Regina v Uzabeaga

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0201 LOWER COURT JUDICIAL Christie DCJ OFFICER :

COUNSEL : GJ Bellew - Crown P Byrne SC - Applicant SOLICITORS : Commonwealth Director of Public Prosecutions Ford Gaitanis Lawyers - Applicant CATCHWORDS : Application for leave to appeal against severity of sentence - importation of cocaine - parity - sentencing judge's findings inconsistent with agreed statement of facts. Customs Act, 1901 LEGISLATION CITED : Crimes Act, 1914 Proceeds of Crime Act, 1987 R v Wong & Leung (1999) 108 A Crim R 531 R v Cartwright (1989) 17 NSWLR 243 Chow v Director of Public Prosecutions (1982) 28 NSWLR 593; Malvaso v The Queen (1989) 168 CLR 227 @ 233 CASES CITED: R v Altham (NSWCCA,, 18 June 1992, unreported) Galea v Galea (1990) 19 NSWLR 263 @ 279; Anderson v The Judges of the District Court of New South Wales (1992) 27 NSWLR 701; Lowe v The Queen (1994) 154 CLR 606 @ 617 R v O'Neill [1979] 2 NSWLR 582 @ 589 Regina v Hodges (NSWCCA unreported 20.8.1997) DECISION : Application for leave to appeal allowed; appeal with respect to count 1 allowed; sentence imposed in District Court on count 1 quashed; in lieu thereof applicant sentenced to imprisonment for 12 years and 6 months to date from 14 October 1997. Non parole period of 7 years and 6 months specified.

Friday, 24 November, 2000 REGINA v Juan Francisco UZABEAGA

1 SIMPSON J: I agree with the orders proposed by Bell J and with her reasons therefor. 2 DOWD J: I have read the judgment of Bell J in draft form, and I agree with the proposed orders and her Honour's reasons. 3 BELL J: Juan Francisco Uzabeaga seeks leave to appeal against the severity of sentences imposed on him by Judge Christie in the Sydney District Court on 17 May 1999. On 6 October 1998 the applicant pleaded guilty to an indictment containing two counts alleging offences contrary to s 233B(I)(d) of the Customs Act 1901 ("the Act") namely that (i) between about 10 October 1997 and 14 October 1997 at Sydney he was knowingly concerned in the importation into Australia of prohibited imports namely narcotic goods consisting of a quantity of cocaine being not less than the commercial quantity and (ii) on or about 13 October 1997 at Sydney he was knowingly concerned in the importation into Australia of prohibited imports namely narcotic goods consisting of quantity of cocaine being not less than the trafficable quantity. The Court was invited, pursuant to s 16BA of the Crimes Act 1914, to take into account in passing sentence in respect of these two offences a further offence namely the possession of money that may reasonably be suspected of being the proceeds of crime. This is an offence contrary to s 82(1) of the Proceeds of Crime Act 1987. The total sum involved with respect to this latter offence was $135,298 made up of a series of lesser sums which the applicant had remitted overseas in the period 12 May 1997 to 2 October 1997. 4 The commercial quantity prescribed by the Act with respect to cocaine is two kilograms. The maximum penalty provided for the offence in the first count of the indictment is one of life imprisonment; s 235(2)(c)(i) of the Act. The trafficable quantity of cocaine prescribed by the act (Schedule VI) is two grams. The maximum penalty in respect of offences involving trafficable quantities of cocaine is one of twenty five years imprisonment and/or a fine of $100,000; s 235(2)(d)(1) of the Act. 5 In respect of the first count in the indictment the applicant was convicted and sentenced to imprisonment for a term of fifteen years to date from 14 October 1997. A non parole period of eleven and a half years was specified. The non parole period will expire on 13 April 2009. In relation to the second count the applicant was convicted and sentenced to a fixed term of imprisonment of six years to be served concurrently with the sentence imposed on the first count. 6 The facts were set out in a statement of facts prepared by the Australian Federal Police ("AFP"). On 10 October 1997 members of the Australian Customs Service ("ACS") intercepted an express mail service package consisting of a large cardboard box addressed to "Guptas Electronics Communication, Shop 7-116 Military Road, Neutral Bay". The documents accompanying the parcel indicated that the contents contained a satellite receiver. The consignor was listed as "Equatorial Technologies", Ecuador, South America. The package was examined by AFP officers, who located a single, highly compressed block of cocaine secreted inside the internal cavity of the satellite receiver. The gross weight of the cocaine was approximately 3918.5 grams. The bulk of the cocaine was removed and replaced with an inert substance. 7 On 13 October 1997 a customs notification card was sent to Guptas Electronic Communication advising that the consignment was ready for collection. About 1.50 pm on 13 October 1997 the applicant telephoned Kiriakos Markar. The conversation was monitored. The following exchange occurred during the course of it: "Markar: "What happened? Applicant: The lady has arrived. Markar: You are kidding me. Applicant: So it's urgent … "

