Sinagra-Brisca v The Queen

Case [2004] WASCA 68


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   SINAGRA-BRISCA -v- THE QUEEN [2004] WASCA 68

CORAM:   TEMPLEMAN J

WHEELER J
MCLURE J

HEARD:   4 DECEMBER 2003

DELIVERED          :   7 APRIL 2004

FILE NO/S:   CCA 123 of 2003

BETWEEN:   PAOLO SINAGRA-BRISCA

Applicant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram   :HEALY DCJ

File Number             :  IND 1150 of 2003

Catchwords:

Criminal law - Sentence - Possession of MDMA with intent to sell or supply - Possession of methylamphetamine with intent to sell or supply - "Fast track" plea of guilty - Discount - Declaration a "drug trafficker" - Whether mitigating - "One transaction" rule - Concurrency or cumulation of sentence

Legislation:

Misuse of Drugs Act, s 32A

Result:

Application for leave to appeal allowed
Appeal dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr D Grace QC & Mr L M Levy

Respondent:     Mr R E Cock QC

Solicitors:

Applicant:     Laurie Levy & Associates

Respondent:     State Director of Public Prosecutions

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

Bowman v The Queen (1995) 14 WAR 466

Cardile v The Queen [2003] WASCA 72

Johnson v The Queen [2004] HCA 15

Kirby v The Queen [2003] WASCA 164

Ma v The Queen (2001) 125 A Crim R 349

Mada v The Queen [2003] WASCA 1

Pearce v The Queen (1998) 194 CLR 610

R v Faithfull [2004] WASCA 39

R v Rintel (1991) 3 WAR 527

R v Weldon (2002) 136 A Crim R 55

R v White [2002] WASCA 112

Radebe v The Queen (2001) 122 A Crim R 559

Case(s) also cited:

Cameron v The Queen [2002] WASCA 81

Chua v The Queen [2001] WASCA 353

Jarvis v The Queen (1993) 20 WAR 201

Little v The Queen [2001] WASCA 87

Wong v The Queen (2001) 207 CLR 584

  1. TEMPLEMAN J:  I have had the advantage of reading in draft the reasons to be published by Wheeler J.

  2. I agree, for the reasons given by Wheeler J that although leave to appeal should be granted, the appeal should be dismissed.

  3. WHEELER J:  This is an application for leave to appeal against sentence.  The applicant was charged on indictment with four counts.  All related to the same date.  The offences and relevant facts were as follows.

The Offences and Sentences

  1. Count 1:  that on 8 March 2003 at Myaree the applicant had in his possession a prohibited drug (MDMA) with intent to sell or supply.  Two other persons went to the applicant's home in Mount Pleasant, the three of them then meeting a female who arranged to supply a quantity of MDMA (ecstasy) tablets.  The four offenders then went to a motel in Rockingham in three separate vehicles.  A large quantity of ecstasy tablets were purchased.  The drugs were placed in the vehicle of one of the applicant's associates and he and the other man followed that vehicle.  Police intercepted the vehicle carrying the drugs at the…

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Sinagra-Brisca v The Queen [2004] WASCA 68
Case
[2004] WASCA 68
Decision Date

CaseChat Overview and Summary

The case of Sinagra-Brisca v The Queen involved the defendant, Sinagra-Brisca, who was charged with possession of MDMA with intent to sell or supply, and possession of methylamphetamine with intent to sell or supply. The defendant entered a plea of guilty under the "fast track" provisions, which typically results in a discount on the sentence. The trial judge, however, decided not to apply the discount, and also declared the defendant to be a "drug trafficker." Sinagra-Brisca appealed the sentence on the grounds that the trial judge's decision not to apply the "fast track" discount was incorrect and that the declaration of being a "drug trafficker" was not a mitigating factor warranting a lower sentence.

The primary legal issues that the court had to address were whether the trial judge was correct in not applying the "fast track" discount, and if the declaration of being a "drug trafficker" was a mitigating factor that should have been considered in the sentencing process. Additionally, the court considered whether the sentences for possession with intent to sell or supply MDMA and methylamphetamine should run concurrently or cumulatively.

In determining the appeal, the court held that the trial judge was correct in not applying the "fast track" discount as the circumstances did not warrant a reduction in sentence. The court found that the declaration of being a "drug trafficker" was not a mitigating factor but rather a description of the defendant's criminal activity, and therefore did not warrant a reduction in the sentence. Furthermore, the court concluded that the sentences for possession with intent to sell or supply MDMA and methylamphetamine should run concurrently, as they were part of a single course of criminal conduct. The appeal was ultimately dismissed, and the original sentence was upheld.

The court's final orders were that the appeal be dismissed and the original sentence of imprisonment for the defendant be upheld. The sentences for possession with intent to sell or supply MDMA and methylamphetamine were to run concurrently, and the declaration of being a "drug trafficker" was not considered a mitigating factor in the sentencing process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHEELER J

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Ratio Decidendi

Legal Principle Established

Established by: WHEELER J

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