Cicero Olivares v R

Court of Criminal Appeal (NSW)|2016-10-24|Before: Ward JA, Fagan J, Adams J

Solicitors: Ms Sarah Burke, Legal Aid Commission (Applicant) Ms Stacey Hatch, Director of Public Prosecutions (Cth) (Respondent) File Number(s): 2014/198435 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Not published Date of Decision: 09 October 2015 Before: Culver DCJ File Number(s): 2014/198435

Objective circumstances of the offences

The applicant is a resident of Mexico. He is a citizen of both Spain and Mexico and holds passports for both countries. He travelled to Australia by air arriving in Sydney on 16 June 2014 on a tourist visa. He indicated on his incoming passenger declaration that he intended to remain in Australia for eight days for the purpose of a holiday. The applicant checked into a hotel in Kings Cross on the day of his arrival. He remained in occupation of the room beyond 24 June 2014, the date of intended departure indicated on his arrival documentation.
From 3 July 2014 the Australian Crime Commission commenced to intercept telephone communications for a mobile service which was being used by the applicant. A number of telephone calls and SMS text messages intercepted on 3 and 4 July 2014 used coded language to make arrangements for the applicant to meet another individual to hand something over to him. He was arrested at 7:12 pm on 4 July 2014 in Darlinghurst, at which time he was in possession of two mobile phones both subscribed in names other than his own. Upon execution of a search warrant at his hotel room there were found eight packages of compressed powder concealed in the bathroom ceiling. These contained the drugs the subject of the trafficking charge. The $60,000 which is the subject of the money laundering charge was also found in the bathroom ceiling.
The applicant admitted to police that whilst in Mexico he had been offered US$10,000 to travel to Australia and give the eight packages to another person. It was not part of the Crown case that he had brought the packages into Australia. The appellant said that after his arrival in Sydney it was arranged that he meet a certain person, who supplied the packages to him together with a mobile phone. He was told he would receive a message on the phone with instructions to offload the drugs. Obviously, this had not occurred by the time police intervened and detained him. He told police the money found in his possession had also been given to him since his arrival in Australia, by yet another person.
When arrested the appellant was in possession of two $5 notes, each with a marking under its serial number. The holding of these notes was consistent with the serial numbers being used as a code or password to facilitate secure introductions to other persons who would be involved in the trafficking of the drugs.
The objective seriousness of the applicant's offence is of a high order. The quantity of drugs involved is substantial. It is to be inferred that the offender was recruited to the role he played for the purpose of being introduced towards the top of a chain of supply within Australia as a person who would not be known to New South Wales or Federal police. The provision of drugs to such an unknown outsider might go undetected by police. Likewise his activity in on-supplying the drugs would be less likely to come under police surveillance because the applicant was unknown in this jurisdiction. He came to Australia for no purpose other than to commit these offences and thereby to facilitate drug distribution whilst frustrating detection by authorities. He admitted to police that he believed the packages contained illegal drugs.
The applicant was evidently in the confidence of high-level personnel involved in this activity, with international connections. He was entrusted with a very substantial quantity of the drug, to act unsupervised in effecting its secure on-supply. He was also entrusted with the $60,000 cash. He admitted to police he was in communication with a person based in Mexico, superior to himself. Although he was evidently not in the highest echelon of the syndicate concerned in this drug distribution, the fact that he played a significant part in an organised criminal activity involving multiple participants of itself contributes to the objective seriousness of his offences.

Subjective circumstances of the applicant

The applicant is 49 years old. He was aged 48 at the time the offences were committed. In Cancun, Mexico he has a wife who is now aged 27 years and two children now aged 5 years and 3 years. The applicant reported to his psychologist that his wife suffers symptoms of depression and anxiety. He has no known ties with Australia and no prior convictions recorded here.
The applicant did not give evidence in the sentence proceedings. Some subjective considerations were introduced through a psychologist's report which his solicitors had commissioned. The applicant was brought up in Mexico in a stable family of modest means. He has worked in Mexico, the United States and Spain. He returned to Mexico in about 2011 and from then until the commission of these offences he lived in Mexico City and later in Cancun. He experienced financial strain trying to provide for his young wife and their two children and this led him to take part in the trafficking of drugs in Australia for reward.
The applicant informed his psychologist that he had used cannabis and cocaine. He did not describe or display any symptoms of psychological or psychiatric disorder. The psychologist's report constituted a vehicle for providing to the sentencing judge an unsworn summary of personal circumstances rather than any relevant professional opinion.
Her Honour expressly took into account all of the objective and subjective matters referred to above, as required by s 16A of the Crimes Act 1914 (Cth). Also in accordance with that section her Honour accepted that the applicant had shown contrition for his offences, that he had made ready admissions to police at an early stage of their investigations and that he had pleaded guilty on the day after his trial had been listed to commence.

