R v Flores

[2024] NSWDC 457

District Court

New South Wales

Medium Neutral Citation:

R v FLORES [2024] NSWDC 457

Hearing dates:

15 August 2024

Decision date:

27 September 2024

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

Aggregate sentence imposed. Indicative sentences nominated: Sequence 10, possession offence: 16 months; Sequence 11, trafficking offence: 3 years and 8 months; Sequence 12, import offence: 5 years and 4 months. Sentence imposed is 6 years and 2 months with a non-parole period of 4 years to commence 30 May 2023. Eligible for release to parole 29 May 2027.

Catchwords:

SENTENCING — Drug offences — Commonwealth offences – possess marketable quantity of unlawfully imported border-controlled drug – traffic marketable quantity of controlled drug – import marketable quantity of border-controlled drug – imprisonment

Legislation Cited:

S16A Crimes Act 1914 (Cth)

ss302.3, 307.2, 307.6, 311.2 and 311.4 Criminal Code Act 1995 (Cth)

Cases Cited:

R v Nguyen; R v Pham [2010] NSWCCA 238

Category:

Sentence

Parties:

Rex;
Bryan Flores

Representation:

Counsel:
Crown: D New
Defence: D Berents

File Number(s):

2023/173033

JUDGMENT

1. The offender, Bryan Flores, entered pleas of guilty in the Local Court to the following three offences:    

1. Possess marketable quantity of unlawfully imported border-controlled drug (namely cocaine) contrary to section 307.6(1) of the Commonwealth Criminal Code;

2. Traffic in marketable quantity of a controlled drug (namely cocaine) contrary to section 302.3(1) and section 311.2 of the Commonwealth Criminal Code; and

3. Import marketable quantity of border-controlled drug (namely cocaine) contrary to section 307.2(1) and section 311.4 of the Commonwealth Criminal Code.

2. The maximum penalty for each of these offences is imprisonment for 25 years and/or 5000 penalty units.

3. The general sentencing principles that I must apply are contained in Part 1B of the Crimes Act, 1914 (Cth) (‘the Act’). In determining the sentence to be passed, I must impose a sentence that is of a severity appropriate in all the circumstances of the offence: s16A(1) Crimes Act. I must also take into account the matters listed in s16A(2) of the Act.

4. On 10 April 2024 the offender entered pleas of guilty in the Local Court.

5. The Crown tendered the agreed facts, criminal history, custodial history and the Sentencing Assessment Report. Written submissions and a schedule of comparable cases were provided.

6. The offender tendered 15 documents including a letter of apology [the full copy was tendered separately], a psychological report, letters of support, certificates and Corrective Services documents. Written submissions, statistics and two comparable cases were provided.

7. The limitations of the cases and statistics were acknowledged.

8. The nature and circumstances of the offences are set out in the agreed facts. To the extent a different account is asserted in a direct or hearsay account of the offender, I disregard it. I shall proceed on the facts as settled between the parties, supplemented where appropriate. The offender did not give evidence. The additional evidence sought to be relied upon, informing the facts and the subjective case, emanates from his letter and his hearsay representations.

9. The first time the offender, an American citizen, contemplated involvement was in early March 2023. He was approached by a South American drug syndicate. He agreed to travel to Sydney to act on their behalf and receive cocaine sent by mail from America. He was not informed how much would be sent or how frequently. He knew another person was performing a similar role on behalf of the syndicate. His travel and expenses were to be paid for by the syndicate. He had no earlier experience with Australia. The amount of money he was to receive is not disclosed. It is merely indicated he intended to return to America in a better financial position. It was evidently sufficient to lure him to another country to commit serious drug offending.

10. He arrived in late March 2023. He was recruited with the sole purpose of involvement in the planned offending. Within three days he commenced leasing mailboxes from private franchises to use as the mailing addresses for the cocaine. He used fictitious names to secure the leases. After each was opened, he used an encrypted message application to communicate with a Mexican number to advise the name and mailing address to be used to mail the cocaine. The offender provided detailed updates about his movements and expenses incurred. This reflects direct contact with another person who was instrumental in the success of the operation.

