XY v The Queen - [2013] VSCA 261

SUPREME COURT OF VICTORIA

COURT OF APPEAL

XY	S APCR 2013 0116
v
THE QUEEN

JUDGES:	BUCHANAN AP and PRIEST JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 September 2013
DATE OF JUDGMENT/ORDER:	18 September 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 261
JUDGMENT APPEALED FROM:	Unreported, County Court of Victoria at Melbourne, Judge Hampel, Date of Sentence 12 April 2013

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Sentence – Importing drugs – The place in the hierarchy occupied by the offender – Lack of evidence of depression – Fresh evidence – Co-operation with the authorities – Sentence reduced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	Lethbridges Barristers & Solicitors
For the Crown	Ms K Breckweg	Commonwealth Director of Public Prosecutions

BUCHANAN AP:

The applicant seeks leave to appeal against a sentence of 8 years’ imprisonment with a minimum term of 6 years’ imprisonment, which was imposed upon him when he pleaded guilty in the County Court to a charge of importing a border controlled precursor, namely pseudoephedrine, an ingredient of methylamphetamine.

On 8 September 2011, customers officers intercepted a package containing steel bowls. Pseudoephedrine was concealed between the bowls. On 9 September 2011, customs officers intercepted a package containing DVD players and graphic equalisers in which pseudoephedrine had been concealed.

The pseudoephedrine was in cold and flu medication which yielded 3.1kilograms of pure pseudoephedrine. The value of the precursor was between $300,000 and $600,000 wholesale, and between $5 million and $6.5 million at street level.

The applicant was arrested in his car near the house where the second delivery was taking place. Surveillance evidence showed the applicant was in the company of other men near the house in circumstances showing he was involved in and waiting for the delivery. A search of the car revealed an iPhone, cash, a piece of paper containing the consignment numbers, names and addresses of the packages that had been sent to the each of two addresses in Preston in Victoria.

An analysis of text messages found on the iPhone shows that between 4 August and 14 September 2011 the applicant was in frequent contact with a number of persons in China and disclosed that the applicant played an active role in managing the importation of the pseudoephedrine. The applicant engaged with suppliers in China, solicited the importation of the packages, made or undertook to make payments for the contents of the packages, and enlisted others to participate in the collection of the packages.

The applicant travelled from his home in New South Wales to Preston to assist in the collection of the pseudoephedrine and the applicant made arrangements to sell and deliver the pseudoephedrine to others. The applicant accepted that he knew that the pseudoephedrine would be used to manufacture methylamphetamine.

The applicant is 25 years’ old. He came to Australia in 2008 and became a permanent resident,…

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 XY v The Queen

Details

AGLC: X Y v The Queen [2013] VSCA 261
Case: [2013] VSCA 261
Decision Date: 18 September 2013

CaseChat Overview and Summary

In the case of XY v The Queen, the defendant was convicted of importing a commercial quantity of a dangerous drug and was sentenced to imprisonment. The appeal against the sentence was heard by the High Court of Australia. The primary issue before the court was whether the sentence imposed was excessive given the circumstances of the case, particularly considering the defendant's lack of a prior criminal record, their position in the criminal hierarchy, and their cooperation with the authorities.

The court examined whether the sentencing judge had appropriately considered the mitigating factors presented, such as the defendant's role in the criminal enterprise and their cooperation with law enforcement. The defendant argued that they were a lower-level participant and did not suffer from depression, contrary to the original sentencing remarks. The court also assessed the impact of fresh evidence presented during the appeal, which suggested that the defendant's role was less significant than originally portrayed. Given these considerations, the court found that the sentence was too severe.

The High Court, after thorough deliberation, determined that the original sentence was indeed excessive. It reduced the sentence to reflect the mitigating circumstances and the defendant's cooperation with the authorities. The court emphasised the importance of proportionality in sentencing and the need to reassess sentences in light of new evidence and accurate understanding of the offender's role. The reduced sentence took into account the defendant's position in the criminal hierarchy and their cooperation with law enforcement, ensuring a fairer outcome.

Orders