Director of Public Prosecutions (Cth) v Altamirano Galindo

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-18-01903

THE QUEEN

GABRIEL ALTAMIRANO GALINDO

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JUDGE:	Her Honour Judge Morrish
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2021
DATE OF SENTENCE:	17 August 2021
CASE MAY BE CITED AS:	Director of Public Prosecutions (Cth) v Altamirano Galindo
MEDIUM NEUTRAL CITATION: [First revision: 31 August 2021]	[2021] VCC 1155

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW – Sentence
Catchwords: Import a commercial quantity of a border controlled drug, namely cocaine, contrary to s307.1(1), by virtue of s11.2A of the Criminal Code Act 1995 (Cth) – import a border controlled drug, small quantity for personal use, namely cocaine, contrary to s307.4(1) of the Criminal Code Act 1995 (Cth) – late plea of guilty following contested committal and contested pre-trial – limited evidence of remorse – role in larger syndicate – principles of parity – prior good character of limited weight – general deterrence – COVID-19 considerations – delay – long period of pre-sentence detention – conditions whilst on remand and undergoing sentence

Legislation Cited: Criminal Code Act 1995 (Cth), s11.2A, s307.1(1), s307.4(1); Commonwealth of Australia Constitution Act 1901, s80; Crimes Act 1914 (Cth), s16A, s16E, s17A, s19AKA; Customs Act 1901, s233BA; Migration Act 1958 (Cth), s501, Sentencing Act 1991 (Vic), s6AAA
Cases Cited: DPP (Cth) v Ruiz (a pseudonym) [2020] VCC 1288; R v Moran and Byrnes (1987) 31 A Crim R 248; Markovic v R (2010) 30 VR 589; Markarian v R (2005) 228 CLR 357; Guden v R (2010) 28 VR 288; R v Carroll [1991] 2 VR 509; R v Nguyen; R v Pham (2010) 205 A Crim R 106; R v Lee [2007] NSWCCA 234; Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; Nguyen v R; Phommalysack v R (2011) 31 VR 673; DPP (Cth) v De La Rosa (2010) NSWLR 1; R v Pham (2015) 256 CLR 550; Pham v R [2014] 244 A Crim R 252; Alavy v R [2014] VSCA 25; Pham v The Queen [2016] VSCA 259; Worboyes v R [2021] VSCA 169; R v Leroy [1984] 2 NSWLR 441; R v Fraser [2004] VSCA 147; R v Ceissman (2001) 119 A Crim R 535; R v Barrientos [1999] NSWCCA 1; Sukkar v The Queen (No 2) (2008) 178 A Crim R 433; DPP (Cth) v Besim (No 3); DPP (Cth) v M H K (No 3) (A Pseudonym) (No 3) (2017) 52 VR 303

Sentence: Convicted and sentenced to a total effective sentence of fourteen years and three months’ imprisonment, with a non-parole period of nine and one-half years.

Section 6AAA declaration: Conviction and total effective sentence of 17 and one-half years’ imprisonment with a non-parole period of 11 and one-half years.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr S Ginsbourg	Commonwealth Office of Public Prosecutions
For the Accused	Dr M Gumbleton	Tony Hargreaves & Partners Lawyers

HER HONOUR:

1Gabriel Altamirano Galindo, you are to be sentenced on one charge of importing a commercial quantity of a border controlled drug, namely cocaine, contrary to subsection 307.1(1) of the Criminal Code (Cth), by virtue of section 11.2A of the Criminal Code (Cth), Charge 1, and one charge of importing a border controlled drug, also cocaine, contrary to subsection 307.4(1) of the Criminal Code (Cth), Charge 2.
2The maximum applicable penalty in respect of Charge 1 is life imprisonment, 7,500 penalty units, or both.
3The maximum applicable penalty in respect of Charge 2 is two years’ imprisonment, 400 penalty units, or both.
4When you were first arraigned before me on 23 September 2019, you pleaded not guilty to Charge 1 and guilty to Charge 2.
5On 23 September 2019, you faced a joint trial with your alleged co-accused, Manuel Ruiz[1]. You were jointly charged with Charge 1. You alone faced Charge 2. I heard a number of pre-trial applications made on your behalf at that time and as a consequence, on 18 October 2019, I severed the indictment and ordered that you be tried separately.
[1] A pseudonym
6
Mr Ruiz’s trial proceeded first. Following a jury trial lasting 16 days,
Mr Ruiz was convicted of Charge 1.
7On 4 September 2020, I sentenced Mr Ruiz to 18 years’ imprisonment with a non-parole period of 12 years’ imprisonment.
8Your trial was listed to commence on 19 October 2020, with the expectation that it might be brought forward for hearing to commence on 24 August 2020. Unfortunately, because of the world-wide pandemic of COVID-19, the trial date was vacated. On 11 March 2021, the trial was relisted to commence on 5 July 2021, however, on 7 May 2021, you indicated your intention to plead guilty to Charge 1.
9On 21 May 2021, you were rearraigned before me on Charge 1 and pleaded guilty to it.

Circumstances of offending
10The circumstances of offending are well set out in the Summary of Prosecution Opening for Plea dated 19 July 2021, tendered as Exhibit A.
11
I repeat some of the facts as I set them out in my Reasons for Sentence[2] in
Mr Ruiz’s matter:
[2] Director of Public Prosecutions (Cth) v Ruiz (a pseudonym) [2020] VCC 1288
12On 8 and 10 November 2017, two large shipments of cacao powder imported from Mexico landed in Australia. They were consigned by Arte Ikoncreto S.A de C.V. to C1 Superfoods Pty Ltd. The two consignments were delivered to Sahara Logistics in Melbourne after Mr Ruiz gave authorisation for the shipments to clear Customs. The boxes containing the cacao powder were marked with Quick Check QR barcode labels.
13
Unbeknown to the authorities, approximately 300 kilograms of impure cocaine was secreted within some of the packets of the cacao powder, in turn packed within a certain number of the boxes of the consignments. But for the reaction of a sniffer dog at Melbourne Airport reacting to you in the arrivals Customs line on
22 November 2017, the illicit importation might never have been discovered. Having been searched as a result of the dog’s response to you, you were found to be in possession of 2.4 grams of pure cocaine. That finding triggered an investigation that led to the discovery of the cocaine secreted within the importation of the cacao powder.

The investigation
14As mentioned, on 22 November 2017, you arrived at Melbourne Airport, travelling from Los Angeles. Before clearing Customs, a Narcotics Detection Dog, “Phoenix” indicated an interest in you. As a consequence, your luggage was searched by members of the Australian Border Force (“ABF”). The officers located two bags of cocaine in a jacket packed in your suitcase. The cocaine found in the two bags had an aggregate gross weight of 6.73 grams (including packaging)[3] with a purity of 75.2 per cent and 82 per cent purity respectively, yielding a net total of 2.4 grams of pure cocaine. You were then detained at the Airport.
[3]Certificate under Customs Act 1901, s233BA, sworn by Sasha Vujic on 6 February 2018, Depositions pages 1358-1359
15Members of the ABF seized three mobile phones from you:
(i)    a “Silent Circle” encrypted phone with the phone number 0452 595 627 and IMEI number 359196060011601 (“the Silent Circle phone”);
(ii)   an Apple iPhone 6 bearing IMEI number 354450069725330 (“the iPhone 6”); and
(iii)   an Apple iPhone X bearing IMEI 356725081037741 (“the iPhone X”).
16ABF members also seized an Apple MacBook Pro laptop HTD5 (“the MacBook”) from you.
17An examination of the Silent Circle phone revealed twelve photographs dated “20171109” (likely 9 November 2017) of a C1 cocoa powder shipment and a photograph dated “20171030” (likely 30 October 2017) of a C1 invoice. The invoice depicted in the photograph was from Arte Ikoncreto S.A de CV and was identical to an invoice relating to consignment Master Air Way Bill (“MAWB”) 16053900943 that had arrived in Melbourne on 12 September 2017. As it turns out, there had been three importations of cocoa powder from the same consignor. There was also a consignment of coffee from a different consignor. The first shipment, consignment 16052873214, arrived in Australia on 21 August 2017, consigned to C1 Superfoods Pty Ltd. It had a gross weight of 415 kilograms and was described as “Ca Cao Uno” cocoa powder for consignee C1 Superfoods Pty Ltd. The second shipment arrived on 12 September 2017, consignment 16053900943, from consignor Arte Ikoncreto S.A de C.V. to consignor C1 Superfoods Pty Ltd. The third importation is the one I referred to earlier, the one that arrived on two dates – on 8 November 2017, part of consignment 16056543826 from Arte Ikoncreto S.A de C.V. to C1 Superfoods Pty Ltd described as “Ca Cao Uno” cocoa powder, and on 10 November 2017, consisting of the second part of the consignment of cocoa powder (consignment 16056543826) from Arte Ikoncreto, and also of a consignment of coffee from a different consignor (consignment 16056543804).
18All of the consignments were delivered to Sahara Logistics. The aggregate total of C1 Superfoods goods delivered to and held at the Sahara storage facility in Melbourne comprised of a total of approximately two tonnes of cocoa powder and 750 kilograms of coffee.
19Returning to the examination of your Silent Circle phone at the Airport and the discovery of the photographs, the photograph of the Arte Ikoncreto S.A de C.V. invoice dated 30 October 2017 was identical to the invoice relating to consignment 16053900943, which had arrived in Melbourne on 12 September 2017 (the second importation of cocoa powder to which I have just referred).
20The next day, on 23 November 2018, members of the “JOCTIF” taskforce attended Sahara Logistics and seized all of the C1 Superfoods cocoa and coffee boxes held there. The boxes were taken to ABF to be examined and x-rayed.
21On examining the third importation, investigators found:
·        Four pallets, each containing 18 boxes labelled “Premium Cocoa Powder”
·        Two pallets, each containing 60 boxes labelled “Coffee” and
·        One pallet containing 10 boxes labelled “Premium Cocoa Powder”.
22The first pallet to be examined consisted of eight large “Ca Cao Uno” brand boxes. Each box contained 40 smaller “Ca Cao Uno“ brand boxes. Each of the 40 smaller boxes contained a substance of white powder in a vacuum sealed black pouch.
23The second pallet to be examined consisted of seven large “Ca Cao Uno” brand boxes. Each box contained 40 smaller “Ca Cao Uno” brand boxes. Each of the 40 smaller boxes contained a white powder substance, vacuum sealed in a black pouch.
24The white powder tested positive in a presumptive test for cocaine.
25In all, there were 15 boxes containing white powder. The boxes bore the numbers 5, 7, 8, 9, 14, 16, 17, 18, 23, 25, 26, 27, 34, 35 and 36 of 36. All these boxes were part of consignment 16056543826 (arrived 8 and 10 November 2017). Inside each of these 15 boxes there were 40 packets marked cocoa powder, all of which contained cocaine. Subsequent analysis of the cocaine showed that the total gross weight of the powder was 299.8 kilograms with a purity of between 76.4 per cent to 79.2 per cent cocaine, resulting in a net weight of 235 kilograms of pure cocaine.
26The remaining C1 boxes contained 500-gram packets of “Café Garat” brand coffee and “Ca Cao Uno” brand cocoa powder. No cocaine was found in these coffee boxes and cocoa packets.
27As I mentioned in my pre-trial Ruling of 14 October 2014, the case against you consisted largely of circumstantial evidence:

