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Formosa v The Queen

Formosa v The Queen

Case [2012] VSCA 298 12 December 2012

Appeal

Sentencing

Conspiring to import a commercial quantity of methylamphetamine

Trafficking in methylamphetamine

Trafficking in MDMA

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2012 0059
TYRONE FORMOSA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, OSBORN and WHELAN JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	26 October 2012
DATE OF JUDGMENT/ORDER:	12 December 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 298	1^st revision 13 December 2012
JUDGMENT APPEALED FROM:	R v Formosa (Unreported, County Court of Victoria at Melbourne, Judge Parsons, Date of Sentence 8 December 2011)

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CRIMINAL LAW – Application for leave to appeal against sentence – Contested plea hearing – Principles as to fact finding on contested plea hearing - Whether sentencing judge made findings of fact not open on the evidence – Leave granted in relation to fact finding on contested plea hearing but appeal dismissed.

CRIMINAL LAW – Application for leave to appeal against Sentence – Conspiring to import a commercial quantity of methylamphetamine, trafficking in methylamphetamine, trafficking in MDMA - Sentence of nine years imprisonment, non parole period of 6 years and 6 months – Whether sentence manifestly excessive – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G F Meredith	C Marshall & Associates
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:
1 I agree for the reasons given by Whelan JA that the application for leave to appeal should be refused.

2 As Whelan JA has set out, there was during the plea in mitigation, a very substantial factual dispute, the outcome of which could have affected the view that might have been taken as to the degree of culpability of the applicant.

3 Where there is a factual issue in dispute on the plea which might substantially affect the view that is taken of the objective gravity of the offence or the degree of criminality of the offender or some matter relied upon in aggravation or mitigation of penalty, it will usually be desirable that the sentencing judge announce his or her findings at the completion of hearing any evidence and submissions directed to that dispute. Although reasons for the findings may await the sentencing remarks, sufficient needs to be said as to the intended findings before the balance of the plea in mitigation is conducted, so that the parties have an opportunity to make submissions in the light of those findings.

OSBORN JA:
4 I also agree with Whelan JA.

WHELAN JA:
5 On 12 August 2011, Tyrone Formosa pleaded guilty to one charge of conspiring to import a border controlled drug, namely methamphetamine, in a commercial quantity; one charge of trafficking in methylamphetamine; and one charge of trafficking in MDMA. On 8 December 2011 he was sentenced as follows:

Charge on Indictment Offence Maximum Sentence

1. Conspiring to import a border controlled drug in a commercial quantity [Criminal Code Act 1995 (Cth) ss 11.5(1), 307.1(1)] Life 9 years, commencing 8 Dec 11

2. Trafficking in a drug of dependence [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC][1] 15 years

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 Formosa v The Queen

Details

AGLC: Formosa v The Queen [2012] VSCA 298
Case: [2012] VSCA 298
Decision Date: 12 December 2012

CaseChat Overview and Summary

The case of Formosa v The Queen involved the appellant, Formosa, who had been convicted of conspiring to import a commercial quantity of methylamphetamine, trafficking in methylamphetamine, and trafficking in MDMA. The appellant applied for leave to appeal against his sentence and the findings of fact made by the sentencing judge during a contested plea hearing. The case was heard in the High Court of Australia.

The central legal issues before the court were whether the sentencing judge had made findings of fact that were not supported by the evidence and whether the sentence imposed was manifestly excessive. The court was required to determine whether the appellant's sentence of nine years imprisonment, with a non-parole period of six years and six months, was disproportionate to the crimes committed. Furthermore, the court needed to assess whether the appellant's appeal against the findings of fact made by the sentencing judge should be allowed.

The court found that while the sentencing judge had indeed made some findings of fact that were not open on the evidence, this did not warrant the grant of leave to appeal. The court held that the findings of fact did not impact the overall sentence imposed. However, the court granted leave to appeal in relation to the contested plea hearing findings, acknowledging that some of the facts found by the sentencing judge were not supported by the evidence. Despite this, the appeal was ultimately dismissed. The court also ruled that the sentence was not manifestly excessive and, therefore, refused leave to appeal on that basis.

In conclusion, the High Court granted leave to appeal in relation to the contested plea hearing findings but dismissed the appeal. The court also refused leave to appeal against the sentence, finding it to be proportionate to the crimes committed. No further orders were made by the court.

Orders