Munoz v The Queen
[2020] VSCA 296
•23 November 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0038
| JAVIER CARO MUNOZ | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 23 November 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 296 |
| JUDGMENT APPEALED FROM: | [2020] VCC 50 (Judge Carmody) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 278 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Leave to appeal – Sentence – Attempted importation of commercial quantity of border controlled drug – Possession of unlawfully imported border controlled drug – Dealing in proceeds of crime worth $1,000 or more – Total effective sentence of 9 years and 3 months’ imprisonment with non-parole period of 6 years and 3 months – Three co-offenders received lesser total effective sentences – Principal offender received lesser sentence on proceeds of crime charge – Whether unjustifiable disparity in sentence between applicant and co-offenders – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
WEINBERG JA:
On 16 September 2019, a day after trial was listed to commence, the applicant, Javier Caro Munoz, pleaded guilty in the County Court at Melbourne to one charge of attempting to import a commercial quantity of a border controlled drug (cocaine), one charge of possessing a border controlled drug reasonably suspected of having been unlawfully imported (cocaine), and one charge of dealing in proceeds of crime worth $1,000 or more. Three other co-offenders, Federico Escheverri Salazar, Jacopo Palmisano, and David Gutierrez Carmona (‘Gutierrez Carmona’), also entered pleas of guilty on that day.
A plea hearing was conducted on 21 November 2019. On 3 February 2020, the judge sentenced the applicant as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Attempt to import a commercial quantity of a border controlled drug (cocaine) [ss 11.1(1) and 307.1(1) — Criminal Code (Cth)] Life 8 years and 6 months Base
Commenced 3 February 2020
2 Possess a border controlled drug (cocaine) reasonably suspected of having been unlawfully imported [s 307.10(1) — Criminal Code (Cth)] 2 years 2 months 1 month (on charge 1)
To commence 3 July 2028
3 Dealing in proceeds of crime worth $1,000 or more [s 400.7(1) —Criminal Code (Cth)] 5 years 15 months 8 months (on charge 2)
To commence 3 February 2028
Total effective sentence: 9 years and 3 months’ imprisonment Non-parole period: 6 years and 3 months Pre-sentence detention declared: 697 days Section 6AAA statement: 12 years and 6 months’ imprisonment with a non-parole period of 9 years
By notice dated 3 March 2020, the applicant seeks leave to appeal against his sentence on the following ground:
The learned sentencing judge erred in his application of the parity principle in that he imposed a sentence upon the applicant that was so markedly different from that imposed on his co-offenders Federico Salazar, Jacopo Palmisano and David Carmona, as to give rise to a justifiable sense of grievance in the applicant.
Particulars
a)Co-offenders Federico Salazar, Jacopo Palmisano and David Carmona all entered pleas of Guilty to attempting to possess a commercial quantity of cocaine relating to both the Core Cooler consignment and Brake Pulley consignment;
b)By their pleas, each of the above named co-offenders admitted attempting to possess 9.838 kilograms of cocaine. The applicant, by comparison, admitted involvement only in the attempted importation of 4.072 kilograms of cocaine;
c)The disparity in roles played by the applicant and the above named co-offenders was given too much weight by the learned sentencing judge;
d)The distinctions between personal circumstances and motive was given too much weight by the learned sentencing judge, particularly in relation to the mitigatory effect of those two factors in the case of Jacopo Palmisano; [and]
e)The sentence imposed on the applicant on charge 3 was greater than the sentence imposed for the same charge on Fernando Tovar Carmona — in circumstances where Fernando Tovar Carmona’s offending was significantly more serious on any objective analysis.
