R v HERNANDEZ, Jesus [2016] NSWDC 398

District Court New South Wales

Medium Neutral Citation: R v HERNANDEZ, Jesus [2016] NSWDC 398 Hearing dates: 09 December 2016 Date of orders: 09 December 2016 Decision date: 09 December 2016 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Full-time custodial sentence. For orders see [69] Catchwords: CRIMINAL – supply prohibited drug – commercial quantity – cocaine SENTENCE – late plea of guilty – good character – foreign national – knowledge of the transactions – enthusiastic participant – financial motive to assist family oversees – no mental health problems – unlikely to re-offend – parity with co-offender – first time prisoner – special circumstances – totality Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194 Jimmy v R [2010] NSWCCA 60 Kemp v R [2014] NSWCCA 153 Lowe v R [1984] HCA 46 Postiglione v The Queen (1997) 189 CLR 295 R v Thomson; R v Houlton [2000] 49 NSWCCA 309 Category: Sentence Parties: Regina (Crown) Jesus Hernandez (Defendant) Representation: Counsel: Mr Mcauliffe (Crown)

Solicitor: Mr Hutchinson (Defendant) File Number(s): 2015/56775 Publication restriction: Nil

SENTENCE 1. HIS HONOUR: Jesus Hernandez appears today for sentence in relation to three offences that he pleaded guilty to on an indictment on 2 August 2016 where his trial had been listed to commence on 1 August 2016. The three offences are contrary to s 25(2) Drug Misuse and Trafficking Act 1985 and each carries a maximum penalty of 20 years imprisonment and/or 3,500 penalty units and a standard non-parole period of ten years. 2. The first count alleges that the prisoner supplied not less than a commercial quantity of cocaine being 500 grams of that prohibited drug on the 16th day of September 2014 at Canterbury in the State of New South Wales. The second count on the indictment alleges in its particulars the same offence but committed on the 3rd day of February 2015. The third count in the indictment alleges the commission of the same offence in its particulars on the 3rd day of February 2015. 3. The prisoner has been in custody since his arrest on 23 February 2015 and the time spent in custody will obviously be taken into account. The prisoner pleaded guilty, as I indicated, the day after the trial was to start. I was informed by his counsel in submissions yesterday that an offer to plead guilty to the counts on the indictment had been made in the week or so before the trial was listed but the client's instructions could not be confirmed till 1 August, the day the trial was to start. 4. Notwithstanding the fact, I accept that the pleading of the prisoner to the charges has saved the community a trial of some length, perhaps up to 15 days. In my view the timing of the plea and the late indication of a willingness to plead, but not yet confirmed, has meant obviously that the Crown had to prepare the matter for trial to commence on 1 August and could do nothing about the situation until such time as the prisoner's intention to plead guilty was confirmed. 5. In my view the prisoner is entitled to a discount for the utilitarian benefit of the plea of guilty to each count but having regard to the guideline judgment of R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383, the discount for this prisoner should be 10% upon the otherwise appropriate sentence. In sentencing this prisoner I have regard to the remarks on sentence that I gave in sentencing a co-accused Francisco Javier Trejos who was sentenced by me on 29 April 2016. 6. He pleaded guilty to the same three offences because he and this prisoner were involved in what could be called briefly a joint criminal enterprise to commit the three offences with which I am now concerned, but he also asked me to take into account on a Form 1 his possession of, in respect of one offence, 28 grams of cocaine which deemed him to have it in his possession for supply and a further offence arising from deeming provisions of supplying 131.1 grams of cocaine. That cocaine was cocaine in his possession at the time of his arrest or the search of premises he occupied. 7. Thus, when I sentenced Mr Trejos in fixing an appropriate sentence for the first offence in time, which the Crown chose to make the 'principal' offence, I was required to take into account obviously two serious matters of supplying cocaine on a Form 1 in accordance with the relevant principles which I cited in the judgment. 8. Furthermore, when Mr Trejos was arrested he was found to be in possession at premises he occupied of $104,500. He was thus charged with dealing with the proceeds of crime, an offence that carries a maximum penalty of 15 years imprisonment, and was sentenced for that matter although the sentence I imposed for that matter was entirely concurrent with one or the other sentences imposed in respect of the drug trafficking matters. 9. I must say with the maturity of reflection which I do not believe I had in sentencing Mr Trejos, because my memory is I sentenced him on the day of the evidence and the submissions, it would have been within legitimate sentencing discretion to have fixed the sentences for the drug supply matters partly accumulative upon the sentence for the deal with proceeds of crime matter. 10. Be that as it may, it is quite clear, both by reference to the submissions of the learned Crown Prosecutor and some submissions of counsel for the accused, that the sentencing of Trejos is a very significant matter bearing in mind the two offenders have three common charges in which they were participating in pursuit of a joint criminal enterprise. In fixing the appropriate sentences for Mr Hernandez there are a couple of observations that need to be made from the outset. 11. Firstly, the facts in relation to Mr Trejos where they dealt with the common charges are effectively identical, or almost identical, to the facts that arise here. Secondly, in fixing the sentences for Mr Trejos, ordinarily my practice would be, bearing in mind that offences committed over a period of time would suggest, for example, at the time of the last offence in time that the offender was at that time an unconvicted offender in relation to offences earlier in time that he was pleading guilty to, the significance of any good character in relation to the last offence in time would not be as much as it may be applicable in the case at the time of the first offending. The difficulty I had of course in sentencing Mr Trejos was that I had to take into account in relation to the first offence in time matters on a Form 1 which does not apply here. Ordinarily I would have fixed sentences in relation to Mr Trejos involving some slight escalation of penalty, taking all relevant matters into account, from the first offence in time to the last offence in time. 12. It came to pass thus that when I sentenced Mr Trejos in relation to the matters that are common here, the starting point of the sentence that I imposed on Mr Trejos for the first offence in time, that is, the supply on 16 September, was 12 years imprisonment, taking into account, as I said, the matters on the Form 1; ten years imprisonment in relation to the second offence in time; and nine years imprisonment in respect of the third offence in time. I then accorded Mr Trejos a discount of 25% on each sentence to recognise the utilitarian benefit of his pleas of guilty which were entered at the first reasonable opportunity. 13. In approaching the sentence of this prisoner, of course, I have had close regard to Mr Trejos's sentences because, amongst other things, parity of sentencing clearly arises. Parity of sentencing has been discussed in a large number of authorities. The High Court has considered it in decisions such as Lowe v R [1984] HCA 46; Postiglione v The Queen (1997) 189 CLR 295, particularly the judgments of Dawson and Gaudron JJ; and in many decisions of the Court of Criminal Appeal, particularly, if I may refer to it briefly, the decision of Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 5 where respectively Campbell JA of the Court of Appeal, Rothman and Howie JJ of the Common Law Division of the Supreme Court wrote independently about the concept of parity of sentencing. 14. The parity principle is a manifestation of 'equal justice.' Equal justice is an Aristotelian principle of equality and effectively it means that like shall be treated alike and the unalike shall be treated unalike to the extent of their unlikeness upon reasonable and rational grounds. Thus, in sentencing this prisoner, I have obviously considered the matters pertinent to him that may distinguish him from Mr Trejos bearing in mind of course their different roles in the offending in the context of their participation in a joint criminal enterprise and bearing in mind of course very substantial different subjective circumstances. I will come back to those subjective matters shortly. But they, amongst other matters, I am required to take into account pertinent to the case conducted on behalf of this prisoner, are of considerable significance. 15. I obviously do not propose to read the entirety of the agreed facts. My remarks in relation to the facts have to be seen in the context of the fact-finding I made in respect of Trejos, but it is worth noting two features of the matter. 16. The prisoner gave evidence in relation to this matter and gave some evidence of the circumstances in which he met Mr Trejos which I am prepared to accept. What emerges from that, however, is the conclusion that Mr Trejos was looking for someone to assist him to distribute cocaine that he, Trejos, had facilitated the importation of into this country from Colombia. 17. The prisoner was willing to assist Mr Trejos. They both spoke Spanish and they had no difficulty communicating with one another. Mr Trejos in fact is Colombian, as is this prisoner, although I do not draw any inference adverse to this prisoner simply from the fact that he is from Colombia. The statement of facts, which I point out is an agreed statement of facts that was tendered with the signature of the prisoner upon it having been translated by an interpreter, notes that between 16 September 2014 and 23 February 2015 Trejos and the prisoner communicated by text message, phone conversation and in person "for the sole purpose of discussing, arranging and negotiating the supply of prohibited drugs." 