Barnes v The Queen

[2002] WASCA 98

BARNES -v- THE QUEEN [2002] WASCA 98

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 98
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:110/2001	Heard:	9 APRIL 2002
Coram:	WALLWORK J MURRAY J McKECHNIE J	Delivered:	9/04/02
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	JAMES BARNES THE QUEEN
Catchwords:	Sentence Possession of amphetamines and ecstasy with intent Overall sentence of 5 years not excessive
Legislation:	Misuse of Drugs Act WA 1981 (WA)
Case References:	Lowndes v The Queen (1999) 195 CLR 665 Aconi v The Queen [2001] WASCA 211 Little v The Queen [2001] WASCA 87 Miles v The Queen (1997) 17 WAR 518 R v Bellissimo (1996) 84 A Crim R 465 R v Darwell 91997) 94A Crim R 35 Radebe v The Queen [2001] WASC 254

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BARNES -v- THE QUEEN [2002] WASCA 98 CORAM : WALLWORK J

MURRAY J
McKECHNIE J

HEARD : 9 APRIL 2002 DELIVERED : 9 APRIL 2002 FILE NO/S : CCA 110 of 2001 BETWEEN : JAMES BARNES

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Sentence - Possession of amphetamines and ecstasy with intent - Overall sentence of 5 years not excessive

Legislation:

Misuse of Drugs Act WA 1981 (WA)

Result:

Appeal dismissed

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Mr L M Levy
Respondent : Mr R E Cock QC

Solicitors:

Applicant : Laurie Levy & Associates
Respondent : State Director of Public Prosecutions

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

Lowndes v The Queen (1999) 195 CLR 665

Case(s) also cited:

Aconi v The Queen [2001] WASCA 211
Little v The Queen [2001] WASCA 87
Miles v The Queen (1997) 17 WAR 518
R v Bellissimo (1996) 84 A Crim R 465
R v Darwell 91997) 94A Crim R 35
Radebe v The Queen [2001] WASC 254

(Page 3)

1 WALLWORK J: I will ask McKechnie J to give his reasons.

2 McKECHNIE J: The applicant was convicted following a plea of guilty of three offences: one count of possession of methylamphetamine with intent to sell or supply, for which he was sentenced to 3 years' imprisonment; one count of possession of methylamphetamine with intent to sell or supply, for which he was sentenced to 5 years' imprisonment; and one count of possession of ecstasy with intent to sell or supply, for which he was also sentenced to a term of 5 years' imprisonment. Each sentence was made concurrent, one with the other, and he was made eligible for parole in each case.

3 The learned Judge accepted that the plea of guilty was made at the earliest available opportunity. Although in her reasons she did not specifically identify the extent to which she discounted or mitigated the sentence, it is clear that she must have done so. The appellant does not point to any error in the Judge's sentencing remarks but contends that the result is manifestly excessive and therefore unreasonable.

4 The facts were that on 29 December 2000 police executed a search warrant at the appellant's house and located inside a motor vehicle various items, including a bag. The bag was searched and it contained 2.51 grams of amphetamines in two clip-seal bags, and 31 ecstasy tablets which were also in clip-seal bags. Also in the bag in the car was a set of electronic scales, $7,020 in cash, and other assorted plastic bags.

5 Inside the spare bedroom of the house detectives located, inside a plastic bag, a further quantity of methylamphetamine weighing 13.7 grams. Also located in the house was a Tanita scale box matching the scales that were located in the bag in the car. The appellant was a user of amphetamines and had a past conviction for the supply of amphetamines.

6 To make good the ground of appeal, that the sentence was manifestly excessive, counsel has pointed to what he says are sentences commonly imposed for offences of this nature and the fact that the Judge erred in giving insufficient weight to the plea of guilty.

7 The applicant in argument points to the small amount of drugs and to their purity. This is certainly one circumstance but not decisive. The amount of drugs held by a dealer at any time is partly to do with the time at which the dealer may have been supplied and when in the cycle the police raid occurs. Of more importance in the circumstances of this case

(Page 4)

is the other paraphernalia consistent with drug dealing which was found in the applicant's possession.

8 As the High Court has recently reminded Courts of Criminal Appeal in the case of Lowndes v The Queen (1999) 195 CLR 665, it is not our task, as it were, to second-guess the Judge but to decide whether there is error. Having regard to the circumstances which exist in this case, I am unpersuaded that the sentence is manifestly excessive. Her Honour correctly categorised the case in a way in which, as I have said, no issue has been taken and to simply assert that the sentence is excessive is hard to make good.

9 In this case I understand entirely why her Honour concluded that an overall sentence of 5 years' imprisonment was appropriate for a user-dealer who was a well-organised recidivist user-dealer. Consequently, I would dismiss the appeal.

10 WALLWORK J: I agree with McKechnie J. There is nothing I wish to add.

11 MURRAY J: I agree also. I would simply add for my part that it seems to me that the only mitigatory circumstance upon which the applicant could rely was the entry of the plea of guilty early, but I think not necessarily at the first available opportunity, and the circumstances surrounding the plea reduce its mitigatory power because there was, it seems to me, a very considerable element of recognition of the strength of the case as the motivating circumstance for the plea. Beyond that, I simply express my agreement with McKechnie J.