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R v Mokoena

R v Mokoena

Case [2009] QCA 36 27 February 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Mokoena [2009] QCA 36

PARTIES:

R
v
MOKOENA, Mpho Samuel
(applicant)

FILE NO/S:

CA No 213 of 2008
SC No 555 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2008

JUDGES:

Holmes and Fraser JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence is dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on a plea of guilty of one count of importing a marketable quantity of heroin, contrary to s 307.2 of the Criminal Code 1995 (Cth) – where applicant sentenced to nine years imprisonment, with a non-parole period of four years and nine months – where the non-parole period set beyond the half-way mark of the head sentence – where the setting of the non-parole period departed from usual sentencing practice in Queensland on a plea of guilty, but was consistent with sentencing practice for Commonwealth drug offences – whether sentence manifestly excessive

Corrective Services Act 1988 (Qld), s 166(1)(d)
Corrective Services Act 2000 (Qld), s 135(2)(e)
Corrective Services Act 2006 (Qld), s 184
Crimes Act 1914 (Cth), s 19AB and s 19AF
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Probation and Parole Act 1983 (NSW), s 28A

Bernier v R (1998) 102 A Crim R 44, cited
R v Mirzaee [2004] NSWCCA 315, followed
R v Selim [1998] NSWSC 165, considered
R v To & Do; ex parte Director of Public Prosecutions (Cth) [1999] 2 Qd R 166; [1998] QCA 106, cited
R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, followed
R v Umenyi, unreported, Byrne J, SC No 237 of 2008, 18 March 2008, cited
R v Viana [2001] NSWCCA 171, cited

COUNSEL:

The applicant appeared on his own behalf
M C Chowdhury for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Commonwealth Director of Public Prosecutions for the respondent

HOLMES JA: The applicant seeks leave to appeal against a sentence of nine years imprisonment, with a non-parole period of four years and nine months, imposed in respect of one count of importing a marketable quantity of heroin, contrary to s 307.2 of the Criminal Code 1995 (Cth). The maximum penalty for that offence is 25 years imprisonment.

The offence

The applicant, who is from South Africa, arrived at Brisbane International Airport on a flight from Hong Kong. He aroused the suspicion of Customs officers because his abdomen was unusually taut and protruding, and because he gave an unconvincing account of what he was doing in the country. In consequence, he was subjected to an internal search and subsequent radiological examination which detected foreign objects secreted in his body.…

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 Mokoena

Details

AGLC: R v Mokoena [2009] QCA 36
Case: [2009] QCA 36
Decision Date: 27 February 2009

CaseChat Overview and Summary

The case of R v Mokoena involved an appeal against sentence by the applicant, who had pleaded guilty to one count of importing a marketable quantity of heroin. The applicant was sentenced to nine years imprisonment, with a non-parole period of four years and nine months, which was set beyond the halfway mark of the head sentence. The appeal against sentence argued that the non-parole period was manifestly excessive, departing from usual sentencing practice in Queensland on a plea of guilty but was consistent with sentencing practice for Commonwealth drug offences.

The legal issue before the court was whether the non-parole period set for the applicant was manifestly excessive. The court considered whether the sentence was disproportionate to the offence and whether it departed from the sentencing principles applicable in Queensland. The court also considered the sentencing practice for Commonwealth drug offences, which was consistent with the non-parole period set in this case.

The court dismissed the application for leave to appeal against sentence. The court held that the non-parole period set for the applicant was not manifestly excessive, as it was consistent with sentencing practice for Commonwealth drug offences. The court found that the sentence was proportionate to the offence and did not depart from the sentencing principles applicable in Queensland. The court held that the non-parole period set was reasonable and appropriate in the circumstances of the case.

No further orders were made by the court. The applicant's application for leave to appeal against sentence was dismissed.

Orders

Orders of the court

Application for leave to appeal against sentence is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Mokoena [2009] QCA 36

Most Recent Citation

Lau v The Queen [2011] VSCA 324

Cases citing this decision · 29 of 29 shown

Heng v The Queen
[2022] SASCA 24 Para 11

…Buss JA referred to the Queensland decision of R v Mokoena as follows:[18] In Mokoena v The Queen [2009] QCA 36, the appellant sought leave to appeal against a sentence of nine years imprisonment, with a non-parole of four years and nine months, imposed in respect of one count of importing a marketable quantity…
DGF v The Queen
[2021] WASCA 4 Para 3

…ntence of 8 years' imprisonment with a non-parole period of 4 years and 6 months was upheld on appeal as not being manifestly excessive); R v Mokoena [2009] QCA 36; [2009] 2 Qd R 351 (the offender imported a marketable quantity of heroin; he entered a timely plea of guilty and co-operated with authorities; a hea…
Oliveira v The Queen
[2020] WASCA 32 Para 5

