Rivero v The King
[2025] VSCA 144
•20 June 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2025 0083 |
| CHARLES GARY SCHWENK RIVERO | Appellant |
| v | |
| THE KING | Respondent |
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| JUDGES: | NIALL CJ and KIDD JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 June 2025 |
| DATE OF JUDGMENT: | 20 June 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 144 |
| JUDGMENT APPEALED FROM: | [2025] VCC 145 (Judge Moglia) |
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CRIMINAL LAW – Appeal – Sentence – Import commercial quantity of border controlled drug – Post-sentence diagnosis of terminal cancer – Short life expectancy – Fresh evidence – Mercy – Leave to appeal granted – Appeal allowed – Non-parole period of 396 days fixed.
Ale v The King [2025] VSCA 92; R v Nguyen [2006] VSCA 184; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; R v Shrestha (1991) 173 CLR 48, considered.
Price (a pseudonym) v The Queen [2018] VSCA 54; Cavanagh v the Queen [2016] VSCA 305; Ridge v The Queen [2013] VSCA 203; Cardona v the Queen [2011] VSCA 58, followed.
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| Counsel | |||
| Applicant: | Mr LDJ Cameron | ||
| Respondent: | Mr S Ginsbourgh | ||
Solicitors | |||
| Applicant: | Abbey Johnson, Stary Norton Halphen | ||
| Respondent: | Sarah Gleisner, Commonwealth Office of Public Prosecutions | ||
NIALL CJ
KIDD JA:
On 20 February 2025, the appellant pleaded guilty to one charge of importing a commercial quantity of a border controlled substance, namely cocaine, contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth). A plea hearing ensued on that day before his Honour Judge Moglia.
Later that day, his Honour sentenced the appellant as follows:
| Charge | Offence | Max Penalty | Sentence | Commencement/ Cumulation |
| 1 | Import commercial quantity of border controlled drug (cocaine)[1] | Life imprisonment or 7,500 penalty units, or both | 6 years 6 months’ | Commences 20 February 2025 |
| Total Effective Sentence (Cth): Non-Parole Period: | 6 years 6 months’ imprisonment 3 years 7 months | |||
| Pre-sentence Detention Declared: | 276 days | |||
| Section 6AAA Statement: | Total Effective Sentence 8 years 6 months’ Non-Parole Period 5 years 6 months | |||
| Other Relevant Orders: Nil. | ||||
[1]Contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth).
The appellant sought leave to appeal on a single proposed ground, expressed as follows:
By reason of fresh evidence of the applicant’s diagnosis of terminal cancer, the sentence imposed on the applicant should be set aside and a different sentence imposed, to avoid a miscarriage of justice.
The listing for the hearing of this matter was expedited and heard on 20 June 2025. At the conclusion of oral argument the Court ordered that:
(a)Leave to appeal should be granted.
(b)The appeal is allowed.
(c)The sentence of imprisonment imposed upon the appellant in the County Court on 20 February 2025 is set aside and in its place, the appellant is resentenced to 6 years and 6 months’ imprisonment. A non-parole period of 13 months is fixed.
(d)It is declared that the period of 396 days, not including today, be reckoned as already having been served under this sentence.
We indicated that we would publish our reasons shortly. These are our reasons.
Circumstances of the offending
On 20 May 2024, the appellant was intercepted by Australian Border Force personnel arriving at Melbourne International Airport from Bolivia, via Brazil and Qatar, carrying two suitcases. Packages of cocaine were found concealed within the suitcases, with a total pure weight of 2.68 kg.[2]
[2]Director of Public Prosecutions (Cth) v Charles Gary Schwenk Rivero [2025] VCC 145, [3]–[6] (‘Reasons’).
The appellant was born in Bolivia and moved to Spain as an adult, where he became a citizen. Owing to family responsibilities, he subsequently returned to live in Bolivia in 2017 while his wife and son remained in Spain.[3]
[3]Ibid [10]–[14].
