R v Hernandez, Jesus - [2016] NSWDC 398

District Court

New South Wales

Case Name:	R v HERNANDEZ, Jesus
Medium Neutral Citation:	[2016] NSWDC 398
Hearing Date(s):	09 December 2016
Date of Orders:	9 December 2016
Decision Date:	9 December 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full-time custodial sentence. For orders see [69]
Catchwords:	CRIMINAL – supply prohibited drug – commercial quantity – cocaine SENTENCE – late plea of guilty – good character – foreign national – knowledge of the transactions – enthusiastic participant – financial motive to assist family oversees – no mental health problems – unlikely to re-offend – parity with co-offender – first time prisoner – special circumstances – totality
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	DPP (Cth) v De La Rosa [2010] NSWCCA 194 Jimmy v R [2010] NSWCCA 60 Kemp v R [2014] NSWCCA 153 Lowe v R [1984] HCA 46 Postiglione v The Queen (1997) 189 CLR 295 R v Thomson; R v Houlton [2000] 49 NSWCCA 309
Category:	Sentence
Parties:	Regina (Crown) Jesus Hernandez (Defendant)
Representation:	Counsel: Mr Mcauliffe (Crown) Solicitor: Mr Hutchinson (Defendant)
File Number(s):	2015/56775
Publication Restriction:	Nil

SENTENCE

HIS HONOUR: Jesus Hernandez appears today for sentence in relation to three offences that he pleaded guilty to on an indictment on 2 August 2016 where his trial had been listed to commence on 1 August 2016. The three offences are contrary to s 25(2) Drug Misuse and Trafficking Act 1985 and each carries a maximum penalty of 20 years imprisonment and/or 3,500 penalty units and a standard non-parole period of ten years.
The first count alleges that the prisoner supplied not less than a commercial quantity of cocaine being 500 grams of that prohibited drug on the 16th day of September 2014 at Canterbury in the State of New South Wales. The second count on the indictment alleges in its particulars the same offence but committed on the 3rd day of February 2015. The third count in the indictment alleges the commission of the same offence in its particulars on the 3rd day of February 2015.
The prisoner has been in custody since his arrest on 23 February 2015 and the time spent in custody will obviously be taken into account. The prisoner pleaded guilty, as I indicated, the day after the trial was to start. I was informed by his counsel in submissions yesterday that an offer to plead guilty to the counts on the indictment had been made in the week or so before the trial was listed but the client's instructions could not be confirmed till 1 August, the day the trial was to start.
Notwithstanding the fact, I accept that the pleading of the prisoner to the charges has saved the community a trial of some length, perhaps up to 15 days. In my view the timing of the plea and the late indication of a willingness to plead, but not yet confirmed, has meant obviously that…

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 Hernandez, Jesus

Details

AGLC: R v Hernandez, Jesus [2016] NSWDC 398
Case: [2016] NSWDC 398
Decision Date: 9 December 2016

CaseChat Overview and Summary

In the case of R v Hernandez, Jesus, the defendant was charged with the supply of a commercial quantity of cocaine, a prohibited drug. The matter was heard in a court of law where the defendant's guilt was not contested, and the court was tasked with determining the appropriate sentence. The central legal issues the court had to address were the defendant's level of involvement in the drug supply, his personal circumstances, and whether any mitigating factors warranted a departure from the standard sentencing principles.

The court considered the defendant's plea of guilty, which was entered late, and his otherwise good character. It also took into account his status as a foreign national and the financial motive behind his involvement, which was to support his family overseas. The court found that the defendant was not only a participant in the drug supply but also an enthusiastic one. The court further noted the defendant's lack of mental health problems and his low likelihood of re-offending. These factors, alongside the defendant's parity with a co-offender, his status as a first-time prisoner, and special circumstances, were all considered in the totality of the case.

After weighing all the factors, the court determined that a full-time custodial sentence was appropriate. The court noted that while the defendant's involvement in the drug supply was significant, the mitigating factors presented a nuanced picture of his circumstances. The court balanced these factors, ensuring that the sentence was proportionate to the offence and the defendant's personal situation. The final orders of the court mandated a full-time custodial sentence, with specific details provided in the subsequent paragraphs of the judgment.

Orders

Orders of the court

Full-time custodial sentence. For orders see [69]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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