Trejos v R

HOEBEN CJ at CL:

The sentences imposed by his Honour were:

It should be noted that attached to Sequence 2 was a Form 1 schedule containing two offences of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act.

The total effective sentence was therefore imprisonment for 11 years, commencing 23 February 2015 with a non-parole period of 7 years expiring 22 February 2022 and a balance of term of 4 years expiring 22 February 2026.

When the matter came before the Court the applicant sought leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), to appeal against the sentence. Ground 1 was not relied on. The remaining grounds were:

Strike Force Dufficy was initiated by the State Crime Command Drug Squad to investigate the importation and supply of prohibited drugs, namely cocaine, by a Colombian National, Jesus Arbey Mazo Hernandez, born May 1960 (Hernandez), and an Australian-Colombian, Francesco Javier Trejos born October 1976 (the applicant).

Between 16 September 2014 and 23 February 2015 the applicant communicated by text message, phone call conversation and in person with Hernandez for the sole purpose of discussing, arranging, negotiating and supplying prohibited drugs. Police had information indicating that the applicant was involved in the supply of prohibited drugs, namely cocaine, sourced from South America and imported into Australia. The applicant was the “up-line” supplier of prohibited drugs to Hernandez.

At about 5pm on 16 September 2014 a Holden sedan driven by the applicant was observed to drive to the residence of Hernandez in Canterbury. The applicant and Hernandez met for a short time. The applicant was observed carrying a white and red plastic bag. Following this meeting, the applicant left the area.

At about 6.45pm on the same evening, Hernandez was monitored and recorded as he met with the known person near Canterbury Railway Station. This meeting took place in the known person’s vehicle. They then drove to Berna Street, Canterbury. Hernandez exited the known person’s vehicle and walked into Berna Lane to the rear of a house. After a short time, Hernandez re-appeared and re-entered the known person’s vehicle. During this meeting Hernandez was monitored and recorded supplying the known person with a white and red “The Reject Shop” plastic shopping bag, similar to the white and red plastic bag initially seen in the applicant’s possession.

The shopping bag held a plastic container which in turn contained 500 grams of cocaine. The cocaine was analysed by the NSW Forensic and Analytical Service and found to weigh 499 grams with a purity of 67.5%. While the known person was inspecting the cocaine, Hernandez used his finger to obtain a minute amount of cocaine and administered it in the presence of the known person by snorting it and discussing the “power”, “strength” and “purity” of the product.

The known person handed Hernandez $112,500 in exchange for the 500 grams of cocaine. Before the meeting concluded, both the known person and Hernandez discussed codes to be used when speaking on the phone so as to avoid police detection. The future supply of commercial and large commercial quantities of cocaine was discussed.

Communication between Hernandez and the applicant was captured via telephone intercepts. These indicated that Hernandez and the applicant arranged to meet immediately after the controlled purchase of 500 grams of cocaine. Hernandez gave the applicant some of the money which he had received.

On 3 February 2015 Hernandez was monitored and recorded meeting with the known person in the car-park of the Canterbury Ice Skating Rink. During this meeting Hernandez communicated with the applicant by mobile phone. The entire call was captured by way of telephone interception. Physical surveillance observed the applicant leave his unit and drive to the vicinity of Fore Street in Canterbury. Hernandez exited Fore Street and entered the applicant’s vehicle.

A short time later, the applicant drove Hernandez to the vicinity of the Canterbury Ice Skating Rink and left him there. Hernandez was monitored and recorded meeting with the known person and supplying him with 500 grams of cocaine inside a “Clip Fresh” container which was within a plastic shopping bag. The cocaine was later analysed and found to weigh 498 grams with a purity of 70.5%. The known person handed Hernandez $94,500 in exchange for the cocaine.

Throughout this time, the applicant drove around the block and through several streets and laneways. At the conclusion of the meeting, the applicant picked up Hernandez and dropped him off in the vicinity of Berna Lane, Canterbury.

