Director of Public Prosecutions (Cth) v Ruiz (a pseudonym)
[2020] VCC 1288
•4 September 2020
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
| THE QUEEN |
| v |
| MANUEL RUIZ (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 30 and 31 October 2019, 1, 4, 6, 7, 11, 12, 13, 14, 15, 18, 19, 20, 21 and 22 November 2019 | |
DATE OF SENTENCE: | 4 September 2020 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions (Cth) v Ruiz (a pseudonym) | |
| MEDIUM NEUTRAL CITATION: [First Revision 31 August 2021] | [2020] VCC 1288 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – import a commercial quantity of a border controlled drug, namely cocaine, contrary to s307.1(1), by virtue of s11.2A of the Criminal Code Act 1995 (Cth)
Legislation Cited: Criminal Code Act 1995 (Cth), s11.2A, s307.1(1); Crimes Act 1914 (Cth); s16, s17, s19AKA; Migration Act 1958 (Cth), s501(3A); Proceeds of Crime Act 2002 (Cth), s48
Cases Cited: R v Moran and Byrnes (1987) 31 A Crim R 248 (1987); R v Carey [1998] 4 VR 13; Nguyen v R; Phommalysack v R (2011) 31 VR 673; Markarian v R (2005) 228 CLR 357; Markovic v R (2010) 30 VR 589; Guden v R (2010) 28 VR 288; R v Carroll [1991] 2 VR 509; R v Nguyen (2010) 205 A Crim R 106; Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; R v Lee [2007] NSWCCA 234; Pham v R [2014] VSCA 204; R v Pham (2015) 256 CLR 550; Pham v R [2016] VSCA 259; Alavy v R [2014] VSCA 25; DPP (Cth) v Estrada (2015) 45 VR 286; Pham v The Queen; Tang v The Queen [2012] VSCA 101; DPP (Cth) v Besim (No 3); DPP (Cth) v M H K (A Pseudonym) (No 3) (2017) 52 VR 303; Talia v The Queen [2009] VSCA 260
Sentence:Eighteen years’ imprisonment with a non-parole period of twelve years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr K Armstrong | Commonwealth Office of Public Prosecutions |
| For the Accused | Mr B Johnston | Slades and Parsons |
HER HONOUR:
1 Manuel Ruiz[1], you were tried before a jury of twelve persons on Indictment dated 23 October 2019 alleging one charge of importing a commercial quantity of a border controlled drug, namely cocaine, contrary to subsection 307.1(1) of the Criminal Code Act 1995 (Cth), by virtue of section 11.2A of the Criminal Code Act 1995 (Cth). You pleaded not guilty to the charge, but were found guilty by the jury following a trial lasting 16 days.[2] You now stand to be sentenced in respect of that charge.
[1]A pseudonym.
[2]There were twelve days of pre-trial arguments at a time when the offender and alleged co-offender faced trial together (23, 24, 25 and 30 September 2019; 1, 7, 8, 14, 16, 18, 24 and 28 October 2019). The jury was empanelled on 30 October 2019 and the trial continued on 31 October, 1, 4, 6, 7, 11, 12, 13, 14, 15, 18, 19, 20 and 21 November 2019, with the jury returning its verdict on 22 November 2019. A chronology of proceedings was tendered as exhibit B on the plea.
2 The importation took place between 8 and 10 November 2017. The gross weight of the cocaine that you imported was 299.8 kilograms with a purity of between 76.4 per cent and 79.2 per cent. The total weight of pure cocaine was 235 kilograms.
3 The maximum applicable penalty is imprisonment for life or a fine of 7,500 penalty units or both.
The evidence consistent with the jury’s verdict
4 On 8 and 10 November 2017, two large shipments of cacao powder imported from Mexico landed in Australia. They were consigned by Arte Ikoncreto S.A. de C.V. to C1 Superfoods Pty Ltd. The two consignments were delivered to Sahara Logistics in Melbourne after you gave authorisation for the shipments to clear Customs. The boxes containing the cacao powder were marked with Quick Check QR barcode labels.
5 Unbeknown to the authorities, approximately 300 kilograms of impure cocaine was secreted within some of the packets of the cacao powder, in turn packed within a certain number of the boxes of the consignments. But for the reaction of a sniffer dog at Melbourne Airport reacting to a passenger in the arrivals Customs line, the illicit importation might never have been discovered. That passenger, Mr Altamirano Galindo,[3] was found to be in possession of 4.43 grams of cocaine. That finding triggered an investigation that led to the discovery of the cocaine secreted within the importation of the cacao powder.
[3]Mr Altamirano Galindo is the alleged co-accused. On 18 October 2019, I granted Mr Altamirano Galindo a separate trial. That trial was due to commence late in 2020, however, due to the COVID-19 pandemic and the consequent restrictions, that trial date has been vacated.
6 It follows from the jury’s verdict that you were party to the importation of the commercial quantity of cocaine that was organised by an overseas syndicate.
The investigation
7 On 22 November 2017, your co-accused, Mr Altamirano Galindo, arrived at Melbourne Airport, travelling from Los Angeles. Before clearing Customs, a Narcotics Detection Dog indicated an interest in Mr Altamirano Galindo. As a consequence, his luggage was searched by Australian Border Force (“Australian Border Force”). The officers located two bags of cocaine in a jacket packed in Mr Altamirano Galindo’s suitcase. The cocaine found in the two bags was of 75.2 per cent and 82 per cent purity respectively, yielding a net total of 4.43 grams of pure cocaine. Mr Altamirano Galindo was then detained at the Airport.
8
Members of the Australian Border Force seized three mobile phones from
Mr Altamirano Galindo:
(i) a “Silent Circle” encrypted phone with the phone number 0452 595 627 and IMEI number 359196060011601 (“the Silent Circle phone”);
(ii) an Apple iPhone 6 bearing IMEI number 354450069725330 (“the iPhone 6”); and
(iii) an Apple iPhone X bearing IMEI 356725081037741 (“the iPhone X”).
