Director of Public Prosecutions v Debesaitis Junior

[2018] VCC 797

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00030

DIRECTOR OF PUBLIC PROSECUTIONS

v

FRANCISCO JOEL DEBESAITIS JUNIOR

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2018
DATE OF SENTENCE:	31 May 2018
CASE MAY BE CITED AS:	DPP v Debesaitis Junior
MEDIUM NEUTRAL CITATION:	[2018] VCC 797

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Import commercial quantity of a border controlled drug (cocaine) – Role of courier – Brazilian national – No criminal record – Good prospects of rehabilitation

Sentence:Convicted and sentenced to 8 years’ imprisonment with a non-parole period of 4 years’ imprisonment – Pre-sentence detention of 226 days declared as already having been served – s.6AAA Sentencing Act declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Murdoch	Commonwealth DPP
For the Accused	Ms M. Tittensor	VLA

HER HONOUR: 

1Francisco Joel Debesaitis Junior, you have pleaded guilty to importing a commercial quantity of a border controlled drug, namely cocaine.  The maximum penalty for this offence is life imprisonment, which reflects the most serious way in which the Commonwealth Parliament regards this offence.  This is one of the matters that I must take into account when sentencing you.

2Your offending was opened in some detail by the learned prosecutor and the summary of prosecution opening, a copy of which will be attached to my sentencing reasons, is the full factual basis for sentencing you.

3However, a little more briefly, I was told that on 17 October 2017, you were selected by Australian Customs and Border Protection Services (which I will refer to from time to time perhaps as ACBS), for a baggage examination.  You are a Brazilian national and you had arrived at Melbourne Airport at about
5.40 pm on a flight from Santiago.

4You had a number of items in your possession, including a black suitcase, wrapped in plastic film.

5After detecting an organic anomaly in the base of this case, you were taken to an interview room and with the help of an interpreter, you told ABF officers that you had travelled from Curitiba to Sao Paolo, then to Chile and from there you had flown to Melbourne.  You said that you had borrowed the phone which you had with you and that an English course and accommodation had been arranged by a person called Andre.  You said that you were intending on staying in Brisbane, which is where the English course was to take place.  You said that you were going to stay for three months, but that you had not managed to fit the course in and so you were only going to stay for one month now.  You also said that you had done the wrong calculations with your departure date from Australia, that you packed the bags yourself and you purchased the suitcase in Brazil en route, as your previous case had broken.

6When the suitcase was drilled into, a white powdery substance was discovered, which turned out to be cocaine.

7You were arrested and taken to the AFP police station at the airport.  On
18 October 2017, you were charged and remanded in custody.

8Further investigation of your suitcase revealed that there were two heat-sealed plastic bags, each containing cocaine with a purity of 85.3 per cent.  The bags contained 2,024.5 grams net of pure cocaine.  The wholesale value of this is between approximately $414,000 and $552,000.  The street value of the cocaine in your possession was between $1,348,290 and $1,797,720.

9Investigators also established that an agent from a company called "Max Study" had enrolled you for a 12 week English course  with a company in Queensland and had made the necessary travel arrangements, changing these slightly after you had apparently had issues with one of your flights.

10It was also established that in the days leading up to your departure for Australia, you had flown from near your home town, to a town, Porto Vehlo, which was near the border with Bolivia, some 3,500 kilometres away.  You checked in one bag that weighed 17 kilograms.  The next day, you checked in for flights for Curitiba via Cuiaba, presenting a checked bag weighing 21 kilograms.  On 11 October, you missed your flight to Australia via Sao Paolo.

11On 12 October, you checked in for a flight from Curitiba to Porto Allegra, which was near your home town of Canoas, checking in one bag weighing 22 kilograms.  You also communicated via your "Telegram" phone application with a person called Juliana Debasa, with respect to your missed flight and travel plans.

12Amongst other things, you told this person that you did not even know what "He" was planning and that it, "Cost a fortune to change everything."  You also said, "I made an arrangement for ten days, but he had already asked to do another job through Europe."  You later told Debasa that you would return home, then go back to Curitiba on 15 October, as it was so expensive to stay in Curitiba.

