DPP v Hughes & Ors (Unreported, County Court of Victoria, Judge Gaynor, 13 September 2011)
---
CRIMINAL LAW — Appeal against sentence — Plea of guilty to one charge of importing a commercial quantity of a border controlled drug — 14.6 kilograms of cocaine imported — Sentence of 14 years’ imprisonment with a non-parole period of 10 years — Sentencing judge stated pursuant to s 6AAA of the Sentencing Act 1991 that but for the appellant’s plea of guilty a sentence of 15 years’ imprisonment with a non-parole period of 11 years would have been imposed — Whether sufficient discount given for plea of guilty coupled with remorse — Whether s 6AAA statement capable of revealing specific error — Whether different sentence should be imposed — Scerri v The Queen (2010) 206 A Crim R 1, Rizzo v The Queen [2011] VSCA 146 and Orbit Drilling Pty Ltd v The Queen [2012] VSCA 82 considered.
CRIMINAL LAW — Appeal against sentence — Parity with sentences imposed on two co-offenders each of eight years with a non-parole period of five years — Co-offenders received discounts of approximately 12 per cent off notional head sentences stated pursuant to s 6AAA — No justifiable sense of grievance — Sentencing judge entitled to find that appellant played far more significant role than co-offenders — Appeal dismissed.
---
APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr M J Croucher SC with Mr S Norton
Robert Stary Lawyers, Footscray
For the Crown
Mr D D Gurvich
Solicitor for the Director of Public Prosecutions (Cth)
THE COURT:
The appellant, David Saab, pleaded guilty to one charge of importing a commercial quantity of a border controlled drug (cocaine), contrary to s 307.1(1) of the Commonwealth Criminal Code 1995 (Cth) (‘Criminal Code’). His two co-offenders, Darren Hughes and Robert Remeeus, each pleaded guilty to one charge of attempting to possess a commercial quantity of that drug, contrary to ss 307.5(1) and 11.1 of the Criminal Code. Each offence carries a maximum penalty of life imprisonment.
On 13 September 2011, the appellant was sentenced to a term of 14 years’ imprisonment with a non-parole period of ten years. His co-offenders were each sentenced to be imprisoned for eight years with a non-parole period of five years. The sentencing judge stated pursuant to s 6AAA of the Sentencing Act 1991 that but for the plea of guilty the appellant would have been sentenced to 15 years’ imprisonment with a non-parole period of 11 years. She stated, in relation to the co-offenders, that had they not pleaded guilty they would each have been sentenced to nine years’ imprisonment with a non-parole period of six years.
Harper JA granted the appellant leave…
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 Saab v The Queen
Sign in free to access the full text
Details
AGLC
Saab v The Queen [2012] VSCA 165
Case
[2012] VSCA 165
Decision Date
CaseChat Overview and Summary
Saab, the appellant, appealed against the sentence imposed by the court below for importing a commercial quantity of a border controlled drug, namely 14.6 kilograms of cocaine. The appeal focused on the sentence of 14 years’ imprisonment with a non-parole period of 10 years, which the sentencing judge stated would have been 15 years with an 11-year non-parole period but for the appellant’s plea of guilty. The appellant contested whether the discount for the plea of guilty and remorse was sufficient and whether the statement under section 6AAA of the Sentencing Act 1991 could reveal specific error. The appeal also considered parity with sentences imposed on two co-offenders, each receiving eight years with a non-parole period of five years.
The legal issues central to the appeal were whether the discount given for the plea of guilty and remorse was adequate, whether the section 6AAA statement could identify a specific error, and whether a different sentence should be imposed. Additionally, the appeal examined whether the appellant's sentence was commensurate with those of the co-offenders. The court considered relevant precedents, including Scerri v The Queen, Rizzo v The Queen, and Orbit Drilling Pty Ltd v The Queen, to guide its decision.
The Court of Appeal found that the sentencing judge was entitled to consider the appellant's plea of guilty and remorse but still impose a substantial sentence due to the gravity of the offence. The court held that the discount provided for the plea of guilty was sufficient and that the section 6AAA statement did not reveal any specific error. Furthermore, the court determined that there was no justifiable sense of grievance regarding the disparity in sentences, as the sentencing judge had reasonably found that the appellant played a more significant role than the co-offenders. Consequently, the appeal was dismissed, and the original sentence stood.
No further orders were made by the Court of Appeal beyond dismissing the appeal.