DPP v Munoz
[2020] VCC 50
•3 February 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-01933
CR 18-01934
CR 18-01935
CR 18-01936
| THE QUEEN |
| v |
| JAVIER CARO MUNOZ FREDERICO ECHEVERRI SALZAR DAVID GUTIERREZ CARMONA JACOPO PALMISANO |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 November 2019 |
| DATE OF SENTENCE: | 3 February 2020 |
| CASE MAY BE CITED AS: | DPP v Caro Munoz & Ors |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 50 |
REASONS FOR SENTENCE
---Subject: Criminal Law – Sentence.
Catchwords: Attempt to possess commercial quantity of unlawful imported border controlled drug – Dealing proceeds of crime – Delay.
Legislation Cited: Commonwealth Crimes Act 1914, s 16A(2), 17A.
Cases Cited:Nguyen v The Queen; Phommalysack v The Queen [2011] 31 VR 673, R v Nguyen; R v Pham [2010] 205 A Crim R 106.
Sentence:Caro Munoz, total effective sentence of nine years’ and three months imprisonment, with a non-parole period of six years’ and three months imprisonment.
Echeverri Salazar, total effective sentence of seven years’ and three months’ imprisonment, with a non-parole period of five years’ and six months’ imprisonment.
Palmisano, total effective sentence of five years’ and six months’ imprisonment, with a non-parole period of three years’ and nine months’ imprisonment.
Gutierrez Carmona, total effective sentence of four years’ and three months’ imprisonment, with a non-parole period of two years’ and nine months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Queen | Mr J. Saunders Mr J. Manning | Commonwealth Director of Public Prosecutions |
| For Accused Caro Munoz | Mr C. Terry (Plea) Mr J. Tito (Sentence) | Emma Turnbull Lawyers |
| For Accused Echeverri Salazar | Mr D. Sheales (Plea) Mr R. Gipp (Sentence) | JK Legal |
| For Accused Gutierrez Carmona | Mr L. Barker (Plea) Ms S. Gaunt (Sentence) | Valos Black & Associates |
| For Accused Palmisano | Ms H. Bate (Plea) Mr D. McNally (Sentence) | Michael J Gleeson & Associates |
HIS HONOUR:
1I will start this sentence by giving an overall description of the offending that brings each of you before the court. I will then set out general sentencing principles that apply to the offending and the offences, and the third part of this sentencing process will deal with each of you individually starting with the offence or offences you have pleaded guilty to and your personal circumstances and the particular sentencing considerations for you individually. I will then announce your sentence at the end of that process.
Overall offending in this case
2The four of you together with Fernando Tovar Carmona had been charged with various offences relating to the importation or attempted importation of two consignments of cocaine into Australia. Both of these consignments were commercial quantities of the border controlled drug cocaine.
3On 26 July 2019, I sentenced Fernando Carmona for his role in these importations. On the day of the plea hearing for your charges, the prosecution filed a 41-page prosecution opening on the plea with four schedules dated 18 November 2019. This document was Exhibit “A” on the plea. The content of that opening was accepted by each of your counsel and it informs the factual basis for the sentencing process for each of you in this case. I will not repeat the full terms of that opening in my sentencing remarks but I have noted the contents when sentencing you.
4The overall offending arises from the arrival of two consignments of cocaine into Australia. The first consignment, which was called the ‘Brake Pulley’ Consignment was shipped from Santiago, Chile, on 20 February 2018 and arrived in Sydney on 25 February 2018. Its total weight was 60 kilograms and was later found to contain 5.766 kilograms of pure cocaine.
5The second consignment which was called the ‘Core Cooler Spare Parts’ Consignment or ‘Core Cooler’ Consignment was shipped from Panama City, Panama, on 24 February 2018, and arrived in Melbourne 28 February 2018. Its total weight was 20.5 kilograms and was later found to contain 4.072 kilograms of pure cocaine.
6The Brake Pulley Consignment and the Core Cooler Consignment were delivered to Church Street in Parkville. Jacopo Palmisano had lived at that address. The two consignments were ultimately conveyed from the Parkville premises to a unit on Kings Way in South Melbourne. Federico Salazar had leased that Kings Way unit in January 2018.
