District Court New South Wales Medium Neutral Citation: R v ROBLERO [2015] NSWDC 310 Hearing dates: 19/3/2015 Decision date: 02 April 2015 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Sentenced to a term of imprisonment of seven years and two months with a non-parole period of four years and two months. Catchwords: Criminal – Sentence, import border controlled drug – methamphetamine, non-exculpatory duress. Legislation Cited: Criminal Code (Cth) 1995 Crimes Act 1914 (Cth) Cases Cited: R v Bloomfield (1998) 44 NSWLR 734 Hili and Jones v R [2010] HCA 45 Lau v R [2011] VSCA 324 R v El Hani [2004] NSWCCA 162 R v Gallagher (1991) 23 NSWLR 220 R v Joseph Sukkar (2006) 172 A Crim R 151 R v Karan [2013] NSWCCA 53 R v Olbrich [1999] HCA 54 R v SZ (2007) 168 A Crim R 249 R v Thomson and Houlton [2000] NSWCCA 309 RCW v R (No.2) [2014] NSWCCA 190 Tiknius v R [2011] NSWCCA 215 Category: Sentence Parties: Director of Public Prosecutions (Cth) - Crown Nestor Sanchez ROBLERO - Offender Representation: Counsel: Ms E James - Crown Ms A Cook - Offender File Number(s): 2014/7735 sentence 1. HIS HONOUR: The prisoner, Nestor Sanchez Roblero, appears today for sentence in relation to a charge to which he pleaded guilty in this Court, that alleged that he on 2 January 2014 at Sydney, imported a substance being a border controlled drug, namely methamphetamine, the quantity imported being a commercial quantity, contrary to subs 307.1(1) Criminal Code (Commonwealth). 2. The offence to which he pleaded guilty carries a maximum penalty of life imprisonment and/or a fine if $825,000. The prisoner has been in custody since his arrest on 2 January 2014 at Sydney Airport. All time served in custody will be taken into account in the sentence that I have foreshadowed to the prisoner. 3. The bald facts in relation to this matter are relatively straightforward. The prisoner, who is a United States' citizen, flew to Australia from Los Angeles. He was in possession of two bags, a small black luggage bag and a black backpack. These bags he carried with him onto the plane and had with him on his arrival in Australia. 4. The statement of facts prepared by the officers of the learned Director of Public Prosecutions set out a lot of detail about the filling in of the incoming passenger card and other matters which I need not dilate upon, save for just pointing out several matters that were disclosed by him. Naturally, he marked the box which gave him an opportunity to declare his possession of illegal drugs and other illegal substances, "no". I have never heard of a person bringing drugs into the country ticking the incoming passenger card and indicating that he or she was in fact carrying illicit substances. Be that as it may, he disclosed in the course of the matter, that he had bought his ticket to travel to Australia the day before and he indicated that he was planning to stay in Australia for eight days for a "holiday", staying in Sydney. 5. His two bags were the subject of x-ray examination and items were identified as being concealed within the bags. Tests were undertaken and those tests produced results that were indicative of the presence of either cocaine and/or methamphetamine, in the bag. Physical examination of the bag ultimately revealed, as I understand it, four packages in each piece of hand luggage, making eight packages in all, wrapped in layers of carbon paper, plastic and sealed with what was described as silver "gaffa" tape. The items so enclosed, contained methamphetamine. 6. Customs officers contacted the Australian Federal Police. The prisoner was interviewed. Various items were seized from him. Again, they are listed in great detail on the facts, but these items included relevantly, some cameras, a hotel booking confirmation document, two visa debit cards, a driver's licence in his name, a laptop, a mobile phone and approximately $1,270 in US currency. The prisoner had a booking at a hotel near Sydney Airport which had been made on 30 December 2014, local time, and was booked into that hotel for five days, the booking ending on 7 January 2014. 7. The prisoner was interviewed in a record of interview, apparently, as I understand it, with the aid of an interpreter, who interpreted what was said over the telephone. The prisoner is originally from Mexico and I will deal with the circumstances of his travel to the United States to become a citizen, shortly. His primary language is Spanish although he is functional in English, as I understand it. He said, amongst other things, in the course of this interview, that he was to be paid between $3 - $4,000 for bringing the items within the bags into Australia. He was asked by a person called Jorge to import the bags and this person had once been his, "best friend". This person was the person who had made the relevant reservations and the prisoner indicated, in the course of this interview, that he was given three days' notice of the trip and he referred to being given $600 for expenses, to assist him to keep Jorge advised of what was going on. 8. The packages were obviously subject to proper scientific examination and the total net weight of pure amphetamine was 3.571 kilograms with an average purity of between 79.1 and 80.3%. The total weight of the substance, I am advised, with add mixtures, was 4.476 kilograms. The wholesale value of the net weight of the drug at that purity is estimated to range from between 895,000 to $1.119 million. The approximate street value is estimated to be between $3.133 million and $3.58 million. 9. The facts reveal the fact that there were checks being made to chase up the prisoner from overseas but no success has been obtained in identifying the source of those enquiries, the owner of the relevant phone service and the like. In any event, it would seem that the phone numbers, that can be identified are registered under false names as would be expected. 