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Court of Criminal Appeal 19 February 2008

DERRINGTON v R

[2008] NSWCCA 94

Drugs

Citation: Derrington v R [2008] NSWCCA 94
Court: NSW Court of Criminal Appeal
Date: 19 February 2008
Judge(s): Hulme J; McClellan CJ at CL; Mathews AJ

Background

The appellant was convicted in the District Court of deemed supply of cocaine involving 25 grams at 36 per cent purity. He had flown into Sydney from Perth on a midnight flight and was apprehended at the airport before boarding a return flight. The cocaine was found concealed internally during a search.

The sentencing judge, Mahoney ADCJ, imposed a total term of four years imprisonment with a non-parole period of three years. In reaching that sentence, his Honour found the appellant was involved in a sophisticated drug operation and took into account police intelligence from Western Australia and associated notations on the appellant's criminal record.

The Crown conceded on appeal that the sentencing judge had not been entitled to rely on those matters, meaning the Court of Criminal Appeal was required to consider the sentence afresh. The sole substantive issue before the Court became whether the sentence was manifestly excessive.

  • Whether the sentencing judge erred by relying on Western Australian police intelligence and record notations that should not have been taken into account
  • Whether, assessed afresh, the sentence of four years imprisonment with a three-year non-parole period was manifestly excessive for the offence of deemed supply of 25 grams of cocaine

Decision

The Crown's concession that the sentencing judge had improperly relied on certain material required the Court to re-examine the sentence independently. The Court considered Judicial Commission statistics showing that of 120 offenders convicted for comparable offences between 2000 and 2007, only three received a higher head sentence than the appellant. The appellant's counsel relied heavily on those statistics to argue manifest excess.

The Court rejected the submission that the statistics alone could establish error. Hulme J observed that statistics are, at best, a guide and do not reveal the individual circumstances of the offenders they reflect. His Honour also noted a tendency for statistics to be self-perpetuating, and that the additional reflection this Court brings to sentencing questions carries significant weight beyond what the raw statistics disclose.

The appellant's criminal record was a central factor in the Court's assessment. The record spanned roughly 30 matters dating back to 1976, included multiple offences of dishonesty attracting sentences of up to five years, and encompassed several prior drug-related convictions including possessing heroin in 1996 and 2005. The Court described the appellant as a recidivist who had not been deterred by earlier sentences, and noted a 2005 conviction for possession with intent to supply provided further support for that conclusion.

Comparing the sentence against four cases identified by counsel, as well as an additional comparable decision involving 24 grams of heroin, the Court was satisfied the four-year term fell well within the appropriate range. All three judges agreed that no lesser sentence should have been passed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Sentencing statistics drawn from Judicial Commission data are a guide only; they do not reveal the individual circumstances behind each sentence and cannot, by themselves, establish that a sentence is manifestly excessive.
  • A sentencing court's improper reliance on police intelligence and associated record notations will require an appellate court to re-examine sentence afresh, but this does not automatically produce a reduced sentence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a significant recidivist history, including prior drug supply and dishonesty offences, can justify a sentence near the upper end of the statistical distribution for an offence.
  • Statistics have a tendency to be self-perpetuating, and the Court of Criminal Appeal noted that its own considered reflection on sentencing ranges carries more weight than a mechanical application of statistical benchmarks.
  • The primary sentencing question remains whether a particular sentence reflects the relevant legislative purposes, including general and personal deterrence, protection of the community, retribution, and rehabilitation, rather than where the sentence sits relative to statistical averages.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act (NSW)

Cases
- Griffiths v R (1989) 167 CLR 372
- R v Spiteri [1999] NSWCCA 3
- Veen v R (No 2) (1987-1988) 164 CLR 465
- R v Phillips [2003] NSWCCA 373
- Postlewaight v R [2007] NSWCCA 230
- R v Salazar [2004] NSWCCA 13
- R v Williams (unreported, CCA, 5 August 1993)
- Lu v R [2007] NSWCCA 74