…yond the halfway mark of the head sentence, at a point to be determined by the circumstances of the case. [46] Jimson [16] - [17], citing R v Mokoena [2009] QCA 36.…
Dunning v Tasmania
[2018] TASCCA 21 Para 4

…ge. (It has been noted that non-parole periods for Commonwealth drug offences are ordinarily in the order of 60 to 66.66 per cent: R v Mokoena [2012] [2009] QCA 36 at [10].) I acknowledge that the sentence can be seen as a heavy one. The starting point of seven years and six months was relatively high. In my vie…
R v Neto
[2016] QCA 217 Para 1

…,[22] Lau v The Queen [23] and Kuti v R .[24]As well, reference was made to the decision of this Court in R v Tran .[25] [21]Exhibit 4; AB53-55. [22][2009] QCA 36; [2009] 2 Qd R 351. [23][2011] VSCA 324. [24][2012] NSWCCA 43. [25][2007] QCA 221; (2007) 172 A Crim R 436.…
R v Cruz
[2016] QCA 183

…Kaufusi and Moala [1998] QCA 294, cited R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v Mokoena [2009] 2 Qd R 351; [2009] QCA 36, cited R v Tran [2007] QCA 221, cited COUNSEL: The applicant appeared on his own behalf B H P Mumford for the respondent SOLICITORS: The applicant appeared on his own behalf…
R v Hughes
[2016] QCA 14

…The more recent of these cases are Kuti v The Queen [2012] NSWCCA 43, Seah v The Queen [2011] NSWCCA 269 and R v Mokoena [2009] QCA 36; [2009] Qd R 351. In Kuti , the quantity of heroin was about twice that of the present case. The offender was 69 years of age. He had no prior criminal history and four dependent…
R v Verrall
[2015] QCA 72 Para 1

…l referred to R v Tran and also R v Mirzaee with approval. It described the head sentence of nine years as “unremarkable” – [17]. [32][2009] QCA 36.…
R v Agboti
[2014] QCA 280

…v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v Mirzaee [2004] NSWCCA 315, considered R v Mokoena [2009] 2 Qd R 351; [2009] QCA 36, considered R v Sandford [2006] VSCA 110, considered R v Scognamiglio (1991) 56 A Crim R 81, considered R v Spillane [1999] NSWCCA 280, considered R v Thathiah [2012] QCA 19…
Mousavi v The Queen
[2014] WASCA 174

…R 1; (2010) 205 A Crim R 1 DPP (Cth) v Haidari [2013] VSCA 149 Hibgame v The Queen [2014] VSCA 26 Lau v The Queen [2011] VSCA 324 Mokoena v The Queen [2009] QCA 36; [2009] 2 Qd R 351; (2009) 193 A Crim R 351 R v Calis [2013] QCA 165 R v Campos [1999] NSWCCA 339 R v Chea [2008] NSWCCA 78 R v Chew [2004] NSWCCA 13…
R v Glenbar
[2013] QCA 353 Para 1

…am content to adopt those summaries, with some additional comments. [49] R v Kelly [1999] QCA 296. [50] R v Robertson [2010] QCA 319. [51] R v Clark [2009] QCA 36. [52] R v Derks [2011] QCA 295.…
Adegoke v R
[2013] NSWCCA 193

…WCCA 266 Onuorah v R [2009] NSWCCA 238; 197 A Crim R 430 R v Guo; R v Qian [2010] NSWCCA 170; 201 A Crim R 403 R v Karan [2013] NSWCCA 53 R v Mokoena [2009] QCA 36; 193 A Crim R 351 R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 R v Paliwala 2005] NSWCCA 221; 153 A Crim R 451 R v SC [2008] NSWCCA 29 R…
OPQ v The Queen
[2012] VSCA 115

…R v Mokoena [2009] QCA 36…
Lau v The Queen
[2011] VSCA 324

…R v Mokoena [2009] QCA 36…
Sweeney v Queensland Parole Board
[2011] QSC 223 Para 1

…entence in this way fulfils an objective set by the Parliament. [21]See also Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339. [22] R v Mokoena [2009] QCA 36 at [12].…
Youssef v The Queen
[2011] NSWCCA 104 Para 1

…R v Mokoena [2009] QCA 36 (also mentioned in De La Rosa ) is relevant. The offender in that case was 29 years of age. He was charged with importing 891.6 grams of brown powder which yielded 497.5 grams of pure heroin. He was a courier who had undertaken to import the drugs to obtain money to support his wife, ch…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194

