R v Mascaro-Varillas

[2002] NSWCCA 524

CITATION:	Regina v Mascaro-Varillas [2002] NSWCCA 524
FILE NUMBER(S):	CCA 60741/00
HEARING DATE(S):	2 October 2002
JUDGMENT DATE:	23 December 2002
PARTIES :	Regina v Fernando Eduardo Mascaro-Varillas
JUDGMENT OF:	Wood CJ at CL at 1; Howie J at 2; Smart AJ at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0098
LOWER COURT JUDICIAL OFFICER :	Morgan DCJ

COUNSEL :	(A) In Person (C) M Cinque
SOLICITORS:	(A) In Person (C) Commonwealth DPP
CATCHWORDS:	Sentencing - Principal in cocaine importation - low commercial quantity - Head sentence of 15 years correct - Non-parole period reduced to accord with usual range
LEGISLATION CITED:	Customs Act 1901 Crimes Act 1914 Extradition Act 1998
CASES CITED:	R v Tait (1979) 46 FLR 386 Cameron v The Queen [2002] HCA 6 R v Wong & Leung (1999) 48 NSWLR 340 R v Bernier (1998) 102 A Crim R 44 R v Tack Lee Pang 105 A Crim R 474 R v Guzman & Henao [2000] NSWCCA 261 R v Salgado Silva [2001] NSWCCA 423 R v Paull (1990) 20 NSWLR 427 R v Acosta NSWCCA unrep 22/10/99
DECISION:	See para 92

IN THE COURT
OF CRIMINAL APPEAL

60741/00

WOOD CJ at CL

HOWIE J

SMART AJ

Monday, 23 December 2002

REGINA v FERNANDO EDUARDO MASCARO-VARILLAS

JUDGMENT

1. WOOD CJ at CL: I have read the draft judgment of Smart AJ. I agree with the orders proposed, and with the reasons of his Honour.

2. HOWIE J: I agree with Smart AJ.

3. SMART AJ: Mr Varillas, the applicant, also known as Ivan Nunez, seeks leave to appeal against a sentence of imprisonment for 15 years with a non-parole period of 11 years for the offence of between 23 May 1999 and 3 August 1999 here and in California, being knowingly concerned in the importation into Australia of prohibited goods to which s 233B of the Customs Act 1901 applied, being narcotic goods consisting of a quantity of cocaine which was not less than the commercial quantity applicable to cocaine (s 233B(1)(d) of the Customs Act 1901)

4. The applicant was arrested in the United states of America on 3 August 1999 and extradited to Australia on 23 December 1999 when he was formally charged. He pleaded guilty in the Local Court on 17 February 2000. The amount of cocaine the subject of the charge being the pure quantity of cocaine was 2.9691 kilograms. The commercial quantity under the Customs Act is 2 kilograms of pure cocaine. The maximum penalty is life imprisonment.

5. There was a dispute as to the precise role played by the applicant and a large amount of evidence was taken on this issue. This bore upon the extent of the applicant's criminality.

6. About 8 am on 23 May 1999 Reiner Aussem a German national who normally resides in Peru arrived in Sydney on a Qantas flight from Buenos Aires having travelled from Santiago, Chile. A drug detector dog reacted to Aussem. Numerous packages were found strapped to his body. Australian Federal Police (AFP) attended at the airport and at 9.20 am conducted a recorded interview during which he provided the following information:

(1) He was recruited by a Peruvian national known to him as Ivan Nunez (the applicant) in Chile to take a quantity of cocaine to Sydney for $10,000.

(2) Nunez strapped the packages containing the cocaine to his body in a hotel room in Chile.
(3) He was told to check into the Carlton Crest Hotel on his arrival in Sydney and telephone Nunez. A short time later he would receive a telephone call from an unknown person in Sydney who would then attend his hotel room where the exchange would take place.

(4) Nunez was about 25 or 26 years of age, thin build with numerous scars on his face.

