Director of Public Prosecutions (Cth) v De La Cruz-Webb
[2016] VCC 1621
•4 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01888
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK KEVIN DE LA CRUZ-WEBB |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 September 2016 | |
DATE OF SENTENCE: | 4 November 2016 | |
CASE MAY BE CITED AS: | DPP (Cth) v De La Cruz-Webb | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1621 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Two charges of importing a commercial quantity of border-controlled drug – TES 9 ½ years with a NPP 4 years 9 months
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E Linfoot | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr M Dempsey | Lethbridges Solicitors |
HER HONOUR:
1 Mark Kevin De La Cruz-Webb, you have pleaded guilty to two charges of importing a commercial quantity of a border-controlled drug. Each of these offences carries a maximum penalty of life imprisonment.
2 The circumstances of your offending are summarised in the prosecution opening (Exhibit “A”). In essence, you were contacted by a person or persons from Mexico, whom you had known previously when they lived in Melbourne. They asked you to receive a consignment of a package, which was to be addressed to “Darrel Benjamin” and would arrive at the Sydney office of the shipping company, Fed Ex. You were told by the Mexican contact what you should do to receive and store the package until it was collected from you. You nominated a figure of $1,000 for your services. You provided your own mobile telephone number and residential address to the Mexican contact.
3 On 29 March 2015, a Fed Ex consignment addressed to Darrel Benjamin arrived at its Sydney office. It had been sent from Mexico on 21 March 2015. The contents were described as clay vases, and your telephone number was listed as the recipient’s contact number. The consignment contained a pallet made from heavy plastic and fibreglass. It had hollowed-out beams. These concealed a number of packages. There were six packages containing 849 grams of powder, which comprised 575 grams of pure cocaine. Also, theRe were 13 packages containing 1,949 grams of powder, which comprised 1,681 grams of pure methamphetamine. Pursuant to s311.1(2) of the Criminal Code, the quantity of these drugs in different parcels is combined to prove the total quantity of drugs for the purposes of the offence. A commercial quantity of methamphetamine is 0.75 of a kilogram and a commercial quantity of cocaine is 2 kilograms. Thus, the total quantity was just over 2 ½ times the commercial quantity of methamphetamine.
4 On 1 April 2015, the Fed Ex consignment (minus the pallet which had been retained and, later, was found by Customs officers to contain the concealed drugs) was delivered to your home address and you signed for it using the initials “D.B”. This is the conduct constituting Charge 1.
5 The person or persons from Mexico communicated to you that there was to be a second consignment which would arrive, with your telephone number and address as the recipient. You were told that you would be given $10,000 for this and each subsequent delivery, and there would be a package sent every 15 days.
6 On 20 April 2015, the second consignment arrived via DHL, having been sent from Mexico on 17 April 2015. The contents were described as “Anthracite Coal Shipment”. It was intercepted by Customs officers on 21 April 2015. The consignment contained three large brown paper bags, each of which contained 11 foil packages. The total content of the packages comprised 3,874.4 grams of pure methamphetamine, that is, over five times the commercial quantity. On 27 April 2015, a controlled delivery was made to your address at 58 Nisbett Street, Reservoir, after the drugs inside had been substituted with an inert substance. You took delivery of this consignment and signed for it using your own name. This is the conduct comprising Charge 2.
7 Some nine hours after the controlled delivery on 27 April, police executed a search warrant at your address and found the packaging and contents of both the Fed Ex and DHL consignments, each of which was unopened. You were arrested and a number of items, including your iPhone, were seized.
8 In a Record of Interview with Australian Federal Police officers you admitted having received the consignments, but claimed you did not know what was in them and you had “no clue” about methamphetamine. You stated initially that you thought it was something illegal, but did not know it was drugs[1], but also agreed that you assumed, as it was coming from Mexico, that it was full of drugs[2]. You also stated that, before the first package arrived, you believed that a drug cartel was involved[3]. You stated that you had been contacted by a family friend in Mexico, who used to live in Australia, and who asked you to receive the packages. You thought that the friend was involved with some drug lords or cartel. You agreed that you had engaged in contact with them via Facebook and your mobile telephone number.
[1]Answers to Question 470 in Record of Interview, p34.
[2]Answer to Question 448 in Record of Interview, p33.
[3]Answer to Question 690-695 in Record of Interview, p51.
