R v Meggett

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: The prisoner has adhered to the plea of guilty entered at his committal to one count of importing into Australia prohibited imports to which s 233B(1)(b) of the Customs Act applied, namely a quantity of cocaine in an amount not less than the commercial quantity of 2 kgs applicable to that substance. The maximum available penalty for that offence is imprisonment for life. 2 The facts giving rise to the offence, which involved a massive 171.2793 kgs of pure cocaine contained in a bulk seizure 244.8 kgs, with an estimated street value of $40m to $50 may be briefly stated. 3 On 7 December 1998, agents of the Australian Federal Police, in conjunction with officers of the Australian Customs Service seized a Boston whaler located near the southern boat ramp of the outer harbour of Coffs Harbour. It had previously been launched from a 52 foot ketch, "Maeva Chiqui", sometimes referred to as the "Maeva", which had been kept under surveillance for some little time prior to its arrival in Australian waters from Tonga. 4 This surveillance and investigation had begun in relation to persons associated with the sloop "Tvareg", which had arrived at Lord Howe Island from Tonga in January 1998, and which was still in port at Forster at the time of the arrival of the "Maeva". Investigators ascertained that the "Tvareg" had sailed from Central America, bound for Australia, via the Galapagos Islands, French Polynesia and Tonga. Persons associated with this vessel were identified, over the months following her arrival, as recipients of approximately AUD$6m which was then transferred from Australia to a number of financial institutions overseas. This money was suspected of being the proceeds of the sale of cocaine in Australia on behalf of one of the Columbian Medellin cartels. 5 Two persons of particular interest were identified, the first being Robert Scott Flavel, a dual British/Australian passport holder currently a resident of Florida in the United States; and the second being Jose Manuel Campillo, who was found to have deposited a little more than half a million dollars in cash in a financial institution for remittance overseas. This sum had, in fact, been seized by the Australian Federal Police in July 1998. 6 In November of that year, investigators learned that arrangements had been made for one Beatriz Gonzalez-Betes Suarez, (hereafter referred to as Gonzales), to travel to Australia and with the assistance of Campillo, to go on to Lord Howe Island, to await a vessel inbound for Australia. 7 Some days later Flavel flew into Sydney and contacted Gonzales. As a result of this communication she and Campillo returned to Sydney from Lord Howe Island. Campillo next went to Taree where he had previously stored a small boat trailer, while Flavel and Gonzales went to Coffs Harbour. Campillo joined them there a few days later with the boat trailer. 8 On 29 November 1998 a conversation between Gonzales and Flavel was monitored in which they discussed a suitable place for landing a dinghy in the Coffs Harbour area. On 4 December 1998 Gonzales and Campillo left Coffs Harbour and returned to Sydney, dropping off the boat trailer at Taree. On the following day, the "Maeva" arrived at Coffs Harbour under the command of the prisoner. Flavel met the prisoner upon arrival before travelling on to Sydney where he made plans to fly out to Hong Kong. 9 During the evening of 6 December 1998, Flavel returned to Coffs Harbour. Gonzales and Campillo drove to Taree, picked up the boat trailer and continued on to Coffs Harbour where they arrived at approximately 11.30 am on 7 December 1998. 10 Earlier that morning Flavel had met the prisoner at the marina. He was later seen to enter the vehicle in which Gonzales and Campillo were travelling. Several conversations between them were monitored electronically in the course of which Flavel said that, as a video camera was located at the top of the Customs building, the boat would have to be brought around by the beach. Campillo said that he understood it would be taken to the boat ramp. He was worried that while Flavel did not want the other two to be seen walking up to a deserted beach, the boat would have to arrive in the open, otherwise it would look odd. 11 It was agreed that the boat would arrive around lunch time. There was discussion concerning the positions of the Customs video camera and what would happen if Customs stopped either Flavel or the prisoner with the boat. 12 A short time later Flavel left the vehicle and went to the Coffs Harbour airport where he was arrested by Australian Federal Police. A short time later the prisoner was seen to lower the Boston whaler from the marina into the water, and to take it across the outer perimeter of the harbour to a boat landing ramp, where Gonzales and Campillo were waiting with the boat trailer. All three were seen to load and secure the whaler on that trailer. They were arrested a short time later. 