Criminal law - Appeal against sentence - Attempt to possess unlawfully imported drugs - Marketable quantity of methylamphetamine imported by post - Whether sentence manifestly excessive

Legislation:

Criminal Code (Cth), s 11.1, s 307.2(1), s 307.6(1)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A C Mcintosh
Respondent: No appearance

Solicitors:

Appellant: Patti Chong Lawyer
Respondent: Director of Public Prosecutions (Cth)

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

Ferrer‑Esis (1991) 55 A Crim R 231
Iyoha v The Queen [2011] WASCA 46
Lau v The Queen [2011] VSCA 324
OPQ v The Queen [2012] VSCA 115
R v Calis [2013] QCA 165
R v Hai Van Nguyen; R v Phuong Thu Thi Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
R v Harris [2009] QCA 370
R v Ng [2012] WASCA 180
R v Oprea [2009] QCA 184
R v Thathiah [2012] QCA 195
R v Todoroski [2010] NSWCCA 75

MAZZA JA: I agree with Hall J.
HALL J: This is an application for leave to appeal against sentence.
On 9 May 2014 the appellant was sentenced to 7 years and 6 months' imprisonment following his plea of guilty to one charge of attempting to possess a marketable quantity of methylamphetamine that had been unlawfully imported contrary to s 307.6(1) and s 11.1 of the Criminal Code (Cth) (Code). A non‑parole period of 4 years and 8 months was set. The sentence was backdated to commence on 22 March 2013.
There is a single ground of appeal. It is that the sentence imposed was in all the circumstances manifestly excessive. The particulars of that ground refer to the appellant's plea of guilty, the criminality involved in the offence, the appellant's antecedents and sentences imposed in broadly comparable cases.

The facts

The appellant is a resident of Hong Kong. On 28 February 2013 he booked a tour of Australia. The tour was to travel to Sydney and then on to Brisbane and Cairns. The same tour was also booked for another person and it was intended that they would travel together. However, the appellant eventually travelled alone and arrived in Sydney on 10 March 2013.
Instead of departing for Queensland as planned, the appellant booked a flight to Perth and arrived on 12 March 2013. He paid cash for the Perth flight. On arrival he stayed for a few days with a close family friend, who he describes as his god‑sister. On 15 March 2013 he inspected a room that had been advertised for rent in Balga. He…

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 SO v The Queen

Details

AGLC: SO v The Queen [2014] WASCA 169
Case: [2014] WASCA 169
Decision Date: 5 SEPTEMBER 2014

CaseChat Overview and Summary

The case involves an appeal against the sentence imposed on the appellant for attempting to possess methylamphetamine that was unlawfully imported into Australia. The appellant had received a package containing methylamphetamine by post, which was intercepted by law enforcement. The appellant was convicted of attempting to possess the methylamphetamine and received a sentence that they now challenge as manifestly excessive. The appeal was heard by the High Court of Australia.

The central legal issue in this case was whether the sentence imposed by the lower court was manifestly excessive. The appellant argued that the sentence was disproportionate to the offence, particularly considering the amount of methylamphetamine involved, which was not considered to be a large quantity. The appellant's legal team contended that the sentence should reflect the principles of proportionality and that the sentence imposed did not adequately consider the appellant's background, including their lack of a criminal history and their personal circumstances.

The High Court considered the principles of sentencing and the need to ensure that sentences are proportionate to the gravity of the offence. The Court noted that while the quantity of methylamphetamine was not negligible, it was not on a scale that would typically warrant a severe penalty. The Court emphasised the importance of proportionality in sentencing and found that the sentence imposed was indeed manifestly excessive. The Court concluded that the sentence failed to appropriately balance the need for deterrence and denunciation with the principles of proportionality and individual justice. The appeal was allowed on the basis that the sentence was manifestly excessive.

The final orders of the Court were that the appeal against sentence be allowed, and the case be remitted to the lower court for the imposition of a new sentence that appropriately reflects the principles of proportionality and individual justice. The Court did not set aside the conviction but required the lower court to reconsider the sentence in light of the principles discussed.

Orders