Rosales (a pseudonym) v The Queen
[2018] VSCA 130
•18 May 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0203
| AZAAN ROSALES [1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgement has been anonymised by the use of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 May 2018 |
| DATE OF JUDGMENT: | 18 May 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 130 |
| JUDGMENT APPEALED FROM: | R v [Rosales] (Unreported, County Court of Victoria) |
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CRIMINAL LAW — Appeal — Sentence — Attempt to possess commercial quantity of border controlled drug, methamphetamine — Applicant and co-offender each sentenced to 7 years’ imprisonment with 4 year non-parole period — Parity — Applicant played greater role in offending than co-offender — Applicant provided medium level assistance to authorities — Whether parity principle infringed — Whether sentence manifestly excessive — Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G F Connelly | Giorgianni & Liang Lawyers |
| For the Respondent | Ms K Breckweg | Commonwealth Director of Public Prosecutions |
PRIEST JA
BEACH JA:
Introduction
The applicant pleaded guilty in the County Court to one charge of attempting to possess a commercial quantity of a border controlled drug, methamphetamine.[2]
[2]Criminal Code (Cth), ss 11.1 and 307.5(1). The maximum penalty is life imprisonment.
Following a plea, the applicant was sentenced to seven years’ imprisonment, and a non-parole period of four years was fixed.
The applicant seeks leave to appeal against the sentence on two grounds, the first ground asserting that the sentence imposed upon him offends the principle of parity; and the second, that the sentence is manifestly excessive, in that insufficient weight was given to his assistance to prosecuting authorities.
For the reasons that follow, we would refuse leave to appeal.
The applicant’s offending
During an investigation by the Australian Federal Police (‘AFP’) targeting the importation of border controlled drugs into Australia, the applicant came under AFP scrutiny.
In 2015, Australian Border Force (‘ABF’) officers examined a consignment of electrical goods sent from a south east Asian country. Concealed in electrical goods within the consignment, ABF officers found a number of packages containing almost six kilograms of methamphetamine. The drugs were removed and an inert substance was substituted.
Subsequent analysis revealed the purity of the drug to be 80 per cent, so that the total amount of pure methamphetamine was a little more than 200 grams short of five kilograms. The potential wholesale value of this quantity of methamphetamine is between $1,180,000 and $1,298,000, and the potential street value is between $4,482,825 and $5,977,100.
At relevant times, the applicant communicated with the freight forwarder to obtain clearance of the consignment through customs, coordinated the collection and delivery of the consignment, and then took possession of the consignment.
A co-offender (and another male) took possession of those packages thought to contain methamphetamine. The applicant gave the co-offender instructions to take the packages to a particular location and to check them to see whether they contained anything. Having examined the text of intercepted telephone calls passing between the applicant and the co-offender, the sentencing judge said it was clear to him that the applicant was ‘in a position of some authority’ over him. The applicant, the judge concluded, had a ‘greater role’ than the co-offender.
About six months before the applicant was sentenced, another judge of the County Court sentenced the co-offender — who had pleaded guilty to the same offence — to seven years’ imprisonment, with a non-parole period of four years. We have had regard to the material relevant to sentence that was put before the judge who sentenced the co-offender. The very lenient sentence imposed upon the co-offender undoubtedly reflects the particular circumstances of his case.
The applicant’s personal circumstances
With respect to his personal circumstances, the applicant is aged 36 years and has no prior convictions. Born in western Africa, the applicant witnessed his father’s murder when in his late teens. He came to Australia on a student visa when in his early 20s, and completed a couple of TAFE courses. While performing unskilled work, the applicant was introduced to ‘ice’ (methamphetamine) and began using the drug daily. Another man from west Africa that the applicant met offered him a few thousand dollars to help with a shipment. The applicant told a psychologist that he accepted the offer in order to pay rent and to send money back home. In a report tendered on the plea, the psychologist expressed the opinion that when the applicant committed the offence, he was experiencing post-trauma symptoms from witnessing his father’s murder, and financial stress due to difficulty finding employment. He had commenced using ice in order to self-medicate. The psychologist considered that ‘in the light of his circumstances and the lack of judgment associated with his low mood state, he was most likely an easy target for whoever recruited him’.
The plea and sentence
Although he gave a ‘no comment’ interview to the AFP, the applicant pleaded guilty at the earliest opportunity. In the course of the plea, a Letter of Assistance prepared by an AFP officer was received by the sentencing judge. It informed the judge that, following his arrest and whilst he was remanded, the applicant expressed interest in providing information to the AFP in relation to the offending with which he was charged. In the result, the applicant provided general information to AFP and Victoria Police investigators with respect to activities of an organised crime gang, and also a specific person linked to the gang. The applicant was assessed as being ‘honest and forthcoming’, demonstrating ‘a genuine desire to assist the AFP’. It was acknowledged that, if his assistance became known, the applicant’s safety may be compromised. The value of his assistance was assessed as ‘medium’.
