Maldonado v R
[2009] NSWCCA 189
•20 July 2009
New South Wales
Court of Criminal Appeal
CITATION: MALDONADO v R [2009] NSWCCA 189 HEARING DATE(S): 2 June 2009
JUDGMENT DATE:
20 July 2009JUDGMENT OF: Campbell JA at 1; Latham J at 2; Harrison J at 76 DECISION: (i) Leave to appeal granted and appeal allowed.
(ii) Quash the sentences imposed on 18 April 2008.
(iii) On the offence of dealing in money being the proceeds of crime to the value of approximately $600,000:00, the applicant is sentenced to 10 years imprisonment to date from 12 June 2006, expiring 11 June 2016.
(iv) On the offence of dealing in money being the proceeds of crime to the value of approximately $150,000:00, the applicant is sentenced to 8 years imprisonment to date from 12 June 2006, expiring 11 June 2014. A further offence under s 400.5(1) of the Criminal Code Act is taken into account in imposing this sentence.
(v) On the offence of trafficking a commercial quantity of cocaine, the applicant is sentenced to 15 years imprisonment, to date from 12 June 2010, expiring 11 June 2025. A further offence under s 307.9(1) of the Criminal Code Act is taken into account in imposing this sentence.
(vi) On the offence of aid and abet the manufacture of a commercial quantity of cocaine, the applicant is sentenced to 22 years imprisonment, to date from 12 June 2012, expiring 11 June 2034.
(vii) A non parole period pursuant to s 19AB of the Crimes Act of 17 years is imposed, to date from 12 June 2006, expiring 11 June 2023. The applicant is eligible for release to parole on 12 June 2023.CATCHWORDS: CRIMINAL LAW - Sentence appeal - aid and abet manufacture commercial quantity of cocaine - trafficking a commercial quantity of cocaine - money laundering - integral role in commission of offences - error in noting Crown submission as to proposed aggregate sentence and non parole period - material error requiring intervention - parity - manifest excess - appeal allowed. LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)CASES CITED: Baxter v Regina [2007] NSWCCA 237 ; (2007) 173 A Crim R 284
Lowe v The Queen (1984) 154 CLR 606
R v Hoole (unreported) NSWCCA 17 March 1989
Pearce v The Queen (1998) 194 CLR 610
R v Zabul [2001] NSWCCA 455
R v Lam [2003] NSWCCA 162 ; (2003) 140 A Crim R 435
R v Mo (2007) 169 A Crim R 60
R v El Hassan (2003) 141 A Crim R 346
R v Steven James 27 August 2004
R v Chatman 8 September 2000
Mazzitelli v Regina [2002] NSWCCA 436 ; (2002) 135 A Crim R 132
Wilfredo Roland Vasquez-Felipe v R [2006] NSWCCA 411 ; (2006) 167 A Crim R 321
R v Otto [2005] NSWCCA 333
R v Anderson [2004] NSWCCA 317
R v Mascaro-Varillas [2002] NSWCCA 524 ; (2002) 157 A Crim R 355
Ansari v The Queen [2007] NSWCCA 204 ; (2007) 173 A Crim R 112
R v Z [2006] NSWCCA 342 ; (2006) 167 A Crim R 436
R v Guitierrez [2004] NSWCCA 22
R v Capar [2005] NSWCCA 402
Cahyadi v Regina [2007] NSWCCA 1 ; (2007) 168 A Crim R 41
R v Lee [2007] NSWCCA 234
R v Flavel [2001] NSWCCA 227
R v Gonzalez-Betes [2001] NSWCCA 226
R v Campillo Vaquere [2004] NSWCCA 271
R v Bartle & Ors. (2003) 181 FLR 1
R v Suarez-Mejia (2002) 131 A Crim R 564
R v Reaves (2004) 147 A Crim R 26
R v Espiella-Velasco [2006] WACCA 31PARTIES: Cesar Anibal Maldonado (Applicant)
Regina (Respondent)FILE NUMBER(S): CCA 2007/16186008 COUNSEL: JS Stratton SC (Applicant)
WJ Abraham QC (Crown)SOLICITORS: Hardin Law (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/00000599 LOWER COURT JUDICIAL OFFICER: Blackmore SC DCJ LOWER COURT DATE OF DECISION: 18 April 2008
2007/16186008
20 JULY 2009CAMPBELL JA
LATHAM J
HARRISON J
1 CAMPBELL JA : I agree with Latham J.
The applicant seeks leave to appeal against the severity of a number of sentences imposed on 18 April 2008 by Blackmore SC DCJ (the Judge) following pleas of guilty to four offences. The offences and the sentences imposed in respect of each of them are :-
- (i) Aid and Abet the manufacture of a commercial quantity of cocaine (maximum penalty life imprisonment) for which the applicant received a sentence of 22 years imprisonment.
(ii) Trafficking a commercial quantity of cocaine (maximum penalty life imprisonment) for which the applicant received a sentence of 15 years imprisonment.
(iii) Dealing in the proceeds of crime ($600,000:00) (maximum penalty 20 years imprisonment) for which the applicant received a sentence of 10 years imprisonment.
(iv) Dealing in the proceeds of crime ($150,000:00) (maximum penalty 20 years imprisonment) for which the applicant received a sentence of 8 years imprisonment.
