Citation: Regina v Jiminez [1999] NSWCCA 7
Court: NSW Court of Criminal Appeal
Date: 24 February 1999
Judges: Hulme J, Hidden J, Greg James J
Background
The appellant was convicted of importing a commercial quantity of a prohibited substance, namely 3.01 kilograms of cocaine, contrary to s 233B(1)(b) of the Customs Act. The cocaine was concealed in a suitcase that arrived in Australia as unaccompanied luggage, was intercepted by Customs, and then delivered by Federal Police to the appellant before he was arrested. His anticipated reward for acting as a courier was $30,000 plus expenses.
The appellant had an unusual personal history. He was born in Nicaragua, was taken prisoner in 1981, and spent approximately nine years in an underground cell where he was tortured and held without trial. He was eventually freed, came to Australia as a refugee around 1990, and obtained citizenship in 1992. He pleaded guilty in May 1997, though only after being served with the Crown brief and telling what the sentencing judge described as many lies to Federal Police.
Judge Craigie in the District Court sentenced the appellant to 12 years imprisonment with a non-parole period of 6 years and 8 months, both commencing 31 December 1996. The appellant sought leave to appeal, arguing the sentence was manifestly excessive compared with sentences imposed on other couriers handling comparable quantities.
Legal Issues
- Whether the head sentence of 12 years was manifestly excessive for a courier importing approximately 3 kilograms of cocaine, by reference to established sentencing ranges for comparable offences
- Whether the sentencing judge gave sufficient weight to the appellant's personal circumstances, including his prior torture and imprisonment, medical condition, rehabilitation prospects, and the increased onerousness of custody given his history
- Whether the non-parole period appropriately reflected those personal circumstances
Decision
The Court of Criminal Appeal reviewed each mitigating factor advanced on behalf of the appellant. Several factors were given little or no additional weight: the late guilty plea (coming after many lies and after receiving the Crown brief), the limited assistance to authorities, the effect of imprisonment on dependants, and the grief suffered from family losses many years earlier. The court also discounted the argument that impecuniosity distinguished this appellant from other couriers, noting evidence that he could undertake some forms of work.
On the issue of the appellant's prior torture and nine years of imprisonment without trial in Nicaragua, the court acknowledged this distinguished him from many couriers. However, it declined to give the factor great weight in relation to the head sentence, partly because Australian gaols offer better conditions than those the appellant had previously endured, and partly because the appellant had been found with a pamphlet warning of the dangers of drug dealing, indicating he had understood the risk of imprisonment when he committed the offence.
The court nonetheless found the 12-year head sentence manifestly excessive, concluding it fell outside the range established in comparable decisions, including the Court's earlier unanimous decision in Bernier. Critically, the court found the sentencing judge had not adequately accounted for the appellant's medical condition (a spinal disc narrowing), his rehabilitation prospects, and the fact that custody would be more onerous for him given his prior confinement and health.
The court reduced the head sentence to nine years and fixed a non-parole period of six years, both running from 31 December 1996. The reduced non-parole period better reflected the appellant's prospects for rehabilitation and the particular circumstances making imprisonment more burdensome in his case.
Orders Made
- Leave to appeal granted
- Appeal upheld
- Original sentence imposed by Craigie DCJ quashed
- Appellant sentenced to nine years imprisonment with a non-parole period of six years, both commencing 31 December 1996, with the non-parole period expiring 30 December 2002
- An explanation of the effect of the sentence to be provided to the appellant by his legal advisers pursuant to s 16F of the Crimes Act (Cth)
Key Takeaways
- The Court of Criminal Appeal confirmed that sentences imposed on drug couriers must be assessed against comparable cases, and a head sentence of 12 years for importing approximately 3 kilograms of cocaine was held to be manifestly excessive on the facts of this case.
- A history of torture and prolonged imprisonment without trial in another country is a relevant sentencing consideration, though it does not automatically command significant weight, particularly where the offender was demonstrably aware of the risk of imprisonment when committing the offence.
- Medical conditions affecting the onerousness of custody, combined with evidence of rehabilitation prospects, are factors that must be properly taken into account when fixing both the head sentence and the non-parole period.
- A guilty plea entered only after the accused received the Crown brief and had told repeated lies to police attracted only limited credit, with the sentencing court's scepticism about genuine contrition left largely undisturbed on appeal.
- Under s 235 of the Customs Act, importing a quantity of a prohibited drug at or above the commercial quantity threshold (2 kilograms) carries a maximum penalty of life imprisonment, placing such offences among the most serious in the federal drug regime.
Legislation and Cases Referenced
Legislation:
- Customs Act, ss 233B, 235
- Crimes Act (Cth), s 16F
Cases:
- Regina v Winchester (1992) 58 A Crim R 345
- Regina v Bernier (cited but unreported in the provided text)
- Regina v Whitney (CCA, unreported, 16 November 1997)
- Regina v Cartwright (referred to in the context of the "Cartwright discount" for assistance to authorities)