Citation: Regina (Commonwealth) v Guzman; Regina (Commonwealth) v Henao [2000] NSWCCA 261
Court: NSW Court of Criminal Appeal
Date: 20 April 2000
Judge(s): Priestley JA, Sperling J, Foster AJA
Background
The two applicants, a married couple, pleaded guilty to two counts each of being knowingly concerned in the importation of cocaine into Australia, contrary to the Customs Act 1901. The offences involved cocaine concealed inside computers sent by post and intercepted by Australian Customs in October 1997. The total quantity of pure cocaine across both counts was approximately 3,884 grams, nearly double the prescribed commercial quantity of 2 kilograms.
The applicant husband was identified in uncontested statements of fact as the head of a drug importation syndicate. The sentencing judge found that the applicant wife's involvement was well above that of a courier, characterising the difference in their respective roles as "marginal." The husband also had a prior drug-related conviction in Australia and had served a term of imprisonment in the United States for narcotics offences.
The applicants were sentenced in the District Court by Christie DCJ. The husband received a head sentence of 17.5 years with a non-parole period of 13.5 years, and the wife received a head sentence of 12.5 years with a non-parole period of 9.5 years. Both applied to the Court of Criminal Appeal for leave to appeal against their respective sentences.
Legal Issues
- Whether the sentencing judge incorrectly categorised the total drug quantity involved across both counts
- Whether the sentences were excessive by reference to the guideline sentencing ranges for cocaine importation offences established in R v Wong and Leung
- Whether the sentencing judge erred in failing to give sufficient weight to the applicants' pleas of guilty
- Whether the husband's sentence was affected by an error in the application of a Commonwealth sentencing provision (s16G) in the sequencing of sentencing reductions
- Whether the non-parole periods imposed on each applicant were disproportionate to their respective head sentences
Decision
The Court rejected the argument that the sentencing judge had incorrectly categorised the offending. Because the sentences for both counts were served concurrently, the total criminality across both counts had to be reflected in the sentence for the more serious offence. Adding the quantities across both counts produced a total nearly double the commercial threshold, making the description of "a very large commercial quantity" accurate. The Court also declined to interfere with the sentencing judge's characterisation of the case as close to the most serious of its kind.
On the guideline argument, the Court found that the Wong and Leung guidelines applied to offenders at the lower end of the organisational hierarchy, particularly couriers. Because the husband was found to be the head of the syndicate, a sentence significantly above the top of the guideline courier range was not disproportionate.
Regarding the sequencing of the plea discount in relation to the Commonwealth sentencing provision, the Court found no miscarriage of justice. It was not shown that the sentencing judge intended the two-year plea reduction to flow through fully to the final head sentence in the manner the applicants contended. The Court held it was reasonable to assume the deduction was introduced at the point it was with full appreciation of the consequential adjustments.
The Court did, however, find error in the non-parole periods imposed on both applicants, concluding that appropriate adjustments were warranted. The wife's non-parole period was reduced more substantially, reflecting her less serious criminal history compared with the husband, whose significantly more serious antecedents justified a higher proportionate non-parole period.
Orders Made
For the wife (Ms Guzman):
- Leave to appeal granted
- Sentence imposed on 9 April 1999 quashed
- Resentenced to 12 years and 6 months imprisonment, commencing 14 October 1997, with a non-parole period of 7 years and 6 months, expiring 13 April 2005
For the husband (Mr Henao):
- • Grant leave to appeal
• Quash the sentence imposed on 9 April 1999
• Resentence the applicant to 17 years and six months imprisonment to date from 14 October 1997 with a non-parole period of 12 years to date from 14 October 1997 and expiring on 13 October 2009
• Grant leave to appeal
• Quash the sentence imposed on 9 April 1989
• Resentence the applicant to 12 years and six months imprisonment to date from 14 October 1997 with a non-parole period of seven years and six months to date from 14 October 1997 and expiring on 13 April 2005 (the text indicates similar orders were proposed for the husband, with adjustments to the non-parole period, but the specific terms are not present in the provided text)
Key Takeaways
- Where sentences for multiple counts are served concurrently, the sentencing court must reflect the total criminality of all offences in the sentence for the most serious count, meaning drug quantities across counts can be aggregated when assessing objective seriousness.
- The guideline sentencing ranges established in R v Wong and Leung for cocaine importation offences apply to offenders at the lower end of the organisational hierarchy; a sentence well above those ranges may be appropriate for a syndicate leader.
- No error arises merely because a sentencing judge introduces a plea of guilty discount at a particular point in the sentencing exercise, provided there is no basis to conclude the judge failed to appreciate the consequences of that sequencing.
- A material difference in criminal antecedents between co-offenders, even where their roles are assessed as similarly serious, can justify a higher proportionate non-parole period for the offender with the more serious history.
- In dismissing most grounds of appeal, the Court of Criminal Appeal nonetheless intervened to reduce the non-parole periods of both applicants, demonstrating that leave to appeal against sentence can produce partial, rather than wholesale, resentencing outcomes.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), ss 233B(1)(d), 235
- Proceeds of Crime Act 1987 (Cth), s 82(1)
- Commonwealth sentencing provision s 16G (specific Act not identified in the judgment text)
Cases:
- R v Wong and Leung [1999] NSWCCA 420
- R v Bernier (1998) 102 ACrimR 44