JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: BRITTAIN -v- THE QUEEN [2001] WASCA 92
CORAM: KENNEDY J
WALLWORK J
GROVE AJ
HEARD: 07 MARCH 2001
DELIVERED : 23 MARCH 2001
FILE NO/S: CCA 248 of 2000
BETWEEN: PETER ANDREW BRITTAIN
Applicant
AND
THE QUEEN
Respondent
Catchwords:
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
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…
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- AGLC
- Brittain v The Queen [2001] WASCA 92
- Case
- [2001] WASCA 92
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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
Established by: WALLWORK J
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