In sentencing the applicant, the judge, as we have said, found that the applicant played a greater role than the co-offender. He accepted the prosecution’s submission that the applicant’s role was to organise the collection of the consignment, and that the intercepted telephone calls and messages showed that the applicant was directing the actions of the co-offender. The applicant, the judge concluded, was a ‘higher link in the chain’ of offending than the co-offender, but the judge considered himself unable to further quantify the difference in their roles.
The judge found that the applicant’s plea should receive the ‘fullest discount’, and observed that the applicant’s inevitable deportation meant that imprisonment would weigh heavily on him. The applicant, the judge noted, had already suffered special hardship in prison from 23 hour lock downs imposed as a result of prison riots. The judge ‘cautiously’ accepted that the applicant’s prospects of rehabilitation were good.
Ultimately, the judge said that, although the applicant’s greater role would have otherwise resulted in a longer sentence than that imposed on the co-offender, the ‘other sentencing submissions’ — tacitly including the Letter of Assistance — led him to the view that the applicant should instead receive the same sentence.
Applicant’s submissions
In contending that the sentence imposed on the applicant is manifestly excessive, counsel submitted in writing[3] that the sentencing judge identified only two factors that significantly distinguished the applicant from his co-offender: first, the applicant’s greater role in the offending; and, secondly, the applicant’s co-operation with prosecuting authorities as set out in the Letter of Assistance. It was contended that, in order to impose the same sentence on the applicant as that which was imposed on the co-offender, the sentencing judge must have reasoned that the two factors ‘were each of equal, offsetting weight’. Such reasoning, counsel submitted, is wrong, in that the applicant’s co-operation with prosecuting authorities was a mitigating factor that significantly outweighed the aggravating effect of the applicant’s greater role relative to his co-offender.
[3]Counsel who prepared the written case was not counsel who appeared in this Court.
The applicant’s co-operation, counsel argued, ought to have weighed heavily in the applicant’s favour. Section 16A(2)(h) of the Crimes Act 1914 (Cth) required the sentencing judge to take into account that the applicant had ‘co-operated with law enforcement agencies in the investigation of the offence [and] of other offences’. It was submitted that the prosecutor did not dispute the submission by the applicant’s counsel that the applicant had told the prosecuting authorities everything he knew about the syndicate that had recruited him. The fact that the applicant had provided as much information as he could, so it was argued, ought to have weighed heavily in his favour, irrespective of the ultimate value of that information.
Counsel for the applicant further submitted that the fact that the applicant had played a greater role than his co-offender ‘did not of itself justify any significant difference in sentence’. The sentencing judge considered that he could not quantify the relative importance of the roles of the applicant and the co-offender in the overall drug importation operation. Further, the extent of any difference was obscured by the fact that the co-offender admitted to the authorities that he was the primary point of contact with the owner of the drugs. In these circumstances, counsel argued, it was not open to the sentencing judge to be satisfied that the difference in roles between the applicant and the co-offender was great enough to justify a significant difference in sentence.
The respondent’s submissions
The respondent submitted that the sentencing judge had ‘clear regard to the importance of parity’. It was open to the judge to conclude, on the evidence before him, that the applicant ‘played a far greater and more prominent role’ in the offending than the co-offender. Even though he had played ‘a far greater role’ than the co-offender, it was open to the sentencing judge to reduce the applicant’s sentence on the basis that he was entitled to a discount pursuant to s 16A(2)(h) of the Crimes Act 1914 (Cth). The greater role played by the applicant was ‘tempered’ by his ‘medium’ level assistance to authorities. Further, the respondent submitted that there was ‘nothing remarkable’ in the personal circumstances of the applicant to justify the imposition of a sentence lower than that imposed on the co-offender. Both had pleaded guilty; had no prior convictions; had good prospects of rehabilitation; and faced deportation. In light of these considerations, it was open to the judge not to differentiate between the sentences imposed on the applicant and the co-offender.
Analysis
It is important not to lose sight of the fact that the applicant’s offence carries a maximum penalty of life imprisonment, or that the applicant attempted to possess very substantial quantities of methamphetamine valued at millions of dollars (whether the value be assessed at wholesale or street level).
