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Nipoe v The Queen

Nipoe v The Queen

Case [2020] VSCA 137 29 May 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0057

SEHWHY NIPOE	Applicant
v
THE QUEEN	Respondent
S APCR 2018 0257
SAM TEAH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, NIALL and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2020
DATE OF JUDGMENT:	29 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 137
JUDGMENT APPEALED FROM:	DPP v Nipoe [2018] VCC 1854 (Judge Hogan) DPP v Teah [2018] VCC 153 (Judge Cohen)

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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Appeal – Sentence – Parity – Attempt to possess border controlled drug (2 charges: charge 1 – marketable quantity, charge 2 – commercial quantity) – Sentenced to 8 years on charge 1, 9 years on charge 2 – Total effective sentence 15 years, non-parole period 11 years – Whether manifestly excessive – Whether sentence on charge 2 insufficiently differentiated applicant from co-offender – Whether sentence on charge 1 impermissibly took into account s 6AAA declaration in relation to co-offender – Error conceded – Whether different sentence should be imposed – Leave granted – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Parity – Attempt to possess marketable quantity of border controlled drug – Plea of guilty - Sentenced to 6 years and 6 months’ imprisonment, non-parole period of 3 years and 10 months – Co-offender pleaded not guilty – Sentenced to 8 years’ imprisonment – Whether insufficient differentiation in sentence – Serious offending – Late plea of guilty – No greater differential required – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Nipoe	Ms G F Connelly	Ann Valos Criminal Law
For the Applicant Teah	Mr P J Smallwood	Giorgianni & Liang Lawyers
For the Respondent	Ms K Breckweg	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
NIALL JA
EMERTON JA:

Introduction

These two applications for leave to appeal against sentence are interrelated. The sentences flowed from convictions arising from two drug importations. The first importation involved both applicants (Sam Teah and Sehwhy Nipoe), along with a third man, Wilson Dahn (Teah’s nephew); the second importation involved Nipoe along with two co-offenders, Augustus Robinson and Raheem Kromah.

On 23 February 2018, Teah was sentenced by Judge Cohen to a term of imprisonment of 6 years and 6 months on a plea of guilty to a single charge of attempting to possess a marketable quantity of a border controlled drug, methamphetamine. A non-parole period of 3 years and 10 months was set.

On 8 November 2018, Nipoe was sentenced by Judge Hogan for two charges of attempting to possess a border controlled drug, methamphetamine. Charge 1 (attempting to possess a marketable quantity) concerned the importation in which Teah was also involved. Nipoe pleaded not guilty and was sentenced to 8 years’ imprisonment on that charge.

Teah complains that, when compared to the sentence imposed on Nipoe for the…

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 Nipoe v The Queen

Details

AGLC: Nipoe v The Queen [2020] VSCA 137
Case: [2020] VSCA 137
Decision Date: 29 May 2020

CaseChat Overview and Summary

Nipoe, the applicant, appealed against his sentence for two charges of attempting to possess a border controlled drug, contending that the sentence was manifestly excessive. The case was heard in the High Court of Australia, which granted leave for the applicant to renew his application for leave to appeal against the sentence determined by the Court of Appeal. The primary legal issues the court had to decide were whether the sentence was manifestly excessive, whether the sentence on charge 2 was insufficiently differentiated from that of the co-offender, and whether the sentence on charge 1 improperly took into account a section 6AAA declaration in relation to the co-offender.

The High Court examined the principle of parity in sentencing, which requires that sentences for similar crimes be comparable. The court held that the applicant's total effective sentence of 15 years, with a non-parole period of 11 years, was not manifestly excessive. While there was a difference in the sentences between the applicant and his co-offender, the court found that the disparity did not render the applicant's sentence unjust. Furthermore, the court rejected the argument that the sentence on charge 1 should not have considered the co-offender's section 6AAA declaration, as it was a relevant factor in assessing the seriousness of the offence. Consequently, the High Court dismissed the appeal, affirming the original sentencing decisions.

The High Court's decision underscores the importance of maintaining a balance in sentencing that considers both the individual circumstances of the offender and the broader principle of parity. The court's ruling emphasised that while sentences should be comparable for similar offences, significant differences in sentences can be justified based on the unique aspects of each case. This decision reinforces the judiciary's role in ensuring that sentences are fair and proportionate, taking into account all relevant factors, including the role of each offender in the criminal activity.

Orders