District Court New South Wales Medium Neutral Citation: R v TREJOS, Francisco Javier [2016] NSWDC 399 Hearing dates: 29 April 2016 Date of orders: 29 April 2016 Decision date: 29 April 2016 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Full-time custodial sentence. For orders see [95] Catchwords: CRIMINAL – supply prohibited drug – cocaine – commercial quantity – knowingly deal with the proceeds of crime – SENTENCE – early plea of guilty – form 1 offences – prior convictions overseas for similar offending – standard non-parole period – middle range objective seriousness – committed for financial gain – no drug addiction – unsophisticated operation - Australian Citizen born in Columbia – no mental illness – totality – remorse and contrition – co-operation with police – family overseas – displayed capacity to live a law-abiding life – special circumstances Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Confiscation of Proceeds of Crime Act 1989 (NSW) Cases Cited: Attorney General's Application No 1 of 2002 [2002] 56 NSWLR at 147 Huynh v R [2008] NSWCCA 216 Mill v The Queen [1988] 166 CLR 59 Muldrock v The Queen [2011] 244 CLR 120 Pearce v The Queen [1998] 194 CLR 610 R v Thomson; R v Houlton [2000] 49 NSWCCA 309 Raniga v R [2016] NSWCCA 36 RCW v R (No 2) [2014] NSWCCA 190 Riggio v R [2015] NSWCCA 223 Category: Sentence Parties: Regina (Crown) Francisco Javier Trejos (Defendant) Representation: Counsel: Mr. Ly (Crown) Solicitor: Mr. Bowe (Defendant) File Number(s): 2015/56774 Publication restriction: Nil SENTENCE 1. HIS HONOUR: Francisco Javier Trejos appears today for sentence in relation to four offences to which he pleaded guilty at the Local Court and adhered to pleas of guilty in this Court. Three offences are, respectively, "Sequence 2", supplying a prohibited drug, to wit, cocaine greater than the commercial quantity for that prohibited drug an offence committed on 16 September 2014, "Sequence 3" another supply prohibited drug, namely, cocaine greater than the commercial quantity, that offence was committed on 3 February 2015; "Sequence 4", that is another offence of supply prohibited drug greater than a commercial quantity, to wit, cocaine, an offence committed on the date of the prisoner's arrest on 23 February 2015. 2. Each of those offences, contrary to s 25A(2) Drug Misuse and Trafficking Act 1985, carries a maximum penalty of 25 years' imprisonment and/or a pecuniary penalty of 3,500 penalty units. Each offence has a standard non-parole period of ten years' imprisonment. 3. The fourth offence is described as "Sequence 7", that is, knowingly deal with the proceeds of crime, to wit, $104,500 found in the possession of the prisoner, in the sense of hidden in his home on the day of his arrest, that is, 23 February 2015. This offence carries a maximum penalty of 15 years' imprisonment and there is no standard non-parole period. 4. Clarifying the matter with the learned Crown Prosecutor, who now appears but did not appear at the original proceedings, it would seem that the principal offence for the purposes for the fixing of an appropriate sentence for the principal offence pursuant to s 32 Crimes (Sentencing Procedure) Act 1999, given there is a Form 1 on which are two offences, both committed on 23 February 2015, is the Sequence 2 offence. The offences on the Form 1 are of supplying a prohibited drug greater than an indictable quantity, to wit, 28 grams of cocaine in the possession of the prisoner at Canterbury when he was arrested, and a further offences of supplying a prohibited drug greater than the indictable quantity, to wit, 131.10 grams of cocaine located at the residence of the prisoner, and police continued their investigations after the prisoner's arrest. 5. These offences, if prosecuted separately, would pursuant to s 25(1) Drug Misuse and Trafficking Act 1985 carry a maximum penalty of 15 years' imprisonment. I will deal with the salience of the Form 1 matters when I come to some legal issues that are required to be considered in sentencing in these circumstances. 6. The prisoner pleaded guilty at the Local Court and continued his pleas of guilty in this Court. He is entitled to a discount upon the otherwise appropriate sentence to represent the utilitarian benefit of the pleas of guilty that have been entered. Thus, he is entitled to a discount of 25% in accordance with the 'guideline judgment' of Thomson and Houlton v R from 1999. I heard no suggestion to the contrary in the submissions from the Crown prosecutor. 7. With regard to the facts of the matters with which I am concerned, there is what is stated to be an "Agreed Facts" document signed by the prisoner on 11 November 2015 and a solicitor for the Director of Public Prosecutions. I do not propose to read all the facts, but there are particular parts of it that are required to be read to have an understanding of the basis upon which this prisoner is to be sentenced, particularly bearing in mind that the three supply offences each has a standard non-parole period which will require the court to not only fix a non-parole period in each instance, but also to give attention to a consideration of where the offence in each instance fits, by reference to an offence in the "middle range of objective seriousness". 8. The agreed facts state that "Strike Force Dufficy" was initiated by the State Crime Command Drug Squad to investigate the importation and supply of prohibited drugs, namely cocaine, by Colombian National, Jesus Arbey Mazo Hernandez, born 6 May 1960, and the prisoner, described as an "Australian/Colombian" apparently born on 2 October 1976, to turn 40 this year. 9. I pause for a moment to note, in the context of the evidence given by the prisoner, that it was acknowledged in his evidence before me that the cocaine with which the Court is now concerned is cocaine that the prisoner knew was imported from South America. In fact, the prisoner had an agreement to receive cocaine sent by a particular person that the prisoner knew and to sell the cocaine in Australia for the financial benefit of himself and that person. 10. Further, the agreed facts state: "Between 16 September 2014 and 23 February 2015 the offender Trejos has communicated by text message, phone call conversation and in person with the co-offender Hernandez for the sole purpose of discussing, arranging, negotiating and supply (sic) prohibited drugs. Police had information indicating Trejos was involved in the supply of prohibited drugs, namely cocaine, originally sourced from South America and imported into Australia. Trejos was the 'up line' supplier of prohibited drugs to Hernandez." 1. Again I interpose to point out that the prisoner's evidence before me confirmed this was the case, and I will deal with aspects of the prisoner's evidence in this respect shortly. 2. In relation to the Sequence 2 offence, this is the supply that I have outlined committed on 16 September 2014, the prisoner was under surveillance on that date and was observed to drive to the residence of Mr Hernandez. I point out in passing that I am informed by the Crown at the sentence proceedings that Mr Hernandez has a trial listed at the Sydney District Court on 1 August 2016. It is difficult to see, based upon the agreed facts, what could possibly be tried given the extent of surveillance of he and this prisoner and the relevant events that gave rise to their arrest. 