On 3 February 2020, Salazar was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Attempt to possess a commercial quantity of a border controlled drug (cocaine) [ss 11.1(1) and 307.5(1) — Criminal Code (Cth)] Life 7 years Base
Commenced 3 February 2020
Charge on Indictment Offence Maximum Sentence Cumulation 2 Possess a marketable quantity of a border controlled drug (cocaine) reasonably suspected of having been unlawfully imported [s 307.9(1) — Criminal Code (Cth)] 25 years 9 months 3 months (on charge 1)
To commence 3 August 2026
Total effective sentence: 7 years and 3 months’ imprisonment Non-parole period: 5 years and 6 months Pre-sentence detention declared: 697 days Section 6AAA statement: 9 years’ imprisonment with a non-parole period of 7 years
On the same day, Palmisano was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Attempt to possess a commercial quantity of a border controlled drug (cocaine) [ss 11.1(1) and 307.5(1) — Criminal Code (Cth)] Life 5 years Base
Commenced 3 February 2020
2 Dealing in proceeds of crime worth $1,000 or more [s 400.7(1) — Criminal Code (Cth)] 5 years 18 months 6 months (on charge 1)
To commence 3 February 2024
3 Possess a controlled drug (MDMA, ketamine, and cocaine) [s 308.1(1) — Criminal Code (Cth)] 2 years 2 months Nil
Commenced 3 February 2020
Total effective sentence: 5 years and 6 months’ imprisonment Non-parole period: 3 years and 9 months Pre-sentence detention declared: 697 days Section 6AAA statement: 7 years and 3 months’ imprisonment with a non-parole period of 5 years
Finally, Gutierrez Carmona was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Attempt to possess a commercial quantity of a border controlled drug (cocaine) [ss 11.1(1) and 307.5(1) — Criminal Code (Cth)] Life 4 years and 3 months Nil Total effective sentence: 4 years and 3 months’ imprisonment Non-parole period: 2 years and 9 months Pre-sentence detention declared: 697 days Section 6AAA Statement: 6 years’ imprisonment with a non-parole period of 4 years
For completeness, a fifth co-offender, Fernando Tovar Carmona (‘Tovar Carmona’), who played the ‘pivotal’ role at the Melbourne end of the enterprise, entered a plea of guilty at a far earlier stage than that of the applicant and the other co-offenders.[1] He was sentenced on 26 July 2019 as follows:
[1]See generally, DPP v Carmona [2019] VCC 1148, [4], [20], and [35].
Charge on Indictment Offence Maximum Sentence Cumulation 1 Importing a commercial quantity of a border controlled drug (cocaine) [s 307.1(1) — Criminal Code (Cth)] Life 10 years Base
Commenced 26 July 2019
2
Importing a commercial quantity of a border controlled drug (cocaine) [s 307.1(1) — Criminal Code (Cth)]
Life
10 years
4 years
(on charge 1)To commence 26 July 2023
3
Dealing in proceeds of crime worth $10,000 or more [s 400.6(1) — Criminal Code (Cth)]
10 years
1 year
6 months
(on charge 2)
To commence 26 January 2033
Total effective sentence: 14 years and 6 months’ imprisonment Non-parole period: 10 years Pre-sentence detention declared: 504 days Section 6AAA statement: 18 years’ imprisonment with a non-parole period of 14 years
For reasons that follow, I would refuse leave to appeal.
Circumstances surrounding the commission of the offences
The background facts to this offending are set out in my reasons for refusing leave to appeal against Tovar Carmona’s sentence,[2] and this judgment should be read in conjunction with that summary of those facts. Accordingly, I need not repeat what was there said at this point. I will briefly outline, however, the charges to which the applicant pleaded guilty:
·charge 1 pertained to the attempted importation of the Panamanian consignment;
·charge 2 pertained to 1.28 grams of cocaine that was located in the applicant’s possession when he was arrested; and
·charge 3 pertained to $3,500 in cash that was located in the applicant’s possession when he was arrested.
[2]See Carmona v The Queen [2020] VSCA 295, [6]–[18].
Sentencing remarks
The judge’s findings as to the applicant’s role were as follows:
It is not alleged that you had any involvement in the Brake Pulley Consignment.
The prosecution case, and you accept by your plea of guilty to Charge 1, is that you and Tovar Carmona were involved in the importation of the Core Cooler Consignment to Australia. The evidence discloses that your role was in the remitting of money to Colombia to fund the importation of cocaine in the Core Cooler Consignment.
You were in the apartment at South Melbourne when Palmisano delivered the Core Cooler Consignment to South Melbourne. The evidence from the listening device implanted in that Core Cooler Consignment proves you were involved in the attempts to access the contents of the Core Cooler Consignment.
Your involvement was for a period from 24 February 2018 to 8 March 2018, a period of two weeks. The amount of pure cocaine was 4.072 kilograms. Your role was significant in this attempted importation because you were remitting the funds to pay for it and were present when it was to be opened at the apartment in South Melbourne.
Whilst I have described Tovar Carmona as the pivotal role at the Melbourne end of the two importations involved in this whole case, your role was pivotal in the financing part of the Core Cooler importation.
…
There is no clear evidence of what reward you were to receive as a result of the importation of the cocaine in the Core Cooler Consignment. The clear inference is that you engaged in this attempted importation for financial reward.
…
You have not been involved in two separate importations as your co-accused, Tovar Carmona. However, he has been sentenced separately for each of the consignments and part of the sentence for the Core Cooler Consignment was cumulated on his sentence for the Brake Pulley Consignment. It was submitted on your behalf that your role was not as significant as Tovar Carmona in the importation of the Core Cooler Consignment.
The facilitating of the transfer of funds and the confirmation of those funds transferred is a necessary and significant role in drug importations. I accept it is a different role to the managerial role played by Tovar Carmona in this importation of the Core Cooler Consignment but it is only marginally less important in the overall offending. You were present in the apartment in South Melbourne when the consignment was delivered and to be opened. The amount of the drug was two times the commercial quantity.[3]
[3]DPP v Munoz [2020] VCC 50, [36]–[46] (emphasis added).
With regard to the applicant’s personal circumstances, the judge observed that at the time of the offending, he was aged 29 and had come to Australia in 2017, from Colombia, on a student visa. He had a supportive family in Colombia, and had no prior criminal history. He had, however, in the past, experimented with drugs in a recreational context, including cocaine, MDMA, and LSD.
The judge noted that the applicant’s time in custody had been spent productively. Indeed, counsel on the plea had described him as a ‘model prisoner’. During his time on remand, the results of all drug screens were negative. In about June 2018, he had been transferred from the Metropolitan Remand Centre to Ravenhall Prison, where he resided in a cottage-style unit. There, he became a team leader in the prison kitchen.
His Honour observed that like his co-offenders, the applicant faced the prospect of deportation upon the completion of his sentence. The judge recognised that the applicant’s lack of familial support in this country would mean that his isolation in custody might be more pronounced than would otherwise be the case.
The judge regarded the applicant’s plea as having been evidence of ‘some remorse’ and having utilitarian value.[4] As regards the applicant’s prospects of rehabilitation, his Honour found them to be ‘good’, having regard to the applicant’s family support, productive time in custody, and work record.[5] It was also noted that the two year delay between the applicant’s arrest and sentence was an additional burden that his Honour had taken into account in his sentencing exercise.
[4]Ibid [44].
[5]Ibid [49].
His Honour then sentenced the applicant as indicated above.
Sentencing remarks — Salazar
The judge made the following observations regarding Salazar’s role in the offending:
It is not alleged that you were in any way involved in arranging the importation of the Brake Pulley Consignment or the Core Cooler Consignment.
The Crown allege and you accept by your plea of guilty that in respect of the Brake Pulley Consignment, you and Jacopo Palmisano were to take delivery of that consignment at Parkville and return it safely to your apartment in South Melbourne. You were also involved in the attempts to open the Brake Pulley Consignment in order to extract the cocaine from within it.
In relation to the Core Cooler Consignment, it is accepted by the Crown that your involvement is limited to events after the consignment was delivered to the apartment on 8 March 2018. The listening device contained in that consignment provided evidence of you being informed it contained cocaine and that you assisted and proffered advise about how to open it. This was an opportunistic or happenstance involvement by you in the second consignment, known as the Core Cooler Consignment.
I find your role in the offending was subordinate to Tovar Carmona but identical to completing the delivery of the importation of the Brake Pulley Consignment. You also partook in the attempts to open the Brake Pulley and the Core Cooler Consignment in your apartment.
There is no direct evidence of what benefit or motivation has driven you to be involved in this offending. The inescapable inference is that you have been involved in this offending for financial gain.
…
I accept your role in this offending is not as significant as Tovar Carmona. Nevertheless, you were involved in an integral way in the Brake Pulley Consignment delivery to Mr Tovar Carmona. Your role in the Core Cooler Consignment is less significant and peripheral to Mr Tovar Carmona.[6]
[6]Ibid [71]–[75], [81] (emphasis added).
Sentencing remarks — Palmisano
As regards Palmisano’s role, the judge accepted:
The Crown does not allege you had any involvement in arranging the importation of the Brake Pulley or the Core Cooler Consignments into Australia. The accepted position by the Crown and yourself by your plea of guilty is that you were to take delivery or assist in taking delivery of both consignments at Parkville and return them to the apartment in South Melbourne.[7]
[7]Ibid [102] (emphasis added).
Sentencing remarks — Gutierrez Carmona
Finally, with regard to Gutierrez Carmona’s role, the judge observed:
[The Crown] has also accepted that you had no knowledge of or any involvement in the importation of the Brake Pulley Consignment until it was brought to the apartment by Mr Salazar on 5 March 2018.
You did assist your cousin, Tovar Carmona, in attempts to open the Brake Pulley Consignment. You attended a Bunnings store in Brunswick and purchased an angle grinder and other tools. You later attended at the Port Melbourne Bunnings store with Tovar Carmona and purchased a wrench. The angle grinder was used in an attempt to open the Brake Pulley.
