CDirector of Public Prosecutions v Schwenk Rivero
[2025] VCC 145
•20 February 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CRIMINAL JURISDICTION
CR-24-01734
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | |
| v | |
| CHARLES GARY SCHWENK RIVERO | |
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JUDGE: | HIS HONOUR JUDGE MOGLIA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 February 2025 |
DATE OF SENTENCE: | 20 February 2025 |
CASE MAY BE CITED AS: | CDPP v Schwenk Rivero |
MEDIUM NEUTRAL CITATION: | [2025] VCC 145 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCING
Catchwords: Guilty plea – import commercial quantity of an unlawfully imported border controlled drug – reckless involvement – motivated by debt – physical and mental health issues – no criminal history – non-English speaker – custody more onerous - very good prospects of rehabilitation – general deterrence
Legislation Cited: Sentencing Act1991 (Vic)
Cases Cited:Kemal v R [2022] NSWCCA 83; Klomfarv R [2019] NSWCCA 61; Legault v R [2014] NSWCCA 271; Verdins v R (2007) 16 VR 269
Sentence:Total effective sentence: 6 years 6 months; non-parole period 3 years 7 months; s 6AAA: 8 years 6 months; non-parole period 5 years 6 months
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APPEARANCES: | Counsel | Solicitors |
For the CDPP | B. Atkinson | CDPP |
For the Accused | L. Cameron | Stary Norton Halphen |
HIS HONOUR:
1Charles Gary Schwenk Rivero, you have pleaded guilty to importing a commercial quantity of an unlawfully imported border-controlled drug, namely cocaine, on 20 May 2024.
Summary of offending
2The basis for your plea is set out in the prosecution opening dated 20 January 2025.
3In summary, on 17 May 2024 you travelled from Santa Cruz, Bolivia to Sao Paulo, Brazil.
4You then flew on through Doha, Qatar to Melbourne. Whilst you were in transit bookings were made for you in Australia. It is not suggested that you made those bookings.
5When you arrived in Melbourne with two suitcases, one of which you were given in Brazil en route, Australian Border Force searched them and found drugs hidden within them. It is not suggested that you hid them.
6In total the packages consisted of 3.38 kilograms of cocaine or 2.68 kilograms pure.
Procedural history
7Upon discovering this, police did not seek to interview you or ask for your explanation because they found you to be unwell and there was no interpreter available.
8You have remained in custody since that date.
9You pleaded guilty at the earliest available opportunity and your case has progressed without delay. I find that your guilty plea represents that you accept responsibility for what you did, your willingness to assist the course of justice to progress and it has the benefits of avoiding the cost and inconvenience of a trial. In the full context, I also accept that your guilty plea is an expression of your regret and remorse.
Personal circumstances
10You are now 56 years old, having been born in Bolivia to farming parents from a rural area and throughout your childhood, due to chronic rheumatic fever, you lived with your grandmother in the city.
11You were able to complete secondary school and other courses after school, including in customer services. You worked in various jobs in construction, maintenance and gardening.
12After marrying your wife in your early years and having a child, you describe that time as happy. You were family-focused and the family was good.
13In 1995 you moved to Spain where you continued to work in labouring jobs and became a citizen. Your income did not permit you or your family to make regular visits to Bolivia.
14In 2017 however, at the time of the passing of your grandmother who raised you, you did return. While you were there you cared for your mother who became very ill and also passed away due to cancer. Your own medical advice was that you should not travel because of your own cardiac health.
15You were still in Bolivia when COVID-19 broke out and whilst you maintained some casual work, your life was very restricted and your income was poor. In those difficult financial circumstances, you became indebted to people whom you later found to be involved in criminal activity. Chiefly, you have found that out because of the facts of this case.
16Your wife and son still live in Spain and since your arrest here you have had monthly contact with your son by video online. However, your experience of that contact has been poor due to online connections. While you expect your son to have told your wife about your situation, you have been too ashamed or have found it too difficult to speak with her yourself about it.
17Your son, Daniel Schwenk Paz, provided a character reference (Exhibit 2). He expressed that you are a good father, attentive and affectionate, who taught him the value of hard work and that he has witnessed you express regret for getting involved in this offence.
18You have no prior criminal history.
19The only explanation for your offender that you offered is that you engaged in the importation in order to make money, which you admitted to the psychologist, and that that money was in large part to repay debts. It is not suggested that your debts arose from any criminal activity on your part.
