R v Jiminez

[1999] NSWCCA 7

CITATION:	REGINA v JIMINEZ [1999] NSWCCA 7
FILE NUMBER(S):	CCA 60384 of 1997
HEARING DATE(S):	22 May 1998
JUDGMENT DATE:	24 February 1999
PARTIES :	Appellant - Victor Hugo JIMINEZ Respondent - Regina
JUDGMENT OF:	Hulme J at 1; Hidden J at 16; Greg James J at 16

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Craigie DJC

COUNSEL:	Appellant - TL Buddin SC Respondent - R Mayne
SOLICITORS:	Appellant - TA Murphy Respondent - Commonwealth DPP
CATCHWORDS:	Criminal Law; Drugs; Importation of Cocaine; 3kg; Courier; Sentence
ACTS CITED:	Customs Act S233B S235
DECISION:	Application for leave to appeal granted; Appeal upheld; The sentence imposed by Craigie DCJ is quashed; In lieu thereof, the Applicant is sentenced to imprisonment for a period of nine years with a non-parole period of six years, both periods to date from 31 December 1996 and the non-parole period to expire on 30 December 2002; In accordance with Section 16F of the Crimes Act (Cth) an explanation of the effect of this sentence is to be provided to the Applicant by his legal advisers

IN THE COURT OF
CRIMINAL APPEAL
No: 60384 of 1997

HULME J
HIDDEN J
GREG JAMES J

Wednesday, 24 February 1999

REGINA -v- Victor Hugo JIMINEZ
JUDGMENT

1 HULME J: These Reasons concern an application for leave to appeal against a sentence imposed by Judge Craigie on 17 July 1997 of a term of imprisonment of 12 years commencing on 31 December 1996 with a non-parole period of 6 years 8 months commencing on the same day.
2 On 2 May 1997 the Applicant had pleaded guilty to a charge under Section 233B(1)(b) of the Customs Act in that he had imported a prohibited substance namely cocaine. The quantity of pure cocaine was 3.01kgs. It had a wholesale value of $432,000 and a street value of $786,000. Under the Customs Act a quantity of 2 kilograms or over constitutes a commercial quantity and the maximum penalty prescribed for the importation of such a quantity is life imprisonment.
3 The Applicant was a courier whose reward was to be $30,000, over and above expenses. He travelled with his wife and infant son to Latin America in December 1996 returning later that month. A suitcase, part of the Applicant’s luggage, had become separated from him in the course of his return flights and it arrived in Australia the next day as unaccompanied luggage. The Customs Service opened it and found the cocaine. It was delivered by members of the Federal Police to the Applicant. Later that day as he left his premises with the suitcase he was arrested. There followed what the Judge described as “the first of many lies told by the offender to the Federal Police”. A change of heart and an intention to plead guilty became apparent in April 1997 some time after the Applicant became possessed of the full Crown brief. His Honour gave the Applicant credit for pleading guilty and saving the expense of a full trial but had clear reservations about his contrition. His Honour nevertheless concluded that there was a reasonable prospect of the Applicant being able to rehabilitate and not re-offend. The Applicant had no prior record.
4 The matters advanced on behalf of the application may be considered as falling into two categories. It was submitted that the sentence imposed was excessive by comparison with general sentencing standards referable to couriers of quantities of drugs comparable with the 3.01 kilograms the Applicant imported. Secondly it was submitted that there were features of his case far more compelling than those applying to the “usual courier”.
5 Dealing first with this second ground, it is appropriate to record that the sentencing judge said that but for some limited assistance to the authorities and a finding that the Applicant’s incarceration was liable to produce a degree of hardship more than the ordinary, the non-parole period would have been 8 years. The matter his Honour had in mind as producing that increased degree of hardship was imprisonment the Applicant had suffered for a period of 9 years without trial in his native country. That was Nicaragua.
