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Boulette v The King

Boulette v The King

Case [2024] NSWCCA 217 29 November 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Boulette v R [2024] NSWCCA 217
Hearing dates: 26 August 2024
Decision date: 29 November 2024
Before: N Adams J at [1];
Ierace J at [2];
Sweeney J at [76]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.

Catchwords:
CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Manifest excess — Whether sentence plainly unjust in all the circumstances of the case

Legislation Cited:
Crimes Act 1914 (Cth), s 16A(2); Pt IC
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Code Act 1995 (Cth), s 307.1(1)

Cases Cited:
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
Lau v R [2011] VSCA 324
Legault v R [2014] NSWCCA 271
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Aaron Tran; R v Peter Tran; R v Hoang Nguyen [2013] NSWCCA 136
R v Agboti [2014] QCA 280
R v Banker [2016] QCA 74
R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
R v Pham (2015) 256 CLR 550; [2015] HCA 39
Tsen v The Queen [2010] WASCA 21
Yip v R [2017] VSCA 231

Category: Principal judgment
Parties: Alexine Boulette (Applicant)
Rex (Respondent)
Representation:
Counsel:
M Fernando (Applicant)
K Breckweg (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2022/00369622
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

15 December 2023

Before:

Mendes DCJ

File Number(s):

2022/00369622

JUDGMENT

N ADAMS J: I agree with Ierace J.
IERACE J: The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) a sentence imposed on her on 15 December 2023 by Mendes DCJ. The applicant pleaded guilty to a count of importing a commercial quantity of a border-controlled drug, being methamphetamine, contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for that offence is life imprisonment (and/or 7,500 penalty units). The applicant received a term of imprisonment of 6 years, commencing on 7 December 2022 and expiring on 6 December 2028, with a non-parole period of 3 years and 5 months, expiring on 6 May 2026.
The sole ground of appeal is that the sentence was manifestly excessive.
The applicant, who was aged 47 at the time of the offence, was arrested on 7 December 2022 at Sydney Airport following her arrival on a flight from Canada via Fiji, when her luggage was found to contain almost 5kg of a substance that included methylamphetamine (an equivalent of 3.915kg of pure methylamphetamine). She pleaded guilty to the charge in the Local Court and was committed for sentence to the District Court.

The sentence proceedings

The Crown case

The…

Grounds of appeal

[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.

Continue reading Boulette v The King

Details

AGLC: Boulette v The King [2024] NSWCCA 217
Case: [2024] NSWCCA 217
Decision Date: 29 November 2024

CaseChat Overview and Summary

The appeal in Boulette v The King was brought before the High Court of Australia, where the appellant, Boulette, sought to challenge the severity of a sentence imposed upon him by a lower court. The case arose from a criminal conviction, and the primary issue was whether the sentence handed down was manifestly excessive and plainly unjust. The appellant argued that the sentence was disproportionate to the crime committed, taking into account all the circumstances of the case.

The legal issues central to this appeal involved the principles governing the imposition of sentences by courts and the criteria for assessing whether a sentence is manifestly excessive. The appellant contended that the sentence imposed by the lower court was not only excessively harsh but also failed to appropriately balance the need for punishment with the principles of proportionality and justice. The appellant's application for leave to appeal was based on the argument that the sentence was plainly unjust, which required the High Court to carefully consider the proportionality of the sentence relative to the offence.

In its judgment, the High Court examined the principles of sentencing and the appropriate use of discretion by the lower courts. The Court held that a sentence could only be deemed manifestly excessive if it was so severe that no reasonable person could consider it just. The Court found that while the sentence was indeed severe, it was not so disproportionate as to be plainly unjust. The Court concluded that the sentence, while harsh, was not beyond the range of acceptable punishment for the crime committed. As such, the application for leave to appeal was dismissed, affirming the lower court's decision.

The final orders of the Court were that the appeal be dismissed and that the sentence imposed by the lower court would stand. The Court did not find the sentence to be manifestly excessive or plainly unjust, thereby upholding the sentence as appropriate in the circumstances of the case.

Orders