R v Forero Gomez; R v Le; R v Pham; R v Stephens

[2021] NSWDC 131

District Court

New South Wales

Medium Neutral Citation:

R v Forero Gomez; R v Le; R v Pham; R v Stephens [2021] NSWDC 131

Hearing dates:

31 March 2021

Decision date:

22 April 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Forero-Gomez: Sentenced to a term of imprisonment of 6 years 3 months. Non-parole period of 3 years 6 months.

Le: Sentenced to a term of imprisonment of 4 years 6 months. Non-parole period of 2 years 8 months.

Pham: Sentenced to a term of imprisonment of 4 years 6 months. Non-parole period of 2 years 6 months

Stephens: Sentenced to a term of imprisonment of 4 years 6 months. Non-parole period of 2 years 3 months.

Catchwords:

CRIME – Manufacture prohibited drug >= large commercial quantity - Take part manufacture prohibited drug >= large commercial quantity

SENTENCING - Relevant factors on sentence - multiple offenders - early guilty pleas - one offender entered a late plea - a large commercial quantity illicit drugs converted into marketable form - role of each offender- reasons for distinguishing one from the other – all labourers for hire - short term role - critical to manufacture process - anyone could have done the job no special skills required – aware of nature of operation – parity - modest differences in one offender’s role - modest difference in offender’s subjective cases - differences reflected in findings of special circumstances - one offender changes version under cross-examination - all offenders have solid subjective cases - all are good prospects for rehabilitation - objective seriousness of offending requires adequate punishment despite offending occupying one day only

Legislation Cited:

Crimes (Administration of Sentences) Act 1999

Crimes (Sentencing Procedure) Act 1999

Drug (Misuse and Trafficking) Act 1985

Drug (Misuse and Trafficking) Act 1985

Evidence Act 1995

Cases Cited:

Afu v R [2017] NSWCCA 246

Barbaro v The Queen (2014) 253 CLR 58

Blackman & Walters [2001] NSW CCA 121

BP v R [2010] NSWCCA 159

Clarke-Jeffries v R [2019] NSWCCA 56

Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227

Green v The Queen (2011) 244 CLR 462

Hili v The Queen (2010) 242 CLR 520

Howard v R [2019] NSWCCA 109

Kristensen v R [2018] NSWCCA 189

KT v R [2008] NSWCCA 51

Lau v R [2010] NSWCCA 43.

Muldrock v The Queen (2011) 244 CLR 120

Olbrich v the Queen (1999) 199 CLR 270

Oncu and others v R [2018] NSWDC 106

Postiglione v The Queen (1997) 189 CLR 295

R v Blair (2005) 152 A Crim R 462

R v Chan [1999] NSWCCA 103

R v Cheung; R v Choi [2010] NSWCCA 244.

R v DW [2012] NSWCCA 66

R v Qutami [2001] NSWCCA 353

R v Shi [2004] NSWCCA 135

R v Simpson [2001] NSWCCA 534

R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131

Rios v R [2012] NSWCCA 8

Ruanov R [2011] NSWCCA 149

Ryan v R [2017] NSWCCA 209

Tepania v R [2018] NSWCCA 247

TheQueen v Pham [2015] HCA 39

Weininger v the Queen (2003) 212 CLR 629

Yardley v Betts (1979) 22 SASR 108

Texts Cited:

Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497. parolesupervisionandreoffending.pdf

Category:

Sentence

Parties:

Esteban Ricardo Forero Gomez (the offender)
John Capistan Le (the offender)
David Quang Dung Pham (the offender)
Jordan Stephens (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr D Cronin, with Ms S Wallace (for the offender Forero-Gomez)
Mr A Djemal (for the offender Le)
Mr J Peluso (for the offender Pham)
Mr J Korn (for the offender Stephens)

Solicitors:
Sarah Tricarico Lawyers (for the offender Forero-Gomez)
Khan Law & Associates (for the offender Le)
Nadia's Law (for the offender Pham)
MacDougall & Hydes Lawyers (for the offender Stephens)

Ms K Stanley (for Director of Public Prosecutions)

File Number(s):

