R v Reaves [2004] WASCA 106

Court of Appeal (WA)|2004-05-24|Before: Malcolm CJ

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : R -v- REAVES [2004] WASCA 106

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal practice and procedure - Sentencing - Crown appeal against inadequacy of sentence - Application by respondent for leave to appeal against sentence - Major importation of bulk cocaine equivalent to 707.1 kg pure - Parity of sentencing between three cooffenders sentenced to life imprisonment - Non-parole periods fixed having regard to respective roles reflecting degree of criminality and culpability - Sentence on Reaves increased from 25 years to life imprisonment and the nonparole period increased from 14 years to 18 years to reflect both his position in hierarchy and role in the commission of the offence

Crimes Act 1914 (Cth), s 16A, s 16G

Customs Act 1901 (Cth), s 233B, s 235, Sch VI

Respondent's application for leave to appeal dismissed

Appellant : Commonwealth Director of Public Prosecutions

Respondent : Commonwealth Director of Public Prosecutions

Bensegger v The Queen [1979] WAR 65

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295

R v Bradley (1997) 137 FLR 314

R v El Karhani (1990) 51 A Crim R 123

R v Gonzalez-Betes [2001] NSWCCA 226

R v Jackson [2003] QCA 31

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

1 MALCOLM CJ: This is an appeal against sentence by the Crown in the right of the Commonwealth. There is also an application for leave to appeal against sentence by the respondent to the Crown appeal whom I shall refer to as "Reaves".

2 On 15 January 2002, Reaves was convicted on his plea of guilty to the offence of importing a prohibited import contrary to s 233B(1)(b) of the Customs Act 1901 (Cth) (the "Act").

3 On 15 July 2002, he was sentenced by Wallwork J to imprisonment for 25 years with a non-parole period of 14 years to commence from 27 July 2001 being the date of his arrest.

4 The Crown appeals against the sentence on grounds as amended on 1 April 2003 that:

"1. The sentence imposed was manifestly inadequate in all the circumstances of the case.

PARTICULARS:

(a) The learned sentencing Judge erred in his assessment of [Reaves'] criminality by focussing on [Reaves'] position in the hierarchy as opposed to his role in the actual offence;

and

(b) The learned sentencing Judge erred by failing to impose a sentence that reflected the seriousness of the offence and the need for deterrence, both general and personal.

2. The learned sentencing Judge erred by having regard to the provisions of section 16G of the Crimes Act 1914 (Cth), in circumstances where that section is not applicable in Western Australia.

3. The learned sentencing Judge erred in principle by imposing a sentence that resulted in disparity between [Reaves] and the sentence imposed upon the co-offender, Suarez-Mejia."

5 The Crown seeks an order that the sentence imposed be quashed and a new sentence imposed.

6 There is also an application for leave to appeal against sentence by Reaves on the ground that the sentence of imprisonment for 25 years and the non-parole period of 14 years were manifestly excessive. The application by Reaves was made on 5 August 2002. Reaves' grounds of appeal were amended in relation to particulars in support of the ground and an amended notice of appeal filed on 11 July 2003. I will set out the details when considering Reaves' application.

7 The quantity of cocaine involved in the offence was 707.1 kg pure approaching 1000 kg in bulk with a street value between $104 million and $400 million. The commercial quantity of cocaine set out in Sch VI of the Act is a quantity of 2 kg or more. By any measure, this was a huge quantity of the relevant drug which had enormous potential for harm, if the importation had not been detected and the cocaine seized by the authorities. The quantity of the drug was 937.9 kg in bulk containing 707.1 kg net cocaine. The 707.1 kgs of the drug was some 350 times the commercial quantity applicable to cocaine and constituted by far the largest quantity of that drug imported into Australia to date.

8 Section 235(2) of the Customs Act provides that:

(a) a person commits an offence against subsection 231(1), section 233AC or subsection 233B(1); and

(b) the offence is an offence that is punishable as provided by this section;

the penalty applicable to the offence is:

(c) where the Court is satisfied:

(i) that the narcotic goods in relation to which the offence was committed:

(A) are a narcotic substance in respect of which there is a commercial quantity applicable; and

(B) consist of a quantity of that substance that is not less than that commercial quantity

...

a fine not exceeding [$750,000] or imprisonment for life, or both or for such period as the Court thinks appropriate."

9 Reaves appeared before the learned sentencing Judge in the Supreme Court on 15 January 2002 and pleaded guilty to the offence. Sentencing was adjourned because there were appeals pending by the Crown and by a co-offender, Suarez-Mejia, in relation to sentence. The learned Judge also considered that the decision of Cameron v The Queen (2002) 209 CLR 339, which was then pending before the High Court, would have some relevance in relation to the sentencing of Reaves.