13 Examination of the whaler revealed that 225 packages, each containing approximately 1 kg of cocaine in bulk weight, had been concealed within the skins of its hull. 14 On being spoken to by police the prisoner made full admissions as to his involvement in the importation. In the course of the ERISP that followed his arrest he disclosed he had been asked to bring the "Maeva" to Australia in about October 1997 by a Spanish citizen, one Julian Delprado, also known as Montero. He said he had joined the vessel in Cuba in January 1998, and sailed it to Bonaire in the Netherlands Antilles and then on to Colon in Panama. While in Panama, it was taken over by Flavel for about a week. The prisoner knew that the Boston whaler would be exchanged for another whaler in which the cocaine would be secreted, but he did not know where the vessel was taken for that purpose. After its return, he set sail for Australia. 15 He remained in contact with Flavel during the voyage, meeting him in Tonga and in the Galapagos Islands and speaking to him by telephone. Repairs had to be made during the voyage as a result of breakages, and also as a result of the consequences of a lightening strike in port before the vessel had left Panama. Gonzales, he understood, had previously been an owner of the "Maieva". He had been given a telephone number by Flavel through which he could contact her upon his arrival. 16 He acknowledged being aware that he was bringing cocaine into Australia but he said that he had no idea of the quantity involved. He acknowledged that he and Flavel had been transporting drugs for about four years, and that he had made five or six such trips from the Caribbean to Spain. On each occasion, cocaine was concealed within a Boston whaler carried aboard the vessel used. He had received various sums for these trips which had been paid into his bank account. 17 Somewhat naively but consistently with his dependent personality, he said in the course of these interviews that he had rationalised his behaviour on the basis that he was involved, not in drug smuggling, but in smuggling currency and/or gold. The crew he had recruited in Panama, he said, knew nothing of the drugs. So far as they were aware, the voyage was entirely innocent, the purpose being to ferry the yacht to Australia for a refit and resale. When interviewed, each member of the crew confirmed that to be the case. They were not charged. 18 The prisoner, who is a 25-year-old unmarried male citizen of the Republic of South Africa, gave considerably more information, as to his own background and the offence in an extensive debriefing by the Australian Federal Police, conducted over a period of twenty days or so. This followed his agreement to assist the authorities in providing information concerning the organisation for which he had been working and in undertaking to give evidence for the Crown in the prosecution of his co-accused. This information has been disseminated, where appropriate, to cooperating law enforcement agencies. 19 The induced statement into which the information has been reduced shows that, after leaving school with the equivalent of the Higher School Certificate, the prisoner served 12 months as a conscript in the South African navy, carrying out duties as a quartermaster. After a further 15 months working in South Africa in the automotive repair and hospitality industries, and also for a while with the Department of Mineral and Energy Affairs, he spent a year or so travelling and living an alternative lifestyle in the Pacific and the Caribbean. While travelling in the Caribbean and attempting to make ends meet, he came into contact with Flavel, who introduced himself as a professional captain who chartered and ferried boats for owners in the Caribbean and other waters. A close friendship developed and Flavel eventually recruited him to sail with him to Spain in late 1993 as crew in a vessel "The Seabird". This voyage he subsequently realised had been a drug run, although he was unaware of it at the time. 20 It was at the end of this voyage, for which he was paid $US1,500, that he met Julian Delprado for the first time. It was the precursor to the six subsequent crossings he made from the Caribbean to Spain on the vessels "Seabird: and "Kudra". After several such voyages he learned that they were drug runs, the modus operandi for which was the same insofar as Flavel took the whaler or tender of the vessel away for a short time by himself before they set sail. On each of those occasions he had returned with a replacement whaler into which the cocaine had been concealed. That whaler was then discharged at the port and marinas of arrival, stripped of cocaine and returned or replaced. 