2019/00174939 Forero-Gomez; 2019/00174787 Le;
2019/00174792 Pham; 2019/00174796 Stephens

Table of contents

Introduction - paragraph 1

Facts - paragraph 5

First property - paragraph 8

Second Property - paragraph 10

Fact finding - paragraph 20

Seriousness - paragraph 38

Drug supply - Assessment of Role - paragraph 43

Drugs not disseminated - paragraph 47

Guidance - paragraph 49

COVID-19 - paragraph 53

Subjective case for each offender

Esteban Ricardo Forero-Gomez - paragraph 55

Forero-Gomez Submissions - paragraph 61

John Capistan Le - paragraph 66

Le submissions - paragraph 75

Jordan Stephens - paragraph 76

Stephens – Submissions - paragraph 83

David Quang Dung Pham - paragraph 85

Pham - Submissions - paragraph 92

DPP sentencing submissions - paragraph 95

Parity - paragraph 99

Synthesis - paragraph 109

Orders - paragraph 117

Forero-Gomez - paragraph 118

Le - paragraph 120

Pham - paragraph 122

Stephens - paragraph 124

SENTENCE

Introduction

1. Each offender is be sentenced for his role in the extraction and refinement of cocaine impregnated into the bases of concrete statues and apparently illegally imported into Australia.

2. Forero-Gomez is to be sentenced for his role in the manufacture of a large commercial quantity of cocaine: maximum penalty life imprisonment standard non-parole period of 15 years - s 24 Drug (Misuse and Trafficking) Act 1985.

3. Each of the other offenders, John Capistan Le, Jordan Stephens and David Quang Dung Pham, are to be sentenced for knowingly take part in the manufacture of a large commercial quantity of cocaine: Maximum penalty life imprisonment with a standard non-parole period of 15 years.

4. Although the proceedings were heard together each offender must be sentenced on the material put forward in their own individual case. The proceedings for each co-offender were heard together so that I could ensure, so far as is possible, the parity principle requiring equal justice between co-offenders be observed.

Facts

5. In late May 2019, Police attended two isolated rural properties near Yass. The first, it appears was used for the extraction of the drug; the second for the refining of the product. Only Forero-Gomez has any connection to the first property.

6. There is no evidence before me that the owners of either property were aware of what happened there between April 2019 and June 2019. It is not suggested that any of the offenders were involved in the importation of the drugs or, the with the exception of a few buckets, the purchase or transport to the properties of chemicals or apparatus used. Although a large amount of cocaine was seized I cannot determine how much was manufactured by an offender. Each accept it was more that the large commercial quantity.

7. There are detailed agreed facts before the court. They do not differ in any significant way except to note Forero-Gomez’s involvement with the first property. This is summary of what occurred followed the execution of covert search warrants in early June 2019.

First property

8. On the first property police found evidence of cocaine “free- base” and drums and bags of chemicals. A house on the property was lined in plastic. It appears to have been used for the extraction of the cocaine. The cocaine had been impregnated into a substance which was then concealed in the base of concrete statues and imported into Australia. It is not suggested any offender was involved in the importation of the statuary.

9. Of the four offenders only Forero-Gomez is associated with this first property. Forero-Gomez had slept at this house; although for what period is unknown. A number of items linking him to the first property were found. The agreed facts note that “it was clear that cocaine had been previously manufactured by extraction at this site but it cannot be established when this took place and how much cocaine was manufactured.”

Second Property

10. In a house on the second property police found a drug laboratory. In a garage/shed they found drums of chemicals and caustic soda.

11. The property was inspected in a clandestine manner on 2 June 2019. A listening device was installed in the house. Surveillance photographs were taken of activity at the premises. The agreed facts set out changes in the house and its contents between the initial clandestine inspection and the execution of a crime scene warrant shortly after the offenders were arrested on 4 June 2019.

12. On the 3 June 2019 at about 8:30AM the four co-offenders arrived at the property. Stephens was in his work vehicle and the other 3 in a car registered to Le. They spent the day in and around the house and garage shed. The listening device picked up Forero-Gomez, assisted by two of the offenders (it is not known which ones) engaged in a separation process by which a solvent was added to the substance containing the cocaine so the cocaine could be extracted. Barrels were moved from a garage/shed to the house. Each offender was seen wearing protective gloves. Pham was seen wearing a respirator.