The appellant was living in Bolivia when the COVID-19 pandemic broke out. Although he was able to continue some casual work under the very restricted conditions, his income was limited and he struggled financially. During this time, he became indebted to persons who were later revealed, by the facts of the case, to be involved in criminal activity.[4]
[4]Ibid [15].
It was submitted by defence counsel at the plea that when the appellant had been unable to repay his debts, he was pressured by his debtor into bringing the suitcases to Australia in exchange for a release from his liabilities. The only explanation given by the appellant for his offending was his financial need — predominantly the repayment of his debts.[5] The evidence did not establish that the appellant knew that he was carrying drugs.[6]
[5]The prosecution accepted that there was no evidence contradicting the appellant’s account: Reasons, [43].
[6]Reasons, [40].
The appellant has faced significant health challenges throughout his life, arising predominantly from diagnoses of chronic rheumatic fever and Type II diabetes.[7] In 2022, he suffered a severe heart attack which required bypass surgery.[8] He has also been diagnosed with major depressive disorder and generalised anxiety disorder.[9]
[7]Ibid [31].
[8]Ibid [34].
[9] Ibid [23].
The appellant does not speak English.
Sentencing remarks
The sentencing judge noted that the charge in question was a ‘most grave offence’, carrying a maximum penalty of life imprisonment, and that the quantity of pure cocaine (being 1.3 times the threshold for a commercial quantity) was an important factor.[10] His Honour emphasised the need for general deterrence in light of the harm caused to the community from the international drug trade, highlighting that:
The consequences to our community of this trade in drugs are very significant. The harm caused to the ultimate users can be dire. The cost to the community of treatment for addiction and of policing and prosecuting offenders is similarly great. So I must give significant weight in sentencing you to deterring others from such offending.[11]
[10]Ibid [36]–[37].
[11]Ibid [38].
However, the sentencing judge was alive to the difficulties faced by the appellant in custody as a result of his health conditions and the language barrier, which had posed ‘unacceptable’ and significant issues for his access to adequate and appropriate medical treatment.[12] The sentencing judge accepted that prison life would be, and had already been, more onerous for the appellant on account of these difficulties.[13]
[12]Ibid [20]–[22], [34]–[35], [51].
[13]Ibid [47], [52]–[53].
While the appellant’s conduct was found to be reckless and his role ‘essential for the importation’, the sentencing judge appeared to accept that his culpability was reduced by the context of his motivations (being the debt), ultimately finding his culpability to be moderate.[14]
[14]Ibid [48].
Ground 1: fresh evidence
The fresh evidence
The fresh evidence submitted by the appellant establishes his formal diagnosis of cancer — metastatic cholangiocarcinoma — some five weeks after his sentence, following his admission to St Vincent’s Hospital on 25 March 2025.
The uncontested medical evidence from the medical oncology registrar at St Vincent’s Hospital, Dr Terance Lee, reveals the following:
(a)On 25 March 2025, the appellant was transferred from Ravenhall Corrections Centre to St Vincent’s Hospital and presented with abdominal pain, fevers, and abnormal liver function tests. He had an infected, perforated gallbladder. A CT scan revealed malignancy in the biliary duct, liver, and lungs, which was confirmed through a liver biopsy.
(b)In the days after this, the appellant was formally diagnosed with metastatic cholangiocarcinoma (Stage 4 cancer of the biliary duct) with metastases to both his liver and lungs.
(c)The appellant has undergone various procedures as a result, aimed at reducing his risk of infection, as those treating him consider treatment options for his cancer. The appellant’s cancer is terminal with a limited prognosis.
(d)Without systemic treatment (including chemotherapy and immunotherapy), his survival is likely to be measured in months.
(e)This already limited prognosis may be further reduced if there are additional medical complications.
(f)Initially the evidence indicated that even with systemic treatment — if the appellant is well enough to receive this and is responsive to it — his expected survival is 12–18 months at best. At the oral hearing of the application, the appellant tendered a letter from Dr Lee dated 18 June 2025 which provided an update on his treatment and prognosis. In short, it states that the appellant was responding to treatment. However, this did not alter the substance of the overall prognosis. Dr Lee said his positive response to the treatment might extend his life by a matter of months ‘at best’.
