Regina v Aussem [2000] NSWCCA 220

New South Wales Court of Criminal Appeal

CITATION : Regina v Aussem [2000] NSWCCA 220 FILE NUMBER(S) : CCA 60028/00; 60323/00 HEARING DATE(S) : Friday, 9 June 2000 JUDGMENT DATE : 9 June 2000

PARTIES : The Crown (Appl) Reiner Aussem (Resp) JUDGMENT OF : Spigelman CJ at 26; Newman J at 1; Adams J at 27

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0485 LOWER COURT JUDICIAL Williams DCJ OFFICER :

COUNSEL : G Farmer (Crown) R Burgess (Resp) SOLICITORS : Commonwealth Director of Public Prosecutions Legal Aid Commission of NSW CATCHWORDS : Criminal law - drug offences - past and future assistance to authorities - calculation of discount for future assistance LEGISLATION CITED : Crimes Act 1914 (Cth) Customs Act 1901 (Cth) CASES CITED: Regina v Wong NSWCCA 420 DECISION : See para 25

IN THE COURT OF

CRIMINAL APPEAL

60028/00 SPIGELMAN CJ NEWMAN J ADAMS J

FRIDAY, 9 JUNE 2000

REGINA v Reiner AUSSEM

JUDGMENT

1 NEWMAN J: This is an appeal brought by the Crown against the alleged inadequacy of sentence passed by Williams DCJ in the District Court on 15 December 1999 and a cross-appeal brought by the respondent on the basis that error had occurred in his Honour's remarks on sentence particularly relating to the imposition of the head sentence. 2 The facts of the matter may be simply expressed in so far as the commission of the relevant offences is concerned. The respondent was apprehended at Sydney airport on 23 May 1999 and found to be carrying on his body a powdered substance which weighed some 4.666 kilograms which on analysis was revealed to contain pure cocaine in the weight of 2.96 kilograms. 3 The offence charged was that the respondent had offended s 233B(1)(b) of the Customs Act 1901 (Cth) in that he had brought in a quantity of cocaine which was not less than the commercial quantity of cocaine. 4 The respondent, who is of German extraction, had been living in South America for a number of years and the source of the cocaine was in South America. Once he was apprehended the respondent proceeded to co-operate fully with the Customs authorities. 5 That co-operation included the respondent being placed at personal risk, he having conversations with one of the conspirators to the importation which were recorded by way of a recording device on his body. A matter obviously leading to great personal hazards as far as the respondent is concerned. 6 Suffice it for me to say that as a consequence of his co-operation the contact man in Australia for the operation, one Sergio Daniel Irusta, was apprehended. Not only apprehended but has now pleaded guilty and was sentenced on 14 April this year in the District Court to a head sentence of six years with a non parole period of four years. 7 The head of the operations in South America, on the evidence before Judge Williams, who is known variously as either Nunez or Varillas has been extradited from South America and this Court understands he is proposing to plead guilty before the District Court on 7 and 8 August next. 8 Pursuant to s 21E of the Crimes Act Cth the respondent has promised to give evidence in relation to those sentence proceedings. His promise, I might say, was more widespread, being an undertaking to give evidence against Irusta and Varillas (Nunez) even if the matter had gone to a full trial. It may be seen at once that the past assistance given by the respondent was considerable. Equally his promise of future assistance by way of giving evidence is not an inconsequential matter. 9 I turn then to the sentence which was imposed by Williams DCJ. His Honour, in the course of his remarks on sentence, in setting the head sentence of eight years adverted to the co-operation which has been given by the respondent to the law enforcement agencies. Not only that, he took into account the plea of guilty and the fact that the respondent has pulmonary difficulties of some moment. His Honour concluded: "It seems to me that taking all these factors into account and making the appropriate deduction under s 16G and taking into account the questions of general deterrence and the like the appropriate head sentence in this matter is one of eight years imprisonment with a non-parole period of five years.