R v Embradora

[2020] NSWDC 849

District Court

New South Wales

Medium Neutral Citation:

R v Embradora [2020] NSWDC 849

Hearing dates:

6 October 2020

Date of orders:

6 October 2020

Decision date:

06 October 2020

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Impose an aggregate sentence of six years and three months and an aggregate non-parole period of three years and 10 months.

In relation to the offence on the s 166 certificate, record a conviction.

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Commercial quantity

CRIME — Dealing with money suspected of being proceeds of crime

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Crimes Act 1900 (NSW), s 193B(2)

Poisons and Therapeutic Goods Act 1966 (NSW)

Criminal Procedure Act 1986 (NSW), s 166

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Mr Gian Carlo Embradora (Offender)

Representation:

Counsel:
Mr D Grippi (Offender)

Solicitors:
Ms A Hooper (Crown)
Ms T Merriman (Offender)

File Number(s):

2018/381102

Publication restriction:

Nil

SENTENCE

Introduction

1. HIS HONOUR: The offender stands to be sentenced having pleaded guilty to the following three offences.

2. That on 13 April 2018 at Riverstone he supplied an amount of a prohibited drug, namely 11 kilograms of cocaine, being an amount not less than the large commercial quantity applicable to that prohibited drug. That is an offence under s 25(2) of the Drug Misuse and Trafficking Act and has a maximum penalty of life imprisonment and/or a fine equivalent to 5,000 penalty units. There is an applicable standard non-parole period of 15 years.

3. The second offence is that on the same date and at the same place he supplied a prohibited drug, namely 188.3 grams of 1,4-Butanediol, being an amount which was greater than the indictable quantity applicable to that drug. That is an offence under s 25(1) of the Drug Misuse and Trafficking Act and has a maximum penalty of 15 years imprisonment and/or a fine equivalent to 2,000 penalty units. There is no applicable standard non-parole period.

4. The third offence is that on the same date and at the same place he dealt with the proceeds of crime, namely $19,850 in Australian currency knowing that it was the proceeds of crime. That is an offence under s 193B(2) of the Crimes Act and has a maximum penalty of 15 years imprisonment. There is no applicable standard non-parole period.

5. The offender also acknowledges his guilt and asks that I take into account when sentencing him on the supply not less than the commercial quantity of cocaine offence a further supply cocaine offence where the amount of cocaine involved was 3 grams. That offence will have a very limited impact upon the sentence for the primary offence given the small amount involved. There is also a related offence on a certificate under s 166 of the Criminal Procedure Act that on the same date and at the same place as the other offences the offender possessed a prescribed restricted substance under the Poisons and Therapeutic Goods Act, being 12 prefilled syringes of Primoteston Depot testosterone enanthate in the amount of 250 mls.

The Facts

6. The facts were agreed and the following is taken from the facts. In March 2018 police commenced a particular strike force to investigate the importation of methylamphetamine and cocaine from South and North America to Sydney. On 2 March 2018 police received information from the United States Drug Enforcement Agency that 11 kilograms of cocaine had been seized in the United States which was destined for Sydney.

7. On 3 April 2018 a cross border controlled operation authority was authorised and as part of that operation a New South Wales police undercover operative posed as the transporter and in control of the previously intercepted 11 kilograms of cocaine in Australia. Between 7 and 10 April 2018 the undercover officer communicated with a person known as Liberate using a secure instant messaging service. Liberate contacted the undercover officer to arrange the purchase of 11 kilograms of cocaine.

8. On 10 April 2018 the undercover officer met with the co-offender, a Mr Dogan, at Bridge Road in Stanmore as previously arranged with Liberate. Dogan gave the undercover officer nine bundles of Australian currency totalling $89,950 for the 11 kilograms of cocaine. Following that, arrangements were made between the undercover officer and Liberate for the collection of the cocaine on 13 April. The undercover officer arranged to meet at the carpark of the Leichhardt Oval with the cocaine. Police had previously prepared 11 packages, each containing one kilogram of an inert substance resembling cocaine for the use in the controlled operation. The total amount of the inert substance was approximately 11 kilograms. The packages were placed in a grey coloured duffel bag with the word “Protocol” on it. There was a listening device secreted within the packages.

