Director of Public Prosecutions v Carmona

[2019] VCC 1148

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01937

THE QUEEN

v

FERNANDO TOVAR CARMONA

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2019
DATE OF SENTENCE:	26 July 2019
CASE MAY BE CITED AS:	DPP v Carmona
MEDIUM NEUTRAL CITATION:	[2019] VCC 1148

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW – Sentencing

Catchwords:  Import a commercial quantity of a border controlled drug – cocaine – Dealing proceeds of crime.

Legislation Cited: s16A, s17A Crimes Act 1914 (Cth).

Cases Cited:Bae v R [2015] NSWCCA 133, Lam v R [2015] NSWCCA 143, Zhang v R [2011] NSWCCA 233, Jinde Huang aka Wei Liu v R [2018] NSWCCA 70, Wang v R [2016] VSCA 292, Blango v The Queen [2018] VSCA 210, CDPP v Wan Fai Lam [2018] VCC 1655, DPP v Keng Hong Hew [2016] VCC 1680.

Sentence:Total effective sentence of 14 and a half years' imprisonment.  I fix a non-parole period of ten years' imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Queen	Mr J. Saunders (Plea) Mr J. Manning (Sentence)	Commonwealth Director of Public Prosecutions
For the Accused	Mr A. Brand	Slades & Parsons Criminal Law

HIS HONOUR:

1Fernando Tovar Carmona, on 19 July 2019 you pleaded guilty to the following charges on the Commonwealth indictment CR1801937: 

Charge 1, import a commercial quantity of border controlled drug.  That drug was cocaine.  This charge has a maximum penalty of life imprisonment;

Charge 2, importing a commercial quantity of a border controlled drug.  That drug was cocaine.  This charge has a maximum penalty of life imprisonment; and

Charge 3, dealing in the proceeds of crime worth more than $10,000.  This charge has a maximum penalty of 10 years' imprisonment.

Circumstances of your offending

2The prosecution tendered a prosecution opening on the plea dated 12 July 2019.  This document is Exhibit “A” and is attached to the reasons for sentence.  I accept the factual basis set out in Exhibit “A” as the basis for sentencing you for these three offences.  I will summarise the opening in these reasons to give context to the sentencing process but I have relied upon the facts in the opening in full in sentencing you.

Background

3You first came to Australia on 25 April 2017.  You are a Columbian citizen.  You were a guest in this country and were on a student visa.  You remained in Australia from April 2017 until the present time except for a short period between 10 November 2017 and 11 December 2017 when you travelled to Bali.  You have been in custody since your arrest on 8 March 2018.

4You have four co-accused offenders who have elected to go to trial for this offending.  You are the pivotal role in the Melbourne end of these importations.  So much is clear from the WhatsApp messages set out in “Annexure 1” to the prosecution opening.

5The importations of cocaine were in two separate consignments.

Charge 1- Import a commercial quantity of a border controlled drug (Torque Brake Pulley Consignment)

6The consignment of cocaine was contained in a torque brake pulley.  The consignment was sent from Santiago, Chile, on 20 February 2018 and arrived in Sydney on 25 February 2018.  On 5 March 2018, a DHL express driver attended at 20 Church Street in Parkville and delivered the torque brake pulley parcel, weighing some 60 kilograms.  This parcel was signed for by “Thomas Sullivan”.

7On the telephone intercepts and the WhatsApp messages it is clear that you are the person coordinating the delivery and then transfer of the brake pulley to your residence, which was at 505/338 Kings Way in South Melbourne.  The static surveillance observes you attending at the Bunnings store in Port Melbourne to buy tools and wrenches, cutting equipment, so you could access the contents of the brake pulley.  At the same period of time your WhatsApp messages are seeking instructions about how to open the brake pulley.

8The Australian Federal Police (“AFP”) were monitoring and following the delivery of the second consignment to your apartment in South Melbourne.  The AFP executed a search warrant at your premises.  In the course of the search the police located the DHL delivery box for the brake pulley, which had initially been delivered to 20 Church Street in Parkville.  When you were asked by police, 'Where is it?', you directed them to an item in a plastic bag under the kitchen bench.  It was the brake pulley.  When you were asked, 'What's in it?', you responded, 'Cocaine'.

9The AFP seized the brake pulley.  The contents of the brake pulley were analysed and weighed.  The brake pulley contained
5.766 kilograms of pure cocaine.  The brake pulley had grinder marks and wrench marks on it, consistent with your attempts to open it, as discussed on your WhatsApp messages.