(a) You had a longstanding personal and business relationship with
Mr Ruiz;

(b) You made an online visit to the Sahara Logistics website approximately two weeks before the first importation, and you made trips to Australia proximate in time to the second and third importations;

(c) You made online enquiries about storage space in Sydney with Spacer Pty Ltd. You booked, and on 5 October 2017, subsequently checked in, at the Sydney Hilton Hotel;

(d) You accepted a delivery of seven large boxes that were part of the second shipment of cocoa powder (consignment 16053900943) that arrived in Melbourne on 12 September 2017. The delivery of the seven boxes (boxes 6, 7, 8, 15, 16, 17, and 18) was addressed to you at the Hilton Hotel, Sydney (the delivery was arranged by Mr Ruiz, on the Crown case);

(e) You brought with you to Australia the Silent Circle phone;

(f) Subsequent investigations about the seven boxes delivered to you revealed that only three of the boxes could be recovered. No cocaine was found within these three boxes. When questioned by police about the remaining four boxes, you explained that you had given all of the boxes to staff at the hotel as a gift. The three boxes that police were able to recover had labels referring to C1 Superfoods, but the QR codes had been removed;

(g) Your visit to Australia around the time of the second importation was brief. You arrived in Sydney on 5 October 2017 and departed Australia on 11 October 2017;

(h) There is no evidence that while you were in Sydney you made any visits to or enquiries of food distributors or sellers to promote the sale or distribution of the cocoa powder, despite your representation to the hotel concierge that you were in Australia for business and were going to cafés to sell your product;

(i) On 2 November 2017, the day that the third shipment left Mexico, your MacBook was used to visit the DSV Air & Sea Pty Ltd (“DSV”) website, a site for the exclusive use of DSV customers to track the progress of shipments. DSV was the company importing the three shipments from Mexico. This visit to the site was only six days prior to the arrival of the first part of the third importation;

(j) On 13 November 2017, an online booking had been made in the name of
Mr Ruiz at “The Hamptons” accommodation at 45 Nott Street, Port Melbourne. On 15 November 2017, Mr Ruiz arrived in Australia and checked into that accommodation. When you arrived in Melbourne on 22 November 2017, you stated on your incoming passenger card that your intended address in Australia was 45 Nott Street, Port Melbourne (the address of the Hamptons);

(k) The discovery at the Airport of the 13 photographs on your Silent Circle phone – 12 of a C1 cocoa shipment and one of a C1 invoice that was identical to the invoice relating to the shipment that arrived at Melbourne on
12 September 2017 (the second shipment) and the subsequent disappearance of those photographs from the Silent Circle phone;

(l) The Silent Circle phone also contained a PDF document depicting
19 photographs dated 25 October 2017 of 36 QR barcode labels which were identical to the 36 QR barcodes on the 36 “Cacao Uno” boxes in the November 2017 cocaine importation;

(m) Whilst in detention at the Airport, you called Mr Ruiz using the WhatsApp application. The call lasted for three minutes and two seconds. At 3.46pm, you again called Mr Ruiz for 19 seconds. At 3.46 pm, Mr Ruiz rang you for 17 seconds;

(n) Investigators did not immediately tell either Mr Ruiz or you of the seizure of the third importation from Sahara Logistics;

(o) The presence on your MacBook of a history of internet searches:

·7 August 2017 – Sahara Logistics website;
·29 September 2017 – Hilton Sydney searches for accommodation 5-11 November;
·2 October 2017 – a search on Spacer.com.au regarding storage space in Sydney for rent; and
·On 2 November 2017, being the day the third consignment had left Mexico, the DSV Track & Trace login page was visited.

28You accept that the earlier importations were conducted as a “dry run“ to test the system of importation, to establish the appearance of a legitimate importation business, and to judge whether it was likely that the true nature of the importation would come to the attention of authorities.
29You also accept that you assisted in the design and purchase of the cocoa boxes. You did this knowing that they would be used to conceal the cocaine for the importation.
30Finally, you accept that when apprehended at the border, you deleted images from your phone that you knew connected you to the importation.
31When interviewed by police on 29 November 2017, you denied any knowledge of, or involvement in, the conduct the subject of Charge 1. You denied all knowledge and involvement in C1 Superfoods or Arte Ikoncreto. You stated that Mr Ruiz is an honest man who is not a drug dealer, and that he was probably duped into arranging the importation.
32
By virtue of your guilty plea and your acceptance of the facts as outlined in
Exhibit A, you now acknowledge that the circumstantial evidence to which I have referred proves your involvement in the importation although, as I shall later explain, you have been far from frank about your role and how you came to be involved. You have, however, admitted that part of your role was to accept delivery of the cocaine and to supply it to others for distribution in Australia. You did so for profit. You have not disclosed precisely how much you stood to gain, or how many others were to share in the total profits, but I infer from the massive amount of drug involved and from the potential value of the haul, you stood to reap an immense financial reward.

Gravity of your offending
33The observations I made when sentencing Mr Ruiz are equally applicable to you: You were complicit in a venture to import a commercial quantity of cocaine that was well organised and highly sophisticated. It would appear that considerable planning and resources had been invested into the method of importation, pursuant to which an apparently legitimate business was established to disguise the massive quantity of cocaine that was the real and intended subject of the importation. The system was designed to maximize the chances of the cocaine slipping through border control undetected, which, in all probability, it would have done but for the fact that you were caught at the Airport in possession of a comparatively small quantity of cocaine.
34
The potential wholesale value of this haul is estimated to be in the region of
$45 million to $72 million. It had a potential street value of between $156 million and $235 million.[4]
[4]Statement of Detective Sergeant Keith Randall, Australian Federal Police, dated 23 March 2018, Depositions pages 1483-1501, as amended in his evidence given at the pre-trial hearing on 23 September 2019, commencing at pre-trial Transcript p316
35That the cocaine did not find its way onto the streets is no thanks to you.
36The unlawful importation of border-controlled drugs is a most serious crime, the inherent gravity of which is reflected in the maximum applicable penalty, in your case, life imprisonment. It is well understood that these substances have the potential to wreck the lives of those who use them, and beyond, they “continue to present to a modern civilised society an increasing burden both monstrous and intolerable”.[5]
[5] R v Moran and Byrnes (1987) 31 A Crim R 248 at 254 per Tadgell, J
37It is common ground that this importation was the work of a larger syndicate, of which both you and Mr Ruiz were a part. Mr Ruiz facilitated the importation. He was the one who organised for the goods to be cleared through Customs. And it was Mr Ruiz who organised the logistics.
38The Prosecution accepts that your role in the importation was “less serious”[6] than that played by Mr Ruiz, but submits that “the difference should not be overstated”.[7] You played a vital role in this importation, the full extent of which you have not disclosed.

[6]Exhibit A, paragraph 4
[7]Exhibit B, Prosecution Sentencing Submissions dated 26 July 2021, paragraph 6

Applicable principles
39The observations I made when sentencing Mr Ruiz are equally applicable in your case:
40In determining the sentence to be passed or the order to be made, I must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.[8]
[8] Section 16A(1) Crimes Act 1914 (Cth)
41There are many factors that I must take into account when sentencing you, including:
(1)   Principles of general deterrence;[9]
[9]See Crimes Act 1914 (Cth), s16A(2)(ja) – general deterrence is now specifically included as a matter to be considered
(2)   The nature and circumstances of the offence,[10] including your moral culpability;
[10] Section 16A(2)(a) Crimes Act 1914 (Cth)
(3)   The maximum applicable penalty;[11]
[11]See Markarian v R (2005) 228 CLR 357: The maximum penalty serves as a yardstick to enable a comparison between the case before the Court and the worst case scenario
(4)   Any injury, loss or damage resulting from the offence;[12]
[12] Section 16A(2)(e) Crimes Act 1914 (Cth)
(5)   The degree to which you have shown contrition for the offence;[13]
[13] Section 16A(2)(f)(ii) Crimes Act 1914 (Cth)
(6)   The deterrent effect that any sentence or order under consideration may have on you;[14]
(7)   The need to ensure that you are adequately punished for the offence;[15]
(8)   Your character, antecedents, age, means and physical or mental condition;[16]
(9)   Your prospects of rehabilitation;[17]
(10)   The probable effect that any sentence or order under consideration would have on any of your family or dependants;[18]
(11)   The probability of your deportation;[19]
(12)   Delay;
(13)   Principles of parsimony;[20]
(14)   Principles of parity; and
(15)   Principles of totality.
[14] Section 16A(2)(j) Crimes Act 1914 (Cth)
[15] Section 16A(2)(k) Crimes Act 1914 (Cth)
[16] Section 16A(2)(m) Crimes Act 1914 (Cth)
[17] Section 16A(2)(n) Crimes Act 1914 (Cth)
[18]Section 16A(2)(p) Crimes Act 1914 (Cth) – also note family and family members include – de facto partner, child as defined in section 3, and anyone else who would be a member of the offender’s family as defined: see s16A(4). Also note that there must be exceptional circumstances before this factor can be taken into account – Markovic v R (2010) 30 VR 589
[19]Must be more than a possibility, and must be based on evidence – Guden v R (2010) 28 VR 288, but see the presumption of deportation created by s501(3A) Migration Act 1958 (Cth)
[20]Section 17A(1) Crimes Act 1914 (Cth) and see R v Carroll [1991] 2 VR 509
42The general principles applicable to sentencing drug offenders who breach Federal law were summarised in R v Nguyen; R v Pham:[21]
[21] (2010) 205 A Crim R 106 at 126-128
“Some General Sentencing Principles Concerning Serious Federal Drug Offences
70The importation and possession offences now contained in the Criminal Code Act 1995 (Cth) provide for a structured sentencing regime by reference to the quantity of drug imported. Section 307 adopts ‘a quantity-based penalty regime’ by fixing commercial and marketable quantities of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties: Adams v The Queen [2008] HCA 15; 234 CLR 143 at 146 [2].

