R v Todoroski

[2010] NSWCCA 75

New South Wales
Court of Criminal Appeal

CITATION:	R v Todoroski [2010] NSWCCA 75 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	21 April 2010
JUDGMENT DATE:	30 April 2010
JUDGMENT OF:	Allsop P at 1; Grove J at 14; Hislop J at 33
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – Appeal against sentence – Crown appeal – whether sentence manifestly inadequate – attempt to possess marketable quantity of heroin – sentencing exercise directed to individual justice – no specific error by sentencing judge - CRIMINAL LAW – s 68A Crimes (Appeal and Review) Act 2001 – ss 68, 79 and 80 Judiciary Act 1903 (Cth) – whether s 68A Crimes (Appeal and Review) Act 2001 picked up by Judiciary Act 1903 (Cth)
LEGISLATION CITED:	Australian Constitution s 109 Crimes Act 1914 (Cth) s 16A(1) Crimes (Appeal and Review) Act 2001 (NSW) s 68A Criminal Appeal Act 1912 s 5D Criminal Code 1995 (Commonwealth) Criminal Code Act 1924(Tas) s 402 (4A) Judiciary Act 1903 (Cth) ss 68, 79 and 80
CATEGORY:	Principal judgment
CASES CITED:	El-Ghourani v R [2009] NSWCCA 140 Korgbara v R (2007) 170 A Crim R 568 Milich v R [2008] NSWCCA 148 N v R [2009] NSWCCA 108 Onuorah v R [2009] NSWCCA 238 R v Dang [2004] NSWCCA 265 R v Haidar [2004] NSWCCA 350 R v Okeke [2005] NSWCCA 444 R v Rivadavia (2004) 61 NSWLR 63; R v SC [2008] NSWCCA 29 R v Talbot [2009] TASSC 107 R v Wong (1999) 48 NSWLR 340 Western Australia v The Commonwealth [1995] HCA 47; 183 CLR 373 Weininger v The Queen (2003) 212 CLR 629 The Queen v Olbrich (1999) 199 CLR 270
PARTIES:	The Queen (Appellant) Srebre Todoroski (Respondent)
FILE NUMBER(S):	CCA 2009/6191
COUNSEL:	Mr P Hastings QC (Appellant) Dr B Glennon (Respondent)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Appellant) D H Cohen Lawyers (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/11/0293
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ
LOWER COURT DATE OF DECISION:	14 August 2009

2009/6191

ALLSOP P
GROVE J
HISLOP J

Friday 30 April 2010

R v TODOROSKI

Judgment

1 ALLSOP P: I have had the advantage of reading the reasons of Grove J. I agree with them, and with the order proposed by his Honour. In these circumstances, it is inappropriate to deal with any Constitutional issue that was put forward on behalf of Mr Todoroski impugning the Crimes (Appeal and Review) Act 2001 (NSW) (the “CAR Act”), s 68A.

2 One group of issues should, however, be mentioned. These are not, strictly speaking, Constitutional issues, though they may be seen to be of a similar character. Mr Todoroski’s conviction was for an offence under a law of the Commonwealth Parliament. The criminal proceeding and the appeal were in the exercise of federal criminal jurisdiction. The argument was put that the CAR Act, s 68A was not “picked up” by any of the possibly relevant provisions of the Judiciary Act 1903 (Cth), being ss 68, 79 and 80.

3 This was said to be so for a number of reasons, which included the Constitutional invalidity of s 68A. As I said, I do not propose to deal with those Constitutional issues.

4 Reliance was also placed on the decision of the Full Court of the Tasmanian Supreme Court in R v Talbot [2009] TASSC 107. This was a Crown appeal against sentence that involved a Commonwealth offence concerning child pornography. The Court (Blow J, with whom Crawford CJ and Porter J agreed) was required to consider the Criminal Code Act 1924 (Tas), s 402 (4A) which (though in somewhat different terms) dealt with double jeopardy as did the CAR Act, s 68A. Section 402 (4A) is in the following terms:

“ (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

(b) despite paragraph (a), must not take into account the fact that the Court's decision may mean that the person is again sentenced for the crime.”

