Wilfredo Roland Vasquez-Felipe v Regina [2006] NSWCCA 411

Reported Decision : 167 A Crim R 321

New South Wales Court of Criminal Appeal

CITATION: Wilfredo Roland Vasquez-Felipe v Regina [2006] NSWCCA 411

HEARING DATE(S): 30 November 2006

JUDGMENT DATE: 19 December 2006

JUDGMENT OF: Barr J at 1; Adams J at 30; Latham J at 37

DECISION: Leave to appeal granted. Appeal dismissed.

PARTIES: Regina, Wilfredo Roland Vasquez-Felipe

FILE NUMBER(S): CCA 2005/706

COUNSEL: J Doris W Abraham QC

SOLICITORS: Forshaws Neill Solicitors Commonwealth Director of Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0655

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/706

BARR J ADAMS J LATHAM J

19 DECEMBER 2006 WILFREDO ROLAND VASQUEZ-FELIPE v REGINA Judgment 1 BARR J: This is an application for leave to appeal against a sentence imposed in the District Court. Having pleaded guilty in the Local Court the applicant, Wilfredo Roland Vasquez-Felipe, came before Ainslie-Wallace DCJ for sentence for the offence that between about 1 December 2002 and 4 February 2003 he aided and abetted the importation into Australia of not less that the commercial quantity of a prohibited import, namely cocaine. The offence attracted a maximum sentence of imprisonment for life and a fine of $750,000.00. On 19 March 2004 her Honour sentenced the applicant to imprisonment for twelve years and six months with a non-parole period of eight years and three months. 2 On 23 November 2003, the Australian Federal Police ("the AFP") commenced a joint investigation with the Argentinean Federal Police into an Australian and Argentinean organised crime syndicate involved in cocaine trafficking between Argentina and Australia. The syndicate obtained its cocaine from Peru. The cocaine was imported by the use of purpose-built, hard-sided suitcases which were impregnated with the cocaine. When the suitcase reached its destination the cocaine was to be extracted from the suitcase. The services of a chemist were enlisted for that step. 3 The investigation identified the following persons as being involved in the syndicate - - Wilfredo Roland Vasquez-Felipe (the applicant) - Keith Graham Chee (Chee) - Daniel Pierre Berthiaume (Berthiaume) - George Baldwin (Baldwin) - Neil Matthew Danson (Danson) - Stephen Sutton (Sutton) 4 Between December 2003 and February 2003 telephone calls between the applicant and the co-offenders were listened to and recorded. They showed that the applicant was to obtain cocaine from Danson to distribute in Australia. On 26 December 2002, Chee departed Australia for Argentina, arriving on 29 December 2002. He intended to return to Australia on 13 January 2003. While Chee was in Peru the applicant undertook a number of activities, including these - (a) On 10 and 11 January 2003 the applicant arranged meetings with Danson and Berthiaume, the chemist who was to extract the cocaine from the suitcases in Australia; (b) On 11 January 2003 the applicant was informed by a person overseas of a delay in receiving the cocaine because there was a problem with its processing; (c) On 13 January 2003 the applicant had several telephone conversations, including with persons overseas, expressing concerns about the delay and that it would affect the whole operation; (d) Between 15 and 17 January 2003 the applicant was in contact with Danson and Berthiaume; and (e) From 18 January 2003 until 3 February 2003 the applicant, in a number of telephone calls, organised for the suitcases to be provided to Chee. The applicant provided instructions to effect the handover. 5 Chee met the Argentinean members of the syndicate and Stephen Sutton, from whom he was to collect two suitcases. On 3 February 2003, Chee returned to Australia with the two suitcases and was allowed to pass through the Customs examination. The AFP maintained surveillance on Chee, who returned to his residential address at Chester Hill. Two hours after Chee arrived, the applicant contacted Danson to inform him of the arrival. The applicant later met Danson, Berthiaume and others. At about 7:15pm Baldwin drove the applicant and Berthiaume to Chee's premises at Chester Hill. Berthiaume and Baldwin took possession of the two suitcases and put them in Baldwin's vehicle. Baldwin drove the applicant and Berthiaume to the applicant's unit. The applicant and Berthiaume took the suitcases inside. On 4 February 2003, the AFP executed a search warrant on the applicant's premises. The applicant and Berthiaume were in the lounge room with the two suitcases. Berthiaume was the chemist. The lining of both suitcases had been removed to expose a black, hard, resinous substance. One suitcase was partially dismantled and a quantity of the resinous material had been removed and placed in a plastic bag. The applicant and Berthiaume were arrested. 6 The pure weight of the cocaine so imported was 3.7 kilograms. The commercial quantity is 2 kilograms. 7 The applicant was charged on 4 February 2003. He pleaded guilty on 3 October 2003 and in December 2003 he offered to give assistance to the Australian Federal Police. Over December and January he took part in a number of interviews with members of the Australian Federal Police. 8 On sentence, the Crown tendered a transcript of the telephone conversations between the applicant and other members of the syndicate. It called evidence from a member of the Australian Federal Police, Agent Barron, and tendered a letter that spoke about the assistance the applicant had given together with an assessment of its worth. 9 The applicant was represented by counsel, who cross-examined Agent Barron. Counsel tendered the report of a psychologist, Mr Borenstein, who had interviewed the applicant. 10 Her Honour noted the communications between the applicant and the other members of the syndicate and his arranging for funds and for the handover of the suitcases. Her Honour found that the applicant was managing the importation either alone or together with others unknown. Her Honour recognised that as chemist Berthiaume had an important role to play, but considered the applicant's criminality greater. 11 Agent Barron was of the view, in the light of other evidence and intelligence available to Australian Federal Police, that the applicant was unreliable. He said that it was therefore not proposed to call him as a witness. He said that other information provided by the applicant was valuable. Although it had not resulted in any further arrest or seizure, it had enhanced intelligence and provided further opportunities for the investigation of others involved in narcotics trafficking. However, the value of that assistance was tempered by the applicant's not providing a full and frank disclosure of his involvement in this importation.