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[2025] NSWCCA 230
General information, not legal advice.
Court of Criminal Appeal (NSW)
2025-12-19
Bell CJ at [1]Free JA at [2]McGuire J at [3]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Fuentes v R [2025] NSWCCA 230
Hearing dates: 15 September 2025
Date of orders: 19 December 2025
19 December 2025
Before: Bell CJ at [1]
Free JA at [2]
McGuire J at [3]
Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal.
Catchwords: CRIME — Appeals — Appeal against sentence — offences of possessing a commercial quantity of border controlled drug and manufacturing not less than the large commercial quantity of a prohibited drug — application of sentencing principles to a finding of an offender’s background of deprivation — application of sentencing principles to a finding of an offender’s prospects of rehabilitation and likelihood of reoffending — whether an offender travelling to Australia for the purpose of the commission of the offence is an aggravating feature — appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Crimes Act 1914 (Cth), s 16A(2)
Criminal Code (Cth), s 307.8(1)
Drugs Misuse and Trafficking Act 1985 (NSW), s 24(2)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Dungay v R [2020] NSWCCA 209
Harris v R [2021] NSWCCA 322
NK v R [2025] NSWCCA 73
Olivares v R [2016] NSWCCA 270
R (Cth) v Cheung; R (Cth) v Choi [2010] NSWCCA 244; (2010) 203 A Crim R 398
R v Mauger [2012] NSWCCA 51
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Millwood [2012] NSWCCA 2
R v Omar [2015] NSWCCA 67
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
YZ v R [2025] NSWCCA 165
Category: Principal judgment
Parties: Laura Medina Fuentes (Applicant)
Rex (Respondent)
Representation: Counsel:
J R Rodger (Applicant)
M England SC with H T Atkinson (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2023/00169582
Publication restriction: No
[This headnote is not to be read as part of the judgment]
The applicant, Laura Medina Fuentes, was sentenced on 19 December 2024 in the District Court following pleas of guilty to two offences arising from the manufacture of methylamphetamine and possession of methamphetamine. In relation to the offence of possessing a commercial quantity of a border-controlled drug, the applicant was sentenced to 9 years imprisonment with a non-parole period of 5 years and 6 months after 25% discount for her early guilty plea. In relation to the offence of manufacturing not less than a large commercial quantity of a prohibited drug the applicant was sentenced to 4 years and 6 months imprisonment with a non-parole period of 3 years after a 25% discount for her early guilty plea. The overall effective sentence was a term of imprisonment of 11 years with a non-parole period of 7 years and 6 months.
The applicant sought leave to appeal against her sentence on the following grounds:
(1) The sentencing judge erred in the application of sentencing principles to the finding concerning the applicant’s background of childhood deprivation.
(2) The sentencing judge erred in the application of sentencing principles to the findings concerning the applicant’s rehabilitation and likelihood of reoffending.
(3) The sentencing judge erred in treating the circumstance of the applicant having travelled to Australia for the purpose of engaging in offending as aggravating each offence.
The Court (McGuire J, Bell CJ and Free JA agreeing) held, granting leave to appeal and dismissing the appeal:
As to Ground 1:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37*,* YZ v R [2025] NSWCCA 165, Dungay v R [2020] NSWCCA 209, R v Millwood [2012] NSWCCA 2, NK v R [2025] NSWCCA 73, Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited.
R (Cth) v Cheung; R (Cth) v Choi [2010] NSWCCA 244; (2010) 203 A Crim R 398, applied.
As to Ground 2:
R v Omar [2015] NSWCCA 67, considered.
R v Mauger [2012] NSWCCA 51, distinguished.
As to Ground 3:
Olivares v R [2016] NSWCCA 270, applied.
BELL CJ: I agree with McGuire J.
FREE JA: I agree with McGuire J.
McGUIRE J: Ms Laura Medina Fuentes (“the applicant”) seeks leave to appeal against sentences of imprisonment imposed on her by Girdham SC DCJ (“the sentencing judge”) in the District Court on 19 December 2024.
Following pleas of guilty entered in the Local Court, the applicant was sentenced in relation to the following offences:
Sequence 2: Possessing a commercial quantity of a border controlled drug (4.91 kilograms of pure methamphetamine), reasonably suspected to have been imported between 1 February 2023 and 28 May 2023, contrary to s 307.8(1) of the Criminal Code (Cth).
