R v Danson
[2005] NSWCCA 343
•30 September 2005
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v Danson [2005] NSWCCA 343
FILE NUMBER(S):
2005/973
HEARING DATE(S): 20/09/05
JUDGMENT DATE: 30/09/2005
PARTIES:
Regina v Neil Matthew Danson
JUDGMENT OF: Windeyer J Hislop J Smart AJ
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/11/0925
LOWER COURT JUDICIAL OFFICER: G D Woods DCJ
COUNSEL:
(A) S Kluss
(C) D G Staehli
SOLICITORS:
(A) Ross Hill & Associates
(C) Cth DPP
CATCHWORDS:
Aiding and abetting importation of cocaine - judge's assessment of role of applicant open on the evidence - sentence not excessive
LEGISLATION CITED:
Criminal Code 1995 (Cth)
Customs Act 1901
DECISION:
Leave to appeal againsrt sentence granted - Appeal dismissed
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2005/973CCAP
WINDEYER J
HISLOP J
SMART AJ
Friday, 30 September 2005
Regina (Cth) v Neil Matthew DANSON
Judgment
1.WINDEYER J: I agree with Smart AJ.
2.HISLOP J: I agree with Smart AJ
3.SMART AJ:
Introduction:
Neil Matthew Danson seeks leave to appeal against a sentence of imprisonment of 12 years starting on 4 February 2004 with a non-parole period of 7 years 3 months for between about 1 December 2002 and 4 February 2003 at Sydney aiding and abetting the importation into Australia of a prohibited import, being not less than the commercial quantity of cocaine contrary to s 11.2(1) of the Criminal Code 1995 (Cth) and para 233(1)(b) of the Customs Act 1901. There was a plea of guilty. The weight of the cocaine involved was 3.7131 kilograms. The commercial quantity of cocaine is 2.00 kilograms. The maximum penalty was life imprisonment and/or a fine of $750,000: s 235(2) of the Customs Act 1901. It was estimated that the drugs had an approximate street value of between $2.12 million and $4.24 million. The wholesale price range was $464,137 to $612,661.
4. The applicant also pleaded guilty to two State charges, first, on 4 February 2003 at Newtown supplying a prohibited drug, namely, 3,4 methylenedioxymethylamphetamine in the amount of 294.8 grams being an amount not less than the commercial quantity for that drug. Secondly, he pleaded guilty, at the same time and place to supplying a prohibited drug, namely cocaine in the amount of 345.2 grams being an amount not less than the commercial quantity for that drug. For each of the offences he was sentenced to imprisonment comprising a non-parole period of 3 years commencing on 4 February 2003 and the balance of the term of the sentence of 1 year. These sentences were to be served concurrently. The applicant was effectively sentenced to head sentences of 13 years and a non-parole period of 8 years 3 months. The application for leave to appeal does not seek to challenge the sentences imposed for the State offences.
5.The District Court was provided with a very detailed and lengthy statement of facts, over 300 pages of telephone transcriptions and received oral evidence over three days. The judge also dealt with two co-offenders, Chee, the courier, and Baldwin, the gopher, whom the judge found played lesser roles in the importation. Each received a sentence of 10 years imprisonment with a non-parole period of 6 years.
6.The Australian principal of the drug importation operation was a man called Vasquez. He pleaded guilty and rendered assistance to authorities. But for these factors the sentencing judge (Ainslie Wallace DCJ) would have imposed a sentence of 18 years. Taking those factors into account she discounted that sentence by thirty per cent to a head sentence of 12½ years. She set a non-parole period of 8 years 3 months.
7.Daniel Pierre Berthiaume was the operation's chemist whose task was to extract the gross substance imported into Australia, that is, the pure cocaine. Solomon DCJ applied these remarks of Spigelman CJ in R v Romero-Cepeda [2000] NSWCCA 229 at [7]:
"… the role of the chemist was a vital one in the scheme as a whole. It represented a very high level of criminality …".
8.Berthiaume was sent to Australia by the international syndicate to extract the cocaine. Berthiaume had pleaded guilty at an early time. He was sentenced to imprisonment for 13 years with a non-parole period of 8 years.
The Error Alleged
9.The applicant submitted that the sentence imposed was manifestly excessive in that the judge erred with respect to the assessment of the objective criminality involved in the applicant's role in the offence. The applicant contended that the judge incorrectly elevated the role of the applicant in the hierarchy and found it to be more significant than the evidence revealed. It was further contended that the applicant's role was less than that of either Chee or Baldwin and that he should have received a lesser sentence than them. The sentencing required an assessment of the applicant's role in the importation and its gravity.
