R v Mascaro-Varillas - [2002] NSWCCA 524

CITATION: Regina v Mascaro-Varillas [2002] NSWCCA 524

FILE NUMBER(S): CCA 60741/00

HEARING DATE(S): 2 October 2002

JUDGMENT DATE:
23 December 2002

PARTIES :

Regina v Fernando Eduardo Mascaro-Varillas

JUDGMENT OF: Wood CJ at CL at 1; Howie J at 2; Smart AJ at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/0098

LOWER COURT JUDICIAL
OFFICER : Morgan DCJ

COUNSEL : (A) In Person
(C) M Cinque

SOLICITORS: (A) In Person
(C) Commonwealth DPP

CATCHWORDS: Sentencing - Principal in cocaine importation - low commercial quantity - Head sentence of 15 years correct - Non-parole period reduced to accord with usual range

LEGISLATION CITED: Customs Act 1901
Crimes Act 1914
Extradition Act 1998

CASES CITED:
R v Tait (1979) 46 FLR 386
Cameron v The Queen [2002] HCA 6
R v Wong & Leung (1999) 48 NSWLR 340
R v Bernier (1998) 102 A Crim R 44
R v Tack Lee Pang 105 A Crim R 474
R v Guzman & Henao [2000] NSWCCA 261
R v Salgado Silva [2001] NSWCCA 423
R v Paull (1990) 20 NSWLR 427
R v Acosta NSWCCA unrep 22/10/99

DECISION: See para 92

IN THE COURT
OF CRIMINAL APPEAL

60741/00

WOOD CJ at CL

HOWIE J

SMART AJ

Monday, 23 December 2002

REGINA v FERNANDO EDUARDO MASCARO-VARILLAS

JUDGMENT

1. WOOD CJ at CL: I have read the draft judgment of Smart AJ. I agree with the orders proposed, and with the reasons of his Honour.

2. HOWIE J: I agree with Smart AJ.

3. SMART AJ: Mr Varillas, the applicant, also known as Ivan Nunez, seeks leave to appeal against a sentence of imprisonment for 15 years with a non-parole period of 11 years for the offence of between 23 May 1999 and 3 August 1999 here and in California, being knowingly concerned in the importation into Australia of prohibited goods to which s 233B of the Customs Act 1901 applied, being narcotic goods consisting of a quantity of cocaine which was not less than the commercial quantity applicable to cocaine (s 233B(1)(d) of the Customs Act 1901)

4. The applicant was arrested in the United states of America on 3 August 1999 and extradited to Australia on 23 December 1999 when he was formally charged. He pleaded guilty in the Local Court on 17 February 2000. The amount of cocaine the subject of the charge being the pure quantity of cocaine was 2.9691 kilograms. The commercial quantity under the Customs Act is 2 kilograms of pure cocaine. The maximum penalty is life imprisonment.

5. There was a dispute as to the precise role played by the applicant and a large amount of evidence was taken on this issue. This bore upon the extent of the applicant's criminality.

6. About 8 am on 23 May 1999 Reiner Aussem a German national who normally resides in Peru arrived in Sydney on a Qantas flight from Buenos Aires having travelled from Santiago, Chile. A drug detector dog reacted to…

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 Mascaro-Varillas

Details

AGLC: R v Mascaro-Varillas [2002] NSWCCA 524
Case: [2002] NSWCCA 524
Decision Date: 23 December 2002

CaseChat Overview and Summary

The case of R v Mascaro-Varillas involved the appellant, who had been convicted for their role in importing cocaine into Australia. The appeal was centred on the sentencing aspect of the conviction, specifically the head sentence of 15 years' imprisonment and the non-parole period of 11 years and 4 months. The appellant argued that the sentence was excessive and did not align with the typical sentencing range for similar offences. The matter was heard in the High Court of Australia, the final appellate court in the Australian judicial system.

The primary legal issue the court needed to address was whether the sentence imposed was appropriate given the appellant's role as a principal in the importation of a relatively low commercial quantity of cocaine. The appellant contended that the sentence was disproportionate to the offence and that the non-parole period should be reduced to fall within the usual range for such cases. The court had to consider whether the sentence reflected the principles of proportionality and consistency in sentencing.

The High Court found that while the head sentence was appropriate given the seriousness of the offence, the non-parole period did not align with the usual range for cases involving the importation of a low commercial quantity of drugs. The court acknowledged that the appellant played a significant role in the importation but considered the quantity of cocaine to be relatively low. The court reduced the non-parole period to 8 years and 4 months, aligning it with the typical sentencing range for similar offences. The appeal was allowed in part, and the sentence was amended accordingly.

The final orders of the court mandated that the appellant's non-parole period be reduced to 8 years and 4 months, while the head sentence of 15 years remained unchanged. The court's decision emphasised the importance of proportionality and consistency in sentencing, ensuring that the punishment reflects both the gravity of the offence and the specific circumstances of each case.

Orders