9. On 13 April 2018 at around 10am Dogan arrived at the carpark of Leichhardt Oval in a white Toyota HiAce van and parked near the undercover officer. The undercover officer took the grey Protocol bag from his vehicle, opened the passenger sliding door of the white Toyota van and placed the bag containing 11 packages inside it. Dogan left the carpark in the white van and police surveillance continued to monitor him. At around 12pm he drove from units at 25 North Rocks Road to Princes Street in Riverstone. At 12.20pm he stopped on Princes Street near Grantham Street in front of a stationary blue Audi convertible. This offender has got out of the Audi A3 and approached the passenger side of Dogan’s van. The offender and Dogan had the following conversation which was captured on the listening device:

Dogan, “Yo.”

Offender, “Is it big?”

Dogan, “Yeah, bro. Come around, it’s light but.”

10. The offender took the grey Protocol bag which of course had the 11 packages of inert substance from the van and walked to the blue Audi A3 where he placed the bag inside the vehicle and got into the driver’s seat. He drove to an address at 18 Swift Street. He went inside those premises taking the bag with him. Also parked facing south on Swift Street was a gold coloured Nissan X-Trail SUV. At around 12.26pm a co-offender Matthew Peffer was captured on PolAir footage walking north on Swift Street and entered those premises. At that time the offender resided at that address with his girlfriend Jamie Lee McCabe, her infant son, the co-offender Matthew Peffer and a Luke Peffer.

11. Inside 18 Swift Street the offender opened the bag and checked one of the 11 packages by cutting it open. At that point he realised the substance was not cocaine. He placed the cut package back into the Protocol bag. Peffer and the offender then placed the bag into the backseat of the gold Nissan X-Trail. The listening device then recorded the following interaction between the co-offender Peffer and the offender:

Peffer, “What’s wrong with the bag?”

Offender, “All right, come in, put it in the back, put it in the back.”

Offender, “Fuck, lost money. Pass me the other one there.”

Peffer, “What?”

Offender, “Hold on, hold on, hold on, I’m messaging the other cunt.”

12. The offender and the co-offender Peffer drove that vehicle from Swift Street a short distance to Andrew Street. They secured and left that vehicle parked on Andrew Street where it was later found by police to be locked but for the passenger side door with the Protocol bag still on the rear passenger seat behind the driver’s seat, and that address where the vehicle was left was about half a kilometre from 18 Swift Street. The offender and Peffer walked back to 18 Swift Street. At 12.43pm the offender got into the driver’s seat of the blue Audi A3 and Peffer got into the front passenger seat. There is then some driving which I do not see the need to put on the record and at around 3.03pm the offender had the following text message exchange with the co-offender Peffer:

Offender, “Stay indoors for now, yeah. Just remind Shane when you see him in person to don’t touch the car or even look and talk about it, you know, yeah.”

Peffer, “Too easy. Just got home, took the dogs round the block but, yeah, not going anywhere else.”

Offender, “Change your shirt.” Peffer, “All right.”

13. Shane was a reference to a brother of Matthew Peffer.

14. At 4.13pm police approached the gold Nissan X-Trail which was still parked on Andrew Street. It was searched and police removed the grey Protocol bag from the back seat of the vehicle. Inside were ten packages of the inert substance as prepared by the police. There was also a grey coloured plastic bag inside of which was one package which had been cut open. The gold Nissan X-Trail and the items seized from the vehicle were forensically examined. The offender’s fingerprint was identified on the exterior surface of the front driver’s side door near the opening edge. The grey plastic bag from inside the Protocol bag that contained the cut package of inert substance was forensically examined. The offender’s fingerprints were identified on both the outside and inside of the bag.

