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Court of Criminal Appeal 2 October 2020

Martinez v R

[2020] NSWCCA 250

Drugs
CRIMINAL LAW OFFENCES SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE WHETHER NON

Citation: Martinez v R [2020] NSWCCA 250
Court: NSW Court of Criminal Appeal
Date: 2 October 2020
Judge(s): Hoeben CJ at CL, Rothman J, Bellew J

Background

The appellant was a Spanish national who arrived at Sydney Kingsford-Smith Airport in November 2018 on a tourist visa, travelling from Santiago, Chile. Australian Border Force officers detected cocaine concealed within the lining of his suitcase in what both parties accepted was a "highly sophisticated concealment" bearing the hallmarks of a professional operation. The suitcase contained 3.003 kg of cocaine at 85.4% purity, yielding 2.565 kg of pure cocaine. The commercial quantity threshold for cocaine is 1.5 kg.

The appellant told the sentencing judge that he had accumulated a significant gambling debt and was recruited to carry the suitcase in exchange for cancellation of that debt and €5,000 for expenses. He claimed he suspected the suitcase contained drugs or money but did not know the precise quantity. The sentencing judge did not accept that he acted under duress or that the gambling debt claim was established, though she accepted he was in genuine financial difficulty and had some vulnerability.

The appellant pleaded guilty at the earliest opportunity and was sentenced in the District Court on 19 December 2019 to 7 years' imprisonment with a non-parole period of 4 years and 8 months. He sought leave to appeal to the Court of Criminal Appeal on the single ground that the sentence, and in particular the non-parole period, was manifestly excessive.

  • Whether the total sentence of 7 years was manifestly excessive for importing a commercial quantity of cocaine contrary to s 307.1(1) of the Criminal Code 1995 (Cth)
  • Whether the non-parole period of 4 years and 8 months was manifestly excessive when viewed against sentences imposed in comparable cases
  • Whether the sentencing judge erred in her approach to fixing the non-parole period by failing to give sufficient weight to circumstances favourable to the appellant

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, with Bellew J delivering the principal judgment and Hoeben CJ at CL and Rothman J agreeing.

The Court found that the sentencing judge had correctly identified and applied the relevant sentencing principles. The judge recognised that a courier role does not automatically attract leniency, because drug importation organisations depend on individuals willing to perform exactly that kind of role. She also correctly observed that drug quantity, while important, is not the sole determinative factor.

On the non-parole period, the appellant argued that the ratio of the non-parole period to the head sentence was too high when compared with other similar cases. The Court rejected this, confirming that a sentencing court is required to consider all relevant circumstances when fixing the non-parole period, not only those favourable to the offender. The Court noted that premeditation and financial motivation were significant aggravating factors properly weighed in that assessment.

The appellant also sought to rely on the sentencing "categories" developed in DPP (Cth) v De La Rosa [2010] NSWCCA 194 as a benchmark. The Court reaffirmed that those categories are not binding and do not operate as a sentencing tariff. The criminality of each offence requires an independent evaluative assessment of all relevant circumstances, which the sentencing judge had properly undertaken.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A courier's limited or menial role in a drug importation does not automatically reduce objective criminality: illicit drug organisations rely on such participants, and this factor is properly weighed against any claimed vulnerability.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that when fixing a non-parole period, a sentencing court must consider all relevant circumstances, including those that weigh against the offender, not merely those that are favourable.
  • The sentencing categories formulated in DPP (Cth) v De La Rosa are not binding benchmarks: subsequent decisions of the Court of Criminal Appeal have made clear that each offence requires an independent evaluative assessment of all relevant factors.
  • Where an offender is a foreign national who travelled to Australia specifically to commit the offence, little or no weight attaches to the hardship of serving a sentence away from home, though cultural isolation during custody may be given modest weight.
  • No error was established in the sentencing judge's approach to the objective seriousness of the offending, the discount for early guilty plea, or the structure of the sentence, and the complaint of manifest excess was not made out.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), s 307.1(1)

Cases
- Budiman v R (1998) 102 A Crim R 411
- Bugmy v The Queen (1990) 169 CLR 525
- Deakin v The Queen (1984) 58 ALJR 765
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Gwardys v R [2019] NSWCCA 62
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Klomfar v R [2019] NSWCCA 61
- Le Cerf v R (1975) 13 SASR 237
- Lindsay v R [2012] NSWCCA 124
- PO v R [2020] NSWCCA 219
- Power v The Queen (1974) 131 CLR 623
- R v Amati [2019] NSWCCA 193
- R v Dodd [1991] 57 A Crim R 349
- R v Holland (2011) 205 A Crim R 429; [2011] NSWCCA 65
- R v Riddell (2009) 194 A Crim R 524; [2009] NSWCCA 96
- Vaiusu v R [2017] NSWCCA 71