Solicitors:
Matthew Lorkin Solicitor - Applicant
Commonwealth Director of Public Prosecutions - Respondent Crown
File Number(s): 2010/401567
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 27 April 2012
Before: Frearson SC DCJ
File Number(s): 2010/401567
[2]
Judgment
HOEBEN CJ at CL:
Offence and sentence
The applicant (and co-offenders Temisi Haniteli Telefoni and Viliami Tauataina Faingata'a) stood trial before Frearson SC DCJ in the District Court between 26 September 2011 and 12 December 2011. The jury was empanelled on 4 October 2011 and retired to consider its verdicts on 8 December, returning verdicts of guilty on 12 December 2011.
The indictment contained a single count against each accused:
"Between about 31 December 2008 and 2 December 2010 at Sydney in the State of New South Wales and elsewhere conspired with each other, Jorge Elicier Henao Palacio and divers others to import a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity."
The maximum penalty for that offence is life imprisonment and/or a fine of $825,000 (7,500 penalty units).
A fourth co-offender (Jorge Elicier Henao Palacio) was tried separately before Woods QC DCJ and a jury in 2013 on the conspiracy count, as well as two actual importation of cocaine counts. He was found guilty of all three offences.
Judge Frearson heard the sentence proceedings concerning the applicant and the co-offenders Telefoni and Faingata'a on 9 March and 23 March 2012. On 27 April 2012 his Honour imposed the following sentences:
Velez (applicant) - imprisonment with a non-parole period of 10 years and 10 months with a balance of term of 7 years and 2 months.
Faingata'a - imprisonment with a non-parole period of 10 years and 11 months with a balance of term of 7 years and 2 months.
Telefoni - imprisonment with a non-parole period of 11 years with a balance of term of 7 years and 2 months.
The applicant originally sought leave to appeal against sentence on the following grounds
Ground 1 - The sentencing judge erred in law in concluding that there was no significant reason to distinguish between the applicant and the other offenders, Faingata'a and Telefoni, in terms of criminality.
Ground 2 - The sentencing judge erred at law in the consideration of the lack of convictions of the applicant in the formulation of the sentences imposed upon Telefoni, Faingata'a and himself.
Ground 3 - The sentencing judge erred at law in the imposition of identical head sentences upon the applicant and co-offender, Temisi Telefoni, when the latter had been involved in the conspiracy for over one year longer than the applicant.
Ground 4 - The sentencing judge erred at law in his consideration of the subjective case of the applicant when imposing a similar sentence as imposed on the other two offenders.
At the hearing of the appeal, Grounds 1 and 3 were abandoned. The applicant relied upon Grounds 2 and 4 as constituting a single ground of appeal.
Factual background
The following is a brief overview of the Crown case. The relevant events occurred in 2009 and 2010, although most of the evidence concerned events in 2010.
The conspirators comprised people from two ethnic groups - Colombians and Tongans, who were located in Australia, Tonga and Colombia or other parts of South America. Most of the evidence in the trial was focused on the actions of "the Australian Colombians" (the applicant, Henao Palacio and Lopez Rios) and "the Australian Tongans" (Telefoni and Faingata'a).
The Crown case was that the syndicate (Colombians and Tongans) had imported into Australia a large quantity (many kgs) of cocaine in about December 2009, or early 2010. That cocaine had been shipped from South America into Tonga and then into Australia. The arrival and distribution of this cocaine had not been detected by police at that time.
Some of this cocaine shipment (known in the trial as "the leftover") remained in Tonga and it was the intention of the conspirators to import this "leftover" into Australia at a later time.
During 2010 the Colombians and the Tongans were engaged in negotiations and discussions aimed at achieving three main objectives:
1. Bringing the "leftover" cocaine into Australia from Tonga.
2. Settling a dispute over money which the Colombians believed was owed for a quantity (4 - 6 kgs) of cocaine that had gone "missing" from the first import.
3. Making plans for a future large shipment of cocaine (about 500 kgs) to be imported into Australia via Tonga.
Sentence proceedings
At trial Telefoni gave evidence but the applicant and Faingata'a did not. Neither the applicant nor the co-offenders gave evidence in the sentence proceedings. Based on the evidence at trial, it was necessary for his Honour to determine the "scope" of the conspiracy. His Honour identified his task as follows:
"The scope of the conspiracy has to be gleaned ultimately from the combination of all of the circumstances relied upon and put into evidence, and particularly the communications set out in exhibits 4A and 4B and the emails in exhibit 30, which are particularly instructive. I am satisfied consistently with the jury verdict, that each offender engaged in coded and guarded conversations about cocaine." (ROS 2.8)
Having reviewed the principal pieces of evidence, his Honour set out his conclusions as follows:
"I do make certain conclusions on the totality of the evidence and I conclude beyond reasonable doubt, a number of things. One is that pursuant to the agreement, an agreement which at all times involved Colombians and Tongans, including the offenders, four to six kilograms was imported into Australia by March 2010. ... I am prepared to sentence on the basis that I am satisfied beyond reasonable doubt it was at least four. That cocaine I am satisfied beyond reasonable doubt was in fact sold by Mr Faingataa in conjunction with Mr Telefoni and not accounted for to the Colombians.
