R v Kaufusi & Moala - [1998] QCA 294

[1998] QCA 294

COURT OF APPEAL

McMURDO P
PINCUS JA
MACKENZIE J

CA No 191 of 1998
CA No 202 of 1998

THE QUEEN

HENRY SMITH KAUFUSI
ESILI MOALA Applicants

BRISBANE

DATE 07/08/98

JUDGMENT

MACKENZIE J: Each applicant seeks leave to appeal against the sentence of eight years' imprisonment with a non-parole period of three years imposed on him for importing cocaine above the trafficable quantity. Both argue that the head sentence and the parole eligibility date are manifestly excessive and in the written documents that were provided to us they submitted that a six year head sentence and a two year non-parole period was appropriate.

Each applicant arrived in Australia on a flight from Fiji. They both declared that they were not carrying illicit drugs but were selected to have their baggage searched. When those searches proved negative they were asked if they were carrying drugs on their bodies which they denied.

Upon being searched they were found each to have two packets of cocaine strapped to each of their thighs. Each had been recruited in Salt Lake City to act as a drug courier, their motivation being monetary gain, although the amount to be paid was very small in comparison with the value of the goods.

The applicant Kaufusi was carrying a total of 1,143 grams of powder, 33.7 per cent of which was cocaine giving a net weight of 384.8 grams. That is 192 times the trafficable quantity. The street value was estimated at about $277,000.

The applicant Moala had 1,032.6 grams of powder, 39.1 per cent of which was cocaine. The 403.7 grams of cocaine was 201 times the trafficable quantity. The estimated street value was $295,000. It is, of course, notorious that figures like that are only indicative, but even allowing for some variance in those figures the value of the cocaine was potentially very high.

Mr Kaufusi was 24 years old at the time of the offence.

Mr Moala was 35. Neither had any previous convictions and each pleaded guilty on an ex officio indictment, thereby saving the State the expense of a trial.

The sentencing Judge took these matters into account as well as the disadvantages likely to be suffered by being prisoners who were not Australian nationals and separated from their family, friends and other support.

In the written material that was provided to us, the applicant Kaufusi referred to the fact that he was 24 when first arrested, that he was a foreign national prisoner, making his incarceration much harsher without family, friends and support. He also pointed out that he did not qualify for community based programs and he said that he had cooperated with the authorities when first arrested. He gave details of the work he has done while in prison as a tutor of young offenders in literacy studies and as co-chairman of the Buddy Inmate Support System. He says that his behaviour has been good and he has had good reports from management and he stresses…

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 Kaufusi & Moala

Details

AGLC: R v Kaufusi and Moala [1998] QCA 294
Case: [1998] QCA 294
Decision Date: 7/08/1998

CaseChat Overview and Summary

In the case of R v Kaufusi & Moala, the applicants, Henry Smith Kaufusi and Esili Moala, sought leave to appeal against their sentences of eight years' imprisonment with a non-parole period of three years, imposed for importing cocaine above the trafficable quantity. Both applicants argued that the sentences were manifestly excessive and submitted that a six-year head sentence with a two-year non-parole period would be appropriate. The applicants had arrived in Australia from Fiji, claiming not to be carrying illicit drugs, but were found with cocaine strapped to their thighs after a search. Kaufusi was carrying 384.8 grams of cocaine, and Moala had 403.7 grams, with estimated street values of $277,000 and $295,000, respectively.

The legal issues before the Court of Appeal were whether the sentences imposed by the trial judge were manifestly excessive. The applicants cited previous cases to argue for a lesser sentence, while the prosecution maintained that the sentences were within the appropriate range. The sentencing judge had considered the applicants' ages, lack of prior convictions, and their roles as couriers, along with the substantial quantities and values of the imported drugs. The applicants also presented personal circumstances, including their status as non-Australian nationals and the impact of imprisonment on their families and personal lives.

The Court of Appeal examined the sentences in light of comparable cases, finding that the sentences were not manifestly excessive. The Court noted that while the applicants had committed serious offences, the sentences were not disproportionate when compared to similar cases. The Court considered the sentencing judge's thorough analysis and the relevant case law, concluding that the imposed sentences fell within the proper range. Consequently, the Court refused the applications for leave to appeal against the sentences.

The final order of the Court of Appeal was that the applications for leave to appeal against the sentences were refused.

Orders