7. Aussem agreed to assist the AFP in a controlled delivery of the cocaine to the intended recipient in Sydney. He was conveyed to AFP headquarters where 17 packages were removed from his waist, thighs and calves. The gross weight was 4.066 kilograms with the pure weight of cocaine as earlier mentioned. On 23 May 1999 a controlled operation certificate was issued. Between 23 May and 4 June 1999 Aussem assisted the AFP in an attempt to deliver the cocaine to the intended recipient. During this period Aussem made and received many telephone calls from the applicant and a man called Fabian (aka Stephen Diaz)

8. About 3 pm on 23 May 1999 Aussem telephoned the applicant from the Carlton Crest Hotel. The applicant asked, "How did it go? All went well?" Aussem responded affirmatively but complained that he did not have much money. The applicant told him to go to Western Union and collect some money. He would telephone the following day with a confirmation number. Aussem expressed concern that there was nobody there to meet up with him. The applicant said that someone would come and see Aussem in a couple of days. The applicant told Aussem that the reason why someone was not there was because the person's father had died in Miami and he had not been able to go.

9. On 24 May 1999 the applicant telephoned Aussem at 2.29 pm and told him that he would send a remittance of $600 the next day and that a person named Fabian Iguezo would ring with instructions which Aussem should follow. The applicant told Aussem to deliver only one of the "four of those" to the person nominated by Fabian. The applicant told Aussem to move to another hotel. A few minutes later the applicant again telephoned Aussem and repeated that Aussem was to follow Fabian's instructions. The applicant confirmed that he would send money to Aussem to cover his living expenses and that Aussem should move to another hotel but not tell Fabian where he was moving. The applicant said Fabian would arrive in two or three more days and give Aussem instructions as he was "familiar with the place over there." The applicant said that Fabian would telephone so that they met over the telephone.

10. About 2.40 pm that day Ausem received a telephone call from a person calling himself Fabian Iguezo, on behalf of the applicant. Fabian said that he would be coming to Australia and would give Aussem the money owed to him. Fabian said that he would speak to the applicant and make arrangements for money to be sent to Aussem immediately for his living expenses. Fabian pressed Aussem about whether there were dogs in the Customs area and whether he had encountered any difficulties. Aussem insisted that he "went through quickly" and "nothing happened."

11. On 25 May 1999 the applicant telephoned and told Aussem he had remitted $US452.80, supplying the necessary confirmatory details. Over the next few days there were numerous telephone calls from the applicant to Aussem as to Fabian going to Australia and making arrangements for the packages to be handed over. The applicant asked Aussem about "the job" and he replied, "It was fine." On 26 May 1999 Aussem changed hotels.

12. On 27 and 28 May 1999 Aussem received a number of calls from the applicant in which he said that Fabian had not gone on the trip yet but his partner was in Australia and would telephone him. The applicant told Aussem to give the partner "eight" packages and he would give him $US7500 and to follow the instructions which Fabian would give him. Aussem received a telephone call from Fabian to the same effect. Fabian added that he was coming to Australia and that Aussem would not have any problems with him.

13. About two days later Fabian telephoned Aussem and advised that he was not coming to Australia and that he was going to arrange for a local person who spoke English to pick up the drugs and pay Aussem $US10,000. Later that day during the course of two telephone calls Fabian told Aussem to go to Hoyts Cinema complex in the city about 1.30 pm where he was to meet an Australian and receive $US7500. He was then to return to his hotel room, collect the drugs and deliver them to the Australian. Aussem attended at the Cinema complex but nobody approached him.

14. On 29 May 1999 Fabian told Aussem that the reason why nobody turned up at the meeting was that his friend was worried because he had been on Aussem's flight into Sydney and had seen a number of dogs at the airport and Aussem had been seen talking to the police. Aussem said he was just asking about his baggage. Fabian said he would send Aussem some money and they discussed the possibility of opening a safety deposit box in which to put the drugs.

15. Aussem had many telephone calls with the applicant as to the failure of anyone to appear at the cinema. The applicant became very agitated and said that if Fabian did not finalise the arrangements in Australia he would dump Fabian. The applicant said that Fabian was the person in charge of selling "my things" in Australia. The applicant said that Fabian was not the only one because he had another person who could sell things for him. On several occasions the applicant said that Fabian was scared. In one conversation the applicant told Aussem that he wanted him (Aussem) to be paid and that he (the applicant) wanted to receive his money and that he had a lot of money invested in these things. The applicant insisted:

"Those things are not Fabian's, those things don't belong to anybody, they are mine."

