Quintero v R; Carvajal v R; Salazar v R

[2018] NSWCCA 190

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190

Hearing dates:

2 July 2018

Date of orders:

31 August 2018

Decision date:

31 August 2018

Before:

Simpson AJA at [1]
Schmidt J at [25]
Button J at [150]

Decision:

(1)   Leave to appeal granted to the applicants;

 

(2)   Appeals upheld;

 

(3)   Sentences imposed by Blackmore DCJ upon Ms Quintero, Ms Carvajal and Ms Salazar set aside;

 

(4)   The applicants are resentenced as follows:

 

(a)   Ms Quintero – sentenced to a non-parole period of 4 years imprisonment commencing on 17 September 2015, ending on 16 September 2019, with a balance of term of 1 year, 3 months expiring on 16 December 2020. Her release to parole on 16 September 2019 is recommended.

 

(b)   Ms Carvajal – sentenced to a non-parole period of 4 years imprisonment commencing on 17 September 2015, ending on 16 September 2019, with a balance of term of 1 year, 3 months expiring on 16 December 2020. Her release to parole on 16 September 2019 is recommended.

 (c)   Ms Salazar – sentenced to a non-parole period of 4 years, 1 month imprisonment commencing on 17 September 2015, ending on 16 October 2019, with a balance of term of 1 year, 4 months expiring on 16 February 2021. Her release to parole on 16 October 2019 is recommended.

Catchwords:

CRIMINAL LAW – appeal – appeals against sentence – four co-offenders – each applicant convicted of four offences of aggravated break, enter and steal contrary to s 112(2) Crimes Act 1900 (NSW) –offences committed as part of joint criminal enterprise-character-absence of criminal record in Australia-– whether sentencing judge erred by holding applicants were disentitled to the benefit of good character – whether sentencing judge erred by failing to take into account one applicant’s background of childhood deprivation – whether sentencing judge erred by failing to take into account applicant’s role in the offences relevant to moral culpability – whether sentencing judge erred by finding that, despite having no criminal record, no additional leniency could be afforded given nature of offences – whether effect of delay taken into account when fixing non-parole period – assessment of subjective case – whether failure to take into account subjective features – whether special circumstances – whether one applicant has justifiable sense of grievance given sentence imposed on co-offender – whether sentence manifestly excessive – leave to appeal granted – appeals upheld – applicants resentenced

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Road Transport Act 2013 (NSW)

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Bidgood v R [2016] NSWCCA 138
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Dinsdale v The Queen (2000) 202 CLR 321;[2000] HCA 54
HJ v R [2014] NSWCCA 21
KR v R [2012] NSWCCA 32
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lowe v The Queen (1984) 154 CLR 606;
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
PG v R [2017] NSWCCA 179
Power v The Queen (1974) 131 CLR 623
R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186
R v Chu (Court of Criminal Appeal (NSW), 16 October 1998, unrep)
R v Edwards (1996) 90 A Crim R 510
R v Faneite (Court of Criminal Appeal (NSW), 1 May 1998, unrep)
R v Huang (2000) 113 A Crim R 386; [2000] NSWCCA 238
R v JW (2011) NSWLR 3; [2010] NSWCCA 49
R v Levi (unreported, NSWCCA 15 May 1997)
R v MJB [2014] NSWCCA 195
R v Sugahara and Watanabe (Court of Criminal Appeal (NSW), 16 October 1998, unrep)
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Trindall v R [2013] NSWCCA 229
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category:

Principal judgment

Parties:

Mitzi Karoly Quintero
Monica Yulieth Reinoso Carvajal
Viridiania Guiterrz Salazar
Regina

Representation:

Counsel:
R J Wilson (Quintero)
A Webb (Carvajal)
J Trevallion(Salazar)
H Roberts (Crown)

  Solicitors:
Bunton Lawyers (Quintero)
AA Criminal Lawyer (Carvajal)
Blair Criminal Lawyers (Salazar)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2015/2734592015/2734672015/273462

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

--

Date of Decision:

23 June 2017

Before:

Blackmore SC DCJ

File Number(s):

2015/273459
2015/273467
2015/273462

Judgment

1. SIMPSON AJA: I have read in draft the judgment of Schmidt J, which adequately sets out the facts of the applicants’ offences.

2. In two respects, I am unable to agree with her Honour’s reasoning. Those respects concern the way in which the delay in the proceedings was treated, and the way in which the evidence of early deprivation and disadvantage of two of the applicants was treated.

1. Delay

3. It was not in issue that the proceedings had been delayed for reasons beyond the control of the applicants. The sentencing judge addressed this as a discrete relevant issue, saying:

“…The effect of the delay is that each of the offenders has remained on remand rather than being housed as sentenced prisoners. It is uncontroversial that prisoners who have been sentenced have access to greater services in custody than those on remand. All of the offenders have been disadvantaged by the delay in the proceedings; it is a factor that I will take into account on sentence by reducing their non-parole periods.” (italics added)

4. Section 44(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) requires the court, when sentencing to imprisonment, first to set a non-parole period for the offence. That is the minimum period for which the offender must be kept in detention in relation to the offence.

5. Subsection (2) provides:

“The balance of the term of the sentence must not exceed one third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).”

6. The sentencing judge dealt, briefly, with the personal circumstances of each of the offenders. In each case, he concluded by stating that no basis had been shown for a finding of special circumstances under s 44(2).

7. Notwithstanding his expressed intention to reduce the non-parole periods, his Honour immediately went on to sentence each applicant, and Mr Johan, to an aggregate term of imprisonment in which the non-parole period was (except for a reduction of 21 days that might, as explained by Schmidt J, be taken to be attributable to a rounding down of what otherwise would have been a cumbersome sentence) in the statutory proportions.

8. As s 44(2) makes clear, the only basis on which the non-parole period can be reduced below 75% of the head sentence is a finding of special circumstances. Thus, the two statements, on the one hand that there were no special circumstances, and on the other that delay was a factor that would be taken into account by reduction of the non-parole periods, were inconsistent.

9. I am not able to accept the conclusion stated by Schmidt J that delay was taken into account in ways other than by reduction of the non-parole period, for example, by reduction of the head sentences, or by the concurrency that can be seen to have been applied when regard is had to the stated indicative sentences. There is no hint in the Remarks that his Honour took that approach and he expressly stated the manner in which he intended to take delay into account. The only reasonable explanation is that, in the course of a busy list, and in sentencing four co-offenders, the sentencing judge overlooked putting into effect his stated intention.

10. Nor can I accept that the sentence imposed on Ms Salazar for the reckless driving charge throws any light on the issue. Although, curiously, it is not pleaded as a ground of appeal (it was mentioned only in the context of submissions on resentencing) the indicative sentence imposed for that offence was the maximum applicable. It is well established that the maximum sentence for any offence is reserved for cases in the worst category of that kind of offence. Ordinarily, where the maximum sentence applicable to an offence is to be imposed, a sentencing judge will state reasons for taking that course. No such reasons were stated.

11. In my opinion the grounds that raise failure to implement the finding of the effect of delay and the intention thereby to reduce the non-parole period, succeed. It will therefore be necessary that this Court proceed to resentence: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. I wish, however, to comment on two other matters.

2. Deprivation

12. In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 the High Court confirmed that a relevant sentencing consideration is deprivation and social disadvantage in the personal history of an offender. In the cases of Ms Reinoso-Carvajal and Ms Salazar, there was evidence of such a background. No such evidence was provided in relation to Ms Quintero; there was, however, in her case, evidence that she suffered from a significant depressive disorder and anxiety.

13. The sentencing judge declined to take into account the histories given concerning Ms Reinoso-Carvajal and Ms Salazar.

In relation to all offenders, his Honour said:

“Having considered each of the offenders’ subjective circumstances, in my view there is no reason to differentiate between the offenders. Their circumstances are not identical but they do all have similar difficulties whilst in custody.”

14. As Schmidt J has pointed out, this was not factually accurate. However, in my opinion there is a more fundamental error demonstrated in the approach taken. The issue was not whether the offenders had equally deprived backgrounds, but whether, in relation to any (or some or all of them) the evidence warranted any moderation of the sentence that would otherwise have been imposed. That issue was overlooked. For this reason, also, the appeals must be upheld, and the applicants resentenced.

3. Character

15. Each of the applicants complained of the manner in which evidence of the absence of any criminal history was treated. Ms Reinoso-Carvajal and Ms Quintero framed their grounds of appeal in this respect identically as follows:

“His Honour erred in finding that, despite having no criminal record, no additional leniency could be afforded given the nature of the offences.”

16. Ms Salazar’s ground of appeal was framed as follows:

“The sentencing judge erred by holding that the applicant was disentitled to the benefit of good character.”

17. What his Honour said was:

“I note that the offenders all have no Australian criminal records. In some circumstances that might result in some additional leniency being applied to their cases, but given the offences committed and their repetitive nature I am not of the view that such leniency should be applied in their cases.”

18. All applicants relied on the decision of the High Court in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21.

19. Ryan was a former priest, who was sentenced for multiple sexual offences against children, committed in the course of his role as a priest. There was extensive evidence given of valuable community work that he had undertaken as a priest. The sentencing judge in that case considered, in effect, that that work was neutralised by the course of offending, and declined to allow “any leniency whatsoever”. By a narrow majority (McHugh, Kirby and Callinan JJ, Gummow and Hayne JJ dissenting) the High Court held that this was erroneous and that Mr Ryan had been entitled to some, though not significant, leniency in recognition of his good character.

20. The point I wish to make, however, is that the relevant facts in Ryan were substantially different from the present case. “Good character” is more than mere absence of a criminal record. In R v Levi (unreported, NSWCCA 15 May 1997), Gleeson CJ drew attention to “a certain ambiguity” inherent in the expression when used in a sentencing context; it may be used to refer only to an absence of prior convictions; or, more positively, it may refer to evidence of previous good works and contribution to the community.

21. In Ryan’s case, it was the latter, with respect to which the evidence was extensive, to which the High Court directed its attention. In this case, there was evidence that none of the applicants had any Australian criminal history (and no evidence that they had criminal records in other countries) other than in respect of the offences for which they were to be sentenced.

22. But in each case the applicant committed the offences within a short time of arrival in Australia, and embarked on a significant and sustained criminal enterprise. The absence of any Australian criminal record was of so little significance as to be immaterial. There was no countervailing evidence, as in Ryan, of positive good character.

4. Resentence

23. The sentences proposed by Schmidt J take into account all relevant circumstances, and represent a fair and just balance of the objective gravity of the offences and the personal circumstances of the applicants. Although there are points of differentiation between them, they are not such (except in the case of Ms Salazar, who faced one additional charge) as to warrant any differentiation in the sentences imposed.

24. I agree with the orders proposed by Schmidt J.

25. SCHMIDT J: In June 2017 Blackmore SC DCJ sentenced four co-accused, Franco Johan, Mitzi Quintero, Viridiania Salazar and Monica Carvajal, for their roles in four aggravated break enter and steal offences, under s 112(2) of the Crimes Act 1900 (NSW), to which they had each entered pleas at the earliest opportunity. These offences were committed as part of a joint criminal enterprise pursued by the offenders with another unidentified offender, in September 2015.

26. On sentence four other offences, three of aggravated break enter and steal and one of break and enter with intent under s 113(2) of the Crimes Act, also committed as part of this joint criminal enterprise, were taken into account under s 33 of the Crimes (Sentencing Procedure) Act1999 (NSW) on a Form 1, in the case of each applicant.

27. Ms Salazar was also sentenced for a reckless driving offence under s 117(2) of the Road Transport Act2013 (NSW).

The application for leave to appeal

28. Mr Johan filed a notice of intention to appeal, but has not pursued an appeal. The grounds of appeal which Ms Quintero, Ms Carvajal and Ms Salazar press are:

Ms Quintero

“Ground 1   His Honour erred by failing take into account the applicant's role in the offences relevant to her moral culpability.

Ground 2    His Honour erred by finding that, despite having no criminal record, no additional leniency could be afforded given the nature of offences.

Ground 3    His Honour erred in failing to give effect to his finding that he would take into account the effect of delay when fixing the non-parole period.

Ground 4   His Honour erred in failing to properly consider the applicant's subjective case by approaching it on the basis that it did not warrant moderation in sentence because it was not markedly different to the subjective cases of the co-accused.

Ground 5   His Honour erred by failing to take into account the applicant's depression and give weight to her hardship in custody caused by her family circumstances.

Ground 6   His Honour erred in failing to find special circumstances.

Ground 7   The applicant has a justifiable sense of grievance because there was no disparity between her sentence and the sentences of the co-accused

Ground 8   The sentence is manifestly excessive.”

Ms Salazar

“1.   The sentencing judge erred by holding that the applicant was disentitled to the benefit of good character.

2.   The sentencing judge erred by failing to take into account the applicant's background of childhood deprivation.

3.   His Honour erred in failing to give effect to his finding that he would take into account the effect of delay when fixing the non-parole period.

4.   The sentence is manifestly excessive.”

Ms Carvajal

“Ground One:    His Honour fell into error by failing to take into account each applicant's role in the offending as relevant to moral culpability.

Ground Two:   His Honour fell into error by failing to adequately consider the applicant's subjective case, and that by not so doing, failed to properly differentiate the sentences appropriate in each case.

Ground Three:    His Honour fell into error finding that despite no criminal record, no additional leniency could be afforded.

Ground Four:    His Honour fell into error in failing to give effect to his statement that he would take into account the effect of delay when fixing the non-parole period.

Ground Five:    There is in the applicant a justifiable sense of grievance as a result of there being no disparity between the sentence imposed upon her and the sentence imposed upon others.

Ground Six:    The sentence is manifestly excessive.”

The sentences

29. Mr Johan, Ms Quintero and Ms Carvajal were each sentenced to an aggregate sentence of 6 years, 9 months imprisonment for their four aggravated break enter and steal offences, with a non-parole period of five years, after a 25% discount for the early plea. In their cases Blackmore DCJ concluded that they did not require supervision on parole and recommended that they be released on parole, at the end of the non-parole period.

30. Ms Salazar was sentenced to an aggregate sentence of 7 years imprisonment, with a non-parole period of 5 years and 3 months. A driving disqualification period was also nominated.

31. These sentences reflected Blackmore DCJ’s conclusion that the sentences imposed on all four offenders for the break enter and steal offences, should be identical. That reflected the conclusion firstly, that the offenders were equally responsible for the crimes they had committed as part of their joint criminal enterprise, notwithstanding their different roles and that secondly, their subjective circumstances were not markedly different.

The sentencing judgment

32. After noting the pleas which the applicants had entered and the Form 1 offences which were to be taken into account, as well as the maximum penalties and standard non-parole periods which applied, Blackmore DCJ turned to the agreed facts. His Honour observed:

“In short, the offenders worked as a team breaking into premises. On some occasions one or more of the team would enter the premises whilst the others would surround the premises as lookouts. The offenders were in communication with each other using mobile phones to allow for a more coordinated execution of the offence.”

33. The agreed facts revealed that the offenders had come to police attention, together with another unknown male, during the course of a strike force investigation into Colombian nationals involved in property theft offences. In August 2015, four phone services associated with the group were intercepted pursuant to warrants and a tracking device was covertly installed in a vehicle later used by the applicants, during their joint criminal enterprise.

34. There were no records as to when Mr Johan entered Australia, but Ms Salazar had entered on a student visa which was cancelled on 15 March 2015, due to non-compliance with conditions. Ms Quintero did not enter Australia until August 2015, on a tourist visa which expired in November 2015 and Ms Carvajal arrived on 4 September on a tourist visa, shortly prior to the first offence committed on 9 September.

35. The 8 offences were committed by the applicants, Mr Johan and the unidentified male who has never been arrested, at homes at South Hurstville, Kogarah, Riverwood, South Coogee, Burwood and Allawah. In all but one of these offences, cash and various goods were stolen, while the offenders spoke to each other in Spanish on a conference call. In one case some $7,000 damage was also caused to the property.

33. In total, more than $50,000 was lost by victims. Goods stolen included handbags, sunglasses, clothing, cameras and electronic equipment, watches, jewellery, a gold statue, gold collector and commemorative coins and gold and silver bars.

34. On 17 September, during the course of the police surveillance operation, the offenders were observed driving away from the scene of their last offence in two cars. Ms Carvajal who was driving one of the cars, was arrested when stopped by police. As police approached Ms Salazar, who was driving the second car, she was able to manoeuvre around the police cars to drive off. A police pursuit ensued. Her vehicle was located within a short time, with the engine still running and she and Ms Quintero were then arrested, while walking along a nearby street. Mr Johan was arrested later that day.

35. The police located near Ms Salazar’s car gloves, clothing, ear phones and a notepad containing various addresses. Some of the stolen property was found in that car and in the car Ms Carvajal was driving, another notebook with numerous handwritten addresses, including two of the addresses the offenders had broken into was found, as well as other items.

36. On the evidence Blackmore DCJ found that:

1. An aggravating factor involved in each of the offences was being in company, the coordinated actions of the offenders increasing the seriousness of their offending over and above the mere fact that they were in company. The offences also demonstrated a degree of professional planning, organisation, and execution “over and above the usual case.”: at p 2;

2. The offenders received an equal divide of the property, or the proceeds of the sale of the property: at p 2;

3. The seriousness of each of the offences was just below the middle of the range of seriousness; at p 2;

4. While each of the offenders was in Sydney from South or Central America, there was no evidence that they were targeting Sydney, or had arrived here intending to carry out criminal activity. Still their sentences had to reflect the principle of deterrence: at p 2;

5. It could not be concluded that any of the offenders had a lesser role; given their involvement in the joint criminal enterprise and each receiving an equal reward from that enterprise: at p 3;

6. The only distinction between the offenders was that Ms Salazar also had to be sentenced for her reckless driving offence, which required her to serve a longer sentence than the other offenders: at p 3;

7. While none of the offenders had an Australian criminal record, given the offences each had committed and their repetitive nature, that did not permit leniency on sentence: at p 3;

40. Blackmore DCJ then turned to consider the evidence of the subjective circumstances of each offender, they each having given evidence. His Honour concluded in each case that there were no special circumstances.

41. The findings made as to each offenders’ personal circumstances included:

Mr Johan

1. Mr Johan, aged 44 had come to Australia from Mexico to learn English and decided to work here, in order to increase his income. He first worked in Melbourne doing painting, during the course of which he fell from a ladder, exacerbating a previous injury he had suffered in an accident. He required further treatment in custody for that injury, but there was no evidence that his treatment in custody was not appropriate

2. Mr Johan had been married at one stage. There were two children of that marriage and he had two other children;

3. In custody he was employed as a sweeper, reflecting that he was trusted inmate;

4. His English was limited, he had limited contact with his family in Mexico and he was isolated in custody;

5. He had expressed contrition for his offending, which was accepted as being genuine;

6. He had the potential to be employed, and his prospects of rehabilitation were reasonable. There was no suggestion of addiction to drugs and his offending appeared to have been for personal profit only, to support himself in Australia.

Ms Salazar

1. Ms Salazar, aged 27, who had entered Australia on a false passport, her real name being Elsie Iola Roneao Rodriguez, had admitted having pursued her offending for money to support herself, her family and her drug addiction, which she had come to appreciate in custody. Her reported habit was up to $1,700 per week;

2. She was sorry for her offending, for which she had no excuse;

3. She could read and write English and was working as a librarian in custody and hoped to use her English skills to work, when she returned to Colombia. She thus had reasonable prospects of rehabilitation, given those skills and her understanding that she needs to avoid drug use;

4. She was somewhat isolated in custody, but was housed with two other Spanish speaking co-offenders;

5. Her mother was looking after her child.

Ms Quintero

1. Ms Quintero, aged 34, also had a child being looked after by her parents in Colombia, without the support of his father;

2. Her evidence was that she came to Australia for a holiday, which his Honour found was unlikely. She had met Mr Johan, a former boyfriend here and did not know the other offenders;

3. She expressed remorse for her offending, acknowledging that it had been wrong and that her victims had not deserved what she had done to them. Her contrition was accepted;

4. She also expressed sorrow for her parents, who were not healthy, and were the only ones who could look after her child, who also suffered asthma. Her parents’ illness was found not to have reached the state where it could amount to an exceptional circumstance on sentence;

5. She had limited contact with her son and was isolated in custody, although in custody with her Spanish speaking co-offenders;

6. While it was difficult to make positive findings about her prospects of rehabilitation, she had no convictions in Colombia or America where she had also previously lived and her offending may have been out of character, in which event her prospects were good.

Ms Carvajal

1. The evidence of Ms Carvajal, aged 35, was that she had committed the offences for herself and to support her family;

2. Her mother was caring for her 13 and 10 year old daughters;

3. She had a drug habit, but in custody had been clean of drugs and acknowledged the effects drugs had on the community and other inmates;

4. In custody she had been studying and was employed in the health clinic, that evidencing that she was a trusted prisoner who had access to medications;

5. She was being treated for depression;

6. Her expressions of contrition were accepted as being genuine and her prospects of rehabilitation reasonable;

7. She was also somewhat isolated in custody, but had access to her two Spanish speaking co-offenders.

42. Blackmore DCJ also found that there had been considerable delay in finalising the sentencing proceedings, with the result that the offenders had remained on remand, while in custody prisoners who had been sentenced had access to more services. In the result, his Honour concluded that the offenders had all been disadvantaged by the delay, a factor which had to be taken to account, by reducing their non-parole periods.

43. His Honour also concluded that there was no reason to differentiate between the offenders because of their subjective circumstances, which were not identical, but each had similar difficulties while in custody.

Failing to take into account the applicant’s roles in assessing their moral culpability – Ground 1 – Ms Quintero and Ms Carvajal

44. Ms Quintero and Ms Carvajal complain that Blackmore DCJ erred in failing to take into account their respective roles in the joint criminal enterprise, in assessing their moral culpability for their respective offending.

45. On the agreed facts:

• During each offence, Mr Johan was one of those who entered the premises, with the unknown male. In some cases they forced open locks, windows or doors. In another they removed a flyscreen from a window which had been left open. In some cases, a security alarm panel was taken off a wall, in one case causing $7,000 damage.

• On 9 September and during the third offence committed on 14 September, Ms Carvajal also entered the premises, while Ms Salazar and Ms Quintero remained outside as lookouts.

• On 10 and 16 September, it was Ms Salazar who also entered the premises and Ms Carvajal and Ms Quintero who remained outside as lookouts.

• On 11 September and twice on 14 September, Ms Carvajal, Ms Salazar and Ms Quintero all remained outside as lookouts.

• During the final offence on 17 September, Ms Salazar and Ms Quintero remained outside as lookouts, while Ms Carvajal waited in one of the vehicles, which she eventually drove off, with Ms Salazar then driving the second vehicle.

46. Thus it was that it was only Ms Quintero who never entered any of the premises. Both Ms Quintero and Ms Carvajal accepted her part in this joint criminal enterprise and that accordingly, they were each liable for the conduct of their co-offenders. Nevertheless , they both argued that his Honour had erred in not taking account of the lesser role they had each played, which was relevant to the assessment of their moral culpability for their offending: R v JW (2010) 77 NSWLR 7[2010] NSWCCA 49 at [162] and KR v R [2012] NSWCCA 32 at [18]-[22].

47. Ms Carvajal thus submitted that it was relevant that while she had entered the premises on two occasions, it was on only one of them that property was removed; that on five occasions she had acted as a lookout; and that during the last offence, she had remained in the car. She also accepted that she had gone inside when $7,000 damage was caused to one property. Nevertheless, it was argued that her moral culpability was significantly less than that of her co-offenders.

48. Ms Quintero’s case was that it was because in all but one of the offences she had acted as a lookout and in the last one, she had been a lookout while the other two applicants were drivers, that her moral culpability was less than that of her co- offenders. His Honour had thus erred in failing to consider her actual involvement, that being relevant to her moral culpability, as distinct from her criminal liability in respect of the joint criminal enterprise.

49. Culpability is concerned with the assessment of an offender's moral responsibility for the offence in question, assessed by reference to the conduct in question: KR v R [2012] NSWCCA 32 at [22]. It follows that while an offender’s conduct must be considered when moral culpability is determined, that the result of that consideration will necessary be the conclusion that each offender’s moral culpability in the case of a joint criminal enterprise will be different, does not necessarily follow.

50. The difficulty with these grounds of appeal is thus that they overlook firstly, that Blackmore DCJ did take into account the different roles which the applicants played during their offences, in coming to the view that given all that was involved in this joint criminal enterprise, including the degree of professional planning, organisation and execution involved, “over and above the usual case”, that the applicants’ moral culpability was the same. The two lists of addresses found in the vehicles, one of them including two of the premises which had already been robbed, when considered together with what else was found at the two vehicles driven away from the scene of the last offence and how the offences were committed, explains the basis for this conclusion.

51. Secondly, the applicants’ cases also overlook his Honour’s conclusion that the offenders’ culpability was the same, also rested on the offenders’ co-ordinated actions, during their well-organised offences; and the significance of the roles which they variously played in those offences, during which they used their mobile telephones, to undertake conference calls with those inside the premises as a form of live commentary during the commission of each offence, while those outside kept a lookout. That underscored the importance of the role played by those who waited outside the premises, during each offence, well explaining the conclusions which his Honour reached.

52. Blackmore DCJ thus took proper account of the different roles which each offender played in the various offences they committed together, in assessing their moral culpability for that offending.

53. His Honour’s view that the level of the offenders’ culpability for their respective offending, given what they each variously did during all of these offences was thus the same, was undoubtedly open in the case of both Ms Carvajal and Ms Quintero, even though Ms Quintero remained outside during each offence. Given the professional mode of operation which the offenders pursued together and the use which they made of their mobile phones, guided by those who remained outside the premises, that either Ms Carjaval or Ms Quintero had less moral culpability for this offending, was not established.

54. These grounds of appeal must thus be dismissed.

Failing to give effect to the finding about delay – all applicants

Failing to find special circumstances – Ground 6 – Ms Quintero

55. Blackmore DCJ found that there had been considerable delay in finalising the sentence proceedings, which had not been reached twice and even before his Honour had to be adjourned again, because Corrective Services officers were not available to bring the applicants to court, albeit on that occasion this delayed the hearing for only one day. His Honour thus concluded that each offender had been disadvantaged by the delay and that this was a factor which would be taken into account, by their non-parole periods being reduced.

56. Whether his Honour had overlooked this conclusion, is in issue.

57. The applicants contended that applying the statutory ratio to the aggregate sentence of 6 years, 9 months resulted in a non-parole period of 5 years and 21 days. It was common ground that the non-parole period imposed, of 5 years, reflected authority which requires sentences to be expressed in years and/or months and accordingly, that the reduction of the non-parole period by 21 days, could not have been the way by which Blackmore DCJ gave effect to his stated intention of reducing the non-parole period, to take into account the adverse effects of delay.

58. The Crown’s case was that his Honour’s observation could be read as a reference to taking delay into account in fixing the sentences themselves, rather than varying the statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act, by a finding of special circumstances. It was also submitted that the degree of nominal partial accumulation of the indicative sentence for the charge which took into account the Form 1 offences, was “indicative of generosity being given to the offenders”.

59. This issue must be resolved by a consideration of the aggregate sentences which Blackmore DCJ imposed on the offenders, having concluded that there was no basis for a finding of special circumstances in any case. That confirms that his Honour did not give effect, as he could have, to his intention to reduce the non-parole for delay, by a finding of special circumstances. Another available course was, however, to give effect to the reduction in the non-parole period which was imposed by way of the aggregate sentence, that approach according with what was discussed in Mill v The Queen (1988) 166 CLR 59 at 64–66; [1988] HCA 70.

60. The non-parole period thereby imposed had to be the minimum period of actual incarceration which his Honour concluded the offender had to spend in full-time custody, having regard to all the elements of punishment including rehabilitation, the objective seriousness of the crime and the offender’s subjective circumstances: Power v The Queen (1974) 131 CLR 623 at 628–629.

61. The aggravated break enter and steal offences each attracted a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years, for a mid-range offence. The circumstance of aggravation in each case was that the offence had been committed in company: s105A(1)(b) of the Crimes Act. The standard non-parole period was the statutory specification for an offence falling in the middle of the range of objective seriousness of such offending, having regard to the nature of the offending, rather than the characteristics of the offender: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [126]. Both the maximum penalties and the standard non-parole period were legislative guideposts, which had to be taken into account on sentence in the way there discussed.

62. The break and enter with intent offence attracted a maximum penalty of 14 years imprisonment. Ms Salazar’s driving offence attracted a maximum penalty of 9 months, it being her first offence

63. Having determined to impose aggregate sentences on the offenders, s 53A(2) of the Crimes Sentencing Procedure Act required Blackmore DCJ to indicate the sentences that would have been imposed for each offence, after taking into account such matters as were relevant under Part 3, or any other provision of that Act, had separate sentences been imposed for each offence. The indicative sentences given were:

1. Aggravated break enter and steal offence – taking into account the Form one offences – 4 years imprisonment – all offenders;

2. The three other aggravated break enter and steal offences – for each offence – 3 years and 3 months imprisonment – all offenders;

3. Driving recklessly - Ms Salazar – 9 months.

64. The longer indicative sentence for the offence which took into account the other four offences on the Form 1, reflected that the penalty for that offence had to be increased, because in such a sentencing exercise, greater weight must be given to the need for personal deterrence and the community’s entitlement to extract retribution for serious offences: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [39]-[42].

65. Otherwise these indicative sentences reflected Blackmore DCJ’s conclusions as to matters such as the objective seriousness of each offence, the offenders’ moral culpability and their subjective circumstances. They also had to take into account the 25% discounts which flowed from the entry of the pleas: PG v R [2017] NSWCCA 179 at [71]-[76].

66. Without discount these indicative sentences would, however, have been respectively 5 years and 4 months; 4 years and 4 months; and 12 months for Ms Salazar’s driving offence. Given that the maximum penalty for Ms Salazar’s driving offence was 9 months, it is apparent that the indicative sentences which Blackmore DCJ gave did not reflect a 25% discount. While no complaint was made about this approach by any party, it was an error which supports the conclusion that it was in arriving at the aggregate sentence, when the non-parole period was specified, that his Honour took into account both the 25% discount and the reduction he intended to give for delay.

67. It follows that it cannot be concluded that Blackmore DCJ failed to take into account the discount for delay, as he indicated that he would do. As discussed in Miller v R, delay can so be taken into account in fixing both a head sentence and a non-parole period.

68. In arriving at the aggregate sentence, the principle of totality also had to be applied. His Honour had to ensure that the aggregate sentence did not minimise the applicants’ offending conduct, or obscure or obliterate its range, or totality: R v MJB [2014] NSWCCA 195 at [58]-[60]. As the Crown submitted, the result of Blackmore DCJ’s approach involved considerable concurrency, which also supports the conclusion that delay was taken into account in arriving at that outcome.

69. The total indicative sentences given for Mr Johan, Ms Quintero and Ms Carvajal were 13 years, 9 months. A 25% discount on 13 years 9 months is a sentence of 10 years, 3 months, but these offenders were sentenced to an aggregate sentence of 6 years, 9 months, with one non-parole period of 5 years.

64. The total indicative sentences for Ms Salazar were 14 years, 6 months. A 25% discount would have resulted in a sentence of 10 years, 10 months, but she was sentenced to an aggregate sentence of 7 years, with a non-parole period of 5 years, 3 months.

