Regina (Commonwealth) v Guzman; Regina

COUNSEL : R S Toner SC (Appellant - Henao)

J V Agius SC (Crown) T A Murphy (Appellant - Guzman)

SOLICITORS : Lyon Lawfirm (Appellant - Henao)

Director of Public Prosecutions (Crown) CATCHWORDS : Application for leave to appeal against sentence - no question of principle. LEGISLATION CITED : Customs Act 1901; Proceeds of Crime Act 1987. CASES CITED: R v Wong and Leung [1999] NSWCCA 420; R v Bernier (1998) 102 ACrimR 44. DECISION : 31

IN THE COURT OF CRIMINAL APPEAL CCA60216/99 CCA60217/99

PRIESTLEY JA SPERLING J FOSTER AJ

Thursday 20 April 2000 REGINA (COMMONWEALTH) v MARIA CECILLIA GUZMAN REGINA (COMMONWEALTH) v ORLANDO LEON HENAO JUDGMENT

1 PRIESTLEY JA: The Court is in a position to deliver its decision immediately. I ask Mr Justice Sperling to give his reasons first. 2 SPERLING J: These applicants pleaded guilty on 6 October 1998 to the same two charges, namely - first count in each case - that each of them was knowingly concerned in the importation of a prohibited import, cocaine, being not less than the commercial quantity, contrary to s233B(1)(d) of the Customs Act 1901 and - second count in each case - that on or about 13 October 1997 each was knowingly concerned in the importation of a prohibited import, cocaine, in not less than the trafficable quantity, contrary to the same section. The maximum penalty for the offence under the first count in each case is life imprisonment. Prima facie the maximum penalty in relation to the offence under the second count in each case is 25 years imprisonment and a fine of $100,000. 3 There is a question as to whether, in the circumstances of this case, the maximum penalty for the second offence was life imprisonment by operation of s235 of the Customs Act 1901. It is unnecessary for the purpose of this appeal to resolve that question. I note that in the court below the prima facie position to which I have referred was thought to be the case, and it does not appear from anything said on the hearing of this appeal that the result of the present proceedings could be affected by resolution of the question to which I have referred. 4 The applicant Mr Henao asked that another offence be taken into account, namely, being in possession of money which could reasonably be suspected of being the proceeds of crime, contrary to s82 (1) of the Proceeds of Crime Act 1987. The amount involved was $134,650, found in cash in his apartment. 5 The prescribed commercial quantity of cocaine is 2 kilograms. The prescribed trafficable quantity of cocaine is 2 grams. The quantity of pure cocaine in this case was 2,635 grams in relation to the first count in each case and 1,249 grams in relation to the second count in each case, a total of 3,884 grams. 6 The applicants were sentenced on 9 April 1989. The sentence imposed on Mr Henao under the first count was a head sentence of 17 and a half years with a non-parole period of 13 and a half years, and under the second count a concurrent fixed term of eight years. 7 The sentence imposed on Ms Guzman under the first count was a head sentence of 12 and a half years with a non-parole period of 9 and a half years, and under the second count a concurrent fixed term of seven years. 8 The applicants have applied for leave to appeal against these sentences. The applicants are husband and wife. In October 1997, they were living in an apartment at Rosebery. Another flat in the block had been rented for a term of six months by an associate of the applicants. The second apartment was devoid of furniture. 9 On 10 and 13 October 1997 respectively, packages sent by post were intercepted by Australian Customs personnel. The packages were found to contain computers in which the drug had been placed. An inert substance was substituted by the Customs authorities in the first package. That package was delivered to the applicants' residence by associates of the applicants. The package was taken to the other apartment. Recorded conversations included a reference to an earlier consignment and to an expected further consignment, the latter being the consignment which was the subject of the second count in each case. The substance in the computers was found by the police to be cocaine. 10 Statements of facts were tendered in evidence without objection providing the foregoing detail. The applicants did not give evidence at the sentencing hearing so the statements of facts were not contradicted. They included a statement that Mr Henao was "the head of a syndicate which was involved in the importation and distribution of narcotic drugs into Australia during 1997". 11 The recorded conversations demonstrated that the applicants were involved in the importation of the drug as principals. His Honour said that he regarded Mr Henao as "more or less, the local head of this syndicate". Of Ms Guzman's role his Honour said, "I can't see that her involvement is particularly lower than that of Mr Henao. She certainly fits into the category of this particular enterprise way above the category of a courier". His Honour regarded the difference in responsibility as "marginal". 12 Mr Henao had been convicted in 1984 of supplying a prohibited drug, Indian hemp. He was sentenced to imprisonment for three years and served a non-parole period of one year and three months. On the same occasion, he was sentenced to three months imprisonment, apparently to be served concurrently, for the possession of an unlicensed pistol. In 1993, he was sentenced to a term of five years to life imprisonment in New York for the criminal sale of a narcotic drug. Having served three and a half years of that sentence, he was released from prison in April 1996 and was deported from the United States to Venezuela. Being an Australian national, Mr Henao was able to return to Australia, which he did a year later in April 1997. 13 The subject offences were committed six months after that and, as I have mentioned, there was a prior consignment which had apparently been received some time between April and October 1997. 14 Ms Guzman had no prior convictions. The applicants had married in August 1997. Mr Henao had initially migrated to Australia much earlier. Ms Guzman arrived in Australia for the first time in May 1997.

