Solicitors:
Solicitor for Commonwealth Public Prosecutions (Crown)
Krayem & Co Lawyers (Offender)
File Number(s): 2022/00291198
[2]
Introduction
Alexandre Da Silva appears for sentence upon his conviction for three offences in the following terms:
[3]
Sequence 1
On or about 29 September 2022, at Carlton in the State of New South Wales, did deal with money that was and that he believed to be proceeds of an indictable crime, and at the time of the dealing the value of the money was $100,000.
This offence is contrary to the Criminal Code Act 1995 (Cth) s 400.4(1). This provides a maximum penalty of imprisonment for 20 years or 1200 penalty units or both.
Section 400.4 provides for a cascading sequence of offences from Tier 1 to and including Tier 3. This offence is the most serious of the offences provided in this section.
[4]
Sequence 2
On 29 September 2022, at Carlton in the State of New South Wales, did traffic in a substance, the substance being a controlled drug, namely methamphetamine, the quantity trafficked being a commercial quantity.
This offence is contrary to the Criminal Code Act 1995 s 302.2(1). The maximum penalty for this offence is imprisonment for life and a fine represented by 7,500 penalty units.
[5]
Sequence 7
On 29 September 2022, at Carlton in the State of New South Wales, did traffic in a substance, the substance being a controlled drug, namely, cocaine and the quantity trafficked being a marketable quantity.
This is contrary to the Criminal Code Act 1995 s 302.3(1). The maximum penalty for this offence is imprisonment for 25 years and a fine represented by 5,000 penalty units.
[6]
Additional Offences
When sentence is determined for sequence 2, the offender asks that the Court consider the offence charged in sequence 8 for the purposes of s 16BA Crimes Act 1914 (Cth). This offence is in the following terms:
On or about 29 September 2022, did traffic in a substance, the substance being a controlled drug, namely, methamphetamine and the quantity trafficked being a commercial quantity.
This is contrary to the Criminal Code Act 1995 s 302.4(1). The maximum penalty specified for this offence is imprisonment for ten years or 2,000 penalty units.
[7]
The Pleas
The offender pleaded guilty in the Local Court on 9 August 2023 and therefore attracts a discount applied to the sentences that would have otherwise been imposed to reflect the utility of the pleas provided. I intend to apply a discount of 25% to the sentences that would otherwise have been imposed for these offences had he not followed that course. He adheres to his pleas of guilty in this Court and he confirms his wish that he would have the additional offence taken into account in respect of which he also admits his guilt.
[8]
Pre-Sentence Custody
The offender was arrested on 29 September 2022 and has been in custody since then. I intend to apply s 4A(4) Crimes Act 1914 and impose one aggregate sentence for all of these offences with the sentence appropriate for the individual incidents of misconduct specified. The aggregate sentence I intend to impose shall be taken to have commenced on that day. It will in addition require the imposition of one non-parole period. The sentence will exceed three years.
The offender has signed a document acknowledging that he wishes the additional offences to be taken into account. At the conclusion of the proceedings, I shall confirm that I have considered that offence when determining the sentence in respect of sequence 2 which is the offence in which it is to be taken into account and I shall certify the document to confirm that I have done so.
[9]
The Facts
The facts are comprehensive and begin with an executive summary that provides the following detail.
On 29 September 2022, the offender, born in the first half of 1997, was arrested, and charged with these offences. On that occasion he possessed $233,910 being the proceeds of crime located in his residence, on his person in his belt bag, referred to as a bum bag, and in a concealed compartment in his motor vehicle, the registration of which is provided in the document.
Sequence 2 is a rolled-up offence relating to the offender on the same day. He was found with 2,791.1 grams of pure methamphetamine in an Adidas backpack in the rear of the motor vehicle collected by him from a third party the same day. He was found with 2,631.6 grams of pure methamphetamine found in a hidden compartment in the same vehicle.
On the same day, he trafficked in a marketable quantity of cocaine, 282 grams, found hidden in a compartment in the same vehicle. This is the misconduct brought in respect of which sequence 7 was brought.
Sequence 8, the additional offence, is also a rolled-up offence relating to the same date. Found in his residence was 18.7 grams of pure cocaine, 236.2 grams of cannabis, and 53.7 grams of pure heroin located in a hidden compartment in his vehicle.
By way of background, at the time of his arrest, he was living at the address at Carlton. He was a renter and had been there since 25 May 2021. He used an Apple iPhone 6S; the particulars of the IMEI and the service are included in the document. The number is subscribed to the offender's mother's name.
Between 11.26am and 2.47pm on 28 September 2022 he was under observation by police. He entered a white Volkswagen Caddy, the vehicle which I earlier referred. This was registered to him. He drove the vehicle around surrounding streets and parked it a number of times then eventually parked at the front of another address at Carlton and then walked back to his premises.
About 12.10pm on 29 September 2022 he sent a man named Rodriguez a message… "can you come now".
About 12.20pm on 29 September 2022 he made an outgoing call to Rodriguez. His name and date of birth are included in the document.
About 12.33pm the same day the police saw a white Ford Courier truck with a large canopy with the registration number included in the description. It arrived at the front of the premises. Rodriguez drove it. Shortly after the offender left his premises and entered the passenger side of the truck. Together they drove along the M7 continuously for about 30 minutes in the direction of Western Sydney.
I raised in the course of the hearing that the reference to M7 appears an error for where they departed to Western Sydney, if it were a motorway taken, I expect it would have been the M5, from which they would have entered the M7 where they connect to reach Oakhurst.
About 1.25pm Rodriguez made a U-turn in or on Romley Crescent, Oakhurst and stopped the truck with the engine idling beside parkland opposite an address in that street. The offender exited the truck empty handed and entered the parkland.
