District Court New South Wales Medium Neutral Citation: R v Jose Degouveia; R v Joshua Degouveia [2019] NSWDC 161 Hearing dates: 13 December 2018, 14 February 2019, 27 February 2019. Date of orders: 27 February 2019 Decision date: 27 February 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Jose Degouveia – For the offence of supply prohibited drug offender sentenced to a term of imprisonment of 4 years 6 months. Non parole period of 3 years 4 months; and for the offence of knowingly deal with proceeds of crime sentenced to a fixed term of imprisonment of 1 year 6 months. Joshua Degouveia - Offender sentenced to a term of imprisonment of 4 years 1 month. Non parole period of 2 years 8 months. Catchwords: SENTENCE – supply commercial quantity of cannabis leaf – course of conduct – rolled up offences – fact finding – role of offender's motivation – greed – luxury lifestyle not worth it – father and son business – assessing seriousness of proceeds of crime when money seized relates to principle offence – important lesson learned – practical remorse. Legislation Cited: Crimes Act 1900 Drug Misuse and Trafficking Act 1985 Evidence Act 1995 Cases Cited: Afu v R [2017] NSWCCA 246 Cahyadi v Regina [2007] NSWCCA 1 (2007) 168 A Crim R 41 Green v The Queen (2011) 244CLR 462 Hamzy v R (1994) 74 A Crim R 341 Jadron v R [2015] NSWCCA 217 Olbrich v R (1999) 199 CLR 270 Category: Sentence Parties: Jose Degouveia (the offender) Joshua Degouveia (the offender) Director of Public Prosecutions Representation: Solicitors: Mr J David (for the Accused Jose Degouveia and Joshua Degouveia) Ms C Buckthought (for the Director of Public Prosecutions) File Number(s): 2018/00092020; 2018/00092069 Judgment - ex tempore revised 1. In 2017, a police task force successfully tracked down three men responsible for supplying wholesale commercial quantities of cannabis to cannabis distributors at the street level. As is apparently the practice in drug sales imperial measures were used: sales generally involved either 5 pounds (2.27 kilograms) or 10 pounds (4.54 kilograms). 2. The three men are the present offenders, Jose Degouveia and his son Joshua Degouveia, and Joshua Degouveia's friend Leti Tugaga. All have accepted responsibility for their crimes, and did so in the Local Court. Each was charged with supplying a commercial quantity of cannabis leaf: s 25(2) Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is 15 years imprisonment and or a large fine. The weight of cannabis leaf required to bring the crime into the commercial range is between 25 and 100 kilograms. 3. Jose Degouveia was also charged with a further offence of dealing in the proceeds of crime; maximum penalty 15 years' imprisonment, s 193B(2) Crimes Act 1900. 4. For each offender a number of transactions were rolled up into the one charge. This accumulation was accepted by the defence. In each case it was entirely appropriate: see Hamzy v R (1994) 74 A Crim R 341 and Jadron v R [2015] NSWCCA 217. 5. I sentenced Leti Tugaga on 16 November 2018 for his role in this enterprise. For the commercial supply matter I indicated a sentence of three years, taking into account his early guilty plea, subjective case and personal circumstances. I also took into account evidence he acted under some direction from the Degouveias. 6. On 13 December 2018, sentencing proceedings commenced in relation to the present offenders, Jose and Joshua Degouveia. We ran out of time that day, but I heard from Joshua Degouveia, who was cross‑examined. Jose Degouveia's evidence was not completed. I adjourned until 14 February 2019 on the expectation I would have most of the day to complete the matter. A lightning strike on Wollongong Court, which took out our recording equipment, put paid to that plan. We were, however, able to hear all of the evidence and submissions. 7. Two critical issues emerged from the evidence of Joshua and Jose Degouveia. The first; what role was played by each offender? And the second; what profit, if any, was earned by the respective offenders? 8. It is important to my assessment of those issues that I start with the statement of facts accepted by each offender and put before the Court in their individual case. Although separate facts documents were set out in both exhibit A, Jose Degouveia's Crown sentence summary, and exhibit B, Joshua Degouveia's Crown sentence summary, the material in each offender's case does not contradict the other. Rather, each facts document puts emphasis on matters that are directly relevant to the respective offenders. As both were acting together the gravity of their individual offending can be only assessed by reading both facts documents together. 