Rade Ljuboja v The Queen - [2011] HCASL 209

RADE LJUBOJA
v
THE QUEEN
[2011] HCASL 209
P32/2011

The applicant pleaded guilty, in the Supreme Court of Western Australia, to one count of conspiring with others to traffic in a commercial quantity of a controlled drug (MDMA) contrary to ss 11.5(1) and 302.2(1) of the Criminal Code (Cth) and to one count of importing a commercial quantity of a border controlled drug (MDMA) contrary to s 307.1(1) of the Criminal Code. Approximately 60 kg of impure MDMA was imported. The applicant was sentenced by Jenkins J to 25 years' imprisonment on each count and a single non‑parole period of 16 years was set.
Two of those charged with conspiring with the applicant to traffic in the drugs in question pleaded not guilty, but, after a trial, each was convicted of the offence charged. Each was sentenced to 17 years' imprisonment and a non‑parole period was fixed, in each case, as 10 years 6 months. Another conspirator, who pleaded guilty, was sentenced to 14 years' imprisonment and a non‑parole period of 8 years 6 months was fixed.
The sentencing judge found that the applicant was the "Australian principal" in the enterprise of importing and trafficking in the drugs. At the time of sentencing the applicant was 60 years of age and the sentencing judge said that in his case she fixed a non‑parole period that was "lower than [she] would have otherwise set due to [the applicant's] age".
The applicant sought leave to appeal to the Court of Appeal of the Supreme Court of Western Australia against the sentence imposed upon him, alleging that the sentence was manifestly excessive. The Court of Appeal (Pullin and Buss JJA and Hall J) refused leave to appeal.
The applicant now seeks special leave to appeal to this Court to allege that the Court of Appeal erred in finding that the sentencing judge's discretion did not miscarry and in finding that the sentence imposed "was not a manifestly excessive sentence taking into account all of the circumstances of the matter, including the applicant's plea of guilty and his age".
The application raises no point of general principle suitable to a grant of special leave. No error is shown in the Court of Appeal's conclusion that the sentence imposed on the applicant was not manifestly excessive.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
9 December 2011 S.M. Kiefel

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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Details

Case: [2011] HCASL 209
Decision Date

CaseChat Overview and Summary

The case of Rade Ljuboja v The Queen involves Rade Ljuboja, who was convicted and sentenced for his involvement in drug trafficking and importation. Ljuboja pleaded guilty to conspiring to traffic and importing a commercial quantity of a controlled drug, MDMA. The Supreme Court of Western Australia sentenced him to 25 years imprisonment on each count, with a single non-parole period of 16 years. Ljuboja argued that his sentence was manifestly excessive, a claim that was rejected by the Court of Appeal of the Supreme Court of Western Australia, leading to his application for special leave to appeal to the High Court of Australia.

The legal issues in this case revolve around the assessment of the sentence imposed by the sentencing judge and whether the Court of Appeal correctly determined that the sentence was not manifestly excessive. Specifically, the court had to consider whether the non-parole period was appropriate given Ljuboja's age and his plea of guilty. Additionally, it was necessary to determine if the Court of Appeal correctly applied the law in reviewing the sentencing decision and whether there was any error in their findings.

In the High Court of Australia, the justices concluded that Ljuboja's application did not present any point of general principle suitable for a grant of special leave. The Court of Appeal's decision that the sentence imposed on Ljuboja was not manifestly excessive was upheld. The judges found that there was no error in the Court of Appeal's conclusion and that the sentence reflected the severity of Ljuboja's involvement as the "Australian principal" in the drug enterprise. The age of Ljuboja and his plea of guilty were taken into account, but did not justify a finding of manifest excessiveness.

The High Court dismissed Ljuboja's application for special leave to appeal. The court's decision was based on the conclusion that no legal error was evident in the Court of Appeal's assessment of the sentence. The High Court's order, pursuant to rule 41.11.1, directs the Registrar to dismiss the application.

Orders