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Court of Criminal Appeal 9 June 2000

REGINA v ROMERO-CEPEDA

[2000] NSWCCA 229

Drugs
CRIMINAL LAW SENTENCING DRUG IMPORTATION NO DISPARITY OF SENTENCE.

Citation: Regina v Romero-Cepeda [2000] NSWCCA 229
Court: Court of Criminal Appeal, New South Wales
Date: 9 June 2000
Judge(s): Spigelman CJ, Newman J, Adams J

Background

The appellant was convicted after a jury trial of being knowingly concerned in the importation into Australia of a commercial quantity of cocaine, namely 3.5739 kilograms of pure cocaine, contrary to the Customs Act 1901 (Cth). The offending involved a scheme in which cocaine-impregnated plastic folders were sent in envelopes from Colombia to various Australian addresses over a period of several months. All deliveries were intercepted by the National Crime Authority, which used a controlled delivery of approximately 655 grams to apprehend participants in the scheme.

The sentencing judge found that the appellant was the chemist sent to Australia specifically to extract cocaine from the plastic folders. He was sentenced to eleven years' imprisonment with a non-parole period of six and a half years, commencing from the date he was taken into custody in December 1996.

The appellant sought leave to appeal against that sentence, arguing that it was manifestly excessive when compared with the sentences imposed on other participants in the same criminal enterprise.

  • Whether the appellant's sentence revealed a marked and unjustifiable disparity with sentences imposed on co-offenders, such as to give rise to a justifiable sense of grievance under the principles in Lowe v The Queen and Postiglioni v The Queen.
  • Whether the sentencing judge committed legal error by declining to treat the sentence of a co-offender (Cardona) as a relevant parity reference point.
  • Whether the eleven-year head sentence with a six-and-a-half-year non-parole period was within the proper sentencing range for cocaine importation at commercial quantity.

Decision

The Court of Criminal Appeal dismissed the appeal, finding no justifiable sense of grievance when the appellant's sentence was compared with those of the other participants. A central consideration was that the appellant alone was charged with respect to the full commercial quantity of 3.5739 kilograms. The other participants were each charged with offences relating only to the smaller controlled delivery amount of approximately 655 grams, attracting a different maximum penalty under the Customs Act.

The sentencing judge's finding that the appellant was the chemist responsible for extracting the cocaine was upheld as amply supported by the evidence, including admissions made by the appellant in recorded conversations. This role was described as vital to the scheme and warranting significant weight in sentencing. The appellant's frequent contact with the Colombian principal further confirmed the centrality of his participation.

Spigelman CJ addressed the three co-offenders individually. One (Robertson) pleaded guilty and received a lesser sentence on a lesser charge, providing a legitimate basis for differentiation. Another (Cardona) was involved only in relation to the controlled delivery quantity and his role was of considerably lesser significance. The third (Toro-Martinez) had the most minor role of all and was also charged only with respect to the trafficable quantity. In each comparison, the Court found no unjustifiable disparity.

Spigelman CJ also noted that the sentence was consistent with the sentencing range identified in the earlier Court of Criminal Appeal decision of R v Wong and Leung, which indicated head sentences of eight to twelve years for low-range commercial quantities of cocaine between two and 3.5 kilograms. The quantity here was slightly above that range, and the relationship between the head sentence and non-parole period was described as entirely appropriate.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court's characterisation of an offender's specific role within a criminal enterprise is a significant factor in assessing parity complaints, particularly where that role differs materially from those of co-offenders.
  • No error arises from declining to treat a co-offender as a parity reference point where that co-offender was charged with a substantially lesser quantity of a drug, attracting a different statutory maximum penalty.
  • The quantity of drug the subject of the charge is a central consideration in exercising the sentencing discretion for importation offences, and differences in charged quantity between co-participants can legitimately justify differences in sentence.
  • In confirming the sentence, the Court of Criminal Appeal applied the sentencing range survey from R v Wong and Leung (1999), which indicated head sentences of eight to twelve years for low-range commercial cocaine importation.
  • A disparity challenge requires the appellant to demonstrate a justifiable sense of grievance; where material objective differences exist between the appellant's offending and that of co-offenders, such a grievance will not be established.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Lowe v The Queen (1984) 154 CLR 606
- Postiglioni v The Queen (1997) 189 CLR 295
- R v Wong and Leung (1999) 108 A Crim R 531