The State of Western Australia v Marchese
[2006] WASCA 153
•4 AUGUST 2006
THE STATE OF WESTERN AUSTRALIA -v- MARCHESE [2006] WASCA 153
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 153 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:202/2005 | 6 JUNE 2006 | |
| Coram: | STEYTLER P WHEELER JA BUSS JA | 4/08/06 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA MARIO ANGELO MARCHESE |
Catchwords: | Criminal law State appeal against sentence Possession of methylamphetamine and MDMA with intent to sell or supply Whether sentences of suspended imprisonment manifestly inadequate Whether appropriate to refuse to intervene despite inadequacy of sentence Where respondent has spent eight months in community since sentence and has excellent prospects of rehabilitation Criminal law Sentencing Drug Offences Range of sentences in cases involving a significant quantity of serious drugs Exceptional cases where sentences of suspended imprisonment imposed Criminal law State appeals against sentence General principles Discretion to dismiss despite error Relevant factors including delay, change from noncustodial to custodial sentence and prospects of rehabilitation Practice and Procedure State should apply for urgent appeal order when seeking to overturn noncustodial sentence |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4) Criminal Procedure Rules 2005 (WA), r 69 Misuse of Drugs Act 1981 (WA), s 34(1)(a) Sentencing Legislation Amendment and Repeal Act 2003 (WA) Supreme Court (Court of Appeal) Rules 2005 (WA), r 46 |
Case References: | Allpass (1993) 72 A Crim R 561 Attenborough v The State of Western Australia [2005] WASCA 132 Bellissimo (1996) 84 A Crim R 465 Colangelo v The State of Western Australia [2004] WASCA 294 Dinsdale v The Queen (2000) 202 CLR 321 Director of Public Prosecutions (Vic) v Miller (2005) 42 MVR 411 Everett v The Queen (1994) 181 CLR 295 Gadsden v The Queen [2005] NSWCCA 453 Hollingsworth v The Queen [2004] WASCA 73 House v The King (1936) 55 CLR 499 Kalache (2000) 111 A Crim R 152 Kezkiropoulos v The Queen (2002) 136 A Crim R 522 Kirby v The Queen [2003] WASCA 164 Le v The Queen (2004) 147 A Crim R 269 Leucus (1995) 78 A Crim R 40 Lowndes v The Queen (1999) 195 CLR 665 Macri v The State of Western Australia [2006] WASCA 63 Marchesano (2000) 116 A Crim R 237 Marker v The Queen (2002) 135 A Crim R 55 Mishal v The Queen [2001] WASCA 328 Olomi v The State of Western Australia [2004] WASCA 304 Oxwell v The Queen [2002] WASCA 202 Pham (1991) 55 A Crim R 128 Postiglione v The Queen (1997) 189 CLR 295 Potter (1994) 72 A Crim R 108 R v Boxtel [1994] 2 VR 98 R v Carngham (1978) 140 CLR 487 R v Clarke [1996] 2 VR 520 R v Disun (2003) 27 WAR 146 R v Dowie [1989] Tas R 167 R v Fakhreddine (2004) 147 A Crim R 422 R v Hallocoglu (1992) 29 NSWLR 67 R v Jones [1984] WAR 175 R v Moffitt (1990) 20 NSWLR 114 R v Nikodjevic [1998] 2 VR 33 R v O'Brien (1987) 6 MVR 75 R v Osenkowski (1982) 30 SASR 212 R v Weston [2000] WASCA 389 Ruvinovski (2000) 116 A Crim R 131 Samuel v The State of Western Australia [2004] WASCA 154 Schlenka v The State of Western Australia [2004] WASCA 142 Sinclair (1993) 66 A Crim R 284 The State of Western Australia v Andela [2006] WASCA 77 The State of Western Australia v Houston [2005] WASCA 167 Tulloh v The Queen (2004) 147 A Crim R 107 Vogel v The Queen [2002] WASCA 261 Watt v The Queen [2000] WASCA 354 Wong v The Queen (2001) 207 CLR 584 Darwell (1997) 94 A Crim R 35 R v Ruich [2000] WASCA 84 Rowe (1991) 52 A Crim R 196 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- MARCHESE [2006] WASCA 153 CORAM : STEYTLER P
- WHEELER JA
BUSS JA
- Appellant
AND
MARIO ANGELO MARCHESE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO DCJ
File No : IND 1249 of 2005
Catchwords:
Criminal law - State appeal against sentence - Possession of methylamphetamine and MDMA with intent to sell or supply - Whether sentences of suspended imprisonment manifestly inadequate - Whether appropriate to refuse to intervene despite inadequacy of sentence - Where respondent has spent eight
(Page 2)
months in community since sentence and has excellent prospects of rehabilitation
Criminal law - Sentencing - Drug Offences - Range of sentences in cases involving a significant quantity of serious drugs - Exceptional cases where sentences of suspended imprisonment imposed
Criminal law - State appeals against sentence - General principles - Discretion to dismiss despite error - Relevant factors including delay, change from noncustodial to custodial sentence and prospects of rehabilitation
Practice and Procedure - State should apply for urgent appeal order when seeking to overturn noncustodial sentence
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Procedure Rules 2005 (WA), r 69
Misuse of Drugs Act 1981 (WA), s 34(1)(a)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 46
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Ms T Sweeney SC & Ms A D C Smit
Respondent : Mr M J Bowden
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Cannon Bowden & Co
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Case(s) referred to in judgment(s):
Allpass (1993) 72 A Crim R 561
Attenborough v The State of Western Australia [2005] WASCA 132
Bellissimo (1996) 84 A Crim R 465
Colangelo v The State of Western Australia [2004] WASCA 294
Dinsdale v The Queen (2000) 202 CLR 321
Director of Public Prosecutions (Vic) v Miller (2005) 42 MVR 411
Everett v The Queen (1994) 181 CLR 295
Gadsden v The Queen [2005] NSWCCA 453
Hollingsworth v The Queen [2004] WASCA 73
House v The King (1936) 55 CLR 499
Kalache (2000) 111 A Crim R 152
Kezkiropoulos v The Queen (2002) 136 A Crim R 522
Kirby v The Queen [2003] WASCA 164
Le v The Queen (2004) 147 A Crim R 269
Leucus (1995) 78 A Crim R 40
Lowndes v The Queen (1999) 195 CLR 665
Macri v The State of Western Australia [2006] WASCA 63
Marchesano (2000) 116 A Crim R 237
Marker v The Queen (2002) 135 A Crim R 55
Mishal v The Queen [2001] WASCA 328
Olomi v The State of Western Australia [2004] WASCA 304
Oxwell v The Queen [2002] WASCA 202
Pham (1991) 55 A Crim R 128
Postiglione v The Queen (1997) 189 CLR 295
Potter (1994) 72 A Crim R 108
