Application for leave to appeal granted; Appeal allowed; Sentence below quashed and in lieu sentenced to imprisonment for 10 years and 6 months to date from 9/7/97; specified non-parole period 7 years; earliest date on which eligible for release on parole 8/7/2004.
IN THE COURT OF CRIMINAL APPEAL
No. 60235 / 98
WOOD CJ at CL BELL J SMART AJ
FRIDAY 14 MAY 1999
REGINA (COMMONWEALTH) V JOSE BLANCO
The applicant pleaded guilty to one count of being knowingly concerned in the importation of not less than the trafficable quantity of cocaine, contrary to s 233B of the Customs Act 1901.
He sought leave to appeal against a head sentence of twelve years with a non-parole period of eight years, imposed by the District Court, on the following bases: that the sentence as manifestly excessive; that insufficient weight was given to the plea of guilty, or to the delay in prosecution, or to the fact that the applicant was a young man with a clear record; that the level of sentence for this offence was misapprehended; and that error occurred in determining where the applicant stood in the “hierarchy” of those involved in the importation.
HELD (allowing the application):
(1) Due to the strong case against the applicant, coupled with his attempts in evidence to minimise his involvement, it follows that the guilty plea was barely indicative of contrition, and the discount was properly regarded as relatively insignificant. Ellis(1986) 6 NSWLR 603; Chi Yip Wong & Sai Chue Ng (1988) 39 A Crim R 1; Turner (NSWCCA, 21 August 1991, unreported), cited.
(2) Delay should be taken into account when sentencing an offender for the following reasons: the offender may have been left in uncertain suspense; the offender may have demonstrated rehabilitative progress in the intervening period; and a sentence for a stale crime calls for flexibility of approach, it being in the public interest that those suspected of serious crime be brought to justice quickly Todd (1982) 2 NSWLR 517; Mill(1988) 166 CLR 59; Harrison (1990) 48 A Crim R 197; King (NSWCCA, 24 February 1998, unreported), cited.
(3) The present was not a case which called for consideration of the first two of these matters. However there was a lengthy and unexplained delay in charging the applicant, and insufficient weight was given to this factor in the sentencing process.
(4) Age and prior character are of less significance when offences of this kind are before the court.
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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AGLC
R v Blanco [1999] NSWCCA 121
Case
[1999] NSWCCA 121
Decision Date
CaseChat Overview and Summary
The applicant, Jose Blanco, appealed against a sentence of twelve years with a non-parole period of eight years imposed by the District Court following his guilty plea to being knowingly concerned in the importation of cocaine. The appeal was based on the contention that the sentence was manifestly excessive, that insufficient weight was given to the plea of guilty, the delay in prosecution, the applicant's young age, and clear criminal record, and that the level of sentence for the offence was misapprehended. The Court of Criminal Appeal found that the guilty plea was barely indicative of contrition and that the discount was properly regarded as relatively insignificant. It was also held that there was a lengthy and unexplained delay in charging the applicant, and insufficient weight was given to this factor in the sentencing process. The age and prior character of the applicant were of less significance when offences of this kind were before the court. The Court found that the sentence fell outside the legitimate range for an offender who was a rung above a “mere courier” in relation to a trafficable quantity of cocaine, once allowance was made for the unexplained delay in prosecuting the applicant.
The application for leave to appeal was granted, and the appeal was allowed. The sentence below was quashed, and in lieu thereof, the applicant was sentenced to imprisonment for ten years and six months with a non-parole period of seven years. The sentence was to date from 9 July 1997, and the earliest date on which the applicant would be eligible for release on parole would be 8 July 2004.