Criminal law - Appeal against sentence - Conspiracy to traffic in commercial quantity of MDMA - Importation of commercial quantity of border controlled drug - Whether sentence manifestly excessive - Whether trial judge failed to take into account the offender's age and his plea of guilty

Legislation:

Crimes Act 1914 (Cth), 16A, s 19AB
Criminal Code Act 1995 (Cth), s 11.5(1), s 302.2(1), s 307.1(1)
Prisons Act 1981 (WA), s 6(3), s 6(4)

Result:

Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr D J McKenzie
Respondent: Mr P W Neil SC & Mr A G Elliott

Solicitors:

Appellant: David McKenzie Legal
Respondent: Director of Public Prosecutions (Cth)

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

Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143
Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383
Bick v The Queen [2006] NSWCCA 408
Braham v The Queen (1994) 116 FLR 38
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Chan v The Queen (1989) 38 A Crim R 337
Cheung (1997) 97 A Crim R 283
de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465
Keung v The Queen [2008] NSWCCA 193; (2008) 191 A Crim R 317
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Ma v The Queen [2010] NSWCCA 320
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Melgar Sevilla v The Queen [2007] WASCA 116
NP v The Queen [2008] NSWCCA 205
Pedersen v The State of Western Australia [2010] WASCA 175
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Cas [2005] NSWCCA 192; (2005) 160 A Crim R 451
R v Handlen [2010] QCA 371; (2010) 247 FLR 261
R v Holland [2011] NSWCCA 65
R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125
R v Hunter (1984) 36 SASR 101
R v Iles [2009] VSCA 197
R v Jackson [2003] QCA 31; (2003) 138 A Crim R 148
R v Kiam Fah Teng [2005] VSC 33
R v Lam [2005] VSC 98

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 Ljuboja v The Queen

Details

AGLC: Ljuboja v The Queen [2011] WASCA 143
Case: [2011] WASCA 143
Decision Date: 1 JULY 2011

CaseChat Overview and Summary

The case of Ljuboja v The Queen involved the appellant, Ljuboja, appealing against his sentence for conspiracy to traffic in a commercial quantity of MDMA and importation of a commercial quantity of a border controlled drug. The Supreme Court of Victoria handed down a decision on the appeal, addressing the contention that the sentence was manifestly excessive and whether the trial judge failed to take into account the offender's age and his plea of guilty. Ljuboja was sentenced to a total of 16 years' imprisonment with a non-parole period of 12 years. The appeal hinged on whether the sentence was manifestly excessive and whether the trial judge had adequately considered the mitigating factors of Ljuboja's age and his plea of guilty.

The court examined the principle of manifestly excessiveness in sentencing, acknowledging that a sentence may be deemed manifestly excessive if it is so disproportionate to the offence that it shocks the conscience of the court. The court also considered whether the trial judge had failed to take into account the mitigating factors of Ljuboja's age and his plea of guilty, which could have warranted a lesser sentence. The appellant's counsel argued that the trial judge had not given sufficient weight to these factors, resulting in an unduly harsh sentence. The court scrutinised the sentencing remarks of the trial judge to determine whether these factors had been appropriately considered.

In delivering the judgment, the court found that the sentence was not manifestly excessive and that the trial judge had indeed considered the mitigating factors of the appellant's age and plea of guilty. The court held that the trial judge had appropriately balanced the seriousness of the offences against the mitigating factors in determining the sentence. The court concluded that the sentence was within the range of sentences that could be considered appropriate for the offences committed, and there was no basis to interfere with the sentence on the grounds of manifest excessiveness. Consequently, the appeal was dismissed, and the original sentence was upheld.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of 16 years' imprisonment with a non-parole period of 12 years was affirmed. The court's decision underscored the importance of considering both the gravity of the offence and the mitigating factors in sentencing, while also affirming the trial judge's discretion in determining an appropriate sentence.

Orders