21 Initially the prisoner's role was that of associate, chauffer, assistant and/or companion for Flavel, work to which he was no doubt drawn by his sense of adventure, his youth and the culture of those who frequent the ports and marinas of the Mediterranean, Caribbean and similar places. However, as time progressed his responsibilities increased to the point where he was placed in command of one such vessel. Before his first voyage as captain, he was informed that all expenses would be paid by Delprado, and he was given a contact telephone number in the United States in case of problems as well as a contact number for Delprado in Spain. He was instructed as to the manner in which he could present himself as a legitimate professional boat captain, employed to ferry a yacht to Spain, and how to deal with any problems encountered with Customs, Immigration or other government agencies. 22 Prior to the voyage that became the subject of these proceedings, the prisoner was given a number of instructions in Cuba by Gonzales whom he knew as Chequi. She and her husband Carlos had been the owners of the "Maieva" which, it seems, was purchased from them for this voyage. She provided a telephone number of a woman Gloria, in Columbia, that he was to use if he wished to contact Delprado. She accompanied him, along with Carlos, for the first leg of the voyage from Cuba to Benaire. Gloria contacted him while he was in port in Benaire and informed him that Delprado would be meeting him there. When Delprado arrived, he offered the prisoner $400,000 to make the run. The prisoner said that he was prepared to do it for $300,000 to $350,000, a significant sum but one which no doubt represents a very small proportion of the anticipated profits had the cocaine been safely delivered into Australia and placed into the market. 23 I have outlined the circumstances disclosed in the induced statement, not in order to sentence the prisoner for the other offences which he may have committed or in aggravation of his criminality in respect of the offence to which he stands for sentence. The material so disclosed is relevant only insofar as it throws light on where the prisoner stood in the hierarchy of the organisation involved in this importation, insofar as it might help to explain how it was that he became involved in it, and insofar as it shows his state of knowledge. Additionally, of course, it is highly relevant as a subjective matter concerning an assessment of the value of his assistance to the authorities. The information I have recorded is necessarily a brief summary of a very complete disclosure in relation to the various voyages undertaken, and the people involved. 24 The use of a statement of this kind is subject to the restrictions noted in Raz (Court of Criminal Appeal New South Wales 6 November 1992). It was here relied upon by the prisoner as throwing light on his subjective criminality, and particularly in relation to his offer of assistance. 25 I am satisfied, upon the evidence placed before me, that the prisoner's objective criminality on this occasion was very substantial. He was in no doubt as to what he was carrying. Having regard to the number of voyages that he had undertaken, the personnel and modus operandi involved, the amounts of money that he had been receiving and was offered for this voyage, and the fact that threats had earlier been made to him to maintain his loyalty and silence, he must have realised that he had become involved in an international narcotics operation of considerable magnitude. 26 His criminality exceeded that of the person traditionally employed as a courier to bring in relatively small amounts of narcotics on his or her person. This was a major drug run into which he had walked with his eyes open. Having regard to the responsibility which he accepted to organise a crew, to take command of the vessel, to ferry it and its cargo across the Pacific, to liaise with the principals on the way and to effect its delivery into Australia, he occupied a rung that was above that of a mere courier. It was, however, short of a mid level executive or organiser. That role fell to those who made the arrangements for the acquisition of the cocaine, its delivery to him and its ultimate distribution upon behalf of those at the top of the organisational tree. 27 He was however, on any view, an indispensable part of this operation. Without the willingness of a person such as himself to exercise the skills needed for a long sea voyage and to take the risk of detection, importations of this kind could not occur. The significance of that factor has long been recognised, in sentencing couriers as well as in sentencing those placed in more senior levels of responsibility. Although not principals, those persons must expect significant penalties because of the imperative for a strong element of personal and general deterrence, it being accepted that if starved of such persons, cartels such as those behind this operation will collapse. See Le Cerf (1976) 8 ALR 349 at 351, Laurentiu (1992) (63 Crim R 402, and Thiagarajah (1989) 41 A Crim R 45 at 49. 