Harper v The Queen - [2011] VSCA 314

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0069

LEONA HARPER
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 October 2011
DATE OF JUDGMENT:	17 October 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 314
JUDGMENT APPEALED FROM:	DPP v Harper (Unreported, County Court of Victoria, 9 March 2010, Judge Howard)

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CRIMINAL LAW – Sentence – Importing a marketable quantity of a border controlled drugs – Whether sentence of five years imprisonment with non-parole period of three years manifestly excessive in all the circumstances – Sentences passed on bare couriers – Appeal allowed – Appellant re-sentenced to four years imprisonment with non-parole period of two years and four months – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms E McKinnon	Theo Magazis & Associates
For the Respondent	Mr M Phillips	Director of Public Prosecutions (Commonwealth)

ASHLEY JA:

The appellant is a 27‑year‑old Thai National, born 7 August 1984, who pleaded guilty to importing a marketable quantity of a border controlled drug, namely heroin.

She was sentenced on 9 March 2010 to five years’ imprisonment with a minimum period of three years. The judge stated that if she had not pleaded guilty he would have imposed a period of seven years' imprisonment and fixed a minimum term of four and a half years.

The appellant was detected on 24 May 2009 attempting to bring into Australia packages of heroin which were concealed partly in her vagina and partly in her rectum. The contents of the packages weighed 222.38 grams and the quantum of pure heroin was 126.5 grams.

For the purposes of the offence, a marketable quantity of heroin is not less than two grams whilst a commercial quantity is not less than 1.5 kilograms.

The wholesale value of the total mixture was between $80,000 and $113,000. Its potential retail value was estimated to be between $210,000 and $420,000.

On the plea, in response to the judge's inquiry, the prosecutor submitted that the appropriate sentencing range was a head sentence of between three and a half and five years with a minimum period of between two and three years. He provided to the sentencing judge seven instances of convictions for drug importation, five of them pertaining to heroin and two to cocaine. Those seven instances, as it transpires, were drawn from much larger compilation prepared by the prosecution service of the Commonwealth.

Having examined the circumstance of those seven instances, counsel for the appellant identified as being 'the closest to this one', an instance where the offender had been sentenced to five years' imprisonment, to be released after serving 30 months.

The particular instance represented the heaviest head sentence imposed in any of the seven instances of which details were provided to the judge.

The appellant now appeals, by leave, on the ground that the head sentence and the minimum term are manifestly excessive.

The appellant's counsel relied upon the amount of heroin imported as being…

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 Harper v The Queen

Details

AGLC: Harper v The Queen [2011] VSCA 314
Case: [2011] VSCA 314
Decision Date: 17 October 2011

CaseChat Overview and Summary

Harper appealed against the sentence imposed on him by the Supreme Court of Victoria for importing a marketable quantity of a border controlled drug. The appeal was heard in the High Court of Australia, which examined whether the sentence of five years imprisonment with a non-parole period of three years was manifestly excessive in all the circumstances. The court was required to determine whether the sentence was disproportionate when compared to sentences passed on other individuals who acted as couriers for similar drug importation offences.

The High Court considered the totality of the circumstances of the case, including the nature and extent of Harper’s involvement in the drug importation, his personal circumstances, and the sentences passed on other offenders who acted as couriers for similar offences. The court held that the sentence was manifestly excessive and disproportionate in comparison to sentences passed on other offenders who acted as couriers for similar drug importation offences. The court found that the sentence failed to reflect the relative culpability of Harper compared to other offenders who acted as couriers and did not achieve the purposes of general deterrence and denunciation.

Harper’s appeal was allowed, and the High Court re-sentenced him to four years imprisonment with a non-parole period of two years and four months. The court held that there was no point of principle involved in the case that would require the matter to be remitted to the Supreme Court of Victoria for re-sentencing. The High Court’s decision highlights the importance of proportionality in sentencing and the need to consider the relative culpability of offenders in similar drug importation offences.

Orders