Vigo v R [2009] NSWCCA 98 | Case summary

6 April 2009 Daniel Eduardo VIGO v R Judgment 1 GROVE J: Following trial between 15 and 18 August 2005 before Berman DCJ and a jury at Sydney District Court the applicant, Daniel Eduardo Vigo, was convicted upon indictment charging that between 1 January 1997 and 24 September 2001 he supplied not less than a large commercial quantity of the prohibited drug methylamphetamine. His Honour sentenced the applicant to imprisonment for a total term of 16 years specifying a non-parole period of 12 years commencing on 17 August 2005. The applicant seeks leave to appeal against severity of that sentence on two grounds, first, that his Honour erred in finding that the applicant had supplied in excess of 40 kilogrammes of amphetamine and, second, that the sentence is manifestly excessive. 2 The applicant requires an extension of time for bringing this application. The grant of an extension is not opposed by the Crown. It is supported by affidavits of the applicant sworn 21 November 2008 and by Gregory Willis, solicitor, sworn 27 March 2009. There is no need to recapitulate the circumstances described therein which detail various reasons for non-compliance with time limits, and, without comment upon the cogency or otherwise of the explanation, I would, having regard to the stance of the Crown grant the necessary extension. 3 The applicant was one of the offenders arrested and charged following the detection by police of a large scale drug distribution operation conducted in the Newcastle area. Other offenders, including one Richard Walsh and his de facto wife Melinda Love, acquired pure methylamphetamine from various sources. Love would then cut it, repackage it and sell it to others. Those purchasers would usually on-sell the drugs to end users. The applicant was one of those who bought significant quantities of drugs from Walsh and Love for the purpose of sale to drug users. His Honour's findings to the above effects which are, of course, consistent with the jury verdict are not challenged. 4 In the terms of the indictment, the guilt of the applicant of supplying at least a large commercial quantity which is specified in legislation to be at least one kilogramme was established by the verdict. As his Honour stated in his remarks on sentence, it became his task to satisfy himself as to the actual extent of the applicant's activities. Obviously a principal focus had to be the quantity of drug supplied and the learned sentencing judge concluded that he was satisfied beyond reasonable doubt that Love had supplied to the applicant, for the purpose of on-supplying by him, drugs in excess of 40 kilogrammes. It is that finding which is the subject of challenge by ground 1. 5 His Honour expressed his reasons for reaching his conclusion appropriately. I will set out the relevant extract of his remarks on sentence. The person mentioned therein, Chapman, was arrested for armed robbery after which he commenced to assist authorities and it seemed that they became aware of the distribution operation as a result of this assistance. 6 His Honour said: "Evidence as to the quantity of drugs supplied to the offender for the purposes of him on-supplying those drugs to drug users came from Mr Chapman and Ms Love. Mr Chapman's evidence was that on many occasions either he alone or he and Walsh delivered methylamphetamine to the offender. He said that he had delivered quantities as small as half a pound, sometimes one pound and on one occasion as much as two pounds. He also referred to a time after the Indy Grand Prix at the Gold Coast when he delivered 4 ounces of methylamphetamine to the offender. Ms Love said that in mid 1997 the offender began buying half a pound per fortnight but that increased. At one stage he was buying half a pound per week. That also increased until May 2001 when the offender was buying one pound of methylamphetamine from Ms Love every week. Indeed he stopped buying from her at that stage because she was unable to keep up with the quantities he required. In identifying how much the offender actually supplied in the four years in which he was purchasing from Ms Love I have to bear in mind of course, various matters concerning the evidence of Mr Chapman and Ms Love. Their evidence may be unreliable for reasons which I identified when summing up this case to the jury. I therefore have to exercise caution before I accept what they say. Their evidence is also not entirely consistent, both as to the way drugs were delivered to the offender and the quantities he bought. Ms Love gave evidence that she had calculated using conservative figures that the offender purchased about 96 pounds of methylamphetamine from her over the years, that is about forty three and a half kilograms. She based this calculation on an estimate of half a pound a week. She said that this was a conservative estimate of the amount that he purchased from her. Mr Marr who appeared for the offender at trial and on sentence submitted that I would not accept Ms Love's conservative estimate and instead sentence his client on the basis that he supplied slightly more than one kilogram. His submission was based on the support for Ms Love's evidence from Mr Chapman and the intercepted