Regina v Bellorini and Regina v Ruiz [2000] NSWCCA 50

New South Wales Court of Criminal Appeal

CITATION : Regina v Bellorini and Regina v Ruiz [2000] NSWCCA 50 FILE NUMBER(S) : CCA 60771/98; 60781/98 HEARING DATE(S) : 11 February 2000 JUDGMENT DATE : 7 March 2000

Regina PARTIES : Dora Bellorini Evelyn Ruiz JUDGMENT OF : Grove J at 1; Sully J at 2; Simpson J at 43

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0929 97/11/0896 LOWER COURT JUDICIAL Mitchelmore DCJ OFFICER :

R. F. Sutherland - Crown COUNSEL : P. Boulten - Bellorini C. Waterstreet - Ruiz Commonwealth Director of Public Prosecutions - Crown SOLICITORS : Klees & Associates - Bellorini Hovan & Co. - Ruiz

Customs Act LEGISLATION CITED : Crimes Act 1914 (C'th) Justices Act 1902 (NSW) CASES CITED: Jones v The Queen 67 ALJR 376 R v Ellis (1986) 6 NSWLR 603 DECISION : In the matter of Bellorini -Leave to appeal granted; Appeal upheld and sentence imposed in Court below quashed; Appellant re-sentenced on Count 1 of the indictment to imprisonment for 8 years, commencing on 28 July 1997, with a non-parole period of 5 years, commencing on the same day.; In the matter of Ruiz - Leave to appeal granted; By majority appeal against sentence dismissed

