R v Nunez
[2002] VSCA 15
•14 February 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 86 of 2001
| THE QUEEN |
| v. |
| GUSTAVO MELO NUNEZ |
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JUDGES: | WINNEKE, P., BROOKING and CHARLES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 February 2002 | |
DATE OF JUDGMENT: | 14 February 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 15 | |
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Criminal law - Sentence - "Knowingly concerned" in the importation of "not less than a commercial quantity" of cocaine - Sentence of nine years with non-parole period of six years - Judge's finding of role played by applicant supported by evidence - Sentence imposed not manifestly excessive - Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Champion | Solicitor to DPP (Cth) |
| For the Applicant | Mr M. Kowalski |
WINNEKE, P.:
On 25 January 2001, the applicant, Gustavo Melo Nunez, pleaded guilty to one count of being knowingly concerned, between 25 April 1998 and 10 June 1998, in the importation of prohibited imports, namely, not less than a commercial quantity of cocaine, contrary to s.233B of the Customs Act (Cth). It is an offence which carries a maximum penalty of life imprisonment.
The applicant had earlier been presented on a charge of conspiracy to import the cocaine with one Tellez-Gomez and other persons known and unknown. A trial, on that presentment, had commenced in February 2000 but, after substantial submissions made to the trial judge, the jury were discharged and the applicant remanded for re-trial. Thereafter, and in respect of the applicant, the Crown "filed over" the presentment alleging that the applicant was knowingly concerned in the relevant importation on 10 June 1998.
On 25 January 2001, her Honour entertained a lengthy plea on behalf of the applicant, during the course of which many documents relating to the family and business life of the applicant were placed before her Honour. Oral evidence from persons who had known the applicant in Australia was also called. Conspicuously - having regard to the nature of the plea made on the applicant's behalf, no evidence was given by him.
Her Honour accepted that the applicant - who is now aged 50 years - was a man of hitherto good character. She nevertheless found that he had played a significant organisational role in the importation "from the Australian end". On 6 April 2001 her Honour imposed a sentence of 9 years' imprisonment and directed that the applicant serve a minimum period of 6 years before becoming eligible for parole. Because the applicant had been in custody since his arrest on 11 August 1998, he had by the time of sentence already served 969 days of the sentence imposed by her Honour and that period of detention was "declared" in accordance with s.16E(2) of the Crimes Act (Cth).
It is against this sentence that the applicant has appealed. The notice of application specified 13 grounds, most of which seem to me to be particulars of the last ground, namely, that the sentence is "manifestly excessive". On 21 September 2001 the matter came before Callaway, J.A. upon an application pursuant to s.582 of the Crimes Act (Vic) for leave to appeal against the sentence. His Honour refused the application, expressing the view that none of the grounds was reasonably arguable. The applicant, as is his right, has elected to have the matter referred to this Court.
Before turning to the grounds of appeal, it is desirable to refer briefly to the material facts which were placed before the sentencing judge.
The applicant was born in Colombia, where he completed his initial education. He is an intelligent and apparently resourceful man who throughout his life appears to have followed many callings. He appears to be of an entrepreneurial nature and some of his enterprises, on the account given to her Honour, have been successful and some not so successful. Since 1974 he has spent much time out of his country of birth. He was in the United Kingdom from 1974 to 1977, and from 1977 to 1987 he was in this country. He returned to Colombia in 1988 to be with his first wife, who had herself returned at an earlier date for the birth of their first child. Although, thereafter, he remained based in Cali, Colombia, where he lived with his second wife and child, he not infrequently returned to Australia, where he had been given citizenship in 1986. The last entry which he made into this country was on 25 April 1998. Its purpose, so the Crown alleged, was to organise from this end the shipment of cocaine which was ultimately brought into Sydney airport on 10 June 1998 by a courier named Raoul Silveyra. The Federal Police, who had been monitoring the movements of the applicant and Tellez-Gomez from the time when the applicant entered the country, quickly apprehended the courier, who was carrying a suitcase with the cocaine concealed in a hidden compartment. The courier had stayed overnight in a New Zealand hotel. His travel arrangements in Australia, which had been made through a particular travel agency, were well known to the police. The courier was arrested in Sydney and placed in remand in Silverwater. The courier was speedily dealt with in New South Wales and sentenced to a term of imprisonment of 8 years with a non-parole period of 5 years on the basis that he was a "bare courier". The surveillance conducted by the police of the movements of the applicant and Tellez-Gomez following the applicant's arrival in Melbourne had, from early May, included electronic surveillance by means of telephone intercepts and listening devices obtained pursuant to