Bechara v The Queen - [2001] WASCA 330

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BECHARA -v- THE QUEEN [2001] WASCA 330

CORAM: MALCOLM CJ
WALLWORK J
ANDERSON J

HEARD: 17 SEPTEMBER 2001

DELIVERED : 31 OCTOBER 2001

FILE NO/S: CCA 50 of 2001

BETWEEN: ANTOINE BECHARA
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Heroin - Supplying - Single count - Two packages seized - Applicant's fingerprints on smaller package only - Insufficient proof that applicant supplied larger package - Trial Judge sentencing on basis that verdict applied to both packages - Sentence of 13 years expressly based on total quantity seized - Whether sentence should be reduced to reflect supply of lesser amount only - Sentence reduced to 10 years

Legislation:

Misuse of Drugs Act 1981 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Applicant: Mr M T Trowell QC & Mr S M Davies
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Mangan Ey & Associates
Respondent: State Director of Public Prosecutions

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

Quach v The Queen [1999] WASCA 210
R v Cottrell (1989) 42 A Crim R 31

Case(s) also cited:

"S" v The Queen [2000] WASCA 34
Bresnehan v The Queen (1992) 1 Tas R 234
Forbes v The Queen, unreported; CCA SCt of WA; Library No 950226; 20 February 1995
Langridge v The Queen (1996) 17 WAR 346
Lowndes v The Queen (1999) 195 CLR 665
R v Kingswell (1985) 159 CLR 264
R v Marchesano & Marchesano (1992) 61 A Crim R 372
R v Martin [1981] 2 NSWLR 640
R v Ruich [2000] WASCA 84
R v Stehbens (1976) 14 SASR 240

MALCOLM CJ: In my opinion this application for leave to appeal against sentence should be granted, the appeal allowed and the sentence of imprisonment for 13 years set aside and substituted by a sentence of imprisonment for 10 years. I have reached that conclusion for the reasons to be published by Anderson J with which I agree.
WALLWORK J: I agree with the reasons for judgment of Anderson J and to the conclusions which have been reached by his Honour. There is nothing I wish to add.
ANDERSON J: The applicant was presented for trial in the District Court in March of this year on an indictment containing two counts charging offences under the Misuse of Drugs Act 1981 (WA), they being that:
"(1)On 7 July 1998 at Carlisle [he] sold or supplied a quantity of a prohibited drug, namely heroin, to another.
(2)AND FURTHER that on the same date and at the same place [he] sold or supplied a quantity of a prohibited drug, namely cocaine, to another."
He was convicted after trial of the first count and acquitted of the second. He was sentenced to 13 years' imprisonment with eligibility for parole.
The Crown case was that the applicant had supplied the heroin and the cocaine to two men, one Henning and one Mancini,…

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 Bechara v The Queen

Details

AGLC: Bechara v The Queen [2001] WASCA 330
Case: [2001] WASCA 330
Decision Date: 31 OCTOBER 2001

CaseChat Overview and Summary

In the case of Bechara v The Queen, the applicant appealed against his sentence following a conviction for supplying heroin. The matter was heard in the High Court of Australia. The primary issue before the court was whether the applicant's sentence should be reduced to reflect that he had only supplied the heroin associated with the smaller package, on which his fingerprints were found, rather than both packages seized. The trial judge had sentenced the applicant based on the total quantity of heroin seized, which amounted to 13 years imprisonment.

The legal issue was whether the trial judge had erred in sentencing the applicant based on the total quantity of heroin seized, without sufficient proof that the applicant had supplied both packages. The applicant argued that the sentence should reflect the lesser quantity of heroin for which he was proven to be responsible. The court considered whether the trial judge had applied the correct legal principles in imposing the sentence and whether the sentence was excessive given the applicant's proven involvement in the supply of heroin.

The court found that the trial judge had erred in sentencing the applicant based on the total quantity of heroin seized, without sufficient proof that the applicant had supplied both packages. The court held that the sentence should reflect the lesser quantity of heroin for which the applicant was proven to be responsible. The court noted that the trial judge had expressly based the sentence on the total quantity seized, and that there was insufficient proof that the applicant had supplied the larger package. The court reduced the applicant's sentence to 10 years, reflecting the quantity of heroin for which he was proven to be responsible.

The High Court of Australia ordered that the sentence of 13 years imprisonment be reduced to 10 years, reflecting the quantity of heroin for which the applicant was proven to be responsible. The court held that the trial judge had erred in sentencing the applicant based on the total quantity of heroin seized, without sufficient proof that the applicant had supplied both packages. The court emphasised the importance of ensuring that sentences reflect the proven involvement of the offender in the offence, and that the sentence is proportionate to the offence committed.

Orders