6 The Applicant who was born in December 1955, left there in 1979. During his absence there was political upheaval and the Applicant’s father and other family disappeared, apparently at the hands of the government or some other political group. The Applicant returned and in 1981 he was taken prisoner and then spent some 9 years in an underground and primitive cell, tortured and without trial. Ultimately he was freed and made his way to Australia as a refugee in about 1990, becoming a citizen here in 1992.
7 I turn to what are said to be the features which distinguish the Applicant here from the “usual courier”. I shall follow the headings under which the submission was advanced:-
(a) His early plea of guilty - see Winchester (1992) 58 A Crim R 345.
This is not an unusual feature for couriers, many of whom are caught red-handed. In any event the Applicant’s plea came only after he had told many lies and came into possession of the Crown brief and, as the Craigie DCJ said, “he must have been impressed by its strength … and the finding of guilt was almost inevitable”.
(b) His assistance to the authorities (albeit not entitling him to a full Cartwright discount).
It is unnecessary that I detail this. The assistance was late, and in part it added nothing to what the police had found through searches of the Applicant. There was a limited amount of further information which was of value.
(c) His earnest endeavours to improve himself both in an educational and vocational sense, notwithstanding his traumatic background.
Since his arrival in Australia the Applicant has undertaken, and in most cases completed satisfactorily, a substantial number of courses, including ones in English, computing and organic farming. If one can accept what he has said, he has had a reasonable work history. He clearly tried, prior to the instant offence, to improve himself. Craigie DCJ’s finding that the Applicant had reasonable prospects of rehabilitation was no doubt influenced by these matters.
(d) His impecuniosity which at least explained, if not justified, his behaviour, particularly as he was unable to work because of back and knee injuries.
Impecuniosity is not uncommon among couriers although the Applicant seems to have had considerably more money than many other persons who come before the courts. The sentencing judge did not find that the Applicant could not work. There is a deal of evidence provided by the Applicant in his ERISP that he can. Fruit picking, cleaning, distributing pamphlets and working in a nursing home were mentioned by the applicant, some of these as recent types of employment.
(e) The effect of his incarceration upon his dependants.
The Applicant has a wife and young child and, at the time of sentence, his wife was expecting another. There was limited information before Craigie DCJ concerning the family situation but enough for his Honour to conclude that the Applicant’s wife would probably receive social services benefits. There is nothing to show that the Applicant in the respects encompassed by this heading is in any different situation from many couriers.
(f) His contrition.
Craigie DCJ took the view that the Applicant’s “apparent contrition and regret was not so much for what he had done but for the fact that he had been caught”. There is nothing within this heading favourable to the Applicant and out of the ordinary. Indeed, many couriers have had more favourable findings.
(g) The impact of his previous incarceration upon him, not only prior to the commission of the offence but also its impact upon the circumstances in which he is serving his present sentence which were undoubtedly more onerous as a result.
