R v Blanco

[1999] NSWCCA 121

Reported Decision: 106 A Crim R 303

New South Wales

Court of Criminal Appeal

CITATION:	R v Blanco [1999] NSWCCA 121
FILE NUMBER(S):	CCA 60235/88
HEARING DATE(S):	14 May 1999
JUDGMENT DATE:	14 May 1999
PARTIES :	Jose Blanco The Crown (Commonwealth)
JUDGMENT OF:	Wood CJ at CL at 1; Bell J at 28; Smart AJ at 29

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Sides DCJ

COUNSEL:	F.A. Veltro (Crown) T.A. Game SC (Appellant)
SOLICITORS:
CATCHWORDS:
DECISION:	Application for leave to appeal granted; Appeal allowed; Sentence below quashed and in lieu sentenced to imprisonment for 10 years and 6 months to date from 9/7/97; specified non-parole period 7 years; earliest date on which eligible for release on parole 8/7/2004.

IN THE COURT OF
CRIMINAL APPEAL

No. 60235 / 98

WOOD CJ at CL
BELL J
SMART AJ

FRIDAY 14 MAY 1999

REGINA (COMMONWEALTH) V JOSE BLANCO

The applicant pleaded guilty to one count of being knowingly concerned in the importation of not less than the trafficable quantity of cocaine, contrary to s 233B of the Customs Act 1901.

He sought leave to appeal against a head sentence of twelve years with a non-parole period of eight years, imposed by the District Court, on the following bases: that the sentence as manifestly excessive; that insufficient weight was given to the plea of guilty, or to the delay in prosecution, or to the fact that the applicant was a young man with a clear record; that the level of sentence for this offence was misapprehended; and that error occurred in determining where the applicant stood in the “hierarchy” of those involved in the importation.

HELD (allowing the application):

(1) Due to the strong case against the applicant, coupled with his attempts in evidence to minimise his involvement, it follows that the guilty plea was barely indicative of contrition, and the discount was properly regarded as relatively insignificant.
Ellis (1986) 6 NSWLR 603; Chi Yip Wong & Sai Chue Ng (1988) 39 A Crim R 1; Turner (NSWCCA, 21 August 1991, unreported), cited.

(2) Delay should be taken into account when sentencing an offender for the following reasons: the offender may have been left in uncertain suspense; the offender may have demonstrated rehabilitative progress in the intervening period; and a sentence for a stale crime calls for flexibility of approach, it being in the public interest that those suspected of serious crime be brought to justice quickly Todd (1982) 2 NSWLR 517; Mill (1988) 166 CLR 59; Harrison (1990) 48 A Crim R 197; King (NSWCCA, 24 February 1998, unreported), cited.

(3) The present was not a case which called for consideration of the first two of these matters. However there was a lengthy and unexplained delay in charging the applicant, and insufficient weight was given to this factor in the sentencing process.

(4) Age and prior character are of less significance when offences of this kind are before the court. Ferrer-Esis (1991) 55 A Crim R 231; Leroy (1984) 2 NSWLR 441; Chai (1992) 60 A Crim R 305; Smith (NSWCCA, 20 August 1998, unreported); Budiman (NSWCCA, 8 September 1998, unreported), considered.

(5) There was no suggestion that his Honour sentenced the offender for anything other than a one-off importation. The matters taken into account were relevant to a determination of the applicant’s role, and hence of his objective criminality.
Raz (NSWCCA, 17 December 1992, unreported); Dinic (NSWCCA, 3 September 1997, unreported), considered.

(6) The sentence fell outside that range for an offender who was a rung above a “mere courier” in relation to a trafficable quantity of cocaine, once allowance was made for the unexplained delay in prosecuting the applicant.
Bernier (1998) 102 A Crim R 44; Ferrer-Esis (supra); Robertson (NSWCCA, 6 November 1998, unreported); Raz (supra); Foster & D’Anna (1992) 59 A Crim R 14; Kogelbauer (1992) 65 A Crim R 357; Saisuwan (NSWCCA, 30 September 1994, unreported); Wu (1997) 98 A Crim R 463; Dodd (NSWCCA, 30 June 1998, unreported); Mareno (NSWCCA, 4 November 1994, unreported), considered.