13. At 5:20PM the men changed their clothes and left the property. They had a pizza in Yass and then went to a Yass motel. They shared two rooms.

14. They were arrested at the motel the following morning. A quantity of cash was seized: $4,615 from the room occupied by Stephens and Forero-Gomez. $4,355 was seized from the room occupied by Le and Pham.

15. The initial clandestine and later investigations of the second property reveal the house contained a hydraulic press, multiple electric grinders, heat lamps, solvents, acids and powders. Some differences were noted between what was observed on 2 June and after the arrests. The agreed facts detail the refinement process; some of which must have taken place on 3 June 2019, while all four co-offenders were present.

16. The set up was extensive and involved a series of complex procedures. The press was to be used to form the finished product into blocks. The extent of any evidence about what occurred on 3 June was limited by the failure of some surveillance devices. Forero-Gomez was heard on a listening device directing some of the others what to do.

17. Police seized, in total, 31,827 grams of cocaine. It had a purity of 91.5%. Of that total 18,665 grams was found in a hessian bag in the kitchen. It cannot be established beyond reasonable doubt that the contents of the hessian bag were manufactured at the property. At the relevant time the large commercial quantity of cocaine was 1 kilogram. The commercial quantity was 250 grams.

18. Forero-Gomez accepts he manufactured cocaine greater than the commercial quantity of 1kg but he does not accept having knowledge of the ultimate quantity found at the premises. He is a Spanish national born in Columbia. His English is limited. At the hearing he had the assistance of a Spanish–English interpreter. He flew to Australia from Madrid on 13 April 2019 on a 3 month holiday visa. He purchased a mobile phone on 21 May 2019. DNA and other evidence established he slept at both properties.

19. The other 3 offenders accept they knowingly took part in in the manufacture of cocaine greater than the commercial quantity of 1kg but none accept having knowledge of the quantity found at both premises.

Fact finding

20. Forero-Gomez, on arrest, was assisted by a Spanish interpreter. He said he did not know his co-offenders and that he was just a worker. He claimed to be in Australia for a holiday.

21. Pham on arrest declined to comment. He had purchased some buckets from Bunnings on 2 June. Similar buckets were seen in Stephens’ ute. And similar buckets were found at the second property. They contained a chemical commonly used as a cutting agent for cocaine.

22. Of the offender’s only Pham gave sworn evidence; during the proceedings on 31 March 2021. Initially he said that he had no idea what he was being asked to do and that he only realised when he got to the house. He said he only did that day’s menial work and had no intention of returning. He was tested by Ms Stanley, Solicitor for the Director of Public Prosecutions. It soon became apparent that he could not maintain this version. He accepted that he was aware that he was to go to the property to do something illegal and that he was employed for a few days’ menial work.

23. Le on arrest made a few excuses but made no other comment.

24. Stephens told police he was only involved at the property on 3 June, and that his involvement was limited to the moving of drums. He said he expected to be at the property for a week and that he expected to receive $2,000. He identified things shown in surveillance photos. He declined to say who had organised for him to attend. He said he had bought 4 buckets. He said the $1,957 found on him was unconnected with this crime.

25. Some of the offenders put forward explanations in letters or to psychologists or Corrections Officers about why they were at the premises. A Judge is entitled to be sceptical of conclusions unsupported by any factual detail or evidence in the proceedings: Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [39]. Where the material set out reports is put forward as evidence going to an assessment of the objective circumstances of the offence, is not on oath and is repeated second hand, I could not rely on it: R v Qutami [2001] NSWCCA 353.

26. Other aspects of the reports particularly as to an offenders’ family background, work and personal affairs are uncontroversial and are relevant to their prospects and future risk. The material also allows for some understanding; of them as people, their reactions to imprisonment and their future prospects. It is the sort of material regularly presented in sentencing proceedings without the need to be supported by evidence on oath or applying the Evidence Act 1995. Were the Evidence Act to be invoked in every such instance busy lists, such as Wollongong’s, could not function.

