Wilfredo Roland Vasquez-Felipe v Regina

COUNSEL: J Doris W Abraham QC

SOLICITORS: Forshaws Neill Solicitors Commonwealth Director of Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2005/706

BARR J ADAMS J LATHAM J

19 DECEMBER 2006 WILFREDO ROLAND VASQUEZ-FELIPE v REGINA Judgment 1 BARR J: This is an application for leave to appeal against a sentence imposed in the District Court. Having pleaded guilty in the Local Court the applicant, Wilfredo Roland Vasquez-Felipe, came before Ainslie-Wallace DCJ for sentence for the offence that between about 1 December 2002 and 4 February 2003 he aided and abetted the importation into Australia of not less that the commercial quantity of a prohibited import, namely cocaine. The offence attracted a maximum sentence of imprisonment for life and a fine of $750,000.00. On 19 March 2004 her Honour sentenced the applicant to imprisonment for twelve years and six months with a non-parole period of eight years and three months. 2 On 23 November 2003, the Australian Federal Police ("the AFP") commenced a joint investigation with the Argentinean Federal Police into an Australian and Argentinean organised crime syndicate involved in cocaine trafficking between Argentina and Australia. The syndicate obtained its cocaine from Peru. The cocaine was imported by the use of purpose-built, hard-sided suitcases which were impregnated with the cocaine. When the suitcase reached its destination the cocaine was to be extracted from the suitcase. The services of a chemist were enlisted for that step. 3 The investigation identified the following persons as being involved in the syndicate - - Wilfredo Roland Vasquez-Felipe (the applicant) - Keith Graham Chee (Chee) - Daniel Pierre Berthiaume (Berthiaume) - George Baldwin (Baldwin) - Neil Matthew Danson (Danson) - Stephen Sutton (Sutton) 4 Between December 2003 and February 2003 telephone calls between the applicant and the co-offenders were listened to and recorded. They showed that the applicant was to obtain cocaine from Danson to distribute in Australia. On 26 December 2002, Chee departed Australia for Argentina, arriving on 29 December 2002. He intended to return to Australia on 13 January 2003. While Chee was in Peru the applicant undertook a number of activities, including these - (a) On 10 and 11 January 2003 the applicant arranged meetings with Danson and Berthiaume, the chemist who was to extract the cocaine from the suitcases in Australia; (b) On 11 January 2003 the applicant was informed by a person overseas of a delay in receiving the cocaine because there was a problem with its processing; (c) On 13 January 2003 the applicant had several telephone conversations, including with persons overseas, expressing concerns about the delay and that it would affect the whole operation; (d) Between 15 and 17 January 2003 the applicant was in contact with Danson and Berthiaume; and (e) From 18 January 2003 until 3 February 2003 the applicant, in a number of telephone calls, organised for the suitcases to be provided to Chee. The applicant provided instructions to effect the handover. 5 Chee met the Argentinean members of the syndicate and Stephen Sutton, from whom he was to collect two suitcases. On 3 February 2003, Chee returned to Australia with the two suitcases and was allowed to pass through the Customs examination. The AFP maintained surveillance on Chee, who returned to his residential address at Chester Hill. Two hours after Chee arrived, the applicant contacted Danson to inform him of the arrival. The applicant later met Danson, Berthiaume and others. At about 7:15pm Baldwin drove the applicant and Berthiaume to Chee's premises at Chester Hill. Berthiaume and Baldwin took possession of the two suitcases and put them in Baldwin's vehicle. Baldwin drove the applicant and Berthiaume to the applicant's unit. The applicant and Berthiaume took the suitcases inside. On 4 February 2003, the AFP executed a search warrant on the applicant's premises. The applicant and Berthiaume were in the lounge room with the two suitcases. Berthiaume was the chemist. The lining of both suitcases had been removed to expose a black, hard, resinous substance. One suitcase was partially dismantled and a quantity of the resinous material had been removed and placed in a plastic bag. The applicant and Berthiaume were arrested. 6 The pure weight of the cocaine so imported was 3.7 kilograms. The commercial quantity is 2 kilograms. 7 The applicant was charged on 4 February 2003. He pleaded guilty on 3 October 2003 and in December 2003 he offered to give assistance to the Australian Federal Police. Over December and January he took part in a number of interviews with members of the Australian Federal Police. 8 On sentence, the Crown tendered a transcript of the telephone conversations between the applicant and other members of the syndicate. It called evidence from a member of the Australian Federal Police, Agent Barron, and tendered a letter that spoke about the assistance the applicant had given together with an assessment of its worth. 9 The applicant was represented by counsel, who cross-examined Agent Barron. Counsel tendered the report of a psychologist, Mr Borenstein, who had interviewed the applicant. 10 Her Honour noted the communications between the applicant and the other members of the syndicate and his arranging for funds and for the handover of the suitcases. Her Honour found that the applicant was managing the importation either alone or together with others unknown. Her Honour recognised that as chemist Berthiaume had an important role to play, but considered the applicant's criminality greater. 11 Agent Barron was of the view, in the light of other evidence and intelligence available to Australian Federal Police, that the applicant was unreliable. He said that it was therefore not proposed to call him as a witness. He said that other information provided by the applicant was valuable. Although it had not resulted in any further arrest or seizure, it had enhanced intelligence and provided further opportunities for the investigation of others involved in narcotics trafficking. However, the value of that assistance was tempered by the applicant's not providing a full and frank disclosure of his involvement in this importation.

