Criminal law and procedure - Sentencing - Manufacture of amphetamine - Seriousness of offence - Consideration of mitigating circumstances - Sentences aggregating 6 years imprisonment upheld - Turns on own facts

Legislation:

Nil

Result:

Application for leave to appeal against sentence refused

Representation:

Counsel:

Applicant: Mr D Grace QC
Respondent: Mr M Mischin

Solicitors:

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

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

Bellissimo v R (1996) 84 A Crim R 465
Darwell v R (1997) 94 A Crim R 35
Jarvis v R (1993) 20 WAR 201
Krakouer v R (1996) 16 WAR 1
Pearce v R (1998) 194 CLR 610
Quach v The Queen [1999] WASCA 210
R v GP (1997) 18 WAR 196
R v Newman [1997] 1 VR 146
W (A Child) v The Queen [1999] WASCA 235

Case(s) also cited:

Miles v R (1997) 17 WAR 518
Mill v R (1988) 166 CLR 59
Pelham v R (1995) 82 A Crim R 455
Postiglione v R (1997) 189 CLR 295
R v De Simoni (1981) 147 CLR 383
R v Doyle (1994) 71 A Crim R 360
R v Ireland (1987) 49 NTR 10
R v Pecora [1980] VR 499
R v Rowe (1991) 52 A Crim R 196
Schulz v The Queen, unreported; CCA SCt of WA; Library No 950051; 7 February 1995
Schuster v The Queen, unreported; CCA SCt of WA; Library No 970180; 23 April 1997
Vartzokas v Zanker (1989) 51 SASR 277

PIDGEON J: I would refuse leave to appeal.
I do for the reasons to be published by Murray J with which reasons I am in entire agreement.
MURRAY J: The applicant was on 16 July 1999 presented before O'Brien J in the District Court on an indictment containing five counts, all allegedly committed between 30 September 1998 and 29 October 1998, of manufacturing methylamphetamine, contrary to the Misuse of Drugs Act 1981 (WA), s 6(1)(b). Such an offence is punishable under s 34(1)(a) of the Act by a fine of $100,000 or imprisonment for 25 years, or both. The applicant pleaded guilty. Indeed, it appears he had already done so in the Court of Petty Sessions on the day appointed for the holding of a preliminary hearing and he had been committed to sentence, so although the pleas were not entered at the earliest possible opportunity, they were entered early and in circumstances which, in my view, stood substantially to the credit of the applicant for sentencing purposes.
In addition, the applicant pleaded guilty to three offences which came before the court by way of the notice procedure contained in the Sentencing Act 1995…

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 Lim v The Queen

Details

AGLC: Lim v The Queen [1999] WASCA 296
Case: [1999] WASCA 296
Decision Date: 17 DECEMBER 1999

CaseChat Overview and Summary

In the case of Lim v The Queen, the defendant was convicted of manufacturing amphetamine and appealed against the sentence imposed by the court. The appeal was heard by the High Court of Australia, which had to determine whether the sentence was appropriate given the nature of the offence and the mitigating circumstances presented. The defendant argued that the sentence was excessive and did not take into account the personal circumstances that could have warranted a lesser penalty.

The legal issues before the court were whether the sentence was manifestly excessive and whether the trial judge failed to properly consider the mitigating factors. The court had to assess the seriousness of the offence, which involved the manufacture of a dangerous drug, and weigh it against the personal circumstances of the defendant, including his background and any other relevant factors. The court also had to consider whether the sentence was disproportionate to the crime committed.

The High Court held that the sentence was not manifestly excessive and that the trial judge had appropriately considered the mitigating circumstances. The court found that the manufacture of amphetamine was a serious offence, and the sentence of six years imprisonment was proportionate to the gravity of the crime. The mitigating factors, while acknowledged, did not warrant a significantly lesser sentence. The appeal was dismissed, and the original sentence was upheld.

The final orders of the court were that the appeal against sentence was dismissed and the sentences imposed by the trial judge were affirmed. The defendant was required to serve six years imprisonment for the offence of manufacturing amphetamine.

Orders