Trujillo-Mesa v R

CATCHWORDS: CRIMINAL LAW - appeal against sentence - conspiracy to deal with money believed to be the proceeds of crime - whether sentencing judge erred in not affording 25 per cent discount for early plea

LEGISLATION CITED: Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)

Fairbairn v R [2006] NSWCCA 337; 165 A Crim R 434 CASES CITED : R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383

PARTIES: Gloria Patricia Trujillo-Mesa (App) The Crown (Resp)

COUNSEL: P Lange (App) L Crowley (Resp)

SOLICITORS: Legal Aid Commission of NSW (App) Commonwealth Director of Public Prosecutions (Resp)

IN THE COURT OF CRIMINAL APPEAL 2009/4159

HODGSON JA PRICE J FULLERTON J

10 SEPTEMBER 2010 TRUJILLO-MESA v R JUDGMENT 1 HODGSON JA: I agree with Fullerton J. 2 PRICE J: I agree with Fullerton J. 3 FULLERTON J: The applicant seeks leave to appeal against a sentence imposed in the District Court on 13 August 2009 after she pleaded guilty to a conspiracy to deal with money believed to be the proceeds of crime contrary to ss 11.5 and 400.4(1) of the Criminal Code Act 1995 (Cth) in the Local Court on 18 March 2009. The offence carried a maximum penalty of 20 years imprisonment and a fine of $132,000.

4 The applicant was sentenced to a term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months. The sentence was backdated to the date of her arrest in the United States of America in August 2008 pending her extradition to Australia in November 2008.

5 An agreed statement of facts was tendered on sentence. It is not necessary to refer to the facts other than in summary since the application for leave to appeal is limited to what is submitted to be an error in the calculation of the discount for what was an early plea of guilty and a related ground of appeal that the sentencing judge denied the applicant procedural fairness by his apparent acceptance of the Crown's concession that her sentence would be discounted by 25 per cent in the course of the hearing, after which he gave her no opportunity to be heard further on the issue before sentence was pronounced in which a discount of only 20 per cent was allowed. The facts 6 On 23 December 2005 1,168 kilograms of "Lucuma" powder was imported into Australia from Peru via air freight. At an unknown time in early 2006 the shipment was delivered to premises at Bent Street, St Mary's NSW, where it was treated with chemicals and petrol for the extraction of approximately 30 to 34 kilograms of cocaine. 7 Quantities of the cocaine were stored at premises at Stanley Street, Campsie NSW and sold by Carlos Cervantes and Cesar Maldonado to a network of dealers who were in regular contact with Maldonado. 8 The street value of the cocaine would have been between about $16.338 million and about $22.874 million, and the wholesale value would have been between about $6.061 million and about $9.622 million. 9 From early in 2006 the cash proceeds of the sale of the cocaine were remitted to Peru. For this purpose, quantities of cash were given to the applicant which were stored in an apartment which was rented by her and Cervantes at Lachlan Street, Waterloo NSW. 10 Thereafter she distributed the cash to a number of students for the purposes of it being remitted overseas. She maintained a record of those transactions.

11 The money was sent to Peru via Western Union, Money Gram transfers and international telegraphic transfers from various banks. 12 Between about 20 March 2006 and 1 May 2006 the applicant dealt with approximately $799,927 in this way. At the time of the applicant's dealing with money pursuant to the conspiracy, she was aware that it was the proceeds of crime from the sale of cocaine.

His Honour's findings 13 The sentencing judge referred to a number of matters as bearing specifically on the sentence to be imposed having regard to the imperative under s 16A(2) of the Crimes Act 1914 (Cth) that the sentence be of a severity appropriate in the circumstances of the offence. He referred, in particular, to the objective seriousness of the offence as evidenced by the amount of money involved and the very large number of individual transactions, the details of which were recorded in her diary. He also noted that the system was elaborate and involved the use of code words which, overall, lent a level of sophistication to the enterprise. He did not regard her role in the conspiracy as minor but found that she played an important role in the criminal scheme by which the proceeds of the sale of cocaine were remitted overseas. His Honour was satisfied that the offence fell within the upper range of offences its kind.

14 With respect to the applicant's subjective circumstances the sentencing judge noted that the applicant was born in South America and that she came to Australia in 2001 to study English. She married but was divorced a few years later. She acquired her permanent residency in 2003 and worked as a cleaner from that time before leaving Australia on or about 1 May 2006. His Honour accepted that she was genuinely remorseful and that she was otherwise a person of good character.

15 His Honour also took into account the need for general and specific deterrence and considered issues of parity. It is not submitted that he failed to give appropriate weight and consideration to any of these matters in the sentencing exercise. The grounds of appeal

16 It is convenient to deal with both grounds of appeal together.

Ground 1: His Honour erred in not affording the applicant a discount of 25 per cent for her early plea of guilty

17 This Court has restated in a number of decisions, and without qualification, that there is no entitlement to and no presumption favouring a particular percentile discount for a plea of guilty. As a matter of general practice, however, the utilitarian value of a plea is enhanced by the time at which it is entered such that the maximum discount is generally reserved for a plea at the earliest opportunity (see R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 per Howie J at [31]-[36]). The discount for a plea of guilty is simply one of a number of factors in the discretionary exercise that fall to be considered in the calculation of an appropriate sentence. It also needs to be emphasised for the purposes of this case that despite the range of discount in R Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 being adopted in the sentence of Commonwealth offenders as a reasonable range, the discount for the plea of guilty in such cases reflects an offender's willingness to facilitate the course of justice and is not attributable to the utilitarian value of the plea. 18 On the appeal the applicant drew attention to the timing of the plea of guilty as a clear indicator of her willingness to facilitate the course of justice. It was entered in the Local Court within three months of her extradition and was maintained through to sentence in the District Court. It would also appear from the materials before the sentencing judge that she did not oppose her extradition from the United States of America which is relied upon as further evidence of her willingness to facilitate the course of justice, although not the subject of specific mention by the sentencing judge. The applicant submitted that in these circumstances she should have been awarded the maximum discount of 25 per cent.

19 In the sentencing remarks his Honour said: "The offender pled (sic) at the first opportunity and she will receive a discount of 20 per cent for the plea's assistance in the administration of justice." 20 His Honour went on to say that: "The offender said in the witness box that she had "done the wrong thing" and caused her parents great pain and suffering. She said she had learned a "big lesson" and she apologised to Australia, her parents and family for what she had done and she was "really sorry". I accept that she is remorseful." 21 It was not submitted that the evidence of remorse had any bearing on the calculation of the discount for the plea of guilty or that it was not otherwise adequately accounted for in the sentencing exercise.

22 I am of the view that a discount of 20 per cent was within the range of an available discount in the discretionary sentencing exercise, even if it may have attracted a more generous discount by a measure of an additional 5 per cent by another sentencing judge. It was not, in my view, so unreasonable an exercise of the sentencing discretion as to warrant intervention by this Court. I would reject the first ground of appeal. Ground 2: His Honour denied the applicant procedural fairness in that he apparently accepted that the applicant would receive a discount of 25 per cent for her early plea of guilty, but then reduced that discount to 20 per cent without providing the applicant an opportunity to advance further submissions

