Director of Public Prosecutions v Restrepo Arango

[2015] VCC 238

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00989

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUIS RESTREPO ARANGO

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2015
DATE OF SENTENCE:	5 March 2015
CASE MAY BE CITED AS:	DPP v Restrepo Arango
MEDIUM NEUTRAL CITATION:	[2015] VCC 238

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. O'Halloran	OPP
For the Accused	Mr J. Wheelahan	Ann Valos Criminal Law

HER HONOUR:

1Luis Restrepo Arango, you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence, namely cocaine.  On 21 November 2013, you were arrested after a police surveillance operation, which identified you as a trusted lieutenant, at the very least, in an operation to supply just under 1 kilogram of cocaine to two people at a hotel in Melbourne.  Telephone intercepts reveal that your nephew, who appeared to be organising or confirming he had about a kilogram of cocaine and was ready to deliver it to customers, nominated you as the person who would deliver the cocaine and collect the money. 

2On 21 November 2013, you did just that.  You took just under a kilogram of cocaine to the Rydges Hotel in Melbourne and delivered it – one parcel containing just under half a kilogram to one person, the other parcel containing a similar quantity to another.  You were given just over $110,000 in cash in exchange and were arrested shortly after leaving the hotel, still in possession of the cash.  A search of your home later revealed a vacuum sealing machine and bags consistent with the vacuum sealed bags, or the method by which the vacuum sealed bags of cocaine were delivered to the customers.  As a result you were remanded in custody and have remained there ever since.  

3You were initially charged with trafficking in a large commercial quantity of drugs, and following a committal, where the issue of your knowledge of the quantity of drugs was explored, a plea of guilty was offered to and accepted to this charge of trafficking in a commercial quantity.  I accept that in the circumstances that is to be treated as an early plea of guilty and one which carries weight because of the early stage at which it was entered.  That is the first practicable time at which a plea to that charge could be offered and accepted, and because by pleading guilty at that stage and in those circumstances, you have avoided the considerable time and cost of a contested trial. 

4The charge is still a serious one - it carries a maximum penalty of 25 years imprisonment.  That is a mark of how seriously Australian governments regard such conduct.  It is also clear that drug trafficking is a serious offence which has the potential to cause untold harm and misery to many people.  What can only be regarded as a calculated decision to engage in such trafficking for personal gain therefore must be punished.  The sentence must reflect denunciation of such conduct, deterrence for you and for those like-minded, and punishment - just punishment. 

5You come before the court as a 50 year old man with no previous convictions.  You are in generally good health, although you have previously suffered a heart attack, but are, I am told, well-managed simply by the taking of aspirin now.  You have trade qualifications, both as a shoemaker and a plumber, and are well capable of engaging in paid employment sufficient to be able to support yourself and your family.  You were born in Colombia, and you are married with two sons.  They are now 20 and 15.  You should be ashamed of the poor role modelling you have displayed to your sons by participation in this behaviour. 

6Economic circumstances were difficult in Colombia, and in 2001 you went to Spain to obtain better employment and qualifications there.  It was there that you obtained your plumbing qualifications.  You worked and sent money back to your wife and children in Colombia.  Unfortunately, the effect of the global financial crisis meant that employment opportunities were limited and income became much more difficult to earn in Spain. 

7In 2011, you left there and came to Australia, where you had family.  Three of your siblings had moved to Australia over 20 years earlier, along with your parents.  You arrived here initially on a tourist visa and were able to convert it to a student visa.  Your plan was to learn English, obtain resident status, and then bring your wife and children to Australia so that the whole family could benefit from the better opportunities available here. 

8Your brothers who are resident here were well-established and running cleaning businesses and you were able to obtain employment with them.  Given these advantages, it is even harder to understand why you decided to participate in this act of drug trafficking.  Instead of being able to establish yourself here, obtain resident status and have your wife and children join you, you have been in custody for over a year.  Your student visa has expired and it is inevitable that you will be deported upon the expiry of your sentence.  The hopes you had, therefore, of settling here and bringing your family here and having a better life, have been dashed, and dashed by reason of your own conscious choice to engage in this trafficking. 