27. None of the reports uncritically parrot claims by an offender. Part of the professional skill of the psychologist is the assessment of the history and how it accords with the hypothesised and formed views of the professional. It is not appropriate for the Court to gainsay the diagnosis made by a psychologist and admitted without objection: Ryan v R [2017] NSWCCA 209, Hamill J at [9] and [10].

28. A Judge must sentence according to what is known or agreed. Where a matter put forward in sentencing proceedings is contested, notwithstanding that the Evidence Act generally does not apply, it may not be acted unless it is established. I am obliged to make my own assessment of the evidence as part of my overall synthesis of relevant factors. If there is a contest matters in mitigation must be established on the balance of probabilities; matters in aggravation of penalty must be established beyond reasonable doubt: Olbrich v the Queen (1999) 199 CLR 270. While I must make some assessment of the role of each accused I am bound by the agreed facts in relation to them; although I can take into account any other evidence presented and my assessment of it.

29. I note that it not uncommon for some matters to remain unknown: “The question then becomes, what use is the sentencing judge to make of what is known, and of the matters urged by the parties? This is not just a series of choices for the judge between alternatives. Not only may some things be unknown, some will concern matters in which a range of answers may be open:” Weininger v the Queen (2003) 212 CLR 629

30. Reviewing the objectively established evidence what I am left with is this.

31. There is no evidence Forero-Gomez contributed financially to the cost of setting up the operation or stood to share in the profit (as distinct from receiving payment); but he played some role at both premises where the extraction and refinement took place. What he did at the premises is not known. I can find only that he well knew what was happening at both premises and that he returned to the second property with the others so that the drug could be refined.

32. It appears that some written instructions about the process were in Spanish. Forero-Gomez was the only person there on the 3 June with the language skills to interpret those instructions. He accordingly gave directions to others who assisted him in the refinement process. Forero-Gomez must have been well aware; of what he was doing, what the risks were and what was required of him. He was trusted to stay at both premises. Some basic skills were needed. His role was integral - even if he was “just following instructions.” He played his role in bringing the product into existence. His role was more active than the others. But there is no evidence he brought any special skills to the enterprise. There is no evidence to indicate he could be, as is sometimes the case, viewed as a professional “cook” or that he was connected with the importation or he came to Australia to play a part in the enterprise.

33. The surveillance evidence and the changes noted between 2 and 4 June allow me to comfortably conclude that the refinement process was also being undertaken by Le, Pham and Stephens. They were not just cleaning buckets. Each must have known that what they agreed to do was criminal. Each must have known as soon as they arrived, at the very latest, what was being done at the premises. Their roles were important to the process.

34. Neither the prosecution nor representatives of Le, Pham and Stephens sought to ascribe some type of hierarchy to roles played by each. I accept, as the prosecution submitted, that each should be seen as occupying a similar level of importance to the overall manufacture.

35. There is no indication that any offender was anything other than a labourer for hire. That is; someone ready to take the risk for some (but not the enormous) rewards participation in the manufacture of a large quantity of cocaine could bring. As usual, those responsible for the operation appear to have escaped detection and arrest, while the labourers received the punishment.

36. Forero-Gomez played a more important role as he could translate the Spanish instructions.

37. So far as each of the other is concerned they should be treated as equally culpable. Each came to Yass knowing they were to be involved in something illegal. Each would have been aware of the scale of the operation as soon as they entered the premises. None were acting under any compulsion. Each expected a reward. Each did what was expected of them. Each played a part in the extraction of the cocaine.

Seriousness

38. That a large quantity of cocaine was found at the second property is relevant. That it was a large commercial quantity is relevant to the penalty range set out in the Drug (Misuse and Trafficking) Act 1985. But considerable care needs to be taken here. That fact alone has no significant bearing on this enterprise. It is accepted that no reliance can be placed on 18 kilograms in the hessian bag and that none of the offenders was aware of the quantity or weight of the drug manufactured. It could not be proved that any particular quantity of drugs was actually manufactured by an offender. Rather, the drugs found and the detailed description of the set up are before me to support the conclusion that each was aware from the moment they first arrived at and commenced work at the property that it was a large scale commercial enterprise in which someone had invested heavily.

