Nicolas v R

Background

1. The agreed facts which were before the sentencing judge may be summarised as follows.

The tequila imports

1. Between about 21 and 28 January 2013, Australian authorities intercepted two consignments from Mexico to Australia, containing 6.0678kg and 4.005kg of methylamphetamine, concealed in tequila bottles ("the tequila imports").
2. The first import left Mexico on 22 January 2013 and arrived in Sydney on 27 January 2013. It was intercepted by customs on 28 January 2013. A bill of lading affixed to the consignment described the consignee as Denise Tokailagi, of East Ryde. The goods were described in Spanish as tequila samples with a value of US$260.
3. Forensic deconstruction of the import revealed four 3L clear glass bottles and three 1.75L clear glass bottles containing a brown liquid. A crystalline substance was visible on the outside surface of the bottles. Dissolved in the brown liquid was methylamphetamine with a total pure weight of 6.0678kg.
4. The second import left Mexico on 28 January 2013 and arrived in Sydney on 31 January 2013. It was intercepted by customs on 1 February 2013. A bill of lading affixed to the consignment described the consignee as Kelly Ellis, also of East Ryde. The goods were described in English as tequila bottles with a value of US$10.
5. Forensic deconstruction of the import revealed one large wooden crate containing three 3L blue glass bottles containing a brown liquid. A white crystalline substance was also visible on the outside surface of the bottle. Dissolved in the brown liquid was methylamphetamine with a total pure weight of 4.005kg.
6. A mobile phone seized from the applicant upon his arrest on 28 February 2013 revealed various communications between him and the consignee of the second import, Ms Ellis, in late January 2013. It appears from the communications that Ms Ellis assisted the applicant in attempting to collect the first import by nominating her address and by enquiring with international courier DHL as to the whereabouts of the consignment.
7. On 2 February 2013, the applicant spoke to an unknown man in Spanish in which he stated, "It was caught twice … I have to vanish for a while … Your people are fucking stupid … They sent it to the wrong address".
8. On 4 February 2013, the applicant called a Mexican number and told an unknown person that: "… three days after yours then and the other people sent one too and they caught that too … with the big bottles … he was caught because they don't have boxes each one and … it went too dirty. And they open the box and saw it …"
9. On 14 February 2013, an unknown Spanish-speaking man called the applicant and stated, "we are going to send you another product … check if you receive it there. Same as the tequila turn up before".
10. The police attempted controlled deliveries of the first and second imports on 4 and 5 February 2013 respectively. On the first occasion, Ms Ellis' son answered the door and told police that Ms Tokailagi, who is his grandmother, was not home. On the second occasion, Ms Ellis answered the door and stated that the consignee did not live at the address and that the consignment should be returned to the sender.
11. On 19 February 2013, the applicant received a phone call from Ms Ellis' husband, Peter Katramados, which was intercepted by police. The applicant asked Mr Katramados whether "that same guy come", to which Mr Katramados responded, "They tried fuckin' yeah and things like well na there's no-one at this address or this name mate".

The drill bits import

1. A third consignment imported from Mexico to Australia was intercepted by customs on 13 February 2013. A bill of lading affixed to the consignment described the consignee as Kennametal Autrakia Pty Ltd, Port Botany, marked to the attention of Daniel Theobald, who was alleged to be the applicant's co-offender. The goods were described as "industrial and mining equipment drills" and were said to have a value of US$718.
2. Forensic deconstruction of the import revealed fifteen drill bits, with cavities that contained a substance which was later analysed and found to consist of 10.191kg of methylamphetamine with an average purity of 79.87 per cent ("the drill bits import").
3. Intercepted telephone calls and text messages revealed that between 13 and 19 February 2013, the applicant and Mr Theobald were in regular contact with one another and DHL in respect of securing customs clearance of the consignment.
4. On 18 February 2013, the applicant sent a text message to Mr Theobald stating: "… bro they haven't update the screen, so im not sure u will get delivery 2day. Get on it early to make sure, and start busting their balls a bit."
5. On the same date, the applicant telephoned Mr Theobald and had a conversation to the following effect: "[Mr Theobald]: Yeah that shipment's been seized mate. [Applicant]: Alright cool just lay off it … if it comes near you just don't accept it."

