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 |
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…
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- AGLC
- Manyathela v The Queen [2015] ACTCA 13
- Case
- [2015] ACTCA 13
- Decision Date
CaseChat Overview and Summary
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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