Regina v Gallego

LEGISLATION CITED : Customs Act (Commonwealth) Criminal Appeal Act R v Laurentiu CASES CITED: R v Olbrich R v Wong; R v Leung (1999) 48 NSWLR 340 TKWJ v The Queen [2002] HCA 46 DECISION : Leave to appeal granted; appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60757/01

SHELLER JA WOOD CJ at CL SULLY J

Tuesday 17 December 2002 REGINA v alvaro ramon casaubon gallego

1 SHELLER JA: The Court is in a position to give judgment and I will ask Sully J to give the first judgment.

2 SULLY J: Before the Court is an application by Mr Alvaro Ramon Casaubon Gallego. He seeks leave to appeal against the asserted severity of a sentence of imprisonment passed upon him by Judge McGuire sitting in the District Court at Sydney on 2 November 2001. 3 The material facts as they were presented to his Honour are set out sufficiently for present purposes in the following material extracted from his Honour's remarks on sentence: "On Thursday 16 November 200, Alvaro Ramon Casaubon Gallego ("the prisoner") arrived at Sydney Kingsford Smith Airport (SKSA), Australia from Buenos Aires on Aerolines Argentinas flight AR1181. At about 9.40 am on 16 November 2000 in the hold baggage area, Drug Detector Dog 'Zar' reacted to a black "Ping" brand golf bag which had been wrapped in clear plastic and labelled with a white Aerolines Argentinas baggage label which bore the following details: 'AR1181 SYD EZE5CAR 2205 14 NOV CASAUBAN GALLEGO/A AR 20-40-23' The golf bag was placed in the oversize baggage collection area and kept under surveillance. At about 10.25 am, the prisoner was approached by a Customs Officer who examined his suitcase and carry bag. After this examination, the prisoner started swinging his arms in what appeared to be an imitation of a golf swing, said the word 'golf' whilst pointing to a baggage carousel and pointed to question 9 on his incoming passenger card, which is a question relating to sporting goods. Whilst the prisoner was being escorted towards the baggage carousel area, he was approached by another customs officer who was carrying a 'Ping' brand golf bag. The prisoner indicated to the golf bag, which was then handed to him. At about 10.35am 3 lonscan swabs were taken from the base of the black golf bag. The lonscans indicated the presence of cocaine. At about 10.40am Customs Officers escorted the prisoner to an interview room, where the prisoner admitted that he owned the 'Ping' golf bag. Australian Federal Police ('AFP') officers subsequently attended the Customs hall. At about 1.06pm the prisoner was conveyed to the Australian Federal Police Headquarters. Whilst arrangements were made for the attendance of a Spanish Interpreter, members of the physical evidence team drilled holes in the golf bag and extracted traces of white powder. A presumptive test on these traces indicated the presence of cocaine. The prisoner was then interviewed with the assistance of a Spanish Interpreter. The prisoner indicated that he wished to contact a solicitor via the Spanish Consulate. A message was left on the answering machine at the Spanish Consulate, to which there was no response. The prisoner indicated that he wished to speak to the Spanish Consulate the following day and the interview was terminated. The prisoner was then conveyed to the Sydney Police Centre where he was formally charged. On 17 November 2000 the AFP conducted a full deconstruction of the golf bag. The golf bag was found to contain a metal cylinder which had been placed into the plastic shell of the golf bag. Concealed between the outer and inner walls of the metal cylinder was a package containing 1676.6 grams of an off-white powder. A sample of the powder was sent to the Australian Forensic Drug Laboratory for analysis, which indicated that the powder contained 66.5% cocaine, giving a net pure weight of 1114.9 grams of cocaine. Later enquiries with KLM Dutch Airlines found that the airline ticket for travel from Barcelona to Quito in South America had one baggage label for one bag weighing 14 kilograms. Enquiries with Aerolineas Argentineas found that the airline ticket for the leg between Buenos Aires and Sydney the prisoner had two baggage labels for two pieces of checked baggage. Antecedents The prisoner is a Spanish National. He is currently in a defacto relationship from which there is a one and a half year old daughter. The prisoner's wife and daughter did not accompany him to Australia. At the time of his arrest the prisoner was in possession of US$60. The prisoner has no family or property ties within Australia. The prisoner is not previously recorded on Australian Federal Police indices."

