Criminal law and procedure - Sentencing - Appeal - Two counts of possession of heroin with intent to sell or supply it to another, one count of possession of cocaine with intent to sell or supply it to another - Early plea of guilty - Assistance to police leading to the conviction of another for an unrelated crime - Sentence of 6 years' imprisonment - Inadequate recognition of mitigating circumstances - Effective sentence reduced to 5 years

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed

Representation:

Counsel:

Applicant: Mr J A Sutherland
Respondent: Mr R E Cock QC

Solicitors:

Applicant: McDonald & Sutherland
Respondent: State Director of Public Prosecutions

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

Pearce v The Queen (1998) 194 CLR 610
R v Cartwright (1989) 17 NSWLR 243
R v Cottrell (1989) 42 A Crim R 31

Case(s) also cited:

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Eyre v The Queen, unreported; CCA SCt of WA; Library No 930149; 18 March 1993
Gasteau v The Queen [1999] WASCA 153
House v The King (1936) 55 CLR 499
La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996
Malvaso v The Queen (1989) 168 CLR 227
Miller v The Queen [1999] WASCA 66
Quach v The Queen [1999] WASCA 210
R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998
R v Manisco (1995) 79 A Crim R 213
R v Weng Keong Chan (1989) 38 A Crim R 337
Verschuren v The Queen (1996) 17 WAR 467

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Anderson J. For the reasons which his Honour gives, I agree that leave to appeal should be granted and the appeal allowed to the extent which his Honour proposes.
WALLWORK J: I agree with the reasons for judgment of Anderson J. There is nothing I could usefully add to those reasons.
ANDERSON J: This is an application for an extension of time within which to appeal against sentence and for leave to appeal against sentence. The applicant was presented in the District Court on 31 May last on an indictment containing three counts, two of possessing heroin with intent to sell or supply and one of possessing cocaine with intent to sell or supply. He was sentenced to an aggregate of 6 years' imprisonment in the form of 6 years on each charge, to be served concurrently.
The applicant had been apprehended in November 1998, whilst driving a motor vehicle. Some 58 grams of heroin was found in the motor vehicle and…

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 "S" v The Queen

Details

AGLC: "S" v The Queen [2000] WASCA 34
Case: [2000] WASCA 34
Decision Date: 28 FEBRUARY 2000

CaseChat Overview and Summary

The appellant was convicted of two counts of possessing heroin with intent to sell or supply, and one count of possessing cocaine with intent to sell or supply. The appellant pleaded guilty early and assisted police in securing the conviction of another individual for an unrelated crime. The court sentenced the appellant to six years in prison. The appellant appealed the sentence, arguing that the court did not adequately recognise several mitigating factors, including the appellant’s guilty plea, cooperation with police, and the fact that the sentence was excessive given the mitigating circumstances.

The central legal issue before the court was whether the original sentence was manifestly excessive, considering the mitigating factors presented. The court had to determine if the sentence was appropriate in light of the appellant's early guilty plea and substantial assistance to law enforcement. The appellant's legal team argued that the sentence did not sufficiently reflect the mitigating circumstances, which warranted a lesser punishment.

The court found that the trial judge did not adequately consider the mitigating factors, particularly the appellant's guilty plea and assistance to police. The court emphasised that the sentence should reflect all the circumstances of the case, including the appellant's cooperation with authorities. Given the undervaluation of these mitigating factors, the court reduced the sentence from six years to five years. This decision acknowledged the importance of recognising the appellant’s actions that went beyond mere participation in the criminal activities.

Orders