R v Campos

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60765/98 MEAGHER JA B JAMES J KIRBY J

1 JAMES J: This is an application brought by Maria Asuncion Chamorra Campos for leave to appeal against a sentence imposed on her in the District Court on 12 November 1998 by his Honour Judge Rummery, after a jury had found her guilty of the following charges: 2 (1) that on 14 October 1997 at Sydney she had in her possession without reasonable excuse narcotic goods, being not less than the trafficable quantity of heroin (168.6 grams gross and 139.9 grams of pure heroin) reasonably suspected of having being imported into Australia. This was an offence under s 233B(1)(ca) of the Customs Act (Cth) for which the maximum penalty is imprisonment for 25 years and/or a fine of $100,000. 3 (2) that on the same date in Sydney she was in possession of $6,000 that might reasonably be suspected of being the proceeds of crime. This was an offence under s 82(1) of the Proceeds of Crime Act (Cth), for which the maximum penalty is imprisonment for two years and/or a fine of $5,000. 4 In sentencing the applicant, his Honour Judge Rummery took into account pursuant to s 16BA of the Crimes Act (Cth) a further offence under s 82(1) of the Proceeds of Crime Act of being in possession of moneys reasonably suspected of being the proceeds of crime. 5 On the first charge the applicant was sentenced to imprisonment for six years eight months to date from 26 June 1998, the date on which the applicant was found guilty and was taken into custody, with a non-parole period of four years eight months. On the second charge the applicant was sentenced to a fixed term of imprisonment of 15 months, also to date from 26 June 1998 and hence to be served concurrently with part of the non-parole period of the sentence on the first charge. 6 The facts of the offences were concisely stated by Judge Rummery in his remarks on sentence, in a way which has not been challenged on the hearing of this application. 7 On 14 October 1997 the applicant was arrested at her place of work in the central business district in Sydney. She had $6,000 in her handbag. The applicant's possession of this sum was the subject of the second charge in the indictment. Later the same day police searched the applicant's bedroom in her home at Matraville and found 168.6 grams of a substance, which on analysis was found to contain 139.9 grams of pure heroin, in a plastic bag in the wardrobe in the bedroom. Police also found a set of scales and a number of small clipseal plastic bags of a kind frequently used by persons dealing in prohibited drugs. 8 The facts of the offence which Judge Rummery took into account in sentencing the applicant were that between 22 May 1997 and 2 October 1997 she had participated in the remittance overseas by 31 separate transactions of a total sum of $347,316.57, the role played by the applicant consisting of taking cash to various banks and arranging for telegraphic transfers of amounts of money overseas. 9 In his remarks on sentence Judge Rummery referred to the principal subjective circumstances of the applicant. She was born in Chile on 1 February 1977, the second of three children. Her parents were divorced when she was four years old. She came to Australia with her family in 1987, spending a holiday with her mother's extended family in Australia. The members of the family in Australia applied for the applicant's family to be permitted to reside in Australia and permission was granted in 1990. The applicant completed her secondary education in Australia and undertook TAFE studies in office administration, computer studies and bookkeeping. Soon after leaving school she worked for a man named Juan Francisco Uzabeaga on a job placement. She became permanently employed in Uzabeaga's business, a business known as MP Communications, which acquired business premises at Wynyard. The business was carried on by a company in which Uzabeaga and the applicant were the only directors and the only shareholders with Uzabeaga holding the majority of the shares. The principal ostensible business carried on by the company was the sale of mobile telephones. 10 In 1996 the applicant entered into a sexual relationship with Uzabeaga, which continued until her arrest. Uzabeaga was a middle aged, married man, also from Chile. The applicant's mother regarded Uzabeaga as exploitative and manipulative and counselled her daughter, unsuccessfully, against continuing the relationship with him. After the applicant was arrested she was granted bail and she remained on bail until the jury found her guilty at her trial. 11 Much of the sentencing judge's statement of the subjective circumstances of the applicant was taken from a pre-sentence report prepared by a Probation and Parole officer. The sentencing judge also referred to the officer's opinion that "the offender presents as mortified and traumatised by her experiences of incarceration. She acknowledged that when she realised that she had been trapped she felt quite anxious and isolated and was fearful for her own safety." 