R v Hendricks - [2001] NSWCCA 396

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Hendricks [2001] NSWCCA 396

FILE NUMBER(S):
60333/00

HEARING DATE(S): 28 September 2001

JUDGMENT DATE: 28/09/2001

PARTIES:
Rgina
Aliem Hendricks

JUDGMENT OF: Heydon JA Wood CJ at CL Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

COUNSEL:
Crown: M. Allnutt
Applicant: P. Boulten

SOLICITORS:
Commonwealth DPP

CATCHWORDS:
CRIMINAL LAW - appeals - appeal against sentence - importation of trafficable quantity of cocaine - low level courier - sentence at top end of the range - whether discount for plea inadequate - whether error of law in exercise of sentencing discretion - discounting of sentences for pleas of guilty authoritatively stated in guideline judgments - need to distinguish between application of guideline judgment and enunciation of what are said to be further principles of law derived from the guideline judgment itself by two judge benches.

LEGISLATION CITED:
Customs Act 1901 s 233B
Criminal Appeal Act 1912 s 6(3)

DECISION:
Leave to appeal granted. Appeal dismissed

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60333/00

HEYDON JA
WOOD CJ AT CL
CARRUTHERS AJ

FRIDAY 28 SEPTEMBER 2001

REGINA V ALIEM HENDRICKS

Judgment

HEYDON JA: I will ask Wood CJ at CL to deliver the first judgment.
WOOD CJ AT CL: This applicant seeks leave to appeal against the severity of a sentence imposed by his Honour Judge Solomon in the District Court, on 1 June 2000, following his plea of guilty to one count of importing into Australia a trafficable quantity of cocaine to which section 233B of the Customs Act 1901 applied. He had offered that plea in the Local Court and adhered to it when appearing for sentence in the District Court.
The sentence pronounced was one of six years and six months to commence from the date of his arrest, with a non-parole period of four years and three months.
Facts
The Crown case was incontestable since the applicant was arrested at Sydney Airport upon his arrival, having swallowed fifty-two objects containing cocaine. The total net weight of cocaine in the objects, which were later passed by him, was 162.7 grams. As such the case fell into the category of offences characterised in the guideline judgment of Wong & Leung (1999) 48 NSWLR 340 as one involving a courier and a low level trafficable quantity.
The offence was committed solely for the purpose of financial gain, in that the anticipated reward to the applicant for the transportation of the cocaine was US$10,000.
At the time of his arrest the applicant denied having concealed any drugs internally. He withdrew his consent for an internal examination. When interviewed by police he declined to answer any questions, as was his right.
When spoken to by a Probation & Parole Officer he gave a very different version of events to that offered to the Court. In that report it was noted that he appeared to be lacking in remorse.
It…

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 R v Hendricks

Details

AGLC: R v Hendricks [2001] NSWCCA 396
Case: [2001] NSWCCA 396
Decision Date: 28 September 2001

CaseChat Overview and Summary

The Court of Criminal Appeal in New South Wales heard an appeal by an individual against their sentence for importing a trafficable quantity of cocaine. The appellant, who was arrested at Sydney Airport after swallowing fifty-two objects containing cocaine, was sentenced to six years and six months in prison, with a non-parole period of four years and three months. The appellant argued that the sentence was too severe, considering the plea of guilty, the lack of a prior criminal record, and the personal circumstances of the offender. The central issue before the court was whether the discount for the plea of guilty was adequate and whether there was an error in the exercise of the sentencing discretion.

The court considered the precedent set by previous cases, particularly Wong & Leung, which provided a guideline judgment for sentencing in cases involving low-level couriers and a trafficable quantity of drugs. The court noted that the discount for the plea of guilty should reflect the utilitarian value of the plea, which is independent of the strength of the Crown's case. The court also considered the principle established in Thomson & Houlten and Lo, which suggested a discount of twenty to twenty-five percent for an early plea. The court distinguished between the application of guideline judgments and the enunciation of further principles derived from these judgments by two-judge benches. The court concluded that while the discount for the plea of guilty was a relevant consideration, it was not the sole factor in determining the appropriate sentence.

The Court of Criminal Appeal ultimately upheld the original sentence, finding no error in the exercise of the sentencing discretion. The court held that the sentence, while at the top end of the range, was appropriate given the circumstances of the case. The appellant's personal circumstances and remorse were considered but did not warrant a significantly lower sentence. The court also found that the discount for the plea of guilty was adequate, taking into account the precedent set by previous cases.

The final orders of the court were to dismiss the appeal and affirm the original sentence of six years and six months with a non-parole period of four years and three months. The court emphasized the importance of considering both the guideline judgments and the principles derived from them in the exercise of sentencing discretion.

Orders

Orders of the court

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Background

Background to the litigation

The sentence pronounced was one of six years and six months to commence from the date of his arrest, with a non-parole period of four years and three months. Facts The Crown case was incontestable since the applicant was arrested at Sydney Airport upon his arrival, having swallowed fifty-two objects containing cocaine. The total net weight of cocaine in the objects, which were later passed by him, was 162.7 grams. As such the case fell into the category of offences characterised in the guideline judgment of Wong & Leung (1999) 48 NSWLR 340 as one involving a courier and a low level trafficable quantity. The offence was committed solely for the purpose of financial gain, in that the anticipated reward to the applicant for the transportation of the cocaine was US$10,000. At the time of his arrest the applicant denied having concealed any drugs internally. He withdrew his consent for an internal examination. When interviewed by police he declined to answer any questions, as was his right. When spoken to by a Probation & Parole Officer he gave a very different version of events to that offered to the Court. In that report it was noted that he appeared to be lacking in remorse. It was submitted by his Counsel that error was evident in the fact that the sentence fell at the top of the range of five to seven years mentioned in the guideline judgment, for a low level trafficable quantity, reflecting a reduction of only six months, which when expressed as a percentage of the 'high point of the range' was equivalent to a reduction of seven per cent. This, it was submitted, was inadequate in a case where contrition was found; where there had been a plea of guilty at a very early stage; where the offender was a twenty-four year old who had no prior criminal record; who would serve the sentence separated from his family in South Africa and who was showing signs of depression. By analogy with the decision in Thomson & Houlten (2000) 49 NSWLR 383 it was submitted that a discount in the order of twenty per cent to twenty-five per cent should have been allowed for the utilitarian value of the plea, apart from any additional discount for remorse or contrition. Some reliance was placed upon the decision of a two-Judge Bench in Lo (2001) NSW CCA 271, where it was held, in a case involving an early plea, for which otherwise a trial lasting two or three days would have been required, that a reduction for the utilitarian value of the plea in the order of fifteen per cent was appropriate. That decision properly recognised that the strength of the Crown case has no relevance to the utilitarian value of the plea, which is concerned only with the time and expense which would be occasioned to the justice system in the event of a trial being necessary. Statements to that effect were made by Howie J in Carter (2001) NSW CCA 245 and by Spigelman CJ in Thomson & Houlten, the latter of which, it may be accepted, has been regarded as applicable to sentencing for Commonwealth offences; Bugeja (2001) NSW CCA 196.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WOOD CJ (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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