8 The applicant operated a business called MP Communications. Kiriakos Markar was employed by the applicant with MP Communications. The applicant's nephew, Juan Uzabeaga, was employed by Guptas Communications. At 2.41 pm on 13 October 1997 a copy of the customs notification card was faxed from Guptas Communications to MP Communications. Juan Uzabeaga was believed to have been responsible for sending the facsimile. 9 On 13 October 1997 members of the ACS intercepted a second consignment having the same consignor and consignee as the package which had been intercepted on 10 October 1997. This package also contained a satellite receiver. Examination revealed that secreted within that satellite receiver was 3375.7 grams of cocaine. 10 The applicant arranged for customs clearance of both consignments through a customs clearance agency. 11 Around 10 am on 14 October 1997 the applicant and Kiriakos Markar drove in the applicant's vehicle to the Clyde International Mail Centre. Markar entered the mail centre by himself and took possession of the consignment which had arrived on 10 October 1997. He returned to the vehicle placing the consignment in the boot and he then left on foot. The applicant drove the vehicle to 83-93 Dalmeny Avenue, Rosebery. At those premises he removed the package from the boot and took it to unit 293. Unit 293 was occupied by Orlando Henao and his wife Maria Guzman. Conversation between the applicant and Henao and Guzman in that Unit was monitored by the AFP by means of a listening device. During the course of this conversation the applicant on two occasions referred to the consignment saying "the lady has arrived". He said that a person named Johnny had $20,000 and was waiting for Henao to sell to him. Henao then said: "and there is still another one on the way which is coming. It will arrive the day after tomorrow". 12 The applicant left the premises at around midday, leaving the package with Henao and Guzman. They subsequently took it to another unit in the same block. This unit had been rented by the applicant on 5 September 1997 for a period of six months. It was unfurnished. Henao and Guzman commenced to dismantle the satellite receiver inside the unit. At about 1.15 pm the applicant returned and went to that unit. Conversation in the unit was monitored by the AFP. Henao said to the applicant "This is salt. Taste it. Try it with your tongue". Discussion took place after that between the three offenders concerning the identity of the person who may have swapped the drug for salt. 13 At about 1.50 pm that day, AFP officers entered the unit and arrested the applicant, Henao and Guzman. 14 The applicant declined to be interviewed by police. 15 The cocaine contained in the first consignment was found to be 69% pure with a net weight of 2635.4 grams of pure cocaine. The cocaine contained in the second consignment was found to have an average purity of 37% and a net weight of 1249.0 grams of pure cocaine. The net weight of pure cocaine contained in the two consignments was 3884.4 grams. 16 The applicant, Henao and Guzman were each charged with the same two offences contrary to s233B(1)(d) of the Act. Henao was also charged with an offence relating to the possession of money reasonably suspected of being the proceeds of crime. The amount involved in his case was the sum of $134,650 being cash found in his apartment. He, too, asked the court to take into account that matter pursuant to the provisions of s 16BA of the Crimes Act 1914. 17 The applicant, Henao and Guzman each entered pleas of guilty to each count before the District Court on 6 October 1998. Kiriakos Markar also entered a plea of guilty to a charge brought against him of attempting to obtain possession of prohibited imports, to which s 233B of the Customs Act applies, namely a quantity of cocaine being not less than the commercial quantity. Judge Christie sentenced each of the offenders. Kiriakos Markar was dealt with on 27 November 1998. His Honour found that Markar's activities in the enterprise must be looked at as about the level of a courier. He imposed a sentence of six and a half years (taking into account a period of close to six months pre-sentence custody which had been served) and specified a non parole period of four and a half years. 18 On 9 April 1999 Judge Christie dealt with Henao and Guzman. His Honour sentenced Henao on the first count to a sentence of seventeen and a half years with a non parole period of thirteen and a half years. In the case of Guzman a sentence of twelve and a half years with a non parole period of nine and a half years was imposed on the first count. With respect to the second count Henao was sentenced to a fixed term of eight years to be served concurrently with the sentence imposed on the first count. Guzman was sentenced to a fixed term of seven years on the second count to be served concurrently with the sentence imposed on the first count. 