Criminal law on procedure - Sentencing - Conviction on plea of guilty to six counts of manufacture of prohibited drug - Four counts of manufacturing P2P and two counts of manufacturing amphetamine - Concurrent sentences imposed of imprisonment for 7 years for each offence - No distinction made between the two drugs or distinct transaction - Application of totality principle

Legislation:

Misuse of Drugs Act 1981, s 6(1)(b), s 34(1)(a)

Result:

Leave to appeal granted
Appeal allowed to extent that sentences are varied in accordance with reasons
of Malcolm CJ
Effective sentence remains unchanged

Category: B

Representation:

Counsel:

Applicant: Mr N J Mullany
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Unrepresented Criminal Appellants' Scheme
Respondent: State Director of Public Prosecutions

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

Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465
Cabassi v The Queen [2000] WASCA 305
Cameron v The Queen [2002] 76 ALJR 382
Greenberg (1993) 68 A Crim R 392
Jarvis v The Queen (1998) 20 WAR 201
Lim v The Queen [1999] WASCA 296
Little v The Queen [2001] WASCA 87
Miles v The Queen (1997) 17 WAR 518
Pearce v The Queen (1998) 194 CLR 610
R v Black [2002] WASCA 26
R v Pallister [2002] WASCA 68
Radebe v The Queen [2001] WASCA 254
Trescuri v The Queen [1999] WASCA 172
Vaitos v The Queen (1981) 4 A Crim R 238
Veen v The Queen (No 2) (1988) 164 CLR 465
Worth v The Queen [2001] WASCA 303

Case(s) also cited:

Nil

MALCOLM CJ: This is an application for leave to appeal against sentence. On 29 October 2001 the applicant was convicted on his plea of guilty to an indictment containing six counts of manufacturing prohibited drugs between 24 September 1999 and 13 November 1999. Counts 1 to 3 and 6 involved the manufacture of 1‑phenyl‑2‑nitropropene and counts 4 and 5 involved the manufacture of amphetamine.
Approximately seven or eight weeks prior to 12 November 1999, the applicant had taken up residence at a unit in Maylands. At approximately 11.20 am on the morning of Friday 12 November 1999 police officers attended at the premises where the applicant was found in company with a Mr Paramor. The two men were seen by two uniformed police officers, namely, Officers Taylor and Greaney, at the Maylands Train Station on the morning in question. The applicant was sitting on what appeared to be a large plastic chemical container. The suspicions of the two officers were aroused and they saw the applicant put the container, later found to be a 25 litre container, in the boot of a taxi.…

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 Abela v The Queen

Details

AGLC: Abela v The Queen [2002] WASCA 279
Case: [2002] WASCA 279
Decision Date: 10 OCTOBER 2002

CaseChat Overview and Summary

The case of Abela v The Queen involves the appellant, Abela, who was convicted on a plea of guilty to six counts of manufacturing a prohibited drug. Four counts related to the manufacture of P2P, and two counts related to the manufacture of amphetamine. The appellant was sentenced to concurrent terms of imprisonment for seven years for each offence. The central issue before the court was whether the sentencing approach taken by the trial judge was appropriate under the totality principle. The appellant argued that the sentences were disproportionate, as no distinction was made between the two types of drugs or distinct transactions. The court was required to determine whether the sentences were excessive and whether the trial judge correctly applied the totality principle.

The court considered the arguments put forward by the appellant and examined the principles governing sentencing in cases involving multiple offences. The court noted that the totality principle allows for the imposition of a single sentence that reflects the overall criminality of the offender's conduct. However, the court also recognised the need to ensure that the sentence is proportionate to the gravity of the individual offences and the offender's culpability. In this case, the court found that the trial judge had not sufficiently distinguished between the manufacture of P2P and amphetamine in determining the appropriate sentence. The court concluded that the sentences imposed were excessive and did not adequately reflect the differences in the gravity of the offences. The appeal was allowed, and the sentences were quashed.

The court ordered that the matter be remitted to the sentencing court for reconsideration of the appropriate sentences, with specific directions to distinguish between the manufacture of P2P and amphetamine and to ensure that the sentences imposed are proportionate to the gravity of the individual offences. The court emphasised the importance of applying the totality principle in a manner that reflects the overall criminality of the offender's conduct while also ensuring that each individual offence is appropriately punished. The final orders of the court required the sentencing court to re-sentence the appellant in accordance with the principles outlined in the judgment.

Orders