The Offender appears before the Court today for sentence in relation to a single charge, pursuant to s307.1(1) of the Criminal Code (Cth). That is, on 31 January 2019, he imported a commercial quantity of border controlled drugs, namely cocaine, being 4 kilograms gross and 3.26 kilograms pure. That offence carries a maximum penalty of life imprisonment and/or 7,500 penalty units.
The maximum penalty represents Parliament's assessment and the community's regard for the seriousness of the offending. There is no doubt that offending of this type is serious, and brings to this country all types and manner of problems of a social and other nature which calls for deterrence.
The offending occurred on 31 January 2019, and the Offender was arrested the same day. He has been in custody since that time, for a period of 298 days as at today.
There is reference in Exhibit A to a co-Offender who, I assume, has pleaded not guilty and her trial is listed for next April. No issues of parity therefore arise for my consideration today.
In terms of the facts relating to the offending, the Agreed Statement of Facts set out in Exhibit A provides as follows.
The Offender, a Brazilian national, arrived in Australia on 31 January 2019 on a flight from Qatar. The Offender had two suitcases. Secreted in the linings of those suitcases was a total of 3.26 kilograms of cocaine.
He travelled to Australia on a tourist visa. The Offender was travelling with his girlfriend, a Ms Pazzianotto, who is in fact a co-Offender to be tried next April.
At about 6.25am on that day, the Offender presented his Brazilian passport and an Incoming Passenger Card (IPC) to the Australian Border Force (ABF) Officer. On the IPC he declared that he was not bringing into Australia "Goods that may be prohibited or subject to restrictions, such as medicines, steroids, firearms, weapons of any kind, or illicit drugs".
After passing through immigration the Offender collected two suitcases, one Tourister brand suitcase and one Delsey brand suitcase, from the baggage carousel and walked towards the secondary examination area in the baggage hall, where he was approached by an ABF Officer. He was escorted to the examination area where he stated that he packed the bags with his girlfriend and that he was fully aware of the contents of the bag.
Australian Boarder Force Officers conducted a narcotics trace scan of his two suitcases. That scan returned a positive result for cocaine. The suitcases were handed over for X-raying which displayed anomalies in the bags, namely an organic substance positioned inside the bags lining at the top, bottom and back of each suitcase.
Australian Border Force Officers opened the lining of the suitcases and located white powder inside. The powder tested positive for cocaine.
At about 10am New South Wales Police Officers escorted the Offender to an interview room and cautioned him. During the recorded interview the Offender stated the following:
1. he did not know what was in the suitcases;
2. he borrowed the suitcases so he would not have to pay for them;
3. he borrowed the suitcases from a man called Gustavo, whom he had known for two years, and met in a bar in Vila Madalena; and
4. his girlfriend packed the bags but he saw her pack them.
Two and a half hours later the Offender participated in a second recorded interview, at which time the Offender stated the following:
1. he was the only one who knew that there were illicit substances in the three bags;
2. he met Rodrigo Barbino, who had already trafficked some illegal substance. He put him in the loop. He told him that "There is a product here, take it". And "That's what (the Police) found here"; and
3. he was going to be paid an amount equivalent to $59,000 Australian after the delivery.
The Offender was to go to a hotel and wait for a contact from Zonza and bring the bags down when he was contacted. However, he missed his flight so he had to buy a new ticket via Qatar.
The Offender was transported to Mascot Police Station where he was arrested and charged.
Forensic examination of the suitcases revealed that the drugs were concealed in the lining of both suitcases. Further forensic examination of the crystalline powder revealed the following in the Tourister brand suitcase:
1. the gross weight of the crystalline powder was 2,005.9 grams;
2. forensic analysis revealed the powder contained cocaine with a purity of 81.3%; and
3. the pure weight of the cocaine was 1,630.7 grams.
In the other suitcase the following was found:
1. the gross weight of the crystalline substance was 2,003 grams;
2. forensic analysis revealed that the powder contained cocaine with a purity of 81.1%; and
3. the pure weight of the cocaine was 1,624.4 grams.
Those were the facts agreed between the parties.
Also in Exhibit A is a copy of the New South Wales Criminal History in relation to the Offender. Other than the matter for sentence, it is entirely clear.
