Duong v WA

(2006) 32 WAR 246; [2006] WASCA 110

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Drug offences
4. › Possession with intent to sell or supply
5. › Methylamphetamine
6. › Whether sentencing judge required to determine precise quantities for personal use, supply and sale
7. › Misuse of Drugs Act 1981 (WA), s 6(1)(a)
1. Criminal Law
2. › Sentencing
3. › Suspended sentences
4. › Proper sentencing process under Sentencing Act 1995 (WA)
5. › Two-step approach
6. › Whether sentencing judge inverted statutory process by first determining term of imprisonment before considering suspension
7. › Whether proper consideration given to suspended sentence
8. › Sentencing Act 1995 (WA), ss 6(4), 39(2), 39(3), 76(1), 76(2)
1. Criminal Law
2. › Sentencing
3. › Appeal against sentence
4. › Whether sentence manifestly excessive
5. › 18 months' immediate imprisonment for possession of 6.739 grams of methylamphetamine with intent to sell or supply

Quick Take

Under the Sentencing Act 1995 (WA), the correct sentencing process for considering suspended imprisonment involves two steps: first, determining the appropriate term of imprisonment (which must be the term that would be imposed if suspension were not appropriate), and second, considering whether to suspend that term having regard to all the circumstances. A sentencing judge does not invert the statutory process by first arriving at the appropriate term before considering suspension. The considerations applicable to setting the term of imprisonment are again relevant to the issue of suspension and must not be confined to rehabilitation or mercy. A sentencing judge is not required to determine precise drug quantities for personal use, supply and sale where there is no proper evidential foundation for such findings.