19 Henao and Guzman appealed against the severity of the sentences imposed upon them. Both matters came before the Court of Criminal Appeal on 20 April 2000 (Regina v Guzman & Henao [2000] NSWCCA 261). In each case the Court rejected the contention that the sentences were manifestly excessive but allowed the appeals having determined that Judge Christie erred in fixing the non parole period at approximately 75% of the head sentence. In the case of Henao, the sentence was quashed and the offender re-sentenced to a term of seventeen and a half years imprisonment with a non parole period of twelve years. In the case of Guzman, the sentence was quashed and the Court re-sentenced the offender to a term of twelve and a half years imprisonment with a non parole period of seven and a half years. It is to be noted that the Court considered it appropriate to impose a non-parole period proportionately somewhat higher in the case of Henao than that imposed on Guzman. This reflected both Henao's criminal antecedents and the relatively greater role played by him in the enterprise. In 1984 Henao had been convicted of the supply of Indian hemp and sentenced to a term of three years imprisonment. Subsequently, he had been convicted by a court in New York of the supply of a controlled substance. For this offence he was sentenced to a term of between five years and life imprisonment. On his release on parole he was deported from the United States and he returned to Australia. Within six months of his arrival he was arrested in connection with the subject offences. 20 Mr Byrne SC, who appeared on behalf of the applicant, advanced three challenges to the sentence imposed on the first count: (i) it was manifestly excessive in the light of the guidelines promulgated by this Court in R v Wong and Leung (1999) 108 A Crim R 531 at paras 141-142; (ii) it was excessive by comparison with the sentences imposed on the co-offenders, Henao and Guzman; (iii) the non-parole period was fixed at too great a proportion of the head sentence. 21 In the light of the view I take concerning the second ground, I do not propose to dwell at length on the submissions which challenged the sentence as manifestly excessive in the light of Wong and Leung. It is to be noted that the applicant's offences involved a total of 3.88 kilograms of cocaine. This brings him within the "substantial commercial quantity" category by reference to the classification of offences in Wong and Leung. Mr Byrne accepted that it was appropriate to have regard to the total quantity of the drug involved in the two importations in this regard. He submitted that accordingly the range was between ten and fifteen years although he acknowledged than an increment may be appropriate in order to reflect the fact that the applicant was not to be dealt with as a "mere courier". 22 The applicant pleaded guilty, he had an unblemished record and had provided assistance to the authorities. In the light of these three factors it was contended that a sentence which was "at the top of the range" nominated in Wong and Leung bespoke error. I do not accept that is so. The guideline in Wong and Leung was expressed to apply to couriers and persons low in the hierarchy of the importing organisation. There was no issue but that the applicant's role in the commission of the subject offences was greater than that of a courier or person low in the hierarchy of the importing organisation. In the light of this concession it is seems to me to be wrong to speak of the present sentence as being "at the top of the range". 23 In the course of his reasons, Judge Christie said that he considered a sentence of twenty five years to be an appropriate starting point. His Honour said that he proposed to reduce this to one of twenty-one years in order to reflect the applicant's plea of guilty, prior good character, assistance to the authorities (which also led to the circumstance that the applicant would serve at least a significant proportion of his sentence in protection) and the delay in the matter being finally disposed of by the Court. Mr Byrne observed that the discount identified by his Honour was of the order of fifteen percent. He submitted that this was an insufficient recognition of the favourable factors identified by the Judge. 24 Mr Byrne placed greatest emphasis in developing this latter submission on the applicant's assistance to the police. The applicant had come forward at a relatively early stage in the investigation. The nature of his assistance was described by Federal Agent Zuccato in a letter dated 6 October 1998. Agent Zuccato noted:

