R v Mokoena

Case [2009] QCA 36


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

  1. 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

  1. 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.…

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Details
AGLC
R v Mokoena [2009] QCA 36
Case
[2009] QCA 36
Decision Date

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

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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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