16. In a number of telephone calls Aussem complained to the applicant that no-one was coming to collect the packages and that he had been in Australia for some time with very little money. Aussem wanted to know what was going on and said that Fabian had stated that the applicant did not have the money to pay him (Aussem). The applicant asserted that he did have the money to pay Ausem $US20,000 easily and would do so. The applicant insisted that "those things" were his and explained that this was the first time he had sent items to Australia.

17. On 3 June 1999 on the applicant's instructions Aussem transferred from the Furama Hotel, Surry Hills to the Royal Gardens Hotel in Pitt Street in the city.

18. On 3 June 1999 the applicant telephoned Aussem and stated that a man named Perico would telephone and instruct Aussem where to meet him. bout 8 pm Aussem was telephoned by a person calling himself Perico who instructed Aussem to go to a bar where Perico would approach him.

19. After some finessing Sergio Irusta and Aussem met at the Civic Hotel, Goulburn Street, Sydney. A short time later they walked to the foyer of the nearby Royal Gardens Hotel. Irusta told Aussem that the person who had "rung him" was the applicant whom Irusta had known for a number of years. Irusta said that he would need to take the material first so that he could "earn" the money in two or three hours' time and bring it to him. Aussem replied that he would telephone the applicant from whom he had received different handover instructions. Irusta left the hotel a short time later.

20. About 11 am on 4 June 1999 pursuant to the applicant's telephone instructions Aussem went to the Chamberlain Hotel in Pitt Street. Irusta was seated in the hotel and remained so while Aussem was approached by an unknown male who had a brief general conversation with him. A short time later Aussem returned to the Royal Gardens Hotel.

21. Aussem received further telephone instructions from the applicant. In accordance with those he left the Royal Gardens Hotel about 11.40 am and waited for a short period on the corner in front of the hotel but was not contacted. That evening the controlled operation was concluded.

22. On 9 June 1999 the police, on checking the mobile telephone that Aussem had been using to contact the applicant found 18 new voice male messages, mostly from the applicant, insisting that Aussem contact him and bring "the things" back to South America.

23. On 10 June 1999 an AFP officer, codenamed "Jeff" received a telephone call on the covert mobile phone from the applicant who asked for Aussem. Jeff said that Aussem had sold half a kilogram of the drugs and had given Jeff the remaining 3.5 kilograms. The applicant said he would call Jeff back.

24. On 15 June 1999 the applicant telephoned on the covert mobile phone and asked Jeff for Aussem. When told that Aussem thought that the applicant was cheating him of the money the applicant said he would send the money but first he needed to talk to Aussem.

25. On 18 June 1999 Aussem, at the request of the police, telephoned the applicant and told him that he had sold half a kilogram, making $US20,000, had given the remaining 3.5 kilograms to Jeff and one of them would call him again soon.

26. On 21 June 1999 Jeff telephoned the applicant, said that he could sell the drugs and asked how much he wanted for each kilogram, stating that he proposed to sell it to someone other than Perico. The applicant said "ah you sell my my my things". The applicant, when asked, said that Perico had been going to give him "ah, he about um 55 um thousand dollars … one kilo." After some discussion the applicant said he wanted $US45,000 a kilogram, stating "yeah forty five the rest, the rest, the rest for you."

27. Jeff told the applicant that once he had sold the drugs he could fly to California with the money, meet with the applicant, hand over the money and discuss future imports into Australia. The applicant replied:

"if you can sell … that thing for me … I think, right if you call me you're a nice person right [and] we can … make future business."

28. The applicant remarked that he had always sent (drugs) to Europe and the USA but this was his first time to Australia and he could always do that again. The applicant said that there was no problem to meet Jeff in Europe or the USA. Jeff told the applicant he would call him back in three days and update him on the sale of the drugs.

29. On 25 June 1999 Jeff telephoned the applicant and spoke with an unknown male and reported on the progress of the sale of the drugs. He expected to have the money early the next week.

30. From late June and throughout July 1999 there were numerous telephone conversations between Jeff and the applicant as to how the moneys received from the sale of the drugs should be sent to the applicant. He wanted the moneys sent to various people by electronic means. Jeff refused, pointing to various difficulties. Jeff insisted on a face to face meeting. Ultimately they agreed to meet in San Jose, California. Jeff travelled to San Jose. On 3 August 1999 the applicant telephoned Jeff, having arrived in Los Angeles. They agreed to meet at the San Jose International Airport and did so.

