The Queen v Ruiz
[2020] VCC 1473
•16 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-20-00879
| THE QUEEN |
| v |
| SEBASTIAN HIDALGO RUIZ |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 September 2020 | |
DATE OF SENTENCE: | 16 September 2020 | |
CASE MAY BE CITED AS: | The Queen v Ruiz | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1473 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentencing – Plea of guilty - Trafficking a drug of dependence – Trafficking a marketable quantity of a controlled drug – Dealing with money suspected of being proceedings of crime – Foreign national.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Stevic | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms M. Carroll | Emma Turnbull Lawyers |
HIS HONOUR:
1 Sebastian Hidalgo Ruiz, you have pleaded guilty to one charge of trafficking a marketable quantity of a controlled drug and two charges of dealing with money suspected of being the proceeds of crime.
2 The maximum penalty for trafficking a controlled drug is 25 years imprisonment, or 5000 penalty units ($1,050,000), or both. The maximum penalty for dealing with money suspected of being the proceeds of crime, which is less than $100,000, as is your case, is two years imprisonment, or 120 penalty units ($25,200), or both.
Circumstances of Offending
3 In September 2017, the Australian Federal Police (‘AFP’) commenced a broad ranging operation. As part of this investigation a residence in Altona North, and its occupants, were surveilled by police.
4 On 4 October 2017, whilst under surveillance, you were observed at Borrack Square Shopping Centre in Altona North accompanied by another individual. Whilst there you attended a Commonwealth Bank branch and made two deposits totalling $3500 into two separate bank accounts which were not in your name.
5 At 1:18pm, you attended an Australian and New Zealand Bank branch and made a deposit of $1400 to a third bank account under a third name which was not your own.
6 On 10 October 2017 a search warrant was executed at the premises in Altona North where you were residing. You were not at home at the time of the search.
7 Police were able to recover illegal substances from your bedroom, which included the following items:
a. A clip seal bag containing 360 grams of cocaine (of which approximately 257 grams was pure);
b. A plastic spoon with cocaine residue;
c. A number of other empty clip seal bags, some with cocaine residue;
d.
A black bum bag containing a clip seal bag with 0.8 grams of cocaine
(0.5 grams pure);
e. A clip seal bag containing 10.8 grams of cocaine (6 grams of which was pure cocaine);
f. A container of bi-carbonate soda;
g. Electronic scales which contained traces of cocaine and cannabis;
h. ‘Deal’ bags;
i. A measuring cup;
j. A roll of aluminium foil;
k. $2410 in cash;
l.
Three deposit slips relating to the bank transactions that occurred on
4 October 2017;
m.
Two handwritten instructional notes containing the bank account details and payment amounts relating to the transactions that occurred on
4 October 2017; and
n. Torn paper containing handwritten notes relating to other payments and expenditures.
8 The combined total of pure cocaine found in your bedroom was 263.8 grams (Charge 1).
9 Between 4 October and 10 October 2017, you dealt with or possessed a total of $7310 in cash, suspected of being the proceeds of crime (Charge 2).
Second Search Warrant and Arrest
10 After the search on 10 October 2017 you did not return to your residence in Altona North after being told by an acquaintance that your freedom was at risk and you should not return.
11 On 23 February 2018, a warrant was issued in the Magistrates’ Court of Victoria for your arrest. You were not located until 19 January this year, some 23 months later, when a warrant for your arrest was successfully executed at 31 Hillside Crescent, Maribyrnong on 20 January 2020.
12 At the time of your arrest you were found to be in possession of $5000 and a number of small empty clip seal bags. The $5000 was suspected of being proceeds of crime and forms the basis of Charge 3.
13 During your interview with the Australian Federal Police the same day you stated that you did not know the owners of the bank accounts where you made deposits and that anyone could have entered and placed the drugs and related paraphernalia in your room at Altona North. You also stated that you supported yourself with cash-in-hand jobs while living in Australia.
Forensic Examination
14 The cocaine found at your address was sent to Australian Federal Police Forensics and National Measurement Institute (‘NMI’) for testing. As stated previously, in total you possessed 372 grams of cocaine, of which 263.8 grams was pure.
15 This is a marketable quantity being more than two grams, but less than two kilograms. The wholesale value, if sold at a purity of 71.4%, which was the case with the lion’s share of cocaine found in your possession, is between $76,800 and $102,400. This value increases dramatically if the cocaine is sold at a lower purity.
Personal Circumstances
16 Your personal circumstances were outlined in your counsel’s ‘Defence Plea Submissions’ dated 28 August 2020. This was Exhibit 1 on your plea and forms part of these reasons.
17 To summarise, you were born on 31 November 1992 and are 27 years of age. You were aged between 25 and 27 at the time of the offending. You were born in Medellin, Colombia and have a younger sister.
18 Your upbringing in Colombia before arriving in Australia was unremarkable as you were raised by both your parents and you were able to successfully complete secondary schooling and for two years undertook a business degree at university while retaining a retail job.
19 On 6 February 2014, then aged 21, you travelled to Melbourne on a student visa to study English. This progressed to studying project management at the Universal Institute of Technology Melbourne. You were able to maintain steady employment during your study in various roles including hospitality, cleaning and labouring.
20 On 23 August 2016 your visa expired and for an undisclosed reason your application to extend this visa was rejected. Among other things, this meant that you were unable to work legally in Australia.
