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Court of Criminal Appeal 10 September 1999

R v Armas Cajuires

[1999] NSWCCA 282

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE NARCOTIC IMPORTATION COURIER TRAFFICKABLE QUANTITY RANGE OF SENTENCE

Citation: Armas Cajuires v R [1999] NSWCCA 282
Court: New South Wales Court of Criminal Appeal
Date: 10 September 1999
Judge(s): Meagher JA, Grove J, Hidden J

Background

The applicant, a 52-year-old Guatemalan national residing in the United States, was intercepted at Sydney Kingsford Smith Airport in June 1998 carrying 712.49 grams of pure cocaine concealed in the lining of a backpack. He had been recruited as a courier, with his airfare paid and a promised total payment of $4,000. He initially gave a false account to police but ultimately pleaded guilty and gave sworn evidence acknowledging his suspicion that the bag contained something illegal.

The applicant had no prior convictions and gave evidence through a Spanish interpreter. The sentencing judge in the District Court found that the trip was a commercial venture and imposed a sentence of eight and a half years imprisonment with a non-parole period of six and a half years (approximately 76% of the head sentence).

The applicant sought leave to appeal against the severity of that sentence, arguing both that the total sentence was manifestly excessive and that the proportion of the non-parole period to the head sentence was unjustifiably high.

  • Whether a head sentence of eight and a half years was within the appropriate range for a first-time offender drug courier who pleaded guilty and imported a traffickable (but sub-commercial) quantity of cocaine.
  • Whether a non-parole period representing approximately 76% of the head sentence was justified in the applicant's circumstances.
  • How the sentencing range established in R v Ferrer-Esis had evolved through subsequent decisions, particularly R v Lawson and R v Bernier.

Decision

The Court of Criminal Appeal granted leave and allowed the appeal, finding the total sentence of eight and a half years excessive. The Court traced the evolution of the sentencing range for drug couriers through three key decisions. In Ferrer-Esis (1991), a range of eight and a half to eleven years had been identified for couriers of substantial quantities of cocaine. However, that range was established when the post-remission sentencing scheme was still new and relied heavily on pre-reform sentencing data.

Subsequent decisions revised the picture. In Lawson (1997), the Court observed that the actual pattern of sentences since Ferrer-Esis had trended lower, with the great majority for guilty pleas and no prior convictions falling below eight years. In Bernier (1998), the Court concluded that the eight and a half to eleven year range from Ferrer-Esis was now more apt for couriers importing drugs at the lower end of the commercial quantity range, implying a lower appropriate range for traffickable quantities below the commercial threshold. The quantity here, at around three-eighths of the commercial quantity threshold, did not attract the upper end of the range.

On the non-parole period, the Court noted that a proportion of 76.4% was at the very top of the accepted range for an offender with the applicant's profile. The Court cited Rodriguez, in which it had been said that a non-parole period of 75% should be reserved for worst cases, and Bernier, which identified a norm of between 60% and 66.67%. The Court found no particular features of aggravation beyond the initial prevarications with police to justify such a high proportion.

The Court noted the existence of criticism of Bernier in R v Robertson, but declined to enter into any analysis of that debate for the purposes of this appeal.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed; sentence imposed in the District Court quashed.
  • Applicant resentenced to seven years imprisonment with a non-parole period of four years and six months, commencing 6 June 1998.

Key Takeaways

  • The sentencing range of eight and a half to eleven years identified in Ferrer-Esis for cocaine couriers has been progressively refined in subsequent decisions; by 1999, that range was considered more appropriate for importations at the lower end of the commercial quantity range, not for traffickable quantities well below the commercial threshold.
  • A guilty plea combined with no prior convictions and a role as a paid courier (rather than an organiser) are significant factors that bear on where within the sentencing range a case sits.
  • Under the principles emerging from Rodriguez and Bernier, a non-parole period of 75% or more of the head sentence should be reserved for worst cases; the norm for couriers was identified as between 60% and 66.67%.
  • No error was established merely because a sentence sits at the bottom of a recognised range, but the range itself must be the correct one for the quantity and circumstances involved.
  • In dismissing the relevance of Robertson's criticism of Bernier, the Court left open for another occasion any definitive resolution of the tension between those two decisions.

Legislation and Cases Referenced

Cases:
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Lawson (1997) 98 A Crim R 463
- R v Bernier (1998) 102 A Crim R 44
- R v Rodriguez, NSWCCA, unreported, 11 March 1994
- R v Robertson, NSWCCA, unreported, 6 November 1998

Legislation:
- Section 233B of the Customs Act 1901 (Cth) (the offence provision for narcotic importation, referenced in the judgment)