R v Londono Aristizabal; R v Valdes; R v Poblete

[2017] NSWDC 354

District Court

New South Wales

Medium Neutral Citation:	R v Londono Aristizabal; R v Valdes; R v Poblete [2017] NSWDC 354
Hearing dates:	23 Novmeber 2017
Date of orders:	23 November 2017
Decision date:	23 November 2017
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	In each case the offender is sentenced to imprisonment. Valdes – a non-parole period of 5 years with a head sentence of 7½ years. Londono Aristizabal - a non-parole period of 3½ years with a head sentence of 5½ years Poblete – non-parole period of 2 years with a head sentence of 3½ years Confirm forfeiture order.
Catchwords:	CRIMINAL LAW – Sentence – Drug importation – Cocaine – Deal with the proceeds of crime – Attempting to possess a marketable quantity of an unlawfully imported border-controlled drug – Mature men with no criminal history.
Category:	Sentence
Parties:	The Crown Ignacio de Jesus Londono Aristizabal Carlos Gilberto Montejo Valdes Raul Poblete
Representation:	Counsel: Mr G James Qc – Offender Londono Aristizabal Mr I Lloyd QC – Offender Valdes Mr T Quilter – Offender Poblet   Solicitors: Director of Public Prosecutions (Cth)
File Number(s):	2016/152074; 2016/152075; 2016/152077

Judgment

1. HIS HONOUR: All the offenders appearing for sentence today share one feature in common, they are 38-year-old men with no or little significant criminal history, yet they each became involved in a very serious offence involving the importation of cocaine.

2. Principles of general deterrence, which I am required to apply, require that significant sentences are imposed upon each of the offenders, despite their otherwise good character and despite the fact that I am satisfied they each have good prospects of rehabilitation. The harm that drugs do to our community is incalculable. The three offenders became involved in an enterprise which, had it succeeded, would have caused enormous harm to the community and the members of it. It is for that reason that the principles of general deterrence apply so much in cases of drug importation. That explains the sentences I will ultimately impose upon the offenders.

3. Carlos Valdes has pleaded guilty to an offence of importing a marketable quantity of cocaine. That is an offence which carries a maximum penalty of 25 years’ imprisonment. When I sentence him for that matter, he asks that I take into account an offence of dealing with the proceeds of crime. That relates to some money, a significant sum of money indeed, found in his possession on his arrest. Ignacio Londono has pleaded guilty to a similar offence, although there is no matter he wishes me to take into account. And finally, Raul Poblete has pleaded guilty to an offence of attempting to possess a marketable quantity of an unlawfully‑imported border-controlled drug, namely cocaine. It also carries a maximum penalty of 25 years imprisonment. Each of the offenders pleaded guilty at the earliest opportunity to the offences, and so the sentence I impose on each of them will be 25% less than it would otherwise have been.

4. Police were monitoring the activities of Valdes. They, in particular, were monitoring his use of a mobile telephone service. They were able to listen as he spoke to a man in Colombia. Mr Valdes and that Colombian man spoke in code concerning what they suggested was a consignment containing an air flight recorder box coming to Australia. Clearly what they were speaking of was an importation of cocaine.

5. The DHL shipping people sent Valdes a text indicating that the package was scheduled for delivery on 16 May 2016. The involvement of the other offenders came about when Mr Valdes approached Mr Londono, who in turn approached Mr Poblete. Mr Valdes gave Mr Londono the role of acting as an intermediary. It was his job to ring up DHL and pretend to be the consignee. As I have already indicated, in order to gain possession of the package, Mr Londono recruited Mr Poblete. He was useful because he was employed as a concierge at a hotel.

6. The package was ultimately delivered to the hotel. Mr Poblete received it, but before it had been delivered it had been intercepted by the authorities, the cocaine had been removed and an inert substance had been substituted. That explains why Mr Poblete’s offence is one of attempting to possess a marketable quantity of drug rather than an offence of possessing a marketable quantity of drug.

