Regina v Bellorini and Regina v Ruiz

Customs Act LEGISLATION CITED : Crimes Act 1914 (C'th) Justices Act 1902 (NSW) CASES CITED: Jones v The Queen 67 ALJR 376 R v Ellis (1986) 6 NSWLR 603 DECISION : In the matter of Bellorini -Leave to appeal granted; Appeal upheld and sentence imposed in Court below quashed; Appellant re-sentenced on Count 1 of the indictment to imprisonment for 8 years, commencing on 28 July 1997, with a non-parole period of 5 years, commencing on the same day.; In the matter of Ruiz - Leave to appeal granted; By majority appeal against sentence dismissed

IN THE COURT OF CRIMINAL APPEAL 60771/98 60781/98

1 GROVE J: I agree with Sully J. 2 SULLY J: These are two related applications for leave to appeal against sentences passed upon the applicants on 2 December 1998 by his Honour Judge Mitchelmore, sitting in the District Court at Wollongong. The applicant Mrs. Ruiz stood for sentence having pleaded guilty before a Magistrate to a charge that on 28 July 1997 she had imported into Australia prohibited imports to which s.233B of the Customs Act applied, namely narcotic goods consisting of a quantity of cocaine not less than the commercial quantity applicable to cocaine. The applicant Mrs. Bellorini stood for sentence having pleaded guilty before his Honour to two charges. The first charge was identical to that preferred against Mrs. Ruiz. The second charge was that on 28 July 1997 Mrs. Bellorini had in her possession and without reasonable excuse prohibited imports to which s.233B of the Customs Act applied, namely narcotic goods consisting of a quantity of cocaine which had been imported into Australia in contravention of the Customs Act, being a quantity not less than the commercial quantity of cocaine. 3 The relevant schedule to the Customs Act fixes in respect of cocaine a quantity of 2 kilograms as what is described for the purposes of the Customs Act as a commercial quantity of that narcotic substance. All of the offences charged against Mrs. Ruiz and Mrs. Bellorini attract, upon conviction, a statutory maximum penalty of imprisonment for life. 4 His Honour Judge Mitchelmore sentenced Mrs. Ruiz to imprisonment for 7 years and 9 months, with a non-parole period of 4 years and 9 months. His Honour sentenced Mrs. Bellorini to imprisonment for 9 years, with a non-parole period of 6 years. 5 The relevant facts can be shortly stated. On 28 July 1997 four United States nationals arrived at Sydney Kingsford-Smith Airport on an international flight which had come to this country from Argentina and via New Zealand. Mrs. Ruiz and Mrs. Bellorini, the present applicants, were two of those four persons. The remaining two were a woman named Silvia Cuadra; and a man named Randall Quirk. Each of the four was carrying a back-pack. Concealed in each back-pack was a quantity of cocaine. The gross weight, in each case, of the cocaine thus transported was in the order of 5 kilograms. The purity of the cocaine was 81 per cent, so that the quantity carried by each of the four persons, expressed in terms of pure cocaine weight, was of the order, in each case, of 4 kilograms, that is to say twice the prescribed minimum commercial quantity. 6 There is no doubt about the guilt as charged of the two present applicants. The persons Cuadra and Quirk, also, were charged with having imported the quantities of cocaine carried respectively by them. There was no doubt of their guilt as thus charged. It is clear from the available evidence that the only motivation of all four of the offenders was financial gain. There is absolutely nothing to be said for any one of them so far as concerns the objective gravity of their respective offences. 7 The submissions put at the hearing of the appeal on behalf of Mrs. Ruiz propounded a number of particular errors said to have been made by the learned sentencing Judge; and raised as well a parity argument based upon a comparison of the sentences passed upon Mrs. Ruiz on the one hand and Miss Cuadra on the other. 8 The submissions put for Mrs. Bellorini were more precisely focused, and concentrated upon a parity argument based upon a comparison of the sentence passed on Mrs. Bellorini with the sentences passed, respectively, on Mrs. Ruiz and Mr. Quirk. 9 Miss Cuadra was apprehended by Australian Customs officers at Sydney Airport. She confessed at once to having knowingly imported her particular parcel of cocaine into Australia. She cooperated fully with the investigating authorities. She took part readily in a formal interview, in the course of which she made full and frank admissions as to the enterprise of which she was a part, and of her part in that enterprise. She promised assistance to the authorities in connection with the identification of the organisation behind the importation. She undertook to give evidence against her co-offenders; and she signed ultimately and pursuant to s.21E of the Crimes Act 1914 (C'th), a formal undertaking to that effect. Detailed statements made by her were served by the Crown in December 1997 on the solicitors then acting for Mrs. Ruiz and for Mrs. Bellorini. 10 In the course of her various interviews by investigating officers, Miss Cuadra admitted to having imported on an earlier occasion, in December 1996, a quantity of cocaine. This offence had been previously unknown to the authorities; so that its voluntary disclosure entitled Miss Cuadra to special and considerable practical leniency. 11 In due course Miss Cuadra was charged with two separate offences of importation. She pleaded guilty to both before a Local Court Magistrate on 16 September 1997, and was thereupon committed for sentence pursuant to s.51A of the Justices Act 1902 (NSW). On 18 December 1997 she stood for sentence before his Honour Judge Downs in the District Court at Sydney. She was dealt with, correctly, upon the basis that she was entitled to very substantial discounts for her prompt pleas of guilty; for her considerable assistance to the authorities; and for her voluntary confession of her involvement in the second offence to which I have earlier referred. 