JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SAMARDALI -v- THE QUEEN [2018] WASCA 220
CORAM: MAZZA JA
MITCHELL JA
PRITCHARD JA
HEARD: 21 MAY 2018
DELIVERED : 31 MAY 2018
PUBLISHED : 12 DECEMBER 2018
FILE NO/S: CACR 252 of 2017
BETWEEN: MANTHER SAMARDALI
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : IND 1038 of 2017
Catchwords:
Criminal law - Appeal against sentence - Importing goods with the intention of defrauding the revenue - Possessing goods knowing that the goods were imported with intent to defraud the revenue - Molasses tobacco - Attempting to hinder a public official in the performance of the official's functions as a public official - Falsifying emails - Alleged express error - Whether sentencing judge erred in stating the maximum fine available for count 1 and count 2 - Whether alleged error is material - Alleged implied errors - Whether sentences were manifestly excessive as to type and length - Whether total sentence infringed the first limb of totality principle - Whether non‑parole period infringed the first limb of the totality principle
Legislation:
Crimes Act 1914 (Cth), s 16A(1), s16A(2), s 17A, s 20(1)(b)
Criminal Code Act 1995 (Cth), s 11.1(1), s 149.1(1)
Customs Act 1901 (Cth), s 233BABAD(1), s 233BABAD(2), s 233BABAD(5)
Result:
Leave to appeal granted
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | Mr A J Robson |
| Respondent | : | Mr P J Urquhart |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director Of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Fernandez v The State of Western Australia [2009] WASCA 227
Harding v The State of Western Australia [2015] WASCA 27
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hussein v The Queen [2016] VSCA 212
Markarian v The Queen [2005] HCA 25; [2005] 228 CLR 357
Pollock v The Queen [2012] WASCA 30
R v Pham [2015] HCA 39; (2015) 256 CLR 550
R v Saleh [2015] NSWCCA 299; (2015) 257 A Crim R 212
R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265
R v Zhang [2017] SASCFC 5; (2017) 265 A Crim R 113
REASONS OF THE COURT:
This appeal against sentence was heard on 21 May 2018.
On 31 May 2018, we made the following orders:
1.The appeal is allowed.
2.The sentences imposed by Stevenson DCJ on 24 November 2017 are set aside.
3.In lieu thereof this Court imposes the following new sentences:
a)Count 1 - 15 months' imprisonment to commence on 24 November 2017.
b)Count 2 - 3 months' imprisonment to commence on 24 November 2017.
c)Count 3 - 3 months' imprisonment to commence on the expiry of the sentence imposed on count 1.
4.For the avoidance of doubt, the total effective term of imprisonment is 18 months' imprisonment to commence on…
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- AGLC
- Samardali v The Queen [2018] WASCA 220
- Case
- [2018] WASCA 220
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the sentencing judge erred in stating the maximum fine available for counts 1 and 2, and if such an error was material. Additionally, the appeal considered whether the sentences imposed were manifestly excessive and if they violated the first limb of the totality principle, which relates to the overall fairness and proportionality of the sentence.
The court found that while the sentencing judge did misstate the maximum fine available for the offences, this error was not material. The error was limited to the maximum fine and did not impact the actual sentence imposed, which was a term of imprisonment rather than a fine. Furthermore, the court held that the sentences were not manifestly excessive and did not contravene the first limb of the totality principle. The court concluded that the appeal against sentence should be dismissed as the errors did not warrant a different outcome.
No specific orders were made beyond the dismissal of the appeal against sentence, affirming the original sentencing as appropriate under the circumstances.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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