Citation: R v Hernandez; R v Mendoza; R v Tiznado; R v Garcia; R v Munoz [2019] NSWDC 882
Court: District Court of New South Wales
Date: 19 December 2019
Judge: Norrish QC DCJ
Background
Five Chilean nationals travelled to Australia in late 2018 and carried out a coordinated series of break, enter and steal offences across New South Wales. The offenders arrived separately between September and October 2018, operating in two loosely overlapping groups: one comprising Mr Mendoza, Ms Hernandez and Mr Garcia, and another comprising Mr Munoz and Mr Tiznado.
Each offender provided a false address to immigration officials on arrival, nominating hostel bookings that none of them honoured. The agreed statement of facts recorded that the purpose of these false declarations was to avoid detection while committing offences, strongly implying the group travelled to Australia with the intention of committing crimes.
Each offender faced multiple charges of breaking, entering and stealing, participating in a criminal group (under s 93T of the Crimes Act 1900), knowingly dealing with the proceeds of crime (under s 193B of the Crimes Act 1900), and a Commonwealth offence under the Migration Act for making false declarations to immigration officials. All five pleaded guilty.
Legal Issues
- What aggregate sentences were appropriate for each offender, applying the principles of totality (ensuring the combined sentence is not crushing) and parity (ensuring like offenders receive comparable treatment)?
- What discount applied to each offender's sentence for early guilty pleas, including in respect of the Commonwealth offence?
- How did the circumstances of custody for foreign nationals, including likely immigration detention and removal after release, bear on sentencing?
- How should the court treat the fact that each offender entered Australia for the express purpose of committing offences?
- What were the appropriate indicative sentences for individual offences within the aggregate sentences under s 53A of the Crimes (Sentencing Procedure) Act 1999?
Decision
His Honour applied a 25 per cent discount across all offenders and all charges to reflect the utilitarian value of early guilty pleas. In respect of the Commonwealth Migration Act offences, the court applied the same discount, noting that the sentencing of Commonwealth offences permitted recognition of both the utilitarian benefit and the facilitation of justice flowing from a guilty plea, following the approach in Xiao.
The Commonwealth offence was treated as serious, but not at the highest level of such conduct. His Honour noted the false declarations were made to avoid detection while committing property offences rather than to facilitate terrorism, drug importation or similar graver conduct. A pre-discount sentence of twelve months was fixed for most offenders, with a slightly reduced figure for Ms Hernandez given her particular circumstances around the hostel booking.
The court treated the deliberate entry to Australia for the purpose of committing professional burglaries as a significant aggravating feature. His Honour was satisfied beyond reasonable doubt, even where individual offenders had not expressly admitted this purpose, that the totality of the evidence established it. The independently booked but uniformly unattended hostel reservations across three offenders who arrived separately were treated as strong circumstantial evidence of a pre-planned criminal enterprise.
In applying totality and parity, the court imposed meaningfully differentiated sentences to reflect the varying levels of involvement and individual circumstances of each offender. Mr Mendoza, assessed as the most culpable, received the longest sentence of eight years with a non-parole period of four years and nine months. Ms Hernandez, who had no prior criminal history and whose dependence on her partner bore on her level of culpability, received the shortest sentence of five years with a non-parole period of two years and nine months.
Orders Made
- Ms Hernandez: Aggregate sentence of 5 years imprisonment; non-parole period of 2 years and 9 months; eligible for parole on 26 August 2021. Commonwealth offence: 8 months imprisonment, concurrent.
- Mr Mendoza: Aggregate sentence of 8 years imprisonment; non-parole period of 4 years and 9 months; eligible for parole on 27 August 2023. Commonwealth offence: 9 months imprisonment, concurrent.
- Mr Garcia: Aggregate sentence of 7 years imprisonment; non-parole period of 4 years and 3 months; eligible for parole on 26 February 2023. Commonwealth offence: 9 months imprisonment, concurrent.
- Mr Tiznado: Aggregate sentence of 5 years imprisonment; non-parole period of 3 years; eligible for parole on 20 November 2021. Commonwealth offence: 9 months imprisonment, concurrent.
- Mr Munoz: Aggregate sentence of 5 years and 6 months imprisonment; non-parole period of 3 years and 3 months; eligible for parole on 21 February 2022. Commonwealth offence: 9 months imprisonment, concurrent.
- Indicative sentences were provided for individual offences within each aggregate sentence in accordance with s 53A of the Crimes (Sentencing Procedure) Act 1999.
- Participation in a criminal group charges were dealt with on a Form 1 in respect of each offender.
Key Takeaways
- Entering Australia with the premeditated purpose of committing property offences was treated as a significant aggravating feature, and the District Court was prepared to find that purpose established beyond reasonable doubt from circumstantial evidence, even where individual offenders had not expressly admitted it.
- A 25 per cent discount for early guilty pleas applied consistently across both State and Commonwealth charges; for the Commonwealth offence, the sentencing framework permitted recognition of both the utilitarian benefit of the plea and the facilitation of the course of justice.
- Parity principles required that sentencing differences between co-offenders be explicable by reference to genuine differences in individual circumstances and culpability, not simply by the fact of joint offending.
- The false declaration offence under the Migration Act occupied a mid-range of objective seriousness: more serious than a mere administrative irregularity, but less serious than false declarations made to facilitate terrorism, drug importation, or other graver conduct.
- Where multiple offenders are sentenced together, totality requires the court to ensure that the aggregate sentence for each individual is not disproportionate to the totality of that person's offending, assessed against their particular subjective circumstances.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 93T, 193B
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 17A, 21A, 53A, 54A
- Migration Act 1958 (Cth)
Cases:
- Attorney General's Application Number 1 (2002) 56 NSWLR 147
- Bugmy v R [2013] HCA 37
- De La Rosa [2010] NSWCCA 194
- Holder v R (1983) 3 NSWLR 245
- Jimmy v R [2010] NSWCCA 60
- Johnson v R (2004) 78 ALJR 616
- MAK (2006) 167 ACrimR 159
- Mapp [2010] NSWCCA 269
- Markarian v R (2005) 228 CLR 357
- Mill v R (1998) 166 CLR 59
- Muldrock v R (2011) 244 CLR 120
- Pearce v R (1998) 194 CLR 610
- Postiglione v R (1997) 189 CLR 295
- Quintero and ors [2018] NSWCCA 190
- R v Ponfield (1999) 48 NSWLR 327
- R v Tepania [2018] NSWCCA 247
- R v XX (2009) 195 ACrimR 38
- Veen v R (No 2) (1988) 164 CLR 465