10 On 23 April 2002, the Court heard sentencing submissions, but the proceedings were further adjourned to enable particulars of Reaves' criminal record overseas to be obtained. The proceedings were resumed on 10 July 2002. After submissions were concluded, Reaves was remanded in custody for sentence until 15 July 2002. On that date, he was sentenced by Wallwork J to imprisonment for 25 years with a non-parole period of 14 years to commence from 27 July 2001, being the date of his arrest.

11 In the meantime, Suarez-Mejia was convicted on his plea of guilty before Scott J on 4 December 2001 to the same charges as were alleged against Reaves of importing into Australia a commercial quantity of cocaine contrary to s 235B(1) of the Customs Act. He was sentenced on 7 December 2001 to a term of life imprisonment with a non-parole period of 20 years. Scott J also made an order confiscating the sum of $8000 which was found in the possession of Suarez-Mejia when he was arrested. The Crown appealed against the sentence imposed on the basis that the non-parole period of 20 years was inadequate.

12 Suarez-Mejia applied for leave to appeal against the sentence on the ground that the non-parole period was excessive, but that application was abandoned at the hearing.

13 The Court (Murray, Parker and Miller JJ) was unanimously of the opinion that the Crown appeal should be dismissed and that the application by Suarez-Mejia should be refused following the abandonment of the application. The judgment in R v Suarez-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577 was delivered on 17 July 2002.

14 In summary, the facts in relation to Reaves were that Reaves claimed he was owed some US$332,000 by a Colombian national. He said he was told that the only way he would get paid would be to pilot a ship containing drugs to Australia. Put shortly, he arranged the purchase of the ship, the "White Dove", recruited a crewman named Parrish and sailed the ship to Verde Islands where he met up with Suarez-Mejia. From there, he sailed the vessel to a point in the ocean where the drugs were transferred onto the White Dove on which were Reaves, Suarez-Mejia and Parrish. Approximately 1000 kg of cocaine was transferred mid-ocean in the southern Atlantic.

15 The White Dove then proceeded past the Cape of Good Hope, across the Indian Ocean towards the Western Australian coast. During the course of the voyage, Reaves had a number of telephone conversations with members of the land party which comprised two persons who were, on the Crown case, to collect the drugs when they were landed in Australia. The vessel arrived at Dulverton Bay, north of Geraldton, in the early hours of the morning of 27 July 2001. Reaves and Suarez-Mejia loaded the cocaine from the White Dove on two Zodiac inflatable dinghies and transported the cocaine ashore, where they concealed it beneath rocks on the beach. Reaves then returned to the White Dove, which was put on to auto pilot, the pumps reversed, ultimately put out to sea and scuttled. Parrish, who remained in control of the boat while Reaves and Suarez-Mejia were physically importing the drugs, disembarked before it was scuttled and came back to shore with Reaves and joined Suarez-Mejia on the beach.

16 All three of the offenders were arrested on the beach at Dulverton Bay at about 9 am on the same day after the cocaine had been unloaded. The Federal Police seized 38 bags of cocaine from under rocks on the beach. The contents of the bags were analysed by the Australian Government Analytical Laboratories and were found to contain 937.9 kilograms of cocaine consisting of 707.1 kilograms pure cocaine.

17 Upon his arrest, Reaves was conveyed to the Geraldton police station and initially declined to participate in a record of interview. Subsequently, however, he was interviewed by the Federal Police on 24 September 2001 at Hakea Prison.

18 It was contended by the Crown that on the admitted facts, and putting them in their best light as far as Reaves was concerned, he played a key role in what was then and is still the largest known importation of cocaine into Australia. The Crown did not submit that Reaves had any ongoing role after the importation.

19 It was accepted that Reaves was owed US$332,000 by a Colombian business person. He went to Colombia to try and get paid. It was made clear to him by the Colombian that he would get paid if a he piloted a boat to Australia for the purpose of importing drugs. He was originally to set up a bank account in Louisiana in the United States of America to facilitate the purchase of a boat to transport the drugs. He was unable to do so, notwithstanding that he used false documentation. He recruited one Joel Louis Parrish to do so. Parrish was charged with being knowingly concerned in the importation, but was subsequently acquitted. His defence was that he acted under duress by Reaves.

20 Subsequently, the "Colombians" transferred money to the bank account set up by Reaves. Reaves, with the assistance of Parrish, purchased the White Dove from a corporation in Louisiana. In the course of preparation for the drug importation, Reaves purchased a satellite phone, a GPS, two Zodiac dinghies, maps and other navigational aids. He also oversaw repairs and modifications to the White Dove.

21 Subsequently, the vessel sailed from Louisiana to Cape Verde, with only Reaves and Parrish on board. At Cape Verde, Reaves and Suarez-Mejia made contact. Reaves gave false information to the shipping agent. He acted as the captain of the vessel throughout. He piloted the boat to the mid-ocean rendezvous point and oversaw the transfer of the drugs from another Venezuelan boat onto the White Dove. Reaves, himself, packed all 38 bags of the drug into the hold of the White Dove. He continued to act as captain of the boat and navigated it from the rendezvous point on to Australia. During the course of the voyage, he arranged with the land party that they should purchase a satellite telephone for further communication.

22 Reaves and Suarez-Mejia physically unloaded the drugs from the White Dove and then brought the drugs to the shore in the Zodiacs driven by Reaves who then secreted them on the beach at Dulverton Bay in Western Australia's north-west.

23 On the Crown case, notwithstanding that the Crown conceded during the sentencing of Suarez-Mejia that the latter had the "ultimate responsibility" of ensuring the drugs arrived safely in Australia, and to ensure that the two Americans, Reaves and Parrish, did not get away with the drugs, it was submitted, and still maintained, that Reaves had a very important role. It was said that he had more of an active role in getting the drugs to Australia than Suarez-Mejia, notwithstanding that Suarez-Mejia may have been higher in the hierarchy of the criminal enterprise. It was contended that they both must have been at least equally trusted by the organisers.

24 According to Reaves, Suarez-Mejia knew nothing about boats. Consequently, without Reaves, Suarez-Mejia would have been unable to ensure that the illicit merchandise got to Australia. This was accepted by counsel for Reaves at the hearing. It was the Crown case that Reaves was somewhat higher in the hierarchy of the organisation than Suarez-Mejia.

25 Although Reaves said he did not expect such a large quantity of drugs, it must have been obvious that the shipment would be substantial. Reaves was being paid US$300,000 for his role in the importation. The boat was purchased for US$165,000 to transport the drugs. Reaves purchased or arranged the purchase of provisions of fuel for the vessel and, in particular, the purchase of some grinding gear to use to make a bigger hole in the storage compartment of the vessel in the event of the cocaine not being able to fit through the existing hole. Consequently, he was more than simply the captain of the boat. It was found that the magnitude of the operation must have been obvious to him. The White Dove was capable of taking a tonne of cocaine. Reaves was promised US$100,000 more than Suarez-Mejia who was to be paid US$200,000 for his role. Reaves appears to have become involved in the transaction before Suarez-Mejia. Consequently, the Crown submitted at the time of sentencing and maintains, that Reaves' role was more significant because of what he did. Although Suarez-Mejia had ultimate responsibility to those who financed the operation to ensure that the drugs got to Australia, and in that respect had an ongoing role, this did not, on the Crown submission, lead to the conclusion that Reaves' role was any less significant: cf Wangsaimas v The Queen [1996] NTCCA 58; (1996) 6 NTLR 14 at 24.

26 Suarez-Mejia pleaded guilty to the same charge as Reaves. He was convicted and on 7 December 2001 sentenced by Scott J to a term of life imprisonment with a non-parole period of 20 years which was confirmed on appeal: Suarez-Mejia (supra). Suarez-Mejia's counsel conceded that that life imprisonment was an appropriate penalty in his case. Reaves, an American citizen, was 59 years old at the time of sentencing. The other two were both Columbian nationals, Suarez-Mejia and De La Espriella-Velasco, were aged 32 and 34 respectively. All three had prior convictions for drug offences. Suarez-Mejia had been convicted in Curacao of an offence involving 1.5 kilograms of cocaine for which he was sentenced to imprisonment for 18 months with a minimum term of 9 months. De La Espriella-Velasco had a prior conviction in Curacao for a drug offence for which he was sentenced to 4 years and 6 months. He served about 2 and a half years of that sentence before being pardoned. As will appear, Reaves had a significant prior record. Parrish pleaded not guilty to being knowingly concerned in the importation and was ultimately acquitted.

27 Suarez-Mejia's role as the representative of the financiers of the importation was essentially one of guarding the drugs and making sure that they arrived at their intended destination. He claimed that he met a man named Garcia in a bar in Medellin in Columbia. He spoke to Garcia about financial problems which he had. Garcia then proposed to him that he could solve these problems by assisting two others to take a vessel to Australia for the purpose of bringing a quantity of cocaine into this country. Suarez-Mejia agreed to undertake the task for which he was to be paid US$200,000.

28 In upholding the sentence imposed on Suarez-Mejia, Parker J (with whom Murray and Miller JJ agreed) in Suarez-Mejia (supra) at [54] - [57] found that the importation offence was "very serious indeed and for which the public interest called for a very substantial term of imprisonment, both for the primary sentence and the non-parole period". Suarez-Mejia co-operated with the investigating officers, frankly admitted his involvement and entered a plea of guilty in the Court of Petty Sessions. His co-operation extended beyond his initial interview, but did not prove to be of material assistance. It was accepted that his remorse was genuine. While his personal circumstances indicated a number of matters favourable to him, none of them had "particular force having regard to the nature and circumstances of the offence". Parker J said at [54]:

"However the exercise of the discretion to fix a non-parole period might be approached as a matter of technique, it is clear that the respondent's early plea of guilty and genuine remorse would properly weigh significantly in the respondent's favour and in addition, some of the matters personal to him, though to a much more limited degree. While in his sentencing remarks it is clear that his Honour sought to separately reflect these, so that the significance he attached to them was apparent and was identified in terms of years, given the circumstances of this case it is not apparent that his Honour has attached to these matters any undue or inadequate weight, or that any different result would have followed had his Honour simply considered them along with all other relevant considerations to arrive at a single result for the non-parole period.

