Director of Public Prosecutions v Villalobos

[2018] VCC 1334

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00456
CR-18-00330

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEJANDRO LOPEZ DUQUE
FRANCISCO TORO VILLALOBOS

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2018
DATE OF SENTENCE:	23 August 2018
CASE MAY BE CITED AS:	DPP v Villalobos & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 1334

EX TEMPORE REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Armstrong	Office of Public Prosecutions
For Accused Toro Villalobos	Mr J. Moore
For Accused Lopez Duque	Mr L. Hartnett with Ms Smith (Plea) Ms S. Seoud (Sentence)

HIS HONOUR:

1Alejandro Lopez Duque and Francisco Toro Villalobos, you have each pleaded guilty to one charge of attempting to possess a marketable quantity of a border controlled drug, namely cocaine.  The maximum penalty is set by the federal parliament for this offence is 25 years' imprisonment thereby demonstrating parliament's view of the gravity of this offending for which you are both to be sentenced.

2The circumstances surrounding your offending are as follows.  You, Francisco Toro Villalobos, were born on 18 February 1993 and on 5 February 2015 you arrived in Australia from Chile on a student visa.  You were to turn 22 years of age that same February.  After arriving in Australia you resided at a number of different addresses including in Hawthorn, Noble Park and in particular, in Coburg North.  Between December 2016 and mid-2017 you resided at
24 Newlands Road, Coburg North.  Another occupant of that premises was a Christopher Spiteri.  In his statement, at p.49 of the depositions, he refers to you coming to live at his home from December 2016 to June 2017.  He says at paragraph 15:

"During the period Francisco lived with me, he did not always pay his rent on time and by the time he left in June 2017 he owed me approximately $950 in unpaid rent and bills". 

3Further, at paragraph 20 of his statement, he states:

"About one and a half week before today [being 10 October 2017], Francisco came to my home during the day.  I had not seen him or contacted him since he moved out in June 2017".

4In your record of interview, Francisco Villalobos, at p.464 of the depositions, Question 158 you were asked:

Question:

"Okay.  So you mentioned this morning that you work up and then you received a phone call from Chris.  Can you tell me everything about that phone call that you remember?" 

You answered:

"He just tell me, ‘Frank, there is something here from your colleague just came in’, and I didn't know that something was going there and just call him, I mean, because he told me a long time ago that I will send something but I just move and in that time that he told me he didn't - I didn't risk anything because, no, nothing was delivered, so I just moved to - from the house because I have problem with my housemate because I didn't have enough money to pay the rent, so he throw out my stuff outside.  So yeah, he just tell me, 'Hey, man, there is something here from your country', and I am just (indistinct) After that I call (indistinct) That’s all what he told me [sic].”

5It is important to understand that sequence of events as it is revealing in terms of the arrangement made for the consignment of this parcel to Australia. 

6Returning to the summary of prosecution opening.

7You, Alejandro Lopez Duque, were born on 3 October 1986.  On 13 July 2015 you arrived in Australia from Colombia.  You were also on a student visa.  At that time you were older by some six years, being 28 years of age, than Mr Villalobos.  The two of you are now respectively 25 years of age and 31 years of age.  You met in 2016 at a party in Melbourne.  A friendship developed between the two of you.  On 1 July 2017 you, Mr Lopez Duque, departed Australia to Bogota in Colombia via Santiago in Chile.  I understand that that purpose of that travel was to attend your sister's wedding.  While in South America you became Facebook friends with Mr Villalobos and continued to contact him.  You returned to Australia on 2 September 2017. 

8In October 2017 the two of you were arrested in possession of what has been called the "Coburg Consignment".  That is a consignment which I will come to in more detail.  It had been intercepted by federal authorities and was found to contain 403 grams of pure cocaine.  A marketable quantity of cocaine is but two grams.  A commercial quantity of cocaine is two kilograms.  It is important to note that different narcotics have different commercial quantities.  Thus in the instance of methylamphetamine the commercial quantity is 750 grams whereas in relation to heroin is 1.5 kilograms.  The 403 grams pure cocaine therefore puts it at approximately 20 per cent of a commercial quantity.