Undoubtedly the Applicant’s history in this regard does distinguish him from many couriers. However, as his Honour observed, the conditions in Australian gaols are better than the Applicant experienced previously. But be this as it may, although the matter is entitled some, I am not disposed to give it great weight. His Honour referred to the fact that a pamphlet concerning the dangers of dealing in drugs and doing the sort of things he did had been found in the Applicant’s home and concluded that the Applicant had presumably been fully aware of what he was doing. This demonstrates that, despite the traumas of his previous incarceration, the Applicant willingly undertook the risk of further imprisonment, whatever its effects, in pursuit of monetary gain.
(h) The grief which he had suffered by reason of losing his family in such tragic circumstances.
This loss occurred some time prior to 1980. The applicant who is now almost 43 had some 16 or more years to recover from this loss prior to the commission of his offence. The matter has no weight.
(i) His medical condition.
He has a narrowing of a disc in his spine. Craigie DCJ recorded that this does not seem to have provided the Applicant with any symptoms about which he complains. The matter seems to me insignificant for present purposes.
8 As I have indicated, the sentencing judge afforded recognition to the matters of assistance and the Applicant’s prior incarceration in reducing the non-parole period he imposed. Although his Honour could have reflected them also in the head sentence, in the circumstances of this case they are of limited weight, and I am not persuaded that his Honour was in error in not doing so or in not giving them greater weight than he did. Nor do the totality of matters referred to, alone or in combination, place the Applicant in a significantly different position from many other couriers who come before the Court. It is a feature of many of them, that they are induced to participate in their offence due to need, in many cases consequent on some unfortunate event or background.
9 I turn to the other ground argued, viz. that the sentence imposed was excessive by comparison with general sentencing standards referable to couriers of quantities of drugs comparable with the 3.01 kilograms the Applicant imported. In that regard, considerable weight was placed on the Applicant’s behalf on a statement in Bernier (unreported, CCA, 19 May 1998) that:-
“However, what can be said is that the pattern of sentences for substantial quantities of drugs identified by Hunt J in Ferrer-Esis (8½ to 11 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 12 years is within that range but, if it is, it is right at the top of it.”
10 The Court also said that “In the case of cocaine, that lower range would embrace quantities up to 3.5 kilograms or thereabouts”. These passages undoubtedly give the Applicant a measure of support although his case really depends on this Court taking the step which the Court in Bernier did not, of saying that 12 years is outside the range or that 3.01 kilograms is so far below “3.5 kilograms or thereabouts” that a sentence at what was described as possibly the top of the range in Bernier is above that which was available to the sentencing judge in the Applicant’s case.
11 In a matter of Spiteri argued earlier on the same day as the Applicant’s appeal was heard, I had occasion to consider the range of sentences appropriate to couriers and others involved in the importation of heroin. My Reasons in that case were written with the benefit of the argument and reference to previous authority in this. I summarised what seemed to me to be the result of previous decisions involving couriers of quantities of heroin and cocaine - which have been regarded as of equal harm - between a commercial quantity and double that in the following terms:-