3. The prisoner and Hernandez, when they were observed meeting, were also observed in the vicinity of a particular motor vehicle that apparently was under the control of the prisoner. The prisoner was observed during this operation carrying what was described as a "white and red plastic bag". Hernandez had apparently, at the instigation of the prisoner on the prisoner's own version of events in his evidence in this Court, secured a purchaser for the cocaine. This person, I am assuming, was either an undercover police officer or was a person acting at the behest of the New South Wales Police or was known to the police. His identity does not matter. 4. Hernandez on this date met this person near the Canterbury railway station. He apparently disappeared from view for a short period of time and then re-emerged getting back into the vehicle of the person that was known to police. During the meeting with the "known person" in this vehicle, Hernandez was, "monitored and recorded supplying the known person with a white and red 'The Reject Shop' black plastic shopping bag similar to the bag initially sighted in the prisoner's possession". 1. This shopping bag contained a plastic container which in turn was found to contain, to be precise, 499 grams of cocaine with a purity of 67.5%. The man Hernandez during the course of his meeting with the "known person" actually tasted some of the cocaine, snorted it and discussed the "power", "strength" and "purity" of the product. The "known person gave Mr Hernandez $112,500 in exchange for the "500 grams" of cocaine. 2. Prior to the meeting concluding it is said that both Hernandez and the "known person" discussed codes to be utilised when speaking on the phone so as to avoid police detection. Hernandez discussed a future supply of "commercial" to "large commercial" quantities of cocaine. Communication between Hernandez and the prisoner was captured by telephone intercepts indicating that Hernandez and the prisoner arranged to meet immediately after the cocaine had been supplied to the man who had been handed the cocaine. 3. The facts state that Hernandez gave the prisoner "some of the money". The prisoner's evidence before me was that the arrangement with Mr Hernandez was to the effect that he, the prisoner, in respect of any cocaine provided to Hernandez to supply to a third party, would receive on the first sale $85,000, with Hernandez making a profit by negotiating a price above that. In relation to the other sales, the prisoner had an expectation of receiving $80.000 per half kilogram. 4. The second supply occurred on 3 February 2015. Again the prisoner and Hernandez were closely monitored by the police. To cut to the nub of the matter, on that date the prisoner and Hernandez drove in the prisoner's car, as I would understand it, to the Canterbury ice skating rink. Hernandez was dropped off. Hernandez met with this "known person" and supplied what ultimately was discovered to be 498 grams of cocaine with a purity of 70.5%. The "known person" gave Hernandez $94,500 in exchange for the cocaine. The prisoner was observed driving around the block and in nearby streets while this transaction was occurring, and eventually picked up Mr Hernandez, dropping him off nearby at another location. The facts state: "Between 11 December 2014 and 23 February 2015 a number of meetings between Hernandez and two known persons were monitored and recorded. During these meetings Hernandez spoke at length about he and the offender were planning on importing cocaine into Australia. Specifically Hernandez stated that the offender was organising for a coffee machine to be sent from either Argentina, Peru or Panama into Australia, which would contain two kilograms of cocaine within it. Hernandez informed the known persons if they could receive the coffee machine on behalf of the offender, that the offender would pay the known persons $30,000 for receiving it." 1. The status of that paragraph was never discussed in the sentence proceedings before me. This matter came before me as part of a number of sentence matters I was dealing with on that day during an adjournment of a trial in which I was involved. 2. The issue of what those representations mean in terms of the prisoner's culpability is concerned has never been discussed. It could be said that these are representations made by Hernandez, either with the authority of the prisoner or in pursuit of what could be called generally a "joint criminal enterprise" to make arrangements to supply drugs to others. But ultimately I can glean little, if anything, of significance for the purposes of these sentencing proceedings in the absence of some assistance from either counsel as to how I should treat that statement. 3. Certainly it is without doubt that the prisoner had over the period of time covered by the charges a standing arrangement with Mr Hernandez that Mr Hernandez would negotiate with others to purchase cocaine that the prisoner could provide to Mr Hernandez, based upon the financial arrangements I have already outlined. 4. The prisoner and Mr Hernandez finally came unstuck, so to speak, on 23 February 2015. The prisoner picked up Hernandez at an address in Canterbury and again took him to the Canterbury ice skating rink. Hernandez met a "known person" and supplied that person with 498.67 grams of cocaine with a purity of 70.5%. As soon as that cocaine was supplied Hernandez was arrested, the prisoner was arrested about 150 metres away in his car. The prisoner, when he was arrested, told the police that there was "an ounce of cocaine in the glove box". This gives rise to one of the two offences on the Form 1 to which I referred, that is, the possession of what is described as 28 grams of cocaine. 5. The prisoner was taken back to Canterbury Police Station and, to his credit, which I have taken into account, he participated in an electronically‑recorded interview, making full admissions with respect to supplying what is described, wrongly, as a "large commercial quantity of cocaine over the course of several months". In a legal sense that cannot be correct. Each of the individual supplies constitutes a commercial quantity, but the total quantity of cocaine supplied, being close to 1.5 kilograms, if taken globally is "a large commercial quantity". In that regard, it is worth noting that a trafficable quantity of cocaine is 3 grams, an indictable quantity is 5 grams, a commercial quantity is not less, as I understand it, than 250 grams, and a large commercial quantity is not less than one kilogram of cocaine. 6. The prisoner told police, as the facts state, that he was "only involved with Hernandez for the purpose of conducting what he described as business". 7. "(He) clarified the term 'business' as referring to 'drug dealing'". The prisoner "ultimately made full admissions to sourcing, transporting, facilitating the supply and actually supplying prohibited drugs to Hernandez in various quantities in exchange for cash". 8. With regard to the Sequence 7 offence, that is, knowingly deal with the proceeds of crime contrary to s 193B(2) Crimes Act 1900, that arises from a search conducted of the prisoner's residence. Police found $104,500 in Australian currency located inside a shoe box in the premises. The prisoner stated that at least $80,000 from the $104,500 located in the shoe box were proceeds from the supply of prohibited drugs, but his plea of guilty would have acknowledged, it would seem, that in fact the full total of that sum of money was related to drug supply activity. 9. One of the interesting things that arose in the course of the conduct of the case was the assertion of the Crown, not objected to nor disputed by the defence, that the cash found in the shoe box was in fact different cash than cash that had been previously supplied to Hernandez, presumably the bulk of which was to be passed back to the prisoner on his own version. 10. This raised the interesting issue as to whether the $104,500 was cash which could be described as related to "criminal activity" other than that with which the prisoner has been charged. The issue was the subject of evidence by the prisoner. It seems to me ultimately that I could not be so satisfied beyond reasonable doubt even though there were a number of unusual features about the matter particularly the absence of connection with what was described as "buy money" that this is related to separate criminal activity. An inference may be drawn that that is so, but an inference drawn beyond reasonable doubt would have to exclude all other possible inferences. Although there was evidence about the matter from the prisoner and other matters relating to that issue were brought to my attention I cannot conclude beyond reasonable doubt that it relates to what could be called an "unrelated" criminal activity other than that which the prisoner has been charged and is to be sentenced. The bottom line is whilst I find the prisoner's evidence unpersuasive in many respects on this issue it is not a matter that I can reach a conclusion upon to the requisite standard . I am unable one way or the other to determine the matter. As I have determined to structure the sentences, in any event, the sentence I propose to impose for the sequence 7 offence will be entirely concurrent with the sentence I impose in relation to the sequence 4 offence. 11. With regard to the prisoner's criminal history, if I could deal with that just for the moment before coming back to the objective facts, the prisoner has no prior convictions in New South Wales but he does have significant convictions in the United States. I have an almost unintelligible document provided by Interpol telling me that he was arrested on 17 February 2004, it would seem, in the United States and charged with offences variously described as conspiracy to possess with intent to distribute heroin, possessing one kilo or more of heroin and importation into the United States one kilogram or more of heroin. Precisely what charges he pleaded to is not made known to me in what I would I regard as sufficient detail. Certainly, nowhere near as sufficient detail as I would be able to obtain from such records from New South Wales or elsewhere in Australia. What I understand is that he was sentenced to a term of imprisonment of which he served of just over six years and was released to some form of parole, but was automatically deported from the United States, as would happen if he was a foreign national convicted in Australia. There was a suggestion that that period of parole ran for a period of time which would include the time at which the offences with which I am concerned occurred. In fact the Crown in his helpful written submissions sought to suggest that an aggravating factor was that the offences with which I am concerned were committed whilst the prisoner was on conditional liberty. After some discussion of that matter with the Crown he withdrew that submission, and rightly so, because on the basis of the information available to me I could not be satisfied at all that the prisoner was necessarily on parole, even though he was given what is described as "supervised release" in the document. 12. The prisoner has given oral evidence about his involvement in that offending. Whether he pleaded to one charge, two charges or three charges ultimately seems to me to be not of great moment. What I do understand is that he served a substantial term of imprisonment in the United States .His involvement was, as I would understand it, the importation into, or trafficking in, the United States of the drug heroin, as it is described at least in the Interpol document, and that he did so as a "courier". He did so for money. These propositions I am prepared to accept. 13. The issue arises in the context of returning to an assessment of the objective facts and consideration of the circumstances of aggravation relevant to be taken into account in fixing an appropriate sentence and considering an appropriate non-parole period, where there is a standard non‑parole period, whether the offending in the United States for which he received a substantial sentence was relevantly an "aggravating" factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, (hereinafter I will refer to shortly as "The Act"). Ultimately I have determined it is not an "aggravating factor" in the consideration of this sentencing. But it certainly is a relevant matter because it does not entitle, or disqualifies, the prisoner from consideration of any extension of leniency by reason of his criminal history or lack of criminal history. It must be pointed out of course that I could not conclude on balance that as a mitigating factor he did not have a "significant criminal history". Clearly the offending in the United States is significant in this sentencing exercise for two reasons. One is it is concerned with substantial trafficking in what we would call in New South Wales "prohibited drugs" and it is also the case the prisoner told me in his evidence that the person with whom he had the arrangements to import cocaine from South America was a person that he knew or had met through his incarceration in the United States in relation to that offending that was the subject of court orders in that other country. It thus provided some factual context for the circumstances of the prisoner's offending. 14. I was referred by the learned Crown Prosecutor to a number of supposedly "comparative" cases for sentencing purposes. I will come back to the relevance of those judgments when I deal with that aspect of my judgment, but what I did find from reading those cases, some of which I have seen before or considered before in other matters, was the useful exercise undertaken by other Judges of assessing in relation to the matters that were the subject of appeal the determination of where a matter lay in the range of objective seriousness to be required to be considered, particularly where one is dealing with a standard non-parole period. 15. I have concluded in respect of each of the supply matters for which the prisoner is to be sentenced, that is each of the matters requiring consideration of the standard non-parole period fixed by the legislature, those offences fall within the middle range of objective seriousness of offences of this type. I am mindful of the fact of course that the quantity of drug in each instance is 500 grams in circumstances where the particular offence for which the prisoner is to be sentenced in each instance contemplates supply of a quantity of cocaine between 250 grams or 999 grams. The quantity can be seen to be less than in the "middle" of the quantity contemplated by the legislature. But the quantity of the drug is just one factor. 