7Tovar Carmona and a person referred to as ‘Ga’ in a WhatsApp communication were the pivotal operatives in the importation of the two consignments. Tovar Carmona was the main operative at the Melbourne end of the criminal activity. The Australia Federal Police had Core Cooler Consignment under surveillance from the time of its arrival ultimately in Melbourne.
8A controlled delivery of that consignment was conducted on 8 March 2018. The consignment was delivered by AFP officers to 20 Church Street in Parkville. Jacopo Palmisano took delivery of the Core Cooler Consignment and was followed whilst he delivered it to the unit on Kings Way in South Melbourne. After delivering the Core Cooler Consignment, Palmisano left the premises at Kings Way, South Melbourne carrying a backpack. Palmisano was later arrested by police and the contents of the backpack form the basis for the Charges 2 and 3 to which he had pleaded guilty.
9After the delivery of the Core Cooler Consignment to the unit on Kings Way, South Melbourne, police maintained surveillance both visually and by a listening device which had been secreted into that consignment. Once the Core Cooler Consignment had been opened, the Australian Federal Police entered the unlocked apartment and arrested Javier Munoz, Tovar Carmona, David Gutierrez Carmona and Frederico Salazar.
10The police then discovered the other Brake Pulley Consignment which was unopened. Salazar admitted to police he took the Brake Pulley Consignment from Parkville to the South Melbourne apartment. The police also located tools, cash and other drug-related items in the unit at South Melbourne.
11Each of you were arrested and interviewed by police. You all have been in custody since 8 March 2018. Your joint trials were listed for hearing in September 2019. Mr Tovar Carmona had pleaded guilty and was sentenced in July 2019.
12After negotiations prior to the commencement of your joint trials, on or about 16 September 2019, each of you pleaded guilty to the charges on the individual indictments now before the court.
13Your plea hearing was conducted on 21 November 2019 and due to prior commitments of this court, the sentence date was adjourned to today, 3 February 2020. In effect, from the day of your arrest to the day of sentence, almost two years of your lives have been spent in custody in a state of uncertainty as to your future.
General sentencing considerations
14Each of you are to be sentenced as offenders under the Commonwealth Crimes Act 1914.
15Section 17A of that Act provides that the court shall not pass a sentence of imprisonment on any person for a federal offence unless, having considered all other available sentences the court is satisfied no other sentence is appropriate in the circumstances.
16In respect of each of you, the only appropriate sentence is a significant term of imprisonment.
17Section 16A(2) of the Crimes Act sets out the factors to take into account when determining a sentence.
18The first consideration is to the nature and circumstances of the offence. In your cases, the principal offending is attempting to import a commercial quantity of a border controlled drug in the case of Caro Munoz, or attempting to possess a commercial quantity of unlawfully imported border controlled drug in the cases of Gutierrez Carmona, Salazar and Palmisano. The sentencing principles for these offences is well settled.
19Maxwell P in the case of Nguyen v The Queen; Phommalysack v The Queen [2011] 31 VR 673, approved of the sentencing principles set out in the case of R v Nguyen; R v Pham which is reported in A Crim R [2010] and I will read out what was stated.
'1. The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation. Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence.
'2. Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court.
'3. It is the criminality involved in the importation which must be identified. The fact that another person may be characterised as the "mastermind" does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility.
'4. Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.
'5. Ordinarily, the amount of the drug involved in an importation is a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type. In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar.
'6. As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit. (The fact that the offender needs money to pay off a debt does not necessarily affect culpability.)
'7. The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.
'8. The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.
'9. Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise the interests of general deterrence are not served.
'10. The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given.'
'11. Where offenders are not young, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions.
'12. Where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, are relevant to determining the degree of moral culpability attached to the act of attempted possession itself. A sentencing judge should have regard to the offender's involvement in the overall transaction for the purpose of determining the offender's degree of involvement in a drug-smuggling enterprise.
'13. Offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs.'
20The commercial quantity for cocaine is 2 kilograms. The Brake Pulley Consignment was approximately 2.8 times the commercial quantity. The Core Cooler Consignment was approximately 2 times the commercial quantity.
21The court has to take into account a plea of guilty as a mitigating factor in sentencing. The timing of the plea in this case is relevant. In each of your cases, you have pleaded guilty to the offences after negotiations and the filing of fresh indictments to reflect the cases now prosecuted against you. Your pleas of guilty have the utilitarian value of avoiding the cost of an extensive and an expensive trial, demonstrates your willingness to facilitate the course of justice in the community and an acceptance by each of you for your criminal behaviour. Your pleas of guilty can be an indicator of remorse on your part.