15. The police later that day searched 18 Swift Street. Matthew Peffer was the sole occupant. He advised that he lived there with his sister Jamie Lee McCabe, her infant son and his brother. The front bedroom was nominated as belonging to Jamie Lee McCabe. The police searched that bedroom and located the following items in the walk-in wardrobe on the top shelf and shelving compartment: a Frantelle water bottle and Dettol hand sanitiser bottle containing a clear liquid, a small blue box containing five resealable plastic bags with powder, an MUK branded box containing four boxes of Primoteston, a MAC cosmetics bag containing six bundles of Australian currency with a handwritten note/ledger around each bundle which amounted to $19,850.

16. Also located in that bedroom was a 2017 Collins diary. The diary contained handwritten notes consistent with a ledger nominating figures and suburbs throughout Sydney. The handwritten notes surrounding the bundles of cash located in the MAC bag in the wardrobe appeared to also be torn from that diary. Those items were forensically examined and were found to contain a 188.3 grams of 1,4-Butanediol, 3.08 grams of cocaine - that relates to the offence on the Form 1, 12 prefilled unopened syringes of Primoteston Depot testosterone enanthate which relates to the offence on the s 166 certificate.

17. The offender’s fingerprint was identified on the magnetic strip of the MUK box in which the syringes were found and there was some expert handwriting evidence which suggested that the handwriting on the diary was as written by the same person, and the offender’s fingerprints were located on pages of the Collins diary. The offender was not arrested until 25 July 2019.

Objective seriousness

18. I turn then to my assessment of the objective seriousness of the offences. In sentencing for drug supply offences the amount of drug is always a relevant but not determinative factor. No actual drugs were the subject of the supply not less than the commercial quantity offence, however, the offender expected to receive 11 kilograms of cocaine. The large commercial quantity of cocaine is one kilogram. The role of an offender is an important factor in assessing the objective seriousness of a supply prohibited drug offence. The offender’s role was to ultimately take possession of what he believed was cocaine, no doubt to arrange to onsell it for a financial gain either for himself or for others with whom he was associated. It appears from the comment “lost money” in the facts that he had himself contributed to the funds used to acquire the substance although it is also clear that someone else had an interest in the substance.

19. I cannot find beyond reasonable doubt that he solely funded the acquisition of the substance or was solely to benefit from its onsale. He was not the person who physically dealt with the undercover officer which is consistent with him being higher up the supply hierarchy than the person who did. He directed the co-offender Matthew Peffer to some degree on the day the substance was obtained and was the person who cut into one of the packages to effectively test what had been delivered. There was considerable planning involved in the offence and there was an anticipated financial gain although they are not aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act when I have regard to the nature of this offence.

20. I assess the level of objective seriousness of the supply not less than the large commercial quantity of cocaine offence to be below a notional midrange offence but not at the bottom of the range for such offending. The commercial quantity of 1,4-Butanediol is one kilogram. The amount the subject of the relevant charge is 188.3 grams, a little less than a fifth of the commercial quantity. The amount of the drug plus the containers it was found in suggests that the offence is well below the midrange of objective seriousness. The deal with the proceeds of crime offence involves $19,850. The amount of money the subject of this charge is relatively modest although it is an overwhelming inference that it was derived from the sale of prohibited drugs. I assess the objective seriousness of that offence as being well below a notional midrange offence.

21. Having regard to the offender’s previous occupation of being a martial arts fighter and trainer the testosterone that is the subject of the offence on the certificate under s 166 of the Criminal Procedure Act I consider was possessed for his own personal use. The objective seriousness of the offence is towards the low end of the range.

The offender’s subjective case

22. Turning then to his subjective case. The offender’s date of birth is 22 September 1985 so he is currently 35 years of age. He has no criminal history and there is no suggestion that the fact he had no criminal history in some way facilitated the commission of the offences. His lack of a criminal history entitles him to some leniency in this sentence.

23. There are before me both a sentencing assessment report and a psychiatric report dated 18 September 2020 by Dr Kerri Eagle, a forensic psychiatrist. The offender did not give evidence on sentence and I have had regard to that fact when assessing what weight to give to the documentary material. There was also read on sentence an affidavit of Henry Martinez, a friend of the offender. Mr Martinez was not required for cross-examination by the Crown and his affidavit confirmed some of the offender’s background. Mr Martinez remains supportive of the offender.