10. The prisoner, having been arrested on that day, offered, as I understand it, on that day, to assist the Australian Federal Police undertake a controlled operation. He used an Australian Federal Police mobile phone to contact people who he believed were concerned with the importation and made numerous phone calls in an endeavour to identify the intended recipients of the border controlled drugs. Ultimately, nobody was contacted and no controlled operation could be undertaken. He was, however, through his assistance, timely as it was in the endeavours that he made, able to provide information, at least from, I would understand it, Australian Federal Police enquiries, of the names of persons of interest involved in drug importation overseas and an Australian mobile phone number that linked another person of interest to the importation. He formulated a response so as not to alert other people of the interests of the Australian Federal Police and provided what was described as, "limited information", about his role/recruitment. He also provided other information in respect of contacts in the United States, that I need not dilate upon. 11. He made admissions against interest although they were not described as, "full admissions". He sought to provide, it was said, an honest account of how he was procured and his actions leading up to the importation. As it transpired, his evidence in this Court which I will refer to in a moment, departed somewhat from the accounts that are set out in the recorded interviews he gave the Australian Federal Police. I do not have a precise record of any other information he gave the Australian Federal Police. The level of assistance was assessed at a medium level but ultimately, its value was assessed as a, "low" level, presumably on the basis that the information did not lead to any arrests. The trail of relevant people has gone cold. 12. The Australian Federal Police advised through the learned Director of Public Prosecution officers that the prisoner has no prior convictions in the United States or Australia at this point and he was self-employed in the United States as a machine operator and handyman in San Diego, California, a major city of the West Coast, not too far from the Mexican border. He has a wife and son living with him in San Diego. 13. In relation to the evidence he gave in this Court, relevant to the facts as I am required to find them, he gave a body of evidence in respect of the circumstances of his recruitment. It is worthwhile recapping on some aspects of that evidence. Some might be seen as concerned with subjective matters but in a sense, it provides a context for my fact finding. 14. The prisoner told the Court that the details he gave the psychologist about his background, in the report, were true and I will come back to some of those matters shortly. He himself is not a drug user. He said his recruitment to import these drugs arose from an approach from a childhood friend who had initially requested him to provide building plans for houses and buildings in earthquake and tsunami zones for Australian clients. He said, in his evidence, that he undertook various designs on the basis that initially he understood he was being asked to travel to Australia to meet with builders and engineers and the like. 15. When he got to Los Angeles however, he was told that he was not going to Australia for this purpose. He was going for another purpose. A purpose that, on his account, was not made entirely clear to him. He had brought his own suitcase to the airport but he was required to transfer his clothing, or such that he could fit, into two other apparently smaller cases - the two bags that he was arrested with - and was presented with these bags at the airport. 16. These bags apparently contained the secreted drugs that were ultimately imported. He said he was told at Los Angeles Airport, the booking having been made for his flight and the like, that if he did not cooperate, his family would be killed and he was told that his family were being watched. He said he felt afraid and he had no option to go and he said, although I will allow for some looseness of translation, that he, "might be paid 3,000 to $4,000", for his involvement in this matter. He claimed he had no financial difficulties at the time by reference to some bank records that were produced. He expressed his regret for what he had done and said he felt sad, realising the damage that was done to people by the use of drugs. I accept that expression of contrition on his part, although I do not accept all of the evidence that he gave. 17. He said that whilst he was in custody, he had been in regular "employment", such as it is offered in custody. He also gave evidence that in the United States he did volunteer work for the last five or six years helping Mexican immigrants and others trying to enter the United States or perhaps crossing the border, illegally as I would understand it, and finding themselves in difficulty in dessert and otherwise unoccupied areas of southern California and Arizona. He would go out regularly at 7pm on a Friday evening, to work on weekends, on his own time, to provide material assistance to others less fortunate than him and there is documentary evidence to support that fact. He also produced some photographic evidence which confirmed this activity on his part, in my view. 18. The Crown cross examined him and took him to a number of questions and answers that he gave in the interview to the police that was produced to me, particularly between question 77 and 86. In that section of the interview, he gave an account which in my view, is materially different from the account given in the history to the psychologist and in his evidence in this Court. In that interview, he made no mention of being approached about bringing designs of buildings to Australia, initially, and in fact he gave an account of being approached to import the drugs, two or three days before left. Or, it would appear to me, that that was the interpretation open on the basis of what he said in the interview. He also gave a different account, in his evidence in this Court, as to how he came into possession of the bags and how they packed. I refer particularly to questions 110 to 115. The answers he gave to questions 162 to 164 of the interview, upon which he was cross examined, were fundamentally at odds with the account he gave in this Court of becoming aware of the importation of the drugs, or the possibility or probability of that, on his arrival at Los Angeles Airport. 19. During the course of the interview with police he did reveal the fact that he had been threatened and had fears for his family. Although in cross examination he was unable to articulate specific threat that had been made, in my view. His account in his evidence was he thought that he was bringing something into Australia that was illegal, that he knew that it was "something like" drugs and he knew that it was a, "very serious offence". He was questioned also by the learned Crown Prosecutor about questions 106 to 109, concerning the threats that he disclosed in the interview on 2 January that had been made to him, giving what would seem at first blush, to be contradictory answers about the nature of his relationship with Jorge despite Jorge allegedly threatening his family. 20. It is very difficult to accept the account given by the prisoner concerning the circumstances in which he became aware that he was coming to Australia to do an illegal act. The account he gave in the history to the psychologist and in this evidence does not accord in fundamental ways with the account he gave when interviewed at the airport. That account would suggest he was aware that he was doing something illegal several days before he left the United States and he provided no particular details of the full circumstances that he now claims. 21. To some extent this is a little baffling. He had asserted from the outset that he had been threatened and feared for his family when first arrested and there could well be an element of truth in this. But he gave an account in Court which in its terms seems inherently unlikely. That is, that he was initially approached to come to Australia, a country without earthquakes and tsunamis as a general rule, and provide plans for building earthquake and tsunami-proof housing or buildings. On the other hand, he appears to be a man of industry and honesty with a social conscience. Ironically, it seems to me, if his account on sentence remained as asserted on his arrest, the fact of threatening him may have been more inherently believable. I cannot accept it on balance in the detail that has been provided in these proceedings. 22. I am very mindful of the fact that at the time he was interviewed at the airport he had obviously been awake a long period of time. It is a very lengthy flight from the United States, he said it was about 18 hours. I am mindful of the fact that in the initial interview, the recording of his conversations with Customs officers there was no interpreter present although he does appear to speak English to them. But I appreciate there could be things lost in translation. 23. I am also very mindful of the difficulties of an interpreter providing interpretative services by telephone. The prisoner himself said he was confused when he was being interviewed in the more formal interview after his arrest. I appreciate in those circumstances some element of confess and avoid would be a natural instinct by someone such as the prisoner, caught out as he was. Ultimately I cannot be satisfied relevantly that elements of non-exculpatory duress, as it was urged for the Court to conclude in this matter, arise as were discussed in the decision of Tiknius v R [2011] NSWCCA 215, particularly at [30]-[54] per Johnson J. 24. I do not propose to analyse that decision. The decision speaks for itself. But it is fairly said that Johnson J properly pointed out that such claims of non-exculpatory duress must be approached by courts with some degree of circumspection. He confirmed in that judgment the availability of this matter as a mitigating factor. However, he also made observations about the fact that in sentencing persons who succumb to non-exculpatory duress the issue of general deterrence are still significant, or play a "very substantial role" in such matters. He said: "The grooming and pressuring of persons to become involved in drug importation offences have been said to be 'unremarkable features of many importation cases'....at times, the persons targeted by those recruiting them are said to have submissive or compliant personalities." 1. The assessment of the various considerations that he cites from high English authority and Victorian Court of Appeal authority "pull in different directions", as is often the case in sentencing. 2. If I may deal with the issue of non-exculpatory duress in the context of the submissions that were made, whilst it was submitted that the accused was influenced by non-exculpatory duress, it was submitted that his financial records suggested that he had no financial problems and thus it might be more readily found by the Court that there must have been some external pressure other than the usual one of financial need. 3. One of the difficulties with that submission is that the financial records produced by the prisoner, which I will come back to later, do not speak convincingly of the prisoner being in a very solid or solid financial position at the time of his arrest. 4. Another matter that arose from the evidence that I have summarised is the issue of his cooperation with the authorities. His counsel submitted in oral and written submissions that the cooperation was timely, which is true, in fact very timely, and that he should be entitled to a substantial discount for his past cooperation although it was not successful. It was submitted in relation to the plea of guilty and the cooperation, as I understood the submission, that I could afford the accused a discount in the range of 25%, 12.5% for the facilitation of the course of justice by the plea of guilty and 12.5% for the past cooperation of the prisoner. 5. I pause for a moment in relation to that aspect of the matter to note, and it was hardly the subject of challenge, that in relation to the issue of the plea of guilty the prisoner was committed for trial. Although he waived a committal, the trial was listed on 13 June 2014, the Crown was granted an extension of time to file an indictment on 25 July 2014 and on 24 November 2014 there was an indication of a plea of guilty. The matter was adjourned for a statement of facts and the plea of guilty ultimately entered on 28 November with the matter listed for trial on 24 November. I pause for a moment to note I appreciate the way in which trials are listed in this complex that trials may be listed on a Monday but it may take some time for appropriate negotiation to take place and I draw no conclusion adverse to the prisoner from the fact that the plea of guilty was entered four days after the trial was fixed to start. 6. It seems to me, with respect, in relation to the plea of guilty, taking into account everything said by counsel, bearing in mind that it is a discretionary matter and there is some authority that suggests that the Court need not necessarily grant a plea of guilty discount to reflect the facilitation of the course of justice. In accordance with general sentencing practice that can be imported into the sentencing of Commonwealth offenders and having regard to the range of discounts that are available in various circumstances such as were discussed in the guideline judgment of Thomson and Houlton from 1999 which is strictly only applicable to 'State' sentencing I should accord the prisoner a discount of 10% for the plea of guilty on the basis I have outlined. 7. As is acknowledged in the detailed written submissions which I will come to at a later time in respect of other matters, pursuant to s 16A(2) Crimes Act 1914 the Court is required to have regard, in subpara (h), the degree to which a person has cooperated with law enforcement agencies in the investigation of the offence or other offences. This particular matter is of course the subject of particular submission by the Crown who would have anticipated matters being raised in respect of the prisoner's cooperation and this is a matter specifically addressed in the written submissions of the defence. 8. The Crown concedes that a discrete quantifiable discount may be provided for cooperation where it is appropriate to do so and cites a number of authorities with which I am well familiar that deal with this matter. They include, Gallagher (1991) 23 NSWLR 220, one of the early judgments relating to discounts for cooperation, and more recently decisions such as El Hani, in which the late Paul Byrne SC appeared ([2004] NSWCCA 162), particularly in the judgment of Beazley P, and of course the decision of R v Joseph Sukkar (2006) 172 A Crim R 151. Another judgment cited in the Crown submissions includes the decision of R v SZ (2007) 168 A Crim R 249. 9. In relation to the matter I am very mindful of the decision of Sukkar because I was the judge at first instance whose discount to Mr Sukkar was reduced, properly so I hasten to say, on the grounds that I was somewhat over generous in quantifying it. He gave evidence in relation to overseas offenders but one of the features of the matter that was relevant in the consideration of his discount, as I calculated, it was the absence of evidence of any hardships in custody arising out of that cooperation. 10. The Crown in its submissions at pp 12 - 13 and the top of 14 set out a number of general principles in regard to this issue. But one matter that is relevant, aside from assessing the practical value of the assistance, its timeliness and the like, is the issue of the impact upon the offender required to serve a term of imprisonment having provided relevant cooperation or offering to provide cooperation in the future. There is no evidence here of any hardships in custody for the prisoner. In fact, what I have said about this matter is probably not otherwise in the public domain. I trust it would not further be extended to the public domain. I propose should this judgment find its way into the electronic recording of the Court's judgments, not all of our judgments of course are so recorded, to excise any reference to the matters set out in the letter I received from the AFP. 11. Ultimately, I have concluded that there should be some discount to reflect the timeliness of the cooperation. I accept that it was genuine cooperation which is to be taken into account as an additional matter relevant to the assessment of the contrition and remorse of the prisoner which, as I said, I also accept as genuine. It could be said, although there was not a well-developed argument in relation to this matter, that his cooperation at the time of his arrest may be supportive evidence of his claims of coercion. But, as I said, one of the difficulties with his claims of coercion or duress was the conflict between the initial account he gave and the account he has given subsequently. 12. I have concluded in all the circumstances notwithstanding that the ultimate value of his cooperation was "low" the timeliness of it and the "medium" assessment of it requires a discount of 5% in combination with the discount for the plea of guilty. 13. In the circumstances of the prisoner being a United States citizen with no ties to Australia and the difficulties arising from the tyranny of distance, even with electronic means of communication, the prisoner's legal advisers have produced an interesting and very strong subjective case in the context of the prisoner being a person without criminal convictions at the age of 56. I appreciate, of course, that people who are recruited to bring drugs into the country are usually recruited because they do not have prior criminal convictions. There is no point turning up at Sydney Airport with drugs in your bag if you have got prior convictions for supplying or importing drugs somewhere else in the world that can easily be researched here in Australia. 14. Be that as it may, and allowing for that line of authority that says that good character may have lesser weight in offences of this seriousness and of this character, given the types of people that commit them, I acknowledge that there is some considerable strength in the subjective case as a relevant matter. 15. I have referred to his voluntary work with a non-profit organisation assisting Mexican people particularly who have either entered the United States illegally or are otherwise in straightened circumstances. He also has a reference from a church group which indicates his support for Mexican people providing gifts and distributing gifts to Mexican people in Mexico over the Christmas period for some period of time. 16. All this evidence demonstrates, as I said earlier, that the prisoner is a community-minded person. I am satisfied ultimately that he is not involved in criminal activity in the United States, even "beneath the radar". He has generally lived a blameless life until this unfortunate involvement for him in the commission of this most serious crime. He has produced a number of references from professional and business people as to his work as a builder handyman and he is variously described as being industrious, reliable, hardworking and ethical, conducting his business in a very satisfactory manner. 