22Under the Act, both specific and general deterrence are to be given appropriate weight. In the charges before the court where life imprisonment is the maximum penalty, general deterrence is to be given appropriate weight to deter any likeminded offenders in the future that the potential financial reward of drug importations are neutralised by the risk of severe punishment.
23The sentence imposed needs to satisfy the considerations of adequate punishment for the offending. In determining the sentence, the court has to take into account the character and antecedents of the person or prisoner. A court also has to assess and have regard to the prospects of rehabilitation for each prisoner taking into account his age, his plea of guilty, previous convictions, if any, the financial motivation, the role in the offending, and the final consideration is to have regard to any effect the sentence will have on the person's family.
Javier Caro Munoz
24You were born on 8 July 1988. You are now 31. At the time of the offending, you were 29 years old. You are a Colombian citizen.
25You initially came to Australia on 20 January 2017 on a student visa. You left Australia on 27 June 2017 and returned on 12 July 2017. You again left Australia on 21 October 2017 and returned on 13 November 2017.
26At the time you were in Australia, you were initially studying English at the Australian Academy of Commerce and subsequently a Diploma of Leadership and Management at the Australian Pacific College. Your studies required some 20 hours of studying and attendance per week. Both of these courses were in Sydney and required payment of tuition fees in the order of approximately $4,500 per annum.
27Whilst you were a student in Sydney, you worked part-time to support yourself financially. You worked as a cleaner on construction sites for ICM and in corporate hospitality on the weekends for a company called Delaware North which services the Sydney Cricket Ground amongst other venues.
28Your family is supportive of you. Your mother has retired and your father continues to work as a vegetable farmer. You have an older sister, Catrina, a marketing manager, and an older brother, William, who is a real estate agent, all of whom live in Colombia.
29Neither of your parents or siblings have been in trouble with the police. You have no prior criminal history yourself. Your counsel, Mr Terry, submitted you grew up in middle class circumstances where you did not go without essentials but were not from a wealthy family.
30You completed your schooling at San José De La Salle, Medellin, from Prep to Year 11. After Year 11, you commenced a five-year course at EAFIT Business College studying a Bachelor Degree in Business Administration. In the course of your studies, you undertook a one-year studying of English. In 2012, you graduated with your Bachelor Degree in Business Administration.
31Upon completion of your degree, you did a six-month traineeship at a store known as ‘Flamingo’ which is equivalent to Kmart stores here in Australia. You then commenced work as a corporate sales agent for Casa de Colombia, a national travel agency in Colombia. You remained there for two years.
32You then moved to Swiss Andina, a travel agency in Colombia but as an account manager as a corporate sales agent. You worked in that position for two years and left that employment to travel to Australia to study and improve your English skills which were necessary for your advancement in your career as a travel agent in Colombia.
33In your younger years, you had experimented with alcohol and drugs. Your drug taking in the past has involved MDMA, cocaine and LSD. You have been a regular attendee at electronic musical festivals. Indeed at the time of your arrest, you were in Melbourne preparatory to attending such a festival.
34Your other interest in youth was soccer. You played semi-professional football as it was called or soccer as it is called here, in Colombia to the age of 16. After that time, you played amateur soccer prior to coming to Australia. You have played soccer whilst you were in Sydney.
35Since your arrest on 8 March 2018, you have been on remand. Initially, you were at the MRC but for the last 20 months, you have been at Ravenhall Prison. You have behaved well in prison and are now housed in a cottage-style unit at Ravenhall. You are a team leader in the kitchen which services some 1,200 prisoners. You have had no positive drug tests.
Your role in this offending
36It is not alleged that you had any involvement in the Brake Pulley Consignment.
37The prosecution case, and you accept by your plea of guilty to Charge 1, is that you and Tovar Carmona were involved in the importation of the Core Cooler Consignment to Australia. The evidence discloses that your role was in the remitting of money to Colombia to fund the importation of cocaine in the Core Cooler Consignment.
