R v Romero-Cepeda - [2000] NSWCCA 229

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: REGINA v ROMERO-CEPEDA [2000] NSWCCA 229

FILE NUMBER(S):
60718/99

HEARING DATE(S): 9 June 2000

JUDGMENT DATE: 09/06/2000

PARTIES:
Regina v Jorge Romero-Cepeda

JUDGMENT OF: Spigelman CJ Newman J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/11/0280

LOWER COURT JUDICIAL OFFICER: Backhouse QC, DCJ

COUNSEL:
James Fliece (Appellant)
David Staehli (Respondent)

SOLICITORS:
Kremmer Townsend Lawyers (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW - sentencing - drug importation - no disparity of sentence.

LEGISLATION CITED:
Customs Act 1901 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60718/99
SPIGELMAN CJ
NEWMAN J
ADAMS J
Friday 9 June 2000

REGINA v Jorge ROMERO-CEPEDA
JUDGMENT

SPIGELMAN CJ: The Applicant seeks to appeal against the sentence imposed upon him by her Honour Judge Backhouse QC on 5 November 1999. The Applicant pleaded not guilty to a charge of being knowingly concerned in the importation into Australia of prohibited imports, namely 3.5739 kilograms of pure cocaine, being a commercial quantity for purposes of the Customs Act 1901. He was found guilty after a trial by jury. Her Honour sentenced the Applicant to imprisonment for a term of eleven years, with a non-parole period of six and a half years commencing on 22 December 1996, being the day on which he was taken into custody.
The thrust of the Applicant's submissions was that he had a justifiable sense of grievance in that his sentence revealed, it was alleged, a marked disparity with the sentences imposed upon other persons who were involved in the criminal enterprise. The Applicant referred to the well-known principles considered by the High Court in Lowe v The Queen (1984) 154 CLR 606 and Postiglioni v The Queen (1997) 189 CLR 295.
Between 19 September 1966 and 3 January 1997, some twenty-three envelopes containing a quantity of fifty-eight plastic folders impregnated with 3.5739 kilograms of pure cocaine were sent to various addresses in Australia. This had occurred pursuant to a contact originally made between a Mr Castro-Vargas, a resident of Columbia, and a registered police informer known as "Warren". Over time, the Columbian end of the arrangement was taken over by a person called Morris. The envelopes had been addressed to various addresses in Australia set up by Warren at the direction of the National Crime Authority (“NCA”). All of the cocaine was intercepted by the NCA. After interception, the NCA used some of the envelopes as a controlled delivery sample in order to apprehend the participants in the scheme. The controlled delivery sample consisted of twelve plastic folders impregnated with 655.2 grams of pure cocaine.
Her Honour considered a wide range of factors in the course of coming to her decision as to the appropriate sentence. She referred both to the objective circumstances of the offence and also to a number of subjective circumstances of the Applicant to which it is unnecessary to refer…

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 Romero-Cepeda

Details

AGLC: R v Romero-Cepeda [2000] NSWCCA 229
Case: [2000] NSWCCA 229
Decision Date: 9 June 2000

CaseChat Overview and Summary

The case of R v Romero-Cepeda was heard in the High Court of Australia. The defendant, Romero-Cepeda, was convicted for importing a significant quantity of a controlled drug. The primary dispute centred around the sentencing disparity between Romero-Cepeda and a co-offender, who received a lesser sentence. Romero-Cepeda argued that the disparity in sentences amounted to a breach of the principle of parity in sentencing, which requires that similarly situated offenders be treated alike, save for differences that a reasonable sentencing judge could take into account.

The legal issues before the court involved whether the sentencing disparity contravened the principle of parity and whether it was justifiable under the circumstances. The court was required to examine the sentencing principles outlined in Australian law, particularly focusing on the proportionality and equality of sentencing. The court also needed to determine if any differences in the offenders' roles or circumstances could reasonably justify the disparity in sentences.

The court held that the sentencing disparity did not contravene the principle of parity, as there were reasonable grounds to justify the difference in sentences. The co-offender had provided substantial assistance to the authorities, which was a significant mitigating factor that could be taken into account by the sentencing judge. The court found that this assistance was a legitimate reason for the difference in the sentences imposed. Consequently, the High Court dismissed the appeal, upholding the original sentencing decisions of the lower courts.

Orders