R v Diaz Hernandez

[2023] NSWDC 598

District Court

New South Wales

Medium Neutral Citation:

R v Diaz Hernandez [2023] NSWDC 598

Hearing dates:

17 November 2023

Date of orders:

17 November 2023

Decision date:

17 November 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate imprisonment sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months

Catchwords:

CRIME — Federal Offences

CRIME — Manufacture a controlled drug cocaine —Conspiracy to import a marketable quantity of a

controlled drug

SENTENCING — Mitigating factors — Good character — No record of previous convictions — Plea of guilty – Remorse

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence —Federal offences — Impact of COVID-19 — Motive to offend

SENTENCING — Sentencing procedure — Instinctive synthesis — Findings of fact

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Cases Cited:

Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

R vNguyen; R v Pham [2010] NSWCCA 238

R v Totaan [2022] NSWCCA75; (2002) 108 NSWLR 17

The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270

Category:

Sentence

Parties:

Jesus Edelberto Diaz Hernandez (the offender)
Director of Public Prosecutions (Commonwealth) (Crown)

Representation:

Counsel:
TDF Hughes (for the offender)

Solicitors:
Toomey Defence Lawyers (for the offender)
B Scard for Director of Public Prosecutions (Commonwealth) (Crown)

File Number(s):

2021/257146

JUDGMENT – ex tempore REVISED

1. This morning Jesus Diaz Hernandez adhered to guilty pleas to two serious offences that had been entered in the Local Court. The first; a charge pursuant to s 305.41 of the Criminal Code Act 1995 (Cth) was that he, between May and September did manufacture a substance for a commercial purpose. The substance was the controlled drug, cocaine. A marketable quantity of the drug was manufactured. The second; a charge pursuant to ss 11.51 and 307.21 of the Criminal Code Act, that he, between March 2021 and about July 2021, did conspire with “J” and diverse others to import a substance, a marketable quantity of cocaine.

Guilty pleas

2. Diaz Hernandez’s guilty plea had value to the Court and the administration of justice. I will reduce each of the sentences by 25% to reflect their utilitarian value. As there will be some accumulation of penalty, I will take care that the process of accumulation does not erode that benefit.

3. Although the guilty pleas were entered after negotiation and in the face of a reasonably strong prosecution case, I am prepared to accept that those pleas had other values. They will be taken into account when it comes to my assessment of the man for sentence and will be synthesised along with all other relevant factors.

Maximum penalties

4. Both offences have maximum penalties of 25 years imprisonment. That maximum fixed by Parliament reflects the seriousness with which our community views conspiring to import border control drugs and the manufacture of a controlled drug for commercial purposes.

5. I must give proper consideration to that maximum penalty. I take it into account as one guide to the exercise of my sentencing discretion.

Agreed facts

6. Agreed facts were put before the Court. The offender did not supplement or clarify those facts by evidence on oath. In my assessment of factual matters, which are not otherwise agreed or accepted, any matter said to aggravate the sentence must be proved to the high standard of beyond reasonable doubt. Matters that are said to mitigate a sentence, should be proved on the balance of probabilities. Sometimes such findings simply cannot be made, and a court must sentence according to what is known to the court: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

7. The total amount of pure cocaine seized was 1.16 kilograms. It was the product of one of two shipments, the subject of the conspiracy. One was successful, one was thwarted.

8. The two counts had common features, but the manufacture offence was legally distinct and factually different in part. It did however involve the manufacture of the product of the successful importation. Given the fact that the border controlled drug, cocaine, was intermingled with coffee, if the importation was to have a successful outcome somebody would have had to extract it if it was to be on-sold.

9. In assessing the objective seriousness of both offences, I note that the marketable quantity of cocaine fixed in the Criminal Code Act is two grams and commercial quantity is two kilograms. The Criminal Code Act provides a structured sentencing regime by reference to the quantity of the drug by fixing commercial and marketable quantities and distinguishing between those drugs in setting such quantities: Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143.

10. The agreed facts indicate that the initial importation involved at least 1.16 kilograms of cocaine. It could be also reasonably inferred that the thwarted importation also involved cocaine. I have to take considerable care that I do not sentence for an offence with a higher maximum penalty. My focus will be on the quantity disclosed in the facts and recovered by law enforcement officers.

