Director of Public Prosecutions v Reyes

[2018] VCC 281

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02171

THE QUEEN

v

ANDY REYES

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 March 2018
CASE MAY BE CITED AS:	DPP v Reyes
MEDIUM NEUTRAL CITATION:	[2018] VCC 281

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW

Catchwords: Sentence - Import a marketable quantity of a border controlled drug (1 charge)

Legislation Cited: Sentencing Act 1991 (Vic); Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth)
Cases Cited: DPP v Dalgleish [2017] VSCA 360; Nguyen v The Queen (2011) 31 VR 673; Nguyen & Pham (2010) 205 ACrimR 106
Sentence: Convicted and sentenced to a term of seven years’ imprisonment with a non-parole period of 5 years imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms A. Reid	Solicitors for the Commonwealth Office of Public Prosecutions
For the Accused	Mr Chernok	Emma Turnbull Lawyers

HIS HONOUR:

1Mr Reyes is now 22. He was 21 at the time of the commission of this crime. Yesterday he pleaded guilty to the one charge on the indictment, being a breach of s.307(1) of the Criminal Code (Cth), for which the maximum penalty prescribed is one of 25 years. That in itself gives an indication of the seriousness with which Parliament views this offence.

2On the plea, Ms A. Reid appeared for the Director, and Mr Chernok of counsel appeared on behalf of Mr Reyes, and Mr Brennan appears today.

3The facts upon which I am to sentence Mr Reyes are set out in the summary provided by the prosecution, as agreed by Mr Chernok, and marked as Exhibit A.

4Those facts unfortunately are stark.  Mr Reyes comes before the Court with no prior offences whatsoever.  He is a citizen of the United States of America.  On the 1^st of August last year, he arrived in Australia, carrying 619.3 grams of cocaine.  He was detected by our border forces and ultimately arrested by the Federal Police. 

5Insofar as the quantity is concerned, it is 309 times the quantity which qualifies for the minimum amount as a marketable quantity under the legislation, being two grams.  Insofar as its relationship to the most severe sentence that can be given under the Crimes Act (Cth), it is 30 per cent of the qualification of a next level, which is the commercial quantity level, for which Parliament has prescribed a sentence of life imprisonment, that level being 2 kilograms. 

6It was accepted by counsel for Mr Reyes that the street value of the cocaine was between $185,000 and $278,000, and for the purposes of this sentence I take the lower figure. 

7The submissions on sentence by the Prosecution were tendered as Exhibit B there was no dispute from the defence that immediate imprisonment was appropriate, and indeed the only appropriate sentence.

8As demonstrated by Exhibit 5, which was the letter of apology tendered to the Court, the motivation for this crime was purely the obtaining of money, or greed.  The background to that is best explained by a reading of the three-page letter of apology, which I not only read yesterday, but have read since.

9Mr Reyes details in that letter the financial issues that had beset him, the unfortunate fact that he was involved in gambling, that he was the father of a young family, having financial and personal difficulties with his wife, and that he was wanting to provide for his daughter Kalani, whom he describes as "the princess", in a manner to which he had not as a young boy.

10As a result, he accepted the offer to, to use his words, "to take a bag".  He acted as a courier, as detailed in Exhibit A, and brought the cocaine into Australia.

11Clearly, the objective criminality is high.  The relevant principles were detailed in cases supplied to me by Ms Reid, together with a number of materials which I found of much help.  In particular Nguyen v The Queen (2011) 31 VR 673, [33]-[35], where the Court of Appeal reviewed the appropriate factors that come into play in a sentence of this type.

12In particular, the general principles detailed therein, refer to the principles which were detailed by the New South Wales Court of Appeal in Nguyen & Pham (2010) 205 ACrimR 106.  Those principles are as follows.

13Firstly, the objective criminality needs to be determined.  As I have said, in this case it is high.  The principal factor that Courts take into account is the view expressed by Parliament as to the seriousness of the crime, and the maximum penalty prescribed by Federal Parliament is 25 years imprisonment.

