R v Cruz

Case [2016] QCA 183

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cruz [2016] QCA 183

PARTIES:

R
v
CRUZ, Felipe Martins
(applicant)

FILE NO/S:

CA No 275 of 2015
SC No 822 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 18 September 2015

DELIVERED ON:

15 July 2016

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2016

JUDGES:

Margaret McMurdo P and Fraser JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application to adduce evidence is granted.

2.   The application for leave to appeal against sentence is granted.

3.   The appeal against sentence is allowed.

4.   The sentence imposed is set aside and the matter is remitted to the Trial Division for sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – MISCARRIAGE OF JUSTICE – where the applicant pleaded guilty to importing a marketable quantity of a border controlled drug, cocaine, and possessing a dangerous drug, cannabis – where the applicant was a Brazilian citizen with poor English skills – where the applicant encountered difficulty communicating with his lawyers due to a language barrier – where the applicant signed an agreed statement of facts without understanding the entirety of the document – where, had the applicant understood the statement of facts, he would have contested important factual matters – where the applicant’s solicitors failed to take instructions as to his role in the offending and explain how this differed from the prosecution case with the assistance of an interpreter – whether there was a miscarriage of justice

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, cited
Lau v R [2011] VSCA 324, cited
R v Agboti (2014) 246 A Crim R 72; [2014] QCA 280, cited
R v Alvarez[2000] QCA 290, cited
R v Jimson[2009] QCA 183, cited
R v Kaufusi and Moala[1998] QCA 294, cited
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited
R v Mokoena [2009] 2 Qd R 351; [2009] QCA 36, cited
R v Tran[2007] QCA 221, cited

COUNSEL:

The applicant appeared on his own behalf
B H P Mumford for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Commonwealth) for the respondent

  1. MARGARET McMURDO P:  The applicant, Felipe Martins Cruz, pleaded guilty on 18 September 2015 to importing a marketable quantity of a border controlled drug, cocaine, between 12 November and 26 November 2013 and possessing a dangerous drug, cannabis, on 26 November 2013.  He was sentenced to nine years imprisonment with a non-parole period of four and a half years on the importation count and one month concurrent imprisonment on the possession count.  As he is a Brazilian citizen who came to Australia for the first time when he imported the cocaine in late…

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Details
AGLC
R v Cruz [2016] QCA 183
Case
[2016] QCA 183
Decision Date

CaseChat Overview and Summary

In the case of R v Cruz, the applicant appealed against his sentence, arguing that there had been a miscarriage of justice due to language difficulties and a failure of his legal representation. The applicant, a Brazilian national with limited English proficiency, pleaded guilty to importing a marketable quantity of cocaine and possessing cannabis. The dispute centred on whether the applicant's significant role in the drug importation, as found by the sentencing judge, was accurately portrayed given his claims that he was merely a courier and did not fully understand the statement of facts he signed. The court had to determine if the applicant's language barriers and inadequate legal representation amounted to a miscarriage of justice warranting a new sentencing hearing.

The primary legal issues involved whether the applicant's language difficulties and the failure of his legal team to adequately explain the charges and differences from the prosecution's case, with the help of an interpreter, constituted a miscarriage of justice. Additionally, the court needed to assess if the applicant's significant physical disability due to scoliosis, which was not fully communicated to the sentencing judge, warranted a different sentence. The court had to balance these mitigating factors against the seriousness of the offence and the need for general deterrence.

The court found that the applicant's language difficulties did impact his ability to fully understand the charges and the significance of certain factual matters. The applicant's claim that he was merely a courier and did not understand the full extent of his involvement was deemed credible. The failure of his legal team to properly communicate with him, particularly with the aid of an interpreter, was a significant oversight. Furthermore, the applicant's physical disability and its impact on his incarceration were not adequately presented to the sentencing judge. These factors led the court to conclude that there had indeed been a miscarriage of justice. The application to adduce further evidence was granted, and the applicant's appeal against the sentence was allowed.

The final orders of the court were as follows: the application to adduce further evidence was granted; the application for leave to appeal against sentence was granted; the appeal against sentence was allowed; and the sentence imposed was set aside. The matter was remitted to the Trial Division for resentencing, taking into account the new evidence and the identified miscarriage of justice.