9 You stated that there had been no paperwork, at all, for the first consignment and you received a confusing message that it was meant to include a pallet. A photograph of what the pallet should look like was sent to you. Thus, you had gone on two occasions to ask people at Fed Ex about the whereabouts of the pallet. You told police that someone was meant to come and pick up the packages from you and you were to get paid for them, but never did. You had been told by your family friend and the “guys in Mexico” not to open the packages, and apparently you did not do so, although you told police that the first one looked as though it had already been opened and re-taped.[4]
[4]Answer to Question 234 in Record of Interview, p17.
10 You stated that you did not to have a telephone number for the Mexican organisers, as they would call you. You agreed that it was a lot of money to be paid for accepting their packages and you thought they were “just some deep, heavy cartel fellows”. You stated that your family friend sounded like she was under some pressure from the other Mexicans and you thought that, if you refused to accept the packages, there might be some trouble, but you did not know what. You stated that you did not know why you accepted the box knowing nothing about it. You agreed that you had checked the Fed Ex site before inquiring about the package and, although you did not create the name “Darrel Benjamin”, you agreed that you had written down the initials of that name at Fed Ex.
11 You have recently turned twenty-five years, having been born on 25 October 1991. You come before the Court with a number of prior convictions for serious offences of violence and dishonesty, many of them in the Children’s Court, however, you have no prior offences relating to drugs.
12 Only four or five months before the commission of these offences, you had appeared before the Heidelberg Magistrates’ Court on 5 November 2014 for contravening a Community Correction Order, which you had been given on 20 September 2013 for offences of recklessly causing injury and theft. The breach of the Community Correction Order was found proven and you were sentenced to an aggregate of two months' imprisonment to be wholly suspended for a period of 12 months. It is an aggravating feature of the offending for which I must sentence you that it occurred whilst you were on a suspended sentence of imprisonment and in breach of it.
13 In a plea on your behalf by Mr Dempsey, the Court was told that you were born in the Philippines. You lived in an orphanage until you were adopted, at approximately three years of age, by an Australian couple. You were then brought to Australia by your adoptive parents. You grew up in Craigieburn, where you were the only non-white child at your primary school and had a difficult time at school as you were teased. You also had a very troubled relationship with your adoptive father.
14 Tendered on the plea as Exhibit “1” was a report from Mr Simon Candlish, psychologist, dated 6 September 2016. This detailed a history of you having suffered Attention Deficit Hyperactivity Disorder as a child, for which you were medicated from the age of eight to sixteen or seventeen years. Also, you told Mr Candlish that, at age 11 or 12 years, you had been indecently offended against by a family friend. You described a build-up of anger about this and a physically abusive relationship with your adoptive father. Your adolescence was characterised by aggressive behaviour, including you verbally and physically abusing people at your secondary school. This culminated with you, at age 13, running through the school with a machete and swinging it at a teacher who was trying to detain you. Following this episode, you were placed in secure welfare for the first time and, thereafter, you had two or three further such placements. It appears that your adoptive parents gave up on you as you became involved in juvenile offending and they surrendered you to the care of the state at the beginning of your teenage years.
15 Mr Candlish stated that testing did not show any clinical psychopathology but, rather, a personality style that involved risk taking and impulsiveness and poor consequential thinking, as well as a fear of being abandoned or rejected, strained interpersonal relationships, difficulties with trust and a prominent pattern of aggressive behaviour. He noted that you appeared to lack insight into these issues. He considered that you revealed personality issues consistent with an Anti-social Personality Disorder, which included hostility, apparent indifference, a history of distrust, a display of low remorse and detachment and impaired concern in relation to the feelings of others (particularly the victims of your earlier violent offending), impulsivity and risk taking. He opined that you would benefit from ongoing psychological counselling, but this was only likely to be effective if you were motivated to engage in such intervention, and this may require a period of motivational work.
16 The fact that each of these charges carries a maximum penalty of life imprisonment is, itself, an indicator of the gravity of the offence of importing illicit drugs. Charge 1, as I have mentioned, involved 2 ½ times the commercial quantity. It is a serious factor that you repeated the offence of importation by committing Charge 2, which involved, as I have said, over five times the commercial quantity. The size of the importation is a relevant factor, however, it would be of greater significance had you been aware of the actual amount of the drugs being imported and I accept that this was not so. I also accept that you were not the mastermind of this importation enterprise. Rather, you appear to have been drawn into it by friends in Mexico, who were somehow acquainted with the principals of this illicit business. Nevertheless, your role as a middleman in accepting the illegal cargo and, thus, facilitating its entry into Australia and potential distribution by others unknown, is a role of crucial assistance to those organising this pernicious trade.
