Carmona v The Queen [2020] VSCA 295

CRIMINAL LAW - Leave to appeal - Sentence - Two charges of importation of commercial quantity of border controlled drug - Dealing in proceeds of crime worth $10,000 or more - Total effective sentence of 14 years and 6 months' imprisonment with non-parole period of 10 years - Whether sentences infringed totality principle - Co-offender sentenced to total effective term of 9 years and 3 months' imprisonment with non-parole period of 6 years and 3 months - Whether unjustifiable disparity in sentence between applicant and co-offender - Whether sentencing judge erred by assessing objective seriousness of the offending - Leave to appeal refused.

Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

1 On 19 July 2019, the applicant, Fernando Tovar Carmona, pleaded guilty in the County Court at Melbourne to two charges of importing a commercial quantity of a border controlled drug (cocaine), and one charge of dealing in proceeds of crime worth $10,000 or more.

2 On 26 July 2019, the applicant was sentenced by his Honour Judge Carmody as follows:

Importing a commercial quantity of a border controlled drug (cocaine) [s 307.1(1) - Criminal Code (Cth)]

Importing a commercial quantity of a border controlled drug (cocaine) [s 307.1(1) - Criminal Code (Cth)]

Dealing in proceeds of crime worth $10,000 or more [s 400.6(1) - Criminal Code (Cth)]

18 years' imprisonment with a non-parole period of 14 years

3 By notice dated 26 March 2020, the applicant seeks leave to appeal against that sentence on three grounds. They are as follows:

Ground 1: The orders made in relation to the commencement of the sentences imposed on charges 2 and 3 contravened the totality principle.

Ground 2: The disparity between the sentence imposed on the applicant on charge 2 and the base sentence imposed on Javier Caro Munoz contravened the parity principle.

Ground 3: The sentencing judge erred by assessing the seriousness of the individual importation charges by reference to the aggregate weight of the cocaine that informed both charges.

4 Four other co-offenders were also charged in relation to the importations. For present purposes, one of those co-offenders, Javier Caro Munoz, entered a plea of guilty on 16 September 2019, a day after his trial was listed to commence. A plea hearing, along with that of the other co-offenders, who also pleaded guilty, was conducted on 21 November 2019. On 3 February 2020, Judge Carmody sentenced Munoz as follows:

Attempt to import a commercial quantity of a border controlled drug (cocaine) [ss 11.1(1) and 307.1(1) - Criminal Code (Cth)]

Possess a border controlled drug (cocaine) reasonably suspected of having been unlawfully imported [s 307.10(1) - Criminal Code (Cth)]

Dealing in proceeds of crime worth $1,000 or more [s 400.7(1) - Criminal Code (Cth)]

12 years and 6 months' imprisonment with a non-parole period of 9 years

5 For reasons that follow, I would refuse leave to appeal.

Circumstances surrounding the commission of the offences

6 The applicant is a Colombian citizen. He came to Australia in April 2017 on a student visa. At the time of the offending, he was aged 25 and lived in an apartment in South Melbourne with three of his four co-accused, David Gutierrez Carmona ('Gutierrez Carmona'), Jacopo Palmisano, and Federico Echeverri Salazar.

7 On 20 February 2018, a consignment was sent from Santiago, Chile, to Australia. About 5.77 kilograms of pure cocaine was concealed within a torque brake pulley (charge 1 - importation of a commercial quantity of a border controlled drug). That package was addressed to a house in Church Street, Parkville. Palmisano had previously lived at that address.

8 On 24 February 2018, a further consignment of cocaine was sent from Panama to Australia. About 4.07 kilograms pure of that substance was concealed within a core cooler (charge 2 - importation of a commercial quantity of a border controlled drug). That package was addressed to a 'Holly Sullivan', at the same house in Church Street, Parkville.

9 On 28 February 2018, the Panamanian consignment was intercepted by the Australian Border Force. Upon examination of the package, police and customs officers located the cocaine inside. It was seized and replaced with an inert substance. A surveillance device was also fitted inside the core cooler.

10 On 5 March 2018, the Chilean consignment arrived at the Church Street address, where Palmisano and Salazar had been waiting. Salazar, using the name 'Thomas Sulivan', signed for the package upon delivery.

