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Court of Criminal Appeal 14 May 1999

REGINA v DIAZ

[1999] NSWCCA 123

Drugs
CRIMINAL LAW CONSPIRATORS

Citation: [1999] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 14 May 1999
Judge(s): Wood CJ at CL, Bell J, Smart AJ

Background

The appellant was a 22-year-old Uruguayan woman with no prior criminal history who had come to Australia in 1996. She was convicted in the District Court on a charge of conspiracy to import not less than the commercial quantity of cocaine into Australia, a scheme involving her brother-in-law, her sister, and several others. The conspiracy involved a plan to import 50 kilograms of cocaine sourced from Bolivia, routed through Chile to Australia.

The appellant's involvement began after she travelled to South America as an interpreter for her brother-in-law, reportedly unaware of the purpose of the trip when she departed. Following her return to Australia, intercepted telephone calls revealed she conducted further negotiations with proposed cocaine suppliers in South America. The principals were arrested before any cocaine was actually imported, and all three family members subsequently co-operated with the authorities.

Shillington DCJ sentenced the appellant to five years imprisonment with a non-parole period of two and a half years. The appellant appeared in person before the Court of Criminal Appeal, seeking leave to appeal against the severity of that sentence.

  • Whether the sentencing judge failed to give proper weight to proportionality between the sentence imposed on the appellant and those imposed on her co-conspirators, particularly her brother-in-law Douglas Crombie
  • Whether the sentence was excessive having regard to the appellant's lesser role, late entry into the conspiracy, youth, and blameless background
  • Whether the sentence imposed relative to that of co-conspirator Lili Villegas gave rise to a justifiable sense of grievance

Decision

The Court of Criminal Appeal found no error in the approach taken by the sentencing judge. The sentencing judge had already recognised a hierarchy of culpability among the co-conspirators. He found Douglas Crombie to be a major player who had entered the conspiracy at an early stage and had a prior cocaine-related conviction, warranting a starting point of 15 years, reduced to 8 years with a non-parole period of 5 years on account of very substantial assistance to authorities. Cynthia Crombie's role was assessed as less serious, resulting in a starting point of 10 years, reduced to 6 years. The appellant received a sentence reflecting a starting point of 8 years, reduced to 5 years.

The Court considered the comparison with Lili Villegas, who received 7 years with a non-parole period of 4 and a half years, and found no cause for complaint given the different roles each played. The Court applied the test from The Queen v Lowe (1984) 154 CLR 606, asking whether the disparity in sentences gave rise to a justifiable sense of grievance, and concluded it did not.

The Court acknowledged the appellant's submissions regarding her initial unawareness, the circumstances of her recruitment, and her disassociation from the scheme prior to arrest. However, it noted that telephone intercept evidence established her active involvement in procuring the importation of a substantial cocaine quantity after her return to Australia. The Court reiterated its long-standing position that involvement in drug importation at commercial quantities must attract heavy custodial sentences.

Orders Made

  • Leave to appeal refused

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing disparities between co-offenders will only give rise to a justifiable grievance, in the sense described in The Queen v Lowe, where the differential cannot be accounted for by differences in culpability, criminal history, cooperation, or other legitimate sentencing factors.
  • A lesser role, late entry into a conspiracy, youth, and a blameless background are all relevant mitigating factors, but they do not override the principle that commercial-quantity drug importation offences attract substantial custodial sentences.
  • The significant reduction granted to Douglas Crombie reflected the very high level of assistance he provided to the National Crime Authority, which the Court treated as a legitimate and distinct basis for a more favourable sentence than co-offenders received.
  • No error was established in the sentencing judge's refusal to treat the appellant, her sister, and her brother-in-law as equally culpable simply because the Crown submitted they should be so treated.
  • The Court reaffirmed, citing Budiman, Moore and Weibe, and Laurentiu, that heavy custodial sentences are a consistent and expected consequence of involvement in the importation of commercial quantities of prohibited drugs.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), including ss 16A and 21E
- Customs Act 1901 (Cth)

Cases
- The Queen v Lowe (1984) 154 CLR 606
- Regina v Budiman (unreported, NSWCCA, 8 September 1988)
- Regina v Moore and Weibe (unreported, NSWCCA, 11 August 1992)
- Regina v Laurentiu (1992) 63 A Crim R 402