R v Armas Cajuires [1999] NSWCCA 282

New South Wales Court of Criminal Appeal CITATION : R v Armas Cajuires [1999] NSWCCA 282 FILE NUMBER(S) : CCA 60564/98 HEARING DATE(S) : 10 September 1999 JUDGMENT DATE : 10 September 1999

PARTIES : Regina v Juan de Dios Armas Cajuires JUDGMENT OF : Meagher JA at 17; Grove J at 1; Hidden J at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0529 LOWER COURT JUDICIAL OFFICER : Gibson DCJ

COUNSEL : J.V. Agius SC (Crown) G.P. Craddock (Applicant) SOLICITORS : Commonwealth DPP (Crown) T.A. Murphy (Applicant) CATCHWORDS : Criminal Law and Procedure - Sentence - Narcotic Importation - Courier - Traffickable Quantity - Range of Sentence R v Ferrer-Esis 1991 55 A Crim R 231 R v Lawson 1997 98 A Crim R 463 CASES CITED: R v Bernier 1998 102 A Crim R 44 R v Rodriguez CCA Unreported 11 March 1994 R v Robertson CCA Unreported 6 November 1998 DECISION : Appeal allowed. Applicant resentenced.

IN THE COURT OF CRIMINAL APPEAL

60564/98

MEAGHER JA GROVE J HIDDEN J

Friday 10 September 1999

REGINA v JUAN de DIOS ARMAS CAJUIRES JUDGMENT 1 GROVE J: This is an application for leave to appeal against the severity of sentence imposed by Gibson DCJ of eight and a half years imprisonment with a non parole period of six and a half years for an offence of importing not less than the traffickable quantity of the drug cocaine. The weight of pure drug involved was 712.49 grams. The commercial quantity is two kilograms. 2 The applicant is aged 52 years and a native of Guatemala. He has resided in the United States since the age of 20. He has grown children from a long standing de facto relationship. He has no prior convictions. Despite his long residence in the United States, he was interviewed and at the sentence hearing, his evidence was given through a Spanish interpreter. The facts are all too familiar. On 6 June 1998 the applicant arrived at Sydney Kingsford Smith Airport on an Air Pacific flight which had originated in Los Angeles, making a brief stopover in Nadi, Fiji. The applicant was travelling alone and in possession of a return ticket. A routine search of a backpack, which was part of his luggage, detected the drug concealed in the lining. A booking had been made at the Gemini Hotel, Randwick on the day previous to the applicant's arrival for a stay at that establishment of one day. 3 The applicant told investigating police, who had been called in by the customs officers, that he had no knowledge of the drug in the backpack which had been given to him by a friend who had told him that if someone offered to buy it from him, he should sell it to them. He claimed that he came to Australia for a holiday. An interview by Federal Police contained, it suffices to say, many prevarications by the applicant. However, in due course, the applicant pleaded guilty before a magistrate and was committed to the District Court for sentence. He gave sworn evidence before Gibson DCJ and conceded that his fare had been paid by a nominated man who had given him the bag to bring to Australia, and he was at the time given $1,000 with a promise of a further $3,000 on return. He admitted that he suspected that there was something illegal in the bag and that the thought that it might be drugs had crossed his mind. He expressed remorse for what he had done and for his lack of candour and attempted deceptions when interviewed by police. 4 The sentencing judge found, and it is not challenged, that his trip to Australia was purely a commercial venture in the sense that he did have his expenses paid and received, and was to receive further reward for his activity. 5 Counsel, on behalf of the applicant, essentially advanced two propositions; first that the sentence was manifestly excessive given its departure from what has been recognised in other cases as appropriate range, and second, that the proportion of non parole period to head sentence (a little more that 76 percent) was unjustifiably high. 6 The appropriate range of sentence for a courier (which the applicant was) who pleads guilty and has no prior convictions (a qualification sought by recruiters of couriers) has been the focus of discussion in this Court. 7 In R v Ferrer-Esis (1991) 55 A Crim R 231 the Court (Gleeson CJ, Lee CJ at CL and Hunt J (as he then was)) recognised a pattern of sentences for couriers of substantial quantities of cocaine, of head sentences between eight and a half to eleven years. The particular case involved a quantity of cocaine well towards the top of the traffickable range. The present quantity is a little less than three-eighths of the commercial quantity threshold. Without further analysis, however, it might be said that the sentence imposed by Gibson DCJ of eight and a half years, being at the bottom of the stated range, would not demonstrate a miscarriage of sentencing discretion so as to cause the jurisdiction of this Court to be invoked. 8 Ferrer-Esis was decided at a time when the sentencing scheme which saw the abolition of remissions was in its infancy, and the observation of sentence pattern was heavily dependant upon sentences imposed prior to the introduction of the new scheme. 9 In R v Lawson 1997 98 A Crim R 463 James J with whom Hunt CJ at CL (who had given the leading judgment in Ferrer-Esis) and Levine J agreed, observed: "..... since Ferrer-Esis the pattern of sentences which have been imposed on couriers who had not provided assistance has tended to be rather lower than the range of sentences indicated by his Honour ..... the great majority of sentences for offences under s233B of the Customs Act involving a traffickable quantity of heroin where the offender has pleaded guilty and had no prior convictions, were less than eight years."