3 There were two further offences, namely Possess a marketable quantity of cocaine (21.6gms) and Dealing in the proceeds of crime ($50,000:00), that were taken into account on a schedule. The possess charge, carrying a maximum penalty of 25 years imprisonment, was taken into account when the Judge sentenced the applicant on offence (ii). The dealing in proceeds of crime charge, carrying a maximum penalty of 15 years imprisonment, was taken into account when the Judge sentenced the applicant on offence (iv).
4 A significant measure of accumulation resulted in an aggregate sentence of 36 years, with a non parole period of 22 years.
5 The applicant was part of a group of men who arranged for the extraction of approximately 34 kg of cocaine from 45 bags of imported Lucuma powder (a Peruvian fruit) in early 2006. The applicant’s role included ensuring the rented factory premises were suitable for the extraction process, negotiating the rent with the owner of the factory premises (Weterings) and arranging for the payment of that rent. The applicant, with two others, transported the chemicals necessary for the extraction to the factory and supplied provisions to the men undertaking the extraction. The applicant visited the factory a number of times, paid Weterings an extra sum of money, and took away a quantity of cocaine and the residue from the extraction process. A number of telephone intercepts established that the applicant was a trusted deputy of the syndicate’s principal. The applicant was integrally involved at all stages of the importation, manufacture and supply of the cocaine.
6 The applicant contends that the sentences were individually and collectively manifestly excessive. In relation to the sentences imposed for the individual offences, the applicant also raises a parity issue on the basis of the sentences imposed upon his co-offenders. A further ground, which asserts that the sentence proceedings miscarried because the Judge mistakenly recorded a submission made by the Crown, is pressed independently of the manifest excess ground. It is convenient to deal with that ground first.
The Sentence Proceedings
7 During submissions on sentence on 7 February 2008, senior counsel for the applicant proposed an aggregate sentence of 20 years imprisonment with an aggregate non parole period of 12 years. Immediately thereafter, the Judge queried whether it was possible in Commonwealth matters to impose a determinate non parole period where a sentence of life imprisonment was imposed, commenting that “that may or may not be in prospect”.
8 The Crown representative disavowed any submission that a life sentence was appropriate, primarily on the ground that the aggregate sentences received by the co-offenders required a proportionate response. The Judge noted the Crown’s position, but went on to say :-
- This man was involved in four distinct aspects of this, different to everybody else involved. He was involved as a reasonably significant player in the production of 30 kg of cocaine. He was involved in a very significant sale of 6 kg of the drug. Both of those offences carry life imprisonment. He did so in circumstances where he’s previously been sentenced to 12 years in jail for drug importation. In addition to that he has laundered money to an overseas source who must be regarded as a principal. General deterrence in those sorts of cases would demand a very significant sentence. All knowingly done. The fourth offence perhaps isn’t as significant but those three offences are, taking them to my mind, well away from anybody else that I've looked at, and the accumulation of sentence must recognize those facts.
9 The Crown agreed with these remarks. A short time later, the Crown submitted that "given the principles of parity and a plea of guilty at the earliest opportunity" an appropriate aggregate sentence would be a minimum of 22 years with an aggregate non-parole period of 13 or 14 years. Following some further remarks by the Crown in relation to the applicant's co-offenders, his Honour said :-
- But none of these other offenders have been sentenced in respect of the second matter. As I said to your opponent, in my view, it's probably the most serious matter that he is facing. The trafficking matter. To traffic 6 kg of the drug having previously been in jail for trafficking a drug is a very serious offence and it raises the prospect of receiving the maximum penalty. I'm not suggesting he is necessarily going to get it, but in combination with all of these other factors it doesn't seem to me necessarily to be removed as a possibility. …………………………………………………
I'm only throwing these things out, I'm not trying to say that I have made up my mind about these, I haven't at all. I just wanted to have this sort of debate about the sentence because it is a particularly serious offence involving, as it does, not simply involvement in one aspect of -- which is often the case – one aspect of the drug trade, but he has involved himself in every aspect of the drug trade. Admittedly not as a principal, but as perhaps the second, the third in command, or something of that sort, but obviously somebody who is well ingrained inside the organisation, not at the bottom of the range, not absolutely the top of the range, but certainly somebody for whom our community wants to assume that if they are detected they are going to get a very, very significant sentence because general deterrence demands that much. ……………………………………….
And I just cannot see for the life of me that 14 years as a non-parole period is going to register that sort of disapproval that I'm talking about, and the parity issues just don't really exist, they are illusory.
10 Further discussion between the Crown and the Judge centred on “whether it would be appropriate to impose life”. At the end of the Crown’s submissions, the Judge said “I mean ultimately there is not that much between you from what you’ve said, a non parole period of 14 or 12.” The Crown remarked a short time later, “obviously it is a matter entirely for your Honour, but I have regarded the sentences imposed on the co-offenders as a significant matter in determining whether an even higher sentence than say 22 with 14 on the bottom is appropriate.”
11 When senior counsel for the applicant responded, the Judge accepted that he should not impose a life sentence in opposition to the Crown’s submission.
12 This aspect of the submissions was reflected in the remarks on sentence, delivered on 18 April 2008, to the extent that the Judge noted that :-
- there was some debate during the proceedings as to whether the offences were ones that should be placed in the most serious category, requiring the imposition of a life sentence with respect to two of them. However, the Crown did not submit that such a penalty is appropriate and of course counsel for the offender submitted that it should not be applied. I will say no more about the debate and I will not apply such a sentence in this case.