11. In response, he received details of where packages were sent and how many packages were sent to notify him when packages were to be collected. He received instructions about repackaging the cocaine into vacuum sealed bags. The offender complied with instructions. When arrested, police located latex gloves, a vacuum sealer machine and scales. Empty plastic bags consistent with those containing imported drugs were located. It is not known how much was received and repackaged. What was repackaged was not seized. It was disseminated into the community. This conduct supports the trafficking offence, which occurred between 27 and 30 March 2023. It was accepted during submissions that the amount could be classed as a ‘not insubstantial’ amount.

12. In mid-April ABF intercepted 12 envelopes directed to one of the offender’s mailboxes, each containing about 55g of impure cocaine. After investigation a further 13 similar envelopes were detected mailed to another of the offender’s mailboxes. The total pure weight of the 25 envelopes was 1,006.86g. At least two other batches were imported, although the quantity is unknown. He was involved with actual knowledge as opposed to recklessness. Investigators located communication involving the offender and his Mexican contact about these batches. It is accepted by the prosecution that without this knowledge it cannot be asserted or proven that the total imported during the period was over the commercial quantity. This conduct informs the importation offence which occurred between 20 March and 31 May 2023. This is an offence reliant upon multiple acts; that is, a rolled-up charge. These packages were not disseminated into the community. After arrest, a further two envelopes were detected. One was located in a mailbox and forms part of the importation. The Crown submissions indicate the total of the known quantity imported is 1046.28g of pure cocaine.

13. The other envelope of cocaine located after arrest was located in his residence inside an esky with the trafficking paraphernalia. The package contained 41.14g of pure cocaine. The packaging resembled the imported cocaine. This amount supports the possession offence which occurred on 30 May 2023.

14. The offender advised his Mexico contact that a significant amount of the cocaine had not been received and arrangements were made for him to return to America in late May. Around this time, he met with another member of the syndicate that he had previously only contacted by phone. He was aware ‘Athenea’ was performing a similar role. She has not been sentenced. Investigators intercepted one call. The offender confirmed he only received a little bit compared to what was expected. There was discussion that they would be pulled out. Athenea was scheduled to collect the contents of the esky.

15. Upon arrest police accessed the offender’s phone. It was set to delete messages and only three days of messages were retained.

16. There is no evidence of the value of the cocaine.

17. Each offence provision involves a marketable quantity. The range for marketable quantity of cocaine is between 2g and 2kg. The weight is only one factor that informs seriousness.

18. The offender’s role is to be determined based upon a scrutiny of what he did and when he did it. He had direct contact with the sender of the consignments. I see no utility in ascribing a descriptive title to his role.

19. This was a sophisticated operation with an unknown number of participants. The offender attended Australia with actual knowledge of his intended involvement in importation and trafficking of drugs. He was involved for a financial benefit. Although he was a long-term drug user, he was not using at the time of his involvement. He acted under direction but did so apparently willingly in performing his agreed role. He was prepared to receive and process whatever was received. He continued to perform this role over months. There was no great sophistication to his activity, although he took steps to minimise detection by using an encrypted phone, using fictitious names and wearing latex gloves when handling the drugs. His acts and the extent of his involvement recognises the importance of his role but also recognises it is not demonstrative of a higher status within the syndicate.

20. There is commonality between the offences. The offender was involved in the import, the subsequent trafficking of what was imported and possessing imported drugs.

21. Having regard to the offender’s role, the duration of his involvement, the type, quantity and purity of the drug, I assess both the importation and the trafficking as a serious example of the separate offence provisions. The possession offence is lower level. Each offence must be considered for the criminality entailed in the offence, but also that they are interrelated in importing the drugs for distribution.

22. I am assisted by the sentencing principles summarised in R v Nguyen; R v Pham [2010] NSWCCA 238 at [72], as replicated in CWS [15].

23. Within the Sentencing Assessment Report, the offender advanced he sought to extricate himself after 2 weeks. He advanced he was required to continue. He said he felt threatened and scared of the syndicate. In the psychological report he said he was unable to return home as his ticket was withheld. In the psychological report he appeared to indicate he was unaware of his intended involvement in drug importation prior to arrival. He said he realised things weren’t right when he was asked to purchase a vacuum sealer. This is contrary to the facts, and I disregard it. He travelled with knowledge he was to be involved in drug importation even if not the full specifics. This account, contrary to the facts, reflects some inconsistency and unreliability in his account. I accept he likely was scared of those he was engaged with in the operation. He was involved in organised crime. Even if he did revisit his commitment to participate he made no real effort to extricate himself. There is no suggestion he sought to obtain funds to return when he could not access his return ticket. He continued to perform the role for which he travelled to Australia.

24. The pleas are to be regarded as an early plea. The prosecution case against the offender was a strong case. There is a utilitarian benefit that flows from the early pleas of guilty. The pleas reflect more than only recognition of the inevitable. The pleas demonstrate genuine remorse, acceptance of responsibility, and a willingness to facilitate the course of justice.

25. The offender has expressed remorse in his account and to others. The offender’s expressions of remorse presented as fulsome and genuine. I am satisfied that the offender is remorseful and largely accepting of his responsibility.

26. The prevailing circumstances allow for the plea to be recognised by a specific reduction in the sentence of 25% and a non-numerical impact.

27. The offender is now aged 21. He had just turned 20 at the time offending commenced. This is an age where rehabilitation assumes greater significance. It is also an age where consequential thinking is still developing. These require amelioration to the sentence. This was not an impulsive act. It was planned and calculated. It reflects poor judgement, informed by circumstance. I endorse the submission advanced on his behalf that his involvement was as a consequence of a number of bad decisions. The offender wrote to the court identifying issues in his life and his commitment to maintaining the positive change. He directly wrote of his remorse.

28. I am assisted by a Sentencing Assessment Report and a psychological report.

29. There is evidence of drug use.

30. The offender claimed to the author of the Sentencing Assessment Report that although he previously used cannabis and cocaine, before offending and during offending, that this was only on a social basis.

31. The offender detailed a history of exposure to violence in the home and within the wider community. He was the victim of [REDACTED]. Both he and his mother on different occasions attempted suicide. He grew up in poverty, with frequent relocation until high school and was socially disadvantaged. He resided in areas where crime was evident, and he witnessed many weapon-based crimes. Not unusually, he described experiencing childhood depression which continues. The offender told the psychologist that he commenced drug and alcohol use at 13 which escalated in type throughout his teenage years. He suggested daily use over the years of cannabis, cocaine and alcohol, continuing whilst in Australia and until his arrest. He is now drug abstinent in custody and intends to maintain this achievement. I take this background into account as a mitigating circumstance. This background facilitated his normalisation of conduct including drug taking which is a factor in his ultimate involvement in this crime syndicate drug offending.

32. The psychologist opined diagnoses of adjustment disorders and three drug use disorders in remission in a controlled environment.

33. Remarkably, he was able to vary his drug taking and to obtain and retain employment. His work ethic is commendable. He was able to financially support both his mother and partner. He only had one interaction with the justice system.

34. He has secured employment whilst in custody. He presents favourably in performing this work. He has undertaken courses to assist to minimise his risk of reoffending and address criminogenic factors. Efforts have been made to secure access to a rehabilitation program upon his release and return to America. His former employer provided a reference attesting to his hard work and dedication. Surprisingly, given the addiction cited elsewhere, there is no indication of addiction impacting work attendance or performance. A friend, and son of his employer, also wrote positively of the offender’s attributes.

35. He has been on remand since his arrest on 30 May 2023. He has no family in Australia. He has no local contacts. I accept that his conditions in custody must be more onerous given the limited opportunity for visits from family or friends. The offender has written on the impact of isolation and distance. He does however have regular telephone contact with family. He has the continued support of his family overseas. This absence and separation would cause hardship and distress. There have been instances of threats and violence whilst on remand. This would only amplify anxiety. The offender told the psychologist of increased anxiety and depression since entering custody. I shall take the impact of his isolation and the impact to both him and his family as a hardship ameliorating sentence. I also take into account the adjustment disorder with the elevated anxiety as rendering his conditions in custody more onerous. It is hoped once the uncertainty of sentence is addressed some of this anxiety will abate.

