CITATION: BERTILONE -v- THE QUEEN [2009] WASCA 149
CORAM: McLURE JA
BUSS JA MILLER JA
HEARD: 3 AUGUST 2009
DELIVERED : 25 AUGUST 2009
FILE NO/S: CACR 144 of 2008
BETWEEN: CHARLIE ANTHONY BERTILONE
Appellant
AND
THE QUEEN Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :FENBURY DCJ
File No :IND 1475 of 2008
Catchwords:
Criminal law - Sentencing - Commonwealth drug importation offences - Reasonable consistency in sentencing Commonwealth offenders - Ratio between head sentences and non-parole periods - Whether a particular ratio or range of ratios is 'the norm' or 'a general guide' - Principles applicable to fixing non-parole periods for Commonwealth drug importation offences
Legislation:
Crimes Act 1914 (Cth), s 16(1), s 16A(1), s 16A(2), s 19AB(1), s 19AB(3) Criminal Code (Cth), s 307.2(1) Sentencing Act 1995 (WA), s 93(1)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bertilone v The Queen [2009] WASCA 149
Case
[2009] WASCA 149
Decision Date
CaseChat Overview and Summary
The appeal before the court involved Bertilone, the appellant, against The Queen, the respondent. The matter pertained to sentencing in Commonwealth drug importation offences. The High Court of Australia was tasked with determining the appeal. The legal issues before the Court centred around the principles guiding the sentencing of Commonwealth drug importation offences, specifically the ratio between the head sentences and the non-parole periods. The court was asked to decide whether a particular ratio or range of ratios could be considered 'the norm' or 'a general guide' in such cases.
The Court examined the principles applicable to fixing non-parole periods for Commonwealth drug importation offences. It considered the concept of 'reasonable consistency' in sentencing and whether the ratio between head sentences and non-parole periods should adhere to a specific norm or serve as a general guide. The Court assessed the jurisprudence and existing legal principles to determine if the lower courts had applied the correct approach in setting the non-parole periods for the appellant's offences.
After a thorough review of the legal principles and the jurisprudence, the Court concluded that the lower courts had correctly applied the principles of sentencing in Commonwealth drug importation offences. The Court found that the ratio between head sentences and non-parole periods did not need to adhere to a strict norm but should be considered within a range that reflects general sentencing practices. The Court determined that the sentencing approach taken by the lower courts was consistent with the principles of reasonable consistency in sentencing Commonwealth offenders. Consequently, the appeal was dismissed.