(g)This means that systemic treatment will be aimed towards preserving the appellant’s quality of life: it will not be curative.
(h)Systemic treatment will only be available to the appellant if he remains free of infection, maintains preserved organ function, has reasonable functional status, and is accepting of the risks of systemic treatment.
17According to the medical evidence, it is difficult to ascertain the exact onset of the malignancies identified, as many patients with cancer do not exhibit apparent symptoms until a specific complication occurs. That said, Dr Lee provided an opinion to the effect that the malignancy could have been there for ‘months or years’.
18The respondent concedes that the appellant’s diagnosis is an exceptional case justifying the admission of the fresh evidence and that the sentencing discretion should be reopened.
The principles
The principles governing the admission of fresh evidence on an appeal against sentence were set by Redlich JA in R v Nguyen:
The following principles apply to the admission of such evidence:
(i)the new evidence must relate to events which have occurred since the sentence was imposed;
(ii)the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice. [15]
[15]R v Nguyen [2006] VSCA 184, [36] (Redlich JA, Maxwell P and Neave J agreeing) (citations omitted).
Very recently, this Court in Ale v The King (‘Ale’) reiterated the relevant principles in the context of an appellant’s health and experience of custody:
The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it. Unsurprisingly in light of the above principles, the power to admit fresh evidence in an appeal against sentence is exercised in limited circumstances. The cases show that, where the power is exercised, it is frequently where the burden of custody is shown to be heavier than anticipated at the time sentence was passed on account of fresh evidence concerning an applicant’s health. Such evidence has been relied on to show that a medical issue known to the sentencing judge has turned out to be more significant than anticipated in the evidence at the time of sentence, or a medical issue was present at the time of sentence but was not then diagnosed. In both situations, fresh evidence revealed the actual significance an applicant’s medical condition for the applicant’s custodial experience. [16]
[16]Ale v The King [2025] VSCA 92, [119] (Niall CJ and Kenny JA) (citations omitted, emphasis added) (‘Ale’).
These principles recognise that it is not the function of the Court of Appeal to exercise a continuing supervisory role over the effects of imprisonment, nor is it equipped to fulfill such a role.[17]
The parties’ arguments
[17]Ibid [121].
It is apparent from both the written cases and the oral argument that it is common ground between the parties that the medical material constituted fresh evidence, that the sentencing discretion should be reopened, and that the appellant should be resentenced by this Court.
The controversy essentially related to how the appellant should be re-sentenced.
The appellant’s submission was framed by the Commonwealth sentencing options under the Crimes Act 1914 (Cth). The appellant points out that:
(a)If the sentence is greater than 3 years’ imprisonment then a minimum term can only be fixed by way of a non-parole period.[18]
(b)If the sentence imposed is 3 years’ imprisonment or less, the Court can direct that the appellant be released on recognizance at the end of a pre-release period under a recognizance release order (‘RRO’).[19]
[18]Crimes Act 1914 (Cth) s 19AB(1).
[19]Ibid s 19AC(1).
The appellant contended that all relevant sentencing considerations in this case could be appropriately reflected through the imposition of a term of imprisonment of 3 years’ or less. The Court would then be empowered to fix a pre-release period, and direct that the appellant be released on recognizance at the end of that pre-release period. The appellant says that by taking the RRO option, ‘the Court would then control’ the appellant’s release.
By contrast, the appellant points out that if this Court confirms the head sentence of 6 years and 6 months’ imprisonment, but reduces the non-parole period, the appellant’s release date would be subject to the decision of the Commonwealth parole authorities. This would not provide the appellant with certainty as to his release.
