Citation: Regina v Gallego [2002] NSWCCA 529
Court: NSW Court of Criminal Appeal
Date: 17 December 2002
Judge(s): Sheller JA; Wood CJ at CL; Sully J
Background
The appellant, a Spanish national, arrived at Sydney's Kingsford Smith Airport in November 2000 carrying a golf bag concealed within which was a metal cylinder containing approximately 1.1 kilograms of pure cocaine. A drug detection dog alerted customs officers to the bag, and the appellant claimed ownership of it. He was charged with importing a prohibited substance in contravention of the Customs Act (Commonwealth).
The appellant pleaded guilty in the District Court on 16 July 2001, shortly before his scheduled trial date. Judge McGuire sentenced him to eight and a half years' imprisonment with a non-parole period of five and a half years, out of a maximum penalty of 25 years.
The appellant sought leave to appeal against that sentence on the grounds that it was manifestly excessive, and raised several additional arguments about the conduct of the sentencing proceedings.
Legal Issues
- Whether the sentencing judge erred by declining to find that the appellant's role was that of a mere courier rather than a principal importer
- Whether a concession allegedly made by the Crown at sentencing bound the court to treat the appellant as a courier
- Whether the sentencing proceedings miscarried in other respects
- Whether the appellant's trial counsel had been so professionally incompetent as to warrant the Court of Criminal Appeal's intervention
Decision
On the courier role question, the Court of Criminal Appeal upheld the sentencing judge's approach. Judge McGuire had found the evidence insufficiently precise to categorise the appellant's involvement, noting that the appellant himself was best placed to establish his role but chose not to give evidence. Sully J agreed that it was appropriate to treat the appellant simply as a drug importer rather than accepting, as a favourable fact, that he was acting as a courier for someone else.
On the alleged Crown concession, the Court was not persuaded that any such concession had been made or that it would have bound the sentencing judge. The argument did not establish error in the sentencing proceedings.
Regarding the other grounds of miscarriage, Sully J found little evidence to support them. On the incompetent representation ground, the Court applied the High Court's approach in TKWJ v The Queen and emphasised that a finding of professional incompetence is not made lightly. The affidavit filed by sentencing counsel demonstrated proper pre-hearing preparation, and the evidence fell well short of what would be required to establish incompetence going to the root of the justice of the proceedings.
The Court declined to intervene with the sentence. All three judges agreed the sentence was amply justified by the facts and that no miscarriage of justice had occurred.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A sentencing judge is not obliged to accept that an offender was a mere courier where the evidence is imprecise and the offender, who was best placed to clarify the position, chose not to give evidence.
- Upholding the sentence, the Court of Criminal Appeal confirmed that importing approximately 1.1 kilograms of pure cocaine carries serious objective criminality warranting significant terms of imprisonment, even on a plea of guilty.
- A high evidentiary threshold applies before a court will find that trial counsel's incompetence amounted to a miscarriage of justice, consistent with the High Court's approach in TKWJ v The Queen.
- No error was established merely because the sentencing judge declined to adopt a characterisation of the offender's role that was not supported by reliable evidence before the court.
- Under s 233B(1)(b) of the Customs Act (Commonwealth), the maximum penalty for this class of offending is 25 years' imprisonment; the eight and a half year sentence with a five and a half year non-parole period was treated as appropriate and not manifestly excessive.
Legislation and Cases Referenced
Legislation
- Customs Act (Commonwealth), s 233B(1)(b)
- Criminal Appeal Act
Cases
- TKWJ v The Queen [2002] HCA 46
- R v Wong; R v Leung (1999) 48 NSWLR 340
- R v Laurentiu
- R v Olbrich