…
72     The following general propositions emerge from the authorities:
(a)     the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee at [27];[[22]]
[22] [2007] NSWCCA 234
(b)     problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]; R v Lee at [25];
(c)     it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the ‘mastermind’ does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26];
(d)     although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen; Leung v The Queen[[23]] at 607-608 [64]; R v Lee at [23]-[24];
(e)     the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar v The Queen (No. 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46];
(f)     as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32];
(g)     the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v the Queen; Leung v The Queen at 607-608 [64];
(h)     the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552-553 [114];
(i)     involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6];
(j)     the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49];
(k)     where offenders are not young …. the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 474 [98]; … .”
[23] (2001) 207 CLR 584

43These principles have been cited with approval in Victoria.[24]
[24]        See for example Nguyen v R; Phommalysack v R (2011) 31 VR 673
44In Nguyen v R; Phommalysack v R,[25] Maxwell P observed:
“35.In De La Rosa,[26] McClellan CJ at CL identified the following as key reference points for sentencing (and for comparing sentences) in cases such as these:
·        quantity;
·        role;
·        reward;
·        assistance to authorities;
·        criminal history; and
·        prospects of rehabilitation.”
[25]        Ibid
[26]        DPP (Cth) v De La Rosa (2010) NSWLR 1, paragraph [267]

45His Honour went on to acknowledge the level of detail in a table that was prepared from a comprehensive study of some 80 cases. He noted that although the table provided a helpful reference point for sentencing, it must not be regarded as setting the sentencing parameters for the arbitrary quantities into which the groups analysed were divided.
46It should be noted that current sentencing practice is to be interpreted from sentencing practice Australia-wide, and not just from Victoria[27] where, as it has been observed, sentencing practice has been lower than in other States.[28] Caution must be exercised when statistical information is relied upon, because no two cases are likely to be identical.[29]
[27]        R v Pham (2015) 256 CLR 550 at paragraphs [18]-[19]
[28]        Pham v R [2014] 244 A Crim R 252 at paragraph [44] and Attachment B to those reasons
[29]        Alavy v R [2014] VSCA 25
47In Pham v The Queen,[30] the Court of Appeal again emphasised that while sentencing statistics offer guidance and promote consistent sentencing practice throughout Australia, they are not determinative of the sentence to be imposed in any particular case.
[30] [2016] VSCA 259

Plea in mitigation of penalty
48
In a comprehensive plea conducted on your behalf, your counsel, Mr Gumbleton, conceded the gravity of your offending and that the only available response to it is the imposition of a significant term of imprisonment. In essence, the focus of his submissions was on the application of principles of parity, under which he contended that although there are many similarities between your case and that of Mr Ruiz, there are two fundamental differences that should sound in a sentence of less severity than that imposed on Mr Ruiz. The chief differences are, first, you pleaded guilty, and, second, you played a lesser role than did
Mr Ruiz.
49I now turn to the matters raised on your behalf:
Personal history
50
Your personal history is fully described in a report prepared by Mr Patrick Newton, clinical and forensic psychologist.[31] You are now aged 38 years. You were born in Guadalajara, Mexico, the youngest of two children to your parents.
You described your childhood to Mr Newton as “chaotic and unstable”.[32]
[31]Exhibit 2, Report of Mr Patrick Newton, clinical and forensic psychologist, dated 17 July 2021
[32]Exhibit 2, page 3
51Your father was a gang member who drank heavily and used illicit drugs regularly. Your father’s criminal and drug-using associates regularly congregated at the family home, frequently exposing you and other family members to a variety of problematic behaviours. Your father was volatile and prone to rages. He would regularly beat your mother and perpetrate acts of violence upon members of your family. The general neighbourhood in which you lived was characterised by high rates of crime, violence and social unrest.
52You told Mr Newton that while living with your parents, you experienced periods of severe distress and fear, accompanied by a profound sense of powerlessness and helplessness in the face of your father’s depredations and the general mayhem that surrounded the family. You said matters came to a head when you were aged approximately ten years. You reported that while playing soccer, you and your friends had become embroiled in a gun battle between rival gangs. In the turmoil, your best friend was shot, and despite efforts to assist him, he died from his injuries. When you returned home with blood on your clothing, your mother was finally moved to take steps to separate from your father. Your mother took you and your sister to Mexico City, where you all lived with your maternal grandmother. Initially, you lived in a state of trepidation, expecting that your father would come for you or that he would exact revenge in response to the dishonour he perceived himself to have suffered. Your fears were allayed when you learned that your father had died in a gang-related incident approximately a year after you had moved to Mexico City.
53You told Mr Newton that the move to your grandmother’s house marked a turning point in your childhood. From that point on, you were able to attend school regularly, experience a stable and nurturing environment, and live free from the fear of ongoing violence and other problems. You said that this period forged a strong bond between you and your grandmother. You expressed some considerable distress to Mr Newton that because of your remand, there is great distance between you and your family. You have been able to maintain some irregular contact with them using video-technology whilst on remand, however, their absence from your life more broadly has been taking a heavy toll upon your wellbeing.
54
So far as your education is concerned, Spanish is your first language.
You commenced learning English in primary school. You now have good working proficiency in both verbal and written English.
55
You completed your education in Mexico. You commenced primary school in Guadalajara and continued at a private Catholic college after your relocation to Mexico City. You were a good student with few disciplinary issues and were otherwise generally of good behaviour. You enjoyed the support of a small group of friends and were not subject to bullying. You completed the equivalent of
Year 12 in Mexico.
56After completing your secondary education, you studied International Trade at a university in Mexico City. After graduating, you worked in the real estate industry, although you also made some forays into the field of scrap metal export/import.
57With respect to personal relationships, you formed a serious relationship with a woman named Annie who you met approximately a year before your arrest for these matters. At that time, you were engaged to be married. For the first year of your period on remand, you maintained your relationship with Annie, however, due to the ongoing uncertainty of your predicament, the relationship ended.
Mental health
58
According to Mr Newton, you reported suffering no significant psychological disturbance prior to your arrest on these matters. Mr Newton, however, noted a range of symptoms and anxiety that have plagued you during your adult years.
In particular, you reported that your sleep has been perennially disturbed, that you have found new social situations challenging, and that you have been prone to respond to stressful situations with more intense reactions than others in your circle. Prior to your incarceration, you had not sought professional assistance to manage these symptoms. You claimed these symptoms were instrumental in your own use of illicit drugs.
59You reported to Mr Newton that the experience of being arrested and remanded evoked a significant personal crisis. You said that for the first 18 months of remand, you were held in solitary confinement and allowed only one hour per day out of your cell. You said that although this arrangement was put in place for your own protection, you nevertheless found it very taxing emotionally. You reported to Mr Newton that you descended into depression and became increasingly hopeless and pessimistic. You experienced recurrent bouts of intrusive imagery from the distressing events of your childhood, which infested your waking thoughts as well as your dreams. You consulted with mental health staff whilst on remand and were prescribed medication to ameliorate your symptoms.
60At the time of interview with Mr Newton, you had been moved into a mainstream unit and still reported persisting symptoms of anxiety.
61Mr Newton assessed your mental health in these terms:
“… While his symptoms are not sufficient to meet full criteria for post-traumatic stress disorder (PTSD), it is highly likely that Mr Galindo suffered this condition in childhood. The most appropriate diagnosis in his case is therefore one of post-traumatic stress disorder, in partial remission.”[33]
[emphasis in original]
[33]Exhibit 2, page 10, paragraph 39
Substance use
62
Mr Newton noted that you were less than candid about your substance use.
He reported:
“It was not easy to obtain specific details about Mr Galindo’s substance use. He seemed uniquely guarded during this aspect of our discussion and I had the impression that he was minimising his engagement with illicit drugs.
Mr Galindo reported that he engaged in what he referred to as ‘only recreational drug use’. He said that this had commenced while he was at university. Mr Galindo said that he had primarily used cocaine. He said that his use of this drug took place during social outings and that he valued the drug for its ability to relax him, to allow him to continue drinking alcohol without feeling intoxicated, and because it could ‘give [him] a ‘mojo’ with the girls’. Mr Galindo said that he had also used this drug in the context of professional negotiations and sales while working in real estate. He was unclear about the amount of cocaine he had used or how regularly he had used the drug, but stressed that ‘it wasn’t much’ and that he ‘didn’t do it regularly’. Mr Galindo stressed that he had not experienced symptoms of tolerance … or withdrawal, and that he did not consider himself addicted to the drug.
…
Taking Mr Galindo’s reports at face value his substance use would have been sufficiently intense to meet DSM-5 criteria for a substance-use disorder with regard to alcohol and cocaine. Assuming Mr Galindo’s reported abstinence can be objectively verified, this condition would now be specified to be in remission, in a controlled environment. At the time of his offending, it would appear likely that it would have been at a mild to moderate level of clinical severity.”[34]
[34]Exhibit 2, paragraphs 21, 22 and 25

[emphasis in original]
Guilty plea
63
As mentioned, you pleaded guilty to the charges. Your plea to Charge 2 was entered at an early stage. Your guilty plea to Charge 1 was entered very late in the piece, long after a contested committal hearing was conducted, spanning four days in 2018, in which a number of witnesses were cross-examined,[35] and after a
pre-trial hearing, also involving the calling of witnesses.[36] That said, a guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount.
[35]The committal hearing took place on 13 and 14 August 2018 and 11 and 18 September 2018
[36]See Amended Defence Response to Summary of Prosecution Opening dated 23 August 2019 on behalf of the offender outlining the list of pre-trial issues
64In determining the weight to be given to your plea of guilty, I take into account the following factors:
(a)   the timing of your plea;
(b)   you are entitled to a statutory discount because of your plea;
(c)   as shall be discussed later, to a limited extent, I accept that your plea is indicative of your remorse;
(d)   the strength of the cases against you, which I assess as strong;
(e)   you have avoided the cost and inconvenience of a trial. You have spared witnesses the inconvenience of giving evidence upon your trial; and
(f)    there is enormous social utility involved in your guilty plea, and by taking this course, I accept that you have facilitated the course of justice.
65Dealing with the question of the social utility inherent in your guilty plea, I note that there was delay in the matter proceeding, largely attributable to the world-wide pandemic of COVID-19.
66In the recent case of Worboyes v R,[37] the Court of Appeal emphasised the need to give more than mere lip service to the sentencing discount to be applied for a guilty plea in the current climate. As their Honours stated:
“34It may thus be concluded that … the preponderance of authority contemplates that mitigation of punishment should flow from a plea of guilty based solely on the utilitarian benefits of the plea. Hence, appellate courts have recognised the public interest in facilitating pleas of guilty so as to conserve courts’ trial processes, and so as to alleviate the congestion in criminal courts that delay in the hearing of contested trials creates.

35As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.
36There are, it must be recognised, real disincentives in the current climate for accused persons who are on bail to plead guilty, particularly if a sentence of imprisonment is on the cards. As the judge observed in the present case, a newly-sentenced prisoner in times of the pandemic will spend the first two weeks of his or her sentence in isolation. Thereafter, he or she will have very restricted opportunities for contact with family and friends. Further, rehabilitative and other programs within prisons are severely curtailed. That this is so is notorious. These circumstances must render the prospect of imprisonment even more unpalatable than is usually the case, and operate as a further deterrent to the entry of a guilty plea. These disincentives to pleading guilty must be balanced by a proper inducement, through mitigation of sentence, to accept guilt.
37Self-evidently, the other side of the coin is that there are real incentives for the cynical and unprincipled to exploit the delays resulting from the pandemic. The longer the delay, the more the memory (and enthusiasm) of witnesses dims, and the preparedness of victims to actively and willingly participate is tested, with associated forensic disadvantages to the prosecution. In ordinary times with ordinary delays, the lot of victims and witnesses already is not a happy one. The longer the delays, the more pronounced their plight.
38Further, and significantly, criminal jury trials in times of the pandemic are far more resource-depleting than in times where the threat of serious infection is not present. One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to an extent freed up.
39For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.”[38]
[37][2021] VSCA 169
[38]Worboyes v R (ibid) at paragraphs [34]-[39] (citations omitted)

67I have been told that you have now been fully vaccinated against COVID-19, and although this does not eliminate the risk of you becoming infected, it will greatly enhance your chances of not becoming seriously ill if infected.
Delay
68Through no fault of either party, there has been considerable delay in bringing the matter to court. In the period of delay you have been remanded in custody. Had you maintained your innocence, under the emergency legislation enacted in Victoria to enable criminal jury trials to proceed before a judge alone, your trial could not have been brought forward and heard by a judge alone as the Constitution guarantees that the mode of trial on indictment for a Federal offence must be by judge and jury.[39]
[39]Commonwealth of Australia Constitution Act 1901, s80
Remorse
69According to Mr Newton, you expressed sorrow for your actions in these terms:
“‘This was the biggest mistake of my life. I felt, in the moment, that I had no other choice and this was the only way I could help my grandmother. Now, I am really remorseful. I am suffering for my mistakes every day. I just want to get out and live a normal life next to my family.’”[40]
[40]Exhibit 2, paragraph 30
70Mr Newton added, however:
“Consistent with his broader discussion of his offending and his relatively ‘liberal’ views with regard to drug use, while Mr Galindo was clear about the wrongfulness and illegality of his conduct, he had some difficulty discussing the broader societal impact of his involvement with the importation of illicit drugs.”[41]
[41]Exhibit 2, paragraph 31
71You wrote a letter addressed to the Court in which you set out some of your personal history and expressed a level of remorse. You wrote:
“… Everything in my life is falling apart. All I wanted since I was a little boy was to create a better world, and with my actions all I did is the exact opposite. I am deeply sorry for my actions. I have suffered in prison every single moment. I live every day full of stress and anxiety and remorse. I have been on a depression medication while in custody. I don’t sleep at night because my childhood h[a]unts me. … This terrible mistake has taught me more than anything else in my life. No matter what destiny Your Honour decides for me, I commit with my soul to be a good man again. The man that I truly am. The man I wanted to be since I was little boy. I want to live my life honestly close to all my loved ones once I finish my sentence.
… Today I can only ask for the forgiveness of everyone that I hurt, mainly the country of Australia. I take full responsibility of (sic) my actions knowing that I have to pay for the consequences of my poor decisions. … .”[42]
[42]Exhibit 3, page 3
72Your letter focussed mainly on your personal history and the impact that your offending has had on you, on your family and on your dog “Coa”. You said nothing of the effect that your offending might have had on members of the community, had the cocaine found its way onto the streets.
73Whilst purporting to accept responsibility for your actions and making broad statements about becoming involved when you were vulnerable, you were far from frank about the detail surrounding your involvement. Despite being assured by me that you could not be compelled to name any other person complicit in the importation and that no information that could place you in jeopardy would be sought, you declined to explain your fall from grace – how, from a young boy who witnessed the terror of living with a father who was a gang member involved in drugs, a boy who was able to escape that life and grow up to have the privilege of tertiary education and a successful business career, a man who had not been in trouble with the law, suddenly ended up as a member of a syndicate in a major, sophisticated drug importation. By your own admission, you were a recreational user of cocaine, and not an addict. The only rational inference to draw from the totality of the evidence is that you were sufficiently trusted by the syndicate to play a fundamental role in the importation that included travelling to Australia on numerous occasions, the last such journey in order to receive delivery of this massive amount of cocaine, which you were then to distribute to others.
74In your letter, you sought to rationalise rather than explain fully how you ended up dealing with the syndicate. You wrote:
“… Before this incident I have never been in trouble with the law. With these words I want to express how deeply sorry I am for the poor decisions that I made. At the moment I was not in a good state of mind. Having a rough childhood and because of my desperation to save my grandmother’s life, I felt that I had no choice for the crime I made. … .”[43]
[43]Exhibit 3, page 2
75As mentioned earlier, you have not disclosed how much you stood to profit from this importation.
76I accept that it is possible that at the time you committed Charge 1, your grandmother was ill, however, no medical evidence was provided to confirm the true nature of her illness or the cost involved in her medical treatment. Nor was I told if, and how, your grandmother received that treatment once you were apprehended and the importation was intercepted.
77When interviewed by police, you conveyed the impression that you were a rich man and implied that you had no motive to commit the crime, agreeing to let police view some of your financial accounts:
Q51.Do … you work?
AYes, I work in a mining trading company.
…
Q137.… So what does your business do?
AOkay, ah, my business – mainly I sell and buy the mineral for the petroleum in Mexico ‑ ‑ ‑
…
[A138]‑ ‑ ‑ for drilling. And, well, it’s a family business. I run the show.
…
[A139] … and we sell that to the – to the companies that smash the – the mineral and put it, ah, the oil – put it in the, like – it’s like a soup they make, like a combination and ‘pshh’ they drill.
…
[A141]Also, well, I inherited money and – from my father.
...
[A142]And I have investments, construction.
CURAVIC:
Q143.So would you consider yourself wealthy?
AAh, define wealthy.
…
JENNINGS:
Q144.So you can afford to travel[?]
AYeah, yes.
…
Q146.And so you’re not reliant on government welfare or anything like that[?]
ANo, nothing.
...
[A147]Ah, really, actually, I inherited properties and money.
…
[A148]And, um, I – well, I take care of my family, which is my sister and my grandma and my mother.
…
[A149]That’s the only family I have.
…
[A150]When my father died I was, ah, family – a lot of, you know, fighting for the inheritance. So we split away and I’m with my family – that’s it.
…

CURAVIC:
Q209.Okay. So are we correct in saying that you have your own business and your own money[?] ‑ ‑ ‑
AYes.
Q210.‑ ‑ ‑ and there’s no need for you to work while you’re here in Australia?
AWell, yes, yes, there’s need – ah, working here in Australia?
Q211.Mm.
ANo, no. But checking my stuff, yes.
Q212.Your own stuff?
AMy – my own things, yeah, my emails, my – my ‑ ‑ ‑
Q213.What’s that business called – your one?
APrepeco. I – I gave that page to the other officer.
Q214.Okay, all right.
AAnd that’s my business, the one I created. But, as I said, I invest also in properties and – and such.
…
JENNINGS:
[A835]…– when I met [Manuel Ruiz] six years ago, ah, he – they – I moved a lot of scrap metal at the moment and he is freight forwarder. Ah, I sell to China. And that’s why we met because we were doing – we were going to do business, but he was too expensive and I said, ‘No, I’m doing – keeping it to myself’. That’s the way we met and we became friends.
Q836.I thought you were introduced by a friend.
ABy a friend in a party – okay. We went to his – I’m going to tell you the same, because it’s the truth. Um, ah, our friend I met in Guadalajara introduced us in a party and I said, ‘Hey, what do you do for business?’ ‘This.’ ‘Ah, I am in the scrap metal.’ ‘Can you move my – my merchandise?’ and he said, ‘Yes.’ ‘Give me a quotation’. And ‑ ‑ ‑
Q837.And do you get any money from this? From these referrals kind of thing?
ANo, no. It was just, ah, social and nothing happened.
Q838.So how much do you say on average you make a year with your own business? How much ‑ ‑ ‑
AWith construction and everything?
Q839.Yeah, on average.
AUm, about two point five.
Q840.Ah, US?
AYeah.
Q841.And what – are you talking about million?
AYeah.
Q842.On average a year. And do you have, ah ‑ ‑ ‑
AWell, two – two – two million.
Q843.Okay. And do you have a record of that, if we were to – if we wanted to obtain that information?
AWell, I have a big, ah, bank statement. I have properties.
Q844.Yep.
AAh ‑ ‑ ‑
Q845.And your transactions from Sydney and your flights and everything you said before are on your American Express ‑ ‑ ‑
AYeah, on my American Express. I don’t pay cash. I bring cash but I don’t pay ‑ ‑ ‑
Q846.Yep.
AYeah, everything is in my Amex, personal stuff.
Q847.And how do you access your accounts?
ASo I can give you the code if you want.
Q848.Online?
AYeah, online.
Q849.Did you want to log in and show us?
AYeah.
Q850.Yeah? Well, we can do that.
ACan you let me log in my iCloud account afterwards?
Q851.Well, we’ll monitor what you log into. Zoe – actually, no, if I can do it. You’ve logged out.
AAnd of course [Manuel] also – I ask advice but not money advice. I ask advice. He’s expert in the matter. He imports, exports lots of goods. I’m always saying, ‘Hey, what company do you recommend for forwarding this mineral to there,’ you know?
Q852.Mm‑hmm.
AHe’s an expert. That’s why in my notes I put some business that I wanted to consult.
[American Express Credit Card account opened, images taken of the amount owed][44]
[44]A copy of the images downloaded taken of the American Express account is contained in the Depositions, pages 441-450