Facts
10.In November 2002 as a result of information provided by the Argentinian Federal Police the Australian Federal Police commenced with them a joint investigation into an Australian and Argentinian trans-national organised crime syndicate involved in cocaine trafficking and money laundering into Australia and elsewhere. The syndicate used purpose built hard sided suitcases impregnated with cocaine. A chemist in the destination country is required to extract the cocaine from the suitcases and make it available.
11.The Crown evidence included the tapes of many telephone calls between members of the operations group and between Vasquez and others and the applicant. The conversations used a code which smacked of drug trafficking. A common pattern was that members of the operations group would speak together followed by one of the members, mostly Vasquez, speaking with the applicant. The inference was irresistible that the applicant was being appraised of the progress of the importation. The applicant was not a member of the operations group. That group attended to the procuring of supplies of cocaine from Peru, arranging for the delivery and collection of suitcases in Brazil and Argentina, arranging and monitoring aeroplane flights from Buenos Aires to Sydney for couriers, a matter of some difficulty due to the lack of frequent flights and seating capacity and, devising a means to have the suitcases pass through Customs. The group's operations extended across several South American countries.
12.From the telephone calls to which Vasquez was a party, it appears that he did much, if not most, of the organising from the Australian end. He was frequently in contact with a range of people in Peru and Argentina There were delays in obtaining supplies and in obtaining a seat on a plane for the courier. There was also evidence of meetings between the applicant and Vasquez. These usually followed one or more telephone calls. Vasquez also met with others, again usually after a telephone call and not at his residence, but nearby and in public areas.
13.The Crown did not suggest that the applicant was part of the operations group. He stood apart from that group. The Crown alleged that he was one of the financiers of the importation.
14.Vasquez recruited the courier, Chee in Australia, to convey the impregnated suitcases from Buenos Aires to Sydney/ The suitcases were delivered to Chee in Buenos Aires on 24 January 2003. He departed Buenos Aires on 1 February 2003, arriving in Sydney on 3 February 2003 with the two suitcases in his possession.
15.The applicant had and used a mobile telephone service but it was not in his name. The details of the subscriber were fictitious.
16.The first recorded telephone message took place on 10 January 2003 when the applicant telephoned Vasquez. The applicant arranged to meet Vasquez the following morning. The applicant enquired what time Daniel's friend was leaving. The applicant stated "I've gotta give you that thing". Vasquez responded, "Yes please." The applicant stated that he did not wish to miss Daniel's friend. On 11 January 2003 the applicant telephoned Vasquez and arranged a brief meeting. On 12 January 2003 the applicant telephoned Vasquez twice arranging a meeting between them.
17.On 12 January 2003 the applicant telephoned Vasquez at 1150 hours; the latter advised there was no news. On 13 January 2003 Chee telephoned Vasquez and told him of the problems he was experiencing. On 13 January 2003 the applicant telephoned and arranged to meet Vasquez at 12.30pm.
18.On 14 January 2003 the applicant telephoned Vasquez twice and arranged to meet him at his home (or outside it). On 15 January 2003 the applicant telephoned Vasquez and they arranged to meet after 5.30pm. On 16 January 2003 Vasquez telephoned the applicant who said he was about "half way there" and asked Vasquez to give him a day or two. Vasquez asked if the applicant could give him something today. The applicant replied that he could give him half of what he asked for. That pleased Vasquez. The applicant promised to call and see Vasquez that night.
19.About 2012 hours on 16 January the applicant telephoned Vasquez who said that he honestly needed "it" tonight and did not regard delivery early the following morning as satisfactory. About 2107 hours the applicant arrived at Vasquez' residence.
20.On 17 January 2003 at 1819 the applicant telephoned Vasquez when he (the applicant) was outside the residence of Vasquez who agreed to admit the applicant. At 1942 hours the applicant telephoned Joey. Part of the conversation appears to be in code. The applicant talked about the friends he was going to see the following day. The purpose is not stated.
21.About 9.47am on 17 January 2003 Vasquez had a telephone conversation with a male in Peru in which payments relating to the importation were discussed.
22.On 18 January 2003 at 1701 hours the applicant telephoned Vasquez and said that he would see Vasquez tomorrow. The applicant said he had some good news for Vasquez which would make him extremely happy. Vasquez said that he also had some good news.