Henao appeal: 15 I have divided the submissions into grounds.

Ground 1: The case was wrongly categorised. 16 The argument went this way. Quantity is a governing factor in categorising the objective criminality of the offence: Wong and Leung [1999] NSWCCA 420. . The sentencing judge described the importation in this case as being "a very large commercial quantity of cocaine", whereas it should be recognised in relation to the first count there was only a low range commercial quantity and in relation to the second count there was only a trafficable quantity. 17 The argument based on this distinction cannot be upheld. The total criminality had to be reflected in the sentence for the more serious offence because the sentence for the other offence was to be served concurrently. The total quantity of drug was almost double the commercial quantity. There was no incorrect categorisation in saying that the importation involved in the two offences involved a very large commercial quantity of cocaine. 18 Secondly, under this ground, it was submitted that the sentencing judge erred in classifying the case as pretty close to the most serious of its kind, if not in that classification. These are words of relativity. As usually understood, this was not in the worst category of case. Whether close to it is semantics. The sentence was less than the maximum penalty. There was no error in this respect affecting the result.

Ground 2: The sentence was excessive by reference to the guidelines for sentencing of couriers in Wong and Leung . 19 The sentence in this case was 5.5 years or 70 percent higher than the top of the guideline sentence range for low commercial quantity courier offences specified in Wong and Leung . When one takes into account that the applicant was head man of a syndicate according to the sentencing judge's finding, by which he merely adopted what was uncontested in the statement of facts, and when one has regard to the total amount of drug involved, the sentence is not disproportionate to the guidelines referred to in Wong and Leung . That guideline judgment related to offenders at the low end of the organisational hierarchy. At [142], a guideline range of 10 to 15 years was specified for such offenders where a "substantial quantity of heroin or cocaine", 3.5 to 10 kilograms was involved. The 4 kilograms in round figures, involved in the present case, was in that bracket. The asserted discordance between the sentence in the present case and the guidelines in Wong and Leung disappears once it is recognised that the sentence in the present case is for offences involving approximately 4 kilograms of drug plus the offence taken into account.

Ground 3: The sentence was disproportionate to the Wong and Leung sentences. 20 Parity with other particular sentences is not a legitimate approach, but the point is not made good anyway, even if the comparison were legitimate. Although the offences committed by Wong and Leung involved a greater quantity of drug, the offenders were much lower in the organisational hierarchy than the applicant. There is also the present applicant's involvement in two separate importations, the further offence taken into account and the applicant's very poor criminal history. Furthermore, the sentences in Wong and Leung were sentences imposed on a successful crown appeal and were, accordingly, because of double jeopardy, at the lower end of a discretionary range. There was no disparity between the applicant's sentence and those substituted on the appeals in Wong and Leung when these considerations are taken into account.

Ground 4: At age 55 the applicant would spend most of the rest of his life in prison. 21 This is a relevant consideration. The trial judge took it into account. It is not a factor which of itself makes the sentence inconsistent with a proper exercise of discretion.

