Court of Appeal (WA)|2008-10-31|Before: Wheeler JA

JOHNSTON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 221 (31 October 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : JOHNSTON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 221

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Manufacture of methylamphetamine - Confiscation of property - Whether property lawfully acquired - Whether confiscation treated as mitigatory

2 McLURE JA: This is an application for leave to appeal against sentence. The appellant was convicted on his own plea of guilty of one count of manufacturing methylamphetamine contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA).

3 On 21 December 2007 the appellant was sentenced by Yeats DCJ to a term of immediate imprisonment of 2 years and 5 months. He contends the sentence is manifestly excessive because the sentencing judge erred in her consideration of property confiscated from the appellant by the State under the Criminal Property Confiscation Act 2000 (WA).

4 An appellant must demonstrate that the sentencing judge made an express or implied material error of law or fact before this court can interfere with the exercise of a sentencing judge's discretion. Moreover, this court can only allow an appeal if, in its opinion, a different sentence should have been imposed: s 31(4) Criminal Appeals Act 2004 (WA).

5 The property confiscated was the sum of $98,150, being the appellant's share of the net proceeds from the sale of his home which he owned with his former partner. The appellant submitted to the sentencing judge that the confiscation should be taken into account in mitigation of sentence because the home, the source of the confiscated property, was lawfully acquired.

6 The sentencing judge applied the law as stated by Wheeler JA in Macri v The State of Western Australia [2006] WASCA 63 [16]. That is to the effect that before a loss arising from confiscation can be taken into account by way of mitigation there must be material which leads a sentencing judge positively to form the conclusion that all of the property to be lost, or some very substantial portion of it, has been lawfully acquired.

7 As the sentencing judge noted, the appellant is a qualified grano worker and boom pump operator and had worked in a variety of occupations. The appellant adduced evidence in an attempt to prove that the home was lawfully acquired. However, there were significant gaps in the records of his income. The appellant had not filed a tax return since 2000. The sentencing judge estimated that he earned between $422 and $600 net per week for the fiscal years 2004 and 2005. Whilst characterising the appellant's income as very low, she accepted he had the capacity to pay the loan obtained for the purchase of the home. However, the sentencing judge continued:

It seems to me that it is almost impossible for me on the papers despite the effort that has been gone to for me to positively find that the offender was not supplementing his income from illicit sources. That is primarily because there is other evidence in this case that shows ... the offender's involvement with persons involved in the illicit distribution of drugs. (ts 70)

8 She found that the manufacture of the methylamphetamine the subject of the offence in question was not entirely for the appellant's own use and that telephone intercepts indicated he was involved in the sale or supply of some other drugs.

9 The appellant particularises the errors complained of as follows:

Having decided correctly, that the Appellant did have capacity from his employment income to pay off the mortgage Her Honour erred in then finding that she could not be satisfied that the Appellant was not supplementing his income from illicit sources when there was no evidence of that occurring for anything other than a brief period AND THEN not addressing the question of whether the premises were significantly acquired by lawful means.
Failing to take into account the evidence from ... the equitable co-owner of the premises and former partner of the Appellant, that she had made very significant contributions from her own sources to mortgage payments and rates and taxes.
Imposing upon the Appellant a standard of 'positive satisfaction' rather than the balance of probabilities as to whether or not the premises were acquired or substantially acquired by lawful means.

10 These matters can be addressed together. The implication in particular 3 is that the requirement of positive satisfaction is inconsistent with the burden of proof on the balance of probabilities. There is no inconsistency. The requirement of positive satisfaction is simply a reflection of the fact that the appellant bears the onus of proving on the balance of probabilities that the home was acquired or substantially acquired by lawful means. It was open to her Honour to come to the view that she was not positively satisfied that the appellant's contributions to the purchase of the home (reflected in his share of the net proceeds of sale) was wholly or substantially funded from his lawfully acquired income, having regard to:

(a) the absence of reliable and substantially complete records of the appellant's lawfully acquired income; and

(b) the findings that the appellant was involved in the distribution of the drugs he manufactured and other drugs.

11 The fact that the co-owner also contributed to the purchase of the home is no doubt reflected in her share of the net sale proceeds which have not been confiscated. The co-owner's contribution is not relevant to whether the appellant's financial contributions to the purchase of the home were from his lawfully acquired income. The appellant has not demonstrated that the sentencing judge erred.

12 Moreover, even if the appellant was able to demonstrate that the sentencing judge erred, the error would not be material because it had no effect on the sentence actually imposed. That is because, oddly one might think, the sentencing judge in substance and effect treated the confiscation of the appellant's property as mitigatory and reduced the sentence. That emerges from the following. The sentencing judge accepted that the confiscation of the money would have a substantial impact on the appellant because of his otherwise very limited financial resources (ts 70). She said later:

I am not satisfied that I would be allowed to - consistently with section 8(3) of the Sentencing Act, that I would be able to allow any substantial credit in mitigation. What I propose to do, rather than mitigate in another way is to reduce my starting point ... taking account of the fact that [the appellant] will stand to lose this amount of property which will have such an impact on him personally. (ts 72)

I had intended to start at five years' sentence of imprisonment, but because of the loss of $98,150 forfeited and this being your first time that you had been involved in the manufacture that has come to the notice of the court, the fact that you are 39 and have never been to prison, I'm going to have my starting point be four years' imprisonment. (ts 74)

14 The 4-year starting point was reduced having regard to other mitigatory factors and the transitional provisions. The approach taken by the sentencing judge cannot alter the fact that she treated the confiscation as mitigatory and reduced the sentence which would otherwise have been imposed. In this case there was no material error and even if there was, I am of the opinion that no different sentence should be imposed.

15 There is no merit in the proposed appeal. Accordingly, I would refuse leave to appeal.

Property Confiscation Act 2000

JOHNSTON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 221 (31 October 2008)

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Judgment (26 paragraphs)

JOHNSTON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 221 (31 October 2008)

Legislation Cited (3)