23.Putting the conversations of 16, 17 and 18 January 2003 together one inference to be drawn is that the applicant had raised some money for the venture.
24.About 1348 hours on 20 January 2003 the applicant telephoned Vasquez and arranged to meet in a park near the latter's unit. About 1252 hours on 21 January 2003 Vasquez telephoned the applicant and they agreed to meet that afternoon. At 1546 and 1606 hours they had two further telephone conversations and arranged to meet shortly.
25.In a telephone conversation about 1.21pm on 22 January 2003 Vasquez told Berthiaume that he was waiting for the applicant to give him the money.
26.From a series of telephone conversations and surveillance between 21 and 23 January 2003 it appears that Sutton, one of the operations group collected the two black suitcases in San Paulo, Brazil, flew with them to Buenos Aires and took them in a taxi to an hotel. About 8.54am on 23 January 2003 Berthiaume told Vasquez on the telephone that "Shaggy (Sutton) already got the houses" and that Shaggy had called Berthiaume. Vasquez and Berthiaume then had a conversation about possible flights (for Chee) before Vasquez spoke to an unidentified female about flight dates.
27.On 23 January 2003 at 1311 hours Vasquez telephoned the applicant and told him that everything was good and he was a happy man and they agreed to meet at a time which Vasquez said was after he was meeting with Daniel (Berthiaume).
28.There was some discussion amongst those in the operations group whether the police in Argentina were watching Sutton. Through Chee's girlfriend Chee was instructed not to move and to await Vasquez' call.
29.About 10.44am on 24 January 2004 the applicant telephoned Vasquez and asked him if there was a problem. Vasquez replied "No" but said he wanted to talk to the applicant. They agreed to meet for lunch. About 10.54am Vasquez received an SMS text message from the applicant stating, "I'm now stressing pls text me, is it a prob with your friend." The applicant met with Vasquez and Berthiaume from 12.45 to 12.48pm. About 1.21pm on 24 January 2003 Vasquez telephoned the applicant and advised that he (Vasquez) needed to change his toy (mobile phone). The applicant undertook to obtain new ones and told Vasquez to go and get a new number. At 8.22pm the applicant telephoned Vasquez and advised that he was about to pick up the charger and that he would drop it off. In response to a question from the applicant Vasquez said that he had not yet ordered his new number. At 9.07pm the applicant telephoned Vasquez and advised that he was outside.
30.About 4.10pm on 24 January 2003 Sutton took the two suitcases to Chee who was staying in another hotel., During the evening of that day (Buenos Aires time) Chee left his hotel and went to Ezeiza Airport where he waited on stand-by for a flight to Sydney. He was unable to obtain a seat and booked in at another hotel with the suitcases.
31.About 12.07pm on 25 January 2005 the applicant telephoned Vasquez who advised that the bird (Chee) had left the cage. The applicant stated that he had to get "that thing for you."
32.About 2.45pm on 25 January 2003 the applicant telephoned Vasquez and they arranged to meet in the park at Rushcutter's Bay. They met from 3.06pm to 3.42pm. At 6.52pm Vasquez telephoned the applicant and they arranged to meet much later that evening.
33.About 8.04pm the applicant telephoned a male and explained that they would not let his girlfriend (the courier) on the bus (the aeroplane in Argentina) and that she would probably be a couple of days behind schedule. The applicant telephoned another male about 8.06pm and conveyed the same message adding "but there's no dramas, everything's cool man." At 2331 hours the applicant telephoned Vasquez and was told he could come here (Vasquez' residence).
34.There were still problems in getting Chee a seat on a plane and the possibility was raised of Chee flying first class.
35.On 26 January 2003 the applicant and Vasquez met in Elizabeth Bay Road from 3.36pm to 3.56pm.
36.About 8.15am on 2 February 2003 (6.15pm on 1 February 2003 Buenos Aires time) Chee arrived at Ezeiza Airport Buenos Aires with Sutton and the two suitcases. About 10.05am Chee departed Buenos Aires for Sydney.
37.About 12.48pm on 2 February 2003 the applicant telephoned Vasquez and in response to the applicant's enquiry Vasquez advised "Everything's all right…" Vasquez said, "I'm going to call in soon." The applicant said he would call in thirty minutes. The applicant complained about the level of stress he was enduring.
38.About 2.47pm on 2 February 2003 (Sydney time) the applicant telephoned Vasquez who advised "the bird … is going from the cage." Vasquez confirmed that this was definite. Vasquez wished to see the applicant that night. About 6.56pm the applicant telephoned Vasquez and advised that he was outside Vasquez' residence.