Family background

24. In terms of the offender’s family background, the evidence before me reveals that the offender was born in the Philippines and migrated to Australia with his family when he was about 8 or 9 years of age. There was some domestic violence between his parents and he ultimately ended up living with an aunty and at times with Mr Martinez’ family. He had a recollection of at one point when a child being choked with an electric cord by a grandfather. The offender has had four serious relationships, however, has no children. He has little to no contact with his parents. He does, as I say, have the support of Mr Martinez, a longterm prosocial friend.

Education and employment history

25. In terms of his education he completed year 12. After leaving school he worked in a factory for a time and then became involved in mixed martial arts fighting. He had some success in obtaining fight contracts but suffered a detached retina while fighting which caused him to retire from that activity about eight years ago. The offender tried then to work as a personal trainer, MMA teacher and carpentry assistant. The offender told the psychiatrist that he got involved with “the wrong people” and was using prohibited drugs. He said he had been offered an opportunity to make money easier and could not refuse in terms of how he became a drug supplier.

26. The sentencing assessment report records that the offender is currently unemployed in custody but he has been employed in the past while in custody as a sweeper, and custodial reports indicate that he was an assiduous and respectful worker. Upon his release from custody he hopes to return to personal training and MMA coaching. The sentencing assessment report records that Australian Border Force consider that the offender is an unlawful citizen. That is not something which I can specifically have regard to when sentencing him but it is at least consistent with his somewhat chaotic upbringing given he came to this country as a young child with his parents.

Substance use

27. In terms of his substance use he told the psychiatrist that he started smoking cannabis in his 20s and for two to three years was smoking up to ten cones a day. The offender told the psychiatrist that he stopped when he started training for MMA competitions. He began using alcohol when 17 and increased his consumption after his eye injury. The offender told the psychiatrist that he started using cocaine in his 20s and began using it more frequently after his eye injury. He also reported using MDMA and GBH or GBL. He described using OxyContin and intravenous steroids between MMA fights. He has not engaged in drug and alcohol rehabilitation but has expressed a willingness to do so.

Psychiatric history

28. The psychiatrist records that the offender did not display any signs or symptoms of a major mental illness at the time of the interview or at the time of the offences. He was not considered to have a personality disorder. He was diagnosed as having a substance use disorder in remission in a controlled environment.

Attitude to the offence

29. The psychiatrist records that the offender demonstrated an acceptance of responsibility for his offending and did not attempt to minimise or justify his conduct. The author of the sentencing assessment report, however, considered that the offender’s insight into his offending was not significant.

The future and risk of re-offending

30. The offender has not incurred any gaol infringements while in custody and there have been favourable reports of his attitude to work when it is available in the custodial environment. He does have a need for drug and alcohol rehabilitation and does have some prosocial support in the community. The sentencing assessment report records that Community Corrections consider that he has a medium risk of reoffending.

31. I have had regard to the fact I am sentencing the offender during the COVID-19 pandemic. I understand there have been no in-person visits in New South Wales gaols since mid-March and it is unknown when they may resume. Any person serving a sentence in custody during the pandemic is likely to have a heightened sense of anxiety in my view.

Imposition of sentence

32. The offender entered a plea of guilty in the Local Court and will receive a 25% of his sentence for the utilitarian value of his pleas. Given his early plea of guilty and his acceptance of responsibility for the offending I consider that the offender is genuinely remorseful.

33. He has very good prospects for rehabilitation given his lack of a criminal record and his behaviour in custody to date. I have had some regard to the principles discussed in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 as to the relevance of social disadvantage to sentencing given the offender’s early background.

34. I am satisfied on the evidence, as I say, the offender has very good prospects of rehabilitation and his rehabilitation has commenced during his time in custody although it is not yet complete. His prospects of rehabilitation will be assisted if he has a longer period on parole. In making a finding of special circumstances when fixing the non-parole period I have also had regard to the fact that this is his first time in custody and the impact of COVID-19 on the nature of custody.