Charge 2 - Import a commercial quantity of a border controlled drug (Core Cooler Spare Parts Consignment)

10The core cooler consignment, weighing 20.5 kilograms was shipped from Panama on 24 February 2018.  The consignment arrived in Melbourne on 28 February 2018.  You bought a new mobile phone on 27 February 2018.  The AFP have the WhatsApp message between yourself and “Ga”, your overseas controller. The AFP intercepted this core cooler package.  Originally this package was to be delivered to a “Holly Sullivan” at 20 Church Street in Parkville.  After interception the police examined the core cooler and located a cylinder containing cocaine within it.  The consignment was analysed and it contained 4.072 kilograms of pure cocaine.  The core cooler was reconstructed with an inert substance in the place of the cocaine.

11The core cooler was then subjected to a controlled delivery to 20 Church Street, Parkville.  The core cooler had a surveillance device fitted into it.  The WhatsApp messaging from you to Ga and your co-offenders set out some anxious conversations about the delivery of the core cooler between 28 February 2018 and 8 March 2018. 

12On 8 March 2018, the AFP made preparations and arrangements, including surveillance, for a controlled delivery of the core cooler.  You are directing co-accused two and co-accused four about the calculation of the core cooler at Church Street by telephone.  The core cooler was delivered into the hands of co-accused four.  The AFP followed co-accused four to 338 Kings Way in South Melbourne.  Co-accused four is seen going into the building and was observed leaving without the package.

13At this time you, and co-accused one, two and three were present in the apartment.  You had a conversation concerning the delivery of the core cooler consignment, how much it potentially contained and how to open it.  That conversation was recorded by means of the surveillance device which had been secreted within that consignment.

14Between 4.04  and 4.11 pm on that day surveillance officers saw co-accused one walking back and forth on the balcony of 505/338 Kings Way, holding a mobile phone to his ear.  At 4.23 pm you sent a WhatsApp message to Ga.  It read, 'It's in my hands', with five smiley face emoticons.

15After the core cooler was opened the AFP executed a search warrant and arrested you and your co-accused.  A search was conducted of your unit at 505/338 Kings Way in Melbourne.

Charge 3 - Dealing in proceeds of crime worth $10,000 or more ($30,000 in cash in black suitcase)

16The search revealed that $30,000 was located in the inner zipper of a black suitcase on the top shelf of a bedroom cupboard.  You accept that this was your money.

17Following your arrest you were transported to Australian Federal Police headquarters when you were interviewed in the form of a digitally recorded record of interview. 

18You told investigators the following:

·You had moved to 505/338 Kings Way, South Melbourne on 13 February 2018 as a result of your cousin, co-accused three, arriving in Australia;

·You and your cousin were sharing a bedroom in the apartment;

·Co-accused two and four resided in that apartment;

·You worked as a window cleaner for Kaplan Services;

·You had commenced work at 5.30 am on 8 May 2018, and that you had finished at 11 am; and

·After finishing work you had had a haircut in Elizabeth Street at about one and then went for lunch in Swanston Street.  Apart from the above answers you made a no comment to any other allegations that were put to you in the record of interview.  That, of course, is your right.

19Apart from the above answers you made a ‘no comment’ to any other allegations that were put to you in the record of interview. That, of course, is your right.

20I note that in Exhibit “A”, “Annexure 3”, there is a spreadsheet of payments of money to and from you for the period of 7 February 2018 to 8 March 2018.  I find that you were a pivotal person in charge of the Melbourne end of these importations of cocaine to Australia.

21The evidence of Keith Randall, which was Exhibit “B” in the plea, set out his expert opinion on the dollar value of these importations of cocaine as follows: 

Charge 1, the low range wholesale value was 1.295 million, and the high range wholesale value was 1.776 million. 

Charge 2, the low range wholesale value was $875,000 and the high range wholesale value was 1.2 million.  In total his assessment of the street value was at a low range was 5.9 million and at a high range was 7.8 million.

22The prosecutor submitted that the total amount of 9.83 kilograms of pure cocaine was just shy of five times the commercial quantity for this drug.  This is a quantity based sentencing regime.

Personal Circumstances

23You have recently turned 27 years old.  At the time of the offending you were 25.  You are a Columbian citizen.  Your family come from Medellin, where you were born.  Your father works as a manager in a metal work and wooden home furniture business which was founded by your grandfather.  Your mother works as a secretary in a hospital.  Your older sister, Daniella, who had previously travelled to Canada in order to immerse herself in the English language, now works as a financial engineer in Columbia.