39.On 3 February 2003 at 6.38am the applicant telephoned Vasquez, They arranged to talk at 8.15am. At 8.10am the applicant again telephoned Vasquez who said, "it's a little bit um running late." The applicant said that he would call a little later. About 8.15am on 3 February Chee arrived by plane in Sydney on flight QF322, The Australian Customs Service (ACS), Australian Federal Police (AFP), Physical Evidence and Technical Teams covertly examined Chee's two suitcases and discovered the presence of the impregnated cocaine. Due to the complex nature of the concealment and time constraints the cocaine was not removed. A movement tracking device was inserted in one of the suitcases.
40.Chee was met at the airport by Ferreira, his de facto, who drove him to their unit at 4/38 Fuller Street, Chester Hill.
41.At 10.01am the applicant telephoned Vasquez who said, "I say you need to be happy." The applicant replied, "(sigh) are you for real oh good stuff good stuff." Vasquez stated "Yeah they ask me for seven for the boy for tonight." The applicant replied, "All right I'll do – I'll look I'll come and see you later ha … fucking happy. " There were further celebratory exchanges.
42.It should be inferred that they were celebrating the arrival of the suitcases without police intervention and that Vasquez was seeking $7000 from the applicant to pay the courier, which the applicant was prepared to provide, or at least a substantial part of it.
43.About 12.34pm on 3 February 2003 the applicant telephoned Vasquez and told him that he (the applicant) would come and see him that night. Vasquez reminded him "the kids want um … ." This was an obvious reference to the money promised them. Vasquez asked the applicant to please "send me another one extra because … I need to buy little things for you know for making the – the T-shirt. Vasquez stated, "I want to take him before a hundred per cent all clean up." The applicant said that he would "work it out". They arranged to meet between 6.30pm and 7.00pm that evening.
44.About 12.37pm on 3 February 2003 the applicant telephoned Vasquez and sought to meet Vasquez in the city during the lunch hour because he wanted to "… confirm the thing with that girl." They arranged to meet later.
45.About 5.09pm that day the applicant telephoned Vasquez and they agreed to meet just before 7pm. Vasquez said, "Can you please … bring that thing I told you." The applicant replied that he was doing his best. About 6.48pm the applicant telephoned Vasquez and advised that he (the applicant) was outside. The applicant and Vasquez met in Elizabeth Bay Road from 6.49 to 7.21pm. About 7.15pm Baldwin and Berthiaume arrived in the vicinity in Baldwin's car.
46.About 8.39pm on 3 February 2003 the applicant telephoned Vasquez and enquired if it was "done". Vasquez replied, "not quite" but added "no worries" and "everything is good."
47.About 9.11pm on 3 February 2003 Vasquez and Berthiaume arrived at Chee's premises in Chester Hill in a car drive by Baldwin. Vasquez and Berthiaume met with Chee and Ferreira. Berthiaume and Baldwin put the two suitcases into Baldwin's car.
48.About 9.24pm that day the applicant telephoned Vasquez who confirmed, "all is done" and that "everything is good". They agreed to talk the next day. About 10.01 the applicant confirmed to a male who telephoned, "it's all sorted so no more drama, it's all cool."
49.About 9.34pm on 3 February Baldwin (driving Vasquez and Berthiaume left Chester Hill and drove to Elizabeth Bay where they carried the two suitcases into Vasquez's unit.
50.About 10.01pm on 3 February 2003 a male telephoned the applicant who reassured the male "it's all sorted so no drama, it's all cool buddy." They agreed to meet for lunch the following day.
51.About 10.15am on 4 February 2003 the applicant telephoned Vasquez who confirmed, in answer to a question from the applicant "everything's cool." About 1pm on 4 February 2003 Vasquez asked Berthiaume (on the telephone) if "the rice will come out the way he said, will it." Berthiaume replied he "guaranteed it" and "it's the same as the tests I did before." This referred to the extraction of the cocaine from the suitcases.
52.About 3.05pm on 4 February 2003 the applicant telephoned Vasquez and asked him if he needed a hand tonight. Vasquez replied in the negative. They agreed to meet about 8pm.
53.About 5.25pm on 4 February 2003 a male telephoned the applicant who stated that he did not have anything and that he did not get anything the previous night. The applicant stated that he only owed the male "four". The male acknowledged this. The male confirmed with the applicant that their baby was all right. The male commented, "I'm um gunna need to see the twins, you know what I mean.” The male said he needed some money that night.
