DPP (Cth) v De La Rosa - [2010] NSWCCA 194

No judgment structure available for this case.

Reported Decision: 243 FLR 28205 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19 May 2010; 19 August 2010

JUDGMENT DATE:
17 September 2010

JUDGMENT OF: Allsop P at 1; Basten JA at 72; McClellan CJatCL at 148; Simpson J at 272; Barr AJ at 312

DECISION: Appeal dismissed.

CATCHWORDS: APPEAL – criminal – prosecution appeal – procedure – Court undertaking its own research and investigation – further hearing accorded - CONSTITUTIONAL LAW – inconsistency of State and Federal laws – whether s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) inconsistent with s 16A of the Crimes Act 1914 (Cth) – Constitution, s 109 - CRIMINAL LAW – prosecution appeal – sentencing – whether manifestly inadequate – importation of marketable quantity of cocaine – comparison of sentences for like offences in other courts - FEDERAL JURISDICTION – prosecution appeal – sentencing – double jeopardy – application of Crimes (Appeal and Review) Act 2001, s 68A – whether s 68A inconsistent with Crimes Act 1914 (Cth), s 16A(2)(m) for the purposes of the Constitution, s 109 – whether s 68A picked up by Judiciary Act 1903 (Cth), ss 68, 79 and 80

LEGISLATION CITED: Australian Constitution
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes Act 1914 (Cth)
Crimes Legislation Amendment Act (No 2) 1990 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code Act 1995 (Cth)
Customs Act 1991 (Cth)
Judiciary Act 1903 (Cth)
Mental Health (Criminal Procedure) Act 1990 (NSW)

CATEGORY: Principal judgment

CASES CITED: Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251
Ah Yick v Lehmert [1905] HCA 22; 2 CLR 593
Austral Pacific Group Ltd (In liq) v Airservices Australia [2000] HCA 39; 203 CLR 136
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485
Barany v R [2000] WASCA 240; (2000) 114 A Crim R 426
Berlitone v R [2009] WASCA 149; (2009) 231 FLR 383
Bibaoui [1997] 2 VR 600
Blay v R [2006] WASCA 248; (2006) 205 FLR 414
British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; 217 CLR 30
Butler v Attorney-General of Victoria [1961] HCA 32; 106 CLR 268
Cao v R [2009] NSWCCA 273
Cheatle v The Queen [1993] HCA 44; 177 CLR 541
Commissioner of Stamp Duties (NSW) v Owens [No 2] [1953] HCA 62; 88 CLR 168
Commonwealth v Hospital Contribution Fund [1982] HCA 13; 150 CLR 49
Courtney v R [2007] NSWCCA 195
Danial v R [2008] NSWCCA 15
Davidson v R [2009] NSWCCA 150
De Bonde v R [2002] WASCA 251
De Campos v R [2006] NSWCCA 51
De La Espriella-Velasco v R [2006] WASCA 31; (2006) 31 WAR 291
Diefenbach v R [1999] WASCA 4; (1999) 108 A Crim R 19
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60
Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370; 51 A Crim R 123
El-Ghourani v R [2009] NSWCCA 140
Everett v The Queen [1994] HCA 49; 181 CLR 295
Forsyth v The Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531
Gett v Tabet [2009] NSWCA 76; 254 ALR 504
Griffiths v The Queen [1977] HCA 44; 137 CLR 293
Harris v R [2004] WASCA 292; (2004) 150 A Crim R 509
Heryadi v R (1998) 19 WAR 383; (1998) 98 A Crim R 578
House v The King [1936] HCA 40; 55 CLR 499
John Robertson & Co Ltd (In liq) v Ferguson Transformers Pty Ltd [1973] HCA 21; 129 CLR 65
Johnson v The Queen [2004] HCA 15; 78 ALJR 616
Kelly v Saadat-Talab [2008] NSWCA 213; 72 NSWLR 305
Kwong v R (1997) 97 A Crim R 283
Lam v R [2009] VSCA 148
Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333
Law v R [2006] NSWCCA 100
Le v R [2006] NSWCCA 136
Lodhi v R [2007] NSWCCA 360; 179 A Crim R 470 at 489
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Malvaso v The Queen [1989] HCA 58; 168 CLR 227
Mazzitelli v R [2002] NSWCCA 436; (2002) 135 A Crim R 132
Medina v The Queen (1990) 108 FLR 288
Milich v R [2008] NSWCCA 148
Miller v R [1999] WASCA 66
Minister for the Army v Parbury Henty & Co Pty Ltd [1945] HCA 52; 70 CLR 459
Mirza v R [2007] NSWCCA 257
Mohlasedi v R [2006] WASCA 267
Monahan v McLeod [2004] QDC 10
Navasardian v R; Petrosyan v R [2009] NSWCCA 108
Nguyen v R [2009] NSWCCA 273
Northern Territory v GPAO [1999] HCA 8; 196 CLR 553
NP v R [2008] NSWCCA 205
P v R [2003] WASCA 180
Parry v R [2003] WASCA 222
Pedersen v Young [1964] HCA 28; 110 CLR 162
Peel v The Queen [1971] HCA 59, 125 CLR 447
Phan v R [2009] NSWCCA 273
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; (1997) 98 A Crim R 134
Putland v The Queen [2004] HCA 8; 218 CLR 174
R v Acosta [1999] NSWCCA 334
R v B [2004] WASCA 1
R v Baldock [2010] WASCA 170
R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1
R v Bartlett [2005] NSWCCA 103
R v Bateman [2000] NSWSC 915
R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430
R v Bimahendali (1999) 109 A Crim R 355
R v Carroll [2010] NSWCCA 55
R v Carstein [2007] QCA 209; (2007) 174 A Crim R 491
R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458
R v Chandler [2010] QCA 21
R v Chea and Ors [2008] NSWCCA 78
R v Chong [2009] NSWDC 377
R v Diez [2003] NSWCCA 329; (2003) 181 FLR 1
R v Do [2005] NSWCCA 258
R v Egbue (Unreported, District Court of NSW, 22 September 2003)
R v Engert (1995) 84 A Crim R 67
R v Fahda [1999] NSWCCA 267
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Fry [2003] NSWCCA 329; (2003) 181 FLR 1
R v Geerlings [2007] QCA 209; (2007) 174 A Crim R 491
R v Harb [2001] NSWCCA 249
R v Hayes (1987) 29 A Crim R 452
R v Hemsley [2004] NSWCCA 228
R v Henry [2007] NSWCCA 90
R v Hoang [2006] NSWDC 185
R v Hovorka (Unreported, District Court of NSW, 17 December 2007)
R v Huynh (2008) 180 A Crim R 517
R v Israil [2002] NSWCCA 255
R v Jackson (1998) 72 SASR 490
R v Jain [2004] VSCA 20
R v Jiminez [1999] WASCA 7
R v Jimson [2009] QCA 183
R v JW [2010] NSWCCA 49
R v Kaldor [2004] NSWCCA 425
R v Kevenaar & Ors [2004] NSWCCA 210
R v Klein [2001] NSWCCA 120; (2001) 121 A Crim R 90
R v Krasnov & Shlakht (1995) 125 FLR 120
R v Labanon [2006] QCA 529
R v Lake [2007] QCA 209; (2007) 174 A Crim R 491
R v Laurentiu (1992) 63 A Crim R 402
R v Lawrence (2005) NSWCCA 91
R v Le (Unreported, Victorian Court of Appeal, 19 February 2010)
R v Lee [2007] NSWCCA 234
R v Liu [2005] NSWCCA 378
R v Mascaro-Varillas [2002] NSWCCA 524
R v Mattheyer (Unreported, District Court of NSW, 18 April 2008)
R v Mirzaee [2004] NSWCCA 315
R v Mohammadi [2006] QCA 530; (2006) 175 A Crim R 384
R v Mokoena [2009] QCA 36; [2009] 2 Qd 351; (2009) 193 A Crim R 351
R v Muanchukingkan (1990) 52 A Crim R 354
R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493
R v Ngui and Tiong [2000] VSCA 78; (2000) 1 VR 579; (2000) 111 A Crim R 593
R v Nhu Mai Huynh Nguyen [2006] NSWCCA 369; (2006) 205 FLR 79
R v Nhu Thi Hong Ho; R v Thanh Nhu Ho [2007] NSWDC 27
R v Nikolovska [2009] NSWDC 291
R v Ntsi (Unreported, District Court of NSW, 27 August 2004)
R v Okafor [2007] NSWCCA 147
R v Okeke [2005] NSWCCA 444
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v ONA [2009] VSCA 146
R v Ong [2007] VSCA 206; (2007) 176 A Crim R 366
R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525
R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451
R v Pearson [2004] NSWCCA 129
R v Perrier [1991] 1 VR 717; (1990) 59 A Crim R 164
R v PHA [2004] NSWCCA 445
R v Pham [2005] NSWCCA 314
R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26
R v Riddell [2009] NSWCCA 96
R v Roberti [2003] NSWCCA 329; (2003) 181 FLR 1
R v Robillard [2007] NSWDC 115
R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 10
R v Salcedo [2004] NSWCCA 430
R v Salles (Unreported, Queensland Court of Appeal, 20 May 1997)
R v Saputra [2009] NSWDC 239
R v SC [2008] NSWCCA 29
R v Schmakowski [2001] NSWCCA 395
R v Scott [2003] NSWCCA 28
R v Skura [2004] VSCA 53
R v Springer (2007) 177 A Crim R 13
R v Springer [2009] NSWCCA 144
R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531
R v Studenikin [2004] NSWCCA 164
R v Suarez-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577
R v Talbot [2009] TASSC 107
R v Tee (1994) 61 SASR 501; (1994) 71 A Crim R 181
R v Thinh Tang (Unreported, Supreme Court of Victoria (Court of Appeal) 2 October 1997)
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v To [2007] NSWCCA 200; (2007) 172 A Crim R 121
R v Todoroski [2010] NSWCCA 75
R v Toure [2008] NSWDC 335
R v Tran [2007] QCA 221; 172 A Crim R 436
R v Trang (Unreported, District Court of NSW, 16 February 2007)
R v Tsay [2006] QCA 423
R v Tsiarias [1996] 1 VR 398
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
R v Vo; R v Tun Thanh Tran [2006] NSWCCA 165
R v W [2002] NSWCCA 192; (2002) 129 A Crim R 400
R v Wangsaimas [1997] HCA 51; (1997) 190 CLR 378
R v Wong [1999] NSWCCA 420, 48 NSWLR 340
R v Wright (1997) 93 A Crim R 48
R v Wright [2003] WASCA 56; (2003) 138 A Crim R 390
Radebe v R [2001] WASCA 254; (2001) 162 FLR 313; (2001) 122 A Crim R 559
Rohde v Director of Public Prosecutions [1986] HCA 50, 161 CLR 119
Saint-Gobain Abrasives Pty Ltd v McPherson [2009] NSWCA 214
Seng v R [2007] NSWCCA 335
Sevilla v R [2007] WASCA 116
Soewandi v R [2002] WASCA 315
Solomons v District Court of New South Wales [2002] HCA 47; 211 CLR 119
Speer v R [2004] NSWCCA 118; [2005] NSWCCA 333
Tan v R [2009] VSCA 148; (2009) 22 VR 706
Tanadi v R [1999] WASCA 188
Tansakun v R [1997] HCA 51; (1997) 190 CLR 378
Taylor v R [2007] WASCA 146; (2007) 172 A Crim R 430
Teng v R [2009] VSCA 148; (2009) 22 VR 706
The Queen v Credit Tribunal; Ex parte General Motors Acceptance Corporation (“GMAC case”) [1977] HCA 34; 137 CLR 545
The Queen v Kiltie (1986) 41 SASR 52
The Queen v LK; The Queen v RK [2010] HCA 17
Thom v R [2001] WASCA 322; (2001) 126 A Crim R 196
Tiong [2000] VSCA 78; 2 (2000) 1 VR 579
Tsen v R [2010] WASCA 21
Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458
Tyn v R [2009] NSWCCA 146
Vanit v R [1997] HCA 51; (1997) 190 CLR 378
Vasquez-Felipe v R [2006] NSWCCA 411
Victoria v Commonwealth [1937] HCA 82; 58 CLR 618
Viera v R; Teehan v R [2006] NSWCCA 401
Weininger v R (2003) 212 CLR 629
White v R [2006] NSWCCA 340
Whittaker v The King [1928] HCA 28; 41 CLR 230
Williams v The King [No 2] [1934] HCA 19; 50 CLR 551
Wilson v Alexander [2003] FCAFC 272; 135 FCR 273
Wong v R [2009] VSCA 148
Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
X v R [2000] WASCA 355

TEXTS CITED: Australian Law Reform Commission Report No 103, Same Crime, Same Time – Sentencing of Federal Offenders
Australian Law Reform Commission Report No 44, Sentencing

PARTIES: Director of Public Prosecutions (Cth) (Appellant)
Jose Miguel Garcia De La Rosa (Respondent)

FILE NUMBER(S): CCA 2009/1196

COUNSEL: W J Abraham QC/L Crowley (Appellant)
P Strickland SC/D O'Neil (Respondent)

SOLICITORS: Commonwealth Director of Public Prosecutions (Appellant)
Legal Aid Commission of NSW (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/11/0045

LOWER COURT JUDICIAL OFFICER: Zahra DCJ

LOWER COURT DATE OF DECISION: 18 June 2009

2009/1196

ALLSOP P
BASTEN JA
McCLELLAN CJ at CL
SIMPSON J
BARR AJ
17 September 2010

Director of Public Prosecutions (Cth) v Jose Miguel Garcia De La Rosa

HEADNOTE

The respondent pleaded guilty to the importation of the border controlled drug cocaine, in a marketable quantity (1870 grams), contrary to s 307.2(1) of the Criminal Code 1995 (Cth). On 16 November 2008, Zahra DCJ sentenced the respondent to imprisonment for eight years, with a non-parole period of five years. The Commonwealth Director of Public Prosecutions appealed against the sentenced imposed on the basis of manifest inadequacy.

