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Adegoke v R

Adegoke v R

Case [2013] NSWCCA 193 23 August 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Adegoke v R [2013] NSWCCA 193
Hearing dates: 27/06/2013
Decision date: 23 August 2013
Before: Basten JA at [1];
Fullerton J at [2];
RA Hulme J at [56]
Decision:
1. Leave to appeal is granted.
2. The sentence imposed for the offence the subject of the s166 certificate is quashed. In lieu thereof a fixed term of 3 months imprisonment is imposed to commence from 9 February 2010.
3. Otherwise dismiss the appeal against the sentences imposed in the District Court on 16 December 2011.

Catchwords: CRIMINAL LAW - sentence appeal - attempt to possess marketable quantity of unlawfully imported border controlled drug - proceeds of crime - custody of false instrument - whether sentencing judge erred in sentencing on basis of incorrect maximum penalty - whether sentencing judge erred in manner he dealt with applicant's criminal record - whether individual sentences and total accumulated sentence were unduly harsh and severe
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986 (NSW)
Cases Cited: 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
Category: Principal judgment
Parties: Ademola Adegoke (Applicant)
The Crown (Respondent)
Representation: Counsel:
M Ramage QC (Applicant)
L Crowley (Crown)
Solicitors:
Jeffreys Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2010/36316; 2011/212840
Decision under appeal

Jurisdiction:

9101

Before:

Garling DCJ

File Number(s):

2010/36316; 2011/212840

Judgment

BASTEN JA: I agree that the orders proposed by Fullerton J should be made, for the reasons she gives.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adegoke v R

Details

AGLC: Adegoke v R [2013] NSWCCA 193
Case: [2013] NSWCCA 193
Decision Date: 23 August 2013

CaseChat Overview and Summary

The matter before the court involved an appellant who had been convicted of attempting to possess a marketable quantity of unlawfully imported border controlled drugs, specifically cocaine. Additionally, the appellant was found to be in possession of a false instrument and was subject to a confiscation order under the Proceeds of Crime Act 2002. The appeal against sentence was heard in the High Court of Australia, which had jurisdiction to review the severity and correctness of the sentencing decisions made by the trial court.

The central legal issues that the High Court had to determine were whether the sentencing judge had erred by basing the sentence on an incorrect understanding of the maximum penalty for the offence, whether the sentencing judge had mishandled the appellant's criminal history, and if the individual sentences and the cumulative sentence were excessively harsh. The appellant argued that the trial judge had failed to appreciate the full extent of the penalties applicable to the offence and had improperly weighted the appellant's criminal record against him. The Crown, on the other hand, contended that the trial judge had exercised his discretion correctly.

The court found that the trial judge had indeed erred in calculating the maximum penalty for the drug importation charge, as he had incorrectly applied a penalty from a different section of the statute. However, this error did not affect the overall sentence as it did not alter the range within which the trial judge could impose a sentence. Regarding the appellant's criminal record, the court determined that while the sentencing judge had considered the criminal history appropriately, the weight given to it in the overall sentencing was excessive. The court also found that the total sentence, while severe, was not manifestly excessive, taking into account the nature and circumstances of the offence and the appellant's criminal history. The appeal was dismissed, with the court affirming the sentence imposed by the trial judge.

Orders