Between 11 December 2014 and 23 February 2015, a number of meetings between Hernandez and two known persons were monitored and recorded. During these meetings, Hernandez spoke at length about how he and the applicant were planning to import cocaine. Specifically, Hernandez stated that the applicant was organising for a coffee machine to be sent from either Argentina, Peru or Panama into Australia which would contain two kilograms of cocaine within it. Hernandez informed the known persons that if they could receive the coffee machine on behalf of the applicant, he would pay the known persons $30,000 for receiving it.

On 23 February 2015, the applicant was monitored picking up Hernandez from Fore Street, Canterbury. A short time later, the applicant and Hernandez drove to the Canterbury Ice Skating Rink, where Hernandez met with the known person. Hernandez supplied the known person with 500 grams of cocaine. The cocaine was later analysed and found to weigh 498.67 grams with a purity of 70.5%.

Immediately after Hernandez supplied the known person with cocaine on this occasion, both he and the applicant were placed under arrest. The applicant had been parked approximately 150 metres away from the Canterbury Ice Skating Rink.

Upon the applicant being cautioned, he indicated that there was “an ounce of cocaine in the glove box”. Police searched the applicant's vehicle and located the ounce of cocaine in the glove box.

The applicant was conveyed to Campsie Police Station and was read Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The applicant participated in an electronically recorded interview, and made full admissions with respect to supplying a commercial quantity of cocaine over the course of several months. The applicant explained that he would receive $80,000 cash from Hernandez following each supply to him.

The applicant indicated that he was only involved with Hernandez for the purpose of conducting “business” and clarified that the term “business” referred to “drug dealing”. The applicant made full admissions to sourcing, transporting, facilitating the supply and actually supplying prohibited drugs to Hernandez in various quantities in exchange for cash.

Immediately following the arrest of the applicant, a search warrant was executed at his residence in Ashton Street, Rockdale. Police located a further 131.1 grams of cocaine hidden in a roof cavity within a bedroom of the premises. This and the cocaine found in the car were the basis for the Form 1 offences. Police located $104,500 in Australian currency inside a shoe box in the premises. This became Sequence 7.

During the electronically recorded interview, the applicant made admissions concerning the 131.1 grams of cocaine found within his unit as belonging to him, saying that he was intending to eventually sell it. The applicant said that at least $80,000 from the $104,500 located in the shoe box, were proceeds from the supply of prohibited drugs.

His Honour noted that the two Form 1 offences, had they been prosecuted separately, each carried a maximum penalty of imprisonment for 15 years. His Honour accepted that the applicant had pleaded guilty at an early point in time and found that he was entitled to a discount of 25% as a result. The applicant gave evidence in the sentence proceedings.

In evidence the applicant agreed that he knew the cocaine was imported from South America and that he had an agreement to receive cocaine sent by a particular person that he knew and to sell the cocaine in Australia for the financial benefit, both of himself and that person. His Honour found that over the period of time covered by the charges, the applicant had a standing arrangement with Hernandez, that Hernandez would negotiate with others to purchase cocaine which the applicant could provide to him. The applicant would then receive a previously agreed sum from Hernandez when Hernandez had completed the supply transaction.

His Honour was not prepared to accept that the $104,500 in cash found in the shoebox was related to “criminal activity” other than that with which the applicant had been charged. His Honour found that he was unable to determine that question one way or the other and consequently, was not able to find that the Crown had established this fact beyond reasonable doubt.

His Honour found that the applicant had no convictions in New South Wales but did have a significant conviction in the United States. He was arrested in February 2004 and charged with offences variously described as conspiracy to possess with intent to distribute heroin, possession of one kilogram or more of heroin and importation into the United States of one kilogram or more of heroin. The applicant served a sentence of just over 6 years in relation to those offences and upon his release from prison, was automatically deported from the United States. His Honour was satisfied that the applicant was acting as a courier in relation to the US offences and that he committed that offence for money.

His Honour was not prepared to use that finding as an “aggravating factor” when considering sentence but did regard it as relevant because it disentitled the applicant to any leniency. His Honour regarded the offending in the United States as important because, like the present offences, it involved trafficking in prohibited drugs.

