Kirby v The Queen

Case [2003] WASCA 164


KIRBY -v- THE QUEEN [2003] WASCA 164



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2003] WASCA 164
COURT OF CRIMINAL APPEAL
Case No:CCA:186/20023 JUNE 2003
Coram:MURRAY J
WHEELER J
ROBERTS-SMITH J
31/07/03
54Judgment Part:1 of 1
Result: Leave granted, Appeal dismissed
A
PDF Version
Parties:LENNARD MARK KIRBY
THE QUEEN

Catchwords:

Criminal law and procedure
Appeal against sentence
Parole eligibility
Fixed terms ordered to be served partly cumulatively
Whether non-parole periods to be aggregated
Calculation of terms
Sentences recalled and corrected by sentencing Judge
Effect of orders
Criminal law and procedure
Sentence
Drug offences
4.85 gm of cocaine of 24 per cent purity
3.168 kg methylamphetamine of 9
10 per cent purity
Sentences of 4 years imprisonment and 9 years imprisonment to be served partly cumulatively
Doubt over effect of sentencing orders
Whether sentences manifestly excessive
Criminal law and procedure
Sentence
Drug offence
Property freezing notices
Effect of declaration that applicant a drug trafficker
Confiscation of all property owned or given away by the applicant
Obligation to put material before court
Relevant factor in exercise of sentencing discretion
Criminal law
Appeal
Sentence
Section 689 Criminal Code
Whether different sentence should have been passed
"Whether more or less severe"
Whether sentence should be increased on appeal by convicted person

Legislation:

Criminal Code (WA), s 689
Criminal Property Confiscation Act 2000 (WA), s 8(1)
Misuse of Drugs Act 1981 (WA), s 32A
Sentencing Act 1995 (WA), s 37, s 88, s 89, s 93, s 94
Sentence Administration Act 1995 (WA), s 7, s 8

Case References:

Anglesey v The Queen [2002] WASCA 194
Archibald (1989) 40 A Crim R 228
Bellissimo (1996) 84 A Crim R 465
Brazier v The Queen [2002] WASCA 278
Brazier v The Queen [2002] WASCA 314
Cabassi v The Queen [2000] WASCA 305
Dinsdale v The Queen (2000) 202 CLR 321
Dodd v The Queen [2002] WASCA 55
Downey v The Queen [2003] WASC 129
Fursman v The Queen, unreported; CCA SCt of WA; Library No 7414; 5 December 1988
Grimwood v The Queen [2002] WASCA 135
Herbert v The Queen [2003] WASCA 61
Hintz v The Queen [2002] WASCA 38
Jarvis v The Queen (1993) 20 WAR 201
Kezkiropoulos v The Queen [2002] WASCA 352
Koushappis v The Queen, unreported; CCA SCt of WA; Library No 950729; 6 December 1995
Mada v The Queen [2003] WASCA 1
Marker v The Queen [2002] WASCA 282
Mill v The Queen (1988) 166 CLR 59
Pinkstone v The Queen [2003] WASCA 66
Postiglione v The Queen (1997) 189 CLR 295
R v Duff & Ors [1999] WASC 124
R v Gisbourne, unreported; CA; 14 March 1977
R v Hafner [2002] WASCA 211
R v Olbrich (1999) 199 CLR 270
R v Pallister (2002) 131 A Crim R 460
R v Rossi (1988) 142 LSJS 451
R v Votano [2000] WASCA 144
Reppucci (1994) 74 A Crim R 353
Stanton v The Queen, unreported; CCA SCt…

Continue reading Kirby v The Queen

Sign in free to access the full text

Details
AGLC
Kirby v The Queen [2003] WASCA 164
Case
[2003] WASCA 164
Decision Date

CaseChat Overview and Summary

The appeal in Kirby v The Queen involved the appellant, who had been convicted of drug offences and sentenced to imprisonment. The central issue before the court was the calculation and aggregation of the non-parole periods of the sentences, as well as the legality and fairness of the sentences imposed. The appellant argued that the sentences were manifestly excessive and that the non-parole periods should not have been aggregated. The appellant further contested the effect of the property freezing notices and the confiscation of his property, claiming it influenced the sentencing process unfairly.

The court addressed the issue of whether the non-parole periods of the sentences should be aggregated and considered whether the sentences were manifestly excessive. It examined the proper interpretation of the sentencing orders and the effect of the recall and correction of those orders by the sentencing judge. Additionally, the court evaluated the impact of the declaration that the appellant was a drug trafficker on the confiscation of his property and whether this was a relevant factor in the sentencing discretion. The court also considered whether the sentence should be increased on appeal under section 689 of the Criminal Code.

After thorough examination, the court concluded that the sentences were not manifestly excessive and that the non-parole periods should be aggregated as ordered. The court found that the confiscation of the appellant's property and the declaration that he was a drug trafficker were relevant factors in the sentencing process and did not render the sentences unlawful. Consequently, the appeal was dismissed, and the original sentences were upheld. The orders of the court were to grant leave to appeal but ultimately dismiss the appeal.

Orders

Orders of the court

Leave granted, Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.