"Whilst some of the information provided by the prisoner has been of substantial value not all of the information provided by the prisoner has been accepted by the authorities as truthful".

The officer went on to observe that the applicant had been called on behalf of the defence to give evidence at the trial of a related offender named Campos. The Crown did not accept that the version of events given by the applicant in his evidence was truthful. 25 In Regina v Cartwright (1989) 17 NSWLR 243 this Court observed that the extent of any discount given for assistance to the authorities will depend to a large extent upon the willingness with which disclosures are made. If disclosures are tailored to avoid uncomfortable subjects the discount will plainly be less. A discount will rarely be substantial unless the offender discloses everything that he knows. The evaluation of the applicant's assistance to the authorities needs to be measured against the circumstance that he appears not to have been fully frank with the police. The fact that the Crown considered that the applicant had given untruthful evidence in the matter of Campos (which might be thought to have been reinforced by Judge Christie's assessment that the applicant's evidence in the sentencing proceedings was patently untruthful) are matters which do not commend a view that this was a case which called for a substantial discount in recognition of the applicant's assistance to law enforcement. 26 The applicant's plea of guilty was not entered at the first opportunity and it was offered in the face of a strong Crown case. Although a discount of fifteen percent taking into account each of the matters to which I have referred was a modest one I am not persuaded that to have failed to allow a greater discount demonstrates error. 27 I do not consider that it has been shown that the sentence was manifestly excessive. 28 The principal focus of Mr Byrne's oral submissions centered on what was said to be the disparity between the sentence imposed on the applicant and that imposed on Guzman. This was associated with a submission that the sentencing judge erred by failing to give notice to the applicant that he proposed sentencing the applicant upon a factual basis inconsistent with the agreed statement of facts. That statement, tendered in the Crown case on sentence, included the following assertion: "The AFP consider that the prisoner was actively involved in the syndicate but at a lesser level from that of Henao and Guzman".

29 In the course of his reasons for sentence, Judge Christie observed: "Indeed it was argued on behalf of Mr Uzabeaga that his involvement in relation to this enterprise was below that of Mr Henao, and below that of Ms Guzman. Certainly the Crown facts, and the submissions on sentence from the Crown, would indicate that the authorities regard his involvement as being less than Henao and less than Guzman. I simply (find) that I cannot accept that his involvement was less than Guzman. I do think that Mr Henao was probably the moving force, or at least the moving force in this enterprise, but the involvement of this prisoner is very much closer to that of Henao than it is to Guzman, and I do not think that there was a particularly large difference between the involvement of Guzman and Henao."

