Regina v Saavedra

60215/99 SPIGELMAN CJ NEWMAN J ADAMS J

1 NEWMAN J: This is an application for leave to appeal out of time and application for leave to appeal in relation to a sentence passed upon the applicant by his Honour Judge Graham in the District Court on 1 April 1999. 2 Before his Honour the applicant had pleaded guilty to a charge laid pursuant to s 233B(1)(cb) of the Customs Act (Commonwealth) 1901 alleging that she and a number of others had conspired to import into Australia a prohibited import, namely cocaine. The quantity of the proposed importation of cocaine was no less than fifty kilograms. That amount meant that the maximum penalty which could be imposed pursuant to s 235(1)(c)(i) of the Customs Act is imprisonment for life; disjunctively that section provides also for such other period as the Court thinks fit. Accordingly the charge to which the applicant pleaded guilty stands high in the criminal calendar of this country. 3 His Honour imposed a head sentence of seven years imprisonment with a non-parole period of four years six months, the sentence to date from 16 November 1998 the date upon which the applicant was apprehended on her return to this country from South America. 4 I turn then to the background facts in the matter. The conspiracy to import fifty kilograms of cocaine was originally hatched in early 1997 by two persons, namely one Ian Cox and another Michael Reardan. They agreed to import the said fifty kilograms of cocaine into this country, their intention being to smuggle it in a container of Chilean wine. Certain steps were then undertaken and two matters which already existed put the conspiracy into effect. 5 As time went by others joined the conspiracy including one Douglas Crombie and Crombie's wife, Cynthia, who, like the present applicant, was born in South America. Cynthia Crombie was a friend of the applicant with whom at one stage of her life she had shared a house in this country. 6 The conspirators by September 1997, while as I have said, having taken certain steps to put their conspiracy into effect, had a problem: they had no cocaine. Crombie approached the applicant whose husband was at the time in South America and that approach resulted in the applicant advising Crombie that she had located a supplier for the drugs in Bolivia. 7 I have taken that statement of fact directly from his Honour Judge Graham's remarks on sentence. In fact that was quite a kind finding because one looks at admissions made in a statement of 30 December 1998 by the applicant where she said this: "In September 1997, I remember Douglas Crombie arrived at my house at 10 Bellamy Street, Pennant Hills. Doug asked for Juan and stated that he wanted to talk 'business' with him. I knew the term 'business' was in reference to drugs/cocaine. Juan was in Bolivia at the time and I told Doug that he was lucky at that time because I had received a call from Bolivia some time ago in relation to a supply of cocaine. Doug thought that this was good news and clapped his hands in excitement. The call that I had received from Bolivia was from Pedro who is a relation of my brother's wife." 8 The applicant then gave Crombie a telephone number of her brother in Bolivia. His Honour quite rightly on that information observed that there was nothing to suggest her willingness to be involved was anything other than whole hearted. 9 Time went by and arrangements for the fulfilment of the conspiracy continued. Crombie approached the applicant again in September 1997 and confirmed the supply of drugs. She told him she spoke to her South American contacts and confirmed the drugs were available. 10 Shortly thereafter, namely October 1997, the conspirators Reardan and Douglas Crombie and another conspirator Haydee Diaz met in South America. Problems apparently occurred in the contact made by the conspirators with the proposed South American suppliers. Those problems resulted in a telephone conversation taking place between Reardan, Crombie and the applicant; Reardan and Crombie ringing from South America. 11 As counsel for the applicant has rightly submitted today that conversation contained threatening overtones. As a consequence of that conversation the applicant left this country on 8 November 1997 to seek to continue to endeavour to obtain the supply of the subject drugs. 12 I should add that his Honour in his findings made it plain that he was of the view that the terms of that telephone conversation were threatening and that her continued participation in the scheme was not as whole hearted as it had been at the outset. 13 The long and short of the matter was that despite her efforts and those of Reardan and Crombie in South America, the conspiracy failed, Crombie returning to this country on 14 November 1997 where he was arrested shortly thereafter. 14 The other conspirator, Reardan, returned on 21 November 1997. All those conspirators, I might say, have been apprehended and, indeed, have been dealt with by the courts. The manner of the courts dealing with Crombie is one of the subject matters of this very application. 15 The applicant then remained in South America until November 1998 when she returned to this country. She was arrested at the airport on her return. Again it was rightly submitted that she must have been aware that her return would lead to her apprehension. 16 These facts are indicative that the applicant's participation in the conspiracy was not that of a mere courier or a person low down in the scale. Her participation was vital to the conspiracy being put into effect, she being the person who could make contact with persons in South American who were prepared to supply cocaine to the conspirators. 17 The fact that the conspiracy failed does not affect sentencing principles which are to be applied. 18 His Honour in a very careful analysis of the objective and subjective facts of the matter took fully into account the assistance which the applicant had provided to authorities following her apprehension. 19 His Honour also had before him, as I would understand his judgment, a copy of the remarks on sentence made by his Honour Judge Shillington QC when he sentenced the three other conspirators, namely Cynthia and Douglas Crombie and Haydee Diaz. 20 His Honour Judge Graham in carrying out the exercise concerning parity characterised the assistance provided by Douglas Crombie as being of a higher order while not deprecating the assistance given by the applicant. 21 Indeed, when one examines a table very helpfully provided by counsel for the applicant one sees that the applicant had she not provided assistance would have been sentenced to a head sentence of twelve years with a nine year non-parole period and making allowance for past assistance in accordance with s 21E that would be reduced to a head sentence of nine years and six and a half years non-parole period and then when future assistance is taken into account the sentence is further reduced to seven years with four and a half years non-parole period. 22 Douglas Crombie, when sentenced by Judge Shillington, would have received a head sentence of fifteen years with a twelve year non-parole period and for past assistance his Honour reduced that to twelve years with nine years non-parole period and for future assistance a further discount was made to eight years head sentence with five years non-parole period. 23 Similar discounts were made in the case of Cynthia Crombie whose sentence was head sentence of six years with three and a half years non-parole period. 24 From my reading of his Honour Judge Shillington's remarks on sentence and also those of Judge Graham in this case, I am of the view that Cynthia Crombie's participation in the conspiracy was of a lesser degree than that of the present applicant. I would also agree that Douglas Crombie's participation was at a higher level than that of the applicant. 25 Accordingly, on behalf of the applicant, it is put that the small disparity between the ultimate sentence passed upon Douglas Crombie and that passed upon the applicant could give rise to the applicant having a justifiable sense of grievance. 26 In that regard reliance was placed upon Regina v Lowe (1984) 154 CLR 686 and R v Postiglione (1997) 189 CLR 295. At 301 Dawson and Gaudron JJ observed as follows: "The parity principle upon which the argument in this Court was mainly based in an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated." 27 In this Court in Regina v Doggett, unreported, 24 March 1997 Mr Justice Sully, with whom I agreed, advanced the following pithy test relating to the concept of justifiable sense of grievance where he said: "It is, I think, important to establish at the outset some essential principles. Unless two co-offenders receive absolutely identical treatment in terms of their sentences, the one who is the more severely treated will always feel, human nature being what it is, that he has been unjustly treated, and that he is entitled to feel a sense of grievance accordingly. That, of course, is not sufficient for the establishment of a parity appeal point. What has to be demonstrated by the person complaining on the grounds of parity is, not that he feels aggrieved, but that a reasonable mind looking overall at what has happened, would see that his sense of grievance is a justified one." 28 As I said, I agree with Justice Sully's statement on principle. 29 Here counsel for the applicant has relied upon four discrete differences between the circumstances of Douglas Crombie and the present applicant. 30 They are:

1. that Crombie had a record which was very much worse than that of the applicant. I should add that is entirely true and a matter which the Judge took into account;

2. it was put that Crombie had been involved in the conspiracy for a longer period of time. Again, that is true and again, his Honour dealt fully with that;

3. it was put that Crombie was to receive a share of five kilograms of the imported cocaine in return for his services to the conspiracy whereas there was no evidence of any benefit to the applicant for her involvement in the conspiracy. It is fair to say that counsel conceded in his written submissions that his Honour observed that he could infer that her involvement would not be without reward.

4. It was put that the applicant's voluntary return to Australia in November 1998 was in circumstances that she well knew she could be arrested on her return whereas Crombie was not aware. 31 All those four matters were fully taken into account by his Honour when he was carrying out the exercise of comparison necessary to fully consider the question of parity. 32 There is no identifiable error to which counsel for the applicant can point in the manner in which his Honour carried out his sentencing task. 33 There is, again as counsel rightly conceded, one disparate feature between the case of Douglas Crombie and the applicant which is not favourable to the applicant's case and that is the categorisation of Crombie's assistance to authorities as being at a higher level than that of the applicant. The importance of that distinction, I believe, is illustrated by the comparison between head sentence and non-parole periods to which I adverted earlier in these reasons. 34 Having considered the matter in terms of Lowe, Postiglione and Doggett I am of the view that when those features are viewed objectively the applicant could not be said to have a justifiable sense of grievance. Accordingly, I am of the view that the parity argument cannot succeed. 35 Because of the seriousness of the matter I would grant the applicant leave to appeal out of time; grant her leave to appeal but I would dismiss the appeal.

36 SPIGELMAN CJ: I agree. 37 ADAMS J: I also agree.

1. Grant leave to appeal out of time; 2. Grant leave to appeal; 3. Appeal dismissed.

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