Ruiz v The Queen - [2013] VSCA 313

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0164

CARLOS ANGULO RUIZ
	Appellant
v
THE QUEEN
	Respondent

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JUDGES	WEINBERG and WHELAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	25 October 2013
DATE OF JUDGMENT	25 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 313
JUDGMENT APPEALED FROM	R v Ruiz (Unreported, County Court of Victoria, Judge Allen, 1 December 2009)

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CRIMINAL LAW — Appeal against sentence — Applicant pleaded guilty to conspiracy to import commercial quantity of cocaine — Sentenced to 12 years’ imprisonment with non-parole period of seven years — Willingness to co-operate with authorities — No consequence had arisen from co-operation at time of sentencing — Applicant subsequently gave evidence at trial of co-accused — Fresh evidence — Refusal to implicate third co-accused — Assistance not full and frank — Appeal allowed — Resentenced to nine years’ imprisonment with non-parole period of five years and six months.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue O’Brien George
For the Respondent	Mr S H Young	Director of Public Prosecutions (Cth)

WEINBERG JA:

I invite Whelan JA to deliver the judgment of the Court.

WHELAN JA:

On 1 December 2009, the applicant was sentenced in the County Court for the offence of conspiracy to import a commercial quantity of a border controlled drug, being cocaine. The importation began in Mexico.

The applicant pleaded guilty and was sentenced to be imprisoned for 12 years. A period of seven years was fixed as the period before which the applicant would be eligible for release on parole.

The alleged conspiracy involved the applicant, Mr Juan Ernesto Suarez Lopez, Ms Olivia Barajas Gloria and her brother, who remained in Mexico, Mr Gustavo Barajas Gloria. The cocaine to be imported had been removed by authorities in the United States en route to Australia. It weighed 49.8 kilograms and varied between 61.4 per cent and 75.3 per cent purity. There was, therefore, approximately 30 kilograms of the pure drug.

The applicant’s plea came at an early stage. Obviously the prosecution was interested in him as a potential witness in the cases against Mr Suarez Lopez and Ms Barajas Gloria. In the course of his reasons for sentence, the judge noted that:

On 21 August 2009, at the conclusion of the committal, you indicated your intention to plead guilty in this matter, and offered to provide assistance to the authorities. You were then moved from the MRC to Port Phillip Prison in early September. In October 2009 you were interviewed at length by the Australian Federal Police at Port Phillip Prison. During an interview that extended to some four hours, you provided a great deal of information by way of co-operation. You indicated to the police at the conclusion of that process that you were willing to sign a formal statement containing the matters that you had told them about during that four hour interview.

Later in the reasons for sentence, the sentencing judge set out the matters that he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ruiz v The Queen

Details

AGLC: Ruiz v The Queen [2013] VSCA 313
Case: [2013] VSCA 313
Decision Date: 25 October 2013

CaseChat Overview and Summary

Ruiz appealed against his sentence for conspiracy to import commercial quantity of cocaine. The applicant had pleaded guilty and was sentenced to 12 years’ imprisonment with a non-parole period of seven years. The court was required to determine whether the sentence was appropriate given the applicant's willingness to co-operate with the authorities, the lack of consequence from his co-operation at the time of sentencing, and his subsequent testimony at the trial of a co-accused. The applicant had testified against his co-accused but had refused to implicate a third co-accused, and his assistance was not deemed to be full and frank. The appeal was allowed, and the sentence was reduced to nine years’ imprisonment with a non-parole period of five years and six months.

The court considered the principles of sentencing in relation to co-operation with authorities and the degree of assistance provided. It found that the original sentence did not adequately reflect the applicant’s co-operation and the benefits it provided to the authorities. The court noted that while the applicant had provided some assistance, it was not as extensive as it could have been, particularly in relation to the third co-accused. The court also considered the principle of proportionality in sentencing, noting that the original sentence was excessive given the degree of co-operation provided by the applicant. The court was satisfied that the reduced sentence of nine years with a non-parole period of five years and six months was more appropriate and reflected the principles of sentencing applicable in this case.

The final orders of the court were that the appeal be allowed and the applicant be resentenced to nine years’ imprisonment with a non-parole period of five years and six months. The court noted that the reduced sentence reflected the applicant's co-operation with authorities and the benefits it provided, as well as the principles of proportionality and justice in sentencing. The court also noted that the applicant's refusal to implicate the third co-accused was a factor that mitigated against a full reduction in sentence, but did not outweigh the benefits of his co-operation with the authorities. Overall, the court found that the reduced sentence was appropriate and just in the circumstances of the case.

Orders