32. He has been in custody since 25 July 2019 and I will backdate the sentence to commence from that date.

33. I will utilise the aggregate sentencing provisions, if I had not done so my approach to accumulation and concurrency would have been as follows: The two supply counts concern different drugs so there should be some accumulation of the sentences for those two offences. The proceeds of crime offence is not linked to either of the two supply offences so that sentence should also be partially accumulated on the two supply offences.

34. There is an issue of parity to some degree in this sentence. A co-offender Erkin Dogan was sentenced by Judge Mark Williams on 16 April 2019. He was sentenced for a single offence of knowingly take part in the supply of not less than the commercial quantity of cocaine. There was an offence of dealing with $18,400, which was reasonably suspected of being the proceeds of crime, on a Form 1 which was taken into account when his Honour imposed sentence. Dogan was the person who transported the substance from the undercover officer to the offender. His Honour sentenced the co-offender on the basis he had a “low position in the hierarchy” and was not involved in the financing, planning or organisation of the offence and did not direct anyone else who was involved. Dogan received a 25% discount for his early plea of guilty and was considered to be a person of good character. Dogan had a stable upbringing with strong family values. He too was a cocaine user. His Honour considered he was unlikely to re-offend. Dogan received a sentence of four years and two months imprisonment with a non-parole period of two years and one month.

35. Clearly, the current offender is to be sentenced for more offences than Dogan. In terms of the supply not less than the large commercial quantity of cocaine offence this offender’s role was, in my opinion, to a significant degree, greater than that of Dogan. Their subjective cases are reasonably similar, although the current offender was a little older and had less of a stable upbringing. I have had some regard to the sentence Dogan received although clearly the current offender will receive a significantly greater sentence given the number of offences and his role in the most serious of them.

36. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. The supply of prohibited drugs in our community is causing untold damage to it, and in particular to our young people.

37. In relation to the supply not less than the large commercial quantity of cocaine offence I have not lost sight of the fact that an inert powder was involved but the offender was expecting to receive real cocaine. There was no actual threat to the community posed by the offender’s conduct due to the fact an inert substance was involved.

38. Those that involve themselves or seek to involve themselves in the supply of the large commercial quantity of prohibited drugs for financial gain must expect to receive significant sentences. The sentence must act as a deterrent to this offender and others who may be tempted to engage in such offending.

39. The maximum penalties and in relation to the supply not less than the large commercial quantity of cocaine offence, the standard non-parole period, has been taken into account as a legislative guidepost. I have departed from the standard non-parole period because of my assessment of the level of objective seriousness and my finding of special circumstances.

40. Prior to the application of the discount for the plea of guilty the starting point for each of the indicative sentences as follows: For the supply not less than the commercial quantity of cocaine, seven years imprisonment. The supply 1,4-Butanediol, 16 months imprisonment, and for the deal with the proceeds of crime offence, 16 months imprisonment.

41. The offender is convicted of the three offences to which he has pleaded guilty. The sentences you will hear me first announce are what are called indicative sentences. You will then hear me announce an aggregate sentence which is the sentence and the non-parole period that you will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence I will tell you the date it starts from, the date it ends and the date when you are first eligible for parole.

42. On the supply not less than the commercial quantity of cocaine offence there is an indicative sentence of five years, three months imprisonment with an indicative non-parole period of three years and two months. On the supply 1,4-Butanediol offence there is an indicative sentence of 12 months imprisonment. On the deal with the proceeds of crime offence there is an indicative sentence of 12 months imprisonment.

43. I impose an aggregate sentence of six years and three months with an aggregate non-parole period of three years and 10 months. The sentence commences on 25 July 2019 and expires on 24 October 2025. The non-parole period expires on 24 May 2023.

44. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period which is 24 May 2023. Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date.

45. In relation to the offence on the s 166 certificate, the possession of steroids, I simply record a conviction under s 10A of the Crimes (Sentencing Procedure) Act. No further penalty is imposed.

Orders

1. Impose an aggregate sentence of six years and three months and an aggregate non-parole period of three years and 10 months.

2. In relation to the offence on the s 166 certificate, record a conviction.

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Decision last updated: 16 February 2021