Citation: Adegoke v R [2013] NSWCCA 193
Court: Court of Criminal Appeal, NSW
Date: 23 August 2013
Judges: Basten JA; Fullerton J; RA Hulme J
Background
The applicant pleaded guilty in the Local Court to three offences and was sentenced in the District Court in December 2011. The offences comprised: attempting to possess a marketable quantity of unlawfully imported cocaine (86.2 grams); dealing with the proceeds of crime totalling $387,241 through ninety international wire transfers conducted under false names; and having custody of a false NSW driver's licence.
The facts established that a package of cocaine sent from Brazil was consigned to a Sydney address, and the applicant was linked to it through a collection slip found at his residence, a connected SIM card, and related items seized during a search. The large volume of funds transferred overseas between June 2009 and February 2010 was accepted by plea to represent proceeds of his criminal activities.
The applicant had an extensive criminal record in both New South Wales and the United States, including prior convictions for possession of false instruments and obtaining money by deception, for which he had served terms of imprisonment.
Legal Issues
- Whether the sentencing judge erred by applying an incorrect maximum penalty of 25 years imprisonment (rather than the correct 20 years) when sentencing for the proceeds of crime offence
- Whether the sentencing judge erred in imposing the maximum available term of 12 months imprisonment for the false instrument offence (a Table 2 offence under the Criminal Procedure Act 1986 (NSW))
- Whether the sentencing judge erred in the manner in which he dealt with the applicant's prior criminal record
- Whether the individual sentences imposed were unduly harsh and severe
- Whether the total accumulated sentence of 10 years, with a non-parole period of 6 years, was unduly harsh and severe
Decision
Ground 1: Incorrect maximum penalty. The Court accepted that the sentencing judge applied an incorrect maximum penalty of 25 years for the proceeds of crime offence when the correct maximum was 20 years. This constituted a sentencing error enlivening the Court's jurisdiction to re-sentence. Despite the error, the Court found that the 5-year sentence imposed for that offence was not excessive when assessed against the correct 20-year maximum and the objective seriousness of the offending.
Ground 2: False instrument sentence. The Court found no error in the 12-month fixed term imposed for the false instrument offence. Although this was the maximum available for a Table 2 offence, it was open to the sentencing judge on the facts, and the sentence was served concurrently with the other terms.
Ground 3: Treatment of criminal record. The Court examined whether the sentencing judge had misused the prior criminal record by treating it as an aggravating feature in a manner that constituted double-counting or otherwise resulted in error. The Court found no appellable error in the approach taken. The prior record was relevant both to the applicant's character and to the proceeds of crime offence, given the accepted nexus between the earlier offending and the funds transferred.
Grounds 4 and 5: Individual and total sentences. The Court considered a range of comparable authorities involving cocaine importation and proceeds of crime offences. Having regard to the objective seriousness of the offending, the applicant's significant criminal antecedents, and the relevant mitigating factors (including a guilty plea and assistance to authorities in relation to a co-offender), the Court was not satisfied that the individual sentences or the total sentence of 10 years with a 6-year non-parole period were so disproportionate as to constitute error. The appeal on those grounds was dismissed.
Orders Made
No orders were made in this decision.
Key Takeaways
- An incorrect maximum penalty applied at first instance constitutes a sentencing error that enlivens the appellate court's jurisdiction to re-sentence, even where the sentence imposed may ultimately survive scrutiny against the correct maximum.
- Where an offence has been dealt with as a Table 2 matter under the Criminal Procedure Act 1986 (NSW), the effective maximum penalty available to the sentencing court is capped accordingly, regardless of the higher maximum in the principal legislation.
- A sentencing court's reference to a prior criminal record does not constitute error merely because earlier offending is also connected to the facts underlying a current charge; the record can be relevant both to character and to the nature of the offending.
- In dismissing grounds challenging the total accumulated sentence, the Court of Criminal Appeal assessed the result against a range of comparable drug importation and proceeds of crime cases, confirming that significant prior criminal history is a weighty consideration when evaluating overall proportionality.
- Under s 19AB(1)(b) of the Crimes Act 1914 (Cth), a single non-parole period is set across multiple Commonwealth offences, a structural feature that the Court applied when assessing the overall sentencing outcome here.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 307.6(1), 11.1(1), 400.4(1)
- Crimes Act 1900 (NSW), s 302
- Crimes Act 1914 (Cth), s 19AB
- Criminal Procedure Act 1986 (NSW), s 166 and Table 2
- Criminal Appeal Act 1912 (NSW)
Cases:
- Baxter v R [2007] NSWCCA 237
- 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
- EJDG v R [2012] NSWCCA 251
- El-Ghourani v R [2009] NSWCCA 140
- Hay v R [2013] NSWCCA 22
- Hili v R; Jones v R [2010] HCA 45
- Kuti v R [2012] NSWCCA 43
- Lindsay v R [2012] NSWCCA 124
- Mirza v R [2007] NSWCCA 257
- Okeke v R [2005] NSWCCA 444; [2010] NSWCCA 266
- Onuorah v R [2009] NSWCCA 238
- R v Guo; R v Qian [2010] NSWCCA 170
- R v Karan [2013] NSWCCA 53
- R v Mokoena [2009] QCA 36
- R v Nguyen; R v Pham [2010] NSWCCA 238
- R v Paliwala [2005] NSWCCA 221