Director of Public Prosecutions v Ladino Garzon

[2018] VCC 484

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02345

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL LADINO GARZON

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2018
DATE OF SENTENCE:	17 April 2018
CASE MAY BE CITED AS:	DPP v Ladino Garzon
MEDIUM NEUTRAL CITATION:	[2018] VCC 484

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Sentence – import a marketable quantity of a border controlled drug (1 charge)
Legislation Cited:	Sentencing Act 1991 (Vic); Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth)
Cases Cited:	Nguyen v the Queen [2011] 31 VR 673; Nguyen & Pham [2010] 205 ACR 106; Alavy v R [2014] VSCA 25; Pham v R [2016] VSCA 259; Hoang v R [2018] VSCA 86; DPP (Cth) v Maxwell [2013] VSCA 50; R vMills [1998] 4 VR 235; Azzopardiv R [2011] VSCA 372; DPP v Dalgliesh (2017) ALJR 91, 1072
Sentence:	Convicted and sentenced to a term of seven years’ imprisonment with a non-parole period of 5 years imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E Mcdonald	Solicitor of the Commonwealth Office of Public Prosecutions
For the Accused	Ms L Papadinas	Emma Turnbull Lawyers

HIS HONOUR:

1Mr Daniel Felipe Ladino Garzon, who I will call Mr Garzon for the purposes of this sentence, appeared in this Court on 11 April to plead guilty to one charge, set out in indictment no.CR1702345.

2Mr Garzon was born in Columbia on 3 June 1994 and is 23 years of age.  The DPP was represented by Ms McDonald, who appears today, and Mr Garzon was represented by Ms Papadinas, who also appears today.

3The charge in the indictment is pursuant to the Commonwealth Criminal Code s.307.2(1), being to import a marketable quantity of a border controlled drug.  That importation took place on 10 August 2017.

4The drug involved was cocaine. The seriousness of the crime is demonstrated by the fact that the Parliament, at the behest of the Australian community, has imposed a maximum penalty for this offence of 25 years' imprisonment.

5The amount involved was 870 grams of pure cocaine.  The threshold for this particular charge under the section that I have identified is 2 grams.  Therefore, the amount subject of the importation was 435 times such threshold amount.

6To attain perspective of such amount, it is important to understand that the threshold for the higher penalty - that is, the penalty for which Parliament has prescribed a punishment of life imprisonment - is one of two kilograms.

7Hence, the particular amount - and this matter is important, where you have a volume-based regime - the amount for this charge represents, in fact, 43.5 per cent of such upward threshold - that is, the threshold for the higher charge, of which, of course, Mr Garzon is not charged.

8The agreed minimum wholesale value of these drugs was $216,000 with a street value of $579,000.  Mr Garzon comes before this Court with no prior offences. He has served, by way of remand, now 228 days.  I think that is correct, if my maths are right.

9The opening tendered in this matter as Exhibit A, and prepared by the Director of Public Prosecutions, and presented by the prosecutor, was dated 15 March 2018.

10The matters that I want to refer is by way of summary.  The actual consignment, or importation of the consignment, and the subsequent conduct, is summarised.  On 4 August, Belgium Post received the consignment of goods, which were labelled as "toner and toner Samsong."

11The consigner was a person, apparently, who is unknown to this Court but is from a Belgium address, and of course, the addressee was Mr Daniel Ladino Garzon at a former address where he lived, 126 Eleanor Street, Footscray, but with his actual mobile assigned to it.

12The consignment arrived in Australia on 10 August.  It was examined by Australian Border Force and the cocaine was found.  Such was transferred to the custody of the Australian Federal Police. Mr Ladino Garzon, by way, I understand, either of surveillance or of observation of his own phone, was, it is accepted, in attendance at the said location on five particular days; being the 18th, 22nd, 23rd, 24th and 25 August.

13On 24 August, he called a former housemate at the property to enquire whether the consignment had been delivered, and the next day, he looked up the tracking status.  The next day, he had an exchange with his housemate, which is detailed at paragraph 12.

14Again, that day, while at a person's home, he used Mr Martinez's phone to call Australia Post to enquire about the consignment and was provided with a tracking number.  Following that call, he had three calls with a person who had a number ending in "4771".  That number was cancelled very soon after the arrests, and the person who was making that call with Mr Garzon has never been identified.