11 Messages sent and received through the telephone application 'WhatsApp', that were subsequently analysed by police, showed the applicant instructing Salazar to deliver the Chilean consignment to the South Melbourne apartment. Further, police conducting surveillance on the applicant observed him attending a Bunnings Warehouse store in Brunswick, and then subsequently in Port Melbourne. At both stores, he bought a number of tools and implements that would be used to access the contents of the pulley. He had also sent a number of messages via WhatsApp, seeking instructions as to how to open the pulley.

12 On 8 March 2018, the Australian Federal Police ('AFP') made arrangements for the controlled delivery of the Panamanian consignment to the Church Street address. On that day, the applicant directed Salazar and Palmisano to be present for collection of the package.

13 At 2:32 pm, Palmisano signed for delivery of the Panamanian consignment. He loaded the package onto the back of a scooter, and rode off. At 2:51 pm, Palmisano arrived at the South Melbourne apartment. The applicant, Salazar, Munoz, and Gutierrez Carmona, were present. At 3:49 pm, Palmisano left the apartment on his scooter.

14 At 4:29 pm, once the Panamanian consignment had been opened, the AFP attended the apartment and executed a search warrant. The applicant, Salazar, Munoz, and Gutierrez Carmona were arrested.

15 At 5:49 pm, Palmisano returned to the apartment and was subsequently arrested. When police asked the applicant 'where is it?', he pointed to a plastic bag containing the pulley, and told them that it contained 'cocaine'.

16 The AFP seized the pulley and the cocaine. They observed marks on the pulley that were consistent with the applicant having attempted to open it. Police also seized a number of the tools and implements that were used in an attempt to open the pulley, along with assorted paraphernalia, including scales, mobile phones, and $30,000 cash (charge 3 - dealing in proceeds of crime worth $10,000 or more).

17 Between 27 February 2018 and the date of his arrest, the applicant sent and received a number of messages through WhatsApp with an individual named 'Ga', who was said to be the overseas controller of the operation. Those messages pertained to the two consignments, and arranging for his co-offenders, primarily Munoz and Salazar, to be ready to collect the packages. The applicant, Munoz, and a number of unknown persons also exchanged messages during this period regarding various bank transfers between Colombia and Australia, which were facilitated by Munoz.

18 Investigators concluded that the value of the cocaine contained within the Chilean consignment had low range wholesale value of $1.3 million, and a high range wholesale value of $1.78 million. The Panamanian consignment had a low range wholesale value of $875,000, and a high range wholesale value of $1.2 million. In total, the low range street value for both consignments was $5.9 million, with a high range street value of $7.8 million.

19 When summarising the offending, the judge characterised the applicant has having had 'the pivotal role in the Melbourne end of these importations.'[1] This was supported by the fact that he alone, it would seem, had contact with the supplier, and had organised for the collection of the consignments in Melbourne. His Honour also noted that the total amount of cocaine seized was almost five times the commercial quantity for this drug, which is 2 kilograms.

20 The judge then turned to consider the applicant's personal circumstances. He had used cannabis socially since he was 20. However, he did not use cocaine or any other hard drugs. Further, the judge observed that the applicant's mother, father, and sister had provided written references in support. Those reference spoke of his good character and work ethic. His Honour, however, noted that in cases of drug importation, 'good character is given less weight as a mitigating factor in sentencing.'[2]

21 The judge accepted that the applicant's isolation from his family would render his time in prison more onerous than would otherwise be the case. It was also noted that it was almost certain that he would be deported to Colombia once his sentence was completed.

22 The judge found that the applicant's offending was motivated solely by greed. As such, it was said that his moral culpability was great. His Honour observed that specific deterrence, therefore, would be a relevant consideration. He also observed that general deterrence was of 'paramount importance' in the sentencing synthesis for such offending.[3] He concluded, as was obvious, that a term of imprisonment was the only appropriate sentence.