31. The applicant asked where the money was and told Jeff that he had stuff in Chile for $US2000 a kilogram. He asked Jeff if he could get his people to move it from there to Australia. A short time after that Jeff made a telephone call to an undercover DEA officer and asked him to bring the money. That officer entered the airport terminal and placed a bag containing $US150,000 between the applicant and Jeff. The prisoner asked how much money was in the bag and Jeff said "155". The applicant pointed to a number of people in the area whom he feared may be police.

32. The applicant told Jeff that his real name was not Ivan but Fernando and showed Jeff his passport in his true name. The applicant and Jeff were approached by US Task Force agents who arrested the applicant. Amongst the applicant's belongings was a small black wallet containing some business cards. Some of those cards mentioned the name "Reiner Aussem", telephone number 00 6129281-0333" being the telephone number of the Furama Hotel, Surry Hills where Aussem had stayed. Those cards contained the names of "Felix Fernando Ruiz" and "Jorge Lorenzo De La Cruz", being the persons to whom Jeff was asked to send money in Peru and the number [phone], being the telephone number of the covert mobile phone in the United states used by Jeff.

33. On 10 January 2000 in Sydney the applicant participated in a recorded interview with AFP agents with the assistance of a Spanish interpreter. The interview lasted from about 11.36am to 4.14pm and covered many matters. There was a break between 1.06pm and 2.12pm and some other fairly short breaks. While the applicant made admissions as to what had happened and the role he played, he also sought to shift most of the blame onto others. On his account he was an intermediary acting on the orders of others, especially Stephen Diaz (Fabian) who emerged, on the applicant's account, as the true principal and directing force of a business which supplied cocaine.

34. The applicant said that he first met Reiner Aussem in New York in about March/April 1999. He was one of a group of people involved in cocaine trafficking. His job was to take cocaine to Australia and other places. The applicant said that in Lima he was told to go to New York by Diaz to look after Aussem. A young man, El Chino, linked up with them. He gave Aussem some money in return for some cocaine.

35. The applicant said that he was paid $US2000 for looking after Aussem. After a few days the applicant, a Peruvian, and Aussem, a German national, returned together to Lima, Peru, with the applicant remaining in Peru where he lived and Aussem going to Dinjillo. At one stage the applicant was asked by Diaz to go to Chile to look after Aussem. It had to do with cocaine. At a later stage the applicant collected Albino at the airport in Chile and booked him into a separate hotel from those in which the applicant and Aussem respectively were staying.

36. The applicant said that he was aware that Aussem received some cocaine while he was in Chile with Aussem and that he brought that cocaine to Sydney. The applicant denied that he gave the cocaine to Aussem and that he strapped it to Aussem's body. The applicant insisted that both in New York and Chile a man called Carlos, a Peruvian, supplied the cocaine and strapped it to Aussem's body. The applicant said that he did not actually see Carlos give Aussem cocaine or strap cocaine to Aussem's body but that was part of his job. The applicant said that he saw Carlos in Chile.

37. The applicant said that the owners of the cocaine were Diaz and Albino. The applicant said that he knew that Aussem was taking cocaine to Australia as he had done so before. Aussem said that he was going to make $US10,000 out of his trip to Australia with the cocaine. The applicant said he was to be paid $US1000 for his services by Diaz.

38. The applicant said that he only met Carlos once but that was over the telephone. He did not know where Carlos lived or how to contact him. Aussem did not see Carlos and could not give a description of him. The applicant said that he believed Carlos was going to give cocaine to Aussem.

39. The applicant said that after Aussem arrived in Sydney he began telephoning Diaz. Then Diaz instructed the applicant that he was to take the telephone calls from Aussem and the applicant did so. The applicant said that Albino had come to Australia on the same plane as Aussem. The applicant had made a reservation for Albino at the request of Diaz. The reservation was made the day before Albino's arrival in Chile.

40. The applicant confirmed that Aussem had said that he needed money so he (the applicant) had spoken to Diaz and told him that Aussem needed money. Some money was sent. The applicant stated that he had no money,

41. The applicant agreed that he was aware that there was a man in Sydney who was going to pick up the drugs from Aussem but that did not occur. The applicant said that in the conversations he had with Aussem, he (the applicant) just repeated what he was told to say by Diaz who, at that time, was near the applicant in Lima. The applicant said that he was not responsible for Aussem.