17 Doing the best I can, I would characterise your role towards the lower end of the middleman category of offending. To be specific, this would be the lower end of Group 3, as categorised by McLellan CJ in the case of DPP (Cth) v De La Rosa,[5] and cited with approval and expanded upon by Maxwell P in Nguyen v The Queen; Phommalysack v The Queen.[6] There is no evidence that you had experience in any sort of drug trafficking or would have had the resources to facilitate the importation of drugs, had you not take advantage of an opportunity presented to you via your friend in Mexico. As I have stated, there is no evidence that you had knowledge of the specific quantities of drugs involved, although the offer to pay you $10,000 for consignments after the first one, must have given you some indication of their potential value. Nevertheless, even $10,000 has been described recently by the Court of Appeal as a “relatively moderate”[7] sum for a shipment and I accept that that is so compared with other cases of commercial importation of illicit drugs. You, personally, did not make arrangements to import the drugs. I do not regard your level of participation as equivalent in seriousness to that of a courier who physically brings drugs into Australia.
[5](2010) 79 NSWLR 1, 14 [267]
[6](2011) 31 VR 683 [36]
[7]DPP v Thomas; DOO v Vu [2016] VSCA 237, 99 [244]
18 There was nothing sophisticated about your conduct. For example, you did not rent premises specifically to receive the drugs but, rather, used your own residential address and the second consignment was addressed to you in your own name, rather than the name which had been provided for you by the Mexican suppliers in relation to the first consignment. You were given minimal information about the consignments. For example, it was only after the delivery of the first consignment that you were made aware by your Mexican contacts that it was supposed to have included a pallet. Also, there is no evidence that you knew the identity of the person who would collect the packages from your address or what would happen to the drugs after they left your address. There is no evidence that you would have played any role in distributing the drugs yourself. Your role was confined to receiving and storing the drugs and this conduct involved 22 days between 20 March and 10 April 2015 on Charge 1, and 17 days between 11 April and 27 April 2015 on Charge 2. You performed an important function in enabling illicit drugs to be received (and potentially moved by others) in Australia, but your role was essentially that of being a “post box”, although you did communicate with the Mexican organisers to receive and clarify their directions and you did make follow-up enquiries in relation to the pallet in the FedEx consignment.
19 Although there is evidence that you have used drugs in a recreational sense, there is no suggestion that you were a desperate addict paying off a debt to those who supplied you. The evidence is that you committed these offences for financial gain, albeit that you never actually received any payment before police intervened.
20 In sentencing you for this offending, the Court must denounce your conduct. That means, express publically the evil of importing illicit drugs. I must place emphasis upon the principle of general deterrence. That means, send a message that this sort of behaviour will result in stern sentences of imprisonment. Illicit drugs take a terrible toll on our community. They adversely affect the mental and physical health of those who become addicted to them and destroy their capacity to study, work, and to form and maintain family ties and friendships. They result in a drain on our health facilities, users committing further crimes to support their drug habit, and create a burdensome workload for police. In addition, they cost the community a great deal in processing offenders in the criminal justice system, detaining them in correctional facilities and supervising those who are given sentences to serve in the community. For these reasons I must impose punishment that is of appropriate severity for the offending, in order to try to protect the community and deter other possible offenders.
21 Although your prior convictions are of a different nature, they demonstrate a repeated disregard of the law and there is still some need for emphasis on specific deterrence, particularly given the serious nature of your repeat offending on Charge 2. However, I expect that your time on remand has, to some extent, probably already taught you a hard lesson about drug offending. I will return to this later.
22 These importation offences can be hard to detect. Also, had the quantity of drugs involved in Charges 1 and 2 found their way into the community, there was substantial potential for adverse impact in the ways that I have mentioned. Thus, it is necessary to send a clear warning to others who might be minded to become involved in drug importation that no financial benefit to them is worth the risk of an almost certain term of imprisonment. The sentence imposed in your case must be sufficient to reflect the gravity of your offending and achieve the objects of denunciation, general deterrence, punishment, and protection of the community whilst, at the same time, taking into account the principle of totality, as well as any prospects of rehabilitation, so that it is not a crushing or unjust sentence.
