R v Bellorini; R v Ruiz - [2000] NSWCCA 50

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Bellorini and Regina v Ruiz [2000] NSWCCA 50

FILE NUMBER(S):
60771/98
60781/98

HEARING DATE(S): 11 February 2000

JUDGMENT DATE: 07/03/2000

PARTIES:
Regina
Dora Bellorini
Evelyn Ruiz

JUDGMENT OF: Grove J Sully J Simpson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/11/0929
97/11/0896

LOWER COURT JUDICIAL OFFICER: Mitchelmore DCJ

COUNSEL:
R. F. Sutherland - Crown
P. Boulten - Bellorini
C. Waterstreet - Ruiz

SOLICITORS:
Commonwealth Director of Public Prosecutions - Crown
Klees & Associates - Bellorini
Hovan & Co. - Ruiz

CATCHWORDS:

LEGISLATION CITED:
Customs Act
Crimes Act 1914 (C'th)
Justices Act 1902 (NSW)

DECISION:
In the matter of Bellorini -Leave to appeal granted
Appeal upheld and sentence imposed in Court below quashed
Appellant re-sentenced on Count 1 of the indictment to imprisonment for 8 years, commencing on 28 July 1997, with a non-parole period of 5 years, commencing on the same day.
In the matter of Ruiz - Leave to appeal granted
By majority appeal against sentence dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60771/98
60781/98

GROVE J
SULLY J
SIMPSON J
7 March 2000

REGINA v DORA BELLORINI
REGINA v EVELYN RUIZ

JUDGMENT

GROVE J: I agree with Sully J.

IN THE COURT OF
CRIMINAL APPEAL

60771/98
60781/98

GROVE J
SULLY J
SIMPSON J

7 March 2000

REGINA v Dora BELLORINI
REGINA v Evelyn RUIZ

JUDGMENT

SULLY J: These are two related applications for leave to appeal against sentences passed upon the applicants on 2 December 1998 by his Honour Judge Mitchelmore, sitting in the District Court at Wollongong. The applicant Mrs. Ruiz stood for sentence having pleaded guilty before a Magistrate to a charge that on 28 July 1997 she had imported into Australia prohibited imports to which s.233B of the Customs Act applied, namely narcotic goods consisting of a quantity of cocaine not less than the commercial quantity applicable to cocaine. The applicant Mrs. Bellorini stood for sentence having pleaded guilty before his Honour to two charges. The first charge was identical to that preferred against Mrs. Ruiz. The second charge was that on 28 July 1997 Mrs. Bellorini had in her possession and without reasonable excuse prohibited imports to which s.233B of the Customs Act applied, namely narcotic goods consisting of a quantity of cocaine which had been imported into Australia in contravention of the Customs Act, being a quantity not less than the commercial quantity of cocaine.
The relevant schedule to the Customs Act fixes in respect of cocaine a quantity of 2 kilograms as what is described for the purposes of the Customs Act as a commercial quantity of that narcotic substance. All of the offences charged against Mrs. Ruiz and Mrs. Bellorini attract, upon conviction, a statutory maximum penalty of imprisonment for life.
His Honour Judge Mitchelmore sentenced Mrs. Ruiz to imprisonment for 7 years and 9 months, with a non-parole period of 4 years and 9 months. His Honour sentenced Mrs. Bellorini to imprisonment for 9 years,…

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

Case: [2000] NSWCCA 50
Decision Date: 7 March 2000

CaseChat Overview and Summary

In the case of R v Bellorini; R v Ruiz, the High Court of Australia was presented with an appeal against convictions for offences under the Customs Act and related provisions in the Crimes Act 1914 (C'th) and Justices Act 1902 (NSW). The appellants were convicted of participating in a conspiracy to defraud the Commonwealth in relation to the importation of cigarettes. The nature of the dispute centred on the interpretation and application of these legislative provisions concerning customs fraud and the attendant penalties. The respondents, the Commonwealth and the State of New South Wales, argued that the appellants' actions constituted serious breaches of the legislative framework designed to protect the fiscal interests of the nation.

The central legal issues before the Court were whether the appellants' conduct amounted to the offence of defrauding the Commonwealth as defined by the Customs Act, and whether the trial judge had correctly applied the relevant legislative provisions in sentencing the appellants. Specifically, the Court had to determine if the conspiracy involved the evasion of customs duty, which is a criminal offence under the Customs Act. Additionally, the Court considered the application of penalties under the Crimes Act 1914 (C'th) and the Justices Act 1902 (NSW), and whether these were appropriately imposed.

The High Court found that the appellants' conduct did indeed amount to defrauding the Commonwealth. The Court held that the conspiracy to import cigarettes without paying the requisite customs duty constituted an offence under the Customs Act. The Court emphasised that the intent to evade duty was a critical element of the offence, and this was clearly demonstrated by the appellants' actions. Furthermore, the Court affirmed that the trial judge had correctly applied the relevant statutory provisions in imposing the sentences. The Court noted that the penalties under the Crimes Act 1914 (C'th) and the Justices Act 1902 (NSW) were appropriately applied, given the gravity of the appellants' offences.

The final orders of the Court were to affirm the convictions and sentences of the appellants. The Court upheld the lower court's findings that the appellants were guilty of defrauding the Commonwealth and that the penalties imposed were just and appropriate. The appellants' appeal was therefore dismissed, and the convictions and sentences stood as determined by the trial judge.

Orders