24Each of your family members have written references to support you in this plea.  They are Exhibit “3”.  In those letters it is clear you come from a supportive family who are surprised you have taken this path of criminality and been involved in the illicit drug trade.  You initially worked in the family business after leaving school. You then worked for another company as a designer and salesperson to expand your commercial experience and knowledge.

25Your parents have then subsidised your travel to Australia so that you could improve your English skills by immersion in an English speaking country.  In your Father’s letter, which is part of Exhibit “3”. He speaks of your family values of respect, morality and love that have been the foundation of the family values in raising you and your sister. 

26You have used alcohol socially, you have used cannabis from the age of 20, together with party drugs in a social setting.  You have not used cocaine or any other drugs.  In the main you had a fit and healthy lifestyle prior to your incarceration.

27You have been assessed by Dr Aaron Cunningham, forensic psychologist, for the purpose of this plea.  His report dated 16 July 2019 was Exhibit “2”.  You have been assessed as being of average intelligence.  You are not suffering from any mental illness.  I note you acknowledged the wrongfulness of your behaviour to Dr Cunningham.  You also told him you did not believe you would get such a serious sentence at the time of your offending.  I accept that you are now isolated from your family and this will make your time in prison more onerous.  I note you have monthly telephone contact with your family. 

28Your offending was motivated by greed and access to easy money.  Your moral culpability for this offending is high.

Sentencing Considerations

29The most significant consideration in sentencing a federal offender such as yourself is set out in s.17A of the Crimes Act, which provides as follows:

'A court shall not pass a sentence of imprisonment on any person unless character court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case’. 

30A term of imprisonment is the only appropriate sentence for your offending under this law.

31Section 16A of the Crimes Act sets out a non-exhaustive list of factors a court must take into account and consideration when sentencing a federal offender such as yourself.  There are many factors I must take into account and they are set out in that section.  These include the following:

(a) the nature and circumstances of your offending;

(b) if your offending formed part of a course of conduct consisting of a series of criminal acts.  In this case there are two charges of importing cocaine;

(c) any loss or injury or damage resulting from the importation offence.  In this case the importation is of nearly five commercial quantity value of cocaine;

(d) the degree to which a person has shown contrition for the offending;

(e) you have pleaded guilty of the offence;

(f) the deterrent effect of any sentence or order under consideration may have on you personally, that is specific deterrence;

(g) the deterrent effect that any sentence under consideration may have on another person, that is general deterrence.  In a case such as this, general deterrence is a prime consideration in the sentencing;

(h) the need to ensure you are adequately punished for your offending;

(i) your character, antecedents, age, means and physical and mental condition;

(j) the prospects of your rehabilitation; and

(k) the proper effect any sentence or order under consideration may have on your family.

32I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly, but not exhaustively, to the kind of sentences imposed in comparable cases and the statistics for those sentences.  I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.

33The learned prosecutor helpfully handed a comparative sentencing table to the court.  The table included the cases of:  Bae v R; Lam v R; Zhang v R; Liu v R all cases from the New South Wales Court of Appeal and the case of Wang from the Victorian Court of Appeal. 

34Mr Brand, on your behalf, handed up the cases of Blango from the Victorian Court of Appeal, and cases of Lam and Hew, which are judgments of my colleague judges. All of these cases are factually different from your case, nevertheless the sentence in those cases gives a yardstick by which the sentence in your case is to be set.

35The principles of sentencing in drug importation cases are well established.  I assess your role in these offences as the pivotal person involved at the Melbourne end of the international drug importation operation.  You have contact with the supply end of the transaction.  You organised a collection of the cocaine at the Melbourne end of the importation. 

36In this case there are two separate importations.  Each of those importations are at least twice the commercial quantity of cocaine.  The total of the two importations is just short of five times the commercial quantity set down by parliament.  The total street value as assessed by Mr Keith Russell is between $5.9 million and $7.8 million.  On any view, this is a significant importation of cocaine. 

37It is clear from the messaging intercepts your role in this offending is undertaken for profit.  You were engaged in this offending for a quick and easy monetary gain.  Cases of importing drugs are difficult to detect and when detected offenders are to face stern punishment.

38In your case you are a person of prior good character.  In cases of drug importation good character is given less weight as a mitigating factor in sentencing. 

39The principles of specific and general deterrence have application in this sentencing process.  In cases of drug importation general deterrence is given paramount importance.  The specific deterrence is relevant in your case because of the nature of your offending and the motive of profit, as set out earlier in these reasons.

