Soewandi v The Queen
[2002] WASCA 315
•1 NOVEMBER 2002
SOEWANDI -v- THE QUEEN [2002] WASCA 315
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 315 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:124/2001 | 1 NOVEMBER 2002 | |
| Coram: | TEMPLEMAN J MCKECHNIE J MCLURE J | 1/11/02 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | HARTONO SOEWANDI THE QUEEN |
Catchwords: | Criminal procedure Appeal against sentence Importation of prohibited import, methylamphetamine Parity of sentence with co-accused Whether sufficient discount given for early plea and cooperation |
Legislation: | Crimes Act 1914 (Cth), s 21E Customs Act 1901 (Cth) |
Case References: | Nil Cameron v The Queen [2002] HCA 6 Duffy v The Queen (19960 85 A Crim R 456 Iskander v The Queen [2001] WASCA 409 Little v The Queen [2001] WASCA 87 Lowe v The Queen (1984) 154 CLR 606 Mustafa v The Queen [2001] WASCA 192 Paunovic (1990) 51 A Crim R 174 Postiglione v The Queen (1997) 189 CLR 295 R v Cartwright (1989) 17 NSWLR 243 R v Dinic (1997) 149 ALR 488 R v Gallagher (1991) 23 NSWLR 220 R v Nagy [1992] 1 VR 637 R v Oancea (1990) 51 A Crim R 141 Radebe v The Queen [2001] WASCA 254 Roberts v The Queen [1999] WASCA 273 Wong v The Queen 185 ALR 233 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SOEWANDI -v- THE QUEEN [2002] WASCA 315 CORAM : TEMPLEMAN J
- MCKECHNIE J
MCLURE J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal procedure - Appeal against sentence - Importation of prohibited import, methylamphetamine - Parity of sentence with co-accused - Whether sufficient discount given for early plea and cooperation
Legislation:
Crimes Act 1914 (Cth), s 21E
Customs Act 1901 (Cth)
Result:
Appeal allowed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr L M Levy
Respondent : Mr H G Dembo
Solicitors:
Applicant : Laurie Levy & Associates
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Cameron v The Queen [2002] HCA 6
Duffy v The Queen (19960 85 A Crim R 456
Iskander v The Queen [2001] WASCA 409
Little v The Queen [2001] WASCA 87
Lowe v The Queen (1984) 154 CLR 606
Mustafa v The Queen [2001] WASCA 192
Paunovic (1990) 51 A Crim R 174
Postiglione v The Queen (1997) 189 CLR 295
R v Cartwright (1989) 17 NSWLR 243
R v Dinic (1997) 149 ALR 488
R v Gallagher (1991) 23 NSWLR 220
R v Nagy [1992] 1 VR 637
R v Oancea (1990) 51 A Crim R 141
Radebe v The Queen [2001] WASCA 254
Roberts v The Queen [1999] WASCA 273
Wong v The Queen 185 ALR 233
(Page 3)
1 TEMPLEMAN J: This is an application for leave to appeal against sentence. The applicant Hartono Soewandi, together with a co-accused Mira Iskandar, pleaded guilty on the fast-track system to importing into Australia prohibited imports, namely, methylamphetamine, contrary to a provision of the Customs Act 1901 (Cth). The applicant brought in approximately 1.2 kilograms gross, that was of 83.8 per cent purity and he brought it in strapped to his body as did his co-accused.
2 The applicant had been recruited in Indonesia by his co-accused, Ms Iskandar. Both offenders were apprehended on 17 May 2001 at Perth International Airport. When they were arrested or taken into custody, they both made admissions about their involvement in the importation. They both agreed to cooperate with the authorities and on the following day both the applicant and Ms Iskandar did cooperate in the controlled delivery of the drug. That resulted in the arrest of two other offenders.
3 The sentence which was imposed on the applicant by the learned sentencing Judge involved a starting point of 13 years' imprisonment. That was one year less than Ms Iskandar whose starting point was 14 years. However, the learned sentencing judge reduced the applicant's sentence to 11 years with a non-parole period of 5-1/2 years and that was to take into account all matters of mitigation.
4 Ms Iskandar's sentence was discounted also and she was given a further discount of 3 years for her promise of future cooperation. Ms Iskandar appealed and the Court of Criminal Appeal allowed her appeal and resentenced her to 7 years' imprisonment with a non-parole period of 3-1/2 years. That sentence was structured in the following way: there was a commencement term of 14 years that was reduced by 35 per cent for the early plea of guilty and the past cooperation with the authorities, and a further 15 per cent to recognise the assistance which Ms Iskandar promised to give.
5 The applicant now appeals against his sentence on a number of grounds. Briefly the first ground is that there was an insufficient discount given for the early plea of guilty and past cooperation. The second ground is that there is inadequate parity between the applicant and Ms Iskandar. The third ground, which has been added more recently as a result of leave given today, submits that the applicant's sentence is disparate when regard is had to the sentence imposed on Ms Iskandar, and that really is saying the same as the second ground.
(Page 4)
6 It is not necessary to go into those grounds in any detail because it is conceded by the Crown, and rightly in my view, that this appeal should be allowed. In my view it is appropriate now to apply the same kinds of discount to the applicant's sentence as were applied to Ms Iskandar's sentence. I would not propose to do that in precisely the same way because that will give rise to some awkward percentages and we impose sentences in terms of years and months.
7 What I would do in these circumstances is to start from the 13 years which was imposed by the learned sentencing Judge and I would reduce that to 8-1/4 years to take account of the early plea and past cooperation. I would reduce that by a further 2 years to allow for future cooperation which the applicant has promised to give and indeed has given an undertaking that he will cooperate in the future. I should say that he has cooperated already by giving evidence against the co-offenders. That resulted in a hung jury and for that reason he may well be called upon to cooperate again.
8 The result of those discounts is that his sentence will be reduced to 6-1/4 years; that is, 6 years and 3 months, and the non-parole period will be reduced to 3 years and 1 month.
9 It must be clearly understood that under s 21E of the Crimes Act 1914 (Cth) if the cooperation is not given by the applicant, if he does not cooperate in future, it will be open to the director of public prosecutions to appeal to the Court with the result that the applicant may lose the 2-year concession which is being given to him today.
10 The applicant understands this and has signed an undertaking and that will be binding on him.
11 The sentence that would have been imposed but for that reduction of 2 years for future cooperation, would have been 8-1/4 years with a non-parole period of 4 years and 1 month. That will be backdated to 17 May 2001. For those reasons, in my view the appeal should be allowed and those orders made.
12 MCKECHNIE J: I agree.
13 MCLURE J: I also agree.
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