Regina v Zuluaga-Gomez

LEGISLATION CITED : Customs Act 1902 (Cth) Crimes Act 1914 (Cth) Gallagher v R (1991) 23 NSLWR 220 Pang v R (1999) 105 A Crim R 474 Pearce v The Queen (1998) 194 CLR 610 R v Bugeja [2001] NSWCCA 196 CASES CITED: R v Hammoud [2000] NSWCCA 540 R v Sharma [2002] NSWCCA 142 R v Smith [2001] NSWCCA 279 R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 Regina v Cartwright (1989) 17 NSWLR 243 DECISION : Leave to appeal against the severity of the sentences granted; Appeals allowed in each case; Sentences imposed in the District Court quashed; In lieu thereof, the applicant is sentenced with respect to his conviction on the first count (being knowingly concerned in the importation of a traffickable quantity of cocaine) to a term of five years imprisonment to date from 24 July 1999. That sentence will expire on 23 July 2004; With respect to his conviction on the second count (being knowingly concerned in the importation of a commercial quantity of cocaine) the applicant is sentenced to a term of seven years imprisonment to date from 24 July 2004. That sentence will expire on 23 July 2011; Pursuant to s 19AB of the Crimes Act 1914 (Cth) fix a single non-parole period of eight years to date from 24 July 1999. That period will expire on 23 July 2007

IN THE COURT OF CRIMINAL APPEAL 60193/01

HANDLEY JA SIMPSON J BELL J

Wednesday 4 September 2002 REGINA v Obiel Antonio ZULUAGA-GOMEZ Judgment 1 HANDLEY JA: I agree with Bell J. 2 SIMPSON J: I agree with Bell J. 3 BELL J: Obiel Antonio Zuluaga-Gomez seeks leave to appeal against the severity of sentences imposed on him in the Sydney District Court on 9 March 2001. He was sentenced in respect of two offences involving the importation of substantial quantities of cocaine into Australia. Both offences were charged pursuant to s 233B of the Customs Act 1902 (Cth). The first charge alleged that between about 30 November 1998 and 2 February 1999 at Sydney the applicant was knowingly concerned with the importation of a trafficable quantity of cocaine. The maximum penalty for this offence is imprisonment for a term of twenty-five years. 4 The second charge alleged that between 20 July and 24 July 1999 at Sydney the applicant was knowingly concerned with the importation of a quantity of cocaine being not less than the commercial quantity applicable to that drug. The maximum penalty for this offence is imprisonment for life. 5 The judge discounted both sentences to take into account various considerations. He sentenced the applicant to a term of six years imprisonment to commence on 24 July 1999 (the date on which the applicant was taken into custody) on the first charge. A sentence of nine years imprisonment to date from 24 July 2005 was imposed on the second charge. The latter sentence was thus made wholly consecutive to the first. In accordance with the provisions of s 19AB of the Crimes Act 1914 (Cth) the judge imposed a single non-parole period. He determined that the non-parole period should represent approximately six-five percent of the aggregate sentence of fifteen years. He specified a non-parole period of nine years and nine months commencing on 24 July 1999. 6 The facts with respect to each offence were set out in a statement of facts prepared by Federal Agent Williams. The judge dealt with the first charge upon the basis that the applicant offered the sum of $12,000.00 to a man named David Harris. In exchange for this sum Harris was to take delivery of two DHL Express mail packages. The packages contained reels of audiotape. Concealed within the reels was a quantity of powder weighing 1.766 kilograms. The powder was an admixture containing cocaine. The quantity of pure cocaine was 1.153 kilograms. The packages were consigned to Sydney from Ecuador. Extensive electronic and visual surveillance revealed the applicant's role in the importation.

7 The second charge related to a consignment of batteries addressed to the applicant at premises in Kensington which arrived in Sydney from Panama on 20 July 1999. The following day officers from the Australian Customs Service examined the consignment. A narcotic field test revealed that the batteries contained cocaine. The cocaine was removed and an inert substance was substituted for it. Arrangements were made thereafter for a controlled delivery of the consignment. The total quantity of powder removed from the batteries was 15.67 kilograms. 9.0166 kilograms was pure cocaine. The applicant was arrested at Edgecliff on 24 July 1999 in possession of a trolley bag containing the inert substance which had been substituted for the cocaine. 8 The judge noted that transcripts of intercepted telephone discussions between the applicant and the suppliers of the cocaine in Columbia formed part of the police brief, as did transcripts of intercepted telephone discussions between the applicant and his co-accused, Jaime Betancur ("Betancur"). At the date of the applicant's sentencing Betancur was awaiting trial. 9 The judge approached each matter upon the basis that the applicant had entered an early plea of guilty to the charge. 10 His Honour's findings concerning the role played by the applicant in these two importations were as follows: "These were no haphazard importations. The people involved undoubtedly are part of an organised group and the prisoner is not by any stretch of the imagination a mere courier. Just where he stands in the hierarchy is difficult to assess. His counsel submits that he is 'less than a principal, about that of an intermediary', thus conceding that his role was considerably greater than a courier. The Crown submits that his role is less than that of a principal but is of a mid to high level participant. That is, a supervisor for financial reward. She submits, and I agree that there is compelling evidence of significant involvement of this prisoner and his co-accused Betancur in the pre-arrival arrangement of the consignments, its collection, storage and subsequent attempted delivery in the second matter." (RS 6-7) 11 There was no challenge to his Honour's findings in this respect. 12 The judge found that the applicant's motive for involvements in each of the two importations was one of financial gain. 13 The applicant had no prior criminal convictions and the judge approached the matter upon the basis that he was a person of otherwise good character. The applicant was aged forty years. He had been born and raised in Columbia. Generally, his background was unremarkable. He had a history of employment in Columbia. He had been married and had three children by his first wife. The couple divorced in 1994 and thereafter the applicant formed a de facto relationship with a woman by whom he had two young children. His de facto partner and the children remained in Columbia. 14 The applicant challenged the sentences imposed on him on three grounds. The third ground raised what was said to be a technical error in the fixing of the non-parole period. This ground was not pressed at the hearing of the appeal and there is no need to make further reference to it. 15 The first ground addressed the structure of the two sentences. Mr Odgers SC, who appeared on behalf of the applicant, submitted that the judge erred in directing that the sentence imposed with respect to the second count be wholly consecutive to that imposed with respect to the first. 16 In dealing with the structure of the two sentences the judge said: "In this case I have not considered the sentences in isolation but with regard to the totality of the criminality involved and in regard to the totality of the sentences. According to the principles set out in Pearce v The Queen (1998) 72 ALJR 1416 (194 CLR 610) I take the view that I must fix an appropriate sentence for each offence and then consider questions of accumulation and concurrence as well as questions of totality. In this regard see para 45 et seq of the joint judgment of McHugh, Hayne and Callinan JJ in Pearce's case. I believe the totality of the sentences which I intend to impose in this case accord with the totality of the criminality of the prisoner. Ultimately the function of the criminal law is to protect the community. A sentencing judge must bear this in mind, while at the same time he or she must pay regard to concomitant sentencing principles. See for example para 39 in Pearce's case" (RS17-18)." 17 Mr Odgers accepted that his Honour was correct to approach the matter upon the basis of firstly determining the appropriate sentence for each of the two offences and then by considering whether the sentences should be accumulated in the context of the principle of totality. In his written submissions Mr Odgers placed reliance on the following passage in the reasons for sentence: "Mr Higgins, his counsel, submits that the two offences cover one period of criminality. That is so and I will take that into account, but I note that there are two distinct and serious crimes involved here, and I intend to deal with each of them in that way" (RS11)." 18 The decision to make the second sentence wholly consecutive upon the first was said to fail to give effect to the judge's stated intention of taking into account his finding that the two offences covered the one period of criminality. In the course of oral argument Mr Odgers accepted that for this challenge to succeed it would be necessary to demonstrate that the combined effect of the two sentences was of such magnitude as to offend the principle of totality. 19 I am not persuaded that an effective sentence of fifteen years imprisonment with a non-parole period of nine years and nine months reflecting the criminality involved in the two separate importations of substantial quantities of cocaine can be said to offend the principle of totality. The circumstance that the sentencing judge considered that the two offences (separated as they were by an interval of some seven months) covered "one period of criminality" did not require that he direct each sentence to be served at least partially concurrently.

