Director of Public Prosecutions v Villa Munera, Juan Daniel
[2013] VCC 153
•19 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02328
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUAN DANIEL VILLA MUNERA |
---
JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 January 2013 | |
DATE OF SENTENCE: | 19 February 2013 | |
CASE MAY BE CITED AS: | DPP v Villa Munera, Juan Daniel | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 153 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Brown | Office of Public Prosecutions |
| For the Accused | Mr J. Munster |
HIS HONOUR:
1
Juan Daniel Villa Munera, you have pleaded guilty to an indictment charging you with attempting to possess a marketable quantity of a border-controlled drug, namely, cocaine, and to an offence of possessing a controlled drug, namely, cannabis. The maximum term of imprisonment on Charge 1 is
25 years and that on Charge 2 is two years. You have no prior convictions.
2 The prosecution has tendered and relied upon an agreed summary of facts which cross-references various parts of the depositional material. That is presented as an agreed summary of facts and it is confirmed on your behalf by your counsel that indeed the facts set out in the summary are agreed. That is Exhibit A. I am not going to read it out again and I will simply summarise parts of it, but I incorporate it into these reasons for sentence in its entirety.
3 It is clear from the summary that about a month before your arrest you transferred $2,800 on behalf of a gentleman in Columbia, a friend of yours by the name of Nicholas, and you asked your friend in Australia, Philippe Gil Hernandez to transfer another $3,000. When first asked whether you had transferred any money or caused any money to be transferred out of Australia during your period in Australia you denied it to the police. That is a circumstance which cannot be ignored in assessing the overall picture created by the evidence and summarised in the agreed summary of facts.
4
The package of cocaine that is the subject of Charge 1 contained a gross weight of 980.2 grams of cocaine, with a purity of 69.8 per cent, meaning the total amount of pure cocaine in the consignment was 684.1 grams, that is,
342 times the minimum marketable quantity. The value of the cocaine in Australia, as evidenced by the police statement of Federal Agent Keith Randall, indicates that the wholesale value was about AU$420,000 and the street value some $903,000.
5
The consignment was to be delivered to an address in Northcote South, apparently to a person by the names of Andres Palacio. The residents at
218 Victoria Road, Northcote South refused to accept the package on
7 August 2012. Then later that day you contacted DHL using a mobile phone which was registered in a false name at a false address, and you provided the airway bill number referable to the consignment, inquiring about its whereabouts. There was then further contact between you and DHL concerning the package that day at 10.55 am and at 12.50 pm.
6 You purchased a mobile phone SIM card registered in the name of Philippe Gil of 4/212 Alma Road, St Kilda at 5.20 pm that day. That is the address to which ultimately you arranged for the package to be delivered. Then the following day you telephoned DHL and inquired about the consignment, stating that you were Andres Palacio and that your contact number was the number of that service referable to the SIM card purchased the previous day.
7 You were then contacted by a Federal Agent of the Australian Federal Police using that number and you indicated that the package should be delivered to the address referable to Philippe Gil, whose full name was Philippe Gil Hernandez. You sought from Mr Hernandez his address, before passing it on to the Federal Agent with whom you had been talking. You were then advised that the delivery would take place between 8.00 am and 11.00 am the next day. Indeed there was a controlled delivery made by Federal Police officers at 9.40 am or thereabouts on 9 August, and you were there ready waiting for the package.
8 You provided an identification card in the name of Philippe Gil and you told the agent who delivered the package that your name was Daniel Peres. You signed a consignment note in that name. There was then a conversation picked up by a surveillance device within the package. Some of that was indicative of, or suggestive that you were aware of the content of the package, going beyond the electric piano with accessories that was the subject of the consignment note. That conversation was shortly before AFP officers entered the apartment and arrested you. They found that you were also in possession of a clip-seal plastic bag containing 9 grams of cannabis.
9 You were interviewed by the police. As I have already indicated, it seems to me that your explanation to the police was substantially untruthful and designed to minimise your role in the dealings with the imported drug - and your involvement in the criminal enterprise that involved the attempted possession of the 980.2 grams of cocaine at 69.8 per cent.
10 In addition the police attended your home address and found a clip-seal bag containing 12 smaller clip-seal bags containing, they also containing cocaine residue, two sets of scales, on both of which apparently cocaine residue was located.
