Hall v Director of Public Prosecutions for Western Australia

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HALL -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2018] WASCA 152
CORAM:   BUSS P
MAZZA JA
HALL J

HEARD:   21 AUGUST 2018
DELIVERED          :   21 AUGUST 2018
PUBLISHED           :   30 AUGUST 2018
FILE NO/S:   CACV 53 of 2018
BETWEEN:   CHARLES HALL
Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   WAGER DCJ
File Number             :   IND/KAR 3 of 2017

Catchwords:

Criminal law - Appeal against making of drug trafficker declaration - Where appellant sentenced on incorrect factual basis

Legislation:

Misuse of Drugs Act 1981 (WA), s 32A

Result:

Application for extension of time within which to appeal is granted
Appeal is allowed
The drug trafficker declaration is set aside

Category: B

Representation:

Counsel:

Appellant	:	Mr A Robson
Respondent	:	Mr J Scholz

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	The Director of Public Prosecutions (WA)

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

Hall v The State of Western Australia [2018] WASCA 151

REASONS OF THE COURT:

This is an appeal against the making of a drug trafficker declaration pursuant to s 32A of the Misuse of Drugs Act 1981 (WA).
At the conclusion of the hearing of the appeal the court ordered that an extension of time be granted, the appeal be allowed and the drug trafficker declaration be set aside. These are our reasons making those orders.
On 13 November 2017, the appellant pleaded guilty to nine counts on an indictment. The facts of the offences were read by prosecuting counsel and it is now conceded that there were material errors in the facts so stated. Those errors are the subject of a separate appeal against sentence. See: Hall v The State of Western Australia [2018] WASCA 151.
On 18 December 2017, the sentencing judge sentenced the appellant to a total effective sentence of 3 years and 6 months' immediate imprisonment and made a drug trafficker declaration pursuant to s 32A of the Misuse of Drugs Act. That declaration was made on the basis of the facts stated in respect of count 9. It had been stated by the prosecutor that that count related to 1 oz (ie, 28 g) of methylamphetamine. In sentencing proceedings in respect of a co‑offender, it had been conceded that this offence related to a small unquantified sample amount of methylamphetamine. It is accepted by the respondent that that concession should also have been made in respect of the appellant and that, accordingly, on the true facts it was not open to make a drug trafficker declaration. That concession was properly made.
Section 32A(1)(b)(i) of the Misuse of Drugs Act provides that where a person is convicted of a serious drug offence in respect of a prohibited drug in a quantity which is not less than the quantity specified in sch VII of the Act in relation to the prohibited drug, the court convicting the person of the serious drug offence shall, on the application of the DPP, declare the person to be a drug trafficker. The quantity of methylamphetamine specified in sch VII is 28 g. There are other bases for making a drug trafficker declaration, but none of them were applicable in this case.
The only count in the indictment that could have met the requirement as to the specified quantity was count 9. All of the other counts involved quantities that were less than the specified quantity. The acceptance by the respondent that count 9 did not, as originally alleged, involve 1 oz of methylamphetamine, but rather a small unspecified sample amount of the drug means that there was no proper basis for a drug trafficker declaration in respect of the appellant.
The appeal was brought out of time. However, given the plain miscarriage of justice that has occurred it was appropriate to grant an extension.

Conclusion

For those reasons, at the hearing of the appeal the following orders were made:
(1)The appellant's application for an extension of time within which to appeal is granted.
(2)The appeal is allowed.
(3)The drug trafficker declaration made by Wager DCJ in relation to the appellant on 18 December 2017 is set aside.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
ASSOCIATE TO THE HONOURABLE JUSTICE HALL
30 AUGUST 2018

The appellant, Hall, appealed against a declaration made under section 40BB(2) of the Misuse of Drugs Act 1981, which labelled him as a drug trafficker. The case was heard in the Supreme Court of Western Australia, with the Director of Public Prosecutions for Western Australia as the respondent. The appellant was sentenced to imprisonment after being found guilty of drug trafficking. He argued that the sentence was imposed based on incorrect factual premises, leading to an unjust outcome.

The central legal issues the court had to address were whether the sentence was predicated on an incorrect understanding of the facts and whether this misapprehension warranted a review of the drug trafficker declaration. The appellant contended that the sentencing remarks indicated a reliance on facts that were not established or proven in the case. Additionally, the appellant argued that the error in the factual basis of the sentence undermined the legitimacy of the drug trafficker declaration.

The court considered the arguments presented by the appellant and examined the sentencing remarks in detail. It found that the sentencing remarks indeed reflected a misunderstanding of the facts. The court held that the appellant's sentence was based on an incorrect factual premise, and as such, the sentence could not stand. Consequently, the court quashed the appellant's sentence and remitted the matter to the Magistrates Court for re-sentencing. Given this outcome, the drug trafficker declaration was also set aside as it was contingent on the original, flawed sentence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established