MI v The Queen - [2017] NSWCCA 225

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: MI v R [2017] NSWCCA 225
Hearing dates: 14 August 2017
Decision date: 15 September 2017
Before: Basten JA at [1];
Button J at [3];
Hamill J at [60]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords: CRIME – appeal – sentence – conspiracy to import a commercial quantity of a border-controlled precursor – whether erroneous disparity between sentences of offender and co-offender – where co-offender played a greater role within the hierarchy – whether sentence manifestly excessive – appeal dismissed
Legislation Cited: Commonwealth Criminal Code 1995 (Cth), ss 11.5; 307.11
Criminal Procedure Act 1986 (NSW), s 166
Firearms Act 1996 (NSW), s 65
Weapons Prohibition Act 1998 (NSW), s 7
Cases Cited: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
PG v R [2017] NSWCCA 179
R v Nakash [2017] NSWCCA 196
R v Harb (District Court (NSW), 30 January 2015, unrep)
R v Popovic (District Court (NSW), 7 September 2011, unrep)
R v Spadina [2015] NSWSC 933
XY v R [2013] VSCA 261
Category: Principal judgment
Parties: MI (Applicant)
Regina (Respondent)
Representation:
Counsel:
S. Kluss (Applicant)
A. N. Williams (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/00046859
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 September 2016

Before:

Hunt DCJ

File Number(s):

2015/00046865; 2015/00046859

Judgment

BASTEN JA: The applicant seeks leave to appeal against a sentence imposed on him for conspiracy to import a commercial quantity of a border controlled substance. The first ground of the proposed appeal was that the applicant and his co-offender obtained identical sentences, in circumstances where the disparity in their offending and subjective circumstances warranted a lesser sentence being imposed on the applicant. The second proposed ground was that the sentence was manifestly excessive.
For the reasons given by Button J, I agree that there should be a grant of leave to appeal with respect to each ground, but that the appeal should be dismissed.
BUTTON J:

Background

On 16 September 2016 in the District Court at Campbelltown, Judge Hunt sentenced two men for the offence of conspiring to import a commercial quantity of the border-controlled precursor pseudoephedrine. The maximum penalty for that Commonwealth offence, pursuant to ss 11.5 and 307.11 of the Commonwealth Criminal Code 1995 (Cth), is imprisonment for 25 years and a fine of $850,000.
One of those men was the applicant MI. The other was the co-offender AN (with regard to both of them, I shall maintain the anonymity adopted in the District Court).

Objective features

Each man had admitted in the Local Court that he had agreed to the importation from Iran of more than the commercial quantity of the well-known precursor to the manufacture of amphetamines, and that the criminal agreement had extended for over…

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 MI v The Queen

Details

AGLC: MI v The Queen [2017] NSWCCA 225
Case: [2017] NSWCCA 225
Decision Date: 15 September 2017

CaseChat Overview and Summary

The matter before the court involved an appeal by the offender against a sentence imposed for conspiracy to import a commercial quantity of a border-controlled precursor. The offender, referred to as MI, was convicted along with co-offenders in a drug importation scheme. The central legal issue revolved around the disparity in sentencing between MI and the co-offenders, with MI arguing that the sentence imposed was erroneous and manifestly excessive, particularly when considering that the co-offenders, who played a more significant role within the conspiracy's hierarchy, received lesser sentences.

The court examined the sentencing principles applicable to the case, specifically focusing on the need for proportionality in sentencing and the importance of recognising the relative roles of the offenders. It was noted that the sentencing judge had considered various factors, including the roles played by each offender and the overall impact of the conspiracy. The court found that the sentencing judge had appropriately exercised their discretion in imposing a sentence that reflected the offender's culpability, despite the perceived disparity with the sentences of the co-offenders.

MI's argument that the sentence was manifestly excessive was rejected by the court, which held that the sentence was within the appropriate range given the circumstances of the case. The court found no error in the judge's consideration of the offender's role and the need for deterrence and denunciation. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders