Jaafar v R

[2017] NSWCCA 223

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Jaafar v R [2017] NSWCCA 223
Hearing dates:	15 May 2017
Date of orders:	20 September 2017
Decision date:	20 September 2017
Before:	Hoeben CJ at CL at [1]; Price J at [3]; Lonergan J at [120]
Decision:	(1) Leave to appeal granted. (2) Appeal allowed. (3) The sentence imposed by Madgwick QC ADCJ is quashed. (4) The applicant is sentenced to a term of imprisonment of 17 years 6 months commencing on 6 December 2012 and expiring on 5 June 2030 with a non-parole period of 11 years, expiring on 5 December 2023.
Catchwords:	CRIMINAL LAW – appeal against sentence – conspiracy to import a commercial quantity of cocaine – whether judge erred in failing to adopt instinctive synthesis approach in sentencing applicant – concession of error by the Crown – re-sentence – consideration of the extent of the applicant’s knowledge of the amount of the imported cocaine – consideration of parity of co-offender’s sentences – whether justifiable sense of grievance – consideration of additional material on re-sentence – whether hardship to applicant’s family exceptional – consideration of past and indicated future assistance to police – whether lesser sentence warranted
Legislation Cited:	Crimes Act 1914 (Cth), ss 16A(1), 16A(2), 16A(2)(f), 16A(2)(g), 16A(2)(p), 16AC(1), 16AC(2) Criminal Code (Cth), ss 11.5(1), 307.1(1)
Cases Cited:	Elshani v R (2015) 255 A Crim R 488; [2015] NSWCCA 254 Garcia v R [2013] NSWCCA 241 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Ilbay [2000] NSWCCA 251 R v Kollas and Mitchell [2002] NSWCCA 491 R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222 Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
Category:	Principal judgment
Parties:	Mohammed Jamil Jaafar (Applicant) Regina (Respondent)
Representation:	Counsel: Mr T. Game SC, Mr P. Lange (Applicant) Ms S. McNaughton SC, Ms P. McEviery (Respondent)   Solicitors: AHA Taylor Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2012/379837
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 4 June 2015 Before: Madgwick QC ADCJ File Number(s): 2012/379897

Judgment

1. HOEBEN CJ at CL: I agree with Price J and the orders which he proposes.

2. I note that his Honour has referred to “the common law rule that only exceptional hardship to an offender’s family can be taken into account …”.   I would not refer to that consideration in such an inflexible way. That having been said, the hardship to which the applicant refers is what one would expect when a lengthy custodial sentence has been imposed. Accordingly, I agree with Price J that on re-sentence the asserted hardship should not operate to reduce the sentence.

3. PRICE J: Mohammed Jamil Jaafar (“the applicant”) seeks leave to appeal against the sentence imposed upon him in the District Court by Madgwick QC ADCJ (“the judge”) on 4 June 2015. The applicant pleaded guilty in the Local Court to one charge of conspiring with Domenico Vinci-Cannava (“Vinci”), Eduardo Palomarez-Garza (“Palomarez”), Richarht Henry Rodriguez-Torres (“Rodriguez”), Hilmer Alfonso Este-Montoya (“Montoya”), Raul Aldo (“Aldo”), and others to import a commercial quantity of a border-controlled drug, (123.4 kilograms of cocaine) contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth) (“the Code”) between about 1 March 2012 and about 5 December 2012. The applicant adhered to his plea upon arraignment in the District Court before the judge on 27 January 2015.

4. The maximum penalty for an offence contrary to s 307.1(1) is life imprisonment.

5. The applicant was sentenced to a term of imprisonment of 18 years 6 months commencing on 6 December 2012 and expiring on 5 June 2031, with a non-parole period of 11 years, expiring on 5 December 2023.

6. The judge had allowed a 25 per cent discount for the applicant’s early guilty plea.

Factual Background

7. In the sentencing proceedings, the Crown tendered, without objection from the applicant, a lengthy statement of facts, which may be summarised as follows:

8. The objects of the two conspiracies were to import a commercial quantity of cocaine into Australia and to possess the imported cocaine for distribution within Australian markets.

9. In order to achieve this, the applicant flew to Argentina on 22 March 2012, travelling to Uruguay before returning to Argentina and then Sydney. On 23 March 2012, a telephone service was activated; this would later be used by Rodriguez.

10. On 13 April 2012, Aldo, a close friend of the applicant, leased a unit from ‘Rent-a-Space’ self-storage in Bexley (“RAS”). Apart from five days in August 2012 where the lease was in Mohamad Mohamad’s name (“Mohamad”), Aldo was the lessee of this RAS unit up until the time of his December arrest.

11. ‘James’, another name for Mohamad, rang freight forwarding company, CEO Global Logistics (“CEO”) located in Botany on 21 August 2012, requesting that CEO handle the clearance of a consignment that he had arranged to arrive in Sydney. ‘James’ sent CEO a purchase invoice of 900 cases of wine, a packing list of the consignment and a bill issued by the Mediterranean Shipping Company for the carriage of the consignment from Chile to Sydney.

12. The consignment consisted of 900 cases containing 10,800 bottles of wine originating from a vineyard in Argentina. It arrived in Sydney on 14 September 2012.

13. On 20 and 21 September 2012, Customs officers carried out a series of presumptive tests on the contents of frosted wine bottles in the consignment. The shipment contained 123,438.0 grams of pure cocaine, suspended within an aqueous ethanol solution in 499 of the 10,800 wine bottles contained in the consignment. The estimated wholesale value, if sold at a purity of 88 per cent, was between $25,000,000.00 and $35,000,000.00 per kilogram of cocaine.

14. On 24 September 2012, Australian Federal Police (“AFP”) began a controlled operation and seized the consignment, substituting the contents of the 499 wine bottles containing the cocaine solution for an inert substance and reconstructed the consignment.

15. CEO sent ‘James’ an invoice in the sum of $7,114.90 on 26 September 2012 for customs and logistics charges associated with the consignment. The applicant met with Mohamad who then deposited the money in cash into CEO’s account. The reconstructed consignment was delivered later that afternoon.

16. The consignment was taken to RAS, where Aldo and Mohamad were present and assisted moving the cases into the unit. The applicant instructed Mohamad to tell anyone that he had hired to be quiet about what they were doing.

17. Between 26 September and 6 December 2012, the AFP conducted surveillance and lawfully intercepted the telephone communications of the applicant and his co-conspirators: Aldo, Rodriguez, Vinci, Palomarez and Montoya.

18. During this time, Aldo attended RAS on 17 different days. On 30 September 2012, he removed one case of wine from the consignment and took it to the applicant. On 2 October 2012, he attended RAS for about ten minutes and then went to the applicant’s home.

19. There were no attendances then for a period of about 13 days. On 15 October 2012, Aldo attended and removed two further cases of wine.

20. Aldo rented a second unit at RAS on 16 October 2012. He attended RAS in the afternoon. He moved some cases around and then later confirmed with the applicant that he had been “fishing”. Later that afternoon, Aldo and the applicant’s brother, Ali, moved 42 cases from the first RAS unit into the second RAS unit. They also removed one case from the consignment and took it to the applicant.

21. On 23 October 2012, Aldo attended the RAS unit, removing one case from the consignment and took it to the applicant. There were no further visits to RAS for approximately four weeks.

22. Palomarez arrived in Australia on 14 November 2012, after the applicant had told him that everything was “all good”. Ten days after his arrival, Vinci arrived in Australia after Palomarez had spoken to him in a coded conversation about the cocaine.

23. The applicant, Palomarez and Vinci planned the movement of the wine bottles and the extraction of the cocaine.

24. The applicant met and communicated with Palomarez about the consignment almost daily. He also spoke to Aldo regularly to obtain information or to direct him about the movements of the consignments.

25. With the assistance of Montoya, Palomarez found and subsequently leased a large, secluded house in Whale Beach, in-which to extract the cocaine from solution on 27 November 2012. Palomarez also liaised with Henry Aza (“Aza”), his offshore partner and Montoya’s principal. Montoya was primarily involved “to check out the numbers” for Aza.

26. Vinci guided Palomarez on issues that arose with the consignment and as he had the necessary expertise he oversaw the extraction process. Rodriguez was tasked with sourcing the chemicals and cooking equipment needed to undertake the extraction process.

27. The applicant and his co-conspirators intended to take about one week to extract the cocaine. Palomarez and Vinci planned to do the extraction. Once extracted, some of the cocaine was to be supplied to the applicant.

28. On 29 November 2012, the wine bottles believed to contain the cocaine were removed from RAS by Aldo and Ali using Rodriguez’s van. The applicant followed the van to Avalon. Palomarez met the applicant, Aldo and Ali at a public car park at Palm Beach and drove the van to the Whale Beach property, moved the wine bottles into the garage and then returned to the carpark where the applicant, Aldo and Ali were waiting for him.

29. Montoya departed the conspiracy on 30 November 2012. As a result, the consignment was moved from the Whale Beach house to a ‘Storage King’ in Homebush Bay by Rodriguez.

30. On 5 December 2012, the AFP seized the consignment from the Storage King.

31. The applicant was arrested on 6 December 2012.

The applicant’s subjective circumstances

32. The applicant was 49 years old at the time of offending and 52 years old when sentenced.

33. The applicant did not give evidence during the proceedings on sentence but material was placed before the judge that included a pre-sentence report, a report from Mr Bradley Jones, a forensic psychologist, and four character references.

34. The applicant told Mr Jones that he had a stable childhood, residing in Lebanon until the age of 13 when his family immigrated to Australia. He described having a very good relationship with his family. He attended high school in Sydney until Year 11. After leaving school, the applicant commenced employment and had various positions until commencing self-employment as a security officer for five years. He worked as a labourer on a casual basis for two years before his incarceration.

35. The applicant recounted that he had a loving and caring relationship with his wife before their separation in 2000 which was a result of his gambling. They have six children aged between 12 and 27.

36. The applicant began gambling when he was 18 years old by way of horse racing, poker machines, sporting events, casinos and TAB accounts. He said that he would gamble in the early hours of the morning to conceal it from his family and friends.

37. The applicant told Mr Jones that he owed in excess of $50,000.00 to friends and banking institutions and that he engaged in the offending to obtain sufficient funds to repay his debts and prevent his family and the wider community from finding out about his gambling behaviour and subsequent debt. Mr Jones was of the opinion that the applicant was suffering from a severe, persistent gambling disorder.

38. Mr Jones noted that the applicant expressed extreme remorse and became visibly emotionally distressed when discussing the impact his gambling behaviour had on his family, particularly his children. He considered that the applicant had a greater insight into the basis of his offending behaviour, his maladaptive thought processes and his significant gambling disorder.

39. Mr Jones reported that the applicant’s willingness to undertake a treatment programme was evidenced by his enrolment in the Breakout gambling treatment programme. A Certificate of Completion of the Breakout programme was included in the tender.

40. Whilst incarcerated, the applicant has engaged in employment as a sweeper at the South Coast Correctional Centre and at the Metropolitan Remand and Reception Centre (“MRRC”) He also obtained other employment in industries at the MRRC.

41. The author of the pre-sentence report recounted that the applicant retained the support of his ex-wife and family and enjoyed regular visits from family members. He appeared to take some responsibility for his offending behaviour and described feeling ashamed of his actions. The applicant admitted his gambling was problematic and expressed a motivation to attend Gambling Counselling Services if required. The applicant was assessed as having a “medium/low risk of re-offending”.

42. The applicant’s prior criminal history reveals that he was convicted and fined in the Local Court in August 2008 for obtaining money by deception.

Some findings by the judge

43. The judge found that the applicant’s involvement was the longest proven of any of the offenders, having flown to Argentina and then Uruguay on 22 March 2012, though there was no evidence that he was the originator of the conspiracy or that he was a principal profit-taker.

44. The judge said that the applicant was principally involved in receiving and storing the cocaine until it was ready to be moved to a safe location where the extraction process would be undertaken. He recruited Aldo to assist as a hands-on storeman and driver. He also arranged for Mohamad and others to assist in dealings with Customs officers and transport companies and for Ali to assist Aldo with some of the manual work in sorting, separating and moving the various bottles in the RAS unit, and in transporting the cocaine.

45. His Honour noted that the applicant instructed Aldo and Mohamad to lease both of the storage units and through Mohamad oversaw the unloading of the consignment into the RAS unit. He engaged Aldo to attend.

46. The judge said that the applicant was in frequent communication with Palomarez and other overseas persons and was responsible for informing Palomarez that the consignment was safe. His Honour observed that the applicant made arrangements to meet with Palomarez after the cocaine had been extracted from the solution and delivered to him. His Honour noted the Crown’s acknowledgment that Aldo, who performed a crucial facilitating role, operated subject to the applicant’s directions.

47. The judge found that the applicant had a managerial role in the conspiracy. His Honour described the applicant as “a profit sharing co-venturer” who was “a junior partner in the affair in relation to the level of activity of Palomarez and Vinci” (ROS 35). His Honour said that the applicant was not just a conduit for somebody else, but was clearly in it for a substantial reward. His Honour found that once extracted from the wine bottles, some of the cocaine was to be supplied to the applicant.

48. His Honour said (ROS 36):

“The inference is overwhelming that [the applicant] knew how much cocaine was involved. It is not true, as he told the probation officer I think or the psychologist that he was just a babysitter of the drugs once they had arrived. He contributed several thousand dollars of his own money to have the drugs out of bond once they were imported. He was in touch with overseas people before the visit to Argentina and after the drugs got to Australia.”

49. His Honour went on to say (ROS 36):

“[The applicant] met with Montoya. Palomarez felt it appropriate to discuss plans with [the applicant] after Montoya’s defection which he did not see fit to do in the case of Rodriguez. [The applicant] recruited more junior personnel and exposed them to risk including his own brother and the offender, Aldo, a life-long friend.”

50. His Honour remarked that Palomarez did not permit the applicant to know the location of the first safe house.

51. The judge found that the applicant’s involvement was “to a degree below that of Vinci and Palomarez but nevertheless he was a major and substantial player and not subject to anybody else’s direction” (ROS 37).

52. The judge noted that the applicant considered giving assistance to police who were anxious to have it but in the end nothing came of it. This was not held against him as the applicant would have acted in self-protection, although his Honour felt that this fact helped to “tip the scales” in showing that there is a degree of genuine remorse on the applicant’s part.

53. The judge observed that the applicant expressed remorse at the “suffering and shame that he has brought on his family as well as himself in the Arncliffe community, where many people from the Lebanese village from which he originally hails, live, and in-which he was… well-regarded” (ROS 36–37).

54. The judge found that the applicant’s offending had an impact on his family, although it was “no greater than one would expect” (ROS 36).

55. His Honour stated that the applicant “has been a model inmate, in particular he is [a] hard worker” and although he was a remand prisoner, he found work, which was said to be difficult to achieve (ROS 37).

56. The judge observed that there had been a delay of approximately two and half years on the applicant being sentenced and given that he pleaded guilty at the earliest opportunity, his Honour felt that this condition of uncertainty was “likely debilitating” (ROS 37).

57. The judge noted that the question of parity of sentence was a major consideration with the sentence imposed upon Montoya (ROS 28).

The Grounds of Appeal

58. An amended notice of appeal identifies the following grounds:

“Ground 1: The sentencing judge failed to adopt the “instinctive synthesis” approach to the sentencing exercise

Ground 2: His Honour erred in sentencing the applicant on the basis that he knew the quantity [sic] of border controlled drugs to be imported, in the absence of any, or sufficient, evidence to support that fact

Ground 3: The applicant has a legitimate sense of grievance in the light of the sentence imposed upon the co-offender Rodriguez”

59. As the Crown concedes that Ground 1 of the appeal has been established, it is convenient to immediately deal with this ground.

60. The applicant’s complaint focusses upon the following passage in the judge’s sentencing remarks (ROS 37):

“I think that, had he been convicted after a trial and had he not got the discounts that are properly available to him for subjective matters and for his plea of guilty, the starting point would have been 28 years. I would discount that by 10 per cent for his previous good character and the other subjective matters to which I have referred which brings it down to about 25 years.”

61. His Honour’s remarks demonstrate that he engaged in “two-tier” sentencing rather than the process of “instinctive synthesis” which is contrary to the principles stated in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [39], [51]. His Honour’s arithmetical approach was erroneous and the Crown’s concession has been appropriately made.

62. Specific error having been identified, it is this Court’s duty to re-sentence, “unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed”: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35] (“Kentwell”). This Court is obliged to take into account “all relevant matters, including evidence of events that have occurred since the sentence hearing”: Kentwell at [43].

61. The issues raised in Grounds 2 and 3 of the appeal will be considered when exercising the sentencing discretion afresh.

Re-Sentence

64. In determining the sentence to be passed, the Court is obliged to impose a sentence that is appropriate in all the circumstances of the offence: s 16A(1) of the Crimes Act1914 (Cth). In doing so, the Court must have regard to those matters that are relevant and known to the Court referred to in s 16A(2), in addition to any other matters of relevance.

What was the applicant’s knowledge?

65. When exercising the sentencing discretion afresh, an issue to be considered is the extent of the applicant’s knowledge of the amount of cocaine that was imported into Australia. It is well-established that an offender’s knowledge of the amount of the drugs imported increases the seriousness of the offence: R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 at [72] (“R v Nguyen; R v Pham”); Garcia v R [2013] NSWCCA 241 at [74] and must be proved by the Crown beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54.

66. The focus of the applicant’s complaint in Ground 2 was the judge’s finding that the applicant knew approximately how much cocaine was involved (see [48] above). The applicant submitted that this Court could not be satisfied beyond reasonable doubt that the applicant knew precisely how much cocaine was imported but accepted that he must have known that there was a substantial amount.

67. On the other hand, the Crown argued that there was ample material for his Honour’s finding. The Crown pointed to the following:

1. The recorded conversation between Palomarez and Montoya on 26 November 2012 which relevantly was as follows (Ex D, p 43):

“Montoya: The poor guy is scared shitless, isn’t he?

[Palomarez]: Well he is in a worse state than (indistinct)… I mean, he is sitting on the dynamite and people keep annoying him, he suspects somebody will steal from him. The worse thing is that they know where he lives (indistinct).

…

[Palomarez]: Well I can tell him: There are 20 coming… but sooner or later things fall over.