9The cocaine that was imported was 57.2 per cent pure.  At that purity the value of the cocaine was between $188,250 and $225,900 wholesale if it was sold in quantities of one ounce and between $211,410 and $317,115 if sold at street level in quantities of one gram.  On any view this was an attempt to import cocaine of very high value.

10I wish now to return in more detail to the arrangements that had been made in relation to this consignment.  The consignment was intercepted on
20 September 2017.  It had a tracking number and arrived in Sydney from Santiago, Chile.  It was addressed to "David Collins Villa, 24 Newlands Road, Coburg North, Melbourne, Victoria".  Thus you, Villalobos, provided a false name but had, within that false name, part of your surname, Villa.  Doubtless that was for the purpose of ensuring that there was no mistake about who was the consignee when it arrived at the North Coburg address.

11The fact that you had left that address, effectively been thrown out by Mr Spiteri in June suggests that your involvement pre-dated June 2017 and in the circumstances, given all the evidence, I am satisfied that that was the case beyond reasonable doubt.  This is consistent with your statement in your record of interview when in answer to Question 158 you said, "… because he told me a long time that I will send something but I just move and in that time that he tell me that he didn't …".  It is plain therefore, Mr Villalobos, that you provided a name and an address for this consignment to be sent to.  You gave that information to Mr Lopez Duque.

12On 28 September the two of you met in the vicinity of the Highpoint shopping centre in Maribyrnong.  After that meeting you, Mr Villalobos, attended the North Coburg address and spoke with Mr Spiteri, your former housemate.  During that conversation you asked Mr Spiteri if a package had arrived and told him that you were expecting one from Chile.  Mr Spiteri confirmed that nothing had been delivered to the address. 

13Some few days later, on 4 October 2017 you, Mr Lopez Duque, used the mobile service ending with the number 480 to contact you, Mr Villalobos, on a mobile number ending 884.  From 4 October the conversations between the two of you on those numbers were intercepted by federal authorities.  Between 4 and
8 October you, Mr Lopez Duque, made arrangements by phone to meet with Mr Villalobos on multiple occasions.  With you, Mr Lopez Duque, also informing Mr Villalobos that he needed to be ready.  Clearly a reference to be ready to collect the parcel from the North Coburg address.

14At 11.14 am on 5 October you, Mr Villalobos, received a telephone call from
Mr Lopez Duque.  The two of you arranged to meet in the city between 2.00 pm and 3.00 pm that day.  At about 2.39 pm you, Mr Villalobos, received another phone call from Mr Lopez Duque.  During that phone call the meeting was re-scheduled for later in the evening and you agreed to meet later in the evening in order to talk in person.

15You, Mr Villalobos, travelled to Sydney on 6 October but on your return between
7 October and 8 October the two of you exchanged five telephone calls where you arranged to meet and had guarded negotiations about exchanging something in a public place.  A matter which I will return to in terms of its significance shortly.

16This brings us to 10 October.  On that day the Australian Federal Police under the authority of a controlled operations certificate commenced a controlled delivery of the Coburg Consignment.  At 11.44 am the consignment was delivered to the Newlands Road address in North Coburg and was accepted and signed for by Mr Spiteri.  Between 11.48 and 11.50 you, Mr Villalobos, received two missed calls from Mr Spiteri who was using a mobile service ending with the numbers 070.  Three minutes later, at 11.51, you Mr Villalobos made a telephone call to Mr Spiteri during which Mr Spiteri told you that the Coburg consignment had arrived, though doubtless not in those words.

17You arranged with Mr Spiteri to meet later in the day.  Within one minute of having received that call you rang Mr Lopez Duque.  During that coded conversation you advised Mr Duque that the Coburg consignment had arrived at 24 Newlands Road.  At 1.24 pm you, Mr Villalobos, arrived at the Newlands Road address to pick up the Coburg consignment and shortly thereafter you exited the address and rang Mr Villalobos.  During an exchange of messages and the telephone call, the two of you arranged to meet at a service station nearby 24 Newlands Road.  The service station was within walking distance of Newlands Road.