I am not persuaded that, by giving separate consideration the plea of guilty and the respondent's remorse, and the factors personal to the respondent, his Honour has been misled into attaching to those matters, separately or in combination, some inappropriate weight given all the circumstances of this case, or that by treating them separately in this way there has been an error which requires that the non-parole period be set aside."

29 His Honour's conclusion regarding the non-parole period of 20 years was as follows:

"I will not summarise again the circumstances of the offence or of the offender. It is significant that this is such an extremely large and valuable importation of prohibited narcotic and that the respondent's involvement was for financial gain. It is also relevant that he has previously offended in another country in a similar way. Having weighed all the circumstances of this case, but especially those matters, it is my impression that the non-parole period of 20 years was certainly at the low end of an appropriate range. While the considerations are finally balanced, I am not persuaded, however, that it can be said of the non-parole period that it is manifestly inadequate in the sense relevant to this appeal."

30 De La Espriella-Velasco was sentenced by Murray J to life imprisonment on 25 August 2003 and was found guilty of being knowingly concerned in the importation. The sentencing Judge found that his role was to manage and implement what may be described as the shore-based element of the importation. He recruited another man named Lalinde to assist him. Murray J said it would be an overstatement to say that Espriella-Velasco was "a principal in the open [sic plan] of importation". However, His Honour found that his role was "certainly crucial to the successful carrying out of the ... [operation]". Murray J also said that:

"I have no doubt that an important part of your task with Lalinde was to provide to the vessel a remote location where the two of you with suitable transport could meet those bringing the drug, assist them by receiving the drug and receiving those men and assist by keeping the drug safe until, by a process which is not dealt with in the evidence, the drug was taken over from you no doubt by others."

31 There was evidence that Espriella was to receive a profit in the order of $300,000 for his part in the importation.

32 Reaves and Suarez-Mejia both pleaded guilty at the first opportunity. Both also co-operated with the authorities. Scott J said, of Suarez Mejia's co-operation, that:

"As I have said, you voluntarily participated in a record of interview in which you made full and frank admissions of your involvement in this matter. You had been given the opportunity of speaking with a solicitor, and did so, and despite being advised that you were under no obligation to answer questions you voluntarily agreed to co-operate with the police and fully and frankly revealed the information that you had concerning the enterprise."

33 De La Espriella-Velasco pleaded not guilty and maintained his innocence throughout.

34 Suarez-Mejia was the first to be sentenced, having been sentenced on 7 December 2001. Scott J imposed a sentence of life imprisonment with a non-parole period of 24 years. In his sentencing remarks, he made no assessment of the respective criminality of the three men. A Crown appeal against the sentence was dismissed, with the Court of Criminal Appeal having said that, while the 20-year non-parole period was at the lenient end of an appropriate range if not at its lowest extremity, it did not reveal manifest inadequacy: Suarez-Mejia (supra).

35 Reaves was the next to be sentenced (on 15 July 2002) and De La Espriella-Velasco was the last to be sentenced, on 25 August 2003. In sentencing him, Murray J agreed with what had been said by Wallwork J in the course of sentencing Reaves, to the effect that Reaves' position in the hierarchy, and his criminal responsibility, was not as great as that of Suarez-Mejia. Murray J also said that Reaves' position in those regards was not as great as that of De La Espriella-Velasco. He imposed a sentence of life imprisonment with a non-parole period of 26 years.

36 I am not sure that I am entirely persuaded that Reaves' criminal responsibility was less than that of the other two offenders, even if it be accepted that he was lower in the hierarchy than either of them. However, I accept that that view is one which was open to each of Murray and Wallwork JJ.

37 While taking account of the parity principle, it is important that each co-offender be sentenced on the basis of his or her respective and relevant involvement in the commission of the relevant offence in terms of their degree of culpability or criminality in the commission of the offence. At the same time, due allowance must be made for any relevant differences: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. This involves an objective assessment of the facts to determine whether or not there is any feature which may lead to the imposition of a different sentence on one co-offender from that imposed on another. Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313.

38 It was submitted by the Crown that there was sufficient information before the learned sentencing Judge to enable distinctions to be made between the roles of the offenders involved in the importation. The relevant factors would include their respective knowledge of the plan or scheme; their respective positions within the hierarchy of those involved in the importation; their respective connections with suppliers and/or distributors; the respective offender's ongoing role in the importation, if any, including any role in the distribution; and any other distinguishing features, such as differences in the payments or other rewards or consideration in respect of their involvement.

