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[2009] QCA 362
Court of Appeal (Qld)
2009-11-27
Keane and Fraser JJA and Atkinson J, Separate reasons, for judgment of each member of the Court, each concurring as to the orders, made
Original judgment source is linked above.
Director of Public Prosecutions (Commonwealth) for the respondent
[1] KEANE JA: On 3 November 2008 the applicant was convicted on his own plea of one count of importing a commercial quantity of a border controlled drug,
3,4-Methylenedioxymethamphetamine ("MDMA"). This offence was committed between 15 January 2007 and 8 February 2007.
[2] On 24 July 2009 the applicant was convicted on his own plea of:
• one count of structuring two or more transactions so as to avoid reporting conditions in contravention of s 31(1) of the Financial Transaction Reports Act 1988 (Cth);
• one count of structuring two or more transactions so as to avoid reporting conditions in contravention of s 142(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth); and
• one count of dealing with the proceeds of crime to a value of more than $100,000 in contravention of s 400.4(1) of the Criminal Code 1995 (Cth).
The first of these offences was committed between 25 September 2006 and
12 December 2006. The second offence was committed between 13 December 2006 and 3 January 2007. The third offence was committed between 24 October 2006 and 5 January 2007.
[3] On 24 July 2009 the applicant was sentenced to imprisonment for 10 years and
10 months with a non-parole period of six years and six months in respect of the drug importing offence. He was also sentenced to concurrent terms of imprisonment of two years for each of the other offences. A period of 897 days spent in pre-sentence custody was declared, pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), to be time already served under the sentence.
[4] The applicant seeks leave to appeal against his sentence on the ground that the sentence was manifestly excessive. The only sentence in respect of which, as a practical matter, the Court might grant leave to appeal is the sentence imposed for the drug offence. That is the only sentence to which argument was addressed by
Mr Di Carlo of Counsel who appeared for the applicant. In this regard, it is argued that the notional starting point of the sentence was too high and that the discounts allowed to the applicant were insufficient. In the end I have concluded that these arguments should not be accepted and that the application for leave to appeal should be dismissed.
[5] Consideration of the arguments agitated on behalf of the applicant requires reference to matters which were dealt with "in camera" at Mr Di Carlo's request. The balance of these reasons will, therefore, be made available only to the parties.
[6] I reject the applicant's challenges to the sentence imposed in this case. The applicant has not demonstrated that his sentence for the offence of drug importation was manifestly excessive.
[7] In my opinion the orders which the Court should make are:
1. The application for leave to appeal against sentence should be refused.
2. The reasons for judgment of Keane JA handed down to the parties today and marked 'A' be not further published and that a copy thereof be placed in a sealed envelope together with a transcript of that part of the proceedings which was not conducted in open court, and that it be opened only by order of the court or upon an application under s 188(2) of the Penalties and Sentences Act 1992 (Qld).
[8] FRASER JA: I agree with the reasons for judgment of Keane JA and the orders proposed by his Honour.
[9] ATKINSON J: I agree with the orders proposed by Keane JA and with his Honour's reasons.
R
Dehghani