Criminal law - Sentencing - Possession of a prohibited drug with intent to sell or supply to another - Assaulting a public officer - Total effective sentence of 2 years' immediate imprisonment - State appeal against sentence - Sentence manifestly inadequate - Respondent re-sentenced

Legislation:

Nil

Result:

Leave to appeal granted on ground 2, but refused on ground 1
Appeal allowed
Respondent re-sentenced

Category: B

Representation:

Counsel:

Appellant: Mr J McGrath
Respondent: Mr S B Watters

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Malcolm J Ayoub

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

Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Dixon v The State of Western Australia [2006] WASCA 255
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Quinn v The State of Western Australia [2006] WASCA 99

OWEN JA: I agree with Buss JA.
BUSS JA: The respondent was convicted in the District Court, on his plea of guilty, on one count of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (count 1 on the indictment) and one count of assaulting a public officer who was then performing a function of his office or employment, contrary to s 318(1)(d) of the Criminal Code (WA) (count 2 on the indictment).
Kennedy CJDC imposed individual sentences as follows:
(a)count 1: 2 years' immediate imprisonment;
(b)count 2: 12 months' immediate imprisonment.
Her Honour ordered the sentences to be served concurrently. The total effective sentence was therefore 2 years' immediate imprisonment. She ordered that the terms of imprisonment commence on 15 September 2009, being the date of the sentencing hearing and disposition. A parole eligibility order was made.
The sentencing judge also ordered that the sentences she had imposed be served concurrently with a term of immediate imprisonment that the respondent was then serving.
The State appeals to this court against the sentencing decision.

The circumstances of the offending

On 23 December 2008, at 11.10 pm, police observed the respondent walking on Julia Street, Waikiki. The police called on him to stop. The respondent ignored this instruction and ran towards 11 Julia Street, which was a known 'drug house'.
Police chased the respondent and confronted him on the porch of the house at 11 Julia Street. The respondent called out to the occupants…

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 The State of Western Australia v Fleming

Details

AGLC: The State of Western Australia v Fleming [2010] WASCA 162
Case: [2010] WASCA 162
Decision Date: 5 AUGUST 2010

CaseChat Overview and Summary

The State of Western Australia appealed against the sentence imposed on the respondent, who had been found guilty of possessing a prohibited drug with intent to sell or supply to another, and of assaulting a public officer. The appeal was heard in the Court of Appeal of Western Australia. The State argued that the sentence of 16 months' imprisonment for the drug offence and 10 months' imprisonment for the assault offence, to be served concurrently, was manifestly inadequate.

The court considered whether the sentence imposed was manifestly inadequate. The primary judge had considered the respondent's background, which included a history of drug use and offending, but had also taken into account the fact that the respondent had shown some remorse and had agreed to participate in a rehabilitation program. The court acknowledged that the respondent's background was relevant to the sentencing process, but held that it was not the only consideration. The court held that the primary judge had failed to give adequate weight to the seriousness of the offences, and to the need to deter the respondent and others from engaging in similar conduct.

The court re-sentenced the respondent to a total effective sentence of 2 years' imprisonment, to be served consecutively. The court held that the drug offence was a serious one, and that the assault offence demonstrated a high degree of culpability. The court held that the sentence imposed by the primary judge did not adequately reflect the seriousness of the offences, or the need to deter the respondent and others from engaging in similar conduct. The court held that a sentence of immediate imprisonment was appropriate, and that the total effective sentence should be 2 years' imprisonment.

The court's final orders were that the appeal be allowed, the convictions be affirmed, and the respondent be re-sentenced to a total effective sentence of 2 years' imprisonment, to be served consecutively. The respondent was given 28 days to lodge an application for leave to appeal to the High Court of Australia.

Orders