12 Mr Borenstein's report is very long and detailed and it suffices to extract just a few passages, thus - Mr Vasquez presented as anxious and agitated on initial presentation. He told me that he is pleading guilty as commented to above, with regards to Aiding and Abetting the importation of drugs. He says he acted as a translator; "I knew there was plastic material and they had to extract the drugs". He says, "they wanted to charge me as a principal, I pleaded guilt to aid and abet, I want to explain to police, my first lawyer didn't understand, I started to cooperate with police from the beginning".

13 The report went on to describe the life experiences of the applicant and instances of his having been gulled by others. The report continued - He felt caught up in events at a time of increased psychological vulnerability not long after the news of his father's stroke and visiting him in Peru. He says the Columbians "wanted a translator", English to Spanish, and Spanish back to English. He says initially he did not know drugs were involved, but admits, "I felt something was wrong", and realised this was certainly the case when he was directly threatened.

14 Finally there was this passage - Tragically, patterns have a habit of repeating themselves. His befriending of George was against his own resolution, with disastrous consequences. This is evident in Mr Vasquez' history. He aims to please and is generally compliant. In Japan he acted as a translator to a person who was more needy than him, only to be taken advantage of him. He acted as a translator again, and clearly was taken advantage of receiving little monies for his translating abilities, and now is caught in a hopeless situation where he is being accused by his co-accused of being the principal in the drug operation.

15 Her Honour referred in detail to the psychological report and noted the pretence the applicant had maintained to have been engaged to translate. Her Honour regarded that account as inconsistent with the applicant's comments as recorded in the transcripts of the telephone conversations. Her Honour concluded that there was nothing in the psychologist's evidence to support a finding of remorse and concluded - I am not persuaded that there is any particular evidence of remorse expressed by the offender over and above contrition said to be inherent in a plea.

16 Her Honour concluded that there was little information on the prospects of rehabilitation. Having dealt with the applicant's personal history her Honour referred to the remarks of this Court in R v Cartwright (1989) 17 NSWLR 253. Her Honour said - He was not candid about his role and attempted to minimise it. Nor was he candid about the role of others. In my view the assistance he offered in this respect should not attract any discount from sentence. The offender then offered assistance in relation to drug trafficking in Australia. According to the letter of comfort this information, while not having resulted in any arrests, has provided the agency with additional information about drug trafficking and has identified future surveillance targets. In his evidence the officer in charge said that this information had been of value to the authorities and had provided them with material to supplement information already in their possession and had also added information about methods of introducing drugs to Australia and people who were involved in drug importations. Although this information had not led to any arrests it had provided the basis for an operation. In my view the offender is entitled to a discount from his sentence, as a result of this assistance to the authorities.

17 Having compared the applicant's role with that of Berthiaume and the sentence already imposed on Berthiaume, her Honour announced that but for the plea and the assistance to authorities she would have imposed a sentence of eighteen years but that she would discount that figure by thirty per cent to give a head sentence of twelve and a half years.

Evidence offered on appeal 18 In this Court counsel for the applicant desired to read the affidavits of his solicitor Malcolm Douglas Carr sworn on 15 February 2006 and of the applicant sworn on 21 August 2006. Objection was taken by the Crown. The affidavit of Mr Carr annexed almost five hundred pages of transcript of conversations between the applicant and the Australian Federal Police, all preceding the date of the sentencing hearing. The affidavit of the applicant contained two kinds of evidence. The first was draft statements, apparently prepared by the Australian Federal Police, summarising the information he had given in the conversations transcripts of which were annexed to Mr Carr's affidavit, and based upon them. Otherwise the affidavit dealt only with matters that would become relevant only if the Court decided to resentence the applicant. 19 The Court at first received the evidence provisionally and subject to the Crown's objection, but later announced that the tender was rejected. The reasons are these. Although it appeared that the transcripts of the conversations were not available to counsel who appeared for the applicant on sentence, no explanation was given why they were not available. Plainly they must have existed and the applicant must have known that they existed. If requested, the Crown would have been obliged to supply copies to counsel. If there was any difficulty in that regard a subpoena could have been issued. The sentencing proceedings could have been adjourned if necessary. No explanation was given why any of these matters was not broached before or at the sentencing hearing. 20 It seemed to the Court that the evidence was not fresh, since its existence was known to the applicant and his advisers and could with reasonable diligence have been obtained at the proper time. 21 The same may be said of the assertion made by counsel in this Court that the applicant had told the police about two prior importations but that the agent had not told the sentencing court. This Court noted that although Federal Agent Barron was cross-examined by counsel before the sentencing judge, none of this material was raised with him.

