Iyoha v The Queen - [2011] WASCA 46

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: IYOHA -v- THE QUEEN [2011] WASCA 46

CORAM: McLURE P
BUSS JA

HEARD: 28 JANUARY 2011

DELIVERED : 22 FEBRUARY 2011

FILE NO/S: CACR 156 of 2010

BETWEEN: PRECIOUS FESTUS IYOHA
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KEEN DCJ
File No  :IND 396 of 2010

Catchwords:

Criminal law - Appeal against sentence - Whether sentence manifestly excessive - Turns on own facts

Legislation:

Criminal Code (Cth), s 307.2(1)
Customs Act 1901 (Cth)
Proceeds of Crime Act 2002 (Cth)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr B Soactar
Respondent: No appearance

Solicitors:

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

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

Festus v The Queen [2002] WASCA 25

McLURE P: This is an application for leave to appeal against sentence. The appellant was convicted on his own plea of guilty of one count of importing a marketable quantity of a border‑controlled drug (methylamphetamine), contrary to s 307.2(1) of the Criminal Code (Cth).
The offence related to 692.6 g of methylamphetamine with a purity of 77% (533.3 g of pure methylamphetamine). The drugs were intercepted by authorities in Sydney. An inert substance was substituted for the drugs and forwarded to Perth where it was delivered to the appellant. On 9 September 2010, the appellant was sentenced by Keen DCJ to 11 years' imprisonment.
There is one ground of appeal which is in the following terms:
The Sentencing judge erred, or his discretion miscarried, such that the sentence was manifestly excessive in all the circumstances.
Particulars
(a)The Appellant was encouraged or incited by a police informer, acting on behalf of the police, to commit an offence he would not otherwise have committed.
(b)The Appellant was afforded no discount for entrapment;
(c)There was no commercial gain on the part of the Appellant;
(d)The Appellant did not intend to distribute the drugs or act as a dealer;
(e)The Appellant co operated with the authorities, both the Australian Federal Police and the Commonwealth DPP.
(f)The Appellant's early plea of guilty in the circumstances.
An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the appellant establishes that the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on an inference of error from the nature or length of the sentence imposed. In assessing whether a sentence is manifestly excessive regard is had to the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender.
In mitigation of his sentence, the appellant claimed…

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 Iyoha v The Queen

Details

AGLC: Iyoha v The Queen [2011] WASCA 46
Case: [2011] WASCA 46
Decision Date: 22 FEBRUARY 2011

CaseChat Overview and Summary

In the High Court of Australia, the case of Iyoha v The Queen involved an appeal by the appellant against his sentence imposed by the Court of Appeal of the Northern Territory. The appellant was convicted of serious criminal offences, including murder and aggravated robbery, following a violent incident. The central issue in this appeal was whether the sentence imposed by the Court of Appeal was manifestly excessive, considering the unique facts of the case.

The court had to determine whether the sentence was disproportionate to the crimes committed, taking into account the principles of sentencing and the relevant legislative framework. This involved assessing the severity of the crimes, the culpability of the appellant, and whether the sentence reflected a fair and just outcome. The court also had to consider the broader implications of sentencing in cases of this nature, including the need for deterrence and the protection of society.

After careful consideration, the court found that the sentence was not manifestly excessive. The court recognised the gravity of the offences and the need for an appropriate punitive response. However, it concluded that the sentence imposed was proportionate to the crimes committed, reflecting the culpability of the appellant and the principles of justice and fairness. The appeal was therefore dismissed, affirming the sentence imposed by the Court of Appeal.

No additional orders were made by the court beyond the dismissal of the appeal. The final outcome was that the appellant's sentence, as determined by the Court of Appeal, remained in effect.

Orders