11 I think that is all I need say about the facts, save to observe that on your behalf it was suggested that your role in the offence of attempting to possess the marketable quantity of cocaine, Charge 1, was at the bottom end of the hierarchy or scale. I am not prepared to accept that. I do not think that I have been given a truthful version by you through your counsel or in the interviews with the police. I find your explanations to the police and through your counsel are implausible, and I am not prepared to accept on that basis that you were at the bottom end of the spectrum so far as your involvement in this criminal enterprise is concerned.
12 It is difficult to assess precisely what your role was, but it was certainly a vital role and you carried out that vital role knowing, clearly, that there were significant risks involved. It is to be inferred that you knew quite well that there was an illicit substance being imported and you were playing a pivotal role in attempting to possess that cocaine for the purposes of on-sale at substantial profit on the black market in Australia. All of that, I am satisfied of beyond reasonable doubt. You were well aware of and I have no doubt also that you expected to be remunerated to a substantial degree as a result of your involvement.
13
Turning to matters personal to you, your counsel provided me with a confidential report from Mr Reardon of the Department of Human Services prepared as a result of your engagement with Youth Justice whilst on bail pending this hearing. It is true that you spent eight days in custody in the
St Kilda Police Station in no doubt difficult circumstances, in circumstances where you were no doubt had a good deal of personal discomfort, but once on bail you engaged with Youth Justice and in particular with
Mr Reardon and also with Youth Substance Abuse Services and in particularly Ms Albrecht of that service. In her letter to this court dated 14 February 2013 she confirms that you maintain weekly appointments with her and you had openly and actively been engaged in discussions around your substance abuse.
14 And it seems that you not just fully cooperated but made perhaps best use of your opportunities in demonstrating a willingness to be rehabilitated and to deal with your own issues concerning drug abuse. I think it is fair to say that through your dealings with them you have indicated a degree of remorse for your offending conduct.
15 Mr Reardon helpfully includes your own written account of your family history. I am not going to go through that in detail, it has been a complicated family history. Your parents have been separated for many years and you have had intermittent contact with your mother. It is noteworthy that your father has gone out of his way to come to Australia to support you and to be in this court demonstrating his commitment to helping you in the future. I have no doubt that that will further assist your rehabilitation. The mere fact of his presence here will have assisted you greatly and maintained your morale in this difficult time.
16 You also completed your educational course that was interrupted by these events. That is to your credit and I think that supports the proposition that your prospects of rehabilitation, putting this behind you and staying out of trouble in the future, are pretty good.
17 I was also provided with a letter from your father which supports the proposition that you are remorseful and that you have the capacity to put this all behind you and focus on your education and upon leading an honest life in the future. I was also provided with a letter from a pastor, Hillsong Church, Melbourne, who confirms that you have been attending church each weekend since August, that you have let him know your current situation, and he seems to have a high opinion of you, regards you as a person of good character demonstrating Christian values. All of that, I think, bodes well for the future.
18 You are 19 years of age, having turned 19 in January of this year, and were 18 and a half or thereabouts at the time of the offending. So you are a very young man and your counsel rightly stressed the principles arising from a number of decisions that have been made by appellate courts in Australia and in particular in Victoria which indicate that for a young offender, youthful offender, particularly a first offender, primary consideration of the sentencing court should be rehabilitation. That is often more important than general deterrence; the thought being that society is better protected in the longer-term by ensuring that young people are rehabilitated, kept out of trouble, rather than putting them in an adult prison and allowing them to learn the tricks of the trade of a criminal career and coming under bad influences when the emphasis really should be on trying to set them on the correct path.
19 There is also authority for the proposition that a youthful offender should not be sent to an adult prison if such a disposition can be avoided, particularly if the offender is beginning to appreciate the effect of past criminality.
20
The offence of attempting to possess a marketable quantity of cocaine, particularly a quantity as large as this and of a purity of 69.8 per cent, with a wholesale value on the black market in Australia of $420,00 is clearly a serious criminal enterprise and it is necessary for me in discharging my duties to punish you adequately for the offence. Section 16A(1) of the Commonwealth Crimes Act requires me to impose an appropriate sentence.
I am also required by section 16A(2) to take into account the various considerations that are set out under that section, which include specific deterrence, that is, deterring you from committing offences in the future. In addition to those various considerations I have to look at general deterrence.