18After concluding that telephone conversation you, Mr Villalobos, re-entered Newlands Road and had a further conversation with Mr Spiteri regarding the Coburg Consignment.  During that conversation you stated that the Coburg consignment took almost two months to arrive and that you were awaiting another parcel that had not yet arrived.  As to the other parcel, what its significance is or not, is irrelevant.  But again it is plain from that conversation that you, Mr Villalobos, were well aware of the length of time that that consignment was on route to Australia.

19At about 1.40 you departed from Newlands Road in possession of the Coburg consignment.  You walked with it to the Caltex service station where the arranged meet was to be.  You waited for Mr Lopez Duque to attend.  At 1.53 pm you, Mr Lopez Duque, arrived at the service station in a black Mazda 3.  You, Mr Villalobos, picked up the Coburg consignment and walked in the direction of the vehicle and placed it into the boot.  The two of you then had a conversation at the rear of the vehicle whilst you, Mr Lopez Duque, examined the outside of the Coburg consignment.  After a short conversation you,
Mr Lopez Duque, was seated in the driver's seat and you, Mr Villalobos, was in the front passenger seat.  Shortly after an unmarked police vehicle drove in to the service station into the view of the two of you.  It seemed that this unmarked vehicle was recognised for what it was, a police vehicle.

20You, Mr Lopez Duque, fled the service station as the driver with Mr Villalobos in the front passenger seat.  The Coburg Consignment was still in the boot. 
The vehicle was followed.  During the course of this pursuit you, Mr Villalobos, threw your mobile phone with the number ending 884 which had been used for communication between the two of you outside the passenger side window of the vehicle.  That mobile phone was never recovered.

21A short time later the vehicle came to a stop at traffic lights and at which point the Mazda 3 was intercepted by police.  At 1.55 the two of you were arrested.  Shortly thereafter Australian Federal Police officers conducted  a search of the vehicle and found, among other things, the Coburg consignment in the boot of the car, a Samsung mobile phone with the number 480 that was used by you, Mr Duque, to communicate with you, Mr Villalobos, and other materials, confirmatory of the various destinations that you had travelled as a result of the address history found in a Garmin navigation device.

22Later that evening and following a variety of searches were conducted of your address at No.2/97 Shorts Road, Coburg North, Mr Duque, and other premises including the Newlands Road address and then the current address for you,
Mr Villalobos, at Millers Road in Altona North.  That evening you, Mr Lopez Duque, participated in a record of interview during which you stated that you fled from police because you immediately realised "nothing good (was) in that package".  You said that you had two mobile phone numbers but you only knew one.  You said that you had two phones, one a black iPhone and the other a black Samsung that was seized by police.  You admitted that you were driving the black Mazda 3 prior to being arrested.  Thus in relation to the Coburg consignment you made a significant admission concerning the package that " nothing good (was) in that package".

23You, Mr Villalobos, also participated in an interview with the police that evening.  You stated, among other things, "Two weeks ago Lopez told me that something was coming".  You said that you called Lopez to tell him that the parcel had arrived.  You said, "He never told me what was inside, but I was concerned that it could be drugs or something like that".  You said that it was Mr Lopez who told you to throw your mobile phone out the window.  You said, "That's my problem, I know, but that's the risk - that was my risk, so that's why I take the risk, because I thought that... he give me the money".  You said that you were offered $1000-$2000 from Lopez to have the parcel sent to his address and you further said you thought it might contain cocaine.  At the conclusion of the interviews both of you were charged with a number of offences.

24It is useful, and indeed, essential to reflect upon your respective roles in this attempt to import cocaine.  Insofar as you are concerned, Mr Lopez Duque, it was you who recruited Mr Villalobos.  This was an essential part of the delivery of the consignment for it required an address in Australia to which it was to be consigned.  It required someone who would be cooperative and receive the consignment and someone who was prepared not only to have collected it but then to move it on to you.  You must have provided the name and the address for the consignment to be sent to that address.  Thus your involvement in this attempt to import the cocaine was a significant one, commencing with essential arrangements such as I have already described, including constant contact with Mr Villalobos in relation to the delivery, the collection of the delivery and the further collection by you of that consignment.