38You were in the apartment at South Melbourne when Palmisano delivered the Core Cooler Consignment to South Melbourne. The evidence from the listening device implanted in that Core Cooler Consignment proves you were involved in the attempts to access the contents of the Core Cooler Consignment.
39Your involvement was for a period from 24 February 2018 to 8 March 2018, a period of two weeks. The amount of pure cocaine was 4.072 kilograms. Your role was significant in this attempted importation because you were remitting the funds to pay for it and were present when it was to be opened at the apartment in South Melbourne.
40Whilst I have described Tovar Carmona as the pivotal role at the Melbourne end of the two importations involved in this whole case, your role was pivotal in the financing part of the Core Cooler importation.
41You have also been charged with being in possession of an unlawfully imported substance which was cocaine. This charge arises from a clear plastic bag which was found in your black bag with the red zips on it at the apartment. The amount of cocaine was 1.28 grams.
42The third charge is a proceeds of crime charge based on your possession of a bundle of $50 notes totalling $3,500 which was also located in the same black bag with the red zips at the time of your arrest.
43There is no clear evidence of what reward you were to receive as a result of the importation of the cocaine in the Core Cooler Consignment. The clear inference is that you engaged in this attempted importation for financial reward.
Specific sentencing considerations
44The general sentencing considerations referred to earlier have application to your case. You have pleaded to the charges at the earliest time once the present resolution of the charges was agreed. The plea of guilty has utilitarian value and an acceptance by you of your criminal behaviour. I accept the pleas of guilty indicate some remorse on your part for this offending.
45You have not been involved in two separate importations as your co-accused, Tovar Carmona. However, he has been sentenced separately for each of the consignments and part of the sentence for the Core Cooler Consignment was cumulated on his sentence for the Brake Pulley Consignment. It was submitted on your behalf that your role was not as significant as Tovar Carmona in the importation of the Core Cooler Consignment.
46The facilitating of the transfer of funds and the confirmation of those funds transferred is a necessary and significant role in drug importations. I accept it is a different role to the managerial role played by Tovar Carmona in this importation of the Core Cooler Consignment but it is only marginally less important in the overall offending. You were present in the apartment in South Melbourne when the consignment was delivered and to be opened. The amount of the drug was two times the commercial quantity.
47The charge of possessing cocaine and the proceeds of crime are additional offending to the principal offence and partial cumulation of those sentences will reflect the additional criminality.
48I accept that as a result of your conviction and sentence that you will be deported from Australia at the completion of your sentence. You originally came to Australia on a student visa, engaged in English and further studies. These offences have ensured that any prospect of your development and life in Australia is now extinguished. I also accept you are a long way from your family and friends. You have phone contact with your family but this is limited. The imprisonment will be an additional hardship because you do not have visitors and support from family members here in Australia.
49You have a good record as a prisoner. This is the clear indication that combined with your education, previous good record and work history and positive and continuing support from your family, that you have good prospects of rehabilitation.
50Finally, there has been considerable delay between your arrest and the finalisation of this sentencing process, a period of almost two years. The uncertainty of how long you are going to be in custody would no doubt have caused you considerable anxiety, especially given your age and this being the first time you have been in custody. I take this factor of delay into account when fixing your sentence.
51The only appropriate sentence for all of your offending is a term of imprisonment with a non-parole period.
52I will sentence you as follows, will you stand please.
53On Charge 1, you are convicted and sentenced to eight years and six months' imprisonment. That is the base sentence and is to commence today.
54On Charge 2, you are sentenced to two months' imprisonment. That sentence is to commence one month prior to the end of the sentence in Charge 1.
55On Charge 3, you are convicted and sentenced to 15 months' imprisonment. That sentence is to commence seven months before the end of the sentences in Charge 1 and Charge 2.
56That is a total effective sentence of nine years and three months.
57I fix a non-parole period of six years and three months.
58But for your plea of guilty, I would have sentenced you to 12 years and six months' imprisonment with a non-parole period of nine years.
59I declare that you have served 697 days.
60Thank you. You can take a seat.
Frederico Echeverri Salazar
61You were born on 11 September 1990. At the time of the offending, you were 27 years old. You are now 29. You are a Colombian citizen.
62You first came to Australia on 5 April 2017. You had a brief time out of Australia between 10 November 2017 and 11 December 2017. You have been in Australia since that time on a student visa. At the time of the offending, you were a resident at the Kings Way unit in South Melbourne.