18. Police had information indicating that Trejos was involved in the supply of prohibited drugs, namely cocaine, originally sourced from South America and imported into Australia. Trejos was the 'upline' supplier of prohibited drugs to Hernandez. There is no basis to conclude that Mr Hernandez had any involvement in drug supply until such time as he was approached by Mr Trejos. I accept, as the facts obviously reveal, that while Mr Hernandez was an enthusiastic participant in this joint criminal enterprise, Mr Trejos was clever enough to know that by having someone like Mr Hernandez negotiating the sale of drugs on his behalf, he, Trejos, was removed from the transaction to the extent that he could avoid detection. Little did he know, of course, that he was the subject of a police operation throughout the entire time. 19. The prisoner, it must be said, in the context of evidence that he gave before me, was no 'patsy', although I accept there was an element of naivety. He sought to represent himself to an undercover police officer with whom he negotiated each of these supplies as a person who had knowledge about the supply of drugs, some of that knowledge, of course, provided to him by Trejos and, as I said, enthusiastically negotiated matters on Trejos' behalf. 20. The first count concerned a supply by the prisoner to the undercover officer in exchange for $112,500. The amount was 500 grams of cocaine and the exchange took place in the vicinity, as I understand it, of the Canterbury railway station. The prisoner and Trejos met immediately after the exchange. The prisoner, according to the agreed facts, gave Trejos most of the money and later claimed that he received $6,500 for his role in this transaction. 21. I pause for a moment to point out that Mr Trejos gave evidence before me, which of course Mr Hernandez's counsel had not the opportunity to cross-examine upon, concerning what he claimed to be his benefit from the sale of the prohibited drugs and I did not accept Mr Trejos' evidence. In my view he sought to downplay the extent of his profit bearing in mind his importance to this scheme, being the person to whom the drugs were forwarded from Colombia from an acquaintance of the Trejoses from past time. 22. On 16 January 2015 the prisoner met with an undercover officer near the Canterbury ice skating rink and the prisoner made an offer to supply the undercover officer with 1.5 kilograms of cocaine for $300,000. He could only have done this, I hasten to say, with the approval of Trejos. The undercover officer could not purchase that quantity and further negotiations took place. The prisoner was also recorded discussing the possible sale of drugs to a third party unidentified but ultimately it was agreed that 500 grams would be made available by the prisoner. 23. The next supply occurred, as the particulars state, on 3 February. This occurred in the car park of the Canterbury ice skating rink and the prisoner was in communication with Trejos who was nearby. In relation to this quantity of drugs, the prisoner received $94,500 and claimed that he received $5,000 for his role in this particular transaction. The particular prohibited drug, cocaine, was 70.5% pure on this occasion. Bearing in mind the drug had been sourced directly from Colombia, the high level of purity of the quantities of prohibited drugs can be understood. 24. There were also between 11 December 2014 and 23 February 2015 a number of meetings between the prisoner, the undercover officer who purchased the drugs on the occasions giving rise to counts 1 and 2, and another undercover operative who apparently could speak Spanish. There was discussion here by the prisoner about Trejos organising for a coffee machine to be sent from South America which would contain 2 kilograms of cocaine within it. 25. The prisoner indicated to the undercover officers, not knowing that they were undercover officers, that if they were prepared to receive the coffee machine on behalf of Trejos then Trejos would pay them $30,000 for that task. I hasten to say these representations by the prisoner no doubt were at the behest of Trejos. The third offence in time and the last matter again involved a supply to the undercover officer in the car park or the near vicinity of the Canterbury ice skating rink. 26. The prisoner was arrested at the scene on this occasion and the facts reveal that the drug, which actually weighed 498.67 grams, had a purity of 70.5%. The prisoner was interviewed by police. He had poor English skills, so he said, and a Spanish interpreter was obtained. During the course of the interview he admitted supplying cocaine to the undercover officer. 27. Trejos also was interviewed and made various admissions. I hasten to say, as I discussed with his counsel, although ultimately it is only relevant to the issue of the extent of his contrition, it is difficult to see what if any defence, if that is the correct word, the prisoner had to the charges. I note the prisoner's evidence to me would seem to suggest that the prisoner felt that the negotiations with the undercover officer in various ways had been in some way misinterpreted or that the scheme that he was involved in was a result not of his doing, but of the intervention of a third party. Either misrepresenting what he was saying to the undercover officer or doing the deal on his behalf. 28. In rebuttal of these general claims by the prisoner, the timing of which, it is to be fairly said, is fairly vague given the terms of the evidence of the prisoner, the Crown produced a statement from Nathan Jackson relating to matters concerning this investigation and many transcripts of listening device conversations. I have referred to the fact that the prisoner was enthusiastically involved in relevant negotiations and transactions because that is precisely what the transcripts reveal. While some discussions occur in the presence of a Spanish-speaking person, in my view there is nothing to suggest that the prisoner's intentions or communications with the undercover officer who was purchasing the drugs were misrepresented or in some way elevated to a more serious situation than the facts reveal. 29. The truth of the matter is the prisoner made a bargain for a certain amount of money on two occasions to supply drugs and handed the drugs over and received the money and then made a bargain on a third occasion to supply drugs and was arrested before the cash could be handed over. 30. The statement of the officer relating to the additional material I have notes the limited role of the undercover officer who spoke Spanish and it noted amongst other things that the prisoner had met with the undercover operative who purchased the drugs on five occasions and "was able to converse with him in English sufficiently enough to negotiate and effect the supply of prohibited drugs." At no time, it is said, did either of the undercover officers assist the prisoner in filling out any documentation. 31. The prisoner suggested in his evidence that his involvement in this matter was closely linked to a belief that he had that he was going to be assisted in relation to immigration problems that he had. There is no evidence that the undercover officers were involved in that and in my view the facts clearly speak of the prisoner involving himself in the commission of these offences for the reason that he wished to obtain cash. 32. Part of his case which I accept is that the prisoner was a person who worked as a tiler and other unskilled work. He had a number of financial difficulties. Many references refer to the fact that he was not paid for work that he did and was somewhat exploited because of his limited English. The prisoner also had the particular problem that he had a visa to reside in this country and work but his wife and two children, who had been living with him for a period of time after his arrival in Australia in 1997, were deported by the Australia government for not having legal reason to be in the country. They apparently entered the country on a temporary basis but stayed longer than they were permitted to do and were deported, ultimately, to currently live in Chile. 33. I accept as part of the factual matrix of the matter that the prisoner was very concerned about their welfare and was endeavouring to raise money to pay for immigration agents and other services to try and affect their return to this country. I accept that part of the prisoner's 'greed' in this matter or financial advantage, to put it in a more neutral way, was directed not at personal enrichment as such but to assist him financially in relation to matters pertaining to his family situation which was of course very unsatisfactory, at least from his perspective. 34. Of course this does not excuse his conduct but certainly there is in his offending not the same level of greed that was self-evident in Mr Trejos' involvement which was purely commercial, premeditated and well organised. It is for this reason, in the context of being required to consider offences with a standard non-parole period of ten years, that I have determined that, by regard to the findings I made in relation to Mr Trejos, I should assess the objective seriousness of the offending in accordance with s 54A(2) Crimes (Sentencing Procedure) Act 1999 as below that of the offending of Mr Trejos. 35. Mr Trejos was the person who had received the cocaine from overseas. Mr Trejos has never been charged in relation to those separate importation offences. I must take into account the common features to both offenders in this assessment of the objective seriousness of the offending, the quantity of the drug in question and adopt the observations I made in the sentencing of Mr Trejos as to the percentage purity, the fact that Mr Trejos, if there be any particular organisation or planning in this offending, was much more heavily entrenched in that planning, although the prisoner took up on behalf of Mr Trejos the task of negotiating the sales that were effected. 36. In relation to the offender's offending, an assessment by reference to the middle range of objective seriousness must be, as I said, an assessment below that of Trejos. It is clear to me that Mr Trejos was to receive a greater profit. He had spent more time organising the arrangements and found in the prisoner a willing handmaid. I made the observation in sentencing Mr Trejos that it was unclear on the material at the time of sentencing Trejos as to the character of their relationship. This prisoner was not part of any organised criminal activity and thus it is fairly to be said that objectively speaking Mr Trejos in each instance is more culpable, both criminally and morally, in relation to this offending. But for the approach from Trejos the prisoner would not have been involved in the offences with which I am concerned. 