9. Between 18 November 2017 and 15 March 2018, Jose Degouveia supplied 82.75 kilograms of cannabis leaf on 17 different occasions primarily to his son, Joshua Degouveia, and to Tugaga. Jose would advise his son when he had purchased the cannabis. During the same period Joshua on supplied 54 kilograms of cannabis leaf on 20 different occasions. 10. Much of what follows comes from telephone intercepts. On 3 August 2017, Joshua sent text messages to a co‑offender who because his case is still before the courts I will call the man from Parkes, saying that the cost of cannabis was $2,500 per pound and was "very good quality". Arrangements were then made for the collection of that cannabis. Further text messages were intercepted between Joshua and this other man, confirming he had received the cannabis. On 10 September 2017, there are other phone calls relating to a further transaction involving 3 pounds (1.36 kilograms) of cannabis. 11. On 27 October 2017 the man from Parkes entered an agreement with undercover operatives to supply 2 pounds (907 grams) of cannabis for $6,000.The facts detail the contact between this man and Joshua Degouveia, noting that Joshua had 5 pounds (2.27 kilograms) available, which he would put aside. Similar arrangements followed - this other man would attend the premises of Joshua Degouveia who would supply him with between 3 and 7 pounds (1.36 and 3.14 kilograms) of cannabis. 12. Some of the matters that precede those arrangements are contained in more detail in the facts document relating to Joshua Degouveia. An example is given about 18 and 19 November 2017, where intercepted telephone calls between Jose and his son Joshua are set out. The calls relate to the supply of 5 pounds (2.27 kilograms) of cannabis leaf to this other co‑offender. Telephone intercepts reveal that Jose Degouveia had left cannabis for Joshua Degouveia "next door". At this time, Jose and Joshua owned two properties, which are side‑by‑side in Flinders, a southern suburb of Wollongong. Joshua lived in one and the property next door was, at the time, vacant. 13. There are further details in the facts, of conversations between the two offenders on 27 November 2017, referring to the supply to the man from Parkes. On 28 November surveillance was conducted on the home residence of Jose Degouveia. The other man attended in his vehicle and was supplied with cannabis by Jose Degouveia. That cannabis was then forwarded to an undercover operative. 14. On 10 December 2017, Joshua Degouveia and this other man had further discussions about picking up cannabis. Those conversations also involved Tugaga. So far as Joshua is concerned, the agreed facts say "the offender instructed Tugaga that the man from Parkes will already have a bag, and to get them out ready. They then set out a coded conversation about money and cannabis leaf". 15. Turning now to Jose's facts document; there were, set out, summaries of other lawfully intercepted phone conversations between the two offenders. For example: Joshua asks Jose to contact the up-line supplier referred to as "Andy," to see if he can get 15 (pounds), that is 6.81 kilograms, of cannabis for the following day. Jose responds, "I don't like your chances". They have a discussion about how much could be obtained later. Jose informs Joshua that he obtained 12 (pounds), that is 5.4 kilograms, of cannabis, which he says he will leave in a garage. Further surveillance indicates that on 3 or 4 January - the respective facts documents differ as to the date - the man from Parkes and another man entered into an agreement to purchase 7 pounds (3.14 kilograms) of cannabis for $21,000, and that man from Parkes attended the premises of Joshua Degouveia. 16. Other transactions and telephone calls are recorded in the facts document relating to Joshua. They set out conversations between Jose and his son. Further intercepted conversations from 29 January 2018 between Jose and Joshua, go to what are described as "invoices" and refer to large sums of cash which need to be paid - $24,000 for 10 pounds (4.53 kilograms) of cannabis. Joshua says he needs to count it and will bring it around to Jose's house. 17. There are other discussions in Jose's facts document for that date about how the co‑offender Tugaga should deal with the cannabis that had been supplied to him. The telephone intercepts also record Jose and Joshua discussing their product and the complaints by customers. The facts, in relation to Jose, relate to conversations with Jose and his son Joshua on 13 February where Jose says he had 50 pounds (22.67 kilograms) of cannabis available, but he was able to only get 25 pounds (11.33 kilograms). Jose said that he would take the lot. There is then discussion about how much cannabis is available to them, and discussion about payments being short. The other side of that material is set out in the facts relating to Joshua. 18. Again, so far as Joshua is concerned, his facts document reveals that on 22 February 2018 he has a lengthy discussion with Tugaga about moving quantities of cannabis. The same transaction is set out with a slightly different perspective in the facts document in Jose's case. The transactions continue up until the arrest of both offenders on 22 March 2018. They relate to, and I am sure, only a small part of the bigger business operation of both offenders. 19. I am asked to assess those facts in the context of evidence given by both offenders. Both were represented by Mr David, solicitor. Neither father or son sought to contradict the other. Both put a case that was intended to be an open and frank acceptance of responsibility for their crimes. 20. Joshua Degouveia told me that the whole enterprise was his idea. He said that he was blind to the potential repercussions, and his sole focus was on making "easy money". He wanted a lifestyle he could not afford as a stevedore - until then, his occupation. He said that he had floated the idea with his father, who initially tried to talk him out of it. Joshua said that he was so determined that his father eventually succumbed and, in order to protect him from the more nefarious criminal element in our community, his father said that he would make all the necessary contacts, and arranged the supply. Joshua said that his father had the necessary contacts, and it is clear that he did, because the telephone intercepts reveal that he was able to provide large and regular quantities of cannabis leaf to both Joshua and Tugaga. 21. Joshua told me that he had spoken to his friend Tugaga, who himself was keen for easy money. He told me they operated as equals and, contrary to what I had heard in Tugaga's proceedings, he was not giving Tugaga directions. 22. The facts presented to me in Tugaga's case were different. Judges are required to discriminate between offenders and focus on the facts in their individual cases. The material tendered to me in Tugaga's sentence proceedings had him in a more subordinate position. That is not the evidence here of Joshua. However, it is also clear from the telephone intercepts - a summary of which I have given - that it was, as he accepts, Joshua Degouveia's idea; that he inveigled his friend into the operation and that Tugaga accepted the advice of both Jose and Joshua. 23. Joshua's plan, he said, was simple. Jose would source quantities of leaf - 5 pounds or 10 pounds and collect it from his source; that cannabis would then be provided to Joshua and Tugaga, who would supply the drug to other distributors, including, in particular, the man from Parkes. He told me a pound of cannabis leaf would be bought for about $2,400 and sold for $2,600. The cannabis would be picked up and delivered by his father Jose. Money would be passed back to the supplier by Jose, thus keeping a separation between the supplier and Joshua and Tugaga. When pressed in cross‑examination, Joshua Degouveia accepted that his cash profits were greater than the mark-up margins initially disclosed. 24. Quantity of cash totalling $154,000 was seized from the house occupied by Jose Degouveia. Jose, in his evidence, told me that $24,000 was ready for the next cannabis purchase. $20,000 was money Joshua had made from selling a car, and $83,000 was his personal savings. Those personal savings included $45,000 he said he had taken from his late father's safe; which sum he had not disclosed to other beneficiaries of his father's estate, including his mother and three siblings. 25. Jose told me that he made no financial gain from any cannabis transaction and had never intended to make any financial gain from his involvement in the sale of cannabis leaf. He said he had involved himself solely to protect his son. He said only $24,000 of the $154,000 was related to the criminal enterprise. 26. I am not required to determine a confiscation of proceeds of crime matter, and I do not attempt to do so. But, I cannot accept this evidence as to the source of the money, or his evidence that he had no intention of making any profit from the enterprise. His own testimony shows Jose Degouveia was, like his son, interested in acquiring property and cash. The sale of large quantities of cannabis leaf produced, as expected, considerable cash profits. Those profits are coextensive with the risk of detection. 27. The telephone intercepts which I have summarised, and are set out in full in the agreed facts, and the history of the conversation and transactions are at odds with the picture painted by both offenders in their evidence. While Joshua appeared open and genuinely contrite, he was also at pains to accept full responsibility and shield his father. This is understandable, because it was his idea. While upfront about his motivation being greed, he was far from upfront about how much profit he had received; attempting to minimise the criminality of his actions. 28. Jose, on the other hand, by his own admissions, wanted cash, cars, and property, and was prepared - if he is to be accepted - to take money due to his mother and siblings. He had the contacts, he controlled the flow of the cannabis, both to his son and, through him, Tugaga. He was prepared, at times, to take part in the delivery and, on occasions, received more money than had been expected, or as Joshua and the man from Parkes had agreed. His evidence is that his motives were entirely altruistic cannot be accepted. Even if he wanted his son to get most of the profit, he had no reason for such generosity towards Tugaga. 29. The facts are also at odds with his evidence about Tugaga. I find that Jose Degouveia did expect, and did receive, some cash profit. 30. Drug supply operations do not necessarily need strict hierarchies. Each supplier can, and did here, have their own separate roles. Tugaga appears to have been operating as some form of independent contractor. Here, Jose sourced the cannabis for both his son and, through him, Tugaga. Jose also, at times, supplied them with advice and contacts. He had expertise - it is not exactly clear how that was gained - and he used his own premises to hold cash and drugs. 31. Joshua Degouveia was the instigator of the plan but he deferred to his father and relied upon his father; as the source of cannabis, to hold cash and drugs, and advice as to supply and how it was and to whom it was to be supplied. Tugaga was running his own operation, but relative to both the offenders now before me, he relied on them for advice and, more importantly, the drugs that he supplied. Fact‑finding on sentence 1. Where a matter is put forward in sentencing proceedings and is contested, notwithstanding the Evidence Act 1995 generally does not apply, it may not be acted on unless it is established. The proof of such a fact must occur in the context of the proceedings concerned. I am obliged to make my own assessment of the evidence as part of my overall synthesis of relevant factors. As the High Court made clear are in Olbrich v R (1999) 199 CLR 270, matters of mitigation must be established on the balance of probabilities. Matters in aggravation of penalty must be established beyond reasonable doubt. The High Court there also recognised that sometimes a sentencing Court must sentence in accordance to what is known or what can be agreed. The High Court made the point, at [24], that a Judge who is not satisfied of some matter urged in plea on behalf of the offender does not have to sentence the offender on the basis of that contention, unless the prosecution prove the contrary beyond reasonable doubt. 2. The conclusions I have reached result from such a review of the evidence. I then have to assess the objective seriousness of what was done by each offender. A Court is obliged to take into account the amount of drug sold. A Court takes into account the nature of the business, the number of transactions, and the level of organisation. A Court has to assess the role in the business of the particular offender, and whether they acted under direction or whether they were a principal. I have to take into account in that regard steps to distance themselves from ultimate purchasers, and any efforts made to avoid detection. The Court can also have regard to the motivation for the sale and the profit to be made. 3. So far as Jose is concerned, he supplied over 82.75 kilograms of cannabis leaf in 17 transactions. He used his skill and expertise to earn a profit, I find, both for himself and his son. It was Joshua's idea. He supplied 54 kilograms of cannabis leaf in 20 transactions. He was the main operator, although Tugaga supplied 43 kilograms. Tugaga was a lesser operator; on the facts here, not a subordinate, more of a subcontractor and proportionally less objectively culpable. 4. I sentence on the basis that Joshua and Jose had a father and son business operation that they ran together for mutual benefit. They were seeking cash to lead a lifestyle that their other legitimate employment could not provide them with. 5. I have regard, when I sentence, to the principal of parity. Like must be compared with like. Different personal and criminal histories can justify a real difference in the time each will serve in prison. This principle is known as parity. It is the classic example of the need to, so far as possible, ensure equal justice: see Green v The Queen (2011) 244CLR 462 and Afu v R [2017] NSWCCA 246. These sentences must be determined having regard to the circumstances of each co‑offender, including Tugaga, and their respective degrees of culpability. 