District Court New South Wales Medium Neutral Citation: R v Zuniga Frias [2019] NSWDC 365 Hearing dates: 24 May 2019; 13 June 2019; 19 July 2019 Date of orders: 19 July 2019 Decision date: 19 July 2019 Jurisdiction: Criminal Before: Weinstein SC DCJ Decision: I convict you of the following offence: between about 26 February 2018 and 1 March 2018, you imported a commercial quantity of a border controlled drug, namely methamphetamine contrary to section 307.1(1) of the Commonwealth Criminal Code. After applying a 40% discount for your plea of guilty and assistance to authorities, I impose a head sentence of 7 years, 2 months and 12 days. I have backdated the sentence to the day you were taken into custody, being 1 March 2018. You will be eligible for release on parole on 31 December 2022. The head sentence expires on 12 May 2025 and the non-parole period expires on 31 December 2022. Catchwords: SENTENCING - imported a commercial quantity of a border controlled drug, namely methamphetamine – full-time custody Legislation Cited: Crimes Act 1914 (Cth)), ss16A, 17A Criminal Code Act 1995 (Cth), ss11.2(1), 307.1(1) Cases Cited: Markarian v The Queen (2005) 228 CLR 357 Olbrich v The Queen (1999) CLR 270 Klomfar v The Queen [2019] NSWCCA 61 Tyler v R [2007] 173 A Crim R 458 Saab v The Queen [2012] VSCA 165 R v Pang (1999) 105 A Crim R 474 Wong v R (2001) 207 CLR 584 Category: Sentence Parties: Regina v Zuniga Frias Representation: Counsel: Mr Ramage QC (Zuniga Frias) Mr Snelling (Zuniga Frias) Solicitors: Mr McCaw (Crown) Macarthur Law Group (Zuniga Frias) File Number(s): 2018/68680 Judgment Background 1. The offender Norma Zuniga Frias, born in October 1992 and currently age 26, pleads guilty to the charge of between about 26 February 2018 and 1 March 2018, she imported a commercial quantity of a border controlled drug, namely methamphetamine contrary to section 307.1(1) of the Criminal Code (Cth) (the Criminal Code). The maximum penalty for this offence is life imprisonment. Agreed Facts 1. The Agreed Facts for the purpose of sentence as follows. 2. The co-offender Rose Helena Thomas, born in December 1992 (Thomas), has pleaded guilty to between about 27 February 2018 and 1 March 2018, she aided and abetted an attempt to possess a commercial quantity of an unlawfully imported border-controlled drug, namely methamphetamine contrary to sections 11.2(1) and 307.5(1) of the Criminal Code. 3. Between December 2017 and 1 March 2018, Zuniga Frias was involved in importing a consignment of speakers that contained methamphetamine from Mexico. During this period, Zuniga Frias was regularly in contact with an associate in Mexico who was facilitating the importation. The associate in Mexico asked Zuniga Frias to book two separate Airbnbs, intending that the consignment would be delivered to each address. The consignment ultimately arrived at a third Airbnb that was booked by the associate in Mexico. The consignment arrived in Sydney on 21 February 2018 and was delivered on 27 February 2018. Between the arrival and delivery of the consignment, the methamphetamine was substituted with an inert substance by the Australian Federal Police (AFP). 4. Thomas provided support to Zuniga Frias after the consignment arrived in Sydney by aiding her to purchase screwdrivers, backpacks and scales. 5. During the relevant period, Zuniga Frias and Thomas were in a relationship and living together at an address in Despointes Street, Marrickville, NSW 2204 (the Marrickville address). 6. Zuniga Frias is a Mexican citizen who arrived in Australia on 15 April 2017 on a student visa. Thomas is an Australian citizen. 7. On 23 December 2017, Zuniga Frias used Telegram, an encrypted messaging application, to exchange text messages with a person with the username 'Julian'. During the conversation, Zuniga Frias and Julian discussed a package that would be sent from Mexico and arrive in Sydney on 27 or 28 December 2018. During that conversation, the following exchange took place: Zuniga Frias: Listen, wouldn't it be easier if you rent the Airbnb directly? Instead of sending me the money? Julian: But we don't have flights or anything to Aus. So we need you because you're there, to make it look as if you're going to rent it. Zuniga Frias: Ah ok, ok. Zuniga Frias: Yes but you said something about buying a mobile phone Julian: Buy a mobile phone Zuniga Frias: Which one, a cheapie? Julian: When you pick it up they'll ask for a number so they can contact you raegarding the parcel. Zuniga Frias: Ah, ok alright Julian: / also need your passport photo. Instead of your licence. 1. On 24 December 2017, Julian told Zuniga Frias that 'everything has been put on hold until Tuesday, but it will arrive the following week'. The next day, Zuniga Frias told Julian that she had emailed spare passport sized photos. On 29 December 2017, Julian told Zuniga Frias that 'this will be organised after the New Year'. Zuniga Frias confirmed that she had bought a cheap phone. 2. Between 29 December 2017 and 6 January 2018, Zuniga Frias exchanged numerous messages with Julian about: 1. When Zuniga Frias would be available to receive the delivery; 2. Zuniga Frias booking an apartment or house on Airbnb; 3. Julian sending money to Zuniga Frias to reimburse her for the cost of the phone she purchased and the Airbnb. 1. On 6 January 2018, Zuniga Frias confirmed her contact phone number and the address of the Airbnb she had rented. Julian confirmed that he had transferred 20,000 Mexican pesos ($1,287.00 AUD) using a Western Union money transfer to pay for the cost of renting an Airbnb. The following messages were also exchanged: Julian: The speakers come from a very important large company; Sony. The person inside Sony is working for us monitors the parcel until it arrives at the address ok? If he sees any (light bulb emoji)(red circle emoji) we'd let you know straight away. So all good. Zuniga Frias: Ok excellent. Thanks for that, I won't worry then. 1. On 8 January 2018, Zuniga Frias received $1,262.68 from Mexico via a Western Union Money Transfer. That day she sent a message to Julian saying 'I took out the money and everything one hundred percent'. On 9 January 2018, Zuniga Frias told Julian that she had purchased another phone. She gave him the phone number so that Julian could register the number with a courier company. She also confirmed the dates for which she had booked the Airbnb. 