Velez v R (Cth)

Case [2015] NSWCCA 177


Court of Criminal Appeal
Supreme Court

New South Wales

Case Name: 

Velez v R (Cth)

Medium Neutral Citation: 

[2015] NSWCCA 177

Hearing Date(s): 

29 June 2015

Decision Date: 

3 July 2015

Before: 

Hoeben CJ at CL at [1]
R A Hulme J at [29]
Campbell J at [30]

Decision: 

(1)   Application for leave to appeal is granted.
(2)   The sentence imposed on the applicant in the District Court on 27 April 2012 is quashed.
(3)   In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 10 years, commencing 2 December 2010 and expiring 1 December 2020, with a balance of term of 7 years expiring 1 December 2027. The applicant will be eligible for release on 1 December 2020.

Catchwords: 

CRIMINAL LAW – sentence appeal – conspiracy to import a commercial quantity of a border controlled drug – whether failure to make proper allowance for applicant’s subjective case – appeal allowed – applicant re-sentenced.

Cases Cited: 

House v R [1936] HCA 40; 55 CLR 499
Kentwell v R [2014] HCA 37; 88 ALJR 947
Lam v R [2014] NSWCCA 50

Category: 

Principal judgment

Parties: 

Juan Antonio Velez – Applicant
Regina – Respondent Crown

Representation: 

Counsel:
Mr J Trevallion – Applicant
Mr I Bourke SC – Respondent Crown
 
Solicitors:
Matthew Lorkin Solicitor – Applicant
Commonwealth Director of Public Prosecutions – Respondent Crown

File Number(s): 

2010/401567

Decision under appeal: 

 Court or Tribunal: 

District Court of NSW

  Jurisdiction: 

Criminal

  Date of Decision: 

27 April 2012

  Before: 

Frearson SC DCJ

  File Number(s): 

2010/401567

JUDGMENT

  1. HOEBEN CJ at CL:

    Offence and sentence

    The applicant (and co-offenders Temisi Haniteli Telefoni and Viliami Tauataina Faingata’a) stood trial before Frearson SC DCJ in the District Court between 26 September 2011 and 12 December 2011. The jury was empanelled on 4 October 2011 and retired to consider its verdicts on 8 December, returning verdicts of guilty on 12 December 2011.

  2. The indictment contained a single count against each accused:

    “Between about 31 December 2008 and 2 December 2010 at Sydney in the State of New South Wales and elsewhere conspired with each other, Jorge Elicier Henao Palacio and divers others to import a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity.”

  3. The maximum penalty for that offence is life imprisonment and/or a fine of $825,000 (7,500 penalty units).

  4. A fourth co-offender (Jorge Elicier Henao Palacio) was tried separately before Woods QC DCJ and a jury in 2013 on the conspiracy count, as well as two actual importation of cocaine counts. He was found guilty of all three offences.

  5. Judge Frearson heard the sentence proceedings concerning the applicant and the co-offenders Telefoni and Faingata’a on 9 March and 23 March 2012. On 27 April 2012 his Honour imposed the following sentences:

    Velez (applicant) - imprisonment with a non-parole period of 10 years and 10 months with a balance of term of 7 years and 2 months.

    Faingata’a – imprisonment with a non-parole period of 10…

Continue reading Velez v R (Cth)

Sign in free to access the full text

Details
AGLC
Velez v R (Cth) [2015] NSWCCA 177
Case
[2015] NSWCCA 177
Decision Date

CaseChat Overview and Summary

The case of Velez v R (Cth) involved an appeal against the sentence imposed on the applicant by the Supreme Court of New South Wales. The applicant, along with others, was convicted for their involvement in a conspiracy to import a commercial quantity of cocaine into Australia. The appeal centred on the fairness and proportionality of the sentence imposed on the applicant, considering various aspects of his involvement and personal circumstances. The court was tasked with determining whether the trial judge made appropriate allowances for the applicant's subjective case when imposing the sentence.

The primary legal issues the court needed to address were whether the sentencing judge had appropriately considered the applicant's lack of prior convictions and his subjective role within the conspiracy. The applicant argued that his sentence should be lower than that of his co-offenders due to his lesser involvement and the absence of prior criminal convictions. The court examined whether the sentencing judge had correctly assessed these factors and whether the sentence imposed was just and proportionate.

The court found that the sentencing judge did not make proper allowance for the applicant's subjective case, particularly in regard to his lack of prior convictions and his role within the conspiracy. The court held that the sentencing judge had not adequately distinguished the applicant's level of involvement and personal circumstances from those of his co-offenders. Consequently, the appeal was allowed, and the case was remitted to the sentencing court for re-sentencing. The court emphasised the importance of individualised sentencing that reflects the unique aspects of each offender's case.

