R v Contreras-Ortiz

[2000] NSWCCA 328

CITATION:	R v Contreras-Ortiz [2000] NSWCCA 328
FILE NUMBER(S):	CCA 60822/99
HEARING DATE(S):	11 August 2000
JUDGMENT DATE:	11 August 2000
PARTIES :	Carlos Antonio Contreras-Ortiz The Crown
JUDGMENT OF:	Beazley JA at 14; Wood CJatCL at 2; Greg James J at 13

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0450
LOWER COURT JUDICIAL OFFICER :	Freeman DCJ

COUNSEL :	G.P. Craddock for Applicant J. Agius SC for Crown
SOLICITORS:	Legal Aid Commission for NSW C'Wth DPP
DECISION:	Leave to appeal is refused

IN THE COURT OF
CRIMINAL APPEAL

60822/98

BEAZLEY JA
WOOD CJ at CL
GREG JAMES J

FRIDAY 11 AUGUST 2000

REGINA v CARLOS ANTONIO CONTRERAS-ORTIZ

JUDGMENT .

1   BEAZLEY JA: I will ask Wood J to deliver the first Judgment. 2   WOOD J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant in the District Court following his conviction for an offence of knowingly being concerned in the importation of not less than a trafficable quantity of cocaine. The sentence imposed was one of 15 years imprisonment to commence on 28 April 1998 with a non parole period of 11 years. 3   The quantity of cocaine involved was 930 grams pure. It was contained within a projector sent via Fedex Express from Beunos Aries to premises used by the applicant's co-accused for the reception of his mail. After the package was collected it was taken by the applicant, the co-accused and another male to the applicant's home where it was found by police. Although the applicant gave several explanations in his record of interview concerning his participation in the collection of the package and concerning his suspicions as to its contents being either drugs, emeralds or money, he also provided a number of conflicting details concerning his home address and phone numbers. 4   He was found by the sentencing Judge to have been knowingly concerned at a "relatively senior level" in the importation as an overseer. His travel to Australia on a false Mexican passport was found to be for the purpose of overseeing the importation. 5   These findings are not challenged by the applicant on appeal nor could they be. His use of a false passport, the taking of significant steps to establish, and then to assume a false identity, his participation in the collection and storage of the drugs and his pre-shipment travel to Bogota in Columbia and to Quito in Equador, are all indicative of his central involvement in the importation at a level well above that of courier. 6   The sentence is challenged as manifestly excessive, firstly, in the light of a guideline judgment of this Court in Wong and Leung 108 ACrimR 531, where it was suggested that the appropriate range of sentence for a courier involved in the importation of a mid level trafficable quantity of heroin or cocaine was six to nine years, and, secondly, by comparison with the sentences of fourteen years with nine year non parole periods imposed upon Wong and Leung by the Court when it came to re-sentence them. 7   It was submitted that, since their offences had involved 9.356 Kgs of heroin, a quantity described at the “very top of the significant commercial range”, the sentence imposed for the present offence, which involved cocaine of 930 grams purity, must be excessive. 8   Wong and Leung was decided after the applicant was sentenced, and as a result his Honour did not have the advantage of the guideline it provided. Although special leave to appeal to the High Court has been granted, I do not consider that fact to be a bar to the determination of this application, since the point on appeal to the High Court is concerned solely with the jurisdiction of State Courts to deliver guideline judgments in relation to matters prosecuted under Federal law. 9   The sentence was, on its face, high, when compared with the range declared in Wong and Leung and the sentences there imposed. However, there are three distinguishing features in this case:

(a) the applicant did not plead guilty whereas the guideline is applicable for a guilty plea;

(b) the applicant was an overseer found to have been engaged at a fairly senior level, and having been knowingly concerned in the importation from its very beginning, rather than a courier recruited late in the venture, to whom the guideline is applicable;

(c) Wong and Leung were resentenced following a Crown Appeal and, in accordance with the principle of double jeopardy, the sentences imposed upon them must be assumed to have been the least sentences that could properly have been imposed at first instance. Rose NSW CCA 23 May 1996, and McDonald NSW CCA 12 October 1998.

10   These features do, to my mind, sufficiently differentiate the present case from Wong and Leung. While the sentence is condign, and towards the top of the range for the objective criminality involved, I am not persuaded it is outside the range. As this Court has made crystal clear on many occasions, those who seek to bring the detestable substance of cocaine into this country, particularly those who participate as principals or overseers, do so to at their own peril in view of the need for heavily deterrent sentences in such matters. 11   I would refuse leave to appeal. 12   BEAZLEY JA: I agree. 13   GREG JAMES J: I also agree. 14   BEAZLEY JA: Leave to appeal is refused.

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