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Harvey v The Queen

Harvey v The Queen

Case [2018] WASCA 188 29 October 2018

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HARVEY -v- THE QUEEN [2018] WASCA 188
CORAM:   BUSS P
MAZZA JA
ALLANSON J

HEARD:   4 APRIL 2018
DELIVERED          :   29 OCTOBER 2018
FILE NO/S:   CACR 132 of 2017
BETWEEN:   MICHAEL ROSS HARVEY
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GETHING DCJ
File Number             :   IND 961 of 2016

Catchwords:

Criminal law - Appeal against sentence - Attempting to possess a marketable quantity of an unlawfully imported border controlled drug - Methamphetamine - Individual sentence of 7 years' imprisonment - Manifest excess - Whether judge erred in finding the appellant attempted to possess $80,000 worth of methamphetamine

Legislation:

Crimes Act 1914 (Cth), s 16A(1), s 16A(2)
Criminal Code (Cth), s 11.1(1), s 307.6(1)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Mr D W L Renton

Solicitors:

Appellant	:	Legal Pathways
Respondent	:	Director of Public Prosecutions (Cth)

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

Adegoke v The Queen [2013] NSWCCA 193; (2013) 234 A Crim R 280
Di Tommaso v The Queen [2010] VSCA 178
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Mousavi v The Queen [2014] WASCA 174
R v Chea [2008] NSWCCA 78
R v Chew [2004] NSWCCA 26
R v Dang [2004] NSWCCA 265
R v Laurentiu (1992) 63 A Crim R 402
R v Maddocks (1990) 51 A Crim R 376
R v Oancea (1990) 51 A Crim R 141
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Ugur (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Newman and Loveday JJ, 11 August 1989)
Rajabizadeh v The Queen [2017] WASCA 133
Sintat v The Queen [2018] NSWCCA 165
Springer v The Queen [2007] NSWCCA 289; (2007) 177 A Crim R 13

JUDGMENT OF THE COURT:

This is an appeal against sentence.
The appellant was charged on indictment in the District Court with five offences as follows:[1]
1.Between on or about 21 March 2014 and on or about 23 June 2014 at Perth in the State of Western Australia, Michael Ross Harvey trafficked in a substance, the substance being a controlled drug, namely methamphetamine, and the quantity trafficked being a trafficable quantity, contrary to section 302.4(1) of the Criminal Code (Cth).
2.Between 11 April 2014 and 23 May 2014 at Perth in the State of Western Australia, Michael Ross Harvey dealt with money where there was a risk that the money would become an instrument of crime and Michael Ross Harvey was reckless as to the fact that there was a risk it would become an instrument of crime and at the time of the dealing the value of the money or property was $100,000 or more contrary to section 400.4(2) of the Criminal Code (Cth).
3.On 23 June 2014…

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 Harvey v The Queen

Details

AGLC: Harvey v The Queen [2018] WASCA 188
Case: [2018] WASCA 188
Decision Date: 29 OCTOBER 2018

CaseChat Overview and Summary

In the case of Harvey v The Queen, the appellant, Harvey, was convicted of attempting to possess a marketable quantity of an unlawfully imported border controlled drug, specifically methamphetamine. The case was heard and determined by the High Court of Australia. Harvey was sentenced to seven years' imprisonment by the trial judge. He appealed against the sentence, arguing that it was manifestly excessive. The central issue in the appeal was whether the trial judge erred in finding that Harvey attempted to possess $80,000 worth of methamphetamine.

The court examined the trial judge's assessment of the circumstances surrounding the offence and the quantum of the sentence. It was necessary to determine if the sentence imposed was so disproportionate to the offence that it could be described as manifestly excessive. The court considered the principles of sentencing and the trial judge's exercise of discretion in imposing the sentence. The appellant submitted that the trial judge had not adequately considered the principles of proportionality and that the sentence was excessive in light of the totality of the circumstances.

The court found that the trial judge had considered the relevant principles of sentencing and had appropriately exercised their discretion. The sentence imposed was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the offence. The court noted that the trial judge had carefully considered the nature and circumstances of the offence, including the quantity of the drug and the appellant's role in the importation attempt. The appeal was dismissed, and the original sentence was upheld.

The court did not make any further orders in relation to the appeal. The decision reinforces the importance of a trial judge considering the relevant principles of sentencing and exercising their discretion appropriately in imposing a sentence for an offence of this nature.

Orders