Dailey v The Queen - [2000] WASCA 158

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: DAILEY -v- THE QUEEN [2000] WASCA 158

CORAM: MALCOLM CJ
WALLWORK J
MURRAY J

HEARD: 12 APRIL 2000

DELIVERED : 12 APRIL 2000

PUBLISHED : 9 JUNE 2000

FILE NO/S: CCA 2 of 2000

BETWEEN: PETER ROBERT DAILEY
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentencing - Heroin - Fast track pleas of guilty to four charges - Two of possession with intent to sell or supply - Two of selling heroin as a street dealer to support his habit - Aggregate 4 years' imprisonment - On appeal

Legislation:

Nil

Result:

Application for leave to appeal refused

Representation:

Counsel:

Applicant: Mr A Palumbo
Respondent: Mr B Fiannaca

Solicitors:

Applicant: Birman & Ride
Respondent: State Director of Public Prosecutions

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

Donatelli v The Queen, unreported; CCA SCt of WA; Library No 980505; 3 September 1998
Thompson v The Queen unreported; CCA SCt of WA; Library No 970435; 5 September 1997
Verschuren v The Queen (1996) 17 WAR 467

Case(s) also cited:

Bowman v The Queen (1993) 69 A Crim R 530
Jarvis v The Queen (1993) 20 WAR 201
Korculanic v The Queen, unreported; CCA SCt of WA; Library No 980437; 16 July 1998
La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996
Lowndes v The Queen (1999) 163 ALR 483
Mill v The Queen (1988) 166 CLR 59
Musarri v The Queen, unreported; CCA SCt of WA; Library No 980662; 17 November 1998
Quach v R [1999] WASCA 210
R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998
R v Gibson, unreported; CCA SCt of WA; Library No 980308; 5 June 1998
Shaw v The Queen (1989) 39 A Crim R 343
Sikaloski v The Queen [2000] WASCA 63

MALCOLM CJ: In my opinion this application for leave to appeal against sentence should be refused for the reasons to be published by Wallwork J. I only wish to add some comments of my own. The applicant was sentenced to imprisonment for 2 years in respect of each of four offences involving heroin. There were two offences of possession with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act1981 (counts 1 and 3) and two offences of selling heroin to another contrary to s 6(1)(c) of the Act (counts 2 and 4). The sentences for counts 1 and 2 were made concurrent with each other as were the sentences for counts 3 and 4 but the two sets of concurrent sentences were directed to be served cumulatively. Thus, the total effective sentence was imprisonment for 4 years. The applicant was made eligible for parole. The facts are fully set out in the reasons to be published by Wallwork J.
It was submitted that the learned sentencing Judge did not appear to turn his mind to suspending the sentence, given…

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 Dailey v The Queen

Details

AGLC: Dailey v The Queen [2000] WASCA 158
Case: [2000] WASCA 158
Decision Date: 9 JUNE 2000

CaseChat Overview and Summary

In Dailey v The Queen, the defendant was appealing against the aggregate 4-year imprisonment sentence he received for four heroin-related offences. The court heard that Dailey had entered into a fast track plea of guilty for two charges of possession with intent to sell or supply heroin, and two charges of selling heroin as a street dealer to support his drug habit. The appeal focused on the appropriateness of the sentence imposed by the trial judge.

The legal issues before the court involved whether the trial judge erred in his assessment of the appropriate sentence for the defendant. The court needed to determine whether the trial judge took into account all relevant factors, including the nature and circumstances of the offences, the defendant's background and offending history, and the need for deterrence and denunciation. Additionally, the court had to consider whether the sentence was manifestly excessive or inadequate in all the circumstances.

The court found that the trial judge had appropriately considered all relevant factors when determining the appropriate sentence for the defendant. The court found that the sentence was not manifestly excessive or inadequate, and that it reflected the gravity of the defendant's offending. The court held that the sentence imposed was appropriate in all the circumstances, and dismissed the appeal. Consequently, the defendant's aggregate 4-year imprisonment sentence for the four heroin-related offences was upheld.

Orders