Regina v Gallego - [2002] NSWCCA 529

CITATION: Regina v Gallego [2002] NSWCCA 529

FILE NUMBER(S): CCA 60757/01

HEARING DATE(S): 17 December 2002

JUDGMENT DATE:
17 December 2002

PARTIES :

Regina
Alvaro Ramon Casaubon Gallego

JUDGMENT OF: Sheller JA at 31; Wood CJ at CL at 33; Sully J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0045

LOWER COURT JUDICIAL
OFFICER : McGuire DCJ

COUNSEL : G.J. Bellew - C'wealth Crown
E. Conditsis - Applicant

SOLICITORS: Commonwealth DPP
Conditsis & Associates

LEGISLATION CITED: Customs Act (Commonwealth)
Criminal Appeal Act

CASES CITED:
R v Laurentiu
R v Olbrich
R v Wong; R v Leung (1999) 48 NSWLR 340
TKWJ v The Queen [2002] HCA 46

DECISION: Leave to appeal granted; appeal dismissed

60757/01

SHELLER JA
WOOD CJ at CL
SULLY J
Tuesday 17 December 2002

REGINA v alvaro ramon casaubon gallego

Judgment

1 SHELLER JA: The Court is in a position to give judgment and I will ask Sully J to give the first judgment.

2 SULLY J: Before the Court is an application by Mr Alvaro Ramon Casaubon Gallego. He seeks leave to appeal against the asserted severity of a sentence of imprisonment passed upon him by Judge McGuire sitting in the District Court at Sydney on 2 November 2001.

3 The material facts as they were presented to his Honour are set out sufficiently for present purposes in the following material extracted from his Honour’s remarks on sentence:

“On Thursday 16 November 200, Alvaro Ramon Casaubon Gallego (“the prisoner”) arrived at Sydney Kingsford Smith Airport (SKSA), Australia from Buenos Aires on Aerolines Argentinas flight AR1181.

At about 9.40 am on 16 November 2000 in the hold baggage area, Drug Detector Dog ‘Zar’ reacted to a black “Ping” brand golf bag which had been wrapped in clear plastic and labelled with a white Aerolines Argentinas baggage label which bore the following details:

The golf bag was placed in the oversize baggage collection area and kept under surveillance.

At about 10.25 am, the prisoner was approached by a Customs Officer who examined his suitcase and carry bag. After this examination, the prisoner started swinging his arms in what appeared to be an imitation of a golf swing, said the word ‘golf’ whilst pointing to a baggage carousel and pointed to question 9 on his incoming passenger card, which is a question relating to sporting goods.

Whilst the prisoner was being escorted towards the baggage carousel area, he was approached by another customs officer who was carrying a ‘Ping’ brand golf bag. The prisoner indicated to the golf bag, which was then handed to him.

At about 10.35am 3 lonscan swabs were taken from the base of the black golf bag. The lonscans indicated the presence of cocaine.

At about 10.40am Customs Officers escorted the prisoner to an interview room, where the prisoner admitted that he owned the ‘Ping’ golf bag.

Australian Federal Police (‘AFP’) officers subsequently attended the Customs hall. At about 1.06pm…

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 Regina v Gallego

Details

AGLC: Regina v Gallego [2002] NSWCCA 529
Case: [2002] NSWCCA 529
Decision Date: 17 December 2002

CaseChat Overview and Summary

The case of Regina v Gallego, heard by the New South Wales Court of Criminal Appeal, involved Alvaro Ramon Casaubon Gallego, who was convicted of importing cocaine into Australia. The central issue before the Court was whether the sentence imposed by the District Court was appropriate, and if not, whether there were procedural errors that warranted an appeal. The applicant contested the severity of the sentence and alleged that the District Court had erred in not accepting that he was merely a courier rather than a primary importer of the drugs. Additionally, he argued that he had not received a fair trial due to inadequate warnings and allegedly incompetent legal representation.

The Court of Criminal Appeal examined the evidence and concluded that there was no clear error in the sentencing process. The Court held that it was within the sentencing judge's discretion to determine the applicant's role in the importation and found that the sentence was consistent with guidelines for similar offences. Furthermore, the Court found no substantial evidence of procedural unfairness or incompetent representation, and thus, the appeal was dismissed. The Court granted leave to appeal but dismissed the substantive appeal, affirming the original sentence.

Orders