R v Dante Cantro De La Cruz

[2018] NSWDC 292

District Court

New South Wales

Medium Neutral Citation:	R v Dante Cantro De La CRUZ [2018] NSWDC 292
Hearing dates:	16 August 2018
Date of orders:	16 August 2018
Decision date:	16 August 2018
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	Non-parole period of 1 year and 9 months; Parole of 1 year and 3 months; Overall term of imprisonment of 3 years.
Catchwords:	CRIMINAL LAW – Sentence – Supply prohibited drugs – Methylamphetamine – 18.64 grams - Form 1 – Deal with proceeds of crime - $9,350 – Below mid-range objective seriousness – Early plea of guilty – 25% discount – Significant criminal history of similar offences – Financial reward – Bail refused – Drug addiction – Fair prospects of rehabilitation – Special circumstances -
Legislation Cited:	Drugs Misuse and Trafficking Act, 1985 - s25(1)
Cases Cited:	R v Thomson and Houlton (2000) 49 NSWLR 483.
Category:	Sentence
Parties:	Dante De La CRUZ   The Crown
Representation:	Mr Kondich (F/W Dante De La Cruz) Ms Sawagid (DPP)
File Number(s):	2017/156903

Judgment

1. The offender is before the Court for sentence following his plea of guilty in the Local Court to one charge of supplying prohibited drugs contrary to s 25(1) of the Drug Misuse and Trafficking Act, 1985. As such, it carries a maximum penalty of 15 years’ imprisonment.

2. He asks that when sentencing him for this matter I take into account an additional offence found on a schedule to a Form 1 signed by him and exhibited in these proceedings. That is a charge of knowingly deal with the proceeds of crime in the sum of $9,350.

3. The relevant facts were agreed by the offender when the plea of guilty was entered in the Local Court. From those I accept that police were conducting patrols of the Sydney CBD on the afternoon of Wednesday 24 May 2017. They observed the offender pacing up and down outside The Quay Apartments in Haymarket, looking back and forth, and using his phone. There was another man standing in an alcove nearby. They spoke to each other and the offender stayed in the area. The unknown man went back to the alcove, left, and came back about five minutes later.

4. Another male approached the offender, and they spoke. The offender produced a swipe key which he used to gain access to the foyer of premises at 178 Quay Street, Haymarket. The third male who had approached went into the foyer and left shortly afterwards without the offender.

5. About 15 minutes later a car parked down the street from the address. A male got out the car and came up to the address and stood at the entrance, looking at his phone, making calls, and walking up and down. The offender then exited the address and greeted this man. They spoke and walked back to the car.

6. They both got in, with the offender sitting in the passenger seat and appeared to the police to conduct an exchange whilst inside the car. The offender got out and went back to the building. Police then identified themselves.

7. The offender started to run away. He was told to stop but he continued to run. When he was running, he was seen to be fidgeting with the crotch area of his trousers. Police caught up to him and he was tackled and handcuffed.

8. Police searched him and asked him where the drugs were. He did not respond. They asked him again and he pointed to his left pants pocket. They conducted a search and found seven clear resealable bags, all of which contained crystal substance, which was later analysed and found to be 11.81 grams of methylamphetamine. They also found a large quantity of cash, which was later counted and found to be $9,350 separated into separate bundles in his pockets. They also located two mobile phones which were looked at later, and which I accept contained a number of messages between the offender and another person in relation to the supply of drugs.

9. The offender was arrested and cautioned. Whilst this was occurring his phone was constantly ringing, which I infer was from one or other persons attempting to contact him for the purpose of supplying drugs. Police took him to the rear of their caged vehicle, searched him again, and found a larger resealable bag containing crystals secreted in his underpants. That was later analysed and found to be 6.83 grams of methylamphetamine. Police asked him about what they had found and he admitted that he was in possession of the drugs.

10. He did not engage in an electronic interview, but as I have said, at the scene admitted in so many words that he was in possession of the drugs. He was charged with the drug supply offence, supplying the amount of 18.64 grams of methylamphetamine, the total of the two quantities found in his possession.

11. He was also charged with some backup offences and also the offences involving the money found in his possession. That latter charge has now found its way onto a Form 1 offence and by asking it to be taken into account, he admits his guilt in relation to that offence. In other words, he admits that he was knowingly dealing with proceeds of crime.

12. That money was clearly money connected with the supply of illegal drugs. It is significantly more than might have been expected from the drug supplies that more probably than not he had just engaged in, but there is no more known of it than that. Particularly, there is nothing known of the amount which would have been retained by the offender and how much would have been returned by him to the supplier of the drugs to him higher up the chain. I infer that he would have provided some to that person. There is no evidence from which I would make a finding that he would retain all of that money, or for that matter, even a substantial quantity of that money.