20In custody you have struggled to engage in prison life or to make relationships with other prisoners because you only speak Spanish and there are no other fluent Spanish speakers at the prison. I am told there is one other person who speaks some Spanish, but not fluently.
21This language barrier has made your access to medical care in custody particularly difficult. Whilst after some months your medical care has improved to what might be described as an adequate level, for a lengthy period after your arrest you remained without appropriate medication and suffered the serious physical consequences of pain and paralysis due to your rheumatic condition.
22I am told and I accept that you have not had the benefit of interpreters, either in person or online or telephone, but rather prison medical staff have relied on online translation apps and artificial intelligence to understand what you are telling them. I will return to that topic later.
23In the psychological report, Courtney Steffens, having assessed you prior to 2 December 2024 stated that you have a major depressive disorder and generalised anxiety disorder (Exhibit 1). Further, those conditions have become worse whilst in custody.
24While those conditions are not said to have caused you to offend in this way, they were important matters of context for your state of mind at the time you began your journey.
25The psychologist described your situation then as one of desperation and hopelessness. Relevantly, the psychologist stated that your judgement then would have been impaired, not only due to the stress of your debts, but because of your own mental ill health.
26There is no question that a major depressive disorder can lead to poor judgement and a reduced ability to make good decisions or to assess consequences of your actions.
27It was suggested, and I accept, that it helps to explain your uncharacteristic involvement with those who sent you to Australia.
28Ms Steffens noted that your anxiety would have made all of those stresses even worse at the time. She observed that your mental ill health makes your time in prison more difficult and that you are more vulnerable because of those conditions.
29She observed further that your isolation from family and those who speak your language and your national setting, weighs heavily on you, more so than other prisoners.
30As to your risk of future offending, having assessed you in accordance with current psychological practice, she stated you were a low risk noting your remorse, your lack of relevant history, and that you do not demonstrate any antisocial attitudes.
31Whilst I have not received the records of the prison treating physicians, it was submitted without dispute that they reveal a diagnosis of chronic rheumatic fever and Type 2 Diabetes, and that you require ongoing treatment to manage those conditions.
32Further, I note the letter written by your lawyers to Ravenhall prison on 19 August 2024, detailing those diagnoses and requesting urgent action in terms of your medical treatment (Exhibit 3).
33I accept that since around that time your treatment has improved and as I have said, might now be regarded as adequate.
34Your physical health history includes that you suffered a severe heart attack in 2022 requiring hospitalisation and bypass surgery. That recent history I accept contributes to your own nervousness about your health in prison, particularly when you are unable to communicate adequately, in my view, without an interpreter.
35Your time in custody has been most difficult and I accept that much of that difficulty will remain unchanged whilst you remain treated in the way that you have been.
Sentencing issues
36The maximum penalty for importing a commercial quantity of border-controlled drug is life imprisonment. Accordingly, it must be said that this offence is most grave because of the maximum penalty.
37In your case the quantity of the drug pure was just over 2.6 kilograms, or 1.3 times the threshold for a commercial quantity. This, as the prosecutor submitted, is an important sentencing factor.
38The consequences to our community of this trade in drugs are very significant. The harm caused to the ultimate users can be dire. The cost to the community of treatment for addiction and of policing and prosecuting offenders is similarly great. So I must give significant weight in sentencing you to deterring others from such offending.
39As to your role, it is not alleged that you had any more to do with the importation than to be the person who carried the bags. There is no suggestion that you personally made any of the plans or did any more than what you were told to do in catching the flights arranged.
40The prosecutor conceded that the evidence does not establish that you knew you were carrying drugs, or that they were cocaine, or the weight of them, or the pure quantity of the drug. However, your involvement was nevertheless reckless as defined by the code, and your role was essential for the importation.
41Your culpability, your counsel Mr Cameron submitted, should be assessed in the context of being motivated by debt, a debt that was unrelated to drugs or criminal activity, and that I should rely on your account that was candid, that you have given both through your counsel and to the psychologist, that this was the reason for cooperating in bringing the baggage to Melbourne.
42I note that your account given to the psychologist and your lawyers includes statements against your own interest and therefore I can find them to be more reliable.
43The prosecutor very fairly accepted that she could not point to evidence that contradicted your account of how you came to import the drugs.