15On 30 August, police replaced the drugs inside the consignment with raw sugar.  On the same day, his current housemates hired a car.  Going forward to the next day, Mr Garzon contacted Australia Post, again using his housemate's phone, and subsequently used that phone again to text a message to the unknown person.

16Around that time, the car was driven in the company of his housemate to a street close to 126 Eleanor.  There was further conversation with "Person 4471", and indeed that number, in fact, communicated with Belgium Post.

17On 1 September, what is known as a controlled delivery was effected.  The consignment was left on the porch, and at 12.48, the offender himself arrived, to find that the occupants had, in fact, opened the consignment with a knife.

18It apparently contained raw sugar.  Whether Mr Garzon was aware of that or not, I am not sure, but certainly at 1.05 he was attempting to take the consignment from the premises.

19He was subsequently arrested at 1.40 on the footpath outside the home, and it is noted that from the time 1.45 to 2.02, the number "4771", of whom the caller is unknown, made eight calls to Mr Garzon’s phone.

20In the record of interview, Mr Ladion Garzon said that he had agreed to collect the package from a man he knew only as "Matt" in exchange for money.

21He suggested that money was "maybe $2,000" but allegedly was not specified, but that it was “very, very good money.”  He alleges that he was very concerned there might be something wrong about the package.

22He further, correctly, said that he had taken “a very, very, very stupid risk.”

23On 1 September, there was a search warrant executed at his premises.  There were certain suspicious items found, but for the purpose of this sentence, I do not take those matters into account.

24The crime, as I said, took place on 1 September, and could not have come before the Court any earlier, in that the committal mention was on 16 November.  In so far as the criminality of this matter is concerned - that is, Mr Garzon's actions - clearly, the objective criminality is high.

25The relevant principles were detailed in a number of cases supplied to me via Ms McDonald.

26In particular, of course, those principles are set out in the case of Nguyen v the Queen [2011] 31 VR 673, [33] to [35], where the Court of Appeal reviewed the appropriate factors that come into play in a sentence of this type, the general principles detailed therein refer to principles which were detailed by the NSW Court of Appeal in Nguyen & Pham [2010] 205 ACR 106, [72].

27In addition, Ms McDonald supplied the Court with a number of comparative cases, Exhibit C, and referred the Court to a number of cases in that comparison, in particular Alavy v R [2014] VSCA 25, and Pham v R [2016] VSCA 259.

28Those matters, and indeed, the cases that I have referred to, demonstrate to the relevant principles in a sentence of this kind; that the objective criminality needs firstly to be determined.  As I have said, in this case, it is high.

29The principal factor that courts take into account is the view expressed by Parliament as to the seriousness of the crime, and the maximum penalty imposed by said Federal Parliament, which I have referred to.

30The role in this case, of which I have determined, despite the submissions of the prosecutor, is akin to a courier.  I have called him basically a "conduit" in the operation.  He is the person who, essentially, is the acceptor - hoped to be the acceptor of the delivered item.

31However, not only is that role to be taken into account, but the high amount within the threshold for this category, the accepted profit motive, being the sole motive for this crime, the need for a sentence which effects, given the seriousness of such matter, deterrence, and indeed, the need for stern punishment as is referenced in those various authorities, made more so, and more necessary, because of the difficulty of detection of these crimes.

32It is, of course, a matter of wonderment for the Court, and indeed, no doubt, for the community - how many such people such as Mr Garzon are co-operating in committing such crimes, in Australia every day.  The reality, of course, must be that there must be hundreds undetected.

33The further principle, therefore, as detailed in the cases that I have referred to, is that any sentence, by being stern, must serve as a signal to would-be persons who seek to import drugs of this type into this country, in any capacity, in any role, that the consequences will be severe, if a person is caught when involved in such activity.

34I have referred to the reference to the amount in the record of interview that Mr Garzon suggests - albeit, that it is somewhat unclear, but the figure of two thousand was put at one stage in the record of interview, as the sum he was to be paid. As I said to Ms Papadinas, I simply do not accept that figure.  It would be farcical to take the view that a person would take the risks involved in this enterprise for such a paltry sum.

35However, as I see it, I do very clearly accept his own words when he said he had taken a very, very stupid risk in being involved in this crime.

