Ness v The State of Western Australia [No 2]

The appellant, Ness, appealed against his sentence for possessing heroin with intent to sell or supply, a very small quantity. The appeal was heard in the Supreme Court of Western Australia. The case involved the question of whether the sentence imposed was manifestly excessive given the nature of the offence and the appellant's circumstances. Ness, who had a history of drug dealing, was apprehended with a minimal quantity of heroin, leading to a sentence that he deemed disproportionately severe.

The court was required to determine whether the sentence was manifestly excessive and if the trial judge had failed to appropriately weigh the relevant factors in sentencing. The appeal hinged on whether the trial judge had appropriately balanced the appellant's criminal history and the minimal amount of heroin involved against the need for deterrence and denunciation. The court had to consider whether the sentence imposed was so disproportionate to the offence that it shocked the conscience of the court.

The court found that the sentence was indeed manifestly excessive. It held that the trial judge had failed to adequately consider the minimal quantity of heroin and the appellant's low-level role in the drug trade. The court concluded that the sentence did not appropriately reflect the relative seriousness of the offence and the appellant's position as a minor player in the drug market. The appeal was allowed, and the case was remitted to the Magistrates Court for resentencing.