The appellant accepts that the approach taken by this Court in cases of this kind — where the fresh evidence shows the sentenced prisoner to be in the terminal phase of cancer — has been to retain the head sentence but reduce the non-parole period to a level that would enable the offender to immediately apply for release on parole.[20]
[20]In support of this practice, the respondent referred to Price (a pseudonym) v The Queen [2018] VSCA 54 (‘Price’); Cavanagh v the Queen [2016] VSCA 305 (‘Cavanagh’); Ridge v The Queen [2013] VSCA 203 (‘Ridge’); Cardona v the Queen [2011] VSCA 58 (‘Cardona’).
However, he points out that those cases all involved the imposition of state sentences under the Sentencing Act 1991, where there was no sentencing option available equivalent to a RRO (which would allow the Court to fix the certain release date following service of a minimum period of incarceration).
The respondent’s counsel submitted that a RRO was not an appropriate disposition in this case, even making full allowance for the fresh evidence, and the consequential exercise of mercy.
That is because a sentence of 3 years or less would simply not reflect the ‘severity appropriate in all the circumstances of the offence’.[21]
[21]Crimes Act 1914 (Cth) s 16A(1).
The respondent accepts that the fresh evidence evokes compassion and warrants mercy. The appellant’s terminal condition, the respondent says, can be fully reflected in a reduction of the non-parole period, rather than a reduction of the head sentence.
The respondent says that the head sentence imposed by the learned sentencing judge appropriately reflected the seriousness of the appellant’s offending, its objective gravity, and the need for general deterrence (even if moderated) and denunciation. The respondent submits that there is no need to modify the head sentence in order to avoid a miscarriage of justice. In short, the respondent submits that we should adopt the approach taken by this Court in other similar cases.[22]
Analysis
[22]Citing Price [2018] VSCA 54, Cavanagh [2016] VSCA 305; Cardona [2011] VSCA 58; Ridge [2013] VSCA 203.
Self-evidently the appellant’s cancer diagnosis and reduced life expectancy were not referred to on the plea. The malignancy was undiagnosed at that time.
The respondent accepted that the malignancy was likely present (though unidentified) at the time of the appellant’s sentence. We think this concession was properly made in the light of the following:
•Dr Lee’s opinion to the effect that the malignancy could have been there for ‘months or years’.
•The fact that by the time of the appellant’s diagnosis — just five weeks after sentence — his cancer of the biliary duct was in stage 4 with metastases to the liver and lungs.
This case falls into that class of case referred to in Ale, where the fresh evidence reveals that ‘a medical issue was present at the time of sentence but was not then diagnosed’.[23]
[23]Ale [2025] VSCA 92, [119] (Niall CJ and Kenny JA) (citations omitted).
The difficulties of incarceration loomed large in the sentencing judge’s assessment of sentence. The judge found (at the time of sentence):
(a)The appellant’s wife and son continued to live in Spain. Since his arrest the appellant had monthly contact with his son by audiovisual link.[24]
(b)The appellant had been isolated in custody due to language difficulties.[25]
(c)His time in custody was more onerous as a result of his physical health conditions (including rheumatic fever and diabetes).[26]
(d)The appellant’s medical care has been adversely impacted by language difficulties.[27]
(e)The appellant’s recent heart attack and bypass surgery contributed to his nervousness about his health in prison.[28]
(f)The appellant would serve his time in custody in a state of uncertainty as to where and when he would be deported.[29]
[24]Reasons, [16].
[25]Ibid [20].
[26]Ibid [51].
[27]Ibid [52].
[28]Ibid [34].
[29]Ibid [57].
However, the level of hardship presented by the appellant’s terminal cholangiocarcinoma could not have been anticipated.
The authorities have accepted that fresh evidence of this kind — where the prisoner is confronted by the terminal phase of cancer — can bear upon the sentence.[30] They add to the burden that imprisonment will have on the appellant, by reason of his ill-health. Specific deterrence becomes irrelevant, and the appellant becomes entitled to some leniency or mercy.[31]
[30]See eg Price [2018] VSCA 54; Cardona [2011] VSCA 58; Ridge [2013] VSCA 203; Cavanagh [2016] VSCA 305.