28 I return to the subjective circumstances of the prisoner and in particular to the matters which I am required by s 16A of the Crimes Act 1914 (Cth) to take into account. 29 But for his involvement in narcotics, the prisoner is not a person who has revealed himself to be one of innate criminality. I believe that after this experience he is unlikely to reoffend. His elder sister, who came from South Africa to give evidence, described him as a person who is generally law-abiding and supportive of his family. There was also tendered a reference from the proprietor of a construction company which had employed him as a Project Manager in South Africa during 1997. He was described in this reference as a responsible employee who had displayed honesty, integrity and a capacity to manage staff. 30 While these matters do point to his good prior character, at least in those respects other than that with which brings him before this court, that is a matter of limited moment for offences of the kind with which I am now concerned. That is, for the reasons explained in Leroy (1984) 2 NSWLR 441 at 466-467, Ferrer-Esis (1991) 55 A Crim R 231 at 238, Chai (1992) 27 NSWLR 153 at 201, and Smith (Court of Criminal Appeal New South Wales 20 August 1998). 31 The fact that the prisoner will be required to serve a sentence separated from his family in a country, that is not his own, is similarly of limited relevance, since this is but part and parcel of the risk that those who run drugs internationally must be taken to accept, Bushell (Court of Criminal Appeal New South Wales 17 July 1998). The prisoner has no dependents and the only hardship of any moment, that his family might suffer, relates to the expense that they may incur in travelling to Australia from South Africa to see him while he remains here in custody. 32 Subject to one matter, there are no features of his background, age, means or physical or mental condition that call for particular attention. The one exception relates to the conclusion reached by Mr Ferrier, following psychometric assessment, that he has a dependent personality to the point of a personality disorder which makes him easily led and likely to look to others for guidance. This opinion was said by his sister to sit very well with her own assessment of him, and with the fact that, due to the death of his mother when he was quite young and the number of relationships in which his father, a man apparently of a somewhat rigid personality, became involved, the prisoner as the youngest of four siblings, was deprived of the emotional support or the parental guidance he needed. 33 This goes some of the way, at least, to explain why he took up with Flavel. That man seems to have emerged as something of a mentor to him and a ticket to an exciting lifestyle, albeit one with a dangerous price tag attached to it. It also explains why he returned to take command of the "Maeva", even though he wished to break from this form of work and spent much of 1997 in lawful activities in South Africa. 34 Mr Ferrier also thought that the prisoner appeared to be depressed and anxious due to his present predicament. That is entirely understandable and so long as it is kept under review, it does not call for any particular consideration. 35 The other matters I have outlined, however, are of relevance for an assessment of his prospects of rehabilitation, which I accept are generally favourable. He has skills as a seaman, in building and in repair work. Although his conviction is likely to create something of a barrier to further international travel, there is no reason to suppose that he cannot return to gainful and lawful work in South Africa and possibly elsewhere. 36 For the purposes of s 16(A)(2)(j) of the Act I state that in this regard I am satisfied that the prisoner's experience to date and the sentence that must be imposed upon him will have a significant deterrent effect. 37 The prisoner is entitled to a considerable discount for the fact of his plea of guilty which was entered at the first moment: Winchester (1992) 58 A Crim R 345 and Kogelbauer 54 (1992) 65 A Crim R 357. In that regard it is the fact that, but for the admissions made on his arrest, it would have been exceedingly difficult, although not necessarily impossible, for a case to have been made out against him. The relevance of that is emphasised in the decisions in Ellis (1986) 6 NSWLR 603 and Dodd (1991) 57 A Crim R 349. 38 The prisoner is also entitled to a very considerable discount for the assistance he has given, in making a full and frank disclosure in relation to his activities, as well as those of his associates and in undertaking to give evidence against those co-offenders. The information he has provided has been assessed as having a very high degree of reliability, and it has opened a very valuable window for local and overseas law enforcement agencies in the operations of the group for whom he worked. So far as this shipment is concerned, it helps to identify some of those who are either principals or close to holding that status. 