Section 68(2) of the Judiciary Act 1903 (Cth) confers appellate jurisdiction on this Court in respect of Commonwealth offences, applying s 5D of the Criminal Appeal Act 1912 (NSW). Section 16A of the Crimes Act 1914 (Cth) identifies matters which, if known and relevant, must be taken into account when determining a sentence; sub-section 16A(2)(m) encompasses the “mental condition of the person”.

Section 68A of the Crimes (Appeal and Review) Act 2001 (NSW) precludes a court dismissing a prosecution appeal against sentence, or imposing a less severe sentence than it would otherwise consider appropriate, because of any element of double jeopardy involved in the respondent being sentenced again. “Double jeopardy” refers to the distress and anxiety to which a respondent is presumed to be subject by reason of being exposed to the risk of a more severe sentence: Rv JW [2010] NSWCCA 49."

The issues for determination on appeal were:

(i) Whether s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) was inconsistent with s 16A of the Crimes Act 1914 (Cth), for the purposes of s 109 of the Constitution.

(ii) Whether s 16A of the Crimes Act 1914 (Cth) was a Commonwealth law which provided otherwise, so that s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) was not picked up by s 68 (or ss 79 and 80) of the Judiciary Act 1903 (Cth).

(iii) Whether the sentence imposed was manifestly inadequate.

The Court held, dismissing the appeal:

(per curiam)

1. There is no inconsistency between s 16A of the Crimes Act 1914 (Cth) and s 68A of the Crimes (Appeal and Review) Act 2001 (NSW), for the purposes of s 109 of the Constitution, since s 68A is not to be construed as operating of its own force, to sentencing for criminal offences created by Commonwealth law: [28]-[56], [79], [162], [273], [314].

R v Todoroski

R v Baldock

Northern Territory v GPAO

Agtrack (NT) Pty Ltd v Hatfield

Commonwealth v Hospital Contribution Fund

John Robertson & Co Ltd (In liq) v Ferguson Transformers Pty Ltd

R v Talbot

(per McClellan CJ at CL, Simpson J and Barr AJ agreeing):

2. Section 68A of the Crimes (Appeal and Review) Act 2001 (NSW) precludes reliance by this Court upon the presumption that the respondent is suffering anxiety and distress. It has not removed from consideration any actual anxiety or distress occasioned by the fact that the respondent may be re-sentenced. Section 16A(2) of the Crimes Act 1914 (Cth) requires that the catalogue of matters identified in the subsection be taken into account when relevant and “known to the court” in reference to actual, rather than presumed, anxiety and distress. It follows that s 68A is not in conflict with s 16A(2)(m) so as to prevent any of ss 68, 79 and 80 of the Judiciary Act 1903 (Cth) picking up s 68A and applying it to a Commonwealth offence: [162]-[180], [274]-[282], [315].

DPP (Cth) v El Karhani

R v JW

R v Thinh Tang

R v Scott

R v Hayes

R v JW

R v Engert

R v Tsiarias

R v Fahda

Lauritsen v R

R v Harb

R v Israil

R v Hemsley

R v Verdins

Courtney v R

R v Henry

Miller v R

R v Jiminez

R v Pearson

R v Wright

R v Lawrence

R v Skura

R v Verdins

Monahan v McLeod

(per Allsop P, dissenting)

3. To permit s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) to operate would be contrary to, and impliedly repeal, in part, s 16A(2)(m) of the Crimes Act 1914 (Cth), removing from the Court's consideration a part of the person's mental condition, even if it only be presumed by the common law to exist. Section 68A is not picked up in, and for the purposes of, the sentencing task here to be undertaken by the appeal court. That task is not limited to the ascertainment of sentence, but extends to the ascertaining of the correct order on the appeal: [37]-[54].

R v JW

Kelly v Saadat-Talab

Northern Territory v GPAO

Austral Pacific Group Pty (in liq) v Airservices Australia

Putland v The Queen

Johnson v The Queen

Butler v Attorney-General of Victoria

Lodhi v R

DPP (Cth) v El Karhani

The Queen v Kiltie

R v Talbot

(per Basten JA dissenting)

4. Section 68A of the Crimes (Appeal and Review) Act 2001 (NSW) removed from sentencing consideration the additional distress and anxiety caused by the possibility of a harsher sentence on appeal. This kind of anxiety and distress falls within the scope of s 16A(2)(m) of the Crimes Act 1914 (Cth). As the original specification of factors in s 16A(2) pre-dated similar provisions in State and Territory laws, the purpose and effects of s 16A could be impaired by the application of State and Territory laws to different effect. The opening words of sub-s 16A(2) incorporate a mandatory requirement to consider such additional matters as are known and relevant in accordance with general law principles, even though they are not listed: [100]-[107].

R v JW

5. Although sub-s 16A(1) of the Crimes Act 1914 (Cth) refers to a sentence appropriate in all the circumstances of “the offence”, that language cannot be intended to exclude the personal circumstances of the offender or there would be an inconsistency between that which each subsection mandates. To the extent that sub-s 16A(2) is comprehensive, it does not permit qualification or restriction by State law. An approach which permitted such qualifications or restrictions where, on a semantic analysis, it was not clear that s 16A had expressly covered a particular consideration, would be so inimical to the proper administration of criminal justice that it is not an approach which should be adopted where a reasonable alternative is available: [108]-[110].

(per curiam)

6. On the facts and bearing in mind the applicable maximum sentence, the sentence did not fall outside the sentencing judge's proper range of discretion: [66]-[69], [134]-[175], [254]-[271], [291]-[311], [313].

Dinsdale v The Queen

R v Schmakowski

Lowndes v The Queen

Everett v The Queen

Heryadi v R

R v Acosta

Tanadi v R

X v R

R v Ngui and Tiong

Radebe v R

Thom v R

P v R

Parry v R

R v Mirzaee

R v Paliwala

R v Do

R v Pham

R v Vo; R v Tun Thanh Tran

Anna Le v R

Viera v R; Teehan v R

De Campos v R

Mirza v R

R v Mokoena

Tyn v R

Tsen v R

R v Laurentiu

R v Bimahendali

R v Ferrer-Esis

R v Thomson; R v Houlton

R v Liu

R v Stanbouli

R v Bezan

R v Muanchukingkan

R v Klein

R v Robillard

R v Hovorka

R v Mattheyer

R v Toure

R v Saputra

(per Allsop P and Basten JA):

7. The argument as put came close to requiring the quantity of the drug to dictate the seriousness of the offence and thus the sentence. Such an approach would be wrong. It is a factor, but it does not govern the sentence and the range into which it must fall: [68], [135].

Wong v The Queen

(per Basten JA)

8. When this Court is asked by the Commonwealth Director to intervene to increase a sentence imposed on a federal offender, such intervention cannot be justified purely on the basis of reference to other decisions within this jurisdiction. More than principles of comity require that the Court must be satisfied of manifest inadequacy, having regard to comparable sentenced from other parts of the country, if available: [126].

R v Chandler

R v Ruha, Ruha & Harris; ex parte Cth DPP

9. The case originally presented by the Director was deficient and failed to establish manifest inadequacy of the sentence imposed on the respondent. The appeal should have been dismissed on that basis. The Court should not undertake its own research in order to satisfy itself as to the range of sentences applied nationally in respect of the offence for which the respondent was convicted: [73]-[78], [129].

House v The King

Dinsdale v The Queen

(per Simpson J)

10. The task of this Court is to examine the sentence imposed, and, in the case of a Crown appeal, to determine whether it is manifestly inadequate, or in the case of a severity appeal, to determine whether it is manifestly excessive. In undertaking that task, the Court assumes a responsibility not only to the parties, but to the community as a whole. In doing so, the Court may well be assisted by examination of previous decisions, sometimes additional to those cited by the parties. Occasionally, the Court does not receive an adequate level of assistance. In those circumstances, in order to discharge its function, it may be necessary that the Court undertake its own research and investigation: [283]-[290].

IN THE COURT OF

2009/1196

ALLSOP P
BASTEN JA
McCLELLAN CJ at CL
SIMPSON J
BARR AJ
17 September 2010

Director of Public Prosecutions (Cth) v Jose Miguel Garcia De La Rosa

Judgment

1 ALLSOP P: This is a Crown appeal by the Commonwealth Director of Public Prosecutions against the sentence imposed by a Judge of the District Court of New South Wales (Zahra DCJ) upon the respondent in respect of his conviction upon a plea of guilty for the importation on 16 November 2008 of a border control drug, namely cocaine, in a marketable quantity (1,870 grams) contrary to s 307.2(1) of the Criminal Code (Cth). The respondent was sentenced to imprisonment for eight years from 16 November 2008 to expire on 15 November 2016, with a non-parole period of five years expiring on 15 November 2013.

Whether s 68A of the

Crimes (Appeal and Review) Act 2001

(NSW) applies

2 It is necessary first to deal with the question whether s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) (the “Crimes (A and R) Act”) is constitutionally valid and, if so, whether it is “picked up” by the operation of any one or more of ss 68, 79 and 80 of the Judiciary Act 1903 (Cth).

3 Although, of course, a Constitutional issue should only be dealt with if necessary to do so, these issues are appropriate to deal with first (and notwithstanding my views otherwise on the appeal) for two reasons. First, for the reasons discussed below the issue to be decided is not a Constitutional issue. It is one as to the operation of the Judiciary Act. Secondly, a five judge bench was assembled to deal with the issue. A number of Commonwealth Crown appeals await the result and the business of the Court will be expedited by a decision on the question.

4 Notices under the Judiciary Act, s 78B adequately describing the Constitutional arguments propounded were despatched to the Attorneys-General of the Commonwealth, States and Territories in adequate time before the appeal.

5 The various arguments were as follows:

1. Section 68A was inconsistent with the Crimes Act 1914 (Cth), s 16A and therefore invalid in respect of Commonwealth offences by reason of the Australian Constitution , s 109.

2. Section 68A was inconsistent with the integrity of the Court of Criminal Appeal and its capacity to function as a court under the Australian Constitution , Ch III.

Judiciary Act

6 Section 68A of the Crimes (A and R) Act is in the following terms:

(a) dismiss a prosecution appeal against sentence, or

(b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate,

Criminal Appeal Act 1912

The statutory context

7 Various provisions of the Judiciary Act are relevant. Section 68(2) of the Judiciary Act confers jurisdiction on State and Territory courts in criminal matters, including appeals under Commonwealth law, as follows:

(a) the summary conviction; or

(b) the examination and commitment for trial on indictment; or

of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.”

