Director of Public Prosecutions v Goes

[2019] VCC 534

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01469

DIRECTOR OF PUBLIC PROSECUTIONS

v

AIDAN GOES

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 April 2019
CASE MAY BE CITED AS:	DPP v Goes
MEDIUM NEUTRAL CITATION:	[2019] VCC 534

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 Breckwig (For Plea) Ms G. James (For Sentence)
For the Accused	Mr S. Bayles

HIS HONOUR:

1Aidan Camillo Goes, you have pleaded guilty to one charge of importing a marketable quantity of the drug methylamphetamine. The maximum penalty for this offence is 25 years' imprisonment.

2Further, through a document filed pursuant to section 16BA of the Crimes Act (Cth) it is agreed that I should take into account your acknowledgement of a further instance of importing a marketable quantity of the drug heroin.

3You have no prior convictions and no matters outstanding. I will say more about this later in these sentencing remarks.

4Ms Breckwig who prosecuted this matter on behalf of the CDPP tendered the prosecution opening on plea as exhibit A. A brief summary of your offending is as follows.

5From June 2017 the Australian Crime Intelligence Commission monitored a mobile telephone service used by you. During the period of interception, a number of telephone calls were intercepted between you and overseas associates. Your telephone communications centred on the importation of an amount of methylamphetamine. Intercepted calls revealed that you provided an address for the delivery of the consignment. You discussed your financial interest in the outcome of the importation and the investment of your own money in the cost of the importation. Examples of these calls are as follows:

·  On 23 August 2017, you discussed with an overseas associate supplying the total amount of “55” to a party in Thailand the following week.

·  On 25 August 2017 you discussed having met with a person known as Ms Thuy at the Keilor Downs shopping centre where you supplied $45,000 AUD. You then, in a call, asked the overseas associate to “send that one for me, okay?”

·  On 27 August 2017 you sent a text message to another overseas service providing consignee details and the address for the importation. When the consignment arrived in Australia on 10 October 2017, the consignment address matched that given by you in this communication of August 2017

·  Although conversations were conducted in code as to the illicit nature of the importations, you stated on 9 September 2017 that you would settle with the overseas associates “from my own pocket”. On one occasion, you referred to being under pressure from another person. However on 26 September 2017, you stated “I’m the one who put most of the money… I’m the one who put more money… I’m the one who is putting in the big amount. He is just taking the risk, that’s the only thing”;

·  On 29 September 2017 you discussed sending $40,000 USD to Nigeria. You accept that you met your contact at the Keilor Downs shopping centre and supplied money. In a call on 3 October 2017 you confirmed that you had “50 Australian” which amounted to “37 US”

6On 6 October 2017 you confirmed the details of the address for the consignment.

7On 9 October 2017 your phone was used to access the FedEx homepage.

8On 10 October 2017, the consignment arrived in Australia from Thailand and was held in Sydney. Testing by ABF officers revealed the presence of 265.1 grams of methylamphetamine at a purity of 80.3% of total volume of the consignment.

9Of course, this consignment did not reach you. On 11 October 2017 in a conversation with another associate, you stated “I don’t want it anymore man. That’s it brother.… I don’t want any problem… I don’t know what you people are doing but don’t put me in problem… That one still not here… Yesterday it said that it is in transit in Sydney”

10Notwithstanding the failure of this importation from your perspective, you persisted with a further importation of the drug heroin from South Africa. In late November 2017 the Crown alleges and you accept that you met again with Ms Thuy and supplied funds to her for this second importation.

11In early December 2017 you argued with the supplier. It appears you wanted your money back but instead you were provided with the name and address of the consignee for the next importation. On 6 December 2017, the consignment number was texted to you.

12On 6, 7 and 8 December 2017, you tracked the consignment number on the DHL website.

13On 7 December 2017, the consignment arrived in Australia from South Africa. Testing by ABF officers revealed the presence of 89.2 grams of heroin at a purity of 43.9% of the volume.

14On 18 December 2017 you were arrested. You generally denied the offending when you were interviewed by the police. You told AFP officers that the calls related to your interest in diamonds. You also stated that friends may have been using your telephone. You were remanded in custody and you have now served 480 days presentence detention excluding today.

Assessment of objective gravity and moral culpability

15The offence to which you have pleaded guilty is serious as indicated by the maximum penalty of 25 years.  Your offending is a serious example of the importation of a marketable quantity of this drug.

16The second importation is acknowledged by you but will not be the subject of a separate conviction or a discrete sentence. Rather, it is a matter which I may take into account in my consideration of the appropriate sentence to be imposed on the charge on the indictment.  Specifically, the CDPP submits that it can be taken into account in two respects: it may have the effect of increasing the sentence I impose on the indictment in respect to both specific deterrence and also when taking into account the principle of just punishment.

17I will say a little more about this matter later in these remarks.

