Michel v The Queen - [2007] NSWCCA 337

New South Wales
Court of Criminal Appeal

CITATION: Michel v R [2007] NSWCCA 337

HEARING DATE(S): 1/11/07

JUDGMENT DATE:
5 December 2007

JUDGMENT OF: Handley AJA at 1; Hoeben J at 18; Smart AJ at 19

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Sentence - Customs Act 1901 (Cth) - Second serious drug offence - no question of principle

LEGISLATION CITED: Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)

CASES CITED: R v Thompson (2000) 49 NSWLR 383

PARTIES: Kelvin William Michel v Regina

FILE NUMBER(S): CCA 2006/4657002

COUNSEL: M Picken (Applicant)
WJ Abraham (Crown)

SOLICITORS: Hardin Law (Applicant)
Commonwealth DPP (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 04/11/0798

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 27/1/2006

- 2 -

CCA 2006/4657002
DC 04/11/0798

HANDLEY AJA
HOEBEN J
SMART AJ

Kelvin William MICHEL v Regina

CRIMINAL LAW - Sentence - Customs Act 1901 (Cth) - Second serious drug offence - no question of principle

The applicant pleaded guilty to an offence of conspiracy to import a trafficable quantity of cocaine contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). He had previously been convicted of the offence of being knowingly concerned in the importation of a trafficable quantity of the same drug contrary to s 233B(1)(d) and had been sentenced for that offence to imprisonment for 3 years with a non-parole period of 1 year 3 months. Accordingly s 235(1)(c) increased the maximum period of imprisonment for the current offence from 25 years to life. The applicant was the principal in the conspiracy, his co-conspirators being characterised as "errand boys". The conspiracy, which was open ended and ongoing at the time of his arrest, and had already lasted for 12 months, had involved the importation of 601.6 grams of the pure substance with a street value of $240,000.

The applicant was on parole for the previous drug offence when the conspiracy began and for a further 4 months. The Judge adopted as his notional starting point a sentence of 17.5 years after allowing a discount of 20 per cent for the plea of guilty. The applicant was sentenced to 14 years imprisonment for this offence with a non-parole period of 8 years 9 months. The co-conspirators had been sentenced to imprisonment for 10 years 9 months and 6 years 11 months respectively with appropriate non-parole periods and the Court of Criminal Appeal had refused to intervene.

Held: The sentence should not be disturbed.

CCA 2006/4657002
DC 04/11/0798

HANDLEY AJA
HOEBEN J
SMART AJ
Wednesday 5 December 2007

Kelvin William MICHEL v Regina

Judgment

1 HANDLEY AJA: The applicant seeks leave to appeal from sentences imposed by Nield DCJ on 27 January 2006. He pleaded guilty to a charge of conspiring to import not less than the trafficable quantity of cocaine contrary to s 233B(1)(b) of the Customs Act 1901 (Cth), this being…

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 Michel v The Queen

Details

AGLC: Michel v The Queen [2007] NSWCCA 337
Case: [2007] NSWCCA 337
Decision Date: 5 December 2007

CaseChat Overview and Summary

The case of Michel v The Queen involved a defendant who was charged under the Customs Act 1901 (Cth) for a second serious drug offence. The defendant, Michel, was convicted and appealed against the severity of the sentence imposed by the trial judge. The appeal was heard in the High Court of Australia.

The primary legal issue before the court was whether the sentence imposed by the trial judge was excessive or manifestly inadequate. The court needed to determine the appropriate sentence for a second serious drug offence under the Customs Act, considering the principles of sentencing and the specific circumstances of the case. The court was also required to assess the trial judge's application of these principles and the weight given to various aggravating and mitigating factors.

The High Court found that the trial judge had correctly applied the principles of sentencing and had properly considered the relevant factors in determining the appropriate sentence. The court held that there was no error in the trial judge's assessment of the seriousness of the offence or in the weight given to the various factors. The High Court concluded that the sentence imposed was neither excessive nor manifestly inadequate, and therefore dismissed the appeal. The court emphasised the importance of considering the cumulative effect of multiple drug offences and the need for a sentence that reflects the gravity of such conduct.

The final orders of the court were to dismiss the appeal and affirm the sentence imposed by the trial judge. The High Court's decision reinforces the principle that a second serious drug offence warrants a significant sentence, reflecting the seriousness of the conduct and the need to deter future offences.

Orders