IN THE COURT OF CRIMINAL APPEAL 60771/98 60781/98

GROVE J SULLY J SIMPSON J

7 March 2000

REGINA v DORA BELLORINI REGINA v EVELYN RUIZ

JUDGMENT

1 GROVE J: I agree with Sully J. 2 SULLY J: These are two related applications for leave to appeal against sentences passed upon the applicants on 2 December 1998 by his Honour Judge Mitchelmore, sitting in the District Court at Wollongong. The applicant Mrs. Ruiz stood for sentence having pleaded guilty before a Magistrate to a charge that on 28 July 1997 she had imported into Australia prohibited imports to which s.233B of the Customs Act applied, namely narcotic goods consisting of a quantity of cocaine not less than the commercial quantity applicable to cocaine. The applicant Mrs. Bellorini stood for sentence having pleaded guilty before his Honour to two charges. The first charge was identical to that preferred against Mrs. Ruiz. The second charge was that on 28 July 1997 Mrs. Bellorini had in her possession and without reasonable excuse prohibited imports to which s.233B of the Customs Act applied, namely narcotic goods consisting of a quantity of cocaine which had been imported into Australia in contravention of the Customs Act, being a quantity not less than the commercial quantity of cocaine. 3 The relevant schedule to the Customs Act fixes in respect of cocaine a quantity of 2 kilograms as what is described for the purposes of the Customs Act as a commercial quantity of that narcotic substance. All of the offences charged against Mrs. Ruiz and Mrs. Bellorini attract, upon conviction, a statutory maximum penalty of imprisonment for life. 4 His Honour Judge Mitchelmore sentenced Mrs. Ruiz to imprisonment for 7 years and 9 months, with a non-parole period of 4 years and 9 months. His Honour sentenced Mrs. Bellorini to imprisonment for 9 years, with a non-parole period of 6 years. 5 The relevant facts can be shortly stated. On 28 July 1997 four United States nationals arrived at Sydney Kingsford-Smith Airport on an international flight which had come to this country from Argentina and via New Zealand. Mrs. Ruiz and Mrs. Bellorini, the present applicants, were two of those four persons. The remaining two were a woman named Silvia Cuadra; and a man named Randall Quirk. Each of the four was carrying a back-pack. Concealed in each back-pack was a quantity of cocaine. The gross weight, in each case, of the cocaine thus transported was in the order of 5 kilograms. The purity of the cocaine was 81 per cent, so that the quantity carried by each of the four persons, expressed in terms of pure cocaine weight, was of the order, in each case, of 4 kilograms, that is to say twice the prescribed minimum commercial quantity. 6 There is no doubt about the guilt as charged of the two present applicants. The persons Cuadra and Quirk, also, were charged with having imported the quantities of cocaine carried respectively by them. There was no doubt of their guilt as thus charged. It is clear from the available evidence that the only motivation of all four of the offenders was financial gain. There is absolutely nothing to be said for any one of them so far as concerns the objective gravity of their respective offences. 7 The submissions put at the hearing of the appeal on behalf of Mrs. Ruiz propounded a number of particular errors said to have been made by the learned sentencing Judge; and raised as well a parity argument based upon a comparison of the sentences passed upon Mrs. Ruiz on the one hand and Miss Cuadra on the other. 8 The submissions put for Mrs. Bellorini were more precisely focused, and concentrated upon a parity argument based upon a comparison of the sentence passed on Mrs. Bellorini with the sentences passed, respectively, on Mrs. Ruiz and Mr. Quirk. 9 Miss Cuadra was apprehended by Australian Customs officers at Sydney Airport. She confessed at once to having knowingly imported her particular parcel of cocaine into Australia. She cooperated fully with the investigating authorities. She took part readily in a formal interview, in the course of which she made full and frank admissions as to the enterprise of which she was a part, and of her part in that enterprise. She promised assistance to the authorities in connection with the identification of the organisation behind the importation. She undertook to give evidence against her co-offenders; and she signed ultimately and pursuant to s.21E of the Crimes Act 1914 (C'th), a formal undertaking to that effect. Detailed statements made by her were served by the Crown in December 1997 on the solicitors then acting for Mrs. Ruiz and for Mrs. Bellorini. 10 In the course of her various interviews by investigating officers, Miss Cuadra admitted to having imported on an earlier occasion, in December 1996, a quantity of cocaine. This offence had been previously unknown to the authorities; so that its voluntary disclosure entitled Miss Cuadra to special and considerable practical leniency. 11 In due course Miss Cuadra was charged with two separate offences of importation. She pleaded guilty to both before a Local Court Magistrate on 16 September 1997, and was thereupon committed for sentence pursuant to s.51A of the Justices Act 1902 (NSW). On 18 December 1997 she stood for sentence before his Honour Judge Downs in the District Court at Sydney. She was dealt with, correctly, upon the basis that she was entitled to very substantial discounts for her prompt pleas of guilty; for her considerable assistance to the authorities; and for her voluntary confession of her involvement in the second offence to which I have earlier referred. 