Salazar v The Queen
[2020] VSCA 297
•23 November 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0036
| FEDERICO ECHEVERRI SALAZAR | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 23 November 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 297 |
| JUDGMENT APPEALED FROM: | [2020] VCC 50 (Judge Carmody) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 278 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Leave to appeal – Sentence – Attempted possession of commercial quantity of border controlled drug – Possession of marketable quantity of border controlled drug – Total effective sentence of 7 years and 3 months’ imprisonment with non-parole period of 5 years and 6 months – Co-offender received total effective sentence of 5 years and 6 months’ imprisonment with non-parole period of 3 years and 9 months – Whether unjustifiable disparity in sentence between applicant and co-offender – Leave to appeal granted.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
WEINBERG JA:
On 16 September 2019, a day after his trial was listed to commence, the applicant, Federico Echeverri Salazar, pleaded guilty in the County Court at Melbourne to one charge of attempting to possess a commercial quantity of a border controlled drug (cocaine), and one charge of possessing a marketable quantity of a border controlled drug reasonably suspected of having been unlawfully imported (cocaine). A co-offender, Jacopo Palmisano, also entered a plea of guilty on that day.
A plea hearing was conducted on 21 November 2019. On 3 February 2020, the judge sentenced the applicant as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Attempt to possess a commercial quantity of a border controlled drug (cocaine) [ss 11.1(1) and 307.5(1) — Criminal Code (Cth)] Life 7 years Base
Commenced 3 February 2020
2 Possess a marketable quantity of a border controlled drug (cocaine) reasonably suspected of having been unlawfully imported [s 307.9(1) — Criminal Code (Cth)] 25 years 9 months 3 months (on charge 1)
To commence 3 August 2026
Total effective sentence: 7 years and 3 months’ imprisonment Non-parole period: 5 years and 6 months Pre-sentence detention declared: 697 days Section 6AAA statement: 9 years’ imprisonment with a non-parole period of 7 years
By notice dated 28 February 2020, the applicant seeks leave to appeal against his sentence on the following ground:
The learned sentencing judge erred in his application of the parity/disparity principle in relation to the sentence and non-parole period imposed for Charge 1:
(a)which was not reasonably open with the sentence imposed on the co- offender Jacopo Palmisano for Charge 1; and
(b) which engendered into the applicant a justifiable sense of grievance.
Particulars
The co-offender, Jacopo Palmisano, was charged with:
(i)Charge 1 — Attempting to possess a commercial quantity of an unlawfully imported border controlled drug, contrary to s 11.1 and s 307.5(1) of the Criminal Code (Cth) (Code);
(ii)Charge 2 — Dealing with the proceeds of crime worth $1,000 or more, contrary to s 400.7(1) of the Code; and
(iii)Charge 3 — Possess a controlled drug, contrary to s 308.1(1) of the Code.
Jacopo Palmisano’s criminal conduct with respect to Charge 1 and his antecedents are virtually identical to the criminal conduct and antecedents of the applicant.
The applicant was sentenced to a total of 7 years and 3 months’ imprisonment with a non-parole period of 5 years and 6 months’ imprisonment. On Charge 1 the applicant was sentenced to 7 years’ imprisonment.
Jacopo Palmisano was sentenced to 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 9 months. On Charge 1 Jacopo Palmisano was sentenced to 5 years’ imprisonment.
On 3 February 2020, the same day that the applicant was sentenced, Palmisano was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Attempt to possess a commercial quantity of a border controlled drug (cocaine) [ss 11.1(1) and 307.5(1) — Criminal Code (Cth)] Life 5 years Base
Commenced 3 February 2020
2 Dealing in proceeds of crime worth $1,000 or more [s 400.7(1) — Criminal Code (Cth)] 5 years 18 months 6 months (on charge 1)
To commence 3 February 2024
3 Possess a controlled drug (MDMA, ketamine, and cocaine) [s 308.1(1) — Criminal Code (Cth)] 2 years 2 months Nil
Commenced 3 February 2020
Total effective sentence: 5 years and 6 months’ imprisonment Non-parole period: 3 years and 9 months Pre-sentence detention declared: 697 days Section 6AAA statement: 7 years and 3 months’ imprisonment with a non-parole period of 5 years
For reasons that follow, I would grant leave to appeal on the proposed ground.
Circumstances surrounding the commission of the offences
The background facts to this offending are set out in my reasons for refusing leave to appeal against the sentence of Tovar Carmona, a co-offender who was the ‘pivotal’ and, indeed, principal player in the importations.[1] I need not repeat them here. I will briefly outline, however, the charges to which the applicant pleaded guilty:
·charge 1 pertained to the attempted possession of the cocaine contained in the Chilean and Panamanian consignments; and
·charge 2 pertained to 15.15 grams of cocaine that was located in the applicant’s possession when he was arrested.
[1]See Carmona v The Queen [2020] VSCA 295, [6]–[18].
