Citation: Regina v Gallego [2002] NSWCCA 529
Court: New South Wales Court of Criminal Appeal
Date: 17 December 2002
Judge(s): Sheller JA, Wood CJ at CL, Sully J
Background
The appellant was a Spanish national arrested at Sydney's Kingsford Smith Airport in November 2000 after customs officers, assisted by a drug detection dog, found approximately 1.1 kilograms of pure cocaine concealed within a metal cylinder hidden inside a golf bag he had brought from Buenos Aires. He was charged with importing a prohibited drug contrary to s 233B(1)(b) of the Customs Act (Commonwealth), which carries a maximum penalty of 25 years' imprisonment.
The appellant pleaded guilty in July 2001, shortly before his scheduled trial date. District Court Judge McGuire sentenced him to eight and a half years' imprisonment with a non-parole period of five and a half years.
The appellant applied to the Court of Criminal Appeal for leave to appeal on the ground that the sentence was manifestly excessive, relying on several specific complaints about how the sentencing proceedings were conducted.
Legal Issues
- Whether the sentencing judge erred in declining to treat the appellant as a mere courier in the importation chain
- Whether the appellant was denied natural justice or procedural fairness because the judge did not adequately warn him that the courier characterisation would be rejected
- Whether the appellant was denied natural justice or procedural fairness because the judge failed to ensure the appellant understood any such warning
- Whether the sentencing proceedings miscarried because the appellant was incompetently represented by counsel
Decision
Ground 1: Refusal to treat the appellant as a courier
The sentencing judge found there was insufficient evidence to precisely categorise the appellant's role. He declined to accept as a fact that the appellant was a mere courier, while also refusing to assume a more serious role. Sully J accepted that the Crown's written submissions at sentencing may have conceded the appellant was "nothing other than a courier," but was not fully persuaded this constituted a clear and binding concession. The Court proceeded by assuming, for argument's sake, that the appellant should have been treated as a courier.
On that assumption, the relevant guideline decision in R v Wong; R v Leung established a sentencing range of seven to ten years for a courier of one to two kilograms of cocaine. The head sentence of eight and a half years sat at the practical midpoint of that range. The non-parole period of five and a half years also fell within the accepted range of approximately 60 to 66 per cent of the head sentence for Commonwealth offences. Even accepting the courier characterisation, the Court found no basis on which a lesser sentence would have been "warranted in law" under s 6 of the Criminal Appeal Act.
Grounds 2 and 3: Natural justice and procedural fairness
The Court noted affidavit evidence indicating that, during the sentencing hearing, the judge clearly signalled to counsel his concern that there was no precise evidence as to the appellant's role. Sully J found it could not fairly be said the judge failed to alert the parties to his views. The evidence of what actually occurred at the hearing from the perspective of those representing the appellant was described as "exiguous," and fell well short of demonstrating a fundamental miscarriage of justice or a denial of a fair hearing according to law.
Ground 4: Incompetence of counsel
The Court emphasised that a finding of professional incompetence is not a matter to be taken lightly, referring to the High Court's decision in TKWJ v The Queen [2002] HCA 46. Counsel who appeared at sentencing swore an affidavit confirming he had conferred with the appellant on all relevant matters and had taken instructions on whether to call oral evidence. The evidence before the Court did not approach the standard required to justify a positive finding of professional incompetence going to the root of the justice of the proceedings.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge is not bound to accept an unproven characterisation of an offender's role in a drug importation, even where the Crown's written submissions suggest that role was limited to that of a courier.
- Under the guideline judgment in R v Wong; R v Leung, a courier responsible for one to two kilograms of cocaine can ordinarily expect a head sentence in the range of seven to ten years, with a non-parole period set at approximately 60 to 66 per cent of that term for Commonwealth offences.
- A natural justice complaint arising from a sentencing judge's failure to warn the offender about an adverse finding requires cogent evidence of what actually occurred at the hearing; vague or sparse evidence will not suffice to establish a miscarriage of justice.
- Findings of professional incompetence against sentencing counsel carry a high evidentiary threshold, consistent with the High Court's approach in TKWJ v The Queen; affidavit evidence of adequate conferences and informed instructions will weigh heavily against such a ground.
- Even where a specific error is assumed for the purpose of argument, the Court of Criminal Appeal will decline to intervene if the sentence ultimately imposed falls within the range that would have applied had the error not occurred.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated