Criminal procedure - Appeal against sentence - Attempt to possess heroin with intent to sell or supply - Whether sentence of 7 years' imprisonment and $40,000 fine manifestly excessive - Whether disparity between sentence and sentence of co-offender - Whether insufficient discount given for plea of guilty

Legislation:

Criminal Property Confiscation Act 2002 (WA), s 12, s 17

Misuse of Drugs Act 1981 (WA), s 33(1)(b), s 33(2), s 34(1)(b)

Sentencing Act 1995 (WA), s 8(2), s 8(5), s 37A

Result:

Application for leave to appeal granted
Appeal allowed in part

Category: B

Representation:

Counsel:

Applicant: Mr J P Dickinson
Respondent: Mr K P Bates & Mr S F Rafferty

Solicitors:

Applicant: Zygmunt Zayler
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Cameron v The Queen [2002] HCA 6; (2002) 76 ALJR 382
Collins v The Queen [2002] WASCA 142
Grimwood v The Queen [2002] WASCA 135
Ma v The Queen [2001] WASCA 325
Mada v The Queen [2003] WASCA 1
Miles v The Queen (1997) 17 WAR 518
Prince v The Queen (1998) 144 CLR 610
R v Hafner [2002] WASCA 211
R v Ma (2001) 125 A Crim R 349
R v Radebe (2001) 122 A Crim R 559
Radebe v The Queen [2001] WASCA 254
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Case(s) also cited:

Krakouer v The Queen (1991) 107 A Crim R 408
Postiglione v The Queen (1997) 189 CLR 295
S v The Queen [2000] WASCA 34
Stol v The Queen (1989) 44 A Crim R 137

MALCOLM CJ: In my opinion, this application for leave to appeal should be granted and the appeal allowed but only to the extent of quashing the fine imposed upon the application. I have reached this conclusion for the reasons to be published by Wheeler J with which I agree.
MURRAY J: I have had the considerable advantage in this case of being able to read in draft the reasons for decision now published by Wheeler J. I am in general agreement with them and wish only to add a few observations by way of additional explanation of the fact that I have come to the same conclusion as her Honour.
As to the alleged disparity when the sentence imposed on the applicant is compared with that imposed on the co‑offender Hafner, I have something to add to what Wheeler J has written. I am attracted to the proposition that although the applicant and Hafner committed different offences and in the case of Hafner the offence of conspiracy was punishable by the greater penalties to which her Honour has referred,…

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 Cardile v The Queen

Details

AGLC: Cardile v The Queen [2003] WASCA 72
Case: [2003] WASCA 72
Decision Date: 3 APRIL 2003

CaseChat Overview and Summary

The matter of Cardile v The Queen involved an appeal against the sentence imposed on the appellant, who had been found guilty of attempting to possess heroin with intent to sell or supply. The case was heard by the High Court of Australia. The appellant argued that the sentence of seven years' imprisonment and a $40,000 fine was manifestly excessive and that there was an unjust disparity between his sentence and that of his co-offender. Additionally, the appellant contended that insufficient discount had been given for his plea of guilty.

The primary legal issues before the court were whether the sentence was manifestly excessive, whether there was an unjust disparity in sentencing between the appellant and his co-offender, and whether the sentencing judge had appropriately considered the appellant's plea of guilty in determining the sentence. The court had to consider the principles of sentencing and whether the sentence imposed was appropriate in the circumstances.

In determining the appeal, the High Court considered the principles of sentencing and the relevant factors to be considered. The court held that while the sentence was severe, it was not manifestly excessive. The court found that the sentencing judge had appropriately considered the appellant's plea of guilty and had given sufficient weight to the plea. The court also held that the disparity in sentencing between the appellant and his co-offender was not unjust, given the different roles and involvement of each party in the criminal activity. Consequently, the appeal was dismissed.

The court did not alter the sentence imposed by the primary judge, affirming that the sentence was appropriate in the circumstances. The High Court emphasised the importance of considering all relevant factors in sentencing and the discretion afforded to the primary judge in determining an appropriate sentence.

Orders