiracy, the object of which was to distribute in the community substantial quantities of a highly dangerous and deleterious prohibited drug, knowing as a result of his upbringing the harm to others which the use of the drug was likely to cause.

The Plea of Guilty

28 It will be observed that a principal thrust of the appeal, both in relation to the alleged inadequacy of the sentence of imprisonment for 2 years and the decision to suspend service of that term for a period of two years, is that not only did the sentencing Judge give inadequate weight to matters demonstrating the seriousness of the offence, but that he gave too much weight to matters personal to the respondent.

29 The fact that he pleaded guilty is referred to. O'Sullivan DCJ noted the plea and that it was not made at the first available opportunity. I have mentioned that it was made on 18 March 2004, by which time a trial had been listed to commence on 2 August 2004. The indictment had been presented on 4 August 2003. In addition, it must be said that having regard to the content of the intercepted telephone conversations, if the identity of the speakers was established the prosecution case would appear to be relatively strong.

30 Further, the sentencing Judge considered that the plea disclosed a degree of remorse, a conclusion which his Honour said was supported by the fact that the respondent appeared to have made "very frank admissions to the police and to the author of the pre-sentence report". The respondent did not make frank admissions to the police. When the facts were stated to the Court his Honour was told that when, on 31 January 2002, the respondent was arrested, although he took part in a video record of interview, he refused to talk to the police. He exercised his right of silence in relation to the conspiracy, although it is said that he did admit that the handgun found in his motor vehicle was his.

31 Nor it seems did he make any particular contribution to the factual picture when, after he had been convicted, he was interviewed in the preparation of the pre-sentence report. It is said that he "generally agreed" with the statement of material facts apparently put to him by the community corrections officer. Indeed, there is no expression of remorse

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and the respondent's conduct after his arrest appears to be neutral in that regard.

Hardship to the Family

32 Then there is the complaint that his Honour placed too much weight upon the hardship which the respondent's imprisonment would occasion to his family. I have mentioned that the respondent came from a good family. Upon the completion of his schooling at the age of 14 or 15 he commenced to be employed in his father's trucking business. While the business had been profitable it appears that his father was later declared bankrupt. The respondent, although young, took on more responsibility, including assisting to provide for the family. The financial commitments of the family, including a farm, it is said, were placed in the respondent's name. The respondent was still a young man of 23 years when the conspiracy offence was committed. Shortly after that time he commenced a de facto relationship.

33 Two years later, when the case was before the District Court it was reported in the pre-sentence report that, particularly since the applicant had been in custody, as the Judge said, from 1 December 2003, a period of about five months, the applicant's parents and his partner were unable to service the respondent's financial commitments, amounting to about $285,000 in personal and home loans, without the respondent's contribution working as a subcontractor.

34 Specifically as to the hardship which sentencing the offender may cause to innocent third parties and the impact which that may be permitted to have upon the proper exercise of sentencing discretion, it is I think, only necessary to refer to the decision of this Court in Hodder v R (1995) 15 WAR 264. Although I dissented as to the outcome in that case, there was no difference between the Judges as to the statement of the sentencing principle involved. After referring to the authorities in this and other Australian jurisdictions I endeavoured to summarise my view of the proper approach to be taken in such cases and the reasons for it. I said at 287:

"For my part, I consider that it is important to bear firmly in mind that a sentencing court has a public duty to perform and it must not shirk its task which is primarily to arrive at a sentence proportionate to the gravity of the offence, having regard to the circumstances of its commission, and having regard to the personal circumstances of the offender and any available mitigation. It will by that means inject into the sentencing

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process an appropriate degree of certainty and consistency, rather than severity, which is best calculated to achieve the protection of the community by deterring the particular offender and others in the community and, particularly in the case of serious offences, by marking with appropriate retribution the court's abhorrence of the criminal conduct involved. The court is to avoid being both weakly merciful and weakly severe. Where serious offences are committed, it is inevitable that more severe punishment will be involved and that will be expected in almost every case to cause hardship to innocent persons associated with the offender and the commission of the offence, as victims or otherwise.


It is right then that only in an exceptional case, quite out of the ordinary, should the hardship which a proper sentencing disposition will occasion to innocent third parties be allowed to substantially mitigate the court's sentencing disposition. The court should not lose sight of the fact that the hardship occasioned by the sentencing process is, in truth, caused by the offender who commits the offences and visits upon himself or herself the punishment of the court. Even so, the court should, as it was put by Wells J in Wirth, be prepared to draw back in mercy where it would, in effect, be inhuman to refuse to do so."