The Crown has helpfully provided reference to what is referred to as comparative cases, which form part of Exhibit A, as well as submissions on sentence (MFI 1).
In my view the Crown case is quite strong. However, the Offender nonetheless admitted guilt at a very early time and is, therefore, entitled to a discount on sentence which represents both the utilitarian value of the guilty plea together with the assistance he has provided the authorities in the administration of justice in this country. I propose that his head sentence be reduced by 25%.
Before turning to the subjective case, in terms of the objective nature of the offending I am mindful of the usual indicia as to same, namely the weight, purity and street value of the drugs involved. Although these matters are not determinative they are matters which are relevant to assessing the objective seriousness.
It was submitted on behalf of the Offender that he would not have been aware of the weight and the purity, as he was not the principal in the importation. That would appear to be the case from the Agreed Facts. It would follow therefore that he would not have had any knowledge as to the street value of the drugs he was carrying into this country although, given the amount of money he was to be paid for doing the run, he would expect, I anticipate, that the street value would have been substantial.
Careful submissions were prepared on behalf of the Offender as to his role in the offending. I have had regard to those submissions. I accept the submission that the Offender was a mere courier in the importation of these drugs. I do not accept that he was a principal and I note that in any event the Crown bears the onus of proving that matter which it has not attempted to do. In my opinion, the evidence does not reach the level of establishing that the Offender was a principal, that he was involved in sourcing the drugs, that he was involved in packaging the drugs, nor that he was in a financial position to fund the wholesale or other purchase of the drugs.
There is also no evidence that he had any connections which would have facilitated the distribution of drugs in this country. These are all matters which go to inform the nature and the circumstances of the offence as is considered under s16A of the Crimes Act (Cth). I am mindful of the Court's obligation pursuant to s16A(1) to impose a sentence that is of a severity which is appropriate in all the circumstances. In determining that, I have had regard to the matters just referred to, namely the role of the Offender and those other matters.
To the extent that it is necessary to identify by reference to a hypothetical range the objective gravity of the offending, I find that it falls just below mid-range. In terms of the nature and the circumstances of the offending, it was submitted on behalf of the Offender the importation was particularly unsophisticated. The Crown, I think, takes issue with that and in reply has submitted there was a level of sophistication involved in the importation. I do not accept that submission with respect. It is hard to imagine a less sophisticated course of conduct in the context of this offending than simply concealing drugs within a suitcase.
It is also relevant to observe that the pure weight of the cocaine is less than two times the minimum quantity required for the commercial quantity. I have already made findings as to the involvement of the Offender. I find that the importation was plainly for financial gain. I do not understand the Offender to say otherwise. It is for these reasons that I would assess the objective gravity of the offending at just below mid-range.
Turning next to the subjective case, I note that the Offender has prepared a letter of remorse to the Court. As is always the case, the Court would approach that letter with some caution, particularly given the absence of any oral evidence in Court which corroborates the matters referred to in the letter. Nevertheless, the letter of remorse by the Offender is supported largely by references from his father, mother and sister which also form part of Exhibit 1. I note that in the Offender's letter to the Court he describes his offending as occurring in a moment of weakness and that he committed an act of foolishness in bringing drugs to this country. Those matters are fairly obvious. Often criminal acts occur in moments of weakness and foolishness.
He said in the third paragraph of his letter dated 15 November 2019 that he felt "pressed down by the people who made me bring the drugs to Australia" and he also feared for the safety of his family. There is no evidence which would support any finding of duress and I decline to do so.
The Offender has observed the effects of drugs upon people whilst in prison. He has acknowledged the deleterious effects which drug-taking has on society and he, in his letter, has expressed remorse for his offending. He says that he is ashamed and remorseful for his conduct. He has acknowledged in his letter the harm which could have been done to the lives of Australian people and Australian families. He felt relief by the fact that the drugs which he brought into the country did not end up on the streets causing any further damage.
In a moment of frankness he also expresses gratitude to police and prison officers who, despite the very serious nature of his offending, have treated him with dignity and respect. Although I have not had the advantage of seeing the witness in the witness box, my impression from reading his letter is that he has demonstrated remorse. As I have already said I do not accept, however, that there was any duress which bore upon the offending.