Sequence 3: Manufacturing not less than the large commercial quantity of a prohibited drug (not less than 10.2 kilograms of methylamphetamine) between 28 November 2022 and 28 February 2023, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW).
The maximum penalty for Sequence 2 is life imprisonment. The maximum penalty for Sequence 3 is life imprisonment with a standard non-parole period of 15 years.
In relation to Sequence 2 the applicant was sentenced to 9 years imprisonment with a non-parole period of 5 years and 6 months. In relation to Sequence 3 she was sentenced to 4 years and 6 months imprisonment with a non-parole period of 3 years. A discount of 25% had been applied to each of those sentences to account for her early guilty pleas. The overall effective sentence consisted of a term of imprisonment of 11 years, commencing on 27 May 2023 and expiring on 26 May 2034, with a non-parole period of 7 years and 6 months. The applicant will be first eligible for release on parole on 26 November 2030.
The grounds of appeal for which leave is sought are as follows:
(1) The sentencing judge erred in the application of sentencing principles to the finding concerning the applicant’s background of childhood deprivation.
(2) The sentencing judge erred in the application of sentencing principles to the findings concerning the applicant’s rehabilitation and likelihood of reoffending.
(3) The sentencing judge erred in treating the circumstance of the applicant having travelled to Australia for the purpose of engaging in offending as aggravating each offence.
The circumstances of the applicant’s offending were the subject of an agreed statement of facts before the sentencing judge.
The applicant was born in Mexico and is a citizen of the United States of America. On 29 November 2022 she arrived at Sydney International Airport on a flight from San Francisco with her stepdaughter and an associate. Her incoming passenger card indicated that the purpose of her visit was to visit friends or relatives and that she intended to stay for 10 days. She stayed in Australia for almost three months, from 29 November 2022 until 27 February 2023. She later returned on 27 May 2023 and was then arrested.
Between 29 November 2022 and early February 2023 the applicant resided at a property in Rooty Hill, New South Wales with a woman whom the applicant had met when previously visiting Sydney between 12 July 2022 and 3 October 2022.
Whilst residing at the Rooty Hill property, the applicant directly participated in the ongoing manufacture of methamphetamine by a process of extraction from cowhide printed rugs that contained a black rubber layer impregnated with methamphetamine. The extraction process included solvent use, filtration, acid/base purification, evaporation and recrystallisation.
The applicant recorded videos, later recovered from her mobile telephones, taken between about November 2022 and 26 February 2023. Those videos showed a number of steps in the extraction process, including the placing of end-product methamphetamine in crystalline form on scales. Those activities occurred in a shed located at the rear of the Rooty Hill property.
Amongst the videos later located on the applicant’s mobile telephones was a video dated 29 or 30 November 2022, the day of or the day after her arrival from San Francisco, which recorded the bottom layer of a cowhide printed rug being pulled back and words spoken in Spanish which have been translated to mean “I don’t know how much this one will have, but they wasted a lot, a lot of leather and it feels very thin. Look, it hardly has any.”
Subsequent videos taken at the Rooty Hill property show parts of the extraction process, carpet, cowhide print and the set-up of the clandestine laboratory and record words spoken by the applicant in Spanish which include references to quantities, details of the extraction process and testing.
In early February 2023, the applicant and her travel companions moved to a property in Blacktown where they resided with another woman whom the applicant had met on the visit to Sydney earlier in 2022. There the applicant continued to participate in the manufacture of methamphetamine via the extraction process, and recorded numerous steps of the process on video recordings on her mobile telephones including recordings showing boiling mixtures, filtering substances and weighing crystalline methylamphetamine and recorded the applicant speaking in Spanish about those matters. It was accepted and ultimately found that the recordings on the applicant’s telephones were made for the purpose of the applicant reporting back to and taking instructions from unknown others.
During the period between 29 November 2022 and 27 February 2023, the applicant participated in the manufacture of not less than 10.2 kilograms of methylamphetamine via an extraction process.
On 27 February 2023, the day before her three-month Australian visa was due to expire, the applicant left Australia on an international flight to Houston, Texas.
The applicant returned to Australia on 27 May 2023 on a flight from Los Angeles, travelling with her stepdaughter. Upon arrival her luggage was searched by Australian Border Force and a piece of paper was found which contained a note of the address of the Blacktown property. The applicant’s two mobile telephones were examined and images consistent with the drug manufacturing process were identified on each of the devices.
