Trejos v R

Trejos v R - [2017] NSWCCA 122 - NSWCCA 2017 case summary — Zoe

JUDGMENT

HOEBEN CJ at CL: Offences and sentence On 29 April 2016 the applicant was sentenced by Norrish QC DCJ for three offences of supplying a commercial quantity of a prohibited drug (cocaine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and one offence of knowingly deal with the proceeds of crime ($104,500), contrary to s 193B(2) of the Crimes Act 1900 (NSW). In relation to the drug supply offences, the maximum penalty is imprisonment for 20 years with a standard non-parole period of 10 years. In relation to the knowingly deal with proceeds of crime offence, the maximum penalty is imprisonment for 15 years.
The sentences imposed by his Honour were: Sequence 3 - commercial supply on 3 February 2015 - imprisonment for 7 years, commencing 23 February 2015 and expiring 22 February 2022, with a non-parole period of 4 years expiring 22 February 2019. Sequence 4 - commercial supply on 23 February 2015 - imprisonment for 7 years and 6 months, commencing 23 February 2015 and expiring 22 August 2022, with a non-parole period of 4 years to expire 22 February 2019. Sequence 7 - knowingly deal with proceeds of crime - a fixed term of imprisonment of 4 years, commencing 23 August 2017 and expiring 22 August 2021. Sequence 2 - commercial supply 16 September 2014 - imprisonment for 8 years and 6 months, commencing 23 August 2017 and expiring 22 February 2026, with a non-parole period of 4 years and 6 months to expire 22 February 2022.
It should be noted that attached to Sequence 2 was a Form 1 schedule containing two offences of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act.
The total effective sentence was therefore imprisonment for 11 years, commencing 23 February 2015 with a non-parole period of 7 years expiring 22 February 2022 and a balance of term of 4 years expiring 22 February 2026.
When the matter came before the Court the applicant sought leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), to appeal against the sentence. Ground 1 was not relied on. The remaining grounds were: Ground 2 - The judge took into account as an aggravating feature that the offences were committed without regard to public safety. Ground 3 - The sentences are manifestly excessive. Ground 4 - The sentencing judge erred in relation to the maximum penalty for each of the three offences of supplying not less than a commercial quantity of a prohibited drug. Factual Background
Strike Force Dufficy was initiated by the State Crime Command Drug Squad to investigate the importation and supply of prohibited drugs, namely cocaine, by a Colombian National, Jesus Arbey Mazo Hernandez, born May 1960 (Hernandez), and an Australian-Colombian, Francesco Javier Trejos born October 1976 (the applicant).
Between 16 September 2014 and 23 February 2015 the applicant communicated by text message, phone call conversation and in person with Hernandez for the sole purpose of discussing, arranging, negotiating and supplying prohibited drugs. Police had information indicating that the applicant was involved in the supply of prohibited drugs, namely cocaine, sourced from South America and imported into Australia. The applicant was the "up-line" supplier of prohibited drugs to Hernandez. Sequence 2
At about 5pm on 16 September 2014 a Holden sedan driven by the applicant was observed to drive to the residence of Hernandez in Canterbury. The applicant and Hernandez met for a short time. The applicant was observed carrying a white and red plastic bag. Following this meeting, the applicant left the area.
At about 6.45pm on the same evening, Hernandez was monitored and recorded as he met with the known person near Canterbury Railway Station. This meeting took place in the known person's vehicle. They then drove to Berna Street, Canterbury. Hernandez exited the known person's vehicle and walked into Berna Lane to the rear of a house. After a short time, Hernandez re-appeared and re-entered the known person's vehicle. During this meeting Hernandez was monitored and recorded supplying the known person with a white and red "The Reject Shop" plastic shopping bag, similar to the white and red plastic bag initially seen in the applicant's possession.