About 1.26pm he returned to the truck carrying a black backpack and re-entered the passenger side of the vehicle. Rodriguez then drove the truck about 300 metres along Romley Crescent and pulled over. The offender opened the rear canopy door before closing it shortly after. Rodriguez then drove the truck back toward Carlton without stopping.
About 2.21pm Rodriguez parked the truck behind the offender's Volkswagen Caddy which was still at the front of the address where it had been left in Carlton. At this time police approached the truck containing the offender and Rodriguez and executed a s 3E Crimes Act 1914 search warrant.
The offender was cautioned and informed of his Part 1C rights. In response he requested the opportunity to speak to a lawyer and a friend or relative which he was able to do around 3.30pm. He was told he was not under arrest. He was asked where he had been before he was stopped. He said that he had been working. Clearly this was not true.
Various warrants were explained to him. He admitted ownership of the Volkswagen Caddy and said everything in the car belonged to him. He was wearing a black satchel bag. It contained two mobile phones, one of them encrypted, keys to both premises and to the Volkswagen Caddy, and $1,500 in cash, a part of the money the subject of the charge in sequence 1.
About 2.40pm the offender was escorted to the rear of the canopy of the white truck. It was unlocked and opened with the assistance of Rodriguez. Within the black backpack the police located a black plastic bag with four clear plastic packages each containing a crystalline substance. When asked who owned the backpack he said, "he's got nothing to do with it, that's all I've got to say." When he spoke he gestured toward Rodriguez. When asked the same question again he said the black backpack belonged to him.
The backpack was seized, together with its contents. The crystalline substance revealed a net weight of 3,475.9 grams with a purity value of 80.3%, giving it mass of 2,791.1 grams of pure methamphetamine. This is the part of the substance the subject of the charge in sequence 2.
About 2.40pm he was placed under arrest and taken to the premises by police where a further s 3E Crimes Act 1914 search warrant was executed. The police searched the Volkswagen Caddy panel van under the authority of a s 3E Crimes Act 1914 warrant. This occurred at 3.30pm. Police located a number of remote controlled structural hidden compartments. Inside one of the compartments the police located and seized the following items:
1. $136,500 in cash, part of the money the subject of sequence 1. A DNA profile which almost certainly belonged to the offender was found upon examination of the cash;
2. A Woolworths shopping bag containing 1,549.9 grams of pure methamphetamine, 80.3% purity, part of the drug the subject of sequence 2. The offender's DNA was recovered indicating that he was a contributor.
3. A black and yellow Rebel Sports bag containing pure weight of 1,081.6 grams of methamphetamine, 80.3% purity. This is also part of the material the subject of sequence 2.
4. Various clip-seal bags alleged to be utilised as dealer bags containing a pure weight of 0.1 grams of methamphetamine with a purity of 77.9%, part of the material the subject of sequence 2.
5. A Christian Louboutin brown paper bag with multiple clip-seal bags with a pure weight of 123 grams of cocaine, with 18.1% purity. The substance was mixed with caffeine and levamisole; this is the subject of sequence 7. A DNA profile which almost certainly belonged to the offender was located on the bag.
6. A pink lunchbox containing 159 grams of cocaine pure weight, mixed with levamisole. The purity was 56.8%. This is part of sequence 7. DNA which almost certainly belonged to the offender was located on that item.
7. A Coles plastic bag with a pure weight of 53.7 grams of heroin, mixed with Beta-U10 and etizolam. The purity level was 63.5% purity. This is part of the material the subject of sequence 8.
8. A Turtle Beach headphone box containing multiple plastic bags with traces of cocaine and methamphetamine.
9. Two clip-seal bags containing traces of cocaine. Forensic examination revealed the offender's DNA.
10. A cardboard box containing a high visibility shirt with traces of cocaine and methamphetamine.
11. One five-dollar note and one ten dollar-note, consistent with their use as tokens in drug or money handovers. This was explained in the course of the hearing. From my own experience dealing with such matters, I understand that the serial number on the banknote is used as identification to confirm the veracity of the person with whom one is dealing in such transactions for the supply of drugs. There were two additional five-dollar notes located in the vehicle also consistent with their use of tokens in that way. The vehicle was seized.
A s 3E Crimes Act 1914 search warrant was executed at the offender's premises in Carlton in Grey Street. About 3.00pm the police entered the premises under the authority of the warrant with the offender. The following items were found in the premises:
1. $95,860 cash in plastic bags within a black backpack on the top of a baby's change table. This is part of the money the subject of sequence 1. The offender's fingerprints were found on the plastic bag containing the cash.
2. Two plastic bags of cocaine within the backpack containing the money on the baby change table. This consisted of 27.1 grams of cocaine net weight mixed with caffeine and levamisole, the purity 22.2%, the result leaving six grams of pure cocaine in that quantity, and 27.5 grams of net weight cocaine mixed with caffeine and levamisole with a 27.1% purity, giving 7.4 grams of pure cocaine. This pure cocaine in each case is part of the material which sequence 8 is presented.
3. A clip-sealed bag in the offender's bedroom containing 27.5 grams of cocaine with caffeine and levamisole with the cocaine at a 19.5% purity, giving a calculated pure weight of 5.3 grams of cocaine. Again this is part of sequence 8.
4. Calculated net weight of 33.5 grams of loose cannabis in the loungeroom, part of sequence 8.
5. Various jars with a calculated net weight of 18.5 grams of cannabis located in the loungeroom, sequence 8. The jars, upon examination, revealed the offender's fingerprints.
6. Two heat-sealed plastic bags containing a calculated net weight of 184.2 grams of cannabis located in his bedroom, again part of sequence 8.
7. Two mobile communications devices, one of which was found earlier in the offender's satchel bag, both of which are encrypted.
8. A Yellow Skins cardboard box with names and amounts written on it in the form of a drug ledger. There were traces of cocaine, caffeine, levamisole and benzocaine on it.
9. A black Nike backpack and Woolworths plastic bag containing traces of methamphetamine, cocaine, THC, caffeine, levamisole, and benzocaine. Items inside the backpack contained the offender's DNA.
10. One clip-sealed bag marked $69k.
11. Three measuring jugs containing traces of cocaine, methamphetamine, and THC.
12. Two electronic scales; and
13. Three five-dollar notes in a cigarette packet and one five-dollar note in the bedroom consistent with their use as tokens as earlier explained.
During the course of the search warrant and after the offender had spoken to a lawyer, police had a number of conversations with him in which he said that he was the sole occupant of the premises. He said the cash and drugs located within the premises belonged to him.
The offender refused to provide the PIN codes for his encrypted devices. He also declined the opportunity to participate in an interview with police. He was entitled to take that course and of itself does not attract any disadvantage to him however in the absence of having heard evidence from him other than by way of his affidavit, in which he is effectively silent upon the circumstances of this offending and those with whom he might have been engaged, the Court is left to come to findings of fact based upon inferences drawing upon the admitted facts in the document to which I am presently referring.
About 7.45pm the offender was conveyed to St George Police Station and he was charged.
About 7.04pm Rodriguez participated in an interview. He denied involvement in the offences. There were no proceedings taken against him for any matter arising out of these events.
Further investigation revealed that according to the Australian Taxation Office records the offender's declared financial income for 2001 was $13,852 and his declared income for the financial year 2022 was $900. His Commonwealth Bank records showed he had no legitimate reason to be in possession of the $233,890 cash seized from him.
His phone was examined, this was the Apple iPhone 6S, and a Cellebrite report was prepared. This showed that as recently as 26 July 2022 the offender discussed the sale and supply of drugs with specific weights and the pricing of the drugs he was offering for sale. His phone was examined manually and it showed that between 18 June 2018 and 1 October 2022 the offender had multiple conversations with other users on the Snapchat social media application regarding the sale, supply and purchase of drugs, including drug weights and pricing.
The manual review also located a ledger in the notes section of the phone last updated at 10.13am on 26 September 2022, a matter of days before he was arrested. This shows how he maintained a weekly cash float of between $64,000 and $904,000 as well as listing his dealings in cash and drugs. There is an example drawn from the phone included in the statement of facts. There are three tables each with a heading "new week". The first refers to "new week 903,650" the second "new week 512,860" and the third "new week - total 26,450".
The table includes reference to Fry which is a term for methamphetamine, and to Hammer and Old H which is a reference in each case to heroin.
The first table it begins with a sell picked up 5kg Fry (crucial). The next passed five kilograms Fry (provider). Next plus 30k Draco. Next returned 1B picked up 1B (neo). The next is minus 350k (D block). The next two ounces, or 2OZ, Hammer, 8OZ Fry (MOBDEEP). Next 6OZ new B. Then (force).
I do not intend to go through each and every one of the cells in each of these tables. They are all structured and represented in comparable style using terms that I would conclude were code. The only conclusion one can draw in my view is the reference "K" is a reference to one thousand and the number appearing before "K" must be a reference to the sum to which that refers. I take that from the following cell, the fourth-last from the bottom on the first table, in the following terms, minus 60K (calculated returned …) amongst other entries in that table. The document was signed by the offender on 8 August 2023.
I shall come to the submissions that have been made on behalf of the Crown and the offender in due course but the objective assessment to be made of this conduct is that the offender was engaged in a sophisticated enterprise. He was clearly successful in what he was about. My conclusion I come to upon material I have is that this was an enterprise for which he had a ready source of the substances with which he was engaged upon trafficking.
The dealing with the proceeds of crime was part and parcel of this enterprise. I agree with the submissions made on the offender's behalf that this is not a case where the dealing with the money was in another context such as transmission of the funds elsewhere by way of some structuring arrangement. What is before the Court is a successful drug supply operation with an indication of turnover within the period in the material that is before the Court reflected in the amount of money found with him and the quantities of the drugs seized from him.
[10]
The Offender
Another aspect which I accept put on his behalf is that as he presents here on the screen appearing by way of AVL almost childlike, clearly in reasonable health according to the opportunity that I have to assess him, recognising that this is by way of an AVL link. His presentation is in stark contrast to the photograph taken at the time of his arrest. One would infer with comfort I believe that as he presented then he was not as composed or in the state of health that one sees now.
He has a modest record. On 29 October 2015 he was charged and appeared in Court on 28 January 2016 with an array of offences for which he was fined and required to submit to bonds pursuant to s 9, Crimes (Sentencing Procedure) Act 1999 (NSW). These were for entering or leaving a restricted area, possessing equipment for the administration of drugs, possessing a graffiti implement with intent to contravene, entering a building with intent to commit an indictable offence, possessing a prohibited drug, damaging property, face blackened or disguised with intent to commit an indictable offence. There are two instances of that, and another instance of entering a building or land with intent to commit an indictable offence, entering, or leaving a restricted area, going onto or into or remaining on or in running lines (I take that to be the railway system). Another offence of damaging property. Another offence of possessing graffiti implement and once again going into or remaining on or in running lines.
I do not know anything about the offences. They are consistent with someone who has embarked upon graffitiing trains within our public transport system but I can express no concluded view one way or another in light of what I have before me.
There is listed as an offence trafficking in a controlled drug. This was listed here on 9 August 2023, and is the offence charged to sequence 8 which I am to bring to consideration.
The offender was born in the first half of 1997 and is now 26 years of age.
