R v Cassar - [2005] VSCA 164

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 136 of 2003

THE QUEEN
	v.
RONALD JOSEPH CASSAR

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JUDGES:	CHERNOV and NETTLE, JJ.A. and BYRNE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 June 2005
DATE OF JUDGMENT:	15 June 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 164

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Criminal Law – Sentencing – Importation of prohibited drugs of not less than commercial quantity – Knowingly concerned with importation of prohibited imports – Plea of not guilty – Disparity in sentencing compared to co-offender – Co-offender pleaded guilty – Appellant sentenced to six years and co-offender sentenced to three years and six months – Whether disparity gave rise to justified grievance – Appellant had no previous conviction while co-accused did – Appellant’s role considered as critical to overall importation scheme. – s.233B Customs Act 1901(Com)

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K.E. Judd	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr D. Grace, Q.C. with Mr M.J. Croucher	Leanne Warren & Associates

CHERNOV, J.A.:

I will ask Nettle, J.A. to deliver the first judgment.

NETTLE, J.A.:

On 4 March 2003 the applicant was arraigned before the County Court at Melbourne on one count of being knowingly concerned in the importation into Australia of prohibited imports to which s. 233B of the Customs Act 1901 (Com) applies, namely, narcotic goods consisting of not less than a traffickable quantity of the narcotic substance Cocaine (Count 1), and one alternative count of without reasonable excuse having in his possession prohibited imports to which s. 233B of the Customs Act 1901 (Com) applies, namely, narcotic goods consisting of not less than a trafficable quantity of the narcotic substance Cocaine (Count 2), to both of which he pleaded not guilty. After a trial of 18 days duration he was found guilty and convicted of Count 1 and, after hearing a plea in mitigation, on 30 April 2003 the judge sentenced the appellant to be imprisoned for a period of six years and fixed a non-parole period of four years. The applicant now applies for leave to appeal against the sentence on the ground of alleged disparity as between it and sentences imposed on his co-accused, Marijan (Mark) Banda, Edmond “Sonny” Schmidt and Paletasala (Pale) Schmidt, and on the ground of manifest excessiveness.

The facts

The facts as found by the sentencing judge were that in October or November 2000, the applicant, his co-accused, and one Antonios (Tony) Mokbel engaged in a joint enterprise with a number of Mexicans to import cocaine from Mexico to Australia. The plan was that the cocaine would be sent in packages from Mexico, packed in wax candles or artefacts or something of the sort. The packages were to be sent via UPS, an international freight company of which the local office and warehouse were located in Ascot Vale. The applicant was the second-in-charge at the UPS Ascot Vale warehouse and thus in a position of considerable trust and responsibility. His role in the criminal enterprise…

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 R v Cassar

Details

AGLC: R v Cassar [2005] VSCA 164
Case: [2005] VSCA 164
Decision Date: 15 June 2005

CaseChat Overview and Summary

In the case of R v Cassar, the appellant was convicted for being knowingly involved in the importation of a prohibited drug, specifically cannabis, of not less than commercial quantity. The offence was prosecuted under the Customs Act 1901 (Cth), and the appellant pleaded not guilty. The co-offender, who was also involved in the importation, pleaded guilty and received a sentence of three years and six months imprisonment. The appellant, who had no prior convictions, was sentenced to six years imprisonment, leading to an appeal on the ground that the disparity in sentencing constituted a grievance. The appeal raised issues concerning the appropriate weight to be given to the disparity in sentencing and whether the appellant's role was sufficiently distinguished from that of the co-offender to justify the longer sentence.

The central legal issue before the court was whether the significant disparity in the sentences imposed on the appellant and the co-offender constituted a grievance that warranted correction. The appellant argued that the disparity was unjust, particularly given the co-offender's prior convictions and the appellant's lack of criminal history. The court needed to assess the role of each individual in the importation scheme and determine whether the sentencing disparity was justified based on the respective roles and the statutory provisions under which the appellant was convicted.

The court examined the roles of both the appellant and the co-offender in the importation scheme, noting that while the co-offender had pleaded guilty and received a lesser sentence, the appellant's role was deemed critical to the overall operation. The court also considered the sentencing principles outlined in the relevant legislation, including section 233B of the Customs Act 1901 (Cth). Ultimately, the court found that the appellant's significant involvement and the need to deter similar offences justified the disparity in sentencing. The court concluded that the disparity did not constitute an unjustifiable grievance, maintaining the original sentence imposed on the appellant.

In summary, the court upheld the sentence imposed on the appellant, finding that the disparity in sentencing compared to the co-offender did not constitute a grievance warranting correction. The appellant's critical role in the importation scheme and the need for deterrence justified the longer sentence, notwithstanding the absence of prior convictions on the appellant's part. The court's decision affirmed the original sentence of six years imprisonment for the appellant.

Orders