The following day, 28 May 2023, the Blacktown property was searched. During the search the occupier of the premises indicated that the applicant had been “making paste” at the Blacktown property and the Rooty Hill property and that he understood that there had been some problem with the pH level of the chemicals at the Rooty Hill property. A number of cowhide printed rugs were located inside a cupboard in the bedroom used by the applicant at the Blacktown property. The rugs contained a brittle black inner layer which contained methamphetamine at a minimum purity of 10%. The rugs were calculated to contain not less than 4.91 kilograms of pure methamphetamine.
Forensic testing confirmed the presence of methamphetamine on various other items in the Blacktown property, including stoves, respirators, scales and containers. The applicant’s fingerprint was found on a burner stove and her DNA was detected on a respirator mouthpiece.
Regarding Sequence 2, the sentencing judge found that it was a serious example of the offence, but found that given her specific involvement in the enterprise it was “not as serious as others seen in these Courts”.
The sentencing judge took into account the fact that the applicant had travelled to Australia and was “aware of what was required of her, and what it was she was to do”. This demonstrated a “level of planning and organisation”. Her Honour was satisfied that the fact that the applicant had “specifically travelled to Australia for the purpose of engaging in the enterprise” was “a matter of aggravation to sentence”. However, the sentencing judge did not find that the applicant’s role was that of a senior figure within the overall enterprise, accepting that the videos and messages on her telephones established that she reported on progress and took instructions from others. It was also accepted that there was no evidence that she financed or coordinated any of the operations.
The sentencing judge had regard to the fact that the quantity of methylamphetamine produced was not less than 10.2 kilograms, which is 20 times the large commercial threshold applicable.
In relation to Sequence 3, the sentencing judge found that “the offender had again travelled to Australia and did so … appreciating the nature of the substance impregnated into the rugs which she stored … and [that it] was for use in the future process of manufacturing methamphetamine by extraction, by herself and others …”.
The sentencing judge had regard to the fact that the applicant’s possession amounted to 6.5 times the threshold for a commercial quantity. Her Honour found that the offending was a grave example of its kind.
A sentence bundle tendered by the defence in the sentencing proceedings included a psychological report of Patrick Sheehan dated 26 September 2024, a letter of apology from the applicant dated 22 November 2024, a letter from a prison chaplain dated 2 July 2024 and four certificates of completion of custodial programs.
Mr Sheehan’s psychological report outlined that the applicant was a 56 year old Mexican-American woman who was born into poverty in Mexico as one of ten children. Her upbringing was marked by hardship, namely poverty and neglect from her father. She experienced childhood sexual abuse by a neighbour between the ages of 10 and 11 and later by an employer after relocating to Texas at the age of 15.
The applicant gained American citizenship in 1995 and had lived independently since the age of 19, continuing to send a portion of income to her family in Mexico. The applicant has maintained strong familial ties with her stepchildren and a surrogate family in America, however, she had not informed them of the charges against her due to feelings of shame. The applicant had no prior criminal history in Australia and no convictions overseas.
The subjective material records that in 2009 the applicant became an active Christian and engaged in missionary work in El Salvador. She attends chapel in custody and availed herself of a range of self-development, education and faith-based programs during her remand period. The sentencing judge had regard to letters from Ms Louise Groot and Ms Claire Morris who both provided observations of the applicant as a consistent user of chaplaincy services who demonstrates respect and shows her joyful personality.
The applicant completed her education at the age of 14 and later learned English informally to qualify for American citizenship. She worked in numerous jobs within the service and manufacturing industry and in 2017 set up a successful commercial cleaning business. Whilst in custody, the applicant has held continued institutional employment in various roles.
The applicant has no history of illicit substance use but developed alcohol dependence between 2019 and 2020, coinciding with multiple personal losses. At the time of Mr Sheehan’s report she had completed an addictions program in custody and was in sustained remission. The applicant’s psychiatric history includes being diagnosed with anxiety attacks during 1992 to 1993 and a depressive episode during 2019 to 2020. She has never been an inpatient for mental health and was considered to be in partial remission. Mr Sheehan concluded that the applicant did not exhibit signs of personality disorder and otherwise had an unremarkable health history. Mr Sheehan noted that the applicant had denied that she was financially motivated to commit the offences and opined that the applicant’s involvement in the offending did not appear to be against “a background of antisocial functioning or values”.
