REGINA v PULIDO [1999] NSWCCA 438

New South Wales Court of Criminal Appeal CITATION : REGINA v PULIDO [1999] NSWCCA 438 FILE NUMBER(S) : CCA 60617/98 HEARING DATE(S) : 2 December 1999 JUDGMENT DATE : 2 December 1999

REGINA PARTIES : 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 Customs Act 1901 (Cth) ACTS CITED : 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 v Michael John Spiteri [1999] NSW CCA 3 referred to. ORDERS