Citation: Regina v Cordero-Vidal [2002] NSWCCA 36 revised 27/11/2002; (2002) 128 A Crim R 543
Court: New South Wales Court of Criminal Appeal
Date: 10 April 2002
Judge(s): Meagher JA, Wood CJ at CL, Bell J (Bell J delivered the principal judgment; the others agreed)
Background
The appellant was convicted in the Sydney District Court of importing a commercial quantity of cocaine (just over 12.8 kilograms, approximately 63% pure) into Australia, contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). The cocaine was concealed inside specially constructed video camera battery belts in the appellant's luggage when he arrived at Sydney Airport from Amsterdam on 3 November 1999. The appellant had travelled with a co-offender, Salgado-Silva, through Miami, Venezuela, and Curaçao before reaching Sydney.
The appellant's case at trial was that he was an unwitting participant: a poorly educated farmer from a small town near Seville who had been recruited by Salgado-Silva, a relative by marriage, to assist on what he believed was a legitimate promotional film assignment. He denied knowledge of the cocaine in the battery belts throughout his electronically recorded police interview and at trial. Cross-examination of prosecution witnesses was directed at showing that the evidence pointed more strongly toward Salgado-Silva's involvement, and that the appellant may have been an unknowing companion.
The jury returned a guilty verdict on 5 September 2000. On 3 November 2000 the sentencing judge imposed a head sentence of 16 years imprisonment with a non-parole period of 11 years. The appellant appealed both the conviction and the severity of the sentence.
Legal Issues
- Whether the conviction was infected by any legal error warranting its disturbance on appeal.
- Whether the 16-year head sentence was excessive, particularly given the appellant's good character and the application of sentencing principles derived from the guideline judgment in Regina v Wong (which had subsequently been overruled by the High Court in Wong v The Queen [2001] HCA 64).
- Whether the non-parole period of 11 years (approximately 75% of the head sentence) was appropriate for an offender in this category, noting that a 75% ratio is reserved for the worst category of federal offending cases.
Decision
The Court of Criminal Appeal unanimously dismissed the appeal against conviction. Bell J (with whom Meagher JA and Wood CJ at CL agreed) found no basis to disturb the jury's verdict. The prosecution evidence was largely unchallenged, and cross-examination had been directed at pointing to a stronger connection between the drugs and Salgado-Silva rather than positively establishing the appellant's innocence.
On the sentence appeal, Bell J accepted that the sentencing judge had referenced principles drawn from the then-current guideline judgment in Regina v Wong, which had since been overruled by the High Court. However, Bell J concluded that even applying the correct principles, no lesser head sentence of 16 years was warranted in law for an offender convicted of importing a commercial quantity of cocaine, notwithstanding his good character.
The Court did, however, find substance in the challenge to the non-parole period. A non-parole period set at approximately 75% of the head sentence is reserved for the worst category of federal drug importation cases, and this case did not fall into that category. The Court also had regard to the reduction in the non-parole period that had been granted to the co-offender Salgado-Silva in a related appeal. On that basis, the 11-year non-parole period was set aside and replaced with a period of 10 years and 8 months.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted.
- Appeal against sentence allowed.
- Head sentence of 16 years imprisonment (commencing 3 November 1999) confirmed.
- Non-parole period set aside and replaced with a non-parole period of 10 years and 8 months; earliest eligible parole date fixed at 2 July 2010.
Key Takeaways
- In dismissing the conviction appeal, the Court confirmed that an unchallenged prosecution case, combined with a defence focused on creating inference rather than positive exculpation, provided sufficient foundation for the jury's guilty verdict.
- A non-parole period set at approximately 75% of the head sentence for a federal drug importation offence is reserved for the worst category of cases; where an offender does not fall into that category, such a ratio may be excessive and liable to correction on appeal.
- The Court of Criminal Appeal confirmed that the subsequent overruling of the Regina v Wong guideline judgment by the High Court in Wong v The Queen [2001] HCA 64 did not automatically produce a lower head sentence, provided the outcome remained within the correct sentencing range under proper principles.
- Consistency with the sentence imposed on a co-offender is a relevant consideration: the reduction in Salgado-Silva's non-parole period in a related appeal was a factor supporting reduction of the appellant's non-parole period.
- Good character, while a relevant mitigating factor, does not by itself displace a substantial head sentence for a serious commercial drug importation offence.
Legislation and Cases Referenced
Legislation
- Customs Act 1901 (Cth), s 233B(1)(b)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Evidence Act 1995 (NSW)
Cases
- Wong v The Queen [2001] HCA 64; 185 ALR 233
- Regina v Wong [1999] NSWCCA 420; 48 NSWLR 340
- Regina v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Salgado-Silva [2001] NSWCCA 423
- Postiglioni v The Queen (1997) 189 CLR 295
- Mickelberg v The Queen (1989) 167 CLR 259
- Gallagher v The Queen (1986) 160 CLR 392
- Cleland v The Queen (1982) 151 CLR 1
- Ratten v The Queen (1974) 131 CLR 510
- R v Esposito (1998) 45 NSWLR 442
- R v Abusfiah (1991) 24 NSWLR 531
- R v McCarthy & Ryan (1993) 71 A Crim R 395
- R v Glusheski (1986) 33 A Crim R 193
- Regina v Donnelly [2001] NSWCCA 394
- R v Moussa [2001] NSWCCA 427
- R v Roberts [2001] NSWCCA 163