Regina v Acosta [1999] NSWCCA 334

New South Wales Court of Criminal Appeal CITATION : Regina v Acosta [1999] NSWCCA 334 FILE NUMBER(S) : CCA 60413/98 HEARING DATE(S) : 22 October 1999 JUDGMENT DATE : 22 October 1999

Regina PARTIES : v Octavio Acosta JUDGMENT OF : Meagher JA; James J; Kirby J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0505 LOWER COURT JUDICIAL OFFICER : Twigg DCJ

COUNSEL : C B Craigie (App) F A Veltro (Crown) SOLICITORS : Ross Hill & Assocs (App) DPP (Cth) CATCHWORDS : CRIMINAL LAW; Practice and Procedure; Appeal against severity of sentence; Non-parole period under Commonwealth law ACTS CITED : Customs Act 1901 - s233B Sentencing Act 1989 - s5(2) CASES CITED: R v Paull (1990) 20 NSWLR 427 R v Buhar (CCA (NSW), unreported, 14/10/98) DECISION : Appeal allowed

IN THE COURT OF

CRIMINAL APPEAL 60413/98

MEAGHER JA JAMES J KIRBY J Friday 22 October 1999

REGINA v Octavio ACOSTA JUDGMENT

1 KIRBY J: The applicant, Octavio Acosta, seeks leave to appeal against the sentence imposed by his Honour Judge Twigg QC on 30 January 1998. Since the notice seeking leave was not lodged until 21 July 1998, Mr Acosta also requires an extension of time. 2 Mr Acosta is charged with an offence under s233B of the Customs Act, 1901. It was said that he imported into Australia the prohibited drug cocaine, in a quantity which was not less than the trafficable quantity for that drug. The Act in Schedule VI defines a trafficable quantity of cocaine as an amount exceeding 2 grams. The amount said to have been imported by Mr Acosta was 1.879 kilograms. The prescribed commercial quantity of cocaine is 2 kilograms, so that the amount imported approaches that level. 3 Mr Acosta pleaded not guilty. After a trial before a jury he was convicted. He was sentenced to 8 years imprisonment with a non-parole period of 6 years. The sentence was backdated to the time that he entered custody, namely the date of his arrival in Sydney, 4 November 1996. 4 The appeal raises two issues. 5 First, it is suggested that his Honour did not appreciate the differences between the sentencing regime established in respect of Commonwealth offences, and that established under the Sentencing Act 1989, New South Wales. His Honour sentenced Mr Acosta, a person convicted under Commonwealth legislation, as though he was a defendant under State legislation. 6 Secondly, that if his Honour did appreciate that he had a separate discretion to fix a non-parole period, as well as the head sentence, the exercise of the discretion miscarried. The non-parole period fixed was inappropriate, and too harsh in the circumstances. No complaint is made about the length of the sentence, that is, a head sentence of 8 years. 7 Before dealing with these grounds I should say something about the offence. Mr Acosta was born in Columbia on 17 December 1943. He is aged 55 years. On 4 November 1996 he arrived at Sydney Airport, having travelled from Argentina. His luggage included four bottles of liquor. One bottle was found to contain cocaine. Mr Acosta said that he had met a man in Buenos Aires the week before. The man had befriended him. Mr Acosta had revealed in conversation that he was undergoing financial difficulties. He had a mortgage of $7,000, and was supporting a wife and five children. Mr Acosta was then asked to perform a service on behalf of this man in return for money. He was given airline tickets and money, as well as the four bottles of alcohol. He was instructed to carry them to Australia. Though he maintained that he had no knowledge of the sinister nature of his cargo, the jury, not surprisingly, rejected his account. 8 The discussion before his Honour on the question of sentence was recorded. A transcript of that discussion appears in the appeal papers. The discussion included the following exchange between the Commonwealth Crown, and his Honour: "BOURKE: Your Honour is not bound by any two-thirds one-third principle, of course, in Commonwealth matters. What the Crown has said, of course…"