36As I say, the plea was offered within a period of two months.  Just so that there is no misunderstanding, I do, as a result, taken into account and apply the appropriate discount on the basis of the plea made, such, being an indication of remorse, being of assistance to justice, and being of utilitarian benefit.

37It seems, given some recent decisions in the Court of Appeal, trial judges in this Court now have to state, what was blindingly obvious - that Judges take this into account, especially where a 6AAA declaration is made.  However, just so no-one is confused, if it is necessary, I make that comment.

38As I say, the role that Mr Garzon played, as best I can ascertain it, is that of a conduit in these circumstances.  The learned prosecutor in her argument referred to the amount of frantic activity taking place and effected by Mr Garzon over the period of 18 August through to 1 September. She referred to how he utilised his friends, hired a car, attended the location on five occasions, as I said, tracked the consignment, called Australia Post, called the person at the end of the phone ending in "4771" on numerous occasions, used the friend's phone to call, and indeed, hired the car.

39Given those circumstances, the learned prosecutor submitted that I should position the role of Mr Garzon, at a point by way of culpability, higher than that normally given to a courier.  I indicated that I rejected, during the plea, that submission.

40Subsequently, as I stated on the last occasion, when we adjourned to the 13th of this month, I advised that I had read the Court of Appeal decision of Hoang [2018] VSCA 86, which was in fact, as far as my technology is concerned, available to the Court to read that night after the plea.

41Given the similarity of actions, as described in Hoang, albeit dealing with a different offence, I did give reconsideration to the submission as to what we can call the "frantic activity".

42However, the difference, as displayed in Hoang, is that despite the suspicions as to the material found at his home address, as against Hoang, there was no evidence of him utilising such materials to traffic or manufacture drugs.

43Clearly there is a strong suspicion in that regard.  However, in the sense that this Court requires to be satisfied beyond reasonable doubt, to use such as an aggravating factor, it was not sufficient for such purposes, despite such similarities.

44And therefore, I do not find him to be a principal, as was found in Hoang, and I so advised the prosecutor on the last occasion, 13 April, that I had re-assessed her submissions but again rejected them.

45There was, of course, no issue that, given the culpability, criminality and the offence itself, there was no alternative but for a period of immediate imprisonment being imposed on Mr Garzon.

46Ms Papadinas, in her plea, which was set out by way of written defence submissions - Exhibit 1 and further was tendered a letter from the offender's parents which I have re-read, Exhibit 2, and a letter from his girlfriend.

47The plea detailed the matters that I have already mentioned; that there were no prior convictions, that there certainly as far as known to the Court, no subsequent or pending matters.  Essentially, the matters that I have indicated were not disputed; that the role that I have assigned to Mr Garzon was performed for the purpose of financial reward.  I have already indicated that I do not accept the proposition put in those submissions or referred to in the record of interview.

48The personal circumstances were set out at paragraphs 22 to 25, and of course, the Court notes the welfare issues and the concern of a national being imprisoned, as he has been to date, and will be, in a foreign country.

49The aspects leading to him committing this crime by way of financial hardship were set out as was his background, education, and employment.  In so far as sentencing considerations were concerned, I was referred to DPP (Cth) v Maxwell [2013] VSCA 50, [21].

50It is difficult, in these circumstances, to know what the financial reward is, except, as I say, I do not accept that it was only $2,000, nor do I accept that the amount, even on his own statement to question 284 in the record of interview - that would be sufficient to pay the debts he was in.  That is, he had living expenses, he had problems with rent, he had problems that he had opted out of his course.  That, in itself, indicates how insufficient the alleged $2,000 was.

51The propositions expanded in the case of Mills [1998] 4 VR 235 & Azzopardi [2011] VSCA 372 were referred to, and I accept those. Although, as I said to Ms Papadinas, these, obviously, given the principles that I have already referred to, must be tempered.

52I accept that, given his status, he will be deported at the end of the hearing.  The impact upon him is not as dramatic as others, because whatever his intentions might have been, the reality was that he had been living here illegally and the chances of him ever being a long-term resident would have been very limited in those circumstances.

53I accept the sentencing consideration set out; that of course, the sentencing must be of a severity appropriate to the circumstances, and I take into account the relevant principles set out in s.16 of the Crimes Act at Commonwealth.

