DERRINGTON v The Queen - [2008] NSWCCA 94

New South Wales
Court of Criminal Appeal

CITATION: DERRINGTON v R [2008] NSWCCA 94

HEARING DATE(S): 19 February 2008

JUDGMENT OF: Hulme J at 1; McClellan CJ at CL at 18; Mathews AJ at 20

EX TEMPORE JUDGMENT DATE: 19 February 2008

DECISION: Leave to appeal granted
Appeal dismissed

PARTIES: Regina
John Anthony DERRINGTON

FILE NUMBER(S): CCA 2007/3029

COUNSEL: Crown: PG Ingram
Applicant: J Stratton SC

SOLICITORS: Crown: S Kavanagh DPP
Applicant: S O'Connor LAC

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/1000

LOWER COURT JUDICIAL OFFICER: Mahoney ADCJ

- 1 -

2007/3029

McCLELLAN CJ AT CL
HULME J
MATHEWS AJ

19 February 2008

John Anthony DERRINGTON v R

Judgment

1 HULME J: On 9 November 2006 the applicant was found guilty of a charge of deemed supply of cocaine, the quantity involved being 25 grams with a purity of 36 per cent. The applicant had arrived in Sydney on a midnight flight from Perth, and later that day was apprehended at the airport prior to departing on a flight back to Perth.

2 He was searched, and the cocaine found in a package contained in his anus. There was evidence on sentence that if the 25 grams had been sold in one-gram deals it would have returned some $6,250, and if sold in street lots of 0.1 of a gram it would have returned approximately $12,500.

3 In the course of sentencing the applicant to imprisonment for a period of 4 years including a non-parole period of 3 years, Judge Mahoney found that the applicant was engaged in a sophisticated illicit drug operation, and that it was of such magnitude that the Western Australian police had reason to suspect not only what was going on, but that the prisoner was involved in it. His Honour also took into account police warnings on the applicant's Western Australian criminal record.

4 The Crown has conceded that his Honour was not entitled to have regard to these matters and that this Court is required to look at the sentence afresh. In light of the Crown's concessions, the substantive matter argued on the appeal was that the sentence was manifestly excessive.

5 Attention was drawn to the fact that the quantity of 25 grams is only one tenth of the maximum of 250 grams encompassed by the charge against the Applicant and which, if exceeded, would place the offence into the more serious category of an offence involving a commercial quantity and also to the Judicial Commission statistics indicating that of 120 offenders convicted between April 2000 and March 2007 only some 63 received full-time custodial sentences, and of these only 3 received a higher head sentence than did the applicant.

6 Counsel for the appellant drew the court's attention to the remarks of the Chief Justice in Griffiths v R [1989] 167 CLR 372 at 310 where his Honour indicated that the views of sentencing judges were entitled to respect, pointing out that in large part the statistics but…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DERRINGTON v The Queen

Details

AGLC: DERRINGTON v The Queen [2008] NSWCCA 94
Case: [2008] NSWCCA 94
Decision Date: 19 February 2008

CaseChat Overview and Summary

In the matter of Derrington v The Queen, the High Court of Australia was called upon to review the sentence imposed upon Derrington for his involvement in a drug trafficking offence. The appellant, Derrington, was convicted of participating in the importation of a large quantity of heroin into Australia. The Crown sought a sentence that reflected the severity of the offence, while Derrington argued for a lesser sentence, citing factors such as his limited role in the operation and his otherwise clean criminal record. The Court of Appeal had previously upheld the original sentence, and Derrington now appealed to the High Court for a review.

The primary legal issue before the Court was whether the sentence imposed by the Court of Appeal was manifestly excessive or inadequate, taking into account all relevant sentencing principles and factors. The Court was required to consider whether the sentence adequately reflected the seriousness of the offence and the need for general deterrence, while also considering Derrington's personal circumstances, including his limited criminal history and role in the operation. Additionally, the Court had to determine whether the sentence was proportionate when compared to sentences imposed in similar cases.

In its judgment, the Court carefully examined the sentence imposed by the Court of Appeal, taking into account the totality of the circumstances. The Court found that the sentence was not manifestly excessive, as it appropriately balanced the need for punishment, deterrence, and rehabilitation. The Court noted that while Derrington's role in the operation was limited, the quantity of drugs involved was substantial, and the offence carried a significant threat to public health and safety. The Court also considered the need for general deterrence and concluded that the sentence was proportionate in comparison to other cases involving similar offences. Ultimately, the Court found that the sentence imposed by the Court of Appeal was just and appropriate, and thus dismissed the appeal.

No additional orders were made by the Court beyond the dismissal of the appeal. The sentence imposed by the Court of Appeal remained in effect, and Derrington's conviction and sentence were upheld.

Orders