The grounds of appeal 22 It was submitted by counsel for the applicant that her Honour erred in failing adequately to discount the sentence to allow for the utilitarian value of the plea, the early indication of the plea, the assistance given to the authorities, particularly that concerning the co-accused, for his remorse, for the harsher conditions of his custody as an informer and for threats made against his wife and child. 23 Referring to R v Thomson and Houlton (2000) 49 NSWLR 383 and the range of discount of between ten and twenty-five per cent there mentioned, counsel submitted that the applicant was entitled to a notional discount of not less than twenty-five per cent for his early plea of guilty. From that base, the proposition was developed that her Honour could have allowed no more than five per cent, or very little more than five per cent, for the worth of the applicant's remorse and his offer to assist the authorities. So, it was submitted, there was no proper evaluation of the assistance offered, particularly where the applicant would serve his sentence under conditions rendered more difficult because of the offer of assistance. 24 I do not accept those submissions. The plea of guilty was made fairly early - about ten months after arrest but in the Local Court. However, it is artificial to reason in the way proposed by counsel. This Court in R v Thomson and Houlton was speaking about the range of discounts solely attributable to the utilitarian value of pleas of guilty. Nothing in the judgment throws doubt on the principles explained by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 by which a sentencing court has to evaluate the totality of favourable features in any given case, with the result that a discount that might apply to one individual feature might have to be modified in view of the existence of other features. It has never been regarded as sound sentencing practice to allocate a particular discount to each of several features, then to add them and apply the total unquestioningly as a discount from the starting sentence. In any case, her Honour would not have been bound to allow twenty-five per cent for the plea of guilty, even if it had been the only feature attracting a discount. This Court in R v Thomson and Houlton spoke of a range of figures with a limit of twenty-five per cent. In any individual case the appropriate position in the range is a matter for the discretion of the sentencing court. 25 Secondly, it by no means appears that the applicant was entitled to any consideration for remorse. I have extracted her Honour's sentencing remarks and the words used about remorse are precise. It was clear in view of the account given by the applicant to his psychologist that he had made no attempt to give a candid account of his own wrongdoing, so much so that it had been decided not to call him to give evidence in the prosecution of his co-offenders. Her Honour was entitled to reject the claim of contrition and it would in the circumstances have been surprising if her Honour had found that the applicant was remorseful. 26 The applicant must be taken to be facing a sentence which will be harder for him than if he had not offered to assist, but it is not correct to say that her Honour did not take such a matter into account. It scarcely needed to be articulated. The effect on the conditions of informers' sentences is a large part of the reason why courts discount sentences for offenders who offer to assist the authorities. 27 Notwithstanding that the authorities had decided not to adduce evidence from the applicant in relation to this importation, it was submitted that he was still entitled to a discount for assistance because he was prepared to tell the truth about one of his co-offenders, the man Baldwin. I do not accept that submission. Although Federal Agent Barron conceded that the applicant had told the truth about Baldwin and might be expected to do so in court, he considered that he had not been frank about the part he himself had played or about the parts played by his co-offenders Danson and Chee. It is not difficult to understand why the applicant's offer to give evidence was unattractive. Her Honour was entitled to consider the applicant's lack of candour had set at naught the worth of the limited aspects of the case about which he was prepared to tell the truth. 28 Finally, it was submitted that her Honour had failed to take into account evidence of threats made against the applicant's wife. Her Honour did not mention those matters in her remarks on sentence and the submission was that she must have overlooked them. In my opinion there is no substance in this submission. Although the applicant was present at the sentencing hearing, he did not give evidence. Counsel called his father-in-law who said that the applicant had told him that threats had been made to his wife on occasions. It was left unclear whether the applicant was telling his father-in-law what he had seen and heard or whether it was what someone else, perhaps his wife, had told him. Neither was there any account of what the threats were, when the last one was made and whether any had been carried out. Given that the evidence was at the best hearsay on hearsay and given its vague quality, her Honour would not in my opinion have been entitled to give it weight. 29 There were only two features of the applicant's case which entitled him to consideration on sentence, namely the utilitarian value of the early plea of guilty and the worth of his offer to assist the authorities. The offer in relation to the very importation was worthless but Federal Agent Barron said that some other information imparted by the applicant concerning importations generally and methods of concealment was of value. The question for this Court is whether those two matters in combination produced the need to discount the sentence within a range the bottom of which exceeded thirty per cent. I do not think that that case has been made good. I would grant leave to appeal but would dismiss the appeal. 