21 Ordinarily offences of this kind require courts to impose stern sentences in order to deter others from committing offences of this kind. It is necessary to consider the maximum term of imprisonment of 25 years in assessing an appropriate sentence. I am required to express the denunciation of this court of conduct of this kind, but as I have already pointed out and your counsel has stressed, rehabilitation is to be regarded as a very significant balancing factor against those other sentencing considerations, particularly having regard to your age, particularly having regard to the fact that this is apparently your first offence, you have not offended since and you show every sign of being able to lead a decent life in the future.
22 Your counsel provided me with a written outline of submissions on your behalf, and that is Exhibit 3, and I incorporate that document also into this plea because it is, as I have already indicated, particularly well drawn, well balanced, and it picks up I think all of the essential matters that I need to take into account on your behalf in determining an appropriate sentence. She stresses, of course, that you have pleaded guilty at the first reasonable opportunity and have shown remorse. I certainly intend to give you credit for your plea of guilty, not just as an indication of remorse but because you have saved the community the cost of a trial, you have sought to facilitate the course of justice. That needs to be given proper credit by way of a discount of sentence. I do not think that individual deterrence in your case plays a particularly significant part, and I also of course give you credit for your absence of prior convictions or subsequent convictions.
23
The prosecution has indicated that in their submission the only sentence that
I can properly pass in discharging my duty is a sentence which involves an immediate custodial sentence. But they have conceded that an order that you be placed on a Youth Justice Centre order is within the range of available sentences provided that I am satisfied of the conditions precedent to the making of such an order. The prosecution said that their submission otherwise would be that a prison sentence in the range four years to six years as the head sentence with a period of between two and a half and four years to be served before you become eligible for parole would be an appropriate range of sentences.
24 I was referred by the prosecution in support of their submissions to the decision of the Court of Criminal Appeal in Victoria in the case of Nguyen v The Queen and Phommalysack v The Queen [2011] VSCA 32 and to the principles which apply to sentencing in cases such as this which are set out in that judgment of the Court of Appeal. I was also provided with a folder of materials which contained a list of comparative sentences for offenders aged 21 or under and that list seeks to identify cases involving similar conduct to this. That has been helpful. Along with the summary I was also provided with , the reasons for sentence of the varies judges identified in the table of cases.
25
Particular reference was made to the sentence of the Queensland Supreme Court in the case of The Queen v Crampton. That sentence was imposed on 29 September 2009 in relation to an offence of attempting to possess a marketable quantity of a border-controlled drug, that drug being MDMA and the quantity of the importation, which was made through the post, was
380 times the minimum marketable quantity. But as your counsel rightly pointed out, there were features which distinguished the facts of that case from this case. The sentence in that case was a term of imprisonment of four years with a non-parole period of two years. The offender was 20 at the time of the offending, you were 18 at the time of this offending.
26 It probably is a useful guide, I think, in the sense that although a 20-year-old may well be an offender for whom the principles concerning primacy of rehabilitation would still apply, it seems to me that they apply with greater force to a person who is two years younger or thereabouts at the time of the offending conduct and is now only 19 years of age. I accept your counsel's submission that a period of 18 months or two years at that sort of age is a quite significant difference.
27 It seems to me that ordinarily for an offender who does not have the various matters that are in your favour, for this offending conduct a sentence within the range between four years and six years in an adult prison with a non-parole period of between two and a half and four years would have been entirely appropriate. Had you been two or three or four years older, that is probably the sentencing range that I would have been looking to sentence you within, even having regard to the various other matters that have been put in your favour.
28 But I am persuaded that considerations of rehabilitation militate against a term in an adult prison. In the circumstances, and doing the best I can to balance all those factors, I am ready to pass sentence, - save, I think I probably should say that there has been some discussion during the course of the plea about whether you are or not to be deported. That is a matter which has yet to be determined, and I am informed that you would intend to go back to Columbia, so it is not a matter I take into account other than to note that it is a matter that is for the future.
29 The expectation, from what I have been very helpfully told by Mr Reardon, is that your migration status is something that would no doubt be considered by the Youth Parole Board at the time they come to consider how to deal with you when you become, in their view, eligible for parole. That is a matter for the future, not something I can really take into account, save to say that it does not seem that I need to make any specific allowance for the prospect that you may be treated more harshly in terms of being given your liberty than others who might be serving similar sentences.
