Mummery, W.E. v The Queen - [1985] FCA 37

Re: WILLIAM ERIC MUMMERY
And: THE QUEEN
No. NTG 41 of 1984
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
McGregor J.
Beaumont J.

CATCHWORDS

Criminal Law - sentencing - appeal against severity of sentence - appellant convicted of supplying drugs for resale to co-offender - appellant's sentence more severe than that of the co-offender - whether appellant's sentence of imprisonment and non-parole period manifestly excessive - whether disparity between sentences imposed on appellant and co-offender such as to warrant intervention - whether certain remarks of trial judge concerning appellant such as to warrant intervention.

Lowe v. R. (1984) 54 ALR 183 - con.

HEARING

SYDNEY
#DATE 20:2:1985

ORDER

The appeal is dismissed.

JUDGE1

This is an appeal by WILLIAM ERIC MUMMERY (appellant) against the severity of a sentence imposed on him on 27 November 1984 by the Northern Territory Supreme Court (Muirhead, J.) of imprisonment with hard labour of 18 calendar months with a non-parole period of eight months.

The appellant was charged with supplying cannabis contrary to s.66(2)(b) of the Poisons and Dangerous Drugs Act 1983, the particulars being that on 26 November 1983 in Darwin the appellant supplied cannabis to Mark James Faint (Faint). The maximum sentence provided was 7 years for a first offence and, in certain circumstances, 15 years for a second offence.
The facts are that on or about 26 November 1983, following an approach by Faint who was known to him, the appellant supplied 40 deal sized bags of cannabis. No money then changed hands, the arrangement being that Faint would sell the drug and return the proceeds to the appellant. The reward to Faint was that he would "tax" the bags, meaning take from each a small portion of the drug for himself with the view to obtaining the equivalent of eight deals for himself. Thereafter, Faint and one Patrick Wilson went to Katherine. They did sell some of the cannabis there. Faint was returning to Darwin when he was arrested. The residual cannabis, slightly over 600 grams, was found in the vehicle in which he was travelling. His Honour said that although the appellant did not, in fact, profit from the crime, if all had gone as arranged he stood to receive $4,OOO.OO. His Honour referred to the transaction as "a supply of a significant quantity on a commercial basis".
The learned trial Judge, as part of the evidence available to him, considered the appellant's previous record of convictions including convictions imposed on 25 June 1976 for being unlawfully in possession of cannabis for which a sentence of one month's hard labour was imposed but which had been suspended upon the appellant entering into a bond; and that on 23 November 1981 the appellant had been convicted on counts of possessing cannabis and possessing the drug for the purposes of supply. On that occasion the appellant had been, as his Honour put it, "treated leniently" in that he had been fined and,…

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 Mummery, W.E. v The Queen

Details

AGLC: Mummery, W.E. v. R [1985] FCA 37
Case: [1985] FCA 37
Decision Date: 20 FEBRUARY 1985

CaseChat Overview and Summary

In the case of Mummery, W.E. v The Queen, the appellant sought to appeal the severity of his sentence, arguing it was manifestly excessive and that the disparity between his sentence and that of his co-offender warranted intervention. The appellant was convicted of supplying drugs for resale to a co-offender and was sentenced to a term of imprisonment with a non-parole period. The High Court was tasked with considering whether the sentence was manifestly excessive and whether the disparity in sentencing between the appellant and his co-offender justified intervention. Additionally, the court examined whether certain remarks made by the trial judge concerning the appellant warranted intervention.

The primary legal issues the court had to address were the assessment of the severity of the appellant's sentence, the comparison of the sentence with that of the co-offender, and the potential impact of the trial judge's remarks. The court needed to determine if the appellant's sentence of imprisonment and the non-parole period were so disproportionate as to be manifestly excessive. It also had to consider whether the difference in sentences between the appellant and his co-offender was significant enough to warrant judicial intervention. Furthermore, the court was required to evaluate if the remarks made by the trial judge during sentencing had any prejudicial effect on the appellant's case.

The High Court reviewed the evidence and the circumstances of the case, including the nature and extent of the appellant's involvement in the drug supply operation. The court also considered the principles of parity in sentencing and the need for sentences to be proportionate and just. The court found that while the appellant's sentence was severe, it was not manifestly excessive in the circumstances of the case. The disparity between the sentences of the appellant and his co-offender, while notable, did not reach the level of unfairness that would warrant intervention. Additionally, the court determined that the trial judge's remarks did not prejudice the appellant's case to the extent that it would necessitate a new sentencing hearing.

The appeal was dismissed by the High Court, upholding the original sentence imposed on the appellant. The court's decision was based on the conclusion that the sentence, though severe, was not manifestly excessive, and the disparity in sentencing did not warrant intervention. Furthermore, the court found that the trial judge's remarks did not prejudice the appellant's case to a significant degree.

Orders

Orders of the court

The appeal is dismissed.

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

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