District Court New South Wales Medium Neutral Citation: R v ADOLPH VARGAS [2011] NSWDC 89 Hearing dates: 22 July 2011 Decision date: 22 July 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of 4 years and a head sentence of 7 years Catchwords: CRIMINAL LAW - Sentence - Import border controlled drug - Cocaine - Internal concealment Category: Sentence Parties: The Crown Paul Andres Adolph Vargas - Offender Representation: Director of Public Prosecutions (Commonwealth) Legal Aid Commission File Number(s): 2011/54925 SENTENCE 1HIS HONOUR: Paul Andres Adolph Vargas arrived in Australia on 11 February this year. He was selected by customs officers for more detailed scrutiny than is usually given to incoming passengers. An ion scan of a suitcase carried by the offender revealed a positive reading for the presence of cocaine. Customs officers therefore had a conversation with the offender in which he said a number of things, concluding with an admission that he was carrying internally about eighty pellets of cocaine. 2Police were called. Over that day and the following days the offender passed a large number of pellets containing cocaine. There were in fact seventy-eight such objects concealed within the offender's body. The total gross weight of the powder was 921 grams, it was fairly pure too, 85.3 per cent so that the net weight was 789 grams. 3The offender is thirty-one years of age. He was born in Peru, his father was German. His parents separated, his father returning to Germany eventually, and the offender has lived with his mother and father at various times and in various locations: He lived with his mother in Brazil; His father in Peru; His mother in the United States of America; and his father in Germany at various times of his life. 4It was whilst in Germany where he was living on unemployment benefits that the offender first became involved in the scheme which would see him ultimately coming to Australia with cocaine inside him. He did not like Germany, he did not like the climate and he felt isolated. He therefore wanted to return to Peru. Someone that he was associating with in Germany suggested that if he agreed to travel to Australia via Argentina with drugs inside him then he could both have his travel paid for and earn a bit of money. That particular importation did not eventuate but eventually the offender, who had travelled to Peru anyway, took steps over a number of days to facilitate his attempted importation of the drug into Australia. 5He first was taken to a room where he practised by swallowing carrots and eventually he was taken to a location where he was provided with the drug. He has swallowed as many pellets as he could. He had to stop before he was able to swallow all of the drugs that were made available to him. 6The offender has had some periods of employment and, as I mentioned before, he was largely unemployed in Germany. When he returned to Peru he worked as a salesperson for a while but it would seem that his substance abuse, which had commenced at the age of fifteen, had significant affects upon his behaviour and cognitive functioning. 7After his arrest he offered to assist the authorities. The value of that assistance has been assessed as "low to nil" but his behaviour virtually from the moment he was selected by customs for closer scrutiny has been consistent with the willingness to facilitate the course of justice even though his assistance in terms of identifying other offenders has been of very limited value. I will impose upon the offender a sentence which is approximately thirty per cent less than it would otherwise have been to reflect his plea of guilty and his assistance to the authorities. 8The offender has suffered from mental health problems for some time, although it would seem at least some of those are due to his drug use. Nevertheless there is evidence to suggest that he was depressed before he committed this offence. Things have certainly got a lot worse for him since he went into custody, but his depression does appear to predate the commission of this offence and that condition appears to be related to the difficulty he has adjusting to novel environments as he moves from country to country and parent to parent. 9He told the psychologist that he had hit rock bottom, saying, "you cannot go down from here". Upon the offender's release from custody it is difficult to know whether he will be able to easily put his drug using ways behind him. If he does not, there is a risk that he will continue to commit offences of some kind. 10I note that, not surprisingly, the offender has had no previous convictions for drug supply or importation matters. I say "not surprisingly" because it is notorious that drug couriers without criminal histories are invariably chosen precisely because that reduces the chances that they will be identified as in fact being drug couriers. The offender will of course serve his sentence away from family support and away from his friends as well. Fortunately for him he speaks English well, as well as a number of other languages and so will not have the problems with communication that often come about where an offender serves a sentence in a foreign country. 11But it is the case that he will be isolated from family and friends and in no position to receive visits, at least none of any regularity. Not too much can be made of this because it was the offender's choice to travel to a foreign country and attempt to break its laws. In that sense, the offender has only himself to blame for his present predicament. But I do take into account that he will serve his sentence harder than others who are not as isolated as the offender is from family and friends. 12This is of course a serious offence. The maximum penalty of twenty-five years imprisonment is testament to that, as are other sentences imposed on others who attempt to import significant quantities of border controlled drugs. There is easy money to be made from acting like the offender tried to do and there seems to be an almost limitless supply of people like the offender willing to risk their liberty for financial gain. It is therefore incumbent upon the courts to impose sentences on those who would import drugs into Australia which would have the affect of deterring others who may be tempted to act as the offender has. 13Both the Crown and Ms Bagot who appeared for the offender relied on other cases which were said to be comparable. They were of significant assistance to me. Of course no two cases are alike and, in particular, some cases concerned a different sort of drug, heroin, and others concerned different quantities. 14I noted in the course of discussions with the lawyers, the apparent difference between the way State law treats similar quantities of heroin and cocaine and Commonwealth law treats similar quantities of those two drugs. When one looks therefore at a case involving heroin of a particular quantity, it cannot be concluded that under Commonwealth law the same sentence would have been imposed for the identical quantity of cocaine. Also, many of the cases relied on by Ms Bagot concerned quantities of cocaine different from the amount that this offender tried to import. 15I should say this, in many cases the quantity of drug imported by a courier is beyond their control. They often import as much as they can and as the particular method of concealment would allow. This case is a good example where the offender stopped swallowing the pellets after he could swallow no more. So the quantity of a drug that an offender imports is in many cases beyond his or her control. Despite that, it remains undeniable that it is worse to import a larger quantity of drug than a smaller quantity of drug. 16Ms Bagot very helpfully summarised the cases on which she wished to rely in a table. It sets out in easily understandable form and on a single page a great deal of information concerning those other cases. As it turns out, and entirely coincidentally, the two cases which concern cocaine of about the same quantity of drugs that are the subject of this case involve offenders who I sentenced, one in 2007 and one in 2008. As the table reveals those two offenders had remarkably similar cases and it is at least pleasing to me to note that I imposed identical sentences on those largely similar offenders. 17Not surprisingly I have used those sentences as a significant guide to the sentence that I should impose upon this offender, noting that in neither of these two cases I am referring to was there an appeal from either side. 18It is always a terribly sad thing to sentence someone to gaol for a significant period of time, but it is necessary to do so to protect the Australian community. No-one gets any pleasure from seeing an offender such as the present spending a significant time in custody, wasting his life in gaol, but it is necessary to do so in order that the Courts play their part in reducing the quantity of drugs which comes into this country. 19The offender is sentenced to imprisonment. I set a non-parole period of four years to date from 11 February 2011 and a head sentence of seven years. The non-parole period will expire on 10 February 2015. Although I stated the non-parole period first and perhaps for Commonwealth law I should have stated the head sentence first, it makes no difference to the ultimate outcome. 20Mr Adolph Vargas do you understand what I have just done? 21OFFENDER: Yes your Honour. 22HIS HONOUR: Let me just make sure. Your sentence started the day you were arrested at Sydney airport and it goes for four years which you must serve in prison. That means that on 10 February 2015 four years after your arrest you are entitled to be released from custody. Although you will probably be deported immediately, you are still serving the sentence for another three years it is just that you will not be in custody. It probably does not have any affect upon you, so all you really need to know is that for four years from 11 February, 2011 you will be held in custody and then released. Do you understand sir? 23OFFENDER: Yes. ********** 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: 11 August 2011