REGINA v DIAZ [1999] NSWCCA 123

New South Wales Court of Criminal Appeal CITATION : REGINA v DIAZ [1999] NSWCCA 123 FILE NUMBER(S) : CCA 60244/98 HEARING DATE(S) : 14 May 1999 JUDGMENT DATE : 14 May 1999

PARTIES : REGINA v Haydee Martinez DIAZ JUDGMENT OF : Wood CJ at CL; Bell J; Smart AJ

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Shillington DCJ

COUNSEL : Appellant: In person Respondent: F.A. Veltro SOLICITORS : Respondent: Commonwealth DPP CATCHWORDS : CRIMINAL LAW; application for leave to appeal against severity of sentence ; conspiracy to import not less than the commercial quantity of cocaine; proportionality of sentence with sentences imposed on co-conspirators ACTS CITED : Crimes Act 1914 (Cth) Customs Act 1901 (Cth) The Queen v Lowe (1984) 154 CLR 606 CASES CITED: Regina v Budiman (unreported CCA 8/9/88) Regina v Moore and Weibe (unreported CCA 11/8/92) Regina v Laurentiu (1992) 63 A Crim R 402 DECISION : Leave to appeal refused

10 IN THE COURT OF CRIMINAL APPEAL

60244/98

WOOD CJ at CL BELL J SMART AJ

Friday, 14 May 1999 REGINA v Haydee Martinez DIAZ

JUDGMENT

1 BELL J: This is an application for leave to appeal against the severity of a sentence imposed on Haydee Martinez Diaz following her conviction before his Honour Shillington DCJ on 1 May 1998 on an indictment charging her with being a participant in a conspiracy to import into Australia a quantity of cocaine being not less than the commercial quantity. 2 The applicant was sentenced to a term of five years imprisonment and a non-parole period of two and a half years was specified. The sentence was expressed to commence from 21 November 1997. 3 The conspiracy to which the applicant pleaded guilty was one involving her brother-in-law, Douglas Crombie, her sister Cynthia Crombie, Michael Riordan, Clifford Taylor, Ian Cox, Edgar Michaels and others. It was proposed to import fifty kilograms of cocaine. The cocaine was to be obtained in Bolivia and transported from Bolivia to Chile and from there to Australia. The National Crime Authority together with the Australian Federal Police, the New South Wales Crime Agencies and various other bodies including the Chilean Police, mounted a joint investigation focussed on this conspiracy. In the event the principals were arrested prior to the importation of any cocaine into Australia. 4 It is accepted that the applicant, her brother-in-law and sister had all ceased to be participants in the conspiracy about a week prior to their arrest on 21 November 1997. 5 The man Michael Riordan is alleged to have been the organiser of this operation. Over a period of months he had meetings with Douglas Crombie in which the importation was planned. There is no suggestion that the applicant was involved at this stage in the scheme. 6 In mid-October 1997 Mr Crombie planned to travel to South America with a view to purchasing the cocaine and arranging for its shipment to Australia. His wife Cynthia and the applicant are Uraguayans. Originally it was proposed that Mr Crombie would be accompanied on this trip by his wife who would act as an interpreter. As things turned out, Cynthia Crombie was in an advanced state of pregnancy and it was not considered wise for her to travel. It was in these circumstances that Mr Crombie arranged for the applicant to accompany him. There is no evidence that at that stage she was aware of the purpose of his trip. She was happy to accompany him since it gave her the opportunity to visit members of her family. 7 The applicant and Douglas Crombie stayed in Chile and Bolivia and it does appear that on occasions she assisted by interpreting at meetings between Crombie and persons who were thought to be associated with the supply of cocaine in both those countries. 8 Intercepted telephone calls show that following her return to Australia the applicant carried out some further negotiations with proposed cocaine suppliers in South America. Beyond obtaining the free trip to South America it is not clear that the applicant was to receive any benefit from her involvement in this scheme. 9 On the day of her arrest the applicant was interviewed by officers attached to the Crime Agencies, New South Wales Police. In the course of that interview she denied involvement in, or knowledge of, a proposed importation of cocaine into Australia. However, shortly after that time she appears to have co-operated with the authorities and she supplied a statement dated 12 February 1998 in which she detailed her role and her knowledge of the involvement of the other participants. Both Douglas and Cynthia Crombie likewise co-operated fully with the authorities. 10 All three appeared before Shillington DCJ for sentence on 3 April 1998. Each was arraigned on indictment before his Honour, however it appears that they had from the outset indicated an intention to plead guilty to the charge. The transcript of proceedings for 3 April 1998 suggests that there was some defect in the s.51A committal for sentence documents. 11 The applicant and both her co-conspirators indicated a willingness to give evidence against any of the other of the conspirators at any future trial. In this respect undertakings entered into pursuant to s.21E of the Crimes Act (Cth) 1914 and signed by each of the prisoners were before his Honour. 