Case note
Sentence reduced by 20 months on appeal
A starting point beyond range for a low-level street dealer, and a two-year firearm uplift halved.
- Court
- High Court
- Counsel
- G Duff; F Choi appeared
- Charges
- Possession of methamphetamine for supplyUnlawful possession of a firearmUnlawful possession of ammunition (two charges)Driving whilst disqualified, third or subsequent (two charges)Possession of a knifeReceiving (over $1,000)
- Outcome
- Appeal allowed: 26 months' imprisonment instead of three years and ten months
What happened
The appellant was sentenced in the District Court to three years and ten months' imprisonment. The lead charge was possession of methamphetamine for supply. Police searched him and his car on arrest and found 47 grams at 43 per cent purity, 0.4 grams at 80 per cent, scales, and two pipes. Adjusted for purity, the agreed summary of facts put the quantity at 20.6 grams. Earlier, a firearm loaded with one round had been found in his car, parked behind a courthouse. The Judge took a starting point of three years for the methamphetamine, added two years for the firearm, 12 months for receiving a stolen motorcycle, and six months for the driving charges, then allowed 40 per cent off.
The point worth pausing on
The High Court found the three-year starting point beyond the available range. He was a relatively small, low-level street dealer with an undisputed addiction, and there was no cash and no record of dealing. In the comparable cases, one a Court of Appeal decision on almost twice the quantity, no starting point went above two years and nine months. The Court adopted two years and six months. It accepted that the purity adjustment may have been miscalculated, and that the correct figure may be about 33 grams. But he had pleaded guilty on the agreed summary, so the appeal was decided on 20.6 grams. Even at 33 grams, the Court said, three years would have been excessive.
The firearm uplift fell too. The Court found two years too high for an offence with a four-year maximum, and substituted 12 months. There was no evidence for the Judge's reliance on suspected gang connections. The ammunition charges carry only a fine, so the concurrent 24-month sentences on them were quashed. The discounts stood. The end sentence became 26 months' imprisonment.
A starting point beyond the range the comparable cases set is a material error, and a sentence appeal is decided on the agreed facts.