Sentencing remarks
Turning first to the applicant’s personal circumstances, the judge observed that he was aged 27 at the time of the offending. Like a number of the other co-accused, he had come to Australia from Colombia on a student visa. During his teenage years, he had played tennis competitively. He had represented Colombia in competitions in the United States. At the end of his secondary schooling, he had received a tennis scholarship to attend a university in Virginia.
The applicant had no prior criminal history. However, he had regularly used cannabis from the age of 17. Since arriving in Melbourne, he had also began to use cocaine, MDMA, LSD, and ketamine.
The judge noted that the applicant’s time in custody had been spent productively. He had obtained a job in the education centre of Port Phillip Prison. His Honour described him as having been an ‘exemplary prisoner’.[2] However, his time on remand had been more onerous than that of his co-accused. That was because of lockdowns imposed at that prison, which resulted in the applicant having only been allowed out of his cell for five hours each day.
[2]DPP v Munoz [2020] VCC 50, [68].
As to the plea of guilty, the judge observed that it had ‘been made at the earliest time.’[3] This was because in July 2018, he had offered to plead guilty to the attempted possession charge, and it seems that at that stage, that offer had not been accepted. The judge noted that this early offer would entitle the applicant to ‘the proper discount’ for his plea.[4]
[3]Ibid [76].
[4]Ibid.
In a report prepared by Mr Jeffrey Cummins, a clinical psychologist, the applicant was described as having expressed great embarrassment, shame, and remorse for his offending. The judge found that this was supported by a letter the applicant had written to the Court. With regard to his prospects of rehabilitation, his Honour found them to be ‘good’.[5] Further, he observed that the applicant had the support of his girlfriend, and of his father, in Colombia. He maintained contact with them both by phone.
[5]Ibid [78].
With regard to the applicant’s role in the offending, the judge said:
It is not alleged that you were in any way involved in arranging the importation of the Brake Pulley Consignment or the Core Cooler Consignment.
The Crown allege and you accept by your plea of guilty that in respect of the Brake Pulley Consignment, you and Jacopo Palmisano were to take delivery of that consignment at Parkville and return it safely to your apartment in South Melbourne. You were also involved in the attempts to open the Brake Pulley Consignment in order to extract the cocaine from within it.
In relation to the Core Cooler Consignment, it is accepted by the Crown that your involvement is limited to events after the consignment was delivered to the apartment on 8 March 2018. The listening device contained in that consignment provided evidence of you being informed it contained cocaine and that you assisted and proffered advise about how to open it. This was an opportunistic or happenstance involvement by you in the second consignment, known as the Core Cooler Consignment.
I find your role in the offending was subordinate to Tovar Carmona but identical to completing the delivery of the importation of the Brake Pulley Consignment. You also partook in the attempts to open the Brake Pulley and the Core Cooler Consignment in your apartment.
There is no direct evidence of what benefit or motivation has driven you to be involved in this offending. The inescapable inference is that you have been involved in this offending for financial gain.
…
I accept your role in this offending is not as significant as Tovar Carmona. Nevertheless, you were involved in an integral way in the Brake Pulley Consignment delivery to Mr Tovar Carmona. Your role in the Core Cooler Consignment is less significant and peripheral to Mr Tovar Carmona.[6]
[6]Ibid [71]–[75], [81] (emphasis added).
Sentencing remarks — Palmisano
As regards Palmisano’s role, the judge accepted:
The Crown does not allege you had any involvement in arranging the importation of the Brake Pulley or the Core Cooler Consignments into Australia. The accepted position by the Crown and yourself by your plea of guilty is that you were to take delivery or assist in taking delivery of both consignments at Parkville and return them to the apartment in South Melbourne.[7]
[7]Ibid [102] (emphasis added).
Applicant’s submissions
The applicant’s overall submission was that his and Palmisano’s involvement in the offending, and their personal circumstances, were so similar as to render the two year difference in their sentences on the attempted possession charge manifestly disparate.[8]
[8]It will be recalled that the applicant was sentenced to 7 years’ imprisonment on the charge of attempted possession, while Palmisano was sentenced to 5 years’ imprisonment on the charge of attempted possession.
In that regard, the applicant submitted that both he and Palmisano were involved in the delivery of the consignments to the South Melbourne apartment. They were both subordinate to Tovar Carmona. Further, since their arrests, they had both been model prisoners. They both had the support of their families overseas, no prior criminal history, and had expressed remorse for their offending.
More specifically, with regard to their respective roles in the offending, the applicant took issue with the fact that the judge had appeared to confine Palmisano’s role to having delivered the Panamanian consignment. His Honour appeared not to have said anything about Palmisano having attended a Bunnings Warehouse store with the applicant to purchase tools to assist Tovar Carmona in opening the brake pulley.
It was submitted, that on the face of the judge’s sentencing remarks, there appeared to be no specific consideration of the parity principles to apply between the applicant and Palmisano.