2. On 10 January 2018, Zuniga Frias and Julian exchanged the following messages on Telegram: Julian: We're going to be rich Awesome Zuniga Frias: Hahaha Ea aaaaa (money with wings emoji) 1. Between 10 January 2018 and 17 January 2018, Zuniga Frias regularly asked Julian for updates about when the package would arrive. On 17 January 2018, the following exchange took place: Julian: I've just been told it's running behind schedule, maybe you can stay at the house for a few days and we'll rent another one next week. Zuniga Frias: Okayaaay I was keeping an eye on it So it's not arriving this week? Julian: Nope, not until next week beautiful But enjoy the house with your girlfriend Haha A little present from the agency! 1. Between 25 January 2018 and 30 January 2018, Julian asked Zuniga Frias to speak to a courier company and pass on their contact details to Julian so that the package could be sent. Julian also said that he would send some extra money to Zuniga Frias. 2. On 30 January 2018, the following exchange took place: Julian: Can't wait until it's all over so we can get paid I actually just spoke about your share and as I told you 15 are yours sweetheart And that's just the beginning Zuniga Frias: Trassss (Slang word for agreement) 1. On 30 January 2018, Zuniga Frias received $400.00 from Mexico via a Western Union Money Transfer to book an Airbnb. On 1 February 2018 and 2 February 2018, Zuniga Frias and Julian exchanged numerous messages about booking another Airbnb so that the delivery could be made. Julian also said that he would send Zuniga Frias more money to reimburse her for the booking. 2. On 2 February 2018, Zuniga Frias and Julian exchanged the following messages: Julian: Next week As soon as that's done there, they'll give you your 15 thousand dollars So exciting Zuniga Frias: You're welcome, thank you! Yes, fuckin good. Can't believe it. And next week, you would tell me what day? So someone will give me the cash ? Julian: Yep They'll pay you straight away You pick up, they pick up and they pay you when they pick up Zuniga Frias: Yayyy Awesome 1. On 2 February 2018, Zuniga Frias received $800.00 from Mexico via a Western Union Money Transfer. Between 3 February 2018 and 13 February 2018, Zuniga Frias and Julian exchanged numerous messages about when the package will arrive. During this period, Zuniga Frias twice changed the dates for the Airbnb booking at the request of Julian because of delays. On 14 February 2018, Zuniga Frias suggested she open a 'Go Fund Me' fundraising page as a covert method of receiving payment for her role in the importation. Julian also asked Zuniga Frias for a passport size photo so he could make a driver's licence. 2. On 19 February 2018, a package addressed to Zuniga Frias arrived in Sydney. The package contained two fraudulent NSW drivers' licences. 3. On 20 February 2018, Zuniga Frias told Thomas that she had received a message from DHL saying the consignment was on its way. Zuniga Frias exchanged further messages about tracking the consignment, its delivery, and what might happen if it were intercepted by authorities. During the exchange of messages, Thomas said 'Im imagining they send police with the package' and 'Im scared of this convo on whatspp'. 4. On 21 February 2018, a consignment of eight Sony Speakers addressed to Emily Clark of 95 Evans Street, Rozelle NSW 2039 arrived in Sydney Australia ('the consignment'). 15.8744kg of pure methamphetamine was concealed inside a clear box wrapped in silver foil within each speaker. The estimated street value of the methamphetamine in the consignment was $13,691,670.00. On 23 February 2018, the consignment was deconstructed by the AFP, who replaced the methamphetamine with an inert substance for a managed delivery. 5. At 10:34am on 27 February 2018, Zuniga Frias was in the vicinity of 95 Evans Street, Rozelle, NSW ('the delivery address'). At 10:51am, an AFP member disguised as a DHL courier arrived at the delivery address. The AFP member and Zuniga Frias had a conversation. Zuniga Frias identified herself as Emily and signed for the consignment. The AFP member placed the consignment in the hallway of 95 Evans Street and left. 6. At 11:22am, Zuniga Frias was called by an unknown person involved in the importation. They discussed purchasing backpacks for the substance and when Zuniga Frias would pass the substance on to another person. 7. Between 11:39am and 12:01pm, Zuniga Frias and Thomas exchanged messages about unpacking the consignment and putting the 'stuff' into backpacks on WhatsApp, a messaging application: Thomas: Hiiiii whats going on??? Zuniga Frias: Nothing Imma leave soon I have to come back later tonight To unscrew them And etc Thomas: ok bebe far out so intense should I meet you there after work Zuniga Frias: Bebe can you help me tonight Or are you busy? Thomas: she bebe I said just before should I meet you after work Is someone going to meet you there Zuniga Frias: Yes but later Thomas: When Zuniga Frias: I don't know time yet Let's speak after work About this Thomas: Ok 1. About 12:14pm, Zuniga Frias left the delivery address. 2. Between 12:51pm and 3:04pm, Zuniga Frias and Thomas exchanged the following messages: Thomas: bebe can we have some speaker do you think hehe Zuniga Frias: Bebe we get to keep all speakers But he says they don't know if they will work Thomas: neta? Zuniga Frias: But we can try Thomas: how big r they Zuniga Frias: Like meter tall? Thomas: jojaja oh ignore Zuniga Frias: 1 meter Very big 20 kilos each Carried all of them myself Thomas: far out Zuniga Frias: Also the guy transferred me 500 bebe Thomas: oh wow why Zuniga Frias: So we get 350 extra, but it's all yours, I still owe you 100 I think I have it written down Because he's happy jaja no se Thomas: ok no worries Zuniga Frias: Hey bb I need to buy backpacks Thomas: why Zuniga Frias: Because I have to put stuff in there That's why he sent more money But I don't know what is open at 6 Thomas: oh right ok Zuniga Frias: / thought about bargain berserk Obvio Thomas: how many Zuniga Frias: But it closes 4 Thomas: kmart is open 24/7 Zuniga Frias: Neta? We could stop by one on the way Thomas: seh I can meet you at bway? 1. At 6:58pm, Zuniga Frias and the offender walked into Kmart at Broadway Shopping Centre, 1 Bay Street, NSW. They purchased five backpacks, a 30 piece screw driver set, a cement pot plant and candles and left at 7:14pm. At 7:44pm, Thomas and Zuniga Frias arrived at the delivery address. They dropped off the items they had purchased at Kmart and left at 7:52pm in Thomas's car. They drove to a nearby pharmacy where Zuniga Frias was observed to leave the car and enter the pharmacy, and where she purchased a set of scales. They returned to the delivery address at 8:10pm. Zuniga Frias went inside and Thomas drove away. 2. Between 8:13pm and 8:41pm, Zuniga Frias opened the consignment, removed the substance, and used the scales to weigh the substance. She attempted to divide the substance up and put each portion inside a backpack. 