25Typical of this type of arrangement, Mr Villalobos was a cut out for your protection.  It was he who was to receive the parcel at his address and then deliver it to you, away from that address for the consignment.  The purpose of that cut out was to protect you from being detected as being involved in this consignment being delivered should the authorities have already discovered its contents.  The point of delivery was the point of greatest risk.  That risk, by your arrangement, fell upon Mr Villalobos.  That risk was one that you were to compensate, in some fashion, him to the tune of some paltry amount compared to the risk he was to, and did take.  You had to be motivated by financial reward.

26As I put to your counsel, Mr Hartnett, during the course of the plea at p.95, line 30 or 26, question or statement from me, "All right well I'm prepared to work on the basis that that's probably right, Mr Hartnett.  That there could well have been other who were - "  Mr Hartnett says, "Yes, Your Honour".  I return and continue, "The exporters from Chile.  But what the point is that your client did three things.  One, he provided the address".  Mr Hartnett, answer, "Yes".  I continue, "For the consignment.  Two, arrange for the consignment to be picked up at the address by a third party, Villalobos and, three, having collected the consignment directed Villalobos to deliver it to him".  Those three points encapsulate your role.  It is clear from your role that in Australia you were the organiser, responsible for the correct delivery address for its collection by Mr Villalobos and in turn you receiving it from him to move it further down the line. 

27Your role, Mr Villalobos, is that you agreed to play a critical role in the delivery process.  You supplied the address.  You supplied a modification of your name as the addressee for the consignment.  You contacted and were contacted, regularly by Mr Lopez Duque.  You, as needs be, contacted Mr Spiteri to find out if the consignment was delivered.  You went and collected it.  You then delivered it to Mr Lopez Duque.  The risks you took far outweighed the $1000 or $2000 that you were to receive for your role in this consignment.

28Curiously this fits with a longstanding pattern of such arrangements where people such as you, for peanuts, take on extraordinary risks.  Your criminality is not to be judged by the small remuneration that you expected to receive, rather what you did, what you said and your overall role in this enterprise.  As compared between the two of you it is plain the criminality of you, Mr Lopez Duque, is significantly higher as the organiser and your active involvement in this consignment process than Mr Villalobos.  Upon that basis there must be a disparate sentence imposed as between the two of you.  That is, a different sentence as between the two of you.

29In sentencing the both of you I have had particular regard to the Victoria Court of Appeal decision of Nguyen & Ors v R [2011] 31 VR 673 where President Maxwell stated at paragraph 33 a series of 13 propositions albeit in relation to importation cases but so far as I am concerned, apposite in relation to the matters for which I must assess your respective criminality. Those include the roles of the offenders as being of great importance in assessing the objective criminality of the offence, the size of the importation, whether the person is involved in the importation for profit, the difficulty of detecting importation offences and the great social consequences that follow, the fact that there can be a wide range of moral culpability and that attempting to assess imported drugs are not for that reason of a less serious category than that of importing the drugs. I bear steadily in mind that, of course, you are not charged with importation. It is an attempt to possess the cocaine for which you must be sentenced. But those factors, among others, set out in those 13 points by President Maxwell are of great assistance to me.

30Before I turn to personal matters it is necessary further to consider other sentencing factors.  The prosecution submit that this is a very serious instance of such offending.  I agree, for the reasons which I have endeavoured to set out. 

31There was, further, extensive planning over weeks if not, more accurately, months.  You, Mr Lopez Duque, are said to be the Australian organiser of this consignment.  I agree, for plainly that is so.  You, Mr Villalobos, were a trusted accomplice to Mr Lopez Duque, if it were not so, the consignment would not have been addressed to you at that Coburg North address.  For the two of you, financial benefit was your motive.  The potential market value was considerable.

32This is, indeed, an offence which is difficult to detect and when detected as being an illicit substance in a parcel, the investigative process involved in a controlled delivery is one that can take days, weeks and sometimes longer.  It is thus an expensive investigative process.

