Sentencing - Two counts of supplying MDMA (ecstasy) and one count of possessing MDMA with intent to sell or supply - Aggregate sentence of 7 years - Whether individual sentences manifestly excessive - Whether aggregate sentence offended totality principle - Sentence of 7 years not disturbed - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T F Percy QC & Mr J A Davies
Respondent: Ms L D O'Connor

Solicitors:

Appellant: Andrew Maughan
Respondent: Director of Public Prosecutions (WA)

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

Bosworth v The State of Western Australia [2007] WASCA 144
Colangelo v The State of Western Australia [2004] WASCA 294
Delovski v The Queen [2002] WASCA 88
Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Mill v The Queen (1988) 166 CLR 59
Olomi v The Queen [2004] WASCA 304
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Samuels v The State of Western Australia (No 2) [2006] WASCA 222
The State of Western Australia v Andela [2006] WASCA 77
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Watson v The Queen [2000] WASCA 119

OWEN JA: This is an application for leave to appeal against sentences imposed on the applicant in the District Court. The applicant was convicted after a jury trial of offences of supplying and possessing prohibited drugs contrary to s 6(1)(a) and s 6(1)(c) of the Misuse of Drugs Act 1981 (WA).

Background

On 22 October 2004, the applicant supplied 198 MDMA (ecstasy) tablets to Daniel Simic, who was later tried with him as his co‑offender. The tablets weighed 55.26 grams and their purity was determined at between 32 and 38%. The estimated street value of the tablets was $9,900. These tablets formed the subject of count 1 of the indictment. Simic was found guilty of possession of the tablets (count 2 of the indictment), and sentenced to 2 years and 8 months' imprisonment.
On 9 December 2004 the applicant supplied 199 MDMA tablets to Kyle Happe. The total weight of the tablets was 54.9 grams and their purity was determined to be 37%. The estimated street value was $9,950. These tablets were the subject of count 3 of the indictment. Happe was searched by police at Perth Train Station where the tablets were…

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 Ziino v The State of Western Australia

Details

AGLC: Ziino v The State of Western Australia [2007] WASCA 222
Case: [2007] WASCA 222
Decision Date: 23 OCTOBER 2007

CaseChat Overview and Summary

In the case of Ziino v The State of Western Australia, the appellant, Ziino, sought to appeal against his conviction and sentence for two counts of supplying MDMA (commonly known as ecstasy) and one count of possessing MDMA with intent to sell or supply. The appeal was heard by the Western Australian Court of Appeal. Ziino was sentenced to a total of seven years in prison, which he argued was excessive and violated the principles of sentencing.

The primary legal issues the court had to address were whether each of the individual sentences was manifestly excessive, and if the aggregate sentence of seven years breached the totality principle. The totality principle in sentencing requires that the combined sentence for multiple offences does not exceed what would be appropriate for the most serious offence alone, unless there are exceptional circumstances. Ziino's counsel argued that the sentences were excessive and did not reflect the principles of justice and fairness.

The court, however, found that the aggregate sentence of seven years did not breach the totality principle. The court considered the nature and circumstances of the offences, the appellant's criminal history, and the need for deterrence and denunciation. The court concluded that the sentence was proportionate to the gravity of the offences and the need to protect the community. The appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Ziino v The State of Western Australia [2007] WASCA 222

Most Recent Citation

Bahn v The State of Western Australia [2008] WASCA 40

Cases Citing This Decision

Reid v The State of Western Australia [2012] WASCA 23
Citation 1 (Para 7)

…ly be differences in the circumstances of offenders and offences: Tulloh [46] (McLure J, Murray J concurring); Ziino v The State of Western Australia [2007] WASCA 222; (2007) 177 A Crim R 297 [25] (Owen JA, Wheeler & Miller JJA concurring). However, it is helpful to determine whether a general range of sentences ca…
Moreton v The State of Western Australia [2011] WASCA 258
Citation 2

…ly be differences in the circumstances of offenders and offences: Tulloh [46] (McLure J, Murray J concurring); Ziino v The State of Western Australia [2007] WASCA 222 [25] (Owen JA, Wheeler & Miller JJA concurring). However, it is helpful to determine whether a general range of sentences can be discerned for like o…
Penney v The State of Western Australia [2011] WASCA 71
Citation 3 (Para 3)

…ly be differences in the circumstances of offenders and offences: Tulloh [46] (McLure J, Murray J concurring); Ziino v The State of Western Australia [2007] WASCA 222 [25] (Owen JA, Wheeler & Miller JJA concurring). However, it is helpful to determine whether a general range of sentences can be discerned for like o…
MXP v The State of Western Australia [2010] WASCA 215
Citation 4 (Para 6)

…ly be differences in the circumstances of offenders and offences: Tulloh [46] (McLure J, Murray J concurring); Ziino v The State of Western Australia [2007] WASCA 222 [25] (Owen JA, Wheeler & Miller JJA concurring). However, it is helpful to determine whether a general range of sentences can be discerned for like o…
Tran v The State of Western Australia [2010] WASCA 38
Citation 5 (Para 4)

…d offences: Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [46] (McLure J, Murray J concurring); Ziino v The State of Western Australia [2007] WASCA 222 [25] (Owen JA, Wheeler & Miller JJA concurring). However, it is helpful to determine whether a general range of sentences can be discerned for like o…
Sabau v The State of Western Australia [2010] WASCA 3
Citation 6 (Para 16)

