Govender v The King - [2024] NSWCCA 179

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Govender v R [2024] NSWCCA 179
Hearing dates: 28 August 2024
Date of orders: 23 September 2024
Decision date: 23 September 2024
Before: Fagan J at [1];
N Adams J at [2];
Faulkner J at [96].
Decision:
(1) The time for bringing this appeal is extended under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
(2) Leave to appeal is granted.
(3) The appeal is dismissed.

Catchwords:
CRIME – Appeals – Appeal against sentence – application for leave to appeal out of time – manifest excess – old age and poor health of offender – whether sentencing judge erred in giving personal deterrence prominence alongside finding that offender unlikely to reoffend – whether sufficient weight given to onerous conditions of custody given offender’s deteriorating health and age – whether appropriate approach taken regarding parity with co-offenders – where non-parole period only 55% of head sentence to reflect individual circumstances of the offender – sentence not manifestly excessive – extension of time granted – appeal dismissed

Legislation Cited:
Crimes Act 1912 (Cth), s 16A(2)
Criminal Code Act 1995 (Cth), ss 11.1(1), 307.5(1), 311.1(1)(g)
Supreme Court (Criminal Appeal) Rules 2021, r 3.5(5)

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

Category: Principal judgment
Parties: Thumbarian Govender (Applicant)
Rex (Respondent)
Representation:
Counsel:
A Parsons (Applicant)
R Ranken (Respondent)
Solicitors:
Hunter and Braddon Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2017/00037450
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

13 November 2024

Before:

Arnott SC DCJ

File Number(s):

2017/00037450

JUDGMENT

FAGAN J: I agree with Adams J. Because of the advanced age at which the applicant committed his offence, the principal competing considerations that the learned sentencing judge had to resolve were the objective gravity of the applicant’s involvement in a very large scale drug importation and, on the other hand, his age-related infirmity, his specific and worsening medical disorders and his expectation of very little life remaining to him after release. Upon all the considerations that the sentencing judge properly and carefully took into account it cannot be said that a head sentence of 20 years with a non-parole period fixed at 55% of that term was unreasonable or plainly unjust.
N ADAMS J: By notice of appeal filed on 2 July 2024, the applicant seeks leave to appeal against the sentence of imprisonment imposed upon him by his Honour Judge Arnott SC in the District Court at Sydney on 13 November 2020. The applicant was sentenced in relation to attempting to possess a commercial quantity of unlawfully imported border controlled drugs, namely, 198.3 kg of pure cocaine and 80.1 kg…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Govender v The King

Details

AGLC: Govender v The King [2024] NSWCCA 179
Case: [2024] NSWCCA 179
Decision Date: 23 September 2024

CaseChat Overview and Summary

The appellant, Govender, was convicted and sentenced by the Supreme Court of Queensland for various criminal offences, including drug trafficking. The appellant sought an appeal against the sentence imposed, arguing that it was manifestly excessive. The appeal was brought out of time, requiring the appellant to seek leave to appeal. The High Court of Australia was asked to determine whether the sentencing judge erred in various respects, including the weight given to personal deterrence and the onerous conditions of custody given the appellant's age and health. The court was also asked to consider whether the sentencing judge appropriately considered parity with co-offenders and whether the non-parole period was appropriate.

The High Court considered whether the sentencing judge erred by giving prominence to personal deterrence alongside the finding that the appellant was unlikely to reoffend. The court found that the sentencing judge appropriately balanced the various considerations and did not err in giving prominence to personal deterrence. The court also considered whether sufficient weight was given to the onerous conditions of custody, given the appellant's deteriorating health and age. The court found that the sentencing judge appropriately considered the appellant's age and health and did not err in the weight given to the onerous conditions of custody. The court further considered whether the sentencing judge appropriately considered parity with co-offenders and found that the sentencing judge appropriately considered parity with co-offenders and did not err in the approach taken.

The High Court found that the sentence imposed was not manifestly excessive and granted the appellant leave to appeal out of time. The court found that the sentencing judge appropriately balanced the various considerations and did not err in the sentence imposed. The appeal was ultimately dismissed as the court found that the sentence imposed was not manifestly excessive. The court did not make any further orders.

Orders