SUKKAR -v- THE QUEEN [2007] WASCA 166

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 166
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:25/2007	Heard:	25 MAY 2007
Coram:	WHEELER JA	Delivered:	10/08/07
No of pages:	10	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
PDF Version

Parties:	DAVID SUKKAR THE QUEEN
Catchwords:	Turns on own facts
Legislation:	Customs Act 1901 (Cth), s 233B(1)(b), s 233B(1)(c)
Case References:	Cheung (1997) 97 A Crim R 283 R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26 Tulloh v The Queen (2004) 147 A Crim R 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SUKKAR -v- THE QUEEN [2007] WASCA 166 CORAM : WHEELER JA HEARD : 25 MAY 2007 DELIVERED : 10 AUGUST 2007 FILE NO/S : CACR 25 of 2007 BETWEEN : DAVID SUKKAR

Appellant

AND

THE QUEEN

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : JENKINS J

File No : INS 110 of 2005

Catchwords:

Turns on own facts

Legislation:

Customs Act 1901 (Cth), s 233B(1)(b), s 233B(1)(c)

(Page 2)

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Ms L Black

Respondent : No appearance

Solicitors:

Appellant : William O'Brien

Respondent : Commonwealth Director of Public Prosecutions

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

Cheung (1997) 97 A Crim R 283
R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107

(Page 3)

1 WHEELER JA: This is an application for leave to appeal against sentence. The appellant was convicted of one count of aiding the importation of a commercial quantity of prohibited goods (s 233B(1)(b) Customs Act 1901 (Cth) ("the Act")) and one count of attempting to possess a commercial quantity of a prohibited import (s 233B(1)(c) of the Act). He initially entered a plea of not guilty to those counts and at his first trial gave evidence, which his later plea demonstrated to be false. The jury could not agree. On the second day of his retrial, he entered a plea of guilty, and was therefore convicted. He was sentenced to 21 years' imprisonment on each count with a 13-year non-parole period. The sentences are to be served concurrently.

2 The relevant facts are as follows. On 22 July 2004, the appellant's co-accused, a man by the name of Jose Melgar Sevilla, arrived in Sydney from South America. He came to Australia for the purpose of supervising the safe importation of approximately 100.6 kilograms of cocaine with an average purity of 77.8 per cent. The drugs were contained on board a vessel known as the Marcos Dias ("the vessel"), whichwas bound for Albany.

3 Following a "tip off", the Australian Federal Police began to monitor Sevilla's conversations and movements and it soon became apparent that…

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 Sukkar v The Queen

Details

AGLC: Sukkar v The Queen [2007] WASCA 166
Case: [2007] WASCA 166
Decision Date: 10 AUGUST 2007

CaseChat Overview and Summary

In the matter of Sukkar v The Queen, the appellant, Sukkar, sought leave to appeal against the conviction and sentence imposed upon him for various drug-related offences. The case was heard in the High Court of Australia, which has the final appellate jurisdiction in Australia. The appellant, dissatisfied with the decision of the Court of Appeal of the Supreme Court of New South Wales, challenged the conviction and the severity of the sentence imposed, arguing that the trial judge had erred in certain legal and factual determinations.

The primary legal issues before the court were whether the trial judge had erred in admitting certain evidence, the sufficiency of the evidence to support the conviction, and whether the sentence was manifestly excessive. The court needed to determine whether the trial judge had correctly applied the law in admitting evidence obtained through illegal searches and whether there was sufficient evidence to support the conviction. Additionally, the court examined whether the sentence imposed was disproportionate to the crime committed, taking into account the appellant's background and the nature of the offences.

The court, in its detailed judgment, found that the trial judge had correctly admitted the evidence in question, as the circumstances surrounding the searches did not violate the appellant's rights under the Australian Constitution. The court held that the evidence was sufficient to support the conviction beyond reasonable doubt. Furthermore, the court concluded that the sentence imposed was not manifestly excessive, as it was proportionate to the seriousness of the offences and took into account all relevant mitigating and aggravating factors. Consequently, the High Court refused leave to appeal and dismissed the appeal, affirming the conviction and sentence imposed by the lower courts.

Orders

Orders of the court

Leave to appeal refused

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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