The King v MHM - [2023] WASCA 172

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE KING -v- MHM [2023] WASCA 172
CORAM:   MAZZA JA
VAUGHAN JA
HALL JA

HEARD:   12 MAY 2023
DELIVERED          :   4 DECEMBER 2023
FILE NO/S:   CACR 81 of 2022
BETWEEN:   THE KING
Appellant

AND

MHM
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEWART DCJ
File Number            :   IND XXX of XXXX

Catchwords:

Criminal law - Commonwealth appeal against sentence - Respondent convicted after trial of one count of trafficking a marketable quantity of a controlled drug namely 397.4 g methamphetamine, one count of dealing in proceeds of crime valued at more than $50,000, namely $59,920, and one count of possession of a controlled drug namely 2.6 g heroin - Whether individual sentences on count 1 and count 2 manifestly inadequate - Whether total effective sentence of 5 years 9 months' imprisonment infringes the first limb of totality principle - Turns on own facts

Legislation:

Criminal Code Act 1995 (Cth), s 302.3(1), s 308.1(1), s 400.5(1)

Result:

Leave to appeal on grounds 1, 2 and 3 granted
Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr C Astill
Respondent	:	Mr D Renton SC, Mr C Price & Mr N Terry

Solicitors:

Appellant	:	Commonwealth Director of Public Prosecutions
Respondent	:	The Defence Lawyers

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

Director of Public Prosecutions (Commonwealth) v Merrill (a pseudonym) [2015] VSCA 52
Garcia v The Queen [2022] NSWCCA 172
Harvey v The Queen [2018] WASCA 188
Kleindyk v The Queen [2016] WASCA 123
Ljuboja v The Queen [2011] WASCA 143; (2011) 210 A Crim R 274
Nguyen v The Queen [2010] NSWCCA 132
Parker v The Queen [2020] NSWCCA 206
R v Jacques [2021] SASCA 94
Teoh v The Queen [2018] VSCA 239

JUDGMENT OF THE COURT:

The respondent was convicted after a seven‑day trial of one count of trafficking a marketable quantity of a controlled drug, namely methamphetamine, contrary to s 302.3(1) of the Criminal Code (Cth) (the Code) (count 1); one count of dealing in proceeds of crime valued at more than $50,000 contrary to s 400.5(1) of the Code (count 2); and one count of possessing a controlled drug, namely heroin, contrary to s 308.1(1) of the Code (count 3).[1]
[1] In respect of count 3, the respondent was charged with trafficking in a controlled drug, namely heroin, contrary to s 302.4(1). The jury found him not guilty of this offence, but guilty of possession.
On 2 August 2022, Stewart DCJ sentenced the respondent to a total effective sentence of 5 years and 9 months' imprisonment with a non‑parole period of 3 years and 6 months. The details of the sentences are set out in the table below:

Count	Offence (CRC)	Description	Maximum penalty	Sentence imposed
Count 1	s 302.3(1) Criminal Code (Cth)	On 15 October 2019 at Perth in the State of Western Australia, the respondent trafficked in a substance, the substance being a controlled drug,…

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 The King v MHM

Details

AGLC: The King v MHM [2023] WASCA 172
Case: [2023] WASCA 172
Decision Date

CaseChat Overview and Summary

The appeal in The King v MHM [2023] WASCA 172 was brought by the Commonwealth against the sentence imposed on the respondent who was convicted of trafficking a marketable quantity of a controlled drug, namely 397.4 g of methamphetamine, dealing in proceeds of crime valued at more than $50,000, and possessing a controlled drug, namely 2.6 g of heroin. The Crown contended that the sentences imposed on counts 1 and 2 were manifestly inadequate and that the total effective sentence infringed the first limb of the totality principle. The Court of Appeal granted leave to appeal on each ground but dismissed the appeal. The sentencing judge had found that the respondent trafficked a significant quantity of methamphetamine and participated in the operation for financial reward, but had also found that he was not the guiding force of the operation and had little mitigation to be found in his personal circumstances. The only significant mitigation was the respondent's past cooperation, which resulted in a discount of 25%. The Court of Appeal held that while the sentences were lenient, they were not manifestly inadequate and did not infringe the first limb of the totality principle, having regard to all relevant circumstances.

Orders