R v Romero-Cepeda - [2000] NSWCCA 229

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: REGINA v ROMERO-CEPEDA [2000] NSWCCA 229

FILE NUMBER(S):
60718/99

HEARING DATE(S): 9 June 2000

JUDGMENT DATE: 09/06/2000

PARTIES:
Regina v Jorge Romero-Cepeda

JUDGMENT OF: Spigelman CJ Newman J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/11/0280

LOWER COURT JUDICIAL OFFICER: Backhouse QC, DCJ

COUNSEL:
James Fliece (Appellant)
David Staehli (Respondent)

SOLICITORS:
Kremmer Townsend Lawyers (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW - sentencing - drug importation - no disparity of sentence.

LEGISLATION CITED:
Customs Act 1901 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60718/99
SPIGELMAN CJ
NEWMAN J
ADAMS J
Friday 9 June 2000

REGINA v Jorge ROMERO-CEPEDA
JUDGMENT

SPIGELMAN CJ: The Applicant seeks to appeal against the sentence imposed upon him by her Honour Judge Backhouse QC on 5 November 1999. The Applicant pleaded not guilty to a charge of being knowingly concerned in the importation into Australia of prohibited imports, namely 3.5739 kilograms of pure cocaine, being a commercial quantity for purposes of the Customs Act 1901. He was found guilty after a trial by jury. Her Honour sentenced the Applicant to imprisonment for a term of eleven years, with a non-parole period of six and a half years commencing on 22 December 1996, being the day on which he was taken into custody.
The thrust of the Applicant's submissions was that he had a justifiable sense of grievance in that his sentence revealed, it was alleged, a marked disparity with the sentences imposed upon other persons who were involved in the criminal enterprise. The Applicant referred to the well-known principles considered by the High Court in Lowe v The Queen (1984) 154 CLR 606 and Postiglioni v The Queen (1997) 189 CLR 295.
Between 19 September 1966 and 3 January 1997, some twenty-three envelopes containing a quantity of fifty-eight plastic folders impregnated with 3.5739 kilograms of pure cocaine were sent to various addresses in Australia. This had occurred pursuant to a contact originally made between a Mr Castro-Vargas, a resident of Columbia, and a registered police informer known as "Warren". Over time, the Columbian end of the arrangement was taken over by a person called Morris. The envelopes had been addressed to various addresses in Australia set up by Warren at the direction of the National Crime Authority (“NCA”). All of the cocaine was intercepted by the NCA. After interception, the NCA used some of the envelopes as a controlled delivery sample in order to apprehend the participants in the scheme. The controlled delivery sample consisted of twelve plastic folders impregnated with 655.2 grams of pure cocaine.
Her Honour considered a wide range of factors in the course of coming to her decision as to the appropriate sentence. She referred both to the objective circumstances of the offence and also to a number of subjective circumstances of the Applicant to which it is unnecessary to refer again. No complaint is made as to these various facts and matters to which her Honour had regard.
The thrust of the submissions was that the result involved a manifest disparity with the other sentences. It was suggested that her Honour committed a legal error in refusing to take into account questions of parity, at least with respect to one of the co-offenders and, it was submitted, others.
It is clear that her Honour accepted the significance of the identification of the particular role which the Applicant played in the scheme. She concluded:
"I am satisfied beyond reasonable doubt that he was the chemist who was sent to Australia for the purpose of extracting the cocaine from the plastic folders."
This was a crucial finding because the role of the chemist was a vital one in the scheme as a whole. It represented a very high order of criminality and was a fact entitled to significant weight in the sentencing process. Her Honour reached this conclusion after rejecting the evidence given to her on oath by the Applicant and also after rejecting a range of submissions directed at qualifying in various ways the clear admissions made by the Applicant in recorded conversations and also qualifying the objective facts of the steps taken by him.
Her Honour was entitled to reach the conclusion that she did. It was amply supported by the evidence, including admissions in the first conversation that occurred after the Applicant arrived in Australia in which he said, in terms, that he was the chemist and had done the conversion many times before. There was other evidence to the effect that the Applicant gave directions regarding the nature and quantity of the chemicals and other materials required for the extraction process; which chemicals and materials were supplied in a large volume, much larger than required merely for the amount in the controlled parcel. That fact was a fact known to a person described as a chemist and not necessarily known to others. There was ample evidence to justify her Honour's firm conclusion and no challenge was made to that conclusion in this Court.