23 With regard to the applicant's plea, the judge accepted that it did have utilitarian value, and facilitated the 'effective administration of justice.'[4] It was also accepted to be a 'clear indication' of the applicant having accepted responsibility for his behaviour.[5] Further, his Honour found that it demonstrated 'some remorse',[6] which was also said to be have been supported by the applicant's statements to Dr Aaron Cunningham, a forensic psychologist who assessed the applicant and prepared a report that was tendered on the plea. As to prospects of rehabilitation, the judge considered them to be 'fair'.[7]

24 His Honour concluded that 'a substantial term of imprisonment [was] the only just sentence.'[8] He noted that he had

moderated the cumulation of the [sentences] on charges 2 and 3 so as not to impose a crushing sentence ... and offend [against] ... totality.[9]

25 The judge then sentenced the applicant as indicated above.

26 When the judge came to sentence Munoz some seven months later, he made the following observations regarding his role in the offending:

It is not alleged that you had any involvement in the Brake Pulley Consignment.

The prosecution case, and you accept by your plea of guilty to Charge 1, is that you and Tovar Carmona were involved in the importation of the Core Cooler Consignment to Australia. The evidence discloses that your role was in the remitting of money to Colombia to fund the importation of cocaine in the Core Cooler Consignment.

You were in the apartment at South Melbourne when Palmisano delivered the Core Cooler Consignment to South Melbourne. The evidence from the listening device implanted in that Core Cooler Consignment proves you were involved in the attempts to access the contents of the Core Cooler Consignment.

Your involvement was for a period from 24 February 2018 to 8 March 2018, a period of two weeks. The amount of pure cocaine was 4.072 kilograms. Your role was significant in this attempted importation because you were remitting the funds to pay for it and were present when it was to be opened at the apartment in South Melbourne.

Whilst I have described Tovar Carmona as the pivotal role at the Melbourne end of the two importations involved in this whole case, your role was pivotal in the financing part of the Core Cooler importation.

...

There is no clear evidence of what reward you were to receive as a result of the importation of the cocaine in the Core Cooler Consignment. The clear inference is that you engaged in this attempted importation for financial reward.

...

You have not been involved in two separate importations as your co-accused, Tovar Carmona. However, he has been sentenced separately for each of the consignments and part of the sentence for the Core Cooler Consignment was cumulated on his sentence for the Brake Pulley Consignment. It was submitted on your behalf that your role was not as significant as Tovar Carmona in the importation of the Core Cooler Consignment.

The facilitating of the transfer of funds and the confirmation of those funds transferred is a necessary and significant role in drug importations. I accept it is a different role to the managerial role played by Tovar Carmona in this importation of the Core Cooler Consignment but it is only marginally less important in the overall offending. You were present in the apartment in South Melbourne when the consignment was delivered and to be opened. The amount of the drug was two times the commercial quantity.[10]

27 With regard to ground 1, the applicant's overall submission was that the judge's orders resulted in a total effective sentence that went 'well beyond' that which would have constituted a 'just and appropriate measure of the total criminality involved'.[11]

28 While it was accepted that a degree of cumulation between the sentences imposed on charges 1 and 2 was warranted, it was noted that the two consignments had arrived in Australia only three days apart. Further, the applicant submitted that there was 'a significant overlap' in how both consignments were organised.

29 The applicant noted that the judge's orders for commencement on charges 2 and 3 resulted in an effective cumulation of 40 per cent of the sentence on charge 2, and 50 per cent of the sentence on charge 3. It was contended that such a high degree of cumulation offended against the totality principle. In support of that submission, the applicant relied on Azzopardi v The Queen,[12] where this Court said:

The severity of the sentence increases exponentially as it increases in length. Once the sentence satisfies the punitive and mitigatory sentencing objectives for the offender's overall conduct, the sentence is then proportionate to the offender's criminality. No justification then exists for a more severe sentence, proportionality and just deserts defining the outer limits of punishment.[13]

30 As to ground 2, the applicant contended that there 'was little, (if indeed there was any) difference' in the objective gravity of the offending committed by Munoz and himself with regard to charge 2. It was submitted that the difference of 18 months in the sentence imposed on himself for that offence (10 years), and that imposed on Munoz (8 years and 6 months) demonstrated a marked and manifest error that gave rise to an unjustifiable sense of grievance.

31 The applicant submitted that he and Munoz relied upon similar matters in mitigation. It was submitted, however, that the primary difference between the two men was that the applicant had entered a plea of guilty at a far earlier stage.

32 In his submissions on ground 3, the applicant contended that the judge's references to the total amount of cocaine seized bespoke error in his sentencing synthesis. More particularly, it was submitted that the judge had erred by referring to the aggregate weight of cocaine seized as being 'just shy of five times' the legislative threshold for a single commercial quantity charge.