7. Eventually the authorities arrested all three men. They were taken to the police station. Mr Valdes said very little to police, but Mr Londono and Mr Poblete were much more forthcoming. Indeed they appear to have told the police everything about their involvement, including in Mr Poblete’s case, even signing a statement indicating the evidence that he would be prepared to give if necessary.

8. It was discovered that the pure net weight of the cocaine imported by the offenders was 1.52 kilograms. I should mention that the sum of money to which Mr Valdes’s dealing with the proceeds of crime matter relates consisted of $9,050 in one bundle and another bundle of notes which totalled $80,000.

9. Quite what got Mr Valdes interested in the idea of importing cocaine is not easy to determine. He, along with his co-offenders, was a user of cocaine, but why he would move from the relatively minor offending involved in buying, possessing and then using cocaine, to becoming the importer of a significant quantity of drug, is not easy to determine. When he recruited Mr Londono, the latter was motivated perhaps by his friendship with Mr Valdes, perhaps by some financial reward. When he in turn recruited Mr Poblete it appears that the latter did not really think about what he was doing, just agreeing to go along with what was proposed. The decision of each of these three men to get involved is difficult to understand. They were all hard-working family men who have people who speak highly of them.

10. Mr Valdes was born in Colombia. His parents separated when he was very young, about 11 months of age, but he was raised within a very close family unit and had a positive relationship with his mother and his three siblings. He came to Australia to study English and initially lived with a cousin before he obtained independent accommodation. He then met his now wife, Jessica, and became a citizen of Australia in either 2013 or 2014.

11. He had completed primary and high school in Colombia and once he arrived in Australia he worked in a number of occupations ending up, in the 14 months before his arrest, as a sales consultant with McCarroll’s Automotive Group. He was successful there. He had been a drug user for some time but he told a psychiatrist who interviewed him that his cocaine use increased significantly under the influence of his superior and co-offender, Mr Londono.

12. Mr Londono is also from Colombia. His father died in a motor vehicle accident very shortly before he was born. He completed high school in Colombia and had partially completed a university degree in environmental engineering before coming to Australia. Initially, he planned to stay for six months to learn English but decided to stay because he enjoyed the Australian way of life. He married in February 2010 and has a son aged four. He got himself a good job and had a good marriage. Indeed, he still has a good marriage despite the things he has done to his family, in particular, his wife. She remains supportive of him. He became involved in a drug subculture which, as is unfortunately relatively common, leads to an offender committing a much more serious offence whether it be drug supply or, as in this case, becoming involved in the importation of a drug.

13. Unlike his co-offenders, Mr Poblete was born in Australia, his mother is of Colombian heritage whilst his father was born in Argentina. His mother is still alive but his father died recently and indeed his father’s death occurred whilst Mr Poblete was in custody, bail refused on this matter. He gave evidence about that circumstance in court today and is greatly distressed by the fact that he was in custody when his father died and had to attend his cremation in handcuffs. I do have to say that that is exactly the sort of thing that happens when a person chooses to become involved in drug importation.

14. Along with all the others, there is nothing in Mr Poblete’s history which would suggest any great difficulties in his upbringing. Mr Poblete did not have a familial upbringing which involved abuse or neglect nor was he surrounded by family members who were criminals or significantly abused substances. He has been regularly employed starting at the age of 15 with Australia’s Wonderland and has then worked in various jobs until he settled in the hospitality industry working as a concierge. As I have mentioned earlier, it was in this role that he offended. He has been out on bail for a while and has worked as well whilst on bail being employed at the Convention Centre as an usher. He is quite distressed at the prospect of going back to gaol.

15. I am sentencing these three offenders at the same time. The principles of parity clearly apply. There is much that they have in common as regards their subjective features so that the different sentences I will ultimately announce reflect their different roles in the criminal enterprise.

