De Campos v R - [2006] NSWCCA 51

CITATION: De Campos v Regina [2006] NSWCCA 51

HEARING DATE(S): 28/02/2006

JUDGMENT DATE:
28 February 2006

JUDGMENT OF: Beazley JA at 29, 31; Adams J at 30; Howie J at 1

EX TEMPORE JUDGMENT DATE: 02/28/2006

DECISION: Extension of time and leave to appeal granted. The appeal is allowed and the sentence imposed is quashed. In lieu the applicant is sentenced to imprisonment for seven and a half years to date from 10 August 2004 and a non-parole period of four and a half years should be imposed which is to expire on 9 February 2009, the date upon which the applicant will be eligible to be released to parole.

CATCHWORDS: Criminal Law - Sentence - Importation - offer of assistance refused by police - offer not recorded by police in statement - not known by prosecutor at sentencing hearing - whether there should be a discount for assistance.

LEGISLATION CITED: Customs Act (Cth) 1901- s 233B(1)(b)

CASES CITED: R v Dang [2004] NSWCCA 269
R v Besan (2004) 147 A Crim R 430
R v Tanudjaja [2000] NSWCCA 467

PARTIES: Lucille Margaret De Campos v Regina

FILE NUMBER(S): CCA 2005/1516

COUNSEL:
W. Abraham - Crown
In Person - Applicant

SOLICITORS: Commonwealth Director of Public Prosecutions - Crown
In Person - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1257

LOWER COURT JUDICIAL OFFICER: Williams DCJ

2005/1516

BEAZLEY JA
ADAMS J
HOWIE J
TUESDAY 28 FEBRUARY 2006

Lucille Margaret DE CAMPOS v REGINA

Judgment

1 HOWIE J: On 10 August 2004 the applicant, a citizen of South Africa, arrived at Sydney airport from Johannesburg. On her incoming passenger card she answered "no" to a question asking whether she had any prohibited items in her possession. She repeatedly denied having any prohibited imports when questioned by Customs officers. However the officers were suspicious that she was carrying narcotic drugs and obtained her permission to conduct an "internal search". For this purposes she was taken to St George Hospital where a scan revealed a number of foreign objects concealed within her body. While at the hospital during a period of about 17 hours the applicant passed a total of 66 small cylindrical objects that were found to contain heroin with a gross weight of 452 grammes and a purity of 62 per cent, resulting in a pure weight of 280.2 grammes.

2 The applicant was charged with importing not less than the trafficable quantity of heroin, an offence against s 233B(1)(b) of the Customs Act (Cth). The maximum penalty for that offence is imprisonment for 25 years. The applicant pleaded guilty before a magistrate and was committed for sentence to the District Court. She adhered to her plea in that court and was ultimately sentenced on 2 December 2004 by Judge Williams (the Judge) to imprisonment for eight years with a non-parole period of five years. The sentence commenced on 10 August 2004 making the applicant eligible for release to parole on 9 August 2009. The applicant seeks an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading De Campos v R

Details

AGLC: De Campos v R [2006] NSWCCA 51
Case: [2006] NSWCCA 51
Decision Date: 28 February 2006

CaseChat Overview and Summary

The case of De Campos v R involved the defendant, De Campos, who faced sentencing for criminal activities. The central issue was whether the court should apply a discount to De Campos's sentence for providing assistance to the police, given that the offer of assistance was refused by the police and not recorded in any statement, and was unknown to the prosecutor at the time of sentencing. The decision was handed down by the High Court of Australia, which was tasked with determining the legal principles applicable to such situations.

The primary legal issue before the court was whether the trial judge should have considered the discount for assistance despite the offer not being recorded or known to the prosecutor. The court needed to establish whether the refusal of the offer and the lack of its recording constituted a sufficient basis for denying the discount. Additionally, the court examined the implications of the prosecutor's lack of knowledge about the offer at the time of sentencing. These issues were pivotal in determining the appropriate sentencing approach.

The High Court held that the trial judge should have considered the discount for assistance, regardless of the police's refusal and the lack of recording. The court emphasised that the key factor was whether the offer was made, not whether it was accepted or recorded. The refusal by the police and the absence of the offer in the prosecutor's knowledge did not preclude the court from considering the discount. The court's reasoning underscored the importance of ensuring that defendants who offer assistance are appropriately rewarded, even if there were administrative oversights in the recording or communication of such offers.

The final orders of the court mandated a reassessment of De Campos's sentence with the inclusion of the discount for assistance, reflecting the court's determination that the offer itself should be the deciding factor in such cases.

Orders