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Scott v The King

Scott v The King

Case [2023] WASCA 14 31 January 2023

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SCOTT -v- THE KING [2023] WASCA 14
CORAM:   BUSS P
MAZZA JA
VAUGHAN JA

HEARD:   5 AUGUST 2022
DELIVERED          :   31 JANUARY 2023
FILE NO/S:   CACR 162 of 2021
BETWEEN:   DARRIN JOHN SCOTT
Appellant
AND
THE KING
Respondent

FILE NO/S: CACR 5 of 2022
BETWEEN: DARRIN JOHN SCOTT
Appellant
AND
THE KING
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GOETZE DCJ
File Number            :   IND 429 of 2020

Catchwords:

Criminal law - Sentencing - Application for leave to appeal against sentence - Application for leave to appeal against order fixing non‑parole period - Appellant convicted of intentionally importing tier 1 goods contrary to s 233BAA(4) of the Customs Act 1901 (Cth) - Whether sentence of 1 year 4 months' imprisonment on count 1 was manifestly excessive - Whether total effective sentence of 4 years' imprisonment infringed first limb of totality principle - Whether a non‑parole period of 2 years 8 months was manifestly excessive

Legislation:

Proceeds of Crime Act 2002 (Cth)
Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)

Result:

CACR 162 of 2021
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal dismissed

CACR 5 of 2022
Leave to appeal on single ground of appeal granted
Appeal dismissed

Category: D

Representation:

CACR 162 of 2021

Counsel:

Appellant	:	C M Townsend
Respondent	:	E P Fitzpatrick

Solicitors:

Appellant	:	Timpano Legal
Respondent	:	Director of Public Prosecutions (Cth)

CACR 5 of 2022

Counsel:

Appellant	:	C M Townsend
Respondent	:	E P Fitzpatrick

Solicitors:

Appellant	:	Timpano Legal
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Duffy v Richardson [2004] ACTSC 47
Garcia v The Queen [2013] NSWCCA 241
He v The Queen [2016] NSWCCA 220
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Nguyen v The Queen [2016] NSWCCA 5
Oliveria v The Queen [2020] WASCA 32
R v Ng [2012] WASCA 180
R v Russell [2017] SASCFC 126
R v Temmingh [2005] NSWCCA 261
Soerensen v The Queen [2020] WASCA 114
Stipkovich v The Queen [2018] WASCA 63
Tang v The Queen [2020] WASCA 194

JUDGMENT OF THE COURT:

Overview

On 24 June 2021, the appellant, Darrin Scott, was convicted on his pleas of guilty of seven counts of intentionally importing tier 1 goods contrary to s 233BAA(4) of the Customs Act 1901 (Cth). Mr Scott imported various steroids (referred to as 'anabolic or androgenic substances') of different weights and purities. On 21 October 2021, Mr Scott was sentenced to a total effective sentence of 4 years' immediate imprisonment backdated to 19 October 2021. The sentencing judge also ordered that Mr Scott be eligible for parole after serving 2 years and 8 months of…

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 Scott v The King

Details

AGLC: Scott v The King [2023] WASCA 14
Case: [2023] WASCA 14
Decision Date

CaseChat Overview and Summary

Darrin John Scott, the appellant, was convicted on his pleas of guilty of seven counts of intentionally importing tier 1 goods contrary to s 233BAA(4) of the Customs Act 1901 (Cth). Mr Scott imported various steroids (referred to as 'anabolic or androgenic substances') of different weights and purities. The sentencing judge imposed a total effective sentence of 4 years' imprisonment backdated to 19 October 2021 and ordered that Mr Scott be eligible for parole after serving 2 years and 8 months of that term of imprisonment. Mr Scott applied for leave to appeal against the sentence and the order as to eligibility for parole. The appeal against sentence was based on two grounds: (1) that the sentence imposed with respect to count 1 was manifestly excessive, and (2) that the total effective sentence infringed the first limb of the totality principle. The appeal against the order as to eligibility for parole was based on the single ground that the non-parole period was manifestly excessive. The appeals must be dismissed. The sentence of 1 year and 4 months' imprisonment on count 1 was not manifestly excessive. The total effective sentence of 4 years' imprisonment did not infringe the first limb of the totality principle. The non-parole period of 2 years and 8 months was not manifestly excessive. Leave to appeal on ground 1 should be refused. Leave to appeal on ground 2 should be granted. The appeal against sentence must be dismissed. Leave to appeal on the single ground of appeal should be granted. The appeal against the order fixing the non-parole period must be dismissed. An extension of time should be granted to Mr Scott to apply for leave to appeal against the order fixing the non-parole period.

Orders