I have also had close regard to a letter from his father dated 30 October 2019. Without reciting it in any great detail, he corroborates his son's expression of remorse and shame. He provides an informative background as to his son's character and nature which all appear positive. His upbringing appears to have been generally uncontroversial. He is well supported by family members and it is said that he will continue working once he returns to his homeland.
The Offender's mother provided a reference dated 30 October 2019. Again, she spoke highly of her son as one might expect, however, it does have a ring of truth about it as it is supported by other material in Exhibit 1. It also contains acknowledgments that her son is both embarrassed and regretful for what he has done.
The final subjective reference is a reference from his sister dated 30 October 2019. Again, after acknowledging the offending, she has gone to refer to a number of telephone calls which she has had with the Offender since he has been incarcerated. She noted that her brother has told her that he greatly regretted his attitude. I take that to be in reference to his offending, and that he did the acts without thinking and would never do it again. His sister says that the Offender is very good at his profession in digital marketing, and that she hoped that he would be able to overcome this setback caused by this serious offending.
Exhibit 1 also contains a police clearance dated 10 July 2019, which confirms that in his homeland the Offender does not have a criminal record. He is, therefore, a person who is entitled to a finding of good character and the leniency which may flow from that.
I also note that the Offender in August 2014 obtained a Bachelor in Administration. He appears to be a well-educated, intelligent person, which again raises the questions as to why a person such as he would engage in offending of this nature.
Consistent with the history provided by his family, documents have also been provided which demonstrate that prior to the offending the Offender was a contributor to his community in that he works and receives income via legitimate sources.
As mentioned, very helpful submissions were prepared by both parties. Turning to MFI 1, namely the Crown submissions, it was submitted that the Court ought to approach with some caution adopting any shorthand description of the role of the Offender, so as not to obscure the assessment of what the Offender actually did. I have borne that in mind in describing him as a mere courier as there is no other evidence which would suggest otherwise. I accept the Crown's submission that it is apparent from what was said by the Offender to the police that he was aware that he was carrying the drugs at the time he was intercepted at the airport.
The Crown has helpfully referred to the legal principles relating to s16A(2)(f) and (g) of the Crimes Act concerning contrition and guilty pleas. Reference is made to the guideline judgment of R v Thomson and Houlton (2000) 49 NSWLR 383, which it is said it does not apply to Commonwealth offences.
In forming the view which I have already expressed concerning the discounts to be applied to the head sentence in this case, I have had regard both to the utilitarian value and the assistance provided by the Offender to the authorities in pleading guilty as he has. I note the Crown's concession that he pleaded at the earliest opportunity, and despite initial denials, he then made frank admissions. I further note the Crown concession that he ought to obtain an appropriate discount.
In considering an appropriate sentence, the matters referred to under s16A are of significance. Section 16A(2) sets out a number of matters to which the Court should have regard in determining what an appropriate sentence is, and bearing in mind at all times that the sentence must be of sufficient severity given the circumstances of the offending. Given the maximum penalty of life imprisonment, as I have already observed, the offending is quite serious. The nature and the circumstances of the offence in this particular circumstance I have already adequately described, both in terms of his role, the quantity and value of the drugs.
The Crown drew the Court's attention to s16A(2)(m), namely the character, antecedence, age, means and physical or mental condition of the person. The Offender is now 31 years of age, and he was 30 at the time of the offending. As already observed, he has no prior history, and therefore in terms of character I find that he is a person of good character. He has no antecedents. He is of an age where he ought to have known better. There is no evidence of any physical or mental condition which should inform the sentencing process.
In offences of this type deterrence, both general and specific, always loom large. Section 16A(2)(j) provides for the deterrent effect on the person - that is specific deterrence. The Offender has accepted responsibility and demonstrated insight into his offending. I find that the likelihood of his re-offending is minimal if non-existent, and therefore the need for specific deterrence is to some extent reduced.
I am mindful however of the need for general deterrence. This Court and others considering offending of this type must act so as to discourage or deter others generally from engaging in importation offences of this type. The sentence therefore must be of sufficient severity to achieve that sentencing outcome.
In terms of rehabilitation, it was submitted on behalf of the Offender that he has had time to reflect and embrace an appreciation of the consequences of his offending behaviour since being incarcerated, and that there is nothing to suggest the Offender has poor prospects of rehabilitation. In fact, it was submitted to the contrary; that is, given his demonstration of remorse and all the factors, one may expect positive prospects of rehabilitation.