The applicant denied any financial gain acting as a motive influencing her decision to participate in the drug operation. She asserted that she first met the organisers of her offences around 2015 to 2016, and had developed a romantic attachment to a woman who was the central figure of the operation. She asserted that she declined involvement for several years, but eventually relented due to her feelings for that person. The applicant reported to Dr Sheehan that she was attracted to “the excitement and the exoticism of travelling to another country to engage in a secret activity”, and that she did not understand the realities of drug addictions until she entered the custodial system.
In a letter of apology the applicant acknowledged her wrongdoing and said that she has reflected on how she is committed to making positive changes in her life to ensure that her actions align with the respect and integrity the community deserves. The sentencing judge found that the applicant was genuinely remorseful and that she has developed an appreciation of the seriousness of her offending.
In dealing with a submission that the applicant’s background gave rise to considerations arising from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”), the sentencing judge found that emphasis should be given to her early childhood history of poverty with limited access to schooling and the reported sexual abuse. The sentencing judge held that the applicant’s background of significant social deprivation and disadvantage made her vulnerable to being recruited into the offending and impacted upon the assessment of her moral culpability.
The sentencing judge stated that full weight should be given to her subjective case, which “informs her moral culpability, and so, and to a slight degree impacts, but by no means diminish (sic) the requirement of general deterrence”.
The sentencing judge emphasised the importance of general deterrence by having regard to the social impact of drug use as an underlying cause of criminal behaviour and the significance of protecting the community from harm.
With respect to the Crown’s submission that specific deterrence should be a significant consideration due to the applicant’s demonstrated skills in the drug operation, the sentencing judge found that “her lack of criminal record and her prior good character, entitled her to some leniency in the sentence proceedings” and “informs her rehabilitation prospects”.
The sentencing judge also found that the applicant had demonstrated an “excellent work ethic in gaol” which, along with other factors, indicated “excellent prospects of rehabilitation” and that she was “in no way likely to re-offend”.
However, the sentencing judge found that “[i]n matters such as this, general deterrence has … an important role to play albeit the offender’s rehabilitation appears to be most advanced and may indeed be complete, that fact does not obviate the need for a sentence to adequately punish or denounce the offender’s conduct, and to recognise the harm done to the community by reason of it”.
By Ground 1, the applicant contends that the sentencing judge erred in the application of sentencing principles to the finding concerning the applicant’s background of childhood deprivation.
The applicant submits that her Honour’s remarks on sentence, although indicating that Bugmy considerations informed the applicant’s moral culpability and to a slight degree impacted on the significance of general deterrence, otherwise show that the sentencing judge failed to assess the impact of reduced moral culpability on various other purposes of sentencing. The applicant emphasised the statement in the remarks that general deterrence was “not diminished” by reduced moral culpability and submitted that the conflict between a reduction to a slight degree and not being diminished was unexplained and unresolved in the reasoning below. Further the applicant submitted that her Honour failed to give reasons why general deterrence was not diminished, in light of her finding of a deprived background informing her moral culpability.
It was submitted that the repeated and “stern” references to general deterrence throughout the remarks supported an inference that the sentencing judge did not reduce the significance given to general deterrence and that the finding of reduced moral culpability was “wholly offset” by the findings of the significance of general deterrence.
The respondent submitted that Ground 1 had not been established. It submitted that the sentencing judge gave full weight to the applicant’s background of deprivation by a finding of reduced moral culpability and consideration broadly in light of the purposes of sentencing. It submitted that the sentencing judge’s reference to the slight degree of impact on general deterrence indicates that her Honour took reduced moral culpability into account in reducing, although not substantially, the significance of general deterrence in the sentencing exercise.
The respondent submitted that, notwithstanding reduced moral culpability, general deterrence remained a significant consideration in sentencing for drug importation and drug manufacturing offences such as the present.
The Bugmy principles, and how they apply to moral culpability, have been the subject of numerous decisions of this Court. Recently in YZ v R [2025] NSWCCA 165 (“YZ”) this Court summarised at [60]-[68] the application of Bugmy principles and the process to be undertaken when applying those principles.
In considering whether a disadvantaged background affects an offender’s moral culpability for their offending, it is not necessary for a causal link to be established between an offender’s background and the offence for which they are to be sentenced before a court can make a finding of reduced moral culpability: Dungay v R [2020] NSWCCA 209 at [136]-[153]; YZ at [64(2)]. Even absent such a causal link, it will often be the case that an offender from a disadvantaged background cannot be said to bear the same moral responsibility as a person whose background is advantaged: YZ at [64(2)]; R v Millwood [2012] NSWCCA 2 at [69].
The assessment of whether an offender’s moral culpability is reduced by reason of their disadvantaged upbringing often involves a consideration of whether in all the circumstances it can be accepted that the offender bears the same moral responsibility for their offending as a person who has had a conventional upbringing. If that cannot be accepted, there must inevitably be a reduction in the offender’s moral culpability: YZ at [64(3)].
If moral culpability is reduced, the sentencing judge must then consider how reduced moral culpability impacts the weight to be given to the various purposes of sentencing. The competing purposes of sentencing are a separate consideration to the offender’s moral culpability: NK v R [2025] NSWCCA 73 at [11] (per Fagan J) and at [112] (per Yehia J).
The requirement to give Bugmy factors “full weight” in every sentencing decision does not mean that they need to be given the same weight in every case. The extent to which the applicant’s moral culpability is reduced will vary in each case. Sometimes it will not be reduced at all but instead taken into account in other ways: Dungay v R at [139].
A reduction in moral culpability does not automatically translate to a reduced sentence: Harris v R [2021] NSWCCA 322 at [89]. A sentencing judge must have regard to countervailing factors, so far as they are relevant: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54]; NK v R at [112].
In the present case the sentencing judge was correct to find that evidence of the applicant’s childhood was sufficient to establish a relevant disadvantage.
The applicant’s complaint that the sentencing judge did not consider the application of Bugmy factors to “various” purposes of sentencing must be assessed in light of the submissions made on behalf of the applicant below. In the sentence proceedings it was submitted that Bugmy considerations should be taken into account in a finding that reduced moral culpability was relevant to the issue of general deterrence. The submissions below did not contend that Bugmy considerations ought to be taken into account in any other way.
As was pointed out in NK v R, even with a finding of reduced moral culpability, sentencing courts are required to have regard to countervailing factors such as general deterrence. The application of those countervailing factors will not always lead to a reduction in sentence notwithstanding reduced moral culpability.
In Dungay v R N Adams J, with Bell P (as his Honour then was) and Davies J agreeing, stated at [153]:
“Having regard to these principles, it seems to me that although the effects of childhood deprivation are to be given full weight in every sentencing decision, that does not mean that moral culpability must be reduced in every case. Full weight can be given to such a childhood in other ways as part of the process of instinctive synthesis.”
(Emphasis added.)
On a full and fair reading of her Honour’s remarks on sentence, I am satisfied that the sentencing judge gave full weight to the applicant’s background of deprivation by finding reduced moral culpability and by considering its impact in light of the purposes of sentencing. There was no requirement for her Honour to consider the impact of reduced moral culpability on each of the various aspects of sentencing. Such a formulaic approach, moving away from the process of instinctive synthesis, is to be avoided: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64. In accordance with D**ungay v R it was sufficient for reduced moral culpability through childhood deprivation to be taken into account as part of the process of instinctive synthesis.
General deterrence remains a very significant sentencing consideration for offending of this nature. Indeed this Court has said on numerous occasions, including in R (Cth*)* v Cheung; R (Cth*)* v Choi [2010] NSWCCA 244; (2010) 203 A Crim R 398, that general deterrence is of prime importance in sentencing for drug related offences, including offences of drug importation and drug manufacture.
Ground 1 has not been made out.
By Ground 2 the applicant contends that the sentencing judge erred in the application of sentencing principles to the findings concerning the applicant’s rehabilitation and likelihood of reoffending.
The applicant submits that in light of the applicant’s age and prior good character there was a reduced need for the sentence to reflect a consideration of specific deterrence.
The applicant pointed to the remarks on sentence which indicated that the sentencing judge took both general and specific deterrence into account. It was submitted on behalf of the applicant that taking specific deterrence into account was contrary to her Honour’s findings that the applicant’s rehabilitation “appears to be most advanced and may indeed be complete”, that she had “excellent prospects of rehabilitation” and was “in no way likely to reoffend”. It was submitted that the Court below effectively found that the applicant’s rehabilitation was total and complete, then failed to reflect that position by giving specific deterrence and protection of the community some, albeit reduced, significance.
