KIRBY -v- THE QUEEN [2003] WASCA 164
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 164 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:186/2002 | 3 JUNE 2003 | |
| Coram: | MURRAY J WHEELER J ROBERTS-SMITH J | 31/07/03 | |
| 54 | Judgment 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… |
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- [2003] WASCA 164
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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.
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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