39 In relation to the sentencing of Reaves, the Crown submitted that a sentence of life imprisonment was appropriate in his case on the ground of parity with Suarez-Mejia, and also because of the significant role played by Reaves himself. It was submitted that any mitigation of that sentence should be reflected in the non-parole period. This is because a life sentence is not capable of adjustment by remission or reduction: Lee Vanit v The Queen [1997] HCA 51; (1997) 190 CLR 378.

40 It was also submitted on behalf of the Crown that the non-parole period for Reaves should be greater than that of Suarez-Mejia. The Crown suggested something between 25 and 30 years as being appropriate for the non-parole period. That was because Reaves did more to bring about the importation than Suarez-Mejia. He was older and more mature than Suarez-Mejia. He had a long criminal history. He recruited Parrish as a crew man. It was also said that the circumstances of mitigation upon which Reaves relied were not as significant as those of Suarez-Mejia. Following the trial, Suarez-Mejia was sentenced to life imprisonment. The Judge sentencing him said that a "starting point" for the non-parole period in the context of a head sentence of life imprisonment would be 28 years which the sentencing Judge discounted for the plea of guilty by Suarez-Mejia on the fast-track system and his personal circumstances to a non-parole period of 20 years.

41 It was conceded at the time of sentencing, and the concession is currently maintained by the Crown, that Reaves should also be given a discount in respect of the non-parole period for his plea of guilty on the fast-track with some further discount having regard to his personal circumstances.

42 The learned sentencing Judge had before him details of Reaves' criminal history. According to the records maintained by the United States Department of Justice and the United States Parole Commission, Reaves was originally convicted in 1982 of conspiracy to import and possess marijuana, income tax evasion and conspiracy in the United States District Court for the central District of California. He was imprisoned for 3 years followed by a Special Parole Term of 25 years. He was imprisoned on 8 January 1983 and released by mandatory release on 5 October 1984. As well as a Special Parole Term, an additional period of supervision ordered by the Court at sentencing commenced on 15 February 1985, with an original expiration date of 14 February 2010.

43 In 1991, the Parole Commission executed a parole violator warrant against Reaves. A revocation hearing was conducted on 4 March 1992 and the Special Parole Term was revoked on 24 March 1992. At that time, the Parole Commission ordered that Reaves receive no "street-time" credit for the period of time he had previously spent on Special Parole. This resulted in a recalculated full-term date of 2 July, 2020. The revocation was based upon nine violation charges, which included technical parole violations, crimes committed in the United States involving efforts to distribute and invest his original drug smuggling proceeds, possession of a false passport in Europe, a conviction involving narcotics in Germany and escapes from custody in Spain and Germany. He was reparoled on 12 October 1998 to the actual physical custody of a German "detainer" with 7934 days remaining to serve and a sentence expiration/full-term date of 2 July 2020.

44 In response to an inquiry, the United States Parole Commission indicated that it was not possible at this stage to say whether Reaves would be imprisoned, if he was returned to the United States and what would happen to him if his Australian sentence included his return to the United States. It was said that these were difficult questions to answer because there were many unknown variables. As at 4 June 2002, the Parole Commission had not made a determination whether a warrant would be issued for Reaves' arrest. Before making such a determination, the Commission would need to obtain copies of the Investigation/Police Reports resulting in his imprisonment in Australia. The Commission would also need a copy of the sentencing remarks. Questions also arose whether an Australian Court would order Reaves' deportation to the United States or whether his return to the United States would depend upon extradition. These questions could not be answered, although if considered appropriate, it was stated that deportation was the easiest way to return Reaves to the United States.

45 In the result, the Crown contended that, taking all of the relevant circumstances of the case into account, this Court should impose a life sentence on Reaves and fix a non-parole period of between 25 and 30 years. In my opinion, the involvement of Reaves was critical to the success of the operation in terms of his knowledge and skill in relation to the purchase, fitting out and navigation of the boat. He was older and more mature than Suarez-Mejia. He recruited Parrish as a crewman. He was the key figure in the carrying out of the operation by reason of his experience and skill compounded by his prior criminal record which provided no mitigation.

46 In my opinion, Reaves should also have been sentenced to life imprisonment in order to maintain parity with Suarez-Mejia. Although the latter was senior in the hierarchy in the sense that he was the financier's representative, Reaves was the key man who had the experience and expertise to manage the operation, including the acquisition and fitting out of the boat, the loading and stowage of the cargo, its safe delivery on shore at Dulverton Bay and the scuttling of the boat.