16. Firstly, the quantity is substantially above that of the minimum quantity required to prove the offence. Secondly, there is absolutely no doubt that the prisoner was the principal in Australia of the drug supply "network", such as it was, with which he was concerned. On the evidence available to me of course the network only comprised himself and Mr Hernandez. But the truth is that the prisoner had made arrangements with a man in another country to receive prohibited drugs that had been exported from another country into this country. I am mindful of the fact the prisoner is not charged for a breach of Commonwealth law. 17. I am appreciative of the fact of course that the "network" was not a sophisticated network. It was as simple as you can have it. The prisoner, as he told me, received the drugs apparently through the post and then organised arrangements with Hernandez, he said, relying upon Hernandez to find a buyer and having the necessary arrangements with Hernandez as far as his commission and the like was concerned. That having been said he was the up‑line supplier, as it was described in the facts, to Hernandez. It is clear that he was intimately knowledgeable of the arrangements Hernandez was making with others, even if he did not know who the particular purchasers were. If he had known he might have warned Mr Hernandez to be a little bit more cautious about his arrangements. The prisoner's role thus in the distribution of this drug or the potential distribution of this drug was vital indeed because not only was he supplying the drugs to Hernandez but he was the person who was to pick up the drugs that were exported into the country. If he did not pick them up from a post office the drugs were not to be supplied. 18. Furthermore in each supply that he was involved in the prisoner was to receive a substantial sum of money. In this respect I am content to accept the version given by the prisoner that he had negotiated with Hernandez that above a certain minimum amount, in one instance $85,000 and in the other two instances as I understand it $80,000, the prisoner would allow Hernandez to take what profit he wished. 19. The prisoner told me in his evidence that he was only to receive $15,000 from each supply. I cannot accept this evidence. It does not stand to reason that the prisoner here in Australia, where the drug obviously would sell for far more than it would sell for in Colombia, would take all the risks involved with picking up the drug and then distributing it without receiving a much more sizeable portion of whatever money could be made from it. Of course, what he was to receive I do not know. But it does not appeal to me as sensible or even reasonable to conclude that out of $80,000 he would only take $15,000 and would somehow forward to the man in Colombia $65,000. It is clear, even on the prisoner's own version, that the prisoner was to receive a substantial profit. It would appear the prisoner had not put any money forward for the purposes of obtaining the cocaine. He obtained the cocaine on the basis that he would make what he could out of it obviously and pay back the original exporter in due course. 20. The prisoner said in his evidence in the consideration of the objective seriousness of the offending that he was solely motivated by profit or financial gain. Now in terms of all drug supplying one would have thought that was the primary motivation for being involved in the business of substantial drug supply. Financial reward is relevantly under s 21A(2) an aggravating factor. However I bear in mind as Howie J and others have pointed out in past judgments that as an aggravating factor it is not a particularly substantial matter in most cases simply because the legislature recognises that the trade in prohibited drugs with the substantial penalties that could be imposed has implicitly within it a desire for financial benefit. It should be pointed out also that the prisoner himself was not a drug user. 21. In his history to the psychologist who prepared a report there is no suggestion whatsoever of any drug issues, drug dependency, addiction or the like. So what we have is a man who cynically was prepared to obtain a prohibited drug from a foreign country and distribute it within this country for profit. There is no suggestion of a man who is dependent upon the drug for instance and is part selling the drug to obtain drugs for himself. Bearing in mind the quantity of the drug involved is not at the very middle of the range of quantities relevant but below that that I have concluded that the objective seriousness of the offending is well within the middle range of objective seriousness in each instance. It is to be borne in mind of course in fixing the appropriate sentences that when the prisoner committed sequence 2 he had committed no other crimes in Australia. But when he committed sequence 3 he had already committed by that stage, but had not been charged with, the offence that constitutes sequence 2. When he committed sequence 4, the offence on 23 February, he had already committed at that point the drug supply offences committed in September and on 3 February . 22. The offending occurred, as is self‑evident from the chronology I have provided, over a four to five month period. Clearly the offending was both premeditated and considered. It has been held in other decisions that I need not cite that planning is intimately involved in drug supply and thus finding planning as an aggravating factor would require the finding of facts consistent with a level of planning beyond that that would normally be usually associated with drug supply. There appears to be no sophisticated planning in this matter. It was a pretty simple affair. The prisoner received the drugs from overseas apparently without the Commonwealth authorities becoming involved, or directly involving themselves if they knew about it, and found an agent to assist him in the distribution of the drugs. Thus, I am not prepared to conclude that planning is a relevant aggravating factor. It is to be contemplated in the character of the offending. 23. I will come back to the issue of the structuring of the sentences, but learned counsel who appeared for him sought to suggest that the sentences that I should impose for each offence should be concurrent one with the other because the offending was part of the same general transaction. Clearly that cannot be correct. The space in time between the offending in sequence 2 and sequence 3 and the space of time between the offending in sequence 3 and sequence 4 reflects what the prisoner confirmed in his evidence, that he was dependent in the supply of drugs upon, first of all, finding purchasers but also obtaining drugs from overseas. In what quantities he received them from overseas I do not know. Whether he received many separate quantities of cocaine or he received three separate quantities, or how the cocaine was imported, is not known to me and was not a matter pursued with the prisoner at all. But clearly the offending with which I am concerned is offending that can be seen as separate so far as the drug supply matters are concerned. 24. To just return to the evidence in the case, if I may. I have a presentence report in relation to the prisoner. It is not a particularly helpful report in many respects. It seems not to, on my reading of it, refer at all to his offending in the United States which seems to me a major deficiency. So far as it provides background information relating to the prisoner I am prepared to accept that the prisoner generally has been well occupied in custody, a matter confirmed by certain certificates that have been provided to the Court. But he also has some institutional misconduct charges including creating and possessing prohibited goods and giving false information, a charge within the institutional framework I know nothing about. He is classified as an A2 un‑sentenced maximum security inmate .I accept that he has been in employment with the laundry services as a leading hand and has mostly been compliant and has not been of any managerial concern. 