R v Dennis ESTEVEZ [2017] NSWDC 433

District Court New South Wales

Medium Neutral Citation: R v Dennis ESTEVEZ [2017] NSWDC 433 Hearing dates: 31 October 2017 Date of orders: 31 October 2017 Decision date: 31 October 2017 Jurisdiction: Criminal Before: Tupman DCJ Decision: Non-parole period of 6 years; Parole thereafter of 3 years; Overall term of 9 years imprisonment Catchwords: CRIMINAL LAW – Sentence – Import commercial quantity of border controlled drug – 2,539.3 grams – Cocaine – wholesale value of $761,420 – Street value $2,000,000.00 – Citizen of the United States - No criminal convictions in Australia – Bail refused from time of arrest – Drug user – Courier with specific knowledge – Financial reward – Drug debt – Below midrange objective seriousness for offences charged under this section – General deterrence – Early plea of guilty – assistance to authorities after arrest – 30% to 35% discount Legislation Cited: Criminal Code 1995 (s 307.1(1)) Crimes Act 1914 (Part 1B, s 16A) Cases Cited: R v Wong; R v Leung (1999) 49 NSWLR 340 Category: Sentence Parties: The Crown Dennis Estevez Representation: Ms Duchen (DPP)

Ms Westgarth (F/W Dennis Estevez) File Number(s): 2016/337261

Judgment 1. The offender is before the Court following his plea of guilty in the Local Court to a charge that on 10 November 2016 he imported a commercial quantity, namely 2,539.3 grams, of the border controlled drug, cocaine, into Australia. This is a charge contrary to s 307.1 (1) of the Criminal Code 1995 which carries a maximum penalty of life imprisonment and or a fine. A fine would not be an appropriate outcome for this offence. 2. The facts are before the Court as an agreed statement of facts. From those I accept that the offender is a citizen of the United States, holding an American passport. He was born on 23 June 1992 and is thus 25 and was 24 at the time of the offence. He arrived at Sydney Airport on a flight from Santiago in Chile on 10 November 2016 on a tourist visa. On his incoming passenger card he declared his usual occupation as 'DJ promotion', that he intended to stay in Australia for six days on a holiday and that he was not bringing any prohibited substance, including illicit drugs, into Australia. 3. At about 6.45pm he was escorted to a barrier in the passenger terminal by Customs authorities after he had gone through immigration. He was asked some questions about his travel to Sydney and other matters. He told the officer that he lived in New York, that he had packed his own luggage, that he had gone to his brother's wedding in Brazil for two days before coming to Australia via Santiago and that he was intending to promote his DJ business in Sydney, but did not know anyone in Sydney apart from a girl who he had chatted to on Facebook. 4. The authorities X-rayed his suitcase and noticed anomalies. They conducted a presumptive test on the back of the suitcase which returned a positive result for cocaine. Eventually the Customs officers gained access underneath the black plastic lining inside the suitcase, and located a white liquid inside clear plastic which tested positive for cocaine also. 5. The officer cautioned the offender and took him to an interview room where they conducted an interview. In that interview the offender stated that someone had given him the bag in Brazil and that he did not know what was in it. The Customs officers then handed the matter over to the AFP who arrested the offender and conducted a formal interview with him. During that interview the offender told AFP officers that he did not know the cocaine was in his bag and that he had met a person, who he called 'Jamie', on Facebook 2 or 3 days before he arrived in Brazil. He claimed to have told Jamie that the wheels on his suitcase were broken and the offender told police that he was in Brazil for 2 days before flying to Australia, that he had met up with Jamie the night before his flight was due to leave, had been drinking with him on a beach, I infer had drunk too much, and started to feel sick. He claimed that Jamie took him back to the offender's hotel room. He told police that he knew he would be late for his flight so he gave Jamie $50 to buy a new bag and then the offender went to sleep. He said that Jamie then woke him later so that he would be ready for the flight and that whilst the offender had a shower, Jamie packed his bag for him in company with one of Jamie's friends who he named as 'Joel Perez'. He said that he was told by Jamie that someone would come to his hotel in Australia to be with him and show him around Sydney, and the offender then told the AFP officers that he thought he had been set up by these people to transport the cocaine to Australia. Clearly enough, from his plea of guilty to this offence, he concedes that these explanations to the AFP were not the truth. 6. The AFP officers seized the offender's phone and downloaded a series of WhatsApp messages dating from 19 October to 9 November 2016. Those messages are reproduced in the agreed facts. I accept from these messages that the offender was involved with another person in a plan to import approximately 3.6 kilos of cocaine, with the planning commencing as early as 19 October 2016. On 7 November 2016 the offender referred to weighing a substance which he stated was in a quantity of 3,600 which, I infer, means 3.6 kilograms and which was a reference to the cocaine which he knew he was importing from Brazil to Australia via Santiago. 7. When police examined the suitcase they found that there was a false plastic backing underneath the lining of the main compartment, which fitted the internal dimensions of the suitcase. This false plastic backing concealed a black plastic package which contained an off-white paste. The substance was analysed. It was 3.807 kilograms gross weight of cocaine with a purity of 66.7%, thus 2.539.3 kilograms, or 2,539.3 grams, of pure cocaine. It is this which is the subject matter of the charge before me for sentence. 8. At that time, and into early 2017, the wholesale value of this quantity of cocaine was $761,420 and if sold on the street in street deal quantities, the value was a little over $2 million. 