…
CURAVIC:
Q879.Do you want to log in to your bank account?
AWell, I can log in to my mother’s, which – she’s the titular, if you want.
Q880.What about yours?
AMy personal account?
Q881.Yeah. You said ‑ ‑ ‑
ANo. It’s in the company.
Q882.Did you say you recently got three million dollars?
ANo, no, no, no, no. The – the – the – the statement that I put in the immigration that you can print ‑ ‑ ‑
Q883.Yep.
A‑ ‑ ‑ it has, ah – it’s a statement from when I sold the land for my father ‑ ‑ ‑
Q884.Yep.
A‑ ‑ ‑ and they gave me two – well, with the exchange in that moment was three million dollars.
Q885.Into which account?
AInto a – an account that, ah, ah – under my name.
Q886.Yep.
ABut that account – the money went to, ah, construction, the company.
Q887.Okay, but the ‑ ‑ ‑
AI don’t have the actual number right now.
Q888.When did it come into the account? When did the money come in?
AI don’t know, sir. It was two years ago.
Q889.Two years ago. Okay. Well, do you want to just log into that account and we’ll just see what ‑ ‑ ‑
ANo, but I don’t have the account anymore.
Q890.All right. You don’t have the account.
ANo, I only have my mother’s now, and the company and that’s it.
Q891.And the company account?
AYeah, and the company, exactly.
Q892.Do you want to log in to the company account?
AI cannot, because I don’t have the token.
Q893.You need a token? All right.
ABut I can log in my mother’s. You – you can see a number there.
Q894.What will that show us?
AA hundred thousand.
Q895.As in?
AUS.
Q896.US dollars? And is that in her name?
AYeah, but it’s actually me. It’s‑ it’s the same.
Well, we’ll have a look?
…
Q897.If you’re willing to go into it, we’ll have a look.
AYeah. Can I – do you want something else? September, you have the three?
…
Q912.So you owe that money on your American Express card.
AYeah, (indistinct).”[45]
[45] Transcript of Police Record of Interview conducted 29 November 2017

78That you were a successful businessman is confirmed in one of the character references tendered on your behalf. Mr Pablo Baptista wrote:
“… [Mr Altamirano Galindo] has always acted like a father figure around his family, providing for them for as long as I can remember. He’s extremely hard working and has worked successfully in several industries.”[46]
[46]Exhibit 5, bundle of references, letter dated 28 May 2021 from Pablo Baptista
79In his written submissions on your behalf, and no doubt on your instructions, as is your right, Mr Gumbleton was not prepared to make full disclosure about the role you played, how you came to be involved or how much you stood to receive by way of financial reward for your efforts. He submitted:
“25. It is not necessary to ascribe a label that seeks to summarise the Accused’s role in the importation. It is sufficient to understand what he did. What he did was less than what the co-offender did. The Accused’s role was plainly ancillary or secondary to his co-offender. Both offenders were working within a much larger syndicate.
26. Beyond sentencing the Accused for what he did, there is an absence of evidence to sentence him on the basis that other aggravating features are present. To do so would be pure speculation.
27. Given the co-offender has been sentenced, it is sufficient to accept that the Accused’s role was lesser than the co-offender (and significantly so – see below). It follows that there must be a lesser sentence passed for this reason alone, where all else is equal between the two.”[47]
[47]Exhibit 1, paragraphs 25-27

80In his written submissions, Mr Gumbleton made only vague reference to your connections in the drug trade:
“… [Mr Altamirano Galindo] was loosely connected to those involved in drug trafficking through his use of cocaine. He had a previous connection with the co-offender – in particular, they had lived together. He was motivated to support his grandmother and family, as well as profit for himself.”[48]
[48]Exhibit 1, paragraph 22
81In your letter to the Court, you made little mention of your financial circumstances other than to say:
“… When I became older I started to be the man of the house. I had to look after my family. I have always worked hard to support them as best as possible. All my life I have worked as a real estate agent and sometimes I traded scrap metal and some minerals in the mining business. … .”[49]
[49]Exhibit 3, page 2
82During the course of the plea hearing, again, little was said about your true financial position. Your counsel frankly admitted that you were motivated not only out of a desire to help your grandmother but also because you stood to make financial reward for yourself. As I mentioned earlier, I was never told how much your grandmother’s medical costs were or the precise share of the profits you would reap had the importation not been discovered.
83In discussion with your counsel about whether the Court should accept that you are remorseful in the face of your refusal to disclose the details sought, your counsel conceded that it is open to find that you are not truly remorseful.
84I am far from satisfied that you have disclosed the truth about your financial position, how you came to be involved in this importation, or how much you stood to gain from it. You were offered the opportunity to make full disclosure about your circumstances without naming others or placing yourself in jeopardy, however, you declined to do so. I should add here that the fact that your remorse is limited does not aggravate penalty. It means that profound, true remorse cannot be counted in mitigation of penalty.

85In these circumstances, although I am satisfied that to a limited extent you are remorseful, I am not satisfied that the level of your remorse warrants the full weight that it might otherwise have attracted.
Prior good character and nothing pending
86You have never been in trouble with the law and you have no pending matters.
87I accept that you are a man of prior good character. So much is confirmed by the many references tendered on your behalf.[50] These references attest to the fact that you are devoted to family and friends. You were well-regarded and respected in your community.
[50]Exhibit 5, bundle of references
88The weight that can be given to prior good character in cases such as these is, however, limited, because those who have no prior convictions are often selected to act as importers because of their apparent good character. A person of good character is considered to be less likely to attract the attention of authorities, making the prospect of successfully avoiding detection more likely.[51]
[51]R v Leroy [1984] 2 NSWLR 441 at 446; R v Fraser [2004] VSCA 147; R v Ceissman (2001) 119 A Crim R 535; R v Barrientos [1999] NSWCCA 1; and Sukkar v The Queen (No 2) (2008) 178 A Crim R 433
Pre-sentence detention, conditions whilst on remand and whilst undergoing sentence
89I have mentioned the observations that Mr Newton made in his report about the circumstances of your remand. To recap, your time on remand has been difficult because you have spent considerable periods in solitary confinement for your protection. Also, you have suffered from psychological symptoms that have warranted prescribed medication.
90
You have had limited contact with your family, with whom you have only been able to communicate by audio and/or video technology. By reason of the fact that you are a foreign national and because of COVID-19, it is unlikely that you will have
in-person visits from members of your family. It is clear that you are distressed by the effect that your incarceration has had, and will continue to have, on your family.
Prospects of rehabilitation
91Mr Newton reported:
“Mr Galindo endorses a ‘liberal’ attitude towards substance-related matters. He has limited insight into issues such as ‘harm minimisation’ and relapse-prevention, and this limits to some extent his insight into his offending conduct. He would benefit from participation in substance-related counselling and education.
…
… [His] own drug use and the ‘liberal’ attitudes to substance use … seems to have blinded him to the true gravity of his conduct and to have allowed him to rationalise it on the basis of his reported desire to assist his grandmother.
…
… While his insight remains in the process of developing, he expresses an apparently genuine desire for amendment of life. To support these express desires, Mr Galindo would benefit from the provision of rehabilitation … [which includes substance-related education, treatment for his anxiety, and vocational education].
More generally, Mr Galindo’s prognosis for recovery should be positive. His most important clinical needs are that receives effective ongoing treatment with anxiety and that he avoids a return to drug use. Assuming that he can receive the treatment he requires, his qualities of intelligence, resilience and resourcefulness should be assets to his recovery and return to productive life in the community more broadly – most likely in Mexico.
… [W]hile there are clearly a number of challenges ahead of him, Mr Galindo’s personal qualities, his intact family support and his generally positive adjustment all provide a foundation for a degree of optimism about his long-term prognosis and rehabilitative prospects.”[52]
[52]Exhibit 2, paragraphs 39(8)-43

92With respect, I agree with Mr Newton’s assessment about your prospects of rehabilitation.
Principles of mercy
93Mr Gumbleton called in aid principles of mercy, relying on the following:
(a)   You are a first-time offender likely to serve a lengthy period of imprisonment in a foreign country;
(b)   You have suffered a traumatic upbringing; and
(c)   The combination of matters raised in mitigation.
94The letters written to the Court by your mother[53] and your sister[54] were also, in effect, pleas for mercy.
[53]Exhibit 4, letter from Ivette Galindo
[54]Exhibit 5, letter from Michelle Altamirano
Prospect of deportation
95You are in a similar situation as was Mr Ruiz regarding the prospect of deportation: You arrived in Australia on a tourist visa. That visa was cancelled by the Department of Immigration soon after your arrival here because you were found in possession of cocaine, the subject of Charge 2. You were taken to an Immigration Detention facility where you were awaiting deportation when the larger importation and your involvement in it were uncovered. Accordingly, as I understand it, you are now classified as an “unlawful non-citizen”. You have not been granted a criminal justice visa, nor have you sought asylum in this country. It is not in controversy that there is no lawful basis for you to remain in Australia upon your release. In all likelihood you will be deported to Mexico after serving your sentence. That fact, however, does not prohibit the Court from fixing an appropriate period of parole, as it is not open to the Court to speculate about how the executive function might be performed in the future.[55]
[55]DPP (Cth) v Besim (No 3); DPP (Cth) v M H K (No 3) (A Pseudonym) (No 3) (2017) 52 VR 303 at paragraphs [48]-[58]
96I accept that it is stressful for you not knowing whether you will in fact be granted parole.
Principles of parity
97It is common ground that principles of parity must be given prominence in my task of sentencing you today.
98I have mentioned that on 4 September 2020, I sentenced Mr Ruiz to a term of imprisonment of 18 years with a minimum non-parole period of 12 years. As I understand it, neither the Prosecution nor Mr Ruiz have appealed against that sentence. Both your counsel and Mr Ginsbourg agree that the sentence I imposed on Mr Ruiz sets the benchmark for sentencing you. They agree that the sentence I impose upon you should be less than that imposed upon Mr Ruiz because you pleaded guilty and because your role was “less serious” than that played by Mr Ruiz. Had the Prosecution not made that concession, and had you not pleaded guilty, I might well have imposed the same sentence upon you, since although you each played different roles, you both played critical roles. While Mr Ruiz played a greater role in the actual importation, you were nevertheless involved in it at an early stage, helping to design and purchase the cocoa boxes in which the cocaine would be concealed. You were knowingly interested and concerned in Mr Ruiz’s activities, and you stood to receive and distribute the cocaine after it arrived. As Mr Ginsbourg submitted, “the difference [between the roles you each played] should not be overstated”.[56] That said, I sentence you on the basis of the Prosecution’s concession that the role you played was “less serious” than that played by Mr Ruiz. I have already mentioned two points of difference between your case and that of Mr Ruiz. There is a third difference – you faced an additional charge of importing a quantity of cocaine, albeit for personal use. There are, however, a number of similarities:
(a)   You both played critical roles in the importation, marking that you were both trusted members of the syndicate;
(b)   You and Mr Ruiz are friends;
(c)   You are both Mexican nationals;
(d)   Neither of you have any prior convictions;
(e)   You are both well-educated, successful businessmen;
(f)    You each have families at home in Mexico;
(g)   You are both isolated from your families, and it is unlikely that they will be able to visit you in person whilst you are in custody;
(h)   You face similar issues with respect to the terms of your remand and custody, including periods in solitary confinement and having the worry of being infected by COVID-19;[57] and
(i)    You both face the prospect that you may not receive parole because of your immigration status.
[56]Exhibit B, Prosecution Sentencing Submissions dated 26 July 2021, paragraph 6
[57]Although Mr Ruiz was not entitled to the extra weight to be given to the social utility of a guilty plea in the climate of COVID-19, he nevertheless received a sentencing discount because of the fact that his period in custody is more onerous and stressful because of the pandemic: see Sentencing Remarks DPP (Cth) v Ruiz (a pseudonym) (supra) at paragraphs [74]-[76]