You have not been seen involved in the overt act of attempts of opening the Brake Pulley. The Crown case is you assisted and encouraged Tovar Carmona in his attempts to open the Brake Pulley.
Your involvement in the second consignment, the Core Cooler Consignment, is limited to you assisting and encouraging Tovar Carmona and co-offenders in their attempt to gain access to the contents of the Core Cooler Consignment. The encouragement is verbal and ends nine seconds before the Australian Federal Police entered the unit. The Crown does not allege you had any knowledge or involvement in the importation of the Core Cooler Consignment prior to it arriving at the premise you were living at on 8 March 2018.[8]
[8]Ibid [130]–[133] (emphasis added).
Applicant’s submissions
The applicant’s overall submission was that there was a ‘marked or manifest’ disparity between the sentences imposed on the applicant, and those imposed on Salazar, Palmisano, and Gutierrez Carmona. In that regard, he contended that Palmisano and Salazar had also played ‘relatively important’ roles in the operation. They had physically collected the consignments from the Church Street address and delivered them to the South Melbourne apartment occupied by Tovar Carmona, Salazar, Palmisano, and Gutierrez Carmona.
The applicant accepted that it had been open to the judge to find that he had played a greater role than either Salazar or Palmisano in relation to the Panamanian consignment. He noted, however, that the charge of attempt to possess, to which both Salazar and Palmisano had pleaded guilty, related to the total amount of cocaine in both the Chilean and Panamanian consignments. The applicant submitted that, as a result, he should have received a sentence ‘at least broadly similar’ to those imposed on Salazar and Palmisano.
The applicant conceded that Gutierrez Carmona had played a significantly lesser role than that of the other offenders, and that a substantially lesser sentence was warranted in his case. However, it was noted that, like Salazar and Palmisano, Gutierrez Carmona had still pleaded guilty to attempting to possess a commercial quantity of cocaine that was more than twice the amount that the applicant had pleaded guilty to having attempted to import.
Moreover, the applicant submitted that Salazar, Palmisano, and Gutierrez Carmona all had similar personal backgrounds to his own. They could all call in aid comparable factors in mitigation. While there were some differences in their individual circumstances, such as Palmisano’s youth, and Gutierrez Carmona’s motivation to help a family member, it was contended that they did not rise to the level of justifying the different sentences that were imposed.
The second aspect of the applicant’s complaint related to the disparity in the sentences imposed on himself on charges 1 and 3, and those imposed on Tovar Carmona.
With regard to charge 1, the applicant submitted that the fact that he had received a sentence that was ‘only 18 months less than Tovar Carmona’ for that offending constituted a marked disparity that give rise to a justifiable sense of grievance.
As regards charge 3, it will be recalled that the applicant pleaded guilty to a charge of dealing in proceeds of crime worth $1,000 or more. The maximum sentence for that sentence was 5 years’ imprisonment, and a term of 15 months’ imprisonment, with an effective 8 months cumulated, had been imposed. Tovar Carmona, on the other hand, pleaded guilty to a charge of dealing in proceeds of crime worth $10,000 or more, the maximum sentence for that offence was 10 years’ imprisonment, twice that applicable to the applicant for his offending. Yet, Tovar Carmona was sentenced to a term of only 12 months’ imprisonment, with an effective 6 months cumulated.
The applicant submitted that that disparity in sentence separately gave rise to a justifiable sense of grievance on his part. This was particularly so as the judge had found that the applicant had a lesser role in the Panamanian consignment, and, of course, no role at all in the Chilean consignment. The applicant submitted that this demonstrated that the judge had failed properly to apply the parity principle.
Respondent’s submissions
In her written response, counsel for the respondent reminded the Court of what Winneke P had said in R v Spizzeri:[9]
[A]n appellate court should be careful in concluding manifest disparity, particularly where the offenders have been sentenced by an experienced judge who has sentenced a large number of offenders engaged in the same criminal enterprise. In those circumstances, the appellate court is at risk of upsetting the symmetry of the sentencing process employed by the judge and introducing its own disparity into that process. To that extent, the court is constrained in rectifying a disparity which it perceives. Because of those constraints, its runs the risk of ‘tinkering’.[10]
[9][2001] VSCA 49.
[10]Ibid [10] (Ormiston JA agreeing at [12], Callaway JA agreeing at [13]).
