BRAZIER -v- THE QUEEN [2002] WASCA 314

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 314
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:31/2002	Heard:	30 OCTOBER 2002
Coram:	MALCOLM CJ WALLWORK J	Delivered:	26/11/02
No of pages:	6	Judgment Part:	1 of 1
Result:	Order of the Court pronounced on 10 October 2002 varied
Category:	B
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Parties:	MICHAEL BRAZIER THE QUEEN
Catchwords:	Criminal law and procedure Sentencing Attempting to possess a prohibited drug with intent to sell or supply 499 grams of cocaine Sentence of 4 years imposed cumulative on sentence of 4 and a half years for previous drug offence Sentence reduced by directing 3 years of the sentence of 4 years be served cumulatively upon the sentence the applicant was serving as of 10 October 2001 Question raised regarding proper form of order Order varied by resentencing the applicant to a term of imprisonment for 4 years to be served partly cumulatively on the sentence he was serving as at 10 October 2001; 3 years of the sentence of 4 years be served cumulatively on the sentence he was serving as at 10 October 2001; the applicant serve an additional 12 months from the earliest date he would have been eligible for parole in respect of the sentence he was serving as at 10 October 2001; the sentence of 4 years be taken to have commenced on 8 July 2002
Legislation:	Sentencing Act 1995 (WA), ss 37, 87, 88
Case References:	Brazier v The Queen [2002] WASCA 278 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BRAZIER -v- THE QUEEN [2002] WASCA 314 CORAM : MALCOLM CJ

WALLWORK J

HEARD : 30 OCTOBER 2002 DELIVERED : 26 NOVEMBER 2002 FILE NO/S : CCA 31 of 2002 BETWEEN : MICHAEL BRAZIER

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Sentencing - Attempting to possess a prohibited drug with intent to sell or supply - 499 grams of cocaine - Sentence of 4 years imposed cumulative on sentence of 4 and a half years for previous drug offence - Sentence reduced by directing 3 years of the sentence of 4 years be served cumulatively upon the sentence the applicant was serving as of 10 October 2001 - Question raised regarding proper form of order - Order varied by resentencing the applicant to a term of imprisonment for 4 years to be served partly cumulatively on the sentence he was serving as at 10 October 2001; 3 years of the sentence of 4 years be served cumulatively on the sentence he was serving as at 10 October 2001; the applicant serve an additional 12 months from the earliest date he would have been eligible for parole in respect of the sentence he was serving as at 10 October 2001; the sentence of 4 years be taken to have commenced on 8 July 2002

(Page 2)

Legislation:

Sentencing Act 1995 (WA), ss 37, 87,…

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 Brazier v The Queen

Details

AGLC: Brazier v The Queen [2002] WASCA 314
Case: [2002] WASCA 314
Decision Date: 26 NOVEMBER 2002

CaseChat Overview and Summary

In the matter of Brazier v The Queen, the applicant was convicted of attempting to possess a prohibited drug with intent to sell or supply, specifically 499 grams of cocaine. The case was heard and determined in the High Court of Australia. The applicant had already been serving a sentence for a previous drug offence and was sentenced to an additional 4 years for the current offence. The cumulative nature of the sentences was a matter of contention, leading to an appeal regarding the proper form of the order.

The central legal issue before the court was whether the sentence imposed was in the correct form and whether the cumulative aspect of the sentences was properly applied. The applicant argued that the form of the order was incorrect, leading to an unfair increase in his total sentence. The court was required to determine the appropriate legal framework for imposing cumulative sentences and whether the sentences had been correctly calculated and applied.

The court found that while the original sentence was imposed in good faith, the form of the order was not as it should have been. The court noted that the applicant should have served 3 years of the 4-year sentence cumulatively on the sentence he was already serving, and the remaining year should have been served consecutively. To correct this, the court varied the order by resentencing the applicant to a term of imprisonment for 4 years, to be served partly cumulatively on the sentence he was serving as of 10 October 2001. Specifically, 3 years of the 4-year sentence were to be served cumulatively, and the applicant was to serve an additional 12 months from the earliest date he would have been eligible for parole in respect of the sentence he was serving as of 10 October 2001. The sentence of 4 years was taken to have commenced on 8 July 2002. This variation ensured that the sentence was properly structured and reflected the intentions of the original sentencing order.

Orders

Orders of the court

Order of the Court pronounced on 10 October 2002 varied

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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