…Other relevant cases include Ziino v The State of Western Australia [2007] WASCA 222; (2007) 177 A Crim R 297; Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49; Cooper v The Queen [2001] WASCA 379; Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R…
The State of Western Australia v Atherton [2009] WASCA 148
Citation 7

…tern Australia [2008] WASCA 144 Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 Ziino v The State of Western Australia [2007] WASCA 222; (2007) 177 A Crim R 297…
Mikulic v The State of Western Australia [2009] WASCA 150
Citation 8 (Para 2)

…ly be differences in the circumstances of offenders and offences: Tulloh [46] (McLure J, Murray J concurring); Ziino v The State of Western Australia [2007] WASCA 222 [25] (Owen JA, Wheeler & Miller JJA concurring). However, it is helpful to determine whether a general range of sentences can be discerned for like o…
The State of Western Australia v Higgins [2008] WASCA 157
Citation 9

…oh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 Vagh v The State of Western Australia [2007] WASCA 17 Ziino v The State of Western Australia [2007] WASCA 222…
Bahn v The State of Western Australia [2008] WASCA 40
Citation 10 (Para 3)

…In Ziino v The State of Western Australia [2007] WASCA 222, the offender was convicted following a trial of a number of offences contrary to the Misuse of Drugs Act 198 , including one count of supplying 198 ecstasy tablets with a total weight of 55.26 g and a purity between 32% and 38% (count 1) and one count of s…

See all citing cases →

Cases Cited

Johnson v The Queen [2018] HCA 48
Citation 1 (Para 1)

…in all the circumstances, just and appropriate: Samuels v The State of Western Australia (No 2) [2006] WASCA 222; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [18] ‑ [20]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 ‑ 308. The question in this appeal is whether an aggregate effective sent…
Reid and Secco [2018] FamCA 95
Citation 2 (Para 2)

…the extent necessary to give effect to the totality principle. The submission is grounded in principles set out in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 623 and Johnson , that a sentencing judge must fix an appropriate sentence for each offence before considering questions of cumulation and concurren…
Bosworth v The State of Western Australia [2007] WASCA 144
Citation 3 (Para 2)

…applicant's personal circumstances, and the sentences customarily imposed for offences of a similar nature: Bosworth v The State of Western Australia [2007] WASCA 144, McLure JA, [10]. In cases of drug dealing, because significant weight is afforded to the purpose of deterrence, lesser weight may be given to matter…
Samuels v The State of Western Australia (No 2) [2006] WASCA 222
Citation 4 (Para 1)

…portionate to the criminality of the offences and is, in all the circumstances, just and appropriate: Samuels v The State of Western Australia (No 2) [2006] WASCA 222; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [18] ‑ [20]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 ‑ 308. The questio…
Colangelo v The State of Western Australia [2004] WASCA 294
Citation 5 (Para 6)

…some six weeks apart meant that the sentences imposed should be cumulative. This approach was adopted in Colangelo v The State of Western Australia [2004] WASCA 294, where the offences were considered to be separate but a continuation of a course of similar conduct of drug dealing (see McKechnie J, [25]). The sente…
Olomi v The State of Western Australia [2004] WASCA 304
Citation 6 (Para 6)

…In the written submissions the applicant drew the court's attention to The State of Western Australia v Andela [2006] WASCA 77, and Olomi v The Queen [2004] WASCA 304. In Andela the offender received a 2 year suspended sentence for possession of a comparable amount of MDMA tablets, which was amended to 18 months' i…
Tulloh v The Queen [2004] WASCA 169
Citation 7 (Para 3)

…tence by comparison with other cases can be of limited utility due to differences in circumstances of both offences and offenders: Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107, McLure J, [46]; Samuels , Roberts‑Smith JA, [64]. A preferable approach is to determine whether a general range of sentence…
Johnson v The Queen [2004] HCA 15
Citation 8 (Para 1)

…ffences and is, in all the circumstances, just and appropriate: Samuels v The State of Western Australia (No 2) [2006] WASCA 222; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [18] ‑ [20]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 ‑ 308. The question in this appeal is whether an aggr…
Delovski v The Queen [2002] WASCA 88
Citation 9 (Para 5)

…In Delovski v The Queen [2002] WASCA 88, an applicant's appeal against a sentence of 9 years for sale of 524 grams of heroin was dismissed. That sentence had already been reduced by 3 years for a plea of guilty. Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19 involved an appeal against a 12 year sentence f…
Watson v The Queen [2000] WASCA 119
Citation 10 (Para 2)

…cause significant weight is afforded to the purpose of deterrence, lesser weight may be given to matters personal to the offender: Watson v The Queen [2000] WASCA 119, Malcolm CJ, [102].…
Pearce v The Queen [1998] HCA 57
Citation 11 (Para 2)

…y concurrent to the extent necessary to give effect to the totality principle. The submission is grounded in principles set out in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 623 and Johnson , that a sentencing judge must fix an appropriate sentence for each offence before considering questions of cumu…
Postiglione v the Queen [1997] HCA 26
Citation 12 (Para 1)

…The State of Western Australia (No 2) [2006] WASCA 222; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [18] ‑ [20]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 ‑ 308. The question in this appeal is whether an aggregate effective sentence of 7 years is just and appropriate in all of the…
Mill v The Queen [1988] HCA 70
Citation 13 (Para 2)

…a sentencing judge must fix an appropriate sentence for each offence before considering questions of cumulation and concurrency: see Mill v The Queen (1988) 166 CLR 59, 63.…

Legislation Cited

Misuse of Drugs Act 1981 (WA)
1 mention (from Para 1)