42. The applicant was unable to explain why he had so very many telephone conversations with Aussem if he, the applicant, had to refer everything to Diaz for decision, especially if Diaz organised the venture from the beginning.

43. The applicant said that when he instructed Aussem to change hotel rooms, this was done on the instructions of Diaz. The applicant confirmed that he expected all the way along that Aussem came to Australia to deliver some cocaine. As to the problems with the collection of cocaine from Aussem, the applicant stated that Diaz believed that Aussem was trying to swindle him with all that cocaine The applicant said that Diaz held him responsible for what had happened.

44. The applicant said that he was offered $US5000 to go and collect the money ($US150,000) which Jeff said he had. Diaz was intimidating the applicant who claimed to feel responsible for what had happened. The applicant said it was his intention to collect the money from Jeff and confirmed that he had earlier asked Jeff to send to send to each of the two men (Ruiz and De La Cruz) in Peru $US10,000 via Western Union. The applicant agreed that he told Jeff that he had some more cocaine waiting for him in Amsterdam However, in saying that he repeated something that was a lie.

45. The judge had the advantage of hearing an intense and extensive cross-examination of Aussem by counsel for the applicant. The cross-examination extended over three days and about 81 pages of the transcript. Aussem maintained that the applicant was the person who had organised for him to come to Australia, strapped the packages containing cocaine to his body and owned the drugs. Aussem denied knowing Diaz (aka Fabian) and said his contact with Diaz was limited to the telephone conversations he had with him when he (the applicant) arrived in Australia with the cocaine and that Diaz was the head of the organisation Aussem denied any knowledge of a person by the name of Steffan Diaz and of a person by the name of Joseph Albino.

46. The judge also had the advantage of hearing the applicant give evidence over three days and his cross-examination over 27 pages. He was born on 10 October 1971 and had lived all his life in Peru and had gone to University for some three years, doing a course in psychology. He did not complete his degree. He worked as a stockbroker on commission as well as selling clothes. In 1998 he worked as a fabric salesman in an import/export business. He had a de facto wife and two children.

47. The applicant said that he knew Diaz when they were children, but lost contact with him. In 1999 he ran into Diaz and they renewed their friendship. Thereafter they met socially quite often. One day Diaz asked him to go to New York to take care of a person. He was offered $US2000 to do this job. So the applicant went to New York and met Aussem there. Then a man called El Chino came and met with Aussem. He gave the applicant $US2000. The applicant said that it was not his understanding that drugs were involved in this transaction. He and Aussem returned to Lima, Peru.

48. The applicant next met Diaz by chance in Miami. Diaz took him to meet Aussem. The applicant returned to Lima. After a period Diaz asked him to go to Chile and look after Aussem, that is, "to be with him at all times." The applicant said that he was to be paid $US1000 for doing this. The applicant said that the day before Aussem left for Australia Diaz asked him to pick up Diaz' partner, Joseph Albino, from the airport. At Diaz' request, the applicant made an airline reservation for Albino for Sydney. Diaz had given the applicant about $US2500 to give to Aussem for travelling expenses and he did so. Aussem told the applicant that he, Aussem, was going to Australia.

49. The applicant said that although he suspected Aussem was carrying drugs he never asked him. The applicant said that a man using the name Carlos telephoned him on behalf of Diaz on the day Aussem left for Australia and told the applicant that he, Carlos, was going to take care of Aussem. The applicant returned to Peru.

50. The applicant stated that he believed, but did not know, that Albino told Diaz that the police in Australia had arrested Aussem. This was a subsequent surmise. The next event was that Aussem telephoned the applicant on his mobile phone. Aussem said that he was okay and was going to a hotel and would let him know the details. The applicant said that he told Diaz. Aussem kept calling. Diaz gave the applicant instructions as to what to day. The applicant then detailed a number of problems which occurred, including the strained relationship which developed between him and Diaz.

51. The applicant said that during most of the many telephone calls between him and Aussem, Diaz was standing beside him telling him what to say. Diaz also gave the applicant instructions as to what to say if Aussem telephoned the applicant when Diaz was not present.

52. At one stage this exchange occurred between the judge and the applicant:

"Q: This man Stephen [Diaz] thought he'd [Aussem] be more comfortable talking to you about $US500,000 worth of cocaine? Is that what you're saying?
A: I suppose it's because I have been with him for one or two weeks in Chile."