63You initially completed a six-month English course in Australia. Upon your return to Australia, you then commenced a Marketing Diploma at Atlantis College of Management. You have worked delivering food for Uber Eats and also as a cleaner in the construction industry here in Melbourne. You were involved in this work when the offending in this particular case took place.
64You are an only child. Your parents separated when you were 11 years old. Your mother moved to the USA. Your father remained in Colombia and lived with another woman. Your father paid for carers to look after you from that time on. Between the ages of 11 and 16, you represented Colombia in tennis in the US. When you were 16 years old, your mother returned to live with you. This did not go well. You then lived with your father until you were 21 years old.
65You are educated to the equivalent of Year 12 in Colombia. You won a tennis scholarship at the end of your secondary school to study Business Administration at Longwood University in Virginia. You remained there for a year but returned to Colombia at the insistence of your mother. You commenced tertiary studies in International Business Studies in Colombia but have not completed those studies.
66You have regular contact with your father by telephone. You have also telephone contact with your Colombian girlfriend, Valeria.
67You told Mr Cummins who examined you for the purpose of this plea that you have been a regular cannabis user between 17 and 26 years old of age. You also reported that since being in Melbourne, you had used MDMA, LSD, ketamine and cocaine. You describe your drug use as recreational.
68You have been on remand in Port Phillip Prison for the whole time. You have been an exemplary prisoner and have obtained a job in the education centre of the prison. However, due to lockdowns in the prisoner processing on occasion you have only been out of your cell for four or five hours per day. Your remand period of two years has been more onerous than the co-accused due to the placement at the Port Phillip Prison.
69You met Tovar Carmona here in Melbourne in June 2017. Tovar Carmona asked you to organise and live in a bigger apartment in South Melbourne because his cousin was coming to live in Melbourne at that time. You let him move into your apartment.
70You have told Mr Cummins you are embarrassed, ashamed and remorseful for your offending in this case. I note your letter to the court confirmed these sentiments.
Your role in the offending
71It is not alleged that you were in any way involved in arranging the importation of the Brake Pulley Consignment or the Core Cooler Consignment.
72The Crown allege and you accept by your plea of guilty that in respect of the Brake Pulley Consignment, you and Jacopo Palmisano were to take delivery of that consignment at Parkville and return it safely to your apartment in South Melbourne. You were also involved in the attempts to open the Brake Pulley Consignment in order to extract the cocaine from within it.
73In relation to the Core Cooler Consignment, it is accepted by the Crown that your involvement is limited to events after the consignment was delivered to the apartment on 8 March 2018. The listening device contained in that consignment provided evidence of you being informed it contained cocaine and that you assisted and proffered advise about how to open it. This was an opportunistic or happenstance involvement by you in the second consignment, known as the Core Cooler Consignment.
74I find your role in the offending was subordinate to Tovar Carmona but identical to completing the delivery of the importation of the Brake Pulley Consignment. You also partook in the attempts to open the Brake Pulley and the Core Cooler Consignment in your apartment.
75There is no direct evidence of what benefit or motivation has driven you to be involved in this offending. The inescapable inference is that you have been involved in this offending for financial gain.
Specific sentencing considerations
76You have pleaded guilty to the two charges before this court on 16 September 2019. You had previously offered to plead guilty to charges encompassing this offending in July 2018, some five weeks after the delivery of the hand-up brief was served on you. I regard your plea of guilty has been made at the earliest time. I further accept that you have maintained a consistent approach to your acceptance of your offending from the day of your arrest till now. You will be given the proper discount for your plea of guilty.
77The amount of drugs is nearly five times the commercial quantity of cocaine. In the quantity-based sentencing regime, this amount of drugs is a significant factor in arriving at a proper sentence for you.
78You have no prior criminal history. Your prospects of rehabilitation are good. You have been a model prisoner and hold a responsible billet job in the education centre at Port Phillip Prison. You have undertaken many courses in prison to improve yourself. Your father's health is deteriorating but he remains supportive of you and awaits your return to Colombia.
79You will be deported to Colombia at the completion of your sentence. Any desire by you or prospect of settling in Australia has been removed by your conviction and sentence for these offences.