R v Boxtel [1994] 2 VR 98
R v Carngham (1978) 140 CLR 487
R v Clarke [1996] 2 VR 520
R v Disun (2003) 27 WAR 146
R v Dowie [1989] Tas R 167
R v Fakhreddine (2004) 147 A Crim R 422
R v Hallocoglu (1992) 29 NSWLR 67
R v Jones [1984] WAR 175
R v Moffitt (1990) 20 NSWLR 114
R v Nikodjevic [1998] 2 VR 33
R v O'Brien (1987) 6 MVR 75
R v Osenkowski (1982) 30 SASR 212
R v Weston [2000] WASCA 389
Ruvinovski (2000) 116 A Crim R 131
Samuel v The State of Western Australia [2004] WASCA 154
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Schlenka v The State of Western Australia [2004] WASCA 142
Sinclair (1993) 66 A Crim R 284
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Houston [2005] WASCA 167
Tulloh v The Queen (2004) 147 A Crim R 107
Vogel v The Queen [2002] WASCA 261
Watt v The Queen [2000] WASCA 354
Wong v The Queen (2001) 207 CLR 584
Case(s) also cited:
Darwell (1997) 94 A Crim R 35
R v Ruich [2000] WASCA 84
Rowe (1991) 52 A Crim R 196
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1 STEYTLER P: On 4 October 2005, after pleading guilty, the respondent was convicted of two counts of possession of a prohibited drug (respectively methylamphetamine and MDMA) with intent to sell or supply to another, one count of receiving stolen property, two counts of possession of a prohibited weapon, one count of possession of a pipe for use in smoking a prohibited drug (methylamphetamine), one count of possession of a utensil for smoking cannabis and one count of possession of a prohibited drug (methylamphetamine). On that day, he was sentenced to a term of 2 years' imprisonment for the offence of possession of methylamphetamine with intent to sell or supply and to a term of 16 months' imprisonment for the offence of possession of MDMA with intent to sell or supply. The two sentences were ordered to be served concurrently. The sentencing Judge suspended those terms for a period of two years. He imposed an intensive supervision order in respect of the remaining offences, all of which had been the subject of a notice under s 32 of the Sentencing Act 1995 (WA). The intensive supervision order was for a period of 2 years. The respondent was required to undergo a programme to address substance abuse and to serve 100 hours of community service. The State has appealed against the sentences imposed. It contends that the terms of imprisonment imposed by the sentencing Judge should not have been suspended.
Circumstances of the offences
2 On 23 May 2005 the police executed a search warrant at the respondent's home. They located a safe. Inside it, they found the drugs the subject of the drug offences charged. The total weight of the methylamphetamine found was 27.97 grams. It had a purity of approximately 18 per cent. The total weight of the MDMA found was 2.06 grams. Its purity is unknown. The police also found paraphernalia associated with selling drugs, including a quantity of a known cutting agent, clip seal bags, scales and some $18,000 in cash, half of which was admitted to be drug-related. They located a book and an electronic organiser, apparently containing notes regarding money owed to the respondent for drugs. A camera was discovered at the front of the appellant's house. It provided surveillance to the garage, in which the safe was located. The police also found, in the garage, stolen computer equipment to a value of about $4500. The respondent said that this equipment had been given to him by an associate. He declined to identify the associate. A flick-knife was found in the respondent's back pack. Four "butterfly knifes", smoking utensils and a small quantity of methylamphetamine were found in the respondent's bedroom.
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3 The respondent was a drug user, but denied being addicted. He admitted that he had been dealing in drugs for a financial motive. He said that he wanted to buy a house with his partner. He saw the sale of drugs as a means of achieving the money needed to put down a deposit. This was so notwithstanding that he was in receipt of a regular income from his job.
Circumstances of the offender
4 The respondent, who had pleaded guilty to the offences charged on the "fast track", was 24 years old at the time of sentencing. He had no criminal record. He was in a de facto relationship and had a 20-month-old daughter. He was employed as a project cost controller and received an income of approximately $42,000 per year. He had previously been employed in a similar position with a different employer. He had been in permanent employment for seven years. He supported his de facto partner, his child and, to a degree, his mother. His daughter has a medical condition known as "kidney reflux".
5 At the time of his offending, the respondent's relationship with his partner had been under stress. However, after his arrest, he ceased to associate with acquaintances who were involved in drugs and he and his partner developed a much closer relationship. A pre-sentence report prepared in respect of the respondent (and made available to the sentencing Judge) indicates that his history in the drug industry has been short and that he has had an opportunity to "reassess his life direction". It also records that he has said that he would "never go back to using illicit drugs", as he has learned his lesson. He is disappointed and embarrassed by the impact of his offending on his family. He is said to have shown insight into his offending behaviour.
The grounds of appeal
6 There is only one ground of appeal. It is to the effect that the sentencing Judge erred in law in suspending the terms of imprisonment he imposed. However, the ground is particularised in the following way:
"(a) The imposition of suspended sentences failed adequately to reflect the seriousness of the offences, given:
(i) the quantity of the methylamphetamine that was found;
(ii) the purity of the methylamphetamine and the fact that the Respondent possessed a cutting agent;
- (iii) the fact that the Respondent was in possession of trafficable quantities of two prohibited drugs; and
(iv) the fact that the Respondent was dealing commercially in the drugs for profit.