A Sentence Assessment Report was prepared. He was living alone at the address in Carlton at the time of the offences. He was in a de facto relationship of some three and a half years. His partner left the relationship and took their 14-month-old daughter with her. He said that after this time he began to disengage from his prosocial supports.
There is a conflict between that representation attributed to him and what is provided elsewhere.
His mother was interviewed and she said that she and the offender's brother have a close relationship. Both of them are shocked by his behaviour. She said she has his ongoing support for intervention needs including accommodation if required.
He has a positive employment history. He was employed full-time for two years as a tree lopping worker which I find extraordinary, bearing in mind the danger that that work involves, if he was using drugs to the extent that he claims. He said that his hours had decreased around the time of the offending. He is said by his employer to be trustworthy and courteous. He was pleasant with customers and worked well with others. He can return to work should he be in the "right headspace" to do so.
It is said that his current offences correlate directly with his disclosed history of drug use. Once again the court is left with his representations as to his use of drugs, supported though that might be with his image at the point of his arrest. He is attributed with expressions of shame but could not elaborate further. He said he began using cannabis at age 14. He reported using half an ounce of cannabis daily and a gram on weekends mixed with about six alcoholic drinks. He has had no treatment for addiction at any point. In custody he has been able to abstain from misuse of drugs without such intervention.
Beneath the heading "Financial" the following appears in three dot points.
Due to Mr Da Silva's escalating drug use, he reported that he had acquired a debt to his dealer in the amount of approximately $1,000.
As a result, he disclosed that he approached his dealer and offered to partake in the index offences to settle his debt and obtain more drugs.
Mr Da Silva's mother reported concerns surrounding gambling, which he confirmed to be true, stating that he would spend $500 a week on poker machines.
A drug debt of $1,000 pales into insignificance when one considers the patently successful operation upon which he was engaged when he was arrested.
Beneath the heading "Incite into impact of offending" he said that his offending hurt "a whole bunch of people". He reflected that drugs in the community have the potential to ruin family's lives and hurt kids. Elsewhere it is suggested that his experience in gaol has brought that enlightenment, and yet he would have the Court accept that because of an unfortunate event which he claims he suffered in his childhood at the age of ten he turned to the misuse of these substances and became dependent upon them and therefore entered the enterprise supplying drugs when he approached the person from whom he was obtaining them.
There is an inconsistency between the enlightenment he claims to have attained in custody and when, if he is genuine in what he said, he would have suffered those outcomes. One would have thought that would have eliminated the folly of drug use without more.
He is willing to participate in interventions and would accept a referral to community and patient residential rehabilitation to combat his addiction. He is willing to undertake community service work. There is no opportunity to assess his response to supervision because he has had none in the past. He is assessed as a medium/low risk of reoffending. A supervision plan is offered; that may well be relevant at the time he is released to parole.
In his case there was the affidavit he provided. He was not required for cross-examination upon the representations contained in this or any aspect of the case that has been presented to me.
The offender's affidavit was made on 27 November 2023. He began with his education and then turned to the background of offending. He asserts that reflecting on his childhood it is not a source of happy memories for him. When he was ten years old in or about 2007 he was sexually assaulted by a family friend in his home. This happened on many occasions and went on for a few months. It was always by the same person. He was a close family friend and his family would often visit each other's houses on special occasions.
He attributes to this perpetrator anal penetration and exposure. He did not report this to anyone including his mother and that perhaps explains why his mother has not provided any information regarding it. He said that he was scared and felt embarrassed by what happened. He thought no-one would believe him as a young child and that the family would not take his side. He knows now this was foolish and he has had to live with the pain and trauma of the sexual abuse for most of his life and he continues to live with it.
As a result of this he said that he has flashbacks, nightmares, and post-traumatic stress disorder. He said that to cope he began using drugs to "kick the edge." This was at the age of 14. He began with marijuana, ecstasy, and LSD. What started as recreational quickly became a habit and addiction. At 22 he began consuming Valium, Xanax and cough medicine and consumed those in combination with alcohol. He then said he had to be admitted to St George Hospital after consuming the combined medicinal and alcohol mixture.
[11]
Submissions
Mr Johnston SC appeared in these proceedings and as I have come to expect from him, he was thorough and presented all arguments that were available in support of the offender. The Crown provided comprehensive written submissions and spoke to them on the day the matter was heard.
The matters raised by Mr Johnston include the particulars of the offences and the application of the relevant provisions in Crimes Act 1914. The concession is made that full-time custody is inevitable.
The evidence upon which the offender relies is the report from the psychologist, the affidavit by the offender and that of his mother. The offender adhered to the agreed facts on sentence.
Mr Johnston reminded me of the gradation of offences in relation to the value of money and property relevant to the charge in sequence 1. S 400.1, Criminal Code Act 1995, deals with property more than $100,000 in value. This is not the worst class of offence. The offence above it is in s 400.3 for property of more than $1 million in value, and then beneath it the provisions are concerned with property to the value of $50,000 and beneath that property of the value of $10,000.
Mr Johnston spoke of the need to identify precisely the manner in which the proceeds of crime were dealt with and, as I noted earlier, this is not a case involving structuring or transmission of funds overseas but it is part and parcel of the sequence of transactions that one would conclude the offender was embarked upon in the trafficking offence, within a finite period covered by the evidence elicited.
Regarding the gross turnover realised from this enterprise I do not have any breakdown or any extrapolation upon which to determine to what extent this activity provided a profit margin, but it must be the case that at least that which has been recovered reflects the turnover for the enterprise upon which the offender has been changed within the period of time covered by the facts.