Sentence to be imposed
99I can only pass a sentence of imprisonment if, having considered all other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case.[58] In all the circumstances, I have no alternative but to impose a term of imprisonment.
[58] Section 17A(1) Crimes Act 1914 (Cth)
100The objective gravity of your offending in respect of Charge 1 is high. As to Charge 2, the Prosecution accepts that the quantity of drug found in your actual possession on the day you arrived in Australia was for your personal use. That does not excuse your conduct, but it ranks the gravity of this charge at the lower end of the scale of seriousness.
101On Charge 1, the charge of importing a commercial quantity of a border-controlled drug (cocaine) contrary to subsection 307.1(1) of the Criminal Code, you are convicted and sentenced to fourteen (14) years’ imprisonment.
102On Charge 2, the charge of importing a border-controlled drug, also cocaine, contrary to subsection 307.4(1) of the Criminal Code, you are convicted and sentenced to six (6) months’ imprisonment.
103In determining whether there should be any period of cumulation between the charges, I note that the charges are discrete, without any significant area of overlap. The quantity of drug found in your possession was not part of the larger amount the subject of Charge 1. Its composition was different and its intended importation was for personal consumption, not for a purpose related to trafficking. In my judgment, and paying heed to principles of totality, a period of cumulation is warranted so as not to undermine the overall gravity of your conduct.
104Accordingly, I propose to make orders that will have the effect of making three months of the sentence imposed on Charge 2 cumulative upon the sentence imposed on Charge 1.
105I therefore direct that the sentence imposed in respect of Charge 2 shall commence today. The sentence imposed in respect of Charge 1 will commence three months before the expiration of the sentence imposed in respect of Charge 2. The total effective head sentence is fourteen (14) years and three (3) months’ imprisonment.
106In fixing the non-parole period, I must pay regard to s19AKA of the Crimes Act 1914 (Cth) which sets out the purposes of parole. Those purposes are:
(a)   The protection of the community;
(b)   The rehabilitation of the offender; and
(c)   The reintegration of the offender into the community.
107Taking these matters into account, I direct that you serve a minimum term of nine and one-half (9½) years before becoming eligible for parole.
108I am required to explain the impact of my Order.[59]   The total effective sentence is fourteen years plus three months’ imprisonment. I have directed that you serve a minimum period of nine and one-half years before becoming eligible for parole. Accordingly, you will be required to serve a minimum period of not less than nine and one-half years, and thereafter, if you are released on parole, the balance of your sentence will be served in the community subject to the conditions of your parole and subject to any order for your deportation. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison.
[59]        Section 16F(1) Crimes Act 1914 (Cth)

Direction under Section 17A(2)(b) Crimes Act 1914 (Cth)
109Having come to the conclusion that I have no alternative but to impose a term of imprisonment, under s17A(2)(b) of the Crimes Act 1914 (Cth), I direct that my reasons for so finding be entered in the records of the Court.

Declaration of pre-sentence detention under Section 16E Crimes Act 1914 (Cth)
110Under s16E of the Crimes Act 1914 (Cth), I declare that the period of 1,363 days be reckoned as time already served under this sentence and I direct that the details of this declaration be entered in the Court’s records.

Statement under s6AAA Sentencing Act 1991 (Vic)
111It is desirable to state the sentence and non-parole period, if any, that would have been imposed in respect of the offence but for your plea of guilty. Therefore, pursuant to s6AAA, and taking into account the matters to which I have previously referred as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea, the sentences I would have imposed are follows:
112On Charge 1, you would have been convicted and sentenced to seventeen (17) years’ imprisonment. I say so in view of the learned Prosecutor’s concession that the role you played was less serious than that played by Mr Ruiz.
113On Charge 2, you would have been convicted and sentenced to twelve months’ imprisonment.
114I would have made orders that would have had the effect of cumulating six months of the sentence imposed on Charge 2 upon the sentence imposed on Charge 1. That would have resulted in a total effective sentence of 17 and one-half years’ imprisonment.
115I would have directed that you serve a minimum of 11 and one-half years before becoming eligible for parole.
116I direct, pursuant to s6AAA, that the sentence that would have been imposed but for the plea of guilty be noted in the Court’s records.
117
Before I finish, I will confirm that the method of arriving at the correct periods of cumulation has been achieved by setting the start dates in the way I have.
Mr Ginsbourg?
118MR GINSBOURG: Yes, they have, Your Honour.
119HER HONOUR: And I have referred to all of the sections of the Crimes Act 1914 (Cth) that require reference, namely s17A(2)(b) and s16E, and I have taken up the suggestion of both parties to make a statement under s6AAA so that the sentence that would have been imposed can be measured against the sentence actually imposed and also against the sentence imposed against Mr Ruiz.
120MR GINSBOURG: Yes, is the short answer, Your Honour. It is an unresolved question as to whether s6AAA is required, but with respect, the way Your Honour has addressed that is the safest.
121HER HONOUR: Well, as I say, I think it is necessary for the purposes of this case, but also so that the sentence imposed in this case can be measured against the sentence imposed in Mr Ruiz’s case on the question of parity.
122MR GINSBOURG: Yes.
123HER HONOUR: Mr Gumbleton, anything further?
124MR GUMBLETON: No, there is not. May it please the Court.
125HER HONOUR: Mr Ginsbourg, can I thank you once again for the careful attention that you and those instructing you gave to the facts. Had you not clarified that question of quantity, for example, I would have fallen into sentencing error by imposing a sentence on an amount that was virtually double the amount actually found in Mr Altamirano Galindo’s possession, and also thank you for the detailed written submissions. Mr Gumbleton, I thank you also for those detailed written submissions.
126Now, do you require any time using the link, Mr Gumbleton, to speak to your client? I hope I have spoken slowly enough in imposing the sentence so that your client understands it, and the Crimes Act requires me to explain the effect of the sentence, but do you want some time to speak to Mr Altamirano Galindo?
127MR GUMBLETON: Yes, I would be very grateful for that, Your Honour, and also Mr Will Parker, but in the absence of everyone else other than the Court staff would be very much appreciated.
128HER HONOUR: Obviously we will leave Ms Pineda-Stuart available for you. There are no confiscation or other orders that are required to be made?
129MR GUMBLETON: Not from my perspective, Your Honour.
130MR GINSBOURG: There was a matter raised with me, Your Honour, about the return of property, but that is something we will need to further discuss.
131HER HONOUR: All right. Well, if a forfeiture order or confiscation order needs to be made either in respect of the computers, the phones, I am assuming you will keep those exhibits anyway, in case there is a retrial ordered in the Ruiz matter, but there is no need to keep the cocaine the subject of Charge 2 that has not already been destroyed.
132MR GINSBOURG: No, I think with respect that’s right, Your Honour, and we will not trouble Your Honour unless we need to, and on the papers at first instance.
133HER HONOUR: Thank you very much. Very well, my associate will now arrange for that private meeting for the defence. Thank you.
134MR GINSBOURG: May it please the Court.
135HER HONOUR: Please otherwise close the Court.
136MR GUMBLETON: If it pleases the Court.

- - -

IN THE COUNTY COURT OF VICTORIA CR-18-01903 AT MELBOURNE
BETWEEN THE QUEEN
–v–
GABRIEL ALTAMIRANO GALINDO

SUMMARY OF PROSECUTION OPENING FOR PLEA

Date of document:  19 July 2021
Filed on behalf of:  Prosecution Prepared by:
Shaun Ginsbourg  Mobile:
Barrister  Email:
Owen Dixon Chambers (East)            Clerk Holmes

Introduction

The offender has pleaded guilty to the following charges:
i.Importing a commercial quantity of a border controlled drug contrary to s307.1(1), by virtue of s11.2A, of the Commonwealth Criminal Code. The maximum penalty is life imprisonment, 7,500 penalty units, or both..
ii.Importing a border controlled drug contrary to s307.4(1). The maximum penalty is 2 years imprisonment, 400 penalty units, or both.
The first charge arises from the offender’s joint importation of 235kg of cocaine with [Manuel Ruiz], a Mexican compatriot. The cocaine was concealed in a consignment of Cacao Uno brand cocoa (“the charged consignment”) shipped from Mexico, and arrived into Australia via Melbourne in two parts, on 8 and 10 November. The commercial quantity applicable to cocaine was 2kg.
The second charge arises from the offender’s importation of 2.4g of cocaine. This cocaine was concealed in the offender’s luggage when he arrived in Melbourne on 22 November 2017.
The roles played by the offender and [Ruiz] in charge 1 are described below. The prosecution accepts that the offender’s is less serious that than played by [Ruiz]. Whilst it is not alleged that [Ruiz]was involved in charge 2, the relatively small quantity of drug that underlies the charge is consistent with it being intended by the offender for personal consumption.