65. This reflects the very considerable concurrency involved in the aggregate sentences which Blackmore DCJ imposed. In all of these circumstances, it is not open to conclude that in arriving at these sentences, his Honour did not take into account the delay which he indicated that he would take into account, in arriving at the non-parole period which was imposed on each offender.

66. In the result, it also cannot be concluded that his Honour erred in not finding the existence of special circumstances, to further reduce the non-parole period imposed on the applicants. That is because care must be taken to ensure that a non-parole period is not reduced because of a finding of special circumstances, which would involve double counting for matters already taken into account in calculating the head sentence: Trindall v R [2013] NSWCCA 229 at [17].

67. These grounds of appeal must thus be dismissed.

No additional leniency flowing from the lack of criminal record and good character – Ground 1 – Ms Salazar, Ground 2 – Ms Quintero and Ground 3 – Ms Carvajal

74. Blackmore DCJ noted that the offenders all had no Australian criminal records and observed:

“In some circumstances that might result in some additional leniency being applied to their cases, but given the offences committed and their repetitive nature I am not of the view that such leniency should be applied in their cases.”

75. It is settled that an offender may be entitled to lenience, if otherwise of good character: Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21. In that case the offender, a priest, had pleaded guilty to 14 sexual assault offences committed against young boys over a 20 year period, with 39 other offences taken into account on a Form 1. The sentencing judge had declined to take any account of the character evidence led by the offender from a number of witnesses. On appeal it had been concluded that he was not entitled to any leniency on account of that evidence.

76. It was concluded in Ryan that on sentencing, consideration must be given to evidence of a person’s character, without consideration of the offences for which the offender is being sentenced: at [23]-[25]. What weight will be given to evidence of good character must, however, be determined in light of the other evidence which arises to be considered and the nature and circumstances of the offences for which an offender is being sentenced. This may mean that the offender’s otherwise good character can only be a small factor to be weighed in the sentencing process: at [33]. But evidence of character that stands to an offender’s credit, must be given some weight: at [110]. While in some cases character evidence is of less importance, complete refusal to attach any significance to it whatever, involves error: at [111]-[112].

77. In Bidgood v R [2016] NSWCCA 138 evidence of good character was also not given any weight on sentence, because of the offending for which the offender was being sentenced. This conclusion was also held to have involved error, given that offending over a period of no more than three months, did not have the effect of negativing good character.

Ms Salazar and Ms Carjaval

78. In Ms Salazar’s case his Honour had to consider the report of the psychologist Ms Duffy where there was reference to a history given by Ms Salazar of drug abuse from age 8 or 9 and ice use in Australia of some $700 per week. This was corrected in her oral evidence, to $1,700, when she said that she had committed the offences for money for herself, her family, and also to fund a drug addiction.

79. In her evidence Ms Salazar also said that she had entered Australia on a fake passport, having realised that she would not obtain approval of an application for a visa, if made in her own name, even though she had not been in trouble in Colombia, or anywhere else. In cross-examination she denied that she had come to Australia to commit crimes and that in Colombia she had made enough income to support her drug habit, but that she had come to Australia to make enough money for her mother to buy a house, a plan which she had pursued by working as a prostitute and committing the offences for which she was being sentenced.

80. Ms Carvajal’s evidence was that she also had a drug habit, but that she had no criminal record in Colombia and had come to Australia on a tourist visa, in order to work as a prostitute to support her drug habit and to send money home. In Australia it was because she could not afford cocaine that she had used ice.

81. It is in this context that his Honour’s conclusion that “additional leniency” could not be given for the absence a criminal record in Australia, has to be considered, the evidence not establishing that either Ms Salazar or Ms Carjaval were otherwise of good character.

82. Not only was Ms Salazar in the country illegally, her student visa having been cancelled in March 2015 due to non-compliance with conditions, on her own evidence she had committed drug offences here, albeit she had not been charged or convicted of such offences. Ms Carvajal had also committed drug offences in Australia, having entered the country only on 4 September on a tourist visa, in order to work here as a prostitute, shortly prior to her involvement in the offending which commenced on 9 September.

83. As explained in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [32]:

“A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender’s known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration”.

84. This ground of appeal must thus be dismissed in their cases.

Ms Quintero

85. The position was different in Ms Quintero’s case.

86. She had entered Australia on a tourist visa in August 2015 and was also involved in the crime spree which commenced on 9 September, on her accounts to the psychologist and in the presentence report, in order to send money to Colombia.

87. His Honour doubted Ms Quintero’s evidence that she had come to Australia for a holiday, reflecting what was evidenced in the report of the forensic psychologist Mr Watson-Munro and in the presentencing report, as to the different accounts she had given about the circumstances in which she came to Australia. In cross-examination she said that it was Mr Johan who was her ex-boyfriend, that she had recommenced her relationship with him when she arrived in Australia and that she had committed her offences in order to earn money, to send home.

88. This evidence well explains the doubts which his Honour had expressed about Ms Quintero’s evidence as to the reason for her visit to Australia.

89. Ms Quintero was an American/Colombian citizen who had been born in America and was living and working in Colombia, before she came to Australia, after having also worked in America and Canada. Ms Quintero’s unchallenged oral evidence was that she had no other criminal convictions and that she had been working as a waitress in Colombia, before travelling to Australia for a holiday.

90. While there was thus a proper basis to question the real circumstances in which she came to Australia, there was no suggestion that Ms Quintero was in the country illegally, or that she had committed any other offences in Australia, or in Columbia, America or Canada.

91. It follows that like in Bidgood, Ms Quintero’s involvement over the course of a week shortly after her arrival in Australia, in offending which was out of character, could not preclude the unchallenged evidence that she had no record of other offending, including other uncharged offending in Australia, from being taken into account on her sentence.

92. It follows that this ground of appeal must be upheld in Ms Quintero’s case.

The failure to take into account the applicants’ subjective cases – Ground 2 – Ms Carvajal – Ground 4 – Ms Quintero and Ground 5 – Ms Salazar

The failure to take into account the applicant’s background of childhood deprivation – Ground 2 – Ms Salazar

The failure to take into account evidence of depression and hardship in custody caused by family circumstances – Ground 5 – Ms Quintero

Absence of disparity – Ground 5 – Ms Carvajal and Ground 7 – Ms Quintero

93. His Honour took the view that the four offenders’ subjective circumstances were not markedly different and that they all faced similar difficulties whilst in custody. He thus concluded that their sentences would be identical “the fact that their subjective circumstances were not markedly different not requiring a moderation in sentence in any one of their cases”: at p 9.

94. The basis for these conclusions is difficult to see, because on the evidence there were relevant differences between the offenders which arose to be considered, even though there were some undoubted similarities in their circumstances. Further, Blackmore DCJ did not explain why the difficult subjective circumstances of each of the applicants, did not warrant any amelioration of their sentences. In the case of Ms Salazar and Ms Carvajal, matters of the kind discussed in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, arose for consideration, but were not dealt with.

95. A consideration of the offenders’ respective circumstances was thus required, because on sentencing the principle of parity had to be applied, with the result that differences in their circumstances or cases, could result in different sentencing outcomes: Lowe v The Queen (1984) 154 CLR 606 at 623.

Personal hardship

96. There was, in each case, evidence of hardship in custody.

97. It is settled that those who come to Australia specifically to commit a serious crime, have no justifiable cause for complaint when incarcerated in this country, where the language is foreign and the offender is isolated from outside contact: R v Chu (Court of Criminal Appeal (NSW), 16 October 1998, unrep) per Spigelman CJ; R v Faneite (Court of Criminal Appeal (NSW), 1 May 1998, unrep) per Studdert J and R v Sugahara and Watanabe (Court of Criminal Appeal (NSW), 16 October 1998, unrep) per McInerney J.

98. Where there is evidence that an offender has limited English and no friends or family who are able to visit, making their imprisonment harsher than would be the case for the ordinary prisoner some, although not much recognition of these difficulties can be given: R v Huang (2000) 113 A Crim R 386 at [19].

99. It follows that the account which Blackmore DCJ took of the hardship caused each of the applicants by their custody, given their English language difficulties and isolation from their families, accorded with that available under these applicable principles.