It is conceded that the money was found in the concealed compartment in the offender's car. This in itself involved a measure of sophistication and organisation that must not be overlooked, and ultimately, it is said that the money is inferred to be the proceeds of the sale of drugs, the electronic ledger and the reference to stash therein supports this inference, but the offender's role in dealing is limited to the possession and concealment of and is incidental to the supply of drugs. There is no evidence of any further attempt to deal with the money by laundering it.
I do not agree with the submissions that the level of sophistication is low in this instance.
With regard to sequence 2, the trafficking of the commercial quantity of methamphetamine, the submissions note that the facts are limited to 29 September 2022, the observations made in the course of the surveillance and what was found upon the execution of the s 3E Crimes Act 1914 search warrants.
So too with regard to the charge is sequence 7, trafficking a marketable quantity of cocaine, and the offence in sequence 4, which I think must be a reference to sequence 8 in the written submissions. Counsel notes this to be a rolled-up offence and the quantities of drugs in each case, this being a federal prosecution, assessed for their purity, has them in each specific case at less than the marketable quantity and in the case of cocaine well below the marketable quantity.
It is conceded the offending was not an isolated incident but the offender is not to be sentenced on the course of conduct beyond the alleged offences. This must be so and I accept that what is before me has to be assessed within the context of what must have been an ongoing operation, the precise parameters of which are not available to be determined.
He is said to be contrite and remorseful, reflected in the plea of guilty and what was said by the psychologist and his mother. The Crown challenges that because of the inevitability of what would happen if he defended these charges.
All of that said, on balance I am prepared to accept that he has some measure of contrition and remorse within the context of what must have been a realisation of the inevitability of the outcome of these proceedings, but noting the improved health to which I have already referred and the confrontation that occurred between the offender and his mother, who I accept to be a person of good character who has been significantly shamed by his behaviour .
It is never lost on the Court that whenever someone is to be sent to gaol for serious criminal misconduct such as this, the punishment is never confined to what the offender must suffer. There is a ripple effect impacting upon parents, in this case the mother in particular, and the father from whom I have not heard, but who I accept is supportive. I can imagine little worse than having to sit in court to listen to a judge rehearse matters such as this to send their child into prison. The Court extends its sympathy to the parents and the offender's brother from these circumstances.
A custodial sentence is acknowledged and must be significant. General and specific deterrence must be addressed. His character must be assessed according to his background. He has had a long running misuse of drugs according to what has been admitted in the various documents presented to the Court. The history of childhood abuse, in the absence of further material to support that assertion, I attribute little, if any, weight, particularly considering the presentation of the offender to others, apart from Mr Watson-Munro, who have not detected in anything they have provided any such concerns. The COVID-19 impact is noted and I accept that.
I am satisfied there are good prospects of rehabilitation by reason of the circumstances that have evolved and what the offender is about to face. I have adjusted the custodial component of the aggregate sentence I am going to order to allow a longer period on parole to allow what I think to be sufficient time on parole to facilitate his return to the community.
The Crown's submissions have included a table of cases where sentences have been imposed for conduct with which this offender is charged. I recognise the High Court's statement of principle that Federal offences should be assessed across the Commonwealth of Australia to bring about consistency from jurisdiction to jurisdiction, a proposition that cannot be challenged. If one State were particularly lenient in contrast to others, one could imagine how that would engender senses of injustice in those that were put before the courts in the less sympathetic jurisdictions.
The Crown's submissions remind me that I must take into account the matters listed in s 16A(2) of the Crimes Act 1914. S 17A requires that I shall not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate in all the circumstances of the case. Clearly there can be no sentence other than imprisonment in this case. Maximum penalties are set for the worst cases and operate as a yardstick or guidepost to be considered with other relevant factors. I need to assess the degree to which the offender's conduct offends against the particular provision, noting that the offence charged in sequence 2 carries life imprisonment as a maximum penalty and the offence charged in sequence 7 has a maximum of 25 years imprisonment for offences at the high end of the scale.
Money laundering, the offence charged in sequence 1 is then discussed in general principle. The offender is facing sentence for misconduct with the highest state of mind in the tiered offence structure to which I earlier referred.
The Court of Appeal in Victoria in Kim v The Queen [2016] VSCA 238 at [61] noted a series of points with such an offence. One needs to begin by looking at where the offence sits on the scheme of offences provided. Precise circumstances must be considered, including the actions which constituted the dealing and the period of time over which the dealing occurred, the number of transactions, the amount involved, the role of the offender, whether he was the author or instigator and his degree of authority. A person who launders money is an important cog. The amount of money is significant. A large number of transactions with smaller amounts is more serious than a single transaction with a large amount. The extent of the offender's knowledge or belief is relevant and one needs to focus upon the offence without attributing inappropriate weight or inappropriate consideration to the particular offence upon which the charge is brought.
In respect of that offence the Crown has noted the value of the money, $233,910 in three lots, more than twice the threshold of $100,000 for the offence. The concealment of the money and locations over which the offender had exclusive control, together with the various indicia in the trafficking, is relevant. Payment ledgers, text messages, Snapchat conversations, and that the money was the proceeds of the trafficking that he carried out are all significant matters that point to this as a serious example of the offence against s 400(1).
Specifically, there is a substantial quantum, the methods of concealment, certain knowledge that the money was the proceeds of crime, his role as the exclusive operator in the enterprise of trafficking, and that he solely received and dealt with the proceeds, all leading to the conclusion that this is a serious example of the offence, with which I agree.
Regarding sequences 2 and 7, the two trafficking offences, trafficking can involve a multitude of conduct: selling, preparing, transporting, guarding, or concealing and possession, whether the offender is within a hierarchy or is the principal in the enterprise. In this case, the only conclusion I can come to is that he had this as his enterprise and was the principal with a ready source of the product from those that no doubt had a more expansive source.
