Mason (a pseudonym) v The King

Case [2023] VSCA 75


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0016
ALICIA MASON (A PSEUDONYM)[1] Applicant
v
THE KING Respondent

[1]This judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant so as to protect the safety of a person.

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JUDGES: BEACH and NIALL JJA
WHERE HELD: Melbourne
DATE OF HEARING: 30 March 2023
DATE OF JUDGMENT: 6 April 2023
MEDIUM NEUTRAL CITATION: [2023] VSCA 75
JUDGMENT APPEALED FROM: DPP v [Mason] (County Court, 14 December 2022, Judge Wraight)

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CRIMINAL LAW – Leave to appeal – Sentence – Pursuant to Crimes Act 1914 (Cth) s 16AC judge specified applicant’s sentence would have been 29 years’ imprisonment had she not cooperated with law enforcement agencies – Whether s 16AC specification part of sentence and relevant to whether sentence manifestly excessive – Section 16AC specification not a starting point for sentence – Section 16AC specification not useful to contend sentence manifestly excessive – Not reasonably arguable head sentence and non-parole period manifestly excessive.

CRIMINAL LAW – Leave to appeal – Sentence – Judge did not specify under Crimes Act 1914 (Cth) s 16AC the non-parole period that would have been imposed had applicant not cooperated with law enforcement agencies – Whether failure to specify non-parole period that would have been imposed is a vitiating error – Section 16AC specification not a sentence or part of a sentence – Failure to make specification not an error in sentence – Leave to appeal granted – Appeal dismissed.

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Counsel
Applicant: Mr DD Gurvich KC and Ms K Mildenhall
Respondent: Mr B Ihle KC and Mr MN Keks

Solicitors

Applicant: Bowler & Co
Respondent: James Carter, Solicitor for Public Prosecutions (Cth)

BEACH JA
NIALL JA:

  1. The applicant was sentenced by a judge of the County Court on her plea of guilty to a charge of importing a commercial quantity of a border controlled drug.[2] At the same time, the applicant was sentenced on a summary offence of breaching her bail conditions.

    [2]Criminal Code Act 1995 (Cth) sch 1 s 307.1(1).

  2. The importation was effected by concealing methylamphetamine and heroin in a shipment of household appliances. On any view, the quantity of drugs imported was enormous, comprising:

    (a)around 1.2 tonnes of methylamphetamine;[3] and

    (b)just under 30 kg of heroin.[4]

    [3]With a purity of 80 per cent.

    [4]With a purity of between 76 and 80 per cent.

  3. It was agreed on the plea that this equated to almost 16 million individual doses of methylamphetamine and 1.5 million individual doses of heroin. Whether on a wholesale or street level basis the dollar value of the consignment was staggering. The combined value of the former being close to $200 million and the latter around $700 million.

  4. The maximum penalty for the offence is life imprisonment.

  5. The applicant was sentenced to 11 years’ imprisonment with a non-parole period of 7 years.[5]

    [5]A sentence of 1 month was imposed on the summary charge which was ordered to be served concurrently.

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Mason (a pseudonym) v The King [2023] VSCA 75
Case
[2023] VSCA 75
Decision Date

CaseChat Overview and Summary

Mason, a pseudonym for the applicant, appealed against the sentence imposed by the High Court, arguing it was manifestly excessive. The nature of the appeal was centred on the application of sections 16AC and 6AAA of the Crimes Act 1914 (Cth). The High Court was required to determine whether the specification under section 16AC of the likely sentence had it the applicant not cooperated with law enforcement, and the failure to specify a non-parole period under the same section, were errors that rendered the sentence manifestly excessive. Additionally, the court had to decide whether these errors warranted the grant of leave to appeal and if the appeal itself should be dismissed.

The court considered the nature of the section 16AC specification, determining it was not a starting point for the sentence and not part of the sentence itself. Consequently, it was not useful to argue that the sentence was manifestly excessive based on this specification. Furthermore, the court held that the failure to specify the non-parole period under section 16AC did not constitute a vitiating error because this specification was not a part of the sentence. The court found that the sentence and the non-parole period were not manifestly excessive and that it was not reasonably arguable that they were. Despite these findings, the court granted leave to appeal due to the procedural errors but dismissed the appeal on the basis that the sentence was not manifestly excessive.

The court's decision concluded with an order for the judge to separately declare what the outcome would have been without the plea of guilty. The court acknowledged that the undertaking, which was not part of the section 6AAA declaration, might further detach the statement from the actual facts of the case. Consequently, while leave to appeal was granted, the appeal was ultimately dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Separately the judge should declare what would have been the case had there been no plea of guilty. The fact of the undertaking, which does not form a part of the s 6AAA declaration which is confined to the plea of guilty, will likely render the s 6AAA statement even more divorced from the actual facts of the case. Conclusion While leave to appeal will be granted, the appeal must be dismissed.---

Ratio Decidendi

Legal Principle Established

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