12 In his remarks on sentence Judge Rummery referred to a letter in a sealed envelope relating to assistance provided to the authorities by the applicant. Having read the letter, his Honour stated that he was satisfied that the applicant was entitled to some discount in being sentenced, by reason of the assistance she had provided. As is usual, his Honour did not give particulars of the assistance in his remarks on sentence. It has not been suggested on the hearing of this application that the applicant was not entitled to a discount in sentencing by reason of the assistance she had provided or that the amount of the discount allowed by his Honour was inappropriate. 13 The steps taken by Judge Rummery in arriving at the final sentence for the offence charged in the first count, which his Honour regarded, correctly, as the more serious offence and as being the sentence which should reflect the total criminality of the applicant, were as follows. Taking into account the objective facts of the offences and the subjective circumstances of the applicant, his Honour considered that an appropriate starting point, before any adjustment, would be imprisonment for a term of 14 years. His Honour then made a reduction "in the order of one-third", so as to take into account the absence of remissions in New South Wales (see s 16 F of the Crimes Act). His Honour then applied a discount of "slightly less than 30 percent" for the assistance provided by the applicant and thereby arrived at a head sentence of six years eight months. His Honour then said: "Considering the prisoner's prospects of rehabilitation, given her young age, the fact that she is without previous convictions, her antecedents generally, the support she has from her family, I assess her prospects of rehabilitation at higher than average. This assessment I take into consideration in fixing a non-parole period." 14 His Honour then fixed a non-parole period of four years eight months, being 70 percent of the head sentence. 15 The first submission made by counsel for the applicant was that the starting point of 14 years adopted by his Honour was too high for an offence of possession of a trafficable quantity only of heroin of 139 grams, in circumstances where the offender had not been shown to have been herself involved in the importation, even allowing for the fact that the sentence his Honour was imposing was intended to reflect the total criminality of the applicant, including that manifested in the applicant's two offences of being in possession of moneys reasonably suspected of being the proceeds of crime. It was submitted that the applicant's criminality in being in possession of the heroin should be regarded as that of a middle level drug distributor in possession of a trafficable quantity of a prohibited drug for the purposes of supply. It was further submitted that sentences imposed for offences of that kind under the Drug Misuse and Trafficking Act should be taken as affording some guidance to the sentence which should properly have been imposed on the applicant. 16 In written submissions and orally at the hearing of the application, counsel for the Crown conceded that the starting point of 14 years adopted by his Honour was too high. In my opinion this concession was properly made and, accordingly, I am satisfied that error in the sentencing process has been established. 17 The second submission made by counsel for the applicant was that his Honour had erred in setting the non-parole period as high as 70 percent of the head sentence. In written submissions counsel referred to the part of his Honour's remarks on sentence which I have already quoted, in which his Honour said that he assessed the applicant's prospects of rehabilitation as being higher than average and said that he would take this assessment into account in fixing the non-parole period. It was submitted on behalf of the applicant that his Honour had clearly intended to set a non-parole period which bore a lower than average proportion to the head sentence. Yet his Honour had actually set a non-parole period which bore a high proportion to the head sentence. 18 I consider that this submission also has been made good. This Court has not always spoken with one voice on what should be the usual range for the relationship between the non-parole period and the head sentence in the sentencing of Commonwealth offenders. See, for example, R v Bernier (1988) 102 A Crim R 44; R v Behar (NSWCCA 14 October 1998 unreported); R v Stitt (1988) 102 A Crim R 428. However, the authorities do show that a non-parole period of 70 percent of the head sentence, if within range, is towards the top, and not the bottom, of the range. 19 In the present case the sentencing judge clearly intended, for reasons which his Honour stated and with which I agree, to set a proportionally lower than normal non-parole period, yet his Honour set a non-parole period of 70 percent of the head sentence, which was a proportionally higher than normal non-parole period. 