23 I have had the benefit of both written and oral submissions from the Crown and Mr Dempsey, on your behalf. I have taken those submissions, and the cases referred to in them, into account, as well as the general sentencing principles set out in s16A and s17A of the Crimes Act. The gravity of the offending involving multiple times of the commercial quantity on each offence, the terrible scourge that illicit drugs take on our community and the fact that, without your help, those drugs could not have been available for potential distribution in Australia, lead me to the inevitable conclusion that no sentence is appropriate other than a term of imprisonment. However, in your favour, I particularly note the following factors:
(1)Although your motive was financial gain, you showed considerable naivety in naming your fee of $1,000 in relation to Charge 1. It shows a lack of understanding of the magnitude of the risk that you were taking and the enormity of its legal consequences. The sum of $10,000 for the second consignment was not nominated by you, but offered by the Mexican contacts to draw you in to working for them.
(2)At the time of offending, you were twenty-three years old. Although you have committed troubling prior offences for dishonesty and violence, many of them in the Children’s Court, you have not previously been before a court for drug-related offending. As I have previously mentioned, your offending shows a lack of sophistication in a number of respects:
·You provided your own telephone number and residential address as the recipient of the first illegal consignment and, I accept, that the name of “Darrel Benjamin” was supplied by those in Mexico on your behalf, rather than being invented by you.
·You went, not once, but twice to inquire of Fed Ex as to the whereabouts of the pallet, after being advised by the Mexican organisers of the drug importation that it was supposed to have been included in the first consignment. You made no attempt to disguise your appearance when you made those inquiries and, indeed, were photographed making a telephone call to your friend in Mexico about the pallet whilst at the Fed Ex office.[8]
[8]Question 303-313 in Record of Interview, p22-23.
·You took delivery of the second consignment and signed for it in your own name at your own home address. You left information on your iPhone which implicated you in the offending, including having accessed the Fed Ex website and the Fed Ex tracking website, along with messages on Whatsapp and Facebook to and from the Mexican organisers relating to the deliveries.
·In relation to the missing pallet involved in Charge 1, your message to the Mexican contacts that you would need the name of the boss and the company if you were to go back and inquire of Fed Ex as to its whereabouts, shows a remarkable naivety.
·You used your own photograph on the Whatsapp chats with the Mexican organisers.
(3)You have a deeply troubled background. Having commenced life as an adopted child, you were taken to a new country where you were bullied at school and had a difficult and abusive relationship with your adoptive father, who apparently suffered mental health issues. Your behaviour became seriously uncontrolled and, at approximately age thirteen, you were taken into the care of the Department of Human Services and, at about that time, your adoptive parents washed their hands of you. It would appear that this has impacted upon your psychological makeup in that you fear rejection and abandonment and have trouble trusting people. Whether or not it has played a role in your development of an anti-social personality, I am unable to say. However, I take into account that, from about age thirteen, you spent some three to four years in the care of the Department of Human Services and, in particular, some period of that time was in a secure locked facility. It is apparent that you lacked the love and guidance of parental figures from the beginning of your teenage years.
Unhappily, you have a deep-seated anger which has manifested itself in violent offending in the past. Such anger can in no way explain the behaviour for which I must sentence you. However, I accept that, from the time you were released from the care of the Department, at approximately 16 or 17 years of age, you have been on your own, trying to make your way in the world with limited education and very little support, save for an uncle in Warrnambool with whom you had contact from time to time.
I take all of these personal circumstances into account in sentencing you, but am also mindful that any personality disorder cannot attract the principles in R v Verdins[9] to reduce the emphasis on general deterrence.
[9](2007) 16 VR 269. See also DPP v O’Neil [2015] VSCA 325
(4)When interviewed by police, you answered questions frankly and to the best of your ability. Indeed, Detective Senior Constable Ratcliffe, who conducted the interview, commented that you had been compliant and quite open[10] and expressed appreciation that you had been forthcoming with information[11] and for your “openness” and “the way you handled yourself through the investigation”.[12] You provided the names of the persons with whom you had been communicating in Mexico and consented to police accessing your iPhone and laptop. Indeed, your Facebook and inbox had been left open by you so that they were readily accessible without your password.[13] As Mr Dempsey correctly pointed out, this access, in combination with your admissions, gave the prosecution all of the evidence needed to prove the charges against you. I am satisfied that you gave to police as much information as you had about this illegal operation and that, when you were asked whether there was anything else you could tell them and you answered “I don’t know enough”[14], that was a truthful answer. Pursuant to s16(2)(h) of the Crimes Act I take into account this very significant degree of co-operation with the investigation of these offences.