9. The offender was bail refused from the time of arrest and has remained in custody ever since. He has no criminal convictions in Australia but of course had never been to Australia before the commission of the offence, and is an American citizen. 10. The relevant sentence for this offence is governed by the provisions of Part 1B of the Crimes Act 1914 and in particular s 16A of that Act. Only a term of full-time custody would suffice as the appropriate sentence for this matter. It is not one of the truly exceptional cases referred to in R v Wong; R v Leung (1999) 49 NSWLR 340. The offender accepts this to be the case and in fact has already been in prison full-time for almost a year bail refused. 11. It is necessary, pursuant to s 16A, to determine the nature and circumstances of the offence and thus the objective seriousness of this offending. This is a very serious offence, which is clear enough from the maximum penalty of life imprisonment set by the legislature. The maximum penalty sends a very clear message that importation of illicit drugs into Australia, when detected, will lead to lengthy terms of imprisonment. The sentence imposed here must, inter alia, reflect this legislative intent by sending a message of general deterrence for those who would engage in this behaviour. Illegal drugs cause havoc in the Australia community both for those who use and become addicted to them and their families, and the community generally, whose members become the victims and pay the price of drug addicts one way or another. Also, the community pays a very large cost for detecting and prosecuting those importing drugs into the country. This is a serious offence for those reasons alone. 12. In terms of assessing the objective seriousness of this particular offence, it is necessary to consider the offender's role, as it is for almost any other drug importation or drug supply offence. It is necessary to consider that role for the purposes of assessing the objective seriousness and thus the offender's moral culpability. That role can in part be determined by the agreed facts themselves. There is also a report from Ms Durkin, psychologist, tendered on behalf of the offender, and he gave evidence on sentence, in which he confirmed the truth of the history he had given for that psychological report. 13. There are parts of that history that are somewhat difficult to accept, but nonetheless, particularly in relation to the matters involving his background and upbringing, I accept them to be true. I do accept, however, that at the time that the offender committed this offence, he was a drug user himself and that he had accumulated a debt to his drug dealer. I accept that he agreed to import these drugs to Australia in return for a promised amount of $10,000 which would have cleared his drug debt at that stage. I accept that he never received that amount because he was arrested. I do not, however, accept that he committed this offence under some form of duress or pressure imposed from his drug dealer and this is not, in my view, a case in which non‑exculpatory duress ought be taken into account to reduce what might otherwise be the appropriate sentence. 14. His evidence on sentence from time to time was not convincing. Further, and perhaps more significantly, it is clear from the WhatsApp messages that the offender was planning this importation at least from 19 October and the communications between him and one of the other persons involved in this importation give the impression that he was a willing participant, not just a last minute recruit as a mere courier. 15. As I have said, I do accept that he a had significant drug habit and, more probably than not, had a large drug debt and that he committed the offence to clear that debt, however not because he felt he had no choice. I accept that he made a conscious decision to do so and he was clearly sufficiently well trusted by those who were higher up in the syndicate to be in possession of this very valuable commodity and to hand them over in Australia to another person. 16. His role is one of courier on my finding, but not a mere courier with no prior knowledge or specific knowledge. It is clear that he had involvement in the planning at least three weeks before the importation and he knew that he was importing around 3.6 kilograms of a drug. He was to make $10,000 from the offending, so he was committing the offence for financial reward, albeit, I accept, to clear a drug debt. All of this is relevant in determining his role as being more than just at the very bottom as a mere courier. He was a trusted and important part of this syndicate and albeit that his role was limited to bringing the drugs into Australia, nonetheless, he was not just a drug mule but somebody who played a somewhat higher role. This role was important to the drug syndicate and he had knowledge. 17. The quantity was large, namely, 3.8 kilograms gross and 2.5 kilograms of pure cocaine. The quantity, however, is only just a little above the threshold for the commercial quantity of this drug and the quantity does not distinguish it from the many other cases of importing a commercial quantity of cocaine. The significance is that 2.5 kilograms of pure cocaine was destined to find its way into the Australia community and would have meant a very large quantity of cocaine would have been in the community to wreak the havoc that it inevitably would. 18. It seems to me that this offence with those characteristics and with that role ascribed to the offender is slightly below the midrange in terms of objective seriousness for offences capable of being charged under this section, albeit in the bottom half of the range, but the quantity is not particularly high, and certainly nowhere near as high as is capable of being charged for offences under this section. 19. The sentence should, as previously stated, send a message of general deterrence to the broader community and be seen to denounce this type of offending. 20. The offender entered a plea of guilty at what I accept to be the earliest opportunity in the Local Court, despite what he told the AFP at the time of his arrest. The plea was entered on 19 April 2017, not long after the full brief was served in the Local Court. It represents a willingness on the part of the offender to facilitate the course of justice and also indicates some remorse and contrition on his part. The fact and timing of the plea of guilty are both matters I will take into account when determining the appropriate length of the sentence by imposing a lower sentence than would be appropriate if there had either been no plea of guilty or a plea of guilty entered late. 21. The case against him, however, was relatively strong. That having been said, the Court generally, and this Court presided over by this Judge in particular, has on more than one occasion seen a jury acquit an accused charged with this exact offence after giving evidence under oath containing explanations for being in possession of drugs such as this when coming into the country that were very similar to, or perhaps even less inculpatory than for this offender. It is usually very difficult, if not impossible, for the AFP or other authorities to check any of the details given in explanations such as that when the events are alleged to have occurred overseas. So the plea of guilty does indicate a willingness to facilitate the course of justice in the experience of this Court. 22. Section 16A(2)(h) requires the Court to take into account any assistance provided to authorities. There is some material contained in exhibit B relevant to this assessment. I will not outline the contents of that document. I do accept, however, that there has been some assistance to authorities after arrest. I accept the opinion in that exhibit that the value of the assistance is low in the circumstances but, nonetheless, it has some value and also is further evidence of contrition. There should be a further reduction in the sentence to reflect this but, in my view, of relatively modest compass. 23. It is not necessary in a Commonwealth sentence to identify a percentage discount in the way it would be for State offences, but I indicate that when determining the appropriate sentence in this matter I will be applying a discount of somewhere between 30% and 35% in total from the starting point to reflect a combination of the plea of guilty and the assistance factors to which I have referred. 24. I must also take into account the offender's general subjective circumstances - his character, age, antecedents and background. Most of this material or evidence is found in the report of Ms Durkin which, as I have said, was confirmed as the truth by the offender in his evidence. On the whole, I accept that history in relation to his background. He is now 25 and was 24 at the time of offending, so he is still relatively young. As a relatively young person the Court would give great weight to issues of rehabilitation, and I do so. 25. He has no prior convictions in Australia, but as I have said, he had never been to Australia before. He did inform Ms Durkin that he had a history, including incarceration in the United States, for drug related offending. There is no formal record of this before me other than his information given to Ms Durkin. On that basis he is not entitled to be treated as a person of prior good character which is a factor, had it been available, which might have reduced the otherwise appropriate sentence. That having been said, however, it has been frequently held that prior good character is generally of less weight for offences such as this. 26. I accept from the report of Ms Durkin that he was born in New York of a Dominican background. His parents union had broken down before he was born. His mother was dependent on illicit drugs and he had very little contact with his father. His family removed him from the care of his parents and sent him back to the Dominican Republic to be cared for by his paternal grandparents. He was well cared for by them and had an ongoing positive relationship with his grandmother in particular, but they were quite economically disadvantaged and his father, who continued to live in the US, provided only limited financial support for him. It would appear, and I accept, that he had regular contact with his uncles, the brothers of his father, in the Dominican Republic and that they used to assault him physically and detain him in his room, including on one occasion in a cage. He continued to be physically abused by these people during his youth which has had an adverse impact on him, including at least one attempted suicide. He had only limited contact with his mother during this time in the Dominican Republic and as a teenager in response to this dysfunctional life he started to mix with other similar young people who engaged in drug use and theft. Once his grandmother became aware of this she sent him back to the US to live with his father when he was 17. 27. He left that home when he was 19 and moved to live in New York. He then started to mix in what he describes as "antisocial party circles" and continued to use drugs. He disclosed to the psychologist that it was at this stage in 2015 that he was sent to prison for drug‑related offending and his father ceased contact with him. He continues to have contact with his grandmother in the Dominican Republic and I accept had, until the time of his arrest, been providing some financial support for those grandparents there. He went back to the Dominican Republic for a short while in late 2015 early 2016 but returned to the US in 2016 and it was at that stage that he committed the offence before me. 28. He has a limited formal education and has only rarely worked in paid employment. Much of this history is connected to his use of illegal drugs since he was 17. At that stage he started smoking cannabis and that escalated quickly to 20 grams a day, which is a significant ingestion of that drug. He continued this until he was arrested for this offence in November 2016. He had also started using heroin at the age of 17 and was smoking 10 grams a day of that until he was about 22 hen he stopped using heroin. During that same period he was using about 1 gram of ecstasy every two weeks and some other drugs. He then started to use crack cocaine in 2014 and was smoking that daily between 2014 and 2016 up to the time he was arrested. 