8 Section 68(2) operates here to apply the Criminal Appeal Act 1912 (NSW), s 5D so as to give this Court jurisdiction to hear Crown appeals in relation to Commonwealth offences and convictions: Peel v The Queen [1971] HCA 59; 125 CLR 447; Rohde v DPP [1986] HCA 50; 161 CLR 119; and see generally The Queen v LK; The Queen v RK [2010] HCA 17 at [18]-[20].

9 The law to apply in the exercise of such jurisdiction is provided for, relevantly here, by the Judiciary Act, ss 68(1), 79 and 80.

10 Section 68(1) of the Judiciary Act provides for laws of a State or Territory to apply to trials and appeals of Commonwealth offences and provide for the application of certain State and Territory laws in Commonwealth criminal jurisdiction:

(a) their summary conviction; and

(b) their examination and commitment for trial on indictment; and

(c) their trial and conviction on indictment; and

(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;

and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.”

11 Two aspects of s 68(1) should be noted immediately for presently relevant circumstances:

(a) the provision deals with laws respecting the procedure for the hearing and determination of appeals; and

12 The picking up of State and Territory law by s 68(1) by reference to procedure might perhaps be seen as narrower than the terms of s 79 of the Judiciary Act, dealing with applicable law in the exercise of federal jurisdiction, which is, relevantly, as follows:

“79 (1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”

13 It is clear that s 79 operates beyond practice and procedure and picks up substantive law: Commissioner of Stamp Duties (NSW) v Owens (No 2) [1953] HCA 62; 88 CLR 168 at 170; Austral Pacific Group Ltd (In liq) v Airservices Australia [2000] HCA 39; 203 CLR 136; British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; 217 CLR 30 at 59 [65]; and Wilson v Alexander [2003] FCAFC 272; 135 FCR 273 at 279 [19].

14 The word “procedure” in the chapeau to s 68(1) and in s 68(1)(c) (“the procedure for … their trial and conviction on indictment”) has been held to include powers conferred under sentencing laws: Putland v The Queen [2004] HCA 8; 218 CLR 174 at 188 [34] (per Gummow J and Heydon J, with whom Callinan J agreed at 215 [121]). It can be accepted that the meaning of procedure in its context in s 68(1)(d) (“[the procedure for …] the hearing and determination of appeals …”) would be the same.

15 In R v ONA [2009] VSCA 146, Neave JA raised the question (at [112]-[113]) whether these views in Putland applied only to State provisions dealing with (procedural) powers to make particular types of sentencing orders, and not to provisions that could otherwise be seen to deal with (substantive) issues of sentencing discretion. Her Honour did not have to resolve this question because of the wider reach of s 79. That is, if s 68(1) did not pick up laws concerning sentencing, s 79 would otherwise do so, subject to the operation of its terms. I will take a similar course. It is a course consistent with the refusal of the High Court in Ah Yick v Lehmert [1905] HCA 22; 2 CLR 593 to read down s 39 of the Judiciary Act in the light of the specific provisions made in ss 68, 72 and 77: see LK and RK at [15].

16 Related to the operation of ss 68 and 79 is s 80 of the Judiciary Act which provides for the common law of Australia to apply in the exercise of federal jurisdiction:

“80 So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.”

17 The phrases “so far as they are applicable” in s 68(1) and “except as otherwise provided” in s 79(1) have “little, if any, functional difference”: Putland v The Queen at 179 [7] (per Gleeson CJ) and 189 [41] (per Gummow J and Heydon J with whom Callinan J agreed at 215 [121]) and see Kelly v Saadat-Talab [2008] NSWCA 213; 72 NSWLR 305 at 307 [2] (special leave refused). As to the meaning of these phrases, see the discussion of the relevant authorities in Kelly v Saadat-Talab at 307-309 [3]-[9]. It can be accepted that the phrase in s 80, “so far as it is applicable and not inconsistent with”, has the same meaning as the cognate phrases in ss 68 and 79.

18 The specific State law here said to be picked up by s 68(1) or ss 79 and 80 is s 68A of the Crimes (A and R) Act.

19 The meaning and content of s 68A were discussed in R v JW [2010] NSWCCA 49 at [44]-[146] by Spigelman CJ, with whose reasons in this respect all members of the Court agreed. For present purposes, it is sufficient to set out [141] of the Chief Justice’s reasons:

“[141] The following propositions emerge from the above analysis:

(i) The words ‘double jeopardy’ in s 68A refer to the circumstance that an offender is, subject to the identification of error on the part of the sentencing judge, liable to be sentenced twice.

(ii) Section 68A removes from consideration on the part of the Court of Criminal Appeal the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject.

(iii) Section 68A prevents the appellate court exercising its discretion not to intervene on the basis of such distress and anxiety.

(iv) Section 68A also prevents the appellate court from reducing the sentence which it otherwise believes to be appropriate on the basis of such distress and anxiety.

20 The submissions on behalf of the Crown in JW had originally placed a wide meaning on the phrase “double jeopardy”. The submission was later narrowed by the Attorney-General (which the Director of Public Prosecutions accepted). The narrowing of the submission was discussed in JW at [47]-[53], as follows:

‘… the words “any element of double jeopardy” in s 68A refer to the principle that an appeal court may apply a discount in sentencing an offender because the offender is being sentenced twice. It is evident that this is the only element of double jeopardy addressed in s 68A.’

[48] In the course of advancing this submission, reliance was placed on an Agreement in Principle Speech (a new name for a Second Reading Speech) made by the Parliamentary Secretary on the Amendment Bill in the New South Wales Legislative Assembly on 23 September 2009. This was in the same terms as the Second Reading Speech tabled in the New South Wales Legislative Council on 22 September 2009. In each case, the Parliamentary Secretary identified the practice under the double jeopardy principle to the effect that ‘the Court will … give an automatic discount because the offender is being sentenced a second time for the same offence’.

‘The discount was intended to reflect the distress and anxiety of facing sentence again irrespective of the circumstances of the particular offender.’

[50] I note at this stage that, as the authorities to which I will shortly refer indicate, it is not appropriate to confine the double jeopardy principle to a ‘discount’. The double jeopardy principle was also deployed in significant degree to the exercise of the discretion not to intervene and resentence the applicant at all. Furthermore, an issue has arisen as to whether s 68A affects references in the case law to the ‘rarity’ of Crown appeals.

[51] Mr D Arnott SC, who appeared for the Crown, also submitted that s 68A ‘excludes only the distress and anxiety of facing sentence a second time’. The Crown, correctly in my opinion, distinguished between distress and anxiety of facing sentence for the first time, which is an inevitable concomitant in most cases of a conviction, and the additional distress and anxiety caused by the possibility of a harsher sentence on appeal.

[52] The Crown accepted that the anxiety and distress of an offender facing a term of imprisonment may be relevant, by reason of the subjective circumstances of that particular offender. It submitted that s 68A was not directed to that consideration. I agree that such anxiety and distress may be relevant to resentencing. It is capable of being a significant indication that considerations of personal deterrence are not to be given significant weight. That appears to be the case on the facts of the matter before the Court.

‘… damage to reputation, legal costs, negative effects on third parties such as family members, completion of the sentence by the respondent or his or her imminent release from custody, delay by the Crown in lodging the appeal or in notifying the respondent of the appeal, errors by the Crown representative at sentencing that led the sentencing judge into error or acquiescence in the sentence by the Crown, and “tinkering” with the sentence (that is, where there is only a small difference between the sentence at first instance and “what should have been”).’”

21 This narrowing of the Crown’s submission and the significance of such was discussed in R v Carroll [2010] NSWCCA 55 (heard immediately after JW) at [31]-[36], see especially the last sentence of [36], and see [1], [71] and [72] as to the concurrence of the whole Court.

22 No submission as to the meaning of “double jeopardy” was pressed in this Court by the Crown wider than was ultimately relied on by the Attorney-General in JW and Carroll. The meaning and content of s 68A has therefore been determined for present purposes and can be taken to be summarised at [141] of JW. It will, however, be necessary to return to aspects of the concept of double jeopardy discussed by the Chief Justice in JW.

23 A Crown appeal against sentence is provided for in New South Wales by the Criminal Appeal Act, s 5D, which relevantly provides as follows:

“5D (1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.”

24 As already explained, s 68(2) of the Judiciary Act gives this Court like appellate jurisdiction in respect of Commonwealth offences. Section 68(2) deals with jurisdiction; s 68(1) deals, relevantly, with laws concerning procedure for appeals. Section 80 deals with the common law to apply. Section 79 deals with the application of other State or Territory laws.

25 The Commonwealth statutory provision said in this case to invalidate (by s 109 of the Australian Constitution), or prevent the operation of (through ss 68, 79 and 80 of the Judiciary Act) s 68A of the Crimes (A and R) Act is the Crimes Act, s 16A, which, relevantly, is in the following terms:

“16A (1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

(a) the nature and circumstances of the offence;

(b) other offences (if any) that are required or permitted to be taken into account;

(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;

(d) the personal circumstances of any victim of the offence;

(e) any injury, loss or damage resulting from the offence;

(f) the degree to which the person has shown contrition for the offence:

(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii) in any other manner;

(fa) the extent to which the person has failed to comply with:

Federal Court of Australia Act 1976

(ii) any obligation under a law of the Commonwealth; or

Judiciary Act 1903

about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence;

(g) if the person has pleaded guilty to the charge in respect of the offence—that fact;

(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

(j) the deterrent effect that any sentence or order under consideration may have on the person;

(k) the need to ensure that the person is adequately punished for the offence;

(m) the character, antecedents, age, means and physical or mental condition of the person;

(n) the prospect of rehabilitation of the person;

(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

Constitutional issues

The incompatibility issue

26 The notice under s 78B of the Judiciary Act asserted that s 68A diminished the integrity of the Court and its capacity to function under Ch III of the Constitution on the ground of its retrospectivity and on the following grounds:

“1. It excludes from consideration by ‘an appeal court’ factors which are integral to the exercise of the discretion not to intervene and;

2. Renders irrelevant factors which are essential to a judicial assessment of the circumstances of an offence in the process of resentencing on a Crown appeal and;

27 No submissions were put to the Court by the respondent to support these propositions. The essential aspects of these propositions were dealt with in Carroll at [31]-[38]. There is no occasion to reconsider the views there expressed to the effect that s 68A is not invalid by reason of these kinds of consideration.

Inconsistency under s 109 of the

Constitution

28 The s 78B notice also sought to impugn s 68A on the basis of its inconsistency (for the purposes of s 109 of the Australian Constitution) with the Crimes Act, s 16A. A precise and narrow submission was put in this regard that focused upon s 16A(2)(m). It is convenient to address first, however, the implicit reliance that was placed upon a broader proposition, focused on s 16A(1) and based on the decision of the Full Court of the Tasmanian Supreme Court in R v Talbot [2009] TASSC 107 that found that the Criminal Code (Tas), s 402(4A) (the Tasmanian equivalent of s 68A), was inconsistent (for the purposes of s 109) with the Crimes Act, s 16A(1). The relevant State provision and the reasoning of Blow J (with which Crawford CJ and Parker J agreed) are found in [18] and [19] of the reasons:

Criminal Code

‘(4A) The Court, on hearing an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was brought, made or lodged by the person or by the prosecutor) –

(a) may take into account any matter relevant to the sentence that has occurred between when the court of trial dealt with the person and when the appeal is heard; but

Crimes Act 1914

R v Hayes

R v Clarke

R v Harland-White

Dinsdale v R

Attorney-General v McDonald

29 Two matters need to be addressed from this approach. The first concerns the application of s 109. The interaction between, and the order of operation of, s 109 of the Australian Constitution and s 79 (or s 68(1)) of the Judiciary Act has been discussed on a number of occasions: eg Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 at 576 [38] and 586 [76]; Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251 at 271 [61]-[63]; and see ONA at [70]-[137] per Neave JA. It is undoubted, as Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ stated in Agtrack at 271 [62], that the possible operation of s 109 is an anterior question to that of s 79 (or s 68(1)). Only a valid law of the State will be “picked up” by these latter provisions: Agtrack at 271 [61]. There is, in that sense, a sequential operation. Further, ss 68(1) and 79 only begin to operate when there is a court exercising federal jurisdiction.