The Crown, in its written submissions, reserved its position with respect to this aspect of the sentencing of the offending until all evidence in the sentencing proceedings had been completed. No further submission was made. In light of my finding considering the risk of re-offending I find the prospect of rehabilitation to be high.
Submissions were advanced on behalf of the Offender concerning the deleterious effect that the sentence may have upon the Offender's family. I find that those circumstances referred to do not give rise to exceptional hardship so as to justify it being found as a mitigating factor. I am conscious of the fact, however, that the Offender's family is overseas. They are unable to visit him or provide him with regular support whilst incarcerated, although he does appear to benefit from considerable support from them. I accept that the separation from his family and being incarcerated in a foreign country will make his time in custody harsher than for others.
I note on this topic that, in its written submissions, the Crown submitted, contrary to those matters just referred to, that little weight ought to arise from the inevitability of serving the offence in Australia. Given the nature of the offence, that is the importation of drugs by a foreign national, there is some weight in that matter. Nevertheless, I consider separation from his family a matter which will cause him to suffer a harsher sentence of incarceration than others.
In view of my comments above regarding the seriousness of the offending, it is plain that a period of custodial imprisonment must be served. There is no other sentence outcome which would adequately reflect the offending committed by the Offender.
Counsel for the Offender has provided a very helpful analysis of a number of other cases which provide insight into sentencing patterns. Whilst I do not in any way consider myself bound by those matters, nor was it submitted I was, (and I acknowledge that statistics and comparable cases are often difficult to accommodate in terms of the ultimate sentence), I have taken into account the matters referred to by counsel for the Offender. Similarly, a schedule of comparative cases was provided by the Crown. I have also had regard to those decisions in considering the appropriate sentence in this matter.
At all times of course I am conscious of limitation in applying statistics to the imposition of a penalty. I am mindful of the comments of the High Court in the matter of Hili v The Queen [2010] HCA 45 at [77] to [79]. But whilst sentences ought to be generally consistent, a Court must sentence according to the particular circumstances of the Offender and the offending.
In terms of the Crown's comparative cases, counsel for the Offender is sought to distinguish his client's case from those cases on a number of grounds referred to at page 15 of the written submissions (MFI 2). In the matter of Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208 for example, the person involved imported 2.3 kilograms of pure cocaine, pleaded guilty, was a 27 year-old Canadian national at the time of offending, and was sentenced to a period of imprisonment of eight years (presumably after discount with a non-parole period of five years). The appeal by the Crown was dismissed. The differences in this case are that the quantity of the drug was larger, and the Offender was older.
In relation to the matter of Gow, it was submitted on behalf of that offender that Mr Gow did not transport the drugs to Australia, but was in Australia for the purpose of receiving the drugs, and on that basis it was suggested that he may have been involved in the distribution of the drugs. This differs from the Offender today, and for that reason the offending may be more serious. Again, this highlights a difficulty with drawing comparisons between cases, the details of which are otherwise unknown.
In the matter of R v Pedeira (2011 NSWDC unreported), the Offender pleaded guilty to importing 3.14 kilograms of pure cocaine. That is to be compared with this case where there was an importation of 3.26 kilograms. The Offender in that case was 52 years of age at the time of the offending and travelled from Argentina to Australia for the purpose of engaging in importation. He received a sentence in this court of ten years with a non-parole period of six years.
I do not intend to go through each of the comparable cases, except to note that I have read the summary provided by the Crown and that the comments made in respect of same by counsel for the Offender, I am satisfied that the sentence which I intend to impose is not inconsistent with the sentencing trends exposed in by those cases.
Mr Claro, you are convicted of the offence of importing a commercial quantity of a border controlled drug namely cocaine in breach of s307.1(1) of the Criminal Code (Cth).
In respect of that conviction I impose a head sentence of 7 years and 6 months, which includes a discount of 25%. I impose a non-parole period of 4 years and 6 months commencing 31 January 2019, being the date you went into custody, and expiring on 30 July 2023. The balance of the term is three years, which will expire on 30 July 2026.
[2]
NOTE:
A. These remarks on sentence were revised without access to the Court File;
B. A certified copy of these remarks are available upon request.
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Decision last updated: 05 May 2020