14The role, which is undisputed, being that of courier, the high weight insofar as this particular category is concerned, the accepted profit motive, being the sole motive for this crime, the associated need for a sentence which effects deterrence, and indeed the need for stern punishment, as is the referenced from the various authorities, because of the difficulty of detection.

15It is a matter of wonderment for the Court, and no doubt for the community, as is how many similar motivated Mr Reyes are coming into Australia every day.  The reality is probably many hundreds.

16The further principal that relates therefore, as detailed in the two cases that I have just referred to, is that any sentence, by being stern, must serve as a signal to would-be traffickers that the consequences will be severe if you are caught being involved in such activity.

17It is agreed by the parties that Mr Reyes' role in this criminality was that of a courier. The Courts, and in particular this Court, often bemoan the fact that we never get the person or persons at the top of the chain. The principles insofar as couriers are concerned have been detailed on many, many occasions in the Courts,   and they are that any person involved in criminal activity of this sort, at any level, must expect condign punishment.

18In those circumstances, factors relevant to the choice made by those up the chain as to those appropriate to be couriers, lose much of their impact.  The first of those is the good character of Mr Reyes, and the second is his relative youth.  It is just those factors of course which are utilised by those up the chain to pick persons who are appropriate couriers.

19This Court does not know why Mr Reyes was apprehended, there has been no proffering to the Court of any such reason.  There has been some speculation, given the location of his most recent travels, as set out in the documents that would have been lodged with Border Patrol, as he entered Australia.  However, taking into account all of those factors, as I said the criminality must be assessed in this case as objectively high, and for all the principles that I have detailed, calls for a stern sentence to be invoked.

20There was ultimately, in the submission of Mr Chernok, no issue that the sentence must be at a level where a recognisance release order would not be appropriate.  The learned prosecutor tendered four cases by way of comparison, which were set out in Exhibit C.  They of course are of much assistance. 

21However, as is always the case, and was detailed particularly by the High Court in Dalgliesh, ultimately in the instinctive synthesis process, while comparisons are of assistance, the most important proposition is that of individualised justice. In the subsequent Victorian Dalgliesh case, [2017] VSCA 360, [39], the first principle was as follows:

"The administration of the criminal law involves individualised justice.  The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case."

22Insofar as Exhibit B was concerned, that is, the submission as to sentence by the Commonwealth, I take into account all of the factors set out, in particular paragraphs 18-29, as detailed by Ms Reid, and as spoken to orally in yesterday's plea.

23There was also an application by the prosecution for a forfeiture order in regard to the phone in this matter. 

24Insofar as the submission made by Mr Chernok, Exhibit 1, which was the defence outline of submissions dated 7 March 2018. Such referred to Exhibit 2, which were two character references, one of his mother and one of his wife. It seemed to me both of those were totally supportive of the details set out in the letter of apology in Exhibit 5 by Mr Reyes.  In addition, there were additional matters tendered.  Thirdly was the local plan file note, and a series of certificates from the Kangan Institute - that is, Exhibit 5.  And Exhibit 4 were the clean drug screens and the full correctional passport and sentence remand report dated 7 March 2018.  All of such matters I take into account.

25In particular, Mr Chernok spoke of what is clear in those documents, of the hard work that Mr Reyes has indulged in, the attempts made by him to undertake courses to assist in his rehabilitation.  Mr Chernok went through Mr Reyes' background, as I say, essentially as described by his mother.  He has a very loving family, and there was no indication in any manner, especially with a person who served two years in the Marine Corps, that he would be involved in criminality of this sort.

