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Court of Criminal Appeal 30 April 2010

R v Todoroski

[2010] NSWCCA 75

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE CROWN APPEAL WHETHER SENTENCE MANIFESTLY INADEQUATE NO SPECIFIC ERROR BY SENTENCING JUDGE CRIMINAL LAW

Citation: R v Todoroski [2010] NSWCCA 75
Court: NSW Court of Criminal Appeal
Date: 30 April 2010
Judges: Allsop P, Grove J, Hislop J

Background

The respondent pleaded guilty in the Local Court to attempting to possess a marketable quantity of a border controlled drug (heroin), an offence under the Criminal Code 1995 (Cth) carrying a maximum sentence of 25 years imprisonment. He was committed for sentence to the District Court, where Sorby DCJ imposed a head sentence of 6 years and 6 months, with a non-parole period of 3 years and 9 months.

The Crown, represented by the Commonwealth Director of Public Prosecutions, appealed to the Court of Criminal Appeal on the ground that the sentence was manifestly inadequate. The Crown contended the appropriate head sentence, after accounting for the guilty plea and favourable subjective circumstances, should have fallen in the range of seven to ten years.

A secondary issue also arose concerning whether a NSW provision addressing double jeopardy on Crown sentence appeals, section 68A of the Crimes (Appeal and Review) Act 2001 (NSW), was operative in proceedings involving a Commonwealth offence. The respondent raised arguments challenging that provision's application, including on constitutional grounds.

  • Whether the sentence of 6 years and 6 months imprisonment was manifestly inadequate for an attempt to possess a marketable quantity of heroin
  • Whether the sentencing judge made any specific identifiable error in the exercise of the sentencing discretion
  • Whether section 68A of the Crimes (Appeal and Review) Act 2001 (NSW) (relating to double jeopardy considerations on Crown appeals) was "picked up" and applied by the Judiciary Act 1903 (Cth), including sections 68, 79 and 80
  • Whether section 68A was constitutionally invalid

Decision

Grove J (with whom Hislop J agreed) dismissed the appeal, finding that the sentence represented a sound exercise of the sentencing discretion. The Crown was required to demonstrate that the discretion had miscarried, and it failed to do so. Grove J noted that statistics compiled by the Judicial Commission for approximately fifty comparable importation cases showed the respondent's non-parole period was higher than 60 percent of all cases in the collection, with three additional months pushing that figure to 78 percent. Those figures strongly supported the conclusion that no error had occurred.

The Crown argued that the six-month gap between the head sentence imposed and the lower end of its proposed range was not mere "tinkering." Grove J rejected that submission. The sentencing exercise was properly directed to individual justice, and the fact that comparable cases produced a range of outcomes did not demonstrate that the judge's discretion had miscarried.

Because the appeal was dismissed, the question of whether section 68A operated in respect of this Commonwealth offence proceeding did not require resolution. Grove J declined to comment on those issues.

Allsop P agreed with Grove J but took the opportunity to address, without finally deciding, the statutory and constitutional architecture surrounding section 68A. His Honour identified potential difficulties with the Tasmanian Full Court's reasoning in R v Talbot [2009] TASSC 107, where that court had held that a comparable Tasmanian double jeopardy provision was inconsistent with section 16A(1) of the Crimes Act 1914 (Cth) and therefore inoperative under section 109 of the Constitution. Allsop P suggested the analysis may need to begin with the Judiciary Act "pick up" provisions rather than section 109, and noted several unresolved questions about whether section 16A(1) actually incorporates the common law double jeopardy principle or merely assumes a body of law that is itself picked up through the Judiciary Act.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a Crown appeal against sentence requires demonstration that the sentencing discretion actually miscarried, and a relatively small departure from a proposed range does not automatically establish manifest inadequacy.
  • Statistical data from the Judicial Commission regarding comparable offences can be instructive in assessing whether a sentencing outcome falls within an acceptable range, even though such statistics are acknowledged to be a blunt tool.
  • Allsop P expressly declined to resolve whether section 68A of the Crimes (Appeal and Review) Act 2001 (NSW) applies in Crown appeals involving Commonwealth offences, given the appeal was dismissed on other grounds.
  • Potential difficulties were identified with the approach taken in the Tasmanian decision of R v Talbot, which had used section 109 of the Constitution to invalidate a comparable double jeopardy provision; Allsop P observed the correct analytical framework may instead turn on the Judiciary Act 1903 (Cth) "pick up" provisions in sections 68, 79 and 80.
  • The interaction between State sentencing appeal legislation and federal criminal jurisdiction remains an open and complex constitutional question, with the Court of Criminal Appeal flagging the issue without resolving it.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth)
- Crimes Act 1914 (Cth), s 16A(1)
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Criminal Appeal Act 1912 (NSW), s 5D
- Judiciary Act 1903 (Cth), ss 68, 79 and 80
- Australian Constitution, s 109
- Criminal Code Act 1924 (Tas), s 402(4A)

Cases:
- R v Talbot [2009] TASSC 107
- Western Australia v The Commonwealth [1995] HCA 47; 183 CLR 373
- Weininger v The Queen (2003) 212 CLR 629
- The Queen v Olbrich (1999) 199 CLR 270
- R v Wong (1999) 48 NSWLR 340
- R v Rivadavia (2004) 61 NSWLR 63
- R v SC [2008] NSWCCA 29
- R v Dang [2004] NSWCCA 265
- R v Haidar [2004] NSWCCA 350
- R v Okeke [2005] NSWCCA 444
- Korgbara v R (2007) 170 A Crim R 568
- Milich v R [2008] NSWCCA 148
- El-Ghourani v R [2009] NSWCCA 140
- Onuorah v R [2009] NSWCCA 238
- N v R [2009] NSWCCA 108