13On 13 October, you received a message from a "Luciana".  The message said, "Go make the money that you said you needed."

14Between 14 and 15 October, you exchanged frequent messages with a person named "King Pai", who you referred to as "Father".  On 14 October, this person told you that a friend was coming to your house and you told him that you would give this "friend" the bag.  Subsequently, you told King Pai that you had given him the bag and he replied that this would be given back the next afternoon and to catch the bus in the evening.

15On 15 October, King Pai instructed you to buy Australian dollars and that he had arranged for a friend to drive you to the airport at Curitiba for $600.  He gave you extensive instructions about checking in at the airport.  You sent messages to King Pai about the weight of the bag being 21 kilograms, but that you had taken out some clothes saying, "Because I bought some things that you had told me to."  King Pai told you to wrap the bag at Curitiba airport and you later sent him a photo of the wrapped bag.

16You were given fairly elaborate instructions by King Pai and a person called "Aunzbar" as to the cover story to give when you arrived in Australia.  These messages are set out in the summary of prosecution opening.  You sent an audio message back to Aunzbar that you would listen to his audio message a few more times to memorise it and you suggested a few more things that you might say as part of your false story.

17On 15 October you checked in to and out of a hotel at the Curitiba airport and flew to Australia via Sao Paolo that same day.  

18Mr Debesaitis Junior, your offending is most serious and warrants a punishment which is of a severity which is appropriate in all of the circumstances and your conduct must be strongly denounced.  In most cases of this kind, the law says that stern punishment is warranted.  You were prepared to bring a commercial quantity of a border controlled drug into Australia, liaising with co-offenders and going to fairly elaborate lengths in order to do so.  You even suggested additional parts of a cover story to make your reason for coming to Australia seem more plausible.  You were motivated by financial reward, even though it would appear that some of the money you were to receive was to finance much needed medical treatment for your sister.  I will come to this aspect further in a moment.  In assessing the objective seriousness of your conduct, I have factored in that the quantity that you brought here was 1.01 times over the commercial weight threshold and I also factor in the wholesale and street value of the cocaine that you brought here.

19While your role was that of a courier, rather than holding a position higher up in this importation, it was, nevertheless, an important one, without which, the sale and distribution of the cocaine could not occur.  Mr Debesaitis Junior, our community is sick and tired of the impact of illicit substances upon it.  As is often said, drugs are a scourge on our community- they tear families apart and they provide breeding grounds for criminal offending and misery.  Offending such as yours is often difficult to detect and involves a great deal of time and resourcing in order to do so.  Strong weight must attach to general deterrence in a bid to deter those who are tempted to behave like you have or who are tempted to play any part in illicit drug importation.

20In your favour, you pleaded guilty at the first available opportunity.  This entitles you to a significant discount in the sentence that you would otherwise receive, as at the earliest opportunity, you have shown a willingness to facilitate justice, saving the community and the witnesses the time and expense of contested proceedings.  I also accept that your preparedness to plead guilty at such an early stage, although in the face of a strong prosecution case against you, is indicative of remorse.  This is evident from your expressions of regret and shame that your counsel spoke of in Court.  You are very sorry for what you have done, as it has deprived you of your ability to look after your parents and other family members and you are very concerned that your parents might see your criminal conduct as a reflection of how they have raised you.  I hope that your remorse becomes even more insightful and that you fully appreciate the dreadful impact of illicit drugs on any society.

21I also factor in that you have no prior convictions, either here or in your home country of Brazil.  Your lack of criminal history is a positive matter when it comes to my assessment of your prospects of rehabilitation and the weight that I give to specific deterrence.  I have also factored in the character references in support of you which show that you are of otherwise exemplary character.

22I take into account your background:

23You are 35 years old and were born in Canoas, Rio Grande Do Sul, Brazil.  You are one of five children and you are very close to your family, which is evident from the character references that some of them wrote in support of you.  You are very fortunate to have such a close family bond, as many who come before these Courts do not.  Your parents have worked long and hard.  Your mother was a cleaner and your father was a council worker, who was required to do a great deal of very heavy labouring tasks during his working life.  Your father also worked part-time as a mechanic at home.  Both of your parents had to take early retirement because of work-related injuries that each of them suffered.