30 Nevertheless, the sequential operation of s 109 and ss 68 and 79 is not mechanical. Necessarily, the first task is to understand the proper reach of the State law to see whether it can, or does, conflict with the Commonwealth law. Provisions of State statutes that deal with the exercise of judicial power need to be examined carefully for this purpose.

31 In R v Todoroski [2010] NSWCCA 75 at [8], I said (in comments that were not an expression of any concluded view) that “an Act of a State Parliament concerning how a court exercises power, on its face, cannot have anything to say about how a court (whether State or Commonwealth) exercises federal jurisdiction. That jurisdiction is of another polity, the Commonwealth”. State Parliaments can, generally, legislate for their own courts: cf Commonwealth v Hospital Contribution Fund [1982] HCA 13; 150 CLR 49. State Parliaments cannot, however, legislate for federal courts: John Robertson & Co Ltd (In liq) v Ferguson Transformers Pty Ltd [1973] HCA 21; 129 CLR 65 at 79, 87 and 93; Pedersen v Young [1964] HCA 28; 110 CLR 162 at 167; Northern Territory v GPAO at 628 [195]. Further, a law of a State with respect, for instance, to limitation of actions, cannot operate, of its own force, in relation to a claim arising under a law of the Parliament: Agtrack at 270 [58]; Northern Territory v GPAO at 575 [33]; and John Robertson v Ferguson Transformers at 84. Similarly, here, a law of a State providing for relevant considerations in sentencing (whether after conviction at trial, or on appeal) cannot, of its own force, have anything to say about sentencing for an offence created by a law of the Commonwealth Parliament: LK and RK at [25] (in particular the noting of the erroneous analysis in Cheatle v The Queen [1993] HCA 44; 177 CLR 541) and [86]-[88]. A court sentencing a person for an offence created by Commonwealth law looks to law provided by the Constitution and the Commonwealth, not to State law operating of its own force, in order to undertake its task. It is at this point that State legislation and the common law are made relevant and applicable by the operation of the Judiciary Act, ss 68, 79 and 80.

32 It is unnecessary to discuss further the valid reach, if any, of State laws, of their own force, in connection with the exercise of federal jurisdiction by State courts: see, for example, Saint-Gobain Abrasives Pty Ltd v McPherson [2009] NSWCA 214 at [7] and Solomons v District Court of New South Wales [2002] HCA 47; 211 CLR 119 at 134 [21].

33 Thus, here, I see no possible inconsistency between the Crimes Act, s 16A and the Crimes (A and R) Act, s 68A for the purposes of s 109, since s 68A is not to be construed as operating, of its own force to sentencing for criminal offences created by Commonwealth law.

34 Section 68A being the subject of possible operation of s 68(1) or s 79 (as an otherwise valid State law), the question of its operation, and whether it is picked up, is to be assessed by reference to its character as (surrogate) federal law: Kelly v Saadat-Talab at 307-308 [3] and the cases there cited and discussed.

35 Thus, I respectfully disagree with the approach adopted by the Court in Talbot. I am sufficiently persuaded, if I may respectfully say, of the error of that approach to depart from it: Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at [274]-[295]. I note that in reasons published on 17 August 2010 the Western Australian Court of Appeal reached the same conclusion in R v Baldock [2010] WASCA 170.

36 The place of s 68A in a Commonwealth appeal is to be assessed by reference to the Judiciary Act ss 68(1), 79 and 80 and any existing Commonwealth law, here, the Crimes Act, s 16A, not by anterior reference to inconsistency under s 109 of the Australian Constitution.

37 A second difficulty with the reasoning in Talbot is the conclusion that s 68A is inconsistent (in the sense described in the High Court authorities discussed in Kelly v Saadat-Talab at 308-310 [4]-[11]), with s 16A(1).

38 It is necessary, at the outset, to construe both provisions (Commonwealth law and surrogate Commonwealth law) to ascertain whether there is inconsistency or “actual contrariety”: Putland at 179 [7] and 189 [40]; Northern Territory v GPAO at 587-588 [79]-[80]; Austral Pacific at 144 [17]; and see generally Kelly v Saadat-Talab [4]-[11].

39 Section 68A seeks to remove from a court’s consideration in a prosecution appeal one human aspect that the common law had prescribed to be taken into account in sentencing on Crown appeals: an element of (presumed) distress and anxiety.

40 Section 16A(1), on the other hand, is directed to the appropriateness of the sentence and its severity in all the circumstances of the offence. The phrase “circumstances of the offence” is not apt to encompass the “circumstances of the offender” at the time of a prosecution appeal. Section 16A(1) is not directed to double jeopardy; rather it is directed to the appropriateness or proportionality of the sentence to the circumstances of the offence. No doubt, as the cases referred to by Blow J make clear, double jeopardy has been taken into account in the sentencing process as part of the common law: see also JW. To the extent this has occurred in appeals in respect of federal offences, this is so because the concept is part of the common law of Australia applied by the Judiciary Act, s 80 to the resolution of the controversy, not because double jeopardy is a “circumstance of the offence”, the object of the command in s 16A(1).

41 Section 16A(2) is, however, more relevant. It is not, in its terms, an explication of s 16A(1); though, in part, it deals with matters that can be seen to be “circumstances of the offence”: eg s 16A(2)(a), (c), (d), (e) and (h). Other considerations in s 16A(2) are plainly not “circumstances of the offence”: eg 16A(2)(j), (n) and (p). Further, s 16A(2) can be seen to be directed to the whole of the task to which s 16A(1) is directed (“determining the sentence … or the order to be made …”).

42 Section s 16A is an attempt by the Commonwealth Parliament to identify matters which, if relevant, must be taken into account. It was not intended either to cover the field or to create a code of features being the exclusive universe of considerations in sentencing. This is clear from the opening words of s 16A(2).

43 Section 16A was passed against the background of the common law and upon the assumption that common law principles would apply: Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [15]; Lodhi v R [2007] NSWCCA 360; 179 A Crim R 470 at 489 [81]; and DPP (Cth) v El Karhani (1990) 21 NSWLR 370.

44 In Lodhi at [81], Spigelman CJ said:

Johnson v The Queen

45 In Johnson at [15], Gummow, Callinan and Heydon JJ said:

“[15] The proposition contained in the first of the appellant's grounds is largely uncontroversial: that except to the extent stated in ss 16A and 16B of the Act, general common law and not peculiarly local or state statutory principles of sentencing are applicable. That common law principles may apply follows from the use of the words ‘of a severity appropriate in all the circumstances of the offence ...’ in s 16A(1) and the introductory words ‘In addition to any other matters ...’ to s 16A(2) of the Act.”

46 Putland, however, made clear that the Crimes Act, Part 1B did not set out a code, or evince a Parliamentary intention to make it an exclusive source of law, for sentencing of federal offenders, so as to render State law inapplicable: Putland at 185 [22]-[24] and 193 [53]-[54].

47 Thus, the appropriate analysis is whether State law is, or is not, to be picked up by ss 68, 79 and 80 of the Judiciary Act. How any particular State law concerning sentencing is to be seen as affecting (or not, as the case may be) the command in s 16A (or Part 1B) will be a matter for individual analysis: cf Wong v The Queen [2001] HCA 64; 207 CLR 584 at 597, 609-610, 632-633 and 643. If the surrogate federal law (here, s 68A) is contrary to the Commonwealth law (here, s 16A) by, for instance, impliedly repealing or qualifying it in a material respect, it will not be “picked up”. This kind of “actual contrariety” was discussed by Fullagar J in Butler v Attorney-General of Victoria [1961] HCA 32; 106 CLR 268 at 275, cited in Putland at 189 [40] and discussed in Kelly v Saadat-Talab at 308-309 [6]-[8].

48 It was submitted by the respondent that this kind of inconsistency or contrariety arose here from the terms of s 16A(2)(m) and s 68A. It was submitted that “mental condition” in s 16A(2)(m) is wider than medically diagnosed or clinically recognised condition, or mental illness or mental disorder. It meant, it was submitted, the mental state of the person.

49 These submissions should be accepted. Section s 16A(2) should be read widely, not narrowly. The Parliament was evidently attempting to identify (albeit non-exhaustively) a broad range of considerations to be taken into account in reaching a just and appropriate sentence. Section 16A(2)(m) is apt to encompass important aspects of the offender. The phrase “mental condition” should not be read as requiring some requirement of a diagnosable clinical state. For instance, here, the respondent swore an affidavit that he was depressed. That might not be particularly influential in any sentencing exercise. Nevertheless, it is evidence that describes one aspect of his mental condition, unless s 16A(2)(m) is limited to a recognised medical condition, in which case medical evidence of the character and gravity of the depression would be necessary to ascertain whether it was of a seriousness or a kind as to qualify as a medical condition. Section 16A(2)(m) should not be narrowly construed in this way.

50 It was submitted by the DPP that the phrase “mental condition” in s 16A(2)(m) related to questions of culpability, deterrence, hardship and the like to which a mental condition was relevant in general law sentencing principles and practice. Reference was made to R v Pham [2005] NSWCCA 314 at [34] ff.

51 To the extent that that submission was intended to equate the phrase “mental condition” with mental disorder or mental illness, it should be rejected. The phrase is not a term of art, but has a wider meaning though, of course, the meaning of the phrase falls to be considered in its context: The Queen v Kiltie (1986) 41 SASR 52 at 61 (King CJ), 64-66 (Legoe J) and 70-71 (Johnston J). Its context, here, is the broad wording of s 16A(2)(m) concerned with the attributes of the offender in a provision directed to identifying the appropriate or proportionate sentence.

52 This being the reach of the Commonwealth law (s 16A), is the putative surrogate federal law (s 68A) inconsistent with, or contrary to, it? The answer is that it is. The Chief Justice in JW discussed the nature of double jeopardy. Section 68A is directed to stress and anxiety to which all respondents to a Crown appeal are presumed to be subject. In other words, the offender’s (“the person’s” for s 16A(2)(m)) mental condition (in the wide sense that I would read it) is presumed to be affected by stress and anxiety. Stress and anxiety are part of the mental condition of the person.

53 To permit s 68A to operate would be contrary to, and impliedly repeal, in part, s 16A(2)(m), removing from the Court’s consideration a part of the person’s mental condition, even if it only be presumed by the common law to exist. Thus, in my view, s 68A is not picked up in, and for the purposes of, the sentencing task here to be undertaken by the appeal court. That task is not limited to the ascertainment of the sentence, but extends to the ascertaining of the correct order on the appeal. Thus, s 68A is not picked up insofar as it might have an operation described in JW at [141(iii) and (iv)]. The question whether s 68A is picked up in so far as it might have an operation described in JW at [141 (v)] can be left to one side as unnecessary and inappropriate to decide in the absence of submissions.

54 I do not think the inconsistency is avoided by stressing the presumed nature of the distress and anxiety. It is a presumption of the reality of the distress and anxiety. To permit s 68A to operate and then to permit (because of s 16A(2)(m)) evidence of actual distress and anxiety at being sentenced a second time and losing the benefit of the first sentence would be both somewhat artificial and also apt to give s 68A a meaning and effect different in Commonwealth Crown appeals to State Crown appeals.

55 If the above view that the correct framework of analysis is the operation of the Judiciary Act rather than s 109 of the Australian Constitution be wrong, the direct inconsistency between s 16A(2)(m) and s 68A and the impairment of the former by the latter would amount to inconsistency for the purposes of s 109. No detailed discussion of relevant principle is required once the conclusion is reached that a State law (on this hypothesis) is directly inconsistent with, and impairs the intended purpose of, the Commonwealth law: eg The Queen v Credit Tribunal; Ex parte General Motors Acceptance Corporation (“GMAC case”) [1977] HCA 34; 137 CLR 545 at 563-564; Victoria v Commonwealth [1937] HCA 82; 58 CLR 618 at 620.

56 Given that mine is a minority view, it is unnecessary to consider whether, as a matter of precedent, I would defer to the reasoning in Baldock (with which I otherwise generally agree) given that the argument based on s 16A(2)(m) was not propounded in Baldock.

The merits of the appeal as to the sentence

57 I have read the reasons in draft of Basten JA, the Chief Judge at Common Law and Simpson J. Their Honours’ reasons enable me to be brief in expressing why, in my view, the appeal should be dismissed.