His Honour concluded that each of the commercial supply matters before him, fell within the middle range of objective seriousness for offences of this type. His Honour set out the elements of the offending which led to that conclusion. In each case the quantity of cocaine was substantially above the minimum required to prove the offence. There was no doubt that the applicant was the principal in Australia of the drug supply “network”. In that regard, his Honour noted that the network only comprised the applicant and Hernandez. His Honour also took into account that the applicant had an arrangement with someone in South America to send him drugs.

His Honour found that the “network” was not sophisticated but very simple. The modus operandi was that the applicant would receive the prohibited drugs through the post, advise Hernandez who would then find a buyer and make the necessary arrangements with both the buyer and the applicant for the drug supply to take place. His Honour noted that the applicant was the up-line supplier and had an intimate knowledge of the arrangements which Hernandez was making with others, even if he did not know the identity of a particular purchaser.

His Honour concluded that the applicant’s role in the distribution of the drugs was vital, not only because he was supplying the drugs to Hernandez but because he was the person who would collect the drugs when they arrived in Australia.

His Honour found that the applicant was to receive a substantial sum of money in respect of each drug supply with which he was involved. His Honour rejected the applicant’s evidence that he would only receive $15,000 from each supply. His Honour found that the amount received by the applicant was greater, but he was not able to specify the actual figure. His Honour was satisfied that the applicant would receive a substantial profit from each drug supply. This led to the further conclusion by his Honour that the applicant was solely motivated by financial gain in committing these offences and that this was a matter which added to the objective seriousness of the offending. In that regard, his Honour found that s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 (NSW) had been made out. His Honour observed that as an aggravating feature in a drug supply case this was not a particularly significant finding because this was a usual motivation for those involved in drug supply.

Because the applicant did not have any drug dependency issues and was not a drug user, his Honour characterised the applicant as “a man who cynically was prepared to obtain a prohibited drug from a foreign country and to distribute it within this country for profit”. (Sentence judgment, 14.4)

His Honour found that because the offending had occurred over a four – five month period, it was premeditated and considered. That having been said, his Honour did not regard the level of planning to be such as to take the matter beyond the sort of planning which is inherent in any drug supply scenario. His Honour concluded that there was no sophisticated planning in relation to these transactions and that they were relatively simple. Accordingly, his Honour was not prepared to conclude that planning was a relevant aggravating factor.

His Honour rejected a submission by the defence that the sentences for all of the supply offences should be concurrent. His Honour found that the transactions were quite separate and not part of the same general transaction.

In relation to the applicant’s subjective case, his Honour made the following findings. The applicant had been born in Colombia but came to Australia at an early age. His family then took him back to Colombia in the late 1980’s/early 1990’s and he did not return to Australia again until 2000. He again returned to Colombia in 2003/4 and it was at that time that he became involved in importation of drugs into the United States. After serving his sentence in the United States, he made his way back to Australia. The applicant had been in a relationship in Australia for a number of years and was employed as a driver by the Uber organisation at the time of his arrest.

His Honour accepted that the applicant had generally been in employment while in Australia. His partner in Australia has remained supportive of him while he has been in custody.

The applicant admitted that he had committed the offences for financial gain in order to “make that extra dollar” and to support his family who were still in Colombia. He accepted responsibility for his actions.

His Honour was surprised that the applicant had been assessed as having a “low risk of reoffending” in the pre-sentence report. In that regard, his Honour said:

His Honour noted that the psychological report provided little useful information and that the conclusion arrived at by the psychologist was that he did “not suffer a mental illness or any psychological disorder”. His Honour noted that the applicant had a son from a marriage he entered into in 2002, who was aged 13 at the time of sentencing. That marriage broke up when the applicant was serving his sentence in the United States. The applicant had been planning to bring his son to Australia and in fact his son had arrived a month before the applicant’s arrest. His son has now returned to Colombia.

By way of further background, his Honour noted that the applicant’s father was a person who had started life as an unskilled labourer and truck driver. He had then gone into business and owned a café. Ultimately his father had gone into the money lending business in 1994/1995 but was murdered in 1995 apparently over a money lending issue.

His Honour accepted as a general proposition, that Colombia was a country of violence and of great poverty and that many people are driven into trafficking with drugs because of poverty or “economic necessity”. The applicant offered that as an explanation for why he had engaged in drug trafficking into the United States.

