Citation: R v Contreras-Ortiz [2000] NSWCCA 328
Court: New South Wales Court of Criminal Appeal
Date: 11 August 2000
Judge(s): Wood CJ at CL, Beazley JA, Greg James J
Background
The applicant was convicted in the District Court of knowingly being concerned in the importation of a trafficable quantity of cocaine. The cocaine, weighing 930 grams pure, was concealed inside a projector sent via courier from Buenos Aires to premises used by a co-accused. After the package was collected, the applicant and others took it to the applicant's home, where police located it.
The sentencing judge found the applicant had participated at a "relatively senior level" as an overseer of the importation, not merely as a courier. He had travelled to Australia on a false Mexican passport, taken steps to establish a false identity, and made pre-shipment visits to Colombia and Ecuador. Freeman DCJ sentenced him to 15 years imprisonment, commencing 28 April 1998, with a non-parole period of 11 years.
The applicant sought leave to appeal to the Court of Criminal Appeal, contending the sentence was manifestly excessive.
Legal Issues
- Whether the sentence of 15 years imprisonment with an 11-year non-parole period was manifestly excessive in light of the guideline judgment in Wong and Leung (108 ACrimR 531)
- Whether comparison with the sentences imposed on Wong and Leung themselves (14 years with 9-year non-parole periods for a significantly larger heroin importation) demonstrated the sentence was disproportionate
Decision
The Court considered the guideline judgment in Wong and Leung, which suggested a range of six to nine years for a courier involved in the importation of a mid-level trafficable quantity of heroin or cocaine where a guilty plea had been entered. Wood CJ at CL identified three features that distinguished the present case from that guideline scenario.
First, the applicant had not pleaded guilty, whereas the guideline was directed at offenders who had done so. Second, the applicant was found to have been a senior overseer involved from the outset of the importation, not a courier recruited late in the venture. Third, the sentences imposed on Wong and Leung had been handed down by the Court of Criminal Appeal on a Crown appeal, meaning, under the double jeopardy principle, they represented the minimum that could properly have been imposed at first instance.
Taking those distinctions together, the Court was not persuaded the sentence fell outside the appropriate range. While acknowledging the sentence was "condign" and towards the top of the range for the objective criminality involved, Wood CJ at CL emphasised that principal participants and overseers in cocaine importation attract heavily deterrent sentences. The Court also noted that the point on which special leave to appeal to the High Court had been granted in Wong and Leung concerned only the jurisdiction of State courts to issue guideline judgments, and that issue did not bar determination of this application.
Orders Made
- Leave to appeal refused
Key Takeaways
- An overseer who participates in a drug importation from its inception, travels on a false passport, and establishes a false identity occupies a significantly higher level of culpability than a courier recruited late in the venture, with corresponding sentencing consequences.
- The guideline range for cocaine importation set out in Wong and Leung applied to couriers who pleaded guilty; the Court of Criminal Appeal confirmed it does not directly govern sentences for senior participants who contest their charges.
- Where sentences are imposed by an appellate court on a Crown appeal, the double jeopardy principle requires those sentences to be treated as the minimum properly available at first instance, limiting their usefulness as direct comparators.
- A pending High Court special leave application concerning the jurisdiction of State courts to issue guideline judgments does not prevent a State Court of Criminal Appeal from applying or considering those guidelines in the interim.
- In dismissing the appeal, the Court reaffirmed that those who organise or oversee cocaine importation into Australia face heavily deterrent sentences reflecting the seriousness with which the courts treat that offending.
Legislation and Cases Referenced
Cases:
- Wong and Leung (108 ACrimR 531) (guideline judgment on drug importation sentencing)
- Rose, NSW CCA, 23 May 1996 (double jeopardy principle on Crown appeals)
- McDonald, NSW CCA, 12 October 1998 (double jeopardy principle on Crown appeals)
Legislation:
No specific legislation was identified in the text provided.