Jones v The Queen (2010) 242 CLR 520
Legault v R [2014] QCA 280
R v Agboti [2014] QCA 280.
R v Cunha
Source
Original judgment source is linked above.
Catchwords
Jones v The Queen (2010) 242 CLR 520
Legault v R [2014] QCA 280
R v Agboti [2014] QCA 280.
R v Cunha
Judgment (3 paragraphs)
[1]
Mr P Coady (Counsel for the offender)
File Number(s): 2018/64472
[2]
Judgment
Kamila Bittencourt-Silva married her childhood sweetheart in Brazil and at the age of 15 had the first of three children to that man. She separated from him when she found out that he was having an affair and despite efforts at rebuild the relationship they remain separated. She found herself in difficult financial circumstances where she lived in the Santa Catarina region of Brazil and it led to her succumbing to an offer from an acquaintance to who she had disclosed her financial predicament. That acquaintance had told her that she had needed money on a previous occasion and had gone on a trip to bring money into the country and gave her the contact number of the man who had helped her. That led her into the scheme which leads to her being in custody and standing for sentence today on a charge under s 307(1) of the Criminal Code (Cth) of importing a commercial quantity of border controlled drugs being 3.27 kilograms of cocaine, which carries a maximum penalty of life imprisonment.
She gave evidence today and affirmed the history which had been given to a psychologist, including the fact that having collected the suitcase to carry out of Brazil and into Australia, she initially assumed it contained cash as a means of tax avoidance. She then found out that her mother had suffered an accident and told the man that had given her the suitcase that she could not go on the trip as her mother needed her help. She was told that her family would be in danger if she did not carry out the task that she had offered to do. Mr Coady of counsel for the offender does not put that the evidence rises high enough to found a claim of exculpatory duress, but it is a matter to be taken into account in the overall assessment of the case.
Having initially thought that she was carrying what she described as "black money", she conceded in evidence that at some stage she suspected that she may have been carrying drugs. She thought that she would be staying in Australia for five days and would receive $10,000 in payment. The flight from Brazil went through Dubai and she was travelling on a ticket purchased through a Brazilian travel agent in her name. This was her first trip to Australia. On her arrival at Sydney International Airport on 26 February she completed the usual incoming passenger cards asserting that she was not bringing any prohibited items into Australia, but following a random search there were two concealed packages found in her suitcase containing the 3.96 kilograms of cocaine with a purity of 82%. There is, unlike many of the other cases in this field, no evidence as to the value of the drugs.
She is a Brazilian national with no criminal record. Her subjective case is expanded in the history contained in a report prepared by Anita Duffy psychologist. After the separation from her husband she opened a small business but found herself drinking to excess on regular occasions. She did not use illicit drugs and she has seen the adverse effects of drugs while in custody. She feels very guilty about having bought drugs to Australia and recognises the devastation that it could have caused to the community.
She described a sheltered upbringing with a caring family. She has been able to maintain daily contact with her children and family while in custody, presumably by telephone from gaol in Sydney. Her children do not know that she is in gaol and she has told others that she is studying in Australia. She hopes that her children do not find out about her predicament.
As to the assertion that she was fearful for her family's safety at the time of committing the offence, she said that she had no other option but to go ahead as she felt that the Brazilian police were corrupt and she could not turn to them for help. She recognises that embarking upon this enterprise was the most foolish and stupid thing she has ever done and she has jeopardised her relationships with her children and she may well lose them if they find out about her situation and her husband attempts to obtain custody of them.
A diagnosis of major depression was made by the psychologist but as the Crown correctly pointed out in cross-examination this was not a matter which had been the subject of any assessment or diagnosis prior to her leaving Brazil and Mr Coady has not put it as a matter of any great significance in mitigation.
I have regard to some translated references from a number of family and close acquaintances in Brazil. Evelyn De Olivera, an accountant and long‑time family friend, describes her as a kind and gentle person who cannot see the dark side of people. Her sisters and her mother, not surprisingly, speak in glowing terms of her and express hope that she will be able to return to Brazil with a renewed search for fresh opportunities and objectives and recover her family life.