12 In the event, Miss Cuadra was sentenced on each of the two matters to imprisonment for 7 years with a non-parole period of 4 years, the sentences being ordered to be served concurrently. 13 Miss Cuadra was born on 5 April 1952. Downs DCJ describes in his Honour's remarks on sentence, and as follows, the subjective matters accepted by his Honour in connection with the sentencing of Miss Cuadra: "The prisoner is not married and she has resided for the past 15 years with her mother in San Francisco. She is a citizen of the United States of America and she stated that she has not been arrested in the U.S.A. She is currently employed as a fashion consultant in the U.S.A. I have the benefit of a pre-sentence report which states that the prisoner had not had any prior contact with the Probation and Parole Service. She is an only child and she was born in San Francisco in the United States of America of Nicaraguan parents. She was raised in Nicaragua where she was married in 1972 After her divorce she initially moved to Miami and then to San Francisco where as I have said she has continued to reside with her mother for the past 15 years. She stated that she had enjoyed a happy childhood and that she had a close relationship with her mother. She has a cousin who lives in Sydney and the cousin informed the service that the prisoner was raised in a comfortable middle class environment and she had always liked the good things of life. The prisoner informed the officer of the service that during most of her working life she had been employed in the fashion industry and that during approximately the last five years she had worked as a sales consultant for a fashion designer in San Francisco earning approximately $2,000 (US) per month. This information could not be verified because the prisoner did not wish the officer to contact her former employer or friends. She was reluctant to discuss the offences with the officers other than to state that she was assisting the Federal Police with their enquiries relating to her three co-offenders. She claimed that she committed both offences purely for financial gain and not to support a drug addiction which I will refer to shortly. She accepted full responsibility for her actions and she went on to say that since she had been in custody she had come to understand the suffering her conduct may have caused and she is embarrassed and ashamed to face her mother and friends. She admitted that prior to being arrested she had used cocaine every weekend for a number of years. She also stated that occasionally she had used cannabis and alcohol for recreational purposes. She denied that she had any drug addiction. …………………………… The officer of the Probation Service found the prisoner to be an intelligent yet impulsive and excitable woman who was not afraid to take full responsibility for her actions and that completes the report." [Appeal Book, ( Bellorini ) , 76,77,78] 14 Mrs. Ruiz, one of the present applicants, was intercepted at the airport. She, too, confessed promptly to her criminal conduct. She, too, agreed to assist the investigating police; but, in the events that occurred, it became unnecessary for the investigating police to act upon that offer of assistance. 15 Mrs. Ruiz pleaded guilty before a Local Court Magistrate on 10 October 1997. She was remanded thereupon, and pursuant to s.51A of the Justices Act 1902 (NSW), for sentence in the District Court. On 16 March 1998 she adhered in the District Court to that plea. In due course, and as earlier herein noted, she stood for sentence before Mitchelmore DCJ on 2 December 1998. 16 Before his Honour, and in connection with the sentencing proceedings, a statement of agreed facts was tendered. The statement acknowledged in terms the agreement of Mrs. Ruiz to the proposition "that the importation of cocaine the subject of the indictment was not an isolated importation by the accused". It is submitted by the Crown that this acknowledgment derived in every real and practical sense from the service upon Mrs. Ruiz and her legal advisers of the extensive statement made to the investigating officials by Miss Cuadra. In my opinion this is a reasonable inference. 17 The statement of agreed facts to which I have earlier referred contained a second, and not unimportant, concession by Mrs. Ruiz. It was a concession that she, Cuadra, Bellorini and Quirk had "travelled together to Australia from Argentina and that each of them imported into Australia …………..a black back-pack of similar design. Each back-pack contained approximately 5 Kilograms of Cocaine, stored in a sewn shut compartment". 18 Mrs. Ruiz was born on 23 October 1962. Her relevant subjective circumstances, as found by Mitchelmore DCJ, are as follows: · She has no criminal antecedents either here on in the United States. · She has some real and genuine remorse for having taken part in the illegal trafficking of prohibited drugs. · Her prospects of rehabilitation are good. · She has two young children and her absence from ordinary familial contact with them is distressing both for her and for them. · She is intelligent and resourceful. · She has in the past used illicit substances but apparently not during recent years. · She was entitled to some consideration by reason of her prompt plea of guilty and her offer of assistance, accepted as a genuine offer, to the investigating authorities. · She will suffer the hardship normally deriving from incarceration in a foreign country. 