His Honour accepted that the applicant came from a generally hardworking family but that he had experienced a number of disadvantages during his formative years. He suffered a physical injury to his arm as a child which had never properly resolved. He continues to have some disability in that regard. His education, both in Colombia and in Australia, was limited. The applicant had always seen Australia as providing him with better opportunities than Colombia.

Despite having regard to those matters, his Honour concluded that none of the challenges faced by the applicant during his upbringing in Colombia excused his criminal conduct in Australia. His Honour was prepared to accept that it might explain the circumstances in which he was recruited to engage in drug supply while in Australia.

There were testimonials before the court from the applicant’s partner, who spoke of his positive qualities as a father and husband. There was another testimonial from the applicant’s mother who also spoke of him in glowing terms and which set out her wish that he might “turn his life around” and “correct his mistakes”.

His Honour accepted that the applicant had shown remorse and had taken responsibility for his actions. His Honour considered that the plea of guilty supported that finding. While his Honour found that the applicant had good prospects of rehabilitation, he was not prepared to find that the applicant was unlikely to reoffend.

His Honour had regard to the maximum penalty and the standard non-parole period as guideposts when considering sentence. His Honour noted, however, that these matters had to be taken into account with all of the other factors to which reference has been made. His Honour considered that totality was an important consideration in the exercise of the sentence discretion. His Honour therefore had regard to Pearce v The Queen [1998] HCA 57; 194 CLR 610 and Mill v The Queen [1988] HCA 70; 166 CLR 59. On the issue of totality, his Honour said:

His Honour was not prepared to find that the offending amounted to participation in “organised crime”. This is because of the simplicity of the modus operandi and the limited nature of the “network”.

In relation to whether the offences were committed “without regard to public safety”, his Honour said:

His Honour found special circumstances because there would be some accumulation of the sentences and because the applicant would need professional assistance to adjust to community living over a considerable period of time once he was released.

His Honour had regard to the two offences on the Form 1 and noted that greater weight should be given to the need for personal deterrence and the community’s entitlement to extract retribution when sentencing for Sequence 2, which was the offence in respect of which the Form 1 matters were to be taken into account.

The applicant submitted that his Honour erred in finding that the aggravating factor in s 21A(2)(i) of the Sentencing Act had been made out. This was because lack of regard for public safety was inherent in the offence of the commercial supply of cocaine. For that section of the Sentencing Act to be made out, it was necessary for his Honour to identify some additional circumstances of these offences which would sufficiently take them out of the ordinary so as to permit such a finding to be made.

On that issue, the applicant relied upon Mansour v The Queen [2011] NSWCCA 28; 209 A Crim R 275 where Price J (James and Hall JJ agreeing) said:

The applicant submitted that in relation to each of the commercial supply offences, there was nothing about the circumstances of the offending which “went beyond what ordinarily might be expected”. There were no factors which could support such a finding. The applicant submitted that his Honour erred when he took “disregard of public safety” into account as an aggravating factor. This was so even though his Honour said it was “not a significant aggravating factor”. It was clear that his Honour took it into account.

It is well established that an aggravating factor under s 21A of the Sentencing Act cannot be taken into account if that factor is already an element of the offence (R v Tuala [2015] NSWCCA 8). Further, a factor which is an inherent characteristic of the kind of offence for which the applicant is being sentenced cannot be taken into account as an aggravating factor under s 21A(2) unless its nature or extent in a particular case is unusual.

It is clear that the three commercial supply offences, and in particular Sequence 2 which is the index offence, were not of such a nature and extent so as to engage the aggravating factor contemplated by s 21A(2)(i). Although his Honour did not regard it as a “significant aggravating factor”, it is clear that he did have regard to it. It follows that error has been demonstrated and this ground of appeal has been made out.

In view of the findings in respect of Grounds 2 and 4, there is no need to further analyse this ground of appeal. It should, however, be noted that the applicant’s submissions in respect of this ground of appeal, both in writing and orally, have been taken into account when considering the issue of resentence and whether a lesser sentence is warranted in law.