Two, that pursuant to the agreement arrangements were made to extract the leftover from Tonga and those arrangements involved the Colombians and the Tongans and all the offenders. The only reasonable inference from the evidence is that whatever the quantity left in Tonga it involved tens of kilograms of cocaine. … my conclusion is that the amount left in Tonga was in the order of at least forty kilograms.
Three, pursuant to the agreement that involved the Colombians and the Tongans and the three offenders, arrangements were made to import 500 kilograms of cocaine from South America into Australia via Tonga. I conclude that all the offenders were parties to a genuine agreement in relation to the 500 kilograms." (ROS 5-6.2)
His Honour made further findings as follows:
"I do accept the manner of execution reveals a lack of sophistication in many areas. In many areas the participants were inept, inefficient, sometimes uncooperative, and sometimes they did not communicate with any real efficiency. This is a case where inefficiency does not actually substantially undermine the gravity of this offence because the gravity primarily depends upon the nature of the agreement rather than the manner of execution. But having said that I do take into account the manner of execution because clearly the more sophisticated the venture is the more grave the offence would be, because the level of sophistication in my view would enhance the gravity." (ROS 10.1)
Submissions were made by both the Crown and the applicant as to the part which he played in the conspiracy. His Honour set out his conclusions as follows:
"The conclusion I come to is this, I do accept that in one sense Mr Velez was a conduit between the two groups. He passed on information and any instructions and that was on the material identified by the Crown satisfied beyond reasonable doubt that he played a very important role in the conspiracy. He was more than a mere conduit. He had a vital role in the conspiracy for the reasons identified by the Crown. He was privy to important information and actively engaged in the important aspects of the conspiracy. He was more than a replaceable middleman in my view. I do accept that on the isolation aspect that he has no family in Australia and that that will make imprisonment more onerous for one reason or another." (ROS 13.6)
"It is sufficient for me to say that in terms of Mr Velez, he was a conduit between the Colombians and the Tongans via Mr Telefoni. He did communicate the green light, he was involved in securing the sponsorship letter for Mr Gomez, he was involved directly in organising the big one, he was involved in draft dropping and he had proposed to fly to Colombia to facilitate the importation. There is no evidence that he reaped any financial reward for his efforts, but clearly he must have anticipated a reward and I do accept that he did the matters that the Crown refers to in paras 62 to 74 of his submissions." (ROS 20.5)
"All the offenders had a significant role and I accept ultimately that there is no significant reason to distinguish between them in terms of criminality.
As to financial gain, financial gain is inherent in this type of offence. The communications demonstrate the generation of amounts of money and the enterprise did generate money. There is no direct evidence in respect of Mr Velez, in particular, that he reaped any rewards. I accept the gravity of this offence is primarily determined by the nature of the agreement and the nature and seriousness of the actual enterprise. The failure to achieve the objective and to reap large financial rewards does not of itself significantly ameliorate the gravity of the offence. As I have said already, the manner of execution bears upon the degree of sophistication and it will bear upon the assessment of the gravity of the offence in a more general sense." (ROS 21.5)
His Honour made further findings as to the scope of the conspiracy as follows:
"What is necessary to do is actually to look at the combination of the evidence. All sorts of arguments can be extrapolated from various parts of the material but one needs to look at the combination of the evidence and the combination establishes the scope of the conspiracy. It is not necessary that the conspirators had any direct contact with each other. The agreement to import at all times involved Colombians and Tongans. It did encompass the four to six kilograms, the leftover in Tonga and the 500 kilograms. I am satisfied of those matters beyond reasonable doubt." (ROS 20.1)
His Honour made findings as to the applicant's subjective case. Unlike his co-offenders, the applicant had no convictions whatsoever and his Honour took that into account in his favour, although his Honour accepted that in this type of offence the fact of good character was less significant in terms of mitigation than otherwise.
In support of the applicant's case on sentence, his Honour had before him a report, dated 23 March 2012, from a psychologist, Mr Watson-Munro. His Honour made the following observations in relation to the contents of that report:
"It is instructive because of his presentation as a cooperative though highly anxious man. He has never used any illicit drugs and he has had a longstanding involvement with sport as a soccer coach. The report goes on to detail an interesting social history. He was born in Colombia in 1959. …
He came to Australia in 1995 because of poor job opportunities. He is an
Australian citizen. In Australia he studied English, and his English is apparently good. He took up cleaning jobs to survive and he did have a coaching position with the Mt Pritchard Soccer Club in 1999, but he went on to work in, essentially, cleaning and security. …
The report goes on to deal with the drug, alcohol and psychological history. Mr Velez describes himself as a social drinker. He has acknowledged longstanding symptoms of depression and anxiety which predate him being charged. He has had considerable adjustment issues referable to his decision to leave Colombia, the breakdown of his first de facto relationship and the breakdown of his second relationship has in fact, reinforced his sense of isolation and despair.
He has had a difficult time in custody. He has not been able to access treatment programs in Long Bay and he does feel isolated to the extent that he has no immediate family here and limited visitors. He presents as someone who is clearly depressed and anxious. It said that he acknowledges an adjustment disorder upon his immigration to Australia, and he has a continuing sense of failure and depression. Those feelings have become entrenched.
