BRENNAN AND McHUGH JJ. On 10 November 1989, his Honour Judge Viol sitting in the District Court of Western Australia sentenced the respondent, Ramesh Shrestha, to a term of imprisonment. Shrestha had been convicted of three offences against s.233B(1) of the Customs Act 1901 (Cth), namely, conspiracy to import a trafficable quantity of heroin, importing a (lesser) trafficable quantity of heroin and having that lesser quantity of heroin in possession without reasonable excuse. Shrestha, two co-accused and another man had arrived in Perth from Nepal via Bangkok on 5 March 1989. Each had a quantity of heroin in plastic bags concealed within his body. They were couriers bringing in the heroin for distribution within Australia. Shrestha was sentenced to 12 years imprisonment on the count of conspiracy and to 7 years imprisonment on each of the other counts, the latter sentences to be served concurrently with each other and with the sentence for conspiracy. His Honour declined to order that Shrestha be eligible for parole, saying: " I have given consideration to the question of your eligibility for parole. The matters concerning the facts of the case, your personal circumstances and the fact of your immigration status in my view prevent me in this case from making you eligible for parole. You will therefore not be eligible for parole."
2. Shrestha was given leave to appeal against the severity of his sentence by the Court of Criminal Appeal and, on 21 June 1990, the appeal was allowed. The sentence for conspiracy was reduced to 9 years and the Court ordered that he be eligible for parole in respect of each of the sentences imposed. The present application for special leave to appeal is made in order to challenge the order that Shrestha be eligible for parole. To appreciate the issue for determination, it is necessary to trace the statutory framework affecting the parole of federal offenders.
3. Prior to 17 July 1990, the sentencing power of a court of a State or Territory, exercising federal jurisdiction under a penal law of the Commonwealth, was governed by, inter alia, the Commonwealth Prisoners Act 1967 (Cth). When a "federal offender" (that is, a person convicted of an offence against a law of the Commonwealth: s.3(1)) was convicted before and sentenced by a State court, s.4(1)(b) of that Act provided: "if, under the law of the State or Territory where the offender is convicted, a court of the State or Territory is permitted, when sentencing a State offender or a Territory offender to a like term of imprisonment, to fix a lesser term of imprisonment during which the State offender or Territory offender is not to be eligible…
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.
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AGLC
R v Shrestha [1991] HCA 26
Case
[1991] HCA 26
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from a decision of the Supreme Court of Queensland in the matter of *R v Shrestha*. The case concerned the interpretation and application of provisions within the *Criminal Code* (Qld) relating to the offence of unlawful sexual assault.
The central legal issue before the High Court was whether the trial judge had erred in directing the jury on the elements of the offence of unlawful sexual assault, specifically concerning the requirement of consent and the appropriate direction on the issue of belief in consent. The court was also required to consider whether the jury's verdict was unsafe or unsatisfactory in light of the evidence presented at trial.
The High Court analysed the relevant sections of the *Criminal Code* (Qld) and existing common law principles regarding sexual offences. Their Honours emphasised that the prosecution bears the onus of proving, beyond reasonable doubt, that the sexual act was unlawful and that the complainant did not consent. The court clarified that a belief in consent, to be a defence, must be honestly held and, in certain circumstances, may require the accused to have taken reasonable steps to ascertain consent. The judges considered the evidence in light of these principles and the directions given at trial.
The High Court found that the jury's verdict was unsafe and unsatisfactory due to misdirection on the law relating to consent and belief in consent. Consequently, the appeal was allowed, the conviction was quashed, and a new trial was ordered.