47 It was also relevant that at the time of sentencing, Reaves was aged 59, having been born on 26 January 1943. He pleaded guilty on the fast-track system to the importation. According to the pre-sentence report, Reaves appears not to have considered the consequences of his behaviour to himself and his family if he was apprehended. Nor does he appear to have considered the tremendous potential for harm to members of the Australian community as a result of the distribution of such an enormous amount of cocaine. His involvement was purely for financial reasons and of a desire to provide financial support for his own family. He has a record of similar offences, although not of the magnitude of the present offence, in both the United States and the Federal Republic of Germany. He has shown a degree of remorse, but that seems to be more the result of sorrow at having disappointed his family as a result of his arrest and convictions, rather than remorse of a kind which represents a circumstance of mitigation. While his family remain loyal to him, they are experiencing personal and financial difficulties largely as a result of his actions.

48 As a result of this latest offence, he will face a lengthy term of imprisonment because the present offence breached the conditions of his parole in the United States. The learned sentencing Judge was informed that, should Reaves complete serving any sentence imposed upon him by this Court, he will then be taken into custody by the Commonwealth Department of Immigration and returned to the United States.

49 In Reaves' grounds of appeal, it is contended at ground 1(a) that the learned sentencing Judge failed to give Reaves an adequate discount for his assistance to the authorities. When this appeal came on for hearing on 14 July 2003, an application was made on behalf of Reaves for an adjournment of the hearing of the appeal so that the issue of a credit for assistance to the authorities could be raised. An affidavit in support of the application by Reaves' solicitor sworn on 8 July 2003 was relied upon in support of the application.

50 The background was that the Crown had appealed against the sentence by a notice of appeal dated 31 July 2002. A notice of application for leave to appeal against sentence was filed on behalf of Reaves on 5 August 2002 following the imposition of the sentence by Wallwork J on 15 July 2002. Counsel for Reaves was instructed by Reaves that he wished the issue of credit to be given for his assistance to the authorities to be raised. Counsel understood this to refer to assistance given prior to sentence. She was not aware of any ongoing involvement by Reaves in relation to the giving of assistance by Reaves subsequent to him being sentenced by Wallwork J. Counsel became aware of ongoing assistance provided by Reaves subsequent to him being sentenced on 3 July 2003 as a result of a telephone conversation between Mr Reaves, another inmate at Hakea Prison and herself.

51 Counsel was informed by Mr Reaves and believed that he did not understand the importance of the distinction so that he had not mentioned the specific timing of the assistance or whether it had occurred prior to or subsequent to him being sentenced. Apart from confirming that assistance was given both before and after he was sentenced, Reaves was unable to provide the names of the officers who attended to interview him or the dates and times of the interviews.

52 As a result of receiving this information, counsel made inquiries of the Australian Federal Police ("AFP") on 3 July 2003 and Mr Dembo of the Perth office of the Commonwealth DPP to clarify and verify the nature of Reaves' assistance subsequent to him being sentenced and identify the officers concerned. She was informed that the AFP case officer responsible for inquiries concerning the offence committed by Reaves was Detective David Harrison who had been transferred to Canberra and was either on leave or engaged on a course and unavailable for interview.

53 On the same day, counsel telephoned the Superintendent at Hakea Prison and was informed that the records of the dates, times and names of the officers who attended on Reaves would be available in relation to both Hakea Prison where he was then located and Casuarina Prison where he was previously located.

54 Against this background, an adjournment of the application for leave to appeal against sentence by Reaves was sought on the ground that further investigation may "raise fresh evidence that, if substantiated, would be highly relevant to a current review of his sentence". As the inquiries could not be completed before 15 July 2003, it was contended that Mr Reaves would be prejudiced if the hearing was not vacated.

55 At the time that application was made, the single ground in support of the application was that:

"The sentence of 25 years and the non-parole period of 14 years are manifestly excessive."

56 There were no particulars of the ground then provided. Directions were given by Murray J on 14 July 2003 giving Reaves until 12 September 2003 for the making of inquiries and the filing of any further affidavits and the Crown to file any further affidavit in reply by 10 October 2003. Liberty was given to both parties to apply.

57 Reaves' solicitors failed to file any affidavit until 1 February 2004 when an affidavit sworn 29 January 2004 was filed and served dealing with the matter of co-operation subsequent to sentence. On the same date, there were filed and served two "declarations", namely, one by one William J Genego, an attorney in California dated 28 January 2004 and another by one Luis A Franco, a "criminal justice consultant" and an affidavit by Reaves sworn on 29 January 2004. These express the opinion that Reaves' conviction for the subject offence would result in the United States Parole Commission revoking his existing parole in the United States and order him to serve the balance of a United States' sentence outstanding, namely, 7934 days or approximately 21 years and 9 months. This could be reduced up to 10 days per month for "good time". Assuming he received the maximum reduction allowed, he would be required to serve approximately 14 years, 6 months in prison in the United States following his return to that country.