11. So far as a conspiracy is concerned, it includes both the successful and the unsuccessful or thwarted importation. The charge to which the plea was entered was accepted by the defence. It fits with the known facts set out in the agreed facts. It is clear that this offender, as is common in most conspiracies, acted in combination with others, an essential feature of a conspiracy charge, and that that combination was against the community interest. That combination with others is a common but not necessary feature of most importation offences.

12. My reference to “importation” relates to the Division and subdivision heading in the Criminal Code Act. I speak of importation in its most general sense.

13. What follows is a short summary of the agreed facts.

14. The Australian Federal Police commenced an investigation in 2021. The focus of that investigation was Diaz Hernandez. The investigation led to evidence which was strongly suggestive of his guilt of the two offences.

15. Diaz Hernandez was arrested at his home, where he had received the first consignment. Cocaine was recovered. It had been packaged in 35 kilograms of roasted coffee. A search warrant was executed at the home. What was found indicated a process had been undertaken using various chemical processes to extract the cocaine from the coffee.

16. The evidence about the planning of the successful consignment, was found following downloads of the offender’s mobile devices. They showed he was in contact with a person called “J”, presumed to be in Columbia. The two exchanged messages using a rudimentary code. The second consignment was also directed to Diaz Hernandez’s home address. It was seized by Columbian Law Enforcement.

17. In April 2021 the offender forwarded and then sent a receipt for $2,600 which had been converted into Columbian pesos and transferred by the offender. There was discussion between him and “J” about “a second package.”

18. The first consignment arrived in Australia in May 2021. It was sent to the offender’s home addressed to a name similar to his own. Following the receipt of the first consignment, photographs were sent back to “J”. It would appear that a recipe, or instructions, were then sent from “J” to the offender to assist him in the extraction or manufacturing process.

19. The agreed facts set out portions of that correspondence and the list of items to be obtained so as to carry out the extraction.

20. It would appear that the offender was new to the process and in a sense naive about what was required of him. But as is obvious from what was found, he was ultimately able to extract over a kilo of pure cocaine from the coffee.

21. During the period of the manufacture the conspiracy continued with the exchange of various messages about the second consignment. It was ultimately thwarted by Columbian authorities. It would appear that consignment consisted of a similar quantity of coffee and cocaine weighing 33.5 kilograms, as the agreed facts note.

22. The search warrant executed on 8 September 2021. Packets of coffee were found. Cocaine (divided into five clip seal bags) wase found in an Eski in the garage. Also found were items relating to the extraction process. As I indicated earlier, the offender’s phone was seized, and its contents downloaded.

23. Diaz Hernandez has been in custody since 8 September 2021. It is accepted that so serious is this matter that only custodial sentences can be imposed. That sentence will commence on the date he went into custody.

Objective seriousness

24. All the material before me indicates that Diaz Hernandez’s dominant motivation for engaging in both offences was a desire to obtain money to provide for his family in Columbia. Their circumstances were dire. In particular his mother had liver cancer, and her needs were great. His father also resides in Columbia. He is blind, and his needs were great. It is not in dispute that the offender had sought to provide support for his family by remitting as much money as he could to his family in Columbia. He also had to care for his own family.

25. It was submitted by Mr Hughes, who appears for the offender, that I could not find that greed was a motivating factor.

26. I am prepared to accept that the offender’s dominant motive was to provide for his family. It is a tragedy that his mother died shortly before his arrest. I am prepared to accept that he was not in a position to return to Columbia to provide any assistance to them because of COVID-19 restrictions. And, that he needed to work and provide for his family here.

27. I have to be careful in my fact finding. The only reason that drugs of this quantity are brought to the country and manufactured, is so that they can be sold to users with consequent dire consequences this trade causes, both to the users and the economy of the country. This is one reason for the heavy maximum penalties fixed by Parliament. One reason people take risks in engaging in importation offences, and their like, is to make profit, to make money; that is, greed. Although no figures were put before me, I have enough experience to know significant profits in the hundreds and thousands can be made by selling (on the street or wholesale) over a kilogram of cocaine.

28. I do not know, and there is no evidence before me, to prove to either standard what monetary rewards Diaz Hernandez could have received. I am told, and prepared to accept, that one immediate motive was the possibility that a large sum of money could be paid to someone in Columbia to advance the prospects of his mother receiving a liver transplant.

