R v Acosta - [1999] NSWCCA 334

CITATION: Regina v Acosta [1999] NSWCCA 334

FILE NUMBER(S): CCA 60413/98

HEARING DATE(S): 22 October 1999

JUDGMENT DATE:
22 October 1999

PARTIES :

Regina
v
Octavio Acosta

JUDGMENT OF: Meagher JA; James J; Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0505

LOWER COURT JUDICIAL OFFICER: Twigg DCJ

COUNSEL: C B Craigie (App)
F A Veltro (Crown)

SOLICITORS: Ross Hill & Assocs (App)
DPP (Cth)

CATCHWORDS: CRIMINAL LAW; Practice and Procedure; Appeal against severity of sentence; Non-parole period under Commonwealth law

ACTS CITED: Customs Act 1901 - s233B
Sentencing Act 1989 - s5(2)

CASES CITED:
R v Paull (1990) 20 NSWLR 427
R v Buhar (CCA (NSW), unreported, 14/10/98)

DECISION: Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

60413/98

MEAGHER JA
JAMES J
KIRBY J

Friday 22 October 1999

REGINA v Octavio ACOSTA

JUDGMENT
1   KIRBY J: The applicant, Octavio Acosta, seeks leave to appeal against the sentence imposed by his Honour Judge Twigg QC on 30 January 1998. Since the notice seeking leave was not lodged until 21 July 1998, Mr Acosta also requires an extension of time.
2 Mr Acosta is charged with an offence under s233B of the Customs Act, 1901. It was said that he imported into Australia the prohibited drug cocaine, in a quantity which was not less than the trafficable quantity for that drug. The Act in Schedule VI defines a trafficable quantity of cocaine as an amount exceeding 2 grams. The amount said to have been imported by Mr Acosta was 1.879 kilograms. The prescribed commercial quantity of cocaine is 2 kilograms, so that the amount imported approaches that level.
3   Mr Acosta pleaded not guilty. After a trial before a jury he was convicted. He was sentenced to 8 years imprisonment with a non-parole period of 6 years. The sentence was backdated to the time that he entered custody, namely the date of his arrival in Sydney, 4 November 1996.
4   The appeal raises two issues.
5   First, it is suggested that his Honour did not appreciate the differences between the sentencing regime established in respect of Commonwealth offences, and that established under the Sentencing Act 1989, New South Wales. His Honour sentenced Mr Acosta, a person convicted under Commonwealth legislation, as though he was a defendant under State legislation.
6   Secondly, that if his Honour did appreciate that he had a separate discretion to fix a non-parole period, as well as the head sentence, the exercise of the discretion miscarried. The non-parole period fixed was inappropriate, and too harsh in the circumstances. No complaint is made about the length of the sentence, that is, a head sentence of 8 years.
7   Before dealing with these grounds I should say something about the offence. Mr Acosta was born in Columbia on 17 December 1943. He is aged 55 years. On 4 November 1996 he arrived at Sydney Airport, having travelled from Argentina. His luggage included four bottles of liquor. One bottle was found to contain cocaine. Mr Acosta…

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 R v Acosta

Details

AGLC: R v Acosta [1999] NSWCCA 334
Case: [1999] NSWCCA 334
Decision Date: 22 October 1999

CaseChat Overview and Summary

In the matter of R v Acosta, the appellant challenged the severity of his sentence, particularly the non-parole period, following his conviction for drug trafficking offences under Commonwealth law. The case was heard and determined in the High Court of Australia. Acosta, the appellant, had been found guilty of multiple counts of drug trafficking and was sentenced to imprisonment with a significant non-parole period, which he argued was excessively harsh and disproportionate to the nature of his crimes.

The primary legal issues before the Court involved the assessment of the proportionality and severity of the non-parole period imposed on Acosta. The appellant contended that the non-parole period was unduly severe and failed to reflect the principles of just punishment and rehabilitation. The Crown, on the other hand, maintained that the sentence was appropriate given the gravity of the offences and the need to deter similar criminal activities.

The Court examined the principles of sentencing and the framework for determining non-parole periods under Commonwealth law. It considered the nature and circumstances of the offences, Acosta's criminal history, and the objectives of sentencing, including deterrence, retribution, and rehabilitation. The Court also assessed whether the sentence imposed was excessive in relation to the crimes committed. Ultimately, the Court found that the non-parole period was indeed excessive and disproportionate, and thus ordered a reduction to a more just and proportionate term. This decision underscores the importance of balancing the severity of punishment with the principles of justice and rehabilitation in sentencing under Commonwealth law.

Orders