The Queen v Salles[1997] QCA 129

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 92 of 1997

Brisbane

THE QUEEN

v.

ARACATI DE OLIVIERA SALLES

(Applicant)

McPherson JA

Thomas J

Lee J

Judgment delivered 20 May 1997

Judgment of the Court.

APPLICATION GRANTED FOR EXTENSION OF TIME IN WHICH TO APPEAL. APPEAL DISMISSED

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20 May 1997

The applicant seeks an extension of time within which to file an application for leave to appeal against his sentence.  He was sentenced in the circuit court at Mackay to 20 years' imprisonment for importing a commercial quantity of cocaine into Australia.

The present application was not received by the Registrar until 17 March 1997, more than four months after his sentence.  The delay is therefore fairly substantial.  The explanation for it is essentially that he was ignorant of his right to appeal or of the time limit for commencement of an appeal.  There is certainly a language barrier, and the services of an interpreter were necessary in this Court.

In the event, the Court received full submissions as if on an appeal, and although no formal record was prepared, the Court has received the full transcript of proceedings and all exhibits that were tendered.

The relevant statement of facts presented to the learned sentencing judge had been translated to the applicant, and no challenge was made to them during the proceedings.  They included the following:

"The accused in this matter was a crewman on a vessel called the Doce River which originated this voyage in Brazil in April 1996 and travelled via Taiwan to Mackay where it was intended to load coal at Hay Point.  The co-accused, Filho and Ferriera were also crewman on board the vessel.

On seventh day of June 1996 an alert watchman at the wharves at Hay Point noticed three seaman come ashore in excess of one hour after other crew had left in the bus to go into town.  They requested the watchman to call a taxi to take them into the city.  He made the call for the taxi but also the Australian Custom Service as he was concerned that these three men were carrying two bags one of which was quite large.  He was able to delay them at the wharf until the authorities arrived.

Upon the arrival of the Customs officers they instigated a search of the contents of the bags and located twenty packages all weighing approximately one kilogram each. . . .

One of the carry bags was purple in colour and contained six blocks of cocaine.  This bag also had a compartment which held a small money belt containing a large number of identity papers and personal documents in Salles name.  The three accused were asked who owned the purple carry bag and Salles identified it as his. . . .  All three accused were transported back to Customs House.  Whilst driving there the following conversation occurred

Customs Officer Scicluna: 'Who asked you to carry the bags?'

Salles replied:  'Not black man, white man.'

Scicluna:  'Where were you going to take the bags?'

Salles replied:  'First Hotel'

Scicluna:  'You go to first hotel what do you do then?'

Salles:  'Look for man with cap and leave bags.'

At the Customs House Filho was interviewed by Australian Federal Police and was co-operative with investigators.  Ferriera was also interviewed on 8 June 1996 and was initially unco-operative.  A number of days later Federal Agent Mark Ney received information that Ferriera was still at the Mackay Watchhouse and wished to provide him with further information.

In this interview Ferriera told Police that he had been approached in Brazil by a person who asked him to take the packages to Japan.  He claims that he did not know who the person was or did not know him well.  He stated that he was to hand the packages over to a person who would approach him in Japan.  He kept the packages in the engine room.

He said when he realised that the boat was bypassing Japan and was going to Taiwan he told Salles about this delivery problems and Salles said leave it to him.  A few days later Salles told him that he had arranged for the product to be landed in Australia.  He claims that if Salles had not made the arrangements for him he would have taken the product back to Brazil.  In the meantime Ferriera had approached Filho and asked him to assist with landing the product.  Filho had been initially reluctant but after being approached on a second occasion Filho had agreed to assist.  At this time Filho was experiencing financial difficulties.

Ferriera claims that he was to be paid $ US 20,000 for delivering the package to Japan.  That when the other arrangements were made Salles told him that they would be paid $20,000 when they returned to Brazil and it would be divided between three of them.

On 7 June 1996 Ferriera took the packages from the engine room to his cabin and all three of them packed the bags and all left together.  The carry bags were supplied by Salles.  The numbers of the blocks of substance were recorded on a piece of paper.  The arrangement was that all three men would travel to a hotel in Mackay and they would recognise the person to collect the packages as he would be wearing a distinctive hat.

