R v CAMPILLO VAQUERE [2004] NSWCCA 271

New South Wales Court of Criminal Appeal

CITATION : R v CAMPILLO VAQUERE [2004] NSWCCA 271 HEARING DATE(S) : 9 October 2003 JUDGMENT DATE : 13 August 2004

JUDGMENT OF : Ipp JA at 1; Hulme J at 2; Howie J at 92 DECISION : Dismiss the appeal against conviction; Grant leave to appeal against sentence; Dismiss the appeal against sentence.

PARTIES : Regina Jose Campillo Vaquere FILE NUMBER(S) : CCA 60067/01 COUNSEL : Crown: C O'Donnell Appellant in person SOLICITORS : Crown: Commonwealth DPP Appellant in person

LOWER COURT District Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Judge Keleman JUDICIAL OFFICER :

- 32 - IN THE COURT OF CRIMINAL APPEAL

60067/01 IPP JA HULME J HOWIE J

Friday, 13 August 2004 Jose Manuel CAMPILLO VAQUERE v REGINA Judgment

1 IPP JA: I agree with the orders proposed by Hulme J and with his Honour's reasons. 2 HULME J: On 6 November 2000, following a 5 week trial, the abovenamed Appellant was convicted of being knowingly concerned in the importation into Australia of not less than a commercial quantity of cocaine. On 9 February 2001, Judge Keleman sentenced the Appellant to imprisonment for life, commencing on 7 December 1988, such term to included a non-parole period of 24 years. 3 The Appellant has appealed against both his conviction and the sentence imposed. On the appeal against conviction he represented himself. On the appeal against sentence he was represented by Mr Paul Byrne SC and Ms Bashir. A convenient introduction to the issues which arise in the appeal is to quote from Judge Keleman's remarks on sentence. As one of the issues on sentence is parity with co-offenders, it is convenient to quote at somewhat greater length than might otherwise be necessary. The importation in which the prisoner was knowingly concerned occurred on 5 December 1998 when the yacht, the Maeva, captained by Gregory Meggett, entered Coffs Harbour following a lengthy voyage across the Pacific Ocean from Central America, carrying on board a Boston Whaler dinghy which contained, concealed within its fibreglass sandwich hull, 225 brown plastic packages. The contents of one of the packages had apparently dissolved and leaked out… The total weight of the white powder found in the 224 packages was 224.8 kilograms, and a subsequent analysis of representative samples of the powder revealed that it contained 171.2 kilograms of pure cocaine, with an estimated value of 40 to 50 million dollars. The amount of pure cocaine in the dinghy was more than eighty-five times the prescribed commercial quantity for cocaine. At the time of that importation, the quantity of cocaine concealed in the dinghy was the largest importation of cocaine into Australia that had been detected. The Prisoner was arrested on 7 December 1998 at a boat ramp at Coffs Harbour, together with co-offenders Beatriz Gonzales-Bates Suarez and Gregory Meggett, shortly after the Prisoner towed the dinghy from the water and up the boat ramp… At about the same time another co-offender, Robert Flavel, was arrested as he attempted to leave Coffs Harbour from the airport. Meggett, following his arrest, pleaded guilty to importing the cocaine into Australia, and was duly sentenced. He gave evidence against Gonzales and Flavel in a joint trial… (and) also gave evidence in the Prisoner's trial… A person known as Julian Del Prado, a resident of Spain, was the principal organiser and financier of the importation… Flavel's role was to arrange for the Boston Whaler containing the cocaine to be loaded on the Maeva prior to it navigating the Panama Canal from the Caribbean, to supervise and assist Meggett during the Maeva's voyage to Australia, and to ensure the safe arrival of the Maeva in Australia and the delivery of its cargo of cocaine concealed in the dinghy to Gonzales and the Prisoner… The role of Gonzales was to take delivery in Australia of the cocaine concealed in the dinghy and supervise the early stages of its transportation and storage in Australia. She was also involved at an early stage in the venture of the importation. The Maeva originally belonged to Gonzales and her husband, and was berthed in Cuba where Gonzales and her husband ran a para-sailing business called "Sky-Rider". In a transaction, the nature of which there is insufficient evidence to determine, the Maeva was transferred from Gonzales and her husband to Del Prado by way of sale or as agent for sale. When Meggett… flew… to Cuba in early January 1998 to pick up the Maeva, he was met by Gonzales at the airport, and stayed with her and her husband until she and her husband helped Meggett sail the Maeva from Cuba… in the second week of February 1998. A week later, Gonzales and her husband left Meggett in Bonnaire, but not before they provided him with funds to pay for berthing expenses. I am satisfied… that by the time Meggett arrived in Cuba, Gonzales was fully aware that the Maeva was going to be used by Del Prado to import into Australia an illicit cargo of cocaine… The Prisoner's knowing participation in the venture of the importation commenced in early 1998. Del Prado… arrived in Sydney on 18 January 1998. Eleven days later, on 29 January 1998 the Prisoner arrived in Sydney from Spain where he had been living since 1993… The Prisoner had met Gonzales and Del Prado while he was in Spain. On 9 February 1998 at Taree, Del Prado and the Prisoner inspected residential premises with an attached garage which the Prisoner rented that day in his name, paying rent in advance with cash. On the following