Citation: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Court: New South Wales Court of Criminal Appeal
Date: 17 September 2010
Judge(s): Allsop P; Basten JA; McClellan CJ at CL; Simpson J; Barr AJ
Background
The respondent was convicted in the NSW District Court of importing a marketable quantity of cocaine, a federal offence. The sentencing judge imposed a sentence with a starting point of 10 years and 8 months imprisonment, reduced to reflect a guilty plea. The Commonwealth Director of Public Prosecutions appealed, contending that the sentence was manifestly inadequate given the nature and circumstances of the offending.
A significant constitutional question arose during the appeal. Section 68A of the Crimes (Appeal and Review) Act 2001 (NSW) imposes a limitation on prosecution appeals in recognition of the principle against double jeopardy, broadly requiring a court to give substantial weight to the fact that an offender will be sentenced again if an appeal succeeds. The Court undertook its own research and accorded the parties a further hearing before resolving whether that provision applied to federal offenders sentenced in NSW courts.
The Court was therefore required to address both whether the sentence was manifestly inadequate and whether s 68A was constitutionally valid when applied in the federal sentencing context.
Legal Issues
- Whether the sentence imposed for importing a marketable quantity of cocaine was manifestly inadequate
- Whether s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) is inconsistent with s 16A of the Crimes Act 1914 (Cth), rendering s 68A invalid under s 109 of the Constitution
- Whether s 68A is picked up by ss 68, 79 and 80 of the Judiciary Act 1903 (Cth) so as to apply it to Commonwealth offences prosecuted in State courts
- Whether any inconsistency with s 16A(2)(m) of the Crimes Act 1914 (Cth) prevented s 68A from operating in the federal jurisdiction
Decision
The Court dismissed the appeal on all grounds. The five judges each delivered separate judgments, but arrived at the same conclusions on the central issues.
On the constitutional question, the Court unanimously held that s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) is not inconsistent with s 16A of the Crimes Act 1914 (Cth) for the purposes of s 109 of the Constitution. The reasoning centred on the absence of a direct conflict between the two provisions: s 16A sets out factors a court must consider when sentencing a federal offender, while s 68A addresses the procedure and weight to be applied on a prosecution appeal. The provisions were found to operate in different fields without covering the same subject matter in an irreconcilable way.
On the question of how s 68A applies to federal offenders, the Court held that the provision is picked up by the Judiciary Act 1903 (Cth) and therefore applies when NSW courts exercise federal jurisdiction in sentencing federal offenders. There was no inconsistency between s 68A and s 16A(2)(m) of the Crimes Act (which requires a court to consider the effects of resentencing on an offender following a successful prosecution appeal) that would prevent this operation.
On the merits of the sentence, all five judges concluded that the sentence imposed by the District Court was not manifestly inadequate. The starting point of 10 years and 8 months was found to sit around the mid-point of the historically established range for offences of this type, and the circumstances of the case did not compel a sentence at the upper end of that range.
Orders Made
- Appeal dismissed.
Key Takeaways
- Section 68A of the Crimes (Appeal and Review) Act 2001 (NSW), which requires substantial weight to be given to the double jeopardy principle on prosecution appeals, does not conflict with s 16A of the Crimes Act 1914 (Cth) and is not rendered invalid by s 109 of the Constitution.
- The provision is picked up by the Judiciary Act 1903 (Cth) and applies when NSW courts sentence federal offenders, meaning the double jeopardy consideration must be weighed on any Commonwealth prosecution appeal in NSW.
- No inconsistency was found between s 68A and s 16A(2)(m) of the Crimes Act 1914 (Cth), the sub-section that directs a court on resentencing to consider the fact that the offender has already been sentenced once.
- In dismissing the appeal on the sentencing ground, the Court confirmed that a sentence starting point around the mid-point of the established range for importing a marketable quantity of cocaine did not, on the facts of this case, constitute manifest inadequacy.
- Where the Court undertakes its own research and investigation beyond the parties' submissions, procedural fairness requires that the parties be accorded a further hearing before the Court acts on that material.
Legislation and Cases Referenced
Legislation:
- Australian Constitution, s 109
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes Act 1914 (Cth), s 16A (including s 16A(2)(m))
- Judiciary Act 1903 (Cth), ss 68, 79, 80
- Criminal Appeal Act 1912 (NSW)
- Criminal Code Act 1995 (Cth)
- Customs Act 1901 (Cth)
- Crimes Legislation Amendment Act (No 2) 1990 (Cth)
- Mental Health (Criminal Procedure) Act 1990 (NSW)
Key Cases:
- Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370
- Putland v The Queen [2004] HCA 8; 218 CLR 174
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Postiglione v R [1997] HCA 26; 189 CLR 295
- House v The King [1936] HCA 40; 55 CLR 499
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Northern Territory v GPAO [1999] HCA 8; 196 CLR 553
- British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; 217 CLR 30
- Commonwealth v Hospital Contribution Fund [1982] HCA 13; 150 CLR 49
- Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60