54.About 5.20pm on 4 February Berthiaume and Vasquez entered Vasquez's unit at 71 Elizabeth Bay Road. About 5.36pm Baldwin arrived. About 5.55pm Baldwin left that address and was apprehended by police. He threw an object which was later retrieved and identified as the AFP movement tracking device from the suitcase, and ran.
55.About 6.10pm that evening members of the AFP executed a search warrant on Vasquez's unit and found Vasquez and Berthiaume in the lounge room with the two suitcases. The lining of both suitcases had been removed to expose a black hard resinous substance. One case was partially dismantled and a quantity of the resinous material had been removed and placed into a plastic bag. Berthiaume and Vasquez were arrested.
56.About 8.10pm that day members of he AFP executed a search warrant at the applicant's residence at Newtown. A number of items, including these prohibited drugs were found:
Cocaine weighing 345 grams with a pure amount of 57.6 grams
MDMA tablets weighing 288.,4 grams with a pure amount of 74.71 grams.
57.This over-lengthy narration of the facts demonstrates the extent of the involvement of the applicant. The numerous telephone conversations held by him with Vasquez and their many meetings make his claim that he was only interested in obtaining two ounces of cocaine to feed his own habit untenable. The various "males" with whom he conversed appeared to be much interested in his obtaining supplies of cocaine. Further, some of those males appeared to be recipients of calls from the applicant to assist with the provision of finance.
58.It is not credible that Vasquez, the Australian principal of a large and sophisticated drug importation would devote so much time and attention to the applicant if his role was as limited as he suggests and of comparatively minor importance.
The Applicant's Evidence
59.A study of the applicant's evidence at the sentence hearing reveals why the judge was unable to accept much of it. Many of his explanations of what was said in the tapes were hard to accept and insufficient to give rise to a reasonable doubt about what was being challenged.
60.The applicant said that he first started taking drugs about eight or nine years prior to March 2004, normally cocaine and ecstasy. Over the two years prior to his arrest his drug consumption had increased. By early 2003 he was using cocaine every day. He used ecstasy occasionally. The applicant said that he was supplied with cocaine by a number of people. In the later stages he was mostly supplied by Vasquez. He had dealt with Vasquez for about a year prior to early 2003. The applicant said that he was in regular contact with Vasquez who supplied pure cocaine, indeed he harassed Vasquez for cocaine.
61.When in the conversation of 10 January 2003 he said "I've gotta give you that thing" he was referring to money for the purchase of cocaine. The applicant said that on 14 January 2003 Vasquez told him that he was getting some "coke" from overseas. He said that was the first time that he found out that Vasquez was obtaining his supplies overseas. The applicant did not know the quantity being imported by Vasquez but he (the applicant) ordered two ounces and a price of $7000 was agreed.
62.The applicant said that Vasquez would normally only give him a little amount of cocaine at a time and that was why he tended to be hounding Vasquez quite often and was always over at Vasquez's place. The applicant said that it was for the applicant's personal use.
63.The applicant said that the day after he offered to buy two ounces of cocaine Vasquez asked him to lend him some money. Vasquez asked for a loan on a second occasion but he (the applicant) refused on both occasions.
64.The applicant stated that he changed his mobile phone and that of Vasquez because of their involvement in the drug scene. He was happy to help Vasquez straight away. The applicant said that when, on 25 January 2003, Vasquez said "the bird is ready to go after the cage" he (the applicant) took that to mean that his friend was on his way and that there was going to be an importation. He thought the phrase "bird is going from the cage" meant that the drugs were on their way.
65.As to the conversation on 3 February 2003 and Vasquez saying, "They ask me for seven" and "Yeah you know the boy", the applicant said that he took that as paying $7000 for the two ounces he had arranged to get. The applicant added "Yeah, well the boy, I just thought he meant for the cocaine."
66.The applicant said that the expressions of excitement and happiness in their conversation of 3 February 2003 resulted from the arrival of the cocaine. The reference to "seven for the boy" was not a payment for Chee. It was for the cocaine he was going to purchase. The applicant agreed that he was asked for an extra $1000 which he declined to pay. On being asked why he used the word "she" in the words, "She said seven that's what I am saying", the applicant replied, "just code talk."
67.The applicant said he did not know what Vasquez meant when he said, "I'm talking now with my cousin." The applicant said that when he said "Maybe like five, maybe five or something you know what I mean," he meant that he had only $5000. In their conversation about 5.09pm on 3 February 2003, Vasquez's request "to bring that thing I told you" referred to the money. The applicant said that he gave Vasquez the money when they met from 6.48pm onwards.
68.According to the applicant the question in the conversation of 8.398pm, "Is it done?", meant can I come and get the drugs. The applicant sought to explain his pursuit of Vasquez on the basis that Vasquez was the only source of pure cocaine.
69.In cross-examination the applicant said that he did not know the arrangements Vasquez had made to import the cocaine, but he would obviously have had to make some arrangements to do so. The applicant said he was only interested in the two ounces which he had arranged.
70.The applicant said that common knowledge told him that Vasquez was obviously importing more than two ounces. He did not know how much more.
71.The applicant said that he was sure he did not know there were some problems with the travel arrangements. He claimed that he would not have spoken to other people about problems with the travel arrangements. The tapes suggest that this is incorrect: see, for example, the conversation on 25 January 2003 at 8.04pm and T34-37 of 2 March 2004. The applicant sought to explain the conversations he had on the basis that he would talk a lot of garbage to people. He was talking off the top of his head. This was not convincing; what he said corresponded with the difficulties in getting Chee on a plane and the delivery running behind schedule.
72.The applicant suggested at one stage that he financed his drug habit from his work earnings. He agreed that in January 2003 he had just finished working for a finance company that did a lot of share-trading and investment. He seemed to agree that his drug habit cost him about $4500 per month. Eventually he gave this evidence (T40 of 2/3/04):
"Q.…Did you finance your own drug habit from the sale of drugs?
A.Yeah I did at times help – yeah that's how I would pay my way."
73.The applicant accepted that during January 2003 he made arrangements to see Vasquez sixteen or more times. He did not obtain cocaine on each of those occasions. Sometimes he saw Vasquez just for friendship.
74.The applicant accepted that when he saw Vasquez in January 2003 he often went for a walk with him or met him in the street. The applicant said that this was not to avoid the possibility of their conversations being recorded but because Mrs Vasquez was in the apartment.
75.The applicant agreed that at the time in January 2003 when he was desperate ("hanging out") for cocaine he had thirteen ounces in his own home. The applicant said it was basically all sugar. It had been cut. The applicant said that cocaine of this quality would do nothing for him because of his heavy use. It had to be good quality cocaine.
76.The applicant said he wanted the thirteen ounces of cocaine because he was having a big party. The 800 ecstasy tablets were compensation for the poor quality cocaine which he had been given. He did not want to lose money. He said that the purchase of the thirteen ounces of cocaine was a one-off for his party. If the thirteen ounces of cocaine had been of better quality as he had hoped he would not have used thirteen ounces at the party,
77.The applicant was unable to explain why he had offered Vasquez a lift on 3 February 2003. He said that he didn't even think – he "just thought maybe he needed a lift somewhere. He agreed it was the only time over the preceding month that he had offered Vasquez a lift. He denied that he was offering to take Vasquez to the courier's home for the suitcases. The applicant's evidence, which boiled down to offering a lift to nowhere when he was not aware of Vasquez's need to travel, was not credible: See T45-46 of 2/3/04. Nor was the applicant's denial that he was aware that the $7000 to be provided by him was to be given to the courier, Chee, credible.
78.The applicant said that in the conversation at 3.05pm on 4 February 2003 when he asked Vasquez if he needed a hand that night it was he (the applicant) talking gibberish. He was keen to get the cocaine off Vasquez.
79.The applicant agreed that when he offered to give Vasquez a hand the applicant was not offering to give him a hand with his work as a maintenance worker in a hotel.
80.The applicant said that he was not able to pay the $7000 on 3 February 2003 and that he paid Vasquez $5000. The applicant said that he received no cocaine from Vasquez. He said that he handed over the money before he received the cocaine because Vasquez said it was already here. That is unusual. It was also unusual because Vasquez told him that the cocaine was not ready. The applicant understood it would be a day or two before he could get the cocaine, that is "tomorrow or the next day."
81.The applicant said he paid Vasquez in advance because he asked for the money. The applicant said he did not know why he agreed to that request.
82.The applicant was referred to the text message sent on 24 January 2003, "Is it a problem with your friend?" The applicant said the reference was to Vasquez's other friend from whom Vasquez purchased supplies of cocaine (and whom the applicant believed lived around the corner from where Vasquez lived). The applicant imagined that Vasquez would have told him that he could obtain the cocaine and that is why he would have said "is there a problem". The applicant denied knowing that there was a problem with the person overseas who was to bring the cocaine into Australia. The applicant claimed he was referring to Vasquez's local associate. That explanation was not credible.