13 The Judge then referred to the applicant's personal circumstances and to the fact that the applicant did not suffer any major health issues, or mental health issues. The following appears thereafter :-
- He is understandably anxious to know his future, although he could have been under no misunderstanding that it is likely that he will spend a significant part of the rest of his life in custody. In that regard, the Crown submitted in sentencing proceedings that I would impose a minimum term of something like 22 years imprisonment with an additional term of between 12 and 14 years .
14 The Judge then reviewed the sentences imposed on the co-offenders and concluded that :-
- whilst they provide some assistance as to the level of sentence to be imposed, that assistance is minimal in the determination of the sentences to be imposed on the offender. The principal consideration in this offender’s case is what should be the total sentence imposed. The offender's activity, whilst involving the commission of separate offences, can legitimately be seen as one series of logical steps being taken by a person who was involved in the manufacture of drugs, knowing that the precursor had been imported, through to the selling of those drugs and the laundering of the proceeds of the drugs overseas. That is not to say that the sentences imposed here could or should be concurrent. In my view they are separate offences and will require some degree of accumulation. On the other hand, any significant accumulation of the penalties could easily lead to a disproportionately long sentence when totality is considered.
15 An aggregate sentence of at least 48 years was nominated by the Judge as a starting point had the matters gone to trial. Immediately thereafter, the Judge said that the applicant's early pleas of guilty called for the application of a 25% discount on “the sentence” that might otherwise have been imposed. Following a discussion about the proportion between the non-parole period and the parole order, the Judge proceeded to sentence the applicant on the individual offences.
16 The aggregate sentence of 36 years represents a 25% discount on 48 years, suggesting that the discount was applied to the nominal aggregate sentence and not to the individual sentences imposed. This conclusion is fortified by the fact that sentences of 22, 10 and 8 years can only be reached after the application of a 25% discount to 29 years 4 months, 13 years 4 months, and 10 years 8 months respectively. It seems unlikely, in my view, that sentences of this nature were adopted by the Judge as “starting points”. Application of the discount to an aggregate sentence does not, strictly speaking, conform to the requirements of Pearce v The Queen (1998) 194 CLR 610, and presents some difficulties for the applicant's argument on the parity ground and the manifest excess ground.
17 It is however obvious from these extracts that the Judge’s reference during the remarks on sentence to the Crown’s submission on the issue of aggregate sentence misrepresented that submission. The error was brought to the Judge’s attention by the applicant’s representative as soon as the remarks concluded. Counsel repeated the Crown submission that 22 years was the proposed aggregate sentence, with a 12 to 14 year non parole period. His Honour then said :-
- It’s not the way I noted it, but if that's what the Crown thought was appropriate then I am completely against both of you. You will have to go to the Court of Criminal Appeal and see whether they agree with you. In my view, 12 years would be totally inappropriate, and I ask that those further remarks be taken included with the sentence judgement.
Material Error
18 The applicant concedes that the Judge was not bound by the Crown’s submission on the appropriate range of sentence. However, it is submitted his Honour obviously took into account, and was strongly influenced by, his recollection of the Crown’s submission, given the correspondence between the sentence imposed and the incorrect notation. Thus, it is said that the sentence proceedings were infected by error.
19 Mere identification of an error in the sentencing proceedings is not sufficient to enliven s 6(3) of the Criminal Appeal Act 1912. The error must be a material error, that is, not technical or trivial in nature. If it has the capacity to infect the exercise of the sentencing discretion, this Court has an obligation to re-exercise that discretion and substitute another sentence, unless satisfied that no lesser sentence is warranted in law. It is not necessary for the applicant to persuade the Court that the sentences are manifestly excessive before he may succeed on this ground : Baxter v Regina [2007] NSWCCA 237 ; (2007) 173 A Crim R 284.
20 The error in this case may be regarded as analogous to the application of an erroneous maximum penalty, in so far as an inference is available that the Judge’s sentencing discretion was exercised, in a significant respect, having regard to the error. At some stage between 7 February and 18 April 2008, the Judge was considering the sentences to be imposed upon the basis that the Crown proposed a 36 year aggregate sentence, although that was never the case.
21 Regardless of the misunderstanding as to the Crown’s submission, it is clear from the exchanges between senior counsel and the Judge on 7 February that the Judge’s preliminary view of the applicant’s criminality was that it was considerably greater than the Crown submissions suggested. Most of the discussion initiated by the Judge centred on the potential imposition of a life sentence. Whilst he accepted that the Crown did not support that outcome, the Judge obviously had in mind an aggregate sentence of more than 22 years. Nonetheless, it is questionable whether, absent the error, an aggregate sentence 14 years higher than that proposed by the Crown would have been imposed. Accordingly, it is open to the Court to conclude that the error was material.
22 The applicant has made good this ground of the appeal. I defer a consideration of whether a lesser sentence is warranted in law pending the outcome of the remaining grounds of appeal.
The Parity Ground
23 There were a number of co-offenders who were sentenced by different judges for their respective part in aiding and abetting the manufacture of cocaine, possessing cocaine for the purposes of supply, and money laundering. The applicant claims that the nature of these offences and the subjective circumstances of each offender allow a meaningful comparison to be drawn between the sentences imposed upon those co-offenders and the sentences imposed upon the applicant. That comparison, it is submitted, gives rise to a disparity in each case that satisfies the test in Lowe v The Queen (1984) 154 CLR 606.