24You and your family lived in a very small house, where your parents slept in one room and you and your siblings lived in the other.  Your father learned of the existence of another daughter from a previous relationship.  She and her own child came to live with you at one stage, living in the garage.  Eventually, she moved to another part of town to live with her mother, after she had had a number of other children.  You were expected to do many chores while your parents were working in order to support the household and you and your siblings also did a great deal to assist your large extended family.

25Your family was heavily involved in the local Church and you have done a great deal of charitable work for those in need within your community.

26Tragically, one of your sisters, your older sister, Gilvana, who you were very close to, died when you were three years old and she was five, when she pushed you out of the way of a truck as you both crossed the road.  You have never forgotten this dreadful event and have been haunted by the sight of your sister being removed from under the truck.  You have ongoing feelings of guilt in respect of this incident and you have blamed yourself for the grief that your family suffered.  Of course, these feelings of guilt are completely unfounded, but you never received counselling for this.  If I might say so, it is something that you should seek out while you are in custody and if possible, upon your release.

27You are educated to Year 10, having attended a number of different high schools in your area.  You had to move from one to another due to lack of room at these schools.  You combined studies with work, as you worked in factories and other unskilled jobs from the age of ten.  Once you had finished classes and your paid work each day, you went home to perform the chores for your immediate and extended family.

28You failed years at school on a number of occasions, so by the time you finished, you were relatively old.

29You took some tests in your early-20s which enabled you to study at university, but you dropped out of your course and became a hairdresser.  Your initial pay was a pittance, but as time went on, you earned a fairly good income, working at a salon in a shopping mall.  You were then able to move out of the family home and lived nearby.  You were able to help support your family and you saw them every day.  This was the happiest time for you, as you were financially independent and had a good social life.

30When you were 21, you started to use cannabis and this developed into something of an addiction.  Mr Cummins, psychologist, diagnosed you as suffering from a cannabis use disorder of moderate severity.  You have also experimented with other drugs.  Over the years, your cannabis use had reduced, as you were unable to afford this and although you have abstained whilst in custody, you still need some help to rid yourself of the temptation to use again in the future.  I was told that at the time of the offending, you still abused cannabis.

31When you were 29, you had a girlfriend for a time, but this did not work out.  Apart from this, you have not had any romantic relationships.

32When you were 31, the hairdressing salon changed hands and you lost your job.  You were forced to return to the family home.  Each of your siblings had a child by this time and although there had been some extension to your home, things were very cramped.  You cut people’s hair on the front veranda, or else visited their homes to do their hair, but the pay was nothing like what you had previously earned.  You earned the equivalent of only $200 a month and worked long hours to do so.  Your income went towards the support of your family.

33In 2015, your oldest sister became unwell with endometriosis, which was very painful.  Your family successfully campaigned with local politicians to have your sister given priority for much needed surgery, but she then required further surgery which would cost the equivalent of A$5,000, a sum that you and your family could not afford.  You experienced a great deal of anguish seeing your sister in so much pain and it was at this time, when you were earning little income and concerned for your sister, that you were approached to commit the offence for which I now sentence you.

34According to Mr Cummins, psychologist, you were naïve about how serious your conduct was.  You were given to believe that the payment you would receive would be enough to pay for your sister’s operation and for you to have your teeth fixed.  These had been damaged in a car accident when you were 18 years old.