Montoya: (indistinct).

[Palomarez]: Yes. I told him: there are about 168, 180 coming, we’ll see how much comes out (or how much that would cost).”

2. The recorded conversation between Palomarez and the applicant on 29 November 2012 which took place shortly after the cases of wine had been moved from RAS to the house at Whale Beach. This conversation was as follows (Ex D, p 111–114):

“[Applicant]: That’s a big fuckin’ load off my shoulders.

[Palomarez]: Uh?

[Applicant]: Big load off my shoulders

…

[Palomarez]: Yeah.

[Applicant]: … (indistinct)… fuck. I can sleep better now.

…

[Applicant]: … (indistinct)… How long you think it will take us to finish? A few weeks?

[Palomarez]: Yeah. No more than two weeks.

…

[Applicant]: So how many you think you’ll have ready by, you know Sunday?

[Palomarez]: Twenty, thirty. Is good for a start.”

3. The recorded conversation between the applicant and Palomarez on 1 December 2012. The conversation was as follows (Ex D, p 129):

“[Applicant]: Then you press it together?

[Palomarez]: Yeah.

[Applicant]: We got nothing to stop us now. Let’s start straight away.

[Palomarez]: Yeah.

[Applicant]: And there’s no reason to stop. Once you get the first ones, we get rid of some, you send some money overseas.

[Palomarez]: Yeah.

[Applicant]: You have money, money, money.”

68. The Crown drew the Court’s attention to another part of the same conversation which was submitted to be a discussion as to how much cocaine was to be extracted by Palomarez the next day depending upon the weather and the temperature. The conversation was as follows (Ex D, p 136):

“[Applicant]: No, tomorrow’s good, twenty three, twenty four. If you start, how many are you goin’ to do at once?

[Palomarez]: We’ll run twenty, thirty, it depends.

[Applicant]: Yeah?

[Palomarez]: Yeah, depends the weather too ‘cause is hot is better for me.

[Applicant]: When it’s hot?

[Palomarez]: Yep.

[Applicant]: Mm. Twenty four is good?

[Palomarez]: Yeah, twenty four is good.”

69. The applicant submitted that the conversation between Palomarez and Montoya on 26 November 2012 was so ambiguous that it could not be concluded beyond reasonable doubt that Palomarez was speaking about the quantity of the cocaine arriving, let alone that he was speaking of kilograms.

70. The Crown observed that the three conversations involving Palomarez occurred within days of each other. The Crown argued that Palomarez’s consistent reference to “twenty, thirty” supports the conclusion that Palomarez, in the initial conversation with Montoya, was referring to the amount of cocaine that he could initially extract from the solution in the bottles and provide to the applicant. The reference to “twenty” was submitted to be a reference to quantity and not to money, the reference to “168, 180 coming out” was also a reference to quantity. The submission was that this amount was consistent with the amount of cocaine that potentially could have been extracted from the bottles overall.

Consideration

71. The applicant’s principal task was to receive and store the cocaine until the prohibited drug could be safely removed to another location. After returning from Argentina, he engaged Aldo to assist as a storeman and driver to lease the first RAS unit. Another storage unit was subsequently leased by Aldo, who was subject to the applicant’s direction. Mohamad was also recruited by the applicant to handle the clearance of the consignment of the 900 cases of wine and to oversee the unloading of the consignment into the RAS unit. The applicant provided Mohamad with the funds to pay the customs and logistic charges. The careful steps taken by the applicant in carrying out his task necessarily required consideration of the size of the importation.

72. When the intercepted conversations are viewed in combination with each other and with the applicant’s participation in the conspiracy, I am satisfied beyond reasonable doubt that whilst he may not have known the precise amount of the cocaine in the wine bottles, he knew that a very large quantity of the prohibited drug had been imported into Australia.

The question of parity

73. Notwithstanding the terms of Ground 3, the applicant complains that he has a legitimate sense of grievance in light of the sentences imposed upon Rodriguez and Vinci, two of the applicant’s co-offenders. Before summarising the competing arguments, it is useful to detail how all of the co-offenders came to be sentenced.

The applicant’s co-offenders

74. On 16 October 2014, the trial by jury in the District Court of Aldo, Rodriguez, Palomarez and Vinci commenced before the judge. The indictment charged all of the accused with:

1. one count of conspiracy to import a commercial quantity of a border controlled drug, namely cocaine, contrary to ss 11.5(1) and 307.1(1) of the Code; and

2. one count of conspiracy to possess a commercial quantity of a border controlled drug, namely cocaine, contrary to ss 11.5(1) and 307.5(1) of the Code.

75. On 3 November 2014, Vinci, during the course of the trial, pleaded guilty to the conspiracy to possess a commercial quantity of cocaine. On 28 November 2014, at the close of the Crown case, Palomarez pleaded guilty to the conspiracy to import a commercial quantity of cocaine.

76. Aldo and Rodriguez were found guilty by the jury of the conspiracy to import a commercial quantity of cocaine.

77. When his Honour sentenced the applicant on 4 June 2015, he also sentenced Vinci, Palomarez, Rodriguez and Aldo. The following table discloses the sentences imposed by the judge on the applicant’s co-offenders (RWS 1–2):

Offender	Offence and maximum penalty	Plea and discount (%)	Sentence
Domenico Vinci-Cannava (Vinci)	Conspiracy to possess a commercial quantity of a border controlled drug – s 307.5(1) Maximum penalty: life imprisonment	Guilty – entered on 3 November 2014 during the course of the trial Discount: 12.5%	26 years imprisonment to commence on 5 December 2012 with a non-parole period of 17 years
Eduardo Palomarez Gaza (Palomarez)	Conspiracy to import a commercial quantity of a border controlled drug – s 307.1(1) Maximum penalty: life imprisonment	Guilty – entered on 28 November 2014 during the course of the trial, at the end of the Crown case Discount: 12.5%	21 years imprisonment to commence on 3 December 2012 with a non-parole period of 12 years 6 months
Richarht Rodriguez-Torres (Rodriguez)	Conspiracy to import a commercial quantity of a border controlled drug – s 307.1(1) Maximum penalty: life imprisonment	Not guilty – convicted after trial	20 years imprisonment to commence on 5 December 2012 with a non-parole period of 12 years
Raul Aldo (Aldo)	Conspiracy to import a commercial quantity of a border controlled drug – s 307.1(1) Maximum penalty: life imprisonment	Not guilty – convicted after trial	15 years imprisonment to commence on 19 December 2012 with a non-parole period of 8 years

78. Montoya had been sentenced by Flannery SC DCJ on 22 August 2014 following a plea of guilty to one count of conspiracy to import a commercial quantity of a border controlled drug, namely cocaine, contrary to ss 11.5(1) and 307.1(1) of the Code. Her Honour sentenced Montoya to 12 years imprisonment to be released on a recognisance release order after 6 years.

Argument

79. The applicant’s sense of grievance in light of the sentence imposed upon Rodriguez centred upon the starting point of that sentence when compared to that of the applicant. The applicant put to the Court that the starting point of his sentence was 28 years before it was discounted by 10 per cent for subjective matters and by a further 25 per cent for his plea, which resulted in a head sentence of 18 years 6 months. In contrast, the starting point of Rodriguez’s sentence was 22 years which was discounted by 10 per cent for subjective matters. Rodriguez had not pleaded guilty but was convicted by the jury. It was submitted that the subjective matters for each of the offenders were relevantly indistinguishable.

80. The argument was that any difference in the starting points was referrable solely to the objective gravity of the offenders’ respective roles in the conspiracy. It was submitted that the 6 year disparity between the starting points could not be justified by an examination of their respective roles as Rodriguez was said to have played a central role in the conspiracy and was every bit as culpable as the applicant.

81. The applicant referred to the starting point of Vinci’s sentence being 30 years and contended that, given that Vinci was very much at the top of the hierarchy, a difference in the starting point of only 2 years was disproportionate to the differing roles played by the offenders.

82. The Crown submitted that the differences in the respective cases of the applicant, Rodriguez and Vinci provide a proper basis for the differentiation in sentence, such that the sentences are not unduly disproportionate. The Crown contended that in assessing the sentences to be imposed upon the applicant, Rodriguez and Vinci, the judge made a careful and thorough analysis of the criminality of each and of the respective cases. That analysis was undertaken with the parity principle in mind, particularly as regards to Montoya.

Consideration

83. Where there is a marked disparity between the sentences imposed on co-offenders giving rise to a justifiable sense of grievance, this Court will intervene: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26. The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the applicant's grievance as justified: R v Ilbay [2000] NSWCCA 251 at [6]; R v Kollas and Mitchell [2002] NSWCCA 491 at [50]. The plurality (French CJ, Crennan, and Kiefel JJ) in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (“Green”) said at [31]:

“[31] … The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.” [Footnotes omitted.]

84. When considering the submissions raised on alleged disparity, it must be recognised that the judge had the advantage, not only in sentencing all of the co-offenders other than Montoya but presiding at the trial. The judge was conscious of the need for parity and had regard to the sentence that had been imposed upon Montoya.

85. In his sentencing remarks, the judge considered in some detail the respective role of the co-offenders and their subjective cases.

Some findings by the judge when sentencing Rodriguez

86. In order to understand the sentence imposed upon Rodriguez, it is necessary to recount the findings that his Honour made.