…8 April 2008) R v Mirzaee [2004] NSWCCA 315 R v Mohammadi [2006] QCA 530; (2006) 175 A Crim R 384 R v Mokoena [2009] QCA 36; [2009] 2 Qd 351; (2009) 193 A Crim R 351 R v Muanchukingkan (1990) 52 A Crim R 354 R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493 R v Ngui and Tiong [2000] VSCA 78; (2000) 1 VR 579;…
R v Ngo; R v Truong
[2010] QCA 151

…[6]See e.g. R v Ruha, Ruha & Harris; ex parte Commonwealth DPP [2010] QCA 10; R v Robertson [2008] QCA 164; R v Mokoena [2009] QCA 36; Bertilone v The Queen (2009) 231 FLR 383; R v Nguyen and Tran [1998] VR 394 and R v Woods (2009) 24 NTLR 77.…
Bryce v Chief Executive Officer of Customs (No 2)
[2010] QSC 125 Para 1

…o uniformity (of proportion) seemed to have developed in respect of Commonwealth offences not involving drugs. [62][2006] QCA 558 at [107]. [63][2009] QCA 036. [64][2008] QCA 164 at [18].…
R v Marshall
[2010] QCA 29 Para 1

…m that practice in R v Mokoena [23] and R v Gambier .[24] [20][2009] QCA 208 at [25]. [21][2009] QCA 208 at [40]. [22](1998) 102 A Crim R 44. [23][2009] QCA 36. [24][2009] QCA 138.…
R v Fidler
[2010] QCA 25 Para 1

…ast, some such offences.[10] [10]See e.g. R v Ruha, Ruha & Harris; ex parte Commonwealth DPP [2010] QCA 10; R v Robertson [2008] QCA 164; R v Mokoena [2009] QCA 36; Bertilone v The Queen (2009) 231 FLR 383; R v Nguyen and Tran [1998] VR 394 and R v Woods (2009) 24 NTLR 77.…
R v Ruha, Ruha & Harris; ex parte
[2010] QCA 10 Para 1

…r cent of it; the Court also observed that similar uniformity had not developed in respect of other Commonwealth offences.[6] [5][2009] 2 Qd R 351; [2009] QCA 36 per Holmes JA, Fraser JA and McMurdo J agreeing. [6][2009] 2 Qd R 351 at 353 – 354 [10] – [11].…
R v Hawton
[2009] QCA 248

…v Hamilton [2006] QCA 122, considered R v Juric [2003] QCA 132, considered R v Kitson [2008] QCA 86, cited R v Mokoena [2009] QCA 36, cited R v Reuben [2001] QCA 322, considered COUNSEL: D S Shepherd for the appellant M J Copley SC for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director o…
Bertilone v The Queen
[2009] WASCA 149 Para 2

…In R v Mokoena [2009] QCA 36, the appellant sought leave to appeal against a sentence of 9 years' imprisonment, with a non‑parole of 4 years and 9 months, imposed in respect of one count of importing a marketable quantity of heroin into Australia. The prosecutor informed the sentencing judge that it was generall…
R v Mara
[2009] QCA 208 Para 1

…[2007] NSWCCA 28 and Studman v The Queen (2007) 175 A Crim R 143. [15]For example, R v Bernier (1998) 102 A Crim R 44, a drug importation case. [16][2009] QCA 36. [17][2009] QCA 138.…
R v Oprea
[2009] QCA 184 Para 1

…tenced to nine years imprisonment with a non-parole period of four years and nine months. This Court refused his application for leave to appeal. [22][2009] QCA 36.…
R v Jimson
[2009] QCA 183 Para 1

…difficult to accept the applicant’s contention that the sentence was manifestly excessive. In particular, in the comparable decision of R v Mokoena [2009] QCA 36, this Court refused an application for leave to appeal against the sentence of nine years imprisonment with a non-parole period of four years and nine…
R v Gambier
[2009] QCA 138

…de Act 1995 (Cth), s 474 R v CAK & CAL ; ex parte Cth DPP [2009] QCA 23, considered R v Mills [2000] QCA 357, cited R v Mokoena [2009] QCA 36, considered R v Robertson [2008] QCA 164, considered R v Tobin [2008] QCA 54, cited R v Waugh [1999] QCA 45, cited COUNSEL: J Sharp for the applicant P Floyd for the respo…
R v Panchal
[2009] QDC 105

…The drug matter of Mokoena, CA 213/08 or [2009] QCA 36, was…

View all 29 citing cases →

Cases cited in this decision · 9 of 9 shown

R v Robertson
[2008] QCA 164 Para 18

…[8] R v Robertson [2008] QCA 164 at [18].…
R v Kitson
[2008] QCA 86 Para 1

…nwealth drug offences, that an appropriate range for the non-parole period was between 60 and 66 per cent of the head sentence. [3]See R v Kitson [2008] QCA 86 and the authorities cited therein.…
R v Tran
[2007] QCA 221 Para 1