Counsel’s overall submission was that, when considering the facts and circumstances of the offending, it was open to the judge to have imposed the sentence on the applicant which he did. In that regard, she observed that while the applicant had only been involved in the Panamanian consignment, his level of involvement in that importation had been ‘extremely significant’. This was because he had assisted Tovar Carmona in facilitating the importation by arranging for it to be financed. Counsel characterised the applicant’s role in that regard as ‘crucial and pivotal’. Indeed, she submitted that the success of that importation would have been reliant upon his activities.
Further, counsel noted that the applicant’s significant role in the Panamanian offending meant that, unlike Salazar, Palmisano, and Gutierrez Carmona, his involvement was not spontaneous. Nor was it limited in scope to perhaps a single event, or day. He had been centrally involved for about two weeks before the date of his arrest. Additionally, unlike the others, it was submitted that he was in no sense merely a subservient member of the group involved in the enterprise.
Counsel accepted that the applicant, Salazar, Palmisano, and Gutierrez Carmona all, on the whole, had similar personal circumstances. She noted, however, that there were some differences with regard to the other co-offenders. For example, Salazar had previously offered to plead guilty in July 2018, before the applicant had done so. Salazar had also experienced a more onerous period on remand due to lockdowns at Port Phillip Prison. Palmisano was the youngest offender of all the co-accused. He had had a difficult upbringing, having suffered from a number of medical issues. Finally, Gutierrez Carmona had a very young child in Colombia, which, it was accepted, would render imprisonment a greater burden upon him than the other offenders.
As to the applicant’s complaint regarding his sentences on charges 1 and 3, as compared with those imposed on Tovar Carmona, counsel submitted that there was no marked disparity that gave rise to a justifiable sense of grievance. With regard to the applicant’s complaint that his sentence on charge 1 (8 years and 6 months) was only 18 months less than that imposed on Tovar Carmona, she pointed out that the Tovar Carmona had been sentenced to 10 years on each of two separate importations, and that, in his case, four years cumulation was ordered to reflect the additional criminality involved in the second consignment. Moreover, Tovar Carmona had pleaded guilty at a far earlier stage than did the applicant.
As regards the applicant’s complaint with regard to charge 3, it was conceded that this aspect of the applicant’s proposed ground was reasonably arguable. She submitted however, that leave to appeal should be refused because any resentencing by this Court would not lead to the imposition of a lower total effective sentence, or non-parole period than that currently fixed. In other words, she invoked s 280(1) of the Criminal Procedure Act 2009 as being the likely outcome (that is, dismissal of the appeal), if leave to appeal were granted.
Conclusion
As I said in relation to Tovar Carmona, this was extremely serious offending. The Panamanian importation involved more than twice the commercial quantity of cocaine, and carried a maximum penalty of life imprisonment. The applicant did not seek to argue that his sentence of 8 years and 6 months’ imprisonment was outside the range. He confined his submissions to two separate challenges, based upon parity.
The applicant’s 8 years and 6 months on charge 1 must be compared with the 7 years imposed on Salazar, the 5 years imposed on Palmisano, and the 4 years and 3 months imposed on Gutierrez Carmona. In each case, the roles that they played in this enterprise were significantly less serious than that of the applicant, whilst acknowledging that they were dealt with in respect of two importations, and he only in respect of one. The applicant was, in truth, a major figure in the Panamanian importation, high up in the hierarchy of the organisation that arranged for it to be carried out. The other offenders, Salazar, Palmisano, and Gutierrez Carmona, were, relatively speaking, far less culpable, and it was open to the judge to assess their relative responsibilities for what occurred in the way that he did.
As regards the parity argument in so far as it concerns Tovar Carmona, the applicant has no legitimate sense of grievance arising out of his sentence of 8 years and 6 months, as compared with 10 years on the Panamanian importation charge. That is particularly so when one bears in mind the 4 years’ cumulation that Tovar Carmona faced in relation to that charge.
I accept that there appears to be something peculiar about the fact that Tovar Carmona received 12 months’ imprisonment with 6 months’ cumulative for dealing in proceeds of crime to the value of $30,000, while the applicant received 15 months’ imprisonment with 8 months cumulated for dealing in proceeds of crime to the value of only $3,500 cash. It must be remembered, however, that the judge who sentenced Tovar Carmona (the same judge who sentenced the applicant) made it clear in his sentencing remarks when dealing with Tovar Carmona that he had moderated the sentence on that charge by reason of totality. That may explain why Tovar Carmona received such a lenient sentence on the dealing in proceeds of crime charge.
In any event, even if leave to appeal were granted on the parity point, I cannot conceive of any realistic possibility that the Court of Appeal would reduce the total effective sentence imposed on the applicant. That sentence was, as I have said, clearly within range, so far as he was concerned.
For these reasons, I would refuse leave to appeal.
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