9 Australian Border Force members also seized an Apple MacBook Pro laptop from Mr Altamirano Galindo.
10 An examination of the Silent Circle phone revealed twelve photographs dated “20171109” (likely 9 November 2017) of a C1 cocoa powder shipment and a photograph dated “20171030” (likely 30 October 2017) of a C1 invoice. The invoice depicted in the photograph was from Arte Ikoncreto S.A. de C.V. and was identical to an invoice relating to consignment Master Air Way Bill (“MAWB”) 16053900943 that had arrived in Melbourne on 12 September 2017. As it turns out, there had been three importations of cocoa powder from the same consignor. There was also a consignment of coffee from a different consignor. The first shipment, consignment 16052873214, arrived in Australia on 21 August 2017, consigned to C1 Superfoods Pty Ltd. It had a gross weight of 415 kilograms and was described as “Ca Cao Uno” cocoa powder for consignee C1 Superfoods Pty Ltd. The second shipment arrived on 12 September 2017, consignment 16053900943, from consignor Arte Ikoncreto S.A. de C.V. to consignor C1 Superfoods Pty Ltd. The third importation is the one I referred to earlier, the one that arrived on two dates – on 8 November 2017, part of consignment 16056543826 from Arte Ikoncreto S.A. de C.V. to C1 Superfoods Pty Ltd described as “Ca Cao Uno” cocoa powder, and on 10 November 2017, consisting of the second part of the consignment of cocoa powder (consignment 16056543826) from Arte Ikoncreto S.A. de C.V., and also of a consignment of coffee from a different consignor (consignment 16056543804).
11 All of the consignments were delivered to Sahara Logistics. After the three shipments, there was a total of approximately 2 tonnes of cocoa powder and 750 kilograms of coffee held by C1 Superfoods at the Sahara storage facility in Melbourne.
12 Returning to the examination of Mr Altamirano Galindo’s Silent Circle phone at the Airport and the discovery of the photographs, the photograph of the Arte Ikoncreto S.A. de C.V. invoice dated 30 October 2017 was, as I mentioned, identical to the invoice relating to consignment 16053900943, which had arrived in Melbourne on 12 September 2017 (the second importation of cocoa powder to which I have just referred).
13 The next day, on 23 November 2018, members of the “JOCTIF” task force attended Sahara Logistics and seized all of the cocoa and coffee boxes held there. The boxes were taken to Australian Border Force to be examined and x-rayed.
14 On examining the third importation, investigators found:
· Four pallets, each containing 18 boxes labelled “Premium Cocoa Powder”
· Two pallets, each containing 60 boxes labelled “Coffee”; and
· One pallet containing 10 boxes labelled “Premium Cocoa Powder”.
15 The first pallet to be examined consisted of eight large “Ca Cao Uno” brand boxes. Each box contained 40 smaller “Ca Cao Uno” brand boxes. Each of the 40 smaller boxes contained a substance of white powder in a vacuum sealed black pouch.
16 The second pallet to be examined consisted of seven large “Ca Cao Uno” brand boxes. Each box contained 40 smaller “Ca Cao Uno” brand boxes. Each of the 40 smaller boxes contained a white powder substance, vacuum sealed in a black pouch.
17 The white powder tested positive in a presumptive test for cocaine.
18 In all, there were 15 boxes containing white powder. The boxes bore the numbers 5, 7, 8, 9, 14, 16, 17, 18, 23, 25, 26, 27, 34, 35 and 36 of 36. All these boxes were part of consignment 16056543826 (arrived 8 and 10 November 2017). Inside each of these 15 boxes there were 40 packets marked cocoa powder, all of which contained cocaine. Subsequent analysis of the cocaine showed that the total gross weight of the powder was 299.8 kilograms with a purity of between 76.4 per cent to 79.2 per cent cocaine, resulting in a net weight of 235 kilograms of pure cocaine.
19 The remaining C1 boxes contained 500-gram packets of “Café Garat” brand coffee and “Ca Cao Uno” brand cocoa powder. No cocaine was found in these coffee boxes and cocoa packets.
The Crown case[4]
[4]A full copy of the facts alleged by the Prosecution can be found in the Amended Prosecution Summary of Opening dated 31 July 2019.
20 In summary, the Prosecution alleged that you were party to the importation venture, playing a key logistical role. Your job was to organise for the consignments to be cleared through Customs and to arrange for them to be forwarded to Sahara Logistics, where they were to be stored until they could be distributed. It was alleged that Mr Altamirano Galindo was also a party to the importation, having the designated role to accept delivery of the cocaine for the purposes of further distribution. As Mr Altamirano Galindo is yet to face trial, he is presumed innocent of the charge.
21 The case against you was largely based on circumstantial evidence:
(a)
You had a long-standing personal and business relationship with
Mr Altamirano Galindo;
(b)
You also had a longstanding friendship with one Dante Garcia Almanza, who you met at the secondary school you both attended in Mexico.
Mr Almanza immigrated to Australia in 2011 and became an accountant and business consultant in Melbourne. In approximately May 2017, about three months before the first importation, you sought Mr Almanza’s assistance to set up a company called C1 Superfoods Pty Ltd as a vehicle to import into Australia cocoa, coffee and salsa for Arte Ikoncreto S.A. de C.V. Mr Almanza agreed to help you, and C1 Superfoods Pty Ltd was then born;
(c) C1 Superfoods Australia Pty Ltd was registered as a company in Australia on 5 July 2017, the registered office being at the offices of Junkeer Consulting at Waterman Business Park in Malvern East/Chadstone, Victoria. The two directors of the company were recorded as Jenny Ann Junkeer, an Australian citizen, and Jose Antonio Reyes. There is no record of Mr Reyes residing in Australia or ever having entered Australia. It was agreed that Junkeer Consulting would be responsible for the C1 Superfoods accounts and that you would be responsible for all of the logistics of the company;
(d) You told Mr Almanza that you had a business partner named Gabriel, by inference Mr Altamirano Galindo on the Prosecution case;
(e) You asked Mr Almanza to arrange for a transport company to make deliveries of product within Australia. Mr Almanza provided you with the details of Sahara Logistics. In July and August 2017, you made arrangements directly with Sahara Logistics to transport all of C1 Superfoods goods within Australia;
(f)
In August 2017, around the time of the first importation, you told
Mr Almanza that C1 Superfoods was in need of storage facilities at Storage King in New South Wales as another base to send and store C1 Superfoods products;
(g) On 21 August 2017, the first shipment consigned to C1 Superfoods arrived in Australia;
(h) The next day, on 22 August 2017, you arrived in Australia;
(i) On 25 August 2017, you engaged DSV to arrange Customs clearance of the C1 Superfoods importation and delivery of the consignment to Sahara Logistics;
(j) You met with Mr Almanza and Ms Jenny Junkeer. They prepared business proposals for the C1 Superfoods products. They suggested a café outlet and online sales only. It was proposed that when you returned to Mexico, you would discuss the business with Antonio Reyes;
(k) On 25 August 2017, you visited Sahara Logistics to inspect the first cocoa consignment. You insisted that individual cocoa “inner item cartons” be weighed. CCTV footage shows you using a phone to scan the boxes;
(l) During this visit to Melbourne, you met Ms Caitlin Budge at a party. You became friends. You told Ms Budge that you worked in logistics and that you were importing alcohol into Australia. After you left Australia, you remained in contact with Ms Budge via WhatsApp;
(m) You returned to Mexico on 1 September 2017, less than two weeks after arriving in Australia;
(n) On 12 September 2017, the second shipment consigned to C1 Superfoods arrived in Australia. Again, you authorised DSV customs clearance and arranged for the delivery of the consignment to Sahara Logistics, where it was to remain subject to your further instructions;
(o) On 29 September 2017, Mr Altamirano Galindo booked accommodation at the Hilton Hotel, Sydney, for 5 to 11 October 2017;
(p)