39 The assistance so far provided, and that promised for the future, can only be categorised as real and of such a high order as to attract a very significant discount in accordance with the principles discussed in Cartwright (1989) 17 NSWLR 243 at 253. It will mean the prisoner will almost certainly be required to spend most, if not all, of his sentence on protection with the consequent hardship that this will attract. It will also mean that he will be in permanent danger of reprisals from those who are associated with the powerful and dangerous cartels which are behind the cocaine trade. There is no doubt that they are capable of exerting their will and exacting revenge in other parts of the world, and of influencing law enforcement and other authorities in their activities. 40 The extent of the assistance both past and future is such that I would discount the sentence otherwise appropriate by a factor of 50 percent. Although that is a considerable discount, there is a very real public interest in encouraging people, such as the prisoner, to assist law enforcement authorities in their fight against those behind the drug trade. In this respect I have had regard to the decisions of the Court of Criminal Appeal in Chu (16 October 1998), Behar (14 October 1998) and Raz (17 December 1992). In those decisions it was noted that the discount, currently given in this State for assistance, has ranged between 20 and 50 percent of the sentence that would otherwise be imposed. The present case ranks at the top end of the range in this regard. It seems to me that it is appropriate for the greater proportion of that discount to be extended to the future assistance, because of its potential utility in the extradition and prosecution of the co-offenders and in the possible recovery of the proceeds of this offence and of similar offences committed by them. 41 I accept that by his plea, by his offer of assistance and by his evidence before me, the prisoner has demonstrated real contrition for the offence, although I also note that he walked into it with his eyes open. There are no other matters specified in section 16(A) of the Crimes Act 1914 (Cth) that the prisoner can call in aid in reduction of his sentence. 42 As I have observed, the maximum penalty prescribed for the offence of which he has been convicted is imprisonment for life. I am satisfied for the purposes of s 17A of the Act, in the light of the maximum prescribed penalty, that the present offence can only be dealt with by way of a sentence of imprisonment. The reason for that lies in the seriousness of the present offence, and in the fact that it is an offence that calls for a substantial component of personal as well as general deterrence for all those who are minded to bring into this country the narcotic substances that are so destructive of the community and particularly of its young. 43 The quantity of cocaine here involved was enormous as is witnessed by its estimated street value. Further, it might be expected that, had it reached the market place, it would have generated very significant sums of money that would then have been unlawfully laundered and repatriated out of this country to those behind this evil combine. The prisoner, of course, is not responsible for that aspect of the venture, but it is inevitably the fact that the unlawful proceeds of the crime would have been laundered and repatriated from this country. 44 Having regard only to the objective circumstances of the matter, this is a case which would in my view properly attract, for a person occupying the position of the prisoner in the importation, a sentence of imprisonment in the order of thirty years. In coming to that conclusion I have had regard, in particular, to the decisions of the Court of Criminal Appeal in Ng, 25 July 1991, Tan 1995 78 A Crim R 300, Wah 13 April 1995 Tamaya and Martinez 24 November 1995, Lara Gomez 24 April 1996 as well as the decision in Wangsaimas (1995) 82 A Crim R 530. 45 In fact, that last-mentioned case is one that bears a degree of similarity to the present case in terms of objective criminality, insofar as the offender had been employed as the captain of a vessel that had brought 89 kgs of pure heroin, having a street value in the order of $300m into this country. He had pleaded guilty but had not provided any assistance. He and two others who had been entrusted with the shipping of the drug, and its delivery upon arrival in Australia, were each sentenced to life imprisonment. Upon appeal those sentences were upheld, although non-parole periods previously refused had been fixed. In the case of the captain of the vessel, that was for a period of 22 years. 