3. At 8:31pm, Zuniga Frias messaged Julian and said 'Dude the fucking scales I bought are no good...And my girlfriend did me the favour of taking me to buy it and to get the things but she dropped me off here...I can open everything up today but there's no scales and it's late, what do I do, should I buy one tomorrow and come back'. At 9:11pm, Zuniga Frias left the delivery address. 4. Between 8:30am and 12:00pm on 28 February 2018, Zuniga Frias spoke to Julian about taking the backpacks to a hotel or back to her house, additional payments and preparing the 'stuff' for collection. At 11:56am, Zuniga Frias arrived at the delivery address. 5. Between 12:00pm and 5:11pm, Zuniga Frias spoke to Julian about preparing the 'stuff' for collection, getting paid for her work, the quality of the 'crystals' and using a serial number to confirm identity of the person who was to collect the consignment. During this period, Zuniga Frias continued to unpack the substance, attempting to weigh it and divide it up into five separate portions for delivery, in accordance with instructions she had received from Julian. Between 12:39pm and 6:10pm, Zuniga Frias exchanged encrypted messages with the intended recipient of the substance about the time and date of delivery, as well as the identity of the person collecting the backpacks. 6. At 5:01pm, Zuniga Frias called Thomas and said 'things, um, are changing', that 'they're gunna pick them up tomorrow' and that Zuniga Frias would have to 'take this with me' because the Airbnb rental was ending. Zuniga Frias told Thomas she would 'put them in two bags' and bring the bags home. 7. On 1 March 2018, the AFP arrested Zuniga Frias and Thomas and executed a search warrant at the Marrickville address. During a search of the apartment, the AFP found a blue bag in a bedroom shared by Zuniga Frias and Thomas. The bag contained screwdrivers, gloves, and an airway bill for the consignment. Located within the same room were three backpacks containing the inert substance. 8. Zuniga Frias participated in a recorded interview with the AFP. She made full admissions during that interview. She also said: 1. In November 2017 she was sent a phone from an unknown person who knew a friend of hers, who called himself Julian; 2. She was not expecting to have to remove anything from the consignment, simply hand it off to another unknown person, however when the consignment arrived Julian instructed her to 'open them and get these bags out'; 3. The speakers were much, much bigger than she had expected; 4. She thought the speakers contained 'coke or something'; 5. She was to receive money for collecting the package; 6. She was supposed to receive another package containing photo ID, but it never arrived; and 7. During the interview, an AFP officer said to Zuniga Frias 'Because, from my perspective, you've been very truthful and honest in relation to the things you've told us today. Is there anything else you want to say?' Zuniga Frias replied 'Um, like, I regret this - ever doing this. Like, it's obviously, the worst thing I've ever done in my life. I regret meeting him. I regret even chatting to him. For the first time, I regret doing this stupid phone. I regret not having the balls to be like, 'I'm not doing this anymore', and let him deal with his problem because in the end, it was his problem. Like, I could've just walked away before it-doing anything'. 1. I pause to note that I have been greatly assisted by the submissions of Mr McCaw on behalf of the Crown, and Mr Ramage QC and Mr Snelling on behalf of the offender. The Evidence 1. The Crown tendered a bundle of documents marked as Exhibit 1: 1. Court Attendance Notices; 2. The Statement of Facts; 3. Written Submissions; and 4. A Schedule of Comparative Cases. 1. Exhibit 2 is a sealed brown envelope containing confidential material. 2. Exhibit 3 is a letter from Justice Corrective Services dated 24 May 2019. Ms Haley Robinson, Services and Programs Officer, confirms that the offender has engaged with the Services and Programs staff at Mary Wade Correctional Centre and participated in the remand addictions program, and has covered the topics of understanding change, urges and cravings, problem solving, better living, and self-management planning. 3. Exhibit 4 is a bundle of three documents. The first is a letter from the offender dated 24 May 2019. The second is a letter from the offender's mother Norma Alicia Frias Vasquez dated 24 May 2019 and the third is a report from Philip Gorrell and Associates, psychologists and social workers, dated 10 April 2019 and under the hand of Philip Gorrell. 4. With respect to the first of the documents contained in Exhibit 4, the offender says that three years ago she lost her only sibling who was her best friend and father figure. She says that his death affected her in ways that she is still discovering and trying to deal with. As a result of his death, she says that she started drinking heavily, lost faith in God, became cynical, selfish, depressed and ultimately made the decisions that now bring her before the court. Having said that, she takes full responsibility for her actions. The offender notes that she came to Australia to study a Diploma in Digital Arts and to be with her partner, as well as to escape from Mexico where she was alienated from her mother and her Church, so that she could live an openly gay life with her girlfriend. She says that being in custody has been a wake-up call that she needed. It has cost her the relationship with her partner, a possible career as an artist and the future she had planned. She says she now sees firsthand the damage and destruction a drug like ice causes in a woman's life, in families and in the community. She says she never wishes to play any part in that vicious cycle again. The offender says that she has grown stronger and wants to help young people avoid getting into a situation like the one she is in. She says she wishes to spend every day of her life creating positive change in the world. She says further that she is ready to accept the consequences of her actions and any punishment, and will serve every day of her sentence with dignity, respect and discipline. 