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Court of Criminal Appeal 2 December 2016

Cicero Olivares v R

[2016] NSWCCA 270

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE DRUG TRAFFICKING METHAMPHETAMINE WHETHER SENTENCE MANIFESTLY EXCESSIVE COMPARATIVE CASES

Citation: Cicero Olivares v R [2016] NSWCCA 270
Court: Court of Criminal Appeal, New South Wales
Date: 2 December 2016
Judges: Ward JA, Fagan J, N Adams J

Background

The appellant was a Mexican national who travelled to Australia in June 2014 on a tourist visa, ostensibly for a holiday. He was in fact recruited in Mexico to transport and on-supply drugs within Australia, having been offered US$10,000 for the task. When arrested in Darlinghurst on 4 July 2014, police found nearly 7.8 kilograms of methamphetamine at 81% purity concealed in his hotel room ceiling, along with $60,000 in cash.

The appellant pleaded guilty in the District Court at Sydney to trafficking in a commercial quantity of methamphetamine and to money laundering. The sentencing judge imposed 15 years' imprisonment for the trafficking offence and 12 months for the money laundering offence, with a single non-parole period of 9 years and 6 months commencing from the date of arrest.

The appellant sought leave to appeal against the trafficking sentence only, on the sole ground that it was manifestly excessive.

  • Whether a sentence of 15 years' imprisonment (with a 9-year non-parole period) for trafficking in a commercial quantity of methamphetamine was manifestly excessive.
  • Whether comparable case authorities supported a finding that the sentence fell outside the acceptable range.
  • Whether sentencing statistics drawn from a sample of 27 cases could establish manifest excess.

Decision

The Court granted leave to appeal but dismissed the appeal. To succeed on a ground of manifest excess, an appellant must demonstrate that the sentence is "unreasonable" or "plainly unjust," a high threshold confirmed in Markarian v The Queen and Hili v The Queen. The Court emphasised that sentencing is not a mathematical exercise and that a range of outcomes may be available without error.

The Court assessed the objective seriousness of the trafficking offence as high. The quantity of drugs involved, at more than eight times the commercial quantity threshold, was substantial. The appellant had been recruited specifically because he was unknown to Australian law enforcement, making detection less likely. He was entrusted with a very large drug consignment and a significant sum of cash unsupervised, indicating he occupied a position of some trust within an organised international supply chain, even if not at its highest level.

On the subjective side, the Court acknowledged the appellant's early admissions to police, his guilty plea (entered the day after the trial was listed), his financial difficulties in Mexico, the needs of his young family, and his lack of prior convictions in Australia. The sentencing judge had expressly considered all these matters. No error of principle was identified in the way those factors were weighed.

Turning to the comparative case analysis required by The Queen v Pham, the Court examined the specific cases cited by the appellant and concluded they were not inconsistent with the sentence imposed. The Court also rejected the appellant's reliance on statistics drawn from 27 cases, reaffirming that raw sentencing statistics divorced from the particular facts of each case do not establish manifest excess.

Orders Made

  • Leave to appeal granted.
  • The appeal is dismissed.

Key Takeaways

  • A sentence of 15 years with a 9-year non-parole period for trafficking approximately 7.8 kilograms of methamphetamine at high purity was held not to be manifestly excessive by the Court of Criminal Appeal.
  • In dismissing the appeal, the Court applied the established principle from Markarian and Hili that manifest excess requires a sentence to be "unreasonable" or "plainly unjust," not merely towards the higher end of the available range.
  • Aggravating factors recognised by the Court included the very large quantity of drugs (more than eight times the commercial quantity), the appellant's deliberate recruitment as an unknown courier to frustrate police detection, and the organised, multi-participant international nature of the operation.
  • Under the framework in The Queen v Pham, comparative case analysis requires examination of the specific facts of comparable cases, not merely their outcomes; consistency in sentencing is not synonymous with numerical equivalence.
  • Sentencing statistics drawn from a sample of cases, presented without analysis of the underlying facts of those cases, are insufficient to establish that a sentence is manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16A, s 19AB
- Criminal Code Act 1995 (Cth) (Schedule: the Criminal Code), ss 302.2(1), 400.9(1), 400.9(1A), 301.10
- Criminal Code Regulations 2002 (Cth), Schedule 3

Cases:
- AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
- Barbaro v The Queen; Zirill v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Halac v R [2015] NSWCCA 121
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Le v R (Cth) [2010] NSWCCA 285
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 19
- Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25
- Sergi v Director of Public Prosecutions (Cth) [2005] VSCA 181
- Shen, David Ying v R [2009] NSWCCA 251
- The Queen v Tin Yu Ng; The Queen v Yik Lun Siu [2009] VSCA 218
- The Queen v Pham (2015) 90 ALJR 13; [2015] HCA 39