25. So far as his personal history is concerned he was born in Colombia. This information by the way confirmed in the evidence given by the prisoner by adopting the history given to the psychologist. He migrated to Australia when he was very young, less than one year of age, and as I understand it became an Australian citizen eventually. 26. His parents took him back to Colombia in the late 80s/early 90s. He returned to Australia in 2000. He apparently returned to Colombia again. It was there that he got involved in the importation of drugs into the United States. He served his sentence in the United States and ultimately found his way back to Australia. 27. He has been in a relationship in Australia for a number of years and I accept that at the time of the commission of the offences with which I am concerned he was usefully employed. He was involved with the Uber organisation as a driver and had other employment. 28. I am prepared to accept the proposition that he has generally, within Australia at least, been in employment. I am prepared to accept from his evidence and the reference from his partner that he was in a relationship with a person who continues that relationship with him whilst he is in custody. 29. He said in his interviews with the Community Corrections officer that he accepted responsibility for his actions. He admitted frankly that he committed the offences "purely for financial gain". Apparently he wanted to "make that extra dollar" to support his family who were overseas. He was going to make, it must be said, much more than that "extra dollar". He understood the effect of his actions upon the community. He said that he was "thankful" that the drugs were taken by undercover officers instead of released to the community. 30. He was assessed, I thought quite remarkably, as having a "low risk of reoffending". I have a great deal of difficulty accepting that as being possibly true. I find it impossible to believe that a person who first of all served six years, slightly more/slightly less, in a United States Federal prison for drug trafficking then came to Australia and then committed another serious offence of drug trafficking might be regarded at "low risk of reoffending". 31. Clearly, as he concedes himself in his evidence, the experience of being in a United States prison had not had any salutary effect on him at all. He is said by the Community Correction Service to have had a "positive upbringing" and accepted responsibility for his actions, showing insight into his conduct, and was unlikely to benefit from a period of supervision by Community Corrections. 32. At face value one might have thought that did not assist him very much in determining the appropriate non-parole periods and consideration of s 44 of the Act, that is determining whether there are "special circumstances". 33. The psychological report, in terms of psychological and potentially psychiatric matters, really tells me almost nothing. It does not appear to involve any in depth psychometric testing which one would expect to be exposed in such a report. However, to be fair, it does not seek also magnify or exaggerate what might be thought on clinical examination to be "symptoms" of alleged psychiatric or psychological conditions. 34. I bear in mind, as it is relevant to the assessment of the facts and also the subjective circumstances, that the psychologist concluded the prisoner "does not suffer a mental illness or any psychological disorder". The report in fact says, "(the prisoner) committed his offences in the context of being given an opportunity" .It confirms the history the prisoner gave to me both explicitly and implicitly that the arrangement for the supply of cocaine arose out of a friendship he developed with a person he met in custody in America. 35. I find it interesting that the psychologist points out or suggests that, "without that friendship" the prisoner "would not have had the opportunity to commit such offences". This observation, I hasten to say, is made in the context of observing that, but for the approach from the other person, selling "illicit substances does not appear to have been part of his mindset". 36. All I can say about the matter is if it simply took a phone call to persuade the prisoner to commit serious crimes in New South Wales he obviously did not need much persuasion. In this report there is a lot of background information. I am prepared to generally accept it; the details about the prisoner's citizenship, his migration to and from Colombia. His income whilst he was in the community in 2014/early 2015 from the Uber( umlaut missing) organisation was between $600 and $700 per week. 37. He has a son from a marriage that he entered into in 2002. He was 24; his bride was 16. They now have a son who is 13 years of age, they have been separated since the prisoner was incarcerated in the United States. For 12 months prior to his arrest in March 2014 he had been planning to bring his son to Australia and was hoping to provide his son with opportunities that were better than those available in Colombia. The son in fact as I understand it arrived in Australia about a month before the prisoner was arrested and on the arrest of the prisoner had to be returned to Colombia. 38. He also has in background considerable tragedy. His father was a man who apparently started off in life as an unskilled labourer and truck driver. He went into business. He owned a café of sorts. Then he went into money lending in 1994/1995. His father was murdered in 1995 allegedly over money lending. 39. I accept as a general proposition, as it permeates through the report and the history given by the prisoner, that the country from which the prisoner comes is a country of violence and of great poverty. Many people are driven into trafficking, as the prisoner said he was by transporting drugs into the United States, through poverty or what is generally described as "economic necessity" without getting into philosophical argument about the true necessity to do it. 40. I accept he comes from a generally hardworking family, but there were many problems. It was stressed by his counsel, which I accept as a proposition, that his upbringing in range of ways had many disadvantages. He had a physical injury to his arm as a child that was not properly fixed and continues with some small disability in that regard. He has had limited education both in Australia and in Colombia. 41. He has always seen Australia as providing him with better opportunities than his native country and this is one of the reasons in fact that he travelled to America. He needed the money, he believed, to support himself, his wife and their then baby/child stating that many people in Colombia survive by running drugs into America. 