R v Buenconsejo [2014] NSWDC 192

District Court New South Wales

Medium Neutral Citation: R v Buenconsejo [2014] NSWDC 192 Hearing dates: 3 July 2014 Decision date: 03 July 2014 Before: Neilson DCJ Decision: Sentenced to two years and six months imprisonment. To be released on recognisance after one year and three months Catchwords: SENTENCE - attempt to import marketable quantity of border-controlled drug - offender attempted to collect 559.5 grams of methamphetamine concealed in consignment - Offender had knowledge of delivery company's procedure through previous employment by that company - Offender provided assistance to authorities and provided undertaking for further assistance - good prospects of rehabilitation Legislation Cited: Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) Category: Sentence Parties: Director of Public Prosecutions (Crown) Jonathan Resaba Buenconsejo (Offender) Representation: Ms Lawrence (Crown) Mr Driel (Offender) File Number(s): 2013/00312379 Publication restriction: No

Judgment

Ex tempore 1HIS HONOUR: Jonathan Resaba Buenconsejo stands for sentence as a consequence of pleading guilty to a charge that between 30 August 2013 and 2 September 2013 at Sydney in this State he did attempt to possess a substance, the substance having been unlawfully imported into Australia, the substance being a border controlled drug, namely, methamphetamine and the quantity being a marketable quantity of that drug. 2This is an offence contrary to ss 11.1 and 307.6 of the Criminal Code of the Commonwealth. The maximum penalty for this offence is 25 years imprisonment. The marketable quantity of methamphetamine is 2 grams. The commercial quantity of the drug is 750 grams. The amount of pure methamphetamine in question was 559.5 grams. It can be seen, therefore, that the amount of the drug in question could be seen as a large marketable quantity, about two-thirds of a commercial quantity. 3Until December 2012 the offender had been an employee of DHL. On 30 August 2013 Mr D J Singh, an independent contractor courier driver to DHL attempted to deliver an international mail article consigned to Mr Michael Woo at 64 Blaxland Avenue, Newington. 4The consignor was a man alleged to be a resident in the People's Republic of China. The consignment was two motor scooters, four helmets and three packets of knee and elbow guards. 5Mr Singh found out that the street numbers in Blaxland Avenue, Newington finished at 40. He marked the consignment as having a bad address. A short time later Mr Singh received a call on his mobile phone from the offender who identified himself as Johnny from DHL Customer Service. The offender, therefore, pretended to be still an employee of DHL. The offender instructed Mr Singh to deliver the consignment to a new address at 80 Park Road, Rydalmere and he advised Mr Singh that he would be met outside those premises by the consignee. 6DHL Customer Service records indicated that no authorised change of address for the consignment had been made. Mr Singh notified his DHL supervisor Mr Brandon Rasmus of the situation. A short time later Mr Rasmus received two telephone calls from a female who identified herself as "Shawna" from DHL Customer Service. She enquired about the delivery status of the consignment.The records of DHL indicate that the calls were not made from a DHL Customer Service number. The involvement of this female suggests that there were others trying to arrange the delivery of the consignment. 7The consignment was returned to DHL Headquarters where it was inspected by supervisors who found it to contain two kick scooters, four helmets and three packets of knee and elbow guards that roughly matched the description of the goods in the consignment. The kick scooters appear to have been reconstituted as there was a strong odour of glue present. 8A short time after the consignment had been returned to DHL the offender phoned Mr Rasmus and enquired about its status and about its redelivery. 9In the meantime DHL returned the consignment to the Australian Customs and Border Protection Service gateway facility where it was examined. The examination revealed a quantity of crystalline substance concealed within the bases of the two kick scooters which was presumptively tested and turned a positive result for the presence of methamphetamine. AFP Forensics deconstructed the two scooters and their contents and identified the substance to be methamphetamine with a net weight of 798.2 grams. Subsequent analysis at the Australian Forensic Drug Laboratory confirmed the substance to be methamphetamine with a purity of 70.1 grams. The total pure weight of the imported border controlled drug methamphetamine was accordingly 559.5 grams. 10Records available to the AFP did not permit the police to identify the consignee. Telecommunications service number listed on the consignment was subscribed to a woman living in Victoria. However, the records available to the AFP did not allow the AFP to identify that woman at the address given in Victoria for the telecommunication service. 11On Saturday 31 August 2013 and on the following day Mr Rasmus received several SMS messages from the offender asking about the status of the consignment. Between 30 August 2013, a Friday, and Monday 2 September 2013 the offender contacted at least four DHL employees via the telephone and also via text messages enquiring about the consignment. At approximately 2.30am on Monday 2 September 2013 the offender attended the DHL Homebush Depot and approached warehouse staff making enquiries about the whereabouts of a consignment. However, the offender was told to make his enquiries through proper channels and the offender then left the depot. At 10.55am on that same day the offender made a telephone call to DHL Customer Service enquiring about the consignment. The call was recorded by DHL. 12Optus records show that the call was made from a telecommunications service being a prepaid service registered in the name of one Han Soungi. During the call, however, the offender quoted another telecommunication number and gave his name as Michael and also gave a second contact number which was his own. 13On 16 October 2013 the Australian Federal Police executed a search warrant at the offender's residence in Telopea. The offender was arrested at his home and conveyed to a AFP Headquarters where he participated in a taped record of interview. 14During that interview the offender made a large number of admissions. He admitted that he contacted DHL on multiple occasions between Friday 30 August and Monday 2 September 2013 in order to enquire about the consignment, including making contact with Customer Service, the courier driver Mr Singh and his supervisor Mr Rasmus. He also admitted that he attempted to have the consignment redirected to a friend's address at Rydalmere and then to his own home address. He admitted that he was attempting to obtain the consignment because his friend "Kwok" had asked him to do so. He also admitted that the consignment contained approximately one kilogram of methamphetamine or, as the offender called it, ice. The offender told police that he became suspicious after speaking to Singh about the consignment and asked Kwok what was in the consignment and Kwok told him that the package contained methamphetamine. The offender admitted that he knew on Sunday 1 September 2013 that the package contained methamphetamine. He admitted that he made a number of calls to DHL employees in relation to the consignment after finding out from Kwok that it contained the prohibited drug. The offender told the police that he had been promised 5,000 Australian dollars for successfully receiving the consignment and delivering it to Kwok. The offender admitted that he actively used a number of telecommunication services including a telephone number given to him by Kwok and that he was the only user of those numbers. 15Shortly thereafter proceedings were commenced. 16The offender has been in custody since his arrest on 16 October 2013. 17He pleaded guilty in the Local Court to the current offence for which he was committed for sentence by the Local Court. The Crown in right of the Commonwealth accepts that the plea entered by the offender on 16 April 2014 in the Central Local Court was entered at the earliest available opportunity. 18The penalty for the attempt to possess the prohibited substance is the same as the penalty for possessing the prohibited substance. 19One can understand the policy behind that legislative decision. An attempt to obtain or possess a prohibited substance involves the same criminal intent as actually obtaining it or possessing it, the attempt merely being thwarted by good policing or the stalwart efforts of a company such as DHL to ensure that lawful procedures are carried out. 20A summary of the offender's active role in making this attempt is contained in the submissions on behalf of the Crown, that summary can be further summarised thus: 1. The offender contacted the courier Mr Singh who had possession of the consignment and instructed him to deliver the consignment to a new address in Rydalmere where he would be met by the alleged consignee; 2. the offender contacted at least four DHL employees, Muni Mudaliar, Brandon Rasmus, Karamveer Singh and Daljit Singh multiple times over the telephone and via text message between Friday 30 August 2013 and Monday 2 September 2013 in order to enquire about the consignment and attempting to have it redelivered; 3. the offender attended the DHL Homebush Depot in person in the early hours of 2 September 2014 and approached a DHL employee Mr Andrew Nimarota in an attempt to obtain the consignment; 4. at 10.55am on 2 September 2013 the offender telephoned DHL Customer Service making a further enquiry about the package, gave a false name but gave an alternative contact number which was in fact his own; 5. the offender used his knowledge about the practices and procedures of DHL gained over a period of seven years as an employee of DHL in order to attempt to have the consignment delivered to him or to Kwok; 6. the offender knew at least from 1 September 2013 that the consignment contained a prohibited drug, methamphetamine; and, 7. the offender did this on a promise to obtain $5,000 should the consignment be obtained and delivered to the man he knew as "Kwok". 21The Crown has submitted that that summary demonstrates that the offender played a "crucial role" in the attempted possession of the border-controlled drug. However, he was only doing it as an agent of Kwok on the promise of receiving a reward of $5,000. He was merely acting as an agent for Kwok, albeit that from 1 September 2013 he knew that the consignment contained the border-controlled drug. 22The offender by his counsel submits that the offender's conduct puts him at the bottom of the range of those involved in drug trafficking, in much the same position as a mere drug courier. A drug courier carries drugs on his person or in his baggage to try to get them into the country. The drugs were already in the country when the offender found out about them. However, he did make multiple attempts to obtain possession of the drugs using some insider information, no doubt gained from his period of employment with DHL. 23I accept that the offender's conduct places him in the bottom rung of those involved in drug trafficking but his position is not analogous to a drug courier, firstly, because he never had possession of the drugs which lessens his moral and legal culpability but secondly, because he made multiple attempts which increases his moral and legal culpability. 24The cases are legion in which it is stated that those who participate in illegal drug trafficking at any level should expect to receive heavy penalties and, absent exceptional circumstances, a fulltime custodial sentence is called for. 25Prior to committing this offence the offender was a young man of good character. He was born in the Philippines on 24 May 1986. He is 28 years of age. His parents divorced in 1987, a year after he was born. After his parents divorced his mother moved to Australia to earn money to support the family. The offender is the youngest of five siblings. He was brought up in the Philippines by his grandparents and came to Australia at the age of 16 to join his mother and his siblings. He achieved the equivalent of Year 10 in the Philippines and when he came to Australia completed Year 10 studies here in English as his second language. He then joined the workforce. He worked for three years for McDonald's at Wynyard Station and became a team leader. He left McDonald's to earn more money. Through one of his sisters he obtained work with DHL where he worked for seven years between 2005 and 2012. He became a team leader with DHL. 26According to the pre-sentence report the offender had a serious relationship with a young lady for three years which commenced when he was 18. At the age of 21 years he became involved with another young woman and that relationship lasted for five years, ending in 2012. One of the offender's sisters, Jennifer, who was the sister who had arranged for the offender to obtain work with DHL has provided a reference. In it she says this: "I truly believe that his problem started when he broke up with his girlfriend of threeplus years towards the end of 2012. He was really devastated and to add more to his devastation, he lost his job just before the year 2013 started." The clear import of all the evidence before me is that the ending of his relationship with his girlfriend of five years in 2012 was a devastating blow to the offender. That led to his taking to the use of methamphetamine. 27The pre-sentence report says this: "Mr Buenconsejo indicated that his drug use started late, at the age of 27 years, when he was introduced to cystal methamphetamine ("ice") following his relationship breakdown and loss of employment. He stated that he met a man who was very supportive at the time and introduced him to drugs. He said that he did not become a heavy user as he could not afford to buy large quantities of the drug and he last used the drug in 2013 just before his arrest." The man who was "very supportive" was in fact the man identified as Kwok, a middle-aged Chinese man, who was the antithesis of a very supportive person to commence the offender down the road of addiction to methamphetamine. 28It is clear that because of his drug use the offender lost his employment with DHL. The offender made a statement at some stage. Paragraph 9 of that statement is this: "Because of my drug use, I began regularly coming to work late. I was warned several times, but was a hard worker so they kept me on. Unfortunately, my lateness got too much and my employment at DHL was terminated." 29A history recorded by a psychologist is otherwise. On my view of the evidence, and I find on the evidence, the breakdown of his five year relationship with his girlfriend led to his taking up the use of methamphetamine and the methamphetamine use caused the problems with his employment which led to its termination at the end of 2012. Between then and his arrest the offender was unemployed. He did not draw money from the Commonwealth by way of unemployment benefits or the like, but sought to support himself on the redundancy payment that was given to him by DHL. 30However, he had a drug habit to support and one can understand, in human terms, why he grasped at the offer of $5,000 which would provide him with money to support himself and to buy the drug ice for his own consumption to assuage the pain of the loss of his girlfriend, the loss of his job and the loss of the property in which investments had been made by his mother and three of his siblings as well as himself. When the offender could no longer keep up the mortgage repayments the property had to be sold. 31As I have already mentioned the offender made full and frank admissions immediately after his arrest to the police. He has remained off drugs since that time. 32He has been assessed by the psychologist Mr Bradley Jones as having a low to moderate risk of reoffending. The same assessment has been made by Ms Teresa Ross, the community corrections officer that prepared the pre-sentence report. 33Since his incarceration the offender has commenced and may have completed a SMART course. He has sought to improve himself by studying information technology and is doing his best to rehabilitate himself. 34His four siblings are all supportive. Three of them have provided statements which form exhibit 4 and all four of them are present in Court to support him today. 35I am persuaded that the prospects of rehabilitation are very good. The offender now has the determination to stay away from illicit drugs and to get himself back into the workforce and in society. I accept that he has learnt the error of his ways. I accept that he is truly remorseful. I accept that this is not a case where specific deterrence looms large. However, in all cases of this nature general deterrence does loom large. 36People must realise that if they get themselves involved in illicit drug trafficking they can expect heavy penalties. Illicit drugs ruin lives. Anyone who has sat for any time in a criminal court knows that. 37The offender has provided assistance to law enforcement authorities beyond his admissions of his own criminality. He has provided information to the Australian Federal Police which supports and corroborates other information available to the AFP. He has given an undertaking in writing to give evidence against a nominated offender. I add that that is not the person identified in the evidence as Kwok. The papers relating to that form exhibit 3 which will be placed in an envelope and sealed. I accept that his undertaking to give evidence will be of great assistance to the AFP. The AFP concedes that the offender has been full and frank with them and they rate the level of his assistance as medium to high. The next line in a report made by them, however, says that the AFP rated the value of the assistance, as distinct from the level of the assistance, as medium. The value of the assistance can be assessed more highly if the offender nominated in exhibit 3 is successfully prosecuted. 38Much has been made of the significance of the offender's prior good character. He had no criminal conviction prior to his arrest. He has been a hard working member of our community and has not drawn any benefits from the Commonwealth during his period of unemployment over a period of nine months. I accept that he is well motivated and hard working. It is unfortunate that because of his drug addiction and temporary unemployment he lost the investment in the home that was being shared by himself, three of his siblings and his mother. 39It is often said in cases involving drugs that prior good character is of less significance than it otherwise would be because only those of good character can be recruited, for example, to be couriers because if they have previous convictions they would not be suitable to act as a courier. Here the offender's prior good character has nothing to do with the offence with which he is charged. What was perhaps more important to Kwok was his insider knowledge of the operations of DHL and contacts he may have made there. In that respect he was probably being used by Kwok. In the circumstances of this case I do not believe that I should diminish the effect of the offender's prior good character. 40The Crown makes much of the amount and value of the drug. It is correct that the amount of the drug in question was 280 times the marketable quantity provided by the Federal legislation but as I have earlier pointed out was about twothirds of the commercial quantity. The Crown estimates the street value of the 559.5 grams of pure methamphetamine is between $168,000 and $280,000 based on a street value of 1 of gram methamphetamine being purchased or sold for between $300 and $500. However, there is often a grave discrepancy between street values of drugs sold in small doses and the street value of drugs which are sold in large amounts. There is also usually a great discrepancy between what somebody at the bottom of the drug trafficking hierarchy might make and the real profits earned by the principals in the drug trafficking. 41As this is a Federal offence I am required to take into consideration the matters prescribed by s 16A of the Crimes Act 1914. In particular I am to take into account the matters set out in subs (2) of s 16A. 42The first thing that I must take into account is the nature and circumstances of the offence. I have done so. 43I am not required here to take into account any other offence. This offence does not form part of a course of conduct consisting of a series of criminal acts. 44I am required under par (d) to take into account the personal circumstances of any victim. This might be described as a victimless crime because the drugs did not find their way into the community. However, as I have earlier pointed out, if illicit drugs find their way into the community they can ruin lives. 45I am required under par (e) to take into account any injury, loss or damage resulting from the offence but there is none. 46Paragraph (ea) is irrelevant. 47Under par (f) I am required to take into account the degree to which the person has shown contrition for the offence by taking any action to make reparation or any injury, loss or damage resulting from the offence, or in any other manner. I have already stated that I accept that the offender is truly contrite and remorseful for carrying out this offence. There is nothing for which he could reparation make. He has demonstrated his contrition by both making the admissions which he did on the day of his arrest, by pleading guilty at the earliest available opportunity and also, if it one be permitted to do so, one can take into account the assistance which he has given to authorities concerning another but that is provided for in a separate section of the Crimes Act 1914. 48Paragraph (fa) is irrelevant. 49Paragraph (g) requires me to take into account the offender's plea of guilty to the charge and I shall do that. 50Paragraph (h) requires me to take the degree to which the person has cooperated with law enforcement agencies in the investigation of his offence or of other offences, I have already adverted to that. He has clearly cooperated with the enforcement authorities in making the admissions which he did as to his own criminality and assisting the police with their enquiries in relation to offences committed by others. 