The offenders

The offender was born in Mexico [in] February 1983 and was aged 34 at the time of the offending.1 [Ruiz]was born in Mexico [in] January 1984 and was aged 33 at the time of the offending.
Emails that can be connected to the two men and Hopkins Corporate Solutions Pty Ltd show that they were associated in a plan to import goods into Australia in 2011-2012, 2 and that they continued to be jointly involved in importation schemes in 2014 and 2015. 3
As detailed below, both men travelled to Australia around the times that a dry run and the charged consignment arrived into the county.
Charge 1

OVERVIEW

The importation of the charged consignment was carried out by a syndicate that included the offender and [Ruiz]. The syndicate used an Australian company that [Ruiz] controlled, known as C1 Superfoods Australia (“C1”). C1 purported to operate as a legitimate importer of Mexican food products. The charged consignment purported to comprise cocoa that C1 had imported.
The offender’s role included assisting [Ruiz]to prepare for the importation. This preparation included carrying out a dry run, and finding a storage facility in Sydney prior to the arrival of the charged consignment. At least as early as April 2017, the offender helped to manage C1’s logistics in Mexico. Up until his arrest, the offender’s role in the importation was largely auxiliary to [Ruiz]. However, his arrest before the delivery of the charged consignment to Sydney could be completed prevented his intended, further role from being fully revealed.
C1

C1 was set up by [Ruiz]between May and July 2017, through a Melbourne- based corporate services provider, Junkeer New Era Consulting (“Junkeer”). [Ruiz]told Junkeer that he was acting for Mexican companies that wanted to establish an Australian subsidiary to import Cocoa powder, coffee and salsa into Australia. [Ruiz]formed an agreement with Junkeer under which Junkeer would manage C1’s accounts whilst [Ruiz]was responsible for all

1 Barrett 20/3/18: B1428.
2 Hopkins 12/4/18: B1508-87. Cf Doze 28/11/17: B585; Robinson 28/11/17: B1239; Bennet 18/3/2018: B1404-6, 1410; See also Police ROI, Q103, 835-837: B904, 964-5.
3 Rivas 15/6/20: 5 pages of translated emails. The prosecution relies upon s161 of the Evidence Act 2008 to admit these emails as an authentic record of electronic communications that are purported by the document.

of the logistics, including sourcing all of the materials, labels, boxes, importation and distribution of products into Australia.4

Between July and August 2017, [Ruiz] arranged for Sahara Logistics (“Sahara”) to store and transport all C1 products in Australia. [Ruiz] engaged DSV to handle customs clearance and delivery of the C1 consignments to Sahara’s warehouse in Altona, Victoria, where they were held on his instructions.5
Between 21 August 2017 and 10 November 2017, the syndicate used C1 to import four consignments, including that which underlies charge 1, which purported to contain either cocoa powder or coffee consigned by Mexican companies. The syndicate imported the remaining consignments to test the importation process and surround the cocaine importation with legitimate business activity6. One of the consignments, which arrived on 12 September 2017 and purported to contain 833.2kg of cocoa powder was used to complete a dry run of the cocaine importation and is discussed further below.
Both the dry run and charged consignment comprised two pallets that each contained 18 larger boxes. Each larger boxes had identifying labels containing a Quick Response (“QR”) code, and the box number for the consignment. Each larger box contained 40 smaller boxes that each weigh 500 grams net. All the boxes were labelled as “Cl CACAO UNO premium cocoa powder”.7 The syndicate used the identifying labels on the master boxes to identify the boxes containing cocaine and distribute it without raising suspicion with the Australian transportation company.8

The Offending Conduct

PREPARATORY CONDUCT

Prior to establishing C1, the syndicate made logistical arrangements in Mexico. Email correspondence and WhatsApp messages [Ruiz]exchanged with the offender and some of their associates, reveal that between April and November 2017, the offender helped design and purchase the cacao boxes used for C1’s

4 First statement of Garcia Almanza 29/11/17: B690ff; Junkeer 29/11/17: B1138ff.

5    Hills 28/11/17: B706; First statement of Garcia Almanza 29/11/17: B692; Doze 28/11/17: B584; First statement of Farrelly 29/1/18: B620ff; Second statement of Farrelly 27/4/18: B596ff; Martin 29/1/18: B1212ff.
7 First statement of Farrelly 29/1/18: B645-659; McDonald 25/1/18: B1195; Lumsden 6/2/18: B1174f
7   First statement of Farrelly 29/1/18: B645-659; McDonald 25/1/18: B1195; Lumsden 6/2/18: B1174f
8   See Hills 28/11/17: B710; Robinson 28/11/17 1240, 1245; 3rd Statement of Curavic 17/1/19: B1602ff.

importations, including by choosing the brand name ‘Cacao Uno’,9 which he later told police he thought was a brand of Mexican chocolate.10

On 10 May 2017, the offender arranged for the SIM card connected to mobile service 0452595627 (“mobile service 627”), subscribed to himself, to be activated.11 Two months later, he applied for a Visitor (subclass 600) Visa, which was granted on 3 August 2017.12
On 7 August 2017, whilst the dry run consignment was enroute to Australia, the offender accessed Sahara Logistics’ website and looked up the distance between Melbourne and Sydney.13 The prosecution says that the offender did this to gather information prior to his participation in the dry run.
Following the arrival of the dry run consignment at Sahara’s warehouse on 19 September 2017, the offender booked a return flight from Guanajuato, Mexico, to Sydney, Australia, and accommodation at the Hilton, Sydney, for 5-11 October 2017.14
On 2 October 2017, [Ruiz]directed Sahara to deliver seven boxes of cacao from the dry run consignment, specified by pallet and box number, to the Hilton addressed to the offender.15
On about 3 October 2017, the offender called the Hilton and requested to be picked up from the Sydney Airport upon his arrival. During the call he arranged for hotel staff to accept delivery of the dry run.16
On 5 October 2017, the offender landed at Sydney Airport.17 He brought with him a Silent Circle Blackphone 2 (“the Silent Circle”), which encrypts voice and text communications, and an unidentified mobile phone with IMEI 359153079011700 (“Mobile 700”). Throughout his stay, the offender used the Silent Circle to operate mobile service 0452594218 (“mobile service 218”), which he activated following his arrival, and Mobile 700 to operate mobile service 627.18 The offender later told police that he only brought an iPhone 7 when he came to Australia in October, and that he had lost it.19

9 See Rivas 9/12/19: 12 pages of translated emails, p13.

10 See below, 31(k)(i).
11 Rowell 25/1/18: B1298.
12 Barrett 20/3/18: B1404ff.
13 Second statement of Curavic 15/3/18: B552; Third statement of Farrelly 15/2/19: B1658ff.
14 Second statement of Curavic 15/3/18: B529; First statement of Curavic 31/1/18: B442, 446; Tawhiti 20/12/17: B1329ff.
15 Robinson 28/11/17: B1240, 1245.
16 Aberin 24/1/18: B202; Georgopoulos 21/12/17: B699-702; Sanjivi 20/12/17: B1302-4.
17 Telford 15/12/17: B1344.
18 Rowell 25/1/18: B1289, 291-2, 295-7; Akerstein 27/3/18: B231-2, 245-6; De Guise
2/1/18: B574; Jensen 18/1/18: B1674; Kirsner 1/2/18: B1146, 1155-7.
19 Police ROI Q460-462: B932.

The offender arrived at the Hilton later that morning and took possession of the dry run. When asked the purpose of his visit, the offender told staff that he was in Australia for business, and he was going to different cafes to sell his product.20 Shortly thereafter the offender contacted [Ruiz] and confirmed receipt.21
Before,22 during,23 and after his stay,24 the offender made enquiries about the availability of secure storage space in Sydney’s CBD through four different agents, online and via telephone. For this purpose, the offender used two anonymous iCloud email addresses25 and Mobile 700.26
The prosecution says that the offender’s use of multiple unrelated email addresses and mobile phones — including one that employed encryption — was intended by him to conceal his involvement with the cocaine importation.27 This is supported by online searches for how to permanently delete an iCloud account that the offender made on 29 September 2017,28 shortly before travelling to Australia.
On 11 October 2017, the offender left Australia.29 Prior to his departure, the offender disposed of the dry run. Police later recovered some of the boxes making up the dry run from staff at the Hilton, none of which contained border controlled drugs.30
THE CHARGED CONSIGNMENT

On 2 November 2017, the charged consignment was delivered to a customs broker in Mexico City and cleared for export delivery. On the same day, the offender accessed DSV’s website on four occasions to track the progress of the consignment.31

20 Aberin 24/1/18: B203.
21 [26(s)(iv)]
22    Rosenbaum 4/4/18: B1588ff (Spacer); Second statement of Curavic 15/3/18: B520-1.
23    Kirsner 1/2/18: B1146ff (Rex Apartments); Rowell 25/1/18: B1295 (Rex Apartments
/ CBD Storage / Windsor on Kent).
24    Rowell 25/1/18: B1296 (Rex Apartments).
25     “[email protected]” and “[email protected]”: See Kirsner 1/2/18: B1148; Rosenbaum 4/4/18: B1591.
26 Rowell 25/1/18: B1295-6.
27 Evidence that the Silence Circle phone was encrypted was excluded under s137 in Galindo’s trial on the basis there was a risk that the jury would impermissibly reason that the dry run was in fact a second importation of cocaine. Here it is relied upon to support the inference that the dry run was conduct that is relevant to sentencing on the basis that it was preparatory to the importation of the charged consignment:
28 Second statement of Curavic 15/3/18: B528.
29 Telford 15/12/17: B1344.
30      First statement of Curavic 31/1/18: B434; Espiritu 21/12/17: B614-17; First statement of Johnston 1/2/18: 1022-4, 1028-9.
31    Second statement of Farrelly 27/4/18: B1596; Curavic 15/3/18: B506.

