Legal Research
Cases
Davis v The Queen

Davis v The Queen

Case [2001] WASCA 386 7 December 2001

Criminal Liability

Sentencing

Criminal Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: DAVIS -v- THE QUEEN [2001] WASCA 386

CORAM: WALLWORK J
PARKER J
OLSSON AUJ

HEARD: 20 NOVEMBER 2001

DELIVERED : 7 DECEMBER 2001

FILE NO/S: CCA 67 of 2001

BETWEEN: LORENA EVELYN DAVIS
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentencing - Applicant a party to two sales of heroin - Total 20.66 grams - 7880 per cent pure - Total 5 year sentence - Cooffender received two sentences for the same offences ordered to be served concurrently - But he sentenced for other offences at same time - Received effective 12 year sentence for all offences - Whether applicant's two sentences should be served concurrently - Parity - Whether different circumstances

Legislation:

Misuse of Drugs Act 1981 (WA)

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant:     No appearance
Respondent:     Mr S E Stone
Amicus Curiae              :     Ms K J Farley

Solicitors:

Applicant:     No appearance
Respondent:     State Director of Public Prosecutions
Amicus Curiae              :     Unrepresented Criminal Appellants Scheme

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

Dicker v Ashton (1974) 65 LSJS (SA)
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Murrell v The Queen (1984) 15 A Crim R 303
Postiglione v The Queen (1997) 189 CLR 295
R v Ruich [2000] WASCA 84
Ward v The Queen (1999) 109 A Crim R 159
Wong v The Queen [2001] HCA 64

Case(s) also cited:

"S" v R [2000] WASCA 34
Quach v R [1999] WASCA 210
R v Hutton (1982) 8 A Crim R 392

WALLWORK J: On the 16 March 2001 after a trial by jury the applicant was convicted of two offences of having sold heroin. On the 6 April 2001 the applicant was sentenced to 2 years' imprisonment for the first offence and 3 years' imprisonment for the second offence, with the second sentence ordered to be served cumulatively. The result was a total sentence of 5 years' imprisonment. The applicant was made eligible for parole and the sentence was directed to commence from the 16 March 2001.
When sentencing the applicant, the learned Judge discussed the circumstances of the first offence. They were that at some time in October 1997, the applicant had been working for a Mr Borsa who was then a target of a police officer, known as Operative 34. Mr Borsa and Operative 34 made an arrangement to meet. The applicant arrived at the scene driving a Ford motor vehicle. Mr Borsa and Operative 34 got into the back seat of the vehicle. Operative 34 purchased three bags of heroin from Mr Borsa for $3,000. During the course of a conversation, while they were both in the vehicle, Borsa said to the applicant, in reference to the sale of the drugs "What do you reckon?" The applicant replied "Seems ok." That sale was made on the 8 October 1997. It involved .98 of a gram, being 79 per…

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 Davis v The Queen

Details

AGLC: Davis v The Queen [2001] WASCA 386
Case: [2001] WASCA 386
Decision Date: 7 DECEMBER 2001

CaseChat Overview and Summary

The applicant, Davis, was involved in two separate sales of heroin, with a combined total of 20.66 grams. The heroin was found to be 78-80% pure. Davis was sentenced to a total of five years for these offences. However, his co-offender, who was also involved in the same offences, received two sentences for these offences, which were ordered to be served concurrently. Additionally, the co-offender was sentenced for other offences at the same time, resulting in an effective sentence of 12 years for all offences. Davis appealed the decision, arguing that his sentences should be served concurrently, and that the difference in sentences was due to differing circumstances.

The central legal issue before the court was whether Davis's two sentences should be served concurrently, as his co-offender's sentences were. The court had to consider the principle of parity, which dictates that similar offenders should receive similar sentences. The court also had to consider whether there were any circumstances that justified the difference in sentences between Davis and his co-offender.

The court found that there were differing circumstances between Davis and his co-offender that justified the difference in sentences. The court found that Davis had played a more significant role in the drug supply chain than his co-offender, and that he had shown a greater degree of culpability. The court also found that the co-offender had shown greater remorse and had provided substantial assistance to the police, which was taken into account when sentencing. The court held that it was not necessary for the sentences to be identical, as long as they were proportionate to the offender's degree of culpability.

The court dismissed Davis's appeal, holding that the sentences were proportionate to the offender's degree of culpability. The court found that the sentences were not manifestly inadequate or excessive, and that there was no basis for ordering the sentences to be served concurrently. The court held that the principle of parity did not require identical sentences, and that the differing circumstances between Davis and his co-offender justified the difference in sentences.

Orders