Alejandro Lopez Duque v The Queen
[2019] VSCA 212
•25 September 2019
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 country from Chile in February 2015, also on a student visa.
Villalobos resided at a number of different addresses in Melbourne. One of these was at 24 Newlands Road, Coburg North, where he lived from December 2016 to June 2017. Another occupant of the premises was Christopher Spiteri, who continued to reside at the Newlands Road address after Villalobos had moved out. According to Spiteri, Villalobos was lax with his payment of rent. By the time he had left the premises, he owed Spiteri about $950.
The applicant and Villalobos first met at a party in Melbourne in 2016. The two men developed a friendship. On 1 July 2017, the applicant departed for Colombia, via Santiago, Chile. The ostensible purpose of that trip was to attend his sister’s wedding. While in South America, he became Facebook friends with Villalobos, and maintained contact with him. He returned to Australia on 2 September 2017.
In October 2017, both men were arrested in possession of a package, which had been sent from Chile, and intercepted by federal authorities. The package was found to contain 704 grams of cocaine at a purity of 57.2%. This equated to 403 grams of pure cocaine, or approximately 20% of a commercial quantity.
The estimated value of the cocaine was somewhere between about $188,000 and $226,000 wholesale (if sold in quantities of an ounce), and between $212,500 and $317,000 at street level, (if sold in quantities of a gram).
The consignment had been intercepted on 20 September 2017. It was addressed to ‘David Collins Villa, 24 Newlands Road, Coburg North, Melbourne, Victoria’, which, it will be recalled, was the former address of Villalobos.
The sentencing judge said that he was satisfied beyond reasonable doubt that given that Villalobos had left that address in June 2017, his involvement in this attempted importation had to have predated that month. Indeed, in a record of interview, Villalobos agreed that he had been told, well before June 2017, that a package containing drugs would be sent, and that he had provided a name and address as the consignee.
On 28 September 2017, the two men met near Highpoint Shopping Centre in Maribyrnong. It was shortly after that meeting that Villalobos attended the Newlands Road address, and spoke with Spiteri. He told Spiteri that he was expecting a package from Chile, but was informed that nothing had been delivered at that time.
During the first week of October 2017, the applicant telephoned Villalobos on a number of occasions. Conversations between them were intercepted and recorded. They arranged to meet on a number of occasions. The applicant told Villalobos that he needed to be ready. The prosecution contended that this was a reference to Villalobos being ready to collect the consignment from the Newlands Road address.
At 11.14 am on 5 October 2017, the applicant telephoned Villalobos. They arranged to meet in the city later that afternoon. Subsequently, the meeting was rescheduled, and it was agreed that they would meet that evening.
Villalobos travelled to Sydney on the following day. On his return, on either 7 or 8 October, the two men exchanged phone calls, and again arranged to meet. They spoke cryptically about exchanging something in a public place.
On 10 October 2017, the Australian Federal Police conducted a controlled delivery of the consignment. At 11.44 am, the package was delivered to the Newlands Road address, and Spiteri signed for it. A few minutes later, Spiteri telephoned Villalobos and told him that the consignment had been delivered.
Villalobos arranged with Spiteri to meet later that day. Within a minute or so of that call, Villalobos rang the applicant. In a coded conversation, he advised the applicant that the consignment had arrived. At 1.24 pm, Villalobos arrived at the Newlands Road address and collected the package. He then rang the applicant and arranged to meet him at a service station close by.
At about 1.40 pm, Villalobos left the Newlands Road premises, taking the package with him. He carried it to the service station, and shortly afterwards, the applicant arrived. Villalobos was seen putting the package into the boot of the applicant’s vehicle. The two men then had a discussion, while the applicant was observed examining the outside of the package.
Shortly thereafter, the applicant was seated in the driver’s seat, and Villalobos in the front passenger seat. An unmarked police car came into view, and the applicant suddenly drove off at speed. A pursuit ensued. During the course of the car chase, Villalobos threw his mobile phone out of the side window of the car. That phone was never recovered.