30 I think that I need to consider that you will of course be isolated in the sense that you will be amongst others of different cultural backgrounds and a long way from your parental supports and the support of your friends from home in Columbia. That will make serving your period of incarceration more difficult and I do take that into account. All in all I think that the appropriate sentence is one of a Youth Justice Centre order. Would you stand please?
31 For the offence of attempting to possess a marketable quantity of cocaine I sentence you to a Youth Justice Centre order for three years and convict you. And in relation to Charge 2 of possessing cannabis I convict you and discharge you pursuant to section 72 or 73, is it, of the Sentencing Act.
32 MS BROWN: Your Honour, it is a Commonwealth offence so it will be provisions of the Crimes Act.
33 HIS HONOUR: Oh, yes. That would be section 20B, would it?
34 MS BROWN: 20(1)(a) is a conviction bond.
35 HIS HONOUR: Yes, all right. So would you draw that up for me? I have to state a recognisance, don't I?
36 MS BROWN: That's correct, Your Honour. I don't have the form with me at the moment but if Your Honour is minded I can provide an electronic copy to my learned friends and Your Honour's associate giving effect to the order. Your Honour needs to stipulate a bond period and a recognisance sum.
37 HIS HONOUR: Yes, I will stipulate the recognisance sum as being $1,000 and the bond period as being two years.
38 MS BROWN: The offender will need to sign the recognisance so - - -
39 HIS HONOUR: Yes, we will probably have to come back then, won't we?
40 MS BROWN: Yes.
41 HIS HONOUR: For that purpose.
42 MS BROWN: That can be done over - very shortly. It would only take ten minutes to go back to the office and prepare, Your Honour.
43 HIS HONOUR: All right. Would you go and do that then?
44 MS BROWN: Yes, Your Honour.
45 HIS HONOUR: And then I will just leave the Bench for a few minutes, but generally the rest of us can hang around and - - -
46 MS BROWN: Can I confirm the recognisance sum was $1,000?
47 HIS HONOUR: $1,000.
48 MS BROWN: And the period of the recognisance - - -
49 HIS HONOUR: Two years.
50 MS BROWN: Two years. Yes, Your Honour.
51 HIS HONOUR: Yes, with conviction. Are there any orders that I need make?
52 MS BROWN: No, Your Honour.
53 HIS HONOUR: I do have to declare - eight days pre-sentence detention.
54 MS BROWN: Yes, Your Honour.
55 HIS HONOUR: As time served upon the sentence that I have imposed and to be deducted from the sentence that I have imposed, and I direct that those facts be entered in the records of the court.
56 MS BROWN: Your Honour must also direct that the sentence - - -
57 HIS HONOUR: Begins today.
58 MS BROWN: That's correct, Your Honour. Begins today, yes. I'll leave the Bench for a few minutes. You'll have to remain in custody now and we'll say 15 minutes. Does that give you enough time?
59 MS BROWN: Thank you, Your Honour.
60 HIS HONOUR: Yes.
(Short adjournment.)
61 Yes, thank you for preparing that draft order.
62 MS BROWN: Thank you for that time, Your Honour.
63 HIS HONOUR: I will now sign the order.
64 MS BROWN: I apologise for the error that's made on the front page.
65 HIS HONOUR: Oh no, that's all right. Thank you. I make that order. I think I need to comply with section 6AAA to be on the safe side, of the Sentencing Act, that is. I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of five and a half years imprisonment with a non-parole period of three years and six months. Any other orders that I need make?
66 MS BROWN: The accused needs to sign the bond form, Your Honour.
67 HIS HONOUR: Yes.
68 MS BROWN: And Your Honour just simply needs to explain the effect of the bond to the accused.
69
HIS HONOUR: Yes. The order that I have made in respect of the Charge 2 offence, that is, the possession of the cannabis, is to the effect that you are to be released without passing sentence, without me passing sentence upon you, upon you giving security be recognisance of $1,000 to comply with the following conditions. That is that you be of good behaviour for a period of
24 months. It may well be that for a good part of that time you are in custody in any event. You will not be required actually to put the money, $1,000, up front, so it essentially means that provided you are of good behaviour during that period, that is the end of this matter so far is Charge 2 is concerned. Do you understand? And I am going to provide you with the documents so that you can now sign it.
70 MS BROWN: May my instructor assist my client with that, Your Honour?
71 HIS HONOUR: Yes, certainly.
72 MS BROWN: Thank you.
73 HIS HONOUR: Yes, indeed. Thank you. Thank you both for your assistance.
- - -
0