The shopping bag held a plastic container which in turn contained 500 grams of cocaine. The cocaine was analysed by the NSW Forensic and Analytical Service and found to weigh 499 grams with a purity of 67.5%. While the known person was inspecting the cocaine, Hernandez used his finger to obtain a minute amount of cocaine and administered it in the presence of the known person by snorting it and discussing the "power", "strength" and "purity" of the product.
The known person handed Hernandez $112,500 in exchange for the 500 grams of cocaine. Before the meeting concluded, both the known person and Hernandez discussed codes to be used when speaking on the phone so as to avoid police detection. The future supply of commercial and large commercial quantities of cocaine was discussed.
Communication between Hernandez and the applicant was captured via telephone intercepts. These indicated that Hernandez and the applicant arranged to meet immediately after the controlled purchase of 500 grams of cocaine. Hernandez gave the applicant some of the money which he had received. Sequence 3
On 3 February 2015 Hernandez was monitored and recorded meeting with the known person in the car-park of the Canterbury Ice Skating Rink. During this meeting Hernandez communicated with the applicant by mobile phone. The entire call was captured by way of telephone interception. Physical surveillance observed the applicant leave his unit and drive to the vicinity of Fore Street in Canterbury. Hernandez exited Fore Street and entered the applicant's vehicle.
A short time later, the applicant drove Hernandez to the vicinity of the Canterbury Ice Skating Rink and left him there. Hernandez was monitored and recorded meeting with the known person and supplying him with 500 grams of cocaine inside a "Clip Fresh" container which was within a plastic shopping bag. The cocaine was later analysed and found to weigh 498 grams with a purity of 70.5%. The known person handed Hernandez $94,500 in exchange for the cocaine.
Throughout this time, the applicant drove around the block and through several streets and laneways. At the conclusion of the meeting, the applicant picked up Hernandez and dropped him off in the vicinity of Berna Lane, Canterbury.
Between 11 December 2014 and 23 February 2015, a number of meetings between Hernandez and two known persons were monitored and recorded. During these meetings, Hernandez spoke at length about how he and the applicant were planning to import cocaine. Specifically, Hernandez stated that the applicant was organising for a coffee machine to be sent from either Argentina, Peru or Panama into Australia which would contain two kilograms of cocaine within it. Hernandez informed the known persons that if they could receive the coffee machine on behalf of the applicant, he would pay the known persons $30,000 for receiving it. Sequence 4
On 23 February 2015, the applicant was monitored picking up Hernandez from Fore Street, Canterbury. A short time later, the applicant and Hernandez drove to the Canterbury Ice Skating Rink, where Hernandez met with the known person. Hernandez supplied the known person with 500 grams of cocaine. The cocaine was later analysed and found to weigh 498.67 grams with a purity of 70.5%.
Immediately after Hernandez supplied the known person with cocaine on this occasion, both he and the applicant were placed under arrest. The applicant had been parked approximately 150 metres away from the Canterbury Ice Skating Rink. Sequence 5
Upon the applicant being cautioned, he indicated that there was "an ounce of cocaine in the glove box". Police searched the applicant's vehicle and located the ounce of cocaine in the glove box.
The applicant was conveyed to Campsie Police Station and was read Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The applicant participated in an electronically recorded interview, and made full admissions with respect to supplying a commercial quantity of cocaine over the course of several months. The applicant explained that he would receive $80,000 cash from Hernandez following each supply to him.
The applicant indicated that he was only involved with Hernandez for the purpose of conducting "business" and clarified that the term "business" referred to "drug dealing". The applicant made full admissions to sourcing, transporting, facilitating the supply and actually supplying prohibited drugs to Hernandez in various quantities in exchange for cash. Form 1 matters
Immediately following the arrest of the applicant, a search warrant was executed at his residence in Ashton Street, Rockdale. Police located a further 131.1 grams of cocaine hidden in a roof cavity within a bedroom of the premises. This and the cocaine found in the car were the basis for the Form 1 offences. Police located $104,500 in Australian currency inside a shoe box in the premises. This became Sequence 7.
