Citation: R v HERNANDEZ, Jesus [2016] NSWDC 398
Court: District Court of New South Wales
Date: 9 December 2016
Judge(s): Judge S Norrish QC
Background
The offender, a Colombian national, was charged with three counts of supplying not less than a commercial quantity of cocaine (each involving 500 grams) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offences occurred in September 2014 and February 2015 at Canterbury, NSW. Each offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of ten years.
The offender participated in a joint criminal enterprise with a co-offender, Francisco Javier Trejos, who had facilitated the importation of cocaine from Colombia and recruited the offender to assist with distribution. Both men were Spanish-speaking Colombian nationals. The offender had been in custody since his arrest on 23 February 2015.
The offender pleaded guilty to all three counts on 2 August 2016, the day after the trial was listed to commence. His counsel indicated that an offer to plead guilty had been made in the week before trial, but instructions could not be confirmed until the trial date itself.
Legal Issues
- What discount should apply for a guilty plea entered at the last moment, effectively one day after the trial was listed to commence?
- How should the sentencing court apply the parity principle when sentencing a co-offender for the same three charges where the original co-offender had additional offences taken into account?
- What weight should be given to the offender's subjective circumstances, including good character, foreign nationality, financial motive, and low risk of reoffending?
- Whether special circumstances existed justifying a variation from the standard ratio of non-parole period to head sentence.
Decision
Guilty plea discount. The District Court accepted that the plea saved the community a trial of up to 15 days, providing genuine utilitarian benefit. However, because the Crown was required to prepare fully for trial and received no confirmed indication of a guilty plea until the last moment, the court allowed only a 10% discount rather than the 25% discount afforded to the co-offender Trejos, who had pleaded at the first reasonable opportunity.
Parity with the co-offender. The court undertook a careful comparison with the sentence imposed on Trejos on 29 April 2016. Trejos had received starting points of 12 years (first offence, incorporating Form 1 matters), 10 years (second offence), and 9 years (third offence), each reduced by 25% for his early plea. Because Trejos bore additional Form 1 cocaine supply matters and a proceeds-of-crime charge, his overall criminality was greater. The court treated this as a legitimate basis for differentiating the sentences, consistent with the parity principle as discussed in Postiglione v The Queen and Jimmy v R: equal justice requires like treatment for like cases, but also recognises differences in the degree of culpability.
Subjective circumstances. The court accepted that the offender was of good character prior to this offending, was an enthusiastic participant motivated by a desire to assist his family financially, and was unlikely to reoffend. No mental health issues were identified. His status as a foreign national and first-time prisoner were also noted as relevant subjective factors. These matters, while not diminishing the objective seriousness of commercial drug supply, bore on the final sentence.
Special circumstances and totality. The court found special circumstances existed, justifying a non-parole period proportionally shorter than the default under the Crimes (Sentencing Procedure) Act 1999 (NSW). Applying totality principles, the court imposed a total effective sentence of 8 years and 6 months imprisonment, with a non-parole period of 5 years, dating from 23 February 2015. The court calculated that the offender would be eligible for parole on 22 February 2020, subject to any action by the Department of Immigration and Border Protection.
Orders Made
- Total effective sentence of 8 years and 6 months imprisonment, commencing 23 February 2015.
- Non-parole period of 5 years, with eligibility for parole on 22 February 2020.
- Order for destruction of relevant prohibited drugs (to the extent not already destroyed or otherwise dealt with).
- Statement and transcripts of listening device evidence admitted as Exhibit B.
Key Takeaways
- A guilty plea entered the day after a trial was listed, where the Crown had been required to prepare fully for trial, attracted only a 10% utilitarian discount under the Thomson and Houlton guideline, significantly less than the 25% available for pleas at the first reasonable opportunity.
- The parity principle, as confirmed in Postiglione v The Queen and Jimmy v R, requires sentencing courts to treat co-offenders consistently unless there are rational grounds for disparity, such as different levels of criminality or different subjective circumstances.
- Where a co-offender was sentenced on additional Form 1 matters and a separate proceeds-of-crime charge, those factors provided a principled basis for imposing a lower sentence on the other participant in the same joint enterprise.
- Good character, low risk of reoffending, foreign national status, and first-time prisoner status were all accepted as relevant mitigating factors, even in the context of serious commercial drug supply.
- Special circumstances can justify reducing the proportion of a sentence served before parole eligibility, particularly where the offender faces specific rehabilitation challenges including immigration consequences upon release.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
Cases
- R v Thomson; R v Houlton [2000] NSWCCA 309 (guilty plea discounts)
- Postiglione v The Queen (1997) 189 CLR 295 (parity principle)
- Lowe v R [1984] HCA 46 (parity principle)
- Jimmy v R [2010] NSWCCA 60 (parity principle)
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Kemp v R [2014] NSWCCA 153