18I can only conclude that you were significantly responsible for the importation of these two amounts of drugs. In other words, you were more than a mere post box or courier. By your own admission, you were not merely an investor but you provided the majority of funds to finance the importation of the methylamphetamine. You undertook considerable planning of both the importations as demonstrated by the intercepted calls. You were responsible for providing the address, the finance and involved in the timing of the first importation. The intercepted calls demonstrate that you were also integrally involved in and responsible for the second importation. In these instances you used voice altering software in order to disguise your voice during these communications. You changed telephones in the course of preparing for the importation and you used a false name. In all, the intercepted calls show considerable planning and sophistication.

19It is unnecessary for me to make any further finding as to the full nature and extent of the enterprise by which the drugs were imported to Australia. It is sufficient from the intercepted material to conclude that you were holding yourself out to your overseas associates as a decision maker and therefore that you were influential on the question of facilitating the importation and by providing the majority of finance to enable it to occur. As such, I must assess your criminality on both occasions as very high. Whilst there is some indication from your conversations of the involvement of another or others with you, you made it clear to your associates overseas that you were principally “calling the shots”.   There is no evidence that you were working under the directions of another.

20A further factor going to my assessment of the seriousness of your offending surrounds consideration relating to the drugs imported. The importation of 265 grams of methylamphetamine represents approximately 35% of the commercial quantity.  The street value of the drug was estimated at the lowest end of the range at $82,000 up to $198,000. Even taking the lower to median of the range, it was still a very valuable commodity in your hands.

21The heroin weighed 89 grams which was a much lesser percentage of the commercial quantity for the importation of that drug, about 6%. Nevertheless, it was estimated to have a street value of between $107,000 – $178,000. Notwithstanding that this subsequent importation represented a far lesser percentage of the commercial quantity, it was self-evidently still a very valuable commodity in your hands.

22Flowing from this is the fact that I can only conclude that you were motivated by profit. Although it was stated on your plea that you had fallen into drug use yourself in your time in Australia, it was not suggested that you imported these drugs only, or substantially, for your own use.

23A further factor in assessing the gravity of this offending is the noted difficulty of detecting drugs imported into Australia.

24Generally, the cases establish that:

(a)General deterrence is to be given chief weight on sentence and stern punishment will be warranted in almost every case;

(b)involvement at any level must attract a significant sentence otherwise the interests of deterrence are not served; and,

(c)Factors personal to you and your prior good character are therefore given less weight than might otherwise be given.

25The cases use various terms such as “stern”, “severe” or “condign” to describe the nature of the punishment which must be imposed on importers of drugs. The sentence I impose must take into account not only general deterrence, but at least some specific deterrence, denunciation, just punishment and protection of the community.

26I turn now to your personal circumstances.

27You are 30 years of age and you were born on 13 December 1988. You were born and raised in Tanzania to parents of Indian heritage.

28Your childhood does not appear to have been particularly easy. Mr Bayles who appeared on your behalf outlined your difficult childhood. Your parents were critical of you and were harsh disciplinarians. You were brought up in a God fearing family. You were subject to physical punishments. Your parents faced perpetual financial pressures. You struggled academically through school and you were bullied as you grew up in an African country being of Indian heritage. You came to Australia in 2012 under a student visa. You completed a diploma of automotive technology in two years. You worked the whole time that you were studying in order to support yourself. It appears that although you very much wanted to remain and settle in Australia, you never felt entirely accepted. You described your time here as difficult and isolating. After you finished your studies you worked in manual labour and shift work jobs.  You were never able to fully realise the benefit of the diploma that you had obtained.

29As a consequence you fell into using cannabis, heroin and ice. You saw little hope for advancement in the future in your time in Australia, and you used drugs as an escape. At the same time, you found that some of the drugs provided you with the stimulation to get through your shift work.

30You returned to Tanzania in 2015 and married. You returned to Australia with your wife, and the offending occurred after your return. You both now have an 11-month-old son. Your wife was present in court to support you and provided me with a reference. You are worried as you fear that she will soon return to Tanzania pursuant to visa requirements. Your mother was also present for the hearing but was outside the courtroom looking after your son. I was told that she must soon also return to Tanzania. The reference from your mother makes it clear that you still have the support of your family, but it is likely that you will spend a considerable portion of your sentence in gaol with your family back living overseas.

31Moreover, your time in gaol has already been marked by feelings of cultural isolation.

32I accept that these factors contribute to making your time in prison more burdensome.

33Your visa expired in February 2019. You were of course held in custody when it expired. You have received a notice from immigration officials declaring you to be a noncitizen. Accordingly, as you have pleaded guilty to this offence, even a cursory reading of the legislative provisions makes it apparent that you face the prospect of removal from Australia as a noncitizen.

