R v Hendricks

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 1 HEYDON JA: I will ask Wood CJ at CL to deliver the first judgment. 2 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. 3 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 4 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. 5 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. 6 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. 7 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. 8 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. 9 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. 10 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. 11 Otherwise, the decision cannot be elevated as an authority operating as a supplement to, or qualification of Thomson & Houlten to the effect that a discount of at least fifteen per cent must be given in a comparable case. 12 In that regard I would respectfully adopt the observations made recently by Sully J and Carruthers AJ in R v Hayes [2001] NSW CCA 358 as to the manner in which the decision in Lo should be approached. As Carruthers AJ observed at par 20 of his judgment:

"In careful submissions on behalf of the Crown, Ms Woodburne has drawn the Court's attention to a number of distinguishing features between Lo's case and this case. It would be sufficient, in my view, however, if I referred to the fact that two-Judge Benches of this Court are constituted to deal with cases where questions of sentencing principle are not really in issue but rather to deal with matters where there are well-established sentencing principles and the question which arises is the application of those principles to the facts of the particular case. Thus, what was said in Lo by her Honour, with due respect, must be considered in the light of that situation." 13 Sully J, similarly, made the following observations in relation to Lo at pars 42 to 44 of his judgment:

" ... it will be necessary for some time to come that two-Judge Benches of this Court distinguish very carefully between the application as a matter of fact of principles established in the guideline judgment; and the glossing of those principles by the too ready enunciation of what are said to be further principles of law derivable from the guideline judgment itself. The situation is completely clear. As matters stand, the law in this State relevant to the question of discounting of sentences for pleas of guilty is authoritatively stated in the guideline judgment itself. The law is not authoritatively stated by single instances of law-making by miscellaneous two-Judge Benches of the Court. Unless that principle is adhered to with care, the Court is going to find itself in the situation where in practically every case of a plea of guilty, there will be an argument, not based so much upon the principles established in the guideline judgment itself, but based upon adventitious statements, said to be statements of legal principle, made by two-Judge Benches of the Court". 14 It is important, for the reasons identified in that decision, and for the reasons which I have identified that Lo not be relied upon as authority for any proposition for which it does not properly stand. 15 It has become fashionable, in recent times, to seek to elevate sentencing to a precise mathematical exercise and to look to guideline judgments as a form of judicial straight-jackets. In truth, as has been repeatedly said, they provide useful guidelines, or a sounding board, for the assistance of sentencing Judges to which they should have regard when pronouncing sentence: Karacic (2001) NSW CCA 12 per Spigelman CJ at par 52. 16 Once a matter comes to this Court for leave to appeal, what must be shown, in the absence of patent misapplication of principle, is a sufficient degree of departure from a proper exercise of sentencing discretion as to reveal a latent area of law; such that some other sentence was warranted in law and should have been passed: s 6(3) Criminal Appeal Act 1912. 17 The present is not a case where any relevant sentencing principle was ignored. The fact of the plea of guilty was expressly taken into account, as were the applicant's subjective circumstances, including the somewhat favourable finding as to his contrition. The applicant is, accordingly, left with the proposition that latent error is to be assumed from the fact that the sentence fell towards the top of the range for a legitimate exercise of sentencing discretion. 18 In this regard, the remarks of Howie J in Kook (2001) NSW CCA 122 are apposite:

"Although the guideline involved in R v Wong & Leung encompasses all relevant matters including a plea; R v Thomson & Houlten (2000) 49 NSWLR 383 at 491, it does not follow that her Honour erred in choosing a sentence which is at the top of the range specified in the guideline for the quantity of drug involved. It is important to bear in mind that a sentencing guideline is indicative only and it may be departed from in the proper exercise of a sentencing discretion: R v Jurisic (1998) 45 NSWLR 209 at 220; R v Henry (1999) 46 NSWLR 346 at 356, 358. It may well be that a sentence which is outside the guideline may attract the close scrutiny of this Court to determine whether the sentence was justified by the particular facts of the matters. But the fact that the sentence imposed by her Honour is at the top of the range of sentences reflected in the guideline notwithstanding that the applicant pleaded guilty, does not necessarily require a finding that her Honour's sentencing discretion miscarried or that the sentence is manifestly excessive." 19 It was entirely appropriate that any sentence imposed in this case carry with it a strong deterrent element. The culpability of couriers remains significant, particularly in cases where their motive is purelyone of profit, whether that be for personal greed or to meet financial difficulties: Laurentiu & Becheru NSW CCA 1 October 1992; Botero NSW CCA 24 June 1998 and Virgin (2000) NSW CCA 307. 20 I am not persuaded, after reference to Wong & Leung and earlier decisions such as Doan NSW CCA 27 September 1999 and Noubuisi NSW CCA 27 March 1992, that the sentence here imposed was excessive to the point of demonstrating error. I also wish to add that the hardship experienced by a foreign national who faces incarceration after coming to this country for the specific purpose of running drugs into it, is of limited value: Ferrer-Eisis (1991) A Crim R 231 at 239 per Hunt CJ at CL and Chu NSW CCA 16 October 1998. Those who decide to chance the odds of successfully breaching the customs barrier, in the expectation of a handsome reward, need to understand that there is a significant price to pay if their luck runs out, which includes an extended dislocation from their family and friends. 21 I would grant leave to appeal but I would dismiss the appeal. 22 HEYDON JA: I agree with Wood CJ at CL. 23 CARRUTHERS AJ: I also agree. 24 HEYDON JA: The orders of the Court are, accordingly, those proposed by Wood CJ at CL.

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