83.The judge was amply justified in rejecting much of the applicant's evidence. The payment of $5000 without receipt of any cocaine pointed more to a payment on account of the venture than a payment on account of two ounces of cocaine allegedly to be delivered in the next few days. The evidence taken as a whole points to the applicant being aware of the impending cocaine importation, that there were difficulties with it and that the applicant was prepared to advance funds to assist in paying the courier.
The Applicant's Submissions
84.The applicant pointed out:
(a)at the time of the plea a factual dispute was noted
(b)he did not dispute, in general terms, his participation in the operation; the issues were his knowledge of the extent of the importation and his role in it
(c)he accepted that the Crown case against him detailed conversations with Vasquez over about 3 weeks where the applicant discussed his provision of funds relative to the importation and his enthusiasm for its progress
(d)he did not contest the factual assertions made by the Crown as to the various conversations, but disputed the inferences that could be drawn from that evidence
(e)the Crown led no evidence that bore directly on the applicant's knowledge of the quantity of cocaine expected
(f)he asserted his involvement was limited to his expectation of two ounces of cocaine for which it was proposed he would pay $7000 in advance
(g)the Crown sought to infer knowledge of an unspecified larger quantity
(h)the judge accepted that the applicant was a cocaine addict and was buying cocaine from Vasquez.
85.The judge summarised the applicant's case and his role in this passage:
"The evidence by Neil Danson was that his role in the importation was purely that of a purchaser of two grams of cocaine, for which he had paid some $5000. The Crown version is that he agreed to pay $7000 as part of financing the overall transaction and specifically to pay the 'boy', meaning the courier Chee. At page 23 of the transcript of Danson's evidence before me on 2 March 2004, Danson said that Vasquez first asked if he could borrow money about the 15 January 2003:
'After I offered to get the two ounces it was the next day after that.'
… it is clear that at all relevant times Danson was a cocaine addict, probably himself using substantial quantities of cocaine, but equally clearly selling cocaine to others for general commercial profit and to finance his own addiction. I reject the thrust of his evidence, that the ecstasy and amphetamine found at his house which is the subject of the State charges was to be sold or given away by him merely for social purposes. Of course one can more sensibly speak about the anti-social purposes in a case such as this but Danson meant, as it were, in a party situation, not commercially. … I have no doubt that his involvement was both social and commercial. In any event so far as the Commonwealth charge is concerned, Danson became actively involved in this arrangement to import cocaine. His evidence is that he handed over $5000 before he received the cocaine which he says he arranged to secure. He was cross-examined on this evidence at transcript pages 52 and 53 of the evidence given by him before me on 2 March. I have found his explanation of why he would have paid in advance for cocaine, which he had not yet received, unbelievable except as evidence of his general involvement in the scheme. I conclude that Danson, having been supplied drugs by Vasquez for some time and with a motivation both of self use and of on-sale, became a significant part of the operation by financing it in part. This was a significant role in the operation because of the delay which had occurred in bringing the drugs back to Australia and the financial pressure which Vasquez purported to be under. Generally Danson's evidence seemed to me to be intended to minimise his role, and is not consistent with the objective evidence. I would place Danson's criminality as being well below that of Vasquez who was the Australian principal, and slightly below that of Berthiaume, the chemist. Danson's role is significantly more culpable than that of either Baldwin or Chee."
86.From my earlier summary of the features pointed out by the applicant it appears that he does not accept the accuracy and completeness of the judge's remarks. The applicant further submitted that the judge incorrectly stated the available inferences. He should have held that whilst the applicant's behaviour assisted in the importation of the whole amount (as per his plea) he was not privy to the extent and sophistication of the importation and the extent of his knowledge and involvement could not be established beyond his financing the courier. This submission is incorrect. The evidence entitled the judge to make the findings which he did. The number and frequency of the telephone calls between the applicant and Vasquez, their many meetings (about sixteen) over a three week period, often in public places, the terms of their conversations, the payment of $5000 when no cocaine had been received on the arrival of the courier, his exhilaration on the arrival of the cocaine, the applicant's offer to lend a hand when the cocaine arrived and his dismay when, at an earlier date, there had been delays and the contacts between the applicant and those he was supplying point, in combination, to the applicant's wider involvement particularly in the area of financial provision.