On 2 October 2017, while still overseas, you sent an email to Sahara Logistics directing the company to send to Mr Altamirano Galindo at
488 George Street, Sydney, the address of the Hilton Hotel, Sydney, particular boxes numbered 6, 7, 8, 15, 16, 17, and 18 from what was an apparently identical consignment of cocoa products. The boxes were delivered to Mr Altamirano Galindo at the Hilton Hotel, Sydney, on
4 October 2017;
(q) On 8 and 10 November 2017, the third shipment arrived in Melbourne. The two consignments were delivered to Sahara Logistics after you sent an email authorising DSV customs clearance and arranged for the delivery to Sahara Logistics. By now there were approximately 2 tonnes of cocoa and 750 kilograms of coffee held by C1 Superfoods at the Sahara Logistics storage facility in Melbourne, all subject to your control by direction;
(r) On 13 November 2017, an online booking was made for accommodation at “The Hamptons” at 45 Nott Street, Port Melbourne in the name of “[Manuel Ruiz]” for a stay from 15 November 2017 to 20 December 2017 for two adults;
(s) A few days before your return to Australia, at your request, Ms Budge bought a Vodafone SIM card for you. The phone number attached to the SIM card was 0420 277 358 subscribed in your name;
(t)
On 15 November 2017, you arrived in Australia from London and checked into The Hamptons. You had a scheduled departure date of
12 December 2017.
(u)
Whilst in Australia, you met with Ms Budge. You told her that you had a business partner, Gabriel, who would be joining you. You then moved into a larger two-bedroom apartment at The Hamptons. You also told
Ms Budge that you may have to go to Sydney in order to arrange further business dealings for the company;
(v) Between 17 and 27 November 2017, you communicated with “Storage King” Sydney about storing three to four pallets of goods for a few months;
(w) On 20 November 2017, you sent instructions via email to Sahara Logistics directing the company to send coffee and cocoa samples to a “Chadstone address”. You told Mr Almanza that you had done this to test Sahara Logistics’ delivery capabilities;
(x) On 22 November 2017, Mr Altamirano Galindo arrived at Melbourne Airport, having travelled from Los Angeles. Mr Altamirano Galindo’s incoming passenger card stated that his intended address in Australia was 45 Nott Street, Port Melbourne, the address of The Hamptons where you were already in residence;
(y) At the Airport, a Narcotics Detection Dog reacted to Mr Altamirano Galindo. This led to a search of Mr Altamirano Galindo, during which he was found to be in possession of 4.43 grams of cocaine. Mr Altamirano Galindo was detained at the Airport, where further enquiries were made and three mobile phones and an iPad in Mr Altamirano Galindo’s possession were seized;
(z) At 11.45am the same day, you made contact with a person called “Steph Elmo” and expressed concern that “Gabo” (inference Mr Altamirano Galindo) had not yet shown up;[5]
[5]Exhibit R
(aa) An examination of Mr Altamirano Galindo’s Silent Circle phone revealed twelve photographs of a cocoa shipment for C1 Superfoods and a photograph of a C1 Superfoods invoice. The photograph of the invoice is identical to the invoice relating to the second shipment;
(bb) Whilst in detention at the Airport, Mr Altamirano Galindo called you using the WhatsApp application. The call lasted for 3 minutes and 2 seconds. At 3.46pm, Mr Altamirano Galindo called your phone again, the call lasting 19 seconds. At 3.46pm, your phone rang Mr Altamirano Galindo’s phone in a call lasting for 17 seconds;
(cc) The next day, on 23 November 2017, you attended Sahara Logistics where the balance of all three importations were still being held in accordance with your instructions. At Sahara Logistics, you removed seven boxes and opened one box from a pallet containing coffee. You took a series of photographs and weighed certain items. The boxes were placed back on the pallet. You were not permitted to remove any items. You provided Sahara Logistics with an email address and phone number as your contact details;
(dd) Later that day, at 4.57pm, investigating officers from the JOCTIF Taskforce discovered the cocaine secreted in packets of cocoa contained within specific boxes of the third shipment;
(ee) Investigators did not immediately tell either you or Mr Altamirano Galindo of the seizure of the third importation;
(ff) You remained in phone contact with Mr Altamirano Galindo, who had been in detention at the Maribyrnong Immigration Detention Centre since 22 November 2017. On 25 November 2017, you contacted the Detention Centre and enquired about visiting Mr Altamirano Galindo on the following day, although you did not visit him;
(gg) On 28 November 2017, in a telephone conversation with Mr Almanza, you complained that Sahara Logistics still had not delivered the samples requested a week before to be sent to C1 Superfoods’ address in Chadstone. You told Mr Almanza that you would not be staying in Australia until 12 December 2017 and that rather, you would be flying to Madrid, Spain, the next day;
(hh) At 1.44pm that day, 28 November 2017, you booked a flight from Melbourne to Los Angeles;
(ii) Later the same day, at 3.20pm, police attended C1 Superfoods’ Chadstone premises and spoke with Mr Almanza and Ms Junkeer about Mr Altamirano Galindo’s possession of cocaine, his arrest at Melbourne Airport, and his apparent connection to the C1 Superfoods business;
(jj) Shortly after the police visit, Mr Almanza contacted you and told you that the police had attended and informed him that Mr Altamirano Galindo had been found with cocaine at the Airport and that he had claimed to be working with C1 Superfoods. Mr Almanza told you that it should be made clear to police that C1 Superfoods was not involved, as this may affect your future trips to Australia. Mr Almanza said that the police had left 5 minutes beforehand, and that they had your phone number and address at The Hamptons. He warned you that the police were probably going to give you a call;
(kk) At 4.17pm, a listening device secreted in your apartment at The Hamptons recorded a conversation during which you said:
“… And that this guy was here – detained for possession … So obviously now they are going to come to get me … to what’s it called? … To interview me mate … Well I don’t know mate … What should we do? … Come again? … What do you mean by ‘who’s here?’ … With the police mate [sound of door opening] … Stupid – asshole.”[6]
[6]Exhibit R, p47
(ll)
Minutes later, at 4.21pm, police surveillance officers saw you leave
45 Nott Street, Port Melbourne, and whilst continuing to talk on your mobile telephone, you were seen to deposit a plastic bag in a Beach Street rubbish bin and then return to 45 Nott Street. The plastic bag was retrieved by police and found to contain a box of cocoa. At 4.35pm, you left Nott Street and walked to Crown Casino. You were seen to be using your phone constantly;[7]
[7]Exhibit V
(mm)At 5.23pm, Mr Almanza telephoned you and asked what was happening. You told him that the police had not called. You told Mr Almanza that you were intending to fly out of Australia the next day. Mr Almanza told you that the business with [inference Mr Altamirano Galindo] being detained with cocaine at the Airport had nothing to do with either of you;
(nn) At 6.58pm, you telephoned Mr Almanza and asked him which police had contacted him. Mr Almanza told you that it was a combination of Border Control and State police, working with Customs. You replied “Customs, ah, okay, right”;[8]
[8]Exhibit R, p53
(oo) On 28 November 2017, you, Ms Budge, Mr Almanza and his partner had dinner together. You told Mr Almanza that Mr Altamirano Galindo had been held for the possession of 5 grams of cocaine for personal use and that a lawyer had advised you to leave Australia. You said that you had booked a flight. Mr Almanza replied that you should stay as you had done nothing wrong. You returned to Nott Street with Ms Budge; and
(pp) The next morning, on 29 November 2017, you told Ms Budge that the lawyer you had engaged for Mr Altamirano Galindo advised you to leave the country. That day, you were arrested by police at 45 Nott Street, Port Melbourne. Your Blackberry phone and MacBook Air laptop were seized by police.