13. Turning then to the objective seriousness of this offence, it is a serious offence to engage in the supply of drugs. This offence is brought as a deemed supply, but I accept that this offender was involved in the trafficking of illegal drugs. This is more than just a case where he admits he could not succeed with the defence of having it in his possession for a purpose other than supply. He clearly had these drugs in his possession for the purpose of supply, and more probably than not had just engaged in a supply at the time he was apprehended. I also accept from the surrounding circumstances and particularly the text messages that he would have continued to supply these drugs had he not been apprehended by police.

14. There is little evidence from which I could determine his role in any drug syndicate, if in fact such a syndicate existed, however I infer that it was towards the bottom. It is clearly more than a mere courier. He is slightly more involved than that, but he is not at the top by any means of any hierarchy involved in the supply of these drugs in those circumstances. I make that finding also because of evidence to which I will refer soon, and from which I accept, that at the time he was a person himself who was significantly addicted to methylamphetamine, used a large quantity every day, and that he committed this offence in part to either fund his addiction to this drug, or obtain some for himself.

15. Further, however, he engaged in this for financial reward. Namely, he was financing his own life, and presumably the life of his family, in part from his drug trafficking in the community. They are all factors to take into account when assessing the objective seriousness.

16. In addition, however, this is a relatively small quantity, 18.64 grams. True it is that it is almost four times the indictable quantity for this offence and six times the trafficable quantity, but it is significantly less than the commercial quantity of 250 grams. There is no evidence from which I can assess the purity of the drug because it was not analysed, which is not surprising in the circumstances.

17. The objective seriousness of the offending in those circumstances in my view is below the mid-range, towards the bottom of the range of offences capable of being charged under this section, but not at the very bottom of the range. He was involved in the trafficking of illegal drugs at a more than minimal level, and the text messages and the amount of money in his possession, at the very least, are indicators of that.

18. He pleaded guilty at the first available opportunity in the Local Court and is thus entitled to the maximum discount pursuant to the dicta of the Court of Criminal Appeal in R v Thomson and Houlton (2000) 49 NSWLR 483. I will reduce the appropriate penalty by 25% to take that into account.

19. A factor that is relevant in this case is his relatively significant criminal history including offences in the past of both supplying and possessing drugs, and committing those sorts of offences which have the hallmark of having been involved in drug supply, including dealing with the proceeds of crime and the like.

20. His criminal record commences in 1993. That in fact is a drug supply offence but was dealt with by way of a fine. He then has a significant number of drug possession charges on his record initially being dealt with by way of a bond. In 2008, he was dealt with for supply prohibited drug occurring in August/September 2008 with a term of imprisonment. He was also dealt with at the same time for dealing with property suspected to be the proceeds of crime. It is a little difficult to determine that sentence but it would appear to have been a term of imprisonment of about 17 months with a non-parole period of 10 months.

21. There are then more offences after that including drug possession which was subject to a s 9 bond, subsequently called up and substituted with a term of imprisonment for a short period. That was in 2010. In 2012 he was dealt with for an offence effectively of trespass, entering building in order to commit an indictable offence. He received a term of imprisonment for that offence. There is nothing before the Court to indicate the circumstances in which that offence was committed, but it is well known to the Court that often these offences are committed in circumstances connected with drug supply, use or possession.

22. In 2012, he was again dealt with for possessing identity information to commit an indictable offence and possessing a prohibited drug. He received a term of imprisonment of 2 years with a 12 month non-parole period for that combination of offences. In 2012, again at the same time, he was also dealt with for the offence of dishonestly obtaining property by deception and larceny which also gave rise to a term of imprisonment.

23. In 2015, he was dealt with in the Drug Court for the offences of possessing a prohibited drug and supplying prohibited drug. It would appear that the Court there indicated a sentence of two years. He participated in the Drug Court program, it would appear successfully, and came back to the Court in August 2016 and was then released on a s 9 bond for the supply for four months to comply with the graduation requirements of the Drug Court.

24. He is thus a person who has a lengthy history of involvement with drugs including drug supply, which is not a matter that aggravates this sentence but is a matter that disentitles him to leniency and also entitles the Court to be more than satisfied that on this occasion he was involved in the trafficking of illegal drugs on yet another occasion.

25. As I have said, he went into custody on 24 May 2017 and has been in custody bail refused ever since. He has taken advantage of his time in custody to work towards his own rehabilitation. He has written a letter to the Court by way of apology, and I accept that the apology is genuine. Much of the other material in that letter to the Court I disregard because it does not match the facts that are otherwise before the Court.

26. There is a psychological report which I have read and taken into account, albeit that the history given in that report is not verified by evidence on oath. Nonetheless, I do not understand it to be in dispute that he is, at the very least, a person who had a significant addiction to drugs. I accept that he began using ecstasy at the age of 35 and he is now 58. He started smoking ice at 45. He claims that it was a coping mechanism to deal with a relationship breakdown. I give that assertion limited weight. He then was smoking 1 to 2 grams each day.

