Director of Public Prosecutions v Piaz
[2020] VCC 1523
•24 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00638
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RODRIGO PIAZ |
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JUDGE: | HIS HONOUR JUDGE C.J. RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 September 2020 | |
DATE OF SENTENCE: | 24 September 2020 | |
CASE MAY BE CITED AS: | DPP v Piaz | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1523 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: importing a marketable quantity of a border controlled drug, namely cocaine - 1.858 kilograms of pure cocaine by entering Melbourne International Airport – courier – general deterrence
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP (Cth) v De La Rosa [2010] NSWCCA 194 - R v Nguyen; R v Pham [2010] NSWCCA 238
Sentence: seven years' imprisonment and I fix the period of five years' imprisonment as the period that you must serve before you will become eligible for parole - s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to 10 years' imprisonment with a non-parole period of seven years' imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms V. Hogarth (For Plea) | Office of Public Prosecutions |
| Ms R. Fleming | ||
| (For Sentence) | ||
| For the Accused | Mr J. Van Arkadie | Victoria Legal Aid |
HIS HONOUR:
1 Rodrigo Piaz, on 15 September 2020 you pleaded guilty to one charge of importing a marketable quantity of a border controlled drug, namely cocaine. A marketable quantity of the drug cocaine ranges from between 2 grams to less than 2 kilograms of the drug in pure form. You imported into Australia 1.858 kilograms of pure cocaine by entering Melbourne International Airport on 25 January 2020.
2 The maximum penalty for this offence is 25 years' imprisonment.
3 Tendered as Exhibit A and read aloud in court was the prosecution opening upon plea. In summary form, on 2 December 2019 and 17 December 2019 you wrote to and lodged an application with the Department of Immigration and Border Protection, notifying that organisation of your intention to travel to Australia for tourism between 25 January 2020 and 5 February 2020. You declared that your occupation was that of a financial assistant. You were granted a Visitor Short Stay Visa on the strength of your letter and application.
4 On 23 January 2020 you departed Sao Paolo, Brazil, and travelled to Santiago, Chile, on Latam Airlines flight LA751. Your flight from Chile to Australia was cancelled and a rescheduled flight, LA805, departed Santiago on 24 January 2020 at 4 pm. You checked two suitcases onto the flight.
5 On 25 January 2020 at 8.31 pm you arrived at Melbourne International Airport. You travelled on your own Brazilian passport.
6 On your incoming passenger card you declared that you were not bringing any prohibited item or any illegal substances into Australia. On this document you declared that your occupation was 'ferramenteiro', which translates to the English word 'toolmaker'.
7 On arrival you picked up your suitcases from the baggage carousel and you were selected for baggage examination by an Australian Border Force (ABF) officer. You were questioned, via the use of a Portuguese translation card, and you confirmed that the suitcases were yours, that you had packed them yourself, and that you were fully aware of their contents.
8 Shortly thereafter, your carry-on suitcase was examined by way of the taking of two swabs from the inside of the suitcase. Scans of the swabs returned a presumptive positive result for cocaine. A further swab was taken from the inside lining of the carry-on suitcase which returned a negative result.
9 Your two suitcases were examined and emptied of their contents and weighed. A small hole was drilled into the plastic lining of each suitcase, revealing white powder in the hole and residue on the drill bit. Presumptive testing of the white powder returned a positive result for cocaine.
10 When spoken to by ABF officers, you told them that you had purchased the two suitcases on the internet about a week prior to your travel to Australia through a 'WhatsApp' group.
11 The matter was referred to the Australian Federal Police and you were arrested and conveyed to the Australian Federal Police Melbourne office.
12 At 2.10 am on Australia Day you were interviewed under caution. During the interview you told police, via a Portuguese interpreter, the following:
·you brought the suitcases from a place where you can exchange or purchase articles, the suitcases were cheap and cost about 160 each,
·you purchased the suitcases one or two weeks before travelling and no one had access to the suitcases after they were purchased,
·you secured the suitcases with locks and only you had the keys to those locks,
·you denied knowing how the drugs came to be concealed in the suitcases,
·your trip cost 2,230 Brazilian Reals and you paid for the trip through a travel agency in cash,
·you were going to stay in one hotel in Sydney and that hotel had already been paid for through the travel agency,
·you brought A$1,800 with you, as well as some Brazilian Reals,
·you brought the A$1,800 as everything else had been paid for (including the hotel),
·you came to Australia to learn English, and
·you denied having any convictions or involvement in the drug trade in Brazil.
13 At the end of the interview you were remanded in custody.
14 The total net weight of powder recovered from your suitcases was 2.223 kilograms. Forensic analysis revealed that the powder taken from the suitcases contained cocaine with a purity of between 83.5 and 83.7 per cent. The total pure weight of cocaine was 1.858 kilograms.
