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20
Court of Criminal Appeal 5 August 2015

Director of Public Prosecutions (Cth) v Gow

[2015] NSWCCA 208

Also reported as (2015) 252 A Crim R 573
Drugs
APPEAL FEDERAL OFFENCES DIRECTOR’S APPEAL AGAINST SENTENCE NON PAROLE PERIOD WITHIN APPROPRIATE RANGE SENTENCING

Citation: Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208
Court: Court of Criminal Appeal
Date: 05 August 2015
Judge(s): Basten JA at [1]; Garling J at [56] (dissenting); Hamill J at [71]

Background

The respondent was convicted after a jury trial of importing a commercial quantity of cocaine contrary to the Criminal Code 1995 (Cth). He had travelled from Canada to Australia solely to receive a consignment of just over 4 kg of cocaine (2.3 kg pure weight) concealed inside computer towers, and was arrested following a controlled delivery operation by the Australian Federal Police.

The District Court sentenced the respondent to eight years imprisonment with a non-parole period of five years. The sentencing judge found he was neither the organiser nor a mere minder, but a trusted recipient with some autonomy in the operation, motivated by financial gain. He offered no remorse, maintained his innocence on sentence, and obtained no benefit from a guilty plea.

The Commonwealth Director of Public Prosecutions appealed, arguing the sentence was manifestly inadequate given the objective seriousness of the offending, the maximum penalty of life imprisonment, the absence of significant mitigating factors, and the need for general deterrence.

Legal Issues

  • Whether the sentence of eight years with a five-year non-parole period was manifestly inadequate, justifying appellate intervention.
  • Whether the Director had demonstrated error in principle sufficient to engage the prosecution appeal power under s 5D(1) of the Criminal Appeal Act 1912 (NSW).
  • Whether state-law guilty plea discount practices (such as the 25% discount under the Crimes (Sentencing Procedure) Act 1999 (NSW)) apply when sentencing for federal offences.
  • Whether Cameron v The Queen limits the basis upon which a guilty plea may be taken into account in federal sentencing.
  • Whether residual discretionary factors militated against intervention even if the sentence were found inadequate.

Decision

Ground 1: Manifest inadequacy and appellate intervention

Basten JA (with Hamill J agreeing) held that the prosecution had not demonstrated the kind of error required to justify intervention. The power to intervene on a prosecution appeal is engaged only where error in principle, extraneous consideration, mistake of fact, or failure to consider a material matter is shown, or where the sentence is unreasonable or plainly unjust (at [3]). Prosecution appeals serve a different and more limited purpose than offender appeals: they exist to establish sentencing principle or avoid manifest inadequacy in standards, not merely to correct an outcome in a particular case (at [4]-[5]).

Basten JA found that the head sentence was lenient but not demonstrably below the available range, and that the non-parole period was within an appropriate range when measured against comparable cases (at [42]). The sentence sat at the low end of the permissible range, but that finding alone was insufficient to compel intervention (at [53]).

Ground 2: Inconsistency in the Director's approach

Even if the sentence had been thought inadequate, Basten JA identified a further discretionary reason to decline intervention. In a recent related prosecution appeal (R v Karan), the Director had accepted a starting point of seven years as a minimum for an offender whose involvement was not markedly less than the respondent's. That concession was inconsistent with the Director's position in the present case that an eight-year sentence was manifestly inadequate (at [47]-[51]). The Director's three attempts to distinguish Karan were not persuasive, and the inconsistency provided an independent basis for dismissing the appeal (at [51], [54]).

Ground 3: Guilty plea discounts and federal sentencing

Basten JA examined the common practice in comparative cases of applying a 25% discount for an early guilty plea, apparently following state law principles. He held that Cameron v The Queen is not authority for limiting the basis of a guilty plea discount in federal sentencing, as that case concerned a state offence applied as federal law and did not engage s 16A of the Crimes Act 1914 (Cth) (at [27]-[28]). All the considerations identified in Cameron (remorse, saving court expense, acceptance of responsibility, willingness to facilitate justice) remain available as reasons to reduce a sentence following a plea (at [28]). However, the locally prescribed practice of applying a fixed percentage discount is a "peculiarly local" principle that is not picked up and applied to federal sentencing, limiting the value of comparative cases where such discounts were applied (at [35]).

