Gasteau v R - [1999] WASCA 153

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: GASTEAU -v- R [1999] WASCA 153

CORAM: ANDERSON J
WHITE J
HEENAN J

HEARD: 4 AUGUST 1999

DELIVERED : 25 AUGUST 1999

FILE NO/S: CCA 45 of 1999

BETWEEN: PETER PHILLIPE GASTEAU
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentencing - Allowance for plea of guilty - The learned sentencing Judge not stating the quantity of such allowance - Whether appealable error - Appellant's depression at time of offence - Whether relevant to sentence - Possession of heroin with intent to sell or supply - Whether sentence of 8 years' imprisonment excessive - Possession of lesser quantity of cocaine with intent to sell or supply - Sentence of 8 years' imprisonment concurrent with sentence of first count - Sentence reduced to 6 years' imprisonment, concurrent

Legislation:

Misuse of Drugs Act 1981, s 6(1)(a)

Result:

Appeal against sentence of 8 years' imprisonment for possession of heroin with intent to sell or supply dismissed, concurrent sentence for possession of cocaine with intent to sell or supply reduced from 8 years' to 6 years' imprisonment

Representation:

Counsel:

Appellant: Mr T F Percy QC & Mr L M Levy
Respondent: Mr R E Cock QC & Ms E A Benwell

Solicitors:

Appellant: Pryles & Defteros
Respondent: State Director of Public Prosecutions

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

Mussarri v R, unreported; CCA SCt of WA; Library No 980662; 17 November 1998
Verschuren v The Queen (1996) 17 WAR 467

Case(s) also cited:

Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Bellissimo v R (1996) 84 A Crim R 465
Darwell v R (1997) 94 A Crim R 35
Duffy v The Queen (1996) 85 A Crim R 456
Dunn v The Queen (1986) 32 A Crim R 203
Hayes v R [1981] WAR 252
Haysdale Nominees v Shepherd (1998) 98 A Crim R 435
House v The King (1936) 55 CLR 499
La Rosa, unreported; CCA SCt of WA; Library No 960628; 31 October 1996
Lam v R, unreported; CCA SCt of WA; Library No 960492; 5 August 1996
Miller v R [1999] WASCA 66
Parsons v The Queen (1993) 66 A Crim R 550
Pearce v The Queen (1998) 156 ALR 684
R v Anderson [1981] VR 155
R v Calder, unreported; District Ct of WA (Hammond CJ); Library No 4612; 7 September 1995
R v Cartwright [1989] NSWLR 243
R v Cottrell (1989) 42 A Crim R 31
R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998
R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998
R v McMahon (1988) 40 A Crim R 95
R v Nagy [1992] 1 VR 637
R v Roadley (1990) 51 A Crim R 336
R v Tsiaras [1996] 1 VR 398
Symonds v R, unreported; CCA SCt of WA; Library No 980616; 28 October 1998
Weng Keong Chan v The Queen (1989) 38…

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 Gasteau v R

Details

AGLC: Gasteau v R [1999] WASCA 153
Case: [1999] WASCA 153
Decision Date: 25 AUGUST 1999

CaseChat Overview and Summary

In this case, the appellant was convicted of possession of a commercial quantity of heroin with intent to sell or supply, and possession of a lesser quantity of cocaine with intent to sell or supply. The appellant appealed against his sentence of eight years' imprisonment, arguing that the sentencing judge did not specify the quantity of discount to be applied for his plea of guilty, and that the sentence was excessive. The appellant also submitted that his depression at the time of the offence should have been taken into account in sentencing.

The legal issues before the court were whether the failure of the sentencing judge to state the quantity of the discount for the plea of guilty constituted an appealable error, and whether the appellant's depression at the time of the offence was relevant to his sentence. The court also needed to consider whether the sentence of eight years' imprisonment was excessive, and whether the sentence for the possession of cocaine should be concurrent with the sentence for the heroin offence.

The court found that the failure of the sentencing judge to specify the quantity of the discount for the plea of guilty did not constitute an appealable error, as the overall sentence was not affected by the discount. The court also found that the appellant's depression at the time of the offence was relevant to his sentence, but did not warrant a significant reduction in the sentence. The court considered the seriousness of the offences, the appellant's criminal history, and the need to deter and protect the community, and found that the sentence of eight years' imprisonment was not excessive. However, the court considered the totality principle and ordered that the sentence for the possession of cocaine be concurrent with the sentence for the heroin offence, reducing the overall sentence to six years' imprisonment.

The final orders of the court were that the appeal against sentence be dismissed, and that the sentence for the possession of cocaine be concurrent with the sentence for the heroin offence, reducing the overall sentence to six years' imprisonment.

Orders