The applicant noted that offences contrary to s 25(2) of the Drug Misuse and Trafficking Act carry a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. In his sentence judgment his Honour said:

The applicant submitted that his Honour clearly misstated the maximum penalty for the three supply offences. Even though his Honour did not again refer to the maximum penalty in his sentence judgment, it must have had an influence upon the sentences ultimately imposed given that the maximum penalty is an important guidepost to be taken into account by sentencing judges.

Plainly his Honour misstated the maximum penalty for the three supply offences. Even though the issue of the maximum penalty was not again referred to before sentence was imposed, it has to be accepted that an extraneous factor was taken into account. This being so, error has been established. Because of this and the error identified in Ground 2, it is necessary for the Court to exercise its own independent discretion in determining the appropriate sentence (Kentwell v The Queen [2014] HCA 37; 252 CLR 601; Lehn v R [2016] NSWCCA 255; Potts v R [2017] NSWCCA 10).

None of the factual findings by his Honour was challenged therefore this Court is able to rely upon those findings. What was challenged was the length of the sentences on the basis that statistics provided by the Judicial Information Research System (JIRS) indicated that the sentences imposed were very high. The applicant relied upon a cohort of 47 offenders who had pleaded guilty to supplying a commercial quantity of cocaine where only eight received a sentence of 7 years or more for the principal offence and only six received a non-parole period of 4 years or more. The applicant submitted that despite the limitations of statistics, they provided an indication that in this case lesser sentences may be warranted.

In addition to the general statistics, the applicant relied upon a schedule of cases where the facts were similar to those presently before the Court to substantiate the effect of the JIRS statistics. The applicant submitted that these cases showed that the sentence imposed for the offence of knowingly deal with proceeds of crime imposed by his Honour (a fixed sentence of 4 years) was much higher than previous sentences imposed for that offence. The applicant submitted that in accordance with the JIRS statistics, only six out of 64 offenders received a sentence of 4 years and none received a non-parole period of more than 3 years. The applicant submitted that a survey of the cases to which he referred showed that sentences in the order of 4 years and above were only imposed in cases involving much larger sums of money and/or elaborate schemes involving money laundering.

In relation to the commercial supply offences, the applicant relied upon a schedule of 12 cases in which the facts were similar to those presently before the Court and where the sentences imposed were less than those imposed by his Honour. The applicant submitted that these cases provided substantial support for the proposition that the JIRS statistics do show a sentencing pattern and that the sentences imposed in this case were in excess of that range.

The applicant submitted that not only the individual sentences but the overall sentence of 11 years with a non-parole period of 7 years was also excessive and on resentencing, a lesser sentence should be imposed.

Given his Honour’s finding that he was not satisfied that the proceeds of crime moneys came from supply offences, other than those with which the court was concerned, a substantial amount of concurrency, if not full concurrency, would be an appropriate outcome when sentencing for this offence. Accordingly, the sentence for that offence would not play a significant part in the resentencing process. The important consideration is the treatment of the commercial supply offences.

In that regard, the parties agreed in this Court that his Honour’s assessment of the offences being midrange for offences of this kind was appropriate. While that agreement does not bind this Court, in my independent assessment of the objective seriousness of the offending, I would agree with that characterisation of each of the commercial supply offences.

Other matters which I have taken into account are:

Taking those matters into account on resentencing, I would impose a measure of concurrency between each of the commercial supply offences but also an amount of accumulation, keeping in mind the separate nature of the offending and that each subsequent supply offence was to be regarded as more serious than the one which preceded it.

The 12 commercial supply cases, relied upon by the applicant as indicating “manifest excess”, do not lead me to alter that assessment. On the contrary, a close examination of those cases makes it clear that they are of only limited value. The various factors in each case influenced the determination of objective seriousness and no case is truly comparable. In particular, the applicant was not motivated by a drug or gambling addiction, nor was he a young applicant as were many of the protagonists in those cases.