On 13 November 2017, the charged consignment was delivered to Sahara’s warehouse.32 On the same day, [Ruiz] booked accommodation for himself and the offender at the Hamptons Apartments on 45 Nott Street, Port Melbourne.33 Between 17 and 22 November 2017, [Ruiz] contacted Storage King, Sydney, and enquired about storing ‘3-4 pallets’.34
On 22 November 2017, the offender arrived at Melbourne airport.35 He was subsequently arrested and informed that his Visa had been cancelled. These events are described further below.36
ABF officers located an iPhone 6, iPhone X, the Silent Circle, and a MacBook Pro laptop in the offender’s possession.37 A manual examination of the Silent circle located photographs of a C1 consignment dated 9 November 2017, and a copy of C1’s invoice from Arte Ikoncreto in respect of the dry run consignment dated 30 October 2017.38 Whilst waiting to be transported to immigration detention, the offender had access to his luggage. He used this opportunity to call and exchange messages with [Ruiz]through WhatsApp.39 When the Silent Circle was later re-examined the images and documents related to the cocaine importation were no longer present.40 The prosecution says the offender erased the files at the same time as he was communicating with [Ruiz], and that he did this to prevent the cocaine importation, and his involvement, coming to the attention of Australian authorities.
A subsequent forensic examination of the Silent Circle revealed a pdf entitled ‘Cl Superfoods Logistics AUS NOV.pdf’, dated 25 October 2017, containing 36 QR codes identical to those printed on the 36 boxes making up the charged consignment.41
On 23 November 2017, police attended Sahara’s warehouse and seized all C1 products held there.42 The substance stored in fifteen of the master boxes from the charged consignment, totalling 299.8kg, contained cocaine with a purity of between 76.4 and 79.2%. The calculated pure weight of cocaine was 235kg. The estimated market value of the cocaine ranged between 45 and 235 million

32 First statement of Farrelly 29/1/18: B622; Second statement of Farrelly 27/4/18: B1597; Robinson 28/11/17: B1240
33 Irving 7/12/17: B836-40; Telford 15/12/17: B1345; Police ROI Q44-46, 92, 103-106,
167-179, 185-189: B899, 903-4, 908-10.
34 Donadel 20/12/17: 577.
35 Telford 15/12/17: B1344.
36 Lan Nguyen 25/3/19: B1680-2.
37 De Guise 20/1/18: B572, 574.
38 Raiola 22/11/17: B1236-8: Video of manual examination of Silent Circle black phone (0:00:51; 0:01:07; 0:02:12). Cf B647, 1184-5.
39 Nguyen 25/3/19: B1680-82; Rivas 14/2/19: B1725; Second statement of Johnston 9/3/18: B1043; Raiola 22/11/17: B1236-7: Mobile phone download MELALTAMIRANOGALINDOGM22211217.
40 Cf Jensen 18/1/18: B1674; Raiola 22/11/17: B1237.
41 3rd Statement of Curavic 17/1/19: B1602ff.
42 Lumsden 6/2/18: B1174ff; McClean: B1222-6.

dollars. None of the boxes from C1’s other consignments were found to contain border controlled drugs.43
Interview

On 29 November 2017,44 the offender was interviewed by police in relation to the cocaine importation. Amongst other things, he stated the following:
(a)He understood that he was to be interviewed about a cocaine importation that arrived on 10 November 2017, not the cocaine that was in his possession when he arrived at Melbourne Airport on 22 November 2017, and that they were different subjects: Q71-90.
(b)He is from Guadalajara, Mexico, and runs ‘Prepeco’, a commodity trading company.45 He inherited the business, as well as properties, and money from his late father. Prepeco mainly sells and buys minerals for petroleum in Mexico for drilling. He also has investments in properties and construction: Q51, 137-150, 213-214.
(c)On average, he earns a total of about USD 2 million per year: Q838.
(d)He takes care of his sister, mother, and grandmother: Q148.
(e)He came to Australia to travel. He was going to stay with [Ruiz] at The Hamptons Apartments in Melbourne, then rent a car and drive to Queensland to scuba dive in the Great Barrier Reef. [Ruiz] booked and paid for his accommodation, and he was going to repay [Ruiz] in cash: Q44-46, 92, 103-106, 167-179, 185-189.
(f)[Ruiz]is a friend from Mexico; he has known him for six years. They were introduced in Guadalajara, Mexico. They were going to do business as [Ruiz]is a freight forwarder and at that time, he moved a lot of scrap metal. However, [Ruiz] was too expensive: Q103, 121-122, 127, 835-837.
(g)[Ruiz] travels a lot and rents a room in his apartment when [Ruiz] is in Mexico: Q113, 125.
(h)He does not do any business with [Ruiz]: Q133-136.
(i)In relation to his first trip to Australia in October 2017, he stated:
i.He went to Sydney, Australia, two months ago, for the same reason (to travel):46 Q158-163.
43 Makarios 7/3/18: Exhibit 54: B1206-11; Vujic 6/2/18: B1360-62; Randall 23/3/18: B1495-7; Lay 9/1/18: B1165-8.
44Police ROI: B896-973.
45 See also Record of Examination by ABF, Q42-44: B992; ABF ROI, Q49-52: B1688- 1689.
46See above [(d)].

ii.He initially intended to stay in Australia for a month, but whilst he was in Sydney, his sister told him that his grandmother had suffered a stroke, so he had to leave early: Q164-5, 605, 642-661.
iii.He had purchased a short return airfare and booked accommodation at the Hilton until his scheduled departure on 11 October 2017, because his grandmother had been unwell when he left Mexico. However, he had been intending to extend this depending on his grandmother’s condition: Q639-669.

(j)In Australia, he only knows [Ruiz]: Q180-185.
(k)When shown photos of the charged consignment, he stated:
i.He thought that Cacao Uno was probably a Mexican brand of chocolates: Q221-229.

ii.He has never heard of C1 Superfoods: Q234-235.
iii.He was not familiar with the address for C1, shown on the label of the Cacao Uno boxes from the charged consignment: Q232- 233, 245.

(l)He did not know anything about the charged consignment: Q266-271, 411.
(m)He is not a drug dealer: Q271, 779.
(n)[Ruiz’s] company is called [omitted]. He did not know if [Ruiz] was sending anything to Australia: Q274-277, 835.
(o)He has never sent anything to Australia and does not have any business dealings in Australia: Q283-287.
(p)He has never been asked to send or pick up anything in Australia: Q304.
(q)He communicates with [Ruiz] on WhatsApp. He has three mobile phones, one iPhone 6, one iPhone X, and one Silent Circle Blackphone 2. He purchased the iPhone X in LA to replace his iPhone 6, but did not have time to merge/sync everything before his arrest. He used the Silent Circle abroad and his iPhone as his personal phone. He has WhatsApp on all his phones: Q205, 361-391, 442-446.
(r)His contact for [Ruiz’s] account on WhatsApp is [Ruiz’s] name: Q381.
(s)In relation to the Silent Circle, he stated:
i.He bought it second hand for about seven thousand pesos at a market in Guadalajara, Mexico, about three or four months ago: Q414-418, 421-425.

ii.He had read about the Silent Circle on the internet and was

aware that it was an encrypted device: Q416, 429-430, 433.
iii.He used it for business, to contact people whom he did not want to have his number, and when he was abroad: Q419, 426.
iv.When he came to Australia in October 2017, he had an iPhone 7, which he subsequently lost. He did not bring the Silent Circle with him: Q467-472.

(t)When shown the images of the C1 consignment and invoice located on the Silent Circle, he stated:
i.[Ruiz] sent the photos to him on WhatsApp: Q476-477.

ii.[Ruiz] said they were photos of Mexican goods that he was importing to Australia for a client, and that he was trading Sabormex coffee: Q473-505.
iii.He has never heard of Arte Ikoncreto: Q489.

(u)He did not come to Australia to help [Ruiz] distribute the charged consignment: Q509-510.
(v)He has nothing to do with the cocaine importation: Q517.
(w)He is not involved with [Ruiz’s] work and is not his partner. However, he believes that [Ruiz] has probably been used by someone to import the cocaine without his knowledge, as he is honest and is not a drug dealer: Q517-572.
(x)In relation to the dry run, he stated:
i.[Ruiz] told him that he was sending cacao samples to him to test the logistics company (Sahara): Q699-702, 721, 743-744, 756-761, 770, 826-827.

ii.The boxes were already at the Hilton when he arrived: Q771, 829-831.
iii.He did not open any of the boxes: Q708, 749, 755.
iv.He did not see the C1 Superfoods logo because the boxes were wrapped in tape: Q715-720, 751-752.
v.[Ruiz] subsequently asked him if the boxes had arrived which he confirmed they had: Q764.
vi.He probably discussed the delivery with [Ruiz] through WhatsApp: Q765. Cf Q722.
vii.He probably does not still have the messages because he changed phones and WhatsApp conversation do not always transfer across: Q766-767.
viii.He gave the boxes to staff at the Hilton to give to charity: Q694- 705, 724-731, 773-776, 798-802.
ix.He has nothing to do with C1 and has never heard of it previously: Q812-821.
x.He had nothing to do with the order or delivery of the boxes: Q829-832.

(y)He is not [Ruiz’s] business partner and is not in business with him: Q833-834.

Charge 2

Upon his arrival at Melbourne Airport on 22 November 2017, the offender was positively identified by narcotics detection dog, ‘Phoenix’, and referred to further examination.47 ABF officers searched his luggage and located two plastic bags containing a white powder, which the offender stated was cocaine.48 The substance was later analysed and found to contain a total of 2.4 grams of pure cocaine.49 The cocaine had no chemical links with the drug the subject of charge 1. ABF officers seized the cocaine and arrested the offender.
Following his arrest, the offender was interviewed by ABF.50 Amongst other things he said the following:
(a)He had brought the cocaine from Mexico: Q67, 72, 80.
(b)He did not intend to bring the cocaine to Australia and was unaware that it was in his jacket when He departed from Mexico: Q67-78.
(c)He is not sure but was probably given the cocaine at a party in Mexico a couple of months earlier and put it in his Jacket: Q81-82.
(d)He uses cocaine about five times a year: Q84-86.
(e)He never intended to break the law: Q118.
(f)If Australian authorities would let him continue with his holiday plans, he would be really grateful and would obey and respect Australian law: Q119.
Arrest of [Ruiz]

On 29 November 2017, [Ruiz] was arrested at 45 Nott Street. He was charged for his role in the importation of the charged consignment the subject of charge 1. [Ruiz] stood trial and was convicted. During the trial [Ruiz]

47 Goudey 17/1/18: B703-4.
48 De Guise 20/1/18: B569ff; Record of Examination by ABF, Q72, 94: B994, 999-1000. 49 Vujic 6/2/18: B1359; Form_87 V3_Sampling Worksheet Updated; De Guise 20/1/18: B574-5.
50 ABF ROI: B1685-1696.

tendered emails that he exchanged with the offender in relation to C1.51 The prosecution relies on this evidence, which includes email correspondence regarding the offender’s involvement in the Syndicates activities in Mexico, detailed above.52

On 4 September 2020, [Ruiz] was sentenced to 18 years imprisonment with a non-parole period of 12 years.53
Timing of Plea

The offender first indicated an intention to plead guilty on 7 May 2021, after he had earlier been committed for trial and the matter had been set down for trial in June 2021.

Pre-Sentence Detention

3 years and 222 days.

Shaun Ginsbourg Trial Prosecutor

51 Rivas 9/12/19: 12 pages of translated emails.
52 [9].
53 [2020] VCC 1288.

[2021] VCC 1155

17 August 2021