Hardship to others

100. In the case of evidence as to hardship to others, it is only where circumstances are “highly exceptional” and where it would be inhumane to refuse to do so, that hardship to others in sentencing can be taken into account: R v Edwards (1996) 90 A Crim R 510, where Gleeson CJ said at 515:

“There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment.”

101. An offender being sentenced who is either pregnant, or the mother of young baby is a relevant factor to be taken into account: HJ v R [2014] NSWCCA 21 at [67] - [73]. None of the applicant’s fell into this category.

102. There was no evidence of hardship to others in the case of Mr Johan, but there was evidence to consider in the cases of the applicants.

Deprived background

103. Evidence of a deprived background may mitigate a sentence because the offender’s moral culpability may be less than the culpability of an offender whose formative years have not been marred in that way: Bugmy at [40]. The effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: at [42]–[43]. A background of that kind may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience, even where there has been a long history of offending: at [43].

104. There was no evidence of such a background in the case of either Mr Johan or Ms Quintero, but there was in the cases of Ms Salazar and Ms Carvajal which arose to be considered.

Mental Health

105. The fact that an offender was, or is, suffering from a mental disorder or disability, either at the time of the commission of the offence or at the time of sentencing may also be taken into account on sentencing, if it makes imprisonment more burdensome, in the way discussed in R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 at [118].

106. Each of the offenders gave evidence and their histories were not challenged. In the case of the applicants, there was also relevant evidence about their mental health to consider.

The relevant evidence

107. The relevant evidence as to these various matters, was as follows.

Mr Johan

108. There was no psychological assessment or presentence report in Mr Johan’s case, but he gave evidence about his circumstances, which included that he was aged 44 years and had children aged between 12 and 23 years from different relationships who depended on him and who he missed. There was, however, no evidence that he had contact with them in Mexico, or that they or their carers suffered ill health. Blackmore DCJ concluded that his offending was committed to support himself in Australia

109. There was no reference to evidence of drug abuse or mental health problems in his case.

Ms Salazar

110. The psychologist’s report relating to Ms Salazar, then aged 27, contained a history of having come from a poor Colombian family and having been subjected to domestic violence inflicted by her father when intoxicated, over the course of her parents’ unhappy marriage. From age 8 or 9 she began to abuse drugs such as cocaine and marijuana, as well as alcohol after her brother, who had been an important protector, died from an epileptic fit.

111. When aged 9, Ms Salazar was attacked in the street and raped, for which her father blamed her and her mother. There was documentary evidence about this assault and its adverse psychological consequences. On Ms Salazar’s account, this had resulted in depression and self-harm, which commenced when she was aged 10.

112. Despite the criminal environment in which Ms Salazar was living in Colombia, however, her evidence was that she never stole there. She left home at 15 and entered a relationship which produced a child, during which she was also subjected to domestic violence by her partner. That relationship broke up when she was 18 and she began moving around Bogota, supporting her son.

113. Ms Salazar was able to undertake a secretarial course at College and obtained work at a bank, as a part-time cashier/teller, as well as buying and selling clothes and eventually opening a small shop. She closed the shop and moved away, however, after being threatened by an extortionist gang, which had made her more anxious and increased her drug use. She then began working as an escort, suffering further mistreatment by men. She came to Australia on a student visa and enrolled in an English course at College. Her friend Ms Carvajal joined her, shortly before their arrest.

114. In Australia Ms Salazar also worked as an escort and began using ice, because she could not afford cocaine, developing an addiction to that drug. Her mother, who was unwell, was caring for her son in Columbia, was constantly asking when they could come to Australia. She could not afford to bring them here, because her earnings from escort work were not sufficient, given the cost of living in Sydney and because she was spending money on ice, so that she could be drugged when performing escort work.

115. Ms Salazar had been befriended by their co-offenders, who she and Ms Carvajal met in a club. She joined in the offending because of the money she out of this offending, but was usually affected by drugs during the offending.

116. In custody Ms Salazar had become drug free and had pursued helpful counselling and English courses and was highly motivated to pursue rehabilitation programs, but she was experiencing significant symptoms of depression.

117. The psychologist concluded that Ms Salazar showed evidence of depression and low self-worth from her adverse life experiences. Despite her resilience and determination to support her son by legitimate means, her efforts in Colombia had been met with threats of harm and extortion by criminal gangs, which had resulted in her use of drugs and alcohol to self-medicate and fortify herself, when working as an escort when she came to Australia. She was unaware of the addictive qualities of ice, until she had developed an expensive habit, while trying to support herself in Sydney and her mother and son in Bogota.

Ms Carvajal

118. Ms Carvajal was aged 31 on interview by the psychologist, whose report also reflected that she had a poverty stricken history, her violent father having separated from her mother, shortly after her birth. She remained in her mother’s care, while her father took her brother and her grandmother her sister. In the area of Bogota where she was raised, while Ms Carvajal successfully attended school to age 16, she was exposed to substance abuse, crime and violence from a young age. As a teenager she was insecure and anxious and began drug and alcohol abuse, to boost her confidence, using cannabis and ecstasy and later cocaine. By her mid-twenties she was regularly binge drinking and using ecstasy and cocaine.

119. Ms Carvajal studied law for 6 months before she entered her first relationship at 16, giving birth to her daughter in the first year of that relationship, which was marred by domestic violence and shared drug use. At age 20 she returned to live with her mother, struggling to find employment and eventually turned to prostitution. She did have a second relationship with a good man, giving birth to her second daughter, but he died in a car accident when she was 24. She then returned to prostitution and drug and alcohol abuse.

120. Ms Carvajal said that she moved to Australia a year after one of her friends had come here to work as an escort. When she arrived she spent her time partying and did not have stable accommodation. She continued to binge drink and use cannabis and MDMA, funded by her prostitution. When she met her co-offenders she was encouraged to become involved in their offending and began to use ice, which she was told would reduce her anxiety.

118. A month before her offending, Ms Carvajal repeated that she had been diagnosed to be suffering stress and depression and was prescribed psychoactive medication, but could not provide details, nor details of the antidepressants she claimed to be taking in custody. She reported persistent low mood, tearfulness, boredom and trouble sleeping. In custody she was not, however, seeking help for her drug addiction.

119. Ms Carvajal’s eldest daughter lived with her mother and her youngest, with her maternal grandmother. She had limited contact with her children, who did not know that she was in prison.

120. On testing, Ms Carvajal was assessed to be suffering severe anxiety, but her stress levels fell within normal range. It was concluded that her cognitive functioning fell within the average range, but that she was suffering symptoms of depression and anxiety, reflective of her long standing emotional deregulation, exacerbated by her current circumstances. Treatment for her depression, anxiety and drug abuse was recommended.

Ms Quintero

124. Ms Quintero was aged 35. The psychologist’s report indicated that she was the youngest of seven children, who had initially been educated in the US, where she was born, and later in Colombia. After school she studied beauty therapy over two years, while working in various salons. She then returned to the US, where she worked in real estate, before moving to Toronto, Canada.

125. Ms Quintero married the father of her four and a half year old child in 2011, but the relationship failed. She returned to live with her parents in Colombia, where her former husband also now lives, but provides no support to her child. Her son is a severe asthmatic, being cared for by her parents, who are also ill, her mother requiring heart surgery and her father suffering kidney failure. She has no contact with her son while in custody and has considerable concerns about his welfare.

126. Ms Quintero's account to the psychologist that she had intended to come to Australia to be with the man who she had gotten into a relationship with, but had ended the relationship before her travel here by phone. She had still travelled to Australia to visit her friend Giselle, so that she would not lose her ticket.

127. Ms Quintero denied any drug or alcohol abuse, but claimed longstanding symptoms of depression following the breakdown of her marriage, subsequent financial pressures, her husband not contributing financially for her son’s care and because of difficulties with life in Colombia.

128. The psychologist noted that she displayed extreme distress over her offending and a sense of despair over her future. She was diagnosed to be suffering a depressive disorder, according to DSM-5 criteria, but denied any major psychiatric disturbance. Ms Quintero was not receiving any treatment in custody but was undertaking vocational programs and attempting to improve her English.