34Mr Bayles made four principal submissions on your behalf. In essence, for each of these, he argued that your sentence should be mitigated by the following:

·First, by your early plea of guilty. Mr Bayles submitted that the plea had not only utilitarian effect but was attended by remorse and should thereby be found to facilitate the course of justice;

·Second, you have no prior convictions and you have no matters outstanding;

·Third, the prospect of your removal from Australia as a noncitizen adds to the burden of your imprisonment as Mr Bayles said you contemplate the high probability of your removal from Australia at the end of your sentence. You have thereby lost the opportunity to remain and settle in Australia with your family as a consequence. Further in this respect Mr Bayles submitted that your sentence will be harder as you will be unable to serve a parole period as a noncitizen. You will either be required to serve the whole of the sentence imposed or, at the end of the non-parole period you may be transferred to immigration detention where you may be held indefinitely until your removal. In this respect, I note the decision handed down yesterday of the Court of Appeal in the matter of Wan v The Queen [2019] VSCA 81, which notes that I am not to take account of executive action that may or may not flow from the fact of you being a noncitizen and perhaps being unable to serve a parole period.

·The final principal area of submissions made on the plea, on your behalf by Mr Bayles, was the effect of section 16BA and the taking into account of the heroin importation. Essentially, Mr Bayles submitted that the section provides a discretion both as to “whether” and as to the “extent” the matter is taken into account thereby affects the sentence imposed on the indictment charge. Essentially, Mr Bayles submitted that the extent to which the sentence for the principal offence should be increased should be modest having regard to the fact that the second importation was a single offence of a similar course of conduct, but for a considerably lower amount, than on the first instance. Whilst Mr Bayles conceded that it demonstrated a persistence of conduct on your part, he emphasised that the increase in sentence should not be significant.

35In my view, the sentence I impose should be mitigated by your early plea of guilty, your lack of prior convictions, the burden you face during your time in prison (which will be mostly isolated from family members and loved ones) and for the fact that you will feel the loss of the opportunity to stay in Australia where you have lived for the last number of years. I consider that your plea is attended by remorse as shown in your letter to the court and in the references provided. However, as I have outlined before, the chief sentencing consideration is to impose a stern sentence in order to give effect to the dominant principle of general deterrence. As such, matters personal to you will be given a lesser weight.

36It is difficult to make a comprehensive assessment of your prospects for rehabilitation. Whilst on the one hand you now have a work qualification and family support, you had both of these available to you at the time you committed these offences. The extent and nature of your drug addiction at the time of your offending (and perhaps I observe now) was not particularly comprehensively addressed. In any event, it was not submitted that you offended because of or in consequence of your addiction. Rather, you appeared to be motivated by profit. In the end, I consider that you have reasonable prospects for rehabilitation. Your expressions of regret and remorse and the regret and remorse observed by others as demonstrated in the references provided to me seem to suggest that you have insight into your offending. Moreover, you are spoken of in loving terms as a person who is otherwise capable of doing good. Wherever you may live after your sentence is completed, it is to be hoped that this matter stands as a period in your life which will not be repeated and that you are able to reintegrate back into the society in which you live as a law abiding citizen.

37As for the fourth area of Mr Bayles' submission, I simply remark that in my view, the penalty imposed on the charge on the indictment should be increased, taking into account your subsequent conduct requires a measure of specific deterrence and just punishment. The persistence of your conduct holding a principal role in both importations means that I cannot see the incident charged on the indictment as a single or one-off aberration.

38Ms Breckwig on behalf of the CDPP submitted that whilst the plea of guilty was early, general deterrence remains paramount. She characterised your offending as significant, referring to the amount of drugs brought in as a significant quantity of the marketable quantity and the commercial quantity in relation to the methylamphetamine. Ms Breckwig, on behalf of the Director submitted that I should find in both instances your role was central and crucial. Whilst you referred to being “under pressure” from another, it was submitted that your role was not necessarily under the directions of another person. As I have already stated, I consider these submissions to be correct.

39The Commonwealth provided me with cases in relation to the principles relating to the mitigating effect of removal from Australia at the end of your sentence of imprisonment, cases as to the established principles relating to sentencing persons charged with importation of border controlled drugs and also a list of comparable cases. I have considered the comparable cases provided to me and I have read the other authorities again. Whilst I have regard to the principles enunciated in the main cases, and whilst I have considered each of the sentences imposed in the cases handed up as being comparable, ultimately I must impose a sentence which meets the requirements of this case and take into account, as I can, the factors personal to you.

40At this point, Mr Goes, I will pronounce the sentence.  I will ask you to stand. On the charge of importing a marketable quantity of border controlled drug into Australia, you are sentenced to a sentence of six years and nine months. I order that you must serve four years and six months before you are eligible for parole. I declare the period of 480 days presentence detention excluding today as already served. As this is a Commonwealth matter, Ms James, I decline to make a 6AAA statement.

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