Record of Interview[9]
[9]Trial exhibit CC
22
When interviewed by police, you denied any involvement in the importation of border controlled drugs. You did, however, admit your association with
Mr Altamirano Galindo in both a personal and business capacity.
23 You made various admissions about the formation of C1 Superfoods and told police that the business was established to export cocoa and other foodstuffs from Mexico. You said that you had co-ordinated the development and design of the cocoa boxes, that you had located suppliers in Mexico, that you had dealt with Logistics, and explained C1 Superfoods’ cost structure. You stated that the coffee brand exported by C1 Superfoods was called Café Garat and was from a company in Mexico called Sabormex. You told police that you were currently in Australia to sign a marketing strategy at Junkeer Consulting.
24 You said that C1 Superfoods first imported goods into Australia in around August 2017. It was cocoa powder that was still at Sahara Logistics. You further admitted that C1 Superfoods again imported goods into Australia around September or October 2017. You said that the importation consisted of two pallets of cocoa powder. One of those pallets went through “Customs enquiry” in Mexico.
25 You told police that Mr Altamirano Galindo had asked you to send some of the boxes, which he specifically identified, from the second importation to him at the Hilton Hotel in Sydney. You told police that Mr Altamirano Galindo said that he wanted samples because there was some potential with overseas distributors. Mr Altamirano Galindo gave you specific box numbers because he wanted to verify the accuracy and reliability of Sahara Logistics. You told police that Mr Altamirano Galindo said words to the effect of “I’m going to Sydney. You know, the company is based in Melbourne, so you know, I know people can be potential distributors for this. I want to give them some samples.” It was for this reason that you arranged for the specific boxes to be sent to Mr Altamirano Galindo at the Hilton Hotel in Sydney. You said that it was your job to handle logistics and that Mr Altamirano Galindo had no relationship with Sahara Logistics.
26 You told police that Mr Altamirano Galindo owned the products, having invested money from his company’s resources. You said that the most recent shipment had arrived in late October or early November and that it contained two pallets of cocoa powder and two pallets of Garat coffee.
27 You agreed that you were the one who had arranged the airfreight and DSV transport. You said that it was Mr Altamirano Galindo who told you how much to send. He sent you an invoice with the details from Arte Ikoncreto S.A. de C.V. You said that the request from Mr Altamirano Galindo might have come when you were at home in Mexico or via a text message.
28 According to you, Mr Altamirano Galindo asked you to come to Australia to investigate the product market.
29
You agreed with police that you had received a WhatsApp call from
Mr Altamirano Galindo, who told you that he had been put in detention in Australia over 4 grams of cocaine and that he was being deported. You remained in contact with Mr Altamirano Galindo after that.
30 You told police that you had spoken to an Australian lawyer, who warned you that you could be linked to Mr Altamirano Galindo by your address on your landing card and that you could be interrogated by police. You claimed that the lawyer advised you to leave the country.
31 When asked about the cocoa boxes that you had thrown out “somewhere near the beach”, you explained that you did so because you were “freaked out” that Mr Altamirano Galindo’s situation could be linked to you.
32 You maintained that you had no knowledge of the cocaine within the cocoa powder boxes.
Issues at trial
33 Much of the evidence was not in controversy.[10] Essentially, your defence was that you were an innocent man who had been duped by very clever criminals. You had been used, as you were a man of good character, an experienced, honest businessman. Your case was that you were an innocent agent, much like Mr Almanza and Ms Junkeer. Your case was that you had a genuine interest in establishing C1 Superfoods as a legitimate, viable food importing business and that you had no knowledge of the plan to import cocaine. Nor did you have any intention of importing any illicit substance.
[10]See for example exhibit S, Notice of Admissions dated 4 November 2019
34 You did not give evidence at trial, as was your right. Evidence of your prior good character was tendered at trial.[11] It was not disputed that you were a man of prior good character.
[11]See trial transcript 589-594 – Statements made by Armando Stefano Pezzotti Wisner dated 12 September 2019 and Ricardo Salcedo Sanchez dated 4 November 2019 were read into the transcript.
35 By its verdict of guilt, the jury must have both accepted beyond reasonable doubt the essential elements of the Prosecution case and also been satisfied beyond reasonable doubt that your explanation of innocence as given to the police was false.
Gravity of your offending
36 You were complicit in a venture to import a commercial quantity of cocaine that was well organised and highly sophisticated. It would appear that considerable planning and resources had been invested into the method of importation, pursuant to which an apparently legitimate business was established to disguise the massive quantity of cocaine that was the real and intended subject of the importation. The system was designed to maximise the chances of the cocaine slipping through border control undetected, which, in all probability, it would have done but for the fact that Mr Altamirano Galindo was caught at the Airport in possession of a comparatively small quantity of cocaine. I should stress here that you were in no way party to Mr Altamirano Galindo’s importation of that small quantity of cocaine. What the jury found you guilty of was the crime of importing cocaine in an amount some 117.5 times the defined commercial quantity of 2 kilograms. The potential wholesale value of this haul is estimated to be in the region of $54 million to $72 million. It had a potential street value of between $156 million and $235 million.
