District Court New South Wales Medium Neutral Citation: Regina v Kalvin Eugene Cressel [2017] NSWDC 272 Hearing dates: 29 September 2017 Date of orders: 06 October 2017 Decision date: 06 October 2017 Jurisdiction: Criminal Before: Judge AC Scotting Decision: 1 The offender is convicted. 2 For the marketable quantity offence the offender is sentenced to imprisonment for 6 years and 6 months to date from 29 April 2016 and expiring on 28 October 2022. 3 For the commercial quantity offence the offender is sentenced to imprisonment for 9 years to date from 29 April 2017 and expiring on 28 April 2026. 4 I fix a single non-parole period of 6 years and 6 months to date from 29 April 2016 and to expire on 28 October 2022. Catchwords: CRIMINAL LAW – offence - plea of guilty – import commercial quantity border controlled drug – import marketable quantity of border controlled drug SENTENCE – mitigating factors – aggravating factors – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty – extra curial punishment – utilitarian value of pleas of guilty - willingness to facilitate the course of justice – offer of assistance to authorities - appropriate discount – contrition and remorse DRUGS – cocaine – purity value OTHER – gambling addiction – drug addiction Legislation Cited: Crimes Act 1914 (Cth) ss. 16A(1), 16A(2), 17A(1) Criminal Code 1995 (Cth) ss.307.1, 307.2 Cases Cited: Lee v R [2012] NSWCCA 123 Danial v R [2008] NSWCCA 15 Cameron v The Queen (2002) 209 CLR 339 Johnson v The Queen (2004) 78 ALJR 616 R v El Karhani (1990) 21 NSWLR 370 Category: Sentence Parties: Regina (The Crown) Kalvin Eugene Cressel (Offender) Representation: Counsel: Solicitors: Commonwealth Director of Pubic Prosecutions (The Crown) Sydney Criminal Lawyers (Offender) File Number(s): 2016/00132189 Publication restriction: None sentence 1. Kalvin Eugene Cressel (the offender) appears for sentence after pleading guilty in the Local Court to one count of importing a commercial quantity of a border controlled drug (cocaine 3326.3 grams pure) contrary to section 307.1 Criminal Code (Cth) and one count of importing a marketable quantity of a border controlled drug (cocaine 1423.7 grams pure) contrary to section 307.2 Criminal Code (Cth). 2. The maximum penalty for the commercial quantity offence is life imprisonment and/ or a fine of $1,350,000 and the maximum penalty for the marketable quantity offence is 25 years imprisonment and/or a fine of $900,000. Facts 1. The parties presented an agreed Statement of Facts that can be summarised as follows. 2. On 27 April 2016 an air cargo assignment consisting of multi-vitamin capsules arrived in Sydney from the United States of America. The consignee was Vanessa Tsiaras. Ms Tsiaras was friends with the offender. In March 2016 he had asked her if he could have a package sent from the USA to her address. On 4 April 2016 he asked her via Facebook if he could have a package sent to her address and she agreed. 3. On 27 and 29 April 2016 the Australian Border Force (ABF) and the Australian Federal Police (AFP) conducted an examination of the consignment. It consisted of 25 labelled bottles in a cardboard box. Each bottle was sealed with foil. The bottles contained clear capsules with a white powder inside. The white powder tested positive for cocaine. The gross weight of the powder was 4913.3 grams. The cocaine tested as 67.7% pure, giving a pure weight of 3326.3 grams. 4. A Controlled Operation Authority was issued to facilitate the delivery of the consignment. The cocaine was substituted with reams of paper of the same weight and delivered to the address of Ms Tisaras. 5. The package was signed for by an occupant of the premises. A short time later, AFP officers executed a search warrant at the premises. At that time Ms Tisaras told them that the offender had asked her to receive a package on his behalf because he did not have an address where it could be delivered. At the direction of the AFP officers, Ms Tisaras made contact with the offender by Facebook to come and collect the package. The offender attended the premises at about 1.10pm and was arrested by the police. 6. The police seized a Blackberry mobile device in the offender's possession and the keys to his residence, which was in the same building. The police then executed a search warrant at those premises. Police located $2,500 in cash, 3 mobile phones, an iPad mini, electronic scales and the offender's passport. 