44Your counsel also relied on the principles in the case of Verdins.[1] That is, that your mental health contributed in a limited way to your reason for offending. As I have just quoted the psychologist as saying, it was said that your depressive symptoms affected your judgement and decision making.
[1] (2007) 16 VR 269
45The prosecutor submitted that this has limited application and should not reduce the sentence in light of the need for general deterrence. However, it was accepted there was a limited relationship between your mental health and the offending.
46I accept that it was a real albeit not necessarily causal contributor. Accordingly, I have assessed it to offer a limited reduction in your culpability but your mental health is certainly part of your circumstances generally that I will take into account.
47There was no dispute that prison life for you is more onerous than for other prisoners without your mental health conditions, or your physical health conditions. I also accept that life in gaol involves a significant risk of significant deterioration in your mental health.
48You have no criminal history and nor is it suggested that you harbour any antisocial attitudes or tendencies. Having taken all of those matters into account I find your culpability for this offence to be moderate.
49In arriving at your sentence, I have not given any significant weight to specific deterrence. I accept that your family supports you and that you have been a good father and that you have instilled in your son, and others no doubt, prosocial attitudes. In all of those circumstances I find your prospects for rehabilitation to be very good.
50While personal matters and prior good character attracts less weight in cases like this, those factors must not be ignored. Ordinarily, reaching a mature age without any blemish is a significant matter that justifies leniency in sentence, and I will not ignore it.
51As I have said, your time in custody has been harder than it should have been. You remained untreated for months. Rheumatic fever and diabetes are recognised conditions, they were made plain to prison authorities, they were even advised of those conditions by court orders and yet you were left to suffer with pain and paralysis. In my view, that was unacceptable.
52The risk of such lack of treatment I accept will continue to loom large in your fear about the future of your time in prison and so it will make your time more difficult. The fact that you have not had any, or any regular access to an interpreter, but rather have had to rely on online translation tools to communicate with medical staff and mental health professionals, in my view is inadequate. Nobody would expect that in any community setting and I do not accept that you are receiving equivalent treatment in custody, as you would have received in the community.
53Based on the account that was undisputed of your experience of time in prison, it may well be that you have been treated less favourably due to your language and/or nationality. Such treatment would not be lawful in the community and in my view is not acceptable in custody. I accept that your experience of custody is less favourable than for English speaking prisoners and this will be reflected in your sentence.
54The prosecutor referred me to a number of comparable cases to set out relevant principles and to reveal sentencing practices in other courts. I have had regard to each of them. In particular the prosecution referred me to the cases of Kemal[2], Klomfar[3] and Legault[4] as having relevant common factors with your case.
[2] [2022] NSWCCA 83
[3] [2019] NSWCCA 61
[4] [2014] NSWCCA 271
55While I accept there are some similarities, I note that all three involved two to three times the quantity of drug compared to yours, and the case of Legault on appeal was regarded as a severe sentence, such as to raise the scrutiny of the appeal courts, even though it was not ultimately found to be excessive.
56Of course these cases do not bind me in any numerical sense but I have had regard to them in the way that I have described.
57The prosecutor and your counsel agreed, as do I, that only a parole-type sentence would be appropriate in this case. I accept that you will spend your sentence in a state of uncertainty because it will be uncertain where you will be removed to upon your release, whether you will have to spend time in immigration detention, and whether in fact you will get parole at the stage of your sentence that I order is the stage when you should be considered for it.
58In my view, you should be considered for parole and be granted it at the same stage of your sentence as another prisoner who behaves similarly to you, who has engaged in programs and treated to the same extent as you, who represents the same risk of future offending as you, and in all other respects is the same as you but that they are an Australian prisoner. Of course, when and whether you get parole is a decision for the Parole Board and not for me.
59Having considered all of the matters contained in the material submitted and discussed in court, on the charge of importing a commercial quantity of cocaine, you are sentenced to 6 years and 6 months' imprisonment, and I fix a non-parole period of 3 years and 7 months.
60I declare that you have already served 276 days in custody, and I direct that that time be reckoned as a period already served under this sentence.
61In accordance with s6AAA of the Sentencing Act1991 (Vic) if you had not have pleaded guilty, but you were found guilty following trial, I would have imposed 8 years and 6 months and fixed a non-parole period of 5 years and 6 months.
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