AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 1 December 2011

GOVINDARAJU v REGINA

[2011] NSWCCA 255

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE DENIAL OF PROCEDURAL FAIRNESS PSYCHOLOGIST'S REPORT TO ESTABLISH ROLE APPEAL AGAINST SENTENCE APPEAL AGAINST SENTENCE

Citation: Govindaraju v Regina [2011] NSWCCA 255
Court: Court of Criminal Appeal, New South Wales
Date: 1 December 2011
Judge(s): Bathurst CJ, Hall J, Harrison J

Background

The appellant, a Malaysian national in his early thirties, was arrested at Sydney Airport in April 2009 after swallowing 75 pellets containing approximately 372 grams of pure heroin. He had been recruited in Malaysia and had spent three weeks in India with members of the importation network before travelling to Australia. He was charged with importing a border controlled drug (heroin) in a marketable quantity under s 307.2(1) of the Criminal Code 1995 (Cth), which carries a maximum penalty of 25 years' imprisonment.

At sentencing in the District Court, the appellant received a nine-year term with a non-parole period of approximately five years and four months. He did not give evidence at the sentencing hearing. The sentencing judge relied on a psychological report prepared by Dr Katie Seidler, which recorded the appellant's personal history, background, and account of the circumstances of the offending.

The appellant sought leave to appeal on the grounds that the sentencing judge had erred in characterising his role as greater than that of a courier, had denied him procedural fairness in doing so without allowing submissions on the point, and had misused the statement of assistance as evidence of the objective gravity of the offence.

  • Whether the sentencing judge erred in finding that the appellant's role in the importation was greater than that of a mere courier, treating this as an aggravating factor.
  • Whether the sentencing judge denied the appellant procedural fairness by making that finding without giving him an opportunity to respond.
  • Whether the sentencing judge erred in relying on the assessment of assistance as evidence of the objective gravity of the offence rather than confining it to its proper purpose.

Decision

Role greater than courier: Hall J found that the sentencing judge had erred in concluding the appellant's role exceeded that of a courier. The facts drawn from Dr Seidler's psychological report, including the three-week stay in India with members of the network, were consistent with what might be expected of a courier who had to be organised and prepared by others. There was insufficient basis on the evidence to elevate his role to something qualitatively greater, and the finding improperly operated as an aggravating factor.

Procedural fairness: The Court also accepted that the appellant had been denied procedural fairness. The sentencing judge raised the issue of the appellant's elevated role without alerting the parties, thereby depriving the appellant of the opportunity to make submissions or adduce evidence to address it. This constituted an independent error warranting appellate intervention.

Use of the assessment of assistance: Hall J concluded that the sentencing judge had misused the statement of assistance. That material was relevant only to the question of what discount, if any, should be afforded for cooperation with authorities. It was not properly available as a basis for assessing the objective seriousness of the offence itself, and using it in that way was an error.

Re-sentencing: The errors collectively warranted intervention. Having identified both procedural and substantive error in the original sentencing, the Court of Criminal Appeal re-sentenced the appellant. The overall term was reduced from nine years to eight years, with the non-parole period reduced from approximately five years and five months to four years and three months.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence upheld.
  • Sentence imposed by the District Court on 16 July 2010 set aside.
  • Appellant re-sentenced to a non-parole period of 4 years and 3 months commencing 12 April 2009 and expiring 11 July 2013, with a balance of term of 3 years and 9 months expiring 11 April 2017.
  • First eligible parole date: 11 July 2013.

Key Takeaways

  • A sentencing court must afford an offender the opportunity to make submissions before characterising their role as more serious than the way it was framed by the Crown or the parties. Raising an aggravating finding without notice constitutes a denial of procedural fairness.
  • The Court of Criminal Appeal confirmed that an assessment of assistance goes to mitigation and cooperation, not to the objective gravity of the offence. Using it as evidence of objective seriousness is a misapplication of that material.
  • Participation in preparatory steps, such as travelling with members of an importation network and spending time in their company, does not automatically elevate a drug courier's role to something greater. The characterisation of role requires careful analysis of what the evidence actually establishes.
  • In re-sentencing, the Court had regard to the appellant's personal circumstances, including his low intellectual functioning, social naivety, poverty, limited education, and the absence of any prior serious criminal history, alongside the serious objective features of the offence.
  • Appellate intervention in sentencing requires demonstrated error; here, the combination of three distinct errors, each going to the foundation of the sentence, was sufficient to justify the Court of Criminal Appeal substituting its own sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 307.2(1)
- Crimes Act 1914 (Cth)
- Customs Act 1901 (Cth)

Cases:
- Baroudi v R [2007] NSWCCA 48
- Bourchas v R (2002) 133 A Crim R 413
- Bugmy v R (1990) 169 CLR 525
- Deakin v R (1984) 58 ALJR 367
- Dinsdale v The Queen (2000) 202 CLR 321
- DPP (Cth) v De La Rosa (2010) 273 ALR 324
- Hili v R (2010) 272 ALR 465
- Inge v The Queen (1999) 199 CLR 295
- Le v R [2006] NSWCCA 136
- Lowndes v The Queen (1999) 195 CLR 665
- Olbrich v R (1999) 199 CLR 270
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- Power v The Queen (1974) 131 CLR 623
- R v Bezan [2004] NSWCCA 342
- R v Jimson [2009] QCA 183
- R v Meggett (1999) 107 A Crim R 257
- R v Mirzaee [2004] NSWCCA 315
- R v Nguyen; R v Phan [2010] NSWCCA 238
- R v Nikolovska [2010] NSWCCA 169
- R v Pham [2005] NSWCCA 314