Regina v Jose Israel Ochoa Villa

The offender's evidence in the sentence proceedings

1. The offender gave evidence before me on 19 October 2017 and was cross-examined. His evidence can be summarised as follows.
2. The offender gave evidence that he told the psychologist the truth and that he had written the letter to the Court in his own words.
3. He described himself as drug dependent at the time of the offence. He was using about 1 gram of cocaine every second day for about one year prior to his arrest.
4. The offender travelled to the United States and Mexico with Ms Bibby before returning to Australia on 15 September 2016 when he was arrested. They travelled to Los Angeles, before he went to Las Vegas for a few days. Ms Bibby remained in Los Angeles. The offender returned to Los Angeles before travelling to Mexico with Ms Bibby. They left luggage at the hotel in Los Angeles before travelling to Mexico. On the night before they were due to travel to Mexico, the offender noticed the champagne bottles in room. He picked one of them up and started to open it. The adhesive label that secured the foil over the cork was partially off. He took hold of the label to remove all of the foil and the label. As he was doing so, Ms Bibby told him to stop saying, "we don't have time to drink it, we have to go to dinner". The offender left the bottle on the table where he had found it and did not see the bottles again.
5. At dinner the offender and Ms Bibby had an argument over some photographs on his mobile phone. When they returned from dinner he put his dirty clothes in his suitcase to leave at the hotel and his clean clothes in his backpack, to take to Mexico. The bottles were packed into the suitcase. At that time he did not know that the bottles contained cocaine.
6. At the airport in Los Angeles, after they had checked in and cleared security, Ms Bibby told the offender that she had put some cocaine in his suitcase. He did not know how much or how it was packaged. He assumed it was the cocaine that they had been using or that she had sourced for their future use. He did not receive any financial reward, or expect to do so.
7. The offender described the offence as a big mistake. He gave evidence that he feels terrible and ashamed for committing the crime. He has done damage to his family and friends and the community, but especially his daughter who came to live with him to have a better life in Australia.
8. He has seen the damage that drugs cause in the community as well as in custody. He was assaulted by a cellmate who was under the influence. He suffered a broken nose that has resulted in some facial disfigurement. I noted the extent of the disfigurement when he was giving evidence.
9. The offender has been working whilst in custody in the furniture shop as well as a wing sweeper, which is a position of some responsibility.
10. When he is released from custody he wants to spend more time with his daughter. He intends to get a job and a house and to help her continue with her education. He has not used drugs in custody does not intend to do so in the future. He is eager to get assistance with drug rehabilitation when he is released.
11. His mother-in-law, Jenny Carlin has visited him in custody and has helped him a lot. She has provided role support and someone to talk to as well as assistance with looking after his family. She has acted as a conduit for correspondence between the offender and his family in Mexico.
12. His daughter is living with a friend of his in Perth. She is studying and working. He has known that friend for about 4 to 5 years.
13. In cross-examination he denied that he knew that the bottles contained cocaine. He denied being present when the cocaine was placed into the bottles and being responsible for fixing the labels that covered the foil. He denied knowing that Ms Bibby had placed a large quantity of cocaine in his suitcase.

Psychological Report

1. The offender tendered a report of by Ann Marie De Santa Brigida (the psychologist) dated 9 October 2017. The report was prepared after the psychologist met with the offender for the purposes of preparing the report on 2 occasions at the Long Bay Prison Hospital. The report can be summarised as follows.
2. The offender was born in Mexico and has a daughter who is currently 19 years of age and is the eldest of 2 children. His parents and brother are resident in Mexico.
3. His parents separated at age 11 and he experienced some difficulties in choosing who to live with. The offender decided to live with his mother, who subsequently formed at least 3 de facto relationships and he had some difficulty in adjusting to his mother's partners. He ran away from home at age 16 and lived with his aunt.
4. At age 20 he began a relationship, in Mexico and had one child, a daughter named Pamela. In 2014, he arranged for Pamela to come to Australia and live with him and she was still doing so at the time of the offence.
5. In 2005 he met an Australian woman named Sally in Mexico. They married and came to live in Australia; first in Canberra and then Perth. Sally worked as commercial lawyer. The marriage ended in 2011 and the divorce finalised in 2012. They did not have any children. The offender remains close friends with his former mother-in-law, who continues to support him.
6. The offender completed his education in Mexico to the equivalent of the HSC. After leaving school the offender stated that he worked as a waiter in Mexico for about 3 or 4 years while attending open education at college, a pre-university course, but did not attend university. After that he lived in Canada for about 3 years and completed an apprenticeship in cooking to become a qualified chef. In Australia he began working as a chef in Canberra from 2005 to 2007 and then as a floor manager from 2007 to 2009.
7. The offender moved to Western Australia in 2010 and operated his own coffee van until about 2012 when he opened his own restaurant. The offender operated this restaurant until 2014 when he brought his daughter Pamela to live in Australia. He stopped work in order to build a relationship with his daughter, telling the psychologist that he had been absent for most of her life and wanted to take the time to develop a close bond with her.
8. The offender began experimenting with cannabis at 14 or 15 years of age and continued to smoke an average of 1 joint at least once, sometimes twice a week. He first tried alcohol at 15 years of age as it was very much a part of the hospitality scene and would consume 1 to 3 beers or tequila 5 nights per week.
9. The offender met Ms Bibby in June 2015. She was aged 31 at the time. She had a history of substance abuse and he began using cocaine with her regularly. He initially had 0.5 gram of cocaine at least twice a week, but this quickly progressed; escalating and spiralling out of control to the point where the offender was averaging 1 gram per day, usually in Ms Bibby's company.
10. The offender told the psychologist that his relationship with Ms Bibby was a destructive one, stating that he felt controlled and that he did not have a say in the relationship. It was during the holiday to the USA and Mexico that he decided to end the relationship once they returned to Australia. The offender stated that he felt like his life was spiralling out of control in relation to his substance abuse. The offender stated that his alcohol use between about February 2016 until his arrest in September 2016 also escalated. He told the psychologist that he was consuming a bottle of Scotch whisky every 2 to 3 days.
11. The offender started gambling at age 36 at the races and at age 39 began to play poker. The offender stated that his gambling was not a problem and that he would gamble and place a bet with a specific amount of money and then return home if he lost.
12. The psychologist noted that the offender had good insight into what needs to be done to help with his recovery for alcohol and substance abuse. The offender told the psychologist that he does not want to return to work in the hospitality and food industry as this is associated with increased alcohol consumption, linking the beginning of his alcohol abuse to staying back after work and having a drink with his colleagues. He has a friend in the building industry who has offered the offender employment as a concrete pumper upon release from custody.
13. The offender has been the victim of an assault while in custody. The offender told the psychologist that when he was housed at the Goulburn Correctional facility, his cell-mate became agitated and head butted the offender, breaking his nose in the process. The offender spent some time in hospital after this incident. The offender denied any symptoms of posttraumatic stress disorder, but did tell the psychologist that he now feels hyper vigilant against the potential for further assaults.
14. The offender has not had any conduct charges whilst in custody.
15. The psychologist concluded that the offender has a long history of alcohol abuse which began when he commenced working in the restaurant and hospitality industry in Mexico.
16. The psychologist opined that the offender posed a low to moderate risk of recidivism, and that the offender did have protective measures in place to protect him from the factors that led to the offending conduct, including the support he has from his daughter, his friends, his former mother-in-law and his expression of remorse.
17. The psychologist noted that he has been isolated from his daughter and his friends whilst incarcerated in New South Wales.

Letter from the Offender

1. The offender tendered a letter to the court dated 11 October 2017. In that letter he expressed contrition and remorse for his conduct as well as shame and disappointment for letting down his friends and family, especially his daughter who he arranged to come and live with him to seek a better life in Australia.
2. The offender characterised his relationship with Ms Bibby as unhealthy and destructive.
3. The offender described the period leading up to his arrest as a dark period in his life, and that his lifestyle led him away from his daughter.

Letter from Pamela Ochoa

1. The offender tendered a letter from his daughter, Pamela Ochoa. Ms Ochoa is presently 19 years of age and was born in Mexico. The offender and her mother separated when she was quite young, with only sporadic contact with the offender. From the age of 10, she re-established contact with her father when he was living in Canada and after he migrated to Australia. In 2014 Pamela migrated to Australia where she re-commenced her schooling. The offender is the only family member she has in Australia. He was her only means of care and support. She now resides with an adult friend of the offender. She was entirely financially dependent on the offender, and relied on him for transport and other assistance.
2. Ms Ochoa noticed a marked change in the offender when he began and during the course of his relationship with Ms Bibby. To her observation he was not the same person. Ms Ochoa knew of the offender's cannabis use but was not aware of his cocaine habit. Ms Ochoa stated that she did not think the relationship with Ms Bibby was positive as she would take the offender out to bars, nightclubs and the casino; all things that he did not do before meeting her. Ms Ochoa believed she was having a bad effect on the offender and that his relationship destroyed the only family she has in this country. Ms Ochoa stated she is now completely alone.
3. Ms Ochoa says that the offender is ordinarily an honest, hardworking and caring person. This is supported by other family members in Mexico, Canberra, Perth and Canada.
4. When the offender was arrested, Ms Ochoa was responsible for packing up the flat they resided in and finding a place to live. She has limited personal contact with the offender, visiting him a total of 4 times in person. They speak almost daily over the telephone.
5. Ms Ochoa believes that the offender is back to his old self, before becoming involved with Ms Bibby and notes he has expressed remorse to her for the offence.

Letter from Jenny Carlin

1. Ms Carlin is the offender's former mother-in-law. The offender met Ms Carlin's daughter whilst she was travelling and studying in Mexico in about 2002. Ms Carlin's daughter formed a relationship with the offender and moved to Montreal, with him.
2. Ms Carlin states that the offender was always positive, well mannered, encouraging, and caring. The offender was always employed in the restaurant or hospitality industries. Ms Carlin and the offender remained close after the offender and her daughter separated and subsequently divorced. Ms Carlin also separated from her long-time husband at about the same time, and this shared experience drew them closer. She continues to hold the offender in high regard.
3. Ms Carlin lives in Canberra and has visited the offender in custody. The offender admitted his guilt to Ms Carlin in the offence. Ms Carlin was not aware of the extent of the offender's drug use, both before and after meeting Ms Bibby, but remains supportive of him. She believes he is a good person. Ms Carlin has arranged clothing for the offender to wear at his court appearances, visits by mutual friends and assisted his daughter, who resides in Perth to visit the offender in custody.

Letter from Melanie Murray

1. Ms Murray is a friend of the offender who resides in Perth. They met through Ms Murray's sister and became friends independently. Ms Murray holds the offender to be a loyal, trustworthy and supportive friend, having helped her through times of significant difficulty in her life.
2. Ms Murray noticed the effect that the relationship with Ms Bibby was having on the offender, the changes in his behaviour and his overall wellbeing. Ms Murray describes the relationship with Ms Bibby as tumultuous, destructive and difficult.
3. The offender expressed his guilt and remorse to Ms Murray for the offence and she notes that it occurred in a time when the offender was involved in heavy alcohol and drug use, was under some stress associated with the sale of his restaurant as well as issues with his landlord; however Ms Murray believes the offender is still the same person and will continue to support him in the future.

Letter from Justin Eeles

1. The offender tendered a letter from Mr Eeles. Mr Eeles met the offender in 2007 when he settled in Canberra and was working in a restaurant owned by a friend of his. Mr Eeles states that he has always known the offender to be an honest, hardworking and sincere person, never afraid to work long hours and keen to break the habits of a life of poverty in Mexico.
2. Mr Eeles attested to the offender's financial problems in Perth, following the loss of money invested online as well as the sale of his restaurant and associated legal problems surrounding the lease. Mr Eeles has always known the offender to consume alcohol, but was surprised to learn about the offender's cocaine use and escalated alcohol consumption.
3. Mr Eeles has visited the offender since he went into custody and has noticed the positive turnaround and improved attitude that he has demonstrated. Mr Eeles notes the offender has expressed remorse for his offending behaviour, that he regrets his poor past decisions, especially his drug use. Mr Eeles nots the offender is a good person and that on release, the offender has expressed interest in becoming involved in the internet delivery industry.

Letter from Amber King

1. The offender tendered a letter from Ms King which stated that she was aware of the offence for which he is before the court. Ms King met the offender in 2010 when they both played soccer for the same club in Perth. During her marriage breakdown, Ms King states that the offender went out of his way to provide support which she found to be valuable; they would meet up to 2 times each week, speak regularly and socialise within the same group of friends.
2. Ms King states that she considers the offender to be a kind, caring, fun-loving, placid and supportive person and friend. She noticed the difference in the offender's behaviour when he began the relationship with Ms Bibby, seeing him become a regular drug user and be attracted to the lifestyle associated with that habit. Ms King noted that the relationship was less than stable, often marred by erratic behaviour and outbursts, embarrassment and what Ms King believed to be cries for attention from Ms Bibby. Ms King is of the view that the offender was manipulated by Ms Bibby into becoming involved in the offending behaviour.
3. Ms King notes the divide that came to exist between the offender and his daughter during this relationship, but points out that things between them have since mended. Ms King has seen changes in the offender since his arrest, in that he has returned to his positive self and is actively planning for his future.

Sentencing principles

1. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.
2. A court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply to the sentencing of federal offenders: Johnson v The Queen (2004) 78 ALJR 616 at [15].

Objective seriousness of the offences

1. The offender acted as a carrier of the drugs through customs in Sydney. He was aware of the presence of the drugs in Los Angeles airport, but he did not have access to his suitcase at that time to understand how the drugs were packaged or what quantity of drugs there was. The offender did not have the opportunity to dispose of the drugs prior to his arrival in Australia. The offender falsely completed his incoming passenger card. There was no real planning on behalf of the offender. The offence was not committed for financial gain, but the offender expected to share in the use of the drugs.
2. The market able quantity of cocaine is 2 grams and the amount of the drug was 331 times that quantity.
3. The Crown contended that the presence of the offender's thumb prints on the adhesive label that secured the foil to the glass was evidence that the offender knew of the presence of the cocaine, that he was present when the cocaine was put into the bottles and that the offence was committed for financial gain. I am not satisfied beyond reasonable doubt of any of those matters. First, I accept the offender's evidence that he did not know that the bottles contained cocaine and that he had an exculpatory explanation for handling them. Second, it is unlikely that he would have remained waiting for Ms Bibby after clearing Customs and that he would have made enquires with the AFP if he had known that he was carrying the cocaine in the bottles.
4. The offence is in the low range of objective seriousness.

General deterrence

1. General deterrence is a fundamental consideration to a drug importation offence. The sentence must be of such severity to deter others from engaging in activities to smuggle prohibited goods into Australia. The sentence must signal to would be smugglers that the financial rewards will be neutralised by the risk of severe punishment. Involvement in drug importation must attract a custodial sentence otherwise the interests of general deterrence are not served.

Specific deterrence

1. There is some need for specific deterrence although it is significantly reduced. The offender has excellent prospects of rehabilitation. He has been compliant in custody and taken the opportunities to work that have been provided to him. He has strong family ties, the support of a close knit network of friends; he is dedicated to assisting and providing for his daughter and has opportunities for work on his release from custody. He has ceased drug use, but requires treatment to assist him to avoid drug addiction in the future.

Other matters

1. The offender is presently 41 years of age. He does not have any prior convictions of relevance and has no significant health concerns. He has received some facial disfigurement as a result of an assault whilst in custody.
2. The offender has expressed remorse and contrition to the psychologist and to the Court. He has also expressed remorse to his character referees, which I accept as genuine.
3. The offender has good prospects of rehabilitation for the reasons I have already stated.
4. The offender pleaded guilty. For Commonwealth offences the Court must consider the offender's willingness to facilitate course of justice and not the utilitarian value of the plea of guilty: Cameron v The Queen (2002) 209 CLR 339 at [14]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]-[28]. That enquiry may reveal whether the plea was a recognition of the inevitable or truly motivated by willingness to facilitate the course of justice: Lee v R [2012] NSWCCA 123 at [58]. The Crown case was a strong one. The offender's plea has saved the need for witnesses to be called at trial and that can be taken into account: Cameron at [79]. I am satisfied that the offender's plea was an acceptance of responsibility for his actions and was motivated by a willingness to facilitate the course of justice. The appropriate discount is 25%.
5. I am satisfied that this is an exceptional case and that I should consider the probable effects of his incarceration on his daughter. The offender's daughter was raised in Mexico and brought to Australia by the offender in order to provide her with better opportunities. She arrived at age 16 and was totally dependent on the offender. As a result of his arrest she took responsibility for packing their belongings, storing them and finding another place to live. She has been taken in by one of the offender's friends whom he has known for a relatively short period of time. The offender's daughter has no other means of support in Australia and is presently reliant on charity and her own initiative. Whilst she has proven herself to be resourceful, she is in a vulnerable position and it is likely that her opportunities to study and find employment are being restricted. Taking into account the low degree of criminality in the offence it is appropriate to afford some limited mitigation referable to the probable effects of the offender's incarceration on his daughter.
6. I have also taken into account that the offender has suffered some isolation whilst in custody in New South Wales, awaiting this matter to be finalised.

Penalty

1. I have had regard to section 17A(1) of the Act and I am satisfied that after having considered all other available sentences that no other sentence other than a sentence of imprisonment is appropriate in all the circumstances of this case. The reasons for this decision are that: 1. the offence committed is objectively serious; 2. there is a significant need for general deterrence; 3. there is some need for specific deterrence; 4. there is a need for denunciation of the offending conduct; and 5. the subjective considerations relating to the offender are necessarily subsidiary to the duty of the Court to ensure that he is given a punishment of appropriate severity.
2. The offender is convicted.
3. The offender is sentenced to 3 years and 9 months imprisonment to date from 15 September 2016 and expiring on 14 June 2020. I impose a non-parole period of 1 year and 6 months commencing on 15 September 2016 and expiring on 14 March 2018 on which date you are to be released to parole.

Explanation of sentence

1. I am obliged to explain to the offender the effect of the orders I have made.
2. Jose Israel Ochoa Villa, the sentence I have imposed means that you will be obliged to spend a minimum period in custody of 1 year and 6 months. Having regard to the time you have already spent in custody, you will be eligible for release on parole on 14 March 2018.
3. It will be a matter for the Attorney General as to whether you will be released on that day. It may depend upon your behaviour in prison. It will also be a matter for the Attorney General to determine whether any conditions should apply to you while you are at conditional liberty on parole after 14 March 2018. If you are released on that day, you will remain on parole for a further period of 2 years and 3 months. If you were to breach your parole, you may be required to return to prison to serve the balance of the term of your sentence.

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: 12 December 2017