12 In the event, Miss Cuadra was sentenced on each of the two matters to imprisonment for 7 years with a non-parole period of 4 years, the sentences being ordered to be served concurrently. 13 Miss Cuadra was born on 5 April 1952. Downs DCJ describes in his Honour's remarks on sentence, and as follows, the subjective matters accepted by his Honour in connection with the sentencing of Miss Cuadra: "The prisoner is not married and she has resided for the past 15 years with her mother in San Francisco. She is a citizen of the United States of America and she stated that she has not been arrested in the U.S.A. She is currently employed as a fashion consultant in the U.S.A. I have the benefit of a pre-sentence report which states that the prisoner had not had any prior contact with the Probation and Parole Service. She is an only child and she was born in San Francisco in the United States of America of Nicaraguan parents. She was raised in Nicaragua where she was married in 1972 After her divorce she initially moved to Miami and then to San Francisco where as I have said she has continued to reside with her mother for the past 15 years. She stated that she had enjoyed a happy childhood and that she had a close relationship with her mother. She has a cousin who lives in Sydney and the cousin informed the service that the prisoner was raised in a comfortable middle class environment and she had always liked the good things of life. The prisoner informed the officer of the service that during most of her working life she had been employed in the fashion industry and that during approximately the last five years she had worked as a sales consultant for a fashion designer in San Francisco earning approximately $2,000 (US) per month. This information could not be verified because the prisoner did not wish the officer to contact her former employer or friends. She was reluctant to discuss the offences with the officers other than to state that she was assisting the Federal Police with their enquiries relating to her three co-offenders. She claimed that she committed both offences purely for financial gain and not to support a drug addiction which I will refer to shortly. She accepted full responsibility for her actions and she went on to say that since she had been in custody she had come to understand the suffering her conduct may have caused and she is embarrassed and ashamed to face her mother and friends. She admitted that prior to being arrested she had used cocaine every weekend for a number of years. She also stated that occasionally she had used cannabis and alcohol for recreational purposes. She denied that she had any drug addiction. …………………………… The officer of the Probation Service found the prisoner to be an intelligent yet impulsive and excitable woman who was not afraid to take full responsibility for her actions and that completes the report." [Appeal Book, ( Bellorini ) , 76,77,78] 14 Mrs. Ruiz, one of the present applicants, was intercepted at the airport. She, too, confessed promptly to her criminal conduct. She, too, agreed to assist the investigating police; but, in the events that occurred, it became unnecessary for the investigating police to act upon that offer of assistance. 15 Mrs. Ruiz pleaded guilty before a Local Court Magistrate on 10 October 1997. She was remanded thereupon, and pursuant to s.51A of the Justices Act 1902 (NSW), for sentence in the District Court. On 16 March 1998 she adhered in the District Court to that plea. In due course, and as earlier herein noted, she stood for sentence before Mitchelmore DCJ on 2 December 1998. 16 Before his Honour, and in connection with the sentencing proceedings, a statement of agreed facts was tendered. The statement acknowledged in terms the agreement of Mrs. Ruiz to the proposition "that the importation of cocaine the subject of the indictment was not an isolated importation by the accused". It is submitted by the Crown that this acknowledgment derived in every real and practical sense from the service upon Mrs. Ruiz and her legal advisers of the extensive statement made to the investigating officials by Miss Cuadra. In my opinion this is a reasonable inference. 17 The statement of agreed facts to which I have earlier referred contained a second, and not unimportant, concession by Mrs. Ruiz. It was a concession that she, Cuadra, Bellorini and Quirk had "travelled together to Australia from Argentina and that each of them imported into Australia …………..a black back-pack of similar design. Each back-pack contained approximately 5 Kilograms of Cocaine, stored in a sewn shut compartment". 18 Mrs. Ruiz was born on 23 October 1962. Her relevant subjective circumstances, as found by Mitchelmore DCJ, are as follows: · She has no criminal antecedents either here on in the United States. · She has some real and genuine remorse for having taken part in the illegal trafficking of prohibited drugs. · Her prospects of rehabilitation are good. · She has two young children and her absence from ordinary familial contact with them is distressing both for her and for them. · She is intelligent and resourceful. · She has in the past used illicit substances but apparently not during recent years. · She was entitled to some consideration by reason of her prompt plea of guilty and her offer of assistance, accepted as a genuine offer, to the investigating authorities. · She will suffer the hardship normally deriving from incarceration in a foreign country. 