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
TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by Wheeler J.
I agree, for the reasons given by Wheeler J that although leave to appeal should be granted, the appeal should be dismissed.
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
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…
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.
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AGLC
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.