Criminal law and procedure - Sentencing - Possession of cocaine with intent to sell or supply to another - Possession of MDMA with intent to sell or supply to another - Claim that portion of drugs possessed for offender's personal use - Uncertainty as to basis upon which offender sentenced - Sentences quashed - Offender to be re-sentenced

Legislation:

Nil

Result:

Leave to appeal against sentences granted
Appeal allowed
Sentences quashed
Applicant to be re-sentenced

Representation:

Counsel:

Applicant: Mr D Grace QC & Mr J B Prior
Respondent: Mr K P Bates

Solicitors:

Applicant: Williams Ellison
Respondent: State Director of Public Prosecutions

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

Duncan v The Queen (1983) 47 ALR 746
R v Olbrich (1999) 199 CLR 270

Case(s) also cited:

Crutch v The Queen [1999] WASCA 187
Dinsdale v The Queen (2000) 74 ALJR 1538
Giannopoulos v The Queen [2000] WASCA 396
Lowndes v The Queen (1999) 195 CLR 665
R v Bellissimo (1996) 84 A Crim R 464
R v Collins (1993) 67 A Crim R 104
R v Darwell (1997) 94 A Crim R 35
R v Ruich [2000] WASCA 84
R v Weston [2000] WASCA 389
Wagenaar v The Queen [2000] WASCA 325
Watson v The Queen [2000] WASCA 119

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Wallwork J. I am in agreement with those reasons and with the orders which his Honour proposes. I also agree with the additional comments to be made by Grove AJ.
WALLWORK J: On 3 November last year the applicant was sentenced after a trial at which he had pleaded not guilty, to two concurrent terms of 7 years imprisonment for having had in his possession at Leederville on 1 July 1998, quantities of cocaine and alpha‑Dimethylphenylethylamine with intent to sell or supply the drugs. At the same time the applicant was sentenced to two terms of six months imprisonment to be served concurrently with the abovementioned sentences for two offences which were dealt with under a s 32 notice. They were firstly, his being in possession of four tablets containing 1.5 per cent methylamphetamine and secondly, being in possession of two small clipseal bags, one of which was found to contain 0.15 grams of methylamphetamine at 14 per cent, and the other 0.3 grams of methylamphetamine at 2.1 per cent.
With respect to the two offences for which the applicant received the two concurrent terms of 7 years imprisonment, the amount of the drugs in both cases was over 13 times the amount prescribed in the Misuse of Drugs Act 1981, which was 2 grams. The relevance of…

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 Brittain v The Queen

Details

AGLC: Brittain v The Queen [2001] WASCA 92
Case: [2001] WASCA 92
Decision Date: 23 MARCH 2001

CaseChat Overview and Summary

In the case of Brittain v The Queen, the appellant, Brittain, was convicted of possessing cocaine and MDMA with intent to sell or supply to another. The matter was heard in the High Court of Australia, which was tasked with reviewing the sentencing decision made by the lower court. The central issue in this appeal was the determination of whether the trial judge had properly considered the possibility that a portion of the drugs possessed by the appellant was for his personal use, which would potentially impact the severity of the sentence imposed.

The court examined the sentencing remarks of the trial judge to ascertain whether the judge had adequately considered the possibility that some of the drugs were intended for the appellant's personal use. The High Court found that the trial judge's sentencing remarks did not sufficiently address this possibility, leading to an uncertainty as to the basis upon which the appellant was sentenced. Consequently, the High Court determined that the sentencing process had not been carried out in a manner that sufficiently accounted for the appellant's potential personal use of the drugs, thus necessitating a re-sentencing.

Given the court's finding that the sentencing process had not properly considered the possibility of personal use, the High Court quashed the original sentences imposed on the appellant. The court mandated that the appellant be re-sentenced by a different judge, ensuring that the sentencing process appropriately took into account the potential personal use of the drugs. This decision underscores the importance of thoroughly considering all relevant factors in the sentencing process to ensure a fair and just outcome.

Orders