warrant. The telephone intercept monitored calls to and from premises in Herbert Street, St Kilda, which premises had been rented for the accommodation of the applicant by Tellez-Gomez in a false name; the telephone service at those premises also being established - again through Tellez-Gomez - in the false name of "Zuluaga". The listening device was also installed at those premises. The tapes of the recorded conversations, both before and after the importation on 10 June, were put before her Honour and listened to by her. Although most were conducted in the Spanish language, transcripts of the English translations (accepted to be accurate) were also before the judge. Although the language used was cryptic, the tenor and content of the conversations were, and were found to be, highly incriminating of the applicant and formed the basis of her Honour's finding to the requisite standard that the applicant was, from the moment he arrived in this country, involved in the organisation of the importation - at least from the Australian end. Inter alia, those telephone and listening device recordings demonstrated that the applicant had placed calls to persons called "Nico" and "Omar" in Colombia seeking details of the travel arrangements and arrival date of the shipment. They displayed growing frustration at the delay in those arrangements. They also displayed, as the date of importation became imminent, a concern by the applicant that the courier have no identification upon him. A conversation between the applicant and Tellez-Gomez on 8 June recorded the applicant as saying to the latter that he had spoken to "Nicolet" and that Tellez-Gomez should "keep an eye out" as "he will be lending me the money any time". On 9 June the applicant rang Colombia again and was told that "the gentleman was down there" and was "very close" - "about two hours away".
The quantity of cocaine seized by police from the courier had a total weight of 3.9 kilograms. Its "pure weight" was approximately 2.8 kilograms - nearly one kilogram beyond the "commercial quantity" limit prescribed by the Act.
Conversations recorded and calls monitored after the arrival of the courier displayed mounting concern on the applicant's behalf as to the whereabouts of the courier and the shipment. Thus a conversation between the applicant and Tellez-Gomez on 11 June recorded the applicant as saying that the "man was good-bye" and that "the ship had sunk". A later call had Tellez-Gomez telling the applicant that the "thing" had been to court that morning and was at Silverwater. Before that, calls had been made from public phone boxes in St Kilda in the vicinity of the applicant's premises to the Capital Hotel in Sydney (into which the courier had been booked) asking for "Mr Silveyra", to the travel agent in Sydney, and to the hotel in New Zealand where the courier had had his overnight stopover. On the same day the applicant had rung Nico in Colombia to tell him that he was "unable to find anything". Later on 11 June Tellez-Gomez told the applicant that he had "made enquiries" about Silveyra's fate. On the next day, 12 June, the applicant rang the Colombian number and spoke to a woman, telling her that "a friend got diarrhoea yesterday" and that "the 4 pesos are lost". He said "they stuffed up because they did not consult". On the same day he spoke to Omar in the evening, reporting to him that the "gentleman" had already been to court, and, later still, rang him again enquiring whether he (Omar) had given "any details to that gentleman". Again, he complained about lack of consultation.
Not surprisingly, in the face of this evidence, her Honour said that she was satisfied that the applicant's role in the importation was greater than that of the courier and that the applicant was, as the Crown contended, the organiser of the importation from this end of it. She returned to the contention of applicant's counsel that she should have no regard to conversations recorded after the importation and said that she would have regard to those conversations for the purpose only of discerning the degree of the applicant's "knowing concern" in the importation and the role which he had played. As Her honour said:
"The Crown is entitled in any criminal proceedings to rely on conversations by an accused in which that person refers to his or her involvement in a criminal offence which had been committed at an earlier time."
Her Honour rejected the submission which had been made to her on the applicant's behalf that the applicant had come to Australia to trade uncut gemstones and for other lawful business purposes in order to make money and pay creditors who were threatening to kill him and his family in Colombia, and that he had, since his arrival, been in such an inebriated state through fear and worry that he had been unwittingly lured by Tellez-Gomez into playing a part in the unlawful importation of narcotics. Indeed it was put to her Honour that she ought to find that the applicant had believed the importation was related to an illicit gemstone importation; a submission which, in my view, was bound to be rejected by the judge. Her Honour was, however, at the end of the day, prepared to find in the applicant's favour that he was drinking "reasonably heavily" whilst in Australia and that he was "a desperate man" who, because of debts accumulated and threats thereafter made by ruthless people to him and his family, had not "taken part in this offence purely for greed". This, as it seems to me, was a generous finding to make on the applicant's behalf, particularly in the light of the fact that he had not given evidence to her Honour.
In this Court, Mr Kowalski - who appeared for the applicant - placed most emphasis on ground 2 of the application, which asserted that her Honour had erred "in taking into account telephone calls made by the applicant after the arrest of the courier". Mr Kowalski, however, conceded that her Honour was entitled to consider the content of such calls but submitted that she had erred in making the findings which she did of the applicant's role and culpability on the basis of such recordings, and had thus erred in imposing a penalty as severe as the one which she did impose. It was his submission that the content of such recorded conversations had been misconstrued by her Honour because, in truth, they revealed that the advice given by the applicant to the people in Colombia had not been heeded. Thus, so it was submitted, the judge had placed undue reliance on the content of such conversations as showing that the applicant had been intricately involved in organising the importation of cocaine. He further submitted that, because such conversations might have been construed as indicating an ongoing desire by the applicant to take part in further criminal enterprises, there was an apprehension that her Honour, in imposing the sentence which she did, may have been unduly influenced by those factors.
For my own part, I am quite unable to accept these submissions. In the course of her comprehensive sentencing remarks, her Honour specifically disclaimed any intention of using the recorded conversations for any purpose other than the legitimate purpose of discerning the nature and degree of the role played by the applicant in the importation in respect of which he had been charged. There is nothing to be found in her Honour's carefully composed remarks, nor in the sentence which she ultimately imposed, which suggests to me that she was influenced, in some unstated way, to use this concededly admissible material in an impermissible manner.
Mr Kowalski next submitted, in support of grounds 1, 3 and 5, that her Honour was in error in concluding that the applicant had been involved in the importation from the time of his arrival in Australia and in categorising the role of the applicant as greater than that of the courier and equivalent to that of Tellez-Gomez. It was submitted that the proper inference from the material before her Honour was that the applicant's criminality had developed over the period of time that he had been in Australia, and he repeated the submission which had been made to her Honour that, initially, the applicant had believed that the offending related to an importation of illegal gemstones. Counsel contended that this submission was supported by the haphazard timing of the importation which itself suggested that the applicant could not have had such a conception of the substance to be imported to warrant her Honour's finding that he was implicated from the beginning.
Again, I remain unpersuaded by these submissions. For a start, I can see nothing in her Honour's remarks which suggests to me that she made any finding about Tellez-Gomez's criminality. All that her Honour said was that Tellez-Gomez had "an equivalent interest" in the importation. Tellez-Gomez's level of criminality remains an outstanding issue so far as I am aware. In the absence of evidence from the applicant, her Honour was entitled, in my view, to conclude to the requisite standard that he was knowingly concerned in this importation of cocaine from the moment he arrived in this country. There is no point in repeating the material to which I have already referred. Her Honour, as she said, had listened to the tapes on more than one occasion, and was, no doubt, more familiar with their tenor than this Court is. It was apparent that, from the outset, premises had been arranged for the applicant in a false name and that a telephone service had also been connected for him in a false name. The nature and content of the conversations recorded entitled her to find, as she did, that the only thing in which the applicant was concerned, from the moment he entered the country, was the importation of the contraband which in fact arrived on 10 June. I would therefore reject these grounds of appeal.
All the remaining grounds of appeal were argued as part of the last ground, namely, that the sentence imposed by her Honour was manifestly excessive. It was not contended by Mr Kowalski that her Honour had failed to consider the matters to which these grounds relate. Rather, it is submitted that the sentence imposed was so large that she must have failed to give those matters adequate weight. It is said that the mitigating features here, including good record, separation from family and difficulties faced in being imprisoned away from family and friends, were so strong that the sentence of 9 years was seen to be outside the range available to the judge. These factors, whilst they have to be considered, are not necessarily of such great weight in offences of this kind as the authorities, to which her Honour liberally referred, make apparent. In the long run the principal purpose of punishment of offences such as these must be general deterrence, particularly in a case like this where the product of the offence is a commercial quantity of cocaine capable of causing enormous damage to this community, and particularly to young members of it. The legislature has demonstrated, by the maximum penalty provided, how seriously this type of offending is to be regarded by the courts. In my view the
sentence imposed for this quantity of imported cocaine, far from being excessive, was very moderate indeed.
The application should be dismissed.
BROOKING, J.A.:
I agree.
CHARLES, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court is that the application for leave to appeal against sentence is dismissed.
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