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Court of Criminal Appeal 30 May 2001

Regina v Quesada

[2001] NSWCCA 216

Also reported as 122 A Crim R 218
Drugs
DRUG IMPORTATION NOT DEPENDENT ON SPECIALISED KNOWLEDGE DIRECTION AS TO LIES SUFFICIENT SENTENCE NON PAROLE PERIOD EXCESSIVE

Citation: Regina v Quesada [2001] NSWCCA 216
Court: NSW Court of Criminal Appeal
Date: 30 May 2001
Judge(s): Wood CJ at CL, McClellan J, Smart AJ

Background

The appellant was convicted by a District Court jury of being knowingly concerned in the importation of cocaine into Australia, following a controlled delivery operation at a Sydney hotel in December 1998. The operation arose after a courier, Ms Madero, was intercepted at Sydney Airport carrying approximately 2.04 kilograms of cocaine concealed in a backpack. Federal Police reconstructed the backpack and arranged for a controlled delivery at the Sheraton on the Park Hotel, where Ms Madero was staying.

The appellant attended the hotel room, was filmed by Federal Police on video, and was arrested shortly after leaving the room with Ms Madero. The Crown's case was that the appellant had come to collect the backpack containing the cocaine, and that her conduct in the room, including lifting and setting down the backpack, demonstrated her knowledge of its contents.

At first instance, Judge Twigg QC sentenced the appellant to 10 years imprisonment with a non-parole period of 7 years. The appellant challenged both her conviction and the sentence on appeal.

  • Whether a psychologist's evidence was properly admitted at trial, given it was said not to be based on specialised knowledge
  • Whether the trial judge's directions to the jury concerning lies were adequate
  • Whether the 10-year head sentence was excessive given the quantity of cocaine and the appellant's circumstances
  • Whether the 7-year non-parole period was manifestly excessive relative to the head sentence and established sentencing norms

Decision

The Court of Criminal Appeal dismissed the appeal against conviction. On the admissibility of the psychologist's evidence, the Court found that the evidence was not dependent on specialised knowledge and was therefore properly admitted. The Court also held that the trial judge's directions to the jury regarding lies were sufficient, applying the principles in Edwards v The Queen.

On sentence, the Court accepted that the 10-year head sentence sat at the top of the permissible range, but did not find it impermissible given the circumstances. The quantity of cocaine, approximately 1,306 grams of pure cocaine, fell within the lower third of the high trafficable quantity range, and the sentencing judge had been found to have proceeded on one erroneous basis. Despite this, the head sentence was not disturbed.

The non-parole period of 7 years was found to be manifestly excessive. Drawing on Regina v Claude Bernier, the Court confirmed that the norm for non-parole periods is 60 to 66 and two-thirds per cent of the head sentence, subject to individual case factors. The Court identified special circumstances including the appellant's first custodial sentence, her separation from her children, and the difficult personal circumstances she had faced. A non-parole period of 7 years represented 70 per cent of the head sentence, placing it outside the accepted range without sufficient justification. The Court reduced it to 6 years.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence allowed in part: the non-parole period of 7 years was set aside and replaced with a non-parole period of 6 years, commencing 9 December 1998 and ending 8 December 2004
  • The 10-year head sentence was otherwise undisturbed

Key Takeaways

  • A non-parole period falling outside the accepted range of 60 to 66 and two-thirds per cent of a head sentence requires justification in the particular facts; without it, the period may be set aside as manifestly excessive.
  • Special circumstances, including a first custodial sentence and family separation, are relevant considerations when determining the appropriate non-parole period, even in serious drug importation matters.
  • In dismissing the conviction appeal, the Court confirmed that evidence need not be grounded in specialised knowledge to be admissible, and that standard jury directions on lies can be sufficient without further elaboration.
  • The Court of Criminal Appeal applied the sentencing range guidance from R v Wong & Leung and Regina v Claude Bernier together, demonstrating that both the head sentence range and the proportionality of the non-parole period are subject to appellate review.
  • Sentencing courts cannot approach the determination of non-parole periods mechanically; the process requires a finely tuned assessment of the individual circumstances of each case.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)
- Customs Act 1901 (Cth), s 233B

Cases:
- Murphy v The Queen (1988-1989) 167 CLR 94
- Edwards v The Queen (1993) 178 CLR 193
- R v Wong & Leung (1999) 48 NSWLR 340
- Regina v Claude Bernier (1998) 102 A Crim R 44