58 The only ground of appeal was that the sentence was manifestly inadequate. Mr P Strickland SC, who, with Mr D O’Neil, appeared for Mr De La Rosa, stressed two well-known passages from Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 and Everett v The Queen [1994] HCA 49; 181 CLR 295 at 306.

59 In Lowndes, the Court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) said at 671-672:

R v Allpass

R v Clarke

House v The King

60 In Everett, McHugh J said the following at 306:

“… Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence.”

Allpass

Lowndes

“… An appellate court will only interfere if it is demonstrated that the sentencing judge fell into material error of law or fact. Such error may appear in the reasons given by the sentencing judge, or the sentence itself may be manifestly excessive or inadequate, and thus disclose error. However, the facts and circumstances of individual cases are often such that sentencing judges have a substantial discretion, and the appellate court does not intervene simply upon the basis that the members of that court would have exercised their discretion differently from the judge at first instance.”

Clarke

Lowndes

“2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (…); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (…); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (…) (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (…).”

61 It is also well to recall what Gleeson CJ and Hayne J said in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325-326 [6] about the apparency of manifest inadequacy:

“[6] Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.”

62 In the submissions put forward on behalf of the Director, a number of matters were referred to to assist in the identification of the proper “sentencing range”: statistics from the Judicial Commission of New South Wales, statistics from the Commonwealth Sentencing Database and a schedule of what were said to be comparative cases (virtually all of which were from this Court).

63 After the matter was reserved, research was undertaken by the Court to obtain a better understanding of the sentencing for this and like offences in other Courts in the Commonwealth. This research was put to the parties and further argument took place on it.

64 I do not propose to deal with the very large number of cases that were before the Court for argument. I have considered them and the submissions of the Director. In my view, there is no basis to argue that this sentence was so inadequate as to require intervention on a Crown appeal (whether or not s 68A of the Crimes (A and R) Act applies) unless it is demonstrated that the sentencing judge could only approach the sentencing task on the basis that all the circumstances (objective and subjective) were to be evaluated as at the high end of the range of seriousness.

65 One needs to approach the sentencing task by reference to the facts found by the sentencing judge. No appeal was directed to any of those findings. The assessment of their seriousness and what was a proper sentencing response to them are broad evaluative judgments, in respect of which minds could reasonably differ at a number of points and from a number of perspectives.

66 The offender was given eight years with five years non-parole, after a 25 per cent discount for an early plea. The ignoring of the discount produces a head sentence of 10⅔ years and a non-parole period of 6⅔ years. If one recognises the subjective factors mentioned by the sentencing judge, some allowance (though not great) could legitimately be made for the hardship that Mr De La Rosa will experience in prison by his lack of English and the distance from his family in Spain. Giving full recognition in this respect to what Wood CJ at CL said in R v Schmakowski [2001] NSWCCA 395 at [28] about the risk taken by the offender of incarceration in a foreign gaol, some recognition of that hardship could have been taken into account. Doing so, it is possible to posit a judge commencing with a 10⅔ to 12 year head sentence and a 6⅔ to 8 year non-parole period. Any sentence in that range would be a significant sentence. Why would it be manifestly inadequate? It could only be so if there was no other conclusion open but that the facts only admitted of an evaluation demanding a sentence towards the higher end of the scale for the offence with a maximum penalty of 25 years imprisonment.

67 Here, the offender was sentenced as a courier, not as a principal. Whilst the sentencing judge found aspects of his story not plausible, it is clear (and there was no complaint by the Director about this) that he was sentenced on the basis that he was not high in any hierarchy and that he was not a principal.

68 The Crown stressed that the quantity of the drug was near the upper limit for this offence. On occasions, the argument as put came close to requiring the quantity of the drug to dictate the seriousness of the offence and thus the sentence. Such an approach would be wrong: Wong v The Queen at 597 [31], 609 [68]–[69], 610-611 [73] and 628 [121]–[122]. Of course, it is a factor; but it does not govern the sentence and the range into which it must fall.

69 The necessarily evaluative judgment made by the sentencing judge, addressing, as he did, all relevant considerations, that the offence warranted the sentence he gave was not one that could be said to be obviously wrong, or not open to him. That being so, the sentence could not be viewed as manifestly inadequate. Certainly, minds could reasonably differ as to the question where in the range of seriousness all the circumstances fell and also whether a higher sentence was not perhaps appropriate. One could without difficulty see another judge imposing a somewhat harsher sentence. That said, I would not describe the sentence as lenient; nor would I describe it as harsh. The sentencing judge was entitled to come to the evaluative assessment that he did.

70 The appeal should be dismissed.

71 Neither party put any submission that the course taken by the Court in undertaking its own detailed research on cases not previously relied on by the Director was not appropriate. No occasion therefore arises to comment on it further, other than to say two things. First, if the Director is to seek consistency in sentencing across the country for Commonwealth offences (as opposed to consistency of sentences for those incarcerated in State prisons for like or comparable Commonwealth and State offences) the Court needs to be assisted by cases from other jurisdictions. Secondly, recognising, of course, sometimes the need or appropriateness of the Court going beyond the cases referred to by counsel in argument and leaving to one side the necessity, in any given case, to afford the parties procedural fairness, I would reserve my view on the true nature of a Crown appeal insofar as it might be seen to affect the boundaries of the Court’s freedom to act in the way it did, by reference to considerations of the public interest, with consequences that may be to the significant disadvantage of a respondent offender when the Crown, despite encouragement, has not developed its argument past a certain point.

72 BASTEN JA: The circumstances leading to the appeal by the Director of Public Prosecutions (Cth) against the sentence imposed on the respondent by Zahra DCJ are fully set out by McClellan CJ at CL and need not be repeated. Subject to the following observations, and for the additional reasons noted below, I agree with the judgment of Allsop P. The appeal should be dismissed.

Procedural steps

73 The Court is unanimous in its view that the appeal should be dismissed; however, there are different paths to that result. First, the President and I take a different view from the majority as to the applicability of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Appeal and Review Act”) in a case involving federal jurisdiction. Secondly, we share a concern as to the procedural course taken by the Court in determining this matter. In my view the case as originally presented by the Director was deficient and failed to establish manifest inadequacy of the sentence imposed on the respondent. The appeal should have been dismissed on that basis. Instead, the Court undertook its own research in order to satisfy itself as to the range of sentences applied nationally in respect of the offence for which the respondent was convicted, viewed in the context of other related offences. It was then necessary, as a matter of procedural fairness, to accord both parties the opportunity to comment on the results of that research. In my view, that course was inappropriate and demonstrated a departure from established practice in relation to the proper role of an intermediate criminal appeal court.

74 It is undeniable that the equal administration of justice requires consistency in sentencing those who commit a particular offence in similar circumstances. Conversely, material differences should be reflected in differential sentencing. It is also undeniable that the statutory conferral on a prosecuting authority of a right to appeal against sentence and the conferral on this Court of a power, in its discretion, to “vary the sentence and impose such sentence as to [this] Court may seem proper”, should be seen as an instrument for promoting the equal administration of justice: Whittaker v The King [1928] HCA 28; 41 CLR 230 at 248 (Isaacs J); Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at 310 (Barwick CJ); Malvaso v The Queen [1989] HCA 58; 168 CLR 227 at 234 (Deane and McHugh JJ). On the other hand, equality of treatment is an ideal not readily translated into exact application. Further, equality of outcome should not be pursued at the expense of procedural fairness to the individual offender.

75 The fact that an appeal by a prosecuting authority may provide an opportunity for the Court to “lay down principles for the governance and guidance” of sentencing courts, so as to avoid “manifest disparity and inconsistency in sentencing” should not lead to resentencing in the absence of demonstrable error in principle, of the kind described in House v The King [1936] HCA 40; 55 CLR 499 at 505: see Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [21] (Gaudron and Gummow JJ). Further, as noted by Kirby J in Dinsdale at [66]:

“Unless error is stated and demonstrated, the appellate court has no legal authority to substitute a sentence which by law belongs to the primary judge. Adhering to strictness in this matter is also a protection to the prisoner who may wish to be advised on rights of further appeal.”

76 Consistently with these principles, where no specific error is identified, the prosecuting authority must establish to the satisfaction of this Court that the sentence imposed of itself demonstrates an erroneous application of proper sentencing principles. It must also be clear from the reasons given by this Court as to why that is so.

77 However, recognition that the role of this Court on an appeal by a prosecuting authority is to provide guidance to sentencing courts and promote consistency in sentencing was, until very recently, understood to impose a constraint on appellate intervention. The procedure adopted in this case (and at least considered in other jurisdictions – see The Queen v Baldock [2010] WASCA 170) would turn the principle of constraint into a licence to conduct an inquiry, neither undertaken nor proposed by either of the parties. Such a course should be eschewed.

78 As the President correctly notes (at [71] above) neither party sought to contend that the course taken by the Court was inappropriate. On the other hand, neither party had an opportunity to object until the course had been taken. In any event, this Court cannot acquire a function inconsistent with its constitutional role through the failure of a party to object. As explained in greater detail below, if the information supplied by the Director was inadequate to demonstrate manifest inadequacy, on the basis that it was appropriate or necessary to take national considerations into account, the appeal should have been dismissed on that basis.

Constitutional issues

79 In relation to the first issue raised at [5] above, s 68A of the Appeal and Review Act should not be construed as a State law purporting to apply of its own force, in federal jurisdiction: see above at [31]-[33]; Solomons v District Court of New South Wales [2002] HCA 47; 211 CLR 119 at [9] and [21] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ, [37] (McHugh J) and [74]-[76] (Kirby J), albeit in a different statutory context. It follows that there is no inconsistency with a law of the Commonwealth engaging s 109 of the Constitution. The second constitutional matter, concerning institutional incompatibility, was disposed of by this Court in R v Carroll [2010] NSWCCA 55 and does not require further consideration.

Content of relevant laws

80 Before determining the operation of s 68A of the Appeal and Review Act in federal jurisdiction, it is necessary to identify more precisely the scope of the critical provisions of Commonwealth and State law.

81 It is convenient to note first the operation of s 16A of the Crimes Act 1914 (Cth) in this Court. Section 16A (set out by Allsop P at [25] above) applies in “determining the sentence to be passed”: it does not in terms apply to the determination of an appeal. Although the parties in the present case assumed that s 16A did apply in this Court, it is desirable to note how that is so. On an appeal by the prosecuting authority against the sentence imposed, the Court may need to address four factors (not always distinctly), namely:

(a) considering, as a preliminary matter, whether, because of delay or for other procedural reasons, intervention should not be entertained;

(b) assessing the sentence imposed by the trial judge to consider whether it was erroneous, in the same manner as in assessing an appeal by an offender: see Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672, set out at [59] above;

(c) if satisfied as to error of the requisite kind, determining whether to intervene to quash the sentence, and

82 It is clear that the second and fourth categories can only be addressed in accordance with principles stated in s 16A. The determination to intervene or to dismiss the appeal may turn on factors other than those identified in s 16A, but may be influenced by the likely outcome of a resentencing. Thus, s 16A may not be entirely irrelevant in relation to the first and third categories, but it does not directly condition the operation of the discretion.

83 Section 68A of the Appeal and Review Act (set out at [6] above) is structured as a prohibition, imposing a constraint upon an “appeal court” in the exercise of its jurisdiction, including that conferred on this Court by the Criminal Appeal Act 1912 (NSW). Its operation is directed to the powers of the court in considering a “prosecution appeal against sentence”.

84 Section 68A, it was accepted in R v JW [2010] NSWCCA 49, had no application in relation to the first or second categories. It does, however, operate in relation to both the third and fourth. To the extent that it has removed a factor which would otherwise have been relevant to the exercise of the discretion, it has effect in an area as to which s 16A is silent. To the extent that it affects the resentencing exercise there is potentiality for conflict with the obligations imposed by s 16A.

Application of state law in federal jurisdiction

85 In addressing the intersection of these provisions, the central legal question is whether s 68A of the Appeal and Review Act is picked up and applied as surrogate federal law by a relevant enactment of the Commonwealth Parliament. The argument in this regard turned on the potential operation of ss 68, 79 and 80 of the Judiciary Act 1903 (Cth).

