Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal - Criminal law - Application for leave to appeal against sentence - Manifest excess or inadequacy of sentence; appropriate particulars

Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)(b)(iv)

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Tulloh v The Queen [2004] WASCA 169

1 WHEELER JA: This is an application for leave to appeal against sentence. It was called on for hearing because of a difficulty with the grounds. It seemed to me, having considered the sentencing transcript and in the light of the sentence actually imposed, that it was an appropriate case for the grant of leave to appeal.

2 However, the ground was formulated in the following way:

"1. In all of the circumstances the sentence was so excessive as to demonstrate error.

Particulars

a. The Applicant was convicted after trial by Judge and jury of being in possession of 74.85 grams of methylamphetamine with intent to sell or supply. Of this, 54.04 grams was said to be of approximately 80% purity. Of the remainder, 18.2 grams was of 1% purity and 2.61 grams of 14% purity.

b. Although the Applicant had prior convictions, including convictions relating to simple possession of cannabis, none of the prior convictions were of any offences as serious as this one.

c. The Applicant was otherwise a hard-working member of the community supporting his family, including a wife and five children.

d. The Learned Sentencing Judge placed to [sic too] great an emphasis on general and personal deterrence and insufficient emphasis on personal factors.

e. The starting point nominated by the Learned Sentencing Judge of 12 years imprisonment before reduction for change in legislation, was altogether too high in all of the circumstances."

3 Of these particulars, it can be seen that the first three are statements of fact, setting out some of the facts relevant to sentencing. The fourth alleges a particular error, in that it alleges that the sentencing Judge placed too great an emphasis on general and personal deterrence, and insufficient emphasis on personal factors. If a disproportionate emphasis of that kind had appeared from the sentencing remarks - which in my view it plainly did not - the particular would not be one directed to demonstrating that the sentence in itself was so excessive as to demonstrate error, but one directed to demonstrating an identifiable error in reasoning. The final particular, leaving aside the misplaced emphasis on the "starting point" rather than upon the sentence actually imposed, is, in effect, a restatement of the ground.

4 This ground of appeal, with its particulars, therefore appeared to me to be one which appropriately raised the issue of the way in which a ground relating to manifest excess or inadequacy in sentence should be particularised. There is an obvious difficulty for appellants, in relation to which it may be helpful to make some broad observations. The difficulty arises in this way.

5 The Supreme Court (Court of Appeal) Rules 2005 (WA), provide by r 32(4)(b)(iv) that grounds of appeal must not merely allege that a sentence is excessive or inadequate. It follows that such a ground must be particularised, or must be stated in some different way. However, as Gleeson CJ and Hayne J observed in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6]:

"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive."

6 That is, the rule requires appellants to particularise something which will generally not be susceptible of detailed explanation or argument, but, rather, will either appear or not on the face of the sentence.

7 It seems to me that there are a number of ways in which useful assistance can be afforded to the Court of Appeal, and the ground particularised in respect of allegations of this kind, however. For example, as Gleeson CJ and Hayne J noted, the respect in which the sentence is alleged to be inadequate or excessive may be stated. For example, it may be asserted that the wrong type of sentence entirely has been imposed (for example, by imposing a custodial rather than a non-custodial). It may be that, although it is conceded that the sentence falls within the usual range of sentences for the relevant offence, the personal circumstances of the offender are such as to render the sentence manifestly excessive in relation to him or her. It may be that it is asserted that the sentence falls outside the range of sentences usually imposed and, where that is the case, it will usually be possible to particularise the allegation by referring to, or listing, those cases which the appellant asserts demonstrate what the usual range is. Where there is no established range, it may be asserted simply that, seen against the statutory maximum able to be imposed, the sentence is excessive. Where sentences are imposed in respect of more than one offence, it may be conceded that the individual terms are not excessive, but it may be asserted that they are, in their totality, either disproportionate to the criminality of the offending overall, or that their cumulative effect is such as to be "crushing".

8 No doubt there are other sorts of particularisations which will be appropriate in particular cases, but it can be seen from these observations that an allegation of manifest excess is susceptible of some further elaboration, although not necessarily elaboration of a detailed kind.

9 In the present case, after raising these issues with Senior Counsel who appeared for the applicant, he advised that he sought to rely upon an examination of sentences for offences of this kind recently undertaken by McLure J in a case which he nominated (Tulloh v The Queen [2004] WASCA 169). I therefore granted leave to appeal on that basis; that is, on condition that the applicant amend the proposed ground of appeal so as to allege that the sentence was outside the range available in the proper exercise of the sentencing discretion, having regard to the principles enunciated in the case referred to. In case that required some amendment to the appellant's case, as it appeared that it might, I gave leave to amend the submissions accordingly, within 14 days of the date on which I heard this matter.