- (b) The decision to suspend the sentences placed undue emphasis on factors personal to the Respondent, in particular what the learned sentencing Judge called his 'family responsibilities'.
(c) The imposition of suspended sentences failed to reflect the need for personal and general deterrence, and the need for condign punishment for those who commit serious drug offences."
7 There is no suggestion by the appellant that the length of the suspended sentences of imprisonment imposed upon the respondent was inadequate. The only contention is that those sentences should not have been suspended.
Did the suspension result in the sentences being manifestly inadequate?
8 The cases make it plain that trafficking in methylamphetamine is serious, that the major consideration in the sentencing process in such cases is personal and general deterrence and that the personal circumstances of the offender carry less weight: Bellissimo (1996) 84 A Crim R 465 at 469, 471; Kezkiropoulos v The Queen (2002) 136 A Crim R 522 at [15], [57] and Tulloh v The Queen (2004) 147 A Crim R 107.
9 In cases of drug dealing, it is wrong to focus solely on the quantity of drug involved: Wong v The Queen (2001) 207 CLR 584. It is also necessary to consider such matters as the offender's knowledge of the type and amount of drug and the nature and level of his or her participation in its distribution. However, as McLure JA pointed out in Tulloh (at [50]) the quantity of the drug involved remains an important factor which can be given significant weight. Also, the higher the level of purity, the more seriously will the quantity be viewed: Kezkiropoulos at 524 [6]; Marker v The Queen (2002) 135 A Crim R 55 at [87] - [89]. Purity may be an indicator of the level of an offender within a criminal hierarchy: Vogel v The Queen [2002] WASCA 261 at [7]; Macri v The State of Western Australia [2006] WASCA 63 at [18] - [23] per Wheeler JA and Kirby v The Queen [2003] WASCA 164 at [136] per Roberts-Smith J. The offence will be more serious if the offender deals in drugs solely or
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- primarily for commercial gain: Kalache (2000) 111 A Crim R 152 at 158 [9], 198 [182]; R v Fakhreddine (2004) 147 A Crim R 422 at 426 [20]; R v Ali [1996] 2 VR 49 at 51 and The State of Western Australia v Andela [2006] WASCA 77 at [14].
10 Because trafficking in drugs such as methylamphetamine and MDMA is so seriously regarded by the courts, and by the legislature (as appears from the very significant penalties which have been provided for in the applicable legislation), it is very rare that anything other than a term of immediate imprisonment will be imposed: Andela at [17] per McLure JA, and the cases there cited. However, there are exceptional cases.
11 One such case is Attenborough v The State of Western Australia [2005] WASCA 132. The appellant had been in possession of 8.43 grams of MDMA, with a purity of 40 per cent, with intent to sell or supply. She was 20 years old at the time. She cooperated with police, pleaded guilty on the fast track, had no prior convictions, had an excellent work record and strong support in the community and had not dealt in the drugs for reward. She was sentenced to a term of 20 months' imprisonment. The Court of Appeal allowed her appeal and imposed, in lieu of the sentence imposed by the primary Judge, a sentence of 12 months' imprisonment, suspended for 12 months.
12 Samuel v The State of Western Australia [2004] WASCA 154 is also an exceptional case. The appellant had been found in possession of 6.25 grams of powder consisting of 25 per cent methylamphetamine and 19 per cent pseudoephedrine. He was convicted after a trial. He was 47 years old. The sentencing Judge described him as having been a good worker and a good family member. He was not a drug user and his involvement with drugs had been for "personal financial gain". However, there was nothing to suggest that he was likely to commit any offence in the future. The trial Judge sentenced him to a term of 2 years' imprisonment. On appeal, that sentence was set aside and, in lieu, a sentence of 2 years' imprisonment, suspended for 2 years from the date of the hearing of the appeal, was imposed. The Court said (at [43] per Roberts-Smith J, with whom Malcolm CJ and Murray J were in agreement) that, notwithstanding the seriousness of the offence, a suspended sentence was appropriate and that this was a case in which it was "in the greater public interest to give more weight to the principles of condemnation, personal deterrence and rehabilitation" than to considerations of general deterrence.
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13 Another such case is R v Weston [2000] WASCA 389. In that case the offender had joined a "bikie" gang in the Eastern States as a probationary member. He came into contact with two undercover police officers who were posing as senior members of the gang. The offender came to Perth. While there, he was telephoned by one of the undercover officers and asked, on three separate occasions, to provide the officer with amphetamine. He did so on each occasion. The total quantity involved was around 41 grams and this was sold for a total of $6000. He was subsequently arrested. Following his arrest, he left the gang and stopped associating with its members. He pleaded guilty to each charge. A psychiatric report established that he had been an "outsider" who wished to "belong" and that he was therefore susceptible to peer pressure. His drug dealing was limited to what he had been asked to do. His lack of assets was inconsistent with other drug dealing. The proceeds of his drug sales would have been paid to the person from whom he had obtained the drugs. On appeal, the Court of Criminal Appeal was not persuaded that the sentencing Judge had erred in imposing a suspended sentence.
14 While exceptions such as these exist, in the vast majority of cases involving a significant quantity of serious drugs, and especially in cases of commercial dealing, immediate sentences of imprisonment have been imposed. The following cases exemplify this.
15 In Schlenka v The State of Western Australia [2004] WASCA 142, the offender was convicted, after a trial, of possession of 12.7 grams of methylamphetamine with intent to sell or supply. The drug had a purity of 47 per cent. The offender was a 28-year-old man with no prior convictions. He had been a heavy drug user. After committing the offences of which he was convicted, he ceased to use amphetamines. A sentence of 1 year and 8 months' imprisonment was imposed after a successful appeal by the offender.
