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Oliveira v The Queen

Oliveira v The Queen

Case [2020] WASCA 32 18 March 2020

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   OLIVEIRA -v- THE QUEEN [2020] WASCA 32
CORAM:   MAZZA JA
MITCHELL JA
VAUGHAN JA

HEARD:   18 FEBRUARY & 11 MARCH 2020
DELIVERED          :   18 MARCH 2020
FILE NO/S:   CACR 98 of 2019
BETWEEN:   BRUNO CORREIA OLIVEIRA
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PRIOR DCJ
File Number            :   IND 1893 of 2018

Catchwords:

Criminal law - Federal offences - Appeal against sentence - Importation of a marketable quantity of a border controlled drug (cocaine) - Where appellant pleaded guilty and acted as a courier importing 1.33 kg of cocaine into Australia - Where sentencing judge assessed the severity of the offence by reference to the 'position in which cocaine is regarded in the hierarchy of drugs', being 'at the top end of the scale of seriousness in relation to drugs' - Whether sentencing the appellant on that basis is inconsistent with the structure of ch 9 pt 9 div 307 of the Criminal Code - Whether a different sentence should have been imposed

Legislation:

Crimes Act 1914 (Cth), s 16A, s 19AB
Criminal Code (Cth), s 307.2, s 307.3, s 307.4

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	G M Rodgers
Respondent	:	C Moss

Solicitors:

Appellant	:	G M Rodgers
Respondent	:	Director of Public Prosecutions (Cth)

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

Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143
Bick v The Queen [2006] NSWCCA 408
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Gwardys v The Queen [2019] NSWCCA 62
Harding v The State of Western Australia [2015] WASCA 27
Hibgame v The Queen [2014] VSCA 26
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Jackamarra v The State of Western Australia [2019] WASCA 150
Jiang v The State of Western Australia [2020] WASCA 7
Lam v The Queen [2014] WASCA 114
Mohlasedi v The Queen [2006] WASCA 267
Power v The Queen (1974) 131 CLR 623
Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174
R v Cunha [2017] QCA 6
R v Jimson [2009] QCA 183
R v Mokoena [2009] QCA 36
R v Ng [2012] WASCA 180
R v Pidoto [2006] VSCA 185; (2006) 14 VR 269
Samardali v The Queen [2018] WASCA 220
Sayed v The Queen [2012] WASCA 17
Stipkovich v The Queen [2018] WASCA 63
The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302

JUDGMENT OF THE COURT:

Summary

On 29 March 2019, the appellant was convicted, on his plea of guilty, of one count of importing a marketable quantity of a border controlled drug, namely cocaine, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). The total…

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 Oliveira v The Queen

Details

AGLC: Oliveira v The Queen [2020] WASCA 32
Case: [2020] WASCA 32
Decision Date: 18 MARCH 2020

CaseChat Overview and Summary

The appellant, Oliveira, was convicted for importing a marketable quantity of a border controlled drug, specifically 1.33 kilograms of cocaine into Australia. Oliveira pleaded guilty and the case was heard in the High Court of Australia. Oliveira appealed against his sentence, arguing that the assessment of the severity of the offence by the sentencing judge was inconsistent with the structure of the Criminal Code.

The central issue for the court was whether the sentencing judge's assessment of the severity of the offence by reference to the position of cocaine in the hierarchy of drugs was consistent with the statutory framework set out in Chapter 9, Part 9, Division 307 of the Criminal Code. The court also considered whether a different sentence should have been imposed on Oliveira, given the specific circumstances of his case.

The High Court held that the sentencing judge's approach was inconsistent with the structure of the Criminal Code. The Court emphasised that the severity of the offence should be assessed based on the quantity of the drug and the culpability of the offender, rather than the perceived position of the drug in a hierarchy. The Court further held that, in light of the statutory framework, a different sentence should have been imposed on Oliveira. The Court found that the sentencing judge had not properly considered the statutory factors and had instead relied on an impermissible hierarchy of drugs.

The High Court quashed Oliveira's sentence and remitted the case to the sentencing court for re-sentencing. The Court made it clear that the sentencing court must now consider the statutory factors set out in the Criminal Code and not rely on any perceived hierarchy of drugs. The Court also noted that the appropriate sentence would depend on the specific circumstances of Oliveira's case, including his level of culpability and the quantity of the drug involved.

Orders