The centrality of the Applicant's role in the scheme was confirmed by the frequent contact he had with the Columbian principal about the progress of the work being conducted in Australia, contact of a frequency not manifest in the case of the others.
Counsel for the Applicant focused on a particular part of her Honour's remarks on sentence when she referred to the sentence that had been imposed on a Mr Cardona, another person involved in the scheme. She said:
"I accept the submission of Mr Chappel that there is no question of parity with Mr Cardona".
The submission on behalf of the Appellant was to the effect that this indicated that her Honour refused to consider the sentence imposed on Cardona and, it was submitted, also Robertson, as in any way relevant to the sentencing task before her Honour. It was submitted that this constituted a legal error in accordance with the High Court's authorities on "parity".
Her Honour was referring to a submission of the Crown to which she had previously made reference in her reasons on sentence in the following terms:
"Mr Chappel who appeared on behalf of the Crown submitted as far as Mr Cardona is concerned there is no parity question at all and that I would not take Mr Cardona as a reference point. He reminded me that the difference between these two is that in the case of Mr Romero-Cepeda the court is dealing with a commercial quantity far in excess of the amount to do with Mr Cardona's case.
...
He submitted that the Cardona sentence is not particularly instructive and that here we are dealing with a commercial quantity without any mitigating circumstances... ."
The reference in the submissions of the Crown before her Honour, as quoted above, to quantity, is a reference to the fact that the Applicant in these proceedings was, alone, charged with being knowingly concerned in the importation of a commercial quantity. The other three participants in the scheme, to whose role I will presently refer, were each charged with being involved in the importation (in one case the supply) of the smaller amount of approximately 655 grams contained in the controlled delivery. The Applicant alone was charged with respect to the entirety of the importation, a differentiation which appears to have been based in part on the centrality of the Applicant's role in the scheme and, no doubt, on decisions by the Crown as to its ability to prove the involvement of the other participants in the overall scheme, as distinct from their involvement in the events associated with the controlled delivery.
It was submitted that the differentiation was artificial as, for example, evidence of the acts of the other offenders was admitted into evidence against the Applicant on the basis that there was a joint criminal enterprise. That does not, however, mean that the Crown was in a position to prove beyond reasonable doubt all elements of the offence alleged against the other participants with respect to the larger amount. I do not accept the proposition that there was any artificiality necessarily involved in the differentiation. In my opinion there is a very material difference between the two cases to which her Honour expressly referred, and indeed any other cases that, by inference, she may have been referring to.
Pursuant to s235(2) of the Customs Act 1901, the maximum sentence for importation of a commercial quantity is life imprisonment, whereas for a first offence of involvement with a trafficable quantity, the maximum sentence is imprisonment for a period of twenty-five years. On any view, the Applicant in this case fell to be sentenced in accordance with a different regime from other persons with respect to whom questions of parity have arisen. That does not mean that the end result in the other cases is irrelevant to the sentence in this case.
However, the involvement of Cardona, to whom particular reference was made in the passage of her Honour's reasons referred to, was of a lower level, although identification of his precise role was not the subject of any finding of fact by her Honour. The evidence and the submissions on behalf of the Applicant before her Honour included the suggestion that it was Cardona who was the chemist. This was a proposition her Honour firmly rejected. She was entitled to do so. The role of the chemist was vital to the scheme in a way not manifest with respect to the other participants.
Reading her Honour's reasons as a whole, I am of the view that when her Honour accepted the Crown submission "there is no question of parity with Mr Cardona", she was not intending to suggest that the sentence imposed on Cardona was irrelevant to the sentencing exercise before her Honour. She was using the word "parity" in the sense that the sentence imposed on the Applicant should not be equivalent or comparable with that imposed on Cardona. When I say "comparable" I mean of the same order of magnitude. The reason for that is their roles were not comparable and, as the passage from the submissions of counsel that appeared for the Crown before her Honour indicates, emphasis was placed on the fact that in one case a commercial quantity was involved and in the other, only a trafficable quantity.
There were three other persons involved in the enterprise who can loosely be referred to as "co-offenders", although none of them was charged with offences relating to the entirety of the importation and in that sense were not true co-offenders.
Mr Douglas Robertson was charged with supplying the amount of 655.2 grams, being a commercial quantity for the purposes of the Drug Misuse and Trafficking Act 1985 (NSW). His role in the affair was to provide a shed on his farm property at which the clandestine laboratory was to be located. He was also involved in acts of transportation and other preparatory acts for the extraction of the cocaine. He was sentenced to seven years imprisonment, comprising a minimum term of four and a half years and an additional term of two and a half years. His conviction was under a different Act. Furthermore, his case is distinguished by the fact he entered a guilty plea at the earliest possible opportunity and had given some assistance to the authorities, together with consent to a forfeiture order of property.
The combination of these various factors, and in particular in my opinion, the substantially greater amount of quantity of drugs involved in the offence of which the Applicant was convicted and the central role in the scheme played by the Applicant in comparison with that of Mr Robertson, means the Applicant can have no justifiable sense of grievance if he receives a substantially higher penalty than Robertson.
In the case of Cardona-Reinoso he, like the Applicant, pleaded not guilty and was accordingly not entitled to a discount in this regard. He was sentenced on the basis of not being the organiser or having any managerial role in the scheme. His criminality was of a lower order than that of the Applicant whose role as the chemist was vital to the success of the scheme.
It may be that some sense of grievance is harboured by the Applicant in this respect because of the failure of the authorities to charge the other persons, including Cardona, for their involvement with the entire quantity of drugs. That is not a sense of grievance which is justifiable in a relevant sense. Cardona was convicted of the same offence as the Applicant with respect to a substantially lower quantity of the drug, namely, about 655 grams as against 3.5 kilograms. The quantity of the drug is a central consideration in the exercise of the sentencing discretion. The particular role of Cardona does not emerge with clarity, but her Honour was entitled to act on the basis that she did act, namely, that his role was of considerably lesser significance than that of the Applicant. Again in my opinion there is no justifiable sense of grievance with respect to the sentence imposed on Cardona.
The final case is that of Toro-Martinez whose role was established as the most minor of all. Originally her Honour Judge Ainslie-Wallace sentenced him to a period of three years and six months, with a non-parole period of two years. This Court has, however, increased the sentence to six years with a non-parole period of three years.
Toro-Martinez was charged with respect to being knowingly concerned in a trafficable quantity, namely the controlled delivery of some 655 grams. His role in the scheme was minor in comparison with that of the Applicant.
In my opinion, the Applicant can have no justifiable sense of grievance with respect to his sentence in comparison to that imposed on the other three persons who in some respects were co-offenders.
In the case of R v Wong and Leung (1999) 108 A Crim R 531 I set out in my judgment a range of sentences for this offence in various categories, including what was there described as a low range commercial quantity of 2 to 3.5 kilograms of cocaine. The amount involved in this case was slightly above this range. The sentences in New South Wales and other States for this offence are set out in Schedules 1.4 and 2.4 of that judgment (see at 566 and 568). I concluded that the general thrust of the sentences in the cases set out in the Schedules indicated sentences falling in the range of head sentences of eight to twelve years. (See Wong and Leung at 548.) Her Honour's sentence is well within that range, particularly considering the fact that the quantity involved is at the top, indeed slightly above, the amount referable to the range. The relationship between the head sentence and the non-parole period is entirely appropriate.
In my view, her Honour's sentence was well within the discretion available to her Honour. I would grant leave to appeal but dismiss the appeal.
NEWMAN J: I agree.
ADAMS J: I also agree.
SPIGELMAN CJ: The orders are as I have indicated.

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LAST UPDATED: 04/07/2000