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66
Court of Criminal Appeal 14 May 1999

R v Blanco

[1999] NSWCCA 121

Also reported as (1999) 106 A Crim R 303
Drugs
APPEAL ALLOWED SPECIFIED NON PAROLE PERIOD 7 YEARS

Citation: R v Blanco [1999] NSWCCA 121
Court: NSW Court of Criminal Appeal
Date: 14 May 1999
Judge(s): Wood CJ at CL, Bell J, Smart AJ

Background

The appellant pleaded guilty in the District Court to one count of being knowingly concerned in the importation of a trafficable quantity of cocaine, contrary to s 233B of the Customs Act 1901 (Cth). The importation involved 341.2 grams of cocaine, well above the statutory trafficable threshold. The maximum penalty for the offence was 25 years' penal servitude and a substantial fine.

The sentencing judge found that the appellant's role was significantly more than that of a mere courier. Based on the accepted evidence of a co-offender, the appellant had recruited the courier, provided travel funds, arranged for a passport and ticket, issued instructions to stay silent if caught, threatened a witness, and contributed to the courier's legal defence costs after arrest.

The District Court imposed a head sentence of 12 years with a non-parole period of 8 years. The appellant was 22 at the time of the offence and 28 at sentencing, had no material prior criminal history, and had not been charged until several years after the offence. He sought leave to appeal on multiple grounds.

  • Whether the sentence of 12 years was manifestly excessive for an offender occupying a role above that of a mere courier in a cocaine importation
  • What weight should be given to a guilty plea where the offender gave evidence in sentencing proceedings designed to minimise his role
  • Whether the sentencing judge gave sufficient weight to the lengthy and unexplained delay between the offence and the charge
  • Whether the appellant's youth and clear criminal record warranted greater mitigation
  • Whether the sentencing judge correctly assessed the appellant's position in the hierarchy of those involved in the importation

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, reducing the head sentence to 10 years and 6 months with a non-parole period of 7 years. Wood CJ at CL delivered the leading judgment, with Bell J and Smart AJ agreeing.

On the guilty plea, the court found the discount was properly treated as minimal. The Crown case against the appellant was strong, and he had given sworn evidence at sentencing that was found to be deliberately designed to minimise his involvement. That conduct rendered the plea barely indicative of genuine contrition.

On delay, the court identified three recognised bases for allowing delay as a mitigating factor: the offender may have suffered prolonged uncertainty; the offender may have demonstrated rehabilitative progress in the intervening period; and there is a public interest in prompt prosecution of serious crime that militates against strict sentences for stale offences. The court found the first two considerations did not apply here, but held that the lengthy, unexplained delay in charging the appellant had not been given sufficient weight in the sentencing process. That factor created a legitimate distinction between the appellant's sentence and the 10-year head sentence imposed on the co-offender, Mr Mareno, who was a mere courier.

On age and prior character, the court confirmed that these factors carry reduced weight in serious drug importation matters. On the question of hierarchy, the court accepted that the sentencing judge had correctly identified the appellant as occupying a position well above that of a courier, and that finding was not disturbed. Taking the range of comparable cases into account, and allowing for the delay factor, the original sentence fell outside the legitimate range.

Orders Made

  • Application for leave to appeal granted and appeal allowed
  • Sentence below quashed
  • In lieu, the appellant sentenced to imprisonment for 10 years and 6 months, dating from 9 July 1997, with a non-parole period of 7 years; earliest eligible parole date 8 July 2004

Key Takeaways

  • A guilty plea attracts only minimal weight where the offender gives evidence in sentencing proceedings designed to minimise involvement, even if the plea is formally entered; the Court of Criminal Appeal confirmed the discount was properly treated as insignificant in those circumstances.
  • Unexplained and prolonged delay between an offence and prosecution is a recognised mitigating consideration at sentencing, capable of reducing a sentence even where the other usual delay factors (rehabilitative progress, uncertainty and suspense) are not present.
  • Age and prior good character are of reduced significance as mitigating factors in serious Commonwealth drug importation offences.
  • Sentencing courts are entitled to take into account conduct surrounding the importation, such as recruiting a courier, providing funds, and threatening witnesses, when assessing an offender's position in the hierarchy and therefore their objective criminality.
  • The Court of Criminal Appeal reviewed a range of comparable cases to identify a legitimate sentencing range for an offender one rung above a mere courier in a trafficable cocaine importation, confirming that a sentence must be calibrated to the specific role established on the facts.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B

Cases
- R v Ellis (1986) 6 NSWLR 603
- R v Chi Yip Wong & Sai Chue Ng (1988) 39 A Crim R 1
- R v Turner (NSWCCA, 21 August 1991, unreported)
- Todd v R (1982) 2 NSWLR 517
- Mill v The Queen (1988) 166 CLR 59
- R v Harrison (1990) 48 A Crim R 197
- R v King (NSWCCA, 24 February 1998, unreported)
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Leroy (1984) 2 NSWLR 441
- R v Chai (1992) 60 A Crim R 305
- R v Smith (NSWCCA, 20 August 1998, unreported)
- R v Budiman (NSWCCA, 8 September 1998, unreported)
- R v Raz (NSWCCA, 17 December 1992, unreported)
- R v Dinic (NSWCCA, 3 September 1997, unreported)
- R v Bernier (1998) 102 A Crim R 44
- R v Robertson (NSWCCA, 6 November 1998, unreported)
- R v Foster & D'Anna (1992) 59 A Crim R 14
- R v Kogelbauer (1992) 65 A Crim R 357
- R v Saisuwan (NSWCCA, 30 September 1994, unreported)
- R v Wu (1997) 98 A Crim R 463
- R v Dodd (NSWCCA, 30 June 1998, unreported)
- R v Mareno (NSWCCA, 4 November 1994, unreported)