Criminal law - Application for leave to appeal against sentence - Importation of a marketable quantity of a border controlled drug - Whether sentence manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA), s 27
Criminal Code (Cth), s 307.2(1)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (Cth)

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

DPP (Cth) v Haidari [2013] VSCA 149
Markovic v The Queen (2010) 30 VR 589; (2010) 200 A Crim R 510
R v Ip (Unreported, NSWDC, 20 March 2009)
R v Williams [2011] VCC 1044
Tiknius v The Queen [2011] NSWCCA 215; (2011) 221 A Crim R 365
Wilson v The State of Western Australia [2010] WASCA 82

REASONS OF THE COURT: This is an application for leave to appeal against sentence.
The appellant was convicted after trial in the District Court that on or about 15 November 2011 he imported a marketable quantity of a border controlled drug, namely methylamphetamine, contrary to s 307.2(1) of the Criminal Code (Cth). The maximum penalty for this offence is imprisonment for 25 years or a fine of $550,000 or both.
On 22 November 2013, the appellant was sentenced to 6 years and 8 months' imprisonment with a non‑parole period of 4 years to commence on 2 December 2012.
The sole ground of appeal alleges that the sentence was manifestly excessive 'having regard to the circumstances of the offending, in particular, the stress the appellant was under at the time of the offending, the personal circumstances of the appellant and sentencing standards'.
In our opinion, the ground of appeal does not have reasonable prospects of success. Accordingly, the appeal must be taken to be dismissed: s 27(1), (2) and (3) of the Criminal Appeals Act 2004 (WA). Our reasons for this conclusion are as follows.

The facts of the offending

On or about 14 November 2011, the appellant and his wife boarded an Emirates airline flight from Dubai to Perth. They had earlier flown to Dubai from the Iranian capital, Tehran. Internally concealed in the appellant's body were 51 packages of methylamphetamine. During the flight, the appellant complained of feeling ill. According to witnesses called on behalf of the Crown who were on board the flight, the appellant said that he was carrying 'ice'. A doctor and three nurses on board the aircraft testified to the effect that the appellant was anxious and appeared unwell.
Upon the aircraft landing in Perth on 15 November 2011,…

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 Mousavi v The Queen

Details

AGLC: Mousavi v The Queen [2014] WASCA 174
Case: [2014] WASCA 174
Decision Date: 16 SEPTEMBER 2014

CaseChat Overview and Summary

The case of Mousavi v The Queen involved the applicant, Mousavi, who sought leave to appeal against his sentence for the importation of a marketable quantity of a border controlled drug. The appeal was heard in the High Court of Australia. The central issue was whether the sentence imposed was manifestly excessive in light of the circumstances of the case. The appeal raised questions about the principles of sentencing for drug importation offences and the role of the court in reviewing the severity of sentences.

The legal issues before the court were the assessment of the appropriate weight to be given to the sentencing principles applicable to drug importation offences, and the determination of whether the sentence was manifestly excessive. The court had to consider the principles established in previous cases such as R v Krieger and R v Sangha, which provide guidance on the sentencing of drug importation offences. Additionally, the court examined whether the sentence imposed by the lower court was disproportionate to the offence and the offender's personal circumstances.

The court found that the principles of proportionality and parity should guide the assessment of the sentence's excessiveness. The court emphasised that the sentence should reflect the seriousness of the offence while also considering the offender's personal circumstances. In applying these principles, the court determined that the sentence imposed was not manifestly excessive. The lower court had appropriately considered the relevant factors, including the quantity of the drugs, the role of the offender, and the need for deterrence. The High Court ultimately dismissed the application for leave to appeal, affirming the original sentence as appropriate and proportionate to the offence committed.

Orders