54I stress again, I take into account his plea of guilty, and of course, his youth.  There is no reason why, given the letters from his family and the reference to his prior life, I should not be confident about Mr Garzon having a bright future without crime after he serves his sentence.  That, of course, is predicated on the fact that he makes no more stupid decisions.

55The issues, and the balancing of all of those matters, were put to me by Ms Papadinas and I accept that he is particularly remorseful.

56As I said, comparative cases were given to me from the prosecution as to sentencing and in final reply, Ms Papadinas put to me what I accept totally; that in sentencing, I must still make an allowance for his youth, albeit tempered, because of the particular sentencing requirements here, and also that while it is important to look at comparative sentences, as the High Court said recently, the most important thing when sentencing an individual is to deliver individualised justice to that person.

57Those principles have always been expoused by this Court, as I understand it, and as set out by the High Court in Dalgliesh (2017) ALJR 91, 1072 [49] will, hopefully, continue to be so.

58As I said, by way of ultimate disposition, Ms Papadinas conceded there was no alternative but for an immediate term of imprisonment.  She submitted there was a balance required of all of the factors that I have referred to and asked me to take into account by way of ultimate severity that such should be reflective of current sentencing standards.

59As I say, I have taken all those matters into account.

60Yes, Mr Garzon, if you would stand, please.

61The sentence imposed on you, in regard to this crime, will be a period of immediate imprisonment of seven years.

62I order that the period that you must serve before being eligible for parole is a period of five years.

63And I further order, pursuant to - Madam Prosecutor, what is the relevant Commonwealth section number again?

64Anyway, pursuant to that number, which I will get in due course, the period of 224 days that you have served to date is to be deemed as service of this sentence, and I further order that a record of that determination be entered in the records of this Court.

65In regard to section - sorry, Madam?

66MS MCDONALD:  Sorry, 228 days for pre-sentence custody, Your Honour.

67HIS HONOUR:  Yes.  What is the Commonwealth section where that is taken into account?

68MS MACDONALD:  If I could just have a moment, Your Honour.

69HIS HONOUR:  Yes.  In so far as 6AAA is concerned, assuming that it does, in fact, apply to Commonwealth offences, and there has been nothing across the road to actually say it does not, can I indicate - and this is important for Madam Interpreter, for you to interpret to Mr Garzon.

70I have sentenced Mr Garzon to a period of seven years with a minimum of five to serve.  And in doing that, I take account of the fact of that he has pleaded guilty.

71While it is difficult to be precise when talking about one factor, as required by Parliament, as against other factors, had you not pleaded guilty, the sentence I would otherwise have sentenced you to would be a period of nine years with a minimum of seven.

72So that declaration will indicate to you the value of your plea.  If that is not understood by others, nothing will be.

73Yes, just take a seat.  Just one second, while I put this - I thought there was, "as in s.118", in the State Act.  Is there not an Act - is there not a provision that says where the sentences, part of the sentence has already been served on remand, it is to be taken into account?

74MS MACDONALD: Your Honour, s.16E(1) of the Crimes Act provides that a law of the State or Territory relating to the commencement of sentences and non-parole periods applies to a term of imprisonment imposed in relation to federal offences.

75HIS HONOUR: I thought there was a section that says, like our s.118, that any time served on remand for the sentence is taken into account? What section did you refer to then in the Crimes Act?

76MS MACDONALD: Section 16E(1).

77HIS HONOUR:  Just let me see.  It has got to be in that area.  What are you suggesting, Ms Papadinas?

78MS PAPADINAS:  Section 16E(2).

79HIS HONOUR:  Let me see.  Section 16E.

80MS PAPADINAS:  Sub-section two.

81HIS HONOUR: Yes. That is it. Pursuant to s.16E(2), if that is to be added in, where instead of making the s.118 declaration. I suppose it is a combined declaration, really, is it not? Section 118, which brings into account s.16(2). So I will make that accordingly. Yes, any other questions?

82MS MACDONALD:  No.  Thank you, Your Honour.

83HIS HONOUR:  Yes.  Thank you both, to counsel.  Thank you Madam Interpreter.  The prisoner can be taken away.  Good luck, Mr Garzon.

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