R v Ortiz; R v Oviedo

[2015] NSWDC 364

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Ortiz; R v Oviedo [2015] NSWDC 364
Hearing dates:	2 October 2015
Date of orders:	02 October 2015
Decision date:	02 October 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Mr Ortiz is sentenced to imprisonment consisting of a non-parole period of 6 years with a head sentence of 10 Years. Mr Oviedo is sentenced to imprisonment consisting of a non-parole period of 3 years and a head sentence of 6 years.
Catchwords:	CRIMINAL LAW – Sentence - Attempt to possess a commercial quantity of an unlawfully imported border controlled drug.
Cases Cited:	Lowe v R [1984] HCA 46; (1984) 154 CLR 606 (2 August 1984)
Category:	Sentence
Parties:	R v Andres Armando Ortiz R v Sergio Oviedo
Representation:	Counsel: Mr P Boulten SC – Offender Ortiz Mr R Pontello – Offender Oviedo   Solicitors: Director of Public Prosecutions (Cth) Benjamin &Leonardo Criminal Defence Lawyers – Offender Oviedo
File Number(s):	2014/40754 – Ortiz2014/40756 - Oviedo

SENTENCE

1. HIS HONOUR: Just yesterday I began some remarks on sentence concerning the drug methylamphetamine with these words: “drugs are terrible things”. That is certainly true. Their effect upon the community of Australia is enormous. Drug users are harmed in terrible ways, so are their families, so are their friends and so are other law-abiding members of the community upon whom crimes are committed so that drug users can fund their addictions. No one who has spent even a short time in the courts of New South Wales could fail to understand the seriousness of offences for which the two offenders appearing for sentence today are to be sentenced.

2. Andres Ortiz and Sergio Oviedo are to be sentenced for their involvement in an attempt to import a very large quantity of the drug methylamphetamine into Australia, 8.532 kilograms in fact, a quantity which is 11 times the commercial quantity under the Criminal Code and thus 11 times the quantity which exposes them to be sentenced to imprisonment for life. By setting such a maximum penalty Parliament has indicated to the Courts and the community just how seriously drug importation cases are to be treated and it is incumbent upon we judges to respond appropriately.

3. It is often said that judges live in ivory towers but we are exposed on a daily basis to the consequences of drug use, drug selling and drug importation, we know more than most people in the community of the awful consequences to human beings which offences of this type bring about.

4. Each offender has pleaded guilty at the earliest opportunity to an offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug.

5. The Crown has tendered what it described as an agreed statement of facts. It is not really a statement of facts at all, it is a summary of evidence containing minute details, the effect of which is to disguise rather than illustrate what it is each offender has actually done. There have been recent criticisms of statements of facts of this kind made in superior courts. It is incumbent upon the prosecution, both Commonwealth and State to respond to those criticisms and begin to produce documents which are helpful to sentencing judges, not because it makes our jobs easier but because it reduces the risk of us making mistakes.

6. There are many examples that I could give of unnecessary detail in this statement of facts. Why do I need to know the postcode in Ultimo? Why do I need to know the precise airway bill numbers? Why do I need to know the registration numbers of particular vehicles? Or the precise telephone numbers used by the people involved. The document is an excellent summary of evidence, but a very poor statement of facts.

7. I have done my best to understand what it is that the offenders have done. Although I will of course accept responsibility for any mistakes in what I am about to say, I believe that the responsibility for such mistakes should be shared with the prosecution.

8. The matter came to the attention of authorities in the United States, they intercepted and examined two consignments to be sent to Australia through a DHL parcel delivery service. Tests revealed that contained within a number of charcoal water filter cartridges was methylamphetamine. The total net weight of the substance containing methylamphetamine was just short of 60 kilograms and as I have said the total pure weight was more than eight and a half kilograms.

9. The US authorities removed the charcoal filter cartridges and the methylamphetamine. The wrappings of the packages were sent to Australia where AFP officers reconstructed the packages with new charcoal water filters, of course containing no illegal drugs. They were then delivered by an AFP member posing as a courier to a man by the name of Bedourie. Thereafter it is apparent that the two offenders were involved in the possession of the packages with the intention that they would be delivered to someone else who would presumably extract the methylamphetamine and either distribute the drug or pass it on to someone who would distribute the drug.

10. The role of Mr Ortiz was to take possession of the consignment and hold it until he could deliver it to another person. He was in constant communication with another person who gave him instructions. He organised for other people to collect and transport the consignment including his co‑offender Mr Oviedo. He stored the consignment in his car, then his home and later at other premises. At one stage he obtained the assistance of a third party to open one of the water filters to access the contents. His role was of course very significant. He demonstrated initiative and an ability to make independent decisions as to some aspects of this importation of illegal drugs.