[10]Question 712 in Record of Interview, p53.
[11]Question 754 in Record of Interview, p56.
[12]Question 785 in Record of Interview, p58.
[13]Record of Interview, p54-55.
[14]Answer to Question 838 in Record of Interview, p62.
(5) You pleaded guilty to the charges. The pleas were relatively late, only two months before the case was set down for trial. However, you did not conduct a contested committal and, apparently, you had a number of different solicitors acting for you. Shortly after your current solicitors were engaged, the case resolved into a plea to the two charges. Your pleas of guilty demonstrate that you have accepted responsibility for your criminal actions.
At the plea hearing, I expressed the view that there was no evidence of remorse. Certainly there was no acknowledgement by you of the potential harm to the community had the drugs found their way onto the streets. Since then, after carefully reviewing all of the relevant material, I have altered that view somewhat. It is true that you have not overtly expressed your regret for the damage that may have resulted from your offending. However, Mr Candlish noted that, after having been on remand for well over one year, you had indicated that you do not want to return to prison and “referred to making the right choices for (yourself) in the future”.[15] By the time of entering your pleas of guilty, you had had much time for reflection whilst on remand in an adult prison experiencing your first ever time in custody. The law acknowledges that “the determination to change one’s behaviour and, to the extent possible, make amends” is a form of remorse.[16]
In fairness, it should be noted that Mr Candlish assessed you as showing signs of emotional detachment, in part, related to your troubled childhood, as well as signs of emotional underdevelopment. He commented upon your personality type and your apparent lack of empathy. In my view, it is also of relevance that you were only 23 years old at the time of offending and, after almost 18 months in custody, have just turned 25. According to Mr Candlish, you demonstrated traits of immaturity in terms of lack of focus on consequential thinking. In all of the circumstances, including your expressed determination to change your ways, your honest admissions and cooperation with police and your pleas of guilty, I have determined that there is some indication of remorse, for which you should be given credit.
You have shown a willingness to facilitate the course of justice, and recognition should be given to the utilitarian value of your pleas of guilty.[17] You have spared the community the expense of a contested trial, which was estimated to take some seven days. I accept Mr Dempsey’s submission that, given that you supplied the information which enabled the Crown case to be a strong one, it is not appropriate to reduce the mitigatory weight to be given to your pleas of guilty because the case was a strong one.
I consider that your cooperation with police, admissions and pleas of guilty, should result in a significant and tangible discount to the sentence which, otherwise, would have been imposed.
(6) This is your first drug-related offending. It occurred in a context of you living in a rented room with minimal financial support. You had had some sporadic work as a concreter, but told police that you had not received any work for about a month. Your difficult economic circumstances could never excuse this grave offending, however, you were trying to improve your situation by studying part-time for a construction course. This would have enabled you to obtain a “white card” qualifying you to work on a building site. In the past, you have shown a capacity to apply yourself to work. Whilst in the care of the Department of Human Services, you worked at retail outlets such as Hungry Jack’s and a pizza shop and, later, did some labouring work for a bricklayer. Once you were released from the care of the Department, you managed to obtain an apprenticeship as a carpenter. Mr Dempsey stated that you undertook two years of this apprenticeship, but were unable to complete it because the business closed down. It was in order to build on this experience as a carpenter that you were studying to obtain your “white card”.
I am told that, whilst in custody, you have completed your “white card” qualification and, also, undertaken courses in traffic control, running a small business and warehouse logistics. Given your disrupted education and difficult upbringing, behavioural issues and lack of support and guidance, it is of significance that you have managed to achieve anything by way of a work history. It seems to me that this is a positive factor when considering your prospects of rehabilitation, which, otherwise, may not look optimistic.
I also note that your uncle, Mr Baudanette from Warrnambool, was present at the plea hearing to support you, along with a friend, Tom Tesich who is studying business marketing and a “cousin”, Grant Allsop, who works for Telstra. It is good to know that these people care about you. I note, too, that in the past, you demonstrated some pro-social traits by regularly playing rugby with “Northern Thunder” in Broadmeadows for some years. Mr Dempsey stated that you had pride in your achievements as a rugby player. It can only be hoped that, with appropriate guidance, the better side of your nature will be nurtured. As I have said, you may well have learned, already a hard lesson about drug offending, so your prospects of rehabilitation in that regard may be reasonable. However, I am more guarded in relation to your prospects of rehabilitation relating to violent and other dishonest offending. Ultimately, you are the only one who can decide whether successful rehabilitation will take place.
