Marco Furia v The Queen - [2011] HCASL 149

MARCO FURIA
v
THE QUEEN
[2011] HCASL 149
S26/2011

On 11 September 2008, the applicant pleaded guilty in the District Court of New South Wales to an offence of knowingly taking part in the supply a large commercial quantity of 1-phenyl-2-propanone contrary to s 25(2) of the Drugs Misuse and Trafficking Act 1985 (NSW). At his sentencing, the applicant sought to persuade the sentencing judge (Marien DCJ) that he was not involved in the sale of drugs, but rather was gathering information which he intended to provide to police. Marien DCJ did not accept the applicant's evidence, being satisfied that the applicant was actively involved in the offence for no reason other than to acquire substantial profits. His Honour assessed the applicant's offence as falling within the mid-range of objective seriousness for offences of this kind. Acknowledging that the applicant's subjective case was "strong", his Honour made a finding of "special circumstances" warranting a variation between the statutory ratio between the sentence and non-parole period. His Honour sentenced the applicant to imprisonment for 16 years with a non-parole period of eight years.
On 21 December 2010, the Court of Criminal Appeal of New South Wales (R A Hulme J with whom Giles JA and Hislop J agreed) granted leave to appeal, allowed the appeal and re-sentenced the applicant to a total term of 13 years and two months leaving the non-parole period undisturbed. His Honour rejected the applicant's submissions of error on the part of the sentencing judge in: not accepting the applicant's explanation that his involvement in the activities in question were for legitimate purposes; finding that the applicant's involvement was at the mid-range of objective seriousness; finding that no question of parity arose with reference to a co-offender; and failing to discount the sentence because the applicant had provided information to law enforcement authorities. His Honour found there was no error in the way the sentencing judge evaluated these matters.
However, R A Hulme J found the starting point for the sentence of 19 to 20 years before reduction for the plea of guilty, was excessive and reduced it whilst maintaining the percentage discount for the plea, which the sentencing judge had allowed, although it was overly generous. His Honour also assessed the non-parole period as somewhat lenient, but permitted it to stand. The proportion that period reflected of the total sentence remained less than that referred to in the Crimes (Sentencing Procedure) Act 1999 (NSW). This was consistent with the finding of the sentencing judge that special circumstances warranted a departure from the statutory proportion.
The application to this Court does not advance any questions of law that would justify the grant of special leave to appeal and does not enjoy sufficient prospects of success to warrant special leave being granted.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

W.M.C. Gummow S.M. Kiefel

8 September 2011

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: [2011] HCASL 149
Decision Date

CaseChat Overview and Summary

Marco Furia sought special leave to appeal against his conviction and sentence for his involvement in the supply of a large commercial quantity of 1-phenyl-2-propanone, an illicit drug precursor. The case originated from a guilty plea entered in the District Court of New South Wales and subsequent sentencing. Furia was sentenced to 16 years imprisonment with a non-parole period of eight years. The Court of Criminal Appeal later reduced his sentence to 13 years and two months, but upheld the non-parole period. Furia now seeks special leave to appeal to the High Court of Australia.

The central legal issues in this appeal concern the correctness of the original sentencing and the subsequent reduction of the sentence by the Court of Criminal Appeal. Specifically, Furia contests whether the sentencing judge erred in not accepting his claim that he was gathering information for police, in assessing the objective seriousness of his offence, in not considering parity with co-offenders, and in not discounting the sentence for providing information to law enforcement. Additionally, the appeal questions whether the starting point for the sentence was excessive and whether the non-parole period was lenient.

The High Court assessed Furia's appeal and found that there was no error in the way the sentencing judge evaluated the contested issues. The Court of Criminal Appeal's decision to reduce the sentence was upheld as the starting point for the sentence was deemed excessive, although the discount for the plea was considered overly generous. The non-parole period was deemed lenient but allowed to stand as it was consistent with the sentencing judge's finding of special circumstances. The High Court concluded that there were no questions of law that warranted special leave to appeal and that the prospects of success were insufficient to justify such leave. Therefore, the application for special leave was dismissed.

Orders