80There has been considerable delay between your arrest and sentence. In particular in your case, you offered to plead guilty to the same level of offending as now as early as July 2018. The time in custody on remand has resulted in a diagnosis by Mr Jeffrey Cummins of a reactive adjustment disorder. Mr Cummins noted that you have been prescribed antidepressant medication which you have chosen not to take at this stage. I take the issue of delay into account when finalising your overall sentence.
81I accept your role in this offending is not as significant as Tovar Carmona. Nevertheless, you were involved in an integral way in the Brake Pulley Consignment delivery to Mr Tovar Carmona. Your role in the Core Cooler Consignment is less significant and peripheral to Mr Tovar Carmona.
82The second charge you have pleaded guilty to is further offending arising from the seizure of a Coles Clip Seal bag containing 15.15 grams of cocaine. These drugs were found in your wardrobe at the unit at South Melbourne on the day of your arrest.
83The only appropriate sentence is a term of imprisonment with a non-parole period.
84Mr Salazar, would you stand please?
85In respect of Charge 1, you are convicted and sentenced to seven years' imprisonment.
86In respect of the second charge, you are convicted and sentenced to nine months' imprisonment. That sentence is to commence six months prior to the finish of the sentence in Charge 1.
87That is a total effective sentence of seven years and three months' imprisonment.
88I fix a non-parole period of five years and six months' imprisonment.
89But for your plea of guilty, I would have sentenced you to 10 years' imprisonment with a seven-year non-parole period.
90I declare that you have served 697 days pre-sentence detention.
Jacopo Palmisano
91You were born on 11 May 1994. You are now 25 years old. At the time of these offences, you were 23 years old. You are the youngest of your co-offenders. You are an Italian citizen.
92You first arrived in Australia on 6 January 2017. You were in Australia on a student visa to improve your English skills.
93You are an only child. Your parents are separated but both continue to provide you with support. Your parents came to Australia and were present in court at the time of your plea hearing. You have a supportive family to return to in Italy upon your release from prison.
94From the age of 10, you moved between your parents' homes. You suffered from scoliosis as a young child and this in turn led to obesity issues for you. At school, you were bullied as a result of your obesity. Nevertheless, you managed to successfully complete secondary school to Year 12 level. You then went on to complete a Degree in Agribusiness and Agricultural Science from Alma Mater Studiorum University in Bologna, Italy, in 2016. You decided to take a gap year in Australia for 2017 after a breakdown in a relationship and also to improve your English skills.
95In your student years, you worked in the hospitality industry and in the course of that occupation worked from bartender to cook. When you came to Australia, you also worked in hospitality. After six weeks, you were injured in a motor scooter accident and unable to work for a period of time.
96You have been a long-term cannabis user commencing at the age of 14. You came to Australia and hoped to break that cannabis cycle. After your scooter accident, you relapsed into cannabis use and were then introduced to cocaine to give you a boost. Your cocaine use increased and your co-accused, Tovar Carmona, gave you access to cocaine without you paying for it.
97The fact that you 'owe' Mr Tovar Carmona was disclosed in the communications referred to in Exhibit “A”. You were indebted to Tovar Carmona and he called on you to be involved in the movement of the consignments so that your debt could be extinguished.
98All of these events around the offending were in the context that you were planning to wrap up your trip to Australia and return to Italy in March 2018.
99You were assessed by Patrick Newton, psychologist, for the purpose of this plea. He described your mood as light-hearted and expansive with no indications of a depressed mood or anxiety. He assessed you as being above average intelligence. Mr Newton stated that you have insight into your drug addiction and are involved in treatment whilst you are in prison.
100You have a trusted role in prison by assisting new prisoners adapt to life in custody. I accept that you have developed remorse for your offending through your contact with new prisoners who are in custody due to drug use and drug-related offending. Your letter to the court sets out your remorse and understanding of the impact of your offending on others. I accept the contents of your letter are genuine. Your parents' letter to the court is also a proof that you have good family support now and for when you return to Italy.
101You have no prior criminal history.
Your role in the offending
102The Crown does not allege you had any involvement in arranging the importation of the Brake Pulley or the Core Cooler Consignments into Australia. The accepted position by the Crown and yourself by your plea of guilty is that you were to take delivery or assist in taking delivery of both consignments at Parkville and return them to the apartment in South Melbourne.
