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4
Court of Criminal Appeal 28 September 2001

R v Hendricks

[2001] NSWCCA 396

Also reported as 125 A Crim R 303
Drugs
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE LOW LEVEL COURIER SENTENCE AT TOP END OF THE RANGE WHETHER DISCOUNT FOR PLEA INADEQUATE

Citation: R v Hendricks [2001] NSWCCA 396
Court: NSW Court of Criminal Appeal
Date: 28 September 2001
Judges: Heydon JA, Wood CJ at CL, Carruthers AJ

Background

The applicant pleaded guilty to importing a trafficable quantity of cocaine into Australia, contrary to section 233B of the Customs Act 1901. He was arrested at Sydney Airport having swallowed 52 pellets containing a total of 162.7 grams of cocaine, for which he was to receive US$10,000. He had offered his plea in the Local Court and maintained it in the District Court.

Judge Solomon in the District Court sentenced the applicant to six years and six months imprisonment, with a non-parole period of four years and three months. The sentence fell towards the top of the five-to-seven year range identified in the guideline judgment of Wong and Leung for low-level trafficable quantity courier offences.

The applicant sought leave to appeal on the ground that the sentence was excessive, arguing in particular that the discount allowed for his early guilty plea was inadequate.

  • Whether the sentencing judge erred by imposing a sentence at the top of the guideline range despite an early guilty plea, the applicant's youth, lack of prior record, and expressions of contrition
  • Whether a discount of 20 to 25 per cent for the utilitarian value of the plea was required, by analogy with the guideline judgment in Thomson and Houlten
  • Whether a two-judge bench decision (Lo) established a binding principle that a discount of at least 15 per cent must be given for an early plea in comparable cases
  • Whether the sentence demonstrated latent error sufficient to warrant appellate intervention under section 6(3) of the Criminal Appeal Act 1912

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. Wood CJ at CL, with whom Heydon JA and Carruthers AJ agreed, found no identifiable error in the exercise of sentencing discretion. The sentencing judge had expressly taken into account the guilty plea and the applicant's subjective circumstances, including a finding favourable to contrition.

A central issue was the status of Lo, a two-judge bench decision that had been cited as authority for a minimum 15 per cent discount for the utilitarian value of an early plea. Wood CJ at CL rejected that characterisation, adopting observations from Sully J and Carruthers AJ in Hayes. Two-judge benches of the Court of Criminal Appeal are constituted to apply established sentencing principles to the facts of particular cases, not to enunciate new legal principles that supplement or qualify guideline judgments. Lo could not properly be read as imposing a mandatory minimum discount.

The court reiterated that guideline judgments are not judicial straitjackets. A sentence at the top of the guideline range does not, without more, demonstrate that the sentencing discretion miscarried. The fact that a trial may have been avoided does not by itself compel a particular mathematical reduction, and the utilitarian value of a plea is one consideration among many in the overall exercise of discretion.

On the particular facts, the court accepted that a strong deterrent element was appropriate. The applicant had acted purely for financial gain, had initially denied concealing drugs and withdrew consent to internal examination, and a probation officer noted an apparent absence of remorse. The hardship of serving a sentence separated from family overseas was given limited weight, the court observing that foreign nationals who enter Australia for the specific purpose of importing drugs and are apprehended must accept the consequences.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentence at the top of a guideline range is not, on that fact alone, demonstrative of error; guideline judgments provide a framework for sentencing discretion, not a formula to be applied mechanically.
  • Two-judge benches of the Court of Criminal Appeal do not carry authority to enunciate new legal principles that supplement or qualify guideline judgments; their proper function is to apply established principles to particular facts.
  • Discounting for the utilitarian value of a guilty plea is a matter of overall sentencing discretion rather than a precise mathematical exercise, and decisions of two-judge benches cannot convert that discretion into a mandatory minimum percentage.
  • Under section 6(3) of the Criminal Appeal Act 1912, an applicant must demonstrate sufficient departure from a proper exercise of sentencing discretion to show that some other sentence was warranted in law, not merely that the outcome appears high within a legitimate range.
  • The personal hardship of foreign nationals serving custodial sentences away from their families carries limited mitigating weight where the offender entered Australia specifically to import drugs for financial gain.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Wong and Leung (1999) 48 NSWLR 340 (guideline judgment for drug importation offences)
- R v Thomson and Houlten (2000) 49 NSWLR 383 (guideline judgment on discounts for guilty pleas)
- R v Lo [2001] NSWCCA 271
- R v Hayes [2001] NSWCCA 358
- R v Carter [2001] NSWCCA 245
- R v Bugeja [2001] NSWCCA 196
- R v Kook [2001] NSWCCA 122
- R v Karacic [2001] NSWCCA 12
- R v Jurisic (1998) 45 NSWLR 209
- R v Henry (1999) 46 NSWLR 346
- R v Ferrer-Eisis (1991) 55 A Crim R 231
- R v Laurentiu and Becheru, NSW CCA, 1 October 1992
- R v Botero, NSW CCA, 24 June 1998
- R v Virgin [2000] NSWCCA 307
- R v Doan, NSW CCA, 27 September 1999
- R v Noubuisi, NSW CCA, 27 March 1992
- R v Chu, NSW CCA, 16 October 1998