BLAY -v- THE QUEEN [2006] WASCA 248
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 248 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:67/2005 | 9 JUNE 2006 | |
| Coram: | WHEELER JA McLURE JA BUSS JA | 23/11/06 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Appeals allowed Appellant re-sentenced | ||
| A | |||
| PDF Version |
| Parties: | MICHAEL JOHN KENNETH BLAY THE QUEEN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeals against sentences imposed for offences on Commonwealth and State indictments Commonwealth indictment contained charges for importing a trafficable quantity of ecstasy under Customs Act 1901 (Cth), and possessing ecstasy with intent to sell or supply under Misuse of Drugs Act 1981 (WA) Elements of offences on Commonwealth indictment potentially overlapped Sentencing Judge must not punish appellant twice in relation to his intent to traffic, or sell or supply, the ecstasy Failure of sentencing Judge to refer to transitional provisions under the Sentencing Legislation Amendment and Repeal Act 2003 (WA) Whether sentences imposed in relation to Commonwealth indictment were manifestly excessive Whether sentencing Judge failed properly to apply the totality principle in relation to sentences imposed for offences on Commonwealth and State indictments |
Legislation: | Criminal Code 1995 (Cth), s 11.2(1) Customs Act 1901 (Cth), s 233B(1)(b), s 235(2)(d), Sch VI Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a) Sentencing Legislation Amendment and Repeal Act 2003 (WA) |
Case References: | Barany (2000) 114 A Crim R 426 Chan (1989) 38 A Crim R 337 Damiani v The State of Western Australia [2006] WASCA 47 De Bonde v The Queen [2002] WASCA 251 Dinsdale v The Queen (2000) 202 CLR 321 F v The Queen [2005] WASCA 135 Harris v The Queen [2004] WASCA 292 House v The King (1936) 55 CLR 499 Johnson v The Queen (2004) 78 ALJR 616 Kaye v The Queen [2004] WASCA 227 Lowndes v The Queen (1999) 195 CLR 665 Markarian v The Queen (2005) 79 ALJR 1048 Mustafa (2002) 133 A Crim R 133 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Abboud [2005] NSWCCA 251 R v Faithfull (2004) 142 A Crim R 554 R v Olbrich (1999) 199 CLR 270 R v Slatinec [1999] NSWCCA 2 Vlek v The Queen, unreported; CCA SCt of WA; Library No. 990153; 29 March 1999 Wong v The Queen (2001) 207 CLR 584 Woods v The Queen (1994) 14 WAR 341 Worthington v Western Australia (2005) 152 A Crim R 585 Mill v The Queen (1988) 166 CLR 59 Clinch (1994) 72 A Crim R 301 Dicks v Asherton (1974) 76 LSJS 150 Tulloh v The Queen (2004) 147 A Crim R 107 Jarvis v The Queen (1993) 20 WAR 201 Vaitos (1981) 4 A Crim R 238 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BLAY -v- THE QUEEN [2006] WASCA 248 CORAM : WHEELER JA
- McLURE JA
BUSS JA
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CaseChat Overview and Summary
The case of Blay v The Queen involved the appellant, who was sentenced on both Commonwealth and State indictments. The charges related to the importation of a trafficable quantity of ecstasy under the Customs Act 1901 (Cth) and possession of ecstasy with intent to sell or supply under the Misuse of Drugs Act 1981 (WA). The primary dispute was whether the sentences imposed were lawful and whether the sentencing judge had adequately considered the overlap in the elements of the offences and the transitional provisions under the Sentencing Legislation Amendment and Repeal Act 2003 (WA). Additionally, the court had to determine if the sentences were manifestly excessive and if the totality principle was appropriately applied.
The legal issues before the court centred on whether the sentencing judge had erred in not referring to the transitional provisions under the Sentencing Legislation Amendment and Repeal Act 2003 (WA). It was also examined whether the sentences were manifestly excessive and whether the totality principle was correctly applied in sentencing the appellant for the Commonwealth and State offences. The court had to consider if the sentencing judge had correctly avoided punishing the appellant twice for the same intent to traffic or sell the ecstasy, and if the sentences reflected a proper application of the principles of sentencing.
The court held that the sentencing judge had indeed erred by not referring to the transitional provisions and by potentially punishing the appellant twice for the same intent to traffic or sell the ecstasy. It was determined that the sentences imposed for the Commonwealth offences were manifestly excessive, and the totality principle was not properly applied. The court found that the sentences failed to adequately consider the overlap between the Commonwealth and State charges. Consequently, the court allowed the appeals and re-sentenced the appellant, taking into account the appropriate legal principles and ensuring that the sentences were proportionate and did not result in double punishment for the same conduct.
The final orders of the court were to allow the appeals and re-sentence the appellant, ensuring that the new sentences appropriately reflected the legal principles and considerations discussed. This involved addressing the transitional provisions, avoiding double punishment, and applying the totality principle correctly in the context of the sentencing process.
The legal issues before the court centred on whether the sentencing judge had erred in not referring to the transitional provisions under the Sentencing Legislation Amendment and Repeal Act 2003 (WA). It was also examined whether the sentences were manifestly excessive and whether the totality principle was correctly applied in sentencing the appellant for the Commonwealth and State offences. The court had to consider if the sentencing judge had correctly avoided punishing the appellant twice for the same intent to traffic or sell the ecstasy, and if the sentences reflected a proper application of the principles of sentencing.
The court held that the sentencing judge had indeed erred by not referring to the transitional provisions and by potentially punishing the appellant twice for the same intent to traffic or sell the ecstasy. It was determined that the sentences imposed for the Commonwealth offences were manifestly excessive, and the totality principle was not properly applied. The court found that the sentences failed to adequately consider the overlap between the Commonwealth and State charges. Consequently, the court allowed the appeals and re-sentenced the appellant, taking into account the appropriate legal principles and ensuring that the sentences were proportionate and did not result in double punishment for the same conduct.
The final orders of the court were to allow the appeals and re-sentence the appellant, ensuring that the new sentences appropriately reflected the legal principles and considerations discussed. This involved addressing the transitional provisions, avoiding double punishment, and applying the totality principle correctly in the context of the sentencing process.
Orders
Orders of the court
Appeals allowed
Appellant re-sentenced
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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