Regina v Pulido

[1999] NSWCCA 438

CITATION:	REGINA v PULIDO [1999] NSWCCA 438
FILE NUMBER(S):	CCA 60617/98
HEARING DATE(S):	2 December 1999
JUDGMENT DATE:	2 December 1999
PARTIES :	REGINA v ALFONSO PULIDO
JUDGMENT OF:	Handley JA at 1; Barr J at 11; Greg James J at 12

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0298
LOWER COURT JUDICIAL OFFICER:	Gibson DCJ

COUNSEL:	P W Neil SC (Appellant) R Burgess (Respondent)
SOLICITORS:	Commonwealth DPP (Appellant) T A Murphy (Respondent)
CATCHWORDS:	CRIMINAL LAW - Customs Act - s 233B(1) - possessing prohibited import - cocaine - quantity not less than trafficable quantity; SENTENCING - whether head sentence outside range appropriate for offence - whether non parole period excessive in relation to head sentence - whether quantity of prohibited import a relevant factor in sentencing
ACTS CITED:	Customs Act 1901 (Cth) Crimes Act 1914 (Cth) Sentencing Act 1989 (NSW)
CASES CITED:	R v Michael John Spiteri [1999] NSWCCA 3
DECISION:	Leave to appeal refused

IN THE COURT OF
CRIMINAL APPEAL

60607/98
DC 98/11/0298

HANDLEY JA
BARR J
GREG JAMES J

Thursday 2 December 1999

REGINA v ALFONSO PULIDO

CRIMINAL LAW - Customs Act - s 233B(1) - possessing prohibited import - cocaine - quantity not less than trafficable quantity

SENTENCING - whether head sentence outside range appropriate for offence - whether non parole period excessive in relation to head sentence - whether quantity of prohibited import a relevant factor in sentencing

The applicant had agreed to receive a parcel sent by post from Columbia which was intercepted and found to contain pure cocaine equivalent to 600 gms. He pleaded guilty to an offence contrary to s 233B(1) of the Customs Act of having in his possession a prohibited import consisting of a quantity of cocaine not less than the trafficable quantity of 2 gms, and the sentencing Judge imposed a sentence of 6½ years’ imprisonment with a non parole period of 4½ years. An application for leave to appeal challenged the Judge’s exercise of his sentencing discretion on the grounds that the head sentence was outside the range appropriate for a courier involved in the importation of cocaine, and that the non parole period was manifestly excessive in relation to the head sentence. The relevance of the quantity involved in the offence was also in issue.
HELD : refusing the application for leave to appeal: (1) The sentence imposed by the sentencing Judge was not outside the relevant range. (2) The difference between the non parole period imposed by the sentencing Judge and the normal non parole period did not involve an error calling for appellate intervention. (3) Whilst the quantity involved in an offence can be important there is no necessary correlation between quantity and criminality. In the present case the applicant who had agreed to receive a parcel sent by others, had no control over the quantity involved in the offence. It was therefore inappropriate to emphasise the quantity involved in this case, although it may be more relevant in other cases. R v Michael John Spiteri [1999] NSW CCA 3 referred to.

ORDERS


Application for leave to appeal refused.

IN THE COURT OF
CRIMINAL APPEAL

60607/98
DC 98/11/0298

HANDLEY JA
BARR J
GREG JAMES J

Thursday 2 December 1999

REGINA v ALFONSO PULIDO

JUDGMENT

1 HANDLEY JA: This is an application for leave to appeal from a sentence imposed by Gibson DCJ on 16 September 1998. The applicant pleaded guilty to an offence contrary to s 233B(1) of the Customs Act of having in his possession a prohibited import consisting of a quantity of cocaine not less than the trafficable quantity of 2 gms. 2 The applicant had agreed to receive a parcel sent by post from Columbia which was intercepted and found to contain 296.9 gms of pure cocaine, approximately 600 gms in bulk. The contents were extremely valuable on the street. 3 The offence carried a maximum of 25 years’ imprisonment. His Honour imposed a sentence of 6½ years, 4½ years being the non parole period. The sentence was back-dated to commence on 4 February when the applicant was taken into custody. 4 Ms Burgess, who appeared for the applicant, has drawn attention to every matter relevant to the exercise of his Honour’s sentencing discretion and this Court’s task in reviewing that exercise. Her principal submission is that the head sentence was outside the range appropriate for a courier involved in the importation of cocaine. A second submission was that the non parole period was manifestly excessive in relation to the head sentence. 5 Many of the cases to which we have been referred, including those noted in the schedule to a judgment in R v Michael John Spiteri, have focused on the precise quantity involved in the offence. While the precise quantity is important for legal reasons, because of the scale in the Customs Act which distinguishes between the commercial quantity, a quantity less not than a trafficable quantity and a lesser quantity, there is no necessary correlation between the quantity involved and the subjective or objective criminality of the accused. 6    The applicant agreed to receive a parcel to be sent to him through the post from Columbia and had no advance knowledge of the quantity or quality of cocaine in that parcel. He signed up for an enterprise which, as far as he was concerned, within the limits imposed by regulations covering parcels sent through the post, was open-ended. It seems to me that any emphasis on the precise quantity in a case such as this is inappropriate, although in other cases it may be a relevant factor. 7    I am therefore unpersuaded by submissions based on a comparison between sentences imposed in other cases graduated by the quantity of heroin or cocaine involved in the offences as a basis for comparison with this sentence. The real question is whether the sentence imposed by the learned sentencing Judge was outside the relevant range. That may be discerned from the cases that have been decided since the Crimes Act (Cth) was amended following the Sentencing Act being passed by the Parliament of this State. 8    Ms Burgess has referred us to a number of cases and sentences reviewed in those cases but I have not been persuaded that those cases, which are fully dealt with in her written submissions, establish that this sentence was outside any relevant range. In may be conceded that the sentence imposed by his Honour was at the high end of the range, but I have not been persuaded that it is outside that range. 9    The other matter relied upon by Ms Burgess was the fact that the non parole period was approximately 68% of the head sentence, whereas it is said, and indeed conceded to be normal, that it is between 60 and 66% of the head sentence. I have not been persuaded a difference of the order of two percentage points demonstrates an error calling for the intervention of this Court. 10    I would, therefore, propose that leave to appeal be refused. 11    BARR J: I agree. 12    GREG JAMES J: I also agree. The range of sentences open to a particular sentencing Judge in a matter such as this is wide. There is a great deal of room for legitimate difference in the sentences passed by individual Judges. It is only where the sentence so far exceeds that which is open to the individual sentencing Judge that error may be discerned, and an application for leave to appeal on this ground should be upheld. 13    HANDLEY JA: The order of the Court will be leave to appeal refused.
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