29. He claims to have started using drugs to escape the traumatic memories of his childhood. He started, but did not complete, a drug rehabilitation program in 2015. I accept more probably than not that he has stopped using drugs whilst in custody on this occasion, but it would appear that he has never successfully engaged in drug rehabilitation treatment despite a fairly lengthy and significant drug addiction for at least the last 8 years but that he is willing to do so. His prospects of rehabilitation would be enhanced if he is able to engage in some form of drug rehabilitation whilst he remains in custody and, for that matter too, once he is released to the community on parole. 30. I accept more probably than not he was a significant user of drugs at the time he committed this offence before me and it is partly on that basis that I accept his assertion that he had a relatively large drug debt and committed this offence for financial gain to pay off that debt. 31. I accept from the psychological report and his evidence that he does feel genuine remorse and contrition for committing this offence. Whilst he did not tell the whole truth in the evidence he gave on sentence, particularly in relation to the reason why he told lies to police when first interviewed, nonetheless I accept that he has shown some insight into the seriousness of his offending, and particularly feels regret for the impact this offending has had on his grandparents who he is now no longer able to support financially. 32. Ms Durkin offers an opinion that he indicates some symptoms of post- traumatic stress disorder arising from his treatment by his uncles as a teenager, and I accept this opinion. I accept more probably than not to an extent, that he has used drugs over many years to lessen the impact of those symptoms of post-traumatic stress disorder. Of course his use of drugs has a connection to his commission of this offence and that use in turn is connected to his post-traumatic stress disorder. It can be said that there is some connection between this offending and his post-traumatic stress disorder, however, it is not of the type, in my view, which has any impact on the appropriate length of the sentence that ought to be imposed. 33. His prospects of rehabilitation are reasonable, but will improve if he is given access to treatment programs whilst he remains in custody and ultimately when he is returned to the community, wherever that might be, on parole. His prospects of rehabilitation, however, are entirely dependent on his remaining free of drugs, and also on receiving treatment for post-traumatic stress disorder which, as I have said, has a close connection to his drug taking behaviour. 34. He claims to be the father of a young daughter now aged almost four months. According to the history given to Ms Durkin, he was in a casual relationship with that child's mother during September 2016 but only became aware she was pregnant after he was arrested. A person has written a letter to the Court which has been tendered on his behalf on sentence. The contents of her letter do not match the history given by him to the psychologist. She claims that she has known the offender for seven years and that he was aware that she was pregnant before he committed the offence. I cannot reconcile her letter with the history given by the offender to the psychologist. The most I can take out of this combination of evidence is that more probably than not he has a four month old daughter who he has never met and with whom he hopes to have some involvement in due course when he is returned to the United States on his release to parole. There is no other evidence from which I could make any finding in relation to the impact this sentence might have on his family. 35. Taking all of these factors into account, notwithstanding a subjective case which is relatively good, nonetheless a significant term of full-time custody is required to take into account the objective criminality and to send the message of general and specific deterrence that is necessary. 36. I have already identified that, to the extent that is necessary, I will be reducing what would otherwise be the appropriate sentence by something in the range of 30% to 35% to take into account the combined discounts. 37. I have identified this as an offence a little below the middle of the range for offences capable of being charged under this section. It is not at the bottom of the range, however. He was a courier but not a mere courier. He was a courier with specific knowledge and some planning at least for three weeks beforehand. He was to obtain $10,000 from this, which is not significantly high, but nor is it minimal. He was a drug user and that was the reason that he was involved but for financial gain, namely, to satisfy a drug debt. I do not, as I have said, however, accept that he felt any pressure from his drug dealer to engage in this offence. There is no evidence, however, that he had sourced the drugs himself or had any connections in Australia to distribute them. He was, however, sufficiently well trusted to carry such a valuable commodity. 38. I have concluded that on that assessment of objective criminality and taking into account the subjective case, that a starting point overall term of about 12 years would be called for. I have had regard to the statistics published by the Judicial Commission of New South Wales for offences dealt with for this section in New South Wales and also the comparative cases to which I have been referred by the Crown, and the submissions made by the Crown and counsel for the accused in relation to those comparative cases. 39. I have, thus, determined, after taking into account the discounts, to impose a sentence of 9 years overall and I will impose a period of 6 years as a non-parole period being the term which in my view is required to take into account the objective criminality. For those reasons then I make the following formal orders: 40. The offender is convicted. 41. He is sentenced to a term of imprisonment of 9 years commencing 10 November 2016, expiring 9 November 2025 with a non‑parole period of 6 years commencing 10 November 2016, expiring 9 November 2022.