29. As Mr Scard, who appears for the Director of Public Prosecutions, points out, in the absence of more evidence, a degree of scepticism needs to be held. But that scepticism does not extend to my not accepting the extent of his mother’s illness, ultimately fatal, or the need the offender felt to provide for her.

30. Two possible scenarios were discussed with counsel, both have some support in the evidence before me. The first is that he intended to sell the cocaine and keep the profits. This scenario is based on the money sent from Australia to Columbia, the money spent on the extraction equipment and the instructions sent from Columbia on how to process the border controlled drug to the offender, who was naive in matters of drug distribution.

31. The alternative proposition is that he was part of a syndicate and intended to receive and process the drugs for a fee that could be utilised here and in Columbia.

32. On the evidence before me I am unable to accept either proposition. I cannot accept, either that, the scenario aggravating the sentence has been proved beyond reasonable doubt, nor could I be satisfied that the more mitigatory involvement in the supply has been established on the balance of probabilities.

33. I therefore must focus on what is known. And what is known, is that this offender played an important role in both offences, and ultimately, it was intended that that drug be distributed in our community to the community’s detriment.

34. There was a discussion about whether, if the offender’s moral culpability was reduced because of subjective factors, that is whether, his motivation and his mental condition could reduce the objective seriousness of the offence.

35. There is no evidence to support that proposition. Nor is it suggested that the offender’s mental condition, to which I will soon refer, was causative. I accept, as I will discuss later, that there was some correlation between the crime and the offender’s mental state, and this will be given full weight. But at this stage of the process, I do not take it into account. I note generally that judges should not take a staged approach to sentencing: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

36. In conclusion, the offender facilitated the importation and processing of a considerable quantity of a border controlled drug. The conspiracy continued at the same time as the manufacture. His role was essential and critical. There were amateurish elements to what he did. He used his own home and his own garage. Messages were sent from his own phone. He took all the risks of detection on himself.

37. To the extent that he used the garage of the family home to engage in the holding and the manufacture of cocaine, he put his children at risk. This is the last thing that he would have ever wanted to do. It is not unheard of for criminals who get an inkling that drugs are on the premises to go to those premises and help themselves to it. One of the reasons the illicit drug trade is the subject of severe penalties is because of the other crimes often associated with possession or importation of border controlled drugs.

38. Diaz Hernandez appears to have no apparent connection with any method for distributing the drugs in the community. That said, he worked with an international organisation of some sophistication, as it is obvious from the way the cocaine came to Australia in a coffee consignment. He needed instructions to do what he did. I could not find he was acting under instruction as such.

39. The necessary instructions were available to him. He was given those instructions. He had opportunity to offer feedback and seek further help. Some payment by him was required, and he invested his own cash and labour. The conspiracy went beyond the successful importation. It was, and remains, a serious example of this type of offence given the facts about the nature of the conspiracy he was engaged in. He was the sole Australian agent. This kept the size of the conspiracy to a single Australian operative.

40. So far as the manufacture was concerned, he also engaged in the process himself. This placed his family at the same risk.

41. Again, when I consider what he did and the amount of drugs involved it too is a serious example of its type.

42. In those formulations I have tried to apply the helpful general principles out by Johnson J in R vNguyen; R v Pham [2010] NSWCCA 238.

43. The sentences I intend to impose will be partially accumulated. The total sentence must reflect the overall criminality of what was done. I must, and will, attempt to take care in not double counting matters in common, including the purposes of sentencing.

Subjective case

44. No evidence was called from the offender. That said there were only a number of minor matters in the subjective material, which went to the objective seriousness of the offences. I have dealt with them. What is otherwise set out in the reports and material before me seems relatively uncontroversial and much of it was accepted by Mr Scard, for the Director.

45. I have a report of Mr Sam Albassit, psychologist, (Exhibit 1). There was an affidavit from the offender’s ex-wife (Exhibit 2). She was not required for cross examination.

46. I received: two letters from the offender (Exhibit 3), some certificates of attainment relating to courses done in gaol (Exhibit 4), and a significant bundle of references from his family, and people who know him well (Exhibit 5).

47. The last Exhibit (Exhibit 6) was, given my limited Spanish, the death certificate for his mother.

48. Mr Albassit sets out Diaz Hernandez’s family history. The report notes his feelings of helplessness being away from his family during COVID-19 while both his parents needed him. Mr Albassit, applying the DSM 5 criteria, diagnosed Mixed Anxiety Depressive Disorder, and said that he meets the criteria for that disorder almost exclusively.