The applicant gave evidence about his negotiations with Jeff and endeavouring to collect $US150,000.

53. In cross-examination the applicant said that he was simply a person paid by Diaz to look after Aussem in Chile before he flew to Australia. The applicant claimed that he did not know that Aussem had anything to do with cocaine. He did not ask and was not interested. His job was to look after Aussem. From other evidence it appeared that at the very least the applicant strongly suspected that Aussem was involved in taking cocaine to Australia. The applicant asserted that he had no idea at the time Aussem left Chile that he had packets of cocaine taped to his body nor any inkling of the amount of cocaine or how it was packaged.

54. When taken to incriminating parts of the tapes of his conversations the applicant replied that he was merely repeating what Diaz had told him to say. The applicant denied any knowledge of Aussem having been previously used as a drug courier. The judge rejected the applicant's evidence that he merely repeated what he was instructed to say by Diaz.

55. The judge held correctly that the transcripts of the conversations between Aussem and the applicant and Diaz made it clear that the applicant was a principal in the organisation of the importation of cocaine into Australia. There was an abundance of evidence on which the judge could so find. Any other finding would have been surprising. The judge did not believe the applicant's account. It was incredible. What he said in evidence was inconsistent with the answers he gave in his recorded interview and what he said in his taped conversations.

56. The judge, as the evidence entitled her to do, rejected the submission that Diaz owned the cocaine and organised Aussem. The judge was satisfied that Aussem had not known Diaz previously and that Diaz had not recruited him. She thought that Diaz probably had some contacts in Australia and was to organise the distribution of drugs in Australia.

57. The judge was satisfied on the evidence (and correctly so) that the applicant was no stranger to drug operations and was not the innocent abroad who became reluctantly involved as he pretended.

58. The applicant had no previous criminal convictions and references were tendered to the effect that he was a good man, a good family man, hard working and enterprising. It was suggested in the references that the economic crisis in Peru (and earlier, his father being swindled out of substantial assets) and the applicant's financial situation, led to him becoming involved in this venture. These matters had also led to him ceasing his university studies and having to earn money to help support the adult members of his family. The estimated street value of the cocaine ranged from $406,000 to $528,580. Those figures should be treated with caution. The wholesale value would be much less.

59. Consequent upon her findings the judge emphasised that the deterrent aspect of punishment is of primary importance in cases of this kind: Regina v Tate (1979) 46 FLR 386 at 389 per Brennan, Deane and Gallop JJ.

60. The judge noted that the applicant had pleaded guilty at the first available opportunity and was thus entitled to an element of leniency. She held that the plea demonstrated contrition and had a substantial utilitarian value. It facilitated the administration of justice to a significant extent. A long trial and the calling of many witnesses were avoided and guilt was accepted.

61. The judge carefully considered the sentences imposed upon some of the other offenders, namely 6 years with a non-parole period of 3 years upon Aussem and 8 years with a non-parole period of 5 years upon Irusta. The sentence imposed on Aussem reflected the substantial degree of assistance which he provided to the Crown. It led to the arrest, extradition and conviction of the applicant and Irusta. Aussem was at risk of personal danger. The judge rejected the submission that the applicant had provided useful assistance to the Crown.

62. The applicant complained that the AFP had not sufficiently investigated the movements of Aussem in April-May 1999, nor investigated Aussem's claims and movements with the Peruvian authorities. The evidence available does not suggest that this would have been useful. Aussem, judged only by his acts in this importation, was guilty of serious criminal conduct.

63. Appeal Ground 1

The applicant complained that the judge in assessing the discount to be allowed for his plea of guilty and contrition erroneously took into account that the Crown case was a strong one. After referring to the plea demonstrating contrition and having utilitarian benefits, the judge said: "However, of course, that plea was entered in the face of a strong Crown case." The applicant further submitted that in considering the discount the judge had wrongly had regard to the utilitarian value of the plea instead of the principles enunciated in Cameron v The Queen [2002] HCA 6 where it was held that it is in the public interest to grant a discount for a willingness to assist to facilitate the course of justice.

64. Cameron v The Queen, supra, had not been decided when the judge made her remarks upon sentence. Although the applicant has exposed two errors the question is whether the sentence adequately reflects a sufficient discount for the plea of guilty at the first opportunity in facilitating the administration of justice and the contrition it evidences in this instance. Despite the errors I think the sentence does reflect a sufficient discount for the factors mentioned.

