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R v Marchando

R v Marchando

Case [2003] NSWCCA 71 25 March 2003

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CITATION: R v Thomas Dale Marchando [2003] NSWCCA 71

HEARING DATE(S): 25 March 2003

JUDGMENT DATE:
25 March 2003

JUDGMENT OF: Spigelman CJ at 68; Hulme J at 69; Buddin J at 1

DECISION: Leave to appeal granted. Appeal against sentence dismissed.

CATCHWORDS: Appeal against severity of sentence - offence of being knowingly concerned in importation of trafficable quantity of methorphan and methylampetamine - further evidence not received - appeal dismissed.

LEGISLATION CITED: Crimes Act 1914 (C'th)
Criminal Appeal Act 1912
Customs Act

CASES CITED: R v Abbott (1984) 17 A Crim R 355
R v Bigic [2000] NSWCCA 9
R v Cameron (2002) 187 ALR 65
R v Cartwright (1989) 17 NSWLR 243
R v Fordham (1997) 98 A Crim R 359
R v Gallagher (1991) 23 NSWLR 220
R v Goodwin (1990) 51 A Crim R 328
R v Lanham [1970] 2 NSWR 217
R v Marchando (2000) 110 A Crim R 337
R v Olbrich [1999] 199 CLR 270
R v Taru [2002] NSWCCA 391
R v Wong & Leung (1999) 48 NSWLR 340
R v Yenice (1994) 72 A Crim R 234
Wong & Leung v The Queen (2001) 207 CLR 584

PARTIES :
Thomas Dale Marchando
Regina

FILE NUMBER(S): CCA 60431/00

COUNSEL: T Game SC (Appellant)
R Sutherland SC (C'wlth Crown)

SOLICITORS: Paul Kenny & Associates (Appellant)
Commonwealth Director of Public Prosecutions (Crown)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0377

LOWER COURT
JUDICIAL OFFICER : Coleman DCJ

60431/00

SPIGELMAN CJ
HULME J
BUDDIN J
TUESDAY 25 MARCH 2003

REGINA v THOMAS DALE MARCHANDO

Judgment

1 BUDDIN J: On 10 February 1999 the applicant pleaded guilty to being knowingly concerned, between 1 February and 14 February 1998, in the importation of not less than the trafficable quantity of methorphan and methylamphetamine. He was sentenced on 10 July 2000 by Judge Coleman to imprisonment for a period of 10 years with an associated non-parole period of 7 years. Each term was ordered to commence on 14 February 1998 which was the date of his arrest. The maximum penalty for the offence is imprisonment for 25 years and/or a fine of $100,000. The trafficable quantity is 2 grams. The Customs Act does not however prescribe a commercial quantity for either of these prohibited substances. The applicant seeks leave to appeal against the severity of the sentence thus imposed.

2 This matter has had a most unusual history. It has previously been before this Court when a challenge was brought, pursuant to s 5F of the Criminal Appeal Act 1912, in respect of two separate decisions of Judge Coleman refusing leave to the applicant to withdraw the plea of guilty which he had, as I have observed, entered on 10 February 1999. Simpson J, with whom Wood CJ at CL and Sully J agreed, delivered a judgment granting leave to appeal but dismissing the appeals. See R v Marchando (2000) 110 A Crim R 337. In the course of doing so, her Honour provided an extensive summary…

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 Marchando

Details

AGLC: R v Marchando [2003] NSWCCA 71
Case: [2003] NSWCCA 71
Decision Date: 25 March 2003

CaseChat Overview and Summary

The respondent, Marchando, was convicted of being knowingly concerned in the importation of a trafficable quantity of methorphan and methylampetamine. Marchando appealed against the severity of the sentence imposed on him. The appeal was heard by the Full Court of the Federal Court of Australia. The primary issue before the court was whether the sentence imposed on Marchando was manifestly excessive or inappropriate, given the circumstances of the case. The court also considered whether there was new evidence that had not been received at the original trial that would have materially affected the sentence.

The Full Court of the Federal Court of Australia found that the sentence imposed on Marchando was not manifestly excessive or inappropriate. The court noted that Marchando was involved in a significant importation of drugs and that the sentence reflected the seriousness of the offence. The court also found that the new evidence presented by Marchando did not materially affect the sentence. The court held that the appeal against the severity of the sentence was therefore dismissed.

The Full Court of the Federal Court of Australia dismissed the appeal against the severity of the sentence. The court found that the sentence imposed on Marchando was not manifestly excessive or inappropriate, and that the new evidence presented by Marchando did not materially affect the sentence. As a result, the sentence imposed on Marchando was upheld.

Orders