17. His clients highly recommend him to others. His reported involvement in what one referee called "unauthorised activities" in Australia is described as "a real shock" and "completely out of character" in the view of that person. That would appear on balance to be the truth. 18. In assessing the account that he gave to this Court of how he was recruited as I said a moment ago it must be said that a person of his character with his background of community service and his selflessness is a somewhat surprising candidate to be involved in conduct of this type. In one way the explanation he gave of his arrival in Australia, that is being subjected to pressure being put upon him, would seem to be the only reason that he would agree to do this. I cannot be satisfied of non-exculpatory duress on balance, but I accept that the pressure upon him or pressure being placed upon him at some stage remains a real possibility. One does not have to have too much worldly experience to understand that for one reason or another if someone falls in with organised crime groups that are responsible for these importations that one must appreciate that there are risks involved for one's personal safety if one is unsuccessful. 19. Many years ago I appeared for a man called Lara Gomez, a Columbian citizen who had Australian citizenship who came from Colombia to warehouse 100 kilograms of cocaine, then the largest single shipment of cocaine. He was arrested in Australia, a man with no prior criminal convictions. He was a very gifted artist. On the day that he was arrested, or a day later, in Colombia the man that recruited him was shot dead in his restaurant. Retribution and revenge can be swift for those who fail to perform their duty properly. I bear that in mind. Whether the prisoner faces retribution on his return to the United States is something however I cannot confidently speculate about; I would trust not. 20. There is a psychologist's report which sets out his history, which I referred to earlier. Some of it I will reflect upon. He adopted it in his evidence and it was not challenged. He was one of six children born in Mexico and his parents grew up in a rural area and were obviously quite poor people. He had a very good childhood however. His parents did their best to provide for him although he had limited education. He worked with his family on a family farm and initially moved to the city at about the age of 14 or 15 to try and find work ultimately finding opportunities to learn about building and carpentry and working machinery, which gave him the expertise to move into the construction industry and home maintenance which he has been involved in in the United States. 21. He moved to California in 1991. He has been married twice. His second wife and he have an 18 year old son. He is a religious man. I accept that he is a hard worker and seeks to provide for his family. He had a serious motor vehicle accident in 1998 but ultimately there appear to be no major residual effects. He has no drug dependency, although that is not a matter in mitigation, one must say, when a person is responsible for bringing a substantial sum of drugs into the country which can damage those who use the drugs. There is no indication of any antisocial personality. He has no history of mental illness or psychological distress. Since he was arrested he has regarded the event as "shocking" but is resigned to his fate, saying as I quote the psychologist report, "whatever God wants I accept". He is making the very best of a very difficult situation for him and largely keeps to himself in custody. 22. The cognitive testing, a significant or important part of a psychological report, achieved a score that placed him in the low average range of ability, but the result was seen as probably affected by his limited schooling. He had used his cognitive abilities well, it was said, given his strong employment history. The psychologist viewed the prisoner as not presenting any particular risk factors for recidivism, which I accept. He has a pro social lifestyle, has stability in his own community, or certainly did so until involved in this event, and explains his involvement in the offence by coercion and fear of harm to his family. He is occupied in the custodial setting. He has functional English, as I said, which will assist him; his English no doubt will improve in the next few years. There are no particular concerns expressed by the psychologist in terms of his future management. 23. The prisoner produced some financial records, to which I earlier referred, relating to his financial circumstances, as I understand it, immediately before his arrest in relation to the current matter. It was suggested that those figures represented a picture that suggested there was no financial motive at work or financial pressure at the time the prisoner committed the offence. 24. I accept the prisoner was not destitute based on the evidence of his background and I accept that the picture emerging from the bank records confirms that too, but it must be said that his financial circumstances at the time of his arrest, judging from these bank records, were very modest. He had a balance in his checking account just short of $2,000 and had about $18,000 odd in some form of superannuation or investment fund. 25. I remark on the fact that the prisoner is 56 years of age. He lives in a rental property, according to the history he has given, with his wife and children. Of course I do not have any evidence of what chattels he owns. I assume he owns a motor vehicle and he has other property in the form of chattels but there is no evidence of any other major assets. Whilst the financial picture presented to the Court does not suggest any major debts it must be said of course banking records would not represent any record of any particular debt unless there was some deposits or withdrawals relevant to a mortgage or some banking loan. I cannot exclude the existence of debts being a motivation for this offending and certainly on his own version he was to receive a modest amount of money for the trouble he went to here. He was also provided with a trip to Australia and provided with money to meet some of his expenses, which has to be taken into account as a benefit for him. 26. I earlier indicated by reference to the conclusions in respect of the matters concerning non exculpatory duress that I did not discount the background of the possibility of some fear the prisoner had arising out of his involvement in the current matter. As I have pointed out, the price of failure can be terrible on occasions, as these courts know. As much as I found the prisoner's account baffling, perhaps troubling in some respects although not necessarily in criticism of the prisoner, it is to be fairly said that it is also baffling for a person with this man's background to find himself in this situation. To a large extent his real purpose of his involvement in this matter remains essentially unexplained. I accept on balance that there is the risk of some ramifications for the prisoner on his return to the United States but not necessarily arising out of matters I have taken into account. 27. Of course I accept that the prisoner had no control over what was going to happen to the drugs that he imported into the country. It is obvious to me that he had no say in operational matters relating to the drugs. I am very mindful of the authorities that deal with the assessment of the person's role and one is cautioned against rushing to judgment in relation to these matters. I particularly have regard of course to the leading authority on this matter, the decision of R v Olbrich [1999] HCA 54. 28. I have concluded, and it would not appear to be substantially disputed by the Crown, that the prisoner was effectively a "courier" who brought into the country a substantial quantity of drugs within the range of quantities that are commercial quantities although of course at a lower end of the scale. The scale of offending in this regard is extensive by reference to quantity of drugs. The prisoner was a courier who would be paid money for his involvement in the commission of the offence. 29. The submissions of the defence related to the matters that leapt from the way in which the case was conducted on the evidence. Although in the written submissions of learned counsel for the accused there were many other submissions about technical matters and legal issues, factual issues, that I have taken into account. 30. The Crown also provided, as the Director of Public Prosecutions always does, extensive written submissions reflecting upon many principles that are not in dispute although matters of degree of course are always to be considered. The Crown's oral submissions were that if the prisoner did not know that it was a border controlled drug there was a high degree of recklessness, with which I agree. It is submitted that the account given by the prisoner of threats made to him was not credible. I have already dealt with that matter. It was also submitted that the circumstances of his custody were not such as to create any particular hardship, it being submitted that there was hardship to third parties, a matter I will come back to in a moment. 31. I was referred to a Victorian Court of Appeal decision, a judgment of Justice Neave, in Lau v R [2011] VSCA 324, at [24]-[27], that whilst recklessness was not a mitigating factor the presence of knowledge or intention is "an aggravating factor". I find that something of a startling assertion. I would have thought for myself that the issue of knowledge and/or recklessness was part of the factual matrix one took into account in assessing the objective seriousness of the offending. Whether these matters can be categorised as "mitigating" or "aggravating" matters may be a matter of semantics. Certainly in this matter, on the evidence available to me, I agree there was a high degree of recklessness but, I could not be satisfied beyond reasonable doubt that the accused knew the actual drug that he was bringing into the country or knew the precise quantity. It was obviously secreted and he did not secrete it. I accept that aspect of the version that he gave to the Court. 32. The Crown, in its oral submissions, pointed out it was in the context of a courier coming through airport barriers, a large importation with very high value and the prisoner had been entrusted with valuable "cargo". It must be said in relation to that submission that it is a general circumstance in these matters that whilst the courier takes the risks, the people that organise these importations take a risk too that the courier will not disclose the importation out of fear or concern for the consequences when the courier comes into the country; so there is a matter of mutual trust to be considered. 33. It was submitted on behalf of the Crown particularly that the making of threats to the prisoner might have been counterproductive because it might prompt someone to more readily disclose to the authorities in the United States or Australia that he was carrying an illegal substance, so as to minimise the ultimate punishment that would need to be imposed. To my mind that argument is an argument of some power. 34. With regard to the sentencing of the prisoner I note particular matters that the Crown has referred to and seem to me are not in dispute from the defence. I take into account the entire time spent in custody. I note the formulation of Justice Adams in R v Karan [2013] NSWCCA 53, having regard to the assessment of the objective facts. I must sentence the prisoner in accordance with Pt 1 B Crimes Act 1914 (Cth). I note of course that whilst there is no specific reference to general deterrence, it is a matter that is to be considered, having regard to the terms of s 16A as a relevant matter, and this was held long ago in decisions from the early part of the 1990s, in fact in 1990, of El Karhani and another decision of Paull, both decisions of Justice Hunt. I note what the Crown has put about the significance of the maximum penalty as a yardstick and a basis for comparison between the case at court and worst cases, which will bring me back finally to some consideration of supposed comparative cases. 