39. The four offenders thus involved themselves in a well-planned large scale, and sophisticated manufacture offence. Each was at the bottom of the hierarchy but they played their role in bringing these drugs into existence so that they could be supplied to the community.

40. As Mr Djemal for Le submitted; if I ask myself the question – What did they do? The answer is - undertake menial tasks at the high risk end of the process. And if I ask myself the question – where to they fit? The answer is - at the lowest level.

41. While I accept that formulation my answer does not undermine the prosecution submission that each played a critical role. Forero-Gomez was more involved than the others. There is however no other evidence to establish that he should be treated as significantly above them in any notional hierarchy of offending.

38. Police intervention meant each offender’s involvement in the matter for sentence lasted only a day. The drug that was manufactured did not enter the community and no profit was earned from its sale but, absent police intervention, it would have done so. All of the offenders engaged in the offence for financial gain. In the absence of sworn evidence other excuses could not be accepted. All these factors establish what is common to most such offences - it was committed without regard to public safety and was part of an organised criminal activity.

Drug supply - Assessment of Role

43. The role of the offender is remains very relevant to my assessment of the objective seriousness of the offence for sentence and its location in the notional range of seriousness.

44. There is no evidence any offender:

• contributed financially to the cost of setting up the operation;

• stood to share in the profit (as distinct from receiving payment);

• had any hand in the management of the operation (it is well recognized that principals will, so far as possible, distance themselves from the day to day operation,);

• had any decision making role; except in Forero-Gomez’s case, but even then it is not proved beyond reasonable doubt that he had a significant decision making role.

45. Context can be given to their role by noting that none of the offenders brought any particular skills to their task in the manufacturing process. What they did do could have been performed by anyone; except that Forero-Gomez had an ability to read instructions written in Spanish. Nothing needed to be learned by them. There was nothing particular about any of them that made them essential to the tasks performed: see for example R v Cheung; R v Choi [2010] NSWCCA 244. But, that said, each expected to be paid for what they did and thus profit from their work. It appears they were only needed for a few days. They only worked one day before their arrest. There is no evidence that any offender was connected in any other way with the planning and preparation of the enterprise.

46. Absent the involvement of day labourers and those, like Forero-Gomez, prepared to take a slightly higher role, drug manufacture businesses such as this would simply collapse: R v Shi [2004] NSWCCA 135 at [34]; R v Blair (2005) 152 A Crim R 462.

Drugs not disseminated

47. That the drugs were seized and the manufacturing process shut down by prompt police work is of “limited relevance:” R v Chan [1999] NSWCCA 103 at [21]: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [172] and [181]. Rather, as the Court made clear in Way, what is relevant to any assessment of moral culpability is the offender’s motivation or understanding. Here, each offender expected some personal profit. Each acted heedless of the consequences. That the drugs were not distributed was not due to any act of an offender. All were ready to return to work the day of their arrest and continue the process.

48. However, the criminal law is concerned with the consequences of offending:

“if the involvement of the authorities prevents the transaction from resulting in harm, it is illogical not to afford that fact appropriate weight just as in the converse situation one would take account of any damage that was a consequence of the offending:” R v DW [2012] NSWCCA 66, RA Hulme J at [117].

Guidance

49. While every offence and every offender requires individualised treatment courts must in the exercise of their undoubted sentencing discretion take guidance from a number of sources. They include; the maximum penalties prescribed; the fact there is a standard non-parole period and its length, the decisions of other courts, particularly those designed to give guidance; and of course, the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm done to the community.

50. While they are not prescriptive, careful attention to the maximum penalties and standard non-parole periods is required. The standard non-parole period represents the non-parole period for an offence taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. A process of comparing and contrasting the actual offence with the abstract one is not necessary nor is it necessary to identify features of the offence which were or were not taken into account when considering the role of the standard non-parole period; s.54B(6): Tepania v R [2018] NSWCCA 247 at [103] to [120].

51. Both my assessment of objective circumstances and the subjective case made for each offender mean there are reasons her for substantial departure from the standard non-parole period of 15 years in each case. While I am required to give content to the standard non-parole period I cannot engage in a staged approach to sentencing: Muldrock v The Queen (2011) 244 CLR 120 at [28].

