Vogel v The Queen
[2002] WASCA 261
•20 SEPTEMBER 2002
VOGEL -v- THE QUEEN [2002] WASCA 261
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 261 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:95/2002 | 5 SEPTEMBER 2002 | |
| Coram: | MURRAY J WHEELER J BURCHETT AUJ | 20/09/02 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal against sentence dismissed | ||
| B | |||
| PDF Version |
| Parties: | PETER EDMUND VOGEL THE QUEEN |
Catchwords: | Criminal law Sentence Possession methylamphetamine with intent to sell or supply Sentence upheld |
Legislation: | Nil |
Case References: | Bellissimo v R (1996) 84 A Crim R 465 Darwell v R (1997) 94 A Crim R 35 Watt v R [2000] WASCA 354 Jacobs v R (2001) 124 A Crim R 115 Lowndes v R (1999) 195 CLR 665 Tsagaris v R, unreported; CCA SCt of WA; Library No 980721; 14 December 1998 Van De Aar v R (2001) 124 A Crim R 115 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : VOGEL -v- THE QUEEN [2002] WASCA 261 CORAM : MURRAY J
- WHEELER J
BURCHETT AUJ
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentence - Possession methylamphetamine with intent to sell or supply - Sentence upheld
Legislation:
Nil
Result:
Application for leave to appeal against sentence dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr R W Cannon
Respondent : Mr K M Tavener
Solicitors:
Applicant : R W Cannon
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bellissimo v R (1996) 84 A Crim R 465
Darwell v R (1997) 94 A Crim R 35
Watt v R [2000] WASCA 354
Case(s) also cited:
Jacobs v R (2001) 124 A Crim R 115
Lowndes v R (1999) 195 CLR 665
Tsagaris v R, unreported; CCA SCt of WA; Library No 980721; 14 December 1998
Van De Aar v R (2001) 124 A Crim R 115
(Page 3)
1 MURRAY J: I agree with Wheeler J that, for the reasons given by her Honour, leave to appeal should be refused in this case.
2 WHEELER J: On 15 May 2002 this applicant was sentenced to 3 years' imprisonment with eligibility for parole in respect of one count of possession of methylamphetamine with intent to sell or supply. The maximum penalty for such an offence is 25 years' imprisonment and/or $100,000 fine.
3 The circumstances of the offence were that early on the morning of 12 November 2000 the applicant was at the East Perth lockup, having been arrested as a result of an incident outside a nightclub. He was searched there and found to have in his possession two packets of white powder, one packet being found in his wallet and the other in his pocket. One contained 3.8 grams of methylamphetamine of 11 per cent purity and the other 2.86 grams of 37 per cent purity. He also had a little over $1,850 in his possession.
4 The applicant said that he had come to Perth from Sydney, as was the case. He said that he had come for a holiday with two other friends to see another friend whose wife was having a baby. He said that he was very intoxicated in the nightclub and had been offered what he thought were "party drugs", and purchased them for approximately $100 intending to use them himself.
5 The evidence at trial was to the effect that "street level" amphetamine was generally of the order of 5 per cent purity or less; although there was a range of purity it could confidently be said that it was generally under 10 per cent. The 11 per cent purity was therefore somewhat over the level of purity that would be expected in amphetamines which had been bought by a casual user at the lowest level of distribution. The 37 per cent purity amphetamine was described however as "very very rare at street level". The evidence was also that amphetamine was not generally sold in grams but in "street grams" which were of the order of 0.7 of a gram. When it was used it was used in "points"; that is, roughly 0.1 of a gram, which was enough for a syringe full of the substance, at a time. A casual user would use a "point" on perhaps a few occasions during the course of a week, while a very heavy user may use two points at a time, a number of times during the day. It can be seen then that if diluted to a little over 9 per cent purity, the 2.86 grams would yield something of the order of 16 "street grams" each of which in turn would represent between two and seven individual occasions of use of the drug.
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6 As the applicant maintained at his trial that he had not intended to sell or supply the drug to anyone, but had merely purchased it impulsively for his own use, not really appreciating precisely what it was, his Honour was required when sentencing him to form a view of his intentions, if possible, by drawing inferences from the evidence. His Honour was able to form his own view of the relevant facts, provided that the view so formed was consistent with the verdict of the jury and that adverse findings were made only if established beyond reasonable doubt. His Honour formed the view that the quantity of methylamphetamine in this case and its degree of purity led him to the conclusion that the drug would have been diluted before being distributed to the ultimate users. He noted that the two bags were in different locations, indicating that they were to be dealt with differently. His Honour also noted that the applicant had a significant amount of cash on him and that the drug trade was notoriously a cash trade. It is unfortunately not clear whether his Honour was indicating a view that the cash was for the purpose of purchasing amphetamine for distribution, or was the result of some earlier sales, but the latter seems probably his view.
7 His Honour then formed the view that the nature of the drugs and the added factor of the cash led him to the conclusion that the applicant's position was "very similar to that of Watt". The significance of that finding was that his Honour had earlier referred to the case of Watt v R [2000] WASCA 354, and had described the offender in that case as "a dealer in the drug for commercial gain". In Watt's case the drug was found already packaged in separate street grams but was of 18 to 22 per cent purity, indicating that it would be further diluted before sale to the ultimate user. It follows from his Honour's remarks that he found that the applicant was a dealer in the drug who was either himself proposing to further dilute the drug which he had for distribution to a number of persons, or was proposing to pass those packages to some other person for further dilution and distribution. The finding in my view is one which was clearly open, having regard to the existence of two separate packets of differing degrees of purity, one of which was of a relatively high degree of purity, and having regard also to the evidence which had been given about the way in which this drug is normally distributed and used.
8 Having regard to the finding which his Honour made about the culpability of the applicant, it is clear that a sentence of imprisonment was
(Page 5)
- called for. This Court has now noted on a number of occasions that methylamphetamine is regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs: Darwell v R (1997) 94 A Crim R 35. The major sentencing considerations in relation to offences of this kind are general and personal deterrence, and there has been a "firming up" of sentences in this area in the last 5 years or so, based upon the view taken by the courts that sentences imposed in the past do not seem to have been an adequate deterrent: Bellissimo v R (1996) 84 A Crim R 465.
9 There were significant personal factors in the applicant's favour. He was of previous good character, was employed, had favourable references, and had no significant criminal history. Although clearly old enough to know better, he was a relatively young man. The learned sentencing Judge also considered that it was possible that the applicant may have used some portion of the drugs in his possession for his own use, so that he did not take the view that all of the drug was for the purpose of distribution. In my view, those factors were adequately taken into account in the imposition of a sentence of 3 years' imprisonment.
10 It was argued that his Honour had been led into error by too closely following the case of Watt, when the facts of this case were significantly different. However, the sentence imposed in Watt's case was one of 4 years, and it seems to me that both the sentence actually imposed by his Honour in this case, and a fair reading of his Honour's sentencing remarks, suggest that his Honour had regard to Watt as a case which afforded useful guidance in so far as it referred to a number of considerations relevant to sentence in relation to an offence of this type.
11 It is my view that the application for leave to appeal against sentence should be dismissed.
12 BURCHETT AUJ: I agree that the order proposed by Wheeler J should be made, for the reasons her Honour has stated.
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