Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Martinez v R [2020] NSWCCA 250 Hearing dates: 23 September 2020 Date of orders: 2 October 2020 Decision date: 02 October 2020 Before: Hoeben CJ at CL [1] Rothman J at [2] Bellew J at [3] Decision: 1) Leave to appeal granted. 2) Appeal dismissed. Catchwords: CRIMINAL LAW – Offences – Sentence – Appeal – Importation of a commercial quantity of cocaine – Whether sentence manifestly excessive – Whether non-parole period manifestly excessive – Necessity to consider all relevant circumstances for the purposes of determining the non-parole period not just those circumstances favourable to the offender – Serious offending involving the importation of a substantial quantity of cocaine – Premeditated offending committed for financial gain – Reliance on sentences imposed in other cases of similar offending – Complaint of manifest excess not made out – Appeal dismissed Legislation Cited: Criminal Code 1995 (Cth) Cases Cited: Budiman v R (1998) 102 A Crim R 411 Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 Deakin v The Queen (1984) 58 ALJR 765; [1984] HCA 31 Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Gwardys v R [2019] NSWCCA 62 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Klomfar v R [2019] NSWCCA 61 Le Cerf v R (1975) 13 SASR 237 Lindsay v R [2012] NSWCCA 124 PO v R [2020] NSWCCA 219 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 R v Amati [2019] NSWCCA 193 R v Dodd [1991] 57 A Crim R 349 R v Holland (2011) 205 A Crim R 429; [2011] NSWCCA 65 R v Riddell (2009) 194 A Crim R 524; [2009] NSWCCA 96 Vaiusu v R [2017] NSWCCA 71 Category: Principal judgment Parties: Francisco Molina Martinez – Applicant Regina – Respondent Representation: Counsel: I Fraser – Applicant D Petrushnko – Respondent Solicitors: Haller Grad Lawyers – Applicant Commonwealth Director of Public Prosecutions – Respondent File Number(s): 2018/353687 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 19 December 2019 Before: Her Honour Judge Beckett Judgment 1. HOEBEN CJ AT CL: I agree with Bellew J and the orders which he proposes. 2. ROTHMAN J: I agree with Bellew J. 3. BELLEW J: On 10 July 2019 Francisco Molino Martinez (the applicant) pleaded guilty before the Local Court to a charge of importing a commercial quantity of a border controlled drug, namely cocaine, contrary to s 307.1(1) of the Criminal Code 1995 (Cth). The maximum penalty for that offence is imprisonment for life. 4. The applicant adhered to that plea when he appeared before the District Court for sentence on 8 November 2019. On 19 December 2019 he was sentenced to 7 years' imprisonment with a non-parole period of 4 years and 8 months' imprisonment. 5. The applicant now seeks leave to appeal against that sentence on the single ground discussed further below. THE FACTS OF THE OFFENDING 1. The sentencing judge found the facts of the offending to be as follows. [1] 2. On 11 November 2018 the applicant arrived at Sydney Kingsford-Smith Airport on board a flight from Santiago, Chile. He was travelling on a Spanish passport and sought to enter Australia pursuant to a tourist visa. Upon arrival, he presented his passport and incoming passenger card to an Australian Border Force Officer, stating that he intended to holiday in Australia for 11 days, and that he was not carrying anything prohibited or restricted. 3. The applicant was selected for screening which involved authorities performing an ion scan for the presence of drugs. That scan returned a positive presumptive result for cocaine. The applicant told the authorities that his suitcase had not arrived and at the conclusion of the screening, he filed a lost baggage claim before leaving the airport and checking into a hotel. 4. On the following day, 12 November 2018, Australian Border Force officers were notified of the arrival of the applicant's suitcase. The suitcase was subject to an examination which revealed the secretion of a quantity of white powder. When tested, the white powder indicated the presence of cocaine. The suitcase was then seized and given to the police. 5. On 16 November 2018 police conducted a further examination of the suitcase. This revealed what the sentencing judge described as a "highly sophisticated concealment" of three packages of white powder in the contour of the base, back and top of the suitcase, [2] the concealment having been facilitated by an alteration to the lining. The sentencing judge noted that it was accepted by the parties that the manner of secretion of the white powder reflected the conduct of "a professional enterprise". [3] 6. The white powder, which weighed 3.003kg, was found to contain cocaine. Forensic analysis established that its purity was 85.4%, yielding a quantity of pure cocaine of 2.565kg. The commercial quantity of cocaine is 1.5kg. 7. The offender gave evidence before the sentencing judge, in the course of which he described his financial position at the time of the offending as "a catastrophe", [4] a situation which he asserted had resulted from incurring a significant gambling debt. He told the sentencing judge that the persons to whom he owed that debt had offered him the opportunity to "work it off" by undertaking an overseas trip. He said: [5] They told me that the trip was a trip and I have to take a luggage or suitcase and that it would be sort of – it will cancel all the debt I have. Yeah, I would then – the debt will be cancelled. I wouldn't have any problem because of my records; I never had any record and I was clean and the people will be secure. It will be a small problem, not much. 1. When asked what he thought would happen if he did not repay the debt or undertake the proposed trip, the applicant responded: [6] I will have a very big problem … They will damage me or my family. 