5. As to the second document in Exhibit 4, the offender's mother asks for the mercy of the court and for forgiveness for wrongs committed. She draws to the court's attention some details about her daughter, who was brought up by her mother in Sinaloa, Mexico. Until the offender went overseas to further her academic qualifications, she lived at home. The offender graduated with a Bachelor of Industrial Design, and travelled to different countries to study, sometimes with scholarships. She studied in Barcelona, Spain and Taipei, Taiwan. She notes that her daughter attended the Christian Evangelical Church, being a denomination of the Apostolic Church of Jesus Christ, which is fundamentalist and very strict. Homosexuality is not recognised and 'doesn't exist'. The offender's mother is a leader of the Church and could not have her daughter there if she had a girlfriend. It was a source of shame and disgrace that her daughter was a homosexual. She notes that her daughter knew that her mother and the Church were totally opposed to homosexuality, and it was only when her daughter texted her from Australia that she found out that her daughter was gay. 6. The offender's mother describes her daughter as very kind, dutiful and loving. As a teenager she liked to help the poor and elderly and disabled. She visited retirement villages, read stories to elderly people and kept them company. She taught children with limited means to play the guitar. She assisted women who were victims of domestic violence. When her daughter was growing up, she had few friends outside of her brother and was very preoccupied with scholastic work and, in her view, was naïve and too trusting. The offender's father left home when the offender was two years of age. She became extremely close to her brother Jesus, who was diagnosed with an unidentified form of cancer in January 2016. On 11 March 2016, he tragically and unexpectedly died at age 31. His death was a devastating loss to both the offender and her mother, and something from which they have yet to recover. In the offender's mother's view, two major events in the offender's life made her fall prey to unscrupulous people. They are the loss of her brother and the isolation from her Church and her family. She states that her daughter has conveyed to her how horrific and frightening her experience in gaol has been, and that she regrets what she did, particularly because she now has seen firsthand the damage drugs such as ice do to people's lives and how it destroys our society. The offender's mother notes that her own health is diminished, that she suffers from heart problems and that it will be difficult to visit her daughter in Australia. 7. As to the third document in Exhibit 4, Mr Gorrell reports that the offender told him that she came to Australia in April 2017 on a student visa to study for a Diploma of Digital Arts at the Academy of Information Technology at Ultimo, and to be with her Australian girlfriend Ms Thomas. She completed the course and was focused on learning animation, whilst at the same time working in childcare 20 hours per week. She has no relatives in Australia and her Australian friends have abandoned her. She receives no visitors apart from her mother, who flies every three months or so to Australia to support her. 8. Whilst growing up, the offender's life revolved around La Mission Mazatlan Christian Protestant Church. She learned English whilst living in California for a short time, and studied Mandarin at school, following which she won a scholarship to study in Taiwan. In 2010 she took a summer course in design and management in New York where she first met gay people. It was then that she realised that she was gay, and taking account her family background, she felt that she could not tell anyone in her family. From 2011 until 2016 she studied and completed a Bachelor of Industrial Design at the Technologicalo de Monterey Guadalajara in Mexico. It was there that she explored her sexuality and commenced her first serious relationship with the co-offender Ms Thomas. She became isolated from her mother, her family and her Church. After her brother's death, she experienced nightmares, consumed copious amounts of alcohol, used illicit substances as she did not see the purpose in her life, hid from her friends, and lost her Christian faith. Her only friendship was with Ms Thomas. After they left Mexico, they travelled to Prague and then on to Australia, where they arrived on 15 April 2017. After the death of her brother, and prior to coming to Australia, the offender consulted Dr Beatriz Moreno, psychologist, in Mexico who advised her that due to her mental state she should not leave Mexico. In retrospect the offender sees that she was depressed at that time and required treatment. She says that she did not deal with her grief until she came to gaol and was forced to cease using alcohol and drugs. As to the use of drugs, she said that in Mexico there were no real rules about them. After the death of her brother, she was using alcohol and pain killers which were purchased on the streets. She says that she has never used ice and has never been addicted to illicit substances. 9. Prior to the commission of the offence, the offender told Mr Gorrell that she and her partner were looking to file a partnership visa, the cost of which was $15,000. She did not have that money. Julian, who was a friend of a friend in Mexico, contacted her and recruited her to receive a package into Australia for which he was to pay her $15,000. She knew that the package was illegal. She received a package of speakers and was aware that illicit substances were hidden inside those speakers. She was told that once she received the speakers, someone else would collect them. That person did not attend, and Julian told her to open the speakers, remove the drugs and wait for those drugs to be collected. She did what Julian told her to do. The offender said that what she did was stupid, and at the time she did not realise the effect of drugs on the community. She has learned that in custody and she is happy that those drugs did not make it into the community. 10. While first in custody, the offender suffered from depression which is no longer an issue. She has not used illicit substances since her arrest. She receives no visitors apart from her mother. She has completed a Positive Lifestyle course, a Seasons in Growth course, a Certificate Course in food safety, and a level 4 Reading, Writing and Math course. The offender attends church, reads the Bible daily, has a good relationship with the chaplain and Corrective Services officers whom she respects, attends a meditation group, focuses on reading self-help books and tries to apply what she learns from these books. She is also a trainer of a daily exercise program that includes dietary advice for inmates. Mr Gorrell notes Dr Moreno's report that at the time of this incident the offender was vulnerable, and could easily be taken advantage of. 11. On examination, the offender appeared younger than her stated age, her presentation was neat and tidy, her flow of thought was coherent, she had insight into her offending behaviour and she had a positive outlook on