Regina v Ocampo-Campuzano

[1999] NSWCCA 179

CITATION:	Regina v Ocampo-Campuzano [1999] NSWCCA 179
FILE NUMBER(S):	CCA 60710/98
HEARING DATE(S):	2 July 1999
JUDGMENT DATE:	2 July 1999
PARTIES :	Regina v Jose Dorance Ocampo-Campuzano
JUDGMENT OF:	Grove J at 1; Abadee J at 9; Smart AJ at 10

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0260
LOWER COURT JUDICIAL OFFICER:	Patten DCJ

COUNSEL:	M. Ierace with R. Bromwich (Crown) In person (Applicant)
SOLICITORS:	Commonwealth Director of Public Prosecutions -
CATCHWORDS:	Criminal Law and Procedure - Sentence - Prohibited Drug Importation - Courier - No Special Point of Principle
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60710/98

GROVE J
ABADEE J
SMART AJ

2 July 1999

REGINA v JOSE DORANCE OCAMPO-CAMPUZANO


JUDGMENT

1    GROVE J: This is an application for leave to appeal against sentence. The applicant appears for himself without any legal representation.
2    He arrived in Australia on 4 March 1998 aboard a flight which originated in Buenos Aires in Argentina. The applicant is a citizen of Colombia. Upon arrival in Australia a brief case he was carrying attracted the attention of the Customs Service and Australian Federal Police were called. A false bottom in his brief case was opened and found to contain white powder, later analysed to be cocaine with a total pure nett weight of 844.6 grams. Initially the applicant told police that he was hoping to migrate to Australia with his family and had brought the cocaine with the intention of selling it presumably to fund re-establishment of his family in this country. He was arrested and charged. Later he requested further interview with Federal Police and he asserted that he had brought the prohibited drug into the country at the request of a man named Fernando Lopez. Subsequent inquiries have not located this individual.

3    It should be commented that the trial Judge dealt with the applicant on the basis that he was a courier, that is to say the second version given to Federal Police, rather than as a principal acting on his own behalf. Whilst the learned sentencing Judge expressed some scepticism, which is entirely understandable, it follows that the applicant was dealt with on the basis that his participation in the offence was not as serious as it would have been had he been treated as a principal.

4    The applicant was sentenced to imprisonment for eight years with a non-parole period of five years. It should be commented also that that sentence is well within the range of anticipated sentences for those who act as couriers for the importation of drugs into this country. The sentencing Judge made reference to the matters which I have sketched and took into account matters advanced on behalf of the applicant who was represented at the sentencing proceedings. His Honour was clearly conscious of the applicant's claims of concern for his family, including concern arising out of asserted threats emanating from the as yet unlocated man Lopez. It is almost trite to observe that those who involve themselves in international drug trafficking must expect condign sentences when they are caught.

5    In response to the Registrar's directions the applicant has sent a short note setting out what he describes as written argument in support of appeal. Having regard to the applicant's handicaps with the English language no doubt he had some assistance in formulating this letter. The first two propositions assert that he was unaware of the prohibited drug in his suitcase and unaware that he was committing an offence. Those are not available assertions to be advanced in this application. In so far as by implication it is sought to go behind the plea of guilty, no material is advanced to this court entitling the applicant to such an order. The third matter raised in the correspondence is an acknowledgment that the applicant is aware that he is being punished for his crime. The inconsistency of that acknowledgment with the previous two grounds can be observed and he says that he is truly remorseful. He remarks he is feeling that life is difficult being separated from his wife and two daughters.

6    This morning he informed the court that in January this year there had been an earthquake in his home city and this is adding to his concern about his family. The expression of general concern related of course to a matter which was taken into account by the sentencing Judge and it is not a matter which would cause the invocation of the jurisdiction of this court. The happening of the earthquake was obviously an event which occurred subsequent to the sentencing proceedings in October last year. On the scant information before the court I would draw the inference that whilst the concern of the applicant is understandable his family would be in the same position as other residents of the city afflicted by that disaster. The circumstance does not give rise to the exercise of jurisdiction by this court.

7    It needs to be understood by the applicant that the jurisdiction of this court is founded upon error and it is not a court of general review. I made earlier reference to the remarks on sentence in the court below. Those remarks demonstrate no error in assessment or weighing of the circumstances, and certainly no error of law. In those circumstances this application cannot succeed. Given the length of the sentence it is appropriate to grant leave to appeal but its failure is, in my view, inevitable.

8    I propose that leave to appeal be granted but that appeal be dismissed.

9    ABADEE J: I agree.

10    SMART AJ: I agree.

11    GROVE J: The orders of the court will be as I have proposed.
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