Prior Good Character

35 The sentencing Judge also referred to the applicant's record of previous convictions. It dated back to 1996 but his Honour rightly described it as principally a record of traffic offences of no particular significance for sentencing purposes. The respondent placed a number of references before the Court. They were supportive documents testifying to the respondent's otherwise good character.

36 It is useful in this case, I think, to refer again to the approach taken by sentencing courts in serious drug cases, whether of conspiracy or drug trafficking, when considering the extent to which the personal circumstances of the offender may be permitted to mitigate punishment. In R v Chick (2000) 114 A Crim R 417, Anderson J, with whom Pidgeon and Wallwork JJ agreed, made the point firstly, as I have already mentioned, that cases involving the distribution of amphetamines were to be regarded as being concerned with a serious drug of addiction capable of doing great damage in the community. The responsibility of the courts was therefore to impose sentences which had a real effect, both for the

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particular deterrence of the offender before the court and generally for the deterrence of others who might so offend. That was central to the purpose of sentencing to be served in such cases in an effort to achieve a measure of protection for the community: at 423 [25]. At [26] his Honour noted that while the personal circumstances and antecedents of an offender must always be taken into account by a sentencing court they will carry little weight where the main sentencing consideration is general deterrence, as in this case.

The Adequacy of the Sentence

37 As I have said, the sentencing Judge noted the facts concerning the seriousness of the offence and drew the appropriate conclusion. His Honour noted the applicant's personal circumstances accurately, apart from the error in relation to his Honour's finding of remorse being supported by frank admissions to the police and the author of the pre-sentence report. Observing that the respondent had made "a calculated decision to enter into this conspiracy for financial gain", O'Sullivan DCJ said it was disturbing that the respondent appeared to have struck up a relationship with Smoker for the purpose of supplying illicit drugs to others by an ongoing business arrangement in which the respondent's role was the essential and important one of financier, at least to a degree. His Honour concluded that the requirements of particular and general deterrence meant that a sentence of imprisonment was the only appropriate punishment so as to send, "a firm and strong signal, both to the offender and to the community generally, that offences of this kind will be dealt with severely".

38 His Honour said that had it not been for the recent amendments made to the Sentencing Act and the transitional provisions associated therewith he would have thought that the appropriate term in all the circumstances was one of imprisonment for 3 years. That term, his Honour therefore reduced to one of 2 years imprisonment. His Honour was referring to, and properly applied, the Sentencing Legislation Amendment and Repeal Act 2003, s 22 and Schedule 1, cl 2(1) which had become operative on 31 August 2003, between the time when the offence was committed and the indictment was presented and sentence was passed.

39 In my opinion, grounds 1 and 2 of the appeal have been made out. I consider a term of 2 years imprisonment to be manifestly inadequate in the circumstances discussed above. Under the Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(2) and s 34(1)(b) a conspiracy of this kind is punishable by a fine of $75,000, or imprisonment for 20 years, or both.

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While one can certainly imagine many worse conspiracies, this was a significant one. The respondent was convicted of a conspiracy in which he engaged during January 2002. The conspiracy got to the point that methylamphetamine, a prohibited drug of a high order of seriousness, was acquired from two suppliers, cut and supplied in the community. For the respondent it was purely a business arrangement. He gave no thought to the harm his activities would cause. He was concerned only with his financial difficulties and there was no evidence that he ever displayed any true remorse for the commission of the offence. It was clear from the monitored telephone conversations, as O'Sullivan DCJ found, that this was to be an ongoing arrangement involving significant quantities of the drug.

40 The respondent was entitled to credit for his plea of guilty, but as I have said, that credit was reduced because there was no evidence of true contrition and the plea was made in the face of a strong prosecution case. He had no relevant criminal history and the most powerful mitigatory factor lay there and in his relative youth. He was 25 when he came to be sentenced and he was a person of formerly good character. Although a sentence of imprisonment would cause significant difficulties, particularly of a financial kind, to his partner and family, this was not one of those exceptional cases where that circumstance could be allowed to divert the Court from the imposition of properly proportionate punishment. In my opinion, after factoring in the one-third reduction required following the change to the Sentencing Act referred to above and bearing in mind the restraint necessarily attendant upon a State appeal, the appropriate sentence would be a term of 4 years imprisonment for the conspiracy offence.

41 I should indicate at this point that in arriving at that conclusion I have borne in mind that after the respondent was sentenced for the conspiracy offence he was, as I have said, presented in the District Court for trial, charged with four offences related to the conspiracy offence:

1. That on 28 November 2001 he sold methylamphetamine to another;

2. That on 18 January 2002 he sold methylamphetamine to another;

3. That on 31 January 2002 (the date of his arrest) he had about 28 grams of methylamphetamine in his possession with intent to sell it, and

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4. That at that time he had in his possession, without lawful excuse, the defaced handgun.