her situation. She was aware of the likely sentence she is facing, she revealed remorse and had no symptoms of depression or psychosis. Mr Gorrell says: For over 35 years I've been preparing reports for court and during that time I have assessed hundreds of drug users. Most of the drug users who are in custody want nothing more than to be released from custody to continue their use of illicit substances. Many of them are practised in what they say to influence the psychologist. Every now and then an inmate presents shows genuine remorse, wants to cease using illicit substances and wants to address their problems. Ms Zuniga Frias is one of those people…. If I could criticise her in any way, I suspect she was naïve to the outside world. Her life has changed dramatically with the sudden death of her brother and in her grief she did not cope. She questioned the purpose of life. 1. He states that at the time of the offending, the offender was depressed and using alcohol and illicit substances to self-medicate. These exacerbated her depression. He notes that the offender takes full responsibility for her offences and would like to assist in preventing others doing what she did. She is vibrant and intelligent. The offender has appropriate plans to return to Mexico upon her release and recommence the life she had prior to her brother's death. He says: Rarely do I ever write such however in Ms Zuniga Frias's case I consider she has learned a great deal from her offences and I would be absolutely highly surprised if Ms Zuniga Frias does anything with her future apart from returning to a positive and productive life. [sic] 1. Exhibit 5 is a Sentencing Assessment Report dated 8 May 2019 under the hand of Sarah McCabe, Community Corrections Officer. Ms McCabe notes that Ms Zuniga Frias is liable for immigration detention on her release from custody. She has maintained employment during her incarceration. The offender had no prior criminal history in Australia. She apparently regularly engaged in daily illicit drug use from the age of 17 years up until her incarceration. The offender acknowledged her involvement in the offence, but stated that her level of involvement was not what she had initially agreed upon. She agreed with some of the police facts, but denied that she knew what was in the containers. Rather, she suspected that they were illegal substances in the containers. The offender confirmed that her offending was primarily financially motivated and that a friend of hers in Mexico had asked her for a favour in return for financial reward, which ultimately involved her taking part in the offence. She was going to invest in another Australian student visa so that she could remain in Australia and was promised $15,000. 2. The offender expressed some insight into her offending with respect to the impact of the distribution of illicit drugs in the community, but stated that it was not until she entered custody that she witnessed the negative impact that drugs have on others and their families. 3. Although the offender was willing to undertake community service work, given that she is of interest to immigration, she may be subject to detention on release. The offender was assessed at a low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R). 4. Exhibit 6 contains a number of documents. There is a certificate for a Seasons for Growth course, which is an adult program dealing with understanding change, loss and grief dated 21 February 2019. There is a statement of attainment from BSI Learning with respect to the use of hygienic practices for food safety, which is a competency forming part of a Certificate II in Hospitality and is dated 13 December 2018. There is a Certificate of Achievement, undated, for the offender's participation in the Hepatitis Prison Elimination Program Poster Competition. There is a Salvation Army Positive Lifestyle Program Certificate dated 18 February 2019. There are also documents which confirm that the offender has a Diploma in Baccalaureate Bilingual Program dated 11 May 2010 and a Taiwan Ministry of Education Enrichment Scholarship Program Award Certificate dated 1 September 2010. Finally there is a letter from Jorge Garate MD dated 13 July 2018, which confirms that the offender's mother suffers from myocardial disease with left ventricular hypertrophy, is under continuous medical treatment and suffers from a high cardio vascular risk. 5. Exhibit 7 contains a Certificate of Participation dated 6 July 2019 in an arts workshop and a certificate noting the offender's first place in a recent drawing competition from Prison Fellowships Australia. I note that paragraphs 11,12,14,15, 18, and 25 of the Affidavit of J. A. Maxted, the co-offender's mother, are read and relied upon in these proceedings. Submissions 1. The Crown's ultimate submission is that due to the seriousness of the offence, the application of the primary sentencing objectives of general deterrence and denunciation requires the imposition of a full-time custodial penalty with a non-parole period. Mr Ramage QC, who appeared for the offender along with Mr Snelling, did not cavil with this general submission. Rather, he submitted that the length of the sentence will depend on my assessment of the objective gravity of it and the subjective factors very much in the offender's favour. 2. In determining the nature and circumstances of a drug importation offence (section 16A(2)(a) of the Crimes Act 1914 (Cth)), it is relevant to consider the maximum penalty for the offence, the quantity and weight of the drug imported, the value of the drug imported, the role of the offender in the importation, the extent of the offender's knowledge of the drug imported, the length of the period of the offending, the degree of premeditation and planning in the offence, the sophistication and complexity of the enterprise that the offender was involved in, and the offender's motive in importing the drugs. These matters are also relevant in assessing the objective gravity of an offence under s307.1(1) of the Criminal Code. Objective Seriousness and the Role of the Offender 1. The Crown notes that the maximum penalty for the offence is life imprisonment and/or a fine of $1.275 million. The maximum penalty serves as a yardstick, and the court is to have regard to the maximum penalty and deterrence in assessing the degree to which the offender's conduct offends the legislative object of suppressing the illegal importation of narcotics: Markarian v The Queen (2005) 228 CLR 357 and Olbrich v The Queen (1999) CLR 270. I note that the offender imported 15.87 kg of methamphetamine into Australia from Mexico, which is almost eight times the threshold for a commercial quantity. The offence to which the offender has pleaded guilty is objectively very serious. 