During the electronically recorded interview, the applicant made admissions concerning the 131.1 grams of cocaine found within his unit as belonging to him, saying that he was intending to eventually sell it. The applicant said that at least $80,000 from the $104,500 located in the shoe box, were proceeds from the supply of prohibited drugs. Proceedings on sentence
His Honour noted that the two Form 1 offences, had they been prosecuted separately, each carried a maximum penalty of imprisonment for 15 years. His Honour accepted that the applicant had pleaded guilty at an early point in time and found that he was entitled to a discount of 25% as a result. The applicant gave evidence in the sentence proceedings.
In evidence the applicant agreed that he knew the cocaine was imported from South America and that he had an agreement to receive cocaine sent by a particular person that he knew and to sell the cocaine in Australia for the financial benefit, both of himself and that person. His Honour found that over the period of time covered by the charges, the applicant had a standing arrangement with Hernandez, that Hernandez would negotiate with others to purchase cocaine which the applicant could provide to him. The applicant would then receive a previously agreed sum from Hernandez when Hernandez had completed the supply transaction.
His Honour was not prepared to accept that the $104,500 in cash found in the shoebox was related to "criminal activity" other than that with which the applicant had been charged. His Honour found that he was unable to determine that question one way or the other and consequently, was not able to find that the Crown had established this fact beyond reasonable doubt.
His Honour found that the applicant had no convictions in New South Wales but did have a significant conviction in the United States. He was arrested in February 2004 and charged with offences variously described as conspiracy to possess with intent to distribute heroin, possession of one kilogram or more of heroin and importation into the United States of one kilogram or more of heroin. The applicant served a sentence of just over 6 years in relation to those offences and upon his release from prison, was automatically deported from the United States. His Honour was satisfied that the applicant was acting as a courier in relation to the US offences and that he committed that offence for money.
His Honour was not prepared to use that finding as an "aggravating factor" when considering sentence but did regard it as relevant because it disentitled the applicant to any leniency. His Honour regarded the offending in the United States as important because, like the present offences, it involved trafficking in prohibited drugs.
His Honour concluded that each of the commercial supply matters before him, fell within the middle range of objective seriousness for offences of this type. His Honour set out the elements of the offending which led to that conclusion. In each case the quantity of cocaine was substantially above the minimum required to prove the offence. There was no doubt that the applicant was the principal in Australia of the drug supply "network". In that regard, his Honour noted that the network only comprised the applicant and Hernandez. His Honour also took into account that the applicant had an arrangement with someone in South America to send him drugs.
His Honour found that the "network" was not sophisticated but very simple. The modus operandi was that the applicant would receive the prohibited drugs through the post, advise Hernandez who would then find a buyer and make the necessary arrangements with both the buyer and the applicant for the drug supply to take place. His Honour noted that the applicant was the up-line supplier and had an intimate knowledge of the arrangements which Hernandez was making with others, even if he did not know the identity of a particular purchaser.
His Honour concluded that the applicant's role in the distribution of the drugs was vital, not only because he was supplying the drugs to Hernandez but because he was the person who would collect the drugs when they arrived in Australia.
His Honour found that the applicant was to receive a substantial sum of money in respect of each drug supply with which he was involved. His Honour rejected the applicant's evidence that he would only receive $15,000 from each supply. His Honour found that the amount received by the applicant was greater, but he was not able to specify the actual figure. His Honour was satisfied that the applicant would receive a substantial profit from each drug supply. This led to the further conclusion by his Honour that the applicant was solely motivated by financial gain in committing these offences and that this was a matter which added to the objective seriousness of the offending. In that regard, his Honour found that s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 (NSW) had been made out. His Honour observed that as an aggravating feature in a drug supply case this was not a particularly significant finding because this was a usual motivation for those involved in drug supply.