Principles applicable to an appeal on the "manifestly excessive" ground

To succeed on a ground of manifest excess, the applicant must establish that the sentence is "unreasonable" or "plainly unjust": Markarian v The Queen [2006] 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. Consideration of such a ground is undertaken in the context that there is no single correct sentence and that sentencing is not to be understood as a mathematical exercise. Accordingly, sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle. As Hayne J observed in AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, "…there will be a range of possible sentences that could be imposed without error."
In Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 19, the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) at [15] expressed the role of an appellate court dealing with a ground such as this in this way: "…a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

Applicant's arguments

In support of the sole ground of appeal the applicant relied upon four discrete arguments. First, it was submitted the sentence was disproportionate to the findings of the sentencing judge in relation to the nature and circumstances of the offence. Secondly, that the applicant presented a substantial subjective case. Thirdly, that the sentence is outside the range of sentences for this type of offending when compared to other similar cases. Fourthly, that the sentence is outside of the range of sentences when compared to the sentencing statistics.
With respect to the first and second of these arguments, we have had regard to the objective circumstances of the offending - notably, the applicant's role and the significant quantity of drug - as well as his subjective case including the late plea of guilty. Although the sentence is a stern one we do not consider it is, upon consideration of the objective seriousness and subjective factors, "unreasonable" or "plainly unjust". The head sentence is undoubtedly at the high end of the range which a sentencing judge might consider appropriate but it is the scope of her Honour's discretion and not manifestly excessive. The impact of the sentence penalty is ameliorated by her Honour having provided that the applicant will be eligible to be released on parole after serving only 60% of the head sentence.

