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16
Court of Criminal Appeal 7 June 2000

REGINA v TORO-MARTINEZ [2000] NSWCCA 216 revised - 28

[2000] NSWCCA 216

Also reported as (2000) 114 A Crim R 533
Drugs
CRIMINAL LAW CRIMINAL LAW CROWN APPEAL SENTENCING FOR DRUG IMPORTATION CRIMES ACT 1914 (CTH), S233B(1)(D)

Citation: Regina v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533
Court: New South Wales Court of Criminal Appeal
Date: 7 June 2000
Judge(s): Spigelman CJ, Newman J, Adams J

Background

The respondent pleaded guilty in the District Court to being knowingly concerned in the importation of a trafficable quantity of cocaine, an offence under s 233B(1)(d) of the Customs Act 1901 (Cth). His involvement was limited to a three-day period in December 1996, during which 655.2 grams of cocaine was the subject of a controlled delivery by authorities. He was described as low in the organisational hierarchy of the importation scheme, which had been facilitated partly through a National Crime Authority operation involving a police informer.

Before entering his plea, the respondent had sought a permanent stay of proceedings, arguing that the involvement of the authorities in the importation tainted the prosecution. The District Court rejected that application. He then changed his plea to guilty and was sentenced to three and a half years imprisonment with a two-year non-parole period.

Two appeals followed. The respondent appealed against his conviction, arguing that the rejection of the stay application and related evidentiary rulings constituted errors that should permit the appeal despite his guilty plea. The Crown separately appealed the sentence as manifestly inadequate.

  • Whether an appeal against conviction is available to a person who has pleaded guilty, and if so, in what circumstances.
  • Whether a typographical error in the date on a certificate issued under s 15M of the Crimes Act 1914 (Cth) invalidated the certificate.
  • Whether the trial judge erred in admitting evidence of the importation, given the involvement of the authorities in facilitating it.
  • Whether the sentence of three and a half years imprisonment with a two-year non-parole period was manifestly inadequate for the offence of importing a trafficable quantity of cocaine.

Decision

Conviction appeal: when a guilty plea bars appeal
The Court confirmed that an appeal against conviction following a guilty plea is available only in limited circumstances. The governing test is whether a miscarriage of justice has occurred, and the Court will intervene only where the material raises a real question about the accused's actual guilt. The respondent's case did not meet that threshold.

Certificate validity
The Court held that a typographical error in the date on a s 15M certificate did not invalidate it, where the intended date was plain and the error obvious. The "specified" day under s 15P(3)(a) of the Crimes Act 1914 (Cth) was the intended date. The trial judge's decision to uphold the certificate was correct.

Admission of evidence and the stay application
Nothing in the evidence suggested that the conduct of the authorities played any material role in inducing the respondent's participation in the importation. No impropriety or contravention of law was identified that would have warranted exclusion of the evidence under s 134 of the Evidence Act 1995, and no basis existed to disturb the trial judge's discretionary ruling. The Court followed Ridgeway v The Queen (1995) 184 CLR 19 on these principles.

Crown appeal: manifestly inadequate sentence
The Court upheld the Crown appeal, finding that the original sentence was manifestly inadequate and out of line with the established sentencing pattern for this class of offence, even accounting for the respondent's low level of involvement. In re-sentencing, the Court took into account the sentences imposed on co-offenders who were more heavily involved, and applied the principle of double jeopardy, particularly noting that the non-parole period under the original sentence was close to expiry. For that reason, the Court set the non-parole period below the normal range of 60 to 66 per cent of the head sentence.

Orders Made

  • The appeal against conviction is dismissed.
  • The sentence imposed by the trial judge is quashed.
  • The respondent is sentenced to six years imprisonment, commencing 9 June 1998 and expiring 9 June 2004.
  • A non-parole period of three years is imposed; the respondent is eligible for release on parole on 8 June 2001.

Key Takeaways

  • An appeal against conviction after a guilty plea is available only in extreme circumstances, where the material raises a real question about the accused's guilt. A mere dissatisfaction with a pre-plea ruling does not of itself satisfy that test.
  • A typographical error in a statutory certificate does not invalidate it where the correct intent is plain from the document and the error is obvious.
  • Under Ridgeway v The Queen, evidence obtained through law enforcement involvement in a criminal enterprise will not automatically be excluded. The absence of impropriety or conduct materially inducing the offence is a significant factor.
  • Where a Crown appeal succeeds on manifest inadequacy, the Court of Criminal Appeal applies a double jeopardy discount in re-sentencing, and may depart further from the normal non-parole range where the expiry of the original non-parole period is imminent.
  • Even for a person described as low in the hierarchy of a drug importation scheme, the pattern of sentencing for importation of cocaine requires a substantially higher sentence than three and a half years to reflect personal and general deterrence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 15M, 15N(4), 15P(3)(a)
- Customs Act 1901 (Cth), s 233B(1)(d)
- Crimes Amendment (Controlled Operations) Act 1996 (Cth)
- Criminal Appeal Act 1912 (NSW)
- Criminal Assets Recovery Act 1990 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW/Cth), s 134

Cases
- Ridgeway v The Queen (1995) 184 CLR 19
- Maxwell v The Queen (1996) 184 CLR 501
- Meissner v The Queen (1995) 184 CLR 132
- R v Wong (1999) 108 A Crim R 531
- R v Davies (NSWCCA, 16 December 1993, unreported)
- R v Murphy [1965] VR 187
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Sagiv (1986) 22 A Crim R 73
- R v Chiron [1980] 1 NSWLR 218
- R v Cincotta (NSWCCA, 1 November 1995, unreported)
- R v Bernier (1998) 102 A Crim R 44
- R v Favero [1999] NSWCCA 320
- Carter v Northmore Hale Davey and Leake (1994-1995) 183 CLR 121