Director of Public Prosecutions v Dos Santos
[2016] VCC 334
•21 March 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-02033
| THE QUEEN |
| v |
| LUCAS MACELINO DOS SANTOS |
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JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 February 2016 | |
DATE OF SENTENCE: | 21 March 2016 | |
CASE MAY BE CITED AS: | DPP v Dos Santos | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 334 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Importation of commercial quantity of cocaine - courier – 19 year old offender
Legislation Cited: Crimes Act 1914 (Cth); Sentencing Act 1991
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Ms A Payten | Director of Public Prosecutions (Cth) |
| For the Accused | Mr R De Vietri | Victoria Legal Aid |
HIS HONOUR:
1 Lucas Marcelino Dos Santos, at the age of just 19, you have pleaded guilty to the importation of a commercial quantity of cocaine. The maximum penalty for that offence is imprisonment for life.
2 On 15 August 2015, you arrived at Melbourne International Airport aboard a flight from Brazil via Dubai. Examination of two suitcases in your possession revealed that white powder was secreted within both cases.
3 In the early hours of 16 August 2015, you were conveyed to Australian Federal Police headquarters and participated in a record of interview. You stated that in Brazil, in early June 2015, you were approached by a male named Fernando. He offered you the equivalent of AUD $20,000 to transport cocaine to Australia, to be paid upon your return to Brazil. Fernando gave you money to arrange your Australian visa, passport, air fares and accommodation and you then made travel arrangements through an agent. A few days prior to travelling to Australia, Fernando provided you with two suitcases that contained secreted cocaine. Fernando also gave you USD $780 towards your expenses.
4 You told police that prior to departing, you knew that you were transporting cocaine into Australia and that it was illegal to do so. But you did not know the amount of cocaine that you were transporting. You stated that this was the first time you had travelled outside Brazil and that you did not know who would collect the suitcase from you. You agreed that the only reason you brought drugs into Australia was for money.
5 At the conclusion of the record of interview you were charged and subsequently remanded in custody.
6 The suitcases each contained three packages of white powder. The total weight of that white powder was 4.522 kilograms. An analysis confirmed that the white powder was cocaine with a purity of 47.2 per cent. The net weight of pure cocaine was 2.134 kilograms. A commercial quantity of cocaine is 2 kilograms.
7 The wholesale value of the cocaine is estimated to be between approximately $810,000 and $990,000 and the street value is nearly $2.5 million if sold at $350 per gram at a median of 30 per cent purity.
8 You fully cooperated with the Australian Federal Police by making full admissions and provided some level of assistance by naming the individual who recruited you. You volunteered the details as to your travel arrangements and nominated the financial reward you anticipated. The cooperation you have displayed, together with significant evidence of contrition and the entry of a guilty plea at the earliest opportunity, mitigate the sentence that is to be imposed upon you.
9 Unsurprisingly, it is your youth that was the dominant factor relied upon by your counsel during the course of the plea. You were 18 years old when approached by Fernando and little more than 19 when you entered Australia. You are a first offender without a criminal history and fall to be sentenced as a young offender. A body of references attest to your previous good character and, on the evidence before this Court, you are a young man capable of rehabilitation.
10 I turn to your personal circumstances.
11 You were born and raised in the city of San José on the east coast of Brazil. San José has a population of about 200,000. Your parents separated when you were an infant and you were effectively raised by your maternal grandparents with whom you lived prior to departing for Australia in August 2015. You have had minimal contact with your mother and no contact with two half-siblings on your father’s side. Your grandparents had three daughters and refer to you as their son. You have provided them with support.
12 You attended school until the completion of Year 10 and then worked in a sushi shop as an assistant before working in telemarketing for three or four months. Subsequently, you secured a job assembling metal structures but that job involved working in a harness at heights and for very long hours. You were poorly paid and returned to sushi making for several months. However, your position was not secure, your hours were reduced, and you eventually found yourself out of work. It was while you were unemployed and looking for work that you met Fernando at a bar.
13 I can see that Mr Dos Santos is distressed, he can be seated.
14 You were beginning to appreciate that because you had not finished school or undertaken a university course, your prospects for future employment were poor and that if you were able to find work you would be unlikely to earn more than about AUD $500 per month as an unskilled worker.
15 You have a girlfriend who is also 19 and who has a young son from a previous relationship. Your relationship commenced about seven months prior to your leaving for Australia. Your relationship with your partner is close and her son refers to you as “Dad”. Whilst in custody in Australia, you have had regular phone contact with your girlfriend which has accounted for the majority of your weekly prison allowance.