103You were not present in the South Melbourne apartment when the AFP conducted its raid. You were arrested later that day. At the time of your arrest, your backpack was searched. You had $6,150 in bundles of $50 dollar notes. That is the basis for Charge 2.
104You also had a small amount of MDMA and ketamine in the backpack. Further, a small amount of cocaine was found in a draw in your bedroom in the apartment which you admitted was your cocaine. These drugs form the basis of Charge 3.
Specific sentencing considerations
105Your role in the offence of attempting to possess a commercial quantity of cocaine was that of a courier from Parkville to South Melbourne. You were relatively young and a dependent drug user who had been given access to cocaine by Tovar Carmona without payment for it. The motivation for your involvement was extinguishment of the debt for those drugs used in the past.
106The amount of drugs transported is significant but there is no evidence that you had any knowledge of how much was being transported or delivered by you.
107You have pleaded guilty to the three charges before the court on 16 September 2019. This plea was entered after negotiations were completed and the present indictment was filed.
108I accept that your plea is an early plea. The plea has two factors; first, the utilitarian value of the plea and secondly, it is an acceptance by you of the criminal conduct and a sign of your remorse.
109You have made the most of your time in custody in respect of drug rehabilitation for yourself and also engagement with new prisoners to assist in their adjustment to prison life. These factors combined with your lack of prior convictions, your good education and strong family support upon release from prison lead to my assessment that your prospects of rehabilitation are good.
110You also have the prospect of deportation immediately after you have completed your sentence. This means any prospect of settling in Australia is extinguished. It also means that you are isolated from your family in Italy until such time as you are released from prison. That isolation makes your time in prison more burdensome. Further, the delay in the time has the same consideration I have announced to the other prisoners.
111Nevertheless, general deterrence requires that a sentence of imprisonment with a non-parole period is the only appropriate sentence for your offending.
112Would you stand please?
113In respect of Charge 1, you are convicted and sentenced to five years' imprisonment. That is to commence today.
114In respect of Charge 2, you are convicted and sentenced to 18 months' imprisonment. That sentence is to commence 12 months prior to the completion of the sentence in Charge 1.
115In respect of Charge 3, you are convicted and sentenced to two months' imprisonment.
116The total effective sentence is five years and six months' imprisonment.
117I fix a non-parole period of three years and nine months' imprisonment.
118But for your plea of guilty, I would have sentenced you to seven years and three months' imprisonment with a five-year non-parole period.
119I declare that you have served 697 days pre-sentence detention.
120Thank you, please be seated.
David Gutierrez Carmona
121You were born on 14 July 1991. You are now 28. You were then 26 years at the time of the offending. You are a Colombian citizen. You are the cousin of Tovar Carmona.
122You came to Australia on a student visa on 11 February 2018. Upon your arrival to Australia, you moved into premises on Kings Way in South Melbourne. Your co-tenants are your co-accused; Tovar Carmona, Salazar and Palmisano.
123You came to Australia to improve your English skills. You are the elder of two children in your family. Your younger sister is studying psychology at a university in Medellin. Your father organises cultural events in Medellin and also works as a knitting machine operator in a textile factory. Your mother works as a commercial advisor in a bank in Medellin. You come from a supportive middle class family in Colombia. Neither you nor any members of your immediate family has had any trouble with the law.
124You completed your secondary education to Year 11 level in Colombia which is the equivalent Year 12 here in Australia. During your secondary education, you also qualified as a qualified computer systems technician. You were a talented soccer player but gave that sport up to pursue your tertiary studies.
125You pursued a degree as an industrial engineer at a university in Medellin. You then completed the academic part of the course in September 2017. Before graduation, you were required to demonstrate a proficiency in English. Your first attempt at that exam was a failure. Your cousin, Tovar Carmona, convinced you to come to Melbourne to improve your English skills.
126You commenced your English course at ILSC in Swanston Street, Melbourne on 12 February 2018, the day after you arrived in Melbourne. The course was to run from February 2018 to August 2018 and you were to return to Medellin. You attended your English course as required until your arrest.
127You had an excellent work record in Colombia having worked at Ticketexpress and a logistical company, and Volkswagen and Renault. You have good work prospects in Colombia when you return. You were working for Uber Eats in Australia to try and support yourself whilst you were here. You told police you could not get a better job.