ORDERS PROPOSED

(1) Application for leave to appeal granted and appeal allowed;
(2) Sentence below quashed;
(3) In lieu thereof, a head sentence of ten years and six months with a non-parole period of seven years imposed.

IN THE COURT OF
CRIMINAL APPEAL

No. 60235/98

WOOD CJatCL
BELL J
SMART AJ

FRIDAY 14 MAY 1999

REGINA (COMMONWEALTH) v JOSE BLANCO

JUDGMENT

1 WOOD CJ AT CL: The applicant seeks leave to appeal against a head sentence of twelve years with a non-parole period of eight years that was imposed upon him by Sides DCJ following his plea of guilty to one count of being knowingly concerned in the importation of not less than the trafficable quantity of cocaine, contrary to s.233B of the Customs Act 1901. The quantity of cocaine involved was 341.2 grams, well over that prescribed as the trafficable quantity for that substance. The maximum penalty for the offence is penal servitude for twenty-five years and/or a substantial fine.
2   The cocaine concerned was brought into this country by Jorge Mareno on 18 November 1992. He had that day arrived on a flight from South America after obtaining the drugs in Bolivia. They were contained in condoms which he had swallowed. He was detained at the Customs barrier and later x-rayed at the St George Hospital where the presence of drugs within his body was confirmed.
3   He was sentenced, after a plea of guilty, to a head sentence of ten years with a non-parole period of six years. An appeal against that sentence was dismissed by the Court of Criminal Appeal. The appeal was confined to the submission based upon evidence said to have been fresh evidence as to his alleged preparedness to assist the authorities. No argument was advanced to the effect that the sentence was manifestly excessive although it appears that by its decision, the court accepted it to be within the legitimate range.
4   The Crown case against the present applicant is based upon an account given by Mr Mareno, an account given by Ms Rivaz and the admissions which the applicant made when interviewed following his arrest. He did not dispute the account given by Miss Rivaz but did dispute that given by Mr Mareno. For that purpose he gave sworn evidence, in the sentencing proceedings, which, his Honour found, was designed to show that his role in the importation was less than that described by Mr Mareno. 5   His Honour found the applicant to be a most unimpressive witness who chose deliberately not to give to the court a full account of his role in the importation. In the result, his Honour accepted Mr Mareno's evidence that the applicant's role was more than that of a mere introduction agent or messenger for the principal. His role was higher up the hierarchy.
6   The account of Mr Mareno that was accepted shows that he, Mr Mareno, was approached by the applicant in March 1992 to act as a courier, to go to South America and to bring the cocaine back to Australia. The applicant, he said, insisted that he go ahead with the trip when he began to show some signs of reluctance. Later, in company with a Mr Vengas the applicant assisted Mr Mareno in obtaining a passport and an airline ticket. Mr Mareno was promised ten thousand dollars if he would make the trip. The applicant instructed Mr Mareno before he left this country not to talk to anybody if anything went wrong. He gave him $US5,000 that he was to hand over to the applicant's brother in South America together with $US500 spending money. He informed Mr Mareno that he was to deliver the cocaine to him on his return to this country.
7   The applicant and a Mr Rodriguez attended at Sydney Airport to meet Mr Mareno on his return. When he failed to emerge from the arrival hall at Sydney Airport the applicant, who had been waiting for him, went to the home of his de facto where he told her to instruct Mr Mareno not to talk. He threatened the safety of the de facto as well as that of the family and relatives of Mr Mareno if he decided to speak to the authorities. He then drove her to the Sydney Police Centre where Mr Mareno was being held.
8   The applicant admitted in his record of interview that he later provided approximately $3,500 to Mr Mareno's solicitors to assist with his legal defence.
9   These factual findings are not now in dispute and it was clearly open to his Honour to come to the conclusion that the applicant occupied a position in the chain of hierarchy for this operation well above that of a mere courier. His criminality, accordingly, was properly found to be markedly more serious than that of Mr Mareno.
10   The applicant was twenty-two years of age at the time of the offence and twenty-eight years of age at the time he came to be sentenced. He was a single man and he had no prior convictions save for a minor conviction for the offence for possession of cannabis.