37. With regard to the personal circumstances of the prisoner, in the context of having regard to matters I took into account in relation to Mr Trejos, the prisoner had no prior criminal convictions at the time of this offending. Mr Trejos on the other hand had a very substantial conviction in the United States which involved a custodial sentence of more than five years for apparently importing or transporting heroin into that country and that is a very substantial distinction between this prisoner and Mr Trejos in regards to a consideration of the objective facts. 38. It needs to be borne in mind that I concluded in Mr Trejos's case that his connection with the drug supply world was a matter that had facilitated the arrangements that led to him being able to receive drugs from Colombia, a matter that does not fall at the feet of this prisoner. It is also a matter relevant in assessing mitigating matters under s 21A(3) to which I will return shortly. The prisoner is a married man. He gave evidence before me, as I said, of his personal circumstances. I am prepared to accept what has been said by him albeit that I do not accept what he has said about the objective offending. There is considerable support for the personal picture that emerges from his own evidence. I have references from his family and his children. He is a devoted father, a devoted husband. His family regard him as an honest person, not only his immediate family but his sister and other people within the Spanish-speaking community in Sydney. 39. His parents in Colombia have some ill health but the prisoner does not have any particular responsibility for them and there are no 'exceptional circumstances' arising out of the personal health of any member of his family. His family are of course very upset and shocked by what has happened and I appreciate, as I said earlier, that part of the explanation for the prisoner's offending lies in the very sad situation, it must be fairly said, of his separation from his wife. 40. I have no doubt that the prisoner maintained his presence in Australia in order to try and develop his business as a tiler and to gather money for his family in the hope that they could perhaps return to Australia. By committing these crimes, of course, the prisoner has probably brought an end to any opportunity for his wife and children to return to Australia, at least with him. It will be inevitable, I would have thought, once he has served his sentence that he will be deported. 41. A member of the Spanish community, as I said earlier, has spoken of his industry and in that regard there are a number of references from people for whom he has done work who have spoken of the skill of his tiling, the integrity with which he has carried on his work, the fact that he has always indicated his responsibility for the welfare of his family, that he has on occasions demonstrated great generosity and professionalism in working for people dependent upon him to undertake tasks for them. Thus, I conclude that, generally speaking, the prisoner has been hard working and law abiding as his criminal history makes clear. 42. I have a psychologist's report that was presented on his behalf from a psychologist who has assessed the prisoner. The report is dated 7 September 2016 and whilst the history given by the prisoner in it, which was adopted in his evidence and not challenged to any real extent by the Crown, appears unremarkable and was the subject of comment in submissions, little was said in submission about the relevant findings of the psychologist which I need to address. I should point out that his sons, as I understand it, were born around about 1999 and 2000 and are thus approximately 17 and 16. 43. The prisoner told the psychologist details about his family in Colombia. He comes from a poor family. His father was a farmer. He never demonstrated any mental illness or learning difficulties in his upbringing. His medical history is unremarkable. He has some knee and ankle problems and he has some asthma but nothing of significance that would make his time in custody a burden. He has never received any psychiatric or psychological counselling, although he thinks that he may well have needed some prior to committing this offence. Part of his explanation for the commission of the offences, as I have earlier noted, is tied up in the circumstances of his family and the fact that he paid a lot of money to migration agents. 44. No doubt he had not received value for money in that regard. He states that he got involved in these offences because he was told someone might help him with the immigration. The reality is that what would help him in relation to his immigration problems was the obtaining of sums of money. Various psychological assessments were undertaken of the prisoner and the findings of the psychologist were that at the point of assessment he was severely anxious. He had a moderate degree of 'depression.' His personality assessment did not reveal any psychopathic or sociopathic tendencies or features. 45. He is a person who does not have particular problems with anger or frustration. The summary or opinion of the psychologist was that the prisoner at the time of his assessment had a chronic depressive disorder of moderate degree on DSM-5 criteria. He opines that this was also present at the time of the offending and could "negatively influence or even ignore his usual decision-making capacity." 46. It is to be fairly said in the context of all that I know of the prisoner that his conduct in relation to this offending was uncharacteristic and as I said, his personal circumstances no doubt weighed upon his failure of good judgment. But I have difficulty accepting that there is a direct causal connection between an established mental illness or disability and the offending. That having been said, I have no doubt that he was reactively anxious and concerned about his family situation and that concern is a matter that impacted upon his judgment. 47. It was not raised in submission, I was not helped in any way by counsel for the prisoner about this matter. But, of course, the diagnosis, if I can call it that, of the psychologist if he is qualified to make the diagnosis, does raise the consideration of what was said to be the relevant principles relating to the sentencing of persons with a mental disorder or disability summarised, for example, in the decision of DPP (Cth) v De La Rosa [2010] NSWCCA 194, particularly at [177]-[178]. 48. The matters that the learned then Chief Judge of the Common Law Division, McClellan CJ, referred to included lesser weight in the appropriate case being given to general deterrence, consideration of greater weight to specific or personal deterrence if the condition might cause someone to be at risk of offending in the future, the circumstances of a person's custody to be taken into account, the effect upon moral culpability and the like. His Honour pointed out at [178] that the particular condition did not have to be an intense condition, it could be a moderate condition. 49. As I said, I am bereft of assistance as to how I should treat this matter in this sentencing exercise bearing in mind I have no evidence of any significant confirmation of any existing symptom or condition at the time of the offending that would support a conclusion of the presence of a debilitating or substantial mental disability or disorder. Also bearing in mind of course the willingness of the prisoner to participate in the negotiations and the period of time over which they occurred. This is not a case of a person offending on one occasion in response to a particular acute situation. 50. I have concluded ultimately, having given the matter anxious consideration overnight, that the evidence is insufficient to give lesser weight to general deterrence. Certainly there is no regard to be given to any matter that might suggest greater weight being given to personal or specific deterrence because of some mental condition. There is no evidence the prisoner is suffering any hardship in custody. The matter has not been raised. He is not receiving any treatment, nor receiving, as I understand it, any medication. 51. It seems to me, however, that the matters to which the psychologist is referring are very much tied up in that aspect of the history obtained that 'desperation' motivated the prisoner to embark upon conduct which was uncharacteristic. There is nothing in his personality disorder to suggest that he is an otherwise dangerous person to the community. There is reference in the psychologist's report, as there is in the references that I have read, to the prisoner being a trusting person. It would appear perhaps some element of exploitation of him, not by Trejos, I hasten to say, but by those with whom the prisoner was dealing for the purposes of his immigration problems. 52. In sentencing the prisoner I am required to have regard to the purposes of sentencing. Pursuant to s 3A of the Crimes (Sentencing Procedure) Act 1999 there is a requirement for adequate punishment. There is proper weight to be given to deterring the offender and others. I do not believe the community requires protection from the offender as such, although I note as a collateral matter that whilst the drugs went to an undercover officer and thus there was no damage to the community, there was potential for damage to the community. But I do not believe the prisoner really thought through that particular aspect of the matter himself. 53. Drugs going into the community can damage in our community in a range of ways, provide a motivation for people to commit further crimes, damage people's health, damage their family relationships and the like. Thankfully in this matter the drugs were intercepted by police. I am required to promote his rehabilitation even if that has to occur in circumstances where he will be overseas, make him accountable for his actions, denounce his conduct. There is no particular victim whose harm has to be recognised in this matter. 54. By regard to s 21A of the Crimes (Sentencing Procedure) Act 1999 there are no particular 'aggravating factors' specifically drawn to my attention. It is true that the offence was committed 'in company' in one sense but as part of a joint criminal enterprise. The 'in company' aspect of the matter, which was not discussed with me, is more concerned where the presence of another would aggravate the objective offending which does not arise here. There is consideration, as there usually will be in drug dealing cases, that the offence was committed without regard to public safety but again there was no particular issue raised with me in that regard. 