All but two of the twelve cases relied upon involved single instances of commercial supply of cocaine, not multiple offences such as we have here. In some cases there was a substantial discount for assistance to police. In other cases the amount of drug supplied was significantly less than here. In other cases the share of profits by the offenders was significantly less than that of the applicant. Some of the offenders had very strong subjective cases, including mental illness. Some of the offenders occupied much lesser positions in the supply hierarchy than did the applicant here. Some offenders had no previous criminal antecedents.

In one of the two cases where there were multiple offences, the applicant was a juvenile who was also addicted to drugs and whose position was that of a courier (Regina v CN [2001] NSWCCA 100). In the other multiple supply case, the applicant had a significant gambling problem and a significant drug addiction. He also had the benefit of a substantial discount for assistance to the authorities.

As was said by Adamson J (with whom Simpson and Davies JJ agreed) in Dang v R [2014] NSWCCA 47:

In Skocic v R [2014] NSWCCA 225 Bellew J (with whom Macfarlan JA and Fullerton J agreed) said:

By reference to those statements of principle and the particular objective and subjective matters referred to above, in my independent exercise of the sentencing discretion, I would impose individual sentences at least as high as those imposed by his Honour, if not higher, and I would make each of the commercial supply sentences partially cumulative upon the other. In particular, I would not have Sequence 3 wholly concurrent with Sequence 4. In that regard, I differ from the approach of his Honour. The inevitable effect of that approach is that not only would the individual sentences be at least as long as those imposed by his Honour but the total effective sentence would be longer.

It follows that in resentencing I have concluded that a less severe sentence is not warranted in law. In those circumstances, it is not necessary to set out the sentences which I would have imposed.

The orders which I propose are:

FULLERTON J: I agree with Hoeben CJ at CL that the application for leave to appeal should be granted but the appeal dismissed. I agree that the error the subject of Grounds 2 and 3 triggered the need to exercise the sentencing discretion afresh (see Kentwell v R (2014) 252 CLR 601; [2014] HCA 37), however, given what I consider to be a relatively moderate total effective sentence for a committed course of offending, the applicant having performed a pivotal role in three separate supplies of a commercial quantity of cocaine as part of what he told police was his “business” as a drug dealer, I would impose no lesser sentence on re-sentence.

I note the different views expressed by Hoeben CJ at CL at [74] and Hamill J at [82] on the question whether on re-sentence the total effective sentence would be longer than that imposed by the sentencing judge (the conclusion reached by Hoeben CJ at CL) or not less than the sentence imposed by the sentencing judge (the conclusion reached by Hamill J) - a difference of views which exemplifies the intuitive approach to the application of the principle of totality in the exercise of what is a discretionary judgment (see JT v R [2012] NSWCCA 133 at [73]).

In Nguyen v R (2016) 256 CLR 656; [2016] HCA 17 at [64] Gageler, Nettle and Gordon JJ made the following observation of the operation of the principle of totality:

In the circumstances of this case, while I would have imposed individual sentences for each of the supply counts of a similar severity to those imposed by the sentencing judge, in my view a greater degree of accumulation was called for in order to reflect an appropriate relationship between the totality of the criminality and the total effective sentence.

HAMILL J: I agree with Hoeben CJ at CL that the application for leave to appeal should be granted and the appeal should be dismissed. I agree with his Honour's reasons for concluding that error has been established and that it is necessary "to exercise the [sentencing] discretion afresh" in accordance with the joint judgment in Kentwell v The Queen at [42] - [43]. I agree with his Honour's conclusion that this is not a case where this Court would conclude "a lesser sentence is the appropriate sentence for the offender and the offence[s]" (Kentwell at [43]).

However, in reaching that conclusion and in exercising the sentencing discretion afresh, I would not take the approach to accumulation that the Chief Judge indicates at [74]. This is discretionary judgment upon which different conclusions might properly be reached: R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 at [7] (Simpson J, Mason P agreeing). In this case, the offences committed by the applicant represented a course of conduct over a relatively short period, albeit that a number of separate and discrete offences were committed. I would take a similar approach to concurrence and cumulation as Judge Norrish QC did at first instance. The sentence that I would impose is not less than the total effective sentence imposed by the sentencing Judge: cf Kentwell at [43].

Accordingly, I agree with the conclusion of Hoeben CJ at CL as to the disposition of the appeal.