R v Raymundo Antonio Orellana
[2009] NSWDC 433
•30 October 2009
NEW SOUTH WALES DISTRICT COURT
CITATION:
R v Raymundo Antonio ORELLANA [2009] NSWDC 433
FILE NUMBER(S):
2009/1886
HEARING DATE(S):
JUDGMENT DATE:
30 October 2009
PARTIES:
Regina
Raymund Antonio Orellana
JUDGMENT OF:
Cogswell SC DCJ
COUNSEL:
Mr S Flood for the Commonwealth Director of Public Prosecutions
Mr B Brassil for the offender
SOLICITORS:
CATCHWORDS:
CRIMINAL LAW
sentence
conviction after trial
import marketable quantity of cocaine
no other sentence than full time impreisonment appropriate
luggage searched by customs at Sydney Airport when returning to Australia from Venezuela
cocaine impregnated in clothing
satisfied beyond reasonable doubt that the amount of cocaine was near the upper end of the range for a marketable quantity
street value of cocaine over one million dollars and close to two million dollars
trip to Venezuela was for the purpose of importing the cocaine
offender came to Australia as refugee
no relevant prior criminal history
LEGISLATION CITED:
Criminal Code Act 1995 s 307.2(1)
CASES CITED:
The Queen v Olbrich (1999) 199 CLR 270
TEXTS CITED:
DECISION:
Non-parole period of 6 years 6 months. Balance of the term 4 years 6 months.
JUDGMENT:
JUDGMENT
I am sentencing Raymundo Antonio Orellana for a very serious crime. The crime is importing drugs into Australia. The crime is an offence under the Criminal Code Act 1995, s 307.2(1) of the Commonwealth. It involves what is called a marketable quantity of the drug. The drug was cocaine. The maximum penalty is twenty five years imprisonment.
Mr Orellana pleaded not guilty when he was charged with this offence but a jury found him guilty of the offence on 25 August this year and I now formally convict Mr Orellana of that offence.
Mr Orellana has been in custody since he was arrested on 17 November 2007. Having considered all the other available sentences, no other sentence is appropriate than full time custody and it will date from 17 November 2007.
First I must say something about what happened in this case. Mr Orellana flew to Venezuela and back to Australia. He was away for only a short period of time in late 2007. When he came back through Sydney Airport his suitcase was searched by customs officers who found some clothes in one of the suitcases which were impregnated by some kind of substance. The substance turned out on chemical analysis to be cocaine. Cocaine is what is called under the Australian law a border controlled drug.
The prosecution says that the amount of cocaine is close to two kilograms. Mr Brassil, who appears as Mr Orellana’s counsel, argues that I cannot determine the amount of cocaine any more than about 250 grams. This is one of the most important factors in my sentencing of Mr Orellana. The minimum amount of cocaine to be a marketable quantity is two grams. When the amount of cocaine imported becomes two kilograms it becomes what is called a commercial quantity. The sentence for importing a marketable quantity is twenty five years. The sentence for importing a commercial quantity is life imprisonment.
Because this question was so important there was evidence called about it in the sentence proceedings in addition to the evidence given in the trial. Mr Flood, who appeared as the Crown Prosecutor on the trial and in the sentence, called a scientist from the Australian Forensic Drug Laboratory – Mr Cameron - who was the operations manager of that laboratory. He was examined by Mr Flood and cross-examined by Mr Brassil.
Mr Brassil argued that the process of weighing the cocaine was something that the scientists were not familiar with and that there was an element in the weighing called measurement uncertainty. He argued that I cannot be satisfied beyond reasonable doubt that the amount of cocaine was nearly two kilograms. The opinion expressed by Mr Cameron was that the amount extracted by the scientists from the clothes was just over two kilograms, namely 2,080 grams. He was of the opinion that the process used extracted at least ninety percent of the cocaine. That figure takes into account what the scientists call measurement uncertainty.
I was impressed by Mr Cameron as a witness. I was also impressed by his qualifications and experience and the position which he holds at the laboratory. He was a frank witness who acknowledged at least once an area outside his expertise as being something he could not comment on.
The actual measurement was done by a scientist called Ms Yu. As for the challenge by Mr Brassil that they were not familiar with the process I accept Mr Cameron’s evidence that they have about two or three cases a year which involved what he called impregnation. Mr Cameron was involved in all of them. Mr Cameron was involved in this case at the beginning with a couple of items from this case but then Ms Yu took over but Mr Cameron remained involved as the supervisor and person who checked Ms Yu’s findings. In fact there is a formal process in the laboratory of double checking findings. Mr Cameron said they used a process which, in their opinion, extracted the majority of cocaine from the clothes in this case. When cross-examined by Mr Brassil he made it clear that that was also his own opinion. He gave evidence that he reviewed Ms Yu’s findings and found no errors and that she had followed all of the procedures.
I am satisfied beyond reasonable doubt that the amount of cocaine which Mr Orellana imported into Australia in his suitcase was near the upper end of the range for a marketable quantity.
I also heard evidence, which I accept, during the trial that the street value of the cocaine imported by Mr Orellana was over one million dollars and not far short of two million dollars. Mr Orellana of course did not admit that he imported this cocaine. He defended the case, as is his right. I do not have any evidence on which I can find where he might be in any hierarchy of drug importers. I cannot be satisfied beyond reasonable doubt that he is a principal. He is at the very least a courier but what is more important the High Court made clear in the The Queen v Olbrich (1999) 199 CLR 270 is that classifying an offender must not “obscure the assessment of what the offender did”. That passage is at [19] and what Mr Orellana did in this case was to import not much less than two kilograms of cocaine into Australia.
I find that the importation of that cocaine was the purpose for his brief trip to Venezuela. He acquired the cocaine somewhere in South America, probably Venezuela but it may have been one of the other ports which he visited and of course he, according to the jury’s verdict, knowingly brought it into Australia. What is important to appreciate is that the amount of cocaine imported is not far short of 1,000 times the minimum amount for a marketable quantity of cocaine. That is a very serious example of this crime.
Mr Orellana has one conviction for a dishonesty offence. That offence was committed many years ago and is what the law calls spent. I do not place any weight on that conviction, it will not count against Mr Orellana.
He is a man with strong family connections both immediate and extended. He came to Australia himself as a refugee. He has children and loyal siblings and nieces and nephews. He has a good work history in Australia in unskilled employment. It seems that he is otherwise a man of good character but the higher courts say that good character is of limited value in drug matters: a person of good character is unlikely to attract the attention of the authorities and therefore more likely to be selected as a person to import narcotics.
Mr Brassil points out that his client has no assets of any value and a strong connection with his family which I accept. He is not on the fringes of the community but very much part of a family and the workforce. I put a little weight on the fact that until the trial the charge faced by Mr Orellana was one of importing a commercial quantity of cocaine, carrying a life sentence. Indeed that charge went to the jury but it was made clear by the prosecution that the evidence could not sustain that charge.
It is Mr Orellana’s first time in gaol. His mother aged seventy-six lives in Sydney and requires assistance. Although Mr Orellana usually attended to that, it has been attended to by other family members since he went into gaol. The law is very strict on whether I am allowed to give leniency because of the impact of a sentence on family members. It says that I cannot give that leniency unless there are truly exceptional circumstances. This sentence will obviously have an undesirable impact so far as Mr Orellana’s mother’s care is concerned but it does not fall within the category of truly exceptional circumstances in my opinion.
There is a pre-sentence report prepared by an officer of the Probation and Parole Service which confirms that Mr Orellana left school in the middle of his secondary education when he was fifteen in the country where he was born - El Salvador - and that he is well regarded as a worker in the prison. He has no addictions such as drugs or gambling.
I cannot take into account any remorse or contrition because Mr Orellana pleaded not guilty. Pleading not guilty does not count against Mr Orellana at all but it does mean that he cannot ask me to give leniency because of remorse. He showed some cooperation with the authorities in that he was prepared to be interviewed but of course he denied committing the offence.
It is important that any judge, including me, takes into account the need for people to be stopped from importing drugs into Australia by imposing appropriate sentences. I have reviewed the statistics - made available by counsel - from the Judicial Commission and some authorities referred to by Mr Flood.
I consider that an appropriate sentence in this case, taking into account everything that I have referred, to is eleven years imprisonment and I regard an appropriate non-parole period as six and a half years imprisonment. Both the sentence and the non-parole period will date from 17 November 2007.
Now in a moment I will explain that Mr Orellana, I’m just going to have a word to my associate.
The sentence will commence on 17 November 2007 and the eleven years expires on 16 November 2018. The non-parole period commences on 17 November 2007 and expires on 16 May 2014.
Now the first question is whether I have the mathematics right: I am addressing this to counsel, if you both just check that.
GRODZICKI: Yes that looks right to me.
BRASSIL: Yes it appears to be correct your Honour.
HIS HONOUR: Okay the second thing is whether I have made any factual errors Mr Brassil?
BRASSIL: Your Honour I’m not prepared to cavil with any matters your Honour has raised.
GRODZICKI: As far as I am aware, no.
Now Mr Orellana I have sentenced you to eleven years gaol. The minimum that you have to serve is six and a half years. After six and a half years you become eligible for parole and that six and a half years expires on 16 May 2014 and your overall sentence finishes on 16 November 2018. Whilst you are on parole you must be of good behaviour or you may have to serve the full sentence.
Now is there anything that I should explain because I am obliged to explain the sentence and I think, I don’t think I have to explain--
GRODZICKI: I think that covers it your Honour.
HIS HONOUR: That covers it?
GRODZICKI: Yes.
HIS HONOUR: Mr Brassil?
BRASSIL: Yes your Honour I have nothing further.
HIS HONOUR: All right thank you. And Mr Brassil just for the record thank you for the email which you sent to my associate indicating that there is no matter on which you made any submissions so far as the trial is concerned and about which you have not received a judgment from me, now that’s the case?
BRASSIL: Yes your Honour.
HIS HONOUR: Great thank you Mr Brassil.
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LAST UPDATED:
30 August 2011
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