11 There was an inexplicable delay in the arrest and charging of the applicant, that event not having occurred until he was interviewed, it would seem for the first time, on 9 July 1997. His Honour said that he had taken this into account when directing himself in terms of Todd (1982) 2NSWLR 517 at 519 and Mill (1988) 166CLR 59 at pp.64-66. His Honour said that the applicant was “entitled to a significant added element of leniency” on that account.
12   It was submitted that the sentence imposed was manifestly excessive and that his Honour must have given insufficient weight to the plea of guilty, to the delay in prosecution and to the fact that the applicant was a young man with a clear record. Additionally or alternatively, it was submitted that his Honour must have misapprehended the appropriate level of sentence for the importation of a quantity of cocaine such as was involved in this case.
13 It was also submitted that his Honour had fallen into error in concentrating on where the applicant had stood in the “hierarchal tree”, to the point where it was possible that he had been sentenced for matters of which he had not been convicted. 14 Some of these matters may be relatively shortly dealt with. First, by reason of the admissions, and the evidence available, the applicant's conviction, if he had pleaded not guilty, was, in my view, inevitable. The case was properly to be characterised as a strong case against him. In those circumstances, particularly when combined with his Honour's assessment as to the untruthfulness of the applicant in attempting to minimise his involvement, the fact of the plea was barely indicative of any contrition. The discount for that matter was properly to be regarded as relatively insignificant (see Ellis (1986) 6NSWLR 603; Chi Yip Wong and Sai Chue Ng (1988) 38 A Crim R1 and Turner (Court of Criminal Appeal NSW 21 August 1991, unreported).
15 His Honour, as I have already indicated, expressly stated that he had not overlooked the fact of delay, however, it does not appear from the reasons for sentence precisely what reduction was given for that factor. 16 The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach: See, in addition to Todd and Mill, the decisions in Harrison (1990) 48 A Crim R 197 at 198-199 and King (Court of Criminal Appeal NSW, 24 February 1998).
17   The present was not a case where the applicant had been arrested and had spent a long time awaiting sentence, or in a state of suspense as to whether he might be charged; nor is it a case where he had shown any commitment towards rehabilitation after having realised the error of his ways. However, it remains the fact that it is highly desirable that the prosecuting authorities act promptly where they have evidence of serious criminality. If they fail to do so, then they must expect that circumstance to be taken into account on sentencing. It is in the public interest that those who are suspected of serious criminality be brought to justice and be brought to justice quickly, particularly where there is a strong case available against them. I will return to this fact later, because it does seem to me that insufficient weight was given to it in the sentencing process.
18 A further matter relied upon in this appeal was the age and prior character of the applicant. As this court has said, on many occasions, those factors are of lesser moment when offences of this kind are before the court: See Ferrer-Esis (1991) 55 A Crim R 231 at 238; Leroy (1984) 2NSWLR 441; Chai (1992) 60 A Crim R 305 at 352.
19   Unfortunately it is the fact that offenders often seek to use subjective circumstances of this kind not only to escape detection at the Customs Hall, but also in the expectation of obtaining leniency if caught. They need to be firmly disabused of that notion. This court has declared that to be so in unequivocal terms: see for example Smith CCA NSW 20 August 1998 and Budiman CCA NSW 8 September 1998.
20   I cannot accept the submission that in the approach which was taken in determining and specifying the rung in the hierarchy of importation occupied by the applicant, that his Honour fell into error, or ended up sentencing him for other uncharged offences. What was done accorded with the observations of this court in Raz (Court of Criminal Appeal New South Wales NSW 17 December 1992), where Hunt CJatCL said:

“It is always relevant in the sentencing process to know just where a person guilty of importing drugs into Australia, or of being knowingly concerned in their importation, stands in relation to the organisation for which he commits that offence. He may have been recruited either here or overseas to bring the drugs into Australia for reward on one occasion only, and to hand them over to someone here. Such a person is the ‘mere or mere courier’, and that is at one end of the spectrum of culpability. At the other end is the principal of the organisation, or other senior person, who recruited the courier or who organised the supply of drugs overseas or their distribution locally. In between there are many levels. But all are relevant in assessing the culpability of the person who is guilty of one or other of those offences, and thus the sentence which is appropriate to that culpability.”

