THOM -v- THE QUEEN [2001] WASCA 322

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 322
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:211/2000	Heard:	2 AUGUST 2001
Coram:	MALCOLM CJ STEYTLER J BURCHETT AUJ	Delivered:	23/10/01
No of pages:	10	Judgment Part:	1 of 1
Result:	Leave to appeal granted in respect of the minimum term and term reduced to 4 years and 3 months
Category:	D
PDF Version

Parties:	MICHAEL JAMES THOM THE QUEEN
Catchwords:	Criminal law Jurisdiction Practice and procedure Judgment and punishment Sentencing Importation of 225 grams of pure heroin Trafficable quantity Plea of guilty Sentence of 8 years and 6 months confirmed Minimum term of 5 years and 6 months reduced to 4 years and 3 months on account of hardship in serving sentence in Australia when the applicant's family and business were in Thailand
Legislation:	Customs Act 1901 (Cth) s 233B(1)(b) and s 235(2)(d)(i) Passports Act 1938 (Cth) s 9A(f)(i)
Case References:	Cottrell (1989) 42 A Crim R 31 Darwell (1997) 94 A Crim R 35 Foster and D'Anna (1992) 59 A Crim R 14 Gasteau v R [1999] WASCA 153 Quach v R [1999] WASCA 210 Heryadi (1998) 98 A Crim R 578 Oancea (1990) 51 A Crim R 141 Paunovic (1990) 51 A Crim R 174

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : THOM -v- THE QUEEN [2001] WASCA 322 CORAM : MALCOLM CJ

STEYTLER J

BURCHETT AUJ

HEARD : 2 AUGUST 2001 DELIVERED : 23 OCTOBER 2001 FILE NO/S : CCA 211 of 2000 BETWEEN : MICHAEL JAMES THOM

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law - Jurisdiction - Practice and procedure - Judgment and punishment - Sentencing - Importation of 225 grams of pure heroin - Trafficable quantity - Plea of guilty - Sentence of 8 years and 6 months confirmed - Minimum term of 5 years and 6 months reduced to 4 years and 3 months on account of hardship in serving sentence in Australia when the applicant's family and business were in Thailand

Legislation:

Customs Act 1901 (Cth) s 233B(1)(b) and s 235(2)(d)(i)

Passports Act 1938 (Cth) s 9A(f)(i)

(Page 2)

Result:

Leave to appeal granted in respect of the minimum term and term reduced to 4 years and 3 months

Category: D

Representation:

Counsel:

Applicant : Ms K J Farley

Respondent : Mr G J Allen

Solicitors:

Applicant : Unrepresented Criminal Appellants Scheme

Respondent : Commonwealth Director of Public Prosecutions

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

Cottrell (1989) 42 A Crim R 31
Darwell (1997) 94 A Crim R 35
Foster and D'Anna (1992) 59 A Crim R 14
Gasteau v R [1999] WASCA 153
Quach v R [1999] WASCA 210

Case(s) also cited:

Heryadi (1998) 98 A Crim R 578
Oancea (1990) 51 A Crim R 141
Paunovic (1990) 51 A Crim R 174

(Page 3)

1 MALCOLM CJ: This was an application for leave to appeal against sentence. On 18 September 2000…

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 Thom v The Queen

Details

AGLC: Thom v The Queen [2001] WASCA 322
Case: [2001] WASCA 322
Decision Date: 23 OCTOBER 2001

CaseChat Overview and Summary

The appeal before the court was brought by the applicant, Thom, against the sentence imposed by the primary court. The applicant had pleaded guilty to the importation of 225 grams of pure heroin, an offence which is considered to involve a trafficable quantity under Australian law. The primary court had sentenced the applicant to a term of 8 years and 6 months imprisonment, with a non-parole period of 5 years and 6 months. The applicant sought to appeal the non-parole period on the basis that the hardship in serving the sentence in Australia, given that his family and business interests were based in Thailand, warranted a reduction in the minimum term.

The court was required to determine whether the hardship in serving the sentence in Australia was sufficient to justify a reduction in the non-parole period. The court considered the principles of sentencing under Australian criminal law, and the particular circumstances of the applicant. The court noted that the importation of a trafficable quantity of a dangerous drug such as heroin was a serious offence, but also recognised that the applicant's personal circumstances were exceptional. The court acknowledged that serving a lengthy sentence in Australia would cause significant hardship to the applicant's family and business interests in Thailand, and that this was a relevant consideration in determining the appropriate non-parole period.

After considering the arguments and evidence presented by both parties, the court found that the hardship in serving the sentence in Australia was sufficient to warrant a reduction in the non-parole period. The court reduced the minimum term from 5 years and 6 months to 4 years and 3 months, while confirming the overall sentence of 8 years and 6 months imprisonment. The court emphasised that this reduction was not a matter of leniency, but rather a recognition of the exceptional circumstances of the case. The court granted leave to appeal in respect of the minimum term, and made an order reducing the non-parole period to 4 years and 3 months.

Orders

Orders of the court

Leave to appeal granted in respect of the minimum term and term reduced to 4 years and 3 months

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.