33It is put that general deterrence, that is deterring others, is the principal sentencing factor that I must take into account in sentencing each of you and that is indeed so.  I shall return to other sentencing matters in due course but it is useful now to consider matters personal to the two of you.

34Turning first to you, Mr Lopez Duque.  Born in Colombia, you at the time were 30 years of age and are now 31.  You have an older sister who is 35 years of age.  You enjoyed a supportive upbringing and your family was very close, surrounded by extended family.  Your parents, both retired professionals, worked hard to provide for their children.  You completed your VCE equivalent at a Catholic College in Medellin.  You then went to California to further your English language skills and then returned and studied International Business Management for three years at the CEIPA University, though not completing the degree.  You ran a successful business selling wholesale sportswear online and did so for some four years prior to coming to Australia.

35When you arrived in Melbourne you enrolled for a Diploma of Business Leadership and Management at the Universal Institute of Technology in Melbourne.  That diploma was not completed.  You worked in a number of jobs of a casual kind and extended your student visa for a period of two years while studying at UIT. 

36You said to police during the course of your interview at p.597 of the depositions, Question 102, question, "And what are your plans for your stay in Australia?"  Answer, "My plans are to finish the diploma and then go back home". 

37You have no criminal history whatsoever.  You pleaded guilty at the earliest opportunity.  I use that plea of guilty in two ways.  The utility in saving a committal hearing and a trial.  I further use it as evidence of remorse by you for your criminal conduct.

38A number of testimonials were tendered during the course of your plea including a letter written by your parents together with your sister which became Exhibit AD3 on the plea.  In that they write:

"Alejandro was a well-educated young man; he always showed a respectful concern over the law and authorities in general.  He has been a great family member, very sociable and kind and helpful to others. 

He was raised within a family of professional parents, as well as his sister did, we all have superior academic studies.  We practice good manners and a high sense of moralistic principles".

39In the second page of their letter, they continued, saying:

"Since the first moment Alejandro was taken to prison, we talk to him almost every day and he has let us know how ashamed and really sorry he feels for having defrauded the trust we had on him.  He is extremely ashamed with Australia, the country that generously welcomed him and the Melbourne community for being involved in his criminal offence which he deeply regrets. 

We as a family have felt completely embarrassed and hurt with this entire situation, we never imagine having to go through such a terrible moment, totally strange to our ethical, moral and social behaviour. 

Likewise, we have earned the respect of the society in which we live by being hardworking, honest and absolutely respectful of the rules, and our firm purpose once Alejandro is back home, is to commit him and start working and resume his professional activities at his old job where he's always been welcome".

40There are other references to the same effect.  In short I am satisfied that you are truly remorseful for what you did.  I am satisfied that your prospects for rehabilitation are excellent.

41I turn now to you, Mr Villalobos, and your personal background.  You were born on 18 February 1993 and at the time of this offending you were almost 22 years of age.  You are now 25 years of age.  You are therefore a relatively young man.  You too have no prior convictions at all and you too have pleaded guilty at the earliest opportunity.  I use that plea of guilty in precisely the same ways as with Mr Lopez Duque, not only in terms of its utility but also in terms of evidencing your remorse for your offending conduct.

42Your history is set out also in exhibits tendered during the course of your plea yesterday.  They include a reference from a Claudia Correa in which she writes, among other things:

"I have known Francisco Toro Villalobos for over 20 years.  He's a relative of mine and I first met him when I visited Chile.  Our families kept in contact.  Over the years he developed an interest in coming to Australia.  His dream was to study and establish a career.  When he arrived in 2014 Francisco spent a lot of time with us in Warragul.  We often went to the beach, youth camps and 4wd.  We have beautiful memories together, in particular on one occasion whilst 4wd my husband and Francisco got bogged and had to spend the night out with no phone signal, food or blankets.  During our time together I found Francisco to be a rather innocent individual who was also very caring towards me and my young daughter who adores him.  When he began studying he started off on a good note but when he started making new friends we noticed a subtle change in him and we slowly lost touch with him.  We felt he might be in trouble but he was too afraid and ashamed to tell us and we now understand the situation he found himself in".