“(D)isregarding or adding back the allowance for mitigating factors, the head sentences indicated in cases of couriers of between one and two times the minimum commercial quantities were as follows. For the purposes of comparison, some of these need to be adjusted to reflect Section 16G and the result of a one-third reduction is indicated in brackets. Sugahara and Watanabe (1511 grams, pleas, 10 and 10½ years), Ku (1625 grams, plea, 14 (9.3) years), Richardson (1636, convicted, 15 (10) years), Linke (1783 grams, plea, 15 (10) years), Tee (2003 grams, plea, 16 years (less up to about 4 years for remissions)), Lea (2095 grams, plea, 8 years), Banthithadawit (2120 grams, plea, 12 years (after an unspecified small discount for assistance)), Li (2172, plea, 17 (11.3) years), Taha (2234, plea, 13½ (9) years), Srisoi (2523 grams, plea, 17 (11.3) years), Zakaria (2700 grams, convicted, 14 (9.3) years), Whitney (2790 grams, plea, 12 years), and Barsky (3133 grams, plea, 11 years and 4 months). Of this group only Richardson pleaded not guilty and all of the cases except Whitney and Barsky involved heroin. In light of the circumstances of the offenders, the head sentences in Bernier (2045 grams, plea, 9 years) and Luckier (3387 grams, convicted, 8½ years), are limited in their guidance. Apart from those two, of the 14 cases in this group, 3 indicate head sentences of or between 9 and 9½ years, 4 indicate sentences of or between 10 and 10½ years, 3 indicate sentences between 11 and 11½ years and 3 indicate head sentences of 12 years or more. Again these figures reflect the adding back of identified discounts for mitigating factors. …
“In the case of couriers of amounts between a commercial quantity and double that, the median is about 10½ years with the vast bulk of cases within 15 months below and one year higher than this.”
12 I went on to conclude that the passage I have quoted above from Bernier is wrong and should not be followed and that, in accordance with Ferrer-Esis (1991) 55 A Crim R 231 at p 237, the range of sentences of 8½ to 11 years is appropriate for couriers of substantial trafficable quantities rather than low commercial quantities. (I did indeed foreshadow this possibility to counsel for the Applicant at the commencement of the hearing.) However I do not regard it necessary to rely on that conclusion in this case. The group of cases considered in the passages quoted demonstrates that the sentence is not outside the range of the sentencing judge’s discretion. Although the Court in Bernier said that the 12 year sentence in Banthithadawit (unreported, CCA, 8 April 1994) appeared unusually high, it did not purport to overrule that decision. Nor did the Court refer to the fact that in Banthithadawit this Court said that it had reviewed a number of recently decided cases, albeit unidentified, and considered the sentence of 12 years as well within the sentencing judge’s discretion.
13 Nor did the Court in Bernier make reference to Whitney (unreported, CCA, 6 November 1997). In that case the applicant was a courier who had imported 2.79 kilograms of cocaine and had been sentenced to imprisonment for 7 years with a non-parole period of 4½ years. This sentence reflected assistance to the authorities but for which, the sentencing judge indicated, a sentence of 12 years with a non-parole period of 8 years would have been imposed. Among the matters considered by this Court was the appropriateness of that starting point. Relying on Banthithadawit and Raz (unreported, CCA, 17 December 1992) where, but for assistance, a head sentence of 10½ years would have been imposed for the importation by a courier of a trafficable quantity - it was in fact 1254 grams - the Court in Whitney said that the starting point was not manifestly excessive.
14 Notwithstanding what has been said in Bernier, in light of the decisions in Banthithadawit and Whitney, it cannot be said that the sentence in this case is manifestly excessive. In reaching that conclusion, I have also had regard to a number of other decisions to which the Court was referred. They include Paull (1990) 20 NSWLR 427, Hollins (unreported, CCA, 31 May 1996), Kissner (1993) 69 A Crim R 83, Pereira (1991) 57 A Crim R 46 and Sanderson (unreported, Grove J, 5 July 1993). These and many other cases are discussed by me in Spiteri and it is unnecessary for me to repeat here what I have said.
15 The application for leave to appeal should be dismissed.

IN THE COURT OF

CRIMINAL APPEAL

No. 60384 of 1997

CORAM: HULME, J.
HIDDEN, J.
GREG JAMES, J.

WEDNESDAY 24 FEBRUARY 1999

REGINA v. VICTOR HUGO JIMINEZ

JUDGMENT

HIDDEN & GREG JAMES, JJ:
16 The circumstances of this application for leave to appeal against sentence are set out in the judgment of Mr. Justice Hulme, the presiding judge, and we therefore need not canvass the background in detail.
17 We regret, that with the greatest respect, we are unable to adopt his Honour's analysis and reasoning concerning the appropriate range of sentence or share his Honour's view of what should be the fate of this application.
18 In this matter, as in the matters of Regina v. Spiteri and Regina v. Yu Tit Hoi in which judgment is delivered today, the applicability of the range of sentences identified by this court recently prior to the argument of this application, in the decision in Regina v. Bernier (CCA, unreported 19 May 1998) has been questioned by his Honour.
19 In this case, as in the others, although unwilling to concede its correctness, the Crown did not seek to contend that Bernier (supra) was wrongly decided or that the tariff was there wrongly identified and that as a consequence it should be overruled. However, the Crown in this case did argue that the applicability of the decision in Bernier (supra) should be restricted "to its particular facts and its particular comments"; alternatively arguing that, accepting Bernier (supra), nonetheless the present application should be dismissed.
20 His Honour the presiding judge had at the outset of the argument in this case, as he had in the arguments in Spiteri (supra) and Yu Tit Hoi (supra), indicated that for his part he might see himself free to depart from Bernier (supra) in the event that he was persuaded that it was a case that should not be followed. In the event, his researches have led to him taking the course he has in his judgment. However, that course was not the subject of argument and submission during the appeal nor was the correctness of the decision in Bernier (supra) the subject of debate. In the light of the way in which the case was conducted and looking at the specific circumstances we do not consider it would be appropriate to depart from what was said in Bernier (supra). Nor would we restrict the effect of that case as submitted by the Crown. On what has been put forward here, we are not convinced that the applicable comments in it are wrong. They are in many respects apposite to the particular features of this case.
21 The applicant's submissions ultimately were that the subjective circumstances in the present case, although different from those in Bernier (supra) were just as, if not more, powerful and that those two cases, that is Bernier and the present, stand out amongst recent cases as having relevant powerful subjective features.
22 The circumstances of the applicant are at least equivalent to the drug induced depression and reduced ability to think clearly referred to by the court in Bernier (supra).
23 However, there were matters raised in the argument before us which, independent of the question of tariff, exposed error. The subjective feature of greatest importance in the case of the present applicant was his vulnerability to the temptation posed by the invitation to commit this offence for the sum of $30,000. This feature in our view has not been properly considered. This was not the usual case of simple greed. The vulnerability did not only lie in this applicant's poor financial situation. He had a particular vulnerability to the approach made to him as he had lost many years of his life and was conscious that he had lost the opportunity in those years to accumulate provision for his family. This had occurred as a result of his arrest in Nicaragua and the appalling treatment he received. He was confined without trial for a period of nine years and subjected to torture for the bulk of the period. There were further consequences affecting his health, including that he often experiences nightmares which have progressively worsened since his present incarceration. Suicidal ideation is often present. He has been diagnosed as suffering from post-traumatic stress disorder and the detail of his ordeal, appalling as it was, would of itself indicate the likelihood of some such consequences. That detail is set out in the evidence by way of report from a psychologist. The applicant's circumstances in this respect cannot be simply equated to those of other prisoners.
24 The learned trial judge accepted the history given by the psychologist and particularly found that the applicant had a fairly reasonable prospect of being able to be rehabilitated and was not likely to re-offend. He had regard to the severity of the conditions in which the applicant would be presently incarcerated, having regard to his previous history of incarceration, but he was of the view that incarceration in Australia would be of less severity than that undergone in Nicaragua. So much may be conceded but the effect upon this prisoner of incarceration in Australia after having undergone incarceration of the kind referred to in Nicaragua was left unexplored, notwithstanding that the evidence was perfectly clear that the effect of the earlier confinement on the prisoner was such that imprisonment was likely to be more severe for him by comparison with the effect of similar incarceration on other prisoners.
25 In summary, the prisoner suffered from a mental condition which rendered him more vulnerable to commit the crime and the effect of punishment was more severe on him than on others. His Honour did not take those matters into account properly. In these respects we consider his Honour erred.
26 Further, the prisoner was of some assistance to the authorities; perhaps of little assistance, but nonetheless the fact of his being of assistance became, in the plea proceedings, public. That matter may have affected the conditions under which the prisoner's sentence would be served.