35. I am required to determine the nature and circumstances of the offence, and I have already recited the facts as I have found them, and assessed the prisoner's "role" as best I can. By reference to s 16A(2) the relevant matters to consider are of course the nature and circumstances of the offence, the degree whether any loss, damage or injury has been resulted from the offence, whether there is a victim of the offence and the personal circumstances of that victim. In the latter two instances of course no such loss or damage has directly resulted although that is not through any action on the part of the prisoner. Of course, there could have been victims by the importation of these drugs if it had been successful. 36. I am required to have regard to the fact that there are no other offences that represent a course of conduct. This is a one-off offence, so to speak. Bearing in mind of course that what s 16A(2) prescribed are relevant matters to take into account, some in a positive way. 37. I am required to have regard to the degree to which the prisoner has shown contrition, and I accept that he has expressed his contrition in a range of ways. I cannot understand the delay in his plea of guilty, but his cooperation with the authorities, which was very timely as I said, and of course his statements of regret in his evidence and to the psychologist are genuine statements of contrition. The fact that he has pleaded guilty is a relevant matter. I have referred to the degree of cooperation with the law enforcement authorities. 38. I am required to have regard to the deterrent effect that any sentence will have upon him and to see that he is adequately punished. I am required to have regard to his character, antecedents, cultural background, age, means, physical and mental condition, which I do. The evidence in relation to that matter I have summarised. 39. I am required to consider the prospects of his rehabilitation. I have considered that he has excellent prospects of rehabilitation. As I say, his involvement in this matter is somewhat baffling. He is a person, it seems to me, with a social conscience. I was somewhat surprised that he indicated that he did not have a full understanding of the effects of drugs upon people until he saw people in prison here in Australia. One might have thought in Southern California there would be widespread knowledge of the effects of the use of prohibited drugs. 40. I am also required to take into account the probable effect that any sentence or order under consideration would have on his family and dependents. In this regard there were some submissions made in relation to his family. That the fact that the prisoner will be incarcerated here in Australia, his family will be a long way away in America without his financial support, is a matter that I should take into account as a relevant matter. I take it into account as a relevant matter as part of the subjective mix, but it certainly is not a matter of "exceptional hardship", a matter conceded in the submissions of counsel for the prisoner and the subject of specific submission by the learned Crown Prosecutor. 41. The facts of the matter are that people from foreign countries who come here to commit crimes should expect that they will be serving their sentences away from their family. It is part of the risk of being involved in this particular type of crime and it is an inevitable consequence of being involved in this particular crime. I accept that the prisoner was involved in the commission of this offence for financial gain which is a relevant matter in the assessment of the objective seriousness of the offences the Crown has correctly posited in its written submissions and so far as the matters concerning adequate punishment I accept what has been put by the Crown in that regard. 42. I am mindful, of course, in due course of the technical requirements, I can only sentence the prisoner to a term of imprisonment if that is the only appropriate sentencing option and clearly. That is the case here having regard to s 17A Commonwealth Crimes Act, if I impose a sentence of more than three years imprisonment I must impose a non-parole period. I will fix a non-parole period in accordance with the High Court decision of Hili and Jones v R to which reference is made in the written submissions. I do wish the Commonwealth in its written submissions, many of which seem to come off a word processor, would cease to refer to what used to happen in cases such as Bernier and Behar. I appeared in Behar in the Court of Criminal Appeal. Frankly it is really a matter of telling the Court nowadays of what the current law is not, but rather what it used to be. In any event I approach the matter as the High Court has indicated in Hili and Jones. 43. This brings me to the issue of supposedly comparative cases. There are a number of authorities of the Court of Criminal Appeal recently, RCW (No.2) [2014] NSWCCA 190 is one, which caution against Judges at first instance becoming fixated by comparison with a particular case. No two cases are alike and we do not have a 'Code of Hammurabi', we do not have a grid sentencing. We are required to exercise our sentencing discretion judicially. But having said that the decisions of the superior courts are obviously in their outcomes subject to the relevant principles. The facts of the particular case at bar decided to assist in structuring the exercise of discretion by lower courts such as my court will always differ. I have endeavoured always to try and fix a sentence that properly reflects the range of appropriate exercise of discretion making allowance, of course, for the special cases that sometimes arise in special circumstances. 44. The Crown provided the court with a range of cases and copies of the cases, not only from New South Wales on appeal and at first instance, but from Western Australia. I have taken those cases into account, some of which I have read before. I have also had regard to the case of Lauder which I earlier referred. Counsel for the accused provided some statistics which provide some indication of the range of penalties. Statistics, of course, are to be viewed cautiously as, shortly after his appointment at Chief Justice in 1998, Spigelman CJ pointed out in the decision of Bloomfield. I have had regard to those statistics. 