DERRINGTON v The Queen
[2008] NSWCCA 94
•19 February 2008
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 dismissedPARTIES: Regina
John Anthony DERRINGTONFILE NUMBER(S): CCA 2007/3029 COUNSEL: Crown: PG Ingram
Applicant: J Stratton SCSOLICITORS: Crown: S Kavanagh DPP
Applicant: S O'Connor LACLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/1000 LOWER COURT JUDICIAL OFFICER: Mahoney ADCJ
2007/3029
19 February 2008McCLELLAN CJ AT CL
HULME J
MATHEWS AJ
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 reflected the decisions of those sentencing Judges.
7 It was submitted that by comparison with these statistics the sentence imposed on the applicant was erroneous.
8 This court has made the point on numerous occasions that statistics have their limitations. At best they are but a guide, and they do not show the circumstances of the offenders reflected in them: Furthermore, that the primary question is not where among the statistics the applicant falls but whether, given the circumstances, a particular sentence reflects the relevant legislative provision.
9 In R v Spiteri [1999] NSWCCA 3 at [52] – [53] I had occasion to reflect on the remarks of Barwick CJ in Griffiths v R and while I would hesitate, and do not find it necessary in that case, to differ from the remarks of the Chief Justice, it has also to be borne in mind that statistics have a tendency to be self perpetuating, and often the additional consideration and reflection which this Court is able to give to matters of sentence are of more weight than merely the statistics reflecting what the sentencing Judges have done.
10 One of the factors which is particularly relevant in this case is the applicant's record. He was born in 1961, and in 1976 he was fined for possession of cannabis. He seems to have been dealt with by courts for something of an order of another 30 cases. His record includes numerous offences of dishonesty for which sentences of up to 5 years have been imposed. He has been sentenced on at least 3 occasions for possession of cannabis.
11 In 1996 he received a sentence of 2 years imprisonment for possessing heroin and in 2005 another sentence for possessing heroin. In 2005 he was fined for possessing drugs with the intention to sell or supply. That last mentioned offence was, of course, subsequent to the offence with which the Court is presently concerned, but it does tend to provide support for the conclusion which Judge Mahoney drew that the applicant was nowhere near the starting point on the road to rehabilitation.
12 Clearly, he is a recidivist, and was at the time of commission of the subject offence someone who had not learnt from the sentences which had previously been imposed upon him.
13 During the course of the hearing of the appeal I invited counsel to seek to argue the case from first principle rather than the statistics. In his submissions he chose to say nothing about considerations of general deterrence, personal deterrence, the protection of the community, retribution or rehabilitation, the five purposes of sentencing referred to in Veen v R [No 2] [1987-1988] 164 CLR 465 at 476.
14 Counsel did however refer the Court to four cases he suggested were comparable – R v Phillips [2003] NSWCCA 373; Postlewaight v R [2007] NSWCCA 230; R v Salazar [2004] NSWCCA 13; and R v Williams (unreported, CCA, 5 August 1993).
15 A consideration of those confirms in my view that the sentence imposed in this case was within range. I would add to those cases another decision of Lu v R [2007] NSWCCA 74 where this Court upheld a sentence of just under 5 years for an offender involved with 24 grams of heroin and who had pleaded guilty.
16 When one reflects on the terms of the legislation, the purposes which the Drug Misuse and Trafficking Act seeks to serve in reducing the misery, crime and degradation which drug taking leads to, and the cases to which I have referred I have no doubt that the sentence imposed was well within the proper range of sentences for the applicant's offence.
17 Consequently there was no error in the sentence Judge Mahoney imposed. No lesser sentence should have been passed, and I would propose that leave to appeal be given but that the appeal be dismissed.
18 MCCLELLAN CJ at CL: I agree with the orders proposed by Justice Hulme. As his Honour has indicated the cases to which the court was referred together with reference to the available statistics indicates that the sentence imposed on the applicant was well within the appropriate range for the offence having regard to his personal circumstances including his significant criminal record.
19 Although, of course, the statistics must be used with care, there is nothing in the statistics presented by counsel which would indicate, in my view, that the sentence was other than within the appropriate range.
20 MATHEWS AJ: I also agree with the orders proposed by Justice Hulme and with his reasons.
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