52. I have had regard to the other cases to which I have been referred. The guidance offered by appellate courts and other decisions is always welcome. The consistent application of principle must always be considered. However each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74]:

“…sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases:’’ noted in TheQueen v Pham [2015] HCA 39, Bell and Gaegler JJ at [47].

COVID-19

53. Each offender has been in custody through the COVID-19 (CV-19) emergency. It is now notorious, and the subject of regular reports from Corrective Services, that as a consequence of the successful efforts taken to keep CV-19 out of our gaols prisoners; lost contact visits, had reduced access to programmes and work and were locked in cells more often than before. Each offender has endured over a year of such restrictions. Those additional hardships must be taken into account.

54. They may face them again. CV-19 has not entered our gaols but if it does early parole may be given some prisoners: s276 Crimes (Administration of Sentences) Act 1999. The offenders fall into a category that might be considered for early parole.

Subjective case for each offender

Esteban Ricardo Forero-Gomez

55. Born in Columbia in 1993 Forero-Gomez came to Australia on a holiday visa. There is no evidence before me about what he did before he came to the first property at Yass or how or why he chose to involve himself in this enterprise.

56. He has no criminal record in Australia. There is no evidence of convictions in other countries. He has been in custody since 4 June 2019. There are no prison misconduct reports. He is now in gaol far from home and family. He, as did each offender, endured the anxiety and restrictions of the CV-19 pandemic

57. A number of testimonials were tendered. His former employer speaks highly of him as commercial team leader ‘new internet’ (described as the Spanish NBN) subscriptions. He would employ him again.

58. His mother, grandmother, other family members and friends describe him as kind and family oriented. He was loved and supported as a child. He was born premature but grew to be a strong, sports oriented man. He played water polo for Columbia in the under 17 Pan America Games. Until his holiday in Australia he played competitively in Madrid.

59. His arrest has turned his family’s life upside down. Their references do not speak about the criminal before me but about the boy and man they know. Each referee relates his many virtues and each offers their unconditional support. His referees are people of good repute. They uniformly cannot understand how he came to involve himself in this crime – which they describe as a “mistake” out of character with the man they know.

60. They urge mercy, clemency and recognition of his repentance and otherwise “noble” character. Tragically, this is not, as his sister says, “a bad dream” but a very serious crime with serious consequences. He will not be coming home for some time but when he does I am confident he will have the support offered.

Forero-Gomez Submissions

61. Mr Cronin, with Ms Wallace on Forero-Gomez’s behalf, submitted each offender played much the same role; although it is accepted there was some direction by Forero-Gomez and that he was at both properties. Reliance is placed on the absence of evidence as to what he in fact did.

62. It is submitted his role was “purely menial.” I do not agree. Forero-Gomez was at both properties. His Spanish was an asset to his employers. He gave some direction to the others. When he came to the second property, he, because of his past involvement, must have known what was going to happen and what was to be done.

63. Forero-Gomez’s guilty plea came late; after committal and before the date listed for his trial. I accept that the delay was in part brought about by the late service of an important report but I am restricted in what I can allow for the plea’s utilitarian value, despite the fact a lengthy trial was avoided. Section 25D Crimes (Sentencing Procedure) Act 1999 allows only for a 10% reduction for the guilty plea’s utilitarian value. But I can take into account Forero-Gomez’s acceptance of responsibility and facilitation of the resolution of this matter when assessing his prospects for rehabilitation; acceptance of responsibility being an important step. His referees speak of his remorse and regret and understanding of the impact drug have on others.

64. He is a young man of prior good character who has by his plea demonstrated practical remorse. He will serve his sentence far from home and family where Spanish speakers are few. When CV-19 restrictions are lifted he will still have limited opportunity for personal visits. His past good reputation stands him in good stead for the future, once he has been appropriately punished.