15 After your arrest, further enquiries made by investigators revealed that you were due to take a flight from Melbourne to Sydney and that you were to stay at the Song Hotel, a matter which you had informed investigating officials about. However, that hotel received two emails and three private telephone calls enquiring whether you had checked into that hotel.
16 Your mobile phone was forensically examined and a number of images were recovered, including:
· a number of images of your suitcases and carry-on bag,
· multiple images of your two suitcases, with one covered in a blue fabric cover, and the second in a multi-coloured fabric cover, consistent with their appearance when you arrived in Australia,
· multiple images of you with your two suitcases,
· three images depicting bundles of cash, the first image depicting the cash in a person's hand, the second depicting the cash in a black and grey backpack inside a suitcase, and the third depicting the cash in the internal zipper of a suitcase,
· an image of a block of white powdery substance within a plastic bag, that, according to forensic analysis of your phone, was created on 2 January 2020 via 'WhatsApp', and
· an image of the rescheduled boarding pass of your flight from Santiago to Melbourne. This image too appears to have been sent to your phone via 'WhatsApp'.
17 You entered your plea of guilty at the first committal mention on 6 May 2020, and accordingly your plea is an early one and you are entitled to the benefits that flow to you from that plea, being that it has utilitarian benefit and that it is some evidence of your remorse. At the time of your plea you had spent 233 days by way of pre-sentence detention not including 16 September 2020.
18 Mr Van Arkadie, public defender who appeared on your behalf, tendered a number of documents that he relied upon throughout his helpful submissions. These documents included his outline of defence submissions (Exhibit 1), a translated criminal record check from the Brazilian Federal Police (Exhibit 2), a report of Mr Jeffrey Cummins, psychologist, dated 3 September 2020 (Exhibit 3), and a bundle of references from a former and a prospective employer and members of your family (Exhibit 4).
19 You are 37 years of age and a man without prior convictions. You are a Brazilian citizen. You had a disrupted education, in that you left secondary school when you were about 16 years of age, owing to the separation of your parents that caused you to become disengaged from school because you found it hard to concentrate. You left school; however, you subsequently returned and eventually completed the equivalent of Year 12 in Australian terms when you were aged 20.
20 Your father is 63 years of age and runs and owns his own business manufacturing plastic products. You have worked for your father for many years throughout your life, including while you were a student at secondary college. You have been a consistent worker throughout your life, working as a machinist, tool operator, and miller in the process of manufacturing plastic products. You are described by your previous employers, who include your father, as 'a complete professional', 'a competent, [attentive] and generous professional' and generally an experienced toolmaker.
21 You married in 2010; however, that relationship ended in 2017. There is a child of the marriage, a daughter, Isadora, who is aged seven years. Despite being divorced from your former wife, you have maintained a positive relationship with your daughter, seeing her each fortnight, and speaking to her, prior to your arrival in Australia, on an almost daily basis. While living in Brazil you contributed to the maintenance of your daughter.
22 Alcohol and drug abuse have impacted adversely on your life since your early teens. You began drinking alcohol when you were about 14 years of age. From around the age of 15 or 16 years you used various illicit drugs, including cannabis; however, your drug of choice was cocaine. It was put on your behalf that it was your abuse of cocaine that led to the breakdown of your marriage.
23 Your abuse of cocaine led you to undergo a residential drug rehabilitation program for approximately six months. This treatment was principally paid for by your family, although you made some contribution to its cost. You informed Mr Cummins, psychologist, that you went to the clinic because you had lost control of your drug use, and that drinking was also a problem for you. After leaving the clinic you consulted a psychologist for about three months or so, but thereafter therapy ceased.
24 For a period of four or five years after your time at the residential rehabilitation clinic you were drug free. However, you drifted back into drugs and alcohol, which ultimately must have brought you into contact with the principals to the importation to which you have pleaded guilty.
25 You told Mr Cummins that your principal was your drug dealer, who knew that you were addicted to cocaine, and he told you that you could travel to Australia and take some cocaine with you. When you returned from Australia you were to be paid 30,000 Reals. Rather blithely, you told Mr Cummins that the offer to take cocaine to Australia 'suited me because I was actually thinking of starting a new life in Australia'. However, you added that at the time you were not thinking clearly, and by necessary inference, because you were an abuser of cocaine.
26 You are currently held at Fulham Correctional Centre and you are unmedicated. When you were first remanded you were prescribed anti-depressants, but after several months you ceased taking this medication because it caused you to experience headaches. You presently work in the prison as the gymnasium billet.
27 You have never been hospitalised for psychiatric reasons. In respect to your general health, I was informed that you suffered injuries to both your knees whilst playing soccer, and have undergone surgery to your right knee, and presently require remedial surgery to your left knee.