11. Mr Oviedo’s role was more limited. He was engaged by Mr Ortiz to transport the drug and to retain possession of it. His involvement in the operation voluntarily ceased, but not only because he wished to have no more to do with the enterprise. He seems to have had two reasons for wanting no more to do with it, firstly he was going to Melbourne, but secondly intercepted telephone calls reveal a great deal of reluctance on his part. Clearly these offenders were doing this for financial reward, Mr Oviedo said and I accept, that he was to get $4,000 for what he did. Mr Ortiz says that he was going to get less than that, I do not accept that for one moment. He was in this for money, how much I do not know but the level of his involvement and the enormous quantity of pure drug involved suggests that his reward would have been substantial.

12. Both offenders are Columbian citizens. Neither of them appears to have come to Australia with the intention of committing these offences, that distinguishes them from a number of other offenders dealt with by the criminal courts. Often enough offenders come to Australia with the sole intention of committing offences such as these. But I repeat neither offender is in that category.

13. Mr Ortiz is almost 26 years of age. He was raised in Columbia, his parents argued frequently mainly because of his father’s drinking, although since his father reduced his consumption of alcohol the family has become more cohesive. He came to Australia in 2010 in order to study English. When his visa expired he went back to Columbia but returned to Australia in 2011 and has lived here since, even though his visa expired some time ago. He was working in a number of occupations, maintenance, cleaning, construction and removals and has married an Australian. There is material in a psychologist’s report in which Mr Ortiz gives an explanation as to why he got involved in this serious criminal conduct. He told the psychologist that his family had been threatened, that Columbian drug gangs were violent people and thus he felt under pressure to assist other people involved in this importation when they asked him to. I am not satisfied on the balance of probabilities that that is the reason he did what he did. He gave no evidence before me today, so all Mr Boulten can rely on is the hearsay statements in the psychological report. He has not overcome the burden of proof upon him to establish the mitigating feature of duress.

14. It is difficult to understand why Mr Ortiz got involved in such serious criminal conduct. The psychologist postulates possibilities but they are really just speculation. I suppose it could be said that the fact the offender has no previous criminal record, that psychometric testing failed to identify evidence of conduct problems, entrenched criminal tendencies or ongoing substance abuse would support the conclusions the psychologist has reached as to why it was that Mr Ortiz got involved. But it is quite likely that the rewards which he hoped to obtain from offending were a significant factor in him deciding to commit his serious crime.

15. Mr Oviedo in contrast to his co-offender was a drug user for a significant period of time. He told a different psychologist to the one who interviewed Mr Ortiz that he had been a drug addict since he was 14. He came to Australia in an attempt to start afresh, leaving drugs behind him. However he relapsed into cannabis use within a short time of arriving in Australia and has used drugs such as cannabis and cocaine, he said to alleviate distress. He studied and worked in Australia but of course drugs are expensive and so he found himself under financial pressure despite the fact that he had employment. He was unable to ask his family back in Columbia for more money because they had already paid for him to come to Australia and study. In those circumstances he gravitated to friends, also from South America and his drug use escalated. He told the psychologist who interviewed him that when he was offered $4,000 for his role in this enterprise he accepted it thinking “why not”.

16. Both offenders have been in custody since they were arrested on 7 February 2014 and both appear to have made the most of opportunities presented to them in custody to rehabilitate themselves. They both have received positive references from religious authorities in the prisons, they are both working and studying and using their time well.

17. They have both expressed their remorse. Their pleas of guilty are not the only evidence of that but are an important circumstance. The pleas of guilty also reflect a willingness to assist the course of justice. So to reflect that circumstance in each case I will impose upon the offenders a sentence which is 25% less than it would otherwise have been.

18. I take into account also that in Mr Oviedo’s case he appears to have been completely frank with the authorities when they interviewed him.

19. Both of them will of course serve their sentences in a foreign country. Not too much can be made of this given that it was their decision to commit these offences in Australia which has led to them being in gaol here. This is not a case where they will both be completely isolated from friends and family but I do take into account that neither of them appear to be fluent in English and in each case they do have family members in Columbia who will be unable to visit them while they are serving their sentence.

20. Of course the principle of parity has a significant role in this sentencing exercise. Neither offender should have a justifiable sense of grievance when he compares the sentence I impose upon him with the sentence I impose upon the other.

21. Here it is important to note similarities and differences. Both men are about the same age. Both men, as I have already mentioned, are doing what they can to rehabilitate themselves in custody. Both men I am satisfied are remorseful for what they have done but their roles were significantly different. It is conceded by Mr Boulten that Mr Ortiz played a more important role than Mr Oviedo. Indeed Mr Ortiz recruited Mr Oviedo. It is apparent that Mr Ortiz was concerned to distance himself from what he believed to be the drugs in order to minimise his risk of detection.

22. Mr Ortiz was a man who gave directions. He received them as well but he was sufficiently high up in the hierarchy that he was able, as I have said before, to make independent judgments and to give directions to other people, in particular Mr Oviedo. Their roles were quite different in fact and is the primary reason for the differences in sentences that I will impose upon each of them.