The respondent submitted that no error had been established. It submitted that generous findings regarding prospects of rehabilitation and the unlikelihood of reoffending did not mean that specific deterrence was to be given no weight. Further, the respondent submitted that the applicant made no submissions before the sentencing judge regarding specific deterrence and that as a result she faced difficulty in establishing error in this Court in light of the failure to raise the issue below.
The respondent also submitted that the need to counterbalance sentencing principles as part of the instinctive synthesis process included counterbalancing the weight to be afforded to specific deterrence. It submitted that, in light of the numerous references in the remarks to prospects of rehabilitation and the comparatively lenient sentences when compared with the maximum penalties, it could not be inferred that the sentencing judge failed to give specific deterrence reduced significance in reaching the overall penalties.
Evidence of rehabilitation can be a circumstance requiring reduction in the significance of specific deterrence and the need to protect the community. However, a reduction in the significance of specific deterrence does not mean that that consideration has no relevance in the sentencing exercise.
Her Honour’s remarks must be read in proper context. Her Honour stated:
“She has demonstrated and continued her excellent work ethic in gaol. These factors combined point together (sic) her complete rehabilitation.”
“(the applicant’s rehabilitation) appears to be most advanced and may indeed be complete”.
(Emphasis added.)
Senior counsel for the respondent submitted that the reference in the passage quoted above to “point together” is likely to be a transcription error and that the words should instead be read as “point towards”. I accept that submission is likely to be correct. In any event on either wording, the qualified words used in the various findings on rehabilitation fall short of a finding that rehabilitation was complete.
In those circumstances it was appropriate for the sentencing judge to find that specific deterrence still had a role to play, albeit with reduced significance.
Even in cases where complete rehabilitation has been found, such a finding results in a reduction in the significance of specific deterrence, not the exclusion of that factor entirely: see for example R v Omar [2015] NSWCCA 67 per Bellew J (with Simpson and Rothman JJ agreeing) at [67].
The circumstances of the present case are very different to the circumstances in R v Mauger [2012] NSWCCA 51 (Mauger) relied on by the applicant. In Mauger a person of otherwise exemplary character was found to have supplied a small amount of ecstasy to his friends at a music festival. The circumstances of that case justified a finding that rehabilitation mitigated the need for specific deterrence.
In the present case the applicant’s conduct and the videos and messages on her mobile telephones establish that she had skill and knowledge which she devoted to the drug extraction process almost immediately upon her arrival and throughout her stay in Australia. In such circumstances there remains a need for the sentencing exercise to take specific deterrence into account notwithstanding the applicant’s significant progress towards rehabilitation.
The protection of the community from those involved in organised international drug importation and domestic drug manufacturing is a significant sentencing consideration, notwithstanding an offender’s prospects of rehabilitation.
It can be inferred from the sentences imposed, when compared with the maximum penalties of life imprisonment, that the sentencing judge took the applicant’s prospects of rehabilitation into account and gave specific deterrence reduced significance in reaching the overall sentences.
No error has been established. Ground 2 has not been made out.
By Ground 3, the applicant contends that the sentencing judge erred in treating the circumstances of the applicant having travelled to Australia for the purpose of engaging in offending as aggravating each offence.
Relevant to Sequence 3, the State drug manufacturing offence, the sentencing judge said:
“I proceed on an acceptance beyond reasonable doubt that the offender had specially travelled to Australia for the purpose of engaging in the enterprise, a matter of aggravation to sentence.
…
the offender… had travelled to Australia to engage in criminal conduct.”
“I am satisfied beyond reasonable doubt that the offender had again travelled to Australia and did so well appreciating the nature of the substance impregnated into the rugs which she stored … and was for use in the future process of manufacturing methamphetamine by extraction, by herself and others ….”
The applicant submitted that her Honour’s use of the word “aggravation” in respect of the State offence and the term “beyond reasonable doubt” in respect of the federal offence indicated that the sentencing judge either increased the objective seriousness of the offending or otherwise took the applicant’s conduct in travelling to Australia into account as an aggravating factor. It was submitted that to do so without the support of authority was an error.