The scheduled offence

1. On 16 February 2013, the applicant called an unknown man in Mexico and asked, "Do you want all in diamonds? I can buy all your money in diamonds if you want … that way we're going to lose very little". The unknown man asked the applicant to bring two diamonds each worth US$50,000.
2. That same day, an unknown Spanish-speaking man called the applicant and told him to purchase US$100,000 in diamonds. The applicant stated, "You can put it up your arse or some other safe way because they are small".
3. On 28 February 2013, the applicant was arrested at Sydney International Airport, preparing to board a flight to the United States.
4. The applicant had in his possession US$9,251 and AU$660 in cash and two diamonds concealed in his rectum. The diamonds were subsequently removed and valued at AU$102,500. Casino chips valued at AU$50,000 and AU$95,395 in cash were seized from the applicant's residence on the same day. These items formed the basis of the scheduled offence.

The applicant's criminal record

1. The applicant was aged 41 at the time of the offences, and 45 at the time of sentence. His criminal record in New South Wales comprised minor offences in 1990, 1995 and 1997 when he was aged 18, 23 and 25 respectively. In 1999, when aged 27, he was convicted of knowingly taking part in the manufacture of a prohibited drug two years before, receiving a sentence of 4 years with a non-parole period of 2 years. In 2001, when aged 29, he received a sentence of 1 month imprisonment for not returning to custody whilst at liberty from prison on a work release program. In an affidavit read on the appeal, the applicant stated that he did not return from work release for five days and then handed himself in.
2. The applicant has a drug conviction in Argentina. A statement of facts tendered on the sentence hearing stated: "In 2008, [the applicant] was arrested in Buenos Aires, Argentina for attempting to depart Argentina with almost 2kg cocaine in his luggage. He was convicted and sentenced to serve 4 years and 6 months jail but was granted parole in November 2010 and deported back to Australia."

