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Court of Criminal Appeal 23 September 2024

Govender v R

[2024] NSWCCA 179

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS OLD AGE AND POOR HEALTH OF OFFENDER OFFENDERS

Citation: Govender v R [2024] NSWCCA 179
Court: NSW Court of Criminal Appeal
Date: 23 September 2024
Judges: Fagan J, N Adams J, Faulkner J

Background

The appellant was a South African man who was 75 years old at the time of the offending and 79 years old by the time of sentencing. A jury found him guilty of attempting to possess a commercial quantity of unlawfully imported border-controlled drugs, specifically 198.3 kg of pure cocaine and 80.1 kg of pure methamphetamine, concealed inside industrial mining machinery shipped from South Africa to Australia. The wholesale value of the shipment was estimated at approximately $66 million, with a street value of around $188 million.

The appellant had been involved in the scheme from at least September 2016, attending a meeting in Melbourne where participants discussed avoiding detection by customs. He was sentenced in the District Court in November 2020 to 20 years' imprisonment commencing February 2017, with a non-parole period of 11 years (55% of the head sentence), reflecting the sentencing judge's assessment of his age and deteriorating health.

The appeal was filed in July 2024, more than three and a half years after sentencing. Legal Aid NSW had declined to fund the appeal on merit, and the appellant's family raised private funds to pursue it. The sole ground of appeal was that the sentence was manifestly excessive.

  • Whether the Court should grant an extension of time to bring the appeal, given the delay of over three and a half years
  • Whether the 20-year head sentence with an 11-year non-parole period was manifestly excessive, having regard to:
  • The appellant's advanced age and serious health conditions
  • Whether the sentencing judge erred by giving personal deterrence undue prominence alongside a finding that the appellant was unlikely to reoffend
  • Whether sufficient weight was given to the onerous conditions of custody experienced by an elderly, unwell offender
  • Whether the sentence was appropriately calibrated against those imposed on co-offenders (the parity principle)

Decision

The Court of Criminal Appeal extended time to bring the appeal, granted leave, and then dismissed it. N Adams J (with whom Fagan J and Faulkner J agreed) found that the appellant had not established that the sentence was unreasonable or plainly unjust, though the Court considered it appropriate to extend time given the length of the sentence being served by an elderly man.

On the question of personal deterrence, the Court rejected the submission that the sentencing judge had impermissibly elevated it to a "prominent" role. The sentencing judge was required to apply the mandatory considerations under s 16A(2) of the Crimes Act 1914 (Cth) through a process of instinctive synthesis, balancing all relevant factors. The Court found no error in that approach.

The Court also rejected the argument that insufficient weight had been given to the hardship of custody. The sentencing judge had specifically raised with the parties whether the difficulties the appellant faced in custody should be reflected in a shorter non-parole period, and the parties concurred with that course. The resulting non-parole period of 55% of the head sentence was a concrete accommodation of those circumstances.

On parity, the Court found no failure to apply the principle of individualised justice. Quoting Spigelman CJ in R v Whyte, the Court affirmed that sentencing requires a balancing of incommensurable factors and is not a mathematical exercise. The prospect of the appellant dying in custody, while unfortunate, was a consequence of his participation in very serious criminality late in life and his continuing refusal to accept responsibility.

Orders Made

  • The time for bringing this appeal is extended under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)
  • Leave to appeal is granted
  • The appeal is dismissed

Key Takeaways

  • A non-parole period set at 55% of the head sentence can constitute a legitimate and sufficient mechanism for accommodating an elderly and seriously ill offender's circumstances, without the head sentence itself being reduced.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the prospect of dying in custody does not, of itself, render a sentence manifestly excessive where the offending is of exceptional gravity and the offender has not accepted responsibility.
  • A sentencing judge does not err by considering personal deterrence as one factor among many, even where the offender is assessed as unlikely to reoffend. The requirement is that no single factor be given unwarranted dominance, not that deterrence be excluded.
  • Under the parity principle, sentencing must remain individualised and account for all circumstances particular to the offender. Differences between co-offenders' sentences do not automatically give rise to a justifiable sense of grievance where those differences reflect genuine distinctions in individual circumstances.
  • Significant delay in filing a notice of appeal does not preclude an extension of time where the delay is adequately explained, though the Crown's opposition can mean the extension is contingent on the court finding at least some merit in the proposed appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16A(2)
- Criminal Code Act 1995 (Cth), ss 11.1(1), 307.5(1), 311.1(1)(g)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases
- Holyoak v R (1995) ACrimR 502
- Liu v R [2023] NSWCCA 30
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343