24 The Judge spent some time in the course of the sentencing proceedings considering the question of parity. It has already been noted that the Judge ultimately considered the sentences imposed upon the co-offenders to be of minimal assistance. In summary, the Judge said :-
- None of the other participants identified in the facts who have been dealt with committed the combination of offences carried out by this offender, or had been previously convicted of a large drug importation offence. Whilst the roles of some of the offenders might be able to be equated with respect to individual offences, at least to some extent, even in that regard there are clear differences. It was submitted that the trafficking case might be compared to the case of Carlos Garcia Sevantes (sic), but with respect, the facts were quite different. Carlos Garcia appears to have been warehousing drugs on behalf of others. He was caught in possession of some 5 kg of cocaine. The offender’s role in trafficking appears to be more significant. He was controlling both large quantities of drugs and receiving money from the sale of those drugs. He was apparently acting as a large-scale drug seller, even though it is also apparent that he was doing that at the behest of other people. There are also significant differences between the offender and Carlos Garcia. Garcia was 23 years of age at the time of the offence, with no convictions whatsoever. He pleaded guilty in the Local Court and received a discount of 25% on sentence. His total sentence was nine years imprisonment with a six-year minimum.
Another offender specifically referred to on sentence was the man Weterings. It was he who provided the factory unit for the washing of the drugs. He did so knowing that the drugs were in effect being manufactured in that unit. He received a sentence of seven and a half years imprisonment with a non-parole period of four and a half years, but in that case the sentencing judge allowed him a discount of 40% due to his plea and assistance. Again, in my view, his role was vastly different to the role played by this offender, and whilst views might differ, in my view it was less significant.
25 The Judge indicated that, in addition to these two co-offenders, he had reviewed each of the remarks on sentence in relation to the co-offenders Julian Galego Lavelle, Jose Louis Acosta and Marie Simona Maldonado (the offender's wife). It is not submitted that any part of what the Judge expressed above is inaccurate. Rather, the submission is that the differences cannot explain the magnitude of the departure from the individual sentences imposed upon the relevant co-offenders.
26 The comparison now sought to be drawn by the applicant, between the sentence imposed on the applicant and that imposed upon the co-offender Weterings for the offence of aid and abet manufacture of commercial quantity of cocaine (34 kgs in each case), relies in part on a starting point of 29 years for the applicant, on the basis that the 25% discount was applied to the individual sentence. However, it does not appear that the Judge approached the sentence in that way.
27 No complaint is made about the Judge’s finding that this offence, albeit not at the top of the range, was “in the upper range of seriousness”. Nor is it submitted that the Judge’s assessment of the applicant’s criminality in respect of this offence erred in some respect. The Judge referred to the extremely large quantity involved, the fact that the applicant entered into the project knowing that the precursor materials had been imported from overseas, and the fact that the applicant had previously been convicted of a large-scale importation of cocaine and had served a lengthy period of imprisonment, having been released in late 1997.
28 Taking these matters into account, and having regard to the application of the discount to the aggregate sentence in the applicant’s case, the better analysis is that there was no “starting point”. A sentence of 22 years was thought to be appropriate to reflect the applicant’s criminality on this count, whereas a sentence of 12 and half years was considered appropriate in the case of Weterings, before the application of a discount of 40%. Thus, the alleged disparity resides in a sentence almost twice the length of the nominal sentence imposed upon Weterings, not three times greater, as the applicant submitted.
29 Some of the relevant factors that distinguish the applicant from Weterings are only obliquely mentioned by the Judge, when concluding that Weterings’ role was vastly different to that of the applicant. Weterings was introduced to the syndicate in mid-January 2006 and was arrested on 12 June 2006. The sentencing judge found that the offender was aware from the outset of the syndicate’s operation within his premises. He purchased a quantity of alcohol to be used in the extraction process, together with other items of hardware, on the instructions of others. In terms of this offender’s criminality, the sentencing judge found that "he was not the organiser or importer of the drugs and had nothing to do with the planning. But his limited role, as set out, was described as ‘significant’ in that it allowed the cocaine production operation to continue for 10 weeks and produced 30 kg of cocaine.” Weterings had a minor criminal history for property offences and had never served a term of full-time imprisonment. He suffered from a number of health problems of an ongoing nature.
30 On the basis of these factors alone, there was ample justification for a sentence, on the most serious of the applicant’s offences, that was significantly greater than that imposed upon Weterings. Given the pivotal role played by the applicant in the enterprise and his criminal history, I am not persuaded that a sentence of 22 years is so disparate that it would engender in a reasonable person a justifiable sense of grievance.
31 On the charge of trafficking in a commercial quantity of cocaine (6 kgs), the applicant sought to establish disparity with Carlos Cervantes. However, Cervantes was charged with and sentenced for possession of a commercial quantity of cocaine, on the basis of his storage of 5.6 kgs of the drug for on-sale. Admittedly, this offence and the applicant’s offence carry the same maximum penalty, but there the similarity ends. Cervantes was described by the sentencing judge as “at least” in the middle of the drug trafficking hierarchy, having been recruited for the warehousing role by the applicant. A sentence of 9 years imprisonment, with a non parole period of 6 years, was imposed, after taking into account an early plea of guilty and prior good character.