The remarks on sentence

1. The sentencing judge accepted the respondent's characterisation of the applicant's role in the offending conduct, to the effect that he was principally responsible for the means by which the imports would be received in Australia and was thus the consignors' Australian contact; alternatively, his Honour noted that the applicant's role could be described as the "facilitator" of the importations.
2. In terms of objective gravity, the sentencing judge found that the total amount of pure methylamphetamine was substantial and had the potential to "[wreak] substantial damage on the Australian community" had it not been intercepted by customs.
3. The sentencing judge found that the scheduled offence is "most serious in itself" and "merits a greater sentence of [sic] the principal offence than would otherwise be appropriate".
4. As to subjective considerations, the sentencing judge referred to reports by a psychologist, Associate Professor Stephen Woods, and a forensic psychiatrist, Dr Olav Nielssen.
5. The sentencing judge accepted the evidence the applicant gave to Associate Professor Woods and Dr Nielssen that he does not drink alcohol or take drugs, but that he has been in almost continuous debt due to gambling since age 17. The sentencing judge noted the applicant's account that he has a family history of mental illness, and that his father also suffered from a gambling disorder.
6. The sentencing judge noted that the applicant made a claim of duress to Associate Professor Woods, and "perhaps less explicitly" to Dr Nielssen, in the following terms: "[The applicant] reported to have committed the offences in response to demands made upon him by a Mexican criminal syndicate who he believes would have had no hesitation in killing him and likely both his mother and half brother if he refused to act as directed."
7. The applicant stated that he came to be associated with the syndicate through his time in gaol in Argentina. They allegedly sent him $300,000 with instructions to set up operations for the importation of drugs, but, instead, he gambled away the money.
8. The sentencing judge did not accept the applicant's assertion that he acted under duress in relation to the instant offences, as there was "no direct evidence of the alleged duress". His Honour also noted that the applicant, in his view, is "a man who would not hesitate to invent an account like this" if he thought it would be of assistance to him.
9. The sentencing judge accepted the diagnoses of Associate Professor Woods and Dr Nielssen that the applicant has a gambling disorder. However, contrary to Dr Nielssen's opinion, his Honour held that there was no causal link between the applicant's gambling disorder and his offending conduct. This is because the applicant's claim that he gambled away the money provided to him by the criminal cartel was irrelevant to motive, since he had already agreed to involve himself in the importations "at a significant level". Further, even if there was a causal connection between the applicant's gambling disorder and the instant offences, the causal chain is "much too long for gambling to be a factor in mitigation". The sentencing judge referred to authorities to the effect that an offender's gambling disorder is generally not a mitigating factor on sentence, particularly where it is a factor in "a chain of causal factors", as opposed to a direct cause: Johnson v R [2017] NSWCCA 53 at [36] (Bathurst CJ; Johnson and Fagan JJ agreeing); Assi v R [2006] NSWCCA 257 at [27] (Howie J; Tobias JA and Rothman J agreeing); Ourdi v The Queen (2009) 193 A Crim R 381; [2009] NSWCCA 46 at [45] (Kirby J; Grove and Blanch JJ agreeing).
10. The sentencing judge accepted Dr Nielssen's diagnoses of the applicant as having a bipolar disorder and an impulse control disorder and found a causal connection between the applicant's mental deficits and the offending conduct, even though the offence was not "an impulsive crime". The sentencing judge held that "some" allowance in the applicant's favour was warranted, such that the weight to be given to general deterrence was moderated, despite noting that deterrence is to be given "chief weight" for drug importation offences with significant social consequences: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [64] (Gaudron, Gummow and Hayne JJ).
11. The sentencing judge noted that specific deterrence is "of great importance".
12. The sentencing judge acknowledged a letter by the applicant in which he expressed remorse, as well as letters from the applicant's mother, brother, an aunt, a cousin and two friends, attesting to the applicant's character and background. A letter by a prison chaplain referred to the positive impact of the applicant on young inmates.
13. In relation to the applicant's guilty plea, the sentencing judge stated: "I take into account [the applicant's] plea of guilty. Although it came very late, it does in my assessment, signify some acceptance of responsibility by him. I have taken this into account and I have made some allowance for it in [the applicant's] favour. Once again I am not obliged to quantify the allowance in percentage terms and I am not going to."
14. The sentencing judge noted that he found the applicant's likelihood of re-offending and his prospects of rehabilitation "difficult to assess" given his mental deficits and history of drug offending. However, the sentencing judge noted that he has a supportive family to assist in his rehabilitation, and that there was some need for supervision once he is released to assist with his gambling disorder and mental health issues.
15. The applicant was sentenced to 15 years imprisonment, commencing on 3 December 2014 and expiring on 2 December 2029, with a non-parole period of 10 years, which is set to expire on 2 December 2024.

An extension of time

1. The sentence was handed down on 21 June 2017. Following the handing down of judgment by this Court in Xiao on 5 February 2018, the applicant was invited by Legal Aid NSW to complete an application for a grant of legal aid, so that a merit advice as to an appeal against sentence could be obtained. The applicant did so, and an advice finding merit was provided by a Public Defender on 20 May 2020. The appeal was filed on 26 May 2020.
2. Accordingly, the applicant also makes an application for an extension of time in which to seek leave to appeal, pursuant to s 10(1)(b) of the Criminal Appeal Act 1912 (NSW). The respondent does not oppose that application, accepting that it is in the interests of justice to do so, because of the time it has taken for the applicant's legal representatives to prepare the matter, and because it accepts that the applicant's ground of appeal has a prospect of success: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32] (French CJ, Hayne, Bell and Keane JJ).

That in determining the appropriate discount to reflect the value of the applicant's plea of guilty in accordance with s 16A(2)(g) Crimes Act 1914 (Cth), his Honour did not have regard to the utilitarian value of the applicant's plea of guilty

1. The respondent did not dispute that the sentencing judge failed to take into account the utilitarian value of the applicant's plea of guilty, contrary to Xiao. Such an error was, of course, unavoidable, since the date of the sentence pre-dated Xiao and reflected the understanding at the time of the interpretation of s 16A(2)(g) of the Crimes Act, that the utilitarian benefit of a plea was not a consideration in the sentencing exercise for a Commonwealth offence.