43Your brother, Rolando, has also provided a reference.  He writes, among other things:

"My brother knows that he has a family that support and truly love him despite this stumble, we can all make mistakes and I know for a fact that my brother has learnt from his error, he knows that in life there are second chances and opportunities.  He knows that he can go ahead because as a family we are all here ready and willing to support him".

44Your eldest brother, Mario, also writes of you and says:

"Honourable judge, if you could read this letter, I would respectfully like to ask you to please consider my brother's immaturity as he's never, in the past made this type of mistake, he has never been in trouble with the police and he's never been alone for such a long time, time in which he did not make a very good decision. 

He's a young man who needs to demonstrate that he's learnt his lesson".

45Again you have the benefit, Mr Villalobos, of a supportive family.  Indeed your mother is here, your father could not be because of work commitments and they, as with the family of Mr Lopez Duque, will support you in the future.  You are lucky and privileged to have that support.  Likewise, in relation to
Mr Villalobos, I assess your prospects of rehabilitation as being excellent.

46Thus there are many factors in common between the two of you in terms of your background.  You, Mr Lopez Duque, are somewhat older by six years.  Both of you come from excellent families.  Both of your families have been appalled by your misconduct.  Both of them, nonetheless, are supportive of you and will be for the future.  Both of you are genuinely remorseful for your misconduct and your criminal offending in this matter.

47It is put in relation to you, Mr Villalobos, that you are isolated in your imprisonment in Australia to some degree, such that I ought moderate the sentence as imprisonment for you is more burdensome than for others within the prison population because of your isolation in Australia.

48No such submission was put in relation to you of any strength, Mr Lopez Duque, but despite the fact that with Skype and other devices, other means of communication, nonetheless you are much the same solution as Mr Villalobos, your family is not here, it is on another continent.  Both of you face deportation.

49There is some need for moderation in the sentence that I impose as to the two of you.  I have observed that necessarily because of your different roles there must be different sentences imposed upon you, Mr Lopez Duque, as opposed to you, Mr Villalobos.  I have already averted to the fact to the matter that the principal sentencing factor in passing sentence on both of you is the need to deter others from similar offending. 

50This offending is all too common with narcotics coming from around the world to these shores.  Those who participate in this process such as yourselves by this charge of attempting to possess some 400 plus grams of pure cocaine must expect stern punishment.

51Specific deterrence, that is, deterring you from further offending, in the circumstances where I have already found that both of you have excellent prospects of rehabilitation is of less moment.  It is still of some importance but no more than that.  The sentences that I must impose must also take into account the need for just punishment for your offending and denunciation of your conduct in engaging in this offending.  Yes, both stand please.

52Taking all matters into account I sentence you, Mr Lopez Duque, to six years imprisonment and I set a minimum non-parole period of four years imprisonment.  But for your pleas of guilty, or plea of guilty, I would have sentenced you to eight years imprisonment and set a minimum non-parole period of five years' imprisonment.

53In relation to you, Mr Villalobos, I sentence you to be imprisoned for a period of four years and I set a minimum non-parole period of two and a half years. 
But for your plea of guilty I would have sentenced you to a period of six years imprisonment and set a non-parole period of four years.

54Yes take a seat please, gentlemen.  The pre-sentence detention for the two,
Mr Armstrong?

55MR ARMSTRONG:  Not including today, 316 days, Your Honour.

56HIS HONOUR:  Pre-sentence detention is 316 days.  That period will be automatically deducted by the authorities from the head sentence and the minimum terms that I have set.  Mr Armstrong, are there any matters that I have omitted to attend to or any corrections that I can correct at this stage?

57MR ARMSTRONG:  No, Your Honour.

58HIS HONOUR:  Mr Moore?

59MR MOORE:  No, Your Honour.

60HIS HONOUR:  Ms Sood?

61MS SOOD:  No, Your Honour.

62HIS HONOUR:  Thank you.  Yes both Mr Villalobos and Mr Lopez Duque can be removed please. 

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