Ground 6: The fixed term for the offence under count 2 was excessive. 22 The concurrent fixed term sentence of eight years under count 2 was substantially less than the non-parole period of 13 and a half years under count 1. Fixed term sentences of this kind are somewhat arbitrary. It is the other sentence which reflects the total criminality involved in both offences and which carries the consequences for the offender. Mostly, as in this case, the length of the subsidiary sentence does not matter. The fixed term sentence in the present case does not warrant close examination for these reasons. There is no potential miscarriage of justice to be investigated.

Ground 7: The sentencing judge erred in fixing a non-parole period of approximately 75% of the head sentence 23 This ground is made good. The sentencing judge mistakenly applied the traditional statutory formula applicable to state offences. The norm for Commonwealth offences is that the non-parole period should be 60 to 662/3 % of the head sentence: Bernier (1998) 102 ACrimR 44. . However, as was made clear in Bernier , there is scope for fixing the non-parole period at a figure less than 60% or at a figure in excess of 662/3% depending upon the circumstances of the case. Broadly speaking, the more serious the offence in its objective features and in the subjective features relating to the particular offender, the higher should be the non-parole period relative to the head sentence and, by the same token, the less serious the offence the more open to fix a non-parole period which is less than the bottom of the normal range specified in Bernier .

Conclusion: 24 Apart from the latter ground, no ground is made out. The sentencing process is not shown to have been otherwise erroneous in any respect. I would therefore adjust the sentence, substituting a different non-parole period which accords with the range specified in Bernier but with recognition of the discretion allowed at either end of that normal range. 25 I propose the following orders:

1. Grant leave to appeal; 2. Quash the sentence imposed on 9 April 1999; 3. Resentence the applicant to 17 years and six months imprisonment to date from 14 October 1997 with a non-parole period of 12 years to date from 14 October 1997 and expiring on 13 October 2009.

Ground 1: Allowance for plea of guilty made at the wrong stage. 26 The sentencing judge started with a sentence of 20 years imprisonment which he reduced by two years for the plea of guilty. This he reduced by between a third and a quarter to 13 years pursuant to s16G. That was further reduced to 12 and a half years to compensate for the delay in sentencing. His Honour then fixed a non-parole period of nine and a half years. 27 The complaint is that the two years should have been deducted from the head sentence after adjustment pursuant to s16G rather than before which would have been more favourable to the applicant. 28 It is not submitted that as a matter of legal principle the sentencing judge was obliged to introduce the plea factor at one or other of those points in the sentencing exercise. The gist of the argument is that the sentencing judge should be seen as having intended that the sentence would be reduced by two years and to have failed to implement that intention by introducing the factor at the point he did. 29 The difficulty about this argument is that it is not apparent from what is said by the sentencing judge that he did intend that the two years would flow through completely to the head sentence which he imposed. There is no reason to suppose that the sentencing judge did not appreciate the consequences of a two year deduction made at the point of the exercise as was done. That deduction was made with the intent that the result would be adjusted pursuant to s16G. It is to be assumed, contrary to the argument, that the two years was introduced at the point that it was with the intent that the s16G adjustment would be made on a starting sentence so reduced by the period of two years. Indeed, I would assume that if the sentencing judge had thought it best to introduce the consideration at the later point he would, conformably with what he actually did, have made the deduction something less than two years. No miscarriage of justice is established in this regard.

Ground 2: The sentencing judge erred in fixing a non-parole period of approximately 75% of the head sentence. 30 An adjustment should be made of a similar kind to that which has been made in Mr Henao's case. However, it should be recognised, particularly having regard to Mr Henao's antecedents, that, over all, his case should be regarded as significantly more serious than that of Ms Guzman. For that reason, the non-parole period should, in my view, be fixed in his case at a proportion somewhat higher than in the case of Ms Guzman, as is reflected in what I now propose in relation to her.

Conclusion: 31 I propose the following orders:

1. Grant leave to appeal; 2. Quash the sentence imposed on 9 April 1989; 3. Resentence the applicant to 12 years and six months imprisonment to date from 14 October 1997 with a non-parole period of seven years and six months to date from 14 October 1997 and expiring on 13 April 2005. 32 PRIESTLEY JA: I agree with the orders proposed by Mr Justice Sperling and with his reasons. 33 FOSTER AJ: I likewise agree.

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