129. In the presentence report it was noted that Ms Quintero had moved to Colombia when aged 10 and had come to Australia, hoping to be reunited with an ex-boyfriend, one of her co-offenders, who other evidence established was Mr Johan. She described herself to have been as an above average scholar at school, where she obtained the equivalent of the HSC and had worked continuously after leaving school, in a variety of roles.

130. Ms Quintero’s explanation for her offending was noted to be to use the proceeds to funnel funds to her impoverished family and having become involved in order to ingrate herself with Mr Johan. It was noted that she was somewhat traumatised by her incarceration and separation from her son, but there were no identified crimogenic issues which in her case, could be addressed in custody by available programs.

Error is established

131. It is apparent that the subjective circumstances of the offenders, was not relatively the same, as Blackmore DCJ concluded. In the result, I am satisfied that in the case of each applicant relevant error as established for the following reasons.

Ms Quintero

132. Ms Salazar, Ms Carvajal and Ms Quintero each had a child or children for whom they had been the carer, while living in Columbia, who they had left there in the care of family members, who were suffering financial problems, which the applicants had sought to help alleviate by their offending. There was no such evidence in Mr Johan’s case.

133. Ms Quintero, however, did not have either a history of drug or alcohol abuse, or a poverty stricken background, marred by domestic violence. Her subjective circumstances thus did not entitle her to any leniency on sentence on that account. The evidence is that ill health which her 4 year old child is suffering, is long-standing and, of itself, does not establish circumstances of the kind discussed in Edwards, which might lead to some amelioration of her sentence, notwithstanding that this is undoubtedly of real concern to her. It is the unchallenged evidence as to her parent’s serious poor health and what that may mean for the ongoing care of her son in Colombia, which arose to be considered together with the evidence as to her mental health, in determining whether an exceptional case of the kind described in Edwards, has been established in her case.

134. While Ms Quintero pursued her offending for financial benefit and to ingratiate herself with Mr Johan, she came from a markedly different background than that of either Ms Salazar or Ms Carvajal. She was not suffering the consequences of long term drug addiction, which undoubtedly contributed to their decisions to pursue their involvement in this offending, but her different circumstances have resulted in adverse consequences for her mental health.

135. Given the evidence as to the dire consequences of poverty and lack of family support from a young age in Bogota, established by the evidence received about Ms Salazar and Ms Carvajal’s upbringing, that in Ms Quintero’s case the depression from which she is suffering in custody must be considered, given what her young son faces, given his grandparent’s ill health and his mother’s incarceration in Australia. I consider that this evidence did establish an exceptional case in her situation of the kind discussed in Edwards.

136. This was a difference in her circumstances to that of the other offenders, which had to be considered on sentencing Ms Quintero. His Honour erred in not taking these matters into account.

Ms Salazar

137. The evidence that Ms Salazar had been diagnosed to be suffering depression which requires treatment, when considered together with the evidence which includes circumstances falling within the class of cases discussed in Bugmy, establishes a basis for the conclusion in her case, that her subjective circumstances were different to those of both Mr Johan and Ms Quintero.

138. Contrary to Blackmore DCJ’s conclusion, Ms Salazar’s subjective circumstances included a seriously deprived, poverty stricken life in Colombia, adversely affected by ongoing domestic violence and rape during childhood, which resulted in adverse mental health consequences, lifelong drug and alcohol abuse and finally, the offending in this country for which she was being sentenced.

139. It follows that Blackmore DCJ also erred in failing to take those matters into account, when sentencing Ms Salazar.

Ms Carvajal

140. In Ms Carvajal's case, on balance, a similar conclusion must be reached to that arrived at in Ms Salazar’s case, given the evidence as to her background, drug abuse and mental health, even though the evidence as to her circumstances showed that her background was not quite as objectively deprived as that which Ms Salazar had suffered.

141. Again, Blackmore DCJ also erred in not taking those matters into account in sentencing Ms Carvajal.

142. In the result these grounds of appeal must be upheld in each case.

Manifest excess – Ground 4 – Ms Salazar, Ground 6 – Ms Carvajal and Ground 8 – Ms Quintero

143. To establish this ground it must be established that the sentences are unreasonable and plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54. I have already explained why his Honour erred in concluding that the same sentences should have been imposed on all of the offenders, given relevant differences in their subjective circumstances and in Ms Quintero’s case, his Honour’s failure to take into account evidence of her prior good behaviour.

144. All of the matters I have discussed had to be taken into account, as did the principle of parity, in arriving at the appropriate sentence in the case of each offender. On the evidence I have discussed, I am satisfied that the sentences imposed on each of the applicants should have been lower than that imposed on Mr Johan.

145. I also consider that the sentences imposed on Ms Carvajal and Ms Quintero must be the same, albeit for different reasons. I consider however that overall, the result of the consideration of all of the matters I have discussed properly leads to the same sentence in their cases.

146. The sentence imposed on Ms Salazar must be higher, because she is also being sentenced for the driving offence which she committed, when she fled from police prior to her arrest. The sentence imposed for that offence should not, however, commence with the maximum available prior to discount, given its objective seriousness and given its connection to the last aggravated break enter and steal offence for which she is being sentenced, there must also be considerable concurrence in the sentences imposed upon her, for these offences.

Resentence

147. On resentence it is necessary to give indicative sentences, which take into account all of the matters I have discussed, including discount for delay and the 25% discount. They are:

1. The first aggravated break enter and steal offence – taking into account the Form 1 offences – 2 years, 6 months’ imprisonment, with a non-parole period of 1 year, 11 months – all applicants;

2. The three other aggravated break enter and steal offences – for each offence – 2 years, 2 months’ imprisonment, with a non-parole period 1 year, 8 months – all applicants;

3. Driving recklessly – Ms Salazar – 4 months.

148. The aggregate sentences which I consider should be imposed on each offender, after application of the principle of totality, are:

1. Ms Quintero an aggregate sentence of 5 years, 3 months and a non-parole period of 4 years.

2. Ms Carvajal an aggregate sentence of 5 years, 3 months and a non-parole period of 4 years.

3. Ms Salazar an aggregate sentence of 5 years, 5 months and a non-parole period of 4 years, 1 month.

Orders

149. The orders I would make are:

1. Leave to appeal granted to the applicants;

2. Appeals upheld;

3. Sentences imposed by Blackmore DCJ upon Ms Quintero, Ms Carvajal and Ms Salazar set aside;

4. The applicants are resentenced as follows:

1. Ms Quintero – sentenced to a non-parole period of 4 years imprisonment commencing on 17 September 2015, ending on 16 September 2019, with a balance of term of 1 year, 3 months expiring on 16 December 2020. Her release to parole on 16 September 2019 is recommended.

2. Ms Carvajal – sentenced to a non-parole period of 4 years imprisonment commencing on 17 September 2015, ending on 16 September 2019, with a balance of term of 1 year, 3 months expiring on 16 December 2020. Her release to parole on 16 September 2019 is recommended.

3. Ms Salazar – sentenced to a non-parole period of 4 years, 1 month imprisonment commencing on 17 September 2015, ending on 16 October 2019, with a balance of term of 1 year, 4 months expiring on 16 February 2021. Her release to parole on 16 October 2019 is recommended.

150. BUTTON J:

Introduction

151. I have had the advantage of reading the judgment of Schmidt J in draft, in which her Honour has dealt with the task of resolving 18 separate grounds of appeal against sentence prosecuted by three applicants, and also of reading the judgment of Simpson AJA in draft.

152. I agree with the substantial majority of what Schmidt J has written. In particular, I agree with the disposition of the matter by way of the orders proposed. Although I respectfully disagree with Schmidt J with regard to some matters, they are not determinative of the appeal, and accordingly I believe that I can be very brief with regard to them. And although my reasons for these disagreements are similar to some of the reasons of Simpson AJA, I set out my own views below.

