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Court of Criminal Appeal 20 July 2009

MALDONADO v R

[2009] NSWCCA 189

DrugsFraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL MONEY LAUNDERING INTEGRAL ROLE IN COMMISSION OF OFFENCES MATERIAL ERROR REQUIRING INTERVENTION PARITY

Citation: Maldonado v R [2009] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 20 July 2009
Judge(s): Campbell JA, Latham J, Harrison J

Background

The applicant pleaded guilty in the District Court to four serious Commonwealth drug and money laundering offences: aiding and abetting the manufacture of a commercial quantity of cocaine, trafficking a commercial quantity of cocaine, and two counts of dealing in the proceeds of crime (totalling approximately $750,000). Two further offences were taken into account on a schedule.

The applicant was an integral figure in a syndicate that extracted approximately 34 kilograms of cocaine from imported fruit powder in early 2006. His role spanned multiple stages of the operation: securing the factory premises, transporting chemicals, supplying provisions to those conducting the extraction, removing cocaine and residue, and handling money flows to overseas principals. Telephone intercepts identified him as a trusted deputy of the syndicate's principal. He also had a prior conviction for drug importation, for which he had received a 12-year sentence.

At first instance, Blackmore SC DCJ imposed an aggregate sentence of 36 years with a non-parole period of 22 years. The applicant appealed, contending the sentences were individually and collectively manifestly excessive, that there was a parity issue relative to his co-offenders, and that the sentencing proceedings miscarried because the Judge mistakenly recorded a Crown submission about the proposed aggregate.

  • Whether the sentencing judge made a material error by incorrectly recording the Crown's proposed aggregate sentence and non-parole period during the sentencing proceedings
  • Whether the aggregate sentence of 36 years with a 22-year non-parole period was manifestly excessive
  • Whether the sentences gave rise to a parity concern when compared with those imposed on co-offenders
  • What the appropriate re-sentence should be upon finding error

Decision

The Court identified a material error in the sentencing proceedings. The sentencing judge had attributed to the Crown a proposed aggregate sentence significantly higher than the Crown had actually submitted. This misrecording was not a minor clerical matter: it bore directly on the judge's assessment of the appropriate aggregate, and the Court found it constituted an error requiring appellate intervention independent of the manifest excess ground.

On manifest excess, the Court considered the sentences against those received by co-offenders and the principles governing accumulation of sentences for serious drug offences. While the applicant's criminality was acknowledged as serious and greater than that of his co-offenders, the Court concluded that the aggregate sentence of 36 years was disproportionate even accounting for his more significant role.

The Court declined to reduce the individual sentences imposed for each offence, finding they were not in themselves excessive. The intervention was directed at the accumulation structure, specifically the extent to which the sentences were stacked on top of one another to produce an aggregate term that was not commensurate with the overall criminality. The Court also noted that reducing the aggregate to the level the Crown had originally proposed at first instance would not adequately reflect the applicant's criminality.

On re-sentence, the Court accepted a brief affidavit concerning the applicant's conduct and circumstances in custody. The non-parole period was fixed at approximately 60 per cent of the aggregate, consistent with the approach taken by the sentencing judge, on the basis that the applicant would be elderly upon release.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Sentences imposed on 18 April 2008 quashed
  • Dealing in proceeds of crime (approximately $600,000): 10 years imprisonment from 12 June 2006, expiring 11 June 2016
  • Dealing in proceeds of crime (approximately $150,000): 8 years imprisonment from 12 June 2006, expiring 11 June 2014 (one further offence taken into account)
  • Trafficking a commercial quantity of cocaine: 15 years imprisonment from 12 June 2010, expiring 11 June 2025 (one further offence taken into account)
  • Aid and abet manufacture of a commercial quantity of cocaine: 22 years imprisonment from 12 June 2012, expiring 11 June 2034
  • Aggregate non-parole period of 17 years fixed pursuant to s 19AB of the Crimes Act 1914 (Cth), from 12 June 2006, expiring 11 June 2023

Key Takeaways

  • A sentencing judge's material misrecording of the Crown's proposed aggregate sentence constitutes an independent ground of appellate error, capable of attracting intervention even without a separate finding of manifest excess.
  • Where accumulation of sentences produces an aggregate term disproportionate to the overall criminality, the Court of Criminal Appeal may intervene by restructuring the accumulation rather than reducing the individual sentences.
  • Parity principles require that differences in sentence between co-offenders be explicable by genuine differences in culpability; the Court of Criminal Appeal confirmed that the applicant's greater role justified a higher sentence, but not to the degree initially imposed.
  • In reducing an aggregate sentence on appeal, the Court declined to adopt the figure the Crown had proposed at first instance, recognising that the applicant's overall criminality warranted a term exceeding that submission.
  • A non-parole period fixed at approximately 60 per cent of the aggregate sentence was maintained on re-sentence, reflecting the applicant's likely age at the time of potential release.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1914 (Cth), including s 19AB
- Criminal Code Act 1995 (Cth), including ss 307.9(1) and 400.5(1)

Cases
- Baxter v Regina [2007] NSWCCA 237; (2007) 173 A Crim R 284
- Lowe v The Queen (1984) 154 CLR 606
- Pearce v The Queen (1998) 194 CLR 610
- R v Lam [2003] NSWCCA 162; (2003) 140 A Crim R 435
- R v Mo (2007) 169 A Crim R 60
- Wilfredo Roland Vasquez-Felipe v R [2006] NSWCCA 411; (2006) 167 A Crim R 321
- Mazzitelli v Regina [2002] NSWCCA 436; (2002) 135 A Crim R 132
- Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
- R v Mascaro-Varillas [2002] NSWCCA 524; (2002) 157 A Crim R 355
- Ansari v The Queen [2007] NSWCCA 204; (2007) 173 A Crim R 112
- R v Bartle & Ors (2003) 181 FLR 1
- R v Hoole (unreported) NSWCCA 17 March 1989
- R v Zabul [2001] NSWCCA 455
- R v El Hassan (2003) 141 A Crim R 346