Alejandro Lopez Duque v The Queen - [2019] VSCA 212

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0194

ALEJANDRO LOPEZ DUQUE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA and TINNEY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2019
DATE OF JUDGMENT:	25 September 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 212
JUDGMENT APPEALED FROM:	DPP v Villalobos (Unreported, County Court of Victoria, Judge Stuart, 23 August 2018)

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CRIMINAL LAW – Appeal – Sentence – Attempted possession of marketable quantity of border controlled drug – Quantity equated to 403 grams of pure cocaine – Pleas of guilty – Applicant sentenced to 6 years’ imprisonment with non-parole period of 4 years – Co-offender sentenced to 4 years’ imprisonment with non-parole period of 2 years and 6 months – Whether sentencing judge erred by considering facts elicited from co-offender’s record of interview in sentencing applicant – Open to sentencing judge to find that applicant played more significant role – Whether undue disparity in sentences between applicant and co-offender – Concession by counsel on the plea that the applicant ought to receive a heavier sentence than his co-offender – No justifiable sense of grievance – Leave to appeal refused – Lowe v The Queen (1984) 154 CLR 606; Nguyen v The Queen (2011) 31 VR 673.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Papa Hughes Lawyers
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

WEINBERG JA
TINNEY AJA:

The applicant and a co-offender, Francisco Villalobos, each pleaded guilty to having attempted to possess a marketable quantity of a border controlled drug (cocaine) contrary to ss 11.1(1) and 307.6(1) of the Commonwealth Criminal Code 1995. On 23 August 2018, they were sentenced together, after separate plea hearings. The applicant was sentenced to a term of 6 years’ imprisonment with a non-parole period of 4 years. Villalobos was sentenced to 4 years’ imprisonment with a non-parole period of 2 years and 6 months. The maximum penalty for that offence is 25 years’ imprisonment.

The applicant now seeks leave to appeal against his sentence. He relies upon the following grounds:

Ground 1: The learned sentencing judge erred by making a finding in relation to the applicant’s role that went beyond the prosecution summary and which was based on a comment made by Villalobos in his record of interview, and denying the applicant procedural fairness by not raising this matter with him during his plea or before he was sentenced.
Particulars:
(a) The learned sentencing judge erred by sentencing the applicant on the basis that he was to compensate Villalobos for the risk that he had assumed.

Ground 2:The learned sentencing judge erred by imposing on the applicant a sentence that, when regard is had to the sentence imposed on Villalobos, breached the principle of parity.

Background facts

The applicant was born in October 1986. He came to Australia in July 2015 from Colombia, on a student visa. Villalobos was born in February 1993. He arrived in this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alejandro Lopez Duque v The Queen

Details

AGLC: Alejandro Lopez Duque v The Queen [2019] VSCA 212
Case: [2019] VSCA 212
Decision Date: 25 September 2019

CaseChat Overview and Summary

The appellant, Alejandro Lopez Duque, appealed against his sentence for attempting to possess a marketable quantity of a border-controlled drug, equating to 403 grams of pure cocaine. The matter was heard in the High Court of Australia. Duque pled guilty to the offence and was sentenced to six years' imprisonment with a non-parole period of four years. His co-offender received a lesser sentence of four years with a non-parole period of two and a half years.

The legal issues before the court were whether the sentencing judge erred by considering facts from the co-offender's record of interview, whether the disparity in the sentences was unjust, and whether Duque had a justifiable sense of grievance. The court had to determine if the sentencing judge was entitled to find that Duque played a more significant role than his co-offender and if the disparity in the sentences was justified. The court also considered whether Duque had a justifiable sense of grievance about the disparity in the sentences.

The court held that the sentencing judge was entitled to consider the facts elicited from the co-offender's record of interview in sentencing Duque. The court found that the sentencing judge was open to finding that Duque played a more significant role than his co-offender, and therefore, the sentence imposed was appropriate. The court also held that the disparity in the sentences was not unjust, and Duque did not have a justifiable sense of grievance. The concession by counsel on the plea that Duque ought to receive a heavier sentence than his co-offender further supported the court's decision.

The High Court dismissed Duque's appeal against his sentence, and the original sentence was upheld. The court relied on the precedents set in Lowe v The Queen and Nguyen v The Queen to support its decision.

Orders