28 During the plea, Mr Van Arkadie submitted that you had been subject to what he described as 'non-exculpatory duress'. In essence, Mr Van Arkadie relied upon your instructions to Mr Cummins that there came a time when you appreciated the risk of being caught was extremely high and you were told by your principal that you could not get out of the transaction. You were told that if you did not go ahead with the importation, someone from your family would be killed. There is no evidence before me to support this submission. It is entirely reliant on your instructions. I am not prepared to act on those instructions.
29 You are a non-English speaker, your mother tongue being Portuguese. While in prison you have not met another Portuguese-speaking prisoner. A consequence of this is that you feel isolated within the prison community. You have video conferences with your family twice a week, and as a result of earning income by working as a billet you are able to make phone calls to your family from time to time. While in prison you have engaged in a basic English course, a guitar class and a computer course. However, the restrictions imposed on prisoners as a result of the COVID‑19 pandemic have meant that your access to courses has reduced considerably. Further, you have been and will be subject to the restrictions imposed on all prisoners in the State of Victoria as a result of the COVID‑19 pandemic. The prospect of the virus entering the prison system is a cause of anxiety to you and I must take these matters into account when arriving at an appropriate sentence in your case.
30 It was common ground between the Crown and your counsel that your role in bringing the cocaine into Australia was that of a courier.
31 The role of a courier should not be underestimated, as it is a role that is essential to the success of the criminal combination whose aim was to import illicit substances into Australia.
32 The principles that apply to sentencing prisoners charged with the importation of a marketable quantity of a border controlled drug are set out in a number of decisions, including R v Nguyen[1], a decision of the Court of Criminal Appeal in New South Wales, where the matters which are relevant to sentencing were summarised as:
'(2) The quantity of the drug, though not determinative, is relevant to an assessment of objective seriousness of the offending;
(3) General deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case;
(4) Involvement at any level must attract a significant sentence otherwise the interests of deterrence are not served;
(5) Factors personal to the offender such as good character are therefore given less weight than might otherwise be given.'
[1]R v Nguyen; R v Pham [2010] NSWCCA 238
33 In DPP (Cth) v De La Rosa,[2] McClellan CJ at CL said that the following were the key factors in sentencing an offender for importation of a border controlled drug in a marketable quantity:
[2][2010] NSWCCA 194 [267]
· the quantity of the drug;
· the role of the offender;
· the reward obtained by the offender;
· any assistance given to the authorities;
· the offender's criminal history; and
· prospects for rehabilitation.
34 Whilst a drug user, you entered into a criminal combination to import into Australia slightly over 90 per cent of the commercial quantity of the drug cocaine. I was informed through the prosecution submissions on sentence, which became Exhibit B on the plea, that the street value of the cocaine that you imported into Australia, if sold at a purity of 83.5 per cent per one gram, is between $667,000 and $889,000. The wholesale value of the cocaine if sold at a purity of 83.5 per cent is between $396,000 and $528,000. You entered into a criminal combination in expectation of payment. Whilst you have hitherto been a man of good character, this fact must take a back seat in the exercise of my sentencing discretion, as general deterrence must play the principal role in arriving at a just sentence in all the circumstances.
35 Upon release from prison you will be repatriated to Brazil, and you have the continuing support of your family and past employers who are prepared to employ you upon your return to your motherland.
36 As to your prospects for rehabilitation, it was submitted by Mr Van Arkadie that they were good. It seems to me, however, that your prospects of rehabilitation are entirely dependent upon you being abstinent from illicit drugs, particularly cocaine. At best your prospects are guarded.
37 The maximum penalty for importing a marketable quantity of a border controlled drug is 25 years' imprisonment. Your sole purpose for coming to Australia was to bring cocaine into this country. You were to be paid 30,000 Reals for your trouble. Upon interview you denied any knowledge of the drug contained in your suitcases. However, as previously noted, you entered your plea at the earliest opportunity and you are entitled to the benefits that flow to you from that plea.
38 Isolated from your family and culture, imprisonment will be more burdensome for you and whilst you experience feelings of anxiety and depression they are, on any view, reactive to the position in which you presently stand.
39 Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you to seven years' imprisonment and I fix the period of five years' imprisonment as the period that you must serve before you will become eligible for parole.
40 I declare that you have spent 242 days by way of pre-sentence detention, not including today.
41 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to 10 years' imprisonment with a non-parole period of seven years' imprisonment.
42 Thank you, Madam Interpreter. Now, in respect - does counsel have anything or does anything arise out of the sentence that I have imposed, Mr Van Arkadie?
43 MR VAN ARKADIE: No, Your Honour, it all was very clear from your reasons.
44 HIS HONOUR: Ms Fleming?
45 MS FLEMING: Nothing arises. I do note that, Your Honour, there's a forensic procedure application.
46 HIS HONOUR: Yes. I have made that order and it will be forwarded to the Crown.
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