Dissent: Garling J

Garling J dissented and would have allowed the appeal. His Honour was persuaded that the sentence was manifestly inadequate, having regard to the seriousness of the planned importation, the respondent's autonomous role, the absence of mitigation, and the need for general deterrence (at [60]-[62]). Two decisions of this Court, Ng v R and Webber v R, were identified as offering a more reliable yardstick, suggesting a head sentence in the range of 14 to 15 years with a non-parole period of 7 to 10 years (at [65]-[66]). Garling J also rejected the engagement of the residual discretion to dismiss, characterising the Director's position in Karan as exceptional and not warranting the withholding of intervention here (at [70]).

Orders Made

  • The Director's appeal against sentence is dismissed.

Key Takeaways

  • A prosecution appeal against sentence under s 5D(1) of the Criminal Appeal Act 1912 (NSW) serves a narrower purpose than an offender's appeal: intervention is warranted to establish sentencing principle or avoid manifest inadequacy in standards, not simply because a different outcome might have been preferable (at [4]-[5]).

  • Where the Director's position on the appropriate starting point in a closely comparable recent appeal is inconsistent with the stance taken in a subsequent appeal, that inconsistency is a recognised discretionary reason to decline intervention, even if the sentence under challenge is otherwise lenient (at [47]-[51]).

  • Cameron v The Queen does not confine the basis for considering a guilty plea in federal sentencing to a willingness to facilitate justice alone: remorse, acceptance of responsibility, and saving the community the expense of trial remain relevant considerations under s 16A(2)(g) of the Crimes Act 1914 (Cth) (at [28], [35]).

  • Locally prescribed percentage discount practices for guilty pleas, such as the 25% discount framework applied under the Crimes (Sentencing Procedure) Act 1999 (NSW) and the principles in Thomson and Houlton, are not picked up and applied when sentencing for federal offences, reducing the comparative value of cases in which such discounts were applied (at [35]).

  • No error was established on the facts: a sentence sitting at the low end of the permissible range, without more, does not justify appellate intervention on a prosecution appeal (at [53]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16, 16A; Pt 1B
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Code 1995 (Cth), s 307.1
- Criminal Procedure Act 2009 (Vic), ss 289, 290
- Judiciary Act 1903 (Cth), ss 68, 79, 80

Cases
- Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; 244 CLR 638
- Cameron v The Queen [2002] HCA 6; 209 CLR 339
- CMB v The Queen [2015] HCA 9; 89 ALJR 407
- Director of Public Prosecutions (Cth) v Bui [2011] VSCA 61
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 243 FLR 28
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Green v The Queen [2011] HCA 49; 244 CLR 462
- Griffiths v The Queen (1977) 137 CLR 293
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- House v The King (1936) 55 CLR 499
- Johnson v The Queen [2004] HCA 15; 78 ALJR 616
- Lee v R [2012] NSWCCA 123
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Munda v State of Western Australia [2013] HCA 38; 249 CLR 600
- Ng v R (Cth) [2010] NSWCCA 232
- Peel v The Queen (1971) 125 CLR 447
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270
- R v Aaron Tran [2013] NSWCCA 136
- R v Agboti [2014] QCA 280
- R v Calis [2013] QCA 165
- R v Clarke [1996] 2 VR 520
- R v Considine [2013] NSWCCA 97
- R v Gallagher (1991) 23 NSWLR 220
- R v Holland [2011] NSWCCA 65; 205 A Crim R 429
- R v Karan [2013] NSWCCA 53
- R v Thathiah [2012] QCA 195
- R v Thomson, R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Siganto v The Queen [1998] HCA 74; 194 CLR 656
- Webber v R [2014] NSWCCA 111
- Wong v The Queen [2001] HCA 64; 207 CLR 584