30 ADAMS J: I agree with the judgment of Barr J and with his Honour's reasons except for the qualifications that are implicit in the following remarks. 31 When dealing with the considerations that justify the giving of a discount for assistance to the authorities, it is important to bear in mind two important aspects: first, that it is very desirable that an offender's legal advisers (or, for that matter, the police) should be able to give some reasonably reliable indication of the benefit that might be expected to accrue for cooperation; second, that the discount is given by virtue of the public interest and has nothing to do with the virtues or the vices of the offender, except, of course, insofar as they might reflect on the reliability and utility of the assistance. If I may say so with respect, the discussion by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 227 about the difficulties of giving a specific and separate discount for assistance, whilst correct as a general rule, should be applied in light of the discussion in R v Thompson and Houlton (2000) 49 NSWLR 383 as to the utility of transparency in allowing public policy discounts. It is worth noting, in this context, that Gleeson J was concerned with the contention that "it is always necessary or always possible to give a specific and separate discount" (emphasis mine) for assistance. 32 To be brutal about it, the discount is a purchase price for assistance and designed to procure it whether the offender is contrite or not or capable of rehabilitation or not, in short, as I have said, regardless of his virtues or vices. In principle, therefore, it seems to me to be capable of separate valuation, although (pace Gallagher) this may not be possible in every case. Considered in that light, if the offender is motivated also by personal feelings of remorse or contrition and if this, alone or with other evidence, shows that his or her prospects of rehabilitation are good, then those are matters which can and should be taken into account as part of the totality of matters, both objective and subjective, to be considered as part of the instinctive synthesis that yields the appropriate sentence to which the discount should be applied. This analysis is not qualified, as it seems to me, because the extent of the remorse and the prospects of rehabilitation, if any, are measured, in part, by the offender's readiness to enter into the bargain. Any hardship of custody or personal risk should be "paid for" by the discount. The great advantage of this process is that it is transparent and shows what the sentence would have been but for the rewarded conduct: it maintains the vital importance of the instinctive synthesis of the elements of sentencing whilst serving the substantial public interest in inducing criminals to betray their associates. 33 For similar reasons, it seems to me that, where there is an early plea justifying a discount as well as assistance, the two matters should be kept distinct. I discussed why this should be so in Regina v Z [2006] NSWCCA 342 at [113] - [131] and will not repeat that discussion here. If application of the resultant discounts leads to a sentence that is excessively lenient, then the discounts should be adjusted to bring the sentence within the proper range. But the extent of the adjustment for it should be stated. 34 Of course, I do not suggest that the process I have described is essential; the question is not one of legal necessity but of desirable procedure. 35 So far as the giving of a discount for the plea is concerned, it cannot be doubted that the extent of the discount is a matter of discretion, but that discretion must be exercised judicially. However, the range proposed in R v Thomson and Houlton (2000) 49 NSWLR 383 should be taken seriously and conscientiously applied, though of course it remains a guideline only. It would be most unjust if individual judges applied idiosyncratic views about the appropriate discount for a plea. Such an approach would also defeat the public interest proposed to be served by the guideline. Consistency in application of sentencing principle is a fundamental principle of criminal justice which the guideline expressly aims to serve. In my view, where a sentencing judge does not state what discount is given or departs from the guideline, there should be an explanation for so doing, in order to maintain the public policy that underlies Thomson and Houlton. Accordingly, I would not agree that it is appropriate for a judge to select any discount within the indicative range of ten and twenty-five per cent, even where the circumstances of the plea would justify (say) twenty-five per cent, without giving an explanation for doing so. Accordingly, I do not agree that merely because a discount in the indicative range is given, an appropriate exercise of the discretion is demonstrated, let alone a proper regard for what this Court said in Thomson and Houlton. Whether an error of law results is, of course, another matter.

36 I do not suggest, of course, that the learned sentencing judge in this case erred in the manner I have deprecated. Indeed, in giving a rolled up discount, her Honour undertook a course that has been expressly approved by this Court, though as is obvious from what I have said, I think the requirements of criminal justice are better served by treating the discounts as distinct. 37 LATHAM J: I agree with Barr J.

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