I have mentioned these matters before. The respondent was convicted of the first three offences set out above after a trial by jury. He pleaded guilty to possession of the defaced firearm.

42 On 23 July 2004, knowing the sentence which had been imposed for the conspiracy offence by a different Judge, Crisford DCJ imposed the concurrent terms of imprisonment set out earlier in these reasons. The aggregate term of 3 years and 3 months imprisonment took effect on 23 July. A parole eligibility order was made and so, under s 93 of the Sentencing Act, the respondent would become eligible for parole after serving one half of the term.

43 When I say that I have had regard to these sentences, I make it clear that in expressing my opinion about the appropriate term in relation to the conspiracy, I have been careful to limit my consideration to the nature and duration of the criminal agreement and I have borne in mind that care should be taken to ensure that there is no double punishment, particularly in respect of the sale of methylamphetamine on 18 January 2002 and the possession of that drug with intent on 31 January 2002.

Suspension of the Sentence

44 As to suspension of the term of imprisonment under s 76 of the Sentencing Act, there is a need to consider whether the discretion of the sentencing Judge miscarried in the making of that order. The third ground of appeal addresses this issue and correctly focuses the attention of this Court upon all the circumstances of the case, those defining the seriousness of the offence and those personal to the respondent, those matters which were aggravating in character so as to make the offence more serious and those which were mitigatory in their effect: Dinsdale, particularly per Kirby J at 348-9, [84] - [87].

45 In considering this issue, however, the sentencing Judge referred only to the respondent's favourable personal circumstances and to the matter of the hardship which would be visited on his family if he was sentenced to a term of imprisonment to be immediately served. His Honour noted that the applicant had been in prison since 1 December 2003, a period of about five months. In taking that approach, in my respectful opinion, his Honour erred because he overlooked the need to have regard to those matters concerned particularly with the seriousness of the conspiracy which were such important considerations in the sentencing process.

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46 In my view, the exercise of discretion to suspend service of the term for a period of two years miscarried and I would set aside that order. This was an offence of conspiracy too serious to be properly marked by the suspension of a term of imprisonment, for all the reasons to which I have referred in expressing the view that the term of 2 years imposed by his Honour was manifestly inadequate.

47 In my opinion then the appeal should be allowed. I would quash the sentence imposed by the sentencing Judge and in its place I would substitute a sentence of 4 years imprisonment to be immediately served. I would backdate the commencement of that term for a period of 5 months from the date of its imposition to take account of time spent in custody.

48 STEYTLER & MCKECHNIE JJ: We have had the considerable advantage of reading the judgment of Murray J. While we are in respectful agreement with much of what has been said by his Honour, we are not persuaded that this State appeal should be allowed.

49 We agree with what has been said by Murray J to the effect that, looked at on its own, the sentence imposed by O'Sullivan DCJ in respect of the conspiracy charge against the respondent was manifestly inadequate. The conspiracy with the co-offender, Kevin Smoker, was one to possess methylamphetamine (rightly described by Murray J as a drug which is high in the order of seriousness: see R v Chick (2000) 114 A Crim R 417 at [25], per Anderson J) with the intention of selling or supplying it to others on an ongoing basis. The conspiracy (said to have existed between 1 January 2002 and 1 February 2002) amounted, from the respondent's point of view, to a business arrangement designed solely in order to produce a profit. The respondent's role in the conspiracy was serious. While Smoker was to acquire the drug and deal with it, the respondent was to finance the operation.

50 There were mitigating circumstances. However, they were not, in our opinion, such as to justify so lenient a sentence as that imposed.

51 The respondent's plea of guilty is one of the mitigating circumstances. However, it was made in the face of a strong prosecution case and, as Murray J has said, there was little which pointed in the direction of genuine remorse. We agree with Murray J, too, that, contrary to what was said by the sentencing Judge, the respondent made only one, rather limited, admission to the police.

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52 Next, it is true that the respondent is a young man of prior good character who comes from a good family (an advantage denied to many others). It is also true that he faced financial difficulties affecting the whole of his family and that his incarceration will adversely affect his family in a number of ways. However, his personal antecedents are overwhelmed, in a case such as this, by the seriousness of his offending (cf Chick, above, at [26]) and the impact of his imprisonment on his family, while regrettable, is something he has in common with many other offenders and there is nothing exceptional about it: see R v Boyle (1987) 34 A Crim R 202 and Rogers v The Queen [1999] WASCA 239 at [35].

