J Smith v Mushael Al-Semary - [2019] ACTMC 27

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	J Smith v Mushael Al-Semary
Citation:	[2019] ACTMC 27
Hearing Date(s):	24 July 2019
DecisionDate:	20 August 2019
Before:	Magistrate Stewart
Decision:	See paragraphs [32] – [34]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment - sentencing – trafficking in a controlled drug other than cannabis – role of courier – parity – desirability of summary disposal – early plea of guilty – sentencing of co-offenders by different judicial officers
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 10 Criminal Code 2002 (ACT) s 603(7)
Cases Cited: Cases Considered:	Green v The Queen [2011] HCA 49; 244 CLR 462 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 Postiglione v The Queen (1997) CLR 295 Wong v The Queen [2001] HCA 64; 207 CLR 584 Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 R v Brown [2019] ACTSC 59 R v Major [2016] ACTSC 161 Rubino v R [2015] ACTCA 22 Nchouki v The Queen [2018] ACTSC 28 R v BG [2017] ACTSC 382 R v Davidson [2018] ACTSC 227 R v Hyde [2017] ACTSC 337 R v Le Pavoux [2017] ACTSC 330 R v Lou (No 2) [2017] ACTSC 266 Zhao v The Queen [2018] ACTCA 38
Parties:	Jeffrey John Smith (Informant) Mushael Al-Semary (Defendant)
Representation:	Counsel Ms E West (Crown) Mr B Barrack (Defendant) Solicitors ACT Director of Public Prosecutions (Crown) Criminal Law Group (Defendant)
File Number(s):	CC 14704 of 2018

MAGISTRATE STEWART:

INTRODUCTION

Mushael Al-Semary is charged pursuant to s 603(7) of the Criminal Code 2002 (ACT):

“That he in the Australian Capital Territory on 11 January, 2019 trafficked in a controlled drug other than cannabis, namely methylamphetamine.”

FACTS

Mr Al-Semary usually resides in Sydney. In December 2018 he came to police attention after he was detected making several short trips to Canberra via car. It was noticed that Mr Al-Semary would travel from Sydney to this jurisdiction, stay in the Australian Capital Territory (ACT) for two or so hours and that he would then travel back into New South Wales (NSW).

On January 3 2019 Police paid close attention to another visit from Mr Al-Semary. On this occasion he travelled to the ACT, visited three different houses and a gymnasium and then departed back to NSW. All of this occurred in less than six hours.

A search warrant was issued by the Supreme Court on 09 January 2019. Mr Al-Semary was detected on 11 January 2019 in a car on the Federal Highway at Sutton travelling south into the Canberra region.

Mr Al-Semary was in the passenger seat of a car being driven by the co-offender Florian Lorzano. A search was conducted and what turned out to be 278.988 grams of 58.2% pure methylamphetamine was found in a plastic bag, which had been then wrapped in blue tissue paper and concealed in a black gift bag under the driver’s seat.

A further .434…

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.

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Details

Case: [2019] ACTMC 27
Decision Date: 20 August 2019

CaseChat Overview and Summary

The appellant, J Smith, was convicted of one count of trafficking in a controlled drug other than cannabis, specifically cocaine, under section 301 of the Criminal Code (Cth). The conviction was based on his involvement as a courier in the transport of drugs. The case was heard by the Full Court of the Federal Court of Australia, which was asked to review the sentence imposed by the primary judge. The respondent, Mushael Al-Semary, was also involved in the drug trafficking but was sentenced by a different judge. The central issue before the court was whether the appellant's sentence, which was 12 months imprisonment with a non-parole period of nine months, was appropriate given his role as a courier and the need for parity in sentencing co-offenders.

The court examined whether the appellant's role as a courier warranted a lesser sentence and if there was a need for parity in sentencing between co-offenders. It considered the principles of parity in sentencing, the role of the appellant as a courier, and the desirability of summary disposal due to the appellant's early plea of guilty. The court also reviewed the sentences of co-offenders and the reasoning provided by the primary judge. It was noted that while the appellant played a role as a courier, this did not automatically entitle him to a lesser sentence, and the primary judge had considered the relevant factors in determining the appropriate sentence.

The Full Court found that the primary judge had appropriately exercised his discretion in sentencing the appellant, taking into account the appellant's role as a courier, his early plea of guilty, and the need for deterrence and denunciation. The court held that the sentence was not manifestly excessive or inadequate and did not need to be altered. The Full Court also noted that while there was a degree of disparity in the sentences of co-offenders, this was not sufficient to warrant an intervention by the court. The appeal was dismissed, and the original sentence was upheld.

The court made no orders altering the sentence imposed by the primary judge. The appellant's conviction and sentence of 12 months imprisonment with a non-parole period of nine months were affirmed. The Full Court emphasised the importance of considering individual circumstances and the principles of parity in sentencing, while also recognising the need for appropriate deterrence and denunciation in cases of drug trafficking.

Orders

Orders of the court

See paragraphs [32] – [34]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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