The final orders of the court were to allow the appeal, set aside the sentence imposed on the applicant, and remit the case to the Supreme Court of New South Wales for re-sentencing. The court directed that the re-sentencing process should take into account the specific factors of the applicant's case, including his lack of prior convictions and his role in the conspiracy, to ensure a just and proportionate outcome.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At the hearing of the appeal, Grounds 1 and 3 were abandoned. The applicant relied upon Grounds 2 and 4 as constituting a single ground of appeal.Factual background The following is a brief overview of the Crown case. The relevant events occurred in 2009 and 2010, although most of the evidence concerned events in 2010. The conspirators comprised people from two ethnic groups – Colombians and Tongans, who were located in Australia, Tonga and Colombia or other parts of South America. Most of the evidence in the trial was focused on the actions of “the Australian Colombians” (the applicant, Henao Palacio and Lopez Rios) and “the Australian Tongans” (Telefoni and Faingata’a). The Crown case was that the syndicate (Colombians and Tongans) had imported into Australia a large quantity (many kgs) of cocaine in about December 2009, or early 2010. That cocaine had been shipped from South America into Tonga and then into Australia. The arrival and distribution of this cocaine had not been detected by police at that time. Some of this cocaine shipment (known in the trial as “the leftover”) remained in Tonga and it was the intention of the conspirators to import this “leftover” into Australia at a later time. During 2010 the Colombians and the Tongans were engaged in negotiations and discussions aimed at achieving three main objectives:(1)Bringing the “leftover” cocaine into Australia from Tonga.(2)Settling a dispute over money which the Colombians believed was owed for a quantity (4 – 6 kgs) of cocaine that had gone “missing” from the first import.(3)Making plans for a future large shipment of cocaine (about 500 kgs) to be imported into Australia via Tonga.Sentence proceedings At trial Telefoni gave evidence but the applicant and Faingata’a did not. Neither the applicant nor the co-offenders gave evidence in the sentence proceedings. Based on the evidence at trial, it was necessary for his Honour to determine the “scope” of the conspiracy. His Honour identified his task as follows:“The scope of the conspiracy has to be gleaned ultimately from the combination of all of the circumstances relied upon and put into evidence, and particularly the communications set out in exhibits 4A and 4B and the emails in exhibit 30, which are particularly instructive. I am satisfied consistently with the jury verdict, that each offender engaged in coded and guarded conversations about cocaine.” (ROS 2.8) Having reviewed the principal pieces of evidence, his Honour set out his conclusions as follows:“I do make certain conclusions on the totality of the evidence and I conclude beyond reasonable doubt, a number of things. One is that pursuant to the agreement, an agreement which at all times involved Colombians and Tongans, including the offenders, four to six kilograms was imported into Australia by March 2010. ... I am prepared to sentence on the basis that I am satisfied beyond reasonable doubt it was at least four. That cocaine I am satisfied beyond reasonable doubt was in fact sold by Mr Faingataa in conjunction with Mr Telefoni and not accounted for to the Colombians.Two, that pursuant to the agreement arrangements were made to extract the leftover from Tonga and those arrangements involved the Colombians and the Tongans and all the offenders. The only reasonable inference from the evidence is that whatever the quantity left in Tonga it involved tens of kilograms of cocaine. … my conclusion is that the amount left in Tonga was in the order of at least forty kilograms.Three, pursuant to the agreement that involved the Colombians and the Tongans and the three offenders, arrangements were made to import 500 kilograms of cocaine from South America into Australia via Tonga. I conclude that all the offenders were parties to a genuine agreement in relation to the 500 kilograms.” (ROS 5-6.2)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HOEBEN CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

The applicant originally sought leave to appeal against sentence on the following groundsGround 1 – The sentencing judge erred in law in concluding that there was no significant reason to distinguish between the applicant and the other offenders, Faingata’a and Telefoni, in terms of criminality.Ground 2 – The sentencing judge erred at law in the consideration of the lack of convictions of the applicant in the formulation of the sentences imposed upon Telefoni, Faingata’a and himself.Ground 3 – The sentencing judge erred at law in the imposition of identical head sentences upon the applicant and co-offender, Temisi Telefoni, when the latter had been involved in the conspiracy for over one year longer than the applicant.Ground 4 – The sentencing judge erred at law in his consideration of the subjective case of the applicant when imposing a similar sentence as imposed on the other two offenders. At the hearing of the appeal, Grounds 1 and 3 were abandoned. The applicant relied upon Grounds 2 and 4 as constituting a single ground of appeal.Factual background The following is a brief overview of the Crown case. The relevant events occurred in 2009 and 2010, although most of the evidence concerned events in 2010. The conspirators comprised people from two ethnic groups – Colombians and Tongans, who were located in Australia, Tonga and Colombia or other parts of South America. Most of the evidence in the trial was focused on the actions of “the Australian Colombians” (the applicant, Henao Palacio and Lopez Rios) and “the Australian Tongans” (Telefoni and Faingata’a). The Crown case was that the syndicate (Colombians and Tongans) had imported into Australia a large quantity (many kgs) of cocaine in about December 2009, or early 2010. That cocaine had been shipped from South America into Tonga and then into Australia. The arrival and distribution of this cocaine had not been detected by police at that time. Some of this cocaine shipment (known in the trial as “the leftover”) remained in Tonga and it was the intention of the conspirators to import this “leftover” into Australia at a later time. During 2010 the Colombians and the Tongans were engaged in negotiations and discussions aimed at achieving three main objectives:(1)Bringing the “leftover” cocaine into Australia from Tonga.(2)Settling a dispute over money which the Colombians believed was owed for a quantity (4 – 6 kgs) of cocaine that had gone “missing” from the first import.(3)Making plans for a future large shipment of cocaine (about 500 kgs) to be imported into Australia via Tonga.Sentence proceedings At trial Telefoni gave evidence but the applicant and Faingata’a did not. Neither the applicant nor the co-offenders gave evidence in the sentence proceedings. Based on the evidence at trial, it was necessary for his Honour to determine the “scope” of the conspiracy. His Honour identified his task as follows:“The scope of the conspiracy has to be gleaned ultimately from the combination of all of the circumstances relied upon and put into evidence, and particularly the communications set out in exhibits 4A and 4B and the emails in exhibit 30, which are particularly instructive. I am satisfied consistently with the jury verdict, that each offender engaged in coded and guarded conversations about cocaine.” (ROS 2.8)