53 It consequently seems to us, as it does to Murray J, that, in all of the circumstances (more fully set out in Murray J's judgment), a sentence of only 2 years' imprisonment, suspended for 2 years, does little to achieve the sentencing Judge's stated objective (with which we agree) of sending "a firm and strong signal, both to the offender and to the community generally, that offences of this kind will be dealt with severely". Consequently, if that sentence had stood alone, we would have had little hesitation in allowing the State appeal.

54 However, it did not stand alone. As Murray J has mentioned, the respondent was charged also with three substantive offences in relation to the possession and sale of methylamphetamine. These related to the sale of about 13 grams of methylamphetamine on 28 November 2001, the sale of about 7 grams of methylamphetamine on 18 January 2002 and the possession of about 28 grams of methylamphetamine on 31 January 2002 with intent to sell or supply the drug. These offences, and a further offence of possession of a handgun, were made the subject of a separate indictment, this notwithstanding that one of the three drug offences (that committed on 18 January 2002) was committed in pursuance of the conspiracy and another (that which was committed on 31 January 2002) was committed during the period covered by the conspiracy charge. The respondent was convicted, after trial, of all four offences and sentenced by a different Judge, Crisford DCJ, in respect of them on 23 July 2004, after the imposition of the suspended sentence. The respondent was sentenced to a term of 2 years' imprisonment for each of the first two drug offences, a term of 3 years and 3 months' imprisonment for the third drug offence and a term of 12 months' imprisonment for the possession of the handgun. Each of those sentences had been reduced from those which would otherwise have been imposed were it not for the provisions of s 22 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), read with cl 2(1) of Sch 1 of that Act. All of the sentences were ordered to be

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served concurrently and the respondent was declared to be eligible for parole.

55 It is not at all clear to us why the State should have elected to follow what seems to us to have been the plainly undesirable course of separately charging the conspiracy, on the one hand, and three substantive drug-related offences (one of them committed in pursuance of the conspiracy), on the other, by way of separate indictments proceeding independently through the courts. Murray J has said (and we agree entirely with him) that it is generally undesirable to charge a conspiracy when a substantive offence has been committed and there is a sufficient and effective charge of that offence: R v Hoar (1981) 148 CLR 32; R v Ryan (1984) 55 ALR 408 at 415 - 416; Moore v The Queen [1988] 1 Qd R 252 at 262.

56 It seems to us that, in considering what should be done with this State appeal in these unusual circumstances, the appropriate course is to look at the whole of the respondent's offending, and the whole of the sentences imposed in respect thereof, before deciding whether or not this is a matter in which this Court should intervene in the sentencing process.

57 It is well established that an appeal by the State should be brought only in exceptional cases. In Everett v The Queen (1994) 181 CLR 295, the High Court considered a provision of the Tasmanian Criminal Code which conferred upon the Court of Criminal Appeal jurisdiction to grant leave to the Attorney-General to appeal against sentence. Brennan, Deane, Dawson and Gaudron JJ said (at 299):

Such a jurisdiction has become commonplace throughout this country and the common law world. Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed …".

58 In this State, the prosecution may appeal to the Court of Criminal Appeal as of right against any punishment imposed in respect of a person convicted on indictment: s 688(2)(d) of the Criminal Code. However, it

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is acknowledged that appeals of this kind, too, should be a comparative rarity. In Dinsdale v The Queen (2000) 202 CLR 321 at [62] Kirby J said:

"For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time-honoured concepts' … of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a 'matter of principle' (Griffiths v The Queen (1977) 137 CLR 293 at 310), such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced … . The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences … . This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences."

59 Similar sentiments have been expressed in a number of other cases: see, for example, Malvaso v The Queen (1989) 168 CLR 227 at 234; R v Allpass (1993) 72 A Crim R 561 at 562 - 563 and R v Clarke [1996] 2 VR 520 at 522. Other relevant rules have been stated in Clarke at 522, as follows:

"2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths [v The Queen (1977) 137 CLR 293] at 310); (c) to enable

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the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see [R v] Osenkowski [(1982) 30 SASR 212] at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306).

3. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact (Allpass at 562-3).

Allpass is also authority for the following propositions:

4. When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.

5. An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance."

60 We accept that in this case there was an error in the original sentencing process. However, when regard is had to the whole of the respondent's offending and to the whole of the sentences imposed in respect thereof (which, as we have said, seems to us to be the more appropriate way to look at this State appeal in the unusual circumstances of this case), the total sentence imposed, while undoubtedly lenient, is not, in our opinion, so manifestly inadequate that this Court should intervene. This is more particularly so in circumstances in which, for what seems to

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us to be no good reason, the respondent has already twice undergone a sentencing process in respect of what was, by any sensible measure, one related series of offences.

61 We would consequently dismiss the appeal.