Matters in which I concur

153. Moving through the grounds in the order in which they are dealt with in Schmidt J’s judgment, I agree that ground 1 of Ms Quintero and ground 1 of Ms Carvajal should be rejected (what I shall call compendiously the first discussed ground, summarised in the judgment of Schmidt J by way of the heading above [44]). I do not accept that the learned sentencing judge committed any error with regard to the relationship between the role of those two applicants in the joint criminal enterprise, and the assessment of their moral culpability.

154. I respectfully disagree, however, with Schmidt J with regard to the question of whether the sentencing judge failed to give effect to the finding about delay (asserted by all applicants), or the failure to find special circumstances (asserted by ground 6 of Ms Quintero) (the second discussed ground, summarised above [55]). I shall return to my reasons for that shortly.

155. As for the proposition that the sentencing judge erred by providing no additional leniency based upon the lack of a criminal record in Australia and good character, as asserted by ground 1 of Ms Salazar, ground 2 of Ms Quintero, and ground 3 of Ms Carvajal (the third discussed ground, summarised above [74]), I agree that the ground should be rejected with regard to both Ms Salazar and Ms Carvajal. I shall provide my own brief analysis as to why.

156. In contrast to Schmidt J, however, I also believe that the ground should be rejected with regard to Ms Quintero. Again, I shall return to the third discussed ground shortly.

157. As for the asserted failure to take into account the subjective cases of the applicants; the asserted failure to take into account the deprived background of Ms Salazar; the asserted failure to take into account the depression and hardship in custody of Ms Quintero; and the asserted failure to provide appropriate disparity of sentence asserted by Ms Carvajal and Ms Quintero (the fourth discussed ground, the summary of which appears as the heading above [93] of the judgment of Schmidt J), I agree, for the reasons that Schmidt J has given, that error has been established that calls for consideration of re-sentence. In particular, I respectfully think that a greater level of discrimination with regard to the differing subjective circumstances of each applicant was required at first instance.

158. As for the assertion of all applicants that the sentence imposed upon each of them was manifestly excessive (the fifth discussed ground, summarised above [143]), I am content to adopt the approach of Schmidt J, which I understand as being simply reflecting on all of the propositions underpinning the successful fourth discussed ground when considering re-sentence.

159. If it be necessary to determine separately this fifth discussed ground, I would simply express the view that the aggregate sentences imposed were, on the one hand, not insignificant, but, on the other hand, not beyond the discretion reposed in the sentencing judge.

160. Accordingly, I would not uphold the fifth discussed ground on its own.

161. As for re-sentence, I agree in the proposals of Schmidt J, including with regard to all indicative sentences.

Credit for absence of a criminal record in Australia?

162. Returning first to what I have called the third discussed ground, it is founded on the following portion of the remarks on sentence at page 3:

“I note that the offenders all have no Australian criminal records. In some circumstances that might result in some additional leniency being applied to their cases, but given the offences committed and their repetitive nature I am not of the view that such leniency should be applied in their cases.”

163. In my opinion, by explicitly referring to “Australian criminal records”, and by using the word “additional”, the sentencing judge was implicitly accepting that each of the three applicants should have credit for the absence of evidence of criminality on their parts in foreign countries. The specific question that the sentencing judge was resolving adversely in the paragraph under consideration was, in my opinion, whether the applicants should have credit for their absence of criminal records in this country.

164. If confirmation for that interpretation is required, it may be found in the reference in the remarks on sentence to the statement of Ms Quintero that she had no convictions, whether in Colombia or in the United States of America, combined with the view of the sentencing judge that there was nothing significant to differentiate the subjective cases of the three applicants.

165. To summarise the chronology relevant to this question of additional leniency: the remarks on sentence record that Ms Salazar came to Australia on a false passport, without detailing when that occurred. Nor do the agreed facts say precisely when she arrived, although they do refer to her student visa having been cancelled on 15 March 2015, due to her failure to comply with its conditions.

166. A psychological report tendered on sentence on behalf of Ms Salazar speaks of her arriving in Australia “at the end of 2014”. The same report speaks of Ms Salazar working as a sex worker in this country, and using the prohibited drug ice prior to her arrest.

167. The remarks on sentence record that Ms Quintero had said that she came to Australia in August 2015. And the agreed facts record that Ms Quintero “arrived in Australia on a Tourist Visa in August 2015”, which expired a few months later.

168. The remarks on sentence record that Ms Carvajal arrived in Australia on her passport, without saying when. The agreed facts record that she arrived in Australia on 4 September 2015 on a Colombian passport endorsed with a tourist visa.

169. The agreed facts show that the first offence occurred on 10 September 2015. Many further serious offences were committed after that.

170. Dealing with Ms Carvajal first, she was in Australia for less than a week before she committed the first of a number of serious offences. It was perfectly open to the sentencing judge to deny her leniency based on the absence of a criminal record on her part over a period of six days; indeed, any other approach would have been surprising.

171. Ms Quintero was in this country for something in the order of a month, and in my opinion the same analysis is apposite.

172. Ms Salazar was in Australia for less than a year before the commission of the first offence. During that time, she breached the conditions of her student visa, and was also using an illegal drug. In my opinion, it was open to the evaluative judgment of his Honour to refuse to provide any additional leniency based on the fact that she was free of criminal convictions during that period of less than 12 months.

173. In short, I consider that it was open to the sentencing judge to take the approach that he did with regard to this discrete question. That is why I would not uphold what I have called the third discussed ground with regard to any applicant.

Reduction of non-parole periods to reflect delay?

174. Returning now to what I have called the second discussed ground, in the remarks on sentence, the following appears at page 8:

“DELAY

I acknowledge that there has been some consideration [sic; considerable?] delay in finalising the sentencing proceedings. Apparently the proceedings were adjourned on a couple of occasions. The effect of the delay is that each of the offenders has remained on remand rather than being housed as sentenced prisoners. It is uncontroversial that prisoners who have been sentenced have access to greater services in custody than those on remand. All of the offenders have been disadvantaged by the delay in the proceedings; it is a factor that I will take into account on sentence by reducing their non-parole periods.”

175. In contrast to the seeming import of the last sentence quoted above, with regard to Ms Salazar, the sentencing judge had earlier said “I do not find that there are any special circumstances in the case of this offender.” With regard to Ms Quintero, his Honour said “[i]n my view there is no basis shown for a finding of special circumstances.” With regard to Ms Carvajal, his Honour spoke identically. Furthermore, that third refusal to find special circumstances appears in the very paragraph preceding the extract above, and therefore must have been pronounced literally seconds before his Honour turned to the question of delay, and spoke of reduction in the non-parole periods on account of it.

176. Although his Honour provided indicative head sentences, no indicative non-parole periods were provided. In other words, it cannot be that the reference to reduction of the non-parole periods in the extract above is a reference to the indicative non-parole periods.

177. As well as that, it can be seen that each of the aggregate non-parole periods imposed on each of the three applicants is 75% of her aggregate head sentence.

178. The conundrum therefore is simply that, on the one hand, his Honour spoke explicitly of a reduction in the non-parole periods to reflect delay whilst, on the other hand, his Honour separately found no basis for such a reduction, and clearly did not give effect to any such reduction.

179. Schmidt J expresses the view that, in truth, his Honour effected a reduction to the aggregate head sentence in each case. I respectfully see how Schmidt J comes to that view. In all the circumstances, however, I respectfully think that the simpler explanation is that a slip occurred, in the context of needing to sentence four offenders for multiple offences, in the context of the notoriously busy sentencing lists of the District Court, and in the regrettable context of no counsel who appeared at first instance drawing that slip to the attention of his Honour.

180. In my opinion, the second discussed ground should be upheld as well.

Conclusion

181. In short, I agree that error affected the sentencing process at first instance; that consideration of re-sentence is called for; that lesser aggregate head sentences and aggregate non-parole periods are warranted in law; and that the orders proposed by Schmidt J should be made. The distance between Schmidt J and me is simply a matter of the parameters of established error: in one aspect I would not go as far as Schmidt J, and in another aspect I would go further.

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Decision last updated: 31 August 2018