23 The further ground upon which the applicant sought the intervention of this Court arose in the context of an agreement between the Crown and the offender in the sentencing proceedings that the plea of guilty should attract a discount of 25 per cent. This was reflected in the Crown's written submissions, supplemented by his oral submissions and referred to in the exchange between the sentencing judge and prosecuting counsel in the sentencing proceedings as follows: "His Honour: …What's the situation about the plea, first opportunity? Crown Prosecutor: Yes, that's addressed later. We say maximum discount." 24 In discussion with the applicant's legal representative on the question of parity his Honour recited the Crown's position as follows: "What the Crown is saying, Mr Gould, is, if you look at the amount of money, which is almost twice the amount of money from Maria, you look at the discount Maria got because of her late plea and the fact that your client will get the full 25 per cent of the amount she will, and then you look at the relativities of their roles, and the Crown says there is not much difference in their roles on the facts. Correct me if I'm wrong about your summary, Mr Crown." (emphasis added) 25 His Honour did not take any issue with the Crown's quantification of the discount as the maximum allowable or indicate that the applicant should not proceed on the assumption that the Crown's concession would result in a reduction in the term of imprisonment by 25 per cent. In these circumstances, so it was submitted, the applicant's legal representative did not address his Honour as to the value of the discount and, in the result, she was deprived of the opportunity to emphasise that the plea was not merely early in the conventional temporal sense of being entered in the Local Court within three months of her extradition to Australia, but that she had not resisted her extradition, and that a 25 per cent discount should apply for that reason.

26 It was submitted that if his Honour regarded it as a possibility that he would not discount the sentence in accordance with the Crown's concession, it was incumbent upon him to indicate to the applicant's legal representatives his reservations so as to enable her an opportunity to be heard on the question. Fairbairn v R [2006] NSWCCA 337; 165 A Crim R 434 at [37] was cited as authority for that proposition. In that case Bell J considered that where a sentencing judge has given a clear indication that there will not be an order for accumulation but in the ultimate structure of the sentence departed from that position, or where the parties proceed on an agreed position as to the role of an offender which is not reflected in the sentencing judgment in a way that is adverse to the offender, there is (or might be) a denial of procedural fairness. The Crown submitted that this case is distinguishable from Fairbairn because his Honour did not indicate in his exchanges with counsel any concluded view about the appropriateness of the Crown's concession or the quantification of the discount for the plea.

27 When his Honour published his remarks on sentence, two weeks after the sentencing proceedings concluded, somewhat unusually, it was the Crown Prosecutor who raised with his Honour the fact that 20 per cent had been afforded the plea of guilty. The transcript records the following exchange: "Crown Prosecutor: The only thing I did not hear was whether you - was the discount for the plea. I heard 20 per cent.

Crown Prosecutor: Your Honour I must say that my understanding, and I stand to be corrected, is that your Honour did indicate on the last occasion you would give a 25 per cent discount . I may have been mistaken about that, but that's my recollection.

His Honour: I indicated that , but giving further thought to all the material between then and now, I think 20 per cent is appropriate." (emphasis added) 28 His Honour went on to say: "I don't think I said that's what I would give. I had to consider all the evidence once again."

29 On the appeal the Crown submitted that whilst the sentencing judge did not expressly state the reason why he did not apply a discount of 25 per cent, it is reasonable to infer from the exchange with Crown Prosecutor extracted above that any greater discount than 20 per cent would have resulted in a sentence that would have failed to reflect his Honour's assessment of the objective seriousness of the offence. The Crown accepted that his Honour might have provided an explanation to that effect in his reasons for sentence but submitted that the failure to give an explicit explanation at that time does not constitute error given that the matter was made clear in his exchange with counsel after sentence was pronounced. While that is a submission that may have disposed of the appeal adverse to the applicant, I am persuaded that the underlined portion in the same extract supports the applicant's submission that her legal representative did in fact proceed on the basis of an indication (even if unstated) that the maximum discount would be allowed after his Honour considered the evidence and the submissions of counsel, and that in those circumstances she had been denied procedural fairness. 30 I am not satisfied that by allowing a slightly greater discount for the plea of guilty than was ultimately allowed by the sentencing judge that the term of imprisonment in this case would be reduced to a level below that which was appropriate given the seriousness of the applicant's offending. 31 The orders I propose are as follow: 1. Leave to appeal is granted. 2. The sentence imposed in the District Court is quashed. 3. In lieu of that sentence the applicant is sentenced to a term of imprisonment of 7 years to date from 4 August 2008 and expiring on 3 August 2015. I fix a non-parole period of 4 years and 2 months. The applicant will be eligible for release to parole on 3 October 2012. **********

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