Samardali v The Queen

Case [2018] WASCA 220

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

Young v The Queen [2016] VSCA 149

REASONS OF THE COURT:

  1. This appeal against sentence was heard on 21 May 2018. 

  2. 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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Samardali v The Queen [2018] WASCA 220
Case
[2018] WASCA 220
Decision Date

CaseChat Overview and Summary

The appeal in Samardali v The Queen concerns the appellant's challenge against his sentence, imposed after his conviction on multiple counts, including importing goods with intent to defraud the revenue, possessing goods knowing they were imported with such intent, and attempting to hinder a public official. The appeal was brought under the Criminal Appeals Act 2004 (WA), focusing on alleged errors in the sentencing process.

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

The starting point is s 31 of the Criminal Appeals Act 2004 (WA), which, relevantly, provides:31. Appeal against sentence etc., decision on(1)This section applies in the case of an appeal commenced by an offender under section 23, or by a prosecutor under section 24(1), against - (a)the sentence imposed or any order made as a result of - (i)a conviction on indictment; or(ii)a conviction by a court of summary jurisdiction in respect of which the offender was committed for sentence;(b)a refusal by a superior court to make an order that might be made as a result of such a conviction.[(2)deleted](3)Unless under subsection (4) the Court of Appeal allows the appeal, it must dismiss the appeal.(4)The Court of Appeal may allow the appeal if, in its opinion - (a)in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed; or(b)in the case of an appeal referred to in subsection (1)(b), an order should have been made.(5)If the Court of Appeal allows an appeal referred to in subsection (1)(a), it must set aside the sentence and - (a)may instead impose a new sentence that is either more or less severe; or(b)may send the charge back to the court that imposed the sentence to be dealt with further.(6)If the Court of Appeal allows an appeal referred to in subsection (1)(b), it -(a)may make any order that should have been made; or(b)may send the charge back to the court that refused to make the order to be dealt with further. (emphasis added) As subsection 31(4)(a) expressly provides, this court may only allow an appeal against sentence if it forms the opinion that a different sentence should have been imposed. As Mazza JA observed in Harding v The State of Western Australia,[33] not all errors made in the sentencing of an offender vitiate the exercise of the sentencing discretion and enliven this court's jurisdiction to intervene.[34] An express error that did not affect, or was incapable of affecting, the sentence imposed is not a material error and does not enliven this court's jurisdiction.[35][33] Harding v The State of Western Australia [2015] WASCA 27.[34] Harding [73].[35] Harding [73]; Fernandez v The State of Western Australia [2009] WASCA 227 [9] ‑ [10]. The maximum penalty for an offence is an important sentencing consideration. As Gleeson CJ, Gummow, Hayne and Callinan JJ pointed out in their joint judgment in Markarian v The Queen,[36] the maximum penalty is no mere formality. It is an important sentencing yardstick that almost always requires careful attention.[37][36] Markarian v The Queen [2005] HCA 25; [2005] 228 CLR 357.[37] Markarian [30] - [31]. However, while it may be accepted that an error as to the maximum penalty will, generally speaking, be a material error, there will be cases where the error is not material. This appeal is one such case. His Honour did not err in his statement of the maximum term of imprisonment for the offences in counts 1 and 2. His Honour's error was only as to the maximum fine. As to the extent of the error, it was modest: his Honour overstated the maximum available fine on each count by 10%. In respect of count 1, the appellant received a term of immediate imprisonment and no fine was imposed. It is most unlikely that his Honour had in mind the imposition of a fine with respect to count 1, given the seriousness of the offending in count 1. We are satisfied that there is no risk that his Honour would have imposed any different penalty on count 1 had his Honour been aware of the correct maximum fine for the offence.

Ratio Decidendi

Legal Principle Established

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