7. At about 1.58pm the offender participated in an electronically recorded interview, in which he made a number of admissions. He told the police that he received the Blackberry from a friend and was told that he could make some easy money by following the instructions of a contact on the phone known as 'Heavy Duty'. He received instructions from Heavy Duty by email. At first he was instructed to pick up large sums of cash and to deliver it to specified locations at specified times. He was then asked to provide addresses to which consignments could be delivered. He provided addresses and was then required to collect the consignments and receive instructions to give the package to a particular person. He did not tell the consignees what was coming, just that he wanted to receive a package from his family. He received $500 for receiving a package. He gave Heavy Duty Ms Tisaras' details for the consignment. He would usually receive the tracking details for the packages 1 or 2 days before they arrived. He had checked the tracking on the consignment received by Ms Tisaras 2 days earlier. He was expecting another package that day. All of the packages were from the US and he believed Heavy Duty to be an American. He had also corresponded with a person known as 'Divante' whose role was to keep him on track and to mediate between him and Heavy Duty. He had previously collected a number of packages containing vitamin bottles, similar to the ones in the consignment. He unpacked them and then delivered them. He estimated that he had collected 5 consignments for Heavy Duty, and he assumed they all contained cocaine. In his conversations with Heavy Duty they used the terms 'molly', 'blow' and 'nose' to refer to MDMA and cocaine. He became involved because his financial position was not good. He expected to receive about $8,000 per week but in fact received about $3,000 per week. He was in debt to Heavy Duty and was repaying that debt by delivering the drugs. 8. The offender gave the police the PIN codes for the electronic devices seized. 9. The offender was taken to Surry Hills Police Station and charged. 10. At about 7.30pm on 29 April 2016, police acting on the information provided by the offender attended an address at Rushcutters Bay, being the address of Timothy Lala. The police recovered a missed delivery slip for a second consignment from Mr Lala. 11. Mr Lala was a social acquaintance of the offender. About 3 weeks earlier the offender asked if he could have a package delivered to him from the offender's parents and Mr Lala agreed. The offender thereafter made daily calls to Mr Lala to see if the package had been delivered. On 20 April 2016 Mr Lala received a package for the offender and he delivered it to him at a hotel. 12. On 30 April 2016 ABF officers attended Fedex and took possession of the second consignment. It consisted of a cardboard box containing 6 bottles of horse shampoo. An x-ray found anomalies in 4 of the 6 bottles, which were later found to contain a white powder that tested positive for cocaine. The gross weight of the powder was 1966.5 grams. The cocaine tested 72.4% pure, giving a pure weight of 1423.7 grams. 13. The offender arrived in Australia on 5 August 2015 on a working holiday visa. He worked as a party organiser for an events company. He was taken into custody on 29 April 2016 and has been bail refused since that time. The offender's evidence in the sentence proceedings 1. The offender tendered a report of Dr Peter Ashkar, psychologist dated 25 September 2017. The psychologist met with the offender for 3 hours for the purpose of preparing the report. The report can be summarised as follows. 2. The offender is 30 years of age and at the time of the consultation with the psychologist did not appear anxious or depressed. 3. The offender was born in Los Angeles, California as the middle child of 3 siblings. He had a happy childhood in a stable environment. He maintains strong relationships with his parents and siblings. He expressed deep shame and disappointment in his offending behaviour. 4. He was an average student at school but was gifted at sports. He completed a 4 year communications degree at College after earning a football scholarship. He worked as a croupier and floor manager at a casino for 5 years before coming to Australia on a working holiday in August 2015. He worked as an entertainment manager at a backpackers for about 6 months. He found himself gambling a lot and having trouble managing his finances. Poor financial management was one of the reasons he came to Australia, so that he did not ask his parents for money all the time. He wants to work as a youth pastor at his father's church when he returns to the United States and also as a missionary in Africa or other countries. 5. The offender started drinking alcohol at about age 16 and engaged in binge drinking in high school and college. He was drinking large amounts in Australia due to the social nature of his job. He started using MDMA in his early twenties and cocaine in his mid-twenties. In Australia he was using cocaine weekly at first and then more regularly. He has seen the problematic side of drug use in custody and does not want to take drugs anymore. 6. His employment in Australia required him to take travellers from the hostel out to entertainment venues at night. He was consuming large amounts of alcohol and cocaine at these times. He was also gambling and spent all of his income on gambling and cocaine. He got involved in the offences to make money to alleviate his unstable financial position. He delivered 5 or 6 packages in March 2016. He took a cut of $5,000 per week, which was meant to be $5,000 per month and he agreed to source delivery addresses to receive consignments of cocaine as a way of repaying the money he was owed. 7. He reported insight to the psychologist about the impact of drugs on society. He expressed regret and remorse for his behaviour. 8. He was been working in gaol as a sweeper in the hospital. He has not used illicit substances. He has had contact with a psychologist following the death of his aunt and he has had regular contact with the chaplain. He provides informal counselling to other inmates. He has weekly telephone contact with his family. He has had one misconduct charge, but is generally described as a model prisoner. 9. The psychologist concluded that the offender initially became involved in the offending conduct to fund his hedonistic lifestyle and continued in it to repay a surreptitious and pressing debt. The psychologist opined that his heavy cocaine use at the time contributed to his poor decision making. The offender had a disconstrained personality style that made him vulnerable to acting impulsively and with poor control. The psychologist recommended long-term treatment targeting his personality functioning and that he avoid social contexts that may lead him back to gambling and drug use. The psychologist assessed his prognosis as good, considering his strong family ties and vocational opportunities. 10. The offender tendered a letter of apology to the Court. The offender expressed remorse and shame for his actions. He accepted responsibility for the upset he has caused his parents and those close to him. 11. The offender's parents also provided a letter to the Court. They travelled from the United States to be present for the sentencing hearing. They confirmed that the offender was raised in the close knit community of the church and achieved tertiary qualifications and a scholarship to play American football. They expressed their devastation, hurt and embarrassment at their son's involvement in the offences. He has expressed remorse to them and a desire to make amends for his actions. 12. The offender tendered a letter from Reverend Peter Baines, the prison chaplain at Long Bay Correctional Centre. Rev Baines also attended the sentencing hearing. He described the offender as one of the most outstanding inmates that he has been involved with in his 20 years with Corrective Services. The offender has been frank with Rev Baines as to the fact that he has wasted his life and let his family down. In custody, he has been employed in a position of trust and has taken a leadership role in the Christian community. He has arranged services and offered assistance to other inmates, particularly those with drug addictions. These sentiments were echoed in another reference by Mr Dundas who is involved in prison fellowship. 13. The offender's sister also wrote a letter to the Court. She describes the offender as very family oriented, gentle and kind. She set out a number of family events that the offender has missed out on as a result of his incarceration. 14. The offender tendered a letter from Colin Maher. Mr Maher was a team mate of the offender's from his College football days. Mr Maher described the offender as a person of excellent character and as having accepted that he has made mistakes and wants to atone for those mistakes. 15. The offender tendered a letter from Jonathon Delgadillio, another team mate. Mr Delgadillio is a serving police officer in Los Angeles. He too spoke very highly of the offender's character and integrity. He described the offences as being something that was hard to comprehend and totally out of character. He noted the pain that the offences have caused to the offender's family. 16. The offender tendered a letter from Antonio Monterroso. Mr Monterroso is a family friend and has known the offender for his whole life. He attests to the offender's good character and to the family support that he still has, even after the offences. Sentencing principles 1. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act. 2. A court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply to the sentencing of federal offenders: Johnson v The Queen (2004) 78 ALJR 616 at [15]. Consideration Objective seriousness of the offences 1. The offender was instrumental in arranging the importation of 3326.3 grams of cocaine (the first consignment) and 1423.7 grams of cocaine (the second consignment) into Australia. The first consignment was 1.66 times the commercial quantity and the second consignment was 781 times the marketable quantity. Those 2 importations were not isolated offences. 2. The offender provided the addresses for the consignments to be delivered to. He then monitored the tracking details and took delivery of the packages. He expected to be paid for the work he was doing. The offences involved planning and premeditation. The offending was part of a course of criminal conduct. 3. Prior to the receipt of the first and second consignment the offender had communicated with Heavy Duty to the effect that he was being instructed to open the consignments and repack the drugs for further distribution. The payment due to him depended on the amount of drugs he handled. The communications suggested that the offender was going to distribute some of the consignments on his own behalf with the assistance of others. The offender had collected other consignments. 4. The offender had an important and essential role in the importation of the drugs into Australia. Deterrence General deterrence 1. General deterrence is a fundamental consideration to a drug importation offence. The sentence must be of such severity to deter others from engaging in activities to smuggle prohibited goods into Australia. The sentence must signal to would be smugglers that the financial rewards will be neutralised by the risk of severe punishment. Involvement in drug importation must attract a custodial sentence otherwise the interests of general deterrence are not served. Specific deterrence 1. There is some need for specific deterrence although it is significantly reduced. The offender has excellent prospects of rehabilitation. He has strong family ties and opportunities for work. He has ceased drug use, but requires long-term psychological treatment to assist him to avoid gambling and drug addiction in the future. He has recommitted himself to his faith. Other matters 1. The offender is presently 30 years of age. He does not have any prior convictions and has no significant health concerns. 2. The offender has expressed remorse and contrition to the psychologist and to the Court. He has also expressed remorse to his character referees, which I accept as genuine. 3. The offender has good prospects of rehabilitation for the reasons I have already stated. 4. The offender pleaded guilty. For Commonwealth offences the Court must consider the offender's willingness to facilitate course of justice and not the utilitarian value of the plea of guilty: Cameron v The Queen (2002) 209 CLR 339 at [14]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]–[28]. That enquiry may reveal whether the plea was a recognition of the inevitable or truly motivated by willingness to facilitate the course of justice: Lee v R [2012] NSWCCA 123 at [58]. The Crown case was a strong one. The offender's plea has saved the need for witnesses to be called at trial and that can be taken into account: Cameron at [79]. I am satisfied that the offender's plea was an indication of his assistance to the authorities, an acceptance of responsibility for his actions and was motivated by a willingness to facilitate the course of justice. The appropriate discount is 25%. 5. The offender made admissions to the police and co-operated with their investigation. The information that he gave led to the recovery of the second consignment. Of crucial importance was that it was recovered by police and not available for distribution. Further, the offender explained his role in the offences to the police, that they were not isolated events and willingly provided the PIN codes required to unlock his electronic devices. The appropriate discount for the offender's co-operation is 10%, all of which is allocated to the past assistance given. Penalty 1. I have had regard to section 17A(1) of the Act and I am satisfied that after having considered all other available sentences that no other sentence other than a sentence of imprisonment is appropriate in all the circumstances of this case. The reasons for this decision are that: 1. the offence committed is objectively serious; 2. there is a significant need for general deterrence; 3. there is some need for specific deterrence; 4. there is a need for denunciation of the offending conduct; and 5. the subjective considerations relating to the offender are necessarily subsidiary to the duty of the Court to ensure that he is given a punishment of appropriate severity. 1. The offender is convicted. 2. I have discounted the terms of imprisonment to be imposed by a combined discount of 35%, being 25% for the plea of guilty and 10% for the assistance given (with some rounding). 3. For the marketable quantity offence the offender is sentenced to imprisonment for 6 years and 6 months to date from 29 April 2016 and expiring on 28 October 2022. 4. For the commercial quantity offence the offender is sentenced to imprisonment for 9 years to date from 29 April 2017 and expiring on 28 April 2026. 5. I fix a single non-parole period of 6 years and 6 months to date from 29 April 2016 and to expire on 28 October 2022. Explanation of sentence 1. I am obliged to explain to the offender the effect of the orders I have made. 2. Kalvin Eugene Cressel, the sentences I have imposed mean that you will be obliged to spend a minimum period in custody of 6 years and 6 months. This means that, having regard to the time you have already spent in custody, you will be eligible for release on parole on 28 October 2022. 3. It will be a matter for the Attorney General as to whether you will be released on that day. It may depend upon your behaviour in prison. It will also be a matter for the Attorney General to determine whether any conditions should apply to you while you are at conditional liberty on parole after 28 October 2022. If you are released on that day, you will remain on parole for a further period of 3 years and 6 months. If you were to breach your parole, you may be required to return to prison to serve the balance of the term of your sentence. ********** 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: 06 April 2018