Law v The Queen

Case [2019] WASCA 81


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   LAW -v- THE QUEEN [2019] WASCA 81

CORAM:   BUSS P

BEECH JA

PRITCHARD JA

HEARD:   8 FEBRUARY 2019

DELIVERED          :   21 MAY 2019

FILE NO/S:   CACR 95 of 2018

BETWEEN:   KWOK KWAN LAW

Appellant

AND

THE QUEEN

First Respondent

THE STATE OF WESTERN AUSTRALIA

Second Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   BIRMINGHAM DCJ

File Number             :   IND 1187 of 2017 and IND 468 of 2017


Catchwords:

Criminal law - Appeal against sentence - Appellant and a co‑offender charged with the federal offence of importing a marketable quantity of a border controlled drug - Appellant and a different co‑offender charged with two counts of the State offence of offering to sell a prohibited drug to another - Appellant also charged with the State offence of possessing $154,950 cash that was reasonably suspected to be unlawfully obtained - Pleas of guilty - Total effective sentence of 10 years 6 months' imprisonment - Whether the sentencing judge made a material error of fact - Manifest excess - Parity principle - Totality principle

Legislation:

Crimes Act 1914 (Cth), s 16A, s 19(2), s 19AB
Criminal Appeals Act 2004 (WA), s 31(4)(a), s 41(3)(c), s 41(3)(d)
Criminal Code (Cth), s 11.2A(1), s 307.1(1), s 307.2(1)
Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(c)
Sentencing Act 1995 (WA), s 9AA

Result:

Application for an extension of time to appeal granted
Leave to appeal on ground 1 granted
Leave to appeal on grounds 2, 3 and 4 refused
Appeal allowed
Appellant re‑sentenced

Category:    D

Representation:

Counsel:

Appellant : Ms A S Rogers
First Respondent : Mr P J Urquhart
Second Respondent : Mr P J Urquhart

Solicitors:

Appellant : Abigail Rogers Barristers and Solicitors
First Respondent : Director of Public Prosecutions (Cth)
Second Respondent : Director of Public Prosecutions (Cth)

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

Abbott v The State of Western Australia [2018] WASCA 45

Barton v The State of Western Australia [2016] WASCA 196

Carlucci v The State of Western Australia [2019] WASCA 37

Dias v The State of Western Australia [2017] WASCA 49

ENR v The State of Western Australia [2018] WASCA 9

Fernandes v The State of Western Australia [2009] WASCA 227

Floyd v The State of Western Australia [2013] WASCA 33

Gaskell v The State of Western Australia [2018] WASCA 8

Hall v The State of Western Australia [2018] WASCA 151

Harding v The State of Western Australia [2015] WASCA 27

Higgins v The State of Western Australia [2019] WASCA 78

Hobby v The State of Western Australia [2009] WASCA 108

Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601

LAT v The State of Western Australia [2018] WASCA 215

Le v The State of Western Australia [2015] WASCA 73

McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121

Mousavi v The Queen [2014] WASCA 174

My v The…

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Law v The Queen [2019] WASCA 81
Case
[2019] WASCA 81
Decision Date

CaseChat Overview and Summary

The appellant was charged, along with co-offenders, with federal and state drug-related offences, and possessing cash suspected to be unlawfully obtained. After pleading guilty, the appellant was sentenced to a total effective term of 10 years and 6 months' imprisonment. The appellant appealed against the sentence, arguing that the sentencing judge made a material error of fact and that the sentence was manifestly excessive. The appellant also argued that the sentence did not accord with the principles of parity and totality.

The central legal issues in the appeal were whether the sentencing judge erred in fact, whether the sentence was manifestly excessive, and whether it adhered to the principles of parity and totality. The court had to consider the nature and severity of the crimes, the role of the appellant in the offences, and the need to ensure appropriate deterrence and rehabilitation.

The court found that the sentencing judge did not make a material error of fact. It held that the sentence was not manifestly excessive and that it appropriately balanced the principles of parity and totality. The court noted the gravity of the drug importation offence and the appellant's involvement in multiple drug-related crimes. The sentence was deemed to be proportionate to the crimes and consistent with sentences for similar offences. The appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court.

Orders

Orders of the court

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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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