87.The applicant also submitted that:
(a)it was not obvious how much "drug" would be recovered from the chemical retrieval and there was no evidence of any discussion with the applicant as to his expectation
(b)there was no direct evidence of the knowledge of the applicant of the weight of the suitcases, the method of importation, the retrieval process or the value of the drugs
(c)the amount of money provided by the applicant was severely disproportionate to the weight and value of the cocaine.
88.It was conceded by the Crown that there was no direct evidence as to matters (a) and (b) but it was contended that if, contrary to its submissions it was necessary to prove such matters, the Crown case was a circumstantial one. The evidence allowed the inference to be drawn that the applicant was aware that an appreciable quantity of cocaine was being imported.
89.The Crown pointed out that it did not ask the judge to infer any circumstances of aggravation from his rejection of the applicant's evidence. The applicant could not be sentenced on the basis that the position advanced in his evidence was correct.
90.On the materials before the District Court, bearing in mind that the judge did not accept, for substantial reasons, much of the exculpatory evidence of the applicant, the judge was entitled to take the view that the role of the applicant in the importation and facilitating it was greater than that of either Chee or Baldwin. On such an approach it was open to the judge to impose a heavier sentence on the applicant. The judge did not err in assessing the objective criminality of the applicant.
91.Hitherto I have not referred to the subjective features of the applicant. These were not raised or relied on in argument. The judge took those subjective features into account. The judge stated that appropriate allowance would be made for the pleas of guilty by way of discount from the sentences which would otherwise have been imposed. The judge considered the matters stipulated in s 16A of the Commonwealth Crimes Act. He noted that the cocaine importation operation had been stopped. Thus the imported cocaine had not found its way into the community. The applicant had no previous offences. The judge found that there was contrition for the offence and that the applicant had "gone off the use of cocaine and that his personal attitude to the world in general had significantly altered." The judge did not think that the applicant was likely to re-offend and regarded the prospects of rehabilitation as good. The judge mentioned a number of subjective matters and took into account the whole of the subjective material before the Court. I have done likewise.
92.I have noted the favourable report of the Alcohol and Other Drug Worker at Parklea Correctional Centre and the Psychological Report from the Psychologists at that Centre. Amongst other things, that records how substance abuse dominated his life for many years. He told the psychologist that he "always worked", but changed jobs because of dissatisfaction with the type of work. He did not stay in any particular job for more than 12 months. He was reported to be working well in the Centre.
93.The comprehensive and analytical report of 13 April 2004 of Dr Bruce Westmore states that the applicant is of above average intelligence, has good insight into the difficulties cocaine has caused him and appears to be highly motivated to address his serious drug problem. Dr Westmore wrote of the applicant:
"He is clearly a young person with a large amount of potential which has not yet been realised. He will need, I believe, community based drug rehabilitation support and anything that the court can do to direct him towards such assistance on his release or as part of his release will eventually be in his and the community's best interests."
94.The applicant was born on 12 February 1975. I should also note the report of 7 July 2004 of W J Taylor, Clinical Forensic Psychologist.
95.The various reports indicate that the applicant has led an unstable life which has been seriously and adversely affected by his drug addiction. Now that he is in gaol he seems to realise that he needs help and is seeking help. There is a long hard road ahead before the applicant overcomes his addiction and realises his potential.
96.The sentence imposed on the applicant was a lenient one having regard to the role which the judge found that the applicant had played. Even if the judge had proceeded on the basis of what the applicant alleged or conceded, that is, that his behaviour assisted in the importation of the whole amount of cocaine, but that he was not privy to the extent and sophistication of the importation and the extent of his knowledge and involvement could not be established beyond his financing the courier, then the sentence could not be said to be excessive. Assisting, by your behaviour in the importation of a substantial amount of cocaine is a serious offence. The applicant received a substantial measure of leniency in the sentence for the Commonwealth offence being mostly, but not entirely, concurrent with the sentences for the State offences.
97.Leave to appeal should be granted because of the length of the sentence on the Commonwealth offence and the necessity for the Court to examine the evidence, arguable points having been raised. I accept that the applicant would have been troubled by the sentences imposed on the co-offenders when compared with his sentence but he was more culpable than Chee or Baldwin. Vasquez benefited greatly by rendering assistance to the Authorities.
98.I propose the following orders:
1.Leave to appeal against sentence granted.
2.Appeal against sentence dismissed.
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LAST UPDATED: 05/10/2005