86 The term “appeal court” is defined in s 3 of the Appeal and Review Act by reference to provisions which would limit it to appeals from the Local Court, were it not for the extended operation given by s 68A(2). The reference to an appeal under the Criminal Appeal Act must include an appeal brought by the Attorney-General or the State Director of Public Prosecutions under s 5D of that Act. It is now beyond doubt that s 68(2) of the Judiciary Act confers jurisdiction on this Court to hear an appeal by the Commonwealth Director in relation to a sentence imposed for a federal offence: see, eg, Peel v The Queen [1971] HCA 59, 125 CLR 447; Rohde v Director of Public Prosecutions [1986] HCA 50, 161 CLR 119; Wong v The Queen [2001] HCA 64, 207 CLR 584 at [47] (Gaudron, Gummow and Hayne JJ). It is, nevertheless, necessary to consider how the conferral of jurisdiction under the Judiciary Act operates.

262 In importation cases, the motivation of the offender at the point of initial departure may be relevant in assessing his or her culpability. A finding that the offender commenced his or her trip with the intention of importing prohibited drugs upon entry or re-entry militates against a finding of opportunism: Paliwala at [6]; Mirza at [14]. The respondent departed Spain for Argentina with the specific intention of collecting drugs to import into Australia. This was not an opportunistic or impulsive endeavour.

263 An early plea of guilty will normally attract a discount of 25%. It will attract a lesser discount where it comes later in the pre-trial or trial process: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 per Spigelman CJ at [152] – [159]. The respondent pleaded guilty in the Central Local Court and accordingly his plea was entered at an early stage. A discount of 25% was appropriate.

264 Of particular significance in the present case and relatively uncommon in relation to this type of offence is the fact that the respondent has an extensive criminal record. The respondent has a total of 21 prior convictions, 3 of which are drug-related. He spent 10.5 out of the 12 years preceding this offence in gaol in Spain. He committed the present offence within 12 months of his most recent release from custody. The extensive nature of his criminal history calls to mind the position of the offenders in Thom, Mattheyer and Saputra. The sentencing judge found that a lengthy sentence in Australia would serve as an effective personal deterrent. To my mind, given his criminal record, that finding was questionable. The respondent’s record demonstrates that his earlier terms of incarceration have had no deterrent effect whatsoever.

265 I acknowledge that the respondent’s imprisonment in Australia would be a greater burden than for some others given his limited English skills and distance from his family in Spain. However, I agree with the sentencing judge that this factor is of “strictly limited” significance (see also R v Ferrer-Esis (1991) 55 A Crim R 231 at 18). Many persons convicted of importing drugs will not be Australian residents and will have only limited, if any, capacity in the English language.

266 After giving careful consideration to the objective circumstances of the offence and the circumstances of the respondent, I would place the present case within the first group of cases I have identified involving importation of a marketable quantity of border-controlled drugs.

267 The features of the present case which lead me to conclude that the respondent should receive a sentence consistent with the sentences for the first group of cases involving a trafficable or marketable quantity of border-controlled drugs are:

1. Quantity. The amount of drug involved in the importation was 935.15 times the minimum trafficable quantity. This proportion is greater than that involved in all cases included in the first group: Mohlasedi (573 times), Tsen (333 times), Teehan (300 times), Tanadi (527 times, 8.2 times, 3.4 times), Parry (112.2 times), Vo (254.25 times), White v R (202.8 times), Tran (736.5 times), Paliwala (192.45 times), Hovorka (734.55 times), Mirza (156.85 times) and Mokoena (248.75 times). It is also well above the proportion involved in the cases of Heryadi (12.75 times trafficable quantity cocaine), X v R (112 times), Ngui and Tiong (625 times), Radebe (114.85 times), Thom (112.6 times), P v R (107.45 times), Mirzaee (289 times), Do (239.2 times), Pham (122.3 times), Tran (339.2 times), Anna Le (58.8 times), De Campos (226 times), Mirza (156.85 times), Robillard (375 times), Mattheyer (635.75 times), Toure (421.75 times), Saputra (56.75 times) and Tyn (121.15 times). The only relevant case involving a higher proportion of drugs is Acosta (939.5 times).

2. Role. I have previously described the respondent’s role in the importation. Although each case is different, the respondent’s circumstances reflect features found in some previous decisions. In Mohlasedi the offender was described as a courier and importer, in Parry as an organiser, collector and distributor, in Hovorka as more than courier and, in Teehan , as not a principal but as someone who had an important and significant role. While the offender in Tsen was described as a courier, it must be borne in mind that she had pleaded not guilty to the charge and so her sentence of 11 years (6.5 years non-parole) did not reflect the usual 25% discount.

3. Furthermore, of those cases, all those in which sentences of the same or lesser severity than I have determined should be imposed in the present case either involve subjective circumstances more favourable than those of the respondent, or alternatively, a degree of objective culpability lower than that attaching to the respondent: Pham (8 years NPP 4.5 years: serious mental condition, contrition, reasonable prospects of rehabilitation), Tran (6 years 8 months NPP 2 years 10 months: past assistance), Viera (6 years 11 months NPP 4.5 years: 20% discount for assistance, good prospects of rehabilitation), Robillard (7.5 years NPP 4.5 years: isolation in prison, good prospects of rehabilitation, no prior convictions, prior good character, drug use contributed to offending). The one possible exception is Saputra (7 years 4 months NPP 5 years 2 months) however the offender in that case was middle aged, had personal and family difficulties and a methamphetamine dependency.

4. Reward. The respondent stood to make a very significant financial gain, the equivalent of approximately AU$43,000. This is greater than that involved in all cases in the first group in which a finding of reward was made: Mohlasedi (approximately $3,000), Tsen ($10,000), Tanadi (expenses plus $6000), Paliwala ($20,000), Hovorka (approximately $13,000 plus 10% sales), Mirza ($10,000) and Mokoena . It also exceeds the reward involved in all relevant cases in which such a finding was made: Heryadi ($16,000), X v R ($10,000). Thom ($30,000), P v R ($13,000), R v Do ($10,000 plus waiver of $10,000 debt), De Campos (approximately $3000), Toure (approximately $14,000) and Tyn (waiver of $20,000 debt). Remuneration of the magnitude involved in the present case, no doubt a reflection of the quantity of cocaine involved in the importation, also tends to confirm that the respondent’s role was above that of a mere courier.

5. Assistance. The respondent neither offered nor provided assistance to the authorities. Nor did he make any admissions to Customs officers upon his apprehension at Sydney Airport: cf Tsen , Vo , Hovorka and Mokoena ; cf also Heryadi, X v R, Ngui and Tiong, Thom, P v R, Tran, Viera, De Campos, Toure and Tyn . The respondent’s failure to provide a full and frank account of how he was recruited and from whom he received instructions has led to particular difficulties in the present case. However, he must not be penalised for this. Rather, he is denied any discount that might otherwise be available if he had given assistance.

6. Criminal history. The respondent had a significant criminal history which included some drug convictions (cf Mohlasedi, Tsen, Teehan, Tanadi, Parry, Tran, Paliwala, Hovorka and Mokoena where the offender had no prior convictions and/or had good antecedents enabling a finding of good character to be made). The only other case in the first group in which the offender had a criminal history was White (where due to this fact the offender faced a maximum term of life imprisonment). As stated above, the cases of Thom, Mattheyer and Saputra also involved extensive criminal histories.

Prospects of rehabilitation.

Mattheyer

Mohlasedi

Teehan, Parry, Tran

Hovorka

Pham, Viera, Teehan, Robillard

Tyn

Mirzaee

Saputra

“Clearly these convictions and the (lenient) sentences imposed have had no effect in deterring him from involving himself in drug enterprises. I have little confidence that the offender has any real insight into his offending behaviour or that he is not likely to re-offend. The sentence imposed should carry with it a strong component of personal deterrence.”

268 Although I would myself have imposed a greater sentence, I have reached the conclusion that, having regard to the range of sentences which I identified for matters in the first relevant group, I am not persuaded that the respondent’s sentence was manifestly inadequate. The sentences for that group start with a term of 9 years. The respondent was sentenced to 8 years. The difference of one year is not such as would justify a finding of error which of itself justifies the intervention of this Court.

269 When considering an appeal under s 5D of the Criminal Appeal Act 1912, this Court “may in its discretion vary the sentence and impose such sentence as to [this Court] may seem proper.” If I had decided that this Court should intervene and re-sentence, it would have been necessary to consider the respondent’s evidence in his affidavit in which he said:

“When I understood that the Crown wanted to increase my sentence I felt very depressed. I feel very isolated here. Except for one person who speaks some Spanish I have no one else. It’s lonely. I was counting the weeks until I was to be released but now I don’t know when that will be. I can’t be certain anymore and it’s making everything worse.”

270 Although the respondent said that he was “depressed”, there was no medical evidence to support any identifiable medical condition. Furthermore, there is nothing to suggest that once his sentence has been finally determined, he will not return to his previous state of apparent equilibrium. I would have given this evidence little weight.

271 However, for those the reasons in my judgment, I am not persuaded that the sentence imposed was manifestly inadequate and this Court should intervene. I would dismiss the appeal.

272 SIMPSON J: I have read in draft the judgments of Allsop P, Basten JA, and McClellan CJ at CL.

273 I agree, for the reasons given by the President, that there is, for the purposes of s 109 of the Constitution, no inconsistency between s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) and the Crimes Act 1914 (Cth).

274 I agree with the Chief Judge at Common Law, for the reasons given by him, that there is no inconsistency between s 68A and s 16A such as to exclude the former section from the operation of s 68, s 79 and/or s 80 of the Judiciary Act 1903 (Cth).

275 To the reasons given by the Chief Judge I would add only this. The simple and basic proposition is that, in any appeal by the Director of Public Prosecutions (Cth) (“CDPP”) against the asserted manifest inadequacy of sentence, s 68A does not exclude from consideration any evidence of a respondent’s mental condition, even if that mental condition involves or includes distress and anxiety occasioned by the institution of the Crown appeal and the risk of an increased sentence.

276 What s 68A precludes is reliance by the court upon the presumption that a respondent is suffering from that distress or anxiety. In my opinion, there is a significant distinction between a presumption of fact (even if drawn from common experience) and an inference available from evidence in the proceedings (see the judgment of Basten JA, para [106]). It is only the former that is excluded by s 68A.

277 The principle of double jeopardy evolved as a humanitarian consideration in circumstances where an offender, having been sentenced leniently – manifestly too leniently, on the Crown case – faces the prospect of losing the benefit of that leniency. Courts presumed that that prospect would be the source of distress and anxiety.

278 That may not invariably have been the case. Where it was, the principle that came to be called the principle of double jeopardy meant that it was unnecessary for evidence to be given to that effect. Where it was not, the offender benefited from a presumption of fact that was not, in reality, warranted.

279 Section 16A(2)(m) of the Crimes Act enables, and requires, the court to take into account the mental condition of a person standing for sentence – where evidence is given of that condition. That is the actual mental condition of that person – not his or her presumed condition. An appellate court, under s 68A, cannot take the mental condition of an offender into account in the absence of such evidence – that is, it cannot act upon any presumption of distress and anxiety.

280 There has never been, in respect of sentencing at first instance, any presumption of distress and anxiety caused by the prospect of a sentence – although it is not unreasonable to speculate that many offenders standing for sentence will experience distress and anxiety at the prospect that lies ahead. That does not mean that a sentencing court does not take into account anxiety and distress, where it has evidence of those conditions. In my experience, as a sentencing judge, and having observed sentencing practices from this Court, distress and anxiety, referable to the anticipated sentencing process, will be taken into account – where demonstrated. It will not be presumed. To fail to take it into account, where there is relevant accepted evidence, would, in the case of federal sentencing, be contrary to s 16A(2)(m). The weight to be accorded to such evidence will vary from case to case.

281 All that s 68A(b) does is to place a respondent to a Crown appeal, and the court dealing with the appeal, respectively, in the same positions as the offender being sentenced, and the court sentencing, at first instance. It would be very odd if a first instance sentencing judge were, as I consider is the position, able to take into account evidence of distress and anxiety, but this Court, sentencing after a successful Crown appeal, were not able to do so. In my opinion that is not the effect of s 68A.

282 In these circumstances, I see no inconsistency between s 68A and s 16A(2)(m). Accordingly, s 68A of the Crimes (Appeal and Review) Act applies when this Court deals with appeals by the CDPP against the asserted inadequacy of sentences imposed on federal offenders.

