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Thomas Foley v The Queen

Thomas Foley v The Queen

Case [2019] VSCA 99 6 May 2019

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0170

THOMAS FOLEY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2019
DATE OF JUDGMENT:	6 May 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 99
SENTENCE APPEALED FROM:	DPP v Foley (Unreported, County Court of Victoria, Judge Wischusen, 27 July 2018)

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CRIMINAL LAW – Sentence – Appeal – Application for leave to appeal against sentence – Attempting to possess a commercial quantity of border controlled drug – Sentenced to 7 years and six months’ imprisonment with a non-parole period of five years – Whether sentencing discretion miscarried as consequence of prospect of deportation – Whether manifestly excessive – No error – Sentence not manifestly excessive – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Smallwood	Melasecca Kelly & Zayler
For the Respondent	Ms K Breckweg	Commonwealth Director of Public Prosecutions

PRIEST JA:

Thomas Foley, the applicant, aged 36 years,[1] pleaded guilty in the County Court on 18 July 2018 to a charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, 3,4–Methylenedioxy-methamphetamine (‘MDMA’).[2]
[1]His date of birth is 27 May 1982.
[2]Criminal Code Act 1995 (Cth), ss 11.1, 307.5(1). The maximum penalty is imprisonment for life or 7,500 penalty units (or both). By virtue of s 11.1, a person who attempts to commit an offence is punishable as if the offence attempted had been committed.

On 27 July 2018, the judge sentenced the applicant to be imprisoned for seven years and six months, and fixed a non-parole period of five years.[3]
[3]A declaration of 302 days pre-sentence detention was made. Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the applicant’s plea of guilty, he would have imposed a sentence of 11 years’ imprisonment with a non-parole period of eight years.

By a Notice dated 21 August 2018, the applicant sought leave to appeal against the sentence on two proposed grounds, formulated as follows:

1. In all the circumstances, the Applicant’s head sentence and non-parole period are manifestly excessive.
A: The sentencing discretion has miscarried as a consequence of the fact, and implications, of the Applicant’s inevitable deportation upon completion of his sentence.[4]

[4]The applicant was given leave to rely on ground A by Ashley JA at the hearing of the application for leave to appeal on 7 November 2018. Leave was also granted to file an amended affidavit written by the applicant’s partner, Anne Jane Davidson Lloyd.

Ashley JA refused leave to appeal on both grounds on 21 November 2018.

Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant has elected to have the application for leave determined by this Court.

For the reasons that follow, I too would refuse leave to appeal.

Background

When determining the application for leave to appeal then before him, Ashley JA approached the resolution of the application on the basis that he was…

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 Thomas Foley v The Queen

Details

AGLC: Thomas Foley v The Queen [2019] VSCA 99
Case: [2019] VSCA 99
Decision Date: 6 May 2019

CaseChat Overview and Summary

Thomas Foley appealed against his sentence in the High Court of Australia, challenging the seven years and six months imprisonment imposed for attempting to possess a commercial quantity of a border-controlled drug, with a non-parole period of five years. The case raised significant questions about the appropriate application of sentencing discretion and the impact of deportation prospects on the sentence imposed. The central issue was whether the trial judge's sentencing discretion had miscarried due to the prospect of deportation, and if the sentence was manifestly excessive.

The court examined whether the sentencing judge had appropriately considered all relevant factors, including the prospect of deportation, when determining the sentence. It also considered whether the sentence imposed was manifestly excessive, taking into account the nature and circumstances of the offence, as well as the offender's background and prospects for rehabilitation. The High Court found that the sentencing judge had considered the prospect of deportation and had exercised the sentencing discretion appropriately. The court further determined that the sentence was not manifestly excessive, given the seriousness of the offence and the need to deter similar conduct.

The High Court concluded that there was no error in the sentencing process and that the sentence was not manifestly excessive. Consequently, the application for leave to appeal against the sentence was refused. The court held that the sentence imposed was within the range of appropriate penalties for the offence and that the sentencing judge had appropriately balanced the various factors in reaching the sentence.

Orders