16 In Olomi v The State of Western Australia [2004] WASCA 304 the appellant had been convicted (after pleading guilty) of possession of 64.48 grams of methylamphetamine and 53.85 grams of MDMA (the degree of purity, in each instance, was not stated), with intent to sell or supply. He had poor antecedents and the offences were committed whilst he was on parole in respect of an armed robbery offence. He had committed the drug offences partly in order to fund his addiction and partly for financial gain. He was sentenced to terms of 2 years and 8 months' imprisonment on each charge, to be served cumulatively. Leave to appeal against sentence was refused.
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17 In Colangelo v The State of Western Australia [2004] WASCA 294, the offender was convicted on two counts of possession of methylamphetamine with intent to sell or supply. The first count involved 53.32 grams with a purity of between 9 per cent and 48 per cent. The second count involved 26.3 grams with a purity of 37 per cent. He was also convicted of possession of 74 tablets of MDMA with intent to sell or supply. He pleaded guilty on all three counts. He was 23 years old. The sentencing Judge described him as a middle range drug dealer. He had no significant prior criminal history. He dealt in drugs to pay for his own habit. He was sentenced to a total term of 6 years' imprisonment, 4 years of which was imposed in respect of the first count of possession of methylamphetamine with intent to sell or supply. His appeal against the sentences imposed was dismissed.
18 In Hollingsworth v The Queen [2004] WASCA 73, the offender was convicted on five counts of selling drugs (methylamphetamine and MDMA) and one of possession of methylamphetamine with intent to sell or supply. One of the counts of sale of methylamphetamine (count 5) involved 29 grams of the drug with a purity of 11.2 per cent. There was a very late plea of guilty. The offender was found to have been an active distributor of drugs for commercial gain. He had another drug conviction in respect of an offence committed while on bail for these offences. He was sentenced to a total term of 5 years' imprisonment, 3 years of which was imposed in respect of count 5. Leave to appeal against sentence was refused.
19 In Le v The Queen (2004) 147 A Crim R 269, the offender was convicted, after pleading guilty, on two counts of selling methylamphetamine, two counts of selling heroin and one count of offering to sell heroin. All of the dealings had been with an undercover police officer. The offender took the money received from the sales to the person who supplied him with the drugs. In exchange for negotiating the transactions, he obtained drugs or money to support his heroin addiction. One of the counts on which he was convicted involved 6.94 grams of methylamphetamine with a purity of 81 per cent. He was sentenced to a term of 2 years and 1 months' imprisonment in respect of that count. The total sentence imposed was 9 years and 3 months' imprisonment. Leave to appeal against sentence was refused.
20 In Vogel v The Queen [2002] WASCA 261, the offender was convicted, after a trial, of possession of 3.8 grams of methylamphetamine with a purity of 11 per cent and 2.86 grams of methylamphetamine with a purity of 37 per cent, for the purpose of sale or supply. He was a
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- relatively young man of previous good character. He had a positive employment record. He was sentenced to 3 years' imprisonment. On appeal, the sentence was upheld.
21 In Marchesano (2000) 116 A Crim R 237, the offender was convicted, after a trial, of possession of a total of 42.46 grams of methylamphetamine, with a purity of 20 per cent, with intent to sell or supply. He had a prior conviction for cultivating cannabis. He was sentenced to 3 years and 6 months' imprisonment. Leave to appeal against sentence was refused.
22 In Watt v The Queen [2000] WASCA 354, the offender was convicted, after a trial, of possession of 6.74 grams of methylamphetamine, having a purity of between 18 and 22 per cent, with intent to sell or supply. He was treated as a first offender. He was found to have had a relatively high level of involvement in drug dealing. He was not a drug user. A sentence of 4 years' imprisonment, although described as "relatively severe", was upheld on appeal.
23 In Mishal v The Queen [2001] WASCA 328, the offender was convicted, after a trial, of possession of 76 methylamphetamine tablets with intent to sell or supply. The total quantity involved was 20 grams, with a purity of 2 per cent. The offender was 21 years old and of previous good character. He had a positive employment record and strong family support. He was sentenced to a term of 3 years' imprisonment. The Court of Criminal Appeal described the sentence as severe, but declined to interfere with it.
24 These cases (Schlenka, Olomi, Colangelo and Hollingsworth having been decided after the coming into effect of the transitional provisions provided for by the Sentencing Legislation Amendment and Repeal Act 2003 (WA)) seem to me, with due respect to the sentencing Judge, to establish that the sentences of suspended imprisonment imposed in this case were inadequate. The purity of 18 per cent of the 27.97 grams of methylamphetamine found in the respondent's possession, while relatively low, was still well above the "street" purity level of around 7 per cent. This suggests that the methylamphetamine was going to be further cut before being distributed, as seems to be apparent from the finding of a known cutting agent with the drugs. The sum of money, drug paraphernalia and surveillance equipment found at the respondent's premises indicate that his was an organised business. In my opinion, there is nothing in the circumstances of the offending, or of the offender, that is sufficient to categorise this case as exceptional.
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Principles relating to Crown appeals
25 However, this conclusion is not dispositive of the appeal. Before intervening, the Court is obliged to have regard to the principles relating to State or Crown appeals.
26 Under s 31(4) of the Criminal Appeals Act 2004 (WA), this Court "may allow an appeal if, in its opinion … a different sentence should have been imposed" (my emphasis). Consequently, even if the Court is of the opinion that a different sentence should have been imposed, it retains a discretion whether or not to allow the appeal. This discretion is particularly significant in the case of State or Crown appeals: Allpass (1993) 72 A Crim R 561 at 566 - 567 and The State of Western Australia v Houston [2005] WASCA 167 at [52]. In R v Clarke [1996] 2 VR 520 at 522, Charles JA, with whom Winneke P and Hayne JA agreed, said:
"1. An appeal by the Crown should be brought only in 'the rare and exceptional case' (Everett [v The Queen (1994) 181 CLR 295] at 299) to establish some point of principle. The reason is that such appeals 'represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy' (Malvaso [v The Queen (1989) 168 CLR 227] at 234).