20 The applicant's second ground was the central focus of the application. This ground challenged the sufficiency of the discount allowed by the judge on account of the applicant's assistance to the authorities. 21 The judge took into account the applicant's assistance to the authorities observing: "I believe that in each case a discrete quantifiable discount on the ground of assistance to the authorities should be given. I take into account not only the fact that he gave past assistance but also that he was willing to give evidence and it was not his decision that he not be called" (RS 13). 22 His Honour went on to refer to the risks to which the applicant had exposed himself by reason of his assistance to the authorities and to note the contents of Ex R. 23 Section 16A(2)(h) of the Crimes Act 1914 (Cth) requires the Court, when passing sentence, to take into account the degree to which the offender has co-operated with law enforcement agencies in the investigation of the offence or of other offences. 24 With respect to each charge the judge specified his starting point and then proceeded to make an allowance pursuant to s 16G of the Crimes Act to take account of the circumstance that remissions are not available in New South Wales. Each of the sentences was reduced by one third on this account. Next the judge quantified the discount to be applied in respect of the applicant's early plea of guilty. Finally he quantified a discount to reflect the applicant's assistance to the authorities rendered as at the date of sentence. 25 With respect to the first charge his Honour's starting point was a sentence of fifteen years imprisonment. The s 16G discount reduced this provisional sentence to one of ten years imprisonment. His Honour allowed a twenty percent discount for the early plea of guilty, thus reducing the sentence to one of eight years imprisonment. He then deducted a further two years to reflect the applicant's assistance to the authorities. 26 With respect to the second charge his Honour's starting point was one of twenty-one years imprisonment. After making an allowance pursuant to s 16G his Honour arrived at a sentence of fourteen years. He allowed a discount of approximately twenty percent to reflect the applicant's plea of guilty. This reduced the sentence to eleven years. As his Honour noted, the effect of rounding off the sentence in this way was to allow a discount slightly greater than twenty percent. He then allowed a further reduction of two years to reflect the applicant's assistance to the authorities. 27 The discount allowed in respect of the applicant's assistance to the authorities and his plea of guilty in the aggregate amounted to a forty percent reduction of the sentence imposed on the first count. The aggregate discount with respect to the second charge was one of thirty-six percent. 28 Mr Odgers submitted that after allowance is made for the s 16G reduction, the overall sentence proposed by the judge was one of twenty-four years imprisonment. In total nine years was deducted from this provisional sentence to reflect both the pleas of guilty and the assistance to the authorities. This reduction may be expressed as an aggregate discount of 37.5 percent. On this analysis of the aggregate sentence the pleas of guilty attracted a discount of 20.8 percent while the assistance to the authorities represented a discount of 16.7 percent. It was the latter figure that was said to demonstrate error. 29 In his written submissions Mr Odgers contended that the range of discounts for assistance to the authorities has been expressed to be in the order of 20 to 50 percent. In this regard he cited Pang (1999) 105 A Crim R 474; Hammoud [2000] NSWCCA 540; Smith [2001] NSWCCA 279. 30 In Pang Wood CJ at CL(in a judgment with which the other members of the Court concurred) observed at [13]: "There is no fixed tariff for the reduction that should be given for assistance, and so far no guideline judgment has been delivered in this area. However, the discount customarily given in this State for assistance, has ranged between twenty and fifty percent of the sentence that would otherwise have been imposed: Chu (unreported, Court of Criminal Appeal, NSW, No. 60232 of 1998, 16 October 1998) and Behar (unreported, Court of Criminal Appeal, NSW, No. 60363 of 1998, 14 October 1998)." 31 In Pang Wood CJ at CL considered a discount of 25 percent to be an inadequate reflection of the applicant's assistance to the authorities. An appropriate discount was held to be one of 50 percent. The applicant in Pang had pleaded guilty to a charge of being knowingly concerned in the importation of a quantity of heroin into Australia. Significantly, when one looks to the discount allowed by the sentencing judge and to the discount fixed by this Court upon the re-sentencing, it is apparent that no quantified separate discount was allowed for the plea of guilty. Pang was decided before the decision of this Court in Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383. That case concerns the discount to be allowed in recognition of the utilitarian value of a plea of guilty with respect to the sentencing of offenders for State offences. The principles enunciated therein are not without relevance when sentencing offenders for Federal offences; Bugeja [2001] NSWCCA 196. In Thomson and Houlton Spigelman CJ noted that it had not been the practice in this State to quantify a separate discount for the plea of guilty at [73]. The guideline proposed in that case emphasised the desirability of a sentencing judge quantifying the effect of the plea on the sentence so far as it was appropriate to do so. It was said that where other matters by way of discount are to be quantified (including assistance to the authorities) it may be appropriate to nominate a single combined discount at [160]. See, also R v Sharma [2002] NSWCCA 142. 