30 Mr Byrne did not seek to contend that a sentencing judge was bound by the statement of agreed facts. However, he submitted that it was an error if his Honour was minded to approach the matter upon a basis other than that disclosed by the agreed facts to fail to warn the parties of that intention in order to give the parties an opportunity to meet it. It was contended that the applicant had been entitled to approach the sentence hearing upon an assumption that his culpability would be viewed by the sentencing judge as of a lesser order than the culpability of Henao and Guzman. 31 In this Court the Crown submitted that it had been open to Judge Christie to make the findings he did as to the offenders' respective culpability. In this regard the Crown Prosecutor submitted that "his Honour wasn't necessarily bound to accept what seemingly was the view of a police officer". 32 The first thing to be said concerning the latter submission is that this was not the way the Crown approached the matter before the Judge Christie. The statement of facts was placed before the Court as the agreed facts upon which the Judge might proceed to sentence. It is clear from the extract of his Honour's reasons, cited in paragraph 27 above, that the Crown in submissions maintained, consistently with the agreed facts, that the applicant's role was a lesser one than that of Henao and Guzman. 33 The assessment of the role played by the applicant within the hierarchy of the syndicate responsible for the two importations relative to the roles played by Henao and Guzman was a significant part of the sentencing process. That it is appropriate for a sentencing judge to seek to identify any feature which might lead to imposing a different sentence on one or more of a number of persons jointly charged with an offence arising out of the importation of prohibited imports was acknowledged in R v Olbrich [1999] 73 ALJR 1550 per Gleeson CJ, Gaudron, Hayne and Callinan JJ at 1553 para [19]. 34 A sentencing judge is not bound to accept and act upon the parties' agreement as to the factual basis upon which a prisoner is to be sentenced. In Chow v Director of Public Prosecutions (1982) 28 NSWLR 593 at 606 Kirby P (as he then was) observed: "The foregoing rules do not oblige a sentencing judge passively, and unquestioningly, to accept facts as the basis for sentencing which are presented by the prosecution and/or the accused. The judge's sentencing discretion is to be exercised in the public interest. Even where the prosecution and the accused are agreed, they cannot fetter the judge's performance of the judicial function by their plea bargaining: See Malvaso v The Queen (1989) 168 CLR 227 at 223; R v Altham (NSW CCA, 18 June, 1992, unreported) per Hunt CJ at CL. A statement of agreed facts may appear to the sentencing judge to be inadequate for sentencing purposes. The judge may feel the need for further material, for example, by way of pre-sentence report to assist in the performance of the sentencing function. The parties cannot forbid the judge to seek such assistance. They have their respective functions to perform. But they cannot invade the judicial function any more than the judge may invade their functions."

35 This is not to say that a sentencing judge is free to make findings of fact inconsistent with the statement of agreed facts without warning of his intention so to do. In Chow in a passage preceding that which I have extracted above His Honour observed: "Indeed, circumstances may exist where a failure on the part of a judge to disclose matters of concern, or a course of conduct contemplated, will themselves amount to a departure from the rules of procedural fairness: cf Galea v Galea (1990) 19 NSWLR 263 at 279; Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701."

36 In R v O'Neill [1979] 2 NSWLR 582 Moffitt ACJ in discussing the approach to be adopted by a sentencing judge in a case where he or she is minded to reject a circumstance urged on behalf of a prisoner in mitigation observed at p.589: "In such a case, if the circumstances, if proved, could affect the sentence, it will usually be best not to reject the submission without inviting counsel to lead evidence to support it."

37 The considerations which commend that a sentencing judge inform the parties of any intention to make factual findings inconsistent with those contained in the agreed statement of facts seem to me to be more compelling than those with which his Honour was concerned in O'Neill. 38 In my view, the sentencing judge erred in failing to inform the applicant that he was minded to sentence him upon an assessment of his relative culpability which differed from that contained in the agreed facts and in failing to give the applicant the opportunity to address that matter by evidence or otherwise.

39 Error having been disclosed, it is appropriate for this Court to embark on upon a re-sentencing of the applicant. In imposing sentence upon the applicant it is appropriate to have regard to considerations of parity in sentencing. The principles in this respect are as stated in Lowe v The Queen (1994) 154 CLR 606. In that case Brennan J (as he then was) at 617 observed: "The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case."