6. It bears repeating that the sale of illicit drugs causes considerable harm, not just to those who purchase and ingest the drugs, but to the community in general. The illicit trade in drugs is one of the principal sources for crime in our community. It is not just the sale of drugs. It is the crimes that are committed by those who seek to obtain funds for drugs, the destruction to family life and the personal life that drugs cause. It is also a concern to the community and the Courts what is done with the enormous funds that can be made from the sale of illicit drugs. The distribution of these illicit funds can have an impact on our economy, beyond mere avoidance of tax. 7. Where drugs are sold in quantity for profit, Judges are required to place particular emphasis on trying, by the harshness of the penalties imposed, to signal not just to the offenders, but others who might be tempted to engage in this trade, that it is simply not worth it. It must be made perfectly clear to those who involve themselves in any way in the distribution and sale of large quantities of cannabis will almost inevitably end up in jail for a long time if they are caught. 8. The seriousness of the particular offences are reflected in the maximum penalty of 15 years for both commercial supply and, for Jose Degouveia, the proceeds of crime offence. I must have regard to the maximum penalty when I come to determine the appropriate sentence. It remains an important guide to the exercise of my sentencing discretion. That said, I do not start at the maximum and then make proportional deductions from it. 9. So far as Jose Degouveia is concerned, while there are two offences charged, his second count - the proceeds matter - reflects the simple fact that he was found with the cash from the sales: I make no finding as to how much cash was related to these offences. Each transaction involved the proceeds of crime. You cannot have commercial drug supply for profit without proceeds. How much money held at the time of arrest would depend on many factors, including what part of the business cycle a person is arrested at, who is holding the profits and how much is being held to repay the up line supplier. 10. While there is no general rule that determines whether sentences ought to be imposed consecutively or concurrently, in all the circumstances here particularly the main rolled-up offence, supply, can comprehend and reflect the criminality for the other, particularly as I have taken into account the sale for profit when I came to formulate the sentence for that offence. They are part of a single episode of criminality. I intend to make both sentences concurrent: see Cahyadi v Regina [2007] NSWCCA 1 (2007) 168 A Crim R 41. 11. The subjective case for Joshua Degouveia was presented in his evidence and through a Sentence Assessment Report: Exhibit D. He was born in 1988. He has a solid family support. His criminal record is not blemish‑free, but nothing of this magnitude, and I put it to one side. I treat him as a first offender. He has a partner, and she and other prosocial friends continue to support him. They have come to court and provided me with references that attest to Joshua Degouveia being a man who they are completely surprised would engage in this sort of activity. They continue to support him. He left school in year 11 and, until he decided to become a drug dealer, he was in constant and legitimate employment. The evidence before me shows that he now has considerable insight into his criminal behaviour, and that the lifestyle he thought he might lead was one that, to date, eluded him and one that he no longer seeks. He has recognised that there are more important things in life than living a luxury lifestyle. There are much more important things than wasting your life in jail. He appears to have learned some important lessons. 12. He is assessed as being at a low risk of reoffending. He has done everything he can in custody to prove this to the Court and the community. His intention is to serve his sentence, return to work, return to his friends, and continue past involvement in community activities. All the material before me indicates he has solid prospects and has a number of prosocial supports including the trust of others. His early guilty plea will be recognised both for its utilitarian value, justifying a full discount of 25% available to me, but also as an acceptance of responsibility and a measure of a man. In evidence to me, he said he is sorry. He is sorry for: "The damage I've done, not only to myself but other people. You know, I've got my friend into trouble. I got my dad into trouble. I'm embarrassed - my whole name. You know, I put drugs out on the street, which obviously does harm to other people, you know. Sorry for everything. I've embarrassed my girlfriend's family, I've embarrassed my girlfriend, you know. I've had nine months to really think about what I've done, you know, and I can come out and say, you know, in the future I'm going to change. I've changed from the first day I was arrested. Since I've been in custody, I've stayed away from everything. I've been nothing but my best behaviour, trying to get through this time as best I can, you know. Trying to really turn my life around from the start, you know." 1. All the material before me indicates that, while the minimum term must reflect the myriad purposes of sentencing, a finding of special circumstances can be made to reduce the period that Joshua must serve in custody to the minimum the law requires. 