Where the statutory presumption of intent to sell or supply under s 11(a) of the Misuse of Drugs Act 1981 (WA) applies, the accused bears both an evidentiary and legal onus to disprove intent on the balance of probabilities; a direction that a reasonable doubt suffices for acquittal is erroneous but favourable to the accused and does not occasion a miscarriage of justice. Time spent in custody on unrelated charges prior to trial may be taken into account as a mitigating factor in sentencing under the totality principle, even though s 87 of the Sentencing Act 1995 (WA) does not permit backdating in such circumstances. Section 8(4) of the Sentencing Act requires the court to state the fact of a reduction for a mitigating factor but not the extent of the reduction.
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