2. The importation was planned over an extended period of time beginning as early as 23 December 2017 up until the time the offender was arrested by the AFP. The Crown submits that the offender's involvement in the planning of the importation was essential to the enterprise as a whole. She rented two separate apartments through Airbnb and provided those addresses to 'Julian' so that he could provide that information to the exporter of the consignment. The offender was tasked with paying for these rentals, as well as buying her own phone, and meeting other unknown associates to pass on drugs once they arrived in Australia. The offender remained in close contact with Julian in Mexico about the progress of the importation. Not only was she an essential part of the importation, the Crown submits, she was trusted to carry out those tasks on her own. 3. Mr McCaw observes that the offender also took steps to avoid detection. She purchased at least two phones, which the Crown submits were 'burner' phones, and she used an encrypted messenger application called Telegram. She gave Julian copies of her passport photo, which she knew were going to be used for a false identification, which she admitted to the AFP. The Crown submits financial reward was the dominant driver in the offender's commission of the offence. She was to receive $15,000 for her role in the importation. Additionally, she received reimbursements of approximately $3000. There is a conversation between the offender and Julian in the Agreed Facts which highlights the fact that she committed the offence because she wanted to be rich. This, the Crown says, has the effect of aggravating the offence. 4. The offender knew that she was involved in importing drugs from the beginning of the enterprise, a matter that elevates the seriousness of the offence, in the Crown's submission. She knew that she was importing a large amount of drugs with considerable value, given that she was consistently reimbursed for various costs she incurred in renting Airbnbs and purchasing phones. She was aware that the syndicate involved a number of other individuals based in Mexico and Australia. These facts were known to the offender prior to the arrival of the consignment. After she took possession of the consignment, Mr McCaw submits that she would have been certain of the volume and value of the drugs inside the speakers. She commented on the weight of the speakers that contained the inert substance, opened them up and removed the inert substance before weighing the substance and dividing it into five portions for delivery. 5. The Crown submits that the fact that the offender recruited her then-partner Ms Thomas into the enterprise aggravates the offending, although he concedes that Ms Thomas was not recruited for the purpose of reducing the likelihood that the offender would be apprehended, but rather to assist in the unpacking of the speakers. 'Recruit' is perhaps too strong a word in the circumstances. The co-offender did not perform an integral role, and assisted (at the offender's request) in the purchase of backpacks and screwdrivers, by driving the offender to a pharmacy where the offender purchased bathroom scales, and by acquiescing in permitting the inert substance to remain overnight at Marrickville. The co-offender did not assist in the unpacking of the speakers. 6. The Crown relies on the following comment from Bellew J in Klomfar v The Queen [2019] NSWCCA 61: It has been observed on numerous occasions that those who act as the applicant did in this case perform an essential role in the process of organised drug trafficking. If an organisation is starved of such recruits, it will collapse. 1. The Crown submits that that passage aptly characterises the conduct of the offender. She knew she was importing drugs and knew, in a general sense, that the quantity of drugs was large and valuable. She was essential in the importation of narcotics into Australia. Therefore, the Crown submits that the sentence imposed by the court requires a significant measure of general deterrence, denunciation and 'condign' punishment. 2. Mr Ramage QC submitted that there is no evidence prior to the offender actually receiving the delivery of the speakers and removing the items as to the quantity or the weight that was involved. He said that the offender was surprised, and that she told the police that she was surprised at the size of the speakers, that she did not anticipate anything like that, or she would not have purchased bathroom scales for the purpose of weighing the drugs. Further, Mr Ramage QC says that one cannot infer from the size of the speakers the amount of the drugs that were in fact inside them. Whilst quantity and weight of the drug imported objectively is a relevant fact, what she knew prior to her actually taking the items out of the speakers is also relevant. 3. Mr Ramage QC submitted that when I look at the offending I will see that the offender was drawn in, step-by-step, by 'experienced operators in creeping corruption, taking her further and further, to do more and more'. 4. Mr McCaw submitted that the offender was a middleman. She was the point of contact between Julian who was facilitating the export to Australia, and she was the point of contact in Australia for the people who were going to collect the substance. She was therefore trusted by the syndicate. He did not put it as highly as she was the 'right-hand man' of anybody, but rather that she was delegated some tasks and trusted to fulfil them and that they exemplify her role in the importation. 5. Mr Ramage QC said that a middleman does not get directions every time they move to do anything. Furthermore, he submits it is a bold statement to say that she was trusted by the syndicate. He said that the offender in fact was trusted to expose herself as the recipient of the drugs, and to do whatever the syndicate told her to do. 6. Mr Ramage QC submits that the action of the offender lacked sophistication and she naïvely used a name close to her own for the initial consignment, which was later changed to Emily Clark, and even purchased bathroom scales when told to buy scales to weigh the drugs. She showed little independence or initiative, and her low role in the hierarchy was demonstrated by her exposure to risk by accepting the consignment, and packing the drugs and keeping them overnight. As Simpson J observed in Tyler v R [2007] 173 A Crim R 458: Ordinarily those who carry the drugs are at the bottom of the hierarchy, whilst those in higher positions distance themselves from physical contact with the drugs. 