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2
Court of Criminal Appeal 2 December 2004

R v Salcedo

[2004] NSWCCA 430

Drugs
CRIMINAL LAW SENTENCING APPEAL AGAINST SEVERITY OF SENTENCE OPERATION OF PARITY PRINCIPLE ACCUSED

Citation: Salcedo v R [2004] NSWCCA 430
Court: NSW Court of Criminal Appeal
Date: 2 December 2004
Judge(s): McColl JA, Levine J, Hidden J

Background

The applicant pleaded guilty in the District Court to two offences: importing a trafficable quantity of MDMA (ecstasy) contrary to the Customs Act 1901 (Cth), and using an Australian passport issued to another person for the purpose of travel. The offences arose after the applicant and a co-offender returned to Sydney from Amsterdam on 21 September 2002 with approximately 684 grams (gross weight) of ecstasy tablets strapped to their bodies, estimated at a street value of around $150,000.

The sentencing judge found that both men were principals rather than couriers, that the importation was primarily for their own use, but that an inference of some commercial element was unavoidable given the quantity involved. The applicant had also been held in protective custody for a significant period following an assault in custody, a circumstance the sentencing judge acknowledged at the time of first sentence.

The sentence was imposed twice: first on 1 April 2003 and then revised on 31 July 2003, after the Commonwealth DPP raised a correction. The revision required the judge to sentence the applicant based on the weight of ecstasy found on him alone (169.9 grams) rather than the combined total carried by both offenders (339.7 grams). The applicant then sought leave to appeal against the severity of the revised sentence.

  • Whether the sentencing judge erred by imposing a greater sentence on the applicant than on his co-offender, contrary to the parity principle
  • Whether the sentencing judge failed to have adequate regard to the time the applicant spent in protective custody when imposing the revised sentence

Decision

On the parity argument, the Court of Criminal Appeal examined whether the disparity between the applicant's sentence and his co-offender's sentence gave rise to a justifiable sense of grievance. The Court found that, on the facts as found by the sentencing judge, the applicant bore a greater degree of responsibility than the co-offender. The applicant had paid for both air tickets, the money orders sent overseas were funded by him, and the sentencing judge treated him as the more culpable of the two principals. The differential in sentences was therefore explicable and did not constitute appealable error.

On the protective custody issue, the Court rejected the submission that the sentencing judge had ignored this factor when resentencing. McColl JA held that the judge had taken protective custody into account during the first sentencing exercise and had referred back to those remarks when imposing the revised sentence. It was not necessary for the judge to repeat the analysis in full on the second occasion. No error was established on this ground.

More broadly, the Court noted that the sentencing judge had approached the matter with leniency. The revised sentence reduced only the weight of ecstasy attributable to the applicant. The judge had already given significant weight to matters such as the applicant's guilty plea, his cooperation with authorities, and the onerous conditions of protective custody. Given the commercial element of the importation and the applicant's role as a principal, general deterrence remained a paramount consideration.

Orders Made

  • Leave to appeal against sentence granted
  • Substantive appeal dismissed

Key Takeaways

  • The parity principle does not require equal sentences for co-offenders where a sentencing court identifies a material difference in their respective culpability. Here, the applicant's greater financial involvement justified a heavier sentence than that imposed on his co-offender.

  • A sentencing judge who resentences an offender following a correction is not required to revisit every aspect of the original sentence. Only the matter specifically requiring correction need be addressed afresh.

  • Where protective custody conditions were considered and factored into the original sentencing exercise, a subsequent resentencing does not require the judge to repeat that analysis, provided the earlier remarks are acknowledged.

  • Importing ecstasy as a principal with a discernible commercial element, even where the primary purpose was personal use, attracts significant weight on the deterrence factor under the framework in Wong v R (2001) 207 CLR 584.

  • No error is established on appeal simply because a sentencing judge struggled to reduce a sentence on a second occasion, where the original sentence was already on the lenient side of the available range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A, 16A(1), 16A(2)(k)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Criminal Code Act 1995 (Cth)
- Customs Act 1901 (Cth), ss 233B, 233BAA(4), 235
- Passports Act 1938 (Cth), s 9A

Cases:
- Wong v R [2001] HCA 64; (2001) 207 CLR 584
- Lowe v R [1984] HCA 46; (1984) 154 CLR 606
- R v Postiglione [1997] HCA 26; (1997) 189 CLR 295
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- Veen v The Queen [No 2] (1998) 164 CLR 465
- R v Mostyn [2004] NSWCCA 97
- R v Totten [2003] NSWCCA 207
- R v Durocher-Yvon [2003] NSWCCA 299; (2003) 58 NSWLR 581
- R v Chen & Others [2002] NSWCCA 174; (2002) 130 A Crim R 300
- R v Schofield [2003] NSWCCA 3
- R v Wahabzadah [2001] NSWCCA 253
- Steer v The Queen [2000] FCA 462; (2000) 171 ALR 463
- Erceg v District Court of New South Wales [2003] NSWCCA 379
- R v McDonald (1998) 28 MVR 432