58 So far as assistance to the authorities is concerned, Reaves' affidavit sworn on 29 January 2004 deposes that several months after he had been sentenced and soon after the bombing of the World Trade Centre in September 2001, he wrote to his wife giving some details of a conversation with certain persons regarding a possible terrorist attack on Los Angeles. The information allegedly came from members of the Al Qa'ida who had been in prison with him in Lompoc Penitentiary. These persons had been involved in the bombing of the World Trade Centre in New York in 1993. He said that later members of the Australian Federal Police Anti-Terrorist Squad came to see him in prison and questioned him at length. They wanted to know who had "said these things" and how he knew these men. He mentions one of them by name who had a PhD in Physics and was the "mastermind".

59 Reaves also said that the Federal Police said that if he thought of anything else, he should call them. A few days later he did so. He then gave them the name of an Iranian chemist, a member of the former ruling family, who had manufactured a quantity of nerve gas in the United States and sold it to Iranians. The learned sentencing Judge was not made aware of any of the information in the affidavit at the time of sentencing. It has not been accepted by the Crown that this information was of any significant value.

60 So far as the importation of the cocaine is concerned, however, Reaves provided a significant amount of information to the police by way of admissions. In the context of this case, however, Reaves and his co-offenders were caught red-handed bringing the cocaine on to the beach at Dulverton Bay.

61 In this context, it was also submitted that the learned sentencing Judge failed to make any appreciable deduction for the appellant's age generally and specifically having regard to ground 1(b). Ground 1(b) was that the learned sentencing Judge failed to have regard to the "special parole order" facing Reaves in the United States upon the total length of imprisonment to be served by him.

62 In my opinion, the sheer gravity of this offence by reason of the huge quantity of cocaine involved and the potential threat to the wellbeing of the Australian community which it posed had the result that, notwithstanding Reaves' age at the time of sentencing, this was a case in which the importation of a sentence of life imprisonment was clearly warranted. The significance of the role played by Reaves in the importation of the massive quantity of such a dangerous drug was such that the gravity of the offence should attract the maximum penalty.

63 In my view, ground 1 of the Crown's grounds of appeal has been made out because the learned sentencing Judge erred in his assessment of the responsibility of Reaves by placing too much emphasis on his position in the hierarchy, rather than the significance of his role in the implementation of the transportation to and importation of the drugs into Australia. In my opinion, he played an extremely major role in the transaction. It follows that I also conclude that ground 3 of the grounds of appeal has been made out, because the sentence imposed by the learned sentencing Judge resulted in disparity between his sentence and the sentence imposed upon the co-offender, Mr Suarez-Mejia.

64 As to ground 2 of the grounds of appeal, the learned sentencing Judge said in the course of his sentencing remarks that:

"These offences cause tremendous harm in the community and I am fully cognizant of that, having sat in this Court for a number of years. However, a sentence in this case should not be based solely on the quantity of the drug concerned. I specifically take note of all the considerations referred to in section 16A of the Crimes Act and section 16G of the Act."

65 The reference to s 16G of the Act was clearly an error. In my opinion, on the fact of it, it played no significant part in the fixing of the non-parole period.

66 At all events, grounds 1 and 3 of the appeal having been made out, this Court is required to quash the sentence imposed and re-sentence the respondent.

67 Consistently with these conclusions, I would allow the Crown's appeal, set aside the sentence and order made by Wallwork J and substitute a sentence of life imprisonment. I also consider that the non-parole period of the sentence was manifestly inadequate and that a non-parole period of 18 years should be fixed before Reaves should be eligible for parole. The seriousness of the offence and the threat it posed to the Australian community virtually overwhelms all other factors, although some account must be taken of his age and the facts that his term of imprisonment must be served in Australia and his family is in the United States and that, upon his release on parole, he is likely to be deported to the United States and will there spend more time in prison.

68 The conclusion which I have reached in relation to the Crown appeal and the reasons expressed for that conclusion lead inevitably to the result that the application for leave to appeal by Reaves must be refused on the ground that it is without merit.

69 STEYTLER J: I have had the advantage of reading the judgment of the Chief Justice. I agree with him, generally for the reasons that he has given, that grounds 1 and 3 of the Crown appeal have been made out, that the Crown's appeal against sentence should be allowed, that the application for leave to appeal by Mr Reaves should be dismissed, that the sentence imposed by the sentencing Judge should be quashed and that there should be imposed, in lieu, a sentence of life imprisonment with a non-parole period of 18 years.

