(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: