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Court of Criminal Appeal 23 December 2002

Regina v Mascaro-Varillas

[2002] NSWCCA 524

Drugs
SENTENCING PRINCIPAL IN COCAINE IMPORTATION LOW COMMERCIAL QUANTITY HEAD SENTENCE OF 15 YEARS CORRECT NON

Citation: Regina v Mascaro-Varillas [2002] NSWCCA 524
Court: New South Wales Court of Criminal Appeal
Date: 23 December 2002
Judge(s): Wood CJ at CL, Howie J, Smart AJ

Background

The appellant was a Colombian national who organised the importation of approximately 2.97 kilograms of pure cocaine into Australia in May 1999. He recruited a German national in Chile to act as a courier, strapped the packages to the courier's body, and coordinated the attempted delivery by telephone from California. The courier was intercepted at Sydney Airport by the Australian Federal Police, who then ran a controlled delivery operation over several weeks.

The appellant was arrested in the United States and extradited to Australia in December 1999. He pleaded guilty in the Local Court in February 2000 and was sentenced in the District Court to 15 years' imprisonment with a non-parole period of 11 years.

The central dispute at sentence was the extent of the appellant's role in the importation. He argued he was little more than a courier-level participant, but evidence from intercepted telephone calls demonstrated he was the organising principal who directed others, funded the operation, and stood to receive the proceeds.

  • Whether the head sentence of 15 years was excessive for an offence of being knowingly concerned in the importation of a commercial quantity of cocaine
  • Whether the non-parole period of 11 years (approximately 73% of the head sentence) was excessive given the nature and circumstances of the offence
  • Whether the sentencing judge correctly characterised the appellant's role and criminality
  • Whether the sentencing judge erred by referring to evidence of the appellant's prior drug dealings
  • Whether references to other importations at sentence breached the specialty rule under the Extradition Act 1988

Decision

The Court of Criminal Appeal confirmed that the head sentence of 15 years was appropriate. The sentencing judge correctly found the appellant was an organising principal rather than a mere courier. Intercepted telephone calls showed he recruited the courier, physically prepared him, managed the Australian distribution network, and expressed concern about recovering his own financial investment in the drugs.

On the question of the non-parole period, the Court found the sentencing judge had erred. The offence, while serious, was not among the worst cases of its kind, and the sentencing judge did not make any finding to that effect. A non-parole period representing 73% of the head sentence was therefore inconsistent with the usual range applicable to offences of this character.

The Court reduced the non-parole period from 11 years to 10 years, bringing it to approximately 66.7% of the head sentence. This brought the sentence into line with the range established in comparable cases.

On the remaining grounds, the Court rejected the argument that references to prior drug dealings were used improperly. The sentencing judge had confined that evidence to assessing the appellant's claim to be a minor participant rather than treating it as an aggravating factor. The Court also rejected the specialty rule argument, noting no new charges had been laid based on the material referred to.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against the head sentence of 15 years dismissed
  • Appeal against the non-parole period allowed; non-parole period of 11 years set aside and substituted with a non-parole period of 10 years, commencing 3 August 1999 and expiring 2 August 2009

Key Takeaways

  • The Court of Criminal Appeal confirmed that a 15-year head sentence is appropriate for an organising principal in the importation of approximately 2.97 kilograms of pure cocaine (just below the low commercial quantity threshold).
  • Where a sentencing judge fixes a non-parole period in the upper range without finding the offence falls among the worst cases of its kind, that period may be set aside as excessive.
  • Evidence of prior drug dealings admitted at sentence for a limited purpose (such as assessing a mitigating claim about role) does not constitute an error, provided the sentencing court does not use that evidence to increase the sentence.
  • Referring to evidence of other importations at a sentencing hearing does not breach the specialty rule under the Extradition Act 1988 where no additional charges are laid arising from that material.
  • In assessing a defendant's role, telephone intercepts and conduct following the importation can displace claims of minor participation, particularly where the defendant directed couriers, managed distribution, and retained a financial stake in the operation.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B
- Crimes Act 1914 (Cth)
- Extradition Act 1988 (Cth)

Cases
- R v Tait (1979) 46 FLR 386
- Cameron v The Queen [2002] HCA 6
- R v Wong & Leung (1999) 48 NSWLR 340
- R v Bernier (1998) 102 A Crim R 44
- R v Tack Lee Pang (2001) 105 A Crim R 474
- R v Guzman & Henao [2000] NSWCCA 261
- R v Salgado Silva [2001] NSWCCA 423
- R v Paull (1990) 20 NSWLR 427
- R v Acosta (NSWCCA, unreported, 22 October 1999)