The quantity of the drug is relevant, including the degree to which is exceeds the weight threshold. The value of the drugs is important. I do not have any evidence before me as to what the ultimate street value of the drugs might be.
Relevant is time over which the trafficking occurred, and financial motivation, which have been the offender's motivation. The $1,000 drug debt which he claims pales into insignificance when one considers what he was caught doing. Whether this was to feed a habit is another matter consider, but whatever habit the offender had at the time he was engaged upon this, his participation in this enterprise was far and beyond his particular need for whatever substance he was using.
In Wong v R [2001] HCA 64 deterrence was said to attract the greater weight, requiring stern punishment because of the difficulty in detecting these offences. In R v Shi [2004] NSWCCA 135, Wood CJ at CL emphasised, in the context of a commercial supply, the significance of the culpability of those engaged at any level in drug supply and the need for deterrent sentences. All these considerations apply to both sequence 2 and sequence 7.
Dealing with both sequences 2 and 7 and the scheduled offence, the Crown has provided submissions globally. I agree with the observation that this was a sophisticated and profitable operation. I have noted reference to the possession of two electronic scales. Paragraph 27(a) of the submissions refer to "three measuring drugs," this is clearly an error and should have referred to "three measuring jugs". The smaller packaging is noted. The detailed ledger is noted. Encrypted telecommunication devices are noted. The clandestine method of collecting the product from the parkland is noted. The use of Rodriguez to assist is noted, notwithstanding that on the material before me it cannot be said that Rodriguez was a participant in the crime. The remote-controlled structural compartments within the car are noted and the use of bank notes as tokens is noted.
I agree with the proposition that all of this suggests a considerable degree of planning, concealment, sophistication, and profit. The characterisation by the offender as a low-level supply of drugs in the affidavit I reject. As I noted earlier, I find that he maintained his own trafficking enterprise for his own personal gain. I have noted the breadth of the operation and the extent of his control over it and the high degree of criminality and responsibility that he exhibited.
I have noted the commercial quantity for sequence 2, seven times the threshold for the offence. The storage of the methamphetamine in the concealed compartments, the substantial quantity found and to which there is reference in the table that was found on his phone. I agree that he was motivated by substantial financial gain and this is a serious example of an offence against s 302.2(1) of the Code.
Sequence 7 is at a lower end of the scale because of, apart from other things, the quantity of the cocaine at 282 grams, which is not significantly higher than the marketable quantity of 250 grams. But all the other characteristics of the enterprise attract consideration for this offence.
I am reminded of the approach to be taken with regard to the additional offence and what was said in Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1991 (No 1 of 2002) [2002] NSWCCA 518. The guidance provided indicates the need for appropriate weight to be given to specific deterrence and the community's entitlement to retribution, by increasing the sentence that would otherwise have been imposed upon the additional offences to be taken into account, without specification of precisely to what extent that has been achieved in any arithmetical sense. It is a question of considering, on the synthesis of all the material, the level of punishment that ought to be imposed for the principal offence, bringing into account the additional offences in accordance with those principles.
The plea of guilty is noted. The utilitarian value is conceded. The Crown urges the view that one would not be satisfied of genuine contrition and remorse in light of the certainty of the outcome of these proceedings. I have considered that, but I am prepared to allow, in the circumstances, as I have indicated previously in response to Mr Johnston's submissions, that he should be given the benefit of expressions of contrition and remorse.
I have already dealt with the self-characterisation as a level supply of drugs and I have put that to one side. I attribute little weight to his assertion that he was engaged in this to pay off his drug debt, for the reasons I have earlier stated, and I have already commented upon the extent to which enlightenment has reached him in custody, when it is to be accepted from his history that one would have thought he was aware of these issues well before that.
I have already commented upon the report from the psychologist. I do not need to amplify that. I have considered his age, character, and antecedents. I do not accept the diagnoses offered by the psychologist for the reasons I have earlier given.
I am reminded of what was said in relation to drug addiction being the factor in offending that was articulated in the guideline judgment by the Chief Justice and by Wood CJ at CL and CL: R v Henry Barber Tran Silver Tsoukatos Kyroglou Jenkins [1999] NSWCCA 111 revised and in particular the judgment of Spiegelman CJ, beginning at para 197 and concluding at para 2002 where his Honour concluded by saying:
"There is no warrant, in my opinion, to assess a crime induced by a need for funds to feed a drug addiction, as being lower in the scale of moral culpability than other perceived requirements for money."
Wood CJ at CL wrote at para 268 down to and including 274 of dealing with an armed robbery offence noted that the fact of drug addiction as a mitigating factor would not be justified at principle. His Honour noted at para 272 the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence. It is of itself not a matter of mitigation but it is relevant to questions relevant to objective seriousness including:
1. Impulsivity, though it could not be said that these crimes involved any impulsivity on the part of this offender, or
2. The existence or non-existence of any alternative reason which may have operated in aggravation of the offence, though here the offender was simply motivated by financial gain, or
3. The state of mind or capacity of the offender to exercise judgment such as if he were in the extreme state of withdrawal, which does not apply in this case.
Now, that brings me to the final stage of this judgment. I shall now turn to the imposition of sentence.
[12]
The Sentence
The offender is convicted of each of the three offences. I have decided to impose an aggregate sentence pursuant to s 4K(4) Crimes Act 1914.
The sentences that would have been imposed for each offence if separate sentences had been imposed instead of an aggregate sentence are:
1. For the offence of proceeds of crime, sequence 1, a sentence of five years and three months.
2. For the offence of trafficking, sequence 2, a sentence of 11 years and three months.
3. For the offence of trafficking, sequence 7, a sentence of six years.
The term in each case was reduced by a discount of 25% for the utility provided by the pleas of guilty.
The aggregate sentence I impose will commence on 29 September 2022. I specify a non-parole period of eight years and three months which will expire on 28 December 2030. The overall sentence of 12 years and nine months shall expire on 28 June 2035.
I repeat those dates: commencement 29 September 2022; a non-parole period to expire on 28 December 2030, that is a period of eight years and three months; and the head sentence of 12 years and nine months will expire on 28 June 2035. I have signed and dated the form for the purposes of s 16BA Crimes Act 1914 confirming that I have taken into account the additional offence.
[13]
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: 30 January 2024
Upon discharge he stopped using the restricted substances. Returned to marijuana and cocaine and continued to drink alcohol. He was working as a tree lopper earning from $900 to $1,000 per week and would use $600 per week on drugs. He found himself with a drug debt buying for himself and for his then partner. They were living together, both were addicted. She was pregnant with their daughter. Because she was continuing to smoke marijuana the pregnancy was complicated and she was required to stay as an inpatient for three months during which time he and she were unable to see each other. It is not explained here why that was so.
His ability to work was affected by his drug use. He found himself in what he calls a vicious cycle of spending all earnings on drugs, the effects of drug use, and he could not pay his drug debt which as I noted according to the Sentence Assessment Report was $1,000.
In para 14 he writes, "I was thereafter offered an opportunity to work in order to pay off my drug debt. Regrettably, I accepted this offer and began working in the drug industry in about late July 2022." He does not amplify what that involved for him.
Beneath the heading, "The offending" he speaks of his arrest and he asserts in para 16, "I accept that I was a low-level supplier of drugs which was fuelled by my drug addiction". I reject that assertion.
He speaks of having no proper reason or excuse for finding himself involved in this criminal behaviour. He got into the business because of his drug addiction and could not get himself out until he was arrested. He asserts that there is no justification or explanation for what he did but he did not consider the risks as consequences that would follow by engaging in this conduct. I reject that proposition. The clandestine nature of the meeting when he collected drugs on the day of his arrest challenges any such assertion. He accepts full responsibility for his actions.
He complains of being isolated in custody because of the COVID-19 epidemic. In the period of time he has been in custody up until the time of this document, which amounted to 52 days in isolated custody. I bring that to account for the modest impact it has upon the punishment he has been required to suffer. I accept that in isolation because of COVID-19, he suffered lockdown in his cell over 24 hours each respective day. He was alone and he was prevented from interaction with other inmates.
He said that since being in custody he has had the opportunity to reflect on his actions and offending behaviour and he has sharpened his focus, has been given an opportunity to readily understand the seriousness of his actions. As I noted earlier I find it hard to understand why he is suddenly enlightened in this regard if what he has said about his life beforehand is to be accepted as true and correct.
He expresses regrets. He is using his time in gaol to exercise daily. He has a job and he is looking to improve his position with other work. That stands in his favour towards his prospects for rehabilitation. He has found the criminal justice system stressful and frightening and he regrets the stress that he has caused to his family and asks that he be given mercy and leniency.
His partner gave birth to their daughter in August 2022. He has never seen her and he understands that they are currently residing in Perth. Upon release he intends to spend time with his daughter and establish a relationship with her and he intends to overcome his past traumas and stressors.
What he said about his daughter does not sit comfortably with what I am told elsewhere that he has had contact with his former partner and daughter by way of some type of audio-visual facility. He suggests in para 30 that he has never seen his child and that he understands that they are currently residing in Perth. I find that difficult to accept in light of what else is provided.
This said, the extent that he has any affection for his former partner, who is perhaps his current partner, and the desire to develop a relationship with his daughter, I bring to account. This is not so exceptional as to allow him to avoid the consequences of what he has done but it does impact upon the measure of punishment that he must suffer and I bring that to bear when I determine what penalty I intend to impose.
His mother is a person of good character which I accept. She has another son, in addition to the offender, who is now 18 years of age. The offender moved out of the family home in August 2020 to reside with his partner. They had a house at Carlton but she and the offender maintained a strong connection between each other. They were in contact daily.
She had a cleaning business as a sole trader but suffered a work-related injury and continues to be affected by physical restrictions. She is in receipt of Workers Compensation benefits. She is in a relationship now and her partner, with her, contribute to the household expenses.
In para 6 she writes,
"I'm aware that Alex has pleaded guilty to drug-related offences. These charges come as a great shock and disappointment to me because I've always known Alex to be a good boy. Apart from one incident with the police when he was 18 years (which was a graffiti-related offence), he had never been in trouble with the police or arrested. Despite this, Alex remains a very loved member of our family. I'll continue to support him in custody and when he is released."
She asserts that he appeared to relapse into drug use when his partner was admitted to hospital for three months when pregnant. He was unable to see her during this time and this affected his general outlook.
Once again it is not explained to me why that was so unless an analysis of the time line reveals that he was in custody when that occurred and therefore she could not visit him. It is not entirely clear and I will refer to the time line. He was arrested on 29 September 2022. According to the mother's affidavit the baby was born in August 2022 in Perth. She was in hospital for some period of time before then it appears when it is said that he was unable to see his partner, but he must have been at large at that point. It is not clear to me why he could not see her in hospital, what the reason was that they were kept apart, but in any event it is asserted by both the offender and the mother so I should on balance allow that as a fact to be brought to account in the assessment of his outlook on life as his mother would have it.
His mother has made multiple trips to Junee Correctional Centre to see him. She currently visits him once a month. She confronted him with his misconduct and expressed her disappointment. She attributes to him the following responses in para 10:
"Mum, I don't know why I did this.
I have ruined my life.
I'm sorry, so sorry mum. I know you are upset with me but I will promise to learn from this."
She attributes with him acknowledgement of his wrongdoing and acceptance of full responsibility and commitment to turning his life around. She will continue to support him and will relocate with him outside of Sydney to escape all antisocial influence.