As I have already stated, the only appropriate sentence is a term of imprisonment and, of necessity, the gravity of offending means that it must be a substantial one. However, according to Mr Candlish, you do have a need for psychological treatment, and I am concerned that there is a real danger that, if you are incarcerated for a very, very lengthy term, any prospect of rehabilitation may well be lost. Although you do not come within the definition of a “young offender” under the Sentencing Act (Vic), you were only 23 at the time of committing these offences. It is clear to me that you were immature and the immaturity of youth is acknowledged as a factor bearing upon an offenders transgressions.[18] Yours is a case where I consider that the emphasis to be placed on general deterrence should not completely overshadow the importance of rehabilitation of a 23 year old offender. I deem it appropriate to give you the opportunity to try to rehabilitate yourself during a meaningful parole period. It is also in the best interests of the community if you can be rehabilitated. I consider that you will need a good deal of assistance to reintegrate into the community and achieve the goals of a stable lifestyle, accommodation and employment which you have expressed to Mr Candlish. Thus the non-parole period of your sentence is appreciably lower than usual. This is a recognition of your relatively young age and those positive factors in favour of rehabilitation which I have mentioned, and the hope that you can be reclaimed to function lawfully within society.
[15]Exhibit “1”, p5, paragraph 48.
[16]Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288 at paragraph 36.
[17]DPP(Cwth) v Thomas & DPP(Cwth) v Wu [2016] VSCA 237.
[18]Paragraph (k) of the propositions applicable to sentencing for drug importation offences, R v Nguyen (2010) 205 A Crim R 106, 126-8 [72]. These propositions were cited with approval in DPP v Thomas; DPP v Vu [2016] VSCA 237, 83-84 [192].
24 Subject to receiving submissions as to the correctness of the structure of my sentence I propose to sentence you as follows. Would you stand up please.
25 On Charge 1, importing a commercial quantity of a border-controlled drug, you are convicted and sentenced to be imprisoned for a period of 5 ½ years.
26 On Charge 2, importing a commercial quantity of a border-controlled drug, you are convicted and sentenced to be imprisoned for a period of 7 ½ years.
27 The sentence imposed on Charge 2 is the base sentence. I direct that 2 years of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2.
28 The sentence imposed on Charge 1 commences today.
29 The sentence imposed on Charge 2 commences on 4 November 2018.
30 The total effective sentence is thus 9 ½ years' imprisonment. I fix a non-parole period of 4 years and 9 months to be served by you before becoming eligible for parole.
31 I declare a period of 557 days which you have already served in custody on remand to be reckoned as time already served under the sentence imposed this day.
32 (Both the Prosecutor, Mr Stevens, and Defence Counsel, Mr Dempsey, indicated no issue with the structure of the sentence).
33 Having received counsels’ affirmation that the structure of the sentence accords with Commonwealth legislative sentencing provisions, I formally pronounce the sentence and cause it to be entered into the records of the court
34 Mr de la Cruz, what this means is that you are sentenced to a term of imprisonment of 9 ½ years. You will be required to serve a period of 4 years and 9 months before you can be considered for release into the community on parole. Parole is a form of supervision in the community whilst you are completing the rest of your sentence. Whether you are granted parole is not a matter for me but for the Adult Parole Board. If you behave yourself in custody and commit yourself to what rehabilitative courses are suggested and apply yourself to what work may be available, then there is good reason to expect that you would be granted parole. The 557 days which you have already served will be taken into account in determining when you become eligible to apply for parole.
35 Once in the community, being on parole will involve complying with conditions and the directions of your parole officer, who will be there to help you to reintegrate into society. If you breach parole by not obeying such conditions or by reoffending, then the likelihood is that your parole order may be amended or revoked. If that occurs, the likelihood is that you will then be returned to prison to serve the balance of your sentence. So, whilst you are on parole, you have the rest of your sentence hanging over your head.
36 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence would have been 12 years’ imprisonment, with a non-parole period of 9 years.
37 Mr De La Cruz-Webb, this court sincerely wishes you well for your rehabilitation.
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