45. Part of the submissions of counsel for the accused concentrated, however, on a very important decision, in my view, in this area of sentencing, that is, the decision of De La Rosa, a decision of the full bench of the Court of Criminal Appeal dealing with matters both constitutional, legal and factual arising out of the sentencing of Commonwealth offenders convicted of importing commercial quantities of border control drugs. De La Rosa, of course, was concerned with the importation of cocaine as my memory of the facts are concerned, but particularly the then Chief Judge at Common Law McClellan J went through an analysis of many authorities both in New South Wales, Queensland, Western Australia and elsewhere to come to the conclusion about the range of sentences that have been fixed, particularly, by courts of high authority for offending of the type with which I am concerned in its various forms, categorising the range of sentences by reference to not just the quantity of the drugs but the role of the offender. 46. I am mindful, of course, of the Crown's written submissions, following upon from the High Court decision of Wong v R when the guideline judgment handed down in New South Wales in relation to Commonwealth sentencing was struck down, that quantity is not the sole determinative of seriousness. But remains a relevant matter to be taken into account. Ultimately, it was submitted by learned counsel for the accused that in the various groups or four groups as they were described by McClellan J in his judgment at [207] - [215] that a person acting as a courier, as this prisoner clearly was, might be considered to fall within the range of sentencing that he described at [215]. Of course, his Honour's analysis does have some gaps in it. There are mixtures of role and quantity that are not altogether contemplated by his categories, if I may be so bold to say so from my sentencing experience. 47. It is also fair to say that as with the statistics the exact discount that has been provided particularly for the plea of guilty is not readily available for consideration. It seems to me though that what has been categorised in the submissions of learned counsel for the prisoner by reference to what his Honour described as "the fourth category", reflected further in his table at [224], is a fair assessment of the situation. 48. It should be pointed out anecdotally I hasten to say, my experience is that those that perform the role of couriers such as this prisoner usually plead guilty and usually plead guilty at an early stage, because the truth of the matter to use a colloquialism is they are caught "cold" as this prisoner was. Thus the range of sentences would include a very high proportion of sentences for those types of offenders, as opposed to principals who may plead 'not guilty' more frequently. On a pro rata sense this would include a high degree of discounts of up to 25% where the discounts are given. 49. I have concluded in relation to this prisoner that the starting point of any sentence that should be imposed upon him, having regard to the objective facts including an assessment of his role, the subjective circumstances and the relevant legislative and case considerations should be eight years and six months imprisonment. With a discount of 15% I calculate that the term of imprisonment thus should be seven years two months and some weeks, I have rounded it down to seven years and two months. It could be rounded up to seven years and three months on my calculation. 50. I have determined that there are matters that are relevant as pointed out in the submissions of counsel to fixing a non-parole period that would provide the prisoner notwithstanding his inevitable deportation with a basis for an extended period of supervision. I am mindful of the fact, of course that people that do not have issues that require professional assistance on release may not need an extensive period of supervision but, in my view, this prisoner is entitled to a finding that would permit him to have a non-parole period somewhat less than might generally be imposed for a head sentence of this type, particularly having regard to his prospects of rehabilitation which I assess as good and also his other capacities as reflected in the subject case that has been conducted for him. 51. Thus, having had regard to all these matters I have determined that the prisoner should be convicted and sentenced to a term of imprisonment as I foreshadow. Could you stand up please, Mr Roblero? 52. In relation to the matter to which you pleaded guilty, you are convicted. You are sentenced to a term of imprisonment on my calculation of seven years and two months which will date from 2 January 2014 and will expire on 1 March 2021. In respect of that sentence, I fix a non-parole period of four years and two months, again, commencing on 2 January 2014 and expiring on my calculation on 1 March 2018. It will be a matter for the Parole Authority as to whether you are released to parole. You will be probably deported I would imagine shortly after your release to parole. But you will be required whilst subject to parole to comply with the conditions of your parole that are fixed by the Parole Authority. You should understand that if you breach your parole in circumstances where you are amenable to the jurisdiction of the parole authority, your parole can be revoked and you can be returned to custody. 53. Mr Crown, are there any technical matters from you? 54. WHITEMAN: No, I have nothing to raise, your Honour. 55. HIS HONOUR: Thank you. Anything from you, ma'am? 56. COOK: No, your Honour. 57. HIS HONOUR: Do you want to speak to your client with the interpreter present or not? 58. COOK: We've booked the interpreter, your Honour, so I can take him downstairs. 59. HIS HONOUR: Probably be best to speak to your client in private. Yes, thank you, sir, you're excused, thank you. 60. ADJOURNED ********** 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: 21 December 2015