33 In response to the applicant's ground 1, counsel submitted that it was open to the judge to make the commencement orders (resulting in the effective cumulation) that he did. The offending was extremely serious, and the applicant was pivotal in the operations. Further, counsel submitted that it was of no significance that the Chilean and Panamanian importations occurred within a short time of each other, and in a similar manner. Both importations were distinct and discrete, and the applicant was extensively involved in each. As was accepted by the applicant, a degree of cumulation was warranted to reflect the level of criminality in this offending. It was submitted that such cumulation was modest.

34 With regard to ground 2, counsel submitted that it was open to the judge to impose a greater sentence on charge 2 than that imposed on Munoz. This was because the applicant had played a greater role than Munoz in arranging for the importation of the Panamanian consignment. Indeed, he had been the 'pivotal' person at the Melbourne end of the operation.[14] In that regard, it was submitted that while the judge had described Munoz's role as 'only marginally less important'[15] that that of the applicant, the gradation between the two was significant.

35 Counsel submitted, therefore, that the disparity in sentence between the applicant and Munoz did not give rise to a justifiable sense of grievance. The differences in sentence between the two offenders could easily be explained on the basis of the applicant's greater role in the offending. That was so, despite his early plea.

36 In response to the applicant's complaint regarding ground 3, counsel submitted that the sentencing judge had clearly taken into account that there were two separate importations that gave rise to the two charges. Counsel noted that the judge's comments regarding the aggregate amount of cocaine seized were prefaced by the comment:

In this case there are two separate importations. Each of those importations are at least twice the commercial quantity of cocaine.[16]

37 Counsel argued that there was a clear demarcation of the quantities involved in each charge. Further, she submitted that the judge's references to the overall quantity was done in the context of assessing the applicant's overall criminality.

38 This was extremely serious offending, involving the importation of significant quantities of cocaine as part of what was plainly a highly organised and sophisticated criminal enterprise. The applicant's role in this operation was, as the judge said, pivotal. His motivation was greed, pure and simple. The quantity of the drugs imported was substantial, and its value, whether wholesale or retail, was potentially great.

39 When one bears in mind that the maximum penalty for each of the two importations was life imprisonment, it is difficult to see how sentences of 10 years on each charge for a major player can be regarded as outside the range, or as otherwise inappropriate.

40 The two importations, although only seven days apart, each involved separate dealings with different sources, in different countries, Chile and Panama respectively.

41 I can see no arguable error in the judge having effectively cumulated four years of the sentence on charge 2 upon the base sentence of 10 years on charge 1. That amount of cumulation was within range.

42 There is no merit in the disparity point, which is the subject of ground 2. The applicant received a 10 year sentence on charge 2, and the co-offender Munoz received 8 years and 6 months. Bearing in mind the judge's assessment that Munoz played an important, but still lesser role in that particular importation than did the applicant, it cannot be said that the 18 month difference demonstrates manifest disparity.

43 I note also that Munoz was sentenced for having 'attempted' to import a commercial quantity of border controlled drug, and not, as was the applicant, for having imported that drug. While this Court made it clear in Nguyen v The Queen[17] that offences of attempt are not necessarily to be regarded as less serious than those of actual importation, it was also said 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.'[18] As can be seen in this case, while Munoz played a central role in the Panamanian importation, that role was still not as great as that undertaken by the applicant.

44 For these reasons, I would refuse leave to appeal.

[1] DPP v Tovar Carmona [2019] VCC 1148, [4] ('Reasons').

[10] DPP v Munoz [2020] VCC 50, [36]-[46] ('Munoz').

[11] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307-8; [1997] HCA 26 (McHugh J). See also, Bogdanovich v The Queen [2011] VSCA 388, [63]-[64].

[12] (2011) 35 VR 43; [2011] VSCA 372.

[13] Ibid 61 [62] (Redlich JA, Coghlan AJA agreeing at 70 [92], Macaulay AJA agreeing at 70 [93]) (citation omitted).

[15] Munoz [2020] VCC 50, [46]

[17] [2011] VSCA 32; (2011) 31 VR 673, 682-3 [34]; [2011] VSCA 32 (Maxwell P).