AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 6 October 2000

R v Irusta [2000] NSWCCA 391 revised - 20

[2000] NSWCCA 391

Also reported as [2000] 117 A Crim R 6
DrugsFraud & dishonesty

Citation: R v Irusta [2000] NSWCCA 391; (2000) 117 A Crim R 6
Court: NSW Court of Criminal Appeal
Date: 6 October 2000
Judge(s): Simpson J (principal judgment), Dowd J, Bell J

Background

The respondent pleaded guilty in the District Court to two offences: an attempt to obtain a commercial quantity of cocaine under the Customs Act 1901 (Cth), and a fraud-related offence under the Crimes Act 1900 (NSW) involving a scheme to fraudulently obtain approximately $30,000 to $35,000 through false credit card deposits. The Commonwealth and State prosecutions proceeded together before the same sentencing judge.

The cocaine offence arose from a controlled delivery operation by the Australian Federal Police in June 1999. A co-offender had arrived in Sydney with approximately 2.97 kg of pure cocaine strapped to his body, was arrested, and agreed to assist police. The respondent made contact and arranged meetings with that co-offender in furtherance of the enterprise, but no cocaine was ultimately transferred to him.

At first instance, Judge Goldring imposed a nine-month fixed term for the state charge and a six-year sentence with a four-year non-parole period for the Commonwealth charge. The Director of Public Prosecutions (Cth) appealed the Commonwealth sentence as inadequate. The respondent separately sought leave to appeal the state sentence as excessive.

  • Whether the sentence imposed on the Commonwealth cocaine charge was manifestly inadequate, having regard to the guideline judgment in R v Wong; R v Leung.
  • Whether the sentencing judge erred in treating the offence as situated at the lower end of the sentencing range, given the quantity of cocaine involved and the respondent's role.
  • Whether the respondent's appeal against the nine-month sentence for the state fraud offence had merit.
  • What sentence was appropriate on re-sentencing, applying the principle that a successful Crown appeal warrants the minimum sentence that would have been appropriate at first instance.

Decision

Simpson J, with Dowd J and Bell J concurring, upheld the Crown appeal against the Commonwealth sentence. Her Honour found there was no proper basis for imposing a sentence at or near the bottom of the range established by Wong and Leung for offences involving this quantity of cocaine. The guideline in that case was directly applicable, and the sentencing judge had not identified sufficient grounds to depart downward from it.

The Court acknowledged mitigating factors relevant to the respondent: his relatively minimal prior criminal history (described by the sentencing judge as "virtually non-existent"), his long history of drug dependency and associated attempts at rehabilitation, his guilty pleas, and the circumstance that the offence was an attempt rather than a completed importation. However, these factors did not justify the degree of leniency reflected in the original sentence.

The Court also noted that the sentencing judge had taken an unduly narrow view of what the respondent had attempted to obtain, concluding the evidence did not establish he had sought to obtain the specific 3 kg of cocaine in his co-offender's possession. The Court of Criminal Appeal rejected that characterisation as a basis for leniency.

On the state charge, the Court granted leave to appeal but dismissed the appeal, finding no error in the nine-month fixed term. By the time of the appeal, the respondent had already served that sentence in full.

Orders Made

  • Leave granted to appeal the sentence on the state charge; appeal dismissed.
  • Crown appeal against the sentence on the Commonwealth cocaine charge upheld.
  • The original Commonwealth sentence quashed.
  • In lieu thereof, the respondent sentenced to eight years imprisonment commencing 5 June 2000, with a non-parole period of five years, making him eligible for parole on 5 June 2005.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the guideline judgment in R v Wong; R v Leung applied directly to sentencing for commercial quantity cocaine offences under the Customs Act, and that sentencing at the very bottom of that range requires proper justification on the facts.
  • A characterisation of an offence as an "attempt" rather than a completed offence does not, of itself, warrant departure to the lowest range of the applicable sentencing guideline where the quantity and circumstances otherwise place the offence within a higher band.
  • On a successful Crown appeal, the re-sentencing court applies the principle that the respondent is entitled to receive the minimum sentence that would have been appropriate at first instance, rather than the sentence the appellate court might independently impose.
  • Mitigating factors including drug dependency, rehabilitation efforts, minimal prior history, and guilty pleas were weighed but found insufficient to support the degree of leniency reflected in the original sentence of six years with a four-year non-parole period.
  • Where a respondent has already served a sentence in full by the time an appeal is heard (as occurred with the nine-month state sentence), that circumstance does not preclude the appellate court from ruling on the appeal, though it affects the practical outcome.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), ss 233B(1)(c), 235(2)(c)
- Crimes Act 1900 (NSW), s 178BB
- Crimes Act 1914 (Cth), s 16F
- Criminal Procedure Act 1986 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Wong; R v Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340
- R v Cartwright (1989) 17 NSWLR 243
- R v Bougdis (1989) 41 A Crim R 125
- R v Morrell (1984) 15 A Crim R 303
- R v Morgan (1983) 70 A Crim R 368
- R v Taouk (1992) 65 A Crim R 387