37 That the cocaine did not find its way onto the streets is no thanks to you.
38 The unlawful importation of border controlled drugs is a most serious crime, the inherent gravity of which is reflected in the maximum applicable penalty, in your case, life imprisonment. It is well understood that these substances have the potential to wreck the lives of those who use them, and beyond, they “continue to present to a modern civilised society an increasing burden both monstrous and intolerable”.[12]
[12]R v Moran and Byrnes (1987) 31 A Crim R 248 at 254 per Tadgell, J
39 You played a vital role in this commercial enterprise. You were the importer. You were the one who organised for the goods to be cleared through Customs. You were the one who organised the logistics.
40 Based on the evidence before the jury, in the Prosecution amended submissions on sentence,[13] the overt acts that you performed in this importation are summarised as follows:
[13]Exhibit C on the plea
“31.The offender personally undertook the following acts between May and November 2017 in furtherance of the importation of the cocaine. He:
- Was involved in the purchase of cocoa powder and coffee used in both the two dry runs and the eventual unlawful importation, to accompany and disguise the cocaine.
- Participated in discussions as to the packaging of the cocoa powder in Mexico.
- Arranged the ‘front’ company C1 Superfoods Australia P/L to supposedly import and market imported ‘superfoods’ in Australia.
- Breached the relationship of trust he had with his long-time friend Dante Garcia Almanza to facilitate the establishment of C1 Superfoods.
- Arranged the transfer of $270,000 in ‘shareholder funds’ from Mexico to the C1 Superfoods business in Australia as ostensible working capital.
- Arranged the importation of two ‘dry run’ importations to establish a bona fide importation history for similar importations by C1 Superfoods.
- Made a preliminary trip to Australia in August 2017 to further the apparent bona fides of the C1 Superfoods business and to inspect the first ‘dry run’ importation.
- Gave instructions to test the capacity of the Australian storage and delivery contractor to deliver particular boxes of otherwise identical cocoa powder from Melbourne to Sydney, so as to mitigate risks involved in the planned distribution of the imported cocaine in Australia.
- Made enquiries as to storage facilities in Sydney, again to facilitate the Australian distribution of the cocaine.
- Travelled again to Australia after the cocaine importation had cleared customs – so as to inspect the consignment and await the arrival of his co-offender Altamirano Galindo for the further distribution of the cocaine in Australia.
- Continued to promote the bogus C1 Superfoods business with the business consultants and website contractors on his return to Australia in November 2017.
- Deceived Almanza, Junkeer and Budge as to the reason for Altamirano Galindo’s failure to appear in Australia.
32.In considering the sentencing facts as to the offender’s role it is noted that the jury were instructed that they could not find the offender guilty of the offence unless they were satisfied beyond reasonable doubt that
(i)C1 Superfoods was a bogus business, and
(ii)The offender’s innocent explanation in his police interview was false.
33.The Crown submits that the foregoing demonstrates that the offender’s role was extensive and pivotal.”[14]
[14]Exhibit C, paragraphs 31-33
41 With respect, leaving aside the question of Mr Altamirano Galindo’s complicity, I agree with the Prosecution’s characterisation of your role.
42 Ordinarily, in cases such as these, principles of general deterrence, condemnation and denunciation, protection of the community and just punishment are predominant sentencing considerations.[15] Put simply, those who engage or attempt to engage, at any level, in the importation and/or dissemination of border controlled drugs must expect condign punishment.
[15]See for example R v Carey [1998] 4 VR 13 at 17 and Nguyen v R (ibid); Phommalysack v R (2011) 31 VR 673
Applicable principles
43 In determining the sentence to be passed or the order to be made, I must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.[16]
[16]Section 16A(1) Crimes Act 1914 (Cth)
44 There are many factors that I must take account of when sentencing you, including:
(1)Principles of general deterrence, which I have already mentioned;[17]
[17]See Crimes Act 1914 (Cth), s16A(2)(ja) – general deterrence is now specifically included as a matter to be considered.
(2)The nature and circumstances of the offence[18] including your moral culpability;
[18]Section 16A(2)(a) Crimes Act 1914 (Cth)
(3)The maximum applicable penalty;[19]
[19]See Markarian v R (2005) 228 CLR 357; The maximum penalty serves as a yardstick to enable a comparison between the case before the court and the worst case scenario.
(4)Any injury, loss or damage resulting from the offence;[20]
[20]Section 16A(2)(e) Crimes Act 1914 (Cth)
(5)The degree to which you have shown contrition for the offence;[21]
(6)The deterrent effect that any sentence or order under consideration may have on you;[22]
(7)The need to ensure that you are adequately punished for the offence;[23]
(8)Your character, antecedents, age, means and physical or mental condition;[24]
(9)Your prospects of rehabilitation;[25]
(10)The probable effect that any sentence or order under consideration would have on any of your family or dependants;[26]
(11)The probability of your deportation;[27]
(12)Delay; and
(13)Principles of parsimony.[28]
[21]Section 16A(2)(f)(ii) Crimes Act 1914 (Cth)
[22]Section 16A(2)(j) Crimes Act 1914 (Cth)
[23]Section 16A(2)(k) Crimes Act 1914 (Cth)
[24]Section 16A(2)(m) Crimes Act 1914 (Cth)
[25]Section 16A(2)(n) Crimes Act 1914 (Cth)
[26]Section 16A(2)(p) Crimes Act 1914 (Cth) – also note family and family members include - de facto partner, child as defined in section 3, and anyone else who would be a member of the offenders family as defined. See s16A(4). Also note that there must be exceptional circumstances before this factor can be taken into account – Markovic v R (2010) 30 VR 589.
[27]Must be more than a possibility, and must be based on evidence – Guden v R (2010) 28 VR 288, but see the presumption of deportation created by s501(3A) Migration Act 1958 (Cth).
[28]Section 17A(1) Crimes Act 1914 (Cth) and see R v Carroll [1991] 2 VR 509.
45 The general principles applicable to sentencing drug offenders who breach Federal law were summarised in R v Nguyen; R v Pham:[29]
[29](2010) 205 A Crim R 106 at 126-128
“Some General Sentencing Principles Concerning Serious Federal Drug Offences
[70]The importation and possession offences now contained in the Criminal Code Act 1995 (Cth) provide for a structured sentencing regime by reference to the quantity of drug imported. Section 307 adopts ‘a quantity-based penalty regime’ by fixing commercial and marketable quantities of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties: Adams v The Queen [2008] HCA 15; 234 CLR 143 at 146 [2].