16. There seems to be little dispute, if any, between the three offenders as to the roles each of them played. Mr Valdes was a principal player in this enterprise. He was instrumental in organising and planning the importation. Mr Londono acted as an intermediary. As I have mentioned already he at one stage made a telephone call pretending to be the consignee and he recruited Mr Poblete to take delivery. Mr Poblete was the man who was given the task of receiving the package on behalf of the others. In terms of their level of culpability in these offences, Valdes was at the top, Londono was in the middle and Poblete at the bottom.

17. A great deal of written material concerning each offender was put before me. I trust that I will be forgiven for not making extensive reference to that evidence, not because I do not accept it, but because it is overwhelmingly persuasive that these three men all possess an underlying character which is positive. It is not necessary to detail the extensive evidence as to the offenders’ good works, achievements and attitudes to what they have done. They all express remorse, not only for themselves and their families, but also for what they have done in the first place. In addition, Mr Poblete because he has been on bail, he has been able to demonstrate rather than just promise rehabilitation.

18. It is apparent that each offender has a family which will suffer through his incarceration but that is, of course, common place when family men commit offences and are discovered. As I hinted when discussing the circumstance that Mr Poblete’s father died whilst he was in gaol, the fact is that each of the offenders knew that their families would suffer if they committed this offence, and were detected doing it, yet they went ahead anyway. It is a bit late now to rely on the circumstance that their families will suffer if they go to gaol. It was their decision to do what they did which has caused that suffering. Despite that, of course, I will take such matters into account as part of the general mix of subjective factors in determining the sentence to apply on each of the offenders.

19. As I think I have said, I am satisfied that these offenders are unlikely to re-offend. The best indication of that is the age at which they first offended in such a serious way. On top of that, the sentences that I am about to announce will act as a personal deterrent. They will know that if they offend again they will be going back to gaol. This should act as an incentive to them to resume their worthwhile work lives and, as they say they have done, continue to avoid the use of illegal drugs.

20. The Crown in her very helpful submissions provided me with some assistance in the form of broadly comparative cases. Of course, no two offenders and no two offences are alike but I found those comparative cases of considerable assistance in determining the appropriate sentence to impose on each of the offenders. I am able to take account of the differences between the cases before me and the comparative cases the Crown provided me with and make appropriate allowances. I impose sentences as follows:

21. Carlos Valdes, taking into account the matter on the schedule is sentenced to imprisonment. I set a non-parole period of five years with a head sentence of seven and a half years to date from 17 May 2016, the day which he was arrested. That means that he is eligible to be released to parole on 16 May 2021.

22. Ignacio Londono, you are sentenced to imprisonment. I set a non-parole period of three and a half years and a head sentence of five and a half years to have commenced on 17 May 2016. His non-parole period will expire on 16 November 2019 on which day he is eligible to be released to parole.

23. Raul Poblete, you are sentenced to imprisonment. I set a non-parole period of two years and a head sentence of three and a half years. That is to date from 1 August 2017 to take account of his presentence custody. He will be eligible to be released to parole on 31 July 2019.

24. Mr Valdes, Mr Londono and Mr Poblete, I have to explain the sentences to you.

25. Mr Valdes, you have to do a few more years in prison. The earliest you can possibly be released is 16 May 2021. If you are released before the expiry of your sentence then you will serve the remainder of your sentence in the community on parole but you can be returned to custody if you do not comply with the conditions of that parole.

26. Mr Londono, the same thing applies to you. You have received a lower sentence than Mr Valdes so your non-parole period of three and a half years expires on 16 November 2019 which is the earliest day when you can be released to parole.

27. Mr Poblete, you are going to be returned to custody to serve a sentence which I have backdated to take into account that you have already done some time in custody. So your two year non-parole period will expire on 31 July 2019, that is the earliest day you can be released to parole but if you are released to parole and you do not comply with the conditions of parole, you can be returned to custody.

28. I confirm the forfeiture order has been made.

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Decision last updated: 12 December 2017