O'malley vs. The State of Western Australia - (14 Jan 2021)

For offences of dealing or trafficking in dangerous drugs, the major sentencing considerations are general and personal deterrence

Criminal

The Appellant was charged on indictment in the District Court on basis that, he 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 (WA). The offence involved a total of 26.49 g of methylamphetamine with a purity of 78%. The maximum penalty for the offence is 25 years' imprisonment and/or a fine of $100,000. On 17 August 2020, the Appellant was convicted of the charge on his plea of guilty. The Appellant was sentenced. A sentence of 3 years 6 months' immediate imprisonment with eligibility for parole was imposed. The Appellant seeks leave to appeal against the sentence imposed on the sole ground that, it is manifestly excessive.

The general principles governing appeals which, as in this case, allege inferred error on the basis that an individual sentence is manifestly excessive or that a total effective sentence infringes the totality principle are well established. It is also well established that, for offences of dealing or trafficking in dangerous drugs such as methylamphetamine, the major sentencing considerations are general and personal deterrence.

It is not reasonably arguable that, the sentence of 3 years 6 months' immediate imprisonment was unreasonable or plainly unjust. The Appellant travelled to Perth where he purchased a substantial quantity of methylamphetamine for $4,800 with the intention of transporting it back to Geraldton where he and the co-purchasers resided. The offence involved planning and organisation. It cannot be overlooked that the Appellant intended to supply to each of his co-purchasers approximately 8.3 g of methylamphetamine. There remained a real risk that the drugs supplied to the co-purchasers would be further supplied into the community. Even if the methylamphetamine was to be used by the co-purchasers themselves, the drug's deleterious effect posed a significant risk to the health of the co-purchasers and potentially a risk to the public, given the negative effect methylamphetamine has on the behaviour of many who consume it. Moreover, it cannot be said that the Sppellant did not obtain some commercial benefit for what he did. The maximum penalty for the offence committed by the appellant is 25 years' imprisonment and/or a fine of $100,000. The maximum penalty applies even if the appellant possessed the methylamphetamine with an intent only to supply the drug to another.

In view of maximum penalty, the standards of sentencing customarily imposed, the serious circumstances of the offence, the Appellant's personal circumstances and the mitigating factors, most significantly the plea of guilty, it cannot reasonably be inferred that, the sentencing judge erred in imposing a sentence of 3 years 6 months' immediate imprisonment. The sentence that was imposed, having regard to all of the relevant circumstances, was commensurate with the seriousness of the offence. Appeal dismissed.

Tags : QUANTUM SENTENCE LEGALITY