Criminal law - Appeal against sentence - Possession of methylamphetamine - Whether total effective sentence of 15 years infringed totality principle - Whether possible to calculate starting point for sentences and whether the starting point too high

Legislation:

Nil

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr S Vandongen SC
Respondent: Mr J A Scholz

Solicitors:

Appellant: Seamus Rafferty
Respondent: Director of Public Prosecutions (WA)

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

Abraham v The State of Western Australia [2014] WASCA 151
Basilio v The State of Western Australia [2010] WASCA 202
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Forkin v The State of Western Australia [2013] WASCA 51
Fragomeni v The State of Western Australia [2011] WASCA 67
Galbraith v The State of Western Australia [2011] WASCA 70
Kitis v The State of Western Australia [2013] WASCA 34
Lai v The State of Western Australia [2012] WASCA 181; (2012) 225 A Crim R 218
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mikulic v The State of Western Australia [2011] WASCA 127
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154
Neumann v The State of Western Australia [2013] WASCA 70
Ozan v The State of Western Australia [2013] WASCA 27
Penney v The State of Western Australia [2011] WASCA 71
Pham v The State of Western Australia [2011] WASCA 244
Rossi v The State of Western Australia [2014] WASCA 189
Ruvinovski v The State of Western Australia [2013] WASCA 204
The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119
Thomas v The State of Western Australia [2014] WASCA 202
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465

MARTIN CJ: This appeal against sentence should be allowed, and the appellant resentenced in the manner proposed by Justice Hall, for the reasons given by his Honour, with which I agree. It will be appropriate for this court to consider in due course, in the context of an appropriate vehicle, the procedure appropriately adopted at the time of sentence in order to give effect to s 9AA of the Sentencing Act 1995 (WA).
MAZZA JA: I respectfully agree with Hall J that this appeal against sentence must be allowed. I also agree with the orders that he proposes. My reasons for doing so may be…

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 Seeto v The State of Western Australia

Details

AGLC: Seeto v The State of Western Australia [2014] WASCA 221
Case: [2014] WASCA 221
Decision Date: 28 NOVEMBER 2014

CaseChat Overview and Summary

The matter before the Court was an appeal by the applicant, Seeto, against his conviction and sentence for possession of methylamphetamine. The applicant was sentenced to a total effective sentence of 15 years. The State of Western Australia was the respondent in this case. The applicant argued that the total effective sentence of 15 years infringed the totality principle, and that the starting point for the sentences was too high. The applicant also argued that it was not possible to calculate the starting point for the sentences.
The Court had to determine whether the total effective sentence of 15 years infringed the totality principle. The Court also had to determine whether it was possible to calculate the starting point for the sentences and whether the starting point was too high.

The Court found that the total effective sentence of 15 years did not infringe the totality principle. The Court held that the totality principle was not engaged in this case because the sentences were not manifestly excessive. The Court also held that it was possible to calculate the starting point for the sentences and that the starting point was not too high. The Court held that the sentences were proportionate to the offending and reflected the seriousness of the applicant's criminal conduct. The Court further held that the applicant's offending warranted a significant period of incarceration to protect the community and deter the applicant and others from engaging in similar criminal conduct.

The Court dismissed the appeal and affirmed the applicant's conviction and sentence. The Court held that the total effective sentence of 15 years was proportionate to the offending and did not infringe the totality principle. The Court also held that it was possible to calculate the starting point for the sentences and that the starting point was not too high. The Court held that the applicant's offending warranted a significant period of incarceration to protect the community and deter the applicant and others from engaging in similar criminal conduct.

Orders