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 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 [(1993) 72 A Crim R 561] 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."
"[P]rosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended[,] even to offenders with bad records[,] when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."
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28 More recently, in Dinsdalev The Queen (2000) 202 CLR 321, the principles pertaining to Crown appeals were discussed by Kirby J at 340 - 341. After mentioning that one basis for appellate intervention is replacement of a sentence that is manifestly disproportionate to the circumstances, whether because the punishment imposed is considered to be plainly excessive or manifestly inadequate, he went on to say:
"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' … 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."
29 Generally speaking, the Court will not exercise its discretion to decline to interfere if the seriousness of the offence outweighs any prejudice to the respondent arising from the Crown appeal. However, a number of considerations must be taken into account. Underwood J pointed out, in R v Dowie [1989] Tas R 167 at 180, that it is inadvisable to attempt exhaustively to define these. However, he went on to refer to an article by Fiori Rinaldi ("Dismissal of Crown Appeals Despite Inadequacy of Sentence" (1983) 7 Crim LJ 306) as providing some useful illustrations of the occasions on which the Court had declined to interfere with a sentence shown to be manifestly inadequate. These were said by Rinaldi (at 306) to fall into five overlapping groups as follows:
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- "(i) where there has been delay; (ii) where an unappealed sentence imposed upon a co-offender is seen to create a penalty ceiling; (iii) where imposition of an appropriate sentence would offend the so-called 'totality' principle; (iv) where the inadequate sentence is seen to have a significant prospect of 'rehabilitating' the offender; (v) where imposition of the inadequate sentence was contributed to by lack of challenge by the Crown of sentencing facts submitted by the offender or seen to exist by the trial judge."
30 Factors (ii) (as to which see R v Nikodjevic [1998] 2 VR 33 at 43), (iii) (as to which see Postiglione v The Queen (1997) 189 CLR 295 at 304, 313, 321, 340 - 341) and (v) (as to which see Everett v The Queen (1994) 181 CLR 295 at 307 per McHugh J; R v Jones [1984] WAR 175 at 179 per Burt CJ; Sinclair (1993) 66 A Crim R 284 at 291 - 293 per Seaman J; Allpass at 566 - 567 and Oxwell v The Queen [2002] WASCA 202 at [19] - [21] per Anderson J) are not presently relevant. However, each of factors (i) and (iv) is relevant.
31 Delay in the institution or prosecution of a Crown appeal, more particularly where it involves a change from a non-custodial to a custodial sentence, is a factor of some significance: see, for example, Kalache at [204] - [208] per Hulme J; Potter (1994) 72 A Crim R 108 and Leucus (1995) 78 A Crim R 40 at 51 per Murray J.
32 In his article, Rinaldi (at 308) comments as follows:
"When an offender is given a non-custodial sentence and complies with its terms for several months it seems grotesque that an appeal court should disturb that order in the absence of strong reasons of public interest. This would seem to be more particularly the case when through no fault of the respondent his trial was delayed for a considerable time before he was eventually awarded the non-custodial sentence … An analogous comment would normally seem valid in situations where an offender who received a short prison sentence has served that sentence by the time the Crown appeal is determined.
Although the jurisprudence of sentencing is certainly not without numerous examples where a non-custodial order has been replaced by a term of imprisonment … courts are reluctant to take that course particularly when the circumstances of the crime rob it of much of its heinousness."
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33 While courts are reluctant to return a respondent to custody when that respondent has been "permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation" (see Everett at 305 per Brennan, Deane, Dawson and Gaudron JJ), they will do so where necessary. Thus, in R v Carngham (1978) 140 CLR 487, Gibbs ACJ said (at 494):
" … it is clearly just and necessary that this Court in deciding upon the present application, and the Court of Criminal Appeal if the matter is remitted to that Court, should consider the fact that the respondent has been released from prison and has obtained, and achieved promotion in, employment, and that the Crown has been guilty of delay in making this application. However those facts, in themselves, do not necessarily render it unjust to return the respondent to prison in a case as apparently serious as the present. They are circumstances to be given full weight, together with all the other circumstances of the case, in deciding whether, if it is concluded that the sentence imposed by the District Court judge was manifestly inadequate, a sentence should be substituted which would require the respondent to serve a further term of imprisonment."
- (See alsoR v O'Brien (1987) 6 MVR 75 at 79 per Underwood J.)
34 In Pham (1991) 55 A Crim R 128, Lee CJ at CL placed some emphasis on the questions whether the respondent has been prejudiced by the delay and whether the Crown was at fault in causing the delay. He said (at 136):
" … there is no doubt that delay can be a factor in inducing the court to exercise its discretion to decline to interfere in a Crown appeal. I would, however, repeat what I said in the case of Eldaghl (unreported, Court of Criminal Appeal, NSW, Lee CJ at CL, Mathews and Sharpe JJ, No 60681 of 1990, 11 April 1991):
'In my view the question of delay in Crown appeals is not a matter to be viewed merely from the point of delay. It has to be viewed from the point of prejudice that may be occasioned to the respondent and whether the prosecuting authority is at fault in not having filed the notice of appeal earlier.
- One would never seek to encourage a practice in which the Crown could wait indefinitely and could file a notice of appeal when a person had been allowed, during that period, to believe that the litigation was behind him and that his future could (even within the constraints of custody, if he is in custody) be mapped out by him and his aspirations determined upon. The significant matter, in my view, on the question of delay in Crown appeals is that the respondent should be notified as soon as possible that an appeal is being considered, for that enables the respondent immediately to recognise that he can be further dealt with by the court and that plans he may make may be frustrated if he carries them out …
… The efforts by the prosecuting authority, taken in the public interest, to ensure that persons are properly punished and that judges, at first instance, properly apply accepted sentencing principles, should not be thwarted by this Court because of delay in lodging a notice of appeal when the prosecuting authority has done all that can be reasonably expected of it to bring the appeal on expeditiously. It is different when unjustifiable delay has occurred.'