283 I find it necessary to comment upon the observations made by Basten JA in para [129] and following. I respectfully disagree with the approach there suggested – that is, to dismiss a Crown appeal where the Crown has failed to provide adequate material in relation to the appropriate range of sentences, that this Court would, without further inquiry, and in reliance on an onus of proof, dismiss the Crown appeal.

284 The task of this Court is to examine the sentence imposed, and, in the case of a Crown appeal, to determine whether it is manifestly inadequate, or in the case of a severity appeal, to determine whether it is manifestly excessive. In undertaking that task, the Court assumes a responsibility not only to the parties, but to the community as a whole.

285 In doing so, the Court may well be assisted by examination of previous decisions, sometimes additional to those cited by the parties.

286 Ordinarily, this Court can expect to receive, and does receive, assistance through the research and submissions of the legal representatives of the parties. Occasionally, it happens that the Court does not receive an adequate level of such assistance. In those circumstances, in order to discharge its function, it may be necessary that the Court undertake its own research and investigation.

287 A Crown appeal, in particular, ought not to be treated as party – party litigation, in which one party might fail if it fails to discharge an onus. The interests involved in determining these appeals are wider. Similarly, there may be (rare) occasions where an applicant in a severity appeal is ill-served by his or her legal representatives, requiring the Court, in the interests of justice, to undertake its own research. I am conscious, of course that it is not the function of the Court to assume the role of advocate (or researcher) for either party.

288 These circumstances, fortunately, arise only rarely. I am unable to accept that, where they do arise, this Court discharges its function by relying upon an onus of proof.

289 The additional research undertaken by the Court in this case was markedly more extensive than is usual, and more extensive than I have ever previously observed. That was because, the Court having convened a five-judge bench for the purpose of considering the application of s 68A, the opportunity presented itself of delivering a judgment of more than usual authority. For that to be achieved, it was desirable that it be based upon data more than usually comprehensive.

290 The extent of the additional research was such that the Court considered it appropriate to offer the parties the opportunity of commenting upon the results. That was done. This Court has benefited from the exercise, as will, in my opinion, sentencing courts in the future.

Inadequacy of sentence

291 I have carefully considered the conclusions of Allsop P, Basten JA and McClellan CJ at CL in respect of the disposition of this appeal. I have also carefully considered the previous decisions of this and other courts identified in the judgment of the Chief Judge.

292 I propose to confine my further observations on this matter to sentences imposed with respect to offences to which a maximum penalty of imprisonment for 25 years is applicable.

293 What can be drawn from the extensive and comprehensive survey of sentences contained in the judgment of the Chief Judge? On their face, they do not appear to establish a clear or coherent sentencing pattern. No doubt that is explicable, at least in part, by the wide variety of factors necessary to be taken into account in every sentencing decision (see, for example, Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584, and s 16A itself). Nor, however, do they establish inconsistency to a level that might be of concern.

294 In what follows I have endeavoured, in respect of individual cases, to pinpoint what was stated to be, or can be discerned to have been, the starting point of the sentencing process. By that I mean that, where a sentence has been reduced by reason of, for example, the operation of s 16G of the Crimes Act (before its repeal in 2002), a plea of guilty, or assistance to authorities, I have attempted, so far as the remarks on sentence or the report of the appellate judgment allow, to extrapolate the starting point: that is, the sentence that would have been imposed but for any reduction attributable to one or more of those circumstances. Where a reduction referable to a plea of guilty is not quantified, I have assumed a reduction of 25 percent; where a reduction attributable to the operation of s 16G is not quantified, I have assumed (in accordance with common practice) a reduction of 30 to 33⅓ percent. With respect to assistance, if a reduction has not been stated, given the wide variation in reductions allowed, and the absence of any “common practice”, it has not been possible to make any assumption about the level of reduction allowed.

295 One thing that can be detected from the outlines of the cases is the existence of some regional variation. The pattern of sentencing in some States appears to be heavier than that in others. That raises the issue of consistency.

296 Plainly, consistency is desirable in sentencing. But consistency with what? The submissions of the CDPP focussed upon consistency in sentencing federal offenders under federal law. The consequence of acceptance of this approach, without more, is that a federal offender in, say, Western Australia, could expect to be sentenced, in respect of a comparable crime, similarly to a federal offender sentenced in NSW, Victoria, Queensland or any other State or Territory.

297 Conceivably, that might give rise to a further issue. Both state and federal governments have legislated in respect of drug offences, some of them very similar, even parallel. It may seem odd if, in respect of comparable crimes, an offender sentenced in, say, NSW, under federal law was treated markedly differently from an offender sentenced in NSW under State law.

298 I mention this only to indicate that, in my view, consistency, while a desirable goal, has more than one aspect.

299 I return to the sample of prior cases mentioned in the judgment of the Chief Judge at Common Law. Of those the subject of detailed examination in paras [226]-[253] the range of starting points of head sentences appears to be 7½ years (Tran (NSW)) to 13 years and 4 months (Tanadi (WA)). (The sentences imposed on Ngui and Tiong [2000] VSCA 78; 2 (2000) 1 VR 579) (Victoria) were of 5 years with a non-parole period of 3 years and 4 months, but it is not possible to identify the starting point. The court at first instance had said that, but for future cooperation pledged, the offenders would have been sentenced to 9 years with non-parole periods of 6 years. It did not quantify the reduction allowed in respect of past assistance, which was significant, or the pleas of guilty. On appeal, the Crown conceded that the starting point of 9 years was manifestly excessive. The Victorian Court of Appeal held that, but for promised future cooperation, the sentences would have been of 6 years with non-parole periods of 4 years. Again, the Court did not specify any reduction allowed in respect of past assistance or the pleas of guilty. In my opinion, these sentences ought to be left out of account in the analysis of whether the sentence imposed upon the present respondent was outside the available range to the extent that past sentencing practises are indicative.)

300 To state the range of sentences previously imposed does not throw any real light upon the circumstances in which the individual sentences were imposed. The quantity of drugs involved varies widely. When the starting points of sentences are measured against the quantity involved only, any appearance of consistency evaporates.

301 Few of the offenders in this sample were more than “mere couriers”. Those that were are Viera (a “middle man”) and Teehan (not a principal, but played an “important and significant” role) (Viera v R; Teehan v R [2006] NSWCCA 401; Hovorka (unreported, NSWDC, 17 December 2007) (“more than a courier” but “relatively low in the hierarchy”); Saputra (a “principal” or “importer”). Viera conspired to import a moderate quantity of cocaine (381 grams) and had prior convictions. The starting point of his sentence was 12½ years. Teehan conspired to import 601 grams of cocaine; he had no prior convictions. The starting point of his sentence was 13½ years. Hovorka imported almost 1.5 kilograms of cocaine. He had no prior record. The starting point was 12 years and 10 months. Saputra imported 113 grams of methamphetamine and had a lengthy criminal record. The starting point was 8 years and 4 months.

302 The remaining offenders performed a role not dissimilar to that performed by the respondent.

303 A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.

304 But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases. It is equally well established that it would be an extraordinary proposition that a person convicted of an offence of importing prohibited drugs would escape any custodial penalty. The point I am making is that the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that “unifying principles” may be discerned: Wong and Leung, at [59].

305 In the end, the sentencing discretion is individual: it must be exercised by the individual judge, in respect of the individual offender. Significant sentencing considerations include the role played by the offender in the particular importation or enterprise, the quantity of the drug involved, and its estimated street or wholesale value (having regard, inter alia, where relevant, to its purity). Also of considerable significance are the character and antecedents of the offender (s 16A(2)(m)). This last consideration bears upon the offender’s prospects of rehabilitation, and also to any claim for leniency made on his or her behalf by reason of prior good character.

306 I turn then to the present case. The relevant circumstances in this sentencing decision were, in my opinion, generally those set out by McClellan CJ at CL at [267] – quantity, role, reward, and criminal history and prospects of rehabilitation. (I omit reference to offers of assistance, which is, in my opinion, in this case, irrelevant and neutral.)

307 The quantity of the drug has the usual significance – see Wong [67]-[78]. But it has this additional significance. The maximum penalty of 25 years is applicable to the importation of any quantity of drug from 2 grams to 2 kilograms. There must be a sliding scale of sentencing in recognition of where the quantity actually imported sits in the range specified as exposing the offender to that penalty.

308 If that were not so, then there would be no greater deterrent (general or specific) to the importation of 1.99 kilograms than there is to the importation of 2 grams. The greater the quantity, the nearer it is to the cut off point for a marketable quantity, and to the starting point of a commercial quantity, the closer to the maximum the penalty must be. Of course, quantity is not the only consideration, and must be tempered by other factors. To my mind, however, this is a case in which the quantity of the drug involved is a very significant factor. Against that must be balanced the respondent’s low level role in the hierarchy. There is no occasion to question or disturb the assessment of the sentencing judge that the respondent was engaged as a courier.

309 Also of very considerable significance is the respondent’s criminal record. Even accepting Zahra DCJ’s (unchallenged) assessment that the penalty he imposed was likely “to provide significant deterrence”, the respondent could make no claim to leniency.

310 The starting point of the sentence imposed (before reduction allowed for the plea of guilty) was 10 years and 8 months. That is well within – (indeed, about the mid-point) – of the range established historically. The question for this Court is whether the circumstances I have mentioned compelled a sentence at the upper end of that range.

311 I am not persuaded, in the circumstances of this case, that the sentence imposed was manifestly inadequate.

312 BARR AJ: I have read in draft the judgments of Allsop P, Basten JA, McClellan CJ at CL and Simpson J.

313 The facts are summarised in the judgment of the Chief Judge. On those facts, and bearing in mind the applicable maximum sentence and the sentencing results in other cases referred to by his Honour, I am not persuaded that the sentence here appealed against fell outside the sentencing judge’s proper range of discretion. I would therefore dismiss the appeal.

314 I agree, for the reasons given by the President, that there is no inconsistency under s 109 of the Constitution between s 68A Crimes (Appeal and Review) Act and the Crimes Act (Cth).

315 I agree, for the reasons given by the Chief Judge, that there is no inconsistency between s 68A Crimes (Appeal and Review) Act and s 16A(2)(m) Crimes Act (Cth) such as would prevent any of ss 68, 79 and 80 of the Judiciary Act (Cth) picking up s 68A so as to apply it to a Commonwealth offence. In that respect I also agree with the additional observations of Simpson J at [275] - [281].