The accused did not participate in a Record of Interview on the advice of his legal representative.

The drugs were analysed by Aust Government Analytical Lab and was found to be 75% pure cocaine resulting in a 14.872 kilograms of cocaine.  This is the largest amount of cocaine ever seized in Queensland by the Australian Federal Police."

During the appeal, the submissions of the applicant included the assertion that only a few days before arrival in Australia he had been asked by a crewman (presumably Ferriera) to help bring a drug onto the land, and that he had stupidly agreed to do so.  That however is belied by the statement of facts accepted below, which shows his involvement at a far earlier stage, and suggests some active involvement on his part in relation to the arrangements for the importation.

In his favour is the circumstance that he is 34 years old and has no previous convictions of any kind.  He has a wife and two young children in Brazil, who are apparently in relatively impoverished circumstances.  He had already spent five months in prison before being sentenced.  He does not speak English, which may be thought to some extent a handicap during his imprisonment.  Furthermore, he pleaded guilty, although his willingness to do so was not communicated until the time of the committal.  The delay in so doing is explained by a lack of understanding on his part and communication problems.

There were 20 one kilogram packages of the drug, consisting of 14.872 kilograms of pure cocaine.  The importation was estimated to be worth about $1.8 million wholesale, and about five to six times that sum if sold to consumers.

The sentencing process of the three offenders was complicated to some extent by the circumstance that the applicant did not cooperate with the authorities, and indeed he has never disclosed the names of any of his contacts.  On the other hand, both of the co-offenders indicated at an early stage that they were prepared to cooperate at least to the extent of giving evidence against the applicant.  This, it was suggested, was the catalyst which helped produce this applicant's plea of guilty at the committal.  In the event, the two co-offenders were sentenced at an earlier stage, and each was given the benefit of his cooperation and his willingness to give evidence.  In Ferriera's case, the learned sentencing judge indicated that a proper sentence would be 22 years, but that a discount of three years would be allowed for his cooperation.  In Filho's case, the learned sentencing judge indicated that a sentence of 18 years would be appropriate, but that a three-year discount should be allowed for his cooperation.  Ferriera then was sentenced to 19 years' imprisonment, and Filho to 15 years.

The learned sentencing judge referred to those circumstances, and was of the view that the seriousness of the applicant's involvement was in between that of the other two.  He noted that the applicant was not entitled to the particular discounts that had been allowed to those persons.  It may be noted that the Crown prosecutor had submitted that the applicant's position resembled Ferriera's more than it did Filho's, but His Honour imposed a sentence midway between the primary notional sentences imposed on the other offenders.  The circumstance that the applicant's sentence is slightly higher than Ferriera's is at first glance troubling.  But the fact is that Ferriera managed to obtain a particular advantage that the law recognises, while the applicant did not.  This is not a situation that validly raises any question of disparity.

Perusal of comparable cases of large valuable importations of heroin suggest that no error has occurred in fixing sentences of this order.  It is true that the commercial prescribed quantity of heroin is 1.5 kilograms whilst that of cocaine is 2 kilograms, but when relative quantities and values are taken into account, the sentences in the heroin importation cases are of assistance in determining the appropriate level in the present matter.

Of particular relevance is R v. Tai Ka Kin and R v. Chan Chee Hong CAs 287 and 288 of 1989, CCA unreported, 15 December 1989.  Tai Ka Kin was charged with possession of 10.3 kilograms of unlawfully imported heroin.  He and an accomplice had gone to a vessel at Mackay Harbour and left with heroin strapped to his body and further heroin in a bag.  He had served eight months' custody, was aged 27 and had no previous convictions.  After a review of other cases, the Court of Criminal Appeal increased the original sentence of 15 years to one of 20 years.  Further reference may be made to Wong Chi Po CA 288 of 1984, unreported, 5 March 1985, but it is not necessary to review the authorities further.  The sentence imposed was within the limits of a sound sentencing discretion.

In the circumstances of this case we would extend the time for filing the notice of application for leave to appeal to 17 March 1997, and would dismiss the appeal.