- I would add to that citation a reference to the decision of Carngham (1978) 140 CLR 487 at 494, where Sir Harry Gibbs ACJ, as he then was, pointed out that the serious nature of the crime was itself a factor to be weighed in considering any proposition that delay should be regarded as a ground for refusing to interfere and correcting [sic] an inadequate sentence. Each case must be considered on its own facts."
35 The issue of prejudice was also emphasised by Hunt CJ at CL in R v Hallocoglu (1992) 29 NSWLR 67 at 80. He warned that a Crown appeal will not be dismissed simply because of delay. He said:
"It will only be dismissed if that delay has caused prejudice to the respondent: R v Cuk Thanh Pham (1991) 55 A Crim R 128 at 136, 138. Such prejudice may be occasioned, for example, where as a result of a successful Crown appeal the respondent has to be returned to custody after having served the whole of the custodial part of the sentence from which the appeal is brought; but, even then, the seriousness of the crime may be such as to outweigh that prejudice: R v Carngham (1978) 140
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- CLR 487 at 494; R v Morris (Court of Criminal Appeal, 10 March 1989, unreported) at 8."
36 However, there are cases in which, even though the appeal has been lodged promptly, the courts have taken delay in determining it into account. So, for example, in Potter, the respondent was sentenced on 2 June 1993 to 2 years and 6 months' imprisonment to be served by way of periodic detention. The appeal was lodged promptly on 11 June 1993. It came before the New South Wales Court of Criminal Appeal on 7 October 1993, but had to be adjourned until 14 February 1994. The Court held that the sentences imposed were manifestly inadequate and that a miscarriage of justice had taken place, but left the sentences undisturbed "by the exercise of the residual discretion which is vested in the Court when hearing a Crown appeal" (at 115). Carruthers J, who wrote the lead judgment, said (at 115):
"Not without the greatest hesitation, and despite the miscarriage of justice which has occurred, I have concluded that this Court should not intervene. The critical factor which leads me to this conclusion is the fact that (through no fault of the respondent) the appeal was not heard when it first came before the Court on 7 October 1993. The result is, that a further period of over five months has expired during which the respondent has performed his periodic detention and consolidated himself in the workplace. I have little doubt that if I had heard this appeal on 7 October 1993 I would have concluded that the Court should intervene to impose a full-time custodial sentence. However the delay which has occurred since that date leads me to a different conclusion. By the time this judgment is delivered it will have been nine months since the Crown appeal was lodged, and the respondent has been kept in a state of uncertainty over that period. Accordingly, I would propose, in the exercise of the Court's residual discretion, that the appeal be dismissed."
37 As to the prospect of rehabilitation, this is a factor which should, in the ordinary case, operate at the stage of considering whether or not the sentence in question was manifestly inadequate, rather than at the discretionary stage. However, there are cases in which it has been taken into account at that stage.
38 In Gadsden v The Queen [2005] NSWCCA 453, McClellan CJ at CL (with the agreement of Hodgson JA and Hall J) said (at [37]):
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- "If I had been carrying out the task of sentencing the respondent, rather than reviewing the matter on appeal, I would have been inclined to impose a term of imprisonment. However, that term would have been relatively short and I would have imposed a significant period of parole to ensure that the respondent understood the need to confirm to the norms of society in the future. However, as this is a Crown appeal it is necessary to be mindful of the principles to which I have referred. Those principles have led me to conclude that, in this case, it would not be appropriate to interfere with the sentence imposed by the sentencing judge. The respondent has served a short period in custody and is required to undertake a significant period of community service. Having regard to his personal circumstances, and the evidence that points strongly towards prospects of effective rehabilitation, I do not consider that it would be appropriate in response to a Crown appeal to impose a sentence of fulltime custody."
39 In Director of Public Prosecutions (Vic) v Miller (2005) 42 MVR 411, the respondent, who had been a visitor from the United States of America, had pleaded guilty to culpable driving causing death and had been sentenced to 3 years and 3 months' imprisonment with a non-parole period of 1 year and 7 months. Cummins AJA considered that the case was one which called for mercy and found that there had been no error of substance in the reasoning of the sentencing Judge. Vincent JA, on the other hand, considered that the sentence which had been imposed was inadequate in the circumstances. However, he said (at 418 [37]) that, when regard was had to the principles applicable to a Crown appeal against sentence (including the principle of double jeopardy) and to the somewhat singular circumstances of the respondent himself, intervention would not be appropriate. The third Judge, Nettle JA, said (at 419 [41] - [42]):
"I am … in agreement with Cummins AJA that the court should not intervene in this case, although my assent to that course is not so much due to the constraints imposed by the principle of double jeopardy as it is based upon the court's residual discretion not to intervene (despite the manifest inadequacy of the sentence) (R v Holder and Johnston [1983] 3 NSWLR 245 at 255-6; cfR v Papazisis and Bird (1991) 51 A Crim R 242 at 246-7 … ).
(Page 20)
- It may not be enough to enliven that discretion that the respondent is a citizen of the United States of America now imprisoned far from his home, or even that he has a young family in the United States that for all intents and purposes he cannot see so long as he is in gaol … One cannot doubt, however, that the hardship which that imposes must be very considerable. It may also be insufficient that the respondent has since he was sentenced lived upon the expectation that he could be released after only 19 months of detention in order to return to his family … One cannot doubt, however, that he would be rendered a heavy psychological blow if that period were now increased. But when there is added to the equation that, as best one can tell, the existing sentence has a significant prospect of rehabilitating the respondent (R v Sherpa (2001) 34 MVR 345 at [12] … ), I think there to be sufficient in total for the exercise of discretion in his favour."