55. His learned counsel in his helpful submissions raised with me the issues of discount for the plea of guilty, his role compared to that of Trejos and the like in the context of dealing with s 21A(3) of the Act. I accept from the submissions made by his counsel that there was no injury, harm, loss or damage which was substantial, again because undercover officers were involved. 56. I am of the view that the offending could not as a mitigating factor be found to be "not part of a planned' activity. I do not find it as an aggravating factor either in the context of decisions from judges such as Howie J reflecting upon the extent of planning in drug supply matters as a general rule. Certainly, as a mitigating matter so far as the prisoner's role is concerned, I could not conclude that this was 'organised criminal activity.' 57. Furthermore, as a mitigating factor under s 21A(3), the prisoner does not have any record of previous convictions. I accept he was a person of good character, at least before the commission of the first offence. I accept he is unlikely to reoffend. The experience of being in gaol will be a salutary experience. Notwithstanding what the learned Crown said very skilfully in his submissions to me, given the prisoner's evidence before me, I do accept that the prisoner does have good prospects of rehabilitation. He has, it seems, on the psychological report, a personality that does not speak of a risk of antisocial conduct in the future and of course he has a history of industry and a devotion to his family which is in his favour in that respect. 58. With regard to the issue of remorse, ultimately I cannot find as a mitigating factor of substance that the prisoner is remorseful. I appreciate he has said that he is sorry and I believe that he is genuine in saying that he is sorry. His evidence before me and the delay in entering the plea of guilty to the matter, to my mind reflects, as the Crown has pointed out, a failure to show on balance that he has accepted responsibility for his actions. I come back, however, to one aspect of this that the Crown mentioned that I raised earlier. 59. It is clear the prisoner is a somewhat naïve person or a relatively 'simple' person, without any disrespect to him. I accept that he is a person not used to the criminal legal system. It may be that he had the fond hope that there might have been something in the conduct of the undercover officers that might have lent some support for a plea of not guilty. At the end of the day when the matter comes before me for sentence, not only does any issue of duress not arise, but there is no issue of non-exculpatory duress arising as a mitigating factor. 60. There is nothing that I read in the listening device material to suggest that this prisoner was encouraged to commit the crimes that he did in any way. The conduct of the undercover officers was, in my view, exemplary. The prisoner's plea of guilty is a mitigating factor but of course that is a matter that receives a discrete discount as well. 61. With regard to the submissions of the learned Crown Prosecutor, he very carefully analysed what could be seen as the distinctions between this prisoner and Trejos. First of all, Trejos was involved in a greater 'course of criminal conduct': the matters on the form 1, his possession of the cash. The possession of the cash spoke of a much greater financial profit to Trejos one way or the other than claimed by the prisoner. I accept that the moral culpability of Trejos is greater in relation to this offending as is his objective culpability given the connection he had with the importation of the drugs into Australia from Colombia. 62. That having been said, this prisoner is not significantly less culpable than Trejos bearing in mind of course that he was not simply a messenger. Because he was actively involved in negotiations he was prepared to take up the arrangements that Trejos sought to put in place. The Crown made various submissions about the circumstances of those negotiations. 63. The Crown referred to the differences to be given to the discounts for the utilitarian benefit of the plea of guilty. The Crown acknowledged Mr Trejos as an upline supplier. In that regard I should say the crown very helpfully, as he always is very helpful, took my attention to the decision of Kemp v R [2014 ] NSWCCA 153. The Crown Prosecutor properly drew my attention particularly [27]-[36] of the very learned judgment of her Honour McCallum J. 64. In that case her Honour was making the point that just because one person provides to another to provide to another does not mean that there is some sort of vertical or linear hierarchy of objective seriousness or criminal culpability. She made the point that it does not necessarily follow that a person is "higher up in the chain" simply because of the manner in which drugs might pass from one person to the other. That case involved various facts and concessions at first instance that do not arise here. That offender was variously described as a distributor, not simply a courier, and there were concessions, as I said, made at first instance that were determinative of the disposal of that appeal. But ultimately it is quite clear both in the agreed facts and in the assessment of the matter and the concessions made that Mr Trejos' culpability is greater in this case. 65. The Crown helpfully acknowledged, although it was not referred to by counsel for the prisoner, the need to give consideration to s 44 of the Crimes (Sentencing Procedure) Act 1999, which I do. There will need to be some extent of partial accumulation to reflect the totality of the criminality. I have given this prisoner's sentences the same degree of partial accumulation as for Mr Trejos but of course the sentences to be imposed on this prisoner, having regard to the different considerations between the two offenders, both objectively and subjectively, lead to this prisoner receiving a lesser sentence, perhaps a substantially lesser sentence. 