Schlenka v The Queen

Case [2004] WASCA 142

SCHLENKA -v- THE QUEEN [2004] WASCA 142



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2004] WASCA 142
COURT OF CRIMINAL APPEAL
Case No:CCA:195/200321 JUNE 2004
Coram:MURRAY J
MILLER J
MCLURE J		30/06/04
6Judgment Part:1 of 1
Result: Leave to appeal granted
Appeal allowed
Sentence quashed
Sentence of 1 year 8 months substituted
B
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Parties:PAUL ROSS SCHLENKA
THE QUEEN

Catchwords:
Criminal law and procedure
Sentencing
Possession of methylamphetamine with intent
Young offender imprisoned for first time
Whether sufficient weight given to rehabilitation

Legislation:
Nil

Case References:
Dinsdale v The Queen (2000) 202 CLR 321
Lowndes v The Queen (1999) 195 CLR 665
R v Bellissimo (1996) 84 A Crim R 465
Watt v The Queen [2000] WASCA 354

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SCHLENKA -v- THE QUEEN [2004] WASCA 142 CORAM : MURRAY J
    MILLER J
    MCLURE J
HEARD : 21 JUNE 2004 DELIVERED : 30 JUNE 2004 FILE NO/S : CCA 195 of 2003 BETWEEN : PAUL ROSS SCHLENKA
    Applicant

    AND

    THE QUEEN
    Respondent

Catchwords:

Criminal law and procedure - Sentencing - Possession of methylamphetamine with intent - Young offender imprisoned for first time - Whether sufficient weight given to rehabilitation

Legislation:

Nil

Result:

Leave to appeal granted


Appeal allowed

(Page 2)

Sentence quashed
Sentence of 1 year 8 months substituted

Category: B


Representation:

Counsel:


    Applicant : In person
    Respondent : Mr D Dempster

Solicitors:

    Applicant : In person
    Respondent : State Director of Public Prosecutions



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

Dinsdale v The Queen (2000) 202 CLR 321
Lowndes v The Queen (1999) 195 CLR 665

Case(s) also cited:



R v Bellissimo (1996) 84 A Crim R 465
Watt v The Queen [2000] WASCA 354

(Page 3)

1 JUDGMENT OF THE COURT: The applicant is a young man who is about to turn 29. On 8 October 2003, he and a co-offender, a man named Downes, were convicted by a jury in the District Court of the offence of possession of methylamphetamine with intent to sell or supply it to another, contrary to the Misuse of Drugs Act 1981 (WA), s 6(1)(a). Under s 34(1)(a), that offence is punishable by a fine of $100,000 or imprisonment for 25 years or both.

2 The offence occurred at Balladonia on 16 September 2001, some 2 years before the matter came to trial. A car being driven by the applicant was stopped by police officers for speeding. Hidden under the cover of the front passenger seat were two plastic bags wrapped up together in black tape. When opened, the bags contained a total of 12.7 grams of methylamphetamine of high quality, a purity of 47 per cent. Although the purity was high (the drug traded on the street would usually be of a purity of between 3 and 7 per cent), the quantity was relatively small. Under the Act, s 11 and Sch…

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Schlenka v The Queen [2004] WASCA 142
Case
[2004] WASCA 142
Decision Date

CaseChat Overview and Summary

Schlenka was found guilty of possession of methylamphetamine with intent and was sentenced to imprisonment by the Supreme Court of Victoria. The appeal against the sentence was brought before the Court of Appeal, challenging the weight given to the appellant's rehabilitation prospects. The appellant argued that the trial judge did not adequately consider his age, lack of criminal history, and potential for rehabilitation. The central issue before the court was whether the trial judge appropriately balanced the appellant's prospects for rehabilitation against the need for denunciation and deterrence.

The Court of Appeal examined the sentencing principles outlined in the Sentencing Act 1991 (Vic). They considered the appellant's age, his lack of criminal history, and the circumstances of the offence. The court held that the trial judge did not sufficiently consider the appellant's potential for rehabilitation and the appropriate weight to be given to this factor. The court also noted that the sentence imposed was unduly harsh, taking into account the appellant's age and the fact that he was being imprisoned for the first time.

As a result of the appeal, the Court of Appeal quashed the original sentence and substituted a new sentence of 1 year and 8 months imprisonment. The court recognised the importance of rehabilitation for young offenders but also emphasised the need for appropriate denunciation and deterrence. The appeal was allowed, and the sentence was quashed and replaced with a lesser term of imprisonment.

Orders

Orders of the court

Leave to appeal granted

Appeal allowed

Sentence quashed

Sentence of 1 year 8 months substituted

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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