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Italiano vs. The State Of Western Australia - (27 Jul 2020)

Court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed

Criminal

Present is an appeal against sentence. The Appellant was charged on indictment with two counts: (a) On 1 March 2018, at Margaret River, the Appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to Section 6(1)(a) of the Misuse of Drugs Act, 1981 (the MD Act); and (b) On 18 June 2018, at West Busselton, the Appellant made a threat unlawfully to kill Sarah-Jayne Wilkerson, contrary to Section 338B(a) of the Criminal Code (WA). The Appellant pleaded guilty to both charges. The Court sentenced him for 4 years 3 months’ immediate imprisonment for count 1 and 6 months’ immediate imprisonment for count 2. The sentence for count 2 would have been 12 months’ immediate imprisonment, but was reduced by her Honour in the application of the totality principle. The individual sentences were ordered to be served cumulatively. The total effective sentence was therefore 4 years 9 months’ immediate imprisonment.

The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant.

The Appellant's offending was serious. It involved the possession, with intent to sell or supply, of 11.7 g of methylamphetamine with a high degree of purity. The Appellant was a dealer as well as a user of the drug. The Appellant was selling methylamphetamine for commercial gain. Dealers in methylamphetamine who are also addicted to the drug are not treated more leniently merely because the motive for their dealing is wholly or in part the need for money to finance their addiction. The possession of methylamphetamine with intent to sell or supply for the purpose of financing an addiction or reducing a drug debt is not mitigatory.

Section 31(3) of the Criminal Appeals Act provides that, unless under Section 31(4), present Court allows an appeal against sentence, present Court must dismiss the appeal. By Section 31(4)(a), this Court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed.

After taking into account the maximum penalty for the offence; the facts and circumstances of the offending; the seriousness of the offending; the general standards of sentencing revealed by prior cases with at least some features comparable to the Appellant's offending; the plea of guilty; and all other relevant sentencing factors including the appellant's personal circumstances and antecedents, present Court exercises the sentencing discretion afresh in relation to count 1 by imposing a sentence of 3 years' immediate imprisonment.

A review of previous sentencing dispositions in relation to the offence of threatening unlawfully to kill reveals that, there are significant variations in the facts and circumstances of each offending and offender. The sentence to be imposed in each case depends on the particular facts and circumstances of the offence, having regard to the maximum penalty, the seriousness of the offence, the personal circumstances and antecedents of the offender and all other relevant sentencing factors. The sentencing discretion exercised afresh in relation to count 2 by imposing a sentence of 1 year 4 months' immediate imprisonment.

The new total effective sentence is therefore 4 years 4 months' immediate imprisonment. The new total effective sentence should be taken to have taken effect on 17th July 2018. The Appellant will be eligible to be considered for release on parole when he has served 2 years 4 months in custody calculated from 17 July 2018.

Tags : CONVICTION   SENTENCE   LEGALITY  

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