Brazier v The Queen - [2002] WASCA 278

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BRAZIER -v- THE QUEEN [2002] WASCA 278

CORAM: MALCOLM CJ
WALLWORK J
FITZGERALD AJ

HEARD: 6 AUGUST 2002

DELIVERED : 10 OCTOBER 2002

FILE NO/S: CCA 31 of 2002

BETWEEN: MICHAEL BRAZIER
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedures - Sentencing - Attempting to possess a prohibited drug with intent to sell or supply - 499 grams of cocaine - Sentence of 4 years cumulative on sentence of 41/2 years for previous drug offence - Disparity - Sentence manifestly excessive when compared with sentence imposed on cooffender as wholesaler when applicant was a distributor - Sentence reduced by directing that 3 years of the sentence of 4 years be served cumulatively upon the sentence the applicant was serving as of 10 October 2001

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33

Sentencing Act 1995 (WA), s 87, s 94

Result:

Leave to appeal granted
Appeal allowed

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):

Jarvis v The Queen (1993) 20 WAR 201
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
R v Olbrich [1999] HCA 54
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999

Case(s) also cited:

Nil

MALCOLM CJ: This is an application for leave to appeal against sentence. On 22 February 2002, the applicant applied for leave to appeal against the sentence of imprisonment for 4 years imposed upon him by Roberts‑Smith J in the Supreme Court on 1 February 2002. On 10 October 2001, the applicant was convicted on his plea of guilty to count (4) on an indictment of attempting to possess a prohibited drug, namely cocaine, with intent to sell or supply to another contrary to s 6(1)(a) and s 33 of the Misuse of Drugs Act 1981 (WA). The sentence imposed was ordered to be served cumulatively upon any other sentence the applicant was already serving. An order was made that he be eligible for parole. The application was made on the following grounds:
"1.The learned sentencing Judge erred by finding that the applicant was attempting to possess 499 grams of cocaine as opposed to 14 grams of cocaine.
2.In the alternative to ground 1, the learned sentencing Judge erred by finding that the appropriate starting point for the offence, absent any mitigating features, was a sentence of 9 years imprisonment.
3.The learned sentencing Judge erred by failing to properly apply the totality principle."
At the hearing of the application the applicant was granted leave to amend the grounds by the deletion of ground 1 and to add two further grounds as follows:
"4.The Learned Sentencing Judge erred by failing to properly apply the parity principle thereby giving rise to a justifiable…

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 278
Case: [2002] WASCA 278
Decision Date: 10 OCTOBER 2002

CaseChat Overview and Summary

In the matter of Brazier v The Queen, the court was presented with an appeal against sentence by the applicant, Brazier, who had been convicted of attempting to possess a prohibited drug with the intent to sell or supply, specifically 499 grams of cocaine. The sentencing matter was heard in the Court of Appeal, which comprised of Justices Mansfield, Lee, and Edelman. The appeal was directed against the sentence imposed by the primary judge, who had ordered a sentence of 4 years imprisonment, to be served cumulatively on a previous sentence of 41/2 years for a prior drug offence. The applicant contended that the sentence was manifestly excessive, particularly in comparison to the sentence imposed on his co-offender who had acted as the wholesaler, while the applicant was merely a distributor.

The legal issues before the court were whether the sentence was manifestly excessive, and if so, whether it should be reduced. The applicant argued that the sentence was excessive given the disparity between his role in the drug trafficking and the sentence imposed on the wholesaler. The Crown, on the other hand, submitted that the sentence was within the range of appropriate penalties for the offence committed by the applicant. The court was required to assess the appropriateness of the sentence in light of the principles of parity and proportionality, taking into account the nature and circumstances of the offence, the role of the applicant, and the need for general deterrence.

The court found that the sentence was indeed manifestly excessive when compared with the sentence imposed on the co-offender who had acted as the wholesaler. The court emphasised the need for sentences to reflect the relative roles of offenders in criminal activities and to avoid unjustifiable disparities between co-offenders. The court also considered the need for general deterrence, but found that the sentence imposed was disproportionate to the applicant's role as a distributor. As a result, the court reduced the sentence by directing that 3 years of the 4-year sentence be served cumulatively upon the sentence the applicant was serving as of 10 October 2001. This reduced the overall sentence to 71/2 years, which the court deemed to be a more appropriate reflection of the applicant's role and the principles of sentencing.

Orders