Respondent’s submissions
In her written response, counsel submitted that when one considered the circumstances of the offending, and of the matters personal to each co-offender, it had been reasonably open to the judge to differentiate between the applicant and Palmisano as he had.
As counsel had done in response to the application for leave to appeal brought by another co-offender, Javier Caro Munoz,[9] she sought to rely upon what Winneke P had said in R v Spizzeri:[10]
[A]n appellate court should be careful in concluding manifest disparity, particularly where the offenders have been sentenced by an experienced judge who has sentenced a large number of offenders engaged in the same criminal enterprise. In those circumstances, the appellate court is at risk of upsetting the symmetry of the sentencing process employed by the judge and introducing its own disparity into that process. To that extent, the court is constrained in rectifying a disparity which it perceives. Because of those constraints, its runs the risk of ‘tinkering’.[11]
[9]See generally, Munoz v The Queen [2020] VSCA 296 [27].
[10][2001] VSCA 49.
[11]Ibid [10] (Ormiston JA agreeing at [12], Callaway JA agreeing at [13]).
Counsel also directed the Court’s attention to what was said by the New South Wales Court of Criminal Appeal in R v Nguyen:[12]
[W]here an offender … is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise[.][13]
[12](2010) 205 A Crim R 106; [2010] NSWCCA 238.
[13]Ibid 128 [72] (Johnson J, Macfarlan JA agreeing at 109 [1], RA Hulme J agreeing at 137 [137]). Cited with approval by this Court in Nguyen v The Queen (2011) 31 VR 673, 681 [34]; [2011] VSCA 32 (Maxwell P); OPQ v The Queen (2012) 221 A Crim R 424, 432–3 [42]; [2012] VSCA 115 (Neave JA, Maxwell ACJ agreeing at 425 [1]); DPP (Cth) v Thomas (2016) 53 VR 546, 612–13 [192]; [2016] VSCA 237; DPP (Cth) v Masange (2017) 268 A Crim R 483, 521 [139] (Beale AJA, Maxwell P and Redlich JA agreeing at 488 [2]); and Hoang v The Queen [2018] VSCA 86, [34].
In that regard, counsel took issue with the applicant’s submission that there was little difference between his personal circumstances, and those of Palmisano. She submitted that there was a discernible difference in their respective levels of criminality. That difference justified the sentences imposed.
More specifically, counsel submitted that the applicant had a greater involvement in both consignments. This was said to be evidenced by the telephone intercepts, which showed the applicant ‘expecting and managing the collection of the [Chilean] consignment and attempting to access the contents’. Further, it was contended that the telephone intercept evidence made it clear that it was the applicant, and not Palmisano, who was closely reporting to Tovar Carmona.
With regard to the applicant’s complaint that the judge had not made any mention in his sentencing remarks that Palmisano had attended the Bunnings Warehouse store with the applicant, counsel submitted that this was a matter that was ‘vigorously contested’ on the plea. She submitted that the judge’s failure to include that aspect of the opening in his remarks demonstrated that he had not made any finding as to that issue.
As to the judge’s failure to refer specifically to the parity principles to apply between the applicant and Palmisano, counsel submitted that this did not mean that he had failed to apply those principles. In that regard, she referred to the fact that this was an experienced judge who had come to sentence all of the co-offenders at the Melbourne end of the importations. He had carefully examined the respective roles of each of the co-offenders, and would have been alive to the importance of parity as a sentencing principle.
With regard to the applicant and Palmisano’s respective personal circumstances, counsel accepted that the applicant had indicated an intention to plead guilty at an earlier stage than Palmisano. She also accepted that he had been subject to an onerous period while on remand. She noted, on the other hand, that Palmisano had experienced an upbringing with more hardship, due to a number of medical conditions that he had suffered in his youth, including scoliosis, and obesity. It had therefore been open to the judge to impose the different sentences that he had.
Conclusion
Having examined closely the prosecution opening on the plea, I have concluded that the respondent’s submissions as to why the judge had been entitled to differentiate, to the degree that he had, between the applicant and Palmisano are sufficiently contestable to warrant the grant of leave on the proposed ground.
The substantial difference between 5 years’ imprisonment for Palmisano, and 7 years’ imprisonment for the applicant, in circumstances where each played essentially the same role, raises concerns as to whether the judge has adequately given effect to parity. The fact that the applicant spoke more frequently over the phone with Tovar Carmona than did Palmisano does not, on its own, suggest that he played a significantly greater role in the enterprise, or that he occupied a higher place in the hierarchy of this organised crime. It appears that the applicant and Palmisano both worked together, with each being actively involved in moving the drugs from the Church Street address to the South Melbourne apartment.
If the applicant played a more active role, in that regard, it seems to me to be arguable that it was only marginally so.
In these circumstances, I would grant leave to the applicant to challenge his sentence on the basis of a lack of appropriate parity with that of Palmisano.
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