32 Once again, taking into account the applicant’s senior role in the hierarchy, the fact that he was sentenced on the basis that he organised and controlled the supply of the cocaine into the community through a network of dealers, the fact that a further serious offence carrying a maximum penalty of 25 years imprisonment had to be reflected in the sentence on this charge, and the applicant’s prior criminal history, I am not persuaded that the parity principle has any role to play in respect of the sentences imposed upon the applicant and Cervantes. The Judge was alive to these differences and sentenced accordingly.
33 That leaves the two money laundering charges. The amount of money the subject of count (iii) was more than $600,000:00. The applicant was recorded in a telephone conversation on 10 April 2006 confirming that he had given $740,000 to two co-offenders for the purposes of remitting money overseas. The amount of money the subject of count (iv) together with the offence on the schedule was $200,000:00. Similar conversations occurred in relation to the transfer of money, being the proceeds of cocaine sales, on 1 and 12 June 2006. Whilst these offences consist of discrete episodes of criminality, the Judge imposed wholly concurrent sentences on the basis that the offences involved "the same activity committed around the same time with respect to the same general pool of money which had in turn been obtained from the sale of the same original quantity of drugs."
34 The applicant seeks to compare the sentences of 10 years and 8 years respectively with the sentences imposed on the applicant's co-offenders, namely, Julian Lavalle, Jose Acosta and Maria Maldonado, with particular reliance on Lavalle.
35 The co-offender Lavalle was sentenced in relation to two counts of dealing with money being the proceeds of crime in the total sum of $450,000:00. A further offence related to possessing money reasonably suspected of being proceeds of crime in the sum of $38,900. Lavalle was said to be central to the movement of money from Australia to South America. He was convicted after a long trial but had no prior criminal record. He was sentenced to an overall sentence of 8 years and 8 months. It is pertinent to note that one offence carried a maximum penalty of 10 years imprisonment, another offence carried a maximum penalty of 20 years imprisonment, and the possession count carried a maximum penalty of 2 years imprisonment. The sentences imposed on each charge were entirely concurrent, but for a period of two months.
36 The co-offender Acosta pleaded guilty to dealing with money being reckless as to the fact that it was proceeds of crime. It carries a maximum penalty of 10 years imprisonment. The charge related to the sum of $335,000:00. His role was below that of Lavalle. Acosta also had no prior criminal history. He received a sentence of 4 years and 3 months.
37 Maria Maldonado pleaded guilty to three counts of money laundering to the total value of $480,000:00. Two offences carried a maximum penalty of 10 years imprisonment, while the third carried a maximum penalty of 20 years imprisonment. She had no criminal history. Mrs Maldonado received a total sentence of 6 years and 6 months imprisonment.
38 It is evident that all of these co-offenders were sentenced in respect of only one offence carrying a maximum penalty of 20 years imprisonment, and absent further offences on a schedule. The applicant faced two offences, each carrying a 20 year maximum penalty, together with the offence on the schedule which carried a 15 year maximum penalty. For these reasons alone, parity ceases to have any real significance. In any event, I reject the proposition that the Judge must be taken to have commenced the sentencing exercise on these counts at 14 years and 12 years respectively, for the same reasons outlined at [15]. In addition, the particular relevance of the applicant’s criminal history and the considerably greater sum of money comprehended by the applicant’s offences distinguish him markedly from these co-offenders.
39 Before leaving this ground, reference ought be made to a submission by the Crown that a comparison between co-offenders who are sentenced in relation to some, but not all, of a number of offences was of little value. Reliance was placed on R v Hoole (unreported) NSWCCA 17 March 1989, in particular the following aspect of Hunt CJ at CL’s judgment:-
- Whenever a judge has to sentence an offender in relation to multiple offences, it is necessary for him to ensure that the total head sentence which he imposes does not exceed the period which is appropriate to the overall criminality involved in all of those offences. It does not usually matter how that total head sentence is made up . Sometimes, it is appropriate to telescope the individual terms so that the total when they are added together does not exceed the appropriate figure ; sometimes, it is appropriate to make concurrent some or all of the individual terms where otherwise they may have been ordered to be served cumulatively.
For those reasons, where two or more offenders are sentenced in relation to multiple offences (whether by the same or different judges), and where they are co-offenders in relation to some but not all of the multiple offences for which each was sentenced, there is little if any value in attempting to compare the individual sentences imposed upon the different offenders in relation to the same offence.
40 These remarks preceded the High Court’s decision in Pearce v The Queen by almost ten years. In the light of that decision, I doubt that the italicised passage from Hoole is still good law. Given that it is a discredited approach to sentencing for multiple offences that informed the conclusion in the second paragraph of Hoole above, this aspect of the decision is no longer persuasive.
41 I am mindful of the decision in R v Zabul [2001] NSWCCA 455 where Wood CJ at CL and Grove J applied the second paragraph from Hoole, set out above, in circumstances where three co-offenders received the same effective sentence for a series of armed robberies, although each of them were sentenced for a different number of offences, and one of the co-offenders was on a bond at the time. Zabul is the only post-Pearce decision of this Court that refers to this aspect of Hoole with approval. However, the Court was considering a parity argument based upon the aggregate sentence in each case, not one that sought to compare the individual sentences imposed in respect of each offence that was common to the three co-offenders. That may explain why there was no reference to Pearce v The Queen.
42 Ultimately, the Court in Zabul determined that any reduction in the sentence of the offender, assuming that disparity existed, would result in an inadequate sentence. That is the matter of principle for which Zabul stands : see R v Lam [2003] NSWCCA 162 ; (2003) 140 A Crim R 435.
