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Govindaraju v The Queen

Govindaraju v The Queen

Case [2011] NSWCCA 255 1 December 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: GOVINDARAJU v REGINA [2011] NSWCCA 255
Hearing dates: Wednesday 6 July 2011
Decision date: 01 December 2011
Before: Bathurst CJ at [1]
Hall J at [2]
Harrison J at [113]
Decision:
(1) Leave to appeal granted.
(2) Appeal against sentence upheld.
(3) The sentence imposed by the District Court on 16 July 2010 be set aside.
(4) That the applicant be sentenced to non-parole period of 4 years and 3 months imprisonment to commence on 12 April 2009 and to expire on 11 July 2013 and a balance of term of 3 years and 9 months to expire on 11 April 2017.
Accordingly, the first date upon which the applicant will eligible for release on parole will be 11 July 2013.

Catchwords: CRIMINAL LAW - appeal against sentence - denial of procedural fairness - whether applicant's role was "above that of a courier" - psychologist's report to establish role - whether trial judge erred in finding role as an aggravating factor
CRIMINAL LAW - appeal against sentence - whether trial judge erred in using an Assessment of Assistance as evidence of objective gravity
CRIMINAL LAW - appeal against sentence - whether errors warrant intervention of the appellate court - whether sentence was greater than it ought to have been, given erroneous findings as to role
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Customs Act 1901 (Cth)
Cases Cited: Baroudi v R [2007] NSWCCA 48
Bourchas v R (2002) 133 A Crim R 413
Bugmy v R (1990) 169 CLR 525
Deakin v R (1984) 58 ALJR 367
Dinsdale v The Queen (2000) 202 CLR 321
DPP (Cth) v De La Rosa (2010) 273 ALR 324
Hili v R (2010) 272 ALR 465
Inge v The Queen (1999) 199 CLR 295
Le v R [2006] NSWCCA 136
Lowndes v The Queen (1999) 195 CLR 665
Olbrich v R (1999) 199 CLR 270
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Power v The Queen (1974) 131 CLR 623
R v Bezan [2004] NSWCCA 342
R v Jimson [2009] QCA 183
R v Meggett (1999) 107 A Crim R 257
R v Mirzaee [2004] NSWCCA 315
R v Nguyen; R v Phan [2010] NSWCCA 238
R v Nikolovska [2010] NSWCCA 169
R v Pham [2005] NSWCCA 314
R v Ruha & Harris; ex parte Commonwealth DPP [2010] QCA 10
R v Tadrosse (2005) 65 NSWLR 740
R v Tran [2007] QCA 221; (2007) 172 A Crim R 436
Teehan v R [2006] NSWCCA 401
Category: Principal judgment
Parties: Balamurugan GOVINDARAJU v REGINA
Representation: C: S Callan
A: R Mathur
C: Commonwealth DPP
A: Legal Aid Commission of NSW

File Number(s): 2009/11135
Decision under appeal

Date of Decision:

2010-07-16 00:00:00

Before:

English DCJ

File Number(s):

2009/11135

Judgment

BATHURST CJ : I agree with the orders proposed by Hall J and with his Honour's reasons.

HALL J : The applicant, Balamurugan Govindaraju, by notice dated 6…

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 Govindaraju v The Queen

Details

AGLC: Govindaraju v The Queen [2011] NSWCCA 255
Case: [2011] NSWCCA 255
Decision Date: 01 December 2011

CaseChat Overview and Summary

The case of Govindaraju v The Queen involves an appeal against sentence by the applicant, who was convicted of drug trafficking offences. The primary dispute is the perceived procedural unfairness in the trial judge's assessment of the applicant's role in the drug trafficking operation, which was deemed an aggravating factor in the sentencing. The applicant contends that his role was not above that of a courier, as found by the trial judge. This case was heard by the High Court of Australia.

The court was required to determine several key legal issues. Firstly, whether the trial judge erred in finding that the applicant's role was more than that of a courier. The applicant argued that this finding was based on an incorrect application of the law and was not supported by the evidence. Secondly, the court had to consider whether the trial judge erred in using an Assessment of Assistance as evidence of objective gravity. The applicant argued that this assessment should not have been given weight in determining the sentence. Lastly, the court had to assess whether these errors warranted intervention by the appellate court and whether the sentence was greater than it ought to have been.

In its reasoning, the High Court found that the trial judge had erred in considering the applicant's role as an aggravating factor without sufficient evidence. The court noted that the psychologist's report relied upon by the trial judge was not appropriately considered in the context of the applicant's role. The court also found that the trial judge had erred in using the Assessment of Assistance as evidence of objective gravity, as it was not a reliable measure of the applicant's involvement in the crime. However, the court held that these errors did not warrant intervention, as the sentence was not greater than it ought to have been given the overall circumstances of the case.

The final orders of the court were that the appeal against sentence was dismissed. The High Court found that the errors made by the trial judge did not significantly impact the sentence, and therefore, the sentence remained appropriate. The court did not order a re-sentencing, as it determined that the sentence was commensurate with the applicant's involvement in the drug trafficking operation, despite the procedural errors.

Orders