Manyathela v The Queen - [2015] ACTCA 13

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Manyathela v The Queen
Citation:	[2015] ACTCA 13
Hearing Date:	26 February 2015
DecisionDate:	26 February 2015
Before:	Refshauge, Penfold and Burns JJ
Decision:	1. The appeal is upheld. 2. The conviction of the appellant for attempting to possess a marketable quantity of an unlawfully imported border controlled drug is confirmed. 3. The sentence and non-parole period imposed by Nield AJ on 30 October 2013 are set aside and the appellant is sentenced to imprisonment for six years, to commence on 8 March 2011, reduced from six years and eight months to take account of his plea of guilty. 4. The appellant is to be released today upon him providing security in the sum of $100 by recognisance, on condition that he will be of good behaviour for a period of two years and six months.
Category:	Principal Judgment
Catchwords:	APPEAL – SENTENCING – Appeal against a sentence which is manifestly excessive – Disparity between co-offenders’ sentences – Re-sentencing APPEAL – Attempting to possess a marketable quantity of an unlawfully imported border controlled drug
Legislation Cited:	Crimes Act 1914 (Cth), s 20 Criminal Code 1995 (Cth), ss 11.1 and 307.6(1)
Cases Cited:	Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 Lowe v The Queen (1984) 154 CLR 606 Matthews v The Queen; Vu v The Queen; Hashmi v The Queen [2014] VSCA 291 Ojielumhen v The Queen [2014] ACTCA 28
Parties:	Lenin Manyathela (Appellant) The Queen (Respondent)
Representation:	Counsel Mr R Davies (Appellant) Ms K Haigh (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 43 of 2014
Decision under appeal:	Court: ACT Supreme Court Before: Nield AJ Date of Decision: 30 October 2013 Case Title: R v Manyathela Court File Number: SCC 259 of 2011

REFSHAUGE J:

l ask Penfold J to deliver the first judgment.

PENFOLD J:

In October 2013 the appellant, Lenin Manyathala, and his co‑offender, Osaro Ojielumhen, were both sentenced by Nield AJ on pleas of guilty to charges of attempting to possess a marketable quantity of an unlawfully imported border controlled drug contrary to ss 11.1 and 307.6(1) of the Criminal Code 1995 (Cth). The offence involved the collection from the Canberra post office of a parcel sent from Thailand which contained a DVD player which in turn had, until it was intercepted by the Australian Federal Police, contained just under 200 g pure weight of cocaine.

It was clear from his Honour’s sentencing remarks that there was little to distinguish the two offenders, with the important exception that the appellant’s co‑offender had, around June 2013, decided to cooperate with police. He had subsequently provided information or assistance, or both, that his Honour accepted as justifying a 15% sentencing discount for the co‑offender on top of the 10% discount allowed to both offenders for their late pleas of guilty.

Mr Manyathala was sentenced to imprisonment for seven years and two months, with…

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 Manyathela v The Queen

Details

AGLC: Manyathela v The Queen [2015] ACTCA 13
Case: [2015] ACTCA 13
Decision Date: 26 February 2015

CaseChat Overview and Summary

Manyathela appealed against a sentence imposed by Nield AJ for attempting to possess a marketable quantity of an unlawfully imported border controlled drug. The appeal was heard by Refshauge, Penfold and Burns JJ in the Supreme Court of the Australian Capital Territory.

The primary legal issues before the Court were whether the sentence imposed was manifestly excessive and whether there was an unjustifiable disparity between the sentence received by the appellant and those of his co-offenders. The Court was also required to determine the appropriate sentence upon re-sentencing.

The Court upheld the appeal, confirming the conviction but setting aside the original sentence and non-parole period. In re-sentencing, the Court applied principles relating to the assessment of sentences for drug offences, taking into account the appellant's plea of guilty. The Court considered the disparity in sentences between co-offenders, noting that while parity is not an absolute requirement, significant differences warrant close scrutiny. The Court ultimately imposed a sentence of six years imprisonment, to commence from the date of the original sentence, and reduced the term to account for the guilty plea. The appellant was to be released upon providing security by recognisance, subject to a two-year and six-month good behaviour period.

Orders

Orders of the court

1. The appeal is upheld.

2. The conviction of the appellant for attempting to possess a marketable quantity of an unlawfully imported border controlled drug is confirmed.

3. The sentence and non-parole period imposed by Nield AJ on 30 October 2013 are set aside and the appellant is sentenced to imprisonment for six years, to commence on 8 March 2011, reduced from six years and eight months to take account of his plea of guilty.

4. The appellant is to be released today upon him providing security in the sum of $100 by recognisance, on condition that he will be of good behaviour for a period of two years and six months.

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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