4 The applicant was committed for trial on 18 January 2000, and on 27 April 2001 a trial date was set for 16 July 2001. On 12 July 2001 the prisoner informed the Crown and the Court he was proposing to enter a plea of guilty and that is in fact what he did on 16 July 2001. 5 The offence to which the applicant thus pleads guilty contravenes s 233B(1)(b) of the Customs Act (Commonwealth) and attracts upon conviction a maximum penalty of, relevantly, imprisonment for twenty-five years. The sentence in fact passed upon the applicant was a sentence of imprisonment of eight and a half years with a non-parole period of five and a half years. 6 The learned sentencing Judge took, as in my respectful opinion he was entitled and duty bound to take, a serious view of the particular offence. The offence involved the deliberate importing into this country of 1.1 kilograms by pure weight of cocaine. That is by any responsible objective reckoning a serious crime. His Honour denounced it in terms which will bear repeating, and with which I respectfully agree. His Honour said: "In a matter such as this the question of personal and general deterrence looms large. Responsible members of the community are rightfully indignant at the seeming impunity which is enjoyed by those who handle substantial quantities of narcotic drugs. This city, indeed the nation, is seemingly awash with narcotics, including cocaine. That drug wreaks havoc in our community. It destroys the lives of our youth. It is the direct cause of ruined marriages, ruined careers and shattered family units. It must be seen by those who would chance their arm to gain the huge profits available in the evil and pernicious activities involved in the importation of drugs that there is a meaningful price to pay." 7 I respectfully agree with the entirety of what was thus observed by his Honour, and consider it to apply in full force to the circumstances of the present case.

8 A number of particular grounds of appeal have been raised. One of them propounds a particular error on the part of the learned sentencing Judge. The other three grounds do not go so much to the assertion of error in a particular sense on the part of the primary Judge, as to the proposition that the entirety of the sentence proceedings miscarried in various ways, to which the grounds of appeal make particular reference.

9 Turning first to the ground of appeal asserting particular error on the part of the sentencing Judge, the ground is propounded in these terms: "His Honour erred in refusing to accept that the role of the applicant in the importation of the prohibited drug was that of a courier" 10 What in fact his Honour did in that connection was to take the view that the evidence before him was really imprecise as to the precise role of the applicant. His Honour said: "There is no evidence before me upon which I can properly categorise his involvement. All I know is that he was caught red-handed bringing drugs into Australia. It is entirely possible that he was carrying them at the behest of somebody else, it is equally possible that he was to deal with the drugs himself through agents, or in some other manner. I simply do not know. The prisoner was in a position to establish his role in the importation but he has chosen not to do so, and I am simply not going to accept as a fact that he was a courier, nor of course will I assume to him some other role. The simple position is that he was a drug importer." 11 A great deal of argument has been addressed to the Court, focusing upon the submission that there had been, in effect, a concession made by the Crown at the sentencing proceedings that the applicant should be dealt with upon the basis, only, that he was a courier. The available evidence going to that proposition is to be found on page 4 of a lengthy and detailed written submission put to the learned sentencing Judge by the then Crown representative. Under the heading "Principles on Sentencing" the written submission was this: "There is no evidence in this case to suggest that the offender was anything other than a courier." 12 The submission then goes on, by reference to the well-known decisions in R v Laurentiu and R v Olbrich, to argue for the proposition that, as the submission puts the point, "The value of all players in the importation/distribution chain was relevant such as to require careful and particular consideration". 13 I am not myself persuaded that the entirety of that material establishes that there was in a precise sense a clear concession that the applicant should be dealt with only as a courier. But I am content for present purposes to test the soundness of the present application by assuming for the purposes of argument that it is correct to say that the applicant should have been treated, and clearly stated to have been treated, as a courier and nothing more. 14 In that event, he would have stood for sentence in a way conditioned by the guidance given by the Court of Criminal Appeal, specially constituted by five Judges in the guideline decision of R v Wong; R v Leung (1999) 48 NSWLR 340. 15 Put simply and relevantly, that guideline judgment establishes that a courier of a quantity of cocaine in the range 1 kilogram to 2 kilograms can expect, normally, a sentence in the range of seven to ten years. The head sentence fixed in the present case of eight and a half years is, in practical terms, the midway point between those two guideline points. 16 So far as concerns a non-parole period, the accepted approach in the case of the Commonwealth offence is to set a non-parole period at a point that is about 60 per cent to 66 per cent of the head sentence. The non-parole period fixed in the present case of five and a half years is, broadly speaking at any rate, at about the midway point between 60 per cent and 66 per cent. 17 That leads me to the conclusion that, even if I were to be persuaded that there was manifest error in the way in which the learned Judge dealt with the applicant in terms of the applicant's status in the relevant importation, I would then be wholly unpersuaded that a sentence more leniently framed was "warranted in law" in the sense contemplated by s 6 of the Criminal Appeal Act. 18 The remaining grounds of appeal go, as I have said, not so much to the question of particular identifiable error in the sentencing process, as to the proposition that the entire process miscarried in a way that denied to the applicant fundamental entitlements in terms of his sentencing. 19 Two of those grounds can be dealt with conveniently together. The first of them is expressed in these terms: "The applicant was denied natural justice and/or procedural fairness in that the applicant was not clearly warned by his Honour of the view his Honour intended to take as expressed at the bottom of page 5 and the top of page 6 of the sentencing remarks." 20 The second and related ground is expressed in this way: "In the further alternative to ground 1, the applicant was denied natural justice and/or procedural fairness in that his Honour failed to ensure that the applicant understood any warning given by his Honour inter alia that his Honour was unable to accept the applicant's role as that of a courier." 21 The first thing to be said about those grounds is that the evidence before the Court suggests, - (see paragraph 5 of the affidavit of Elizabeth Hayes of 29 November 2002), - that during the course of discussion between his Honour and counsel then appearing for the present applicant, his Honour clearly indicated that there was, as his Honour then saw matters, no evidence to indicate precisely what the role had been of the applicant in the importation; and in particular, that there was no evidence that he was a mere courier: indeed, that there was no evidence in any precise sense of quite what role he had been playing in connection with the importation.