128You have never used drugs and the entire drug dealing world is foreign to you. Your connection to this offending was entirely through your familial connection to Tovar Carmona. He was the only person you knew in Australia when you came here on 11 February 2018.
129You have a seven year old son who lives with his mother in Colombia. You have enjoyed a close relationship with your son but now had not seen him for over two years.
Your role in the offending
130The Crown accept that you were attending all the classes in your English course here in Melbourne. It has also accepted that you had no knowledge of or any involvement in the importation of the Brake Pulley Consignment until it was brought to the apartment by Mr Salazar on 5 March 2018.
131You did assist your cousin, Tovar Carmona, in attempts to open the Brake Pulley Consignment. You attended a Bunnings store in Brunswick and purchased an angle grinder and other tools. You later attended at the Port Melbourne Bunnings store with Tovar Carmona and purchased a wrench. The angle grinder was used in an attempt to open the Brake Pulley.
132You have not been seen involved in the overt act of attempts of opening the Brake Pulley. The Crown case is you assisted and encouraged Tovar Carmona in his attempts to open the Brake Pulley.
133Your involvement in the second consignment, the Core Cooler Consignment, is limited to you assisting and encouraging Tovar Carmona and co-offenders in their attempt to gain access to the contents of the Core Cooler Consignment. The encouragement is verbal and ends nine seconds before the Australian Federal Police entered the unit. The Crown does not allege you had any knowledge or involvement in the importation of the Core Cooler Consignment prior to it arriving at the premise you were living at on 8 March 2018.
Specific sentencing considerations
134I find that your role in respect of each consignment is at the lowest level of involvement. The circumstances of how you came to be in the apartment when each of the consignments arrived at the apartment three days apart means your moral culpability for this offending is at the lower end.
135There is no evidence to support any proposition you were involved to the extent that you were there for financial gain. I accept that your connection to this criminal behaviour is your family connection to your cousin, Tovar Carmona.
136The offence of course has a maximum penalty of life imprisonment. Nevertheless, there is a wide range of culpability within that offence. You could be described as an accidental tourist who got caught up in a serious criminal activity that you could not extract yourself from.
137The offending is over a short period of time and has limited involvement by you. There is no direct evidence of overt actions by you to open either of these consignments.
138You have no prior convictions. You have good prospects of rehabilitation due to your qualifications, age, work history and prospects, and the remorse for your involvement in this criminal activity. You have good family support in Colombia and I accept you are motivated to return to Colombia and provide for and nurture your young son.
139You have the prospect of deportation and the consequent isolation from your friends and family. This makes your incarceration here in Australia more onerous.
140The issue of delay and the uncertainty about your future due to the delay between arrest and sentence has no doubt added to your anxiety and made your time in remand more onerous.
141I note the contents of your translated letter to the court. I accept you have every intention to return to Colombia and picking up where you left off in early February 2018 as an engineer, father and a contributing member of the Colombian community.
142The principles of general deterrence in this charge on a quantum-based sentencing system requires that a term of imprisonment with a non-parole period is the only appropriate sentence.
143Would you stand please?
144On Charge 1, you are convicted and sentenced to four years and three months' imprisonment.
145I fix a non-parole period of two years and nine months' imprisonment.
146But for your plea of guilty, I would have sentenced you to six years' imprisonment with a non-parole period of four years' imprisonment and I declare that you have served 697 days of that sentence.
147Thank you.
148MR SAUNDERS: If Your Honour pleases.
149HIS HONOUR: Is there anything further I have to cover?
150MR SAUNDERS: There was no forfeiture. No, thank you.
151HIS HONOUR: All right. So all the forfeiture orders and that sort of thing have been ‑ ‑ ‑
152MR SAUNDERS: They are done by consent.
153HIS HONOUR: Yes. Thank you.
154MR SAUNDERS: They have been dealt with. Thank you.
155HIS HONOUR: Is there anything further from the other end of the Bar table?
156COUNSEL: No, Your Honour.
157HIS HONOUR: All right. Thank you very much for your attendance. You can remove the prisoners. Thank you.
158I would just like to thank counsel and those that were here on the last occasion for, first of all, resolving the whole matter and, secondly, for the presentation of the plea material for the court. It has been a great assistance to me.
159MR SAUNDERS: If Your Honour pleases.
160HIS HONOUR: Thank you.
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