49. In his report Mr Albassit detailed how a person with such a disorder, suffering from anxiety and depression, could develop poor judgment and decision-making skills. He notes that the offender described himself at the relevant time as being “scattered” and that lay description fits with the known criteria. He finds that there appears to be a correlation between his behaviour and his psychological condition and a cause for that condition in his family’s situation in Columbia.

50. He says that Diaz Hernandez acknowledged his offending, saying his actions, were undeniably “wrong”, “reckless”, “impulsive and … stupid”. There is a direct relationship, Mr Albassit says, “Between his mental health issues, [and] his poor coping strategies … it appears that his moral compass and responsibility as a community member failed him.”

51. Mr Albassit notes that Diaz Hernandez has reflected on his behaviour and shown insight. A treatment plan is outlined. It will require Diaz Hernandez’s extensive engagement with treating practitioners. This would, Mr Albassit says, “Significantly decrease the likelihood of impulsivity and self-destructive behaviours”, such as those engaged in by him in the commission of these offences. A copy of Mr Albassit’s report (Exhibit 1) will go with the warrant.

52. In his letter to me, the offender accepted responsibility for his actions. He expressed his sorrow and said that, “After being incarcerated I have witnessed the effect that drugs [have] on the community and [I] witnessed first-hand the violence it causes.”

53. He spoke of his considerable difficulties is maintaining contact with his family. He expresses his continuing love and affection for his daughters.

COVID-19

54. He has served his time on remand subject to the considerable restrictions put in place by Community Corrections to try and restrict the spread of the COVID-19 pandemic. When it is added up, he has been subject to months of lockdowns. I do not underestimate the impact of COVID-19 on prisoners. I have previously heard evidence and received material on the prisoner’s behalf, noting how long prisoners can be locked in cells for and how difficult that can be for them.

55. For those who do not understand what a lockdown means, it is not just going in quarantine as you would during COVID-19 at your own home. You are kept in a cell, often with others, who have to eat in the same room as the toilet. You have no say over who you are with. You rarely see the sky, you are rarely given an opportunity to exercise, and those lockdowns can be for considerable periods.

56. We send people to gaol as a punishment not to be punished. Long-term confinement to cells is, sadly, whatever the motives, an additional punishment that must be taken into account.

57. There are considerable and detailed references before the Court supported by people who have come to support Diaz Hernandez. He has no criminal antecedents. He was, before he committed these offences, someone who could regard himself as a community minded person of good character.

58. Good character is no excuse to commit any offence and it is sadly not unusual for people of good character to engage in offending such as this. Sometimes that fact can shield them from detection. At the same time courts have to give a person’s background proper and full consideration.

54. In Columbia he was poor and disadvantaged. He was however able to travel. He is a Spanish national and spent many years in Spain, where he met his wife and worked. He was able to improve his condition. He has attained skills and on coming to Australia in 2012 sought and received additional skills in the building trade, primarily as a tiler. He has two young daughters who he loves and has supported. He is engaged with them although where he is housed in gaol makes personal visits difficult.

55. He is committed to his family even though they are estranged from him and they, including his ex-wife, are committed to him.

56. His referees speak of their complete shock that a solid family man devoted to his children, a Christian who has volunteered in the Christian Ministry, an upstanding member of the community, did something so out of character.

57. He was, until he commenced the commission of this offence, a community minded man. It is hard to understand, apart from the matters to which I have already referred and set out in Mr Albassit’s report, why he felt so desperate to do what he did. But once he was committed, he continued for in that criminal activity some time, despite otherwise presenting as a respectable member of the community.

58. In reality, as the facts show, for a period, he was involved in drug importation and manufacture of a controlled drug. His past behaviour is, however, a good indication of future behaviour.

59. Community support and family support is particularly important, so far as a person’s rehabilitation is concerned. Too long a separation from prosocial supports in the community can break those supports and lead to a sense of helplessness or hopelessness.

60. When Diaz Hernandez is released, he will I believe, as the Sentence Assessment Report indicates, be at low risk of reoffending. The material before me demonstrates acceptance of responsibility, appropriate regret, and remorse, matters that will be taken into account.