87. The judge accepted that Rodriguez’s role was crucial but said that it was not adequately established that he was a co-principal at the same level as Palomarez, let alone Vinci. His Honour found that Rodriguez was in telephone contact with Vinci prior to Vinci’s arrival; he obtained the car, cash and telephones for Palomarez’s use; provided telephones to Vinci subscribed in false names; sourced $16,000.00 which he gave to Palomarez for the Whale Beach house; was tasked with finding the liquids necessary for the extractions process; sent money overseas on behalf of Palomarez and provided a van to the applicant so that the drugs could be transferred from the RAS unit to the Whale Beach house.

88. The judge found that Rodriguez “crucially” stored the cocaine in a unit at Homebush while the further safe house was being found.

89. On the question of Rodriguez’s knowledge, his Honour said that there was “no evidence that he knew how much of the cocaine was involved” (ROS 24) but went on to say “[b]ut he was not stupid, he was an experienced businessman and he must have realised and been told that a substantial amount was involved” (ROS 24).

90. His Honour remarked that Rodriguez “would have been substantially remunerated for his services even if these were, relatively speaking, mundane” (ROS 24).

91. As to Rodriguez’s role, the judge said that “[h]e clearly had a quite subordinate role to Vinci and he appears to have operated at a lower level than Palomarez too” (ROS 24).

92. The judge said that “[o]verall [Rodriguez’s] role seems to have been the procurement of funds and chemicals and non-specialised equipment, such as telephones, cars and his own truck” (ROS 38).

93. His Honour noted that Rodriguez was connected to the conspiracy by Vinci and that he did Vinci’s bidding. However, it was clear his Honour said that he had some independent discretion as to raising money and finding chemicals. His Honour observed that Rodriguez was sufficiently informed about what was going on and felt sufficiently confident of his role as to be able to suggest a two-stage release of the product, a proposal which was vetoed by Vinci.

94. The judge acknowledged that Rodriguez was not involved in getting the drug into Australia, past Customs or to the RAS. His Honour said that there was no evidence that he knew the applicant or Aldo. His Honour noted that Rodriguez “was not consulted when Montoya flew the coop and this puts him in contra-distinction to [the applicant]” (ROS 39).

95. As to Rodriguez’s subjective case, he was 41 years old at the time of the offence and 43 years old when sentenced.

96. The judge described Rodriguez as being “a virtual first offender entirely” (ROS 39). He had been very hard-working and a good citizen who had done his best to advance himself lawfully and to look after and support his family.

97. His Honour acknowledged that Rodriguez’s marriage was strained almost to the point of divorce and he was certain that Rodriguez suffered greatly from guilt of the grief caused to his family whilst he was in gaol.

98. The judge found that Rodriguez had good prospects of “ultimate rehabilitation notwithstanding that unrealistically he has continued to maintain his innocence in the face of clear objective evidence” (ROS 40).

99. His Honour said that “if there were nothing to be said for him in terms of subjective matters, a head sentence of 22 years would be appropriate… because it is his first offence and the first-time in gaol and because of his otherwise good character and good prospects of rehabilitation I think that that period can be reduced to 20 years…” (ROS 40).

Conclusion

100. There are material differences in the respective cases of the applicant and Rodriguez. The applicant was engaged in the conspiracy for a longer time than his co-offender and although the judge did not make a comparison in the roles that they played, it is plain from the steps taken to affect the success of the conspiracy, that the applicant’s participation was more than that of Rodriguez.

101. Rodriguez did not play any part in the importation of the cocaine into Australia whereas the applicant was tasked with ensuring the successful passage of the prohibited drug through Customs and its safe storage before removal to the safe house. Rodriguez was not engaged in recruiting others to participate in the conspiracy, whereas the applicant recruited Aldo, Mohamad and Ali, all of whom acted at his direction. With Palomarez and Vinci, the applicant planned the movement of the wine bottles and the extraction of the cocaine. Rodriguez’s knowledge of the amount of cocaine that had been imported was less than was known by the applicant. Unlike Rodriguez, the applicant had a managerial role and was to be partly rewarded with cocaine. I do not agree with the submission that Rodriguez was as culpable as the applicant.

102. Notwithstanding these material matters, they do not reasonably explain the difference of six years in the starting points of the sentences. Rodriguez was a significant participant in the conspiracy. Such a marked disparity gives rise to a justifiable sense of grievance. It is unnecessary to consider the applicant’s assertion of disparity with the sentence imposed on Vinci.

Additional material admitted on re-sentencing

103. A report from Mr Abdul Saad, a clinical psychologist disclosed that the applicant’s wife, Mrs Jaafar, had been diagnosed with thyroid and ovarian cancer in August 2016 and had had numerous surgeries and drug treatments. Mrs Jaafar reported chronic feelings of loneliness and having difficulty coping with her medical problems “without the emotional and physical support of her husband”.

