Medan v The Queen

Case [2011] WASCA 142


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   MEDAN -v- THE QUEEN [2011] WASCA 142

CORAM:   PULLIN JA

BUSS JA
HALL J

HEARD:   7 APRIL 2011

DELIVERED          :   4 JULY 2011

FILE NO/S:   CACR 46 of 2010

BETWEEN:   DEJAN MEDAN

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :JENKINS J

File No  :INS 20 of 2009

Catchwords:

Criminal law - Appeal against sentence - Conspiracy to traffic in a controlled drug, namely MDMA - Quantity a commercial quantity - Appellant sentenced to 14 years' imprisonment with a non-parole period of 8 years 6 months - Parity principle - Whether appellant denied procedural fairness at the sentencing hearing - Sentencing discounts for early pleas of guilty to federal offences - Whether head sentence and non-parole period manifestly excessive

Legislation:

Crimes Act 1914 (Cth), s 16A
Criminal Code (Cth), s 11.5(1), s 302.1(c), s 307.1(1)

Result:

Leave to appeal granted on grounds 1, 2, 6 and 7
Leave to appeal refused on grounds 3, 4, 5 and 8
Appeal allowed
Appellant re-sentenced

Category:    D

Representation:

Counsel:

Appellant:     Mr T F Percy QC

Respondent:     Ms G A Archer SC

Solicitors:

Appellant:     Mirko Bagaric Lawyers

Respondent:     Director of Public Prosecutions (Cth)

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

Billing v The State of Western Australia [No 2] [2008] WASCA 11

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 273 ALR 324

International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319

Jardim v The State of Western Australia [2011] WASCA 83

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Law v The State of Western Australia [2009] WASCA 193

Ljuboja v The Queen [2011] WASCA 143

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605

Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

P v The Queen [2003] WASCA 180

Pedersen v The State of Western Australia [2010] WASCA 175

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Bugeja [2001] NSWCCA 196

R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151

R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Thom v The Queen [2001] WASCA 322; (2001) 126 A Crim R 196

  1. PULLIN JA:  I agree with Buss JA.

  2. BUSS JA:  On 3 September 2009, the appellant was convicted in the Supreme Court before Jenkins J, on his plea of guilty, on one count in an indictment. 

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Medan v The Queen [2011] WASCA 142
Case
[2011] WASCA 142
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CaseChat Overview and Summary

In the matter of Medan v The Queen, the appellant, Medan, appealed against his sentence for conspiracy to traffic in a controlled drug, namely MDMA. The appeal was heard by the Full Court of the Federal Court of Australia. The key issues for determination were whether Medan was denied procedural fairness at his sentencing hearing and whether the head sentence and non-parole period were manifestly excessive.

The court considered whether procedural fairness was observed during the sentencing hearing. Medan and the Crown had filed and served written submissions prior to the hearing, with the Crown accepting that Medan's role in the offending was less than that of other co-conspirators but still of great importance. During the hearing, counsel for both parties made extensive submissions, with the Crown acknowledging Medan's junior role but still emphasising its significance. The sentencing judge later recognised the importance of Medan's role, aligning it with that of other co-conspirators, as evidenced by the discount given for his early plea and the absence of substantial commerciality in his sentence compared to others.

The Full Court concluded that the sentencing judge had indeed recognised Medan's significant role in the conspiracy, despite his lower position in the hierarchy. The court found that procedural fairness was observed and that the sentence was not manifestly excessive. The Full Court upheld the sentence imposed by the primary judge.

The Full Court made no order altering the sentence imposed by the primary judge. The appeal was 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

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Ratio Decidendi

Legal Principle Established

Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ). The requirements of procedural fairness are flexible. Proceedings where procedural fairness must be accorded may be organised to ensure fairness having regard to the nature and circumstances of the particular proceeding, including the relevant facts, the statutory context, the matters in dispute, the circumstances of the particular parties whose interests may be affected, and the legal representation of parties before the relevant body or tribunal. See Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [56] (Buss JA). The appellant and the Crown filed and served written submissions before the hearing of his plea in mitigation on 26 October 2009. The Crown's written submissions dated 22 October 2009 said that the appellant's role in the offending 'is accepted as being a lesser one than' the role of Mr Ljuboja, Mr Quaid and Mr Papadimitriou [23]. The submissions asserted elsewhere, however, that the appellant's role was nevertheless 'paramount to the success of the conspiracy and of great importance to' Mr Ljuboja [19]. The appellant's written submissions dated 23 October 2009 asserted that the appellant's role 'in the overall transaction is at the bottom of the hierarchy' [18]. At the hearing on 26 October 2009, counsel representing the Crown and counsel for the appellant made extensive oral submissions. Counsel for the appellant asserted that the appellant was 'definitely at the bottom of the hierarchy' (ts 228). Counsel representing the Crown said that the appellant's offending was 'extremely serious'. She added that 'his role was as a lesser player but no less an essential player in the operation' (ts 255). She noted that 'even the lesser players are important because without them these offences cannot be carried through to fruition' (ts 256). Later, however, in her submissions, counsel representing the Crown said:It is accepted that this offender was at a lower level than his co‑conspirators but it does not necessarily put him at the level of, as it were, the hired help, just simply moving some stuff from the pallets to the van or carrying a small parcel from X location to Y location. The involvement of this offender, we would say, was of ‑ at a significant level, although not as significant as that of the others. He clearly was, your Honour, obviously, in chronological terms, the most junior member and, as I think earlier on we quote, or I quoted from one of the calls where he is referred to as 'the boy'. My recollection is he's also referred as 'the young one' in other exchanges (ts 257 ‑ 258). (emphasis added) In my opinion, the sentencing judge's observation about her realisation of the importance of the appellant's role, made during her sentencing remarks on 23 March 2010, was, in substance, a finding that the appellant's objective criminality (as measured by his role in the conspiracy) was similar to that of Mr Quaid and Mr Papadimitriou. This is confirmed by the extent of the discount given to the appellant for his early plea, the matter referred to at pars 8 ‑ 17 of his written submissions to her Honour and the absence of substantial commerciality, as embodied in his head sentence and non‑parole period, compared to the head sentences and non‑parole periods of Mr Quaid and Mr Papadimitriou.