R v Luiz Diego Mouzinho de Lima [2020] NSWDC 249

District Court New South Wales

Medium Neutral Citation: R v Luiz Diego Mouzinho de Lima [2020] NSWDC 249 Hearing dates: 22 May 2020 Date of orders: 28 May 2020 Decision date: 28 May 2020 Jurisdiction: Criminal Before: Noman SC DCJ Decision: The offender is convicted and sentenced to a term of 7 years with a non-parole period of 4 years. The offender will be eligible for release to parole on 9 May 2023 and the term will expire on 9 May 2026. Catchwords: SENTENCE - Commonwealth - importing a marketable quantity of border controlled drug - cocaine - guilty plea - financial gain - just below mid-range - early plea - strong Crown case - remorse - prior good character - low risk of recidivism - excellent prospects of rehabilitation - full time imprisonment. Legislation Cited: Commonwealth Criminal Code, s 307.2(1) Crimes Act 1914 (Cth), s 16A Cases Cited: R v Villa [2017] NSWDC 355 Alpha v R [2015] NSWCCA 225 R v Neto [2016] QCA 217 R v Nikolovska [2010] NSWCCA 169 Alavy v R [2014] VSCA 25 Category: Sentence Parties: Commonwealth Director of Public Prosecution Luiz Diego Mouzinho de Lima Representation: Ms. C. Cathcart (CDPP) Mr J. Kellaway (Defence) File Number(s): 2019/147717

SENTENCE 1. On 22 May 2020, the offender, Luiz Diego Mouzinho de Lima appeared before me for sentence having entered a plea of guilty to an offence of importing a marketable quantity of a border controlled drug. This offence is contrary to section 307.2(1) of the Commonwealth Criminal Code. The offence nominates the period of involvement as between 29 April 2019 and 10 May 2019. The quantity of pure cocaine imported was 904.3g. 2. The maximum penalty for the offence is 25 years imprisonment and/or 5500 penalty units. 3. The general sentencing principles that I must apply are contained in Part 1B of the Crimes Act 1914 (Cth) ('the Act'). In determining the sentence to be passed, I must impose a sentence that is of a severity appropriate in all the circumstances of the offence: s16A(1) Crimes Act. I must also take into account the matters listed in s16A(2). 4. On 5 February 2020, the offender entered a plea of guilty in the Local Court. There is a utilitarian benefit that flows from the early plea of guilty. 5. The Crown tendered a bundle containing the facts, submissions and comparable cases which was marked as Ex A. 6. The offender tendered a bundle containing 9 documents including a letter of remorse, a medical report, references and letters of support which was marked as Ex 1. A Justice Health Event summary was tendered and it became Ex 2. 7. The nature and circumstances of the offence are set out in the Agreed Facts contained in exhibit A. The offender also gave evidence. In evidence he candidly accepted that he was aware that there were to be two packages sent and each was going to contain cocaine. He was also aware that it was also to be packaged in books. The benefit he was to receive was $5 000 per package. The offender said he had no idea of the quantity to be received other than it was a 'small amount'. Receiving a payment of $10 000 for the role he provided for this 'small amount', must have alerted him that the packages were valuable. 8. On 29 April 2019, the two consignments were sent from Portugal. Each package was addressed to a fictitious name but to the offender's actual home address. The cocaine in each consignment was secreted in two bags inside the front cover of each of the two books. Australian Border Force detected anomalies and x-rayed the items. 9. The first package contained 733.3g of cocaine with a pure amount of 410g. The second package contained 743.3g of cocaine with a pure amount of 494.3g. In total, 904.3g of pure cocaine was imported. 10. After arrest, the police located messages on the offender's phone between himself and an "Anderson Reck". The content of the messages reflects that this person resided in Sydney as there were exchanges about catching up for a drink. These messages indicate contact from 7 to 10 May 2019. These messages indicate that at 12.54pm on 7 May 2019, the offender had contact with someone other than Reck, identified as 'the brother,' and also that he was tracking the consignments. Reck advised him to delete the chats. 11. In the messages, the offender commented on not having money. 12. After replacing the cocaine with an inert substance, on 9 May 2019, the police delivered the consignment to the Vaucluse Post Office and left a 'mail to collect' card in the offender's letter box. On 10 May 2019, the offender attended the post office with the mail to collect card. He provided identification in his own name showing he resided at the relevant address. He falsely indicated that the addressee was his flat mate. He was arrested soon after in possession of both consignments. 13. When interviewed by police, he lied and falsely denied he had knowledge that cocaine was to be received. He also said that he was only to receive $1 000 per package. The only evidence that the amount nominated was a lie and of what he was actually to receive stemmed from the offender's evidence on sentence. 14. The offender nominated to police that he liaised directly via a messaging app with a person named "King" whom he believed was the person named as the consignor on each package. He knew King through an acquaintance, although he had never met him. In evidence, the offender accepted that he must have been trusted within the syndicate to receive the packages. 15. The evidence confirms that at least two other persons were involved, one in Portugal and one in Sydney. The offender did not provide further particulars other than to state he believed he was involved with very dangerous people who could harm him and his family. 16. The offender's role is to be determined based upon a scrutiny of what he did and when he did it. He had direct contact with the sender of the consignments. 17. He accepted that he knew he was to receive cocaine in both packages. He had direct contact with the person he believed sent the packages and also with a local contact. He took a positive interest by tracking the consignments. His involvement covered at least 12 days as he had to have committed to involvement prior to the packages being forwarded to his address. 18. To collect the packages, the offender utilised his own address, and produced identification in his own name and was therefore easily identifiable and able to be connected with both consignments. He was readily detectable. This speaks of limited sophistication and the lesser role of the offender. 19. To accept his acts and the extent of his involvement is to recognise the importance of his role but also to recognise that it is not demonstrative of a higher status within the syndicate. 20. The range for marketable quantity of cocaine is between 2g and 2kg. The amount is approximately half of the upper range of the marketable quantity. The drugs were forwarded in two consignments. There is no evidence of the value of the cocaine. 21. The offender gave evidence that he became involved for financial gain. He was to receive $10 000. He was not a user of illicit drugs. He was in Australia working and studying for 5 years prior to his arrest. He was casually employed with variable work hours in the construction industry. He was also studying English and marketing. He gave evidence he had limited money after paying for his study. This is consistent with one of the detected messages. Additionally, he had been diagnosed with the recurrence of Hodgkin's lymphoma. He had suffered this illness twice at home in Brazil. He wanted money to return to Brazil and to pay for treatment. 22. The offender made some admissions to police which, to a limited extent, are to his advantage. It is to be remembered that he was arrested in possession of the substituted drugs, police had access to his messages, and he lied about some aspects of his involvement. 23. On behalf of the offender, it was submitted that the offending fell not at the lowest but at the lower end of objective seriousness. The Crown submitted that his offending fell in the mid-range. Having regard to the offender's role, the duration of his involvement, the type, quantity and purity of the drug, I assess this offence as serious and one that falls just below the mid-range for an offence of this type. 24. The plea is to be regarded as an early plea. The prosecution case against the offender was a strong case. 25. The plea reflects more than only recognition of the inevitable. The plea demonstrates genuine remorse, acceptance of responsibility, and a willingness to facilitate the course of justice. 26. The offender has expressed remorse in his evidence and to others. The offender's expression of remorse presented as fulsome and genuine. He gave evidence of his actual knowledge and of his payment. Both of these aspects were against his interest and would have been otherwise difficult for the prosecution to establish. 27. I am satisfied that the offender is remorseful and accepting of his responsibility. 28. The prevailing circumstances allow for the plea to be recognised by a reduction in the sentence of 25%. 29. The offender is now aged 31. He was 30 at the time of offending. 30. He has the support of his family in Brazil. He has one older sister and experienced a supportive childhood. I note the evidence concerning his parent's health and take this into account as part of the subjective case. The offender will serve his sentence away from his family and this creates a hardship to both himself and his family. The offender was unfortunate to suffer from cancer as an 19 year old, to have it return 3 years later, and again just prior to offending. Fortunately he received treatment on each occasion with the most recent treatment being received whilst on remand. Receiving treatment away from family and friends and in custody must have been particularly difficult. He was able to work and study during the first two treatments. There is no suggestion that there has been anything other than appropriate medical care provided. 31. Ex 1 contains evidence of considerable support. There are numerous references from family, friends and associates who provide considerable support for a determination that this offending is aberrant. Both the tendered and the offender's oral evidence during the sentence proceedings fail to provide a full understanding of how such a well-regarded person can deviate into such serious offending at the age of 30. I accept he was motivated by obtaining money to pay for his medical treatment. He had other options available to him though. He had private health insurance in Australia. Although a friend had not had her treatment paid for, he made no inquiries about his own treatment. He has supportive family who could have, perhaps with difficulty, assisted either to pay for treatment in Australia or Brazil. His involvement in the offending represents an extremely poor judgement call. In evidence, he called it "the worst mistake" of his life. 32. I similarly do not fully comprehend how the offender made that judgement call and became involved in the offence given his background. I accept that personal issues caused the offender to engage in uncharacteristic activities. I regard this as minimally lessening moral culpability. 33. His skills have been recognised in custody through being appointed to the position of a sweeper. 34. He has been on remand since his arrest on 10 May 2019. He has no family in Australia. He has local contacts. I accept that his conditions in custody must be more onerous given the limited opportunity for visits from family. He does however have regular telephone contact with them and has local support. 35. The offender is of prior good character which is attested to in the tendered evidence. He has no prior convictions. I do not determine that the good character should be limited in any way, and I do not determine that it was utilised in the commission of the offending. His being of good character would not have assisted in the commission of the offence. Whether he was of good character or not would not have influenced his detection as the recipient of consignment packages. 36. I accept that the offender's arrest and remand has provided a salutary lesson. I assess the offender's risk of recidivism as low. His offending presents as an aberration. I accept that the offender has excellent prospects of rehabilitation. The evidence enables me to be satisfied that the offender is unlikely to reoffend and personal deterrence is of limited significance. 37. I particularly note the importance of general deterrence and denunciation and the importance of reducing the level of access to illicit drugs due to the enormous damage inflicted by them upon society. I observe these drugs were not disseminated into the community. 38. I am required to impose a sentence that reflects the seriousness of the offending measured against the guidance provided by the maximum penalty and allowing for the amelioration as appropriate for relevant subjective factors. I am guided also by sentencing authority on the application of principle and comparative cases. I note that I am required to have regard to current sentencing practices throughout the Commonwealth. 39. I have had regard to the matters listed within s16A. 40. The Crown provided a schedule and cases. Mr Kellaway indicated each of these cases could be distinguished and each reflected a higher level of offending. He referred to R v Villa [2017] NSWDC 355 as providing guidance. 41. Whilst allowing for differences, each of these cases does provide some guidance. There is consideration of further sentences within these cases.