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
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Category: Principal judgment Parties: Thumbarian Govender (Applicant)
Rex (Respondent)Representation: Counsel:
Solicitors:
A Parsons (Applicant)
R Ranken (Respondent)
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.
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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…
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- AGLC
- Govender v The King [2024] NSWCCA 179
- Case
- [2024] NSWCCA 179
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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