Because the applicant did not have any drug dependency issues and was not a drug user, his Honour characterised the applicant as "a man who cynically was prepared to obtain a prohibited drug from a foreign country and to distribute it within this country for profit". (Sentence judgment, 14.4)
His Honour found that because the offending had occurred over a four - five month period, it was premeditated and considered. That having been said, his Honour did not regard the level of planning to be such as to take the matter beyond the sort of planning which is inherent in any drug supply scenario. His Honour concluded that there was no sophisticated planning in relation to these transactions and that they were relatively simple. Accordingly, his Honour was not prepared to conclude that planning was a relevant aggravating factor.
His Honour rejected a submission by the defence that the sentences for all of the supply offences should be concurrent. His Honour found that the transactions were quite separate and not part of the same general transaction.
In relation to the applicant's subjective case, his Honour made the following findings. The applicant had been born in Colombia but came to Australia at an early age. His family then took him back to Colombia in the late 1980's/early 1990's and he did not return to Australia again until 2000. He again returned to Colombia in 2003/4 and it was at that time that he became involved in importation of drugs into the United States. After serving his sentence in the United States, he made his way back to Australia. The applicant had been in a relationship in Australia for a number of years and was employed as a driver by the Uber organisation at the time of his arrest.
His Honour accepted that the applicant had generally been in employment while in Australia. His partner in Australia has remained supportive of him while he has been in custody.
The applicant admitted that he had committed the offences for financial gain in order to "make that extra dollar" and to support his family who were still in Colombia. He accepted responsibility for his actions.
His Honour was surprised that the applicant had been assessed as having a "low risk of reoffending" in the pre-sentence report. In that regard, his Honour said: "I have a great deal of difficulty accepting that as being possibly true. I find it impossible to believe that a person who first of all served six years, slightly more/slightly less, in a United States Federal prison for drug trafficking then came to Australia and then committed another serious offence of drug trafficking might be regarded at "low risk of reoffending"." (Sentence judgment 17.5)
His Honour noted that the psychological report provided little useful information and that the conclusion arrived at by the psychologist was that he did "not suffer a mental illness or any psychological disorder". His Honour noted that the applicant had a son from a marriage he entered into in 2002, who was aged 13 at the time of sentencing. That marriage broke up when the applicant was serving his sentence in the United States. The applicant had been planning to bring his son to Australia and in fact his son had arrived a month before the applicant's arrest. His son has now returned to Colombia.
By way of further background, his Honour noted that the applicant's father was a person who had started life as an unskilled labourer and truck driver. He had then gone into business and owned a café. Ultimately his father had gone into the money lending business in 1994/1995 but was murdered in 1995 apparently over a money lending issue.
His Honour accepted as a general proposition, that Colombia was a country of violence and of great poverty and that many people are driven into trafficking with drugs because of poverty or "economic necessity". The applicant offered that as an explanation for why he had engaged in drug trafficking into the United States.
His Honour accepted that the applicant came from a generally hardworking family but that he had experienced a number of disadvantages during his formative years. He suffered a physical injury to his arm as a child which had never properly resolved. He continues to have some disability in that regard. His education, both in Colombia and in Australia, was limited. The applicant had always seen Australia as providing him with better opportunities than Colombia.
Despite having regard to those matters, his Honour concluded that none of the challenges faced by the applicant during his upbringing in Colombia excused his criminal conduct in Australia. His Honour was prepared to accept that it might explain the circumstances in which he was recruited to engage in drug supply while in Australia.
There were testimonials before the court from the applicant's partner, who spoke of his positive qualities as a father and husband. There was another testimonial from the applicant's mother who also spoke of him in glowing terms and which set out her wish that he might "turn his life around" and "correct his mistakes".
His Honour accepted that the applicant had shown remorse and had taken responsibility for his actions. His Honour considered that the plea of guilty supported that finding. While his Honour found that the applicant had good prospects of rehabilitation, he was not prepared to find that the applicant was unlikely to reoffend.