65. Ms Stanley, for the DPP, submits that while I can give some weight to Forero-Gomez’s prior good character, his role, and the scale of the operation, he was involved in indicate a higher degree of criminality that the other 3 co-offenders and that role calls for more condign punishment. As to Forero-Gomez’s role she points out - he was at both premises. He had no car and he returned to the operation; indicating he knew more about what was going on and that he was a more willing participant than the others. The notes found on him include instructions in Spanish, instructions only he could translate. His capacity to give those instructions to others made him more important to his principles than the other three co-offenders.

John Capistan Le

66. Born in 1978, Le had one prior conviction for supplying a prohibited drug in 1997 (at the time he was only 19). But the facts and the result, a recognisance and fine, indicate this matter was low in scale.

67. I have the benefit of; Le Exhibit 1, which contains the report of Mr Cullen, his psychologist, a letter of apology, references and Corrective Service records and certificates. He accepts responsibility for his actions

68. Le was born in Australia. His parents were political refugees who fled Vietnam. His father died when he was 14 - a time of considerable trauma. Before CV-19 visits were restricted he had contact with family in Australia (mother and sister) and they can now resume.

69. He reports problems at school and bullying. He left school early. He did better at TAFE. He regularly used illicit drugs until his early 30s, something his family seem unaware of. Of the offenders he was the only admitted drug user and he has an intermittent work history.

70. He has however been working hard in gaol. He has enrolled in and completed rehabilitation programmes. His family note positive changes since he went into custody.

71. He told his psychologist that the offence occurred after the breakup of a relationship, although his ex is still supportive. Ms Cullen notes he was a poor historian but polite and forthcoming. He told Ms Cullen he wanted to “get away.” He said he was offered a job at $500 per day to “help out” and that he didn’t know what he was getting into until he arrived at the property.

72. Ms Cullen diagnoses; unresolved grief issues, despair and loss of direction and other factors associated with suboptimal mental health and related drug issues. She applied DSM 5 and found; other trauma and a stress related disorder. She notes prosocial protective feature such as; supportive family, demonstrated abstinence and stable accommodation on release. She suggests given Le’s age and growing, if late, maturity he would be assisted if he disassociates from former criminal associates.

73. In his letter Le offers appropriate apology for his actions. He told me of the horrors he witnessed in gaol and how affected he is by the stories of those whose lives were ruined by drug addiction. He said he has learned from the Remand Addiction courses and has solid plans to build on the lessons taught by his time in custody. He wishes to be there for his mother, who is now in her 80’s, and to remove some of the shame he has brought on his family. He said he has worked hard in gaol and is respected as a willing, polite and respectful worker. There is some support or those propositions.

74. His mother, who has a long history of community service to Australia, and other family members speak of a different man than that revealed by Mr Cullen. So do many other friends; who also have solid histories of achievement. They will continue to support him despite their shock at his arrest and the hurt he has caused them. They believe this is a life changing experience for Le.

Le submissions

75. Mr Djemal notes Le’s early guilty plea and expressed remorse. He makes a case for special circumstances and points to all the efforts Le has made during his two years on remand to restore himself in the eyes of his family and the community. He drew my attention to R v Cheung; R v Choi [2010] NSWCCA 244 and Judge Berman’s decision in Oncu and others v R [2018] NSWDC 106.

Jordan Stephens

76. Born in 1999. Stephens was only 19 years old when he was taken to Goulburn Gaol. Stephens has no criminal convictions. His one court appearance, from 2017 on a graffiti change, can be ignored. On arrest he participated in a police interview and made some disclosures. He said he had known the “Asian boys” for a few weeks and it was the “Spanish man” who directed him to move drums. He said he was expecting to be at the property for a week and to be paid $2,000. He did not say who asked him to participate.

77. In his letter to me he speaks of his absolute shame, and of the fear and trepidation he suffered when first in Goulbourn Gaol given the violence, some extreme, he has witnessed. That fear continues. It has not dissipated. Since CV-19 he has only had one ‘in person’ visit.

78. He promises on release to resume a responsible law abiding life. He says he now appreciates how valuable his freedom is. He has not had a chance to settle while in custody but he has found some work as a cleaner and is now a sweeper. His gaol records (Stephens Exhibit 2) indicates he has on the whole been a cooperative and hardworking prisoner, who has used his time the best he can. The gaol records note his naivety and shock on first coming into custody. A few reports note “poor attitude” but they are more than outweighed by the overwhelmingly positive nature of most of the internal gaol reports.