1. The applicant told the sentencing judge that he had been given €5000 to meet his expenses, including the cost of his travel. [7] When asked what he thought was going to be in the suitcase, the applicant responded: [8] Well, I suppose that will be drugs or money, but they told me that it will – exactly the amount to cover the debt. 1. The applicant also told the sentencing judge that it was only when he was charged that he learned of the quantity cocaine in the suitcase, and that he had not expected that it would be that much. [9] THE APPLICANT'S ROLE IN THE OFFENDING 1. Her Honour correctly observed that in matters of this nature the quantity of the drug, whilst an important consideration, was not the sole or determinative factor on sentence. [10] In any event, her Honour was not satisfied that the applicant was aware of the precise quantity of the cocaine which was in the suitcase. [11] 2. In assessing the applicant's role, her Honour correctly observed that the fact that an offender performs only a menial or limited role in an importation of prohibited drugs does not necessarily entitle that offender to any degree of leniency, and that illicit drug organisations are only able to prosper if people are ready, willing and able to perform various roles associated with such activity. [12] Her Honour went on to say: [13] The offence committed appears to have all the hallmarks of an unfortunately common importation operation. The offender is selected as the person with no criminal background, who is in a position of vulnerability that makes him accept the risk associated with the task of importation. He has something to gain, by way of the full forgiving of his financial debts. The offender was nonetheless a trusted participant, given the responsibility of bringing a substantial quantity of cocaine into Australia and built into that was the allowance for an eight day holiday whilst in Brazil. It is trite to say that the sentencing principles indicate that persons who participate in illicit drug trade must expect and receive heavy penalties and as is already implicit from what has been said above that even those who participate in what might be considered to be a courier role, are not in necessarily entitled to any special degree of leniency. 1. In reaching that conclusion, her Honour was not satisfied that the applicant had committed the offence under duress, nor was she satisfied that he had the gambling issue about which he had given evidence. [14] However, her Honour said: [15] I am nonetheless satisfied that the offender participated in the offending conduct for financial gain, in the sense that he was under financial stress and had some degree of vulnerability. I take into account that he appears to be a person not well travelled and that he comes from a reasonably modest background. I take into consideration, substantially from the implicit nature of the offending, that he was likely to have been in some state of desperation, considering the substantial risks he was prepared to take for the purposes of receiving a fairly modest sum in all the circumstances. However, as I have previously stated, this is not an uncommon phenomena for cases of this type. The quantity of the drug and the level of purity are matters relevant to the assessment of objective criminality. I accept that there is no evidence that the offender was high up in any drug importation hierarchy, nor that he had any specific knowledge as to the amount of the drug in the overall enterprise. THE APPLICANT'S SUBJECTIVE CASE 1. Her Honour concluded that the applicant had entered a plea of guilty at the earliest available opportunity. [16] She took into account the utilitarian value of that plea and accepted that it demonstrated the applicant's remorse, his acceptance of responsibility, and his willingness to facilitate the course of justice. [17] In those circumstances, her Honour allowed a discount of 25%. The applicant's remorse was also reflected in his evidence that he felt "empty" and "bad" as a consequence of his offending. [18] 2. Her Honour found that having left school at the age of 14, the applicant had been a "good worker". [19] Her Honour was also satisfied that at the time of the offending the applicant was, for whatever reason, in financial difficulties. [20] In light of the support of his family, expressed in part through a letter from his mother which was tendered, and also in light of his employment history, her Honour found that the applicant had good prospects of rehabilitation. [21] 3. In circumstances where the applicant was a foreign national who had intentionally travelled to Australia for the sole purpose of committing the offence, her Honour found that little or no weight could be given to the inevitability that he would serve his sentence in custody in Australia. However, her Honour recognised that the applicant would be culturally isolated whilst serving any sentence, rendering his period in custody more onerous. Her Honour considered that this factor should be given modest weight. [22] 4. Finally, having specifically cited a number of other cases of similar offending to which her attention had been drawn, her Honour said: [23] Of course in each case in respect of those various cases there are many distinguishing factors and some common elements. At the end of the day each case must be determined by the particular facts of the particular case. The various sentences tend to operate as yardsticks and do not fix the boundaries within which the offender should be sentenced. 