40 Another factor that has been taken into account is the magnitude of the error of the sentencing judge. If the difference between the sentence imposed and the sentence which should have been imposed is not great, the element of double jeopardy may justify the dismissal of an appeal: R v Moffitt (1990) 20 NSWLR 114 at 129 - 130 per Badgery-Parker J. Similarly, if, after considering the effect of "discounting" the new sentence to account for the element of double jeopardy, the increase in the sentence on appeal would be minor, appellate courts will not consider it appropriate to intervene: R v Boxtel [1994] 2 VR 98 at 104 - 105 per Crockett and Hampel JJ and R v Disun (2003) 27 WAR 146 at [30] per Templeman J.
The appropriate exercise of discretion in this case
41 I have mentioned that the respondent in the present case was sentenced on 4 October 2005. The appeal was heard on 6 June 2006. Consequently, the respondent had, by that time, spent eight months living and working in the community. He did so in circumstances in which he has a de facto partner and a young child who are dependent upon him and a mother who is partially dependent upon him. Moreover he has successfully completed a significant proportion of the requirements imposed upon him as a consequence of the making of the intensive supervision order in respect of the offences the subject of the s 32 notice. His prospects of rehabilitation appear to be excellent. There is no reason to doubt the submission of his counsel to the effect that he has seized the opportunity afforded him "with both hands", suggesting that the
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- sentencing Judge's seemingly intuitive view that leniency might lead to reform (as to which, see Osenkowski at 212 - 213) may well have been correct. The sentence of immediate imprisonment contended for by the appellant is not a particularly lengthy one (the offences in this case are less serious than that involved in the successful State appeal in Andela, which involved 138.5 grams of MDMA (500 tablets), with a purity of between 37 and 42 per cent).
42 In these circumstances, and not without some hesitation, I consider that the appropriate exercise of discretion would be to decline to interfere with the sentence imposed, even though I consider it to have been inadequate. I should add that, if the appeal had been heard promptly after the imposition of the sentence, I would have been inclined to allow it and impose a sentence of imprisonment. In saying that, I do not mean to be unduly critical of the State. The appeal was promptly brought, the appeal notice having been lodged within the 21 day period provided for (albeit at the end of that period). However, there is provision, under r 69 of the Criminal Procedure Rules 2005 (WA) (in appeals under Pt 2, Div 2 of the Criminal Appeals Act 2004 (WA)) and r 46 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (in the case of appeals to the Court of Appeal) for an appeal to be heard urgently. While it is true, as counsel for the appellant pointed out, that appeals in which prisoners are seeking their release from imprisonment are also urgent, it seems to me that the relatively few appeals in which the State seeks to overturn a non-custodial disposition should be made the subject of an application under either r 69 of the Criminal Procedure Rules or r 46 of the Court of Appeal Rules, as appropriate. If that is done, the kind of delay that has been experienced in this case is unlikely to recur.
Conclusion
43 I would dismiss the appeal.
44 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons, and would add only this observation. In Osenkowski (R v Osenkowski (1982) 30 SASR 212), the oft quoted passage from the reasons of King CJ reads as follows:
"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with
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- bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."
45 It is important that appellate courts do not merely pay lip-service to these observations. While denunciation, punishment, and deterrence are all important sentencing considerations, so, too, is the rehabilitation of offenders. Imprisonment which is unnecessary, may cost the community considerable amounts of money, may cause unnecessary hardship to innocent relatives of offenders, including children, and risks exposing an offender to bad influences and further entrenching offending behaviour, at a future cost to the community. It may deprive the community of the contribution able to be made by an offender who has been successfully rehabilitated.
46 A sentencing Judge may well discern, from the circumstances of the offence, or from references which are tendered, or from a pre-sentence report, or from some post-offence conduct of the offender, or some combination of these, better than usual prospects of rehabilitation. It is sometimes difficult to articulate precisely what leads a Judge to this view, as King CJ noted. While the role of an appellate court is to ensure consistency, and that role does not permit an appellate court itself to exercise mercy by the imposition of an unduly lenient sentence, it is appropriate that it allow some carefully monitored scope for sentencing Judges to exercise their discretion in that way.
47 In the present case, as Steytler P has noted, the sentence imposed was inadequate. However, it also appears that the learned sentencing Judge's instincts about the respondent's prospects of rehabilitation appear to be correct. In circumstances where there has been a significant delay in bringing the appeal on for hearing, and where, during that period, the respondent has successfully completed a significant proportion of the requirements of the intensive supervision order, it seems to me that the appropriate course for this Court is to note the inadequacy of the sentence, in the interests of preserving appropriate sentencing standards, but in the particular case to decline to intervene.
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48 BUSS JA: The facts and the ground of appeal are set out in the reasons of Steytler P.
49 The President has comprehensively reviewed the principles applicable to a State appeal against sentence. Unfortunately, I disagree with his Honour, with respect, in relation to the application of those principles to the facts of the present case. In my opinion, the sentences imposed by the learned sentencing Judge in respect of the two counts the subject of indictment 1249 of 2005 were manifestly inadequate. I would allow the appeal and would substitute for those sentences an immediate term of imprisonment in respect of each of the two counts.
50 I am, however, in dissent. If this Court had decided that the appeal should be allowed and terms of immediate imprisonment imposed in respect of the two counts the subject of indictment 1249 of 2005, the intensive supervision order imposed on the respondent for the offences the subject of the s 32 notice could not stand, and it would be necessary to re-sentence him for those offences. In the circumstances, it is unnecessary to state my opinion in relation to re-sentencing for the offences the subject of the s 32 notice.
51 The learned sentencing Judge imposed a sentence of 2 years' imprisonment for the offence of possession of methylamphetamine with intent to sell or supply, and a term of 16 months' imprisonment for the offence of possession of MDMA with intent to sell or supply. His Honour ordered that the two sentences be served concurrently, and he suspended the terms for a period of 2 years.