9You are fortunate to have family here in Australia, who have continued to support you.  I was impressed by the evidence of your loyal and loving sister and the evidence that she continues to visit you weekly whilst in custody.  Your oldest son had since arrived in Australia, he is on a student visa of his own and so although you have lost your opportunity of a future here, he still has a prospect of one here.  But it is clear it is one you will not be able to share if he remains here and obtains resident status.  However, what it does mean is that whilst you remain here, you still have contact with him.  You are therefore more fortunate than many foreign nationals who find themselves in our prisons here because you do have family support and family who visit you. 

10I accept, however, that imprisonment will be more difficult for you than for others because you have not yet, it appears, taken advantage of the opportunities afforded you to learn sufficient English to be able to get by easily.  And therefore I take into account the fact that you will be more isolated despite the family support because of your limited language skills in English.  I am told that because you obtained Spanish citizenship when you went to Spain, and arrived in Australia on a Spanish passport, that it is likely that you will be deported to Spain and not Colombia at the end of your sentence.  The prospects of your remaining in Spain are not good.  Its economy is still suffering and employment prospects are poor.  And although members of your family had been in Spain, they have now returned to Colombia so you have no family support there.  Fortunately, you still have your Colombian citizenship and so you will be able to return there.   In addition to your wife and youngest son, other of your siblings still live in Colombia so you will have family support as well as what employment prospects are available there for you. 

11I take into account – balanced against the matters of denunciation, deterrence and just punishment, which I have mentioned - your previous good character - a significant matter for a man of middle age – your early plea of guilty, and the fact that you have spent such a time in custody, about 18 months, since your arrest.  Although that time will count in your favour, in terms of being deducted from the sentence I pass today, or counted as part of the sentence I pass today, prisoners on remand do not have access to the same facilities, opportunities and accommodation that sentence prisoners do.  Time on remand is more onerous than time once the person is sentenced in general terms and I take that into account. 

12I accept that you have taken advantage of what opportunities are available to you and suitable to your circumstances whilst you have been in remand, as showing that you are already demonstrating the deterrent effects upon you of the consequences of the charge.  There is no suggestion there have been any problems with your behaviour whilst you have been in custody. You have engaged in what courses you can that are suitable to you and you have clearly been looking for or been seen as being suitable to be offered the limited employment opportunities that are available for prisoners on remand.  I take that into account not only in the overall sentence but also in fixing the non-parole period.

13Could you now please stand.

14Luis Restrepo Arango, on the one charge to which you pleaded guilty, you are convicted.  You are sentenced to be imprisoned for a period of four years and I fix the a period of two years and six months as a time that you must serve before being eligible for parole. 

15I declare the 469 days you have spent in pre-sentence detention be counted as part of the sentence already served. 

16Pursuant to s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to a term of imprisonment of six years and fixed a period of four years as the time you would have to had served before being eligible for parole. 

17I have been asked to make an order for the taking of a forensic sample.  And having a regard to the seriousness of the offence, and noting that it is by consent, I intend to make that order.  The order I am making is for the taking of a buccal sample - that is, a scraping from the inside of your mouth.  I must inform you that if you do not consent to the taking of that mouth scraping and cooperate in providing it, then an authorised member of the police force may use reasonable force to take a forensic sample and it is likely in those circumstances that they will use the more invasive method permitted by law, namely the taking of a blood sample.  Do you understand that? 

18OFFENDER:  (Foreign word spoken). 

19HER HONOUR:  I have also been asked to make disposal order and forfeiture orders in respect to the items found in your car and in your house respectively, and again, they are not opposed or they are consented to and I propose to make those orders.

20Do the orders that I pronounce reflect what I said I intended to do? 

21MR O'HALLORAN:  Yes, Your Honour. 

22HER HONOUR:  Any further orders that are required to be made?

23MR O'HALLORAN:  No, Your Honour. 

24HER HONOUR:  Mr Restrepo Arango, I must remain in court on the Bench until you are removed.  Because your family are here, I am going to allow them to come and speak to you before you are taken out.  You are not allowed to touch but you are allowed to speak to them briefly.  So you can go back and speak to him.  So Ms Restrepo and Mr Sebastian Restrepo Arango, you can go back and speak to your brother and father. 

25Can you now remove Mr Restrepo Arango please? 

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