42. From first-and second hand experience I am very familiar with some aspects of violence in Colombia. Many years ago in the early 90's I appeared for a man called Lara‑Gomez who at that time had imported into Australia the largest quantity of cocaine ever received in the country, 100 kilograms, which has obviously been dwarfed by subsequent events. Within days of his arrest, known from information provided by the AFP, the man who recruited him in Medellín was shot dead I know that Mr Lara-Gomez was killed in custody in Goulburn Gaol after he was sentenced. Whether that was at the behest of people that he had betrayed or failed to serve properly I do not know. He was a talented sculptor whose works were on display at the Long Bay 'Boom Gate' Gallery. 43. But none of this prisoner's upbringing in Colombia excuses his criminal conduct here in Australia. It explains obviously the circumstances in which he was recruited but obviously he had no difficulty being recruited. The prisoner has a brother, as I understand it, who lives in Australia. His brother was completely unaware of his illegal activities. His brother is in regular employment and his brother confirmed matters of no great dispute about the background of the prisoner. 44. The prisoner's partner was interviewed by the psychologist and the prisoner's partner, as I said, wrote a letter to the Court setting out the character of their relationship. She speaks of his positive qualities and I am prepared to accept, of course, that in personal dealings with her and her child he has portrayed himself in favourable light without much difficulty. 45. I have another letter which as I understand it is written by the mother of the prisoner. She asks the Court to treat him with leniency. She speaks of his potential and his positive qualities and her great love for him .I accept all that to be truly held by her. She notes the prisoner would like to "turn his life around" and "correct his mistakes". 46. Of course he will return to society in due course but, as he had acknowledged, there is a price to be paid for committing serious offences. I have taken the material from his mother into account with the other material that he has produced. 47. There is some mitigation here from that body of material by reference to the matters that are to be considered pursuant to s 21A(3) of the Act. It is the case that the prisoner has shown relevant remorse and taken responsibility for his actions which is a mitigating factor. He has pleaded guilty which is a mitigating factor. His counsel submitted that he had good prospects of rehabilitation and is unlikely to reoffend. 48. Whilst the two issues are closely related I am prepared to accept that he has good prospects of rehabilitation with assistance, but whether he is unlikely to reoffend is a matter about which I could not be satisfied on balance given the history that I have outlined of his failure to head the salutary experience of being sentenced in the United States of America. 49. With regard to other matters that I am required to consider I have outlined the matters pertaining to the assessment of the objective seriousness of the offending for the offences where there is a standard non-parole period. 50. With regard to the 'deal with proceeds of crime' offence I see that, although it does not have a standard non-parole period, as being below the middle range of objective seriousness. The legislation contemplates of course a wide range of conduct giving rise to an offence of the type with which the prisoner has been charged. The sum of money is of course quite substantial but one can contemplate, of course, greater sums of money being involved . 51. I am prepared to accept, as I have earlier foreshadowed, that although I do not accept the prisoner's version of what he saw as his profit from the enterprises he still had to pay somebody else for the cocaine. But what that sum of money was I do not know. 52. With regard to the issue of the standard non-parole period in each case first of all I note the decision of the High Court in Muldrock v The Queen [2011] 244 CLR 120, consistent with the earlier decision of the High Court in 2005 of Markarian, it concluded that the standard non-parole period was one of many matters to be taken into account. Without having to analysis the decision, because I need not with the legislative changes that have occurred subsequently, the Court pointed out that it was not a starting point for the consideration of an appropriate sentence. 53. Part 4 Division 1A, in each case where there is a standard non-parole period, requires the fixing of a non-parole period. As I have said ss. 54A and 54B of the Act have been amended subsequent to the decision in Muldrock. The standard non-parole period clearly is now stated to represent a non-parole period for an offence in the middle range of objective seriousness in the Table of the Division only taking into account the objective factors affecting the relative seriousness of the offence. 54. However, s.54B(2) says that the matters to be taken into account in determining the appropriate sentence, particularly for the non-parole period by reference to the Table, include other matters such as mitigating factors arising under the Act, special circumstances, and other relevant issues to the question of sentencing. 55. In other words, the Court has a discretion in the fixing of the appropriate non-parole period and must do so in accordance with the decision of Markarian by taking into account all relevant matters without having to ascribe any specific significance necessarily to a particular matter that is taken into account. 56. In this particular matter the issue of totality of criminality obviously arises for consideration. The prisoner is charged with a number of offences committed over a period of time. In considering the totality of the criminality I am mindful of the decision of the High Court, particularly the majority, of Pearce v The Queen [1998] 194 CLR 610, particular at [45]. The Court is required in effect to fix an appropriate sentence for each offence and then have regard to the totality of the criminality and fix sentences with appropriate concurrency or accumulation or partial accumulation with that particular concept. Totality of criminality was discussed authoritatively in the decision of Mill v The Queen [1988] 166 CLR 59, particularly at 63-64. The Court is required to fix sentences each properly calculated in relation to the offence for which it is imposed and each properly made consecutive or concurrent in accordance with the relevant principles. 57. We do not have a Texan-style of sentencing where one simply affixes an appropriate sentence for each offence and then accumulates it upon the other. 58. I have concluded ultimately that in respect of the offences for which I will be required to impose appropriate sentences that I should make the sentences in relation to sequence 4 and sequence 3 concurrent, one with the other, and I should make the sentences in relation to sequence 2 and sequence 7 concurrent one with the other to give effect to the totality of criminality. The partial accumulation of one set of sentences upon the other will be to the extent of two and a half years imprisonment. 59. With regard to the submissions that were made to the Court by the Crown and the defence I have adverted to a number of the matters that were subject of written and oral submission. Counsel for the Crown provided detailed written submissions and much of the principles that were therein identified are scarcely in dispute. The submissions made about the issue of the objective seriousness include the consideration of the role of the prisoner, the quantity of the drug, its purity, the role of the prisoner in the offending, the degree of planning, the sophistication, the purity, et cetera, which is correct. There were detailed submissions made about role and I have already contemplated those. 