…onsideration, she imposed the sentence of nine years imprisonment with a non-parole period of four years and nine months. [1](2007) 172 A Crim R 436; [2007] QCA 221. [2]Byrne J, 18 March 2008.…
R v Mirzaee
[2004] NSWCCA 315 Para 1

…d exercised the sentencing discretion afresh. It imposed a sentence of nine years imprisonment with a non-parole period of four and a half years. [13][2004] NSWCCA 315.…
R v Viana
[2001] NSWCCA 171

…007) 172 A Crim R 436; [2007] QCA 221, followed R v Umenyi , unreported, Byrne J, SC No 237 of 2008, 18 March 2008, cited R v Viana [2001] NSWCCA 171, cited COUNSEL: The applicant appeared on his own behalf M C Chowdhury for the respondent SOLICITORS: The applicant appeared on his own behalf Commonwealth Director of…
R v Ngui and Tiong
[2000] VSCA 78

…[7]See, eg, R v Phong (2005) 12 VR 17; R v Thomas [1999] VSCA 204; R v Ngui and Tiong (2000) 1 VR 579; Mustafa v R (2002) 133 A Crim R 133; R v Cheng (1999) 73 SASR 502.…
R v Thomas
[1999] VSCA 204

…[7]See, eg, R v Phong (2005) 12 VR 17; R v Thomas [1999] VSCA 204; R v Ngui and Tiong (2000) 1 VR 579; Mustafa v R (2002) 133 A Crim R 133; R v Cheng (1999) 73 SASR 502.…
R v To and Do; ex parte
[1998] QCA 106

…315, followed R v Selim [1998] NSWSC 165, considered R v To & Do; ex parte Director of Public Prosecutions (Cth) [1999] 2 Qd R 166; [1998] QCA 106, cited R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, followed R v Umenyi , unreported, Byrne J, SC No 237 of 2008, 18 March 2008, cited R v Viana [2001] NSWCCA 171…
R v Selim
[1998] NSWSC 165

…bation and Parole Act 1983 (NSW), s 28A Bernier v R (1998) 102 A Crim R 44, cited R v Mirzaee [2004] NSWCCA 315, followed R v Selim [1998] NSWSC 165, considered R v To & Do; ex parte Director of Public Prosecutions (Cth) [1999] 2 Qd R 166; [1998] QCA 106, cited R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, foll…

Legislation cited in this decision · 6

Crimes (Sentencing Procedure) Act 1999 (NSW)
44 3 mentions (from Para 1)
Probation and Parole Act 1983 (NSW)
28A 2 mentions (from Para 1)
Corrective Services Act 1988 (Qld)
166(1)(d) 1 mention (from Para 1)
Corrective Services Act 2000 (Qld)
135(2)(e) 1 mention (from Para 1)
Corrective Services Act 2006 (Qld)
184 1 mention (from Para 1)
Crimes Act 1914 (Cth)
19AB 1 mention

CITATION:	R v Mokoena [2009] QCA 36
PARTIES:	R v MOKOENA, Mpho Samuel (applicant)
FILE NO/S:	CA No 213 of 2008 SC No 555 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	27 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	28 November 2008
JUDGES:	Holmes and Fraser JJA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence is dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on a plea of guilty of one count of importing a marketable quantity of heroin, contrary to s 307.2 of the Criminal Code 1995 (Cth) – where applicant sentenced to nine years imprisonment, with a non-parole period of four years and nine months – where the non-parole period set beyond the half-way mark of the head sentence – where the setting of the non-parole period departed from usual sentencing practice in Queensland on a plea of guilty, but was consistent with sentencing practice for Commonwealth drug offences – whether sentence manifestly excessive Corrective Services Act 1988 (Qld), s 166(1)(d) Corrective Services Act 2000 (Qld), s 135(2)(e) Corrective Services Act 2006 (Qld), s 184 Crimes Act 1914 (Cth), s 19AB and s 19AF Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 Probation and Parole Act 1983 (NSW), s 28A Bernier v R (1998) 102 A Crim R 44, cited R v Mirzaee [2004] NSWCCA 315, followed R v Selim [1998] NSWSC 165, considered R v To & Do; ex parte Director of Public Prosecutions (Cth) [1999] 2 Qd R 166; [1998] QCA 106, cited R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, followed R v Umenyi, unreported, Byrne J, SC No 237 of 2008, 18 March 2008, cited R v Viana [2001] NSWCCA 171, cited
COUNSEL:	The applicant appeared on his own behalf M C Chowdhury for the respondent
SOLICITORS:	The applicant appeared on his own behalf Commonwealth Director of Public Prosecutions for the respondent