[31]Price [2018] VSCA 54, [10] (McCleish JA, Weinberg JA and Tate JA agreeing at [16], [17]) citing R v Williams (Supreme Court of Victoria, Court of Appeal, Charles JA, Crockett AJA and Southwell AJA, 18 September 1995).
In our view, in this case the fresh evidence throws significant new light on the pre-existing facts such as to reopen the sentencing discretion. The respondent accepts as much. The fresh evidence should be received, and the sentencing discretion is reopened.
The appellant’s life expectancy without treatment is likely to be measured in months; his life expectancy with treatment is likely to be 12–24 months at best. The appellant’s earliest release date is 17 December 2027. As at the date of the hearing of this matter, there remained some 30 months to be served under his non-parole period. This will exceed his life expectancy.
The appellant’s malignancy will make his imprisonment significantly more burdensome. The level of hardship presented by the malignancy could not have been anticipated at the time of sentence.
Specific deterrence and community protection from the appellant also now play effectively no role.[32]
[32]No significant weight was given to specific deterrence by the sentencing judge. By reason of the appellant’s family support and prosocial attitudes, the sentencing judge assessed the appellant’s rehabilitative prospects as ‘very good’: Reasons, [49].
General deterrence continues to apply, although considerations of compassion mean that the appellant should no longer be viewed as a suitable medium for the full measure of deterrence.
Mercy can justifiably be extended to the appellant.
However, we reject the appellant’s submission that it is open to this Court to impose a sentence of 3 years’ or less (in lieu of the head sentence of 6 years and 6 months’).
A sentence of that order not would not reflect the ‘severity appropriate in all the circumstances of the offence’.[33]
[33]Crimes Act 1914 (Cth) s 16A(1).
More specifically, it would fail to give adequate effect to all the factors in the case including denunciation and general deterrence,[34] the nature and circumstances of the offence[35] or the need for adequate punishment.[36]
[34]Ibid s 16A(2)(ja).
[35]Ibid s 16A(2)(a).
[36]Ibid s 16A(2)(k).
The head sentence imposed by the sentencing judge (6 years and 6 months’ imprisonment) appropriately reflected these factors and the seriousness of the appellant’s offending. As the sentencing judge said, by virtue of its maximum penalty of life imprisonment, this offence was a ‘most grave’ one. The quantity of cocaine (2.68 kg) represented 1.3 times the commercial threshold. Even though the appellant was a courier, merely following instructions, his role was — as the judge recognised[37] — essential for the importation. If anything, a term of 6 years and 6 months’ imprisonment was lenient. In our view, the interests of justice do not justify its reduction.
[37]Reasons, [40].
The appellant’s submission that this Court should impose a sentence of an order which would allow for a RRO has two vices.
First, it would be wrong in law to impose an inadequate sentence simply to control the immediate release of the appellant. As the High Court has said, it is the
duty of either the sentencing judge or a court of criminal appeal to impose a sentence which appears to the court, acting solely in the public interest, to be just in all of the circumstances. A manifestly inadequate sentence is a failure of the due administration of criminal justice.[38]
[38]DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 449 [66] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41.
Second, the argument overlooks that the power of the sentencing court or a court of appeal in resentencing is spent once sentence is passed. Remitting a sentence and release on parole are powers which properly reside with the executive.[39] For this Court to impose an inappropriately low sentence in order to control the appellant’s release date would effectively involve the Court exceeding its function and trespassing into the domain of the executive.
[39]R v Shrestha (1991) 173 CLR 48, 72–3 (Deane, Dawson and Toohey JJ); [1991] HCA 26.
We will adopt a similar course to that taken by this Court in a number of similar cases,[40] and vary the non-parole period so that the appellant is eligible to apply for immediate release on parole.
[40]Price [2018] VSCA 54; Cavanagh [2016] VSCA 305; Ridge [2013] VSCA 203; Cardona [2011] VSCA 58.
Whether the appellant is released on parole will be a decision for those responsible for administering the Commonwealth parole system. However, they should be made aware of this decision so that the question of parole can be considered as a matter of urgency.
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