35Your family and friends are devastated by your incarceration and by not being able to see you.  They are struggling financially now that you no longer contribute to the household and they also struggle because you are not there for other things, such as helping to look after your nieces and nephews.  Also, your parents and one of your sisters have not been well, so you are not there to help them as you have been in the past.  It was not submitted that your family has suffered exceptional hardship, but I do allow for the fact that your time in custody will be a good deal harsher than it would otherwise be, due to the fact that you are unlikely to receive any family visitors and also due to the fact that you speak little English and because of your concern for the struggles of your family without you.  This isolation is especially difficult for you, as you are used to having so many family members around you on a daily basis. I was told that you spend your days in gaol ruminating on what you have done and on your separation from your family.  You are having difficulty sleeping because of this and your fears about whether some of your family members will still be alive when you finally return home.  While you try to telephone your family once a week, this depends on whether you can afford to do so, as the calls are so expensive.  On the other hand, as was said at the plea hearing, in undertaking to commit a criminal offence in another country, you were prepared to take the risk that you would be detained many miles away from your loved ones, so it might be said that you have brought this hardship on yourself. Nevertheless, the hardship to you is still there and I make appropriate allowance for it.

36You have spent your days on remand.  You have done some work involving horticulture and you have also given haircuts to prisoners from time to time.  You have undertaken an English language course and have done whatever other courses you have been able to manage, in view of your limited English. You have tried to attend a drug course, but you have been told that your English is too limited to manage this at this stage.  According to Mr Cummins’ report, you have been given some more privileges, as you are regarded as a model prisoner.

37I have taken into account, in a general sense, the report, including the opinion of Mr Cummins psychologist.  His report is dated 4 May 2018.  He assessed you via a video link and with the help of an interpreter on 27 April this year.  He said that although you were not a particularly psychologically minded man, which made it difficult for you to answer questions about psychological symptoms, that you most probably suffer from an adjustment disorder with mixed anxiety and depressed mood, which relates back to your sister’s death. He did not seem to relate this to your present predicament, although, he said that you were trying to "make the most of a difficult and confronting experience, being remanded".  Mr Cummins was of the view that you were somewhat naïve in relation to the seriousness of your offending at the time that you embarked upon it and that you are still somewhat naïve, although you told him at interview that you had definitely learnt your lesson.

38In sentencing you, I have taken into account that the quantity of cocaine which you imported was 24 and a half grams over the threshold weight for a commercial quantity, so, although your offending is most serious, the quantity was not as great as we sometimes see for commercial quantity importations of this nature.

39While your motivation was financial gain, it was not a matter of greed so much as need- Well, certainly this was the case, insofar as your sister’s surgery was concerned, although, not so much, so far as your dental work is concerned, which appears to be more a matter of vanity than anything else.  However, although your moral culpability is rather high, I do not regard it as being nearly as high as someone who behaved as you have in order to achieve or maintain a lavish lifestyle.  I accept that you made this bad decision to offend when you were in in a most vulnerable position and that you did so in order to improve your and your sister’s situation against a background of poverty.

40In all of the relevant circumstances, I find that your prospects of rehabilitation are very good and that I need place only minimal weight on specific deterrence.

41In sentencing you, I have taken into account current sentencing practice, which is only one, but not a controlling factor in sentencing you.  In having regard to this, I have considered cases decided in Victoria and other parts of Australia, as I must.  Your Counsel and the prosecution have provided me with a good deal of assistance in this regard.

42Your counsel, Ms Tittensor, who gave an excellent plea on your behalf, acknowledged that a substantial immediate gaol term was appropriate in your case, but submitted that in view of the matters in mitigation, that this be kept to a minimum and you receive a shorter than usual non-parole period to enable you to return home and help your family as soon as possible.  The learned prosecutor, Ms Murdoch, who also provided excellent assistance, submitted that an immediate gaol term which involved a non-parole period was warranted, but she had no instructions as to whether a shorter than usual non-parole period was justified in your case.  She reminded me, at least in her written submissions, that it is often the case that drug couriers who import drugs have good prospects of rehabilitation, but that I should give prominence to the weight required to be applied to denunciation and general deterrence.

43I have carefully considered the relevant matters in your case and the relevant sentencing principles.  In doing so, I have arrived at a sentence which, in my view, does justice to these.

44Would you please stand up, Mr Debesaitis Junior.

45You are convicted of the offence.

46You are sentenced to eight years' imprisonment and I direct that you serve four  years’ imprisonment before you become eligible for parole.

47I declare that you have already served 226 days by way of pre-sentence detention.

48If not for your plea of guilty, I would have sentenced you to 11 years' imprisonment, with a non-parole period of eight  years.