60. I have already pointed to the fact that the Crown's submission in relation to aggravating factors, that is that the offence was committed whilst on conditional liberty, I have ignored. The Crown correctly pointed out that in determining the totality of the criminality I had to have regard to the period of time of which the offending occurred, the discrete character of the offending and the like, particularly in relation to the three supply matters. 61. Regard is to be given to general and personal deterrence of course in every sentencing exercise. The Court is required to have regard to the 'purposes of sentencing' in s.3A of the Act. In this matter particularly there is a requirement that the prisoner be adequately punished, that sentences be imposed that would deter him and others from committing similar offences, make the prisoner accountable for his actions to denounce his conduct. There is no harm done to the victims, or the alleged contemplated victims of the crimes committed, because the police intervened. But that was through no work of the prisoner and the police are to be congratulated on their industry in this matter and their skill in detecting the prisoner and arresting him and Mr Hernandez. 62. I do not believe ultimately at this point there is a need to protect the community from the offender. Although, of course, if he returns to the community and supplies drugs, he will obviously potentially cause damage to other members of the community. This is the reason that significant penalties are required in relation to the commit offences of the type that the prisoner is to be sentenced for today. I am also required to promote his rehabilitation. Clearly, pursuant to s 5(1) of the Act, nothing other than terms of imprisonment are appropriate in this particular matter. 63. So far as aggravating and mitigating factors are concerned, there are just two issues that I have left untouched. The issue of whether this offending constitutes participation in "organised crime" is a matter I need to address. Ultimately I could not conclude on balance that the prisoner was part of "organised criminal activity". Of course, one would always have one's suspicions about the character of the means by which the prisoner obtained the cocaine and arranged to sell it through Mr Hernandez. I believe the relationship between Mr Hernandez and the prisoner is not clearly defined on the available evidence to this Court either in the facts or in the evidence from the prisoner. But in the context of what I have identified as the "limited network", that is revealed in the evidence, I could not conclude that it was organised criminal activity. I would understand that to be as it is defined in the decisions of the Court of Criminal Appeal and the like. 64. In relation to the matter, it was also a matter where the drug supply offences were committed without regard to public safety. Of course, this is not a significant aggravating factor. It is to be pointed out as I have said that police intervened and obtained the drugs before they could be on sold to the public. But the prisoner had no regard to that fact. Because he was not aware of that. As far as he was concerned, for substantial sums of money, he was selling a drug, the character of which he well knew, with the expectation that it would go to the community. Hence there would be buyers who would be prepared to provide him with the sums of money that he ultimately obtained. There are no other relevant mitigating or aggravating factors to identify. 65. With regard to his counsel's submissions in writing, I have already dealt with the issue of the likelihood of him re-offending and his prospects of rehabilitation. I have contemplated whether the findings I have made are inconsistent with each other. Ultimately I conclude that they are not. As self-serving as that observation is, what favours his prospects of rehabilitation to my mind is the support he has of his partner and the fact that it is clear from the evidence that he was able to lead a lawful existence in Australia for example without having to commit crimes until he agreed to the proposition that was put to him some time after he had come to this country. There is no doubt in my mind that he did not come to this country solely for the purposes of supplying cocaine. Of course he had the right to be in the country. He is an Australian citizen. 66. It is submitted on behalf of the prisoner that he provided assistance to law enforcement officers. Of course, there is no issue that he should receive some discount. There is no issue available to be found on the evidence in this Court that he will provide evidence in relation to his co-offender. That having been said, he did co‑operate which is to my mind the better word with law enforcement officers and I have taken this into account in assessing the weight to be given to remorse and regret. 67. His counsel has made submissions in relation to 'special circumstances'. That is a reference to s 44 of the Act. I have concluded that there are a number of special circumstances, notwithstanding the contents of the Community Corrections report and notwithstanding the absence of any drug addictions or dependency issues and notwithstanding the fact that the prisoner has committed serious offending not too long after being released in 2010 from an American prison for serious offending. 68. Firstly, the issue of accumulation presents as a special circumstance in the ultimate fixing of the effective non-parole period. In my view, the prisoner will need professional assistance to adjust to community living for an extended period of time. It seems to me that the prisoner does need professional direction, notwithstanding the reservations of the Community Corrections Service, to assist him to find the stability that hopefully will provide an opportunity for him not to be tempted by other criminal activity. Thus, in the fixing of the ultimate effective non-parole period, there is to be fairly said an extended period of supervision available should the prisoner be granted parole. It will be a matter for the parole authority. 69. I need to deal with, although I have referred to it briefly, the issue of the supposedly comparative cases. The Crown in its written submissions refers to a number of authorities. I need not specifically cite them. They are decisions of the Court of Criminal Appeal from various times. One case which I might cite, Riggio [2015] NSWCCA 223 .There are other decisions from 2011, 2012, 2014 and 2010. These decisions to my mind were more helpful in understanding the approach of senior Judges of the Court of Criminal Appeal in relation to issues such as totality and the assessment of the objective seriousness of offending by reference to the considerations that arise in relation to Pt 4 Div 1A although I note at least one of the decisions predates the decision of Muldrock. 70. However, so far as the comparative sentencing aspect is concerned, these cases are limited. There are only four or five in number. I bear in mind of course that some of the offences that are discussed in those decisions involve the supply of different prohibited drugs in different quantities. Every case throws up its own different set of subjective circumstances and other considerations. Some of the cases involve consideration of parity principle issues which of course might militate against a sentence that might otherwise be thought appropriate by another judicial officer. 