12 In those proceedings the Crown contended that the appropriate course was for the court to regard the applicant, her brother-in-law and her sister as of equal culpability. His Honour did not accept that submission. Douglas Crombie was aged thirty-seven and had a criminal record including a conviction for the supply of cocaine. In respect of that matter he had been sentenced to a term of imprisonment for three years and six months with a non-parole period of fifteen months. Whilst his Honour concluded that Douglas Crombie was not the principal organiser, he did find that he had entered the conspiracy at an early stage and that he was a major player. It is important to note that evidence led before his Honour from Paul Fehon, chief investigator with the National Crime Authority, disclosed that Douglas Crombie had assisted the authorities. When questioned as to the level of that assistance Mr Fehon stated, "It was very high, very high. On all occasions he has offered substantial evidence". 13 Shillington DCJ concluded that an appropriate sentence for Douglas Crombie would be one of fifteen years imprisonment. However, having regard to the assistance provided to the authorities, he determined to reduce that sentence to one of eight years imprisonment with a non-parole period of five years. 14 His Honour found that Cynthia Crombie's role was less heinous than that of her husband. Her participation was such that she had, among other things, forwarded the sum of $4,000 to her husband in Chile to enable him to make a down payment on the purchase of the cocaine. She had also facilitated arrangements for a woman named Lili Villegas to travel from Sydney to South America to act as a negotiator in connection with the venture. Cynthia Crombie was aged thirty-six at the time of sentence. She was the mother of two young children. She admitted to having been a cocaine user in the past but had no criminal convictions. She too provided assistance to the authorities and that was characterised by Chief Investigator Fehon as being of a high order. 15 His Honour Shillington DCJ found that absent her assistance to the authorities he would have imposed a term of ten years imprisonment on Cynthia Crombie. In the light of that assistance he reduced the term to one of six years with a non-parole period of three and a half years. 16 It was Chief Investigator Fehon's evidence that the applicant's assistance to the authorities was also of a high order. She was aged twenty-two at the date of sentence and had no prior convictions. She had come to Australia in September 1996. Prior to that she had undertaken studies in accountancy in Montivideo. His Honour accepted that her first knowledge of the conspiracy was acquired following her arrival in Chile. He concluded that the appropriate sentence to have imposed on the applicant, absent her assistance to the authorities, would have been one of eight years imprisonment. As noted earlier in these reasons, the sentence in fact imposed was one of five years with a two and a half year non-parole period. In the course of his reasons his Honour stated that he had taken into account in imposing this sentence the matters set out in s.16A of the Crimes Act. 17 Lili Villegas pleaded guilty to a charge of conspiracy to import not less than the commercial quantity of cocaine. She was sentenced on 1 April 1999 by his Honour Graham DCJ. His Honour imposed a sentence of seven years imprisonment and specified a non-parole period of four and a half years. That sentence was expressed to take into account a discount in respect of both past and future assistance to the authorities. His Honour found that Villegas was not a dominant figure in the conspiracy although her role was a significant one. He considered that her culpability should be assessed as falling between that of Douglas Crombie and that of his wife Cynthia but rather closer to the level of Douglas Crombie. 18 The applicant was unrepresented on the hearing of this application. At the commencement of the proceedings this morning she indicated that her prime concern was to understand the sentence that had been imposed on her. In that regard she laid particular emphasis on the circumstance that her brother-in-law, who had been a far more significant player, had received a sentence which she contended was out of proportion with that imposed on her. 19 Filed with the papers on this application was a letter written by the applicant on 5th January of this year. In that letter the applicant set out the basis of her challenge to the sentence. In her submissions before us today she adopted the contents of that letter. Relevantly, the challenge that is made is as to these matters: (1) The applicant did not know the purpose of the trip to South America when she embarked on it. (2) She was not to receive any payment apart from the trip. (3) She withdrew from the conspiracy at an early stage. (4) Insufficient weight was given to her assistance to the authorities and to the circumstance that by agreeing to give evidence against her co-conspirators she might be placing her life at risk. 20 I have indicated that very much to the forefront of the applicant's submissions advanced today was her contention that the sentence imposed on her, having regard to the role played by her brother-in-law in the overall conspiracy, lacks proportion. 