1. Mr Ramage QC submitted that the offender was not a principal and cannot be regarded as one. He says that this is an important distinction, as most of the cases referred to me by the Crown concern a person who was a principal organising the importation. He submitted that the offender was acting under instructions at all times, and that she was told what to do. He says that her role was as an accessory, in the sense that anyone who is engaged to expose themselves by being the person that either leases the premises, and more particularly is there to receive the parcel when it is delivered, is the person exposed. He submitted that experience tells us that those people are regarded as expendable, and are the ones usually regarded at the bottom of the pile. Further, there is no suggestion that the offender was to gain any more than $15,000. She did not stand to profit from the transaction itself. Mr Ramage QC reiterated that at all times the offender was acting under direction and that there was not one thing she did which was not controlled or directed. All planning was done by those who were directing her, and they were concerned with the sophistication and complexity of the enterprise. If one looks at the enterprise before the court, it could hardly be viewed as sophisticated. Mr Ramage QC suggests that her role is probably characterised as an inter-Australian courier. 2. Mr Ramage QC also submitted that whilst the courts have tended to come down much harder on those who come to Australia for the purpose of committing an offence, this is not such a case, and this too makes this case distinguishable from the cases referred to by the Crown, particularly Saab (Saab v The Queen [2012] VSCA 165) and Pang (R v Pang (1999) 105 A Crim R 474). 3. I am satisfied that the role of the offender is that of a courier to the extent that it is possible to accurately describe her position within the enterprise. Suffice it to say, that she was not at the top of the hierarchy, and was in a position that exposed her to detection. In Olbrich, the majority said at [14] with respect to determining the role of the offender: However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate. Objective Seriousness 1. In this case, I find that the offending was at the midrange of objective seriousness. General and Specific Deterrence 1. The Crown submits that in sentencing offenders involved in drug importations, principles of general deterrence and denunciation are prime considerations and will generally outweigh subjective circumstances, particularly in the determination of the total sentence; see Wong v R (2001) 207 CLR 584 at [64]. The maximum penalty of life imprisonment shows that stern punishment is warranted in almost every case because of the difficulty in detecting the offending and the great social consequences that flow from the movement of drugs into Australia and their distribution within this country: Wong at [64]. The Crown submits that the general principle is that those who are involved at any level in the importation of a border controlled drug should know that they run the risk of incurring a substantial sentence if they are apprehended. 2. In this matter, general deterrence and denunciation are significant factors. Taking into account s16A(2) matters and the offender's subjective case, personal deterrence has, in my opinion, little role to play. Character, Antecedents, Age, Means and Physical or Mental Condition: s16A(2)(m) 1. The offender is a 26-year-old Mexican national who moved to Australia in early 2017. She has no criminal antecedents known either in Australia or overseas. The Crown submits that the foreign nationality of an offender may give rise to increased hardship when serving a sentence of imprisonment due to language and cultural differences or isolation from family and friends. The Crown notes that the offender is a Mexican citizen and may be subject to linguistic and cultural differences in prison. However, the Crown submits, that there is no evidence that the offender can establish on the balance of probabilities that particular differences exist that would make imprisonment harsher for her than an ordinary prisoner. I accept that as a general proposition, but I take into account that the offender did not come to Australia for the purpose of offending, and that she will be unusually isolated in prison, although I accord it little weight. The Offender's Plea of Guilty: s16A(2)(g) 1. The Crown concedes that the plea of guilty was entered at the earliest opportunity and that the offender is entitled to a discount for the utilitarian value of the plea. I allow a 25% discount for this plea. Cooperation with Law Enforcement Authorities: s16A(2)(h) 1. The offender has provided assistance of medium value and should receive an appropriate discount for that assistance. 2. Mr Ramage QC notes that there has been cooperation with the authorities which goes into the "basket" with remorse, contrition and a desire to assist and to make amends for what she has done. I allow a 15% discount for this purpose. Contrition and Remorse: s16A(2)(f) 1. The Crown and Mr Ramage QC both submit that there is evidence that the offender is remorseful for her conduct. So much is apparent from Exhibit 3, Exhibit 4 and the report of Mr Gorrell. I accept that the offender shows genuine and appropriate contrition and remorse. Prospects of Rehabilitation: s16A(2)(n) 1. The Crown submits that the steps by an offender towards rehabilitation should be taken into account on sentence, but only as amongst a number of important sentencing considerations. There are two issues to be considered. First, the factors and evidence relied on to support a finding on prospects of rehabilitation, and second, the weight to be given to those prospects in the context of this type of offending. The Crown submits that the court need not be satisfied beyond reasonable doubt that the offender will in fact reoffend in the future. It is sufficient for the purpose of considering the protection of the community if a risk of reoffending is established by the Crown. 2. Mr Ramage SC noted that Community Corrections assessed the offender as having a low risk of reoffending and that there are other factors that point to good prospects of rehabilitation. She has a recognition of the problems that drugs create and a positive approach to a custodial situation and she has been determined to do all that she can to put back into the community in the limited opportunities she has. She is still young woman and is on the cusp of the benefit one might allow for a juvenile. 