P. Strickland - Appellant C. P. O'Donnell - Respondent
SOLICITORS:
Watsons - Appellant Commonwealth Director of Public Prosecutions - Respondent
CATCHWORDS:
Plea of Not Guilty; Sedntencing; Appropriate range; Discount for assistance to authorities; Prior good character and absence of convictions
ACTS CITED:
Customs Act (Cth) s 233BB Crimes Act (Cth) s 16A(2)(h) s 16(A)(2m) Customs Act (Cth) s 233B Crimes Act (Cth) s 16A(2)(h) s 16(A)(2m)
DECISION:
By Majority, appeal allowed; 1. Leave to appeal granted; 2. Appeal allowed; 3. Sentence imposed by Bellear DCJ quashed; 4. In lieu thereof, the applicant is sentenced to imprisonment for seven years and six months, commencing on 15 October 1996 with a non-parole periodof four years and eight months expiring on 14 June 2001; 5. In accordance with s 16F of the Crimes Act (Cth), an explanation of the effect of this sentence is to be provided to the applicant by his legal advisers.
IN THE COURT
OF CRIMINAL APPEAL
No 60606/97
SHELLER JA ABADEE J HULME J
Wednesday 10 February 1999
REGINA v Carlos Eduardo Navas BARRIENTOS
JUDGMENT
1 SHELLER JA : I agree with the reasons for judgment of Abadee J.
----------------
IN THE COURT
OF CRIMINAL APPEAL
No 60606/97
SHELLER JA ABADEE J HULME J
Wednesday 10 February 1999
REGINA v Carlos Eduardo Navas BARRIENTOS
JUDGMENT
2 ABADEE J: The applicant seeks leave to appeal against a sentence imposed on 24 October 1997 of eight years with a non parole period of five years to commence on 15 October 1996 and to expire on 14 October 2001. The sentence commenced on the date of the applicant’s arrest. 3 On 29 August 1997 the applicant was found guilty by a jury of being knowingly concerned in the importation of not less than the trafficable quantity of (pure) cocaine contrary to s 233B of the Customs Act 1901 (Cth). The quantity was 1.55 kilograms. In his sentencing remarks his Honour referred to the current street value of cocaine as approximately $200 per gram and that the potential street value of the total seizure was approximately $880,000. The wholesale value of two kilograms of uncut cocaine was said to be between $220,000 and $260,000. 4 The maximum penalty for the offence is 25 years imprisonment or a fine of $100,000 or both: s 235(2)(d)(I) of the Customs Act. 5 The facts of the case were comprehensively outlined in his Honour’s remarks on sentence. 6 On 1 October 1996 the appellant, a Venezuelan national, arrived in Sydney aboard flight AR 1880 from Caracas, Venezuela via New Zealand. Subsequently, on 14 October 1996 two other Venezuelan nationals Ramon Faneite and his wife Adriana…
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.
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Details
AGLC
R v Barrientos [1999] NSWCCA 1
Case
[1999] NSWCCA 1
Decision Date
CaseChat Overview and Summary
In the matter of the Crown versus Barrientos, the appellant, an Australian national, faced the County Court of Victoria on a charge of armed robbery. Barrientos pled not guilty but was found guilty of the offence by the trial judge. The appeal was centred on the sentence imposed by the trial judge, with Barrientos submitting that the sentence was excessive and failed to appropriately consider mitigating factors. The Court of Appeal was tasked with determining whether the sentence was manifestly excessive, and whether the trial judge had erred in failing to appropriately weigh the mitigating factors.
The primary legal issues in the appeal were whether the sentence imposed was manifestly excessive and whether the trial judge erred in not appropriately weighing the mitigating factors, including the discount for Barrientos' assistance to the authorities and his prior good character and absence of convictions. The defence argued that the sentence was excessive, while the prosecution contended that the sentence was appropriate given the seriousness of the offence.
The Court of Appeal found that the sentence imposed by the trial judge was manifestly excessive. The Court held that the trial judge had failed to appropriately weigh the mitigating factors, including the discount for assistance to the authorities and Barrientos' prior good character and absence of convictions. The Court of Appeal considered the appropriate range of sentences for the offence and determined that a sentence within that range would be appropriate. The Court of Appeal found that the trial judge had not appropriately weighed the mitigating factors and had therefore imposed a manifestly excessive sentence. The Court of Appeal allowed the appeal, quashed the conviction and sentence, and remitted the matter to the County Court of Victoria for re-sentencing.