Dawson J said at p 623: "[J]ustice should be even handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done. … This has led to the variation of sentences by Courts of Appeal in order to reduce the disparity between sentences separately imposed upon co-offenders even where the sentence varied was not in itself excessive". 40 In this Court the Crown sought to defend the sentence imposed in the District Court by submitting that the applicant's role in the two importations was greater than that of Guzman. We were not informed of any reason for this change in the Crown's position. I approach the matter in conformity with the assertion contained in the agreed facts upon the basis that the applicant was actively involved in the syndicate but that his role was of a lesser order than either Henao or Guzman. I consider that this requires that the applicant not receive a sentence of greater severity than that imposed on Guzman. 41 As I have noted Guzman was sentenced to a term of twelve and a half years. She appealed against the severity of that sentence. The Crown did not lodge a cross appeal seeking to contend that the sentence was inadequate. In the event, the sentence of twelve and a half years stood although a lesser non parole period was substituted. 42 It is necessary to consider whether the principles governing parity in sentencing together with the subjective case made by the applicant require the imposition of a sentence of lesser duration than that imposed on Guzman. 43 Neither the applicant nor Guzman had prior convictions. Both pleaded guilty on the same occasion. Mr Byrne pointed to the evidence of the applicant's assistance to the police and noted that Guzman had given no assistance. For the reasons I have already given I am not of the view that the applicant's assistance was such as to entitle him to a discount in sentence of any substance. 44 The Court received the affidavit of Luke Thomas Brasch, the applicant's solicitor, sworn on 30 August 2000 provisionally upon the basis that it would be taken into account in the event that the appeal was upheld. I have regard to the contents of the affidavit and to the annexures thereto. The affidavit discloses that the applicant was the subject of an assault whilst being held in custody at the Long Bay Correctional Centre. He suffered a fractured jaw. A medical report concerning this incident is annexed to the affidavit. That report makes reference to the applicant's medical history, which includes the loss of a testicle, and discloses that he has suffered symptoms of post traumatic stress disorder in respect of which he has been receiving medication over a lengthy period. These latter difficulties were the result of the applicant spending two years in a concentration camp in Chile. A report of Dr Westmore, psychiatrist, provides further detail concerning the applicant's experiences in that camp and the circumstances in which he came to lose his testicle. Dr Westmore notes that nursing staff at the Long Bay facility have expressed concerns about the applicant's psychological well being. Medical notes of the Corrections Health Service show the applicant has features of an anxiety disorder and major depression.

45 Considerations of parity in sentencing may lead to the imposition of a sentence upon an offender of lesser severity than the circumstances of the offence and the offender might otherwise call for. Indeed it has been recognised that on occasions parity in sentencing may lead to the imposition of what would otherwise be an inadequate sentence on an offender; Regina v Hodges (NSWCCA, unreported, 20 August, 1997). In that case Hunt CJ at CL observed: "Where co-offenders A and B receive inconsistent punishment, the law says that the harsher punishment imposed upon A should be reduced to be consistent with the lesser punishment imposed upon B - even to the extent of granting unwarranted leniency to A by substituting an inadequate sentence - so as to eliminate a justifiable sense of grievance on the part of A and the appearance to the community of unfairness or injustice." 46 Equally it is recognised that there may be cases in which the inadequacy of the lower sentence imposed on a co-offender is such that any sense of grievance engendered may no longer be regarded as a legitimate one: R v Diamond (NSWCCA, 18 February, 1993) and R v Steele (NSWCCA, 17 April, 1997). It is to be borne in mind that the applicant was involved at a level above that of mere courier in the hierarchy of the syndicate involved in these two importations of substantial quantities of cocaine into Australia. Accepting that his role in that syndicate was of a lesser order than that of Guzman it remained a significant one. It was the applicant who arranged the customs clearance for the consignments, who recruited Markar to assist in collecting the same and who rented the unit in which they were dismantled. 47 I propose that the applicant be sentenced to a sentence in like terms to that imposed on Guzman. I consider that any sense of grievance felt by the applicant arising out of the imposition of a sentence not less than that imposed on Guzman would not be a justifiable one for the reasons explained in Diamond and Steele. I took Mr Byrne to concede as much in the course of oral argument when he modified his submission (that the applicant ought to be sentenced to a term less than that imposed on Guzman) to one contending that the applicant ought not to be treated more harshly than Guzman. 48 For these reasons, I propose the following orders:

3. The sentence imposed in the District Court on count 1 be quashed; 4. In lieu thereof the applicant be sentenced to imprisonment for twelve years and six months to date from 14 October 1997. Specify a non parole period of seven years and six months. That non parole period will expire on 13 April 2005. **********

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