27. I accept that whilst in custody in 2015, he was abstinent for a year, but I accept that almost as soon as he was released from custody he started associating with his drug using friends again, and again smoking up to 2 grams a day. I accept that he has stopped using drugs whilst in custody.

28. There are some very positive reports about him whilst in custody, including indications that he has attended various courses and sessions designed to deal with breaking reoffending, preparing himself to work on release, and in particular has undertaken something called RUSH, Real Understanding of Self-Help. The reports from all of those are positive.

29. There is also a report from the chaplain at the John Morony Centre. I accept that he has been employed there, is well regarded, and has also attended the church services there, and again, has done so positively.

30. He is also assessed as suitable to undertake the Red Cross post‑release mentor program through the John Morony Correctional Centre, which is a 12‑week program. That will assist him on his release to parole to deal with all of the factors that will re-emerge, just as they have in the past. He has been undertaking pre‑release case management with the Australian Red Cross, which I accept has been positive, and which will improve his prospects of rehabilitation.

31. Notwithstanding the contents of his letter to the Court must be taken to an extent with a grain of salt, nonetheless I accept that the work he has done in gaol of itself bespeaks his remorse and contrition, as well as being a positive indicator of his prospects of rehabilitation.

32. From the pre-sentence report before the Court I accept, as I have said, he is a 58 year old man. He is originally a citizen of the Philippines, having immigrated to Australia in 1985. He would appear to have accountancy qualifications in the Philippines, but has not been able to use those here. He has given a history of some employment from time to time, the most recent apparently in 2015, but I accept from the pre-sentence report that he has had a minimal employment history in Australia.

33. He is the father of a number of children from a number of different relationships, initially a marriage, and then a number of relationships after that. It is hard to reconcile some of the contents of the psychological report with the history given to the pre-sentence author but I accept that he is in a current relationship which, courtesy of the pre-sentence report, seems to suggest has produced their first child recently, whereas the psychological report seems to suggest they have two children together. One or other of those is accurate but in any event, he has a number of other children including adults from other relationships.

34. He is doing, in my view, everything that he can to make his release on the next occasion a positive one, which means not committing any further offences. His prospects of rehabilitation however must be regarded only as fair because of his failures in the past.

35. Mr Jones, psychologist, suggests a release intervention from a psychologist, which one might think would be desirable. It is to be hoped that that can be put in place by the Corrections authorities when his parole is to occur. His prospects of rehabilitation, whatever they might be however, are entirely connected to his ability to cease using prohibited drugs. If he can do that, it seems to me that his prospects of rehabilitation are relatively good.

36. It would be preferable that he could actually work and be employed for money rather than again returning to drug supply to fund his life. That will not be easy because of his age and limited employment history, but it is also an area where he requires assistance and intervention on his release to parole.

37. The Form 1 offence is not a minimal offence. The sum of $9,350 is a significant amount of money and it is all from the proceeds of drugs. It is an offence that ought to be taken into account in a meaningful way in assessing the appropriate penalty for the substantive matter. I do so, but it does not increase the sentence to any great extent. It is an integral part of my finding that he was involved in the trafficking of illegal drugs, that he was found in possession of the proceeds of those drug supplies, albeit not necessarily the ones that occurred just before he was arrested for these matters.

38. Taking all of those matters into account, I have concluded that without the plea of guilty this should be a sentence of 4 years. I have had regard to the statistics published by the Judicial Commission for offences of this type with some of the indicia that are around this offender. After applying the discount, that would give rise to an overall term of imprisonment of three years with a statutory non parole period of two years and 3 months.

39. There are special circumstances here, the most significant one being the need for a somewhat longer than normal period of supervision in the community to deal with relapse prevention and vocational guidance. However, that could be dealt with appropriately in my view by a parole period of 15 months. That would mean a 60% or thereabouts ratio between the overall sentence and the non-parole period. I will be setting a non-parole period of one year and nine months to take into account those findings, with the sentence backdated to 24 May 2017.

40. These are the formal orders. The offender is convicted, he is sentenced to a non-parole period of one year and nine months commencing 24 May 2017, expiring 23 February 2019, with parole thereafter of one year, three months, commencing 24 February 2019, expiring 23 May 2020, giving rise to an overall term of imprisonment of three years commencing 24 May 2017 expiring 23 May 2020.

41. I note I have taken into account the Form 1 offence. I direct that he be released to parole at the expiration of the non-parole period subject to referral, if possible, to the Red Cross post-release mentor program and psychological intervention to deal with relapse prevention.

42. I make orders in terms of short minutes of order dated 16 August 2018, viz the sum of $9,350 be forfeited to the State.

43. The 166 certificate, sequences 3, 4, 5, backup offences, dismissed.

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Decision last updated: 15 October 2018