2. Jose Degouveia is obviously older. He should have known better. He should have known better because, as a father, his first thought was to protect his son. He did not protect his son by engaging with him in this criminal operation. I accept that he wanted to help his son, even though I do not accept that was his sole motivation. He was not a role model, as fathers should be. He was able to use his sources, which indicate connection with the criminal element. He, too, was greedy for cash. He acted without concern for the consequences for himself, for his son, for Tugaga, and, apart from attempting to protect his son from others of the criminal milieu, further he acted without any concern for the community. 3. As a young man, he had many brushes with the law. He was, however, able to work and provide to his family. However, in 2011, he was sentenced for two serious assault matters, which resulted in Intensive Corrections Orders. He has not previously been imprisoned. He is not entitled to the leniency otherwise shown to first offenders. No case for special circumstances was put on his behalf, but he too gets the benefit of his early plea, as an example of practical remorse, and I will reduce the otherwise appropriate sentences by 25%. 4. I hope that these submissions do justice to the submissions of Mr David, for the offenders, and Ms Buckthought, solicitor, for the Director of Public Prosecutions. 5. I have sought to put these sentences in context, not just with my own sentencing decisions, but sentencing decisions of other courts, particularly the guidance offered by the Court of Criminal Appeal. I have sought to synthesise all relevant purposes of sentencing. However, ultimately, every offender is individual and every sentencing exercise is individual. There are differences between each of the offences and each of the offenders, not just the quantity of cannabis supplied. I have sought to give proper effect to the principles of parity to which I have already referred. 6. In cases such as this, specific deterrence is important. But the term in gaol will achieve that purpose. But more particularly general deterrence is of fundamental requirement. The community has to understand that those who engage in the sale of large quantities of drugs in our community can expect a substantial gaol sentence. 7. Joshua Degouveia: had it not been for the utilitarian value of your plea of guilty, I would have sentenced you to five and a half years' imprisonment. The term of the sentence will be four years and one month. To reflect special circumstances, I have adjusted the non‑parole period down. 8. The formal orders of the Court are, you are convicted. There will be a non‑parole period of two years and eight months. That non‑parole period will date from 22 March 2018. You will be eligible for consideration for parole on 21 November 2020. The balance of the sentence, one year and five months, will expire on 21 April 2022. Total sentence of four years and one month. Earliest release date, 21 November 2019. Take a seat. 9. Mr Jose Degouveia: in relation to the two matters before the Court, you are convicted. Had it not been for your utilitarian plea of guilty there would have been a sentence of six years. 10. For the supply offence the term of the sentence is four years and six months. The formal orders are, a non‑parole period of three years and four months. I have rounded down slightly. That sentence will commence on 22 March 2018. You will be eligible for consideration for release to parole on 21 July 2021. The balance of the term will be one year and two months. Total sentence expiring on 21 September 2022. 11. In relation to the proceeds of crime matter, there will be a fixed term of one year and six months, taking into account the plea of guilty. That sentence will be concurrent with the other, and start on 22 March 2018. It is a fixed term with no non‑parole period because it is concurrent with the existing non‑parole period of the concurrent sentence. 12. All the matters on the s 166 certificates in relation to both offenders are withdrawn and dismissed. 13. I make a drug destruction order. ********** 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: 07 May 2019