3. Mr Ramage QC says that I can also take into account extra curial punishment of the consequences of the conviction itself. The length of the gaol sentence in this case is a catastrophe for this young person's life. The conviction itself he says results in the extra curial punishment. Mr McCaw submitted that the prospect of deportation is not a relevant matter for me to take into account. I find that the offender has excellent prospects of rehabilitation, and she has demonstrated as much during her time in custody to date. I take into account the positive attitude she has exhibited in gaol, her employment in prison and the assistance she has rendered to others whilst in custody. By all accounts, she has been abstinent from drugs while in gaol. I take all these matters into account. Subjective Case of the Offender 1. Mr Ramage QC submitted that the offender was very in love with her co-accused and it may well be that one was dominating the other at some stage. She wanted to stay in Australia and wanted her relationship to continue. The subjective material reveals that she was a young woman in love with the person that she met in Mexico, that she was a young woman going through trauma and turmoil as a result of the death of her only beloved brother (who was a father figure), a woman isolated from her mother because she had gone to another part of Mexico to pursue her studies, and a young woman who at that stage began to use drugs but fell in love with the co-accused. The offender comes from a very strict Christian background which frowns greatly on relationships between the same sex. Her mother frowns greatly on the relationship and Ms Zuniga Frias is to some extent still alienated from her mother. Mr Ramage QC also relies upon the oral evidence of Ms Thomas and Ms Thomas's mother in the offender's case, to the extent that the relationship is as disclosed by them. The offender's need for support, financial and otherwise, is indeed consistent with her need for money and the money needed to get a visa to stay in Australia, as well as greed. Sentencing Approach Commonwealth sentencing provisions 1. In sentencing an offender, the court is required to have regard to the matters set out in Part 1B of the Crimes Act 1914 which provides procedural guidance on sentencing offenders who commit Commonwealth offences. In particular, the court must have regard to the matters set out in Section 16A. Part 1B is not intended to cover the field and Part 1B is not intended to operate as a code. 2. Section 16A(1) of the Crimes Act 1914 states that: In determining the sentence to be passed, or the order to be made… A court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. 1. The section 16A(1) sentencing obligation has been referred to by the Western Australian and New South Wales Courts of Criminal Appeal as the 'primary obligation'. It is specifically set out in section 16A(1), before the non-exhaustive list set out in section 16A(2), and is reinforced in section 16A(2)(k), which requires the court to take into account the need to ensure that the offender is 'adequately punished for the offence'. 2. Section 16A(2) makes clear that the 'non-exhaustive checklist' is not a catalogue of considerations which is exclusive of other relevant considerations. Each consideration is in addition to any other matters which are relevant on the question of sentence. In determining the appropriate sentence, the court must also have regard to the nature and severity of any conditions that may be imposed on, or may apply to, the offender under that sentence: section 16A(3) of the Crimes Act. I have referred to section 16A(2) matters already. 3. Section 17A of the Crimes Act provides that a court shall not pass a sentence of imprisonment in respect of a federal offender, unless the Court having considered all available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. 4. In this matter, I am satisfied that no sentence other than imprisonment is appropriate in all of the circumstances. No submissions were put otherwise. The Nature and Circumstances of the Offence: s16A(2)(a) 1. The findings of fact upon which the matter proceeds to sentence must be available from the evidence produced on sentence. If there is conduct that would aggravate the offending and lead to a greater penalty, then that conduct must be proved beyond reasonable doubt. If there are circumstances that a sentencing judge proposes to take into account in favour of the offender, it is enough if those circumstances are proved on the balance of probabilities. If findings cannot be made to the requisite standard on a particular issue agitated by the Crown or the offender, then the court must proceed to sentence on the objective facts proved by the evidence. 2. In this case, the nature of the offending and the circumstances in which it was committed are set out in the Agreed Facts. None of the evidence before me departs from those Agreed Facts. 3. I have had regard to the Schedule of Cases provided by the Crown, which have been of limited assistance, as each matter must be determined on the particular circumstances of the case: s16A(1) of the Crimes Act. sentence 1. I have taken into account the provisions of section 16A(1) and (2) of the Crimes Act referred to earlier in this sentence. 2. Having regard to section 17A(1) of the Crimes Act, and after having considered all other available sentences, I am satisfied that no penalty other than imprisonment is appropriate in all of the circumstances of this case. 3. In determining an appropriate sentence, I have kept in mind the legislative guidepost of the maximum penalty, which is life imprisonment, and the fact that there is no standard non-parole period for this offence. 4. After applying a 40% discount for your plea of guilty and assistance to authorities, I impose a head sentence of 7 years, 2 months and 12 days. The sentence is backdated to commence on 1 March 2018, the date on which you were taken into custody. The non-parole period expires in 4 years and 10 months, on 31 December 2022. The head sentence expires on 12 May 2025. OrderS 1. I convict you of the following offence: between about 26 February 2018 and 1 March 2018, you imported a commercial quantity of a border controlled drug, namely methamphetamine contrary to section 307.1(1) of the Commonwealth Criminal Code. 2. After applying a 40% discount for your plea of guilty and assistance to authorities, I impose a head sentence of 7 years, 2 months and 12 days. 3. I have backdated the sentence to the day you were taken into custody, being 1 March 2018. 4. You will be eligible for release on parole on 31 December 2022. 5. The head sentence expires on 12 May 2025 and the non-parole period expires on 31 December 2022. ********** 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: 26 July 2019