65. Appeal Ground 2

The applicant complained that the judge had been unfairly dismissive of the assistance he had given the authorities and has not given him a discount for it. Some discount was warranted.

66. There is no evidence to indicate that the applicant had given any assistance to the police other than what he told them in his record of interview following his arrest.

67. The applicant told the police of the involvement of Mr Joseph Albino. The materials showed that he came on the same plane as the applicant. Albino is a citizen of the United States. There was no evidence that he had been arrested. His address was known to police.

68. The applicant asserted that the information which he supplied showed the true role and involvement of Aussem in the shipment of cocaine. Aussem had denied any knowledge of Albino. Aussem denied the role which the applicant attributed to him. The judge was entitled to take an adverse view of the applicant's evidence and not be satisfied that he had rendered any assistance to the authorities worthy of a discount.

69. Appeal Ground 3

The applicant complained that the judge had applied the guideline judgment of Wong & Leung (1999) 48 NSWLR 340 and should not have done so as the offence was a Commonwealth one.

70. The judge referred to this Court in Wong & Leung, supra citing with approval the passage from Tait, supra. That passage has frequently been cited with approval in Courts of Criminal Appeal around Australia. That citation evinces no error.

71. The judge later said:

"In imposing sentence I have also had regard to the recent guideline case of Wong & Leung in which the Court of Criminal Appeal promulgated guidelines for the sentencing of couriers and persons low in the hierarchy of the importing organisations in cases involving cocaine or heron. The Court said that:

'The range indicated is not intended to apply to the principal of an organisation responsible for an importation or a person high in the hierarchy of such an organisation to whom an increment should be applied.' "

72. The judge immediately thereafter stated that she regarded "the most appropriate sentence as one of fifteen years total sentence."

73. The applicant pointed out that the Court in Wong & Leung for a courier or persons low in the hierarchy for a low range (2kg – 3.5kg) cocaine importation had suggested a head sentence of 8-12 years.

74. The applicant submitted that because of the Wong & Leung guidelines and, I add, the judge's finding as to his role, she had virtually no alternative but to impose a head sentence of 15 years. He submitted that the matter should be considered afresh, divorced from that inapplicable guideline, and a more appropriate lesser sentence imposed.

75. The Crown submitted that even though error had been detected in the judge's reasoning process this was a case where no lesser sentence should be imposed. Even allowing for the early plea of guilty, the applicant's contrition, which was fairly limited, and the applicant's subjective features a lesser head sentence than 15 years was not warranted. The evidence showed that the applicant was an active principal in the importation.

76. The applicant submitted a schedule of cases decided by this Court. I have had regard to those cases. It is a mistake to seek to compare too closely the decisions on different combinations of facts. Having isolated the applicable principles it is best to focus on the facts of the present case.

77. Appeal Ground 4

The appellant complains that the judge failed to take into consideration s.16G of the Crimes Act 1914. The applicant pointed out that the judge in giving lengthy reasons for the sentence and stating the sentence to be imposed did not refer to having taken s.16G into account. Indeed after she had given her reasons imposing the sentence earlier mentioned and pursuant to s.16F explaining the effect of it, this exchange took place between Mr Moorhouse appearing for the Crown and the judge:

"Moorhouse: Your Honour I may be wrong but I don't recall your Honour stating for the purposes of the sentence that you had taken into account s.16G. I believe that.

Her Honour: Yes, I will add that.

Moorhouse: If that's the case I believe that it's possibly better that it be on the record, your Honour.

Her Honour: And that's the lack of remissions, is that ---

Moorhouse: That's correct.

Her Honour: In imposing that sentence I had overlooked putting that in but I had that well in mind that s.16G, this being a Commonwealth offence, remissions are not available. I have taken that into account and adjusted the sentence accordingly."

78. The appellant submitted that an examination of the transcript of her reasons showed that the judge forgot s.16G. She took into account ss.16A and 16F, At no time prior to the determination of the length of the sentence did the judge mention s.16G. It is understandable that the applicant would be sceptical about the judge's statement after she had imposed sentence that she had taken s.16G into account. It would have been better if s.16G had been mentioned much earlier and prior to the length of the sentence being announced.