**********

23/09/2010 - Decisions of Bartle and Roberti belong in the second group of cases involving the importation of a commercial quantity not in the first group. References to Bartle and Roberti need to be removed from [208]. The last two sentences of [209] are no longer correct and have been deleted. Bartle and Roberti need to be inserted into [210]. "Most" of the offenders in the second group pleaded guilty not as stated in the judgment that "all" offenders in the second group pleaded guilty. Schedule has also been updated to reflect the above. - Paragraph(s) [208]; [209]; [210]; [211]

07/03/2011 - The reference for R v Henry in the first dot point should read [1999] NSWCCA 111; 46 NSWLR 346 - Paragraph(s) [177]

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DPP (Cth) v De La Rosa [2010] NSWCCA 194

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CITATION:	Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	19 May 2010; 19 August 2010
JUDGMENT DATE:	17 September 2010
JUDGMENT OF:	Allsop P at 1; Basten JA at 72; McClellan CJatCL at 148; Simpson J at 272; Barr AJ at 312
DECISION:	Appeal dismissed.
CATCHWORDS:	APPEAL – criminal – prosecution appeal – procedure – Court undertaking its own research and investigation – further hearing accorded - CONSTITUTIONAL LAW – inconsistency of State and Federal laws – whether s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) inconsistent with s 16A of the Crimes Act 1914 (Cth) – Constitution, s 109 - CRIMINAL LAW – prosecution appeal – sentencing – whether manifestly inadequate – importation of marketable quantity of cocaine – comparison of sentences for like offences in other courts - FEDERAL JURISDICTION – prosecution appeal – sentencing – double jeopardy – application of Crimes (Appeal and Review) Act 2001, s 68A – whether s 68A inconsistent with Crimes Act 1914 (Cth), s 16A(2)(m) for the purposes of the Constitution, s 109 – whether s 68A picked up by Judiciary Act 1903 (Cth), ss 68, 79 and 80
LEGISLATION CITED:	Australian Constitution Crimes (Appeal and Review) Act 2001 (NSW) Crimes Act 1914 (Cth) Crimes Legislation Amendment Act (No 2) 1990 (Cth) Criminal Appeal Act 1912 (NSW) Criminal Code Act 1995 (Cth) Customs Act 1991 (Cth) Judiciary Act 1903 (Cth) Mental Health (Criminal Procedure) Act 1990 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251 Ah Yick v Lehmert [1905] HCA 22; 2 CLR 593 Austral Pacific Group Ltd (In liq) v Airservices Australia [2000] HCA 39; 203 CLR 136 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 Barany v R [2000] WASCA 240; (2000) 114 A Crim R 426 Berlitone v R [2009] WASCA 149; (2009) 231 FLR 383 Bibaoui [1997] 2 VR 600 Blay v R [2006] WASCA 248; (2006) 205 FLR 414 British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; 217 CLR 30 Butler v Attorney-General of Victoria [1961] HCA 32; 106 CLR 268 Cao v R [2009] NSWCCA 273 Cheatle v The Queen [1993] HCA 44; 177 CLR 541 Commissioner of Stamp Duties (NSW) v Owens [No 2] [1953] HCA 62; 88 CLR 168 Commonwealth v Hospital Contribution Fund [1982] HCA 13; 150 CLR 49 Courtney v R [2007] NSWCCA 195 Danial v R [2008] NSWCCA 15 Davidson v R [2009] NSWCCA 150 De Bonde v R [2002] WASCA 251 De Campos v R [2006] NSWCCA 51 De La Espriella-Velasco v R [2006] WASCA 31; (2006) 31 WAR 291 Diefenbach v R [1999] WASCA 4; (1999) 108 A Crim R 19 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60 Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370; 51 A Crim R 123 El-Ghourani v R [2009] NSWCCA 140 Everett v The Queen [1994] HCA 49; 181 CLR 295 Forsyth v The Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531 Gett v Tabet [2009] NSWCA 76; 254 ALR 504 Griffiths v The Queen [1977] HCA 44; 137 CLR 293 Harris v R [2004] WASCA 292; (2004) 150 A Crim R 509 Heryadi v R (1998) 19 WAR 383; (1998) 98 A Crim R 578 House v The King [1936] HCA 40; 55 CLR 499 John Robertson & Co Ltd (In liq) v Ferguson Transformers Pty Ltd [1973] HCA 21; 129 CLR 65 Johnson v The Queen [2004] HCA 15; 78 ALJR 616 Kelly v Saadat-Talab [2008] NSWCA 213; 72 NSWLR 305 Kwong v R (1997) 97 A Crim R 283 Lam v R [2009] VSCA 148 Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 Law v R [2006] NSWCCA 100 Le v R [2006] NSWCCA 136 Lodhi v R [2007] NSWCCA 360; 179 A Crim R 470 at 489 Lowe v The Queen [1984] HCA 46; 154 CLR 606 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Malvaso v The Queen [1989] HCA 58; 168 CLR 227 Mazzitelli v R [2002] NSWCCA 436; (2002) 135 A Crim R 132 Medina v The Queen (1990) 108 FLR 288 Milich v R [2008] NSWCCA 148 Miller v R [1999] WASCA 66 Minister for the Army v Parbury Henty & Co Pty Ltd [1945] HCA 52; 70 CLR 459 Mirza v R [2007] NSWCCA 257 Mohlasedi v R [2006] WASCA 267 Monahan v McLeod [2004] QDC 10 Navasardian v R; Petrosyan v R [2009] NSWCCA 108 Nguyen v R [2009] NSWCCA 273 Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 NP v R [2008] NSWCCA 205 P v R [2003] WASCA 180 Parry v R [2003] WASCA 222 Pedersen v Young [1964] HCA 28; 110 CLR 162 Peel v The Queen [1971] HCA 59, 125 CLR 447 Phan v R [2009] NSWCCA 273 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; (1997) 98 A Crim R 134 Putland v The Queen [2004] HCA 8; 218 CLR 174 R v Acosta [1999] NSWCCA 334 R v B [2004] WASCA 1 R v Baldock [2010] WASCA 170 R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1 R v Bartlett [2005] NSWCCA 103 R v Bateman [2000] NSWSC 915 R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430 R v Bimahendali (1999) 109 A Crim R 355 R v Carroll [2010] NSWCCA 55 R v Carstein [2007] QCA 209; (2007) 174 A Crim R 491 R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458 R v Chandler [2010] QCA 21 R v Chea and Ors [2008] NSWCCA 78 R v Chong [2009] NSWDC 377 R v Diez [2003] NSWCCA 329; (2003) 181 FLR 1 R v Do [2005] NSWCCA 258 R v Egbue (Unreported, District Court of NSW, 22 September 2003) R v Engert (1995) 84 A Crim R 67 R v Fahda [1999] NSWCCA 267 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Fry [2003] NSWCCA 329; (2003) 181 FLR 1 R v Geerlings [2007] QCA 209; (2007) 174 A Crim R 491 R v Harb [2001] NSWCCA 249 R v Hayes (1987) 29 A Crim R 452 R v Hemsley [2004] NSWCCA 228 R v Henry [2007] NSWCCA 90 R v Hoang [2006] NSWDC 185 R v Hovorka (Unreported, District Court of NSW, 17 December 2007) R v Huynh (2008) 180 A Crim R 517 R v Israil [2002] NSWCCA 255 R v Jackson (1998) 72 SASR 490 R v Jain [2004] VSCA 20 R v Jiminez [1999] WASCA 7 R v Jimson [2009] QCA 183 R v JW [2010] NSWCCA 49 R v Kaldor [2004] NSWCCA 425 R v Kevenaar & Ors [2004] NSWCCA 210 R v Klein [2001] NSWCCA 120; (2001) 121 A Crim R 90 R v Krasnov & Shlakht (1995) 125 FLR 120 R v Labanon [2006] QCA 529 R v Lake [2007] QCA 209; (2007) 174 A Crim R 491 R v Laurentiu (1992) 63 A Crim R 402 R v Lawrence (2005) NSWCCA 91 R v Le (Unreported, Victorian Court of Appeal, 19 February 2010) R v Lee [2007] NSWCCA 234 R v Liu [2005] NSWCCA 378 R v Mascaro-Varillas [2002] NSWCCA 524 R v Mattheyer (Unreported, District Court of NSW, 18 April 2008) R v Mirzaee [2004] NSWCCA 315 R v Mohammadi [2006] QCA 530; (2006) 175 A Crim R 384 R v Mokoena [2009] QCA 36; [2009] 2 Qd 351; (2009) 193 A Crim R 351 R v Muanchukingkan (1990) 52 A Crim R 354 R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493 R v Ngui and Tiong [2000] VSCA 78; (2000) 1 VR 579; (2000) 111 A Crim R 593 R v Nhu Mai Huynh Nguyen [2006] NSWCCA 369; (2006) 205 FLR 79 R v Nhu Thi Hong Ho; R v Thanh Nhu Ho [2007] NSWDC 27 R v Nikolovska [2009] NSWDC 291 R v Ntsi (Unreported, District Court of NSW, 27 August 2004) R v Okafor [2007] NSWCCA 147 R v Okeke [2005] NSWCCA 444 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v ONA [2009] VSCA 146 R v Ong [2007] VSCA 206; (2007) 176 A Crim R 366 R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525 R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451 R v Pearson [2004] NSWCCA 129 R v Perrier [1991] 1 VR 717; (1990) 59 A Crim R 164 R v PHA [2004] NSWCCA 445 R v Pham [2005] NSWCCA 314 R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26 R v Riddell [2009] NSWCCA 96 R v Roberti [2003] NSWCCA 329; (2003) 181 FLR 1 R v Robillard [2007] NSWDC 115 R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 10 R v Salcedo [2004] NSWCCA 430 R v Salles (Unreported, Queensland Court of Appeal, 20 May 1997) R v Saputra [2009] NSWDC 239 R v SC [2008] NSWCCA 29 R v Schmakowski [2001] NSWCCA 395 R v Scott [2003] NSWCCA 28 R v Skura [2004] VSCA 53 R v Springer (2007) 177 A Crim R 13 R v Springer [2009] NSWCCA 144 R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531 R v Studenikin [2004] NSWCCA 164 R v Suarez-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577 R v Talbot [2009] TASSC 107 R v Tee (1994) 61 SASR 501; (1994) 71 A Crim R 181 R v Thinh Tang (Unreported, Supreme Court of Victoria (Court of Appeal) 2 October 1997) R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v To [2007] NSWCCA 200; (2007) 172 A Crim R 121 R v Todoroski [2010] NSWCCA 75 R v Toure [2008] NSWDC 335 R v Tran [2007] QCA 221; 172 A Crim R 436 R v Trang (Unreported, District Court of NSW, 16 February 2007) R v Tsay [2006] QCA 423 R v Tsiarias [1996] 1 VR 398 R v Verdins [2007] VSCA 102; (2007) 16 VR 269 R v Vo; R v Tun Thanh Tran [2006] NSWCCA 165 R v W [2002] NSWCCA 192; (2002) 129 A Crim R 400 R v Wangsaimas [1997] HCA 51; (1997) 190 CLR 378 R v Wong [1999] NSWCCA 420, 48 NSWLR 340 R v Wright (1997) 93 A Crim R 48 R v Wright [2003] WASCA 56; (2003) 138 A Crim R 390 Radebe v R [2001] WASCA 254; (2001) 162 FLR 313; (2001) 122 A Crim R 559 Rohde v Director of Public Prosecutions [1986] HCA 50, 161 CLR 119 Saint-Gobain Abrasives Pty Ltd v McPherson [2009] NSWCA 214 Seng v R [2007] NSWCCA 335 Sevilla v R [2007] WASCA 116 Soewandi v R [2002] WASCA 315 Solomons v District Court of New South Wales [2002] HCA 47; 211 CLR 119 Speer v R [2004] NSWCCA 118; [2005] NSWCCA 333 Tan v R [2009] VSCA 148; (2009) 22 VR 706 Tanadi v R [1999] WASCA 188 Tansakun v R [1997] HCA 51; (1997) 190 CLR 378 Taylor v R [2007] WASCA 146; (2007) 172 A Crim R 430 Teng v R [2009] VSCA 148; (2009) 22 VR 706 The Queen v Credit Tribunal; Ex parte General Motors Acceptance Corporation (“GMAC case”) [1977] HCA 34; 137 CLR 545 The Queen v Kiltie (1986) 41 SASR 52 The Queen v LK; The Queen v RK [2010] HCA 17 Thom v R [2001] WASCA 322; (2001) 126 A Crim R 196 Tiong [2000] VSCA 78; 2 (2000) 1 VR 579 Tsen v R [2010] WASCA 21 Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458 Tyn v R [2009] NSWCCA 146 Vanit v R [1997] HCA 51; (1997) 190 CLR 378 Vasquez-Felipe v R [2006] NSWCCA 411 Victoria v Commonwealth [1937] HCA 82; 58 CLR 618 Viera v R; Teehan v R [2006] NSWCCA 401 Weininger v R (2003) 212 CLR 629 White v R [2006] NSWCCA 340 Whittaker v The King [1928] HCA 28; 41 CLR 230 Williams v The King [No 2] [1934] HCA 19; 50 CLR 551 Wilson v Alexander [2003] FCAFC 272; 135 FCR 273 Wong v R [2009] VSCA 148 Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 X v R [2000] WASCA 355
TEXTS CITED:	Australian Law Reform Commission Report No 103, Same Crime, Same Time – Sentencing of Federal Offenders Australian Law Reform Commission Report No 44, Sentencing
PARTIES:	Director of Public Prosecutions (Cth) (Appellant) Jose Miguel Garcia De La Rosa (Respondent)
FILE NUMBER(S):	CCA 2009/1196
COUNSEL:	W J Abraham QC/L Crowley (Appellant) P Strickland SC/D O'Neil (Respondent)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Appellant) Legal Aid Commission of NSW (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/11/0045
LOWER COURT JUDICIAL OFFICER:	Zahra DCJ
LOWER COURT DATE OF DECISION:	18 June 2009