There is nothing in the report that actually diminishes the gravity of the offence, and there is nothing in the report that is explanatory of why someone like Mr Velez would get involved in this type of conduct.
None of the offenders has shown any remorse; none of the offenders has accepted any responsibility. In each case, nevertheless, I can see that each of them has fair prospects of rehabilitation, and I consider that each is unlikely to re-offend in this way." (ROS 23.5 - 25.2)
His Honour set out his conclusion as to the objective seriousness of the offending as follows:
"Whilst it is true that the gravity may be enhanced by the objectives and
the quantities that it was proposed to import into Australia, I do accept that the quantity is not decisive to criminality, but it does remain a significantly relevant consideration. The quantities involved here, once you include the 500 kilograms, were enormous.
I am mindful of the role of each of the offenders, I am mindful of the
degree of organisation, the number of persons who were involved in the
agreement, the number of countries that were involved and mindful of the
actual roles played by each of the offenders in giving effect to the conspiracy." (ROS 25.9 - 26.3)
Grounds of Appeal 2 and 4
The applicant submitted that his Honour erred in failing to give any significant weight to his subjective case. The applicant submitted that as between his co-offenders and himself, the applicant was the only one to have a subjective case of any substance. He had no criminal record, he had a depressive condition which pre-dated the offending and which was making his time in prison more difficult. His incarceration was made more difficult because he was isolated from family and friends who still lived in Colombia. The applicant submitted that since the sentencing judge had found that his criminality and that of his co-offenders was the same, it was clear that an inadequate allowance had been made for his subjective case in the sentence finally imposed (1 - 2 months).
In making that submission, the applicant was mindful that a lack of previous convictions was of less importance in drug importation matters than in other offences.
The Crown submitted that while the sentencing judge may not have made any distinction between the applicant's subjective case and that of his co-offenders, this did not necessarily amount to error. It submitted that the weight to be given to an offender's subjective case was not a matter of arithmetic, but of discretion. It submitted that his Honour had in fact adjusted the applicant's sentence downwards in his favour, albeit in a modest way.
The Crown referred the Court to the following observation by Davies J (with whom R A Hulme and Adamson JJ agreed) in Lam v R [2014] NSWCCA 50:
"41 In considering the issue of parity two things are important. The first is that it was the same judge who sentenced both offenders and he expressly made reference to the issue of parity between the Applicant and the co-offender. He concluded:
Given the differences between the offender and Mr Pan, both in a favourable and in an unfavourable sense to this offender, I determine the sentences to be imposed on the offender with only limited regard to the sentences imposed on Mr Pan.
42 It has been said in many cases that this Court will be cautious before determining that one co-offender has a justifiable sense of grievance because of different sentencing outcomes where the same judge has sentenced each and has had regard to the differing criminality and the different subjective circumstances of each: R v Swan [2006] NSWCCA 47 at [71] per Barr and Howie JJ. The various authorities are gathered in Loader v R; Dunn v R [2013] NSWCCA 215 at [91]- [96]."
Consideration
The statement of principle in R v Lam is undoubtedly correct but it does not answer the applicant's submission. While the sentencing judge had some regard to the different subjective circumstances of each offender, a differentiation of 1 - 2 months in favour of the applicant in circumstances where his co-offenders had no helpful subjective case, and where the criminality of the three was assessed as being the same, was so disproportionate as to be indicative of the error referred to in House v R [1936] HCA 40; 55 CLR 499 at 505:
"It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
While the applicant's subjective case could not properly be characterised as strong, there were important considerations in it which needed to be taken into account and which were absent from the cases put forward on behalf of his co-offenders, i.e. he was aged 53 and had no criminal record and his time in prison would be more difficult because of his depression and sense of isolation.
Since the sentencing judge's discretion miscarried in this way, it is the duty of this Court to exercise the sentencing discretion afresh, taking into account the purposes of sentencing and the factual findings which his Honour made and which have not been challenged in this appeal. As was said in Kentwell v R [2014] HCA 37; 88 ALJR 947:
"42 … A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. …
43 After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law."
In the re-exercise of the sentencing discretion and taking into account the findings made by the sentencing judge, the sentence I would impose is imprisonment with a non-parole period of 10 years and a balance of term of 7 years. Accordingly, the orders which I propose are as follows:
1. Application for leave to appeal is granted.
2. The sentence imposed on the applicant in the District Court on 27 April 2012 is quashed.
3. In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 10 years, commencing 2 December 2010 and expiring 1 December 2020, with a balance of term of 7 years expiring 1 December 2027. The applicant will be eligible for release on 1 December 2020.
R A HULME J: I agree with Hoeben CJ at CL.
CAMPBELL J: I agree with Hoeben CJ at CL.
[3]
Amendments
03 July 2015 - Incorrect Appearances of Counsel amended.
07 July 2015 - Typographical errors in paragraphs [9], [10] and [12] in relation to the spelling of "Colombia" and "Colombians".
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Decision last updated: 07 July 2015