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Court of Criminal Appeal 23 August 2013

Adegoke v R

[2013] NSWCCA 193

DrugsFraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL PROCEEDS OF CRIME CUSTODY OF FALSE INSTRUMENT

Citation: Adegoke v R [2013] NSWCCA 193
Court: NSW Court of Criminal Appeal
Date: 23 August 2013
Judge(s): Basten JA; Fullerton J; RA Hulme J

Background

The applicant pleaded guilty in the Local Court to three offences and was committed to the District Court for sentencing. The offences were: attempting to possess a marketable quantity of unlawfully imported cocaine (86.2 grams of pure cocaine); dealing with proceeds of crime totalling $387,241 through 90 international fund transfers conducted in false names between June 2009 and February 2010; and having custody of a false NSW driver's licence.

The District Court sentenced him to 7 years imprisonment for the drug offence and 5 years for the proceeds of crime offence, partially accumulated, producing a total sentence of 10 years with a single non-parole period of 6 years. A concurrent fixed term of 12 months was imposed for the false instrument offence.

The applicant sought leave to appeal on five grounds, contending that the sentencing judge applied incorrect maximum penalties, misused the criminal record, and imposed individual and total sentences that were unduly harsh.

Legal Issues

  • Whether the sentencing judge erred by applying an incorrect maximum penalty (25 years rather than 20 years) when sentencing for the proceeds of crime offence
  • Whether the sentencing judge erred by imposing 12 months imprisonment for the false instrument offence when the correct maximum available was also 12 months, suggesting the judge may have proceeded on the basis of an incorrectly stated maximum of 2 years
  • Whether the sentencing judge impermissibly used the applicant's criminal record as an aggravating factor rather than confining its use to permissible purposes
  • Whether the individual sentences for the drug and proceeds of crime offences were manifestly excessive
  • Whether the total accumulated sentence of 10 years was manifestly excessive

Decision

Ground 1: Incorrect maximum penalty for proceeds of crime offence

The Crown conceded that the sentencing judge applied an incorrect maximum penalty of 25 years, when the correct maximum was 20 years and a fine. It further conceded this error was material and infected the exercise of discretion. However, the Court declined to re-sentence. Fullerton J concluded that neither the individual sentence of 5 years nor the overall total of 10 years was excessive, and that the error had not produced a result that was unreasonable or plainly unjust.

Ground 2: False instrument offence sentence

The Court accepted that the agreed statement of facts incorrectly stated the maximum penalty for the false instrument offence as 2 years, when the correct maximum was 12 months. The overwhelming inference was that the sentencing judge had sentenced on the basis of that wrong figure, imposing what appeared to be a maximum sentence without reasons to justify it. The Court intervened and re-sentenced to a fixed term of 3 months, noting the offence was relatively minor and that the applicant had demonstrated sustained rehabilitation efforts.

Ground 3: Use of criminal record

The Court acknowledged the sentencing judge's treatment of the criminal record was cursory and failed to make clear precisely how it was being used. However, Fullerton J was not persuaded the judge had impermissibly used the record to increase the sentence beyond what the objective criminality of the offences warranted, as distinct from the permissible purposes of reducing leniency and emphasising deterrence and protection of the community. The ground was rejected.

Grounds 4 and 5: Individual sentences and total sentence manifestly excessive

The Court rejected the submission that the applicant should be treated as a bare courier equivalent to those in drug importation cases. Fullerton J confirmed that for sentencing purposes, there is no necessary distinction between offences of importation and possession of border controlled drugs, and that an attempt to possess attracts the same framework. The Court also cautioned against mechanically applying the offender categories identified in the earlier De La Rosa decision as if it were a guideline judgment. Having regard to appellate case comparators compiled in a schedule to the judgment, a discounted sentence of 7 years for the drug offence was found to be within range. The 5-year sentence for the proceeds of crime offence was similarly found to be within an available range, notwithstanding the sentencing judge's sparse analysis. The two years of accumulation between the two sentences was held to be appropriate given the legally, factually, and temporally discrete nature of the two offences.

Orders Made

  • Leave to appeal granted
  • The sentence for the false instrument offence (the s 166 certificate offence) is quashed; in lieu, a fixed term of 3 months imprisonment is imposed commencing 9 February 2010
  • Otherwise, the appeal against the sentences imposed in the District Court on 16 December 2011 is dismissed

Key Takeaways

  • An incorrect maximum penalty applied at sentencing constitutes a material error that enlivens the appellate court's power under s 6(3) of the Criminal Appeal Act 1912, but does not automatically result in re-sentencing if the sentence actually imposed falls within an available range.
  • Where a sentencing judge imposes what appears to be the maximum available sentence without providing reasons, an appellate court may infer the judge proceeded on a wrongly stated maximum and intervene accordingly.
  • The Court of Criminal Appeal confirmed that sentencing for an attempt to possess an unlawfully imported border controlled drug attracts the same structured framework as importation offences, with no automatic reduction in sentence simply because the offence is one of attempted possession rather than importation.
  • Prior convictions may permissibly be used to reduce leniency and to increase the weight given to deterrence and community protection within the bounds set by the objective seriousness of the offence, but may not be used to push a sentence beyond what the objective circumstances warrant.
  • Relying on statistical sentencing data drawn from a small sample, without information about drug weight or offender role, provides limited assistance when challenging sentence adequacy or severity on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes Act 1914 (Cth)
- Criminal Appeal Act 1912 (NSW)
- Criminal Code Act 1995 (Cth)
- Criminal Procedure Act 1986 (NSW)

Cases
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- Brink v R [2010] NSWCCA 217
- Chong v R [2011] NSWCCA 182
- Dang v R [2004] NSWCCA 265
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
- EJDG v R [2012] NSWCCA 251
- El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208
- Hay v R [2013] NSWCCA 22
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520; 204 A Crim R 434
- Kuti v R [2012] NSWCCA 43
- Lindsay v R [2012] NSWCCA 124
- Mirza v R [2007] NSWCCA 257
- Okeke v R [2005] NSWCCA 444
- Okeke v R [2010] NSWCCA 266
- Onuorah v R [2009] NSWCCA 238; 197 A Crim R 430
- R v Guo; R v Qian [2010] NSWCCA 170; 201 A Crim R 403
- R v Karan [2013] NSWCCA 53
- R v Mokoena [2009] QCA 36; 193 A Crim R 351
- R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106
- R v Paliwala 2005] NSWCCA 221; 153 A Crim R 451
- R v SC [2008] NSWCCA 29
- R v TYN [2009] NSWCCA 146; 195 A Crim R 345
- R v Tran; R v Tran; R v Nguyen [2013] NSWCCA 136
- R v Walker [2005] NSWCCA 109
- Van Der Baan v R [2012] NSWCCA 5
- Viera v R [2006] NSWCCA 401