43 In those circumstances, I would not approach the resolution of this ground in the manner suggested by the Crown. However, the applicant’s argument on this ground has no merit.
Whether the Sentences are Individually Manifestly Excessive.
44 Senior counsel for the applicant argued that the cases relied upon by the Crown during the sentence proceedings, for the purposes of inviting a comparison between the criminality of the applicant and the criminality disclosed by those cases, are themselves indicative of the manifestly excessive sentences passed in the applicant’s case. They are all cases concerning the importation of, or possession of, or attempting to possess, or conspiracy to import a commercial quantity of cocaine or heroin. They bear some relationship to the applicant’s offences in so far as an amount in excess of 2 kg of the relevant drug was imported in each case, and was in various stages of distribution. The maximum penalty in each case was life imprisonment.
45 The fact that the applicant was charged with a relatively new offence (manufacture), which captures the extraction of a drug from another substance after importation, is not a meaningful point of departure. However, as I have already noted, a fundamental and flawed step in the applicant’s argument is a “starting point” for the manufacture offence of 30 years, and for the trafficking offence, a “starting point” of 20 years.
46 An examination of those cases and others, where the circumstances of the offending correspond most closely with that of the applicant, tends to undermine this ground. Dealing first with the manufacture offence, and leaving to one side Crown appeals (R v Mo (2007) 169 A Crim R 60 ; R v El Hassan (2003) 141 A Crim R 346), the applicant’s submissions refer to two District Court sentences, R v Steven James 27 August 2004 and R v Chatman 8 September 2000.
47 The former was characterised as a middleman, involved in planning and financing a conspiracy to import 30 kgs of cocaine. James had a prior conviction in the USA for possessing 2 kg of cocaine. After a plea of guilty and the provision of assistance, together justifying a 50% discount, James was sentenced to 10 years imprisonment. Two factors are relevant to the comparison – James was not considered a senior player in the hierarchy and the offence was not complete. Notwithstanding these differences, a sentence of 20 years imprisonment before the application of the discount in James’ case suggests that there is nothing remarkable about the applicant’s sentence for an offence that resulted in the distribution of cocaine into the community.
48 Chatman is hardly a relevant comparator. He had no relevant criminal history, played a minor role as an electrician who was to be paid for opening an autoclave machine in which the cocaine had been imported, and was sentenced for attempting to possess a commercial quantity (17 kgs) of cocaine, after pleading guilty and offering assistance.
49 In Mazzitelli v Regina [2002] NSWCCA 436 ; (2002) 135 A Crim R 132, the offender (a co-offender of Chatman) was convicted after trial on a count of being knowingly concerned in the importation of a commercial quantity of cocaine (17 kgs). Mazzitelli had an important role in arranging for the importation of the autoclave machine, although he was not responsible for planning the enterprise. He had no relevant criminal history and had never been in custody. This Court held that a sentence of 19 years and 8 months, after adjustment in accordance with s 16G of the Crimes Act 1914 (Cth), was not excessive. Relevantly, the Court remarked that a “starting point” of 28 years was not excessive. Once again, far from assisting the applicant, this decision supports the Crown’s contention that the sentence was well within range.
50 One further decision is worthy of note. In Wilfredo Roland Vasquez-Felipe v R [2006] NSWCCA 411 ; (2006) 167 A Crim R 321, this Court dismissed an appeal against a sentence of 12 years and 6 months for an offence of aid and abet the importation of a commercial quantity of cocaine (3.7 kgs). The offender pleaded guilty and had no relevant prior criminal history. He managed the importation of a number of suitcases, the lining of which consisted of a resinous substance. The offender then oversaw the extraction of the cocaine from the resin. The sentence was imposed after the application of a discount of 30% to a “starting point” of 18 years. The criminality of this offender mirrors the applicant’s criminality to a significant degree. When one factors in the applicant’s involvement in the importation of almost 10 times the quantity of cocaine, there is no scope for complaint.
51 I turn to the applicant’s argument with respect to the trafficking offence. The applicant refers to four District Court matters between 2003 and 2006. Three of them involve the possession or importation of lesser quantities of cocaine (between 1.5kgs and 4.15kgs) than the applicant’s case (6kgs). The remaining matter involved the possession (not trafficking) of 8kgs of cocaine by a person of prior good character. One other of the four offenders was of prior good character, while the other two had criminal records unrelated to drug offences. Bearing in mind those factors, the sentences ranged between 6 years, for attempting to possess 1.5kgs (a traffickable quantity), and 12 years 6 months, for possessing 8kgs. In my view, these decisions do not demonstrate that a sentence of 15 years for the trafficking of 6kgs of cocaine, taking into account a further offence of possession, and the applicant’s criminal history, was outside the Judge’s sentencing discretion.
52 In R v Otto [2005] NSWCCA 333, this Court substituted a sentence of 10 years and 6 months in lieu of a sentence of 14 years and 6 months for the importation of just over 2 kgs of cocaine. The offender had worn a corset under his clothing containing the cocaine. He had no criminal history and pleaded guilty at the Local Court. In R v Anderson [2004] NSWCCA 317, the Court dismissed an appeal against a sentence of 14 years for being knowingly concerned in the importation of 7.55kgs of cocaine. The offender was one of three men who boarded an aircraft with blocks of cocaine strapped to their bodies. That sentence was imposed after trial and after adjustment in accordance with s 16G of the Crimes Act 1914. That suggests a sentence of about 20 years imprisonment since the repeal of s 16G.