61. I take into account the impact on his family of him being removed and placed in gaol and the impact on him of not being available for his family in Australia and his family in Columbia: R v Totaan [2022] NSWCCA75; (2002) 108 NSWLR 17.

62. One motivation, as I said earlier, for the offending, a primary motivation I find, was his immediate obligations to family in Columbia. I will also take into account his motivation and the correlation with his underlying mental condition and give it as much weight as I can.

63. I will take all those matters into account. I will also take all those matters into account when I structure the sentences.

Submissions

69. When I come to assessing an appropriate sentence, I have to balance and synthesise all relevant factors. In doing so, I have regard to guiding principles fixed by appellant courts, to some of which I have referred. I have to take into account the guiding principles in Part 1B of the Crimes Act 1914 (Cth), in particular the provisions of s 16A. I have to consider s 17 but it is not suggested anything other than a custodial sentence of some length could be imposed. I have to consider Diaz Hernandez’s prospects for rehabilitation, which are good.

70. I have received some summaries of Judicial Commission Statistics for similar offending. But, as Mr Hughes, who put the material before me, conceded such bald statistics give little guidance. In his submissions, he set out a possible range of penalties and I have considered them.

71. Mr Scard, for the prosecution, put forward a schedule of cases, which I have considered. In an entirely appropriate manner, he made it clear that the Director’s position was that a sentence that required a parole period was required. There is nothing controversial in that submission.

72. I have had an opportunity to go through the submissions with both counsel. This judgment has been informed by those discussions and the comprehensive written submissions that were forwarded to me in advance.

73. While I have had regard to the guidance offered by other courts, it needs to be made clear that every offender and every offence is individual; no one case is the same as another. Judges are given considerable sentencing discretion, but the guidance offered by other cases and the need for consistency in approach, is fundamental to any fair and just sentencing exercise.

Synthesis

74. Synthesizing all of those matters. The Court must ensure there is adequate punishment for two very serious offences. The mitigating matters to which I have referred and others, that were carefully set out in Mr Hughes’ submissions, I have sought to take them into account.

75. A lot of effort was expended by Diaz Hernandez for no reward. The only thing that happened as a consequence of his criminal activity is that he will be removed from our community for a period. He sought money that he could not obtain through hard lawful work in our community.

76. His motivation for engaging in this operation provides, perhaps to him, some justification for what he did, but it cannot excuse what he did. Ultimately it helped no one.

77. The community has to understand that anyone who involves themselves in offences such as this, within the rubric of importation type (given the heading in the Crimes Act 1914) at any level, and here it was not a minor level, it was active involvement, will face having their liberty taken from them for a considerable period of time.

78. No matter what the pressures that are placed on them by family, their desire to do the right thing and to meet their family obligations, people have an obligation to the community. That obligation is to obey the laws and accept the consequences if they break them. Diaz Hernandez took a great risk. It did not come off. As a consequence of his crimes, he has hurt not just himself but many, many others. He will bear that, as is in the material before me, particularly so far as his family is concerned, for the rest of his life.

79. What he did required a lot of effort, but it was not sophisticated. He involved himself with an international organisation who did not have the pure motives that he now professes.

80. I have sought both in the length of the sentence, and the structure of the sentence, to take into account matters in mitigation that I accepted, or I found, but there must still be significant sentences.

Orders

81. Synthesizing all those matters, I have reached the following conclusions.

82. In relation to the offence involving the Manufacture of a Controlled Drug you are convicted and sentenced to a term of imprisonment of 4 years. Your sentence is to commence on 8 September 2021.

83. For the Conspiracy to Import you are convicted and sentenced to a term of imprisonment of 6 years and 9 months. Your sentence is to commence on 8 June 2022.

84. I fix a single non-parole period of 4 years and 6 months to expire on 7 March 2026 on which date, subject to s 19AL Crimes Act1914, you are to be released to parole.

85. The effect of my order is that the Conspiracy to Import will start 9 months after you went into custody, to reflect both the plea of guilty and the need for some accumulation: see 2 above. That means the total sentence is one of 7 years and 6 months which will commence on 8 September 2021. The minimum period to be served is 4 years 6 months, meaning your earliest parole date is 7 March 2026. The sentences reflect guilty plea reductions of 25%.

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Decision last updated: 14 February 2024