The applicant's submissions

1. The applicant submitted that, consequent to that error, this Court is obliged to exercise its independent discretion. In doing so, this Court would conclude that a lesser sentence is warranted, having regard to all relevant matters, including the evidence of events that have occurred since the sentence hearing, and therefore re-sentence the applicant: Kentwell at [42]-[44] (French CJ, Hayne, Bell and Keane JJ).
2. The applicant submitted that the post-sentence matters to be taken into account in assessing whether a lesser sentence is warranted include evidence as to the applicant's rehabilitation since that date. In an affidavit read on the hearing, affirmed 22 July 2020, the applicant stated that by January 2018, he had progressed to the trusted position of Head Sweeper in the correctional facility where he was then incarcerated. In October 2018, he was transferred to the John Morony Correctional Centre, where his responsibilities have included working as a leading hand in the Buy Up Unit and being a member of the Inmate Delegate Committee, which facilitates two-way communication between inmates and the Department of Corrective Services staff. The applicant stated that he initiated and continued to lead daily exercise training groups for younger remand and sentenced inmates, a claim which was corroborated by the prison chaplain, in his letter to the Court in 2017.
3. In his affidavit, the applicant stated that he qualified for a reclassification to C1 from B in December 2019 but initially declined to pursue it, so that he could stay at John Morony and continue to work with younger inmates. He now proposed to apply for the reclassification, so that he progresses towards release.
4. In March 2018, the applicant enrolled in an offline course offered by the University of South Queensland in psychology. At the time of this hearing, he had not yet completed that course. He hoped to utilise the qualification to seek employment as a youth worker upon his release.
5. The applicant also stated in his affidavit that he had declined medication for his mental health ailments, instead preferring as an alternative remedy his regime of daily physical training. The applicant was the victim of an assault in custody on 2 January 2018, a claim which was corroborated by tendered excerpts from the applicant's Justice Health file, that recorded injuries to his face and head. The applicant declined to report the matter to police, for fear of retribution. The applicant does not qualify for drug and alcohol programs in custody as they are not identified issues for him. There are no programs available to him that address a gambling disorder.
6. The applicant also relied upon his entitlement to an application of the discount for the utilitarian benefit of his plea, as a factor that tends towards a lesser sentence.
7. The applicant submitted that a comparison of the instant sentence with statistics of 186 sentences imposed for the same offence after a plea of guilty in the five year period between 1 May 2014 and 30 April 2019 discloses that 5 per cent received a head sentence greater than 15 years and 7 per cent received a non-parole period of 10 years or more, thus illustrating that the sentence imposed on the applicant was at the top of that range, and therefore a re-sentence that took into account other factors would likely result in a lower sentence. A similar conclusion arises from a table of comparative sentences.
8. The applicant also submitted that, on re-sentence, the evidence would again establish a link between his psychiatric condition and his offending behaviour. The applicant submitted that, contrary to the sentencing judge's determination, it would make the applicant entirely unsuitable as a vehicle for general deterrence and reduce the importance of specific deterrence and be relevant to his conditions of custody.