19 Mitchelmore DCJ had before him, and gave careful consideration to, the contents of a letter which had been written by the applicant to the Court; and to the contents of a letter that had been written to the Court by the elder of the applicant's two children. It is not necessary to set out now the detail of those letters. Mitchelmore DCJ expressed himself as having been moved by the contents of both letters; and I agree that what is said in the letters is moving. It is, of course, necessary to keep carefully in mind that emotive material of that character can be given only a very limited weight in connection with the sentencing of somebody who admittedly attempted to run into this country twice the prescribed commercial quantity of cocaine; and that for no other motive than the motive of substantial financial gain. 20 Mrs. Bellorini, the other present applicant, was not apprehended at the airport. She, in company with Mr. Quirk, cleared the customs and immigration formalities at the airport and proceeded together to the Gazebo Hotel at Parramatta. Late in the evening of 28 July 1997 police attended at that establishment. They found Mrs. Bellorini and Mr. Quirk together in the former's room. As police entered the room, Mr. Quirk was observed walking from the bathroom. He was taken back to his own room and Mrs. Bellorini's room was searched. She voluntarily showed police four plastic bags containing cocaine. She identified a black back-pack then on the bed in her room as belonging to Mr. Quirk. She told the police that cocaine found in the bathroom had come from Mr. Quirk's bag. She told them that there were further drugs in her own black back-pack then lying on the floor of her room. 21 Mrs. Bellorini, when subsequently interviewed by the investigating police, equivocated about her relevant knowledge. Mitchelmore DCJ found as a fact that she had been "far from frank, honest with the police". In my opinion that finding was amply open to his Honour. 22 Mrs. Bellorini maintained a plea of not guilty until she came to trial before Mitchelmore DCJ on 16 March 1998. She pleaded guilty on the first day of her trial. Like her co-offender, Mrs. Ruiz, Mrs. Bellorini agreed to a statement of facts which included the proposition "that the importation of cocaine the subject of the first count was not an isolated importation by the accused". In the case of Mrs Bellorini, as in that of Mrs. Ruiz, it is in my opinion a reasonable inference that the plea of guilty recognised, at least in significant part, the difficulties that would be posed to the continued defence of the charges by the contents of the statements made by Miss Cuadra and served prior to the trial on Mrs. Bellorini and her legal representatives. 23 Mitchelmore DCJ took the view that the second count in the indictment presented against Mrs. Bellorini, that is to say the count charging her with possession of the cocaine that had been transported in Mr. Quirk's back-pack, was "not a fresh disparate criminal venture". That approach was reflected in the structure of the sentences imposed by his Honour. I see no error in the approach taken by his Honour to the sentencing of the applicant in connection with the possession count. 24 Mrs. Bellorini was, by a significant margin, the oldest of the four co-offenders, having been born on 13 February 1935. She stood for sentence having no prior criminal convictions in Australia or in the United States. His Honour noted, and gave credit for, the plea of guilty; doing so both upon the basis that the plea manifested "some expression of contrition", and on the basis of the bare, utilitarian value of the plea in having avoided a potentially long and costly trial. Her subjective circumstances, personal and familial, were not, of course, identical with those of Mrs. Ruiz, but there were substantial similarities between the two cases. 25 Mr. Quirk was apprehended in company with Mrs. Bellorini and in the circumstances to which I have earlier referred. He denied any knowing involvement in the offending importation. He made no pre-trial admissions of guilt. He maintained his plea of not guilty until he was brought to trial on 16 June 1998. He stood for sentence before Flannery DCJ on 11 December 1998. He was sentenced to imprisonment for 8 years with a non-parole period of 5 years. 26 Mr. Quirk was born on 4 May 1957. When he stood for sentence he had no criminal antecedents in this country, but he did have criminal antecedents in the United States. He had a conviction for a minor offence of shop lifting in 1977; and a conviction for conspiracy to commit a mail fraud for which he had served two months' imprisonment. He had been released to probation or parole in connection with that imprisonment, the probation or parole period being 5 years. He was at liberty on that probation or parole at the time he committed the importation now in point. 27 Flannery DCJ made the following finding which is, in my opinion, of some potential importance for present purposes: "I am not satisfied beyond reasonable doubt that Mr. Quirk was involved in any earlier enterprise at all or with another member or other members of the group of co-offenders and that was acknowledged by the prosecution during the course of the sentencing proceedings …………….." [Remarks on Sentence, at 2] 28 Mr. Quirk, too, had a variety of subjective features to his case. Mr. Quirk is apparently a man of some recognised standing as a naturalist. He has a sick and widowed mother requiring a great deal of personal assistance in her daily activities. He stood for sentence supported by character references which were accepted by Flannery DCJ. His Honour accepted evidence that Mr. Quirk's prospects of rehabilitation were good. 29 Given the whole of the foregoing factual background, it is now possible to look more particularly at each of the present applications.