Several propositions (among others) which are of particular relevance to the present application may be drawn from the authorities.[4] They include:
[4]See R v Nguyen (2010) 205 A Crim R 106, 126–8 [70]–[72] (Johnson J). See also Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673, 681–3 [33]–[34] (Maxwell P); Hoang v The Queen [2018] VSCA 86, [34] (Priest and McLeish JJA).
· an offence of attempting to possess imported drugs is not necessarily in a less serious category than one of importing the drugs;
· the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation or to possess the drugs;
· importation and possession offences now contained in the Criminal Code (Cth) provide for a structured sentencing regime by reference to the quantity of drug imported or possessed; and although a distinction is drawn between different drugs in fixing commercial and marketable quantities, no distinction otherwise is made between different border controlled drugs so far as maximum penalties are concerned;
· although the weight of the drug imported or attempted to be possessed is not the principal factor to be considered when fixing sentence, the size of the importation, or the quantity of drugs attempted to be possessed, is a relevant factor;
· any sentence imposed for drug importation, or for attempting to possess border controlled drugs, must signal to would-be drug offenders that the potential rewards to be gained from such activities are neutralised by the risk of severe punishment;
· involvement at any level in a drug importation, or an offence of attempting to possess border controlled drugs, must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served; and
· the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence.
In Wong[5] it was observed that equal justice ‘requires identity of outcome in cases that are relevantly identical’, but ‘requires different outcomes in cases that are different in some relevant respect’. Thus, all things being equal, like offenders should be treated alike, subject to the qualification that relevant differences between their culpability, and their personal circumstances, must be appropriately accommodated. Error occurs where there is a manifest disparity between the sentences passed on co-offenders, taking into account any differences between the involvement of the offenders in the particular offence and their personal circumstances, so as to give rise to a justifiable sense of grievance on the part of the applicant and the objective bystander.[6] Where there are relevant differences between the cases of co-offenders, a sentencing judge has the task of identifying the relevant differences in justification of disparate sentences. And as was observed in Green:[7]
The parity principle will require the Court, if it is possible to do so, to avoid or minimise unjustified disparity between the sentence it imposes and the sentence which has been imposed on a co-offender. In so doing, the Court, like the primary judge, must have regard to differences between the person being re-sentenced and the co-offender which justify differences in the sentences imposed.
[5]Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ). See also Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Green v The Queen (2011) 244 CLR 462, 472–3 [28] (French CJ, Crennan and Kiefel JJ) (‘Green’) .
[6]Osman v The Queen [2015] VSCA 308, [28] (Beach and Kaye JJA).
[7]Green, 480 [45].
In this case, the judge identified the relevant differences between the applicant and his co-offender. His Honour concluded — as we think was open to him on the evidence — that the applicant’s role in the offending was greater than the co-offender’s. Against that, the applicant had provided medium level assistance to authorities. Beyond those factors, however, there was little or nothing distinguishing the applicant’s and the co-offender’s circumstances.
The applicant contends that his assistance ought to have resulted in greater disparity between the sentence imposed on him and that imposed on the co-offender. We do not agree.
The principles relating to the sentencing of offenders who render assistance to authorities were recently discussed in Cooper.[8] As was there observed, the extent of any sentencing discount given to an informer will, of course, vary from case to case.[9] In Johnston,[10] a discount of fifty per cent on sentence was thought to be justified because of the very high level of assistance provided to authorities. There is, however, no standard discount, so that the assessment of an appropriate discount cannot be approached in a mechanical or mathematical way.[11] It is the genuine co-operation of the person furnishing the assistance which is important (whether or not the information turns out in fact to have been effective), although the information must be such as could significantly assist the authorities.[12]
[8]DPP v Cooper [2018] VSCA 21, [42]–[45] (Weinberg, Priest and Beach JJA).
[9]Cottee v The Queen [2010] VSCA 285, [23].
[10]R v Johnston (2008) 186 A Crim R 345.
[11]R v Kohunui [2009] VSCA 31, [25]. And compare ss 16A(2)(h) and 16AC of the Crimes Act 1914 (Cth).
[12]R v Freeman (2001) 120 A Crim R 398, 405 [37] (Coldrey AJA).
Given the seriousness of the applicant’s offending, had it not been for the applicant’s assistance to authorities, we would have considered the sentence imposed on him to have been remarkably lenient (if not inadequate). It is his assistance to authorities which justifies the imposition of the same sentence upon him as was imposed on his co-offender (whose offending, we accept, was of a lower order than the applicant’s).
In those circumstances, we are not persuaded that the principle of parity has been infringed, or that the sentence imposed on the applicant is otherwise manifestly excessive. Moreover, we are not persuaded, in any event, that any different sentence should now be imposed.
Conclusion
The application for leave to appeal against sentence must be refused.
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