5 The approach of the Court was set out in [19] of Blow J’s reasons, as follows:

“[19] The Commonwealth has not introduced any legislation preventing a court that allows a Crown appeal against sentence from taking into account the fact that an unsuccessful respondent is to be sentenced a second time for the same crime. Under the Crimes Act 1914 (Cth), s16A(1) , when a court is determining the sentence to be passed for a federal offence, that court must impose a sentence ‘that is of a severity appropriate in all the circumstances of the offence’. Prior to the enactment of s402(4A), it was clear that ‘double jeopardy’ in the re-sentencing process following a successful Crown appeal was to be taken into account in favour of the respondent: R v Hayes(1987) 29 A Crim R 452 ; R v Clarke [[1996] 2 VR 520)]; R v Harland-White 23/1997; Dinsdale v R[2000] HCA 54 ; (2000) 202 CLR 321 ; Attorney-General v McDonald [(2002) 11 Tas R 221]. In my view s402(4A)(b) is inconsistent with the general requirement in s16A(1) to impose a sentence that is of appropriate severity, and therefore does not apply to re-sentencing under Commonwealth legislation: Constitution , s109. Counsel did not submit otherwise at the hearing of the appeal.”

6 Section 16A(1) of the Crimes Act 1914 (Cth) is in the following terms:

“(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.”

7 The approach of the Court in Talbot was:

(a) to construe the Crimes Act 1914 (Cth), s 16A(1) as containing as part of its content the relevant common law, including the principle of “double jeopardy”; and

(b) to conclude thereby that a State law which purported to abolish double jeopardy was inconsistent with the Crimes Act , s 16A(1) under the Australian Constitution, s 109 and was, therefore, pro tanto inoperative.

8 With respect, there may be difficulties in this approach. First, it is not clear that the analysis would begin with s 109, rather than ss 68, 79 and 80 of the Judiciary Act. The co-ordinate operation of s 109, on the one hand, and the “pick up” provisions of the Judiciary Act, on the other, and their order of application is not always an easy question. Generally, any enquiry about s 109 can be seen to be the first part of the analysis, as only operative State law will be picked up. Here, however, 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. The State Act becomes relevant only through Commonwealth law making it applicable as “surrogate federal law”. Thus, it may be problematic to assert that there could be any inconsistency between the State Act, as such, and the Commonwealth Act, for the purposes of s 109.

9 Secondly, if s 16A(1) does contain all relevant common law, there may be an issue as to its validity: cf Western Australia v The Commonwealth [1995] HCA 47; 183 CLR 373 at [145] and following.

10 Thirdly, s 16A(1) may assume a body of law by reference to which what is “appropriate in all the circumstances” can be judged. Ordinarily, the common law of Australia (to the extent modified by Commonwealth and State statute law) is picked up and made relevant to cases in federal jurisdiction by the Judiciary Act, s 80.

11 Thus, fourthly, there may be a real issue as to the correctness of the construction of s 16A(1) in Talbot.

12 Fifthly, if the construction of s 16A(1) is more limited than identified by Blow J in Talbot, there may be no reason (other Constitutional points aside) why the Judiciary Act, s 80 would not pick up the common law of Australia, modified by the CAR Act, s 68A, and why s 68A itself would not be picked by the Judiciary Act, s 68 or s 79.

13 I do not need to form or express final views on these points; but it seems to me that the above may be at least some of the architecture for any debate about the operation of the CAR Act, s 68A in Crown appeals against sentence on conviction for Commonwealth offences.

14 GROVE J: On 14 August 2009 the respondent was sentenced by Sorby DCJ for an offence of attempting to possess a marketable quantity of a border controlled drug (heroin) contrary to the provisions of the Criminal Code 1995 (Commonwealth). He had pleaded guilty in the Local Court and been committed for sentence. The maximum prescribed penalty in terms of imprisonment for that offence is twenty five years. The respondent was sentenced to imprisonment for 6 years 6 months with a non-parole period of 3 years 9 months.

15 The Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 on the ground that the sentence was manifestly inadequate. Contingent upon the possibility that the ground might be sustained, submissions were presented essentially concerning the application of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) in dealing with an offence against a law of the Commonwealth and concepts of equal justice between the States within the Federation. (After the hearing, the solicitor for the respondent by letter advised that it was no longer sought to argue the “unequal justice” principle.)

16 In the light of the nature of the contingency I turn first to consider whether the ground of appeal has been made out.

