R v Irusta [2000] NSWCCA 391

R v Irusta [2000] NSWCCA 391

Errors were established in the sentencing judge's approach to (1) treating attempt as necessarily warranting lower sentences than completed importation offences under the Customs Act 1901, (2) doubly discounting sentence using the Wong & Leung guideline and s16G, and (3) reducing sentence based on erroneous finding as to quantity involved. The appropriate guideline for a commercial quantity should have been applied, with head sentence not at the very bottom of the range. On resentencing, an eight-year sentence with a five-year non-parole period was appropriate for the Commonwealth offence.

Jurisdiction
Australia
Judgment Date
06 October 2000
Procedural Posture
Criminal Appeal / Appeal Against Sentence; Crown Appeal and Application for Leave to Appeal by the Respondent
Outcome
Leave to appeal against the state sentence granted but dismissed; Crown appeal against Commonwealth sentence upheld; Respondent re-sentenced for Commonwealth offence.
Legal Topics
['sentencing' 'drug Offences' 'cumulative Sentences' 'appeals Against Sentence' 'attempted Offences']
['criminal Law'] ['sentencing' 'drug Offences' 'cumulative Sentences' 'appeals Against Sentence' 'attempted Offences']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Sentence; Crown Appeal and Application for Leave to Appeal by the Respondent

Legal Issues

  1. 1 ['Whether the sentence imposed for the Commonwealth drug offence was manifestly inadequate and affected by error' 'Whether sentences for attempted offences should be lower than for completed offences under s 233B of the Customs Act 1901' 'Whether the approach to cumulative sentences gave rise to error in totality or other relevant principles' 'Whether the sentencing judge wrongly applied s 16G of the Crimes Act 1914 (Cth) and the Wong and Leung sentencing guideline' 'Whether quantity relevant to the charge was incorrectly assessed']

Ratio Decidendi

Errors were established in the sentencing judge's approach to (1) treating attempt as necessarily warranting lower sentences than completed importation offences under the Customs Act 1901, (2) doubly discounting sentence using the Wong & Leung guideline and s16G, and (3) reducing sentence based on erroneous finding as to quantity involved. The appropriate guideline for a commercial quantity should have been applied, with head sentence not at the very bottom of the range. On resentencing, an eight-year sentence with a five-year non-parole period was appropriate for the Commonwealth offence.

Court Disposition

Leave to appeal against the state sentence granted but dismissed; Crown appeal against Commonwealth sentence upheld; Respondent re-sentenced for Commonwealth offence.

Orders

  • ['Leave granted to appeal against the sentence imposed on the state charge, but the appeal is dismissed.' 'The Crown appeal against the sentence imposed in relation to the Commonwealth offence is upheld.' 'The sentence imposed is quashed.' 'In lieu thereof, the respondent is sentenced to imprisonment for eight years...