66. With regard to the 'special circumstances', I believe also that apart from the issue of partial accumulation, sentencing the offender as if he were to be released to the community in due course, notwithstanding the prospect of deportation, that I should give the prisoner an extended period of supervision to enable him to adjust to community living. 67. I note that he is being sentenced to a term of imprisonment for the first time and the non-parole period I fix will clearly have a salutary effect upon him to prevent him offending in the future in my view. I appreciate the minimum period must reflect sufficiently the objective seriousness of his offending. 68. Thus, having regard to all the submissions that have been made and the evidence that has been provided to me, I propose to make the following orders, the sentences, as I said, reflecting a 10% discount upon the otherwise appropriate sentence. Could you stand up, please, Mr Hernandez. 69. In relation to count 1, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of three years. That will date from 23 February 2015 and expire on 22 February 2018. I fix a balance of sentence in relation to that sentence of three years imprisonment. That sentence will expire on 22 February 2021. 70. In respect of count 2 you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of three years. That will date from 23 February 2015 and expire on 22 February 2018. I fix a balance of sentence in relation to that matter of three years three months. The balance of sentence will expire on 22 May 2021. 71. In respect of count 3 you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of three years. That non-parole period will date, however, from 23 February 2017, not the expiry of the non-parole period that I have ordered, and that non-parole period will expire on 22 February 2020. 72. I fix a balance of sentence in relation to that order of three years six months. That balance of sentence will expire on 22 August on my calculation 2023. You can take a seat, Mr Hernandez. Just take a seat, thank you. Thank you, Mr Interpreter. That means the effective sentence I have imposed is eight years six months imprisonment with an effective non‑parole period of five years imprisonment. You will be eligible for release to parole on my calculation on 22 February 2020. It will be a matter for the NSW Parole Authority as to whether you are released on that date. Your release will be dependent upon whatever action the Australian Department of Immigration and Border Protection takes in respect of your situation. 73. CROWN PROSECUTOR: I think those are correct. I don't have with me any instructions, and I apologise for this. 74. HIS HONOUR: For the destruction of the drugs? 75. CROWN PROSECUTOR: Yes. 76. HIS HONOUR: I think I ordered those on the last occasion. 77. CROWN PROSECUTOR: In Trejos's matter. 78. HIS HONOUR: We'll put in an order, destruction of the drugs unless they have otherwise been distributed or destroyed. 79. CROWN PROSECUTOR: It will either be otiose or it will actually do something. 80. HIS HONOUR: Yes, I'd expect, but I order, if it's required, the destruction of the relevant prohibited drugs. 81. CROWN PROSECUTOR: Those calculations seem to be correct. 82. HIS HONOUR: Yes, I did double-check them but that having been said, I always appreciate counsel correcting my mathematics or any slip of the tongue. In regard to the matter, I just might say, Mr Crown, I haven't marked as an exhibit the statement and the bundle of listening device-- 83. CROWN PROSECUTOR: Thank you very much, your Honour. I was actually going to raise that with your associate myself for my records. 84. HIS HONOUR: No, no, no, I'm going to do that now. 85. EXHIBIT #B STATEMENT AND TRANSCRIPTS OF LISTENING DEVICES TENDERED, ADMITTED WITHOUT OBJECTION 86. HIS HONOUR: Sir, is there anything from you at all? 87. CHAN: No. 88. HIS HONOUR: Thank you, Mr Interpreter, very much for coming to court and assisting us at short notice. It was an error on our part, the mistake was mine. I apologise for the inconvenience. Yes, thank you, Mr Hernandez. Do you understand the sentence that's been imposed? 89. INTERPRETER: Five years? 90. HIS HONOUR: Could you ask Mr Hernandez, does he understand the sentence that's been imposed? 91. INTERPRETER: Yes, I understand, yeah. 92. HIS HONOUR: It's a total sentence of eight and a half years imprisonment to date from 23 February 2015 with a non-parole period of five years effectively from that date. Do you understand that? 93. OFFENDER: Yes. Yes. 94. HIS HONOUR: Thank you, Mr Interpreter. Thank you, Mr Hernandez, you're excused. Thank you very much. 95. CHAN: May it please your Honour. 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: 18 May 2018