ATHOLWOOD -v- THE QUEEN [2000] WASCA 76
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 76 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:88/1999 | 2 DECEMBER 1999 | |
| Coram: | MALCOLM CJ WALLWORK J ANDERSON J | 28/03/00 | |
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Application refused | ||
| PDF Version |
| Parties: | DAVID JAMES ATHOLWOOD THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against conviction for three offences of possession with intent to sell or supply Intention to possess an element of the offence Prima facie proof of custody or control with guilty knowledge sufficient Direction to jury adequate Criminal law and procedure Admissibility of evidence of possession of other quantities of similar drugs in respect of charge of possession with intent to sell or supply Admissible to show accused had access to drugs Admissible together with other paraphernalia to show evidence of dealing and to negate innocent explanation Probative value exceeds any potential prejudice Direction to jury regarding use of propensity evidence adequate Sentencing Application for leave to appeal against sentence Application over three months out of time Six year sentence ordered to be served cumulatively on earlier sentence of two years and three months for cannabis cultivation with intent to sell or supply Earlier sentence reduced to 12 months on appeal after second sentence Subsequent sentence reduction on appeal not an exceptional circumstance in relation to second sentence Total of seven years' imprisonment not disproportionate to totality of offending |
Legislation: | Misuse of Drugs Act 1986 s 3(1), s 6(1)(a) s 11 Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 5 |
Case References: | Atholwood v R [1999] WASCA 256 Crawford v Evans, unreported; CCA SCt of WA; Library No 950320; 22 June 1995 Davis v The Queen (1990) 5 WAR 269 Director of Public Prosecutions v Brooks [1974] AC 862 Eades (1991) 57 A Crim R 151 Evans v R [1999] WASCA 252 Gavin v The Queen (1992) 6 WAR 195 Harriman v The Queen (1989) 167 CLR 590 Jarvis v The Queen (1993) 20 WAR 201 Kauhanen v R [1999] WASCA 14 Markovina v R (1996) 16 WAR 354 McLean v The Queen [1999] WASCA 209 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen [1998] HCA 57; (1998) 72 ALJR 1416 R v Cumming (1995) 86 A Crim R 156 R v Sultana (1994) 74 A Crim R 27 Williams v The Queen (1978) 140 CLR 591 Lai v The Queen [1990] WAR 151 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ATHOLWOOD -v- THE QUEEN [2000] WASCA 76 CORAM : MALCOLM CJ
- WALLWORK J
ANDERSON J
- Appellant
AND
THE QUEEN
Respondent
- Applicant
AND
THE QUEEN
- Respondent
Catchwords:
Criminal law and procedure - Appeal against…
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- Atholwood v The Queen [2000] WASCA 76
- Case
- [2000] WASCA 76
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CaseChat Overview and Summary
Atholwood appealed against his conviction for three counts of possession with intent to sell or supply, and the application for leave to appeal against his sentence. The appeal against conviction related to the sufficiency of the evidence to prove possession with intent and the admissibility of evidence of possession of other quantities of drugs and paraphernalia. The application for leave to appeal against sentence related to the length of the sentence imposed and the cumulative nature of the sentence.
The legal issues were whether the evidence was sufficient to prove possession with intent, and whether evidence of other drugs and paraphernalia was properly admitted and whether the sentence was excessive. The court found that the evidence was sufficient to prove possession with intent, and that the evidence of other drugs and paraphernalia was properly admitted. The court also found that the sentence was not disproportionate to the totality of the offending.
The court held that the prosecution had proved possession with intent by proving that Atholwood had custody or control of the drugs, and that he had knowledge of the drugs. The court found that the direction to the jury regarding the elements of the offence was adequate. The court also held that evidence of other drugs and paraphernalia was properly admitted to show that Atholwood had access to drugs and to negate any innocent explanation. The court found that the probative value of the evidence exceeded any potential prejudice, and that the direction to the jury regarding the use of propensity evidence was adequate.
The court held that the application for leave to appeal against sentence was out of time. The court also held that the sentence was not disproportionate to the totality of the offending, and that the reduction of the earlier sentence on appeal did not constitute an exceptional circumstance in relation to the second sentence. The total sentence of seven years' imprisonment was not disproportionate to the totality of the offending. The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused.
The legal issues were whether the evidence was sufficient to prove possession with intent, and whether evidence of other drugs and paraphernalia was properly admitted and whether the sentence was excessive. The court found that the evidence was sufficient to prove possession with intent, and that the evidence of other drugs and paraphernalia was properly admitted. The court also found that the sentence was not disproportionate to the totality of the offending.
The court held that the prosecution had proved possession with intent by proving that Atholwood had custody or control of the drugs, and that he had knowledge of the drugs. The court found that the direction to the jury regarding the elements of the offence was adequate. The court also held that evidence of other drugs and paraphernalia was properly admitted to show that Atholwood had access to drugs and to negate any innocent explanation. The court found that the probative value of the evidence exceeded any potential prejudice, and that the direction to the jury regarding the use of propensity evidence was adequate.
The court held that the application for leave to appeal against sentence was out of time. The court also held that the sentence was not disproportionate to the totality of the offending, and that the reduction of the earlier sentence on appeal did not constitute an exceptional circumstance in relation to the second sentence. The total sentence of seven years' imprisonment was not disproportionate to the totality of the offending. The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused.
Orders
Orders of the court
Appeal dismissed
Application refused
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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