Criminal law - Application for leave to appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Whether it was open to trial judge to make findings as to the role played by the appellant - Whether sentence of 14 years' imprisonment manifestly excessive

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M A Tedeschi
Respondent: No appearance

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Hoang v The State of Western Australia [2015] WASCA 130
Kitis v The State of Western Australia [2013] WASCA 34
Le v The State of Western Australia [2015] WASCA 73
Ly v The State of Western Australia [2015] WASCA 18
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Ngo v The Queen [2017] WASCA 3
Phan v The State of Western Australia [2014] WASCA 144
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
The State of Western Australia v JWRL (a child) [2010] WASCA 179
Tresnjo v The State of Western Australia [2015] WASCA 193
Wilson v The State of Western Australia [2015] WASCA 119

REASONS OF THE COURT: The appellant was convicted after a trial in the District Court of one count of being in possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). On 16 December 2016, he was sentenced to 14 years' imprisonment with an order that he be eligible for parole. He now seeks leave to appeal against that sentence.
There are two grounds of appeal. The second ground was added, with leave, at the hearing. Those grounds assert, in effect, that the sentence was manifestly excessive and that the sentencing judge erred in his characterisation of the role of the appellant in the offending. For the reasons that follow, leave should not be granted on either of the grounds.

The facts

The unchallenged facts on this appeal can be summarised as follows.
On 24 September 2014, Lu Ting Yu (Ms Yu) leased a unit in Aberdeen Street, Perth (the unit), for six months commencing from 27 September 2014. The rent was $600 per week and Ms Yu paid six weeks rent in advance, being a total of $3,600. Arrangements were made for the keys for the unit to be collected…

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 Chen v The State of Western Australia

Details

AGLC: Chen v The State of Western Australia [2017] WASCA 99
Case: [2017] WASCA 99
Decision Date: 30 MAY 2017

CaseChat Overview and Summary

The appellant, Chen, was convicted for possession of methylamphetamine with intent to sell or supply. Chen applied for leave to appeal against the sentence imposed by the trial judge, arguing that the 14-year imprisonment term was manifestly excessive and that the trial judge erred in making findings about Chen's role in the drug supply operation without sufficient evidence. The State of Western Australia opposed the application for leave to appeal.

The key legal issues before the court were whether it was open to the trial judge to make findings about Chen's role in the drug supply operation and whether the 14-year imprisonment sentence was manifestly excessive. Chen argued that the trial judge's findings regarding Chen's role in the drug supply operation were not supported by the evidence, and that the sentence was manifestly excessive and disproportionate to the crime. The State of Western Australia maintained that the trial judge's findings were properly made and that the sentence was within the appropriate range for the offence.

The court held that the trial judge did not err in making findings about Chen's role in the drug supply operation, as there was sufficient evidence to support those findings. The court also found that the sentence of 14 years' imprisonment was not manifestly excessive, as it was within the appropriate range for the offence of possession of methylamphetamine with intent to sell or supply. The court further held that the trial judge had considered the relevant factors in imposing the sentence, and that the sentence was proportionate to the gravity of the offence.

The court refused the application for leave to appeal against the sentence.

Orders