His Honour had regard to the maximum penalty and the standard non-parole period as guideposts when considering sentence. His Honour noted, however, that these matters had to be taken into account with all of the other factors to which reference has been made. His Honour considered that totality was an important consideration in the exercise of the sentence discretion. His Honour therefore had regard to Pearce v The Queen [1998] HCA 57; 194 CLR 610 and Mill v The Queen [1988] HCA 70; 166 CLR 59. On the issue of totality, his Honour said: "I have concluded ultimately that in respect of the offences for which I will be required to impose appropriate sentences that I should make the sentences in relation to sequence 4 and sequence 3 concurrent, one with the other, and I should make the sentences in relation to sequence 2 and sequence 7 concurrent one with the other to give effect to the totality of criminality." (Sentence judgment, 23.9)
His Honour was not prepared to find that the offending amounted to participation in "organised crime". This is because of the simplicity of the modus operandi and the limited nature of the "network".
In relation to whether the offences were committed "without regard to public safety", his Honour said: "In relation to the matter, it was also a matter where the drug supply offences were committed without regard to public safety. Of course, this is not a significant aggravating factor. It is to be pointed out as I have said that police intervened and obtained the drugs before they could be on sold to the public. But the prisoner had no regard to that fact. Because he was not aware of that. As far as he was concerned, for substantial sums of money, he was selling a drug, the character of which he well knew, with the expectation that it would go to the community. Hence there would be buyers who would be prepared to provide him with the sums of money that he ultimately obtained. There are no other relevant mitigating or aggravating factors to identify." (Sentence judgment, 25.9 - 26.3)
His Honour found special circumstances because there would be some accumulation of the sentences and because the applicant would need professional assistance to adjust to community living over a considerable period of time once he was released.
His Honour had regard to the two offences on the Form 1 and noted that greater weight should be given to the need for personal deterrence and the community's entitlement to extract retribution when sentencing for Sequence 2, which was the offence in respect of which the Form 1 matters were to be taken into account. THE APPEAL Ground 2 - The judge took into account as an aggravating feature that the offences were committed without regard to public safety.
The applicant submitted that his Honour erred in finding that the aggravating factor in s 21A(2)(i) of the Sentencing Act had been made out. This was because lack of regard for public safety was inherent in the offence of the commercial supply of cocaine. For that section of the Sentencing Act to be made out, it was necessary for his Honour to identify some additional circumstances of these offences which would sufficiently take them out of the ordinary so as to permit such a finding to be made.
On that issue, the applicant relied upon Mansour v The Queen [2011] NSWCCA 28; 209 A Crim R 275 where Price J (James and Hall JJ agreeing) said: "46 It is well established that a factor should not be taken into account as an aggravating factor under s 21A(2), if it is either an element of the offence for which the offender is being sentenced or an inherent characteristic of that kind of offence: see for example Elyard v Regina [2006] NSWCCA 43; Ward v R [2007] NSWCCA 22; 168 A Crim R 545. A factor, which is an inherent characteristic of the kind of offence for which the offender is being sentenced, cannot be taken into account as an aggravating factor under s 21A(2), unless its nature or extent in the particular case is unusual. As Simpson J observed in Regina v Yildiz [2006] NSWCCA 97; 160 A Crim R 218 at [37]: "... But this principle does not mean that the degree to which the 'inherent characteristic' exists in relation to a particular offence may not, where it exceeds the norm, be taken into account as an aggravating factor." 