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2
Court of Criminal Appeal 28 September 2001

R v Salgado-Silva

[2001] NSWCCA 423

Also reported as 126 A Crim R 1
Drugs
SENTENCING APPEAL WHETHER NON PAROLE PERIOD EXCESSIVE WHETHER A WORST CASE.

Citation: Salgado-Silva v R [2001] NSWCCA 423
Court: New South Wales Court of Criminal Appeal
Date: 28 September 2001
Judge(s): Heydon JA, Wood CJ at CL, Carruthers AJ

Background

The appellant, a Spanish national, was convicted in the District Court of importing a commercial quantity of cocaine into Australia, contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). He and a co-accused arrived at Sydney Airport in November 1999 carrying 12.8 kilograms of cocaine at 63% purity, concealed within specially modified battery belts designed to appear as camera equipment. The pure cocaine content was calculated at approximately 8.1 kilograms, with an estimated street value of $3 to $4 million.

The appellant entered a plea of guilty during a joint trial, after an initial plea of not guilty. He was sentenced by Acting Judge Stewart in the Sydney District Court on 3 November 2000 to 17 years' imprisonment with a non-parole period of 13 years. The co-accused received a head sentence of 16 years with a non-parole period of 11 years following conviction by jury.

The appellant sought leave to appeal against his sentence, challenging both the characterisation of his role in the offence and the length of the non-parole period.

  • Whether the sentencing judge incorrectly assessed the appellant as participating at too high a level within the drug importation organisation
  • Whether the non-parole period of 13 years was excessive given the head sentence of 17 years
  • Whether the offence represented a worst-case scenario justifying the sentence imposed

Decision

The Court accepted that the head sentence of 17 years fell within the available sentencing range. Balancing the objective seriousness of the offence against the appellant's subjective circumstances, and having regard to comparable cases, the Court found no basis to intervene with the head sentence itself.

However, the Court identified an error in the relationship between the non-parole period and the head sentence. The 13-year non-parole period did not conform to the generally accepted ratio between the non-parole period and the head sentence, which the Court treated as two-thirds. This departure from the standard ratio warranted intervention.

On the question of worst-case characterisation and role within the organisation, the Court's reasoning, as reflected in the outcome, did not result in a reduction of the head sentence. The reduction was confined to recalibrating the non-parole period to bring it into proper proportion with the head sentence already imposed.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Head sentence of 17 years confirmed
  • Non-parole period of 13 years set aside
  • New non-parole period fixed at 11 years and 4 months, dating from 3 November 1999 and expiring 2 March 2011

Key Takeaways

  • The Court of Criminal Appeal confirmed that a head sentence of 17 years for importing approximately 8 kilograms of pure cocaine fell within the available sentencing range and did not require interference.
  • A non-parole period that fails to conform to the generally accepted two-thirds ratio relative to the head sentence may constitute an error justifying appellate intervention, even where the head sentence itself is upheld.
  • In setting the new non-parole period, the Court applied the two-thirds ratio to produce a revised minimum term of 11 years and 4 months against the confirmed 17-year head sentence.
  • The decision illustrates that sentencing appeals in serious drug importation matters can succeed on the limited ground of disproportionality between the non-parole period and the head sentence, without requiring any reduction to the overall term.
  • Characterisation of an offender's role within a drug importation organisation remains a relevant consideration in sentencing, though no downward adjustment to the head sentence was warranted on the facts here.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16A(2)(g)
- Customs Act 1901 (Cth), s 233B(1)(b)

Cases:
- R v Bernier (1998) 102 A Crim R 44
- R v Contreras-Ortiz [2000] NSWCCA 328
- R v Covacs [2000] NSWCCA 74
- R v Ferrer-Eisis (1991) 55 A Crim R 231
- R v Guzman and Henao [2000] NSWCCA 261
- R v Heeng Ung [2000] NSWCCA 195
- R v Leroy [1984] 2 NSWLR 441
- R v Laurentiu (1992) 63 A Crim R 402
- R v Meloh (2001) NSWCCA (unreported, 21 May 2001)
- R v Shepherd (1982) 37 A Crim R 303
- R v Spiteri [1999] NSWCCA 3
- R v Wong & Leung (1999-2000) 48 NSWLR 340
- The Queen v Olbrich (1999-2000) 199 CLR 270