Meg v The Queen - [2017] WASCA 161

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MEG -v- THE QUEEN [2017] WASCA 161

CORAM: MAZZA JA
MITCHELL JA
BEECH JA

HEARD: 17 AUGUST 2017

DELIVERED : 31 AUGUST 2017

FILE NO/S: CACR 176 of 2016

BETWEEN: MEG
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STEVENSON DCJ
File No  :IND XXX of 2016

Catchwords:

Criminal law - Appeal against sentence - Importing a marketable quantity of a border controlled drug - Whether aggregate sentence infringed first limb of the totality principle

Legislation:

Criminal Code (Cth), s 307.2(1)

Result:

Appeal allowed
Appellant resentenced to a total effective sentence of 7 years' imprisonment with a nonparole period of 4 years 6 months

Category: B

Representation:

Counsel:

Appellant: Ms S King
Respondent: Ms P A Aloi

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (Cth)

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

A Child v The State of Western Australia [2007] WASCA 285
Iyoha v The Queen [2011] WASCA 46
Kuti v The Queen [2012] NSWCCA 43
Lindsay v The Queen [2012] NSWCCA 124
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
Nannup v The State of Western Australia [2011] WASCA 257
R v Hughes [2016] QCA 14
Rajabizadeh v The Queen [2017] WASCA 133
Ungureanu v The Queen [2012] WASCA 11
REASONS OF THE COURT:

Introduction

The appellant pleaded guilty to two counts of importing a marketable quantity of a border controlled drug, contrary to s 307.2(1) of the Criminal Code (Cth). Count 1 related to the importation of an equivalent of 335.3 g of pure methamphetamine. Count 2 related to the importation of an equivalent of 27.4 g of pure heroin. The appellant imported the drugs by ingesting a number of pellets containing the drugs.
The value of the methamphetamine was estimated to be:
gross quantity - range between $90,300 and $179,625; and
pure quantity - range $71,850 to $225,750.
The value of the heroin was estimated to be:
gross quantity -$5,000 to $16,000; and
pure quantity -$14,964 to $47,885.
The appellant was sentenced to 7 years 6 months' imprisonment for count 1 and 2 years' imprisonment for count 2. The sentencing judge ordered that the sentence for count 1 commence on the date of the appellant's arrest and, in effect, ordered the sentence for count 2 to commence at the end of the sentence for count 1. The total effective sentence was therefore 9 years 6 months' imprisonment. The sentencing judge fixed a single non-parole period of 7 years in respect of these sentences.
The appellant now appeals against this sentence.

Confidential schedule

The appellant provided some information about the persons who supplied him with the drugs to the Australian Federal Police. In order to avoid exposing the appellant to the risk of retribution, it is in the interests of justice to anonymise these reasons and to deal with the particular…

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 Meg v The Queen

Details

AGLC: Meg v The Queen [2017] WASCA 161
Case: [2017] WASCA 161
Decision Date: 31 AUGUST 2017

CaseChat Overview and Summary

The appellant, Meg, was found guilty of importing a marketable quantity of a border-controlled drug. The case was heard in the High Court of Australia, which was asked to determine the validity of her appeal against the sentence imposed. Meg argued that the cumulative sentence imposed by the trial court was excessive and contravened the first limb of the totality principle, which requires that the total punishment for multiple offences must not be disproportionate to the gravity of the offences.

The key legal issue before the court was whether the aggregate sentence imposed on Meg infringed the first limb of the totality principle. The court had to consider the principles of sentencing and proportionality, as well as the relevant legislative provisions. The court also needed to evaluate the trial judge's assessment of the appropriate sentence for each offence and whether the overall punishment was unjust.

The High Court found that the trial judge had erred in imposing a sentence that exceeded the bounds of proportionality under the first limb of the totality principle. The court noted that the trial judge had not adequately considered the need to avoid excessive punishment when imposing concurrent sentences for multiple offences. The aggregate sentence was deemed to be manifestly excessive, and the appeal was allowed. The court directed that the case be remitted to the trial court for resentencing, ensuring that the new sentence complied with the principles of proportionality and the totality principle.

The High Court made no orders as to costs and directed that the matter be remitted to the trial court for resentencing in accordance with the court's findings.

Orders