26The letter of apology was tendered, and indeed in support of that, which is the appropriate manner in which such matters should be put, Mr Reyes was called to give evidence and spoke to the letter and the circumstances.  Not only was it, I find, an expression of remorse, but I accept that it was genuine.  It sets out not only the background and the reasons, but the reflected conclusion of the stupidity of which he had indulged in, his sorrow for being involved in such criminality, and in particular for the circumstances that have now befallen not only him but his wife and young child and family.

27It was submitted by Mr Chernok that Mr Reyes was still a relatively young person, and was a person who in those circumstances, on the appropriate principles, that rehabilitation must still be taken into account. 

28In response to those matters, Ms Reid pointed out to the Court it is the very youth, the very background of no priors, that makes such persons attractive to those up the chain who wish to use couriers. Also of course, as you pointed out, here was an offence which Mr Reyes has deliberately chosen to come into this country to commit this crime.

29It is of course appropriate for this Court to balance all of those factors, which I do in order to deliver, as is set out by our High Court, individualised justice to you.  While I have no hesitation, and have already determined that we are dealing with a case of high objective criminality, the Court must of course take into account your age, the fact that you are still only 22 and committed this crime at the age of 21, the fact of no priors, and what I accept as your genuine remorse.

30As I say, not only did the letters from your family effect a ring of truth, given their total disbelief that you were involved in such criminality, but your own letter of apology, Exhibit 5, I found also to express such. The Court must of course, in balancing all of those factors, take into account your youth and the need for a sentence which, as much as possible in the balancing process, tries to effect rehabilitation.

31Yes, if you would stand Mr Reyes?

32Taken into account all of those factors as best I can, I have determined the appropriate sentence therefore that should be passed upon you for this very serious crime is seven years' imprisonment.  The minimum period that I determine as being appropriate to be served prior to you being eligible for parole is a period of five years.  I do not intend to make any orders insofar as the orders sought for forfeiture.  Insofar as s.18 is concerned, I declare that the 221 days, I understand Madam Prosecutor now, is that right?

33MS REID:  It will be 226, I understand Your Honour.

34HIS HONOUR:  226, is it?

35MS REID:  As of yesterday, yes. 

36HIS HONOUR:  Right, 226 days served by way of presentence detention be deemed as service of this sentence, and a declaration to that effect be recorded in this court. 

37Whether one is required to make a determination in a Federal sentence under s.6AAA is still not certain, however to ensure such is effected - and indeed the purpose of it is to describe you, Mr Reyes, what the sentence would have been, and what is the benefit having pleaded guilty.

38It is a requirement that Parliament makes of Judges, which is a very difficult requirement to comply with, because it is a requirement relevant to only one of the many number of factors I have detailed.  However, doing as best as I can to comply with the requirements of Parliament, can I say to you that had you not pleaded guilty in this matter, the sentence I would have given you was not the seven years with a minimum five to serve, but a sentence of nine years, with a minimum of seven to serve.  So you see the effect of your plea of guilty. 

39I am confident that you are a person who will effect rehabilitation.  It gives the Court no joy to sentence a young man such as you to a significant period of gaol, however there is no option. It remains for me, only to wish you well in that rehabilitation.

40Yes, any questions from either counsel?

41MS REID:  Your Honour, am I able to just address you on the forfeiture order?

42HIS HONOUR:  No, I am not going to make that forfeiture order.

43MS REID:  Sorry, I just wanted to let you know, Your Honour, that we are not going to apply for that today.

44HIS HONOUR:  Good.

45MS REID:  I know I foreshadowed it yesterday, but ‑ ‑ ‑

46HIS HONOUR:  Thank you.

47MS REID:  Thank you Your Honour.

48HIS HONOUR:  Any other matters?

49MR BRENNAN:  Not from defence, Your Honour.

50HIS HONOUR:  Right.  Yes, the prisoner can be taken away.  Thank you Mr Reyes, and thank you to both counsel, I appreciate the materials that I was given.

51MS REID:  As the Court pleases.

52MR BRENNAN:  As Your Honour pleases.

53(At this stage the court proceeded with another matter.)

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