Orders

Orders of the court

1. The application to adduce evidence is granted.

2. The application for leave to appeal against sentence is granted.

3. The appeal against sentence is allowed.

4. The sentence imposed is set aside and the matter is remitted to the Trial Division for sentence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The sentencing judge noted that the applicant was 19 at the time of the offending and had no prior criminal history. In setting out the facts, he noted the applicant’s critical role in the importation of the cocaine. There was no reason to doubt SDB’s statement that the applicant was to be paid $50,000. The applicant moved the cocaine internally within Brazil and brought the suitcases with him to Australia, taking them to SDB’s apartment. His Honour noted that both SDB and the applicant at one point wished to pull out of the importation but could not as this required a $10,000 payment. His Honour referred to the applicant’s important role in the collection, transportation within Brazil, importation into and storage in Australia of a quantity of drugs more than 800 times the prescribed marketable quantity. The offence was serious and general deterrence was important in sentencing. The judge noted that the applicant had made commendable efforts to rehabilitate whilst in prison and that his time in custody was more difficult because of language difficulties and his distance from friends and family. Those considerations could not, however, overwhelm the sentencing discretion. His Honour also noted that the applicant’s guilty plea resulted in a more lenient sentence than otherwise. The judge thanked the interpreter for her assistance.The application to adduce further evidence The applicant seeks to have this Court rely on his evidence about the offence and the sentence hearing, which he provided in an affidavit and orally at the appeal hearing. The respondent contends the application to adduce further evidence should be refused, relying on the evidence, in an affidavit and orally by telephone, of the applicant’s former solicitor, Mr Colin Greatorix. This Court will receive evidence not before the sentencing court, only where to do so would result in a different sentence being imposed than that imposed at first instance: see R v Maniadis.[26][26][1997] 1 Qd R 593, 597.The applicant’s evidence In his affidavit, the applicant claimed that the facts placed before the sentencing judge were inaccurate in that he did not travel with SDB to Florianopolis to pick up the suitcases containing the cocaine. SDB told him that cocaine was hidden in one of two suitcases he brought to the applicant’s home in Sao Paulo. SDB said that the drugs could not be detected because there was only a small amount for personal use for himself, the applicant and SDB’s Australian friends. The applicant never saw the cocaine before importing it and accepted what SDB told him. SDB collected him at the airport and the applicant handed him both suitcases. He accompanied SDB to his Gold Coast apartment where the applicant stayed until his arrest. He received no money and was unaware of the quantity or value of the drugs. He was not involved in removing the cocaine from the suitcases or concealing it in the vase or the safes. Prior to sentence, his lawyers visited him in prison but he could not communicate properly because of his difficulties with English; there was no interpreter at any of these conferences. The judge, he contends, sentenced him on the wrong basis, namely that he sought out SDB to become involved; he travelled to Florianopolis with SDB to pick up the suitcases containing the cocaine; and was involved in its storage in Australia so that he had a substantial role in, and knowledge of, the importation. The truth was he was a mere courier. He also deposed that, during his incarceration, his uncle, to whom he was close and for whom he was a carer in Brazil, had died and that the applicant’s scoliosis has been causing him unspecified but significant difficulties.

Decision

Reasons for decision

The respondent contended that the applicant’s evidence should not be received as it would not make any significant difference to his sentence. Even on the applicant’s version, he had the suitcases in his possession for about three weeks before he imported the drugs into Australia and he unquestionably stayed for some time in the Gold Coast unit where they were stored. The prosecution case was not that he received $50,000, but that he had an expectation of receiving it. His medical condition of scoliosis was referred to in the tendered material from his mother before the primary judge. His new evidence about scoliosis did not state that it would make his time in prison more difficult than otherwise. Alvarez was a less serious case than this and the offender in Agboti had more compelling mitigating circumstances. The respondent contended the application to adduce further evidence should be refused. The sentence, the respondent contended, is not manifestly excessive; the application for leave to appeal against sentence should be dismissed.Conclusion The applicant’s contention that he thought he was bringing in a modest quantity of drugs for the use only of SDB, the applicant, and SDB’s Australian friends, seems unlikely, given that, even on his version, he was bringing in two substantial suitcases provided by SDB. And even on his version, his role in the importation warranted a stern penalty by way of general deterrence, involving a substantial period of imprisonment. That said, after considering the further evidence placed before this Court, both from the applicant and Mr Greatorix, I am satisfied that the applicant, because of language difficulties in communicating with his lawyers, did not appreciate the significance of some important factual matters placed before the sentencing judge. Had he done so, he would have contested those matters. The judge particularly referred in his sentencing reasons to the fact that, according to SDB, the applicant was to be paid $50,000 for his role and moved the cocaine internally within Brazil. The judge also found that the applicant took the suitcases to SDB’s Gold Coast apartment after importing the drugs. It can be inferred that his Honour accepted the prosecution submission that the applicant was more than a courier. The applicant strongly denies those matters and maintains he was no more than a courier. His lawyers did not provide this Court with any statement of facts taken from him by way of instructions, covering highly relevant matters such as his role in Brazil before the importation and at the Gold Coast after the importation. The applicant’s poor English skills are confirmed by the case notes tendered at sentence. Although he made commendable progress with English after his arrest and imprisonment, it was clear from his evidence in this Court that he is still prone to accept things said to him before he has a complete comprehension of them, resulting in later confusion. He was a young man, with limited English, far from his home and family, who was likely to be sentenced to a lengthy term of imprisonment. It was incumbent on his lawyers to carefully take instructions as to his role in the offending and to explain to him of and how that differed from the prosecution case, with the assistance of a competent Portuguese interpreter. This did not happen. Nor did his lawyers directly inform the Court of his significant physical disability arising from scoliosis. They did not provide any medical report to support his mother’s claims or investigate how the scoliosis might impact on his time in prison.

Ratio Decidendi

Legal Principle Established

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