Citation: R v Contreras; R v Alvarado; R v Silva; R v Pizarro; R v Carrasco; R v Santibanez [2019] NSWDC 527
Court: District Court of New South Wales
Date: 9 April 2019
Judge: M L Williams SC DCJ
Background
Six Chilean nationals entered Australia in August 2017, falsely declaring to Border Force officers that they had no prior criminal convictions. Each had prior convictions in Chile for offences including robbery and theft, and two had previously been deported from European countries for dishonesty offences.
Over approximately one month, the group carried out a coordinated series of property offences across New South Wales. Operating in teams, they conducted covert surveillance on victims, communicated using earpieces connected to open phone lines, and used hand signals. Their primary targets were individuals observed withdrawing cash from banks, and at least one operation focused on victims attending an international jewellery trade fair in Sydney. Offences included stealing from the person, larceny, aggravated break and enter, and attempted theft. Proceeds were sent back to Chile.
All six offenders were arrested in September 2017 and remained in custody from that point. Each pleaded guilty to multiple State offences and to a Commonwealth offence of making a false statement to an officer under the Migration Act 1958 (Cth).
Legal Issues
- What sentences were appropriate for each offender, having regard to the objective seriousness of the offending and the relevant aggravating and mitigating factors?
- How should the court apply the principles of totality and accumulation across multiple offences, including Form 1 matters?
- Whether special circumstances existed justifying a variation of the standard ratio between non-parole period and head sentence.
- How should the court treat victim impact statements that were not admissible under the Crimes (Sentencing Procedure) Act 1999?
- Whether parity considerations arose in light of two co-offenders sentenced in the Local Court.
- What weight should be given to subjective histories provided by offenders who did not give evidence?
Decision
The court identified several significant aggravating features. The offending was planned and organised, carried out in company, motivated by financial gain, and directed at vulnerable victims who were unaware they were being targeted. The absence of threats or violence was noted not as a mitigating factor but as a marker of the operation's sophistication: force was unnecessary precisely because the scheme was so well executed.
Each offender received a 25% discount on sentence for the utilitarian value of their guilty pleas. The court accepted that special circumstances existed for each offender, principally because they were serving their first custodial term in Australia, had experienced hardship from separation from family, faced language difficulties, and had been on remand, which is generally more onerous than post-classification custody. This justified a longer parole period than the statutory norm.
Subjective histories, including accounts of hardship connected to the Pinochet dictatorship in Chile, were accepted as a reasonable basis for sentencing despite not being tested in evidence, consistent with the caution required under R v Qutami. The court declined to treat the Local Court sentences imposed on two related offenders as a relevant parity consideration, as this was not argued by any party. Victim impact statements were admitted at common law on the authority of Porter v R, even though they fell outside the statutory scheme.
The Commonwealth offences under the Migration Act, which carried a maximum of ten years imprisonment, were treated as less serious than comparable cases and all terms were ordered to be served concurrently with the State sentences.
Orders Made
Each offender was convicted of all offences. The following aggregate State sentences and non-parole periods were imposed (with Commonwealth sentences of 9 months fixed term served concurrently):
- Rodrigo Carrasco: Aggregate sentence of 5 years, 7 months; non-parole period of 3 years, commencing 16 September 2017.
- Felipe Santibanez: Aggregate sentence of 5 years, 7 months; non-parole period of 3 years, commencing 16 September 2017.
- Mario Contreras: Aggregate sentence of 3 years, 7 months; non-parole period of 2 years, commencing 14 September 2017.
- Ubaldo Pizarro: Aggregate sentence of 4 years; non-parole period of 2 years, 3 months, commencing 16 September 2017.
- The sentences for the remaining offenders (Alvarado and Silva) are referenced in the judgment but the full orders were not reproduced in the provided text.
Key Takeaways
- Planned, multi-offender property schemes involving surveillance, coordination technology, and targeting of vulnerable victims will attract significant weight to aggravating factors under the Crimes (Sentencing Procedure) Act 1999, even where no threats or violence are used.
- The District Court confirmed that the absence of violence in a sophisticated theft operation does not operate as a mitigating factor; rather, it can be read as evidence of a higher degree of criminal organisation.
- Where offenders are serving their first custodial term in Australia on remand, with associated hardships such as family separation and language barriers, a finding of special circumstances adjusting the non-parole period is available.
- Victim impact statements inadmissible under the Crimes (Sentencing Procedure) Act 1999 may nonetheless be received at common law, given that the purposes of sentencing include recognition of harm to victims and the community, consistent with Porter v R.
- Uncontested subjective histories provided through third-party reports, rather than sworn evidence, are approached with caution under R v Qutami but may still be accepted as a reasonable basis for sentencing where the account is consistent with the offender's known background and circumstances.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Migration Act 1958 (Cth)
Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Pearce v The Queen (1998) 194 CLR 610
- Porter v R [2008] NSWCCA 145
- R v Chu (unrep, 16/10/98, NSWCCA)
- R v Qutami (2001) 127 A Crim R 369
- R v XX (2009) 195 A Crim R 38
- Veen v The Queen (No 2) (1988) 164 CLR 465