Criminal law and procedure - Sentencing - Possession of 53.9 grams of methylamphetamine with intent to sell or supply and possession of 0.1 gram of methylamphetamine - Conviction on plea of guilty to both counts - Aggregate sentence of 6 years and 8 months - Whether sentence manifestly excessive - Whether adequate discount given for guilty plea - Lateness of plea - Mitigating factors

Words and phrases - "Intent to sell or supply" - Whether plea of guilty amounts to admission that the whole of the quantity was intended for sale or supply - Burden of proof - Whether sentencing Judge required to make a finding as to portion of drug intended for sale or supply

Legislation:

Criminal Code (WA), s 217A

Customs Act 1901 (Cth), s 233B(1)(ca)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(2), s 11

Sentencing Act 1995 (WA), s 15

Result:

Application for leave to appeal allowed
Appeal dismissed

Category: A

Representation:

Counsel:

Applicant: Mr S A Shirrefs
Respondent: Mr K P Bates

Solicitors:

Applicant: Amidzic & Co
Respondent: State Director of Public Prosecutions

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

Bellissimo (1996) 84 A Crim R 465
Collins (1993) 67 A Crim R 104
Grimwood v The Queen [2002] WASCA 135
Henry (1999) 106 A Crim R 149
Langridge v The Queen (1996) 17 WAR 346
Maxwell v The Queen (1996) 184 CLR 501
R v Aloia [1983] WAR 133
R v Broderick (1994) 15 Cr App R (S) 476
R v De Simoni (1981) 147 CLR 383
R v Hill [1979] VR 311
R v Olbrich (1999) 199 CLR 270
R v Palmer (1994) 15 Cr App R (S) 123
R v Suarez‑Mejia [2002] WASCA 187
R v Terizakis (1986) 41 SASR 252
R v Tolera (1999) 1 Cr App R (S) 25
Sikaloski [2000] WASCA 63
Watson v The Queen [2000] WASCA 119
Wendo v The Queen (1963) 109 CLR 559
Wong v The Queen (2001) 76 ALJR 79

Case(s) also cited:

Brittain v The Queen [2001] WASCA 117
Brittain v The Queen [2001] WASCA 92
Cameron v The Queen (2002) 187 ALR 65
Darwell (1997) 94 A Crim R 35
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Duncan v The Queen (1983) 47 ALR 746
Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 5 August 1994
Legeng v The Queen, unreported; CCA SCt of WA; Library No 950391; 4 August 1995
Lowndes v R (1999) 195 CLR 665
Noonan v The Queen, unreported; CCA SCt of WA; Library No 7818; 4 September 1989
R v Atholwood (1999) 109 A Crim…

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 Marker v The Queen

Details

AGLC: Marker v The Queen [2002] WASCA 282
Case: [2002] WASCA 282
Decision Date: 18 OCTOBER 2002

CaseChat Overview and Summary

In the case of Marker v The Queen, the defendant was convicted of possessing 53.9 grams of methylamphetamine with intent to sell or supply and possessing 0.1 gram of methylamphetamine. The defendant pleaded guilty to both counts, resulting in an aggregate sentence of six years and eight months imprisonment. The defendant appealed against the sentence, arguing it was manifestly excessive and that the court had not adequately considered the discount for the guilty plea, the lateness of the plea, and mitigating factors.

The primary legal issues in this case involved the appropriateness of the sentence given, the discount for the guilty plea, and the interpretation of the phrase "intent to sell or supply." The court was required to determine whether the sentence was manifestly excessive, whether the court had properly accounted for the discount for the guilty plea, and whether the defendant's plea of guilty constituted an admission that the entire quantity of drugs was intended for sale or supply. Additionally, the court had to consider whether the sentencing judge was required to make a specific finding as to the portion of the drug intended for sale or supply.

The court held that the sentence was not manifestly excessive, as the quantity of drugs and the defendant's criminal history justified the sentence. The court found that the sentencing judge had adequately considered the discount for the guilty plea, despite its lateness, and had appropriately taken into account the mitigating factors presented. The court also determined that the plea of guilty did not necessarily amount to an admission that the entire quantity of drugs was intended for sale or supply. Finally, the court held that the sentencing judge was not required to make a specific finding as to the portion of the drug intended for sale or supply, as the primary consideration was the defendant's intent to sell or supply.

The appeal was dismissed, and the sentence was upheld. The court found that the sentence was appropriate given the circumstances of the case, and that the sentencing judge had properly considered all relevant factors in arriving at the sentence.

Orders