Director of Public Prosecutions v Montez Alves

[2019] VCC 267

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02168

DIRECTOR OF PUBLIC PROSECUTIONS

v

PEDRO MONTEZ ALVES

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2019
DATE OF SENTENCE:	8 March 2019
CASE MAY BE CITED AS:	DPP v Montez Alves
MEDIUM NEUTRAL CITATION:	[2019] VCC 267

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Plea of guilty – Import marketable quantity of border controlled drug – Cocaine
Legislation Cited:	Criminal Code Act 1995 (Cth)
Cases Cited:	Hasan v The Queen [2010] 31 VR 28; Pham v The Queen [2016] VSCA 259; Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32; R vNguyen; R v Pham [2010] NSWCCA 238; Lyddy v The Queen [2019] VSCA 35.
Sentence:	Convicted and sentenced to a term of 5 years’ imprisonment, with a minimum period to be served before being eligible for parole of 3 years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. L. Monagle	Office of Public Prosecutions
For the Accused	Mr. P. D'Arcy	Galbally Rolfe

HIS HONOUR:  

1Mr Montez Alves, you can stay seated.  There are a number of things I want to say in response to the plea put on your behalf, and the matters put to me by the Director, and when I get to the end of those, I will ask you to stand. 

2Mr Montez Alves is now 37.  He was 36 at the time that this particular crime was committed.  In the plea conducted two days ago on 6 March to indictment CR-18-02168, a Commonwealth prosecution under the Criminal Code, Mr Montez Alves was represented by Mr D'Arcy, and Ms Monagle appeared on behalf of the Director.  

3The indictment contained one charge pursuant to s.307(2)(1) of the Criminal Code (Cth), that being of importing a marketable quantity of a border-controlled drug, in this instance, cocaine. 

4The seriousness, of course, of this crime is aptly demonstrated by the fact that the Commonwealth Parliament has prescribed as a maximum sentence for such an offence, a period of 25 years imprisonment, and/or 5000 penalty units or both.  

5Exhibit A was tendered which was a prosecution opening, and Mr D'Arcy accepted the facts set out therein as representing the facts upon which I am to sentence Mr Montez Alves.

6The circumstances are easy to recount, in the sense that Mr Montez Alves arrived from Dubai, in Australia, on 11 July 2018, flying into Tullamarine.   He flew in, having previously secreted 97 pellets into his body.  Those pellets, when ultimately assayed, made up by way of pure weight, 316.4 grams.  The relevant quantity under the Act for a marketable quantity is two grams, hence Mr Montez Alves comes before the Court having been found importing 158 times the marketable quantity.

7It is appropriate to not only put such a charge in perspective with the minimum amount to qualify for a charge under s.307.2.1, but also see it in perspective with the more serious charge of import a commercial quantity which is a base amount of two kilograms, that offence being much more serious in the sense that it warrants life imprisonment. 

8Weights and the position of the particular amount of the scale set out in the Act are important, because this is a quantity-based regime.  Insofar as the value, the street value, from the expert evidence given in the depositions, is between $189,000 and $250,000.

9Mr Montez Alves has served, I think, is it now 240 days?

10MR D'ARCY:  Yes, Your Honour.

11HIS HONOUR:  And the learned prosecutor indicated I am required to make a declaration under s.6AAA, and without any argument I will do so, albeit a Commonwealth offence. 

12Both counsel addressed me on the issue of sentence, and there was no issue that the seriousness of this offence brings with it no alternative, but for a significant period of gaol.   Nor was there any issue that an appropriate non-parole period needs to be set.  The issue, of course, is what I opt to do in regard to both those periods.

13The prosecutor, as I said, tendered as Exhibit A, the Crown opening, as Exhibit B, the Crown submissions on sentence and as part of that submission, a table of comparative sentences or cases, which became Exhibit C.

14I do, as I said the other day, appreciate that material and I have taken into account the ranges set out in those cases, in the manner as dictated by Hasan v The Queen [2010] 31 VR 28, [44] to [49], and in the more recent Pham v The Queen [2016] VSCA 259, [22] to [23].

15The defence plea conducted by Mr D'Arcy, involved tendering his written submissions as Exhibit 1, the psychological report of David Ball dated 15 February 2019, a reference letter from Francisco Perez as to future potential employment for Mr Montez Alves, a letter of apology from Mr Montez Alves himself, and finally as Exhibit 5, an indication of his completion while on remand, of a drug program course.

16In both submissions, there was no issue before the Court that Mr Montez Alves comes before the Court with no priors whatsoever; that he is to be sentenced as a courier, and that such crime was committed for a financial motive.

17Given the value of the reward, an amount suggested was a sum of $10,000 in addition, with a hope, given that he was substance-dependent at the time, of obtaining some cocaine.  Such a figure sounds at least reasonable, compared to some of the propositions I hear occasionally in this Court.

18It is also accepted this is the first time that Mr Montez Alves has been in gaol and that while accepting that he is in gaol totally because of his own actions, it must be recognised by the Court, given his nationality, that it is necessarily harsher for him and more isolated. 