The Present Application of Mrs. Bellorini 30 Mrs. Bellorini's application, as argued before this Court, rests essentially upon the simple proposition that she has, in the requisite and recognised legal sense, a justifiable sense of grievance deriving from the disparity between the sentence passed upon her and the sentence passed upon her co-offenders, Mrs. Ruiz and Mr. Quirk. It was conceded, and correctly so as I respectfully think, that no such argument could be based upon the disparity between the sentence passed upon Mrs. Bellorini and that passed upon Miss Cuadra. 31 In Jones v The Queen, 67 ALJR 376, an application for special leave to appeal from a decision of this Court, Brennan J (as he then was), speaking for himself and for Deane and McHugh JJ, said: "It is erroneous to regard the principle of comparability of sentences laid down in Lowe as incapable of application in favour of the first of two or more co-offenders to be sentenced." 32 The application of that principle in the present case makes permissible a comparison of the sentences passed respectively upon Mrs. Bellorini and Mr. Quirk, notwithstanding that Mr. Quirk was not sentenced until some 9 days after Mrs. Bellorini had been sentenced. 33 It seems to me that when one reviews carefully the objective and subjective features of the two cases, it cannot be said fairly that, as between the two of them, Mrs. Bellorini was so clearly the less deserving of the two as to justify a difference of a year between her aggregate sentence and non-parole period, and those of Mr. Quirk. It is true that Mr. Quirk had the benefit of Flannery DCJ's finding that Mr. Quirk had not been shown beyond reasonable doubt to have been implicated in any previous importation. Mrs. Bellorini, of course, had conceded that the offence for which she was to be sentenced had not been a single, uncharacteristic lapse. On the other hand, she had no criminal antecedents and Mr. Quirk did. She was, of course, considerably older than he. There does not seem to me to have been much to choose between their respective subjective circumstances otherwise. 34 The balance now to be struck is, I acknowledge, a fine one. If the sentence passed upon Mrs. Bellorini stood alone, I would not accept that it was beyond the range of a sound sentencing discretion. But if it be legitimate, - and the decision in Jones makes clear that it is, - to compare Mrs. Bellorini's sentence with the later and lesser sentence imposed upon Mr. Quirk, then it seems to me that, however fine the balance to be struck, the better view is that Mrs. Bellorini does have a justifiable sense of grievance deriving from the disparity between her sentence and that passed on Mr. Quirk. 35 As between those two co-offenders, I have come to the conclusion that justice would be done if Mrs. Bellorini's sentence were made the same as that passed upon Mr. Quirk. 36 That makes it necessary to consider whether there should be any further, and if so what, adjustment to take account of any disparity between the sentence passed upon Mrs. Bellorini and that passed upon Mrs. Ruiz. I do not see any present point in an extended consideration of the situation that might have obtained had Mr. Quirk's sentence not stood for comparison. The adjustment which I have suggested so as to rectify what I see as an unjustified disparity between the sentences passed upon Mrs. Bellorini and Mr. Quirk would leave Mrs. Bellorini worse off than Mrs. Ruiz by a margin of 3 months in respect both of her head sentence and her non-parole period. In my opinion, the differences between the two cases are more than ample to justify so minimal a disparity. 37 In my opinion the Court should order:

[1] That the application for leave to appeal against sentence be granted;

[2] That the appeal against sentence be upheld and the sentence imposed in the Court below be quashed;

[3] That the appellant be re-sentenced on Count 1 of the indictment presented against her to imprisonment for 8 years, commencing on 28 July 1997, with a non-parole period of 5 years, commencing on the same day;

The Present Application of Mrs. Ruiz 38 Mrs. Ruiz, too, asserts a justifiable sense of grievance deriving from a comparison of the sentence passed upon her and the sentences passed upon her co-offenders. 39 In my opinion no such justifiable grievance has been demonstrated. First, there is not, in my opinion, any such justifiable grievance deriving from a comparison between the sentences passed respectively upon Mrs. Ruiz and upon Miss Cuadra. It is undeniable that Miss Cuadra was entitled to receive, and received in fact, very substantial discounts by reason of the nature and quality of her assistance to the investigating authorities; and by reason also of her voluntary disclosure of an earlier offence in circumstances where, absent that disclosure, she would not have been brought to justice in respect of that offence. Those considerations alone are sufficient, in my opinion, to justify the difference in the two sentences. Secondly, there is not, in my opinion, any reasonable basis upon which it could be contended that there is a justifiable grievance deriving from a comparison between the sentence passed on Mrs. Ruiz and the sentence originally passed on Mrs. Bellorini. I have considered whether the adjustment which I think should be made by this Court to the sentence passed upon Mrs. Bellorini should entail a reduction in the sentence passed on Mrs. Ruiz. I see no need for any such adjustment. Mrs. Ruiz did not demonstrate an entitlement to discounts of the order that were required in the case of Miss Cuadra. There should be, therefore, a discernible difference between those two sentences. As between Mrs. Ruiz and Mrs. Bellorini, there are differences warranting a more lenient treatment of Mrs. Ruiz, but always preserving some reasonable overall comparability as among the three sentences of Miss Cuadra, Mrs. Ruiz and Mrs. Bellorini. There is no way of achieving that overall comparability in a mathematically impeccable way. I am not persuaded that sentences, respectively of 7 years, 7 years 9 months and 8 years, are unjust in terms of overall comparability. 40 Several more particular and patent errors were propounded. They are set out at pages 2 and 3 of the written submissions put in by learned counsel for Mrs. Ruiz. In my opinion, a fair reading of the remarks on sentence does not disclose that Mitchelmore DCJ failed to take proper account of any or all of the six particular matters to which the written submissions point. The real thrust of the submissions is summed up in the concluding sentence of counsel's document, that sentence reading: "In all the circumstances the appellant should be re-sentenced with a further degree of mercy and leniency." 41 I do not accept that submission. Mrs. Ruiz committed a serious criminal offence. She did so with her eyes open and for financial gain. In the case of serious drug-related crime, it is trite that mercy and leniency can only be taken so far. I think that a fair reading of the remarks on sentence of Mitchelmore DCJ justifies the conclusion that his Honour did all that was reasonably open to him in the matters of mercy and leniency. 42 In my opinion, the Court should order:

[1] That the application for leave to appeal against sentence be granted;

43 SIMPSON J: In these matters I have read in draft the judgment of Sully J. I agree with his Honour's analysis of the relativities between the cases of Ms Bellorini and Mr Quirk and that, accordingly, Ms Bellorini's sentence should be adjusted in order to accommodate the need for parity in sentencing. It will be necessary in due course to say something more about the orders that should be made in Ms Bellorini's case. 44 In relation to the application of Ms Ruiz, I respectfully take a different view. This arises from what I perceive to be the correct approach to the relativities between Ms Ruiz and the co-offender Ms Cuadra. By reason of her voluntary disclosure of the 1996 offence Ms Cuadra was entitled to a significant reduction in sentence for that offence: R v Ellis (1986) 6 NSWLR 603. In my opinion that voluntary disclosure did not entitle Ms Cuadra to a reduction in sentence in relation to the subsequent offence. In fact Ms Cuadra stood to be sentenced for two separate offences, relevantly identical in kind, committed within eight months of one another. The sentencing judge, Downs DCJ, expressed the view that, because the first offence would not have been known but for Ms Cuadra's admissions, the two offences called for separate penalties. Notwithstanding that, he decided to "look at the overall criminality and impose the same penalty in respect of each of the offences and to make them concurrent". 45 What entitled Ms Cuadra to particular leniency on the second charge was her ready co-operation with authorities and willingness to assist in the prosecution of the co-offenders. This factor also was present in the case of Ms Ruiz, who, by contrast, stood for sentence only on a single count, although that count had to be seen realistically in the light of her concession that the offence was not an isolated occurrence. 46 Two things only distinguish the case of Ms Ruiz from the case of Ms Cuadra: they are, first, the fact that Ms Cuadra faced the two charges, arising out of quite separate enterprises; and secondly, Ms Cuadra's voluntary disclosure of the commission of the earlier offence. As I have already observed, the voluntary disclosure of the earlier offence did not entitle her to a reduction in the sentence on the later offence; nor did it entirely wipe the slate clean and absolve her of liability to punishment in relation to the earlier offence. Her punishment, relative to that of Ms Ruiz, had to reflect the fact that she had committed two offences, not one. 47 There was little, if anything, to distinguish the two so far as concerns the discount to which each was undoubtedly entitled as a result of her early admissions and co-operation with the authorities, and little, so far as the evidence goes, to distinguish the two in relation to their subjective circumstances. 48 Accordingly, in my opinion, when the circumstances are so analysed, Ms Ruiz has demonstrated a legitimate sense of grievance when her sentence is compared to that of Ms Cuadra. In my opinion her sentence should be adjusted so that it equates with that imposed on Ms Cuadra. 49 It is then necessary to undertake the same exercise in relation to Ms Bellorini. She, firstly, faced two charges; but in my view the circumstances were unusual, and her total criminality was no greater and no less than that of either Ms Cuadra (in relation to the present offence) or Ms Ruiz. Her second offence arose from her possession of Mr Quirk's bag at the moment police entered the hotel room. The fact is that this was a joint enterprise, in which all four were equally involved. The second charge in Ms Bellorini's case is not such as to increase the penalty to which she is properly liable. The second, and more significant, distinguishing feature is the absence of any offer of assistance to or co-operation with police. 50 The sentence imposed on Ms Cuadra, and the sentence I would impose on Ms Ruiz, when compared with Ms Bellorini's adjusted sentence as proposed by Sully J, represents a discount of 20 percent from the non parole period and 12.5 percent from the full term. That is a fairly conventional, even conservative, discount given the nature of the assistance offered. Accordingly, I would concur in the orders proposed by Sully J in relation to Ms Bellorini. 51 In relation to Ms Ruiz, I would grant leave to appeal against the sentence imposed, allow the appeal, and impose a sentence of imprisonment for seven years with a non parole period of four years. **********

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