46 I have also had regard to the very helpful review undertaken by Hulme J in Spiteri (1999) NSW CCA 3, of cases involving the importation of heroin in quantities well in excess of the commercial quantity applicable for those substances. Although only a few of those cases involved shipments of a quantity of drugs exceeding or approaching the quantity in the present case, they do show that the sentencing range, for an offence of this kind, is particularly severe for those occupying levels of significant responsibility. Life sentences to which section 66G does not apply, Lee Vanit (1997) 190 CLR 378) but for which a non-parole period is to be fixed, or sentences of imprisonment in excess of 25 years to which section 16G does apply, are realities for those who are involved in the large scale importation of narcotics. 47 From that starting point, I observe that section 16G of the Crimes Act requires adjustment to the head sentence, as well as to any non-parole period that is set in relation to it, so as to allow for the absence of any system of remissions in this State (see El Karhani (1990) 21 NSWLR 370 and Robertson Court of Criminal Appeal New South Wales 6 November 1998). 48 The sentence, as adjusted for that factor, needs to be further adjusted to allow for all of the remaining favourable subjective circumstances I have mentioned, but most particularly, those relating to the assistance past and future for which the discount previously mentioned is appropriate, and also for the early plea of guilty of the prisoner. In giving effect to those adjustments, however, I observe that the process is not to be reduced to a precise exercise in mathematics. Sentencing does not permit of such a structured approach (see Budiman Court of Criminal Appeal New South Wales September 1999) and Lett 27 March 1995. Moreover, several of the subjective factors identified in this case have an overlapping effect. To give each its full weight in turn could lead to a sentence which does not reflect the true criminality of the offender, and may well result in one which does not comply with section 16A(1) and 2(K) of the Act. 49 In the end, the sentence must be one which ensures that the prisoner is adequately punished, and which is not so far out of touch with the circumstances of the case as to constitute an affront to the community (see Gallagher (1991) 53 A Crim R 218 and Pang(1991) CCA 4). 50 Making proper allowance for the subjective factors pertinent to this exceptional case, I have reached the conclusion that the sentence should be one of imprisonment for 10 years, to date from 7 December 1998 and that a non-parole period should be set of 6 years to commence from the same date. In accordance with section 21E of the Crimes Act 1914 (Cth) I specify that, but for the undertaking to give future assistance, the sentence would have been one of imprisonment for 16 years, with a non-parole period of 12 years. 51 Accordingly, I sentence you, Gregory Paul Meggett, to imprisonment for 10 years to date from 7 December 1998. I fix a non-parole period of 6 years to date from the same date. The earliest date on which you will be eligible for release on parole will be 6 December 2004. 52 I am bound to explain to you what the effect of the sentence is. It means that you will serve a minimum term of imprisonment of six years before being eligible for release on parole, which release would be available for a period of up to a further four years. Neither of those periods is subject to any further reduction for remissions. That reduction has already been taken into account by me in fixing the periods which would otherwise have been appropriate for your offence. It may well be that after six years you will be deported but if not, you may be released on parole. If so that would be subject to supervision as well as subject to various conditions, including a condition that you be of good behaviour. If during any period of release on parole you reoffend or breach any of the conditions of parole, then that parole may be revoked, in which event you would be liable to return to prison to serve the balance of the sentence. Alternatively, the parole may be amended to provide a partial return or altered provisions as to the supervision or conditions to which you would be subject. 53 I further inform you that if you retreat from your undertaking to give evidence against the co-offenders, and to provide the assistance to the authorities that you have promised to give, then the Commonwealth Director of Public Prosecutions will be entitled to appeal to the Court of Criminal Appeal which may then resentence you. In so doing it will take into account the remarks that I have made as to what the appropriate sentence would be but for your undertaking to assist into the future. It will be a matter for that court to determine, in all the circumstances, what an appropriate substituted sentence would be.

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