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…" and then there is a passage in the transcript which the transcriber could not decipher. Mr Bourke continued: "… is that the usual range is 60 to 75 percent of the head sentence is the appropriate range for a non-parole period. HIS HONOUR: It is the same thing, isn't it? BOURKE: Well, it's very similar, yes…" 9 The discussion continued in respect of other matters. The sentence then imposed by his Honour involved a non-parole period which represented 75 percent of the head sentence. 10 I am persuaded that his Honour was in error, and did not separately address the discretion he had to fix an appropriate non-parole period. It appears from the discussion with counsel, including the passage I have extracted, that his Honour believed that the discretion he was called upon to exercise was similar to that given to him under the Sentencing Act, 1989 s5(2). 11 There are, however, important differences when dealing with Commonwealth offences, requiring his Honour to separately address the issue of the appropriate non-parole period. The approach taken by his Honour reflected his view that the two regimes were similar. The division he made between the head sentence and the non-parole period conforms precisely with the statutory formula under s5(2) of the Sentencing Act, where there are no special circumstances. 12 It is apparent from his Honour's description of Mr Acosta that he did not regard him as falling into the worst class of case. The Crown does not suggest that Mr Acosta could be so regarded. Yet his Honour set a non-parole period representing 75 percent of the sentence, whereas the authorities make it plain that such a division should be reserved for the worst class of case (R v Paull (1990) 20 NSWLR 427 at 435; R v Buhar (CCA (NSW), unreported, 14 October 1998). These authorities, I should say, were not drawn to the attention of his Honour. 13 There is a need, therefore, to re-sentence Mr Acosta. The head sentence has not been challenged, and seems to me appropriate. In fixing the non-parole period, the range that has been accepted in argument before this Court is between 60 and 66 percent of the head sentence in this case. It seems to me appropriate that, somewhere between those two figures, the Court should fix the non-parole period in Mr Acosta's case. 14 He is, as I have said, a man aged 55 years. He has a wife and five children in Argentina. Some of the children are quite young. He has had limited education. He comes from a background of severe poverty. He has no prior convictions either in Australia or in Argentina. He acted as a courier, although in respect of a very large quantity of drugs. He was found by his Honour to be genuinely contrite in respect of the offence. He has been treated for depression and anxiety. Upon his arrival in Australia he spoke almost no English. He has no friends and no family in this country. His isolation has no doubt made his prison sentence the more difficult. I believe, therefore, that the appropriate non-parole period is 5 years. 15 I would therefore propose the following orders: First, that the time for appeal should be extended. Secondly, that leave to appeal should be given. Thirdly, that the appeal should be upheld. Fourthly, that the head sentence of 8 years imposed by Twigg DCJ should be confirmed so that the sentence will expire on 3 November 2004; but so much of the sentence as related to the non-parole period should be quashed, and in lieu of that, the non-parole period should be set at 5 years beginning on 4 November 1996 and expiring on 3 November 2001. 16 MEAGHER JA: I agree. 17 JAMES J: I also agree. I would simply like to add that there are a number of decisions of this Court in which the setting of non-parole periods of more than two-thirds of the head sentence has been approved. Nevertheless, I agree with the judgment of Kirby J and the orders proposed by his Honour. 18 MEAGHER JA: The orders of the Court therefore are the orders proposed by Kirby J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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