R v Guiu

Case [2002] NSWCCA 181 21 May 2002

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. GUIU [2002] NSWCCA 181 revised - 21/05/2002

FILE NUMBER(S):
No. 60629 of 2000

HEARING DATE(S): Friday 26 April 2002

JUDGMENT DATE: 21/05/2002

PARTIES:
REGINA v.
GUIU, Carmen Rusinol

JUDGMENT OF: Hodgson JA Barr J Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0315

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace, DCJ.

COUNSEL:
Crown: R. Bromwich
App: P.R. Boulten

SOLICITORS:
Crown: Commonweath DPP
App: Mark Klees & Associates

CATCHWORDS:
Criminal law - sentence - appeal - drug offence - offence of attempt to obtain possession of prohibited imports - co-offenders charged with importation - respective roles - necessity for sentence to relate to offence charged rather than more culpable offence - necessity for proper finding and evidentiary support to define more culpable role - parity - principles in Regina v. De Simoni and Regina v. Olbrich considered.

LEGISLATION CITED:
Customs Act (Cth) 1901
Crimes Act (Cth) 1914
Crimes (Sentencing Procedure) Act (NSW) 1999

DECISION:
Leave to appeal granted. Appeal upheld. Sentence passed below quashed. In lieu thereof, the applicant be sentenced to six years imprisonment with a non-parole period of three years, nine months to date from 20 April 1999. The sentence will expire on 19 April 2005. The non-parole period will expire on 19 January 2003.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 60629 of 2000
HODGSON, JA.
BARR, J.
GREG JAMES, J.
TUESDAY 21 MAY 2002

REGINA v. CARMEN RUSINOL GUIU

Judgment

HODGSON, JA: I agree with the orders proposed by Greg James, J. and generally with his reasons.
The sentencing judge noted that it would offend against the principle in R v. De Simoni (1981) 147 CLR 383 to have regard to criminality involved in crimes with which the applicant had not been charged, and undertook a very careful evaluation of the culpability of the applicant. Accordingly, when the sentencing judge found that the applicant’s “role in this importation” was “of considerably more importance than that of Ferrer”, that should not be understood as suggesting that the judge was proceeding on the basis that the applicant could be sentenced for her role in the importation: rather, “importation” there must, in the light of the judge’s reference to De Simoni, be understood as referring to the overall enterprise which included both importation and initial disposal within Australia.
But even so, it seems to me that there was error in the sentencing judge’s analysis. In this case, it was important to have firmly in view that the applicant was not being sentenced in respect of any role whatsoever in the actual importation of drugs, so that any finding as to knowledge or even involvement in the importation could only be used to assess her culpability in relation to the limited involvement with which she was charged, namely her attempt to obtain possession of drugs already brought to Australia. It was appropriate, with a view to avoiding lack of parity, to compare the culpability of the three…

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 Guiu

Details

AGLC: R v Guiu [2002] NSWCCA 181
Case: [2002] NSWCCA 181
Decision Date: 21 May 2002

CaseChat Overview and Summary

The case of R v Guiu was an appeal against sentence by the appellant, who had been convicted of an attempt to obtain possession of prohibited imports. The appellant was one of several individuals involved in the importation of drugs into Australia. The case came before the court for the purpose of determining whether the sentence imposed was appropriate in light of the appellant's role in the offence. The legal issues before the court were whether the sentence should reflect the offence charged rather than a more culpable offence, and whether there was proper evidentiary support for any findings that the appellant played a more significant role than that for which he was charged.

The court considered the principles set out in previous cases, namely Regina v. De Simoni and Regina v. Olbrich, which held that a sentence should be proportionate to the offence for which the defendant is charged, and that any findings of a more significant role must be properly supported by evidence. The court held that the sentence imposed on the appellant was not appropriate as it did not adequately reflect the offence for which he was charged. The court found that there was insufficient evidence to support any finding that the appellant played a more significant role than that for which he was charged, and that the sentence should therefore be proportionate to the offence of attempt to obtain possession of prohibited imports. The court quashed the sentence imposed and ordered a re-sentencing hearing to determine an appropriate sentence for the offence charged.

The final orders of the court were that the sentence imposed on the appellant be quashed and that a re-sentencing hearing be held to determine an appropriate sentence for the offence of attempt to obtain possession of prohibited imports. The court emphasised the importance of ensuring that any sentence imposed is proportionate to the offence charged, and that any findings of a more significant role must be properly supported by evidence. The court's decision in R v Guiu provides guidance for sentencing courts in cases involving co-offenders with differing roles, and highlights the need for careful consideration of the principles set out in previous cases.

Orders