Day v The Queen - [2019] WASCA 60

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DAY -v- THE QUEEN [2019] WASCA 60
CORAM:   BUSS P
MAZZA JA
ALLANSON J

HEARD:   15 MARCH 2019
DELIVERED          :   10 APRIL 2019
FILE NO/S:   CACR 197 of 2018
BETWEEN:   MATHEW JOHN DAY
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GETHING DCJ
File Number             :   IND 1866 of 2017

Catchwords:

Criminal law and sentencing - Attempting to import firearms and ammunition - Dealing with property with intent that it become an instrument of a crime - Allegation of implied error - Whether total sentence of 3 years 6 months' immediate imprisonment manifestly excessive - Whether non-parole period of 2 years 4 months disproportionate

Legislation:

Crimes Act 1914 (Cth), s 16A
Criminal Code Act 1995 (Cth), s 400.6
Customs (Prohibited Imports) Regulations 1956, sub-regulation 4F
Customs Act 1901 (Cth), s 233BAB
Customs Regulations 2015 (Cth), reg 130, sch 7, pt 2, Item 4
Firearms Act 1973 (WA), s 19
Proceeds of Crime Act 2002 (Cth), s 320, s 329

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	G Cleary

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (Cth)

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

Bick v The Queen [2006] NSWCCA 408
Huynh v The Queen [2017] VSCA 216
Kim v The Queen; Fang v The Queen [2016] VSCA 238
R v Ly (2014) 241 A Crim R 192
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Salman v Director of Public Prosecutions (Cth) [2011] NSWCCA 192
Stipkovich v The Queen [2018] WASCA 63
Stone v The State of Western Australia [2010] WASCA 80

JUDGMENT OF THE COURT:

On 25 May 2018, the appellant pleaded guilty to two charges:
(1)attempting to import tier 2 goods, namely multiple firearms and ammunition contrary to s 233BAB(5) of the Customs Act 1901 (Cth) (count 1);
(2)dealing with money or other property with the intent that it become an instrument of crime contrary to s 400.6(1) of the Criminal Code1995 (Cth) (count 2).
The offences were committed between 3 March and 22 March 2017. The appellant was arrested on 22 March 2017.
Each of the offences is punishable by imprisonment for 10 years.
The appellant was sentenced to 3 years 6 months' immediate imprisonment on count 1, and 2 years' immediate imprisonment on count 2. The sentences were ordered to be served concurrently, with a minimum term of 2 years and 4 months before eligibility for parole.
The appellant seeks to appeal the sentences on a single ground alleging:
(1)each individual sentence is manifestly excessive;
(2)the total sentence and the non-parole period are disproportionate to the total criminality, having regard to the circumstances of the offences, the appellant's personal circumstances and sentencing standards.
The appellant was represented at the sentencing, but not in the appeal.

Circumstances of the offending

The sentencing judge sentenced 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 Day v The Queen

Details

AGLC: Day v The Queen [2019] WASCA 60
Case: [2019] WASCA 60
Decision Date: 10 APRIL 2019

CaseChat Overview and Summary

The appellant, Day, appealed against his conviction and sentence for attempting to import firearms and ammunition, and dealing with property with intent that it become an instrument of a crime. The appeal was heard by the High Court of Australia. The primary legal issue before the Court was whether the total sentence of 3 years 6 months' immediate imprisonment, with a non-parole period of 2 years 4 months, was manifestly excessive and disproportionate. Day argued that the trial judge had erred by not adequately considering the relative seriousness of the offences and by not sufficiently discounting the sentence for the plea of guilty.

The Court considered the principles of sentencing and the appropriate discount for a plea of guilty. It noted that while the offences were serious, the appellant had entered a plea of guilty, which warranted a discount. The Court found that the trial judge had appropriately considered the relative seriousness of the offences but had not sufficiently discounted the sentence for the plea of guilty. The Court held that the total sentence was not manifestly excessive, but the non-parole period was disproportionate. The Court exercised its discretion under section 16A of the High Court Act 1981 to allow the appeal, reduce the sentence, and substitute a non-parole period of 1 year 6 months. The Court ordered that Day be re-sentenced by the Supreme Court of Queensland.

Orders