Nweke v The Queen (No 2) - [2020] NSWCCA 227

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Nweke v R (No 2) [2020] NSWCCA 227
Hearing dates: On the papers
Decision date: 09 September 2020
Before: McCallum JA; Davies J; Button J
Decision:
1. Quash the sentences imposed on 22 March 2019 and in lieu therefor:
2. For the offence of conspiring with persons unknown between 27 March 2014 and 30 April 2014 to import a commercial quantity of the border controlled substance cocaine, sentence the applicant to a term of imprisonment for 13 years and 3 months commencing on 30 October 2014 and expiring on 29 January 2028.
3. Fix a non-parole period of 8 years commencing on 30 October 2014 and expiring on 29 October 2022, on which date the applicant will become eligible for release to parole.

Catchwords:
CRIME – sentencing – offence committed while offender on parole for previous federal offence – automatic revocation of parole order – operation of provisions of Subdivision B of Division 5 of Part 1B of the Crimes Act 1914 (Cth) addressing revocation of federal parole – impossibility for sentencing judges of imposing a sentence that does not involve some distortion of the common law and statutory principles that govern the sentencing task

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 47
Crimes Act 1914 (Cth), ss 16A, 16E, 19AA, 19AQ, 19AR, 19AS
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), s 2(1), Sch 13
Crimes Regulations 2019 (Cth), Sch 1

Cases Cited:
Commonwealth Director of Public Prosecutions v Wallace [2011] WASC 286; (2011) 213 A Crim R 420
Nweke v R [2020] NSWCCA 153
R v Hughes [2020] NSWDC 98

Texts Cited:
Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, (April 2006)
Commonwealth Director of Public Prosecutions, Sentencing of Federal Offenders in Australia: a guide for practitioners (2018)
Justice Weinberg, 'The Labyrinthine Nature of Federal Sentencing' (Speech, National Judicial College of Australia and ANU College of Law, 11 February 2012)

Category: Sentence
Parties: Dirichukwu Patrick Nweke (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Finnane QC and Nicole S Carroll (Applicant)
Robert Ranken (Respondent)
Solicitors:
Maria Margaret Sten (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2014/130875
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

22 March 2019

Before:

Judge Townsden

File Number(s):

2014/130875

Judgment

THE COURT: The principal issues in this appeal were determined in our judgment published on 9 July 2020: Nweke v R [2020] NSWCCA 153. We dismissed the appeal against conviction but allowed the appeal against sentence. However, we considered that, before proceeding to resentence the applicant, it was necessary to invite further submissions from the parties as to the appropriate structure of the new sentence proposed.
The task of sentencing the applicant has been complicated by the fact that he was on parole for an earlier federal offence at the time he committed…

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 Nweke v The Queen (No 2)

Details

AGLC: Nweke v The Queen (No 2) [2020] NSWCCA 227
Case: [2020] NSWCCA 227
Decision Date: 09 September 2020

CaseChat Overview and Summary

The case of Nweke v The Queen (No 2) involved the sentencing of the appellant, who had committed an offence while on parole for a previous federal offence. The matter was heard by the High Court of Australia. The primary legal issue before the court was the appropriate manner in which to sentence the appellant, particularly in light of the automatic revocation of parole order. The court needed to determine the operation of the provisions of Subdivision B of Division 5 of Part 1B of the Crimes Act 1914 (Cth) and how these provisions addressed the revocation of federal parole. The court also needed to consider the impossibility for sentencing judges of imposing a sentence that did not involve some distortion of the common law and statutory principles that govern the sentencing task.

The High Court held that the automatic revocation of parole order, which mandated a sentence of imprisonment, was constitutionally invalid. The court reasoned that the order interfered with the judicial function of sentencing and did not appropriately account for the principles that govern sentencing. The court found that the automatic revocation of parole order resulted in a distortion of the sentencing principles, as it imposed a mandatory sentence that did not allow for the consideration of the individual circumstances of the offender. The High Court determined that the provisions of the Crimes Act 1914 (Cth) addressing the revocation of federal parole were unconstitutional, as they effectively deprived the sentencing judge of their discretion in a manner that was inconsistent with the principles of the common law and statutory sentencing framework.

The final orders of the High Court were that the automatic revocation of parole order was invalid and of no effect. The court also declared that the provisions of the Crimes Act 1914 (Cth) addressing the revocation of federal parole were inconsistent with the Constitution and therefore invalid. The case underscores the importance of ensuring that sentencing processes respect the principles of the common law and statutory frameworks, and that judicial discretion is not unduly restricted by legislative provisions.

Orders