Court of Appeal (Qld)|1992-09-10|Before: Davies JA, Moynihan J, Ambrose J

R v Forero-Forero [1992] QCA 335 (10 September 1992)

COURT OF APPEAL [1992] QCA 335

DAVIES JA: These are two applications for leave to appeal against sentence which we heard together. We heard them together because they were applications for leave to appeal against sentences for offences in which the offenders were co-offenders. Each was convicted of possession of prohibited imports, namely cocaine, and each was also convicted of being knowingly concerned in the importation of prohibited imports, again cocaine. Each pleaded guilty.

I shall deal first with the application with respect to Bolanos-Moreno.

He was 47 or 48 years of age. He was sentenced by the sentencing Judge to a period of 12 years imprisonment with a non-parole period of 6 years on the offence of being knowingly concerned in the importation of cocaine and 6 years imprisonment with a non-parole period of 6 years on the possession offence. He had, at the time of sentence, already served 10 months in custody and pursuant to section 19AA of the Crimes Act 1914. That period should be given the same weight in the case of an offence against Commonwealth law as an offence against State law.

Bolanos-Moreno had previously been convicted in the United States of an offence of conspiracy to import cocaine into the United States. He had been sentenced to a period of 10 years imprisonment for that offence. He arrived in Australia on 3 July 1991 from Columbia. He was met by a man called Mike who apparently, but unknown to him, was a police agent. Mike had apparently, prior to his arrival in Australia, opened some post office boxes on the Gold Coast to which, as it turned out, the cocaine would be posted. They were of course opened in false corporate names.

It appears that Bolanos-Moreno either paid for himself to come to Australia or his fare was paid by someone unknown but not, in any event, by Mike, although Mike apparently paid for part of his accommodation on the Gold Coast, where he went to reside shortly after his arrival in Australia.

The offences were uncovered when in September 1991 police intercepted 5 letters, which were post marked in the United States of America, containing cocaine, a total of 108.2 grams of pure cocaine. These had been sent to the post office boxes to which I have referred. The arrangement apparently was that the other man, Forero-Forero, who arrived in Australia about a month after Bolanos-Moreno, would collect the letters from the post office boxes and take them to Bolanos-Moreno. He was to be paid $2,000 for coming to Australia to collect and deliver the envelopes and his airfares to Australia were paid. It is not clear whether that $2,000 was in Australian or American currency.

The cocaine in envelopes was collected by Forero-Forero at the post office boxes, or some part of it was - a total of 44 grams was collected, which we are told has a street value of between $44,000 and $88,000, the total quantity of 108.2 grams having a street value of between $110,000 and $220,000. Bolanos-Moreno was charged with possession of 44 grams of cocaine, and in the first instance he was charged with being knowingly concerned in the importation of the total quantity of cocaine. However, subsequently he was charged with and pleaded guilty to the offence of being knowingly concerned in the importation of the 44 grams found in his possession.

Bolanos-Moreno had 3 grounds of appeal to this Court, of which he pursued only one, that ground being the second-named ground: that the learned sentencing Judge acted upon a view of facts which was unavailable to him in that (a) it was unsupported by evidence and (b) in conflict with submissions by counsel for Bolanos-Moreno which were not relevantly in dispute. I have quoted from the grounds set out in the notice of appeal. The alleged factual error of the learned sentencing Judge, pointed to by Mr Nase who appeared for Bolanos-Moreno, was in the following terms:

"You Bolanos-Moreno were more than a courier. Probably you were sent here to represent the international interests involved and ensure that the Australian end of the operation was properly conducted."

That statement in the context in which it appears was, in my view, correct on the evidence which was before His Honour. The context in which it appears includes the following passage which preceded that passage:

"You, Bolanos-Moreno played a more significant role than you, Forero-Forero. I accept that you Forero-Forero were no more than a courier. The fact that you could not speak English meant that there was little else you could do"

"You were clearly above Forero-Forero, but the exact nature of your relationship with the person referred to as Mike is not clear. Each of you was part of a fairly sophisticated drug-smuggling operation and neither of you can be regarded as a courier caught during a one-off importation of narcotic drugs. Your apprehension was due in no small way, it would seem, to information provided to the Australian Federal Police by a person within the organisation."

What His Honour was saying, in my view, was that the role played by Bolanos-Moreno was greater than that played by Forero-Forero, and in that he was clearly right.

Bolanos-Moreno, as the facts before His Honour showed, had some knowledge of the total arrangement which was to be made concerning him and Forero-Forero. He arrived in Australia a month before Forero-Forero. He had some knowledge of the English language, which Forero-Forero lacked. He had been imprisoned in the United States with a person through whom he had been enlisted in this operation. Bolanos-Moreno was then serving a term of imprisonment for the offence of conspiring to import drugs. And, in my view, he must have known that this elaborate plan was not just for this occasion but was part of a plan to set up an operation having some continuing force.

There is some evidence that the operation was set up originally with what were called "dummy runs" in which, initially at least, envelopes posted to the post office addresses did not contain cocaine or was all a trial run to see if the drug could be imported without detection. Generally the operation appeared to have some sophistication.

I also have difficulty in understanding the presence here of Forero-Forero, except on the basis that Bolanos-Moreno was not to be involved as a mere courier. He was not to be the man who was going to be, if the worst came to the worst, caught in the process of collecting the cocaine from the post office boxes.

Bolanos-Moreno, therefore, played - as His Honour thought - a much more substantial part in the operation than Forero-Forero. It is true that he pleaded guilty though he did so in circumstances in which there was a very strong case against him and it might be thought that there was little else he could have done. and, in my view, there is no great account which should have been taken of his guilty plea.

It is correct that account should be taken of the 10 months he has spent in custody but, in my view, His Honour has already done so. As I said earlier, the sole basis upon which this appeal was placed was on the basis of a mistake of fact made by the learned sentencing Judge. In my view, the learned sentencing Judge did not make the mistake which it was asserted before us he made.

In those circumstances and in view of the fact that although the sentence might appear high, I think His Honour took all the relevant factors into consideration and it is within the appropriate range of sentences for an offence of this kind. I would refuse the application of Bolanos-Moreno.

The other application on behalf of Forero-Forero was placed on a much more general basis. That is that the sentence which was imposed upon him as a mere courier was outside the appropriate range of sentences for offences of this kind. He was a man without previous convictions for offences of this kind but as has been said during the course of argument, this may be one case in which not a great deal of weight can be placed upon that because one would expect that, in most cases, the couriers would be likely to be people who have not been involved in offences of this kind before. He, it is true, was in serious financial difficulties and no doubt thought, perhaps with some desperation, that this was a way out of his financial difficulties, but that of course, is no excuse.

It is also true that he, as a man without command of the English language, will have difficulty in prison, but that is really caused rather by the accident of his being imprisoned here, rather than somewhere where he could speak the language, and I do not think any great account should be taken of that. He also has spent 10 months in custody, as I think I may have mentioned when dealing with the other application, and account must be taken of that.

In the end result, Forero-Forero was a man who did what he did for monetary gain. He was a man who, though he pleaded guilty, again did so in circumstances where it seems almost inevitable he would have been convicted in any event and, having regard to the authorities which have been cited to us, I think that the sentence which was imposed by the learned sentencing Judge, which was a sentence of 8 years imprisonment with a non-parole period of 4 years, was within the appropriate range of sentences for offences of this kind, and I would refuse that application also.

DAVIES JA: They are the orders of the Court, and adjourn the Court.

R v Forero-Forero [1992] QCA 335

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R v Forero-Forero [1992] QCA 335 (10 September 1992)

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