The respondent's submissions

1. Although error was conceded by the respondent with respect to the sentencing judge's failure to take into account the utilitarian value of the applicant's guilty plea, it submitted that the appeal should nonetheless be dismissed because a lesser sentence is not warranted in law.
2. The respondent submitted that the utilitarian value of the plea was low and "adequately recognised" in the discount allowed for the plea, since the timing of the plea was very late, a consideration which, to a large extent, determines the level of the utilitarian discount to be applied: Huang v The Queen (2018) 332 FLR 158; [2018] NSWCCA 70 at [69] (Bellew J), citing R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160] (Spigelman CJ; Wood CJ at CL, Foster AJA, Grove and James JJ agreeing); R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32] (Howie J; McClellan CJ at CL and Simpson J agreeing).
3. The respondent submitted that the original sentence was well within the discretionary range, considering the three separate importations, the total amount of methylamphetamine that was imported, the applicant's role, his late guilty plea, his prior serious drug offences and the additional money laundering offence.
4. The respondent submitted that the applicant's post-sentence rehabilitation was mixed, noting that his custodial record includes four disciplinary matters. On 1 April 2020, the applicant was found to be in possession of tobacco and a prohibited drug, for which he was placed in cellular confinement for seven days and taken off "buy ups" for 42 days respectively. On the same date, the applicant was charged with disobeying a direction for refusing to be handcuffed in order to be placed in confinement for the possess drug offence. Finally, on 2 May 2020, the applicant was charged with gambling for providing horseracing tips to his nephew over the telephone, resulting in him being taken off telephone calls for 14 days.
5. The respondent submitted that the findings made by the sentencing judge as to the evidence of the applicant's mental health were favourable, in particular that he had a bipolar disorder and impulse control disorder which were causally linked to the applicant's offending behaviour and thus his moral culpability, and that these findings were appropriately taken into account on sentence with respect to general deterrence by finding that "some" allowance was warranted. The respondent noted, however, that the sentencing judge did not consider the applicant's mental health conditions to have been "the only or dominant cause" of his offending conduct, but instead "one contributing factor".
6. In oral submissions, the respondent suggested that the applicant's affidavit evidence that he had declined prescribed drug treatment for his mental conditions warranted a finding that the applicant no longer had mental health issues.
7. The respondent submitted that the weight attributed to specific deterrence should not be reduced in view of the applicant's criminal history. The impact of the applicant's mental health issues on his experience of custody was not pursued at first instance.
8. The respondent submitted that the sentence statistics and table of comparative sentences for the principal offence do not demonstrate that the sentence imposed was out of the discretionary range when the exacerbatory factors, in particular, the applicant's role and his prior drug offences, as well as the secondary offence, are taken into account. As already explained, however, the question is not whether the sentence is within the range, but what sentence this Court, exercising its independent discretion, considers appropriate for the offender and the offence.

Consideration

1. The single ground of appeal is that the sentencing judge did not have regard to the utilitarian value of the applicant's plea of guilty. The respondent has appropriately accepted that is so.
2. The respondent's contention, that the appeal should be dismissed because no less severe a sentence is warranted in law, cannot be assessed without exercising the sentencing discretion afresh, taking into account all relevant factors including events since the sentencing decision. This Court's duty to determine the appropriate sentence for the offender and the offence in the exercise of its independent discretion is not discharged "merely by adopting the sentence imposed at first instance and concluding that 'no lesser sentence is warranted in law'": Turnbull v R [2019] NSWCCA 97 at [44] (Simpson AJA; Ierace J agreeing); applied in RO v R [2019] NSWCCA 183 at [79]-[82] (Beech-Jones J; Bathurst CJ and N Adams J agreeing) and Abreu v The Queen [2020] NSWCCA 286 at [1] (McCallum JA; N Adams J agreeing). The High Court explained in Kentwell (French CJ, Hayne, Bell and Keane JJ), at [42]: "A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not 'warranted in law' unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence."
3. The applicant's progress as to his rehabilitation in over five years in custody is mixed. It is to his credit that he has a strong work history in custody, has maintained daily exercise sessions for young offenders, has earned respected positions such as membership of the Inmate Delegate Committee and has embarked on a study course with a tertiary institution, that may assist him in obtaining socially productive employment on release. However, the recent disciplinary matters of possessing a prohibited drug and gambling, although relatively minor, are for behaviours that relate to his past serious offending. On balance, his prospects of rehabilitation remain guarded but are advanced from what they were at the time of his sentence.
4. The statistics of sentences in matters over the period 2014 to 2019 for the principal offence, making allowances for the aggravating factors that were relevant to the instant offences, suggest that although the sentence was within the discretionary range that was available to the sentencing judge, it was towards the top of that range.
5. The rolling of the three charges into one count provides some explanation as to why the plea was entered at such a late stage. Although the plea was entered at the eleventh hour, being the Friday before the Monday that the trial was set down to commence, it nevertheless avoided a trial that had a three-week estimate, which is a significant saving of resources. In my view, a discount in the order of 10 per cent was warranted to reflect the utilitarian considerations of the plea.
6. When the utilitarian benefit of the plea is taken into account together with the other sentencing considerations, a lesser sentence than that which was imposed is inevitable.