10 It is not necessary to discriminate between the different narcotics, heroin and cocaine. 11 A detailed analysis of the cases which I have mentioned and other cases in which reference to patterns has been made, was conducted in this Court in R v Bernier 1998 102 A Crim R 44. The court there concluded that the pattern of sentence for substantial quantities of drugs identified in Ferrer-Esis, that is to say, eight and a half to eleven years, should now be seen as more appropriate for the importation by couriers of drugs in quantities at the lower end of the commercial range. That conclusion would seem to imply that such a range is greater than that which would be appropriate for a traffickable quantity, or certainly a traffickable quantity which was less than half the amount required to reach the threshold of a commercial quantity. 12 It has been drawn to the Court's attention that the judgment in Bernier has been the subject of some criticism in a judgment of the Court differently constituted in R v Robertson unreported NSWCCA 6 November 1998. It is not necessary today however to involve this Court as presently constituted in any analysis or debate concerning the correctness or otherwise of observations made in Bernier. 13 In written submissions on behalf of the Crown, it was conceded that the sentence and the non parole period was at the top of the range for a crime of this type in circumstances where there had been a plea of guilty, but it was contended that it did not follow that the sentencing judge had fallen into error. 14 Given what has been said in the cases to which I have made reference, I have concluded that the total sentence of eight and a half years should be held to be excessive. Save the attempts at prevarication when first questioned by authorities, the applicant's circumstances disclose no particular features of aggravation. 15 This Court should proceed to resentence. The issue of the proportion between head sentence and non parole period necessarily arises. Senior counsel for the Crown accepted the observation that there was a non parole period of 76.4 percent proportionate to head sentence, and that for a 51 (now 52) year old male with no prior convictions, such would be at the top of the accepted range. Fairly he pointed out that this Court in R v Rodriguez CCA unreported 11 March 1994, it was said that a non parole period of 75 percent should be reserved for "worst cases". In Bernier it was stated that the norm lay between sixty and sixty six and two thirds percent. 16 I propose the following orders: That the application for leave to appeal against sentence be granted; that the appeal be allowed and the sentence imposed in the District Court quashed. In lieu thereof, the applicant be sentenced to imprisonment for seven years with a non parole period of four years and six months; such sentence to commence on 6 June 1998. I would direct that counsel for the applicant explain to his client the effect of that sentence in accordance with the requirements of the statute.

17 MEAGHER JA: I agree.

18 HIDDEN J: I agree.

19 MEAGHER JA: The orders of the court are therefore the orders proposed by Grove J. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.