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R v Ferreira

 

[2002] QCA 12

 

COURT OF APPEAL

 

de JERSEY CJ

McPHERSON JA

DOUGLAS J

 

CA No 318 of 2001

 

THE QUEEN

v.

JOSE PIRES FERREIRAApplicant

 

BRISBANE

 

DATE 04/02/2002

 

JUDGMENT

 

McPHERSON JA:  This is an application by Jose Pires Ferreira, who is a citizen and some time resident of Brazil, to extend the time for applying for leave to appeal against his sentence of imprisonment imposed on 24 July 1996 in the Supreme Court at Mackay.  There is also an application in the alternative for leave to withdraw a notice dated 18 October 1996 of abandonment of an earlier appeal or application for leave to appeal against the sentence.

 

The sentence imposed was one of imprisonment for 19 years with a non-parole period of nine and a half years.  The offence to which the applicant pleaded guilty was the importation of cocaine contrary to the provisions of s.233B of the Customs Act 1901 (Cth).  The quantity imported was very large indeed involving a total of 14.870 kilograms of pure cocaine having a wholesale value estimated at some 1.8 million dollars and a retail or street value some five or six times that amount.

 

It was brought ashore in daylight from a ship that had docked at the Port of Mackay by three members of the crew, of whom the applicant was one.  The astuteness of a watchman on the wharf who informed police of his suspicions was responsible for the offenders being apprehended very shortly after they came ashore and they were caught with the cocaine still in their possession.

 

It is convenient to dispose at once of one of the grounds relied on to support the application.  It is that the sentencing Judge failed to comply with s.13 of the Penalties and Sentences Act 1992, which requires a Court in sentencing to take into account that the offender has pleaded guilty.

 

I have no doubt that his Honour, in sentencing the applicant, did take the guilty plea into account.  Moreover, he said specifically that the sentence was being reduced from 22 years imprisonment to 19 years with a non-parole period of 19 and a half years because the applicant had promised to cooperate in the trial of one of the other co-offenders, who was a man named Salles. 

 

It is nevertheless said that his Honour failed to comply with s.13(3) of the Act which requires the sentencing Judge to announce in open court that the guilty plea has been taken into account.  That, however, is a requirement of a State Act. The applicant is a federal offender, so that the sentencing process in his case was regulated by the provisions of s.16A of the Crimes Act 1914 (Cth).

 

Section 16A(2) of that Act prescribes matters to be taken into account in sentencing a federal offender of which by the paragraph I have mentioned a plea of guilty is one.  It says nothing about requiring any of the matters in section 16A(2) to be announced in open court. 

 

In any event, there are decisions of this Court holding that non-compliance with s.13(3) of the State Act is not, by reason of that fact alone, fatal to a sentence imposed on a person who pleads guilty to a State offence:  see R v. Mallon (CA 480 of 1996), where earlier decisions to that effect are referred to.

 

The submission based on s.13 of the State Act, therefore, fails.  The applicant also complains that the sentence of 19 years was or is excessive, either in itself or having regard to the sentence imposed on one of the other co-offenders, who is a man named Aginor Filho.  However the amount of cocaine was, as I have said, very large, being at that time the largest illegal import of the kind prosecuted in Queensland.  By comparison, other amounts of cocaine or even heroin imported into Australia, for which notes of comparative sentences have been provided to us, pale into insignificance. They are measured in grams rather than kilograms with the exception of R v. Huon (1994) where the amount of heroin imported was 2,671 grams.  Even there the sentence imposed was one of imprisonment for 14 years.

 

The applicant also complains that his sentence is disproportionately high having regard to the sentence of imprisonment of only 15 years, with a non-parole period of seven and a half years, imposed for the same offence on his co-offender Filho.  The difference in those two sentencing levels is, however, explained and justified in the sentencing remarks of his Honour, who observed that the applicant here had been more involved in the inception of the importation, and, initially after his apprehension, less immediately willing to cooperate than Filho.

 

In any event, the whole matter of the sentences imposed on the three offenders in this case was considered by this Court when the sentence of 20 years imposed on the third of these offenders was reviewed in 1977 in R v. Salles (CA 92 of 1997). In dismissing an application by that offender to appeal, this Court considered all three sentences and concluded that no error had occurred in fixing sentence of the order of those imposed, and that the sentence imposed on Salles was proportionate to the other two and within the limits of a sound sentencing discretion.

 

That really disposes of the complaint about lack of parity in this case and, indeed, if the applicant's sentence were now to be altered it would or might create a justifiable complaint of disparity at the instance of the other two offenders.

 

For all these reasons I consider there is no real prospect of success in an appeal by the applicant against his sentence even if it were to be assumed that he has  satisfactorily explained the delay involved in making this application.

 

As to that, it seems that in substance his reasons for delay are that, having been refused legal aid to appeal, he was without legal advice and believed that he could appeal at any time after being sentenced.  Essentially it is this, coupled with his difficulties at the time in understanding English, that he says led him to abandon his appeal.  He also says that at the time he believed that he would not have the services of an interpreter on appeal and would therefore not be able to conduct the appeal himself.

 

I am not persuaded that this explanation ought to receive much, if any, weight at all.  It is not borne out by what happened at any stage of the proceedings.  The applicant and his co-offenders were initially interviewed by police with the aid of interpreters, and they also had the benefit of interpreters at the sentence hearing on 24 July 1996, when they were legally represented.

 

As it happens, Salles was also assisted by an interpreter at the hearing of his application to appeal to this Court in 1997.  The applicant could not have known that that would be so when he abandoned his appeal on 18 October 1996; but he has informed us here that he was aware that Salles was assisted by an interpreter in the course of the hearing of his appeal or application to appeal to this Court in May 1997, but he took no steps to appeal until very recently.

 

In any event, having regard to the presence of interpreters throughout the previous steps in the investigation and prosecution, there was no rational basis for the belief that an interpreter would not be available on appeal.  Having regard to the length of time that has elapsed since Salles' appeal was dealt with and the five or more years that have passed since the notice of abandonment of appeal was signed in 1996, together with the progressive improvement to which the applicant attests of his English-speaking skills, I am not satisfied that he has discharged the onus of showing that he should now be permitted to withdraw that notice of abandonment.

 

Finally, the applicant points to the difficult position in which he now finds himself.  Through having cooperated with police in relation to a very serious offence which he witnessed in prison, for his own protection he was moved into a section of a prison that caters for persons convicted of sex offences and other undesirables involved in molesting children.  He naturally finds this experience depressing.  He claims as a result to be suffering greater hardship, especially now that he no longer has the companionship of his fellow offender and Brazilian national Filho.  In addition, his wife and children are living in poverty in Brazil and one of the children is seriously ill.  From their nature, of course, these events would not have been before the Judge at the time of sentence when, of course, they had not come to pass.  They are all factors which might persuade the appropriate authority under State legislation to exercise whatever discretion it might have to grant early parole to the applicant.

 

Once, however, the judicial sentencing process has been carried to its conclusion, any such discretion passes to the parole authority leaving the courts with no power to intervene in the matter.  It is many years since the Sheriff controlled gaols in Queensland, and even then he was subject to the direction of the executive government and not of the courts.

 

It is in any event, on my superficial reading of s.19AL(2) of the Crimes Act, doubtful if the Federal Attorney-General or the federal executive has any general statutory power or authority to grant early parole to persons in prison for a federal offence.  If, however, they have such a power, this Court has no authority to direct them as to how it should be exercised:  see, for example, Horwitz v. Connor (1908) 6 CLR 38.

 

I would therefore dismiss the application by Mr Ferreira with one possible qualification.  It appears from the reasons of his Honour in imposing the sentence in this case that he did not specifically refer to the fact that the applicant had spent 47 days in custody before the sentencing hearing.  It may be that his Honour did not take that period into account arriving at the sentence actually imposed.

 

In all events, Mr Davey, who appears for the Commonwealth, has no objection to our making a declaration in this case that specifically caters for that period of 47 days.  I would therefore be prepared to declare that the time spent in pre-sentence custody in this case, which we are informed was a period of 47 days, should be declared to be time served under sentence imposed. 

 

That course seems to be clearly enough contemplated by s.16E(2) of the Crimes Act which provides that, where the law of a State or Territory has the effect that a sentence imposed on a person for an offence against the law of a State may be reduced by the period that person has been in custody for the offence, that law applies in the same way to a federal sentence imposed on a person in a State or Territory.

 

Accordingly I would be disposed to declare in the terms that I have mentioned that the 47 days should be taken into account by way of reduction or as it is or would be in the case of time served under the State sentence like that imposed in this case. 

 

THE CHIEF JUSTICE:  I agree that the application should be refused subject to the making of a declaration in the terms expressed by Mr Justice McPherson and I agree with his Honour's reasons.

 

DOUGLAS J:  I agree.

 

THE CHIEF JUSTICE:  The orders will be as indicated, therefore, by Mr Justice McPherson.

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Editorial Notes

  • Published Case Name:

    R v Ferreira

  • Shortened Case Name:

    R v Ferreira

  • MNC:

    [2002] QCA 12

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, McPherson JA, Douglas J

  • Date:

    04 Feb 2002

Litigation History

Event Citation or File Date Notes
Primary Judgment - 24 Jul 1996 Date of sentence.
Appeal Determined (QCA) [2002] QCA 12 04 Feb 2002 Application for leave to appeal against sentence refused: de Jersey CJ, McPherson JA and Douglas J.

Appeal Status

{solid} Appeal Determined (QCA)