49Take a seat for a moment please. 

50Is there anything else that I need to do?  For the purpose of Commonwealth sentencing, do I have to say "commencing today", or anything like that?

51MS MURDOCK:  No, Your Honour, that should be sufficient. 

52HER HONOUR:  All right.  Yes, thank you.  Anything arising? 

53MS TITTENSOR:  No, Your Honour. 

54HER HONOUR:  All right.  Yes, did you want to have a word with your client before he is removed? 

55MS TITTENSOR:  Yes, if I might briefly explain - - -

56HER HONOUR:  Do you want me to stand down for a moment? 

57MS TITTENSOR:  I am not sure if - what would Your Honour prefer?

58HER HONOUR:  I am happy to leave the Bench if you want me to, as long as security are all right with that.  Yes, all right, well look, I will stand down for a moment.

59MS TITTENSOR:  Thank you, Your Honour. 

60HER HONOUR:  Thank you.

61(Short adjournment.)

62MS TITTENSOR:  Thank you for that time, Your Honour. 

63HER HONOUR:  Yes.

64MS MURDOCH:  Your Honour, we would seek that you specify when the sentence is to commence. 

65HER HONOUR:  I was just thinking that.    

66MS MURDOCH:  I just checked that and - - -

67HER HONOUR:  I was just thinking that and I was about to.  I will specify that the sentence that I have imposed commences today.

68MS MURDOCH:  Thank you, Your Honour.

69HER HONOUR:  Yes, thank you.  Yes, thanks very much for your assistance,
Mr Interpreter. 

70If you could please remove Mr Debesaitis Junior.  Thank you.

71Yes, thank you, we will now adjourn.

- - -

THE QUEEN

-v-

FRANCISCO JOEL DEBESAITIS JUNIOR

PROSECUTION OPENING FOR PLEA OF GUILTY

Indictment

1.Francisco Joel Debesaitis Junior (“the offender”) has pleaded guilty to one charge of importing a commercial quantity of cocaine, contrary to 307.1(1) of the Criminal Code (Cth).

2.The offence carries a maximum penalty of imprisonment for life or 7,500 penalty units ($1,575,000), or both.[1] 

[1] One penalty unit being $210 at the time of offending.

Facts

Introduction

3.At about 5.40pm on 17 October 2017 the offender, a Brazilian national, arrived at Melbourne Airport on flight LA805 from Santiago.[2]  The offender was selected for a baggage examination by Australian Customs and Border Protection Services (“ABF”). He had in his possession the following items: an incoming passenger card, Brazilian passport and two items of baggage which consisted of a carry on backpack and a black suitcase wrapped in pink plastic film.[3]

[2] Exhibit AMM01, Movement Records Key, produced in statement of Macleod, HUB p. 33; boarding pass for the offender, produced in statement of Siragusano, HUB p. 158.

[3] Para. 4-5, statement of Cowell.

Baggage Examination and Record of Conversation

4.After x-raying the offender's luggage and manually examining the contents of the bags[4], the offender's empty suitcase was x-rayed and ABF officers conducting the x-ray noted an organic anomaly in the base.[5] 

[4] Paras 7-8, 10, 12, statement of Cowell.

[5] Para. 13, statement of Cowell; para. 3 statement of Scantlebury.

5.ABF officers took the offender to an interview room and commenced a video and audio-recorded baggage examination.[6] During the record of conversation, via an interpreter, the offender made the following admissions:

[6] Para. 14, statement of Cowell; para. 5, statement of Scantlebury.

·    He travelled from Curitiba to Sao Paolo on 15 October 2017, from Sao Paulo to Chile on 16 October 2017 and then to Melbourne on 17 October 2017.[7]

[7] Q219-220.

·    He borrowed the phone he had with him.[8]

[8] Q179.

·    An English course and accommodation had been organised for him by a person named Andre.[9]

[9] Q234, 232, 225, 232.

·    He was intending to stay in Brisbane, Queensland where the school accommodation was going to be.[10]

[10] Q222.

·    He was going to stay for three months but “somehow I did not manage to fit in the course and I was going to stay only one month now”.[11]

[11] Q242.

