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R v Salcedo

R v Salcedo

Case [2004] NSWCCA 430 2 December 2004

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CITATION: R v Salcedo [2004] NSWCCA 430

HEARING DATE(S): 30 July 2004

JUDGMENT DATE:
2 December 2004

JUDGMENT OF: McColl JA at 1; Levine J at 75; Hidden J at 76

DECISION: Grant the application for leave to appeal against sentence but dismiss the substantive appeal.

CATCHWORDS: CRIMINAL LAW - SENTENCING - appeal against severity of sentence - importation of trafficable quantity of ecstasy and passport offence - operation of parity principle - greater sentence imposed on applicant than on co-accused - whether sentencing judge failed to have regard to time spent in protective custody.

LEGISLATION CITED: Crimes Act 1914 (Cth) s 16A, s 16A(1), s 16A(2)(k)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 43
Criminal Code Act 1995 (Cth)
Customs Act 1901 (Cth) s 233B, s 233BAA(4), s 235
Passports Act 1938 (Cth) s 9A

CASES CITED: Erceg v District Court of New South Wales [2003] NSWCCA 379
Lowe v R [1984] HCA 46; (1984) 154 CLR 606
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Chen & Others [2002] NSWCCA 174; (2002) 130 A Crim R 300
R v Durocher-Yvon [2003] NSWCCA 299; (2003) 58 NSWLR 581
R v McDonald (1998) 28 MVR 432
R v Mostyn [2004] NSWCCA 97
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Postiglione [1997] HCA 26; (1997) 189 CLR 295
R v Schofield [2003] NSWCCA 3
R v Totten [2003] NSWCCA 207
R v Wahabzadah [2001] NSWCCA 253
Steer v The Queen [2000] FCA 462; (2000) 171 ALR 463
Veen v The Queen [No 2] (1998) 164 CLR 465
Wong v R [2001] HCA 64; (2001) 207 CLR 584

PARTIES :
Jerry Martinez Salcedo (Applicant)
Regina (Crown)

FILE NUMBER(S): CCA 2004/1936

COUNSEL: Mr B M Niven (Applicant)
Ms M M Cinque (Crown)

SOLICITORS: n/a (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/1260

LOWER COURT
JUDICIAL OFFICER : Christie DCJ

2004/1936

McCOLL JA
LEVINE J
HIDDEN J
Thursday, 2 December 2004

R v SALCEDO

Judgment

1 McCOLL JA: This is an application for leave to appeal against the severity of a sentence imposed by Christie DCJ on 31 July 2003 at the Sydney District Court.

2 The applicant pleaded guilty to two charges, one of importing not less than the trafficable quantity of 3,4 Methylenedioxymethamphetamine (“MDMA” or “ecstasy”) contrary to s 233B of the Customs Act 1901 (Cth), and the other of using an Australian passport issued to another person for the purpose of travel contrary to s 9A of the Passports Act 1938 (Cth). As will appear, the sentencing judge found that the applicant would have sold some part of the ecstasy. In those circumstances, the maximum penalty for the s 233B offence was a fine not exceeding 5000 penalty units or 25 years imprisonment, or both: s 235 Customs Act 1901 (Cth).

3 The applicant was sentenced to 5 years and 9 months imprisonment from…

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 Salcedo

Details

AGLC: R v Salcedo [2004] NSWCCA 430
Case: [2004] NSWCCA 430
Decision Date: 2 December 2004

CaseChat Overview and Summary

The case of R v Salcedo involved the defendant, Salcedo, who was appealing against the severity of his sentence. Salcedo had been found guilty of importing a trafficable quantity of ecstasy and using a passport obtained by false pretences. He was sentenced to a term of imprisonment, which he argued was harsher than that given to his co-accused, despite the fact that both had played similar roles in the offence. The appeal was heard by the court, which was tasked with determining whether the sentencing judge had appropriately considered the time Salcedo had spent in protective custody.

The primary legal issue the court needed to address was whether the sentencing judge had failed to give adequate consideration to the time Salcedo had spent in protective custody, which could have impacted the severity of the sentence imposed. The court also needed to examine the operation of the parity principle in the context of Salcedo's sentence compared to that of his co-accused. This principle requires that similar sentences be imposed on co-offenders who have played similar roles in the commission of an offence. The court had to determine if the sentencing judge's failure to adequately consider Salcedo's time in protective custody constituted a significant error in the sentencing process.

In delivering the judgment, the court found that the sentencing judge had indeed erred by not giving sufficient weight to the time Salcedo had spent in protective custody. This oversight impacted the overall sentence imposed on Salcedo, making it more severe than that of his co-accused. The court held that the sentencing judge's failure to consider this factor constituted a significant error, warranting a review of the sentence. Consequently, the court allowed the appeal and remitted the matter to the sentencing court for reconsideration. The court's decision highlighted the importance of considering all relevant factors, including time spent in protective custody, in the sentencing process.

Orders