27 All of these were matters of such importance that they should particularly have been examined in the light of the provisions of the Crimes Act (Cth) 1914 (the Act), notably s.16A, to which those sentencing for offences under Commonwealth law are required by that Act to have regard: Commonwealth Director of Public Prosecutions v. El Karhani (1990) 21 NSWLR 370.
28 In the reasons of the trial judge and Hulme, J., particular matters expressly referred to by them were considered but dismissed or discounted as of little weight, particularly by comparison with the circumstances of others committing like offences. We do not accept the validity of such an approach. Each matter required to be considered may be itself of limited weight but it would impermissibly assimilate all cases to a common basis to disregard the individual differences, particularly in sum, on some such basis that, as to each matter, it does not sufficiently distinguish the applicant's circumstances from those of others. Whilst the totality of the effect of these matters has been examined by their Honours, when all the matters including those we have earlier referred to are taken into account, in our view there are notable features distinguishing the circumstances of the applicant here from that of the "usual courier" and which distinguish this case from all of those referred to in the cases cited by the Crown here and below. These circumstances peculiar to the applicant's case go to mitigate the severity of the necessary sentence.
29 His Honour the learned trial judge appears to have recognised to some extent those circumstances, at least as bearing on the non-parole period, when he imposed what would otherwise have been an inexplicably low and disproportionate non-parole period of some six years and eight months when compared to a head sentence of 12 years imprisonment. To confine or so limit the effect of such circumstances is to err. That head sentence does not bear the appropriate relationship with the non-parole period, having regard to the way in which the relevant sentencing criteria should be weighed in accordance with the views of the High Court in Bugmy v. The Queen (1990) 169 CLR 525 and this court in Bernier (supra) and later in Regina v. Chu (CCA, unreported 16 October 1998). Thus the head sentence in particular should be re-examined.
30 On the issue of comparison with the tariff, the head sentence was imposed having regard to the Crown's contentions concerning the range of sentences put before the trial judge. In essence that range was put to us again on the appeal.
31 Of the cases cited in that range, as is noted in Bernier (supra), the decision in Regina v. Banthithadawit (CCA, unreported 8 April 1994) appears to be out of accord with the prevailing pattern. Of all the cases cited by Hulme, J. in the passage from Spiteri (supra), he has incorporated in his judgment in this matter, and of all the cases cited by the Crown here and below, the sentence in that case is (after appropriate adjustments by reason of s.16G of the Act, where necessary, to the sentences in other cases) the most severe sentence to a considerable extent. We would not regard it as indicating the upper region of a range applicable to all or most of the lower to mid range commercial quantity sentences in respect of heroin or cocaine under s.235 of the Customs Act. In Bernier (supra), that sentence was noted with some surprise. The reference to a starting point in Regina v. Whitney (CCA, unreported 16 November 1997) we do not regard as helpful since there is a distinction between evaluating a component of the final product of a synthesis and evaluating the final product itself.
32 The Crown accepted, at least on the Bernier (supra) criteria, that this head sentence was at least at the top of the range. In our view, the sentence well exceeded what was appropriate, no doubt, in part because of the failure to take into account the matters we have referred to. It does not seem to us that the trial judge has taken into account, in particular, the medical condition and the prospects of treatment for it nor the circumstance that the applicant will find a custodial sentence, bearing in mind his condition and his prior confinement and the publicly known attempt to assist, more onerous than others when fixing the non-parole period. In our view his Honour has there also erred.
33 Having regard to the range of sentence as reflected in this court's unanimous conclusion in Bernier (supra), we would regard the head sentence of 12 years as manifestly excessive and in error in the particular respects to which we have already referred.
34 The applicant should be re-sentenced. For that purpose regard should be had to the report of Ms. Frost of 20 May 1998 admitted before us on the basis it might be so used. That report confirms the potential for rehabilitation and the weight of matters particularly going to the appropriateness of parole. The non-parole period does not appear appropriate to reflect the applicant's circumstances.
35 It seems to us that the application for leave to appeal should be granted and the appeal should be upheld. We propose that the sentence and non-parole period be quashed and in lieu thereof, the applicant be sentenced to a head sentence of nine years with a non-parole period, being the period that must be served in custody, of six years, both to date from 31 December 1996. Such a non-parole period will expire on 30 December 2002. In accordance with s.16F of the Crimes Act (Cth), an explanation of the effect of this sentence is to be provided to the applicant by his legal advisers.
36 For the purposes of s.16F of the Act, we confirm that any order made in consequence of the grant of parole would be subject to conditions and may be amended or revoked for breach, in which case the applicant would be liable to be returned to custody to serve out the whole sentence.