53 In R v Mascaro-Varillas [2002] NSWCCA 524 ; (2002) 157 A Crim R 355, a sentence of 15 years imprisonment was upheld for an offence of being knowingly concerned in the importation of 2.9 kgs of cocaine, after a plea of guilty. This was a sentence imposed before the repeal of s 16G, indicating a starting point of about 22 years. The offender was a principal with no prior criminal history.
54 The above examples are but a rough guide to the range of sentences imposed for Commonwealth offences dealing with quantities of cocaine between 2kgs and 10kgs. Direct comparison with sentences imposed for trafficking in a commercial quantity of cocaine under the Criminal Code Act 1995 (Cth) cannot be made, owing to the absence of reported cases. The Crown did not refer the Court to particular cases, either in NSW or elsewhere, in answer to the applicant’s argument on this ground. Notwithstanding the limitation on the above analysis, the range of sentences imposed in the cases to which the applicant referred are entirely consistent with the sentence imposed on the applicant for the trafficking offence, together with the offence on the schedule. In particular, Anderson and Mascaro-Varillas do not support the applicant at all.
55 The criminality of the applicant in the commission of this offence went well beyond the importation and possession of the cocaine. The Judge recorded in his sentencing remarks the circumstances surrounding the commission of this offence. In brief, once the cocaine had been extracted, it was stored in an apartment in Campsie, from which it was sold by the applicant via a network of dealers who were in regular contact with a co-offender. Moreover, the 5 kg of cocaine found in the apartment on 12 June 2006 was of a different origin to the cocaine extracted from the Lucuma powder.
56 There was evidence from telephone intercepts of the applicant's mobile phones indicating that between 10 April and 2 June 2006, the applicant was actively trading cocaine and accounting for the proceeds of sale to other offenders. During the applicant's interview on 12 June 2006 he admitted that between the middle of April and the beginning of May 2006, he sold 4 kg of cocaine to a Lebanese man and 1 kg to a Chinese man, each kilogram selling for $150,000, for which the applicant received a commission of $25,000. This offending called for a considerable term of imprisonment in its own right. For my part, I regard the Judge’s finding that this offence fell in the middle of the range of objective seriousness as a generous one.
57 The Judge also considered the money laundering offences as mid-range. No complaint is made about that characterisation of the offences. Sentences of 10 years and 8 years imprisonment are consistent with this finding. I do not accept that the Judge adopted a “starting point” of approximately 14 years and 12 years respectively.
58 The decision of Ansari v The Queen [2007] NSWCCA 204 ; (2007) 173 A Crim R 112, cited by the applicant on this ground, is distinguishable on the basis that it was a Crown appeal, but more importantly, the offenders in that case were convicted of offences each carrying a maximum penalty of 12 years imprisonment. Whilst the amount of money involved in that case exceeded one million dollars, the mental element was one of recklessness, not intention. R v Z [2006] NSWCCA 342 ; (2006) 167 A Crim R 436 also concerned an offence carrying a maximum penalty of 12 years imprisonment and was a Crown appeal.
59 In R v Guitierrez [2004] NSWCCA 22, the sentence initially determined for an offence of dealing in proceeds of crime in excess of $100,000:00 was 7 years. That sentence was then reduced in compliance with s 16G and by a further 15% for assistance. When seen in that light, the applicant’s sentences for laundering considerably larger sums of money do not seem excessive.
60 Cahyadi v Regina [2007] NSWCCA 1 ; (2007) 168 A Crim R 41 is not an appropriate case for comparison. The two offences the subject of appeal in that case carried a maximum penalty of 2 years and 15 years respectively. Both offences concerned a total of $240,000:00.
61 The sentence for one count of money laundering in the sum of $319,000:00 in R v Capar [2005] NSWCCA 402 was not in issue on the appeal. The sole ground was alleged error in the discount for the plea of guilty. A sentence of 6 years and 9 months was not disturbed by the Court. Like Guitierrez, this appears wholly consistent with the applicant’s sentence for one offence involving a much larger sum of money and with the sentence for another offence, which took account of an additional money laundering offence on a schedule.
Whether the Sentences are Collectively Manifestly Excessive.
62 The method of accumulation reveals that the applicant is to serve 14 years imprisonment before the sentence for the manufacture offence commences. The sentences for the money laundering offences commenced on the day the applicant was taken into custody (12 June 2006) and the sentence for the trafficking offence starts 5 years later. In effect, the applicant will serve a non parole period equal to the whole of the sentence for the manufacture offence.
63 This measure of accumulation must be considered against the background of the following remark by the Judge :-
- The offender’s activity, whilst involving the commission of separate offences, can legitimately be seen as one series of logical steps being taken by a person who was involved in the manufacture of drugs, knowing that the precursor had been imported, through to the selling of those drugs and the laundering of the proceeds of the drugs overseas. …. In my view, they are separate offences and will require some degree of accumulation. On the other hand, any significant accumulation of the penalties could easily lead to a disproportionately long sentence when totality is considered.
