Wood v The Queen - [2003] WASCA 16

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: WOOD -v- THE QUEEN [2003] WASCA 16

CORAM: MALCOLM CJ
MURRAY J
MILLER J

HEARD: 6 FEBRUARY 2003

DELIVERED : 6 FEBRUARY 2003

PUBLISHED : 20 FEBRUARY 2003

FILE NO/S: CCA 105 of 2002

BETWEEN: EDWARD KEVIN WOOD
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal Law and Procedure - Sentencing - Aggregate term of 91/2 years imprisonment imposed for a series of drug offences committed on two dates - Extent to which they should be ordered to be served cumulatively - Aggregate term reduced to 71/2 years imprisonment - Turns on own facts.

Legislation:

Criminal Code (WA), s 557

Misuse of Drugs Act 1981 (WA), s 34(2)(a)

Result:

Leave granted, appeal allowed, sentences varied

Category: B

Representation:

Counsel:

Applicant: Mr P J Hogan
Respondent: Mr S E Stone

Solicitors:

Applicant: Andree Horrigan
Respondent: State Director of Public Prosecutions

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

Cameron v The Queen (2002) 76 ALJR 382
R v Bellissimo (1996) 84 A Crim R 465
R v White [2002] WASCA 112

Case(s) also cited:

Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152C; 29 March 1999
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Maniaci v The Queen [2000] WASCA 195
Mill v The Queen (1988) 166 CLR 59
Quach v The Queen [1999] WASCA 210
R v Chick (2000) 114 A Crim R 417
R v Grein [1989] WAR 178
R v Pop (2000) 116 A Crim R 398
R v Ruich [2000] WASCA 84
Webb v The Queen, unreported; CCA SCt of WA; Library No 980257; 4 May 1998

JUDGMENT OF THE COURT: On 7 October 2000 the applicant's home was searched under warrant. In a shed at the rear of the property almost 160 grams of methylamphetamine were located in various lots with different degrees of purity. In addition the police found a quantity of ketamine tablets weighing 14.6 grams with a purity of 18 per cent. In various containers in the shed they also located nearly a kilogram and a half of cannabis leaf material. In addition, they found snap‑lock bags, electronic scales and a total of $16,085 in cash.
The applicant was charged with three offences, all committed on 7 October 2000: possession of methylamphetamine, ketamine and cannabis, in each case with intent to sell or supply. The offence of particular interest in the context of the present appeal is the offence of possession of the cannabis with intent to sell or supply, an offence punishable under the Misuse of Drugs Act 1981 (WA), s 34(2)(a) by a fine of $20,000 or imprisonment for 10 years or both.
Eight months later, on 3 May, the police returned and again searched the applicant's home under warrant. In the same shed they found a smaller amount of just over 36 grams of methylamphetamine in various places in the shed. There were quantities from small…

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 Wood v The Queen

Details

AGLC: Wood v The Queen [2003] WASCA 16
Case: [2003] WASCA 16
Decision Date: 20 FEBRUARY 2003

CaseChat Overview and Summary

Wood was sentenced for a series of drug offences committed on two different dates. The case was heard in the Supreme Court of Western Australia. The primary legal issue was whether the sentences for the offences committed on different dates should be served cumulatively or concurrently. The court had to balance the severity of the crimes, the applicant's history of reoffending, and the mitigating factors such as the late guilty pleas.

The court examined the nature and extent of the offences, noting the significant quantities of drugs and cash found during the searches. It considered the applicant's history of drug-related offences and the fact that some of the crimes were committed while the applicant was on bail. Despite the late guilty pleas, the court recognised some credit for these admissions, as there was no realistic defence to the charges. The sentencing judge applied a minimal discount for the guilty pleas but emphasised the recidivist nature of the crimes.

In its judgment, the court reduced the aggregate term of imprisonment from 9½ years to 7½ years, recognising the need for a sentence that reflected both the seriousness of the crimes and the mitigating factors. The decision underscored the importance of considering the totality of the circumstances, including the applicant's criminal history and the nature of the offences, in determining an appropriate sentence.

The final order of the court was that the applicant's sentence would be reduced to 7½ years of imprisonment, to be served concurrently where possible.

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

MURRAY J

JUDGMENT OF THE COURT: On 7 October 2000 the applicant's home was searched under warrant. In a shed at the rear of the property almost 160 grams of methylamphetamine were located in various lots with different degrees of purity. In addition the police found a quantity of ketamine tablets weighing 14.6 grams with a purity of 18 per cent. In various containers in the shed they also located nearly a kilogram and a half of cannabis leaf material. In addition, they found snap‑lock bags, electronic scales and a total of $16,085 in cash. The applicant was charged with three offences, all committed on 7 October 2000: possession of methylamphetamine, ketamine and cannabis, in each case with intent to sell or supply. The offence of particular interest in the context of the present appeal is the offence of possession of the cannabis with intent to sell or supply, an offence punishable under the Misuse of Drugs Act 1981 (WA), s 34(2)(a) by a fine of $20,000 or imprisonment for 10 years or both. Eight months later, on 3 May, the police returned and again searched the applicant's home under warrant. In the same shed they found a smaller amount of just over 36 grams of methylamphetamine in various places in the shed. There were quantities from small traces to much larger amounts and of varying degrees of purity. Again, they found snap‑lock bags, a quantity of Epsom salts, three sets of scales, one set of which had traces of methylamphetamine on them, and a coffee grinder bearing traces of methylamphetamine. Again, they found a large amount of cash, $34,011, in two separate amounts. In addition, they found a stick of explosive Powergel and a detonator. On this occasion, the applicant, who was on bail, was charged with two offences: possession of the methylamphetamine with intent to sell or supply and possession of an explosive substance in suspicious circumstances, an offence against the Criminal Code (WA),s 557. The applicant was to plead not guilty and go to trial on indictment in the District Court. The trial dates were fixed for 11, 22 and 29 April. On 8 April 2002 the applicant pleaded guilty to all the offences. The learned sentencing judge described these late pleas as not showing any real remorse or any real degree of acceptance of responsibility or willingness to facilitate the course of justice. As her Honour put it, the commission of the offences was proved conclusively by the execution of the search warrants, a process which was videotaped. Her Honour observed that there really could have been no defence to the charges. Nonetheless, she said, quite appropriately, that the applicant deserved some credit for the pleas: cfCameron v The Queen (2002) 76 ALJR 382. The sentencing judge said that she would apply, "a minimal discount". As to the criminality involved in the commission of the offences, again it seems to us that her Honour's assessment was expressed in appropriate terms. She noted that they were recidivist offences and, of course, the second group of offences were committed while on bail. The applicant has a history of prior offending dating from 1976, including a number of prior convictions for the cultivation and possession of cannabis.

Ratio Decidendi

Legal Principle Established

Established by: MURRAY J

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