…
[72] The following general propositions emerge from the authorities:
(a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee at [27];[[30]]
[30][2007] NSWCCA 234
(b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]; R v Lee at [25];
(c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the ‘mastermind’ does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26];
(d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen; Leung v The Queen[[31]] at 607-608 [64]; R v Lee at [23]-[24];
(e) the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar v The Queen (No. 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46];
(f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32];
(g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v the Queen; Leung v The Queen at 607-608 [64];
(h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552-553 [114];
(i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6];
(j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49];
(k) where offenders are not young …. the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 474 [98]; … .”
[31](2001) 207 CLR 584
46 These principles have been cited with approval in Victoria.[32]
[32]See for example Nguyen v R; Phommalysack v R (2011) 31 VR 673
47 In Nguyen v R; Phommalysack v R,[33] Maxwell P observed:
[33]ibid
“[35]In De La Rosa,[34] McClellan CJ at CL identified the following as key reference points for sentencing (and for comparing sentences) in cases such as these:
· quantity;
· role;
· reward;
· assistance to authorities;
· criminal history; and
· prospects of rehabilitation.”
[34]DPP (Cth) v De La Rosa [2010] NSWCCA 194, paragraph [267]
48 His Honour went on to acknowledge the level of detail in a table that was prepared from a comprehensive study of some 80 cases. He noted that although the table provided a helpful reference point for sentencing, it must not be regarded as setting the sentencing parameters for the arbitrary quantities into which the groups analysed were divided.
49 In your case, the Prosecution has provided a table of cases said to be indicative of appropriate sentencing range. It should be noted that current sentencing practice is to be interpreted from sentencing practice Australia-wide, and not just from Victoria[35] where, as it has been observed, sentencing practice has been lower than in other States.[36] But caution must be exercised when statistical information is relied upon because no two cases are likely to be identical.[37]
[35]R v Pham (2015) 256 CLR 550 at paragraphs [18]-[19]
[36]Pham v R [2014] VSCA 204 at paragraph [44] and Attachment B to those reasons
[37]Alavy v R [2014] VSCA 25
50 In Pham v The Queen,[38] the Court of Appeal re-emphasised that while sentencing statistics offer guidance and promote consistent sentencing practice throughout Australia, they are not determinative of the sentence to be imposed in any particular case.
[38][2016] VSCA 259
51 In your case, the statistical table was accompanied by the judgments referred to in it. I have read all of the cases provided to me. There is no case in the bundle that constitutes a direct match with your offending or your personal circumstances.
Plea in mitigation of penalty[39]
[39]See Exhibit 1, Amended Outline of Defence Submissions for Plea dated 15 July 2020
52 Your Counsel, Mr Johnston, conceded the gravity of your offending and that a significant term of imprisonment is the only appropriate response to it; however, he identified a number of factors, which he submitted combined to justify a more lenient approach when sentencing you. I now turn to the matters raised by your counsel in mitigation of penalty:
Factors personal to you
53 You were born in Mexico to loving and supportive parents. For the first fifteen years of your life, you suffered from epilepsy, a condition ultimately cured with medication.
54 By all accounts you were a good student at school, completing Year 12 successfully. You then went on to study international business, a six-year course, which you completed in 2009.
55 After completing your studies, you started your own business in 2009. In 2012, you started the business [omitted]. The core business of that business was to facilitate the logistical importation and exportation of products globally.
56 You first met Mr Altamirano Galindo in 2011 at a party in Guadalajara.
Prior good character
57 As I mentioned earlier, at trial, evidence of your good character was adduced. The fact of your prior good character was not in issue at trial. A number of documents were tendered at your plea hearing, all of which attested to your personal and professional integrity. In short, these references confirmed that prior to this offence, you were a loving, hardworking man of impeccable character.[40]
[40][details omitted]
58 You continue to enjoy the support of your family, who have in effect pleaded for mercy on your behalf.
59 I accept that you are a man of prior good character. In cases such as these, prior good character is of less weight because often people of prior good character are used in drug importations by virtue of the fact that they are of good character. They are less likely to attract the attention of authorities.
A version of the facts proposed as consistent with the jury’s verdict
60 I have mentioned that you did not give evidence at your trial. Nor did you give evidence at your plea hearing. Despite this, your counsel has suggested that it would be open for me to interpret the jury’s verdict as a finding that although you intended to import a commercial quantity of cocaine, you were unaware of the actual quantity involved.
61 Mr Johnston relied upon the evidence given at trial by Federal Agent Keith John Randall, a member of the Australian Federal Police with some 36 years’ experience. Mr Randall testified that drug syndicates use various methods to import illicit drugs. There are many ways that syndicates are structured, although they are mainly established with a view to protecting those higher up in the chain of command. Generally speaking, the lower down the chain, the greater the risk of exposure to detection. Mr Randall agreed that those recruited as “sub-contractors” in these drug importation enterprises may be engaged to perform only part of the operation. These sub-contractors may have limited knowledge of either the overall structure of the syndicate or of the full detail of the venture in respect of which they have been engaged..[41]
[41]Trial transcript pages 501-510
62 Mr Johnston submitted that consistent with this evidence, it would be open to find that you were, in effect, engaged as a sub-contractor hired to perform the limited role of organising the logistical side of the operation. He submitted that I should not be satisfied beyond reasonable doubt that you were at the top end of the hierarchy, that you were an owner of the cocaine, or that you had specific knowledge of the fine detail of the overall scheme. He conceded however, that the only rational inference to be drawn from the verdict is that you were involved for financial reward.
63 On the other hand, on behalf of the Prosecution, Mr Armstrong invited me to infer that you must have been aware that a massive amount of a border controlled drug was involved because of the sheer scale of the shipments and the level of sophistication of the enterprise.
64
I agree with Mr Johnston that the verdict leaves open the question of your knowledge of the actual amount of cocaine involved. Yet I also agree with
Mr Armstrong that whatever the amount, you must have known that a very large quantity of drug was involved because of the size of the shipments and the level of planning and sophistication involved in the method of secretion of the cocaine in the cocoa packets. In other words, I consider it inherently improbable that anyone involved in an operation of this scale would think it was all done for a low volume of a commercial quantity of cocaine. The cost of the set up would far outweigh the financial yield expected to be derived from a lower end amount of a commercial quantity of a border controlled drug. It defies logic to say that anyone would go to the trouble or expense of arranging these shipments comprising of almost 2 tonnes of cocoa powder and 750 kilograms of coffee all to disguise a mere 2 or 3 kilograms of cocaine. That said, I accept that you were not the mastermind, nor did you have a proprietary interest in the cocaine. You were not at the top of the hierarchy, nor were you a mere courier. I assess your role as a significant sub-contractor who had a crucial and pivotal part to play.