79. However, a head sentence of 15 years on its face for criminality of the gravity here in question, reflects a discount of about one-third. The head sentence for a principal in the importation of 2.96 kg of pure cocaine would be of the order of 20 to 24 years. If the usual discount of one-third is applied for the lack of remissions in New South Wales, the resulting sentence would be one of 14 to 16 years. As a matter of practice some District Court judges work on net sentences, that is, sentences where about one-third has been taken off under s.16G of the Crimes Act because of the lack of remissions in New South Wales.

80. After allowing for remissions under s.16G 15 years was a correct head sentence.

81. Appeal Ground 5

The applicant complained that the non-parole period fixed was too high and should have been in the order of 60 per cent to 66.66 per cent of the head sentence. The applicant complained that the non-parole period represented 73 per cent of the head sentence. The applicant relied upon this passage from R v Bernier (1998) 102 A Crim R 44 at 49:
"… the norm for non parole periods is in the range of about 60 per cent to 66 and two-thirds per cent."

The Court also said:

"Circumstances may exist which make it appropriate to move outside the usual range for non-parole periods. The process is not mathematical or rigid, and often requires a finely tuned assessment. The determination of the appropriate non-parole period, as of the head sentence, should be approached with the caution and flexibility enjoined by Hunt CJ at CL in Lawson. (citation omitted)

82. There is a body of authority which supports the proposition that for Commonwealth offences the non-parole period has normally been set between 60 per cent to 66? of the head sentence although there is no fixed rule in that regard: R v Tack Lee Pang 105 A Crim R 474, para 17, R v Guzman & Henao [2000] NSWCCA 261 para 23, R v Salgado Silva [2001] NSWCCA 423, para 39. A non-parole period in the order of 75 per cent of the head sentence is reserved for the worst class of case: R v Paull (1990) 20 NSWLR 427 at 435, R v Acosta NSWCCA unreported, 22 October 1999, Guzman & Henao, supra.

83. The judge said nothing as to why she fixed a non-parole period as high as 73 per cent, especially as she fixed a head sentence which was in the middle of the permissible range. The applicant submitted that this case could not be considered one of the worst of its kind because he had no previous convictions, he pleaded guilty at the first opportunity and the quantity of drugs involved was in the low level range for a commercial quantity. There is much substance in this submission. I have discarded as erroneous his additional submission that he gave useful assistance to the authorities.

84. In its written submissions the Crown wrote:

"Her Honour said nothing to indicate that she found the applicant's to be amongst the most serious cases. It appears therefore that her Honour may have been in error in fixing the non-parole period."

85. The non-parole period is excessive. The offence is not in the category of the worst case of its kind. The non-parole period should be reduced from 73 per cent to 66? per cent, that is from 11 years to 10 years.

86. Miscellaneous

The applicant's submissions contain other complaints.

87. The judge was careful not to use the evidence of the applicant's prior involvement in drug dealings detrimentally to the applicant in terms of his claim to prior good character or to in any way increase the sentence. She considered that evidence in the context of the claims by the applicant that his sentence should be mitigated on the basis that he was nothing more than the equivalent of a courier.

88. The applicant queried whether the reference by the judge to other importations breached the Specialty rule incorporated in the Extradition Act 1988. That query must be answered in the negative. There were no new charges

89. The applicant relied on having no family or relatives in Australia or any other link with Australia. He thus has little prospect of having any family visitors or anyone close to him with whom he can relate or in whom he can confide. This is not a matter of much weight. The applicant placed himself in that position by his crime. The applicant pointed out that he had no previous convictions in any country. The judge took that into account.

90. The applicant also relied on the murder in Peru of Jose Israel Mindreau Herrera, a friend, on 21 June 1999. I can accept that this distressed the applicant but it does not lead to a lesser sentence.

91. Conclusion

Taking into account the applicant's subjective features the head sentence of 15 years was, in all the circumstances, correct for the importation of a commercial quantity of cocaine, in this instance about 2.96 kilograms of pure heroin at the behest of a principal. However, as earlier mentioned, and apparently accepted by the Crown, the non-parole period was excessive.

92. I propose the following orders:

1. Leave to appeal against sentence granted.
2. Dismiss the appeal against the head sentence of imprisonment for 15 years commencing on 3 August 1999
3. Allow the appeal against the non-parole period of 11 years and in lieu thereof substitute a non-parole period of 10 years commencing on 3 August 1999 and expiring on 2 August 2009.

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