51Paragraph (j) requires me to take into account the deterrent effect that any sentence or order under consideration may have on the offender, and clearly an order that I will make will have such deterrent effect even though in my view this is not a case calling out for subjective deterrence in light of what has befallen the offender since his arrest. 52Paragraph (k) requires me to take into account the need to ensure that the person is adequately punished for this offence, and I shall attempt to do so in making my formal final order. 53Under para (m) I am required to take into account the character, antecedents, age, means and physical or mental condition of the offender, and I am doing so. 54Under para (n) I am required to take into account the prospects of rehabilitation and I have already adverted to that as I have already said that the prospects of rehabilitation are in fact very good, if not excellent. 55Paragraph (p) is presently irrelevant. 56Under s 21E(1) of the Crimes Act 1914 I am required to specify by how much both the sentence and any pre-release period is reduced as a consequence of regard being given to an undertaking given by the offender to provide future cooperation to the authorities. I shall do so very shortly. When discussing this aspect of the case the Crown's written submissions contain a submission that the discount to be given for the offender's assistance should be of a "high order" but unless the contrary is shown, the circumstances are not so exceptional that the combined discount for a guilty plea and assistance would exceed 50% discount of the total sentence. Clearly authorities under State law, equally applicable to Federal offences, indicate that a discount for the combined effect of a plea of guilty and assistance to authorities should not exceed 50%. I accede to the Crown's submission that here a discount of 50% is appropriate. 57The discount given to an offender for pleading guilty under Federal legislation is not a discount for the utilitarian value of the plea. However, it is discount for the willingness to give assistance to the authorities charged with enforcing the criminal law. In my view a discount of 25% is applicable to the offender for the assistance given by him to the authorities in, firstly, admitting his guilt in the record of interview given on the date of his arrest and for his early plea of guilty. I am prepared to allow a further discount of 25% making a total discount of 50%, the further 25% being for the assistance he has given to the Commonwealth authorities in prosecuting another on very serious criminal charges. 58Since the information which the offender communicated to the AFP about this other offender was already known to them and the offender's evidence merely confirms what they already knew the real value of the offender's cooperation is his undertaking to give evidence against the offender nominated in exhibit 3. Of the 50% total discount I would assign 20% to the value of his undertaking to give evidence against the person named in exhibit 3. 59Bearing in mind the criminality involved, the persistence of the offender in seeking in attempting to obtain possession of the consignment or to get the consignment made to Kwok even after he was told in blunt terms that the consignment contained a border-controlled drug and the use of his insider information gleaned from his employment on the one hand, but bearing in mind on the other hand the offender's antecedents and background and excellent prospects of rehabilitation, I believe the starting point for a case of this nature is a head sentence of five years. I discount that by 50% to two years and six months because of the combined effect of the discounts I have already mentioned. 60The remaining issue is for how long the offender must remain in custody prior to being released on recognisance. The authorities make it clear that the court must set a minimum time that justice requires the person serve having regard to all the circumstances of the offence. There is not, as there is in State law, any prima facie view as to what the non-parole period ought be, nor is the case law suggesting 60% to 66.6% for the non-parole period to be given weight as though it were statutory. 61However, in the current case I believe because of the excellent prospects of rehabilitation there is a need for the offender to be under the supervision of Community Corrections for a substantial period so that he has the assistance of that authority in maintaining the resolution which he currently has to abstain from illicit drugs and for that authority to assist him in obtaining meaningful work once he is released from custody. 62I have come to the view that the offender should be released on recognisance after a period of imprisonment of one year and three months. 63The sentence will commence on the day the offender was taken into custody on 16 October 2013. If my mathematics be correct, which is always problematical I believe that the offender should be released on recognisance on 15 January 2015. 64Jonathan Resaba Buenconsejo on the charge that between 30 August 2013 and about 2 September 2013 at Sydney in this State you did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely, methamphetamine and the quantity being a marketable quantity of that drug, you are convicted. I sentence you to a term of imprisonment of two years and six months commencing on 16 October 2013 and expiring on 15 April 2016. I order that you be released on recognisance on 15 January 2015 on giving security in the sum of $500. I direct that exhibit 3 be sealed and is not to be opened except by order of this Court or the Court of Criminal Appeal.