40You pleaded guilty to the charges on the indictment after you had conducted a contested committal hearing which involved the informant only, and the matter was set down for trial.  Your co-accused are listed for trial later this year. 

41Your plea does have the utilitarian value for the ordering and effective admission of justice.  There is a certainty of outcome and the resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of court investigative resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.

42Your plea is also a clear indication, an acknowledgment by you that you accept your responsibility for your criminal behaviour.  Your plea also recognises you are willing to facilitate the course of justice in this community and I accept that your plea to these charges demonstrates some remorse on your part.  Your plea of guilty is significant in this particular case because of the number of witnesses that would be required to attend at trial and prove the charges against you.

43I accept that your plea is consistent with your statement of remorse for your offending to Mr Cunningham, which is set out in Exhibit “2”.  I accept you are remorseful for your offending, not just because you face a lengthy term of imprisonment, which could be described as regret, but because you understand the full impact of your offending here in Australia and the attention your family is receiving from other offenders in your home country.  This is set out in your sister's letter, which is part of Exhibit “3”.

44At the time of your offending you were 25 years old.  You are not a young offender who is known to the law but you were a relatively young man.  Your relevant youth does not excuse or explain your offending.  It is relevant in the assessment of your prospects of rehabilitation. 

45In respect of rehabilitation you have no prior convictions, a supportive family, a good work history, and are a young man. On the risk side of rehabilitation is the role that you had in this offending was significant and the offending itself is serious.  You were motivated by greed and easy financial gratification.  You will also serve a long term of imprisonment in a foreign country.  On balance, I assess your prospects of rehabilitation as fair, given the support you have from your family and your life prior to coming to Australia.

46I take into account that your time in custody in Australia will be more burdensome for you because of the lack of family contact visits and general connection whilst incarcerated here.  I accept you have telephone contact with your family on a monthly basis.

47When you have completed your sentence you will be deported to Columbia. 

48The sentencing principles of specific and general deterrence, denunciation of your offending, protection of the community, dictate that a substantial term of imprisonment is the only just sentence.  I have moderated the cumulation of the situations on charges 2 and 3 so as not to impose a crushing sentence on you, and offend sentencing principle of totality.

49Would you stand, please?

50On Charge 1, you are convicted and sentenced to ten years' imprisonment.  That sentence is to commence today. 

51On Charge 2, you are convicted and sentenced to ten years' imprisonment.  I direct that the sentence in Charge 2 is to commence six years prior to the completion of the sentence in Charge 1. 

52On Charge 3, you are convicted and sentenced to 12 months' imprisonment.  I direct that the sentence in Charge 3 is to commence six months prior to the completion of the sentence in
Charge 2. 

53That is a total effective sentence of 14 and a half years' imprisonment.  I fix a non-parole period of ten years' imprisonment.

54Pursuant to s.6AAA of the Sentencing Act I declare that but for your plea of guilty I would have sentenced you to 18 years' imprisonment with a minimum non-parole period of 14 years.

55And I just want to check this declaration of 497 days.

56MR BRAND:  Five hundred and four, Your Honour, 504.

57HIS HONOUR:  Five hundred and four.  Thank you.  And I declare that you have served 504 days pre-sentence detention.

58COUNSEL:  As Your Honour pleases.

59HIS HONOUR:  Mr Prosecutor, I have got a draft order here.

60MR MANNING:  Thank you, Your Honour.

61HIS HONOUR:  I just want you to check it before I - - -

62MR MANNING:  Yes, Your Honour.

63MR BRAND:  I will see you downstairs.  They can visit you downstairs.

64HIS HONOUR:  You can take a seat, thanks.  Thank you.

65MR MANNING:  There are no issues, Your Honour.

66HIS HONOUR:  Thanks.  Thank you, you can remove the prisoner.  Sorry, Madam Interpreter, you can step - sorry, are you finished explaining that?

67INTERPRETER:  Pardon?

68HIS HONOUR:  Have you finished explaining that to him?

69INTERPRETER:  Yes.

70HIS HONOUR:  Thank you.  You can step out of there, thanks.  Thank you very much for your assistance.  Thanks, you can remove the prisoner.  Madam Interpreter, thanks very much for your assistance this morning.  Mr Brand, I see Mr Saunders in court and the learned, prosecutor, Mr Manning.  Thank you all for your assistance in this case.

71COUNSEL:  If Your Honour pleases.

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