Sentences passed in comparable cases

With respect to the applicant's third argument, it is uncontroversial that this Court may have regard to what has been done in other cases in determining whether a sentence under appeal is manifestly excessive. However, what has occurred in other cases does not of itself establish a range, beyond which error is established. As the plurality in the High Court observed in Hili v R at [53]-[54] (footnotes omitted): "[53]…in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax evasion as well as cases of customs and excise fraud and social security fraud. Care must be taken, however, in using what has been done in other cases. [54] In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'."
The applicant sought to demonstrate that the sentence imposed was manifestly excessive by comparing it with sentences imposed on other offenders whose circumstances were said to be comparable. The first comparison was made with The Queen v Tin Yu Ng; The Queen v Yik Lun Siu [2009] VSCA 218. Two offenders in that case were sentenced for trafficking, contrary to s 302.2(1), in 799.5 g (pure) of an analogue of methylamphetamine. That quantity was only 50 g over the threshold for the offence, as opposed to a quantity eight times the threshold in the present case. Ng pleaded guilty and was sentenced to 6 years imprisonment with a non-parole period of 4 years. He had undertaken communications with the importers of the drug from Malaysia and arranged for a courier to travel from Melbourne to Sydney to collect it and return it to Melbourne. He was to receive $5,000 for his part. He undertook significant planning but his criminality was nowhere near as objectively serious as that of the present applicant, primarily because of the very much smaller quantity of the drugs involved.
The applicant cited Le v R (Cth) [2010] NSWCCA 285. Le was sentenced for, inter alia, conspiring to traffic in a commercial quantity of heroin and methamphetamine contrary to s 302.2(1). Le had recruited couriers to move the drugs from Sydney to Melbourne, a total of 3.5 kg of heroin and 2.3 kg of methamphetamine in the period December 2005 to June 2006. The purity of the drugs was not known. Le was found to be the right hand man of the head of the importation and distribution organisation. He was essential to its operations and contributed to its success. He was sentenced on the basis of a 50% discount for his plea of guilty and assistance to law enforcement authorities. In the Court of Criminal Appeal his sentence was adjusted downwards to achieve parity with the sentence which had been imposed on a related offender. The end result for the charge under s 302.2(1) was 12 years 6 months with a non-parole period of 8 years 3 months.
Le's offending concerned a lesser quantity of drugs than that with which the present case is concerned. He was at a higher level of responsibility in his criminal organisation and he carried out more criminal acts over a longer period than the present applicant. The degree of objective seriousness of Le's offending is somewhat greater than that of the applicant, as reflected in the starting point sentence which the Court of Criminal Appeal would have considered appropriate, namely 25 years with a non-parole period of 16 years 6 months (see [43]). If he had been entitled to a reduction in sentence only for his early plea of guilty and not for assistance as well (as in the case of the present applicant) it would be expected that his starting point sentence would have been discounted to about 18 or 19 years with a non-parole period of around 12 years. By comparison with that, and making full allowance for the differences in objective seriousness and subjective circumstances between the two cases, the sentence under appeal cannot be said to be inconsistent or manifestly excessive.
Sergi v Director of Public Prosecutions (Cth) [2005] VSCA 181 was also cited by the applicant. That offender had trafficked at least 4.2 kg of pure MDMA and pleaded guilty to a charge under s 302.2(1). The prescribed commercial quantity for that drug at the time of the offence was 500 g. He had held the drug in both powder and tablet form for the purpose of supply, he transported and sold the drug and he received substantial sums from sales - at least $267,500. His appeal in respect of a sentence of 9 years with a non-parole period of 7 years was dismissed. This sentence took into account full credit for an early plea of guilty. The court said "a higher head sentence than nine years would also have been within the range in the present case". Sergi v Director of Public Prosecutions (Cth) provides no support for the appellant's contention of manifest excess in the sentence now under appeal.
In Shen, David Ying v R [2009] NSWCCA 251 a sentence of 11 years with a non-parole period of 7 years was affirmed for a single count under s 302.2(1) concerning the quantity of MDMA in tablet form equivalent to 7.5 kg (pure). Shen's involvement in the drug distribution syndicate was at a high level, near to the topmost figure. His sentence was derived after applying a 35% discount on account of his plea of guilty and past assistance to authorities. At a discount of the order which would be appropriate to a plea of guilty only - for purposes of comparison with the present case - Shen's sentence would have been closer to 13 years with a non-parole period of 8 years. Again, comparison of this result with the sentence under appeal does not support the applicant's contention that his sentence can be shown to have been manifestly excessive by reason of inconsistency with sentences passed in comparable cases.
Halac v R [2015] NSWCCA 121 concerned trafficking in methamphetamine and 4-methylmethylamphetamine of a pure weight equivalent of 40.45 kg contrary to s 302.2(1). The offender played a principal part in the activities of an organised syndicate and was sentenced to 18 years imprisonment with a non-parole period of 11 years 6 months. He had prior convictions for similar offences. A further offence against the same section was taken into account on a schedule. This concerned accessorial liability in the trafficking of another 14.312 kg within Australia. The offender had an extensive record for offences of violence, counterfeiting and drug trafficking in Europe. He had served substantial terms of imprisonment there. His sentence took into account a 25% reduction for the offender's plea of guilty. Although cited by the applicant this decision is not useful for comparison. The sentence imposed was higher than that fixed for the applicant, the quantity of drugs involved was much larger and his antecedents were adverse.
We have considered the above decisions on the basis recognised by the plurality in Barbaro v The Queen; Zirill v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41] (footnotes omitted): "[42] As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect."
More recently in The Queen v Pham [(2015) 90 ALJR 13, 325 ALR 400, 244 A Crim R 280 [2015] HCA 39, the High Court examined the use that can be made of other cases in the sentencing process. French CJ, Keane and Nettle JJ at [28] set out a number of propositions concerning the way in which the assessment of sentences in other cases should be approached as follows (footnotes omitted): "(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently. (2) The consistency that is sought is consistency in the application of the relevant legal principles. (3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts. (4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form. (5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided. (6) When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so. (7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle."
The comparison, applying these principles, does not reveal that the sentence appealed from is inconsistent with the manner in which the law has been applied to other offenders.

Statistics

The applicant's reliance upon sentencing statistics, his fourth argument, concerned a sample of 27 cases in which it was said only 3 offenders received a higher head sentence than that imposed on the applicant and only 3 received a longer non-parole period. This information does not assist in the determination of whether the sentence under appeal is manifestly excessive. It is necessary to look at the objective and subjective circumstances of the offences for which the sentences reflected in the statistics were imposed. That has been done by way of consideration of the specific cases cited by the applicant, above. The statistics, divorced from particulars of the cases from which they are taken, do not demonstrate that a manifestly excessive sentence was imposed in this case.

Orders

Accordingly the orders of the Court are: 1. Leave to appeal is granted. 2. The appeal is dismissed.

Amendments 02 December 2016 - Cover sheet - name of counsel corrected 05 December 2016 - [17] - typographical error corrected. [28] - typographical error corrected. 05 December 2016 - Cover sheet - name of solicitor corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2016

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