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Court of Criminal Appeal 22 October 1999

Regina v Acosta

[1999] NSWCCA 334

Drugs
CRIMINAL LAW PRACTICE AND PROCEDURE APPEAL AGAINST SEVERITY OF SENTENCE NON PAROLE PERIOD UNDER COMMONWEALTH LAW

Citation: Regina v Acosta [1999] NSWCCA 334
Court: NSW Court of Criminal Appeal
Date: 22 October 1999
Judge(s): Meagher JA, James J, Kirby J

Background

The appellant was convicted by a jury in the District Court of importing cocaine into Australia contrary to section 233B of the Customs Act 1901 (Cth). The quantity involved was approximately 1.879 kilograms, approaching the prescribed commercial quantity of 2 kilograms. He had carried the drugs concealed in a bottle of liquor, claiming he was unaware of the cargo's contents, but the jury rejected that account.

At sentencing, Judge Twigg QC imposed a head sentence of 8 years imprisonment with a non-parole period of 6 years. The non-parole period represented 75 percent of the head sentence. The sentence was backdated to the appellant's arrival in custody on 4 November 1996.

The appellant sought leave to appeal against the severity of the sentence, also requiring an extension of time because the notice was filed approximately six months late. No challenge was made to the 8-year head sentence.

  • Whether the sentencing judge mistakenly treated the Commonwealth sentencing regime as equivalent to the NSW sentencing regime under the Sentencing Act 1989 when fixing the non-parole period.
  • Whether, if the sentencing judge did appreciate he had a separate discretion under Commonwealth law, the exercise of that discretion miscarried by fixing too high a non-parole period.

Decision

The Court of Criminal Appeal found that the sentencing judge had erred by treating the Commonwealth non-parole period discretion as essentially the same as the formula under section 5(2) of the Sentencing Act 1989 (NSW). A transcript of the sentencing discussion showed that the judge appeared to accept counsel's description of the Commonwealth range as "very similar" to the state regime, and the non-parole period he fixed corresponded precisely with the standard two-thirds statutory formula that applies under state law where no special circumstances exist.

Under Commonwealth law, however, the sentencing court is required to separately address the appropriate non-parole period as a distinct exercise of discretion. The Court noted that established authority confines a non-parole period of 75 percent of the head sentence to the worst class of offending. The sentencing judge had not placed the appellant in that category, and the Crown did not seek to characterise him as such.

On resentencing, the Court took into account the appellant's personal circumstances: his age (55), his lack of prior convictions in Australia or Argentina, his role as a courier rather than an organiser, his genuine contrition, his isolated circumstances in an Australian prison without family or support, his limited education, and his background of severe poverty. The Court accepted that the appropriate range for the non-parole period fell between 60 and 66 percent of the head sentence, and fixed it at 5 years.

Orders Made

  • Time for appeal extended.
  • Leave to appeal granted.
  • Appeal allowed.
  • Head sentence of 8 years confirmed, expiring 3 November 2004.
  • Non-parole period of 6 years quashed; replaced with a non-parole period of 5 years, commencing 4 November 1996 and expiring 3 November 2001.

Key Takeaways

  • The District Court's error lay in conflating the Commonwealth sentencing discretion on non-parole periods with the statutory formula under section 5(2) of the Sentencing Act 1989 (NSW). The two regimes are distinct and must be applied separately.
  • Under Commonwealth law, a non-parole period representing 75 percent of the head sentence is reserved for the worst class of offending. Setting such a period for an offender not characterised as falling into that category constitutes an error in the exercise of discretion.
  • A sentencing court's failure to separately address the Commonwealth non-parole period discretion, as distinct from the head sentence, amounts to an error that can ground a successful severity appeal.
  • Personal circumstances, including age, absence of prior convictions, role as a courier, genuine contrition, social isolation, and background of poverty, are relevant factors informing the appropriate non-parole period for Commonwealth drug importation offences.
  • James J noted that decisions of the Court of Criminal Appeal had previously approved non-parole periods exceeding two-thirds of a head sentence, indicating that the 75 percent figure is not categorically unavailable, but its use requires appropriate justification.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B
- Sentencing Act 1989 (NSW), s 5(2)

Cases
- R v Paull (1990) 20 NSWLR 427
- R v Buhar (NSW Court of Criminal Appeal, unreported, 14 October 1998)