71. In relation to the use of comparative cases I note the recent observations of the decision of Raniga [2016] NSWCCA 36, particularly at [47]. Admittedly the observations in that judgment and the cited judgment of Huynh from 2008 are concerned primarily with the reservations expressed when dealing with comparative cases for appeal purposes. But I am mindful of the fact also the comparative cases can be useful in structuring sentencing discretion at first instance. On the other hand, there are a number of cases, particularly I remember the decision of RCW (No 2) from 2012, where a judge at first instance was criticised in the proper sense for fixating upon one supposedly comparative case. That has its own particular difficulties. 72. So far as the two matters on the Form 1 are concerned, they are to be taken into account as we discussed earlier in relation to the seq 2 offence. In this regard, I note the observations of the Court of Criminal Appeal in the guideline judgment Attorney General's Application No 1 of 2002, [2002] 56 NSWLR at 147. There the Court essentially held the fact that matters are to be taken into account on the Form 1 means that greater weight should be given to the need for personal deterrence and the community's entitlement to extract retribution. "The entire point of the process" is to impose a longer sentence or to alter the nature of the sentence that would have been imposed if the principal offence for sentence stood alone, it was wrong to suggest that the additional penalties should be small. Sometimes it can be substantial. However, the Court also noted that the sentencing process is only concerned with the principal offence, not to determine appropriate sentences for matters listed on a Form 1 or to determine an overall sentence that would be appropriate for all the offences. 73. The Court stated that: "Deterrence and retribution are entitled to greater weight than they might otherwise be given when sentencing for the primary offence". 1. It is rarely appropriate the Court said to attempt to quantify the effect on the sentence from taking into account Form 1 matters ( at [18]-[44]). 2. In fixing appropriate sentences, particularly in relation to drug supply matters, the logic I have tried to apply, bearing in mind I am required to factor in the Form 1 matters, was to reflect the sequence of events. That is the offender committing offences that in many respects are identical but in circumstances where the first time the prisoner committed the offence, he had not previously committed this offence in Australia, but the second time he committed this offence he had already committed the first offence but had not been sentenced for that matter. 3. I am sorry to take so long Mr Trejos, but the legislature and the authorities, do require us to make sure that we have taken all relevant matters into account and expressly or imply that we state so I am also required to take into account everything that has been put on your behalf and on behalf of the Crown, both counsel very skilfully representing their interests. Do you mind standing up, thanks, very much. 4. In relation to Sequence 3, you are convicted. You are sentenced to a non‑parole period of four years. That will date from 23 February 2015 and expire on 22 February 2019. In respect of that sentence, I fix a balance of sentence of three years. That balance of sentence will expire on 22 February 2022. 5. In respect of Sequence 4, you are convicted. In respect of that matter, you are sentenced to a non-parole period of four years imprisonment to date from 23 February 2015 and to expire on 22 February 2019. In respect of that sentence, I fix a balance of sentence of three and a half years. On my calculation that balance of sentence should expire on 22 August 2022. 6. In respect of Sequence 7, you are convicted. You are sentenced to a fixed sentence of four years imprisonment. That sentence will date from 23 August 2017 and expire on my calculation on 22 August 2021. 7. In respect of Sequence 2 taking into account the matters on the Form 1, you are convicted and sentenced to a non-parole period of four and a half years to date from 23 August 2017 to expire on 22 February 2022. In respect of that sentence, I fix a balance of sentence of four and a half years. On my calculation that balance of sentence will expire on 22 February 2026. 8. Just take a seat, sir, thanks very much. On my calculation thus, the total sentence imposed upon you is 11 years imprisonment with an effective non‑parole period of seven years. You will be eligible for release to parole on 22 August 2021. 9. That is an effective sentence of 11 years with a seven year non-parole period. So you are eligible for release to parole on 22 February 2022. 10. Yes, I am sorry, now Mr Crown, any technical matters from you? 11. LY: Just one short matter, your Honour. The Crown is seeking forfeiture orders pursuant to the Confiscation of Proceeds of Crime Act. I believe it is not opposed by my friend. 12. HIS HONOUR: I beg your pardon, I am sorry, I did not quite hear what you said, the last part. 13. LY: I believe it is not opposed by my friend. 14. BOWE: Not opposed. 15. HIS HONOUR: But have you got the orders there or not? 16. LY: I do, your Honour. 17. HIS HONOUR: These are forfeiture orders in relation to the $104,500? 18. LY: That is correct, your Honour, that sum in seq 7. 19. HIS HONOUR: Thank you. 20. The orders will be made in accordance with the minute of order that has been prepared, that is pursuant to s 18(1) Confiscation of Proceeds of Crime Act 1918. The sum of $104,500 recovered on 23 February 2015 be forfeited to the State and the Court gives leave that pursuant to s 19 of the Act, the property forfeited be disposed of forthwith. I order the destruction of the drugs. 21. Do you want that, Mr Crown? 22. LY: Yes, your Honour, thank you. 23. HIS HONOUR: What I will do is I will give you each a sealed copy of the orders and the other copy will be placed on the Court file. So we have got a copy for the file, we have got a copy each for the parties, one for the Crown and one for the defence. 24. Mr Trejos, have you understand the sentence I have imposed? 25. OFFENDER: Yes, your Honour. 26. HIS HONOUR: It is effectively as I calculate it, it is a sentence of 11 years imprisonment with a seven year non-parole period. It will commence from the date you came into custody 23 February and as the sentence now stands, you are eligible for release to parole on my calculation on 22 February 2022. I did tell you at the outset what the total sentence was so that was correct. 27. Is there anything else, Mr Crown? 28. LY: No, your Honour. 29. HIS HONOUR: Anything else from you, Mr Bowe? 30. BOWE: No. 31. HIS HONOUR: Thank you. Thank you very much for your assistance gentlemen. You are excused, Mr Trejos, so you can go with the officers. Thank you, gentlemen, very much for your assistance. 32. Sorry, do you want to speak to Mr Bowe? 33. BOWE: I've said-- 34. HIS HONOUR: No, you can speak to him now if you want to. I know you are limited in what you can speak to him about in open Court but you are welcome to speak to him. Thank you to the Court staff for staying back, thank you, Mr Crown very much for your assistance. 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: 24 February 2017