16 A psychological report has been tendered, authored by Ms Carla Lechner, forensic psychologist, and dated 28 December 2015. You told Ms Lechner that Fernando informed you that he had a “solution” to your problem; that you were aware of the risks and consequences, but thought more of the money that you could make and how it would set you up for life. You planned to use the money to start a bottle shop.
17 Ms Lechner notes that you present as “quite naïve, socially and emotionally immature with a limited ability to reflect deeply on the impact that his behaviour has on both himself and others”. She considers that you are currently evidencing depression at a clinical level in the moderate range. Ms Lechner reports that you express regret for your actions and that you are constantly anxious in a custodial setting which is made more onerous by a lockdown regime. Ms Lechner considers that you do not present with the “street-wise skills necessary to cope with the rigours of such a custodial setting”.
18 A number of character references have been provided, including from your mother, your grandparents, other family members and former employers. It is said that you regret your mistakes. You told police in the course of your record of interview “I have consciousness that I did wrong and unfortunately I have to pay for this, I have to comply with the law”. I accept that you are genuinely remorseful for your conduct, although that regret is directed more to your own predicament than to an appreciation of the plight of other persons who are dependent upon illicit drugs.
19 The primary submission of your counsel was that you should be sentenced to a period of detention in a Youth Justice Centre. A constellation of factors were relied upon, which included:
·your youth;
·the importance of rehabilitation in the case of a youthful offender;
·the absence of a criminal history;
·your isolation in custody;
·your depressed state;
·your immediate admissions and guilty plea;
·your cooperation with law enforcement agencies;
·evidence of remorse and willingness to facilitate the course of justice;
·your good prospects for rehabilitation;
·your confined role as a courier in the importation of the cocaine; and
·your lack of knowledge that the suitcases contained a commercial quantity of cocaine.
20 In my view, there is substance to those submissions, but I consider that the objective gravity of your offending does not permit a Youth Justice Centre disposition. It must be recalled that the maximum penalty for the importation of a commercial quantity of cocaine is imprisonment for life. Further, you were actively involved in the planning and organisation of the importation of cocaine into Australia over a two-month period. You received money but you arranged your own travel documentation, flights and accommodation. It is most significant that you stood to greatly profit from your conduct. You told police that you anticipated being paid the equivalent of approximately
AUD $20,000 for bringing the cocaine into Australia. This Court was informed that the average monthly minimum wage in Brazil was in the order of AUD $300 to $400. The magnitude of your anticipated financial reward is self-evident.
21 I sought assistance from the Commonwealth in respect of current sentencing practice. The prosecutor provided a summary of the salient features of five cases heard at first instance and concerning the importation of a comparable quantity of cocaine. Those cases involved offenders who were aged between 21 and 26 years of age. The head sentences varied between seven years' imprisonment to ten years' imprisonment and the non-parole period varied between four years and six years. I note that none of the authorities to which reference was made involved young offenders aged 19.
22 You have spent the last seven months in an adult custodial environment and your isolation is magnified by your lack of English and the absence of other Portuguese-speaking prisoners. Whilst it is true that you have been the author of your own misfortune, your rehabilitation will not be fostered by an extended period of linguistic and cultural isolation during your formative years.
23 In my view, and notwithstanding your youth, a period of imprisonment is the only appropriate sentence that can be imposed. Principles of general deterrence have clear application. Any sentence must discourage other young men and women from the temptation to act as couriers of illicit drugs.
24 In respect of the charge of importing a commercial quantity of cocaine into Australia, you are sentenced to a term of imprisonment of six years. I direct that you serve three years and three months of that sentence before being eligible to be considered for parole. In fixing the head sentence and the non-parole period I have had particular regard to your age.
25 Pursuant to s16E(2) of the Crimes Act 1914 (Cth), I declare that you have already served 219 days of the sentence that I have just imposed upon you and that this be noted in the records of the Court.
26 Pursuant to s6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty, you would have been sentenced to a term of imprisonment of nine years and six months with a non-parole term of six years and three months.
27 Does anything arise from those sentencing remarks?
28 COUNSEL: Nothing arising, Your Honour, may it please the court.
29 HIS HONOUR: Thank you. Madam Interpreter, can I thank you for your assistance this morning.
30 INTERPRETER: Thanks, Your Honour.
31 HIS HONOUR: Would you adjourn the court sine die, please?
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