20 Although his Honour clearly understood that the applicant was to be sentenced in accordance with the Commonwealth Crimes Act, and not in accordance with the New South Wales Sentencing Act, it would appear to me that his Honour was influenced in sentencing this Commonwealth offender by what is common sentencing practice under the New South Wales Sentencing Act. Under s 5(2) of the Sentencing Act the additional term of a sentence is not to exceed one-third of the minimum term unless the court decides there are special circumstances and it is fairly common practice to impose sentences in which the minimum term, that is the period of imprisonment which the offender must serve, is 75 percent of the total sentence. A sentence imposed under the Sentencing Act in which the minimum term is only 70 percent of the total sentence might properly be described as a sentence in which the minimum term is proportionally lower than usual. However, as I have noted, in sentencing for Commonwealth offences under the Crimes Act (Cth) a different sentencing practice has developed. 21 In the present case I consider, having regard to the matters which his Honour himself identified in his remarks on sentence, the non-parole period should have been fixed at or about 60 percent of the head sentence. 22 As error has been demonstrated, it is necessary for this Court to re-sentence the applicant. 23 I have already referred to the objective facts of the offences and the subjective circumstances of the applicant. The point really at issue between the parties was what starting point the Court should adopt in sentencing the applicant. Counsel for the applicant suggested a starting point of between four to six years. Counsel for the Crown suggested a figure in the vicinity of 11 to 12 years. 24 It would seem to me that the starting point which should be adopted is a figure in the vicinity of the figure suggested by counsel for the Crown 25 Earlier in this judgment I summarised the arguments of counsel for the applicant in support of the submission that the starting point of 14 years adopted by his Honour was too high. I also noted the Crown's concession that a starting point of 14 years was too high and my opinion that this concession by the Crown was properly made. However, I do not accept that the applicant's criminality was merely that of a drug dealer in possession of a trafficable quantity of heroin of 139 grams, who had not herself been shown to have been involved in any importation of drugs. The sentencing judge said in his remarks on sentence that the ostensible business of the company for which the applicant worked was the selling of mobile telephones. It is, in my opinion, clearly implicit in his Honour's remarks that his Honour was satisfied that the real business of the company was the importation of prohibited drugs. The applicant was one of the two directors and shareholders of the company, the other director and shareholder being Uzabeaga, for whom she was working and with whom she was having a sexual relationship. It can be inferred, in my opinion, that the applicant was aware of the real business being carried on by the company. Furthermore, the applicant had on numerous occasions remitted money overseas and by asking for the further offence to be taken into account in sentencing her acknowledged that these moneys were the proceeds of crime. She should be taken as knowing that the moneys were the proceeds of sales of prohibited drugs and the remittances were payments to the overseas suppliers of drugs which had been imported into Australia. 26 If a figure of the order suggested by counsel for the Crown is selected as a starting point and an appropriate deduction is made by reason of s 16G and a further appropriate deduction is made for the assistance provided by the applicant, one arrives at a head sentence of approximately five years. It seems to me that would be an appropriate head sentence. If the non-parole period is fixed at 60 percent of the head sentence, then a non-parole period of three years is arrived at. 27 I would propose that leave to appeal be granted, that the appeal against sentence be allowed, that the sentences imposed by his Honour Judge Rummery on 12 November 1998 be quashed and that in lieu of those sentences the applicant be sentenced on the first count to a term of imprisonment of five years commencing on 26 June 1998 with a non-parole period of three years commencing on 26 June 1998 and expiring 25 June 2001 and that the applicant should be sentenced on the second count to a fixed term of imprisonment of 15 months, to be served concurrently with the sentence on the first count. MEAGHER JA: I agree. KIRBY J: I also agree. MEAGHER JA: That will be the order of the Court. **********

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