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Court of Criminal Appeal 21 May 2010

R v El Helou, El Helou v R

[2010] NSWCCA 111

Also reported as (2010) 267 ALR 734
Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEALS BY CROWN WHETHER SENTENCE MANIFESTLY INADEQUATE RANGE OF SERIOUSNESS PAROLE PERIOD

Citation: R v El Helou, El Helou v R [2010] NSWCCA 111
Court: New South Wales Court of Criminal Appeal
Date: 21 May 2010
Judge(s): Allsop P, Grove J, Hislop J

Background

The respondent pleaded guilty in the District Court to knowingly taking part in the supply of pseudoephedrine in an amount exceeding the large commercial quantity threshold under the Drug Misuse and Trafficking Act 1985 (NSW). The quantity involved was 259.22 kilograms, more than 50 times the five-kilogram threshold for a large commercial quantity. The maximum penalty for the offence is life imprisonment.

The District Court sentenced the respondent to a total term of ten years and six months, with a non-parole period of six years and six months. The Crown appealed on the ground that the sentence was manifestly inadequate. Separately, the respondent sought to appeal against conviction, arguing that the relevant provision of the state drug law was constitutionally invalid.

  • Whether the District Court's sentence was manifestly inadequate, having regard to the objective seriousness of the offence and the standard non-parole period
  • Whether section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) is invalid because it is inconsistent with section 306.2 of the Criminal Code Act 1995 (Cth), by operation of section 109 of the Constitution
  • Whether section 25(2) requires a sentencing court to engage in a process incompatible with the exercise of Commonwealth judicial power

Decision

Conviction appeal: Constitutional invalidity rejected

The Court dismissed the argument that section 25(2) of the state Act was inconsistent with the Commonwealth Criminal Code, section 306.2. The two provisions proscribe overlapping but not identical conduct, and the mere fact that different penalties apply to similar conduct does not, of itself, create an operative inconsistency under section 109 of the Constitution. The Court found it is possible to comply with both laws simultaneously, and the state law was not rendered inoperative.

The Court also rejected the argument that the standard non-parole period mechanism in the state sentencing regime was incompatible with the exercise of Commonwealth judicial power. The extension of time to file the conviction appeal was granted, given the constitutional questions were responsibly raised, but the appeal itself was dismissed.

Crown appeal: Sentence manifestly inadequate

The Court accepted that the sentencing judge failed to give sufficient weight to the standard non-parole period and did not adequately reflect the objective criminality of an offence the judge himself characterised as above mid-range in seriousness. A non-parole period of six and a half years was held to be manifestly inadequate in those circumstances.

The Court declined to reduce the sentence to achieve conformity with what might have been available under the lesser Commonwealth penalty provisions, holding that New South Wales law governs New South Wales offences and a lower Commonwealth penalty is not a relevant comparator where the defendant was charged and convicted under state law.

Orders Made

  • Time extended for filing a notice of appeal against conviction to 26 March 2010
  • Conviction appeal dismissed
  • Crown's appeal against sentence allowed
  • District Court orders of 10 July 2009 set aside; the respondent re-sentenced to imprisonment with a non-parole period of eight years commencing 11 July 2008 and expiring 10 July 2016, with a balance of term of four years expiring 10 July 2020

Key Takeaways

  • Different penalties prescribed by state and Commonwealth laws for overlapping conduct do not automatically create an inconsistency under section 109 of the Constitution; inconsistency requires that compliance with both laws simultaneously be impossible, or that the Commonwealth law was intended to be exhaustive.
  • The Court of Criminal Appeal confirmed that the standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW) is a significant sentencing reference point, and inadequate weight given to it can render an otherwise structured sentence manifestly inadequate.
  • In allowing the Crown appeal, the Court increased the non-parole period from six and a half years to eight years, reflecting the very large quantity of drug involved and the finding that the offence sat above the mid-range of seriousness.
  • A lower penalty available under a Commonwealth provision with which the defendant was not charged is not a proper basis for reducing a sentence imposed under state law.
  • Where constitutional arguments, though ultimately unsuccessful, are responsibly advanced and raise important questions, an extension of time to file a conviction appeal may still be granted.

Legislation and Cases Referenced

Legislation
- Australian Constitution, s 109
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Criminal Code Act 1995 (Cth), ss 300.4, 306.1, 306.2
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes Act 1914 (Cth), s 29
- Judiciary Act 1903 (Cth), s 78B

Key Cases
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Carroll v The Queen [2009] HCA 13; 83 ALJR 579
- Kable v The Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51
- University of Wollongong v Metwally [1984] HCA 74; 158 CLR 447
- Ex parte McLean [1930] HCA 12; 43 CLR 472
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Gent [2005] NSWCCA 370; 162 A Crim R 29
- Pham v R [2009] NSWCCA 25
- Nguyen v R [2007] NSWCCA 15