telephone calls. He submitted that consistent with the jury's verdict they established that the offender supplied slightly more than a kilogram but insofar as Ms Love gave evidence of a larger amount, her evidence was entirely unsupported. He also referred me to the evidence of Ms Love as to the profits which she should have been making from her drug supply activities and compared that to the evidence of her actual financial state, including her need to borrow money to buy a relatively modest house and the fact that the house was still the subject of a mortgage some years later. I have re-read the evidence of Ms Love, in particular the cross-examination to which Mr Marr directed me for the purposes of sentencing the offender. At first blush it is surprising that someone earning the amount of money Ms Love said she was earning was not significantly materially better off. However she explained how her husband, who seems to have been somewhat of an irrational man during this period, was responsible for the money in effect being frittered away. I watched Ms Love carefully and even exercising considerable caution I am satisfied that she was accurate and honest insofar as she described her drug dealing activities. Ms Love impressed me as a witness very conscious of the need to tell the truth in court and the consequences for her if she was found to have lied. She also impressed me as a woman who was capable of remembering the quantities her various customers purchased from her, at least where those customers were, as the offender was, regular ones. Her evidence suggests that Mr Vigo was one of her best customers. Indeed as I have mentioned at one stage he was buying so much methylamphetamine from her that she could not keep up with his demand and so he looked elsewhere. I am satisfied therefore that not only was Ms Love being honest in her evidence regarding her recollection as to the quantities she supplied the offender but also that she was accurate. I am therefore satisfied beyond reasonable doubt that the quantities supplied by Ms Love to the offender for the purposes of him on-supplying that drug to others was in excess of forty kilos. At one stage the Crown suggested that Ms Love's evidence revealed even greater quantities of methylamphetamine were supplied to the offender. However, I am prepared to accept in the offender's favour Ms Love's lower conservative estimate." 7 The written submission in support of ground 1 in essence sought to re-argue submissions which obviously his Honour did not accept. It was stated that he "accepted the evidence of Love, notwithstanding that most of it was completely uncorroborated". There was no obligation for any evidence which his Honour was prepared to accept for this purpose to be corroborated. The submission continued that "notwithstanding Love's evidence as to the quantity supplied to the applicant, the evidence ought to have, at the very least, provided some doubt as to the actual quantity supplied by Love to the applicant". One might respond by asking, why? The reference to the "evidence" is to isolated facts upon which the applicant sought to rely but upon which the sentencing judge was not prepared to act. 8 No error of fact finding is pointed to in the extract of the reasons relevant to the issue which I have set out above. The power of this Court is invoked where error can be demonstrated. It is not a court of review. It was not suggested, let alone shown, that his Honour took into account some irrelevant matter, failed to take into account some relevant matter, applied any wrong principle or otherwise fell into error of the sort which would attract the intervention of this Court in accordance with the well established guidance in House v The King (1936) 55 CLR 449. 9 Ground 1 has not been made out. 10 The maximum penalty faced by the applicant for this offence has been prescribed by Parliament as imprisonment for life. The applicant's offending was sustained over a significant period of time. His Honour held that he would not assess the prospects of rehabilitation as good. It is not contended that such a finding was not open. No finding in relation to the applicant's subjective circumstances made by his Honour has been the subject of challenge. 11 His Honour stated that he would reduce the assessment of term to take into account the effect of the applicant's incarceration upon his children. I do not need for present purposes to recount the details of his marriage, separation from his wife, the arrival of a young child and the attempts by the applicant and his wife at reconciliation. If there was any error on this aspect, it favoured the applicant in ceding to him the benefit that his Honour stated he would have. 12 The sentence lies within discernible pattern of sentences for this offence which, by virtue of the prescription of the maximum available penalty of life imprisonment, must be in a category of most serious instances of drug trafficking. 13 Counsel has specified that ground 2 is relied upon only in the event that ground 1 is upheld, therefore the ground that the sentence was manifestly excessive should also be rejected. 14 I propose the following orders:

Vigo v R

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