Re-sentence

1. Taking into account the matters identified in s 16A(2) of the Crimes Act, which are relevant to the principal and scheduled offences, I would make the following findings.
2. I adopt the nature and circumstances of the principal and scheduled offences as summarised earlier in my judgment, which establish that each is a serious example of that type of offence. I particularly note that the quantity of the equivalent of pure methylamphetamine involved in the three importations is more than 26 times the relevant commercial quantity. I take into account that the maximum penalty is life imprisonment and/or 7,500 penalty points. I note the damage that is caused to the community by offences of this type and the scope for damage by the quantity of methylamphetamine involved in the principal offence.
3. On the basis of the agreed statement of facts, I would make the same finding as the sentencing judge as to the applicant's role in the enterprise, which is that he was the criminal group's Australian contact, or their "facilitator".
4. I note that the three importations constitute a course of conduct over a period of five weeks, with an unspecified preparatory period to the first importation.
5. I take the scheduled offence into account in determining the appropriate sentence.
6. For the reasons stated, I allow a discount of 10 per cent from the starting point sentence for the utilitarian benefit of the plea of guilty. An allowance for the subjective features of the plea would recognise the limited degree of remorse that is reflected in the plea being entered three days before trial, although I note the contrition evidenced in the applicant's letter to the Court and more recently expressed in his affidavit that was affirmed on 22 July 2020, and which is also evidenced in his daily activities with young offenders.
7. I accept Dr Nielssen's diagnoses of the applicant of a bipolar disorder, an impulse control disorder and a pathological gambling disorder and his opinion, which I find to be qualified, that "[t]here appears to be a direct link" between the disorders and the applicant's offending behaviour. I make a corresponding allowance in favour of the applicant as to his moral culpability and the weight to be given to the application of general deterrence in the sentence: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (McClellan CJ at CL).
8. Specific deterrence is an appropriate consideration on sentence, in view of the applicant's prior offences of knowingly taking part in the manufacture of a prohibited drug and attempting to take almost 2kg of cocaine from Argentina, being an offence that is similar in nature to the principal offence for which he is being re-sentenced. I would not significantly reduce the weight to be given to specific deterrence in spite of the applicant's mental health disorders, in view of Dr Nielssen's opinion as to their qualified degree of causal connection with his offending behaviour, his prior criminal history of serious re-offending involving drugs in spite of having served significant prison sentences for both, and his post-sentence disciplinary breaches involving the possession of a drug and gambling.
9. I find that the applicant's rejection of drug therapy offered by Justice Health for his mental health disorders is to be understood in the light of his focussed embrace of an alternative means of dealing with the symptoms of those conditions by intensive work activities and exercise. His success does not eliminate the underlying conditions or their potential to become problematic.
10. The applicant's vulnerability as an older prisoner (he is aged 49), is demonstrated by the assault he suffered in 2018. I make a modest allowance for the applicant's mental disorders and physical vulnerability, in terms of his custody.
11. The sentence I would impose reflects the applicant's modestly improved prospects of rehabilitation since the time of his original sentence. An extended period of parole, with its consequent degree of support and monitoring of the applicant's behaviour when he returns to the community, would improve his long-term prospects of rehabilitation.
12. I would fix a starting point sentence of 16 years, to be reduced by a 10 per cent allowance for the utilitarian benefit of the applicant's plea of guilty, resulting in a sentence of 14 years and 5 months imprisonment, rounded to the nearest month, backdated to commence on 3 December 2014 and expiring on 2 May 2029, with a non-parole period of 9 years, which would expire on 2 December 2023.

Orders

1. I propose the following orders: 1. Application for extension of time to seek leave to appeal against sentence granted; 2. Leave to appeal against sentence granted; 3. Appeal allowed; 4. Set aside the sentence imposed in the District Court on 21 June 2017 and in lieu thereof sentence the applicant to a term of imprisonment of 14 years and 5 months to commence on 3 December 2014 and expiring on 2 May 2029, with a non-parole period of 9 years; 5. The applicant will be first eligible for release on parole on 2 December 2023.

Amendments 11 May 2021 - Date of head sentence corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2021