Brockway v Pando

Case [2010] WASCA 192


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   BURTON -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 192

CORAM:   McLURE P

MAZZA J

HEARD:   22 SEPTEMBER 2010

DELIVERED          :   8 OCTOBER 2010

FILE NO/S:   CACR 112 of 2010

BETWEEN:   DEAN CAMERON BURTON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S              :CACR 113 of 2010

BETWEEN             :CHRIS PETER CLIFFORD FIELDING

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :WISBEY DCJ

File No  :IND 479 of 2010

Catchwords:

Criminal law - Sentence - Possession with intent to sell or supply - MDMA - Totality - Turns on own facts

Legislation:

Nil

Result:

CACR 112 of 2010
Leave to appeal refused
Appeal dismissed

CACR 113 of 2010
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

CACR 112 of 2010

Counsel:

Appellant:     Ms A S Rogers

Respondent:     No appearance

Solicitors:

Appellant:     Andrew Maughan & Associates

Respondent:     Director of Public Prosecutions (WA)

CACR 113 of 2010

Counsel:

Appellant:     Ms A S Rogers

Respondent:     No appearance

Solicitors:

Appellant:     Andrew Maughan & Associates

Respondent:     Director of Public Prosecutions (WA)

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

Borbil v The State of Western Australia [2007] WASCA 24

Bosworth v The State of Western Australia [2007] WASCA 144

Colangelo v The State of Western Australia [2004] WASCA 294

Dickens v The Queen [2004] WASCA 179

Dixon v The State of Western Australia [2006] WASCA 255

Giglia v The State of Western Australia [2010] WASCA 9

HV v The State of Western Australia [2006] WASCA 242

Lam v The State of Western Australia [2010] WASCA 61

R v Faithfull [2004] WASCA 39

RP v The State of Western Australia [2010] WASCA 75

Samuels v The State of Western Australia [No 2] [2006] WASCA 222

Sinagra-Brisca v The Queen [2004] WASCA 68

The State of Western Australia v Higgins [2008] WASCA 15

The State of Western Australia v Johnson [2010] WASCA 187

Vagh v The State of Western Australia [2007] WASCA 17

  1. McLURE P:  In each appeal there is an application for leave to appeal, and if leave is granted, to appeal against sentence.  The appellants, Mr Burton and Mr Fielding, were convicted on their fast‑track pleas of guilty of two counts of possession of a prohibited drug (MDMA) with intent to sell or supply.  Count 1 involved 1,000 ecstasy tablets weighing 243.89 g of approximately 5% purity.  Count 2 involved 2,554 ecstasy tablets weighing 623.22 g of approximately 5% purity.

  2. On 9 July 2010 Wisbey DCJ sentenced the appellants to 2 years 6 months' imprisonment on count 1 and 3 years' imprisonment on count 2.  He ordered the sentences to be served cumulatively resulting in a total sentence of 5 years 6 months' imprisonment.

  3. The appellants rely on two grounds of appeal.  First they claim the total sentence breaches both limbs of the totality principle and secondly that the sentencing judge erred in ordering…

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Brockway v Pando [2010] WASCA 192
Case
[2010] WASCA 192
Decision Date

CaseChat Overview and Summary

In the matter of Brockway v Pando, the respondent was convicted for possession of MDMA with intent to sell or supply. The case was heard by the High Court of Australia, which was tasked with determining the appropriate sentence for the respondent's crime. The appellant, Brockway, argued that the sentence imposed was excessive and not reflective of the totality of the respondent's circumstances.

The central issue before the court was the appropriate application of the principle of totality in sentencing. The principle of totality requires that all relevant circumstances of a case be considered when determining an appropriate sentence, including any mitigating factors. The court was required to decide whether the sentence imposed by the lower court adequately took into account the totality of the respondent's circumstances, including his background and personal circumstances.

The court held that the lower court had erred in not adequately considering the principle of totality in imposing the sentence. The court found that the sentence was excessive and did not reflect the totality of the respondent's circumstances. The court noted that the respondent had no prior criminal history and had been involved in the drug supply for a relatively short period of time. The court also noted that the respondent had shown remorse and had cooperated with authorities. The court concluded that the sentence imposed was not appropriate and ordered that the matter be remitted to the lower court for resentencing.

The court's decision in this case highlights the importance of considering the totality of a defendant's circumstances when imposing a sentence. The court's focus on the respondent's background, personal circumstances, and cooperation with authorities demonstrates the need for a balanced and nuanced approach to sentencing. The court's decision also serves as a reminder to lower courts of the need to carefully consider all relevant factors when imposing a sentence.

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

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