32 In Pearce v The Queen (1998) 194 CLR 610 McHugh, Hayne and Callinan JJ observed at 624: "Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is then all the more important that the proper principle be applied throughout the process." 33 It is apparent that his Honour took into account the applicant's assistance to the authorities in reduction of the sentences with respect to each of the offences. The question is whether his discretion miscarried by reason that he gave insufficient weight to this consideration. 34 In written submissions the Crown acknowledged the importance of assistance to the authorities of the character of that provided by this applicant. The Crown acknowledged that the assistance in this case had been valuable. The overall discount, taking into account both the plea of guilty and the assistance, was described by the Crown as falling, "at the lower end of the available range". In the Crown's submission it was within the range of the proper exercise of discretion. 35 The parties invited us to have regard to the remarks on sentence of the trial judge in the proceedings brought against Betancur following his conviction in respect of the July 1999 importation. As I have noted, Betancur had not been dealt with at the date this applicant was sentenced. 36 Betancur was sentenced upon the basis that it was he who was "calling the shots … here in Australia and Gomez who was obeying". He was sentenced to a term of seventeen years and six months imprisonment with a non-parole period of ten years and six months to date from 10 August 2001. Betancur had no claim for a discount in respect of his plea or assistance to the authorities. 37 It is to be observed that Betancur was sentenced in respect of one offence only (albeit this was the more serious of the two importations of which the applicant was convicted). While acknowledging that Betancur thus stood in a different situation to the applicant, Mr Odgers contended that it was relevant to have regard to his sentence in considering whether the discount given to the applicant for his assistance sufficiently reflected the public interest that offenders be encouraged to supply information to the authorities which will assist them in bringing other offenders to justice and to give evidence against those other offenders; Regina v Cartwright (1989) 17 NSWLR 243 per Hunt J and Badgery-Parker J at 252. 38 It is rarely appropriate in cases of this sort for the Court to detail the assistance the subject of the discount. I do not propose to do so on this occasion. It is sufficient to observe that the applicant's assistance was substantial. 39 I am mindful that considerations of an offender's assistance to the authorities should not be permitted to subsume a consideration of the criminality involved in his or her offending. In sentencing Federal offenders as much as in the sentencing of State offenders a discount reflecting assistance to the authorities and a timely plea of guilty must not be allowed to produce a sentence which is disproportionate to the nature and circumstances of the offence. In each case it is necessary to achieve an appropriate balance. In the investigation and prosecutions of persons associated with major drug importation syndicates there exist strong grounds for the courts being seen to encourage offenders to assist the authorities. In this respect I have regard to Gleeson CJ's observations in R v Gallagher (1991) 23 NSLWR 220: "There is what might be called the utilitarian consideration involved in encouraging persons to provide information which will permit the apprehension and successful prosecution of other offenders. Public opinion seems to accept this as reasonable enough in a case where, for example, a middle level dealer in a drug operation provides information enabling the apprehension and prosecution of more senior persons in the organisation. The approach seems to be less readily accepted in some other circumstances, especially in cases where there is an identifiable victim of violent crime, or where imprisoned informers, sometimes of extremely doubtful reliability, are seen to be taking cynical advantage of a system which may lend itself to exploitation by the unscrupulous."

40 I am persuaded that in this case error has been identified in that an insufficient discount was given to the applicant for his assistance to the authorities. I would allow the appeal and re-sentence the applicant so as to allow an aggregate discount of fifty percent reflecting both the plea of guilty and the assistance in each case. The single non-parole period which I propose represents slightly more than sixty-five percent of the overall sentence. I consider that a non-parole period of any less than eight years would fail to adequately reflect the objective gravity of the offences. 41 For these reasons I propose the following orders:

(i) grant leave to appeal against the severity of the sentences;

(iii) quash the sentences imposed in the District Court;

(iv) in lieu thereof, the applicant is sentenced with respect to his conviction on the first count (being knowingly concerned in the importation of a traffickable quantity of cocaine) to a term of five years imprisonment to date from 24 July 1999. That sentence will expire on 23 July 2004;

(v) with respect to his conviction on the second count (being knowingly concerned in the importation of a commercial quantity of cocaine) the applicant is sentenced to a term of seven years imprisonment to date from 24 July 2004. That sentence will expire on 23 July 2011.

(vi) Pursuant to s 19AB of the Crimes Act 1914 (Cth) fix a single non-parole period of eight years to date from 24 July 1999. That period will expire on 23 July 2007.

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