Salazar v The Queen
[2021] VSCA 125
•12 May 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0036
| FEDERICO ECHEVERRI SALAZAR | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and McLEISH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 April 2021 |
| DATE OF JUDGMENT: | 12 May 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 125 |
| JUDGMENT APPEALED FROM: | [2020] VCC 50 (Judge Carmody) |
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CRIMINAL LAW – Appeal – Sentence – Parity – Attempting to possess a commercial quantity of a border controlled drug – Sentenced to 7 years’ imprisonment – Co-offender sentenced to 5 years’ imprisonment – Whether differential between co-offenders’ sentences reasonably open – Co-offender played substantially identical role – Personal circumstances of co-offenders virtually indistinguishable – Differential not reasonably open – Roe v The Queen [2021] VSCA 54, applied – Appeal allowed – Criminal Code 1995 (Cth) ss 11, 307.5.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P Smallwood | JK Legal Barristers & Solicitors |
| For the Respondent | Ms K Breckweg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
MAXWELL P
McLEISH JA:
On 16 September 2019, the appellant pleaded guilty, before a judge of the County Court, to:
(a) one charge of attempting to possess a commercial quantity of a border controlled drug (cocaine);[1] and
(b) one charge of possessing a marketable quantity of a border controlled drug reasonably suspected of having been unlawfully imported (cocaine).[2]
[1]Criminal Code 1995 (Cth) ss 11.1 and 307.5.
[2]Ibid s 307.9.
The two charges carried maximum penalties of life imprisonment and 25 years’ imprisonment, respectively.
On 3 February 2020, the judge sentenced the appellant to a total effective term of 7 years and 3 months’ imprisonment, with a non-parole period of 5 years and 6 months (representing approximately 76 per cent of the total effective sentence).[3] On the first charge, attempting to possess a commercial quantity of a border controlled drug, the appellant was sentenced to 7 years’ imprisonment.
[3]DPP v Caro Munoz [2020] VCC 50 (‘Sentencing Remarks’).
On the same day, the judge sentenced several of the appellant’s co-offenders, including Jacopo Palmisano (who pleaded guilty at the same time as the appellant). Palmisano was sentenced to a total effective term of 5 years and 6 months’ imprisonment, with a non-parole period of 3 years and 9 months (representing approximately 68 per cent of the total effective sentence). Relevantly, on the charge of attempting to possess a commercial quantity of a border controlled drug, Palmisano was sentenced to 5 years’ imprisonment.
The appellant now appeals against his sentence. He was given leave to appeal on a single ground: that the judge infringed the parity principle.[4] The parity principle was infringed, it is said, because neither the differential of two years between the appellant’s and Palmisano’s sentences for the common ‘attempting to possess’ charge, nor the differential of one year and nine months between their respective non-parole periods, was reasonably open.
[4]Salazar v The Queen [2020] VSCA 297 (‘Leave Reasons’).
For the reasons that follow, the appeal will be allowed.
Circumstances of offending
The appellant is a Colombian citizen who had come to Australia in April 2017 on a student visa. At the time of the offending, he was 27 years’ old. In addition to undertaking studies in marketing, he worked as a food delivery driver and cleaner.
The background facts to the offending are set out in the reasons in respect of Palmisano’s appeal, and need not be repeated at length.[5] The offending relates to the arrival into Australia of two consignments of cocaine: a consignment containing 5.766 kilograms of pure cocaine shipped from Santiago, Chile (‘the Chilean consignment’); and a consignment containing 4.072 kilograms of pure cocaine shipped from Panama City (‘the Panamanian consignment’). Together, the two consignments were roughly five times the commercial quantity of cocaine. The appellant’s involvement with the two consignments forms the basis of the first charge.
[5]See Palmisano v The Queen [2021] VSCA 124.
In addition to Palmisano, there were three other co-offenders: David Gutierrez Carmona, Javier Caro Munoz, and Fernando Tovar Carmona (‘Tovar Carmona’). Tovar Carmona was the principal player in the importations. Neither the appellant nor Palmisano had any involvement in arranging the importation of the consignments.
The appellant’s role was, like Palmisano’s, primarily as a courier: both were tasked with taking delivery of the consignments at a house in Parkville and transporting them to an apartment in South Melbourne. The appellant took delivery of the Chilean consignment and transported it to the South Melbourne apartment. Palmisano took delivery of the Panamanian consignment and transported it to the apartment some days later.
The appellant became involved with the Panamanian consignment when it was brought to the apartment. That consignment had been intercepted by authorities. The cocaine had been substituted, surveillance devices inserted, and a controlled delivery carried out. The appellant was present at the South Melbourne apartment when the Panamanian consignment was delivered by Palmisano. A listening device recorded the appellant being informed that the consignment contained cocaine, and offering advice as to how to extract the cocaine from the core cooler in which it was concealed. The appellant was also involved in attempts to open the Chilean consignment to extract the cocaine from the torque brake pulley in which it was concealed.
At the time of his arrest, police also found in his wardrobe at the South Melbourne apartment a bag containing 15.5 grams of cocaine. This formed the basis of the second charge.
Sentencing remarks
After setting out general sentencing principles applicable to commercial–scale drug importation and possession offences,[6] the judge turned to the individual co-offenders.
[6]Nguyen v The Queen (2011) 31 VR 673, 681–3 [34] (Maxwell P), paraphrasing R v Nguyen (2010) 205 A Crim R 106, 126–8 (Johnson J, Macfarlan JA agreeing at 109 [1], RA Hulme J agreeing at 137 [137]); [2010] NSWCCA 238.
