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19
Court of Criminal Appeal 10 February 1999

Regina v Barrientos

[1999] NSWCCA 1

Drugs
PLEA OF NOT GUILTY SEDNTENCING APPROPRIATE RANGE DISCOUNT FOR ASSISTANCE TO AUTHORITIES

Citation: Regina v Barrientos [1999] NSWCCA 1
Court: New South Wales Court of Criminal Appeal
Date: 10 February 1999
Judge(s): Sheller JA, Abadee J, Hulme J

Background

The appellant, a Venezuelan national, was convicted by jury of being knowingly concerned in the importation of 1.55 kilograms of pure cocaine into Australia, contrary to s 233B of the Customs Act 1901 (Cth). The cocaine had been concealed in the soles of shoes worn by two co-accused couriers who flew from Caracas via New Zealand to Sydney. The appellant collected the shoes from the couriers at a Sydney hotel, handing over USD $20,000 in exchange, and was arrested shortly afterwards.

The sentencing judge in the District Court described the appellant's role as "just above that of a mere courier," and imposed a sentence of eight years imprisonment with a non-parole period of five years, commencing from the date of arrest on 15 October 1996. The sentence reflected a one-third reduction from a starting point of twelve years, which his Honour applied to account for the absence of remissions in New South Wales.

The appellant sought leave to appeal against that sentence, raising two specific errors in the sentencing judge's approach.

  • Whether the sentencing judge erred by failing to apply any discount for the appellant's assistance to authorities following his arrest.
  • Whether the sentencing judge erred by failing to take into account the appellant's prior good character and absence of prior convictions.
  • Whether, having regard to those potential errors, the sentence of eight years was within the appropriate range for this type of offending.

Decision

The Court, by majority (Sheller JA and Abadee J), found that there was substance in the appellant's arguments regarding the failure to discount for assistance and the failure to account for prior good character. On that basis, the majority granted leave to appeal and allowed the appeal, reducing the head sentence from eight years to seven years and six months, with a non-parole period of four years and eight months.

Hulme J, in a detailed separate judgment, took a different view on the appropriate range. His Honour considered that the starting sentence was itself within range, noting the appellant's role above that of a mere courier, the absence of a guilty plea, and the substantial quantity of cocaine involved. Hulme J concluded that, even accepting some of the appellant's submissions had substance, the appeal should be dismissed rather than allowed. His Honour was therefore in dissent on the ultimate outcome.

The majority's approach resulted in a modest but meaningful reduction in both the head sentence and the non-parole period. The Court also directed that an explanation of the effect of the revised sentence be provided to the appellant by his legal advisers, as required under s 16F of the Crimes Act (Cth).

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Bellear DCJ quashed.
  • In lieu thereof, the appellant sentenced to imprisonment for seven years and six months, commencing 15 October 1996, with a non-parole period of four years and eight months expiring 14 June 2001.
  • An explanation of the effect of the sentence to be provided to the appellant by his legal advisers in accordance with s 16F of the Crimes Act (Cth).

Key Takeaways

  • A sentencing judge's failure to apply any discount for assistance provided to authorities, and failure to account for prior good character and absence of convictions, can constitute error warranting appellate intervention in drug importation sentencing.
  • The Court of Criminal Appeal confirmed that the role of an offender within a drug importation operation is a central consideration in setting the appropriate sentencing range, with the distinction between "mere courier" and a higher level of involvement carrying real weight.
  • Where an offender pleads not guilty, no discount for a guilty plea is available, and this factor weighs against any downward adjustment to the head sentence.
  • Hulme J's dissent illustrates that reasonable appellate disagreement can exist as to whether identified errors, even if accepted, are sufficient to move a sentence outside the appropriate range for the offending conduct.
  • Under s 16F of the Crimes Act (Cth), a court imposing a federal sentence is required to ensure the offender receives an explanation of the sentence's effect, a procedural obligation the Court of Criminal Appeal gave express effect to when re-sentencing.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), ss 233B, 233BB, 235(2)(d)(i)
- Crimes Act 1914 (Cth), ss 16A(2)(h), 16A(2)(m), 16F

Cases:
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Lawson (CCA, 12 December 1997, unreported)
- R v Bernier (CCA, 19 May 1998, unreported)
- R v Watson (CCA, 18 September 1998, unreported)
- R v El Karhani (referenced in judgment)
- R v Maman (referenced in judgment)