17 It was expressly stated in submissions on behalf of the respondent that a “factual overview” set out in Crown written submissions was not disputed. It is convenient to incorporate this:

“On 3 November 2008 a package was lodged with FedEx in Bangkok. The package was to be sent via airfreight to a ‘Miss Anna Collings’ of ’20 Somme Cres, Milperra, NSW 2214 Australia’.
No person named Anna Collings lived at 20 Somme Crescent, Milperra. Police investigations confirmed that the residents of 20 Somme Crescent were Barbara and Maurice Reid. Police also subsequently confirmed that another woman, named Julijana Dimoski, resided in a granny flat at the rear of the premises at 20 Somme Crescent.
The package consigned to Anna Collings of 20 Somme Crescent was to be collected by Julijana Dimoski, on behalf of her brother, the Respondent. Sometime prior to 3 November 2008, the Respondent had asked his sister to take delivery of the package for him and in return he would pay her approximately $2,000.
On 4 November 2008, the package arrived at the FedEx facility at Alexandria, Sydney. The package was x-rayed and inspected by Customs. It was found to contain 54 glue sticks of assorted sizes. The glue sticks were examined and each was found to contain a small section of approximately 1 cm of glue, followed by a section of grainy off-white powder.
Forensic examination by the Australian Federal Police (AFP) confirmed that the bulk weight of the off-white powder was 1,136.4g. Subsequent analysis of the powder confirmed that it contained heroin at a purity of 72.9%. The total pure weight of the heroin was 825.7g.
On 5 and 6 November 2008, the Respondent sent a number of text messages to his sister, Dimoski, providing her with information and instructions regarding the expected delivery of the package.
In accordance with those instructions, on 5 November 2008, Dimoski waited at 20 Somme Crescent to take delivery of the package, however it did not arrive. On 6 November 2008, the Respondent waited at 20 Somme Crescent to take delivery of the package, but again it did not arrive. The Respondent then sent a message to Dimoski to advise that he was concerned that the package had not arrived. He further instructed Dimoski that if there was a ‘drama’ they would reject the package.
On 11 November 2008, the AFP attempted to deliver the package to 20 Somme Crescent, Milperra. Barbara Reid told the undercover AFP officer, who was acting as a FedEx courier, that the package had been cancelled and that ‘she no longer wants it’.
Later that day AFP executed a search warrant at 20 Somme Crescent. Maurice Reid informed the police of the identity of Julijana Dimoski and confirmed that she lived in the granny flat at the rear of the house. Maurice Reid further advised that he had received a package at the address on behalf of Dimoski about a month earlier.
Subsequent enquiries with Dimoski revealed the identity of her brother, the Respondent. Dimoski advised police that she had been asked by her brother to take delivery of the package at 20 Somme Crescent. Dimoski also advised police that once the package had not arrived on 6 November, she had told Barbara Reid that the package would not be coming and that if a package was delivered it was not what she had been waiting for.
Later on 11 November 2008, the Respondent was arrested in relation to this matter. The Respondent participated in a taped record of interview with police. During the interview the Respondent stated that he had become involved in the matter at the request of a friend. He stated that the friend had asked him to provide names and addresses to which packages could be sent. He agreed to provide the friend with names and addresses so that false identification documents could be created in case they were required by the delivery company. The Respondent stated that he had previously accepted delivery of a number of packages on behalf of this other person in return for money.
The Respondent confirmed that he had asked his sister to take delivery of the package seized by police on 4 November. He stated that he was to be paid $2,500 for arranging for the collection of that package and that he was to pay his sister $2,000 and would keep $500. He further confirmed that when the package did not arrive as expected he had advised his sister not to accept the package.”

18 In his Remarks on Sentence the judge noted that, upon arrest, the respondent cooperated with police and answered questions in an interview but he added:

”The AFP inquiries into the alleged principal – a woman with whom the offender had a relationship and who had absconded overseas – has not resulted in arrests and the AFP has assessed the offender’s assistance as being of little value. The offender did identify the woman, even if she had a false name.”

19 As the terms of the ground asserting manifest inadequacy reveal, no specific error by the sentencing judge is contended by the appellant and this stance is confirmed by the final submission that “latent error” should be apparent.

20 The appellant pointed out that the amount of heroin involved was 412 times the threshold of marketable quantity (2 grams) and that the upper estimated figures of street and wholesale values of the drug were $577,990 and $487,028. His Honour made express reference to these in his remarks.