21 The offence to which the applicant pleaded guilty was preferred under s.233B(1)(cb) of the Customs Act (Cth) 1901. The maximum penalty is imprisonment for life. 22 It is clear that his Honour Shillington DCJ did have regard to the circumstance that the applicant first became aware of the conspiracy after her arrival in Chile. In the course of his reasons for sentence at p.3 his Honour dealt with the question of the payment or other benefit which the prisoners might have hoped to obtain from their planned importation. He found that Douglas Crombie expected to receive cash and a third of five kilograms of cocaine worth approximately $110,000. His Honour noted that there was no direct evidence of benefits anticipated by either Cynthia Crombie or the applicant. He found that Cynthia Crombie might be expected to share in the profits obtained by her husband. As to the applicant, his Honour said this: "Haydee Diaz received the benefits of the trip to South America to visit her family and probably some further share of profits". 23 The latter remark appears to be a reference to any expectation that the applicant might have entertained, it being common ground that no profit had been realised in relation to this venture. The Crown had addressed submissions to his Honour on this topic. In those submissions it was contended that "there is an irresistible inference that had the importation been successful she would have received some payment for her services". Viewed in this light it is clear that in making the observation that the applicant would probably receive some share of the profits his Honour was rejecting the Crown's submission that this was an irresistible inference. 24 His Honour made specific reference, in dealing with the applicant, to the assistance that she had offered to the authorities and her preparedness to provide assistance in the future. He quantified the discount by reference to past and future assistance. In relation to the assistance already given he allowed a discount of one and a half years. His Honour then allowed a further discount of another one and a half years in respect of future assistance. Overall he reduced a proposed sentence of eight years with a five-year non-parole period to a sentence of five years with a non-parole period of two and a half years. I consider that his Honour made adequate allowance for the applicant's assistance in the reduction which he effected. 25 His Honour set out a number of favourable subjective features relating to the applicant in the course of his reasons for sentence. The sentence imposed plainly reflects an acceptance of these favourable subjective features in this case. 26 His Honour took into account considerations of parity as between the applicant and her two co-conspirators. The sentences were structured to reflect his Honour's finding that the role of Cynthia Crombie, and implicitly that of the applicant, was less heinous than that of Douglas Crombie. His Honour appears to have considered that the applicant's culpability was of a lesser order than that of her sister although the lesser sentence that she received may be partly attributable to her youth and blameless background. 27 I do not consider that the applicant has made good her challenge that his Honour failed to give proper regard to considerations of proportionality as between herself and her co-conspirators, and particularly her brother-in-law Douglas Crombie. 28 The sentence imposed in relation to Douglas Crombie reflected, amongst other things, the very valuable assistance that he had provided to the authorities. Nor do I think that the sentence imposed on the applicant relative to the sentence imposed on Lili Villegas gives any ground for complaint having regard to the respective roles they played. In short, I do not consider that the sentence imposed on the applicant when compared with the sentences imposed on her co-conspirators is such as to give rise to a justifiable sense of grievance; the Queen v Lowe (1984) 154 CLR 606 at 610. 29 I do not consider that any error has been identified in the approach taken by the sentencing judge to the sentence of the applicant. The applicant submitted that emphasis should be placed on the circumstance she had been caught up in this venture only after her arrival in Chile, that the persons associated with it were frightening and that on her return to Australia prior to her arrest she had disassociated herself with the scheme. The fact remains that from a time after her arrival in Chile and following her return to Australia she had been involved, particularly as is reflected in some of the telephone intercept transcripts, in attempts to procure the importation into Australia of a very substantial quantity of cocaine. 30 This court has on numerous occasions emphasised that those who involve themselves in drug importation, particularly importations involving a commercial quantity of a prohibited substance, must expect to receive heavy custodial sentences; R v Budiman (unreported, NSWCCA 8 September 1988); Moore and Weibe (unreported, NSWCCA, 11 August 1992); Laurentiu (1992) 63 A Crim R 402. 31 I would propose that leave to appeal in this case be refused. 32 WOOD CJ at CL: I agree. 33 SMART AJ: I also agree. 34 WOOD CJ at CL: The order of the court will be as Justice Bell has proposed. **********

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