·    The departure date on his itinerary was his planned date of departure out of Australia – but he did the wrong calculations.[12]

[12] Q244.

·    He packed the bags himself.[13]

[13] Q260.

·    He purchased the suitcase from a street vendor in Brazil.[14]

[14] Q308-309.

·    He found [the suitcase] “on the way because mine had broken”.[15]

[15] Q307. See also Q441.

6.The base of the suitcase was drilled and revealed a white powdery substance.  Testing returned a presumptive positive result for cocaine hydrochloride.[16] 

[16] ROC, Q391.

7.At about 10.50pm officers from the Australian Federal Police (“AFP”) entered the interview room and about 5 minutes later placed the offender under arrest.[17] The offender was subsequently conveyed to the AFP Melbourne Airport Police Station[18] and on 18 October 2017, at approximately 3.50am, the offender was charged and remanded in custody.[19]

[17] Para. 6, statement of Steger.

[18] Para. 11.

[19] Para. 18, statement of Siragusano.

Further Investigations

8.Forensic examination was made of the suitcase which found concealed within the base two heat sealed plastic bags each containing a quantity of fine white powder.[20]  Analysis undertaken by the National Measurement Institute confirmed the powder to be cocaine, with a purity of 85.3%.[21]  The bags contained 2,024.5 grams net weight of pure cocaine.[22] 

[20] Summary Court Report of Wise.

[21] Certificate of Hau.

[22] Summary Court Report of Wise.

9.The wholesale value of the cocaine imported by the offender is between approximately $414,000.00 and $552,000.00 and the street value is between approximately $1,348,290.00 and $1,797,720.[23]

[23] Paras 34-37, statement of Randall.

10.A number of items were seized from the offender at the airport, and subsequent examinations were made as follows:

·    A mobile phone.[24] Subsequent examination found a messaging application called “Telegram” in which there were sequences of chats and audio messages recorded between the offender and several unidentified persons between 12 to 16 October 2017.[25]

[24] Unlocked and given to ABF officer Cowell at about 5.52pm (para. 9, statement of Cowell).

[25] Messages produced in statement of Siragusano, HUB pp. 290-618.

·    Assorted documentation that the offender had been carrying at the airport.[26] Subsequent examination found documents relating to travel within Brazil, to an English course in Australia, travel insurance, and receipts.[27]

[26] Placed onto an examination bench at about 5.52pm and later presented to an ABF officer (statement of Cowell, para 8).

[27] Documents produced in the statement of Siragusano, HUB pp. 149-162.

·    A wallet.[28]  Subsequent examination of the wallet found it contained documents relating to travel within Brazil.[29]

[28] Obtained when the offender was arrested and searched (statement of Steger, para. 8).

[29] Documents produced in statement of Siragusano, HUB pp. 134-148.

·    A black backpack.[30] Subsequent examination of the black backpack located a tube of adhesive/glue in a left hand side external pocket of the bag.[31]

[30] This was carried by the offender. See para. 4, in statement of Cowell.

[31] Para. 23, in statement of Siragusano.

English Course

11.The offender was enrolled in a 12 week English course with Lexis English in Queensland.[32] A person named Andre Barbosa (“Barbosa”) from an agency named Max Study acted as an intermediary in the offender’s enrolment application.[33] The offender was offered a place in a 12 week course from 16 October 2017 to 12 January 2018.[34] The dates were later changed to 23 October 2017 to 19 January 2018 as the offender, via the agent, informed them he had had issues with his flight.[35]

[32] Statement of Mattiuzzo, General Manager of Lexis Nexis confirms that they received an email on 9 October 2017 from Andre Barbosa of Max Study requesting Lexis English process an enrolment for the offender (para. 6).

[33] Paras 7-8, statement of Mattiuzzo. 

[34] Para. 10, statement of Mattiuzzo.

[35] Para. 15, statement of Mattiuzzo.