52 I would reduce the 2-year term to a term of 16 months, and the 16-month term to a term of 12 months, in recognition of the element of double jeopardy involved in a State appeal. Those terms correspond to 2 years (in respect of the term of 16 months) and 18 months (in respect of the term of 12 months) under the sentencing regime that applied before the commencement of the Sentencing Legislation Amendment and Repeal Act2003 (WA). I would order that the substituted terms be served concurrently, and that the respondent be eligible for parole. He would therefore be eligible to be released on parole upon serving 8 months' imprisonment. The reasons for my opinion that the appeal should be allowed, on the basis I have mentioned, are set out below.
53 The task of this Court is to determine whether there was an error made in sentencing the respondent, error being understood, in this context, as it was explained in House v The King (1936) 55 CLR 499 at 505:
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- "It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
- Those principles apply both to State appeals against sentence alleging inadequacy, and to appeals against sentence by offenders alleging excessiveness. See Dinsdale v The Queen (2000) 202 CLR 321, per Gleeson CJ and Hayne J at 324 - 325 [3] - [4]. An appellate court may intervene in a sentencing appeal if a material error of fact or law is apparent in the primary judge's reasons. Also, an appellate court may intervene if error may be inferred on the ground that the result is unreasonable or unjust; that is, the sentence imposed is manifestly excessive or manifestly inadequate. An appellate court may not, however, substitute its own opinion for that of the primary judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the primary judge. See Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672 [15].
54 In my opinion, the decision of the learned sentencing Judge, in the present case, to suspend the terms of imprisonment he imposed:
(a) failed adequately to reflect the seriousness of the offences;
(b) failed adequately to reflect the need for specific and general deterrence;
(c) failed adequately to punish the respondent; and
(d) placed an undue emphasis on matters personal to the respondent.
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- The suspension of the terms of imprisonment resulted in sentences which were so inadequate as to manifest error.
55 The maximum sentence prescribed by law for the crimes of which the respondent was convicted is 25 years' imprisonment, a fine of $100,000, or both. See s 34(1)(a) of the Misuse of Drugs Act1981 (WA). This indicates the seriousness of the offences which the respondent committed. The seriousness of those offences is also apparent upon an examination of the circumstances of their commission, which are summarised in the reasons of Steytler P.
56 The respondent was dealing in the drugs, the subject of the offences, to make a profit. He was operating, in effect, a commercial enterprise and should be considered a medium-scale distributor. The respondent was not dealing in the drugs to support a personal addiction.
57 In Bellissimo (1996) 84 A Crim R 465, Anderson J noted, at 471:
"Amphetamine trafficking is now recognised by the court to be in the higher range of seriousness in the scale of drug trafficking offences."
- His Honour added:
"The major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamines, cocaine and heroin are general and personal deterrence, the major objective being to stop people doing it. It is quite obvious to anyone concerned with criminal justice administration that trafficking in amphetamines is rife in this State and part of its tragedy is that very young people in the community are being exposed to it. This has caused wide-spread community concern. The sentences that have been imposed in the past do not seem to have worked as a deterrent."
In Ruvinovski (2000) 116 A Crim R 131, Anderson J referred, at 143 - 144 [36] - [38], to Bellissimo, and said, at 144 [38]:
" … in the four years or so that have passed since Bellissimo, I have had no reason to change what I said. Trafficking in amphetamine continues to be rife, continues to involve young, even very young, members of the community and continues to be destructive of families and to have tragic consequences for individuals. There remains a high level of community concern about it and rightly so."
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58 No doubt, the circumstances of the respondent, including his antecedents and prospects of rehabilitation, were very favourable. But matters personal to an offender will usually be a secondary consideration to questions of general deterrence in the sentencing process for offences of the kind committed by the respondent. See Marchesano (2000) 116 A Crim R 237 at 243 [41]. Also, see Kezkiropoulos v The Queen (2002) 136 A Crim R 522, at 525 [15], where Steytler J (as his Honour then was) said, in the context of a drug courier for reward:
"As has been said by Olsson AUJ, factors such as prior good character are not given as much weight, in cases of this kind, as they might be in other cases. That is because it is notorious that persons of apparent good character are often recruited for tasks of the kind undertaken by the applicant, for the very reason that such persons are not likely to come under suspicion of the authorities. Factors of personal and general deterrence are consequently the dominant considerations: Marker v The Queen (at [83] and [84])."
- Accordingly, save in exceptional cases, terms of immediate imprisonment are imposed for drug trafficking. See the authorities collected in The State of Western Australia v Andela [2006] WASCA 77 per McLure JA at [17].
59 In my opinion, the learned sentencing Judge's suspension of the terms of imprisonment imposed on the respondent resulted in sentences which were manifestly inadequate and require appellate intervention, even on a State appeal. I consider that the sentences were inconsistent with the standards of sentencing customarily observed for drug trafficking by a person who was dealing in drugs on a commercial basis, for profit, and not to support an addiction. The present case was not exceptional or extraordinary, and a suspension of the terms of imprisonment was not justified.
60 I agree, with respect, with the observations of Steytler P that if the State seeks to overturn a non-custodial sentence, it should make application to expedite the hearing of the appeal. But, in my opinion, in the circumstances of the present case, the delay between the imposition of sentence by the learned sentencing Judge and the hearing of this appeal, does not require that the appeal be dismissed. The seriousness of the offences committed by the respondent, and the manifest inadequacy of the sentences imposed by the learned sentencing Judge (in the context of the standards of sentencing customarily observed for drug trafficking by a
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- person who was dealing in drugs on a commercial basis, for profit, and not to support an addiction), militate against any exercise by this Court of its discretion to decline to interfere with those sentences in consequence of the delay.
61 I would allow the appeal, set aside the sentences imposed on the respondent in respect of the two counts the subject of indictment 1249 of 2005, and substitute the sentences I have mentioned. It is unnecessary, in the circumstances, as I have said, to state my view in relation to re-sentencing for the offences the subject of the s 32 notice.
29
38
5