Regina v Gallego [2002] NSWCCA 529

New South Wales Court of Criminal Appeal

CITATION : Regina v Gallego [2002] NSWCCA 529 FILE NUMBER(S) : CCA 60757/01 HEARING DATE(S) : 17 December 2002 JUDGMENT DATE : 17 December 2002

PARTIES : Regina Alvaro Ramon Casaubon Gallego JUDGMENT OF : Sheller JA at 31; Wood CJ at CL at 33; Sully J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0045 LOWER COURT JUDICIAL McGuire DCJ OFFICER :

COUNSEL : G.J. Bellew - C'wealth Crown E. Conditsis - Applicant SOLICITORS : Commonwealth DPP Conditsis & Associates

LEGISLATION CITED : Customs Act (Commonwealth) Criminal Appeal Act R v Laurentiu CASES CITED: R v Olbrich R v Wong; R v Leung (1999) 48 NSWLR 340 TKWJ v The Queen [2002] HCA 46 DECISION : Leave to appeal granted; appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60757/01

SHELLER JA WOOD CJ at CL SULLY J

Tuesday 17 December 2002 REGINA v alvaro ramon casaubon gallego

Judgment

1 SHELLER JA: The Court is in a position to give judgment and I will ask Sully J to give the first judgment.

2 SULLY J: Before the Court is an application by Mr Alvaro Ramon Casaubon Gallego. He seeks leave to appeal against the asserted severity of a sentence of imprisonment passed upon him by Judge McGuire sitting in the District Court at Sydney on 2 November 2001. 3 The material facts as they were presented to his Honour are set out sufficiently for present purposes in the following material extracted from his Honour's remarks on sentence: "On Thursday 16 November 200, Alvaro Ramon Casaubon Gallego ("the prisoner") arrived at Sydney Kingsford Smith Airport (SKSA), Australia from Buenos Aires on Aerolines Argentinas flight AR1181. At about 9.40 am on 16 November 2000 in the hold baggage area, Drug Detector Dog 'Zar' reacted to a black "Ping" brand golf bag which had been wrapped in clear plastic and labelled with a white Aerolines Argentinas baggage label which bore the following details: 'AR1181 SYD EZE5CAR 2205 14 NOV CASAUBAN GALLEGO/A AR 20-40-23' The golf bag was placed in the oversize baggage collection area and kept under surveillance. At about 10.25 am, the prisoner was approached by a Customs Officer who examined his suitcase and carry bag. After this examination, the prisoner started swinging his arms in what appeared to be an imitation of a golf swing, said the word 'golf' whilst pointing to a baggage carousel and pointed to question 9 on his incoming passenger card, which is a question relating to sporting goods. Whilst the prisoner was being escorted towards the baggage carousel area, he was approached by another customs officer who was carrying a 'Ping' brand golf bag. The prisoner indicated to the golf bag, which was then handed to him. At about 10.35am 3 lonscan swabs were taken from the base of the black golf bag. The lonscans indicated the presence of cocaine. At about 10.40am Customs Officers escorted the prisoner to an interview room, where the prisoner admitted that he owned the 'Ping' golf bag. Australian Federal Police ('AFP') officers subsequently attended the Customs hall. At about 1.06pm the prisoner was conveyed to the Australian Federal Police Headquarters. Whilst arrangements were made for the attendance of a Spanish Interpreter, members of the physical evidence team drilled holes in the golf bag and extracted traces of white powder. A presumptive test on these traces indicated the presence of cocaine. The prisoner was then interviewed with the assistance of a Spanish Interpreter. The prisoner indicated that he wished to contact a solicitor via the Spanish Consulate. A message was left on the answering machine at the Spanish Consulate, to which there was no response. The prisoner indicated that he wished to speak to the Spanish Consulate the following day and the interview was terminated. The prisoner was then conveyed to the Sydney Police Centre where he was formally charged. On 17 November 2000 the AFP conducted a full deconstruction of the golf bag. The golf bag was found to contain a metal cylinder which had been placed into the plastic shell of the golf bag. Concealed between the outer and inner walls of the metal cylinder was a package containing 1676.6 grams of an off-white powder. A sample of the powder was sent to the Australian Forensic Drug Laboratory for analysis, which indicated that the powder contained 66.5% cocaine, giving a net pure weight of 1114.9 grams of cocaine. Later enquiries with KLM Dutch Airlines found that the airline ticket for travel from Barcelona to Quito in South America had one baggage label for one bag weighing 14 kilograms. Enquiries with Aerolineas Argentineas found that the airline ticket for the leg between Buenos Aires and Sydney the prisoner had two baggage labels for two pieces of checked baggage. Antecedents The prisoner is a Spanish National. He is currently in a defacto relationship from which there is a one and a half year old daughter. The prisoner's wife and daughter did not accompany him to Australia. At the time of his arrest the prisoner was in possession of US$60. The prisoner has no family or property ties within Australia. The prisoner is not previously recorded on Australian Federal Police indices."