Travel to Australia

12.On 5 October 2017 Barbosa of Max Study contacted Brazilian Travel Centre to arrange flights for the offender.[36] Barbosa requested the offender arrive in Brisbane 12 to 14 October 2017, and return around 22 November 2017.[37] The flights were paid for and booked.[38]

[36] Para. 6, statement of Weiss.

[37] Para. 12, statement of Weiss.

[38] Paras 17-18, statement of Weiss.

13.On 12 October 2017 the Brazilian Travel Centre was contacted by Barbosa who advised that the offender had not got on the flight from Curitiba to Sao Paolo due to issues at the airport.[39] Barbosa requested the offender be booked on the next flight instead.[40] The flights were rebooked so that the offender left on 15 October 2017 instead.[41]

[39] Paras 19-20, statement of Weiss.

[40] Paras 23-24, statement of Weiss.

[41] Para. 25, statement of Weiss.

Travel within Brazil

14.Documents and photos seized from the offender showed that he had undertaken the following travel within Brazil just prior to his trip to Australia:

·    On 9 October 2017 the offender checked in for a flight from Porto Allegre, located approximately 20km from the offender’s home in Canoas, to Porto Velho, via Confins.[42] Porto Velho is located approximately 3500km from the offender’s home town near the border of Bolivia.[43] The offender checked in one bag that weighed 17kg.[44] Two “selfies” found on the offender’s phone show the offender “geo-tagged” at airports in Confins, and Porto Velho.[45] A receipt relating to the purchase of clothes from a store in Porto Velho was found in the offender’s wallet.[46] 

[42] Two boarding passes, an itinerary and a checked baggage receipt were found in the offender’s wallet, produced in statement of Siragusu, HUB pp. 134-137.

[43] Google Maps.

[44] Checked luggage receipt found in the offender’s wallet, produced in statement of Siragusu, HUB p.137.

[45] Photos produced in statement of Siragusu, HUB pp. 190-194.

[46] Receipt produced in statement of Siragusu, HUB pp. 146-147.

·    On 10 October 2017 the offender checked in for flights from Porto Velho to Curitiba via Cuiba.[47] The offender again took selfies of himself at airports in Porto Velho and Cuiaba.[48] The offender presented a checked in bag of 21kg at Porto Velho airport.[49]

[47] See boarding pass stubs and checked baggage receipt found in the wallet, produced in statement of Siragusu, HUB pp. 138-140.

[48] Produced in statement of Siragusu, HUB pp. 194-197.

[49] Checked luggage receipt found in the offender’s wallet, produced in the statement of Siragusu, HUB p.140.

·    On 10 October 2017 the offender checked into the Ibis Budget Hotel at Curitiba Airport.[50]

[50] Invoice from the hotel produced in statement of Siragusu HUB p. 149.

·    On 11 October 2017 the offender missed his flight to Australia via Sao Paolo.[51] He checked back into the Ibis Hotel at Curitiba Airport until 12 October 2017.[52]

[51] Email from the offender to Barbosa at Max Study informing him he’d missed the flight, produced in statement of Weiss, HUB p. 70.

[52] Hotel receipts in the assorted documents the offender had with him, produced in statement of Siragusu HUB p. 150.

·    On 12 October 2017 the offender checked in for a flight from Curitiba back to Porto Allegra, near his home in Canoas.[53] He checked in one item with a weight of 22kg. [54]

[53] Boarding pass and checked baggage receipt found in wallet, produced in statement of Siragusu, HUB pp. 141-142.

[54] Checked baggage receipt, produced in the statement of Siragusano, HUB p. 142.

·    On 15 October 2017 the offender checked into and out of the Ibis Hotel at Curitiba Airport.[55] He flew to Australia via Sao Paolo the same day.[56]

[55] See hotel receipts in assorted documents the offender had with him, produced in statement of Siragusu HUB p. 151.

[56] Boarding pass, produced in statement of Siragusu, HUB p. 157.

Chat and audio logs

15.On 12 October 2017, after offender had missed his flight to Australia via Sao Paolo, the offender communicated via the Telegram application with a person with the user name Juliana Debesa (“Debasa”) in regard to the missing of his flight and his future travel plans. Following are extracts from these texts:

-     I don’t even know what he is planning.