Moments later, the applicant’s vehicle was intercepted by police and both men were arrested. The consignment was located in the boot of the car.
That evening, the applicant took part in a record of interview. He claimed that he had only fled from the police because he suddenly realised that ‘nothing good [was] in that package.’ Villalobos also took part in a record of interview. He stated that two weeks previously, the applicant had told him that ‘something was coming.’ He claimed that the applicant had never told him what the package contained, but admitted that he was concerned that it ‘could be drugs or something like that.’ He said that he had been offered a sum of $1,000 to $2,000 to have the package sent to his former address. He volunteered that he thought that it might contain cocaine.
The plea hearing
The Crown submitted that the applicant’s role was that of the ‘Australian organiser’ of the importation. Accordingly, it was said that his criminality was greater than that of Villalobos. This warranted a disparate sentence.
The applicant submitted that whatever Villalobos may have said in his record of interview could not be used against the applicant to conclude that his role had been greater than that of Villalobos. He did, however, accept that, even putting Villalobos’ record of interview to one side, it was open to find that the applicant’s role had been greater than that of his co-offender, and that he could justifiably be given a heavier sentence than Villalobos.
During the course of the plea, the sentencing judge made it clear that he accepted the submission put forward on behalf of the applicant as to the inadmissibility of Villalobos’ statements to police in determining the respective roles of the two men. His Honour added, however, that it was clear on the evidence admissible against both men that Villalobos had been exposed to greater risk. It was his former address that had been utilised for the delivery of the package. Moreover, it was Villalobos who had collected the package.
It was agreed that the applicant’s plea of guilty should be regarded as an early plea. It was accepted that he had no prior criminal history. He was a foreign citizen, with few contacts in Australia. By the time he came to be sentenced, he had been in custody for more than 300 days. He had used his time in custody productively. He was said to have good prospects of rehabilitation. It was accepted that he was genuinely remorseful. It was noted that he would be deported immediately upon his release.
Villalobos made submissions regarding his own background and the circumstances leading up to the offending. He too was said to be remorseful, and to have strong family support. It was submitted on his behalf that he played a lesser role in the offending than did the applicant. It was further submitted that he stood to gain comparatively little from the enterprise.
Sentencing remarks
The sentencing judge correctly described the offending as involving a product of ‘very high value.’
In relation to the roles of the two offenders, his Honour concluded that it was the applicant who was more culpable. He found that the applicant had recruited Villalobos, and that this was an essential aspect of the entire offence. It required someone who would receive the package, and pass it on to the applicant for further distribution.
Villalobos had been recruited to take possession of the parcel, and deliver it to the applicant, at a location away from the address to which the package had been sent. This was done in order to protect the applicant from detection. His Honour commented that the point of delivery would be the point of greatest risk. He stated:
That risk, by your arrangement, fell upon Mr Villalobos. That risk was one that you were to compensate … him to the tune of some paltry amount compared to the risk he was to, and did take.
The sentencing judge added that the applicant was the ‘Australian organiser’ of the attempted importation. It was the applicant who arranged for Villalobos to collect the package from Coburg, intending to receive it from him at a time and place removed from that address.
The sentencing judge went on to say:
As compared between the two of you it is plain [that] the criminality of you, Mr Lopez Duque, is significantly higher as organiser and your active involvement in this consignment process than Mr Villalobos. Upon that basis there must be a disparate sentence imposed as between the two of you.
His Honour then referred to the decision of this Court in Nguyen v The Queen.[1] He noted that Nguyen set out some of the key principles governing sentencing for importation of drugs. He said that he bore steadily in mind that the applicant was not charged with actual importation, but merely with attempted possession. However, he considered that the principles laid down in Nguyen were applicable to the lesser offence.
[1](2011) 31 VR 673 (‘Nguyen’).