23. Of course for the reasons which I mentioned at the outset of these remarks on sentence, general deterrence is of prime importance. I need not repeat what I said at the beginning but I will say that the harm that drugs cause entirely justifies lengthy and indeed even harsh sentences being imposed upon those who would seek simply to make money out of such harmful activities.

24. I will just make a few comments about submissions put to me by Mr Boulten for Mr Ortiz and Mr Pontello for Mr Oviedo. I have already mentioned some of the factors raised by them but there are others I should deal with. I am not going to sentence Mr Ortiz as though he was the person who was going to sell the drugs after extracting them from the water filters. His role appears to have been to pass them on to someone who would do that. There were others who were going to do the extraction and distribution of these terrible drugs.

25. Mr Boulten submits that his client was not a drug ‘king-pin’, and refers to the modest circumstances in which he was living. He may not have been a ‘Mr Big’, and no one is suggesting that he was, but his role was big enough. I accept that he does not appear to have been a person who was making money out of drug importation but as I have already mentioned I do not accept that he was to be paid as little as he told police he was to be paid.

26. Mr Boulten made a submission that his client should receive some benefit from the circumstance that the drugs were removed by US authorities rather than Australian authorities. His submission as I understood it was based on the proposition that there was less risk that the drugs would be distributed than if it were the case that this drug importation was only detected by Australian authorities. Whilst I accept the logic of what Mr Boulten says, any difference in sentence because of this circumstance would have to be very modest indeed. It certainly did not affect his client’s moral culpability and the circumstance that the drugs were not actually flown across the Pacific does not significantly affect the risk that they would be distributed.

27. One submission I would like to refer to, that Mr Pontello made, concerned what he described as the offender’s voluntary cessation of involvement. I have already dealt with that to some extent but Mr Pontello did say that that underscored the peripheral nature of his client’s role. Whilst I would not accept the description of the offender’s role as peripheral I do accept that his decision to have no more to do with this enterprise does demonstrate that his role was not essential.

28. Both the Crown and Mr Boulten provided me with what they said were comparative cases. Mr Pontello relied on the authorities provided by the Crown and Mr Boulten. Quite clearly it is important to ensure that sentencing judges are given as much guidance as possible as to the sentence to impose in individual cases. For my part I gain great assistance from the decisions of other courts, in particular appellate courts. Of course each sentence, whether imposed at first instance or on appeal, relates to a particular offence and a particular offender. But judges are capable of working that out and are capable of considering how differences in objective and subjective features from cases considered by other courts affect the sentence to be imposed. I regard the exercise, of considering comparative cases as very important.

29. Consistency in sentencing should be an important aim of any criminal justice system. As long ago as Lowe v R [1984] HCA 46; (1984) 154 CLR 606 (2 August 1984) the High Court referred to inconsistency in sentencing as a badge of unfairness. Although that case is traditionally thought of as being a case relating to parity, it is actually a case which stands for wider principle that that.

30. I have considered the cases referred to by Mr Boulten and the Crown and relied on by Mr Pontello. There were of course substantial differences between those cases and the two cases before me today but I have noticed them and taken them into account.

31. I impose sentence as follows:

32. In the case of Mr Ortiz I sentence Mr Ortiz to imprisonment. I set a non-parole period of six years with a head sentence of ten years to date from 7 February 2014 thus the non-parole period will expire on 6 February 2020.

33. In Mr Oviedo’s case I sentence him to imprisonment and set a non-parole period of three years with a head sentence of six years to date from 7 February 2014. His non-parole period will expire on 6 February 2017.

34. It is important that I explain to the two offenders what I have just done.

35. Mr Ortiz would you mind standing up please.

36. I am going to explain to you the sentence I have just imposed. Now I sentence you to imprisonment, your sentence commenced on the day you were arrested, because you have been in custody since then. From the day you were arrested you must do a minimum of six years in gaol and that means that the earliest you can be released is on 6 February 2020. You may not get released on that day, a lot will depend on your performance in gaol and the decision will be made by the Parole Authorities. The most you will be required to spend in custody is ten years from 7 February 2014.

37. Do you understand that Mr Ortiz?

38. OFFENDER ORTIZ: Yes sir.

39. Mr Oviedo your sentence is also dated from the day you went into custody 7 February 2014 and you have to do a minimum of three years before you can be released so the earliest you can get out is 6 February 2017. Again you may not get out then, it will depend on the Parole Authorities whether you get out then or not. But the most you can be kept in custody for is six years from that date you were arrested. Now do you understand that?

40. OFFENDER OVIEDO: Yes sir.

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Amendments

29 March 2018 - Spelling correction paragraph [1]

16 February 2016 - No amendments made

Decision last updated: 29 March 2018