1. Her Honour then imposed the sentence previously set out. 2. It should be noted that none of her Honour's findings were challenged before this Court. THE GROUND OF APPEAL – THE NON PAROLE PERIOD IMPOSED WAS, IN ALL OF THE CIRCUMSTANCES, MANIFESTLY EXCESSIVE SUBMISSIONS OF THE APPLICANT 1. Counsel for the applicant expressly conceded that the head sentence imposed by the sentencing judge was within the available range. [24] However, he submitted that there were a number of factors which were specifically relevant to the fixing of the non-parole period, and which supported the conclusion that it was manifestly excessive. These included: 1. the applicant's positive prospects of rehabilitation; 2. the absence of any suggestion that the applicant was at a high risk of re-offending; 3. the applicant's low role in the offending, coupled with the findings of the sentencing judge as to the applicant's circumstances at the time; and 4. the hardship caused to the applicant as a consequence of separation from his family, and the associated difficulties caused by language and cultural differences. 1. By reference to sentences imposed in other cases involving similar offending, it was submitted that the non-parole period imposed on the applicant was markedly higher and "not what would be expected". Counsel submitted that an analysis of those cases provided further support for the conclusion that the non-parole period imposed on the applicant was manifestly excessive, and that such a conclusion was fortified by the judgment of McClellan CJ at CL in Director of Public Prosecutions (DPP) (Cth) v De La Rosa. [25] In oral argument, counsel went so far as to submit that her Honour's remarks on sentence reflected the application of what he described as an "automatic" non-parole period of 66% of the head sentence which, counsel submitted, had been arrived at in the absence of any proper consideration of the sentences imposed in those other cases to which her Honour had been referred. SUBMISSIONS OF THE RESPONDENT 1. Counsel for the respondent submitted that having regard to the entirety of the relevant circumstances, the sentence imposed was well within the range available to the sentencing judge and was neither unreasonable nor plainly unjust. 2. Counsel for the respondent emphasised that the applicant had participated in the importation for financial gain, and had travelled to Australia for the sole purpose of committing the offence. It was submitted that the prescribed maximum penalty of life imprisonment constituted an important yardstick, and that the sentence imposed was wholly consistent with the finding of the sentencing judge as to the objective seriousness of the offending, and with her Honour's assessment of the applicant's subjective case. 3. Finally, it was submitted that the sentence imposed was not outside of the range of the sentences imposed in the cases to which the sentencing judge was referred, so as to suggest error. CONSIDERATION 1. In order to succeed on a ground of appeal asserting manifest excess, the applicant must establish the sentence imposed is unreasonable or plainly unjust. In Vaiusu v R [26] R A Hulme J summarised the relevant principles in the following terms: [28] … (a) Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. (b) Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. (c) It is not to the point that this Court might have exercised the sentencing discretion differently. (d) There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. (e) It is for the applicant to establish that the sentence was unreasonable or plainly unjust. 1. A principal submission advanced on behalf of the applicant was that there were a number of factors which supported a conclusion that the non-parole period imposed was manifestly excessive. [27] However, all of those factors were subjective and thus favourable to the applicant. Whilst they were obviously relevant considerations for the sentencing judge, subjective circumstances, however strong, cannot be permitted to lead to the imposition of a sentence that does not properly reflect the objective gravity of the offending. [28] 2. Moreover, when sentencing for a Commonwealth offence there is no fixed ratio, as between the head sentence and the non-parole period, which must be adopted by a sentencing judge. The determination of the non-parole period is not to be made from a fixed starting point, whether expressed as a percentage of the head sentence or otherwise. A sentencing judge must determine the length of any non-parole period by reference to a number of principles, the most fundamental of which are that: 