Baker v WA

[2020] WASCA 117

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Appeal against sentence
4. › Findings of fact by sentencing judge
5. › Whether finding beyond reasonable doubt reasonably open
6. › Offer to sell or supply prohibited drug
7. › Whether offender had actual capacity to supply quantity offered
8. › Misuse of Drugs Act 1981 (WA), s 6(1)(c)
1. Criminal Law
2. › Sentencing
3. › Burden and standard of proof
4. › Aggravating and mitigating factors
5. › Offer to sell or supply prohibited drug
6. › Whether actual intention or capacity to supply is aggravating factor to be proved beyond reasonable doubt
7. › Whether absence of capacity is mitigating factor to be proved on balance of probabilities
8. › Misuse of Drugs Act 1981 (WA), s 6(1)(c)
1. Criminal Law
2. › Sentencing
3. › Offer to sell or supply prohibited drug
4. › Relevant intention of offender
5. › Whether intention to fulfil offer must be proved or whether intention that offer be regarded as genuine suffices
6. › Misuse of Drugs Act 1981 (WA), s 6(1)(c)
1. Criminal Law
2. › Sentencing
3. › Factors relevant to seriousness of offence
4. › Offer to sell or supply prohibited drug
5. › Capacity to fulfil offer as one factor among many
6. › Sentencing where neither party raises issue of actual intention or capacity
7. › Misuse of Drugs Act 1981 (WA), s 6(1)(c)

Quick Take

Where a person is convicted of offering to sell or supply a prohibited drug under s 6(1)(c) of the Misuse of Drugs Act 1981 (WA), the prosecution's contention that the offender had actual capacity to supply is an aggravating factor requiring proof beyond reasonable doubt; the offender's contention of lack of capacity is a mitigating factor requiring proof on the balance of probabilities; and where neither party raises the issue, the offender is sentenced on the basis that they intended to supply in accordance with the offer but were denied the opportunity before arrest. An offender's subjective belief in capacity is not to be equated with capacity in fact.