19Both counsel accepted that the plea in this matter was indicative of remorse; that the plea was one which assisted justice, was utilitarian and I was obliged to give the appropriate discount in that regard. 

20The general principles that apply to an offence of this seriousness are set out in Nguyen v The Queen and Phommalysackv The Queen [2011] VSCA 32. The Court of Appeal in this State, accepted the principles set out in the case of Nguyen and Pham, Court of Appeal in New South Wales [2010] NSW CCA 238.

21The fundamental principles that apply in cases of this seriousness is that albeit that you are, Mr Montez Alves, to be sentenced as a courier, as set out in principles 1, 2 and 9, the fact is that involvement at any level calls for severe punishment. 

22It is, as set out at principle 5, a matter as to the level of drug imported as being an important discriminating factor when determining sentences and, no doubt, the Court of Appeal being able to compare sentences.

23Also fundamentally important in a sentence such as this, is the principles of general deterrence, specific deterrence, punishment and denunciation of persons who agree, for profit, to enter this country with banned substances.

24Mr D'Arcy, while accepting all of those matters and the more generalised matters that I put earlier, was at pains to put to me for consideration, Mr Montez Alves's remorse, and his potential for rehabilitation. 

25Mr D'Arcy relied upon the fact that full admissions had been made, that based upon his own experience and in particular, the experience of Dr Ball, that the comments made and the circumstances, such was submitted as being genuine.  The plea was an indication of the remorse.  There had been limited assistance to the police, which was accepted on the day of the plea by the informant, he had given his mobile and the pin to the mobile and albeit, not fruitful, it is a matter to be taken by this Court into account by way of discount.

26Mr D'Arcy took me to the comments confirming remorse which were accepted by Mr Ball, in particular set out in Exhibit 2 at p.5 and referred me to the confirmation of those matters in his own letter at Exhibit 4. 

27Mr D’Arcy pointed to the steps in prison taken by you, Mr Montez Alves, in regard to your progress within prison, your progress as to being drug-free, albeit that there was no, in the circumstances, urine samples tendered and the employment that you have undertaken. 

28Mr D’Arcy pointed also to your letter, and submitted to the Court that the Court should accept, in these circumstances, that you have gained insight, and that your remorse is genuine. 

29It was noted in the written submissions of the prosecution, that the Crown does accept the positive steps you have taken as demonstrated while you have been in prison, and in the matters just indicated, as to your rehabilitation.

30I accept in this case, that the remorse shown, albeit based obviously on your own history, but on the matters expanded by Mr D'Arcy, is much more than just a measure of remorse as discussed in the very recent case, which I read subsequent to this plea, of Lyddy v The Queen, [2019] VSCA 35, [69].

31Mr D'Arcy submitted to me that the minimum term set was a matter of particular significance, due to the issue of deportation.  There is no doubt that, on the current regime, you will be deported after you serve the minimum term.  I, from my observations, cannot be fully sure when you will be paroled, although I am told by Mr D'Arcy in these types of cases, having served the minimum term, apparently, the Department is very keen to take immediate action. I accept his arguments and experience, and, that the determination of the minimum term before you are eligible for parole, is a matter of significance in your case.

32As I say, this is a particularly serious crime, calling for appropriate severe punishment.  The balancing of all the principles to affect that intent of Parliament is somewhat exquisite, when one takes into account the positive matters that have been put on your behalf by Mr D'Arcy to this Court.

33Doing as best I can, Mr Montez Alves, I have come to the following conclusion.  If you would be good enough to stand up. 

34For this offence, you will be sentenced to a head sentence of five years with a minimum period to be served before being eligible for parole of three years. 

35I declare pursuant to s.18, that the period you have spent on remand of 240 days be deemed service of this sentence and a declaration to that effect be made in the records of this Court. 

36I further declare, as required and indicated to me by the learned prosecutor that the period that must be pointed out to you, which you get the benefit of because you have pleaded guilty, so that the sentence of five years with a minimum of three, comes about as a result of the discounts, one of the factors being your plea of guilty, however, I am required under s.6AAA to tell you what would have been the sentence had you not pleaded guilty. 

37Doing as best I can to carry out that task Parliament requires me to do, but I am trying to consider only one topic.  I indicate that had you not pleaded guilty the sentence which you would have received would have been a period of seven years with a minimum of five and a half years.  

38Madam prosecutor, is there any other matters that I need to attend to?

39MS MONAGLE:  No, Your Honour.

40HIS HONOUR:  Mr D'Arcy?

41MR D'ARCY:  No, Your Honour.

42HIS HONOUR:  Yes, well good luck Mr Montez Alves.  You'll have to serve a period of three years, less the period that you have done already, and the indications are that you would then be sent home to your country.  Let us hope, as you have indicated in your letter, that is the last time you will ever be involved in crime.  Yes, thank you. 

43MR D'ARCY:  Thank Your Honour.

44HIS HONOUR:  The prisoner can be taken down.  Yes, I will stand down before we start the next matter.

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