70 As has been said by the Chief Justice, the seriousness of this offence and the threat it posed to the Australian community virtually overwhelms all other factors. Reaves played a critically important part in the importation of a huge quantity of cocaine, approaching 1000 kilograms in bulk and 707.1 kilograms pure, with a street value of up to $400,000,000. He arranged for the purchase of a ship, recruited a crewman (named Parrish), oversaw changes to the ship and even went so far as to obtain grinding gear in case the loading area was insufficient for the quantity of cocaine to be carried (albeit he did not know what the quantity would be). He piloted the ship to the Cape Verde Islands where he met up with one of his co-offenders, Suarez-Mejia, and then sailed the vessel to a point in the ocean where the drugs were transferred, with his aid, onto the ship. He,

his crewman Parrish and Suarez-Mejia then sailed the ship to the Western Australian coast where the drugs were unloaded and the ship was scuttled. While voyaging to Western Australia, Reaves had a number of conversations with shore-based members of the drug cartel involved in the importation. In all of those circumstances, it seems to me, nothing less than a sentence of life imprisonment is justified, that being the maximum sentence of imprisonment provided for by s 235(2) of the Customs Act 1901 (Cth).

71 So far as the non-parole period is concerned, the question of parity is important. This involves a consideration of the sentences given to Suarez-Mejia, and another co-offender, De La Espriella-Velasco, who controlled and ran what the sentencing Judge in his case described as shore-based elements of the process of importation. Parrish was acquitted of the charges faced by him, having successfully raised a defence of duress.

72 Reaves, who is an American citizen, was 59 years old at the time of sentencing. Suarez-Mejia and De La Espriella-Velasco, both Columbian nationals, were aged 32 and 34 respectively at the time at which they were sentenced. As has been said by the Chief Justice, all three had prior convictions for drug offences, albeit Reaves' criminal record appears to have been worse than that of the other two men. Reaves and Suarez-Mejia both pleaded guilty at the first opportunity. Both also co-operated with the authorities. De La Espriella-Velasco, on the other hand, pleaded not guilty and maintained his innocence throughout.

73 Suarez-Mejia was the first of the three to be sentenced. As has been said by the Chief Justice, he was sentenced on 7 December 2001. He was given a sentence of life imprisonment with a non-parole period of 20 years. As has also been said by the Chief Justice, his role seems to have been that essentially of guarding the drugs and making sure that they were taken to the correct destination. During the course of his sentencing proceedings it was said that Suarez-Mejia had met a man named Orlando Garcia in a bar in Medellin in Columbia. He spoke to Garcia about financial problems which he had and Garcia proposed to him that he could solve these by assisting two others to take a vessel to Australia for the purpose of bringing cocaine to this country. For that he was to be paid $US200,000. The sentencing Judge in Suarez-Mejia's case made no comparison of his criminality with that of either Reaves or De La Espriella-Velasco.

74 A Crown appeal against the sentence imposed upon Suarez-Mejia was dismissed, although the Court of Criminal Appeal said, as the Chief Justice has pointed out, that, while the 20-year non-parole period was at the lenient end of an appropriate range, if not at its lowest extremity, it did not reveal manifest inadequacy: R v Suarez-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577.

75 Reaves was the next to be sentenced, having been sentenced on 15 July 2002.

76 De La Espriella-Velasco was the last of the three to be sentenced. He was sentenced on 25 August 2003. He was sentenced by Murray J, who said (as I have mentioned) that he controlled and ran what his Honour described as the shore-based element of the process of importation. He recruited another, Lalinde, to assist him in that endeavour. Murray J said that it would be overstating matters to say that De La Espriella-Velasco was "a principal in the open [sic] of importation", but added that his role was "certainly crucial to the successful carrying out of the ... [operation]". He said that De La Espriella-Velasco and Lalinde were to take charge of the drugs on their arrival in Western Australia and keep them safe, by a process not dealt with in the evidence, until others took custody of them. De La Espriella-Velasco expected to receive a profit in the order of $300,000,000.

77 When sentencing De La Espriella-Velasco, Murray J agreed with what had been said by the sentencing Judge in the case of Reaves, to the effect that Reaves' position in the hierarchy, and his criminal responsibility, was not as great as that of Suarez-Mejia. Murray J also said that Reaves' position in those regards was not as great as that of De La Espriella-Velasco. He imposed a sentence of life imprisonment with a non-parole period of 26 years.

78 In all of the circumstances, taking into account the respective levels of involvement and degrees of culpability or criminality of the three men, and allowing for relevant differences between them (as to which see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295) it seems to me that parity would require that the non-parole period of Reaves be less than that imposed in the case of either of the other two offenders. Taking into account, amongst the other matters to which reference has been made, the fact that this is a Crown appeal (as to which see R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522 - 523 and the authorities there cited), the fact of Reaves' extensive criminal record, the fact that he is considerably older than either of the other two men and also the fact that, on completion of his sentence, he is likely to be extradited to the United States where, for reasons given

by the Chief Justice, he may yet face further sanctions arising out of his parole violations in that country (although much seems to turn upon the view which the United States authorities will take of the sentence imposed by this Court), it seems to me, as it does to the Chief Justice, that an appropriate non-parole period would be one of 18 years.

79 WHEELER J: I have had the advantage of reading in draft the reasons for decision of the Chief Justice and Steytler J. I am in agreement with the conclusions of the Chief Justice. I also agree with the observations of Steytler J.

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