1. the non-parole period represents the minimum period that justice requires an offender to serve; and 2. the determination of its length is to be made having regard to all of the relevant circumstances. [29] 1. Contrary to the tenor of the applicant's submissions, the relevant circumstances which a sentencing judge must consider are not confined to those which are favourable to the applicant. They include, obviously, factors going to the objective seriousness of the offending. In that regard, the seriousness with which the Parliament views the importation of commercial quantities of narcotics is reflected in the maximum penalty of life imprisonment. Courts have long recognised the importance of general deterrence in sentencing for offences of this kind. [30] 2. It is also necessary to emphasise that the offending in the present case involved a degree of planning which saw the applicant travel from Ibiza to Barcelona, to Buenos Aires, to São Paulo (where he stayed for eight days and collected the suitcase containing the drugs [31] ), to Santiago, and then to Sydney. This was not an opportunistic or impulsive endeavour. It was one which was carefully planned and premeditated for the purposes of financial gain. [32] 3. Further, the fact that her Honour found that the role played by the applicant was less than that played by others involved in the enterprise did not (as her Honour correctly pointed out) lead to a conclusion that the applicant was entitled to any special degree of leniency. In cases of this kind there is no inevitable correlation between an offender who is found to have been in the lower echelon of a hierarchy, and the severity of the punishment that he or she can expect to, and will, receive. [33] In Gwardys v R [34] I observed: [42] [T]he applicant's criminality must be assessed by a consideration of his involvement in the steps which were taken to effect the importation. Importantly, it is his criminality which must be assessed. The fact that another person may be characterised as the "mastermind" does not mean that a person in the applicant's position, who was responsible for effecting the actual importation into Australia, is properly described as having only a middle (or indeed, lower) level of responsibility. The relevant inquiry must centre upon what the applicant actually did. [43] Put simply, the applicant imported a significant quantity of a prohibited drug into Australia. In doing so, he helped to facilitate and promote large scale international drug trafficking. Even if it is accepted that his place in some notional hierarchy was low, that does not mean that his role was insignificant. On the contrary, without him performing the role that he did, the importation could not have been effected. 1. I also said the following in Klomfar v R: [35] It has been observed on numerous occasions that those who act as the applicant did in this case perform an essential role in the process of organised drug trafficking. If an organisation is starved of such recruits, it will collapse. That demonstrates the significance of the role undertaken by the applicant. 1. The role undertaken by the applicant was, for the same reasons as those expressed in Gwardys and Klomfar, a significant one. That significance stems from the fact that without the applicant playing the role that he did, the importation could not have been effected. All of these observations are particularly relevant in a case such as the present, where the quantity of cocaine imported was substantially in excess of the commercial quantity. [36] 2. In support of the complaint of manifest excess, the applicant also relied significantly upon sentences imposed in cases of what were said to be like offending. In that regard it is necessary to make two particular observations. Firstly, consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles. [37] Secondly, and consistent with that principle, this Court has recently emphasised that establishing manifest excess by reliance upon sentences imposed in other case depends upon an applicant establishing that that the difference between the sentence imposed, and the sentences imposed in other cases, was such that it may be concluded that there must have been some misapplication of principle or, where the sentence imposed was so far outside of the range of sentences available, there must have been error. [38] 3. I accept that in each of the cases to which this Court and the sentencing judge were referred, the offending was broadly the same. Equally there were, as might be expected, differences, not only in the factual circumstances surrounding the offending but also in respect of the respective subjective cases of the offenders. A history of sentencing, whilst it may establish a range of sentences imposed, does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range. It is an error to regard an established range as fixing the boundaries within which sentencing judges must, or even ought to, sentence. Ranges of sentences imposed in other cases are no more than historical statements of what has occurred in the past. Whilst they are capable of being used as a yardstick, it is only by examination of the entirety of the circumstances that have given rise to the sentence that any unifying principles can be discerned. In the end, the sentencing discretion is individual, and must be exercised by the individual judge in respect of the individual offender. [39] 4. In the present case, the sentencing judge correctly applied these principles. [40] In doing so, her Honour pointed out the obvious, namely that each case must be determined on its own particular facts and circumstances. Having reviewed the authorities to which the Court was taken, and for the same reasons as those expressed by the sentencing judge, I am not persuaded that, taken individually or collectively, they support a conclusion that the sentence imposed in the present case was manifestly excessive. 