64 There is no doubt that the applicant’s offences were very serious and that very little, if any, leniency could be extended to him in circumstances where a previous term of imprisonment for a like offence had done nothing to deter him. Both general and specific deterrence were important factors in the overall sentence to be imposed. Of particular relevance to the degree of accumulation is the fact that some of the cocaine, the subject of the trafficking charge, was not sourced from the product of the importation. The trafficking and the manufacture offence each carried a maximum penalty of life imprisonment. The Judge was correct to regard the range of aggregate sentence and aggregate non parole period suggested by the parties as an inadequate reflection of the totality of the applicant’s criminality.
65 The applicant and the Crown were unable to point to any other case of multiple offences of this nature. The applicant’s submission on this ground does however gain strength from the Judge’s error in the transcription of the Crown’s submission. The sentencing discretion has miscarried in the House v The King (1936) 55 CLR 499 sense, once it is accepted that the Judge took into account an erroneous consideration.
66 In R v Lee [2007] NSWCCA 234, McClellan CJ at CL, with whom Howie J and Hall J agreed, had regard to a schedule of national cases that were provided by the Crown, relating in part to the importation of cocaine above the commercial quantity. A perusal of that schedule at [36] reveals a number of offenders who received non parole periods ranging from 13 years to 26 years, and head sentences of between 18 years and life, for offences relating to the importation of quantities of cocaine ranging between 77kgs and 707kgs. Obviously, the quantity of the drug was but one factor in the assessment of criminality. The role of the offender in the importation was also of considerable importance. These sentences were imposed on offenders whose role was variously described as “important”, “mid-level executive”, “leading organiser”, “substantial”, “significant”, “crucial” and “critical”. Some had prior relevant convictions.
67 Of immediate relevance are the cases of R vFlavel [2001] NSWCCA 227, R vGonzalez-Betes [2001] NSWCCA 226 and R vCampillo Vaquere [2004] NSWCCA 271. These three offenders were all involved in the importation of 172kgs of cocaine on a yacht from South America. They each played an important role in the organisation and supervision of the importation. Campillo Vaquere had a prior drug conviction. A life sentence was imposed in each case with non parole periods between 22 and 25 years for a single offence of importation.
68 Similarly, in R v Bartle & Ors. (2003) 181 FLR 1, two offenders who played leading organisational roles in the importation of 383kgs of cocaine on a vessel from Bora Bora via New Zealand, and who had previous drug convictions, received a life sentence with a non parole period of 25 years.
69 In R vSuarez-Mejia (2002) 131 A Crim R 564, R vReaves (2004) 147 A Crim R 26 and R v Espiella-Velasco [2006] WACCA 31, three co-offenders, each with prior drug convictions and each with a pivotal role in the importation of 707kgs of cocaine from the US by ship, each received a life sentence with a non parole period between 18 and 26 years.
70 True it is that these offenders were sentenced in respect of one offence, but these cases provide some insight into the criminality inherent in a non parole period in the order of 22 years. Given the magnitude of these importations, it is difficult to maintain that the criminality of the applicant, even allowing for the combination of offences, is on par with these examples. In addition, the Judge was ultimately persuaded that a life sentence was not appropriate, but then proceeded to impose a non parole period that is generally consistent with such a sentence.
71 For these reasons, I have come to the view that the aggregate sentence and non parole period are manifestly excessive. The degree of accumulation requires some re-adjustment, although I would not be disposed to reduce the aggregate sentence to the level submitted by the Crown at first instance. The applicant’s criminality was greater than that submission suggested.
Re-Sentencing
72 An affidavit was received by the Court in the event that the applicant was re-sentenced. It establishes that the applicant is currently held at Lithgow and has undertaken vocational training. He is employed in a responsible position and has not had any disciplinary action taken against him.
73 The applicant is presently 52 years of age and has been a resident of Australia since he was 17 years of age. He has always been gainfully employed. His personal circumstances are unremarkable. He is of sound health, and has been separated from his wife of 23 years (a co-offender) for a number of years. There are three children of the relationship, who remain supportive of the applicant.
74 The Judge fixed a non parole period at about 60% of the aggregate sentence on the basis that the applicant would be elderly upon his release. There is no reason to depart from that proportion, given that the applicant will serve a very lengthy, albeit reduced, aggregate sentence.
75 I propose the following orders :-
- (i) Leave to appeal granted and appeal allowed.
(ii) Quash the sentences imposed on 18 April 2008.
(iii) On the offence of dealing in money being the proceeds of crime to the value of approximately $600,000:00, the applicant is sentenced to 10 years imprisonment to date from 12 June 2006, expiring 11 June 2016.
- (iv) On the offence of dealing in money being the proceeds of crime to the value of approximately $150,000:00, the applicant is sentenced to 8 years imprisonment to date from 12 June 2006, expiring 11 June 2014. A further offence under s 400.5(1) of the Criminal Code Act is taken into account in imposing this sentence.
(v) On the offence of trafficking a commercial quantity of cocaine, the applicant is sentenced to 15 years imprisonment, to date from 12 June 2010, expiring 11 June 2025. A further offence under s 307.9(1) of the Criminal Code Act is taken into account in imposing this sentence.
(vi) On the offence of aid and abet the manufacture of a commercial quantity of cocaine, the applicant is sentenced to 22 years imprisonment, to date from 12 June 2012, expiring 11 June 2034.
(vii) A non parole period pursuant to s 19AB of the Crimes Act of 17 years is imposed, to date from 12 June 2006, expiring 11 June 2023. The applicant is eligible for release to parole on 12 June 2023.
I agree with Latham J.
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