Delay and experience on remand
65 You were arrested on 29 July 2017 and have remained on remand ever since that date. Your trial did not commence until 23 September 2019, when pre-trial arguments began. A detailed chronology of proceedings was tendered as exhibit B. This shows, and you concede, that although there was a delay of over two years before you faced trial, neither side has contributed unduly to that delay. It is a sad reality that there are delays in our system of criminal justice and that trials of this nature and duration are unlikely to be heard within the space of one year from the date of charge. On top of this, with the declaration of the current world pandemic of COVID-19, only limited business can now be brought before the Court.
66 You are a foreign national and have found the experience of remand in a foreign country within a foreign legal system particularly onerous. You have no family here to comfort or assist you. Separation from your family and the limited access that you will have to loved ones is regrettable, however, it can only be a relevant sentencing consideration if found to constitute an exceptional circumstance in your case.[42] These factors alone do not, in my judgment, constitute exceptional circumstances; however, when combined with the uncertainty that the impact of COVID-19 may have upon your family, a matter I shall soon discuss, I am satisfied that exceptional circumstances exist to justify taking account of your separation from your family as a relevant sentencing consideration.
[42]Mr Johnston relied upon DPP (Cth) v Estrada (2015) 45 VR 286 at paragraph [38]. Cf. Pham v The Queen; Tang v The Queen [2012] VSCA 101 at paragraphs [8] and [41]-[42]
67 As I understand it, whilst on remand, until relatively recently you have been held in protection, in almost complete isolation. I was told at your plea hearing that you are likely to serve the entirety of your sentence within a protective unit. You elected to seek this level of protection because you had been advised that given the publicity your case has attracted, this is the best way to keep you safe. As a consequence, it was thought that you would be unable to work in prison industries and that you would have limited access to educational courses.
68 In Exhibit 9 tendered on 24 August 2020, your counsel submitted that your situation had changed somewhat. He submitted:
“On 4 August 2020 Mr [Ruiz] was moved from Barwon Prison to Deakin – a protection unit at the Melbourne Remand Centre.
Mr [Ruiz] was moved against his express wishes. Mr [Ruiz] instructs that whilst he was provided with a protective mask to wear whilst being relocated, he felt particularly fearful being moved to a facility where there has been a reported COVID-19 case. Again, at this facility masks are not worn by prisoners apart from those undertaking work in prison industries.
Mr [Ruiz] instructs that in this unit there are fifty cells over two floors. Current arrangements allow those housed on the first floor to access general areas for the first half of the day, the second half of the day by those housed on the second floor. Mr [Ruiz] is on the first floor.
Mr [Ruiz] is not permitted to keep cleaning products within his cell. Mr [Ruiz] instructs that he is now working ‘full time’ in prison industries (assembling nuts and bolts). He instructs that he works within a meter of another prisoner. This means in effect he is not in his cell during the day on weekdays.
Ultimately it is submitted that the anxiety of potentially becoming infected with COVID-19 whilst in custody has increased in the context of the new environment, alongside his anxiety about the safety of family and friends in Mexico as the pandemic worsens.”[43]
[43]Exhibit 9
69 The further plea hearing was adjourned from 24 August 2020 to today to enable further evidence to be gathered in relation to the current situation in custody and further submissions were tendered on your behalf this morning, Exhibit 10.
70 The Prosecution also submitted further evidence today: Exhibit F, an affidavit of Jennifer Ann Hosking, Assistant Commissioner, Sentence Management Division, Corrections Victoria. In that affidavit, Ms Hosking outlined your history within the prison system since your remand. The information contained in that affidavit confirms the submissions that your Counsel made in relation to the time that you have spent in custody since on remand, and I accept the submissions that Mr Johnston made and I accept the truth and accuracy of the affidavit of Ms Hosking.
71 I note that we are currently in Stage 4 restrictions here in Victoria, that a curfew has been imposed and people are not permitted to travel greater than 5 kilometres from their home, except in certain defined circumstances, and mask wearing is required. It is not yet known when these restrictions will be removed, amended or in any way changed.
Deportation
72 You arrived in Australia on a tourist visa. That visa was cancelled by the Department of Immigration in December 2017. Accordingly, you are classified as an “unlawful non-citizen”. You have not applied for any other form of visa, nor have you sought asylum in this country. It is not in controversy that there is no lawful basis for you to remain in Australia upon your release. In all likelihood you will be deported to Mexico after serving your sentence. That fact, however, does not prohibit the Court from fixing an appropriate period on parole as it is not open to the Court to speculate about how the executive function might be performed in the future.[44]
[44]DPP (Cth) v Besim (No 3); DPP (Cth) v M H K (A Pseudonym) (No 3) (2017) 52 VR 303 at paragraphs [48]-[58]
73 The point that your counsel makes is that it is stressful for you living with the uncertainty of whether you will in fact be granted parole.
COVID-19
74 Earlier this year, the world pandemic of COVID-19 was declared. As I have said, at present, Victoria is in Stage 4 lockdown pursuant to which severe restrictions of movement and actions have been imposed. It is not known when any or all of these restrictions will be lifted. Currently, there is no vaccine for the virus and it is not known whether there ever will be. International efforts are being invested into finding a vaccine or a cure, and it is hoped that progress will yield some form of useful treatment by next year or the year after. One can only speculate about what the future holds in this regard.
75 Your parents are elderly and live in Mexico. You live with the constant worry that they may fall victim to COVID-19 and that you may never see them again. You also have the fear that the virus may penetrate the prison system and infect you. Although every effort is being made to protect prisoners from the virus, there are no guarantees that the virus will not enter the prison system. I accept that prisoners do not have the luxury of controlling their environment. Nor are they able to keep an appropriate distance from those around them. There is limited protective equipment available for prisoners in limited circumstances.[45]
[45]See the affidavit of Ms Hosking, Exhibit F
76 There is no evidence that you are more susceptible to infection than any other prisoner in relatively good health. I accept, however, that your imprisonment under these circumstances is both stressful and onerous, matters I take into account in sentencing you today, particularly as the situation with the virus and its consequences is constantly evolving.