21 The respondent appreciated that the package contained illegal drugs of some sort and he admitted to police that he thought “there might have been cocaine in them or something but nothing too bad.” His Honour found that the respondent’s conduct (as summarized in the above facts) was a “crucial link in the chain of operation” and he assessed the respondent’s culpability to lie towards the upper end of the mid-range of such offences.

22 Although the appellant relied on the single ground abovementioned, reference was made to his Honour’s rejection of the Crown submission that the offence did not represent isolated conduct. The respondent had told police that he had been the recipient of “other packages” but his Honour held that he was “not prepared to draw the inference in the absence of other evidence that the other packages contained any illegal substances”. That finding was consistent with authority that facts adverse to an accused may not be taken into account against the interests of that accused unless they have been established beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270.

23 The appellant submitted:

“Acceptance of his Honour’s finding does not mean that the Respondent’s earlier conduct was an entirely irrelevant consideration. Whilst it may not have been proved that he actually committed other drug ‘offences’ in the past, it may be readily accepted that he was engaged in a course of conduct which he believed was part of an illegal drug enterprise. This fact was highly relevant to an assessment of the nature and circumstances of the offence and also highly relevant to an assessment of the Respondent’s prior character.”

24 A circumstance where “engaging in a course of conduct … believed (to be) ….part of an illegal drug enterprise” would not amount to commission of a “drug offence” is difficult to contemplate. No example was offered. Senior counsel referred to Weininger v The Queen (2003) 212 CLR 629 where, although an offender had no prior convictions, evidence establishing previous participation in drug importation was held to be relevant to diminishing any claim for leniency such as previous good character usually attracts. The situation of the respondent is obviously distinguishable from this in that it was not established, by evidence or from inference, that the “other packages” contained any illegal substances.

25 I would reject the appellant’s submission.

26 The manifest inadequacy of the sentence was sought to be demonstrated by reference to a selection of other cases which were said to be comparable and in some of which observations were made about appropriate ranges of sentence. It is not to criticise this approach that I note that every offence and every offender is different and the essential aim of all sentencing is to render individual justice. Comparable cases and statistics can be useful guides and departure from established sentencing patterns would require justification, but the exercise of sentencing discretion must be directed to fulfilment of the stated aim.

27 It is not necessary for present purposes to recapitulate the circumstances and outcomes of the cases cited and it suffices to record references: R v Wong & anor (1999) 48 NSWLR 340 (note the disapproval of the ‘guideline’ element (2001) 207 CLR 504); R v Rivadavia (2004) 61 NSWLR 63; R v SC [2008] NSWCCA 29; R v Dang [2004] NSWCCA 265; R v Haidar [2004] NSWCCA 350; R v Okeke [2005] NSWCCA 444; Korgbara v R (2007) 170 A Crim R 568; Milich v R [2008] NSWCCA 148; El-Ghourani v R [2009] NSWCCA 140; Onuorah v R [2009] NSWCCA 238; N & anor v R [2009] NSWCCA 108.

28 Against the background of these references it was submitted by the appellant that the head sentence for the respondent ought to have been set (after allowance for the plea of guilty and favourable subjective circumstances) in the range of between seven and ten years imprisonment. It was submitted that, in the light of the finding that the offence was towards the upper end of mid-range seriousness, it should not be perceived that the difference of six months between the head sentence of six and half years and the low point of the range, seven years, would invite mere “tinkering”.

29 No challenge was offered against the proportion of head sentence selected by the judge for the purpose of specifying the non-parole period at 3 years 9 months. Although it is accepted, as has often been stated, that statistics are a blunt tool, the collection of non-parole periods in some fifty cases of importation of a marketable quantity of a border controlled drug by the Judicial Commission is instructive. For this purpose, the fact that the respondent’s offence was an attempt is irrelevant.

30 The collection shows that the non-parole period to be served by the respondent is higher than 60 percent of the entirety of the cases. Counsel for the respondent has observed that, if the non-parole period was but three months longer, that proportion would elevate to 78 percent.

31 Those statistics strongly support a conclusion that the judge’s sentencing discretion has not miscarried. In order to succeed, the appellant is required to show the contrary. In my opinion the sentence imposed represented a sound exercise of sentencing discretion and the ground has not been made out.

32 I would dismiss the appeal. In that circumstance the contingency abovementioned does not arise and I would not find it necessary to comment upon the issues which were sought to be raised.

I agree with Grove J.

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03/05/2010 - Typographical error in headnote - Paragraph(s) Headnote