21 Your counsel reports that you do not have any mental or physical ailments and that you have not seen your family since coming to Australia in 2014 apart from video-calls facilitated in custody.
Previous Good Character
22 This is your first time in custody, and there are no criminal antecedents before me.
23 It is of concern that you evaded detection for more than two years and committed the offence the subject of Charge 3 prior to your arrest. It was put to me by your counsel that you fled detection due to your fear that prison in this country would resemble conditions in Colombia where I accept prisons are governed in a more haphazard manner than they are here.
24 The weakness in this proposition stems from the fact that you continued to offend. I do not accept that your concern that a Melbourne prison would be harsher than it has in fact turned out to be was a decisive factor in your prolonged flight.
25 That matter aside, I find that you have previously been a person of good character and your background, to the extent that I am aware of it, augurs well for your prospects of rehabilitation. Your previous good character also affords you some degree of leniency, although as I will come to note, general deterrence is a very significant sentencing factor for crimes such as yours.
Prospects of Rehabilitation
26 You have utilised your time in custody well by obtaining employment at Ravenhall Correctional Centre’s kitchen. You have also undertaken a series of rehabilitative programs, evidence of which was provided to me in the form of certificates of completion.
27 You have also tested negative for any illicit substances whilst in custody.
28 Due to your relative youth, your background and absence of criminal history I consider that you have reasonable prospects of rehabilitation.
Plea of Guilty and Delay
29 Despite your denials at interview with the Australian Federal Police and your prolonged period of avoiding detection you pleaded guilty at an early stage once the court process was set in train. Your plea carries with it a significant utilitarian value which comes into sharper focus during this pandemic due to the effect restrictions have had on trial lists.
COVID-19 Pandemic and Isolation
30 As I have previously mentioned this is your first time in custody. I have taken that matter into account, as I have the extraordinary circumstances being experienced in our community at present due to the COVID-19 pandemic.
31 Whilst there is no evidence of a large scale outbreak in any prison at present, and I do not assume that there inevitably will be a serious outbreak, I accept that conditions in custody at present are considerably more onerous than previous, if for no other reason than due to the ceasing of personal visits. There is also a limitation on the availability of courses and rehabilitation programs. Recreation is also necessarily limited. It is expected that that situation will continue for some indeterminate time.
32 I accept also that the general anxiety in the community of an untethered outbreak is understandably harder to bear if it is experienced by a prisoner in a regulated and managed environment such as a prison, where one has restricted control over who one is exposed to and how. I also accept that the level of concern you may have and anxiety for others, your parents, who are in Colombia, during this time is more difficult to bear whilst incarcerated.
33 This aspect of your prison experience must surely be heightened due to the fact that you are a long way from home and a long way from your loved ones. You have limited English which will affect your experience in custody and your separation from your family by such a distance is now layered with other physical and perhaps psychological barriers due to the pandemic restrictions, in particular on international movement.
34 You will serve your sentence in this environment in the knowledge that you will be deported at the conclusion of your term. All of these matters in combination tend to some mitigation of sentence.
35 Your offence of trafficking a marketable quantity of cocaine is a serious example of that offence. You trafficked many times the marketable quantity. As I have stated, in particular your crime in relation to Charge 1, is one where there is a significant general deterrence factor in the sentence I must impose.
36 I have been assisted by a table of cases relied upon to provide somewhat of a gauge for consistency in Commonwealth sentencing. It is conceded on your behalf that the only available sentence in your case is a head sentence with a non-parole period. This is undoubtedly so. There are features of your case such as your previous good character, youth and the isolation you will experience in custody that lead me to conclude that a longer than usual parole period is appropriate in your case.
Sentence
37 I sentence you as follows, and you can remain seated, Mr Ruiz.
38 On Charge 1, trafficking a marketable quantity of a controlled drug, you are sentenced to 45 months imprisonment commencing from today.
39 On Charge 2, dealing with money suspected of being the proceeds of crime, you are sentenced to six months imprisonment commencing today.
40 On Charge 3, dealing with money suspected of being the proceeds of crime, you are sentenced to nine months imprisonment to commence once you have served 39 months of the sentence imposed on Charge 1.
41 That makes a total effective sentence of four years imprisonment. I set a non-parole period of two years before being eligible for parole.
42 Pursuant to s.18 of the Sentencing Act 1991 (Vic), I declare that you have served 240 days of pre-sentence detention, excluding today, and I direct that this be administratively deducted from the sentence that I have imposed today.
43 Pursuant to s.6AAA of the Sentencing Act, but for your pleas of guilty, I would have sentenced you to a total effective sentence of five years imprisonment with a non-parole period of three years.
44 I make the forfeiture order that is sought in relation to the sum of $7410 found in your possession which is suspected as being proceeds of crime.
45 They are my reasons for sentence.
46 MS CARROLL: If Your Honour pleases.
47 HIS HONOUR: Thank you. Ms Stevic, is there anything you need to raise with me in terms of the method of sentencing?
48 MS STEVIC: No, Your Honour.
49 HIS HONOUR: Thank you. Ms Carroll, is that understood, the sentence?
50 MS CARROLL: Yes, it is, Your Honour.
51 HIS HONOUR: Thank you. I wish you well, Mr Ruiz. We will adjourn the court.
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