Director of Public Prosecutions v dos Santos

[2017] VCC 601

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-00312

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAPHAEL AUGUSTO DOS SANTOS

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JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 April 2017
CASE MAY BE CITED AS:	DPP v dos Santos
MEDIUM NEUTRAL CITATION:	[2017] VCC 601

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms O. Goh	Office of Public Prosecutions
For the Accused	Ms M. Harris

HIS HONOUR:

1Raphael Augusto dos Santos, remain seated.  I will ask you to stand at the end.  You are to be sentenced for one charge of importing a commercial quantity of the border controlled drug, cocaine, under s.307.1 of the Commonwealth Criminal Code.  The applicable maximum sentence is imprisonment for life. 

2You pleaded guilty before me on 6 April.  During formal police interview on
15 November 2016 you did not make admissions and exercised your right to silence.  Informally or off tape, you admitted that you were to be paid the equivalent of $4000 AUD for bringing the suitcases into Australia. 
The suitcases contained cocaine.   The committal went by hand up brief in February 2017 after which you pleaded guilty.  The matter was then listed for plea hearing in this court less than six months after your offence. 

3You receive the benefit of your early plea of guilty and a high level of cooperation in the proceedings.  You have facillitated the interests of justice and I accept that you are remorseful. 

4At your plea hearing, which ran on 6 April, Ms Goh for the Crown tendered a written Crown opening and provided a written outline of submissions. 
Mr Richter for you  tendered the letter of your mother, a number of other letters of character reference, all or mainly by members of your family, and your own letter to the court.  As to those letters written in Portuguese they were translated for me in court this morning.  The contents are therefore reflected in the transcript.  Mr Richter also provided an outline of submissions. 

5The circumstances of your offence comprehensively set out in the tendered Crown opening which is Exhibit A.  My own summary may therefore be short.

6On 14 November 2016 you arrived by plane at Melbourne International Airport, Tullamarine.  X-ray examination of your luggage revealed what ultimately tested as about 2.69 kilograms of cocaine,  at 84.2 percent purity,  within the lining of three pieces of that luggage.  The total weight of pure cocaine was therefore 2.267 kilograms.  The threshold for commercial quantity is 2.0 kilograms. 
The quantity, as put by Mr Richter, is at the low end of commercial quantity.  The Crown opening posits valuations in both street and wholesale categories.  For example, the wholesale value here ranges between $620,000-$624,000. 

7You are a 36 year old man of Brazilian citizenship.  Self-evidently you travelled here for the purpose of this offending.  You have no prior convictions here nor in Brazil.  You have a 12 year old son and daughter aged - I stop to say there is some difference here.  I would think the child's grandmother would be right.  So the child would be approximately two years.  So I will say that again. 
You have a 12 year old son and a daughter aged about two years.  They have different mothers, both ex-partners.  You have good relationship with them and have supported both children. 

8You grew up in poor circumstances and worked to help support your family from age 12.  However you stayed at school until Year 12.  Since, you have worked in sales and,  in recent years, as a taxi driver.  I accept that you were pressured financially both in terms of poor wages and growing family responsibilities.
 That included support for your mother.  It was in this situation that you accepted the offer to courier these drugs to Australia.

9You will be deported when released on parole.  That has no real significance to your sentence.  You came here in the course of offending.  However you should also be sentenced,  both as to head and minimum terms,  with reference to all sentencing considerations. 

10Importation into Australia of drugs such as cocaine is self-evidently very serious offending.  That is reflected in the maximum sentence here.  It also reflects the damage that drug trafficking and dependence causes our community.  Sentencing practices and principles (now as required to be considered across Australia) emphasise the high level of criminality and need for stern sentences.

11Considerations of deterrence, your moral culpability, the need to denunciate and impose proportionate punishment are all relevant.  General deterrence, perhaps particularly related to couriers as you were, is a primary sentencing purpose.  There must be a sentence of imprisonment, one of substantial length. 

12However there are also important moderating factors.  They particularly include the following. 

1)Your plea of guilty and cooperation. 

2)That you are of prior good character.  In saying so I recognise that this is limited by the circumstance, clearly correct, that drug couriers are often and perhaps must be like this.  However you are still entitled to a proportionate consideration of your good character.  The materials before me strongly support it. 

3)Related to that you should be seen as having good prospects for rehabilitation. 

13I also take into account your personal circumstances.  I recognise, as developed in the plea hearing, that the certain prospect of deportation is not significant.  Also your isolation within prison, as explained by
Mr Richter, is a lesser factor given your decision to come here to offend.  However in your case, for example, you will not see your two children at critical stages of their lives.  I see real and particular hardship to your imprisonment here.  I have decided that this allows me to feel and sentence in a way reflecting legitimately founded sympathy for your situation.  This does not ignore that it had been brought upon you and your family by your decision to offend.  I am also persuaded that you have been, until now, a person of good character and a close, loving member of your family.  The letters tendered very strongly reflect these things.  I have come to the view that you will suffer very considerable ongoing distress in prison at what your offending has caused those you value and who have depended on you.  Stand up please, Mr dos Santos.

14Having considered what I see to the relevant and competing factors I sentence you as follows.  You are sentenced to imprisonment of seven and a half years with a minimum term of four years.  I declare pre-sentence detention of
149 days.  Sit down please.

15Now are there any other matters I need to deal with?

16MS GOH:  Your Honour, just an explanation to the offender of the consequences of (indistinct words).

17HIS HONOUR:  Is that required is it?

18MS GOH: Yes, in s.16 of the Crimes Act.

19INTEPRETER:  Sorry, Your Honour, I can't, I can't hear.

20HIS HONOUR:  Yes, I will deal with - he is going to - well I suppose if I must say it, I must say it.  What do I say to a man who is going to be driven to a plane and returned to his country about all of that?

21MS GOH:  Your Honour, I can read out the ‑ ‑ ‑ 

22HIS HONOUR:  But what can I - yes, read it out and then I'll address it.

23MS GOH:  Including, in particular, an explanation that the service of the sentence will entail a period of imprisonment of not less than the non-parole period and if the parole order is made that period of service in the community for the parole period, the complete service of the sentence and that if a parole order is made the order will be subject to conditions and that the parole order may be amended or invoked and of the consequences that may follow if the person fails without reasonable excuse to ‑ ‑ ‑ 

24HIS HONOUR:  Well what do I say about that to a man who is going to be deported upon release on parole that doesn't sound silly.

25MS GOH:  Yes.

26HIS HONOUR:  It's on the transcript and that's been my response.

27MS GOH:  Your Honour, the sentence commences today.

28HIS HONOUR:  Sorry?

29MS GOH:  Just confirming the sentence commences today.

30HIS HONOUR:  Yes the sentence commences today.  Good, thank you. 
Mr dos Santos can be taken into custody.

31MS HARRIS:  If I could just have a moment with him, if I may, Your Honour.

32HIS HONOUR:  Yes.

33MS GOH:  Your Honour, I neglected to mention s.6AAA.

34HIS HONOUR:  Yes, yes I need to do that, sorry.  I will - thank you.  I reflected on it but I did not include it on my notes.  He needs to be - excuse me, I need to say something else to him, if you could come back.

35I need to say this.  Had you not pleaded guilty I would have imposed a sentence of 11 years with a minimum term of eight years.  Could you say that?  Is there anything else to do?

36MS HARRIS:  As the court pleases.

37HIS HONOUR:  Yes.  Ms Goh, nothing else?  Thank you for your assistance today and the other day.  Thank you for your assistance today.  Now Mr dos Santos has to be taken into custody now.

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