The sentencing judge correctly characterised this as a very serious instance of such offending. It involved extensive planning, over at least some weeks, if not months. Offences of this type are difficult to detect. Accordingly, general deterrence was of paramount importance as a sentencing factor.
After setting out the applicant’s history, and taking into account various testimonials in his favour, his Honour concluded that the applicant was remorseful. He found that his prospects for rehabilitation were excellent.
It should be noted that the sentencing judge arrived at the same conclusion with regard to Villalobos. He then sentenced both men as previously indicated.
Submissions before this Court
In the applicant’s written case, it was submitted that although the sentencing judge said that he would not take anything contained in Villalobos’ record of interview into account against the applicant, he must have inadvertently done so. It was noted that his Honour had referred to Villalobos being ‘compensated by a paltry amount’ for the risk he was prepared to take. That particular conclusion could only have been reached by reference to what Villalobos had said in his record of interview.
As regards the question of parity, it was submitted on behalf of the applicant that the disparity between the 6 year sentence that he received, and the 4 year sentenced imposed on Villalobos was manifestly excessive. It was submitted that both men were able to call in aid essentially the same mitigating factors. As to the role played by Villalobos, though it may not have been as great as that of the applicant, it was still highly significant.
In response, the Crown submitted that the error attributed to the sentencing judge in Ground 1 was not made out. Having regard to the limited role played by Villalobos in providing an address, taking possession of the package, and passing it on to the applicant, it could reasonably be inferred that any payment that he was to receive would be significantly less than that of an organiser, such as the applicant. It would certainly be far less than those who would ultimately benefit from the distribution of the cocaine, whether at a wholesale or retail level.
As regards the question of parity, it was submitted that there was a marked difference between the role played by the applicant, and the more limited role played by Villalobos. That difference in their respective roles itself justified the disparity in the sentences that were imposed.
There were other matters relied upon by the Crown in resisting the claim that there was undue disparity between the sentences imposed upon the applicant and the co-offender. It is not necessary for present purposes to go into detail regarding these matters.
Conclusion
The sentencing judge was well entitled to find that the applicant played a more significant role than did Villalobos in the commission of this offence. Perhaps charitably, his Honour did not infer that the applicant’s visit to Chile, en route to Colombia, in the weeks immediately preceding the arrival of the package from Chile, had any connection with the importation itself.
Nonetheless, even putting that to one side, the sentencing judge was justifiably cognisant of the inferences that could legitimately be drawn from the evident distancing of the applicant from the package after its arrival, allowing Villalobos to take the major risks associated with its collection. His Honour could also properly conclude that Villalobos would receive far less than the applicant for his role in the enterprise. The use of the term ‘paltry’ was a relative expression, meaning only much less than what others involved in the scheme would be paid, or gain from it. It did not, of itself, signify acceptance, in the case against the applicant, of the proposition that Villalobos stood to gain only $1,000 or $2,000.
As regards parity, the principles governing this ground of appeal are well established. In Lowe v The Queen,[2] Gibbs CJ said:
It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.[3]
[2](1984) 154 CLR 606.
[3]Ibid, 609.
The Chief Justice went on to say that the reason why the Court sometimes interferes in such a case on the grounds of undue disparity is that it considers that the disparity is such as to give rise to a ‘justifiable sense of grievance, or in other words, to give the appearance that justice has not been done.’[4]
[4]Ibid, 610. See also, Postiglione v The Queen (1997) 189 CLR 295.
In the present case, it was properly conceded on the plea that the applicant should receive a heavier sentence than that to be imposed on Villalobos. The difference in the roles played by the two men, and by inference, the remuneration that each was to receive, made it entirely rational to expect that the applicant would be punished more severely than his co-offender. The difference between 6 years’ and 4 years’ imprisonment was not so great as to instil in the applicant a justifiable sense of grievance regarding his treatment. Both sentences were moderate, and plainly within range.
Accordingly, we would refuse leave to appeal.
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