R v Labanon; ex parte - [2006] QCA 529

SUPREME COURT OF QUEENSLAND

CITATION:

R v Labanon; ex parte Cth DPP [2006] QCA 529

PARTIES:

R
v
LABANON, Andrew Lester
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 157 of 2006
SC No 27 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Cth DPP

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

8 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

24 November 2006

JUDGES:

de Jersey CJ, McMurdo P and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Appeal allowed
2.    Sentence imposed at first instance is set aside and       instead respondent is sentenced to imprisonment for       eight years with a non-parole period of four years

3.    Declare that 345 days of pre-sentence custody was       served between 8 June 2005 and 18 May 2006

CATCHWORDS:

TAXES AND DUTIES - CUSTOMS AND EXCISE - PENAL PROVISIONS - OFFENCES - PROHIBITED IMPORTS - SPECIAL PROVISIONS WITH RESPECT TO NARCOTIC GOODS - POSSESSION OF PROHIBITED IMPORTS REASONABLY SUSPECTED OF HAVING BEEN BROUGHT INTO AUSTRALIA IN CONTRAVENTION OF ACT - where respondent and two co-offenders were convicted of importing methylamphetamine - where respondent was a serving petty officer on a US warship - where warship travelled to Darwin and then docked at Townsville where respondent left ship with drug packages in a carry bag - where respondent then met with one co-offender, his supervisor on the ship, and gave him the bag, receiving in exchange another bag containing money - where respondent was sentenced to six years imprisonment with a non-parole period of three years - where jury reached a special verdict finding that respondent did not knowingly import illegal narcotics but recklessly did so - where the primary judge took this special verdict into account when sentencing - where appellant contends that sentence is manifestly inadequate and that judge erred in giving undue weight to jury's special verdict - whether the judge did so err - whether the sentence imposed adequately reflected the importance of deterrence in this offence

Customs Act 1901 (Cth), s 233B(1)(a)(iii)

Everett v The Queen (1994) 181 CLR 295, cited

Kural v The Queen (1987) 162 CLR 502, cited

R v Bimahendali (1999) 109 A Crim R 355, cited
R v Katia; ex parte A-G (Qld)[2006] QCA 300; CA No 111       of 2006, 22 August 2006, cited
R v Quick; ex parte A-G (Qld)[2006] QCA 477; CA No 277       of 2006, 17 November 2006, cited

COUNSEL:

W J Abraham QC for appellant
A J Rafter SC for respondent

SOLICITORS:

Commonwealth Director of Public Prosecutions for appellant
Purcell Taylor for respondent

JERSEY CJ:de I have had the advantage of reading the reasons for judgment of McMurdo P. I agree with the orders proposed by Her Honour, and with her reasons.

McMURDO P: The respondent Andrew Lester Labanon was convicted after an eight day trial of importing prohibited imports namely narcotic goods consisting…

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 Labanon; ex parte

Details

AGLC: R v Labanon; ex parte [2006] QCA 529
Case: [2006] QCA 529
Decision Date: 8 December 2006

CaseChat Overview and Summary

In the matter of R v Labanon; ex parte, the appellant, a United States Navy petty officer, was convicted of importing methylamphetamine into Australia, an offence under the Customs Act 1901 (Cth). The court had to determine whether the sentence of six years imprisonment with a three-year non-parole period was appropriate and whether the trial judge erred in considering the special verdict given by the jury, which found that the respondent did not knowingly import illegal narcotics but recklessly did so. The appellant argued that the sentence was inadequate and that the judge had given undue weight to the jury's special verdict.

The court considered the principle that a sentence should reflect the importance of deterrence, especially in cases involving the importation of prohibited substances. The jury's special verdict, indicating recklessness rather than knowledge, was taken into account by the primary judge in sentencing the respondent. The court examined the precedents of Everett v The Queen, Kural v The Queen, R v Bimahendali, R v Katia; ex parte A-G (Qld), and R v Quick; ex parte A-G (Qld) to understand the appropriate approach to sentencing in cases of prohibited imports. The court held that the sentence imposed was manifestly inadequate and that the trial judge erred in giving undue weight to the special verdict.

The appeal was allowed, and the sentence imposed at first instance was set aside. The respondent was sentenced to imprisonment for eight years with a non-parole period of four years. The court declared that 345 days of pre-sentence custody served between 8 June 2005 and 18 May 2006 would be counted towards the new sentence. This decision underscores the need for sentences to appropriately reflect the deterrence aspect in cases involving the importation of prohibited substances, especially when the offence is committed in a reckless manner.

Orders

Orders of the court

1. Appeal allowed

2. Sentence imposed at first instance is set aside and instead respondent is sentenced to imprisonment for eight years with a non-parole period of four years

3. Declare that 345 days of pre-sentence custody was served between 8 June 2005 and 18 May 2006

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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CITATION:	R v Labanon; ex parte Cth DPP [2006] QCA 529
PARTIES:	R v LABANON, Andrew Lester (respondent) EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (appellant)
FILE NO/S:	CA No 157 of 2006 SC No 27 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Cth DPP
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	8 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	24 November 2006
JUDGES:	de Jersey CJ, McMurdo P and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed 2. Sentence imposed at first instance is set aside and instead respondent is sentenced to imprisonment for eight years with a non-parole period of four years 3. Declare that 345 days of pre-sentence custody was served between 8 June 2005 and 18 May 2006
CATCHWORDS:	TAXES AND DUTIES - CUSTOMS AND EXCISE - PENAL PROVISIONS - OFFENCES - PROHIBITED IMPORTS - SPECIAL PROVISIONS WITH RESPECT TO NARCOTIC GOODS - POSSESSION OF PROHIBITED IMPORTS REASONABLY SUSPECTED OF HAVING BEEN BROUGHT INTO AUSTRALIA IN CONTRAVENTION OF ACT - where respondent and two co-offenders were convicted of importing methylamphetamine - where respondent was a serving petty officer on a US warship - where warship travelled to Darwin and then docked at Townsville where respondent left ship with drug packages in a carry bag - where respondent then met with one co-offender, his supervisor on the ship, and gave him the bag, receiving in exchange another bag containing money - where respondent was sentenced to six years imprisonment with a non-parole period of three years - where jury reached a special verdict finding that respondent did not knowingly import illegal narcotics but recklessly did so - where the primary judge took this special verdict into account when sentencing - where appellant contends that sentence is manifestly inadequate and that judge erred in giving undue weight to jury's special verdict - whether the judge did so err - whether the sentence imposed adequately reflected the importance of deterrence in this offence Customs Act 1901 (Cth), s 233B(1)(a)(iii) Everett v The Queen (1994) 181 CLR 295, cited Kural v The Queen (1987) 162 CLR 502, cited R v Bimahendali (1999) 109 A Crim R 355, cited R v Katia; ex parte A-G (Qld)[2006] QCA 300; CA No 111 of 2006, 22 August 2006, cited R v Quick; ex parte A-G (Qld)[2006] QCA 477; CA No 277 of 2006, 17 November 2006, cited
COUNSEL:	W J Abraham QC for appellant A J Rafter SC for respondent
SOLICITORS:	Commonwealth Director of Public Prosecutions for appellant Purcell Taylor for respondent