36. I accept the inability to financially support his family whilst he remains incarcerated will cause hardship to them.

37. The psychologist opined the experiences of involvement in the offending and whilst on remand, informed the symptoms being in existence that were consistent with an adjustment disorder, with mixed anxiety and depression. The offender self-reported factors that placed him in the severe range for depression and anxiety. This timing is subsequent to his agreeing to be involved and does not inform his motivation.

38. But for long term abuse of illicit drugs, the offender is of prior good character which is attested to in the tendered evidence. He has no prior convictions in Australia which is not surprising given the limited period he was in the community. He commenced offending within days of his arrival. He does have some criminal matter in the United States. I have no information other than he received probation. That sentencing outcome conveys only that it was not regarded as serious enough to warrant a more severe outcome. I attribute to him the benefit of good character but note the benefit is moderated by it being a factor informing his recruitment and involvement.

39. I am satisfied that his limited criminal history was utilised in the commission of the offending. His being of good character would have assisted in the commission of the offence in that it permitted him to obtain a visa. He would not have been recruited unless he was in a position to secure a visa to travel.

40. I accept that the offender’s arrest and remand has provided a salutary lesson. The offender is assessed in the Sentencing Assessment Report as falling in the low risk of reoffending. I assess the offender’s risk of recidivism as low. Despite his long-term drug use, and interaction in the drug milieu, this offending presents as an aberration. I accept that the offender has promising prospects of rehabilitation. The evidence enables me to be satisfied that the offender is unlikely to reoffend, and personal deterrence is of limited significance.

41. I particularly note the importance of general deterrence and denunciation and the importance of reducing the level of access to illicit drugs due to the enormous damage inflicted by them upon society. I observe some drugs were disseminated into the community. The offender intentionally chose to enter Australia to commit serious crimes. It was submitted that the offender’s mental health, informed by elevated anxiety, impacted his decision making and he was not suitably placed to make a rational decision. I do not consider any aspect of his mental health lessens the significance of general deterrence. He made a bad decision informed by his circumstances and the temptation of financial benefit.

42. I am required to impose a sentence that reflects the seriousness of the offending measured against the guidance provided by the maximum penalty and allowing for the amelioration as appropriate for relevant subjective factors. I am guided also by sentencing authority on the application of principle and comparative cases.

43. I am assisted by the statistics and cases both referred to in submissions and provided. Some cases concern different offence provisions. Each case involves both different findings on objective seriousness and different subjective cases. Whilst allowing for differences, and appreciative that both parties indicated no case fell to be considered truly anomalous, each of these cases does provide some guidance.

44. In determining an appropriate sentence, I have reviewed the cases and the submissions advanced by both parties.

45. It is accepted that only a sentence of full-time imprisonment is appropriate.

46. It was submitted on behalf of the offender that factors informing setting of the non-parole period are youth, first time in custody, need for ongoing drug and alcohol counselling and the need for counselling to develop insight into the impact of his background.

47. There are three separate offences for sentence arising from the 2 months the offender was in Australia. All relate to cocaine, but there is separate criminality reflected in separate counts.

48. Counsel for the offender submitted there should be significant concurrency, given the overlap of offending with the trafficking being a consequence of the importation.

49. I accept the features of the offending, and the separate offending, well warrant considerable but not entire concurrency. Each offence entails some additional criminality and I do not determine that any one offence may be subsumed by the sentence imposed upon another.

2. The offender is convicted.

3. I shall backdate the sentence to commence from when the offender entered custody on 30 May 2023.

4. I impose an aggregate sentence. I nominate indicative sentences of:

5. Sequence 10, possession offence:    16 months imprisonment;

6. Sequence 11, trafficking offence:      3 years and 8 months imprisonment; and

7. Sequence 12, import offence:      5 years and 4 months imprisonment.

8. The sentence imposed is a term of 6 years and 2 months imprisonment with a non-parole period of 4 years to commence on 30 May 2023. Eligibility for release to parole is on 29 May 2027 and the term will expire on 29 July 2029.

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Amendment 30/9/2024: Words at [31] redacted from published version by agreement with the parties.

Decision last updated: 30 September 2024