19 Mitchelmore DCJ had before him, and gave careful consideration to, the contents of a letter which had been written by the applicant to the Court; and to the contents of a letter that had been written to the Court by the elder of the applicant's two children. It is not necessary to set out now the detail of those letters. Mitchelmore DCJ expressed himself as having been moved by the contents of both letters; and I agree that what is said in the letters is moving. It is, of course, necessary to keep carefully in mind that emotive material of that character can be given only a very limited weight in connection with the sentencing of somebody who admittedly attempted to run into this country twice the prescribed commercial quantity of cocaine; and that for no other motive than the motive of substantial financial gain. 20 Mrs. Bellorini, the other present applicant, was not apprehended at the airport. She, in company with Mr. Quirk, cleared the customs and immigration formalities at the airport and proceeded together to the Gazebo Hotel at Parramatta. Late in the evening of 28 July 1997 police attended at that establishment. They found Mrs. Bellorini and Mr. Quirk together in the former's room. As police entered the room, Mr. Quirk was observed walking from the bathroom. He was taken back to his own room and Mrs. Bellorini's room was searched. She voluntarily showed police four plastic bags containing cocaine. She identified a black back-pack then on the bed in her room as belonging to Mr. Quirk. She told the police that cocaine found in the bathroom had come from Mr. Quirk's bag. She told them that there were further drugs in her own black back-pack then lying on the floor of her room. 21 Mrs. Bellorini, when subsequently interviewed by the investigating police, equivocated about her relevant knowledge. Mitchelmore DCJ found as a fact that she had been "far from frank, honest with the police". In my opinion that finding was amply open to his Honour. 22 Mrs. Bellorini maintained a plea of not guilty until she came to trial before Mitchelmore DCJ on 16 March 1998. She pleaded guilty on the first day of her trial. Like her co-offender, Mrs. Ruiz, Mrs. Bellorini agreed to a statement of facts which included the proposition "that the importation of cocaine the subject of the first count was not an isolated importation by the accused". In the case of Mrs Bellorini, as in that of Mrs. Ruiz, it is in my opinion a reasonable inference that the plea of guilty recognised, at least in significant part, the difficulties that would be posed to the continued defence of the charges by the contents of the statements made by Miss Cuadra and served prior to the trial on Mrs. Bellorini and her legal representatives. 23 Mitchelmore DCJ took the view that the second count in the indictment presented against Mrs. Bellorini, that is to say the count charging her with possession of the cocaine that had been transported in Mr. Quirk's back-pack, was "not a fresh disparate criminal venture". That approach was reflected in the structure of the sentences imposed by his Honour. I see no error in the approach taken by his Honour to the sentencing of the applicant in connection with the possession count. 24 Mrs. Bellorini was, by a significant margin, the oldest of the four co-offenders, having been born on 13 February 1935. She stood for sentence having no prior criminal convictions in Australia or in the United States. His Honour noted, and gave credit for, the plea of guilty; doing so both upon the basis that the plea manifested "some expression of contrition", and on the basis of the bare, utilitarian value of the plea in having avoided a potentially long and costly trial. Her subjective circumstances, personal and familial, were not, of course, identical with those of Mrs. Ruiz, but there were substantial similarities between the two cases. 25 Mr. Quirk was apprehended in company with Mrs. Bellorini and in the circumstances to which I have earlier referred. He denied any knowing involvement in the offending importation. He made no pre-trial admissions of guilt. He maintained his plea of not guilty until he was brought to trial on 16 June 1998. He stood for sentence before Flannery DCJ on 11 December 1998. He was sentenced to imprisonment for 8 years with a non-parole period of 5 years. 26 Mr. Quirk was born on 4 May 1957. When he stood for sentence he had no criminal antecedents in this country, but he did have criminal antecedents in the United States. He had a conviction for a minor offence of shop lifting in 1977; and a conviction for conspiracy to commit a mail fraud for which he had served two months' imprisonment. He had been released to probation or parole in connection with that imprisonment, the probation or parole period being 5 years. He was at liberty on that probation or parole at the time he committed the importation now in point. 27 Flannery DCJ made the following finding which is, in my opinion, of some potential importance for present purposes: "I am not satisfied beyond reasonable doubt that Mr. Quirk was involved in any earlier enterprise at all or with another member or other members of the group of co-offenders and that was acknowledged by the prosecution during the course of the sentencing proceedings …………….." [Remarks on Sentence, at 2] 28 Mr. Quirk, too, had a variety of subjective features to his case. Mr. Quirk is apparently a man of some recognised standing as a naturalist. He has a sick and widowed mother requiring a great deal of personal assistance in her daily activities. He stood for sentence supported by character references which were accepted by Flannery DCJ. His Honour accepted evidence that Mr. Quirk's prospects of rehabilitation were good. 29 Given the whole of the foregoing factual background, it is now possible to look more particularly at each of the present applications.