22 In my view it can hardly be said that his Honour did not signal appropriately his concern about what his Honour saw as the shortcomings of the evidence, such as it was, that had been put before his Honour on the question of the correct characterisation of the applicant's role in the relevant importation. Whether or not what then happened effectively deprived the applicant of natural justice depends greatly, as I see it, upon the availability of credible evidence of what actually took place from the point of view of those then representing the applicant at the sentence hearing. 23 The evidence in that regard is, to say the least, exiguous. It certainly does not seem to go at all far enough to establish that there was in the relevant proceedings so demonstrable and fundamental a miscarriage as to justify a finding by this Court that in truth the applicant did not have a fair hearing according to law at all. 24 The remaining ground of appeal is propounded in these terms: "In the further alternative the sentence proceedings resulted in a miscarriage of justice in that the applicant was incompetently represented." 25 Once again the correct starting point is to inquire what evidence there is to support that proposition. Once again, in my view there, is very little evidence on which the Court can now operate. 26 Counsel appearing for the applicant at the sentencing hearing has made an affidavit, the relevant parts of which read as follows: "2. Prior to those proceedings I had two conferences with the applicant during which I discussed all matters relevant to his sentence, including all objective and subjective factors in his particular case. 3. Following the receiving of instructions and the giving of advice it was decided that he would not give oral evidence in his sentence proceedings……………………." 27 It is not a light thing to find that counsel has been so professionally incompetent as to require the intervention of this Court. The decision of the High Court in TKWJ v The Queen [2002] HCA 46 emphasises the point. 28 The evidence before this Court does not seem to approach the level that ought to be required of evidence sufficient to justify a positive finding by this Court of professional incompetence going to the root of the justice of the sentencing proceedings. 29 For the whole of those reasons I am wholly unpersuaded that the grounds of appeal, or any of them have been made good. In my view, the sentences imposed by the sentencing Judge were amply justified by the material before his Honour. In any event, I would not see a just basis upon which this Court should now intervene upon the footing that some other and lesser sentence is warranted in law 30 I would grant the application for leave; and dismiss the appeal. 31 SHELLER JA: I agree with what Sully J has said and the order he proposes. I am not at all persuaded that there was in the sentencing proceedings any miscarriage of justice. It was entirely open and appropriate for a sentencing judge not to accept as a fact that the appellant was a courier. As his Honour said the simple position was that the applicant was a drug importer. As I say, I agree with the reasons that have been given by Sully J and the order he proposes.

32 WOOD CJ at CL: I agree with the observations and the reasons, both of the presiding judge and of Sully J. I similarly agree, while leave to appeal should be granted, the appeal should be dismissed.

33 SHELLER JA: The orders of the Court will be as proposed by Sully J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.