Prospects of rehabilitation
77 I accept that you have excellent prospects of rehabilitation based on:
(i) your solid work history;
(ii) your strong family supports;
(iii) the fact that you will have stable accommodation available to you upon your return to Mexico;
(iv) you have no psychiatric or psychological conditions that would reduce your prospects of rehabilitation;
(v) you do not use illicit drugs; and
(vi) you are a man of prior good character.
78 I also accept that because of your inevitable conviction and sentence in this case, it is inherently unlikely that you will ever be able to work again in the industry in which you have qualified and have gained considerable experience.[46] It is also likely that your ability to travel internationally will be severely restricted.
[46]Cf. Talia v The Queen [2009] VSCA 260 at paragraphs [26]-[30]
Submissions as to penalty
79 Both parties referred to a number of authorities relevant to the question of penalty. As I stated earlier, I have read all of these authorities and taken them very much into account when arriving at the sentence that I must impose upon you today.
80 In short, Mr Armstrong submits that a substantial period of imprisonment is the only appropriate response to your offending, having regard to the nature and circumstances in which this offence was committed and to your conduct in committing it. You cannot call in aid any discounts that might have been applied to your penalty such as if you had pleaded guilty or shown signs of contrition or remorse.
81 On the other hand, whilst conceding that a lengthy period of imprisonment must be imposed upon you, Mr Johnston submitted that having regard to all of the circumstances advanced in mitigation of penalty, a longer period on parole than otherwise would be ordered is warranted so as to allow you to return to your country “to earn an honest living and have some semblance of an adult life in what will be left of it following [your] release”.[47]
[47]Exhibit 1, p11
Sentence to be imposed
82 I can only pass a sentence of imprisonment if, having considered all other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case.[48] In all the circumstances, I have no alternative but to impose a term of imprisonment.
[48]Section 17A(1) Crimes Act 1914 (Cth)
83 The objective gravity of your offending is high and there are few matters that can be taken into account in mitigation of penalty. I have outlined them.
84 On the charge of importing a commercial quantity of a border controlled drug (cocaine) contrary to subsection 307.1(1) of the Code, you are convicted and sentenced to eighteen (18) years’ imprisonment. That sentence will commence today.
85 In fixing the non-parole period, I must pay regard to s19AKA of the Crimes Act 1914 (Cth) which sets out the purposes of parole. Those purposes are:
(a) The protection of the community;
(b) The rehabilitation of the offender;
(c) The reintegration of the offender into the community.
86 Taking these matters into account, I direct that you serve a minimum term of twelve years before becoming eligible for parole.
87 I am required to explain the impact of my order.[49] The total effective sentence is eighteen (18) years’ imprisonment. I have directed that you serve a minimum period of twelve (12) years before becoming eligible for parole. Accordingly, you will be required to serve a minimum period of not less than twelve years, and thereafter, if you are released on parole, the balance of your sentence will be served in the community subject to the conditions of your parole and subject to any order for your deportation. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison.
Direction under Section 17A(2)(b) Crimes Act 1914 (Cth)
[49]Section 16F(1) Crimes Act 1914 (Cth)
88 Having come to the conclusion that I have no alternative but to impose a term of imprisonment, under section 17A(2)(b) of the Crimes Act 1914 (Cth), I direct that my reasons for so finding be entered in the records of the Court.
Declaration of presentence detention under Section 16E Crimes Act 1914 (Cth)
89 Under section 16E of the Crimes Act 1914 (Cth), I declare that the period of 1010 days be reckoned as time already served under this sentence and I direct that the details of this declaration be entered in the Court’s records.
Ancillary orders
90 I now turn to ancillary orders. Forfeiture order?
91 MR JOHNSTON: It is not opposed, Your Honour.
92 HER HONOUR: Now, I saw the draft order. In fact you told me that on the last occasion, 24 August, that the order was not opposed so I had proposed to make that order. But I just wonder on reflection, Mr Armstrong, is it premature to make the order? Will the items not be required for the pending trial?
93 MR ARMSTRONG: Your Honour, that was the concern that Mr Johnston had initially about the order but my instructing solicitor has explained the procedures to the defence, that is the concern with and the steps that will be taken to make sure that the material is preserved for any later proceedings and that is, I think, their basis on which the defence have been satisfied that they will not oppose the order and I am on the same basis, Your Honour, instructed that there is no concern that the material will be lost for further prosecutions.
94 HER HONOUR: Very well, on that assurance I will sign the Order under section 48 of the Proceeds of Crime Act 2002 (Cth).Do either of you require me to read the Order into the transcript?
95 COUNSEL: No, Your Honour.
96 MR ARMSTRONG: Can I just add, Your Honour, I think for completeness, a submission made at one stage by Mr Johnston that Mr Ruiz’s co-operation in agreeing the forfeiture order was a matter that could be taken into account but Your Honour raised a point last time we were before you that in circumstances where Mr Ruiz denied that he had any proprietary interest in those items, that it may not be necessary or possible to take co-operation into account and as I understand it, Mr Johnston accepts that and I would understand that Your Honour’s sentence is not taken into account on
Mr Ruiz’s part as a mitigating circumstance, any suggested co-operation insofar as the forfeiture order is concerned.
97 HER HONOUR: Mr Johnston, that was what you conceded as I understand it?
98 MR JOHNSTON: Yes, it was, Your Honour, and that was both in my written submission and in oral submission this morning.
99 HER HONOUR: Yes, well that is right. That is correct, I have not taken into account co-operation in making of the Order under s48 of the Proceeds of Crime Act in mitigation of the penalty imposed today.
100 COUNSEL: Thank you, Your Honour.
101 HER HONOUR: Are there any further matters?
102 MR ARMSTRONG: Not from the Prosecution, Your Honour.
103 MR JOHNSTON: No, Your Honour, only that if I could ask that I be able to have some time with my client following this proceeding?
104 HER HONOUR: Yes, I do wish to say before I leave the Bench that I am grateful to both parties, to Mr Johnston and to Mr Armstrong, and to your respective instructors, for the very comprehensive submissions that you have made in this plea hearing, to the attention that you have given to the gathering of evidence so as to ensure that justice is done in these very difficult times.
105 There has been a lot of trouble with conducting this hearing via WebEx. You have all assisted and co-operated to make it work as best as it could have, and as efficiently as it could have been in these trying circumstances. I will leave the Bench. Mr Ruiz is clearly upset and would like to talk to you, Mr Johnston.
106 MR JOHNSTON: Yes.
107 HER HONOUR: My associate, will arrange for a private link, excluding everybody else.
108 MR JOHNSTON: I am grateful, Your Honour.
109 HER HONOUR: Thank you.
110 MR ARMSTRONG: Thank you.
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