Velez v R (Cth)

HOEBEN CJ at CL:

The indictment contained a single count against each accused:

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:

The applicant originally sought leave to appeal against sentence on the following grounds

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.

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:

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:

Having reviewed the principal pieces of evidence, his Honour set out his conclusions as follows:

His Honour made further findings as follows:

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:

His Honour made further findings as to the scope of the conspiracy as follows:

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:

His Honour set out his conclusion as to the objective seriousness of the offending as follows:

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:

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:

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:

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:

R A HULME J: I agree with Hoeben CJ at CL.

CAMPBELL J: I agree with Hoeben CJ at CL.