The judge accepted that the appellant’s role in the offending was subordinate to that of Tovar Carmona. In relation to the Chilean consignment, the appellant took delivery of the consignment, transported it to the South Melbourne apartment, and was involved in attempts to access the cocaine concealed within it. In relation to the Panamian consignment, he did not take delivery of or transport the consignment, but offered advice on opening the consignment so as to extract the cocaine once it arrived at the apartment. The judge described the appellant’s involvement with the Panamanian consignment as ‘opportunistic or happenstance’.[7] Conversely, Palmisano had some involvement with the Chilean consignment, having awaited its delivery with the appellant at the house in Parkville, but leaving before it arrived.
[7]Sentencing Remarks [73].
The appellant, the judge observed, was a recreational drug user. He had been a regular cannabis user since his late teens and, since arriving in Melbourne, had used MDMA, LSD, ketamine and cocaine. The judge inferred that financial gain was the appellant’s motive for offending. Palmisano was also a drug user, whose motive was to extinguish a debt he owed to Tovar Carmona.
The judge recognised that the appellant had offered a guilty plea ‘at the earliest possible time’, maintained a consistent approach of ‘acceptance’ of the offending from the time of his arrest, and exhibited embarrassment, shame and remorse for his offending.
The judge characterised the appellant’s prospects of rehabilitation as good, referring to his lack of prior convictions, the support of his father in Colombia, and his productive use of his time in custody. The judge described the appellant as a ‘model’ and ‘exemplary’ prisoner who held a responsible job in prison and had undertaken many courses there. The judge recorded that the appellant’s time in custody at Port Phillip prison has been more onerous than for his co-offenders on remand at different facilities, due to lockdowns at Port Phillip Prison which restricted time outside of the cell to a short period each day.
The judge also took account of the appellant’s prospects of deportation, and the significant delay between his arrest and sentence. Nonetheless, the judge considered that general deterrence required the imposition of a significant term of imprisonment and non-parole period.[8]
[8]Ibid [16].
The judge made no specific reference to Palmisano’s sentence in the course of sentencing the appellant, or vice versa, or to considerations of parity more generally.
Consideration
The applicable principles regarding parity in sentences of co-offenders were not in contest. In Roe v The Queen, we said:[9]
Appellate intervention in the case of disparity between the subject sentence and that imposed on a co-offender is a reflection of the notion of equal justice. Disparity of this kind may justify intervention even though the sentence, taken by itself, and having regard to current sentencing practice more generally, is not manifestly excessive. The focus of the ground is on the different treatment of co-offenders in like circumstances, or the similar treatment of co-offenders in unlike circumstances.[10]
[9][2021] VSCA 54.
[10]Ibid [36] (citations omitted).
The disparity ground is approached by asking whether it was reasonably open to the sentencing judge to arrive at a relevant sentencing differential. That enquiry is approached with restraint, bearing in mind that the matter is one for discretionary judgment as part of the overall sentencing process. For a sentencing differential to be reasonably open, some justification for the relevant differential must be found in the judge’s reasons. It is desirable that such justification be expressly articulated, but it is enough if it may be located in the judge’s findings on pertinent matters.
At the hearing of this appeal, it was common ground that the appellant’s sentence on the first charge infringed the parity principle. He received a sentence two years longer than Palmisano for the same charge even though the two men played ‘essentially the same role’ in the offending and their background circumstances were substantially the same.[11] As counsel for the respondent rightly conceded, the sentencing remarks contained ‘insufficient detail’ to justify the differential. The sentencing differential was not reasonably open.
[11]Leave Reasons [27].
The respondent submitted that the appellant’s more serious overall drug related offending — in particular, his possession of a marketable quantity of cocaine (the subject of his second charge) — might provide some explanation for the differential in the non-parole periods, both numerically and as a proportion of the total effective sentence. Ultimately, however, it was conceded — again, quite properly — that the factors which informed the non-parole period were virtually indistinguishable as between the appellant and Palmisano, other than a slight age difference.
Conclusion
The appeal must be upheld on two bases. The first is that, in circumstances where the two co-offenders played substantially the same role and their relevant personal circumstances and antecedents are virtually indistinguishable, the sentencing differential of two years was not reasonably open. The second is that, in the same circumstances, the differential in the proportions of the total effective sentence ordered to be served before each offender becomes eligible for parole was also not reasonably open.
We will therefore set aside the sentence imposed on the appellant on charge one and impose a sentence, together with a non-parole period reflective of the substituted total effective sentence, that treats the appellant and Palmisano alike. For the latter purpose we rely on the sentence imposed on Palmisano after his own appeal, being a total effective sentence of 5 years and 1 month with a non-parole period of 3 years and 5 months.
This means that the appellant will be sentenced to 5 years’ imprisonment on charge one, making a total effective sentence of 5 years and 3 months. The non-parole period will be 3 years and 6 months.[12] The fact that his sentence is slightly longer than that of Palmisano reflects the relative seriousness of the other offending to which each man pleaded guilty.
[12]In terms of Commonwealth sentencing principles, the sentence on the second charge will be ordered to commence on 3 August 2024, being 6 months before the expiry of the sentence of 5 years on the first charge. That sentence commenced on 3 February 2020. (There is no difficulty with one Commonwealth sentence commencing after the end of the non-parole period: see R v DS (2005) 153 A Crim R 194, 199–201 [14]–[16] (Chernov JA, Batt and Vincent JJA agreeing at 203 [25], [26]); [2005] VSCA 99.)
Pursuant to s 6AAA of the Sentencing Act 1991 we will declare that, but for the plea of guilty, the Court would have sentenced the appellant to a total effective sentence of 6 years and 10 months’ imprisonment and would have fixed a non-parole period of 4 years and 8 months.
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