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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: NSW Court of Criminal Appeal
Date: 5 August 2015
Judges: Basten JA at [1]; Garling J at [56]; Hamill J at [71]

Background

The respondent, a Canadian national, was convicted by jury of importing a commercial quantity of cocaine into Australia, contrary to s 307.1 of the Criminal Code 1995 (Cth). The importation involved just over 4 kg of cocaine (approximately 2.3 kg pure), concealed inside computer towers delivered to premises he occupied. He was found to have acted as a trusted consignee toward the lower, but not lowest, end of the organisational hierarchy.

On 12 December 2014, McClintock DCJ in the District Court sentenced the respondent to eight years imprisonment with a non-parole period of five years. The respondent had maintained his innocence on sentence, offered no expression of remorse, and had pleaded not guilty, meaning no guilty plea discount applied.

The Commonwealth Director of Public Prosecutions appealed under s 5D(1) of the Criminal Appeal Act 1912 (NSW), advancing a single ground: that the sentence was manifestly inadequate.

  • Whether the sentence of eight years imprisonment with a five-year non-parole period was manifestly inadequate for a federal drug importation offence, in the absence of any substantial mitigating factors.
  • What principles govern intervention by an appellate court on a prosecution appeal against sentence, and specifically whether error must be identified before the power to vary arises.
  • Whether state and territory laws or practices governing guilty plea discounts are picked up and applied to federal sentencing by the Judiciary Act 1903 (Cth), particularly ss 68, 69 or 70, in light of Cameron v The Queen [2002] HCA 6.
  • What weight, if any, should be given to a comparative exercise using sentences imposed in similar cases when assessing manifest inadequacy.

Decision

The Court of Criminal Appeal dismissed the appeal, refusing to increase the sentence. Basten JA (with whom Garling and Hamill JJ wrote separately) held that the Director had not established the precondition for appellate intervention: identifiable error. The head sentence of eight years was at the lenient end of the available range but could not be characterised as outside that range, and the non-parole period of five years fell within the appropriate range.

On the principles governing prosecution appeals, Basten JA reaffirmed that intervention requires demonstration of error, whether by acting on a wrong principle, misapplying facts, or a result so unreasonable as to permit an inference that the sentencing discretion miscarried. The public purpose of a prosecution appeal is a limiting one: such appeals are concerned with laying down principles for the guidance of sentencing courts, not merely correcting an outcome the Director considers too lenient. The Court also noted a discretionary consideration weighing against intervention: the Director had taken an inconsistent approach to comparable sentences in analogous cases, which undermined the force of the submission.

On the guilty plea discount question, the Court examined whether state provisions such as s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which confer a sentencing discount for a guilty plea, apply to federal offenders sentenced in NSW courts. The Court noted that Cameron v The Queen and the subsequent decision in Bui v Director of Public Prosecutions (Cth) [2012] HCA 1 established that the sentencing of federal offenders is primarily governed by Pt 1B of the Crimes Act 1914 (Cth) and s 16A in particular. While state laws may be picked up where they are consistent with federal law, the existing framework under s 16A(2)(g) already requires courts to take guilty plea into account as a mitigating factor, making separate pick-up of state discount provisions of uncertain necessity or application.

On the utility of comparing sentences across similar cases, the Court acknowledged that such comparisons can assist in identifying the applicable range, but cautioned that the exercise has real limitations. Differences in facts, pleas, and mitigation mean that prior sentences provide guidance rather than fixed benchmarks, and a comparative exercise alone cannot establish manifest inadequacy.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A prosecution appeal against sentence under s 5D(1) of the Criminal Appeal Act 1912 (NSW) requires identification of error as a precondition to appellate intervention; manifest inadequacy, without more, does not automatically authorise the Court to substitute a higher sentence.
  • The Court of Criminal Appeal confirmed that prosecution appeals serve a "limiting purpose," directed at establishing principle or correcting manifest inadequacy in sentencing standards, rather than providing a general review mechanism for sentences the Director regards as too low.
  • Where the Director has taken an inconsistent approach to comparable sentences in analogous cases, that inconsistency operates as a discretionary factor against intervention, even if the challenged sentence might otherwise be considered lenient.
  • Under federal sentencing law, the Crimes Act 1914 (Cth) s 16A(2)(g) already requires a sentencing court to treat a guilty plea as a mitigating factor; the extent to which state statutory guilty plea discount regimes are separately picked up for federal offenders by the Judiciary Act 1903 (Cth) remains a live and unresolved question.
  • Comparative sentencing exercises involving decisions from other courts or jurisdictions provide useful guidance on the general range, but factual differences between cases mean they cannot, standing alone, establish that a particular sentence is manifestly inadequate.

Legislation and Cases Referenced

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

Cases:
- House v The King (1936) 55 CLR 499
- Cameron v The Queen [2002] HCA 6; 209 CLR 339
- Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; 244 CLR 638
- Green v The Queen [2011] HCA 49; 244 CLR 462
- CMB v The Queen [2015] HCA 9; 89 ALJR 407
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Munda v State of Western Australia [2013] HCA 38; 249 CLR 600
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Johnson v The Queen [2004] HCA 15; 78 ALJR 616
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Director of Public Prosecutions (Cth) v Bui [2011] VSCA 61
- Griffiths v The Queen (1977) 137 CLR 293
- Ng v R (Cth) [2010] NSWCCA 232
- Lee v R [2012] NSWCCA 123
- R v Aaron Tran [2013] NSWCCA 136
- R v Agboti [2014] QCA 280
- R v Calis [2013] QCA 165
- Peel v The Queen (1971) 125 CLR 447