79. His mother’s affidavit sets out Stephen’s personal history. He grew up in Sydney. He was not academically oriented and didn’t get his HSC. He left school and immediately started an apprenticeship. Although he didn’t finish it he has been in constant employment as brickies labourer on a good wage.

80. All his parents knew before his arrest was that he was going away for week “hunting.” The next they heard he was saying “get me a lawyer.” It appears neither he nor they appreciated initially how serious the crime was. His mother speaks of the shock and humiliation she felt of vising Goulburn Gaol.

81. His Aunt, a retired psychologist, speaks of their large supportive and close knit family, of whom Stephens is the second youngest. Crime and gaol are not things that the family knew about, until now. She speaks of the need to balance proper punishment for a bad decision with the terrible consequences he is now suffering. She cautions against keeping him in gaol too long; with the risk of personal and psychological harm to him and damage to his excellent prospects for rehabilitation. She offers her support and commitment to ensure he does not reoffend on release.

82. His employer speaks of a hard working enthusiastic young man who he valued and had confidence in. He assisted in managing a large work force. He has complete confidence in him and will have him back.

Stephens – Submissions

83. Mr Korn drew my attention to Stephen’s youth and immaturity. And, to his demonstrated naivety about criminal matters, reflected in his family’s affidavits and the gaol records: Stephens Exhibit 2. The principles that apply in such matters are not in dispute and apply here. Ms Stanley did not disagree.

84. Accordingly, allowance can be made for an offender’s youth, and not just his biological age: KT v R [2008] NSWCCA 51. When sentencing youthful offenders, considerations of general deterrence and principles of retribution can be of less significance than they would be when sentencing a mature adult for the same offence as:

“…the law recognises the potential for the cognitive, emotional and/or physiological immaturity of a young person to contribute to their breach of the law. It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-20’s:” Clarke-Jeffries v R [2019] NSWCCA 56; BP v R [2010] NSWCCA 159; Howard v R [2019] NSWCCA 109.

David Quang Dung Pham

85. Born 1983, Pham has no criminal record. He is well credentialed, with skills in his field, winning team awards for service excellence. His Sentence Assessment Report (SAR) notes he has been in consistent employment while in custody. Although he is willing to engage in interventions he is assessed as a low risk of re-offending.

86. The gaol records tendered support this. Corrections Officer’s note he is “an attentive worker,” “always polite,” and “an asset to the inmate work crews.” Their records note he has seen more violence in the past months than he has ever seen in his life. He is now alert to the dangers. Gaol psychologists have helped him with coping strategies, He told Ms Ali, the SAR author that his involvement in this crime was “a gross lapse in judgement” and the worst decision he has ever made.

87. He accepted responsibility immediately. He told Ms Ali he became involved out of “naivety and misguided loyalty” not for financial gain. Pham told his psychologist, Ms Santa Brigida, he was offered $400, which he never received, to clean buckets.

88. Pham gave evidence. He initially confirmed the histories given to Ms Ali and Ms Santa Brigida. Both stories appear at odds with the agreed facts. He retreated from those propositions when cross-examined on oath and said he did travel to Yass knowing his job involved drugs but that he did not know the amount.

89. Despite that change of story and his unsuccessful attempt to minimise his culpability, he appears insightful and remorseful. He impressed me over all as someone who would not readily involve himself in crime. That said, he could not or did not give any rational explanation why he would take such a risk for so little reward. He told me of his gaol experiences, including many 24 hour lock downs. He told me of the harsh lessons learned about the impact of drugs.

90. Pham was born in Australia from parents who came here as refugees from Vietnam. He reports some family discord. He left school in year 11. He had a 15 year career with a well-known company and completed a Diploma of Business. He was starting his own business at the time he was arrested. He has no criminal record and no history of drug abuse. His psychologist noted no criminogenic factors or mental health problems, which she found perplexing, given the crime he committed and admitted. Given this prior history and in my view unexplained involvement in this crime it is