See also Dinic (Court of Criminal Appeal New South Wales NSW 3 September 1997).

21   There is no suggestion that his Honour sentenced the applicant other than for a one-off importation. In order to determine his objective criminality, his Honour had to determine what his role was. The matters taken into account, both preceding and following the offence, were matters from which inferences could properly have been drawn in reaching a conclusion on that subject. They show unequivocally to my mind that the applicant's criminality was of a very serious kind.
22 I turn then to the submission that the sentence was outside the range legitimately available for an offence of the kind charged, and to the submission that his Honour must have misapprehended the appropriate level of sentence for an offence involving the quantity of cocaine here involved. The submission advanced in this respect rests upon the proposition that having regard to the maximum sentence available, and to the need for the discount required by s.66G of the Crimes Act, the starting point adopted by his Honour, after taking into account the other subjective circumstances, must have been one approaching the maximum available sentence.
23 Further, it was submitted that his Honour failed to give proper regard to the decision of this court in Bernier, (1998) 102 A Crim R 44, concerning Ferrer-Esis (1991) 55 A Crim R 231. In Bernier, it was said by the Court at 49:

"…what can be said is that the pattern of sentences for substantial quantities of drugs identified by Hunt J in Ferrer-Esis (eight and a half to eleven years) should now be seen as appropriate for the importation by couriers of drugs in quantities at the low end of the commercial range. We doubt that twelve years is within that range but if it is it is right at the top of it".

24   It is true to say that some different views have been expressed in this Court, concerning the analysis undertaken in Bernier, in respect of the pattern of sentencing since Ferrer-Esis. That divergence of opinion seems to me to point towards the desirability of the Court reconsidering the matter by way of a guideline judgment. The present case is not, however, an appropriate vehicle for such an exercise and I do not think it helpful, on this occasion, to undertake any further review of the cases relied upon in Bernier in support of the conclusion that was there reached. I do, however, observe that Bernier was a casse involving a courier, with some exceptional circumstances relating to the presence of duress (leading to severe depression), and the possibility of an acquittal had that defence been raised: Robertson (Court of Criminal Appeal New South Wales 6 November 1998.
25 A series of cases were helpfully brought to our attention, concerning what was said to be an appropriate range for an offender who occupies the rung above a courier in relation to trafficable quantities of cocaine. I refer in particular to the decisions in Raz (Court of Criminal Appeal New South Wales NSW 17 December 1992; Foster and D'Anna (1992) 59 A Crim R 14; Kogelbauer (1992) 65 A Crim R 357; Saisuwan (Court of Criminal Appeal New South Wales NSW 30 September 1994); Wu (1997) 98 A Crim R 463; Dodd (Court of Criminal Appeal New South Wales NSW 30 June 1998) and finally Mareno (Court of Criminal Appeal New South Wales NSW 4 November 1994), that last mentioned case involving the co-offender of the applicant.
26   Having regard to those decisions, I have reached the conclusion that the present sentence falls outside the legitimate range once allowance is made for the inordinate and unexplained delay in the prosecution of the appellant. I am satisfied that the factor of delay operates to create a legitimate distinction between this case and that of Mr. Mareno. The adjustment, however, is not an adjustment which I consider should be particularly significant having regard to the very substantial criminality of the present offender.
27   I would propose that the application for leave to appeal be granted, that the appeal be allowed, the sentence below be quashed and that in lieu thereof the applicant be sentenced to a head sentence of ten years and six months with a non-parole period of seven years.
28   BELL J: I agree.
29   SMART AJ: I also agree.
30   WOOD CJ AT CL: The order of the court will accordingly be as I have proposed. The applicant will be sentenced to imprisonment for ten years and six months, such sentence to date from 9 July 1997 and to expire on 8 January 2008. I specify that the non-parole period shall be one of seven years. The earliest date on which the applicant will be eligible for release on parole will be 8 July 2004.

**********