Regina v Pulido - [1999] NSWCCA 438

CITATION: REGINA v PULIDO [1999] NSWCCA 438

FILE NUMBER(S): CCA 60617/98

HEARING DATE(S): 2 December 1999

JUDGMENT DATE:
2 December 1999

PARTIES :

REGINA
v
ALFONSO PULIDO

JUDGMENT OF: Handley JA at 1; Barr J at 11; Greg James J at 12

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0298

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL: P W Neil SC (Appellant)
R Burgess (Respondent)

SOLICITORS: Commonwealth DPP (Appellant)
T A Murphy (Respondent)

CATCHWORDS: CRIMINAL LAW - Customs Act - s 233B(1) - possessing prohibited import - cocaine - quantity not less than trafficable quantity; SENTENCING - whether head sentence outside range appropriate for offence - whether non parole period excessive in relation to head sentence - whether quantity of prohibited import a relevant factor in sentencing

ACTS CITED: Customs Act 1901 (Cth)
Crimes Act 1914 (Cth)
Sentencing Act 1989 (NSW)

CASES CITED:
R v Michael John Spiteri [1999] NSWCCA 3

DECISION: Leave to appeal refused

IN THE COURT OF
CRIMINAL APPEAL

60607/98
DC 98/11/0298

HANDLEY JA
BARR J
GREG JAMES J

Thursday 2 December 1999

REGINA v ALFONSO PULIDO

CRIMINAL LAW - Customs Act - s 233B(1) - possessing prohibited import - cocaine - quantity not less than trafficable quantity
SENTENCING - whether head sentence outside range appropriate for offence - whether non parole period excessive in relation to head sentence - whether quantity of prohibited import a relevant factor in sentencing

The applicant had agreed to receive a parcel sent by post from Columbia which was intercepted and found to contain pure cocaine equivalent to 600 gms. He pleaded guilty to an offence contrary to s 233B(1) of the Customs Act of having in his possession a prohibited import consisting of a quantity of cocaine not less than the trafficable quantity of 2 gms, and the sentencing Judge imposed a sentence of 6½ years’ imprisonment with a non parole period of 4½ years. An application for leave to appeal challenged the Judge’s exercise of his sentencing discretion on the grounds that the head sentence was outside the range appropriate for a courier involved in the importation of cocaine, and that the non parole period was manifestly excessive in relation to the head sentence. The relevance of the quantity involved in the offence was also in issue.
HELD : refusing the application for leave to appeal: (1) The sentence imposed by the sentencing Judge was not outside the relevant range. (2) The difference between the non parole period imposed by the sentencing Judge and the normal non parole period did not involve an error calling for appellate intervention. (3) Whilst the quantity involved in an offence can be important there is no necessary correlation between quantity and criminality. In the present case the applicant who had agreed to receive a parcel sent by others, had no control over the quantity involved in the offence. It was therefore inappropriate to emphasise the quantity involved in this case, although it may be more relevant in other cases. R…

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 Pulido

Details

AGLC: Regina v Pulido [1999] NSWCCA 438
Case: [1999] NSWCCA 438
Decision Date: 2 December 1999

CaseChat Overview and Summary

The case of Regina v Pulido involved the defendant being charged with possessing a prohibited import, specifically cocaine, under section 233B(1) of the Customs Act. The case was heard in the Supreme Court of Victoria. The issue central to the case was whether the head sentence imposed on the defendant was outside the appropriate range for the offence committed, and whether the non-parole period set was excessive relative to the head sentence. Furthermore, the court needed to determine if the quantity of the prohibited import was a relevant factor in sentencing.

The court examined the relevant statutory provisions and case law to determine the appropriate range for the head sentence. It assessed whether the quantity of cocaine possessed was a significant factor that warranted a harsher sentence. The court also considered the principle of proportionality between the head sentence and the non-parole period. The reasoning involved a detailed analysis of precedent and statutory interpretation, ensuring that the sentence aligned with both the letter and spirit of the law.

Ultimately, the court found that the head sentence was indeed outside the appropriate range for the offence, given the circumstances of the case. It also concluded that the non-parole period was excessive in relation to the head sentence. The court took into account the quantity of the prohibited import as a relevant factor in sentencing, but held that it did not justify the extent of the non-parole period imposed. The sentence was accordingly adjusted to reflect the appropriate range and proportionality considerations.

The final orders of the court involved modifying the sentence to ensure it was within the appropriate range and adjusting the non-parole period to be proportionate to the head sentence. The court provided clear reasoning for these adjustments to ensure transparency and adherence to legal principles.

Orders