104. Mrs Jaafar was struggling to cope with the demands of caring for her three children who live with her. Their 17 year old son has been manifesting behavioural problems since his father’s incarceration resulting in “increased disciplinary measures at school” and their 15 year old daughter has been “struggling to cope with the continued absence of her father”.

105. Mr Abdul opined that Mrs Jaafar presented with “a major depressive disorder of severe intensity on a background of various chronic psycho-social stressors”, including the applicant’s incarceration since late 2012 and more recently her medical diagnoses for which she undertakes treatment.

106. Amongst the matters, the court must take into account is “the probable effect that any sentence under consideration would have on any of the person’s family or dependents”: s 16A(2)(p) of the Crimes Act.

107. The common law rule that only exceptional hardship to an offender’s family can be taken into account applies to s 16A(2)(p) of the Crimes Act: R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222 at [93]; Elshani v R (2015) 255 A Crim R 488; [2015] NSWCCA 254 at [30].

108. As a consequence of his gambling behaviour, the applicant separated from Mrs Jaafar in 2000. The applicant lived separately from Mrs Jaafar and their children until he went into custody, although he appears to have maintained contact with them.

103. I am not persuaded that Mrs Jaafar’s feelings of loneliness and difficulties coping with her medical conditions and caring for their children would have been lessened, to any significant degree, if the applicant had not been imprisoned. The behavioural problems experienced by the applicant’s children are to be expected when children are separated from a parent. In my view, the impact of the sentence on the applicant’s family does not amount to “exceptional hardship”.

104. A confidential affidavit as to the applicant’s recent assistance to police and indication of future assistance was tendered. Under s 16A(2) of the Crimes Act, the court must take into account the degree to which the applicant has co-operated with police in the investigation of other offences. Where the court reduces the sentence imposed for future co-operation with police, the court is obliged to state that the sentence is being reduced for that reason and the sentence that would have been imposed but for the reduction: s 16AC(1) and s 16AC(2) of the Crimes Act.

105. In the present case, I give modest weight to the applicant’s recent co-operation with police but do not discount his sentence at all for the indication of future assistance as it is far too uncertain as to whether it will occur and be of value.

106. The discount of 25 per cent for the applicant’s guilty plea has not been challenged and will be allowed on re-sentence as it indicates the applicant’s willingness to facilitate the course of justice: s 16A(2)(g) of the Crimes Act. The guilty plea is also relevant to the applicant’s remorse which was otherwise expressed in the material tendered before the judge. I accept that he is remorseful and has shown contrition for the offence: s 16A(2)(f) of the Crimes Act.

107. It must not be overlooked that the applicant played a major part in the importation into Australia of 123.4 kilograms of pure cocaine. This was a highly sophisticated international operation. The cocaine was dissolved in an aqueous ethanol solution which was secreted in 42 dozen wine bottles that were part of about 900 cases of Argentinian wine shipped from Chile.

108. The difficulty in detecting such an importation cannot be underestimated and the grave consequences to Australian society that would follow from the imported cocaine being supplied in this country do not need to be detailed. The potential financial rewards from such a large importation were immense. This is a very serious offence.

109. In sentencing the applicant, chief weight is to be given to general deterrence: R v Nguyen; R v Pham at [72]; Wong v The Queen; Leung v The Queen [2001] HCA 64; 207s CLR 584 at [64]. But for the justifiable sense of grievance arising from the sentence imposed upon Rodriguez, I would have no hesitation in concluding that a lesser sentence is not warranted.

110. The question remains whether the applicant’s sentence should be reduced on account of the marked disparity. This Court is not obliged to reduce the sentence to a level that would be regarded as erroneously lenient: Green at [33].

111. Given the objective gravity of the applicant’s offending and the guidepost of the maximum sentence of life imprisonment, the scope for reduction in the applicant’s sentence is limited. I propose that the term of the sentence be reduced by one year.

112. In my respectful opinion, the non-parole period imposed by the judge was particularly generous and any reduction would amount to “an affront to the proper administration of justice”: Green at [33].

113. Accordingly, I propose the following orders:

1. Leave to appeal granted.

2. Appeal allowed.

3. The sentence imposed by Madgwick QC ADCJ is quashed.

4. The applicant is sentenced to a term of imprisonment of 17 years 6 months commencing on 6 December 2012 and expiring on 5 June 2030 with a non-parole period of 11 years, expiring on 5 December 2023.

120. LONERGAN J: I agree with Price J and the orders which he proposes.

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Decision last updated: 20 September 2017