REGINA v VASQUEZ

LOWER COURT District Court JURISDICTION : LOWER COURT 99/11/0346 FILE NUMBER(S) : LOWER COURT Luland DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60142/2002

MEAGHER JA DOWD J BARR J

1 MEAGHER JA: I agree with Dowd J. 2 DOWD J: The applicant was sentenced by Luland DCJ in the Sydney District Court on 14 January 2000 consequent upon his plea of guilty to an offence that the applicant was knowingly concerned in the importation of a trafficable quantity of cocaine, contrary to s233B (1)(d) of the Customs Act 1901 (Commonwealth), the pure weight of the cocaine being 649.5 grams. The maximum penalty for this offence is imprisonment for twenty five years or a fine of $100,000.00 or both.

3 The applicant was convicted and sentenced to nine years imprisonment with a non-parole period of six years to commence from 11 January 1999.

4 The applicant seeks an extension of time to seek leave to appeal. The applicant's co-offender in respect of these matters giving rise to the charge, Brian Abdallah, was sentenced for his involvement in the applicant's offence on 5 July 2002. The sole ground of appeal contended on behalf of the applicant arises from disparity in sentence.

5 I consider that the applicant should be granted an extension of time to seek leave to appeal in the particular circumstances (R v Young [1999] NSWCCA 275). The Facts

6 The facts which were tendered in sentence are in the following terms: On 6 January 1999, customs officers detected the drug concealed in a suitcase after it had been received at the Qantas mail handling unit. The package had originated in Uruguay and was addressed to "Spot and Line Clothing Company" 26 Byrnes Street, Campsie, code 219 ph 041 097 873 Sydney, Australia. Police later established the phone number belonged to the applicant. Inquiries revealed that the "Spot and Line Clothing Company" did not exist.

Analysis revealed that the pure weight of the drug imported was 649.5 grams, which is well in excess of the trafficable quantity of two grams and had an estimated street value of $390,000.00. On 8 January 1999, the applicant attended the Australian Customs Service Clearance section with customs clearance documents relating to the package. When told there was a delay, he supplied the name "Herman" and later phoned and said he could be contacted on a telephone number belonging to a Mrs Myrtoglou of Marrickville, who was the registered owner of the vehicle which the applicant later used to collect the package. The police had removed the drugs from the package and had reconstructed it with a control sample having implanted a listening device which had malfunctioned. On 11 January the applicant again came to the cargo terminal claiming to be a representative of "Spot and Line Clothing Company" and signed a delivery order. After giving identification particulars he signed his own name, collected the parcel and returned to the vehicle to join the co-offender Brian Abdallah. The vehicle was driven from the airport and was followed by police through the Campsie-Burwood area, but surveillance was lost around Enfield. Some fifteen minutes later the car was again sighted, leaving the rear of the Royal Sheaf Hotel. Police checked a waste dumpster behind the hotel and found the opened box and empty suitcase discarded in the bin. Police intercepted the vehicle in Campsie and the two men were arrested and taken to the police station where they refused to be interviewed and were charged. At the time of the applicant's sentencing, all that was known by the learned sentencing judge for Abdallah was that Abdallah had pleaded not guilty to the same charge. 7 There had been a search conducted of the co-offenders girlfriend's home where the electronic signal was recovered, tools used to open the suitcase and other parts of the original package and documentation upon which Abdallah's fingerprints were found. In the applicant's house there were gladbags, white paper residue, scales, phone bills indicating a number of calls to Chile, paper with weight calculations and a rifle. 8 The applicant did not give evidence on sentencing and it was remarked by his Honour, the sentencing judge, in his remarks on sentence at page 4: "I am therefore left to assess the prisoner's culpability upon the objective facts before me. I am satisfied the prisoner played a very significant role in the organisation and collection of the prohibited import. Further, he was directly involved in the unpacking and attempted acquisition of them". 9 His Honour made no findings of fact in relation to the comparative roles of the applicant and his co-offender. 10 Abdallah was originally charged with knowingly taking part in the importation of cocaine, pleaded not guilty and was found guilty by a jury on 10 March 2000 and subsequently sentenced by Howie DCJ to a term of seven and a half years with a non-parole period of four and half years. 11 That conviction and sentence were quashed on appeal and a new trial ordered and on 1 March 2002 the new trial was listed. On 5 April 2002 the applicant's solicitor advised that the offender would plead guilty to the offence of attempting to posses a prohibited import. That plea of guilty was accepted by the Commonwealth Director of Public Prosecutions in full satisfaction of the original charge against Abdallah. 12 In the proceedings before Howie DCJ, Abdallah gave evidence denying knowledge of the prohibited drug and said that it was only when the applicant started to dismantle the suitcase that he realised something was wrong and he demanded that the applicant remove the suitcase from the unit. He said he dumped the suitcase because he didn't want to be connected with the applicant's activities. 13 After acceptance of the plea Abdallah was sentenced by Bell DCJ on the basis that the plea of guilty was entered at the earliest opportunity and that they were predicated on a different set of facts, particularly not involving the knowledge of importation. Abdallah was sentenced to a head sentence of four years and four months with a non-parole period of two years and four months. The sentence was backdated to take into account pre-sentence custody the result being in the end that Abdallah was released to parole on 19 July 2002 being the date of imposition of the sentence. Bell DCJ made no reference to the sentencing of the applicant and did not comment on the issue of the relationship of the two sentences. 14 Counsel for the applicant has submitted that fresh consideration should be given to the issue of parity as it was not considered in the remarks on sentence of Bell DCJ (R v Krausman (unreported) NSWCCA 10 October 1991). It is further submitted that the application of the principals concerning parity oblige a reduction in the applicant's sentence. 15 At the sentencing hearing there was some discussion about Abdallah's knowledge of the importation and Abdallah was specifically sentenced with that factor not being brought into consideration. Bell DCJ in sentencing made calculations as to the sentence that should have been imposed and found that in terms of the appropriate sentence he should have been sentenced for an additional period of five to nine months. 16 In fact Abdallah had by then been released and it would have caused him to re-enter prison within the Corrective Services system for an additional sentence. Her Honour took into account the effect on a person having been released and having proceeded along the path of rehabilitation to then be re-sentenced and to re-enter the prison system for the purposes of serving a supplementary sentence of a few months. This was in my view a proper reasoning in not reimposing an additional sentence and could not give rise to a justifiable sense of grievance. 17 The fact is, although the maximum penalties for the two offences were the same, they are two very different sentences. The principles established by Lowe v The Queen (1984) 154 CLR 606 and R v Hauser (unreported) NSWCCA 11 December 1977, which relate to co-offenders of the same offence, do not precisely apply to persons who have committed different offences with different degrees of seriousness. In my view the degree of seriousness involved in Abdallah's offence was considerably less than that of the applicant, since it did not involve the knowledge of importation. 18 The distinction between the two cases was such that the applicant does not have a justifiable sense of grievance and I would dismiss the appeal. 19 The orders that I propose are: i. The time for bringing the appeal be extended. ii. Leave be granted to bring the appeal. iii. The appeal should be dismissed. 20 BARR J: I also agree. 21 MEAGHER JA: The orders of the Court therefore will be the orders proposed by Dowd J.

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