Application for leave to appeal against conviction and sentence - Possession of stolen or unlawfully obtained property - Criminal Code s 428(1) - Forfeiture of $8,000 cash - Sentence of immediate imprisonment for 9 months - Application for leave to appeal against sentence - Conviction for an offence against s 428 does not establish that the property involved was stolen or unlawfully obtained - Significance of forfeiture order - Combination of pecuniary penalty in the form of forfeiture order and sentence of imprisonment - Suitability of suspended sentence

Legislation:

Criminal Code 1911 (WA)

Result:

Leave to appeal against conviction granted - appeal against conviction dismissed
Leave to appeal against sentence granted - appeal against sentence allowed - Appellant resentenced to 7 months' imprisonment sentence suspended for 18 months from date of conviction

Category: A

Representation:

Counsel:

Applicant/Appellant : Ms L Black
Respondent: Ms M J Paterson

Solicitors:

Applicant/Appellant : Porter Scudds
Respondent: State Solicitor for Western Australia

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

Beard v The Queen [2003] WASCA 262
Denton v Murdock (Unreported, WASC, Library No 95072, 12 October 1992)
Dinsdale v The Queen (2000) 202 CLR 321
Grant v The Queen (1981) 147 CLR 503
Hoskins v Ramsden [2008] WASC 28
Hoskins v Ramsden [No 2] [2009] WASCA 90
House v The King (1936) 55 CLR 499
Kavanagh v Claudius (1907) 9 WALR 55
Langridge v The Queen (1996) 17 WAR 346
Lowndes v The Queen (1999) 195 CLR 665
Mabbott v The Queen [1990] WAR 323
McLennan v Campbell [2003] WASCA 145
Ricciardello v Van Aken (1996) 14 WAR 1
Ryan v Dimitrovski (1996) 16 WAR 457
Samuels v Western Australia (2005) 30 WAR 473

EM HEENAN J: On 17 June 2009 Frank John Marzano was tried in the Magistrates Court of Western Australia at Bunbury before his Honour, Mr KT Fisher SM on a charge that on 4 July 2008 at Bunbury he was in possession of property (namely $8,000 in cash) that was reasonably suspected to be stolen or otherwise unlawfully obtained contrary to s 428(1) of the Criminal Code. Following his plea of not guilty the trial proceeded and Mr Marzano was convicted as charged. After hearing submissions in relation to sentence the learned magistrate then imposed a sentence of 9 months' immediate imprisonment and ordered the forfeiture of the $8,000 cash.
From that conviction and sentence Mr Marzano has applied to this court for leave to appeal and by orders made by McKechnie J on 24 August 2009 it was directed that the applications for leave to appeal and any appeal should be heard together.…

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 Marzano v Procopis

Details

AGLC: Marzano v Procopis [2009] WASC 332
Case: [2009] WASC 332
Decision Date: 18 NOVEMBER 2009

CaseChat Overview and Summary

The case of Marzano v Procopis involved the applicant, Marzano, appealing against his conviction and sentence in relation to possession of stolen or unlawfully obtained property under the Criminal Code. The case was heard in the Supreme Court of Queensland. The dispute centred around the validity of the conviction and the appropriateness of the sentence imposed, which included an immediate imprisonment term of nine months and a forfeiture order of $8,000 in cash.

The primary legal issues for the court to determine were whether the conviction under section 428(1) of the Criminal Code necessarily established that the property involved was stolen or unlawfully obtained, and whether the combination of the pecuniary penalty in the form of a forfeiture order with the sentence of imprisonment was suitable. Additionally, the court had to consider whether a suspended sentence could have been a more appropriate punishment in the circumstances.

The court found that the conviction alone did not automatically establish that the property was stolen or unlawfully obtained. It also considered the significance of the forfeiture order and the suitability of the sentence imposed. The court held that the combination of the forfeiture order and the imprisonment term might have been disproportionate. Furthermore, it was noted that a suspended sentence could have been a viable alternative, given the circumstances of the case. Ultimately, the court determined that the applicant was entitled to leave to appeal against his sentence.

In conclusion, the court granted the application for leave to appeal against the sentence, finding that the combination of the forfeiture order and imprisonment term was unsuitable and that a suspended sentence could have been more appropriate. The conviction itself, however, remained unchallenged. The case underscores the importance of considering the totality of the penalty imposed on an offender and the potential for alternative sentencing options.

Orders