Dreja v Sloan - [2011] WASC 245

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DREJA -v- SLOAN [2011] WASC 245

CORAM: HALL J

HEARD: 6 SEPTEMBER 2011

DELIVERED : 9 SEPTEMBER 2011

FILE NO/S: SJA 1093 of 2011

BETWEEN: LIAM JON DREJA
Appellant
AND
AIDEN WILLIAM SLOAN
Respondent

FILE NO/S :SJA 1094 of 2011

BETWEEN :LIAM JON DREJA
Appellant
AND
CRAIG NICHOLAS MELLORS
Respondent

ON APPEAL FROM:
For File No               :  SJA 1093 of 2011
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T J MCINTYRE
File No  :MH 2292 of 2009
For File No               :  SJA 1094 of 2011
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M D WHEELER
File No  :JO 7876 of 2010, JO 7877 of 2010

Catchwords:

Criminal law - Appeal against sentence - Property damage to the value of $50 - Whether suspended imprisonment sentence manifestly excessive

Drugs offences - Small amount of mescaline - Attempt to manufacture DMT - Whether imprisonment sentences disproportionate to criminality - Turns on own facts

Legislation:

Criminal Code (WA), s 445
Misuse of Drugs Act 1981 (WA), s 6(1)(b), Sch III, Sch V
Sentencing Act 1995 (WA), s 6(4), s 7(2), s 39, s 76(2), s 80

Result:

SJA 1093 of 2011:
Extension of time granted
Appeal allowed

SJA 1094 of 2011:
Appeal allowed

Category: B

Representation:

SJA 1093 of 2011

Counsel:

Appellant: Mr A J Robson
Respondent: Ms E L O'Donnell

Solicitors:

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

SJA 1094 of 2011

Counsel:

Appellant: Mr A J Robson
Respondent: Ms E L O'Donnell

Solicitors:

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

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

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dodd v The Queen [2002] WASCA 55
Jones v Saddler (No 2) [2010] WASC 53
Lancaster v The Queen [1989] WAR 83
P (a child) v Thompson [2011] WASC 120
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458
Worth v The Queen [2001] WASCA 303

HALL J: These two appeals against sentence were heard together.
Appeal 1093 of 2011 relates to a sentence of 7 months' imprisonment suspended for 18 months imposed on 9 July 2009 in the Mandurah Magistrates Court. That sentence was imposed for an offence of unlawful damage to property contrary to s 445 of the Criminal Code (WA).
Appeal 1094 of 2011 relates to a total aggregate prison sentence of 13 months to be served immediately and with eligibility for parole. That sentence was imposed in the Perth Magistrates Court on 11 August 2011. It comprised 7 months' imprisonment, being the imposition of the previously suspended sentence, 6 months' imprisonment cumulative for manufacture of a prohibited drug and 3 months' imprisonment concurrent for attempting to manufacture a prohibited drug, the latter two charges being contrary to s 6(1)(b) of the Misuse of Drugs Act 1981

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 Dreja v Sloan

Details

AGLC: Dreja v Sloan [2011] WASC 245
Case: [2011] WASC 245
Decision Date: 9 SEPTEMBER 2011

CaseChat Overview and Summary

In the case of Dreja v Sloan, the appellant was convicted of possessing a small amount of mescaline and attempting to manufacture dimethyltryptamine (DMT). The appellant appealed against his sentence, contending that it was manifestly excessive. The appeal was heard by the Court of Appeal, which considered whether the sentence was disproportionate to the criminality involved. The Court of Appeal was required to assess the appellant's criminal conduct and the sentence imposed, and to determine whether the sentence was manifestly excessive or disproportionate.

The legal issues before the court were whether the sentence of suspended imprisonment for the property damage and the imprisonment sentences for the drug offences were manifestly excessive or disproportionate. The court considered the principles of sentencing and proportionality, as well as the relevant legislative provisions. The court noted that the appellant had a previous criminal history and that the offences involved the possession of a small amount of mescaline and an attempt to manufacture DMT. The court also considered the appellant's personal circumstances and the need for deterrence and rehabilitation.

The court found that the sentence of suspended imprisonment for the property damage was not manifestly excessive, as it was within the sentencing range for such offences. However, the court found that the imprisonment sentences for the drug offences were disproportionate to the criminality involved. The court noted that the appellant's previous criminal history and the need for deterrence and rehabilitation were relevant factors, but that the small amount of mescaline and the attempt to manufacture DMT did not warrant such severe sentences. The court therefore allowed the appeal and reduced the imprisonment sentences for the drug offences.

The final orders of the court were that the appeal against the sentence for the property damage was dismissed, but the appeal against the imprisonment sentences for the drug offences was allowed. The imprisonment sentences for the drug offences were reduced to a total of twelve months, to be served concurrently with the sentence for the property damage. The appellant was also ordered to pay costs of the appeal.

Orders