The applicant referred to the statutory aggravating factors in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) relevant to the State offending and submitted that they do not refer to aggravation by reason of an offender travelling to Australia to engage in offending. In relation to the Commonwealth offending the applicant submitted that s 16A(2) of the Crimes Act 1914 (Cth) does not refer to an offender travelling to Australia to engage in offending as a matter to which a court is to have regard when passing sentence. It was submitted that there was no identifiable authority for the proposition that a State manufacturing offence is aggravated by, or that a Commonwealth possession offence has its objective seriousness informed by, the circumstances of an offender travelling to this country to offend.
The respondent submitted that the sentencing judge had made no error and that travel to Australia was a relevant consideration to the circumstances of both offences. It submitted that international travel for the specific purpose of offending made the offending objectively more serious because it impacted on planning, organisation, role and conduct. It also submitted that offending of the present type carried out by people who were in the country only for a relatively short time was difficult to detect and created challenges for intelligence and evidence gathering activities.
The respondent also submitted that increased significance had to be given to the protection of the community in circumstances where an offender with drug extraction expertise, such as the applicant, comes to this country for the purpose of using that expertise to commit drug related offending.
The dates of the applicant’s travel movements into and out of Australia support an inference that the sole purpose of her travel was to commit these offences. The messages and videos recorded on her mobile telephones during her stay in Australia, which include those taken within a day of her arrival, provide further support for such an inference.
Those inferences are supported by direct evidence. Patrick Sheehan’s report records that the applicant told him that she had first met the organisers of her offending in 2015 and 2016, she did not understand the nature of their activities until sometime in 2019, when she understood what was involved and was told that she had been selected because of her absence of a criminal record. The applicant also told Mr Sheehan that, although she initially resisted the invitation to become involved, she ultimately agreed, in part because of a romantic attraction to another person involved and in part because she had “some attraction to the exoticism and excitement of travelling to another country to engage in secret activity”. Those passages establish that before she travelled to Australia the applicant was aware that the purpose of her travel was to commit criminal offences.
In Olivares v R [2016] NSWCCA 270 this Court, constituted by Ward JA (as her Honour then was), Fagan and N Adams JJ took into account the circumstance of an offender coming to Australia to commit drug offences in finding that the objective seriousness of the offending was of high order.
The circumstance of travel to Australia for the purpose of committing offences is relevant to the consideration of a number of matters relevant to the sentencing exercise. They include the circumstances of the offending, role and conduct of the offender, the degree of planning and organisation involved, being part of planned or organised criminal activity and the period of time over which the offender was involved. The difficulty of detecting these crimes, particularly when committed by an overseas national in the country for a short period of time, is also relevant to consideration of the objective circumstances of the offending in respect of each count.
In relation to State offending, s 21A(1)(a)-(c) of the Crimes (Sentencing Procedure) Act requires a court to take into account the statutory aggravating and mitigating factors as well as “any other objective or subjective factor that affects the relative seriousness of the offence”.
In relation to Commonwealth offending, s 16A of the Crimes Act 1914 requires the sentencing court to impose a sentence that is of a severity “appropriate in all the circumstances of the offence”. Section 16A(2) requires a court to take into account certain specified matters, including the nature and circumstances of the offence, the course of conduct consisting of a series of criminal acts of the same or a similar character, the antecedents of the accused, in addition to “any other matters”.
Although neither the State nor the federal provision makes specific reference to travel to Australia for a criminal purpose, the references to any other relevant matters or factors establishes that the categories of considerations specified in the provisions are not exhaustive.
In the circumstances of these offences the applicant’s conduct in agreeing to become involved while overseas and then travelling to Australia to commit the offences was relevant to objective seriousness because it is informative in relation to role, conduct, the degree of premeditation, planning and sophistication involved and being part of planned or organised criminal activity.
The evidence established that the applicant was part of planned or organised criminal activity. Her participation in that organised activity included her agreeing to become involved, travelling from the USA to Australia on an international flight, engaging in drug manufacturing and possession in this country and reporting to and taking instructions from others. None of that participation could be described as involuntary.
Ground 3 has not been made out.
I propose the following orders:
Grant leave to appeal.
Dismiss the appeal.
**********
In the headnote, change "Stern JA" to read "Free JA".
Fuentes
R [2025] NSWCCA 230
(2013) 249 CLR 571
(2013) 249 CLR 600
(2001) 207 CLR 584