-     I hope I come back before.

-     I told him my birthday in on the 22.

-     Ops.

-     As I didn’t go.

-     I can’t complain now.

-     It cost a fortune to change everything.

-     A lot of money arghhh

-     Plus accommodation.

-     Plus food.[57]

[57] HUB pp. 495-496.

-     I made an arrangement for 10 days but he had already asked to do another job through Europe.[58]

[58] HUB pp. 499-500.

16.Later on 12 October 2017 the offender advised Debesa that he would go home (to Porto Allegra) and return (to Curitiba) on Sunday (15 October 2017).[59] The offender advised Debesa that the reason he was returning home was the expense involved in staying in Curitiba.[60]

[59] HUB pp. 507-508.

[60] HUB pp. 509-510.

17.On 13 October 2017 a person named Luciano sent the offender a message stating “[g]o make the money that you said you needed”.[61]

[61] HUB pp. 537-538.

18.Between 14 October 2017 and 15 October 2017 the offender exchanged frequent messages with a person named King Pai, who he referred to as “Father”.

19.On 14 October 2017 the offender and King Pai exchanged the following messages in regard to the picking up and dropping off of a bag:

-     King Pai – Friend is going to your house.

-     Offender – Yes he can come.

-     Offender – When he gets here he can park in front on the other side.

-     Offender – And let me know then I will take the bag.

-     Offender – Well, just let me know and I will come out to give it to him.

-     Offender – I gave the bag to him.

-     King Pai – Tomorrow he will give it back to you in the afternoon and you catch the bus in the evening.[62]

[62] HUB pp. 290-295.

20.On 15 October 2017 King Pai instructed the offender to buy Australian dollars.[63] King Pai sent the offender messages advising him that he had organised for a friend to pick him up to drive him to Curitiba for a fee of $600.[64] He gave the offender numerous instructions about checking in at the airport.[65]

[63] HUB pp. 302-307

[64] HUB pp. 304-319.

[65] See e.g. HUB pp. 330-333.

21.The offender sent King Pai text messages about the weight of the bag. The offender messaged “I took some clothes out of the bag but there still was an extra kilo”. He further messaged “It weighed 21 but I took some things out because I bought some things you had told me to”.[66]

[66] HUB pp. 408-411.

22.King Pai instructed the offender to wrap the bag at Curitiba Airport and the offender later sent a photo of the wrapped bag back to him.[67] The offender also sent King Pai a message stating that he would keep the receipt from the wrapping as well as the taxi to “give to the guy in Australia”.[68]

[67] HUB pp. 328-329, 384-387, 396-397.

[68] HUB pp. 384-387.

23.The offender was directed to use a fake cover story in Australia, in text and audio messages. These messages are as follows:

a.On or about 15 November 2017 King Pai sent the following messages to the offender:

-    But you say that you are going to do one month to improve.

-    And know this paradise of a country.

-    Its similar to our but a lot more advanced etc…and beautiful.[69]

[69] HUB pp. 364-365.

b.   On or about 16 October 2017 a person named “Aunzbr” sent the following audio message to the offender:

-   …when you enter Australia, if anyone asks you why you are entering the country one day before your visa expires, you tell them … you have no intention whatsoever to stay in Australia, you are only there to study for one month, that you want to be back at the end of the year to work, it gets busy for you ‘cause you are a hairdresser and artist, you only managed to get permission in the last minute, you were meant to be here before but you had some problems with the plane ticket, or maybe don’t say that. Basically that’s it. Just so you know and don’t get nervous.

c.The offender sent an audio message back:

-   …So I am going to listen to your audio a few more times to memorise it ‘cause I am forgetful. I can also talk about the course, that I called immigration and they gave me the idea, that I could go towards the end of year and that I found this course last minute.[70]

[70] HUB pp. 607-608.

Personal circumstances of the offender

24.The offender is 35 years old and was 34 years old at the time of the offending.

25.The offender has no criminal history in Australia or Brazil.

26.The offender's visitor visa for Australia expired on 17 January 2018.

27.The offender has been in custody since the date of his arrest on 17 October 2017.