I have been provided with a written outline of submissions firstly by the Crown which, without any disrespect, reflect the standard templates prepared by the Commonwealth Director of Public Prosecutions in this type of matter. They direct the Court's attention to the principles of sentencing under Part 1B of the Crimes Act 1914 (Cth) which must be taken into account, so that the Court imposes a sentence which is of a severity appropriate in all the circumstances of the offence. I must take account of the nature and circumstances of the offence including the role played by the offender. I must take account of the fact that even though she was a courier and a person low in the hierarchy of the organisation of this importation, the Courts point out that such illegal drug organisations are only able to prosper because people like this offender are willing and able to undertake these types of roles and that people in this role should expect heavy penalties.
As to the objective seriousness of the offending and the role of the offender, it is correct to summarise them as the Crown does. She agreed to take the suitcase to Australia. She collected the suitcase within which drugs were concealed. She received instructions about what to do with the case when she arrived. She received tickets that had been booked to Australia. She took the concealed drugs on board the plane and remained on the flight with knowledge that there was something illegal in the case. She disembarked with them and attempted to take them through customs and did not declare them. There is evidence of a promised financial reward of $10,000 as I have indicated in addition to what the Crown points out is the usual common sense inference that financial gain was the motivation. The maximum penalty of course is a yardstick and a basis for comparison between this case and the worst case and I must assess the way in which her conduct offends against the legislative object of suppressing the illicit trafficking of prohibited drug.
There is no challenge for the proposition that a 25% discount for the utilitarian value for the plea of guilty and the expression of remorse should be allowed in light of the recent decision in Xiao v R (2018) 96 NSWLR 1.
General deterrence remains a fundamental consideration, so that would be importers are reminded that the potential financial rewards are neutralised by the risk of severe punishment.
Her prior good character is of lesser weight in this type of case as the authorities suggest, given the primacy of general and specific deterrence. The Crown recognises that some account should be taken to the fact that the offender has limited English with no friends or family support in Australia and that her imprisonment has been and will be harsher than for a prisoner with English skills and family support.
She has been in custody since her arrest on 26 February 2018 and Mr Coady concedes through her evidence that a further period of custody is inevitable. The fact that she may be deported on the expiration of a term is a matter that is irrelevant to the sentencing process.
I am mindful of the cautions expressed in cases such as Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 in the High Court that consistency in federal sentencing does not require a numerical equivalence. Notwithstanding that, the Crown provided a schedule of four cases said to be of relevance to the sentencing exercise, namely R v Cunha; R v Bernardo [2017] QCA 6, DPP (Cth) v Gow [2015] NSWCCA 208, Legault v R [2014] QCA 280 and R v Agboti [2014] QCA 280.
Mr Coady also provided a lengthy schedule of cases, some of which are well-known. In particular, he cited a number of first instance decisions of judges of this Court in this field. He also reminded me of the fourth category formulated by McClellan CJ at CL in R v De La Rosa (2012) 79 NSWLR 1 which is of somewhat limited assistance these days recognising also that the head sentences and non-parole periods formulated by his Honour were those in which there was no discount for pleas of guilty.
As Mr Coady put in his helpful written submissions, there was no evidence of her greater involvement with the drug syndicate beyond this particular importation and she was as the Crown seemed to concede, no more than a mere courier at a low level.
There is no evidence that she knew the weight or even the type of prohibited drug in her possession. I accept expressions of remorse and contrition as conveyed to the psychologist and to the Court today and I accept that in the light of her character, antecedents, age and the separation from her family, there is a slightly reduced need for a full expression of specific deterrence.
There is no evidence of any drug habit or condition requiring treatment. It is perhaps academic to speak of prospects of rehabilitation. What is probably more accurate is to say that her involvement in this offence and the punishment that flows from it has no doubt been a salutary one for her and her prospects of reoffending are low to non-existent in my view.
The evidence suggests that she has been gainfully employed while in custody and there are no adverse reports in the custodial material. I have taken into account to the extent permissible by the authorities the assistance that I have been given by the numerous cases cited by counsel.
I have also taken into account as the Crown submits, what was said by the High Court in Adams v The Queen (2008) 234 CLR 143 at [10] - [11], namely that sentencing judges should not attempt to grade penalties depending upon the type of drug involved in the offence.
The orders that I make are:
1. The offender is convicted of the offence.
2. I impose a sentence of imprisonment of five years and eight months to commence on 26 February 2018 expiring 25 October 2023.
3. I impose a non-parole period of two years and ten months expiring on 25 December 2020.
Note - These ex-tempore sentencing remarks were revised without access to the court file.
[3]
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Decision last updated: 27 March 2019