47 A failure to have regard for public safety is not an element of an offence of ongoing drug supply. The question then to be answered is whether a failure to have regard for public safety is an inherent characteristic of the offence of ongoing supply of cocaine contrary to s 25A(1). In Ward , Howie J (with whom I agreed) pointed out at [28] that although Regina v Way [2004] NSWCCA 131; 60 NSWLR 168 at [172] is authority for the proposition that on a charge of supplying drugs an aggravating factor may be that the offence was committed without regard for public safety, the Court was not asked to consider whether acting without regard for public safety was an inherent characteristic of some offences of supply and, therefore, ought not to be considered as a separate matter of aggravation. 48 Basten JA's judgment in Elyard, which was accepted by the members of the Court in Ward, provides a helpful analysis as to how a conclusion might be reached that "without regard for public safety" is an inherent characteristic of an offence. His Honour considered at [15] that a failure to have regard for public safety is an inherent characteristic of an offence of deemed supply of heroin. His Honour said at [12]: "It appears from the cases that the factor which has given rise to significant difficulty is para (i) dealing with offences committed "without regard for public safety". There has been limited consideration as to whether this factor involves an objective, or subjective test, and if subjective, what level of conscious or reckless disregard is required on the part of the offender. It may well be that this factor should be understood as encompassing both objective and subjective circumstances. However, the distinction can be helpful in order to avoid the danger of double-counting. Where the offence is of a kind which, objectively or abstractly, reflects a policy of prohibiting conduct which disregards public safety, it will be necessary, in order to engage the aggravating factor, to find some aspect of the specific conduct in question which goes beyond the objective element or underlying policy." (Italics added)" 49 An offence of supplying cocaine on an ongoing basis requires an offender to supply the prohibited drug on three or more separate occasions during any period of 30 consecutive days. I do think, adopting the language of Basten JA, in the passage quoted in the preceding paragraph, that the offence is of a kind which objectively reflects a policy of prohibiting conduct which disregards public safety. It seems to me that a failure to have regard for public safety is an inherent characteristic of the offence of ongoing supply of cocaine. I also think that it is an inherent characteristic of the offence of actual supply and deemed supply of that prohibited drug. 50 It follows that the sentencing judge could not take into account this inherent characteristic as an aggravating factor unless its nature or extent went beyond what ordinarily might be expected. …"
The applicant submitted that in relation to each of the commercial supply offences, there was nothing about the circumstances of the offending which "went beyond what ordinarily might be expected". There were no factors which could support such a finding. The applicant submitted that his Honour erred when he took "disregard of public safety" into account as an aggravating factor. This was so even though his Honour said it was "not a significant aggravating factor". It was clear that his Honour took it into account. Consideration
It is well established that an aggravating factor under s 21A of the Sentencing Act cannot be taken into account if that factor is already an element of the offence (R v Tuala [2015] NSWCCA 8). Further, a factor which is an inherent characteristic of the kind of offence for which the applicant is being sentenced cannot be taken into account as an aggravating factor under s 21A(2) unless its nature or extent in a particular case is unusual.
It is clear that the three commercial supply offences, and in particular Sequence 2 which is the index offence, were not of such a nature and extent so as to engage the aggravating factor contemplated by s 21A(2)(i). Although his Honour did not regard it as a "significant aggravating factor", it is clear that he did have regard to it. It follows that error has been demonstrated and this ground of appeal has been made out. Ground 3 - The sentences are manifestly excessive.
In view of the findings in respect of Grounds 2 and 4, there is no need to further analyse this ground of appeal. It should, however, be noted that the applicant's submissions in respect of this ground of appeal, both in writing and orally, have been taken into account when considering the issue of resentence and whether a lesser sentence is warranted in law. Ground 4 - The sentencing judge erred in relation to the maximum penalty for each of the three offences of supplying not less than a commercial quantity of a prohibited drug.
The applicant noted that offences contrary to s 25(2) of the Drug Misuse and Trafficking Act carry a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. In his sentence judgment his Honour said: "Each of those offences, contrary to s 25A(2) Drug Misuse and Trafficking Act 1985, carries a maximum penalty of 25 years' imprisonment and/or a pecuniary penalty of 3,500 penalty units. …" (Sentence judgment, 1.7)
The applicant submitted that his Honour clearly misstated the maximum penalty for the three supply offences. Even though his Honour did not again refer to the maximum penalty in his sentence judgment, it must have had an influence upon the sentences ultimately imposed given that the maximum penalty is an important guidepost to be taken into account by sentencing judges. Consideration
Plainly his Honour misstated the maximum penalty for the three supply offences. Even though the issue of the maximum penalty was not again referred to before sentence was imposed, it has to be accepted that an extraneous factor was taken into account. This being so, error has been established. Because of this and the error identified in Ground 2, it is necessary for the Court to exercise its own independent discretion in determining the appropriate sentence (Kentwell v The Queen [2014] HCA 37; 252 CLR 601; Lehn v R [2016] NSWCCA 255; Potts v R [2017] NSWCCA 10). Resentence
None of the factual findings by his Honour was challenged therefore this Court is able to rely upon those findings. What was challenged was the length of the sentences on the basis that statistics provided by the Judicial Information Research System (JIRS) indicated that the sentences imposed were very high. The applicant relied upon a cohort of 47 offenders who had pleaded guilty to supplying a commercial quantity of cocaine where only eight received a sentence of 7 years or more for the principal offence and only six received a non-parole period of 4 years or more. The applicant submitted that despite the limitations of statistics, they provided an indication that in this case lesser sentences may be warranted.
In addition to the general statistics, the applicant relied upon a schedule of cases where the facts were similar to those presently before the Court to substantiate the effect of the JIRS statistics. The applicant submitted that these cases showed that the sentence imposed for the offence of knowingly deal with proceeds of crime imposed by his Honour (a fixed sentence of 4 years) was much higher than previous sentences imposed for that offence. The applicant submitted that in accordance with the JIRS statistics, only six out of 64 offenders received a sentence of 4 years and none received a non-parole period of more than 3 years. The applicant submitted that a survey of the cases to which he referred showed that sentences in the order of 4 years and above were only imposed in cases involving much larger sums of money and/or elaborate schemes involving money laundering.
In relation to the commercial supply offences, the applicant relied upon a schedule of 12 cases in which the facts were similar to those presently before the Court and where the sentences imposed were less than those imposed by his Honour. The applicant submitted that these cases provided substantial support for the proposition that the JIRS statistics do show a sentencing pattern and that the sentences imposed in this case were in excess of that range.
The applicant submitted that not only the individual sentences but the overall sentence of 11 years with a non-parole period of 7 years was also excessive and on resentencing, a lesser sentence should be imposed. Consideration
Given his Honour's finding that he was not satisfied that the proceeds of crime moneys came from supply offences, other than those with which the court was concerned, a substantial amount of concurrency, if not full concurrency, would be an appropriate outcome when sentencing for this offence. Accordingly, the sentence for that offence would not play a significant part in the resentencing process. The important consideration is the treatment of the commercial supply offences.
In that regard, the parties agreed in this Court that his Honour's assessment of the offences being midrange for offences of this kind was appropriate. While that agreement does not bind this Court, in my independent assessment of the objective seriousness of the offending, I would agree with that characterisation of each of the commercial supply offences.
Other matters which I have taken into account are:

The quantity involved in each of the three supplies was twice the commercial quantity referable to that prohibited drug.
The applicant's previous offending in the United States disentitled him to any leniency in relation to these offences.
The applicant's role in relation to each of the supply offences was vital and he was the principal in Australia, albeit that the network was relatively small and that the modus operandi was simple. What is beyond dispute is that the applicant was in charge of an effective system whereby quantities of prohibited drugs sourced from overseas were supplied in Australia.
The offending was committed over a four to five month period and was both premeditated and considered.
Each of the supply offences was quite separate from the other with a significant temporal interval between them so that they could not be considered as part of a single transaction.
The applicant's motivation was entirely based upon financial gain and was not driven by any addiction or drug dependency.
General and specific deterrence remain important considerations.
The applicant's subjective case was modest and comprised the following: 1. He had endured some hardship while growing up as a result of the periods of time his family spent in Colombia and because his father had been murdered in 1995. 2. He was remorseful and had good prospects of rehabilitation but it could not be said that there was a low risk of him reoffending, given his history. 3. His behaviour in prison had been generally good although he had incurred some institutional misconduct charges.

Taking those matters into account on resentencing, I would impose a measure of concurrency between each of the commercial supply offences but also an amount of accumulation, keeping in mind the separate nature of the offending and that each subsequent supply offence was to be regarded as more serious than the one which preceded it.
The 12 commercial supply cases, relied upon by the applicant as indicating "manifest excess", do not lead me to alter that assessment. On the contrary, a close examination of those cases makes it clear that they are of only limited value. The various factors in each case influenced the determination of objective seriousness and no case is truly comparable. In particular, the applicant was not motivated by a drug or gambling addiction, nor was he a young applicant as were many of the protagonists in those cases.
All but two of the twelve cases relied upon involved single instances of commercial supply of cocaine, not multiple offences such as we have here. In some cases there was a substantial discount for assistance to police. In other cases the amount of drug supplied was significantly less than here. In other cases the share of profits by the offenders was significantly less than that of the applicant. Some of the offenders had very strong subjective cases, including mental illness. Some of the offenders occupied much lesser positions in the supply hierarchy than did the applicant here. Some offenders had no previous criminal antecedents.
In one of the two cases where there were multiple offences, the applicant was a juvenile who was also addicted to drugs and whose position was that of a courier (Regina v CN [2001] NSWCCA 100). In the other multiple supply case, the applicant had a significant gambling problem and a significant drug addiction. He also had the benefit of a substantial discount for assistance to the authorities.
As was said by Adamson J (with whom Simpson and Davies JJ agreed) in Dang v R [2014] NSWCCA 47: "55 Care must be taken in drawing direct comparisons between sentences passed, those to be passed and those which are, or have been, the subject of appeal: see generally, Hili v The Queen; Jones v The Queen [2005] HCA 45; 242 CLR 520 at [53]- [56] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. Sentencing requires the exercise of discretion. The factors that are germane to the exercise of the discretion include deterrence, both general and specific, rehabilitation and punishment. The exercise of the discretion requires consideration of objective circumstances (the seriousness of the offending conduct) as well as subjective circumstances pertinent to the offender. The number of factors to be taken into account as either mitigating or aggravating under s 21A of the Crimes (Sentencing Procedure) Act 1999 provides an indication of the complexity of the exercise and the concomitant difficulty of identifying "comparable cases". Although it is orthodox for such cases to be identified for the benefit of the sentencing judge, they can be no more than a guide."
In Skocic v R [2014] NSWCCA 225 Bellew J (with whom Macfarlan JA and Fullerton J agreed) said: "19 The principal submission made on behalf of the applicant was that a conclusion of manifest excess should be reached solely by reference to sentencing statistics. That submission misunderstands, and overstates, the use to which statistical material can be put on sentence. In MLP v R [2014] NSWCCA 183, with the concurrence of Macfarlan JA and Adamson J, I had occasion to make a number of observations (commencing at [41]) regarding this issue. Those observations included the following: (i) consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles: Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [48]-[49]. (ii) sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion but stand as a yardstick against which to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323 at [41]; (iii) the presentation of sentences passed in the form of numerical tables and graphs is of limited use: Hili (supra) at [48]. This is because reference to the lengths of sentences passed says nothing about why the sentences were fixed as they were; (iv) this Court has emphasised the need to adopt a careful approach when asked to have regard to statistics: R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J, Beazley JA (as her Honour then was) and Johnson J agreeing. A similarly careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing. The need to take care in each instance arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another; (v) the fact that a particular sentence is, by reference to statistics, the highest imposed for a single instance of particular offending does not demonstrate that the sentence is unduly harsh. As a matter of common sense, there will always be one sentence which constitutes the longest sentence imposed for particular offending: Jolly v R [2013] NSWCCA 76; 229 A Crim R 198 at [75]."

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Legislation Cited (5)

Cases Cited (26)

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