5. Moreover, I reject the submission advanced on behalf of the applicant that her Honour's remarks on sentence reflect the application of what counsel for the applicant described as an "automatic" non-parole period of 66%, which had been arrived at in the absence of any proper consideration of the sentences imposed in those other cases to which her Honour had been referred. There is nothing whatsoever in her Honour's remarks on sentence which supports that conclusion. On the contrary, it is clear that in determining sentence, her Honour considered the entirety of the evidence before her, along with the cases to which she was referred, and that she took into account all relevant considerations. 6. Finally, the applicant's reliance on the judgment of McClellan CJ at CL in De La Rosa in support of a conclusion of manifest excess was in my view misplaced. In De La Rosa his Honour undertook an extensive review of cases involving sentences imposed in respect of the importation of narcotics. In doing so, he grouped the cases into categories by reference to particular criteria. However, what his Honour said did not amount to a guideline judgment. It is always the position that each case must be determined on its own facts, and not by reference to a category into which it might be said to fall, a fact which was emphasised by his Honour in the subsequent case of R v Holland: [41] [3] Much of the argument in the appeal focused upon the "Categories of offence" which I developed in the course of my reasons in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28. Some of my remarks may have been misunderstood. When preparing my reasons in De La Rosa it became increasingly apparent that there were many significant decisions with respect to the sentence for individual offenders which had never been gathered together and analysed. The number is such that to merely list them without further classification was likely to be of modest assistance to practitioners and judges required to sentence future offenders. As I said in my reasons in De La Rosa, so as to assist others to readily access the information I grouped the decisions by reference to common characteristics, so far as they could be identified. However it would be wrong to sentence an offender by seeking out the "category" into which they fit and imposing a sentence which is thought to be appropriate for an offence which happens to have the characteristics found in that category. 1. Subsequent decisions of this Court have made it clear, if any clarification were needed, that the categories formulated by McClellan CJ at CL in De la Rosa are not binding, and that the criminality of an offence necessarily depends upon an evaluative assessment of all relevant factors. [42] That is precisely the assessment that the sentencing judge undertook in the present case. 2. For all of these reasons, the ground of appeal is not made out. CONCLUSION 1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. ********** Endnotes 1. Commencing at ROS 2. 2. ROS 2. 3. ROS 3. 4. T6.43. 5. T10.11 – T10.15. 6. T11.24 – T11.26. 7. T11.40 – T11.44. 8. T11.3 – T11.4. 9. T14.47 – T15.2. 10. ROS 4. 11. ROS 4. 12. ROS 5. 13. ROS 6-7. 14. ROS 12-13. 15. ROS 13-14. 16. ROS 1. 17. ROS 17. 18. T14.43 – T14.45. 19. ROS 14. 20. ROS 16. 21. ROS 16. 22. ROS 17. 23. ROS 18-19. 24. Applicant's written submissions at [38]. 25. [2010] 79 NSWLR 1; [2010] NSWCCA 194. 26. [2017] NSWCCA 71 at [28]-[29] citations omitted. 27. Set out at [25] above. 28. R v Dodd [1991] 57 A Crim R 349 at 354; R v Amati [2019] NSWCCA 193 at [120]. 29. See generally Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 at 627-628; Deakin v The Queen (1984) 58 ALJR 765; [1984] HCA 31 at 766; Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 at 566; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [40]. 30. See R v Riddell (2009) 194 A Crim R 524; [2009] NSWCCA 96 at [57]-[58] and the authorities cited therein. 31. T12.19-T12.20. 32. See De La Rosa per McClellan CJ at CL at [262], citations omitted. 33. Budiman v R (1998) 102 A Crim R 411 at 413-414 per Wood CJ at CL citing the observations of Wells J in Le Cerf v R (1975) 13 SASR 237 at 239. 34. [2019] NSWCCA 62 at [42]-[43]. 35. [2019] NSWCCA 61 at [40]. 36. Budiman at 414 per Wood CJ at CL cited in Klomfar at [41]. 37. Hili at [48]-[49]. 38. PO v R [2020] NSWCCA 219 at [37] per Hoeben CJ at CL. 39. De La Rosa at [303]-[305] per Simpson J (as her Honour then was). 40. At [22] above. 41. (2011) 205 A Crim R 429; [2011] NSWCCA 65 at [3]. 42. See for example Lindsay v R [2012] NSWCCA 124 at [7]-[8] per Allsop P (as his Honour then was). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 October 2020