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Harvey v The Queen [2018] WASCA 188

appeal against sentence — trafficked a trafficable quantity of a controlled drug substance, 7.71g of methamphetamine, dealt with money where there was a risk that the money would become an instrument of crime and was reckless as to the fact that there was a risk it would become an instrument of crime, attempted to possess a marketable quantity of an unlawfully imported substance of a border controlled drug, dealt with money that was intended to become an instrument of crime and possessed a controlled drug substance, namely 0.2g of MDMA and 0.3g of methamphetamine offences contrary to ss 302.4(1), 400.4(2), 11.1(1), 400.6(1) and 308.1(1) of Commonwealth Criminal Code respectively — total effective sentence imposed 8 years’ 6 months imprisonment with 6 year non-parole period and a $1000 fine — amount of drugs offender attempted to possess in dispute — offender communicated with unknown male located overseas who arranged for someone to bring a quantity of methamphetamine into Australia — offender had been instructed to take possession of a package and pay that person $10,000 — AFP officers arrested person carrying the package which contained 500g of rice — offender then apprehended — jury found that offender believed package contained and offender intended to possess more than a marketable quantity of methamphetamine (2g) — matter for sentencing judge to decide — crown submitted offender believed he was taking possession of between 160-363g of methamphetamine (worth $80,000), offender submitted that offender intended to purchase $10,000 worth of methamphetamine (around 28g) — nature and circumstances of the offence — s 16A(2)(a) — not open to sentencing judge to find beyond reasonable doubt that appellant intended to take possession of $80,000 worth of pure methamphetamine — 3 facts relied on to draw the inference as to quantity were of insufficient weight in combination to support sentencing judge’s findings beyond reasonable doubt — concealed package (rice) weighed 500 g — Crown asserted that this fact suggested appellant expecting quantity of drugs ‘at least somewhat consistent’ with weight of contents of package — impermissibly assumes that appellant expecting package that contained pure drugs only, not diluted by or concealed within something else — relevant telephone intercept material was ambiguous — expert evidence that $80,000 would buy 160g-363g of pure methamphetamine — relied on this evidence to support inference appellant intended to possess between 160-363g of pure methamphetamine — importance of this evidence depends on first being satisfied appellant intended to possess $80,000 of pure methamphetamine — existence of this ‘fact’ involves bootstraps reasoning — reasonable inference that appellant intended to purchase $10,000 worth of pure methamphetamine or about 28g — sentencing judge could not have been satisfied beyond reasonable doubt appellant intended to purchase at least 100g of pure methamphetamine and sentencing judge erred in doing so — appellant should have been sentenced for attempted purchase of approximately 28g of pure methamphetamine for $10,000 — resentence — appellant put before court material to take into account in event appellant resentenced — specific deterrence — s 16A(2)(j) — general deterrence — s 16A(2)(ja) — deterrence, both general and specific, is of paramount importance — generally, personal factors, while not irrelevant, will carry less weight — weight of drugs is relevant consideration, but not generally most important factor — purity of drugs, where known, is often regarded as significant — sophistication of illegal enterprise and role offender payed are relevant considerations, though it may often be difficult to determine offender’s place in drug hierarchy — offender resentenced to total effective sentence of 5 years’ 6 months imprisonment with 3 year and 8 month non-parole period
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