day… the Prisoner, accompanied by Del Prado, purchased… a 12ft boat trailer and a trolley that permitted the trailer to be moved by hand. The trailer was registered in the Prisoner's name. The Prisoner paid for the trailer, trolley and registration with cash. The Boston Whaler… was an 11ft dinghy. Del Prado left Australia on 12 February 1998… … in late February 1998 the Prisoner purchased furniture and began furnishing the residential premises at Taree, and on 12 March 1998 he rented two storage sheds at Taree. The Prisoner then travelled regularly to Taree during the course of 1998 in order to pay the rent for the residential premises and storage sheds which he paid personally with cash. During this period the Prisoner was living in Adelaide. The cash used to pay for these various expenses had been provided to the Prisoner by Del Prado. I am satisfied… that Del Prado, in order to succeed with the planned importation, required a representative here in Australia to do whatever was necessary, in advance of the actual importation, to establish facilities for the early stages of the transport and storage of the cocaine following its planned arrival. I am satisfied… that the Prisoner was that representative, and that it was clearly necessary for the success of the importation to set up these facilities at Taree and establish the regular presence of the Prisoner there, well in advance of the arrival of the cocaine, in order to minimise any suspicion and detection when the Boston Whaler dinghy was to be transported to and stored at Taree by the Prisoner and Gonzales." … The Maeva did not leave Balboa until late August or early September 1998… … Gonzales and Flavel arrived in Sydney separately from overseas to play their respective roles …. Gonzales arrived in Sydney on 16 November 1998 from Spain, with an airline ticket that was paid for by the prisoner on the instructions of Del Prado. She was picked up from the airport by the Prisoner. …a few days later the prisoner accompanied Gonzales on a trip to Lord Howe Island in order to meet the Maeva and ensure there were no problems with it, or its illicit cargo. On 4 December 1998, the Prisoner and Gonzales left Coffs Harbour in the prisoner's Range Rover towing the trailer. … Prior to their departure, the Prisoner provided Flavel with the sum of $20,000 which they had discussed earlier (to pay the crew and Meggett). These funds were part of the money Del Prado had entrusted to the prisoner to pay for expenses associated with the importation. … I am satisfied beyond reasonable doubt, from all the evidence, that while Gonzales was the main conduit for communicating with Del Prado following her arrival in Australia in November 1998, and from that time she had a supervisory role in relation to the early stages of the transportation and storage of the cocaine in Australia, the Prisoner was clearly not her subordinate in the organisation involved in the importation. It is apparent from the recorded conversations that she was clearly dependent upon the Prisoner in order to carry out her supervisory role, and it was the Prisoner who was in fact responsible for the actual arrangements to transport and store the cocaine following its arrival and, in that regard, she largely deferred to his judgment in respect of these matters and other matters associated with the importation, including precautions that should be taken to avoid them being compromised or connected with the illicit importation. In addition, the Prisoner and Gonzales jointly implemented and managed the strategy to ensure that Flavel stayed at Coffs Harbour to unload and arrange for the delivery of the dinghy to them, and it was the Prisoner whom Del Prado selected to confront Flavel to carry out his agreed role in this part of the venture of the importation… In addition to the Prisoner's role in relation to the early stages of the transport and storage of the cocaine in Australia, I am also satisfied beyond reasonable doubt that the Prisoner was responsible for the payment of the various expenses associated with the Australian end of the importation, and these payments were made with money that had been entrusted to him for that purpose by Del Prado… I am satisfied beyond reasonable doubt that throughout the course of the Prisoner's participation in the venture of the importation, from when he arrived in Australia on 29 January 1998 to his arrest on 7 December 1998, the Prisoner was Del Prado's agent or representative in Australia, whose principal role was to organise the early stages of the transport and storage of the cocaine in Australia, and to pay for the expenses associated with the Australian end of the venture. … I am also satisfied beyond reasonable doubt that the role the Prisoner played in the importation was solely based on greed, that is commercial profit, and had nothing to do with his intimate relationship with Gonzales. While it is always possible to envisage a worse case, having regard to the magnitude of the quantity of cocaine involved in the importation, the level at which the Prisoner operated within the organisation responsible for that importation, the substantial degree and duration of his involvement and the grave consequences to the community had the importation not been detected, this case falls within the worst category of cases. The substantial degree of involvement by the Prisoner, in a crime of such gravity and heinousness, requires, despite the Prisoner's subjective circumstances, the imposition of the maximum penalty which is imprisonment for life.