With regard to his partner, his mother describes assisting her with a treatment plan after she was released from hospital but she moved to Perth before the baby was born in August 2022. She did so without informing either the offender or his mother. She says that neither she or her son have seen or met the daughter.
She attributes to the partner unfavourable characteristics as a consequence of what the partner's mother told her. These are articulated at para 16. I have considered them. There is no need for me to publish them in open Court as they are available in the material that has been tendered.
On 1 November 2023, the offender was assessed by psychologist, Tim Watson-Munro. He provided a report written on 27 November 2023. There are a number of comments I would make about this document. At the first page beneath the heading "Introduction" he referred to the offender as "a cooperative though psychologically troubled man who acknowledged a prior forensic history" but stated this has been his first time in custody. So far this would be accepted as accurate.
The report continues, "It is clear that his incarceration has had a salutary impact upon him, in terms of his strong motivation to not reoffend in the future."
As helpful as Mr Watson-Munro might be intending to be it is not for him to impose upon a Court his subjective assessment of the truthfulness and accuracy of what is put to him. They are matters which the Court must determine for itself upon the material tendered.
He attributed the offender with a complex clinical and developmental history characterised by long-standing symptoms of depression, anxiety, and an overarching substance use disorder dating back to the age of 14 years. That sequence of propositions if attributed to the offender are not entirely consistent with what his mother has written or what is said of him by his employer.
His detoxification is noted. He has not had any treatment for his "underlying problems." Appropriate testing confirms a moderate and recurring depressive disorder with a broad spectrum of symptoms. He then refers to the alleged rape at about the age of ten years by a family friend. There is nothing before me to indicate that that has ever found the light of day other than in this report and in the offender's affidavit. In circumstances where it is said that this person, not named or even identified beyond the barest description, had access to him and his family, there is nothing in the material before me that supports the proposition other than the bare assertion that it occurred, nothing to indicate what steps were taken to protect himself or to seek protection from the misconduct, there is no material upon which one might assess the veracity of the claim that had occurred, the extent of the misconduct or over what period of time and how frequently.
He is attributed with expressions of regret. Of note is the following:
"Mr Da Silva was interviewed at the Junee Correctional Centre utilising telehealth facilities."
It is not clear to me whether that involved audio visual link or simply a telephone call which seems to be the system employed for telehealth consultations. He then embarks upon an analysis of his social history. This includes the following:
"He stated that he is visited by his parents in custody, who have made trips to the Junee Correctional Centre and in addition, he enjoys video visits with his current partner and their daughter aged 14 months. They have been together for the past four years; she is 27 years of age."
That is inconsistent with the other material I have read.
His education is discussed. The document continues at this point:
"Mr Da Silva has never married but has been in a relationship with a 27-year-old woman for the past four years. As noted, they share a daughter aged 14 months. His partner remains supportive of him."
This does not sit comfortably with what his mother provided upon information she said came from her mother. His drug and psychological history are analysed including the extensive drug use upon which he engaged, his use of cocaine beginning at 20 peaking at 3 to 4 grams of cocaine over a weekend period leading to sleep deprivation for up to two days at a time.
He described confused thinking, occasional auditory hallucinations, and poor impulse control when under the influence of cocaine. Cocaine use was his primary escalation for criminal conduct. He would obtain the drug on credit and eventually found himself in a position that he owed $2,000 to various suppliers. He stated that his paranoia, anxiety, and drug use escalated as a consequence in the setting of his self-medicating. It was in the context of his need to obtain money, coupled with his poor judgment that his offending behaviour occurred.
This does not sit comfortably with the facts as they are agreed. He engaged upon the clandestine acquisition of product as described. He involved an associate who was not participating in the criminality to make the pick-up and convey him back to the house or home. He had the presence to exculpate that person when the police confronted him. He understood his rights that he could have a lawyer or a friend with him at the time of any interview and he was aware that he could have a lawyer available to him before any of the investigative processes in which he was asked to take part were undertaken. The sophistication of the operation, including the ledger and what was contained on the phone, is difficult to reject in the circumstances notwithstanding the asserted claim of paranoia, anxiety, and drug use escalation up to the point of self-medicating.
On balance, I allow him the benefit of the doubt with regard to his drug use at the time and find that he clearly was a drug user. He appears to be so when one looks at the photograph on his antecedent report. I find the extent of it though nowhere near that which is asserted by the psychologist and do so notwithstanding the array of drugs including what are very addictive substances. He has been able to rid himself of the burden, gain employment within the gaol system and progress toward rehabilitation which appears upon the face of things to be well underway when I look at him on the screen today.
He is attributed with depression because he has not met his daughter. By that, with the following qualification in the same paragraph, is meant I find that he has not met her in person and he is keen to do so. He acknowledges that her family are in a strong position to provide support for her and the child in Western Australia to where she has gone.
There is reference to his parent's breakdown of their marriage. His employment history in gaol is discussed and the past sexual assault is once again revisited which is said to offer some explanation for his early foray into substance use and that he has struggled with emotions for many years because of that and the breakdown of his parent's marriage.
Upon examination by way of this telehealth facility, he acknowledged a spectrum of symptoms reflective of a depressive disorder, feelings of sadness, pessimism, and a sense of failure. He is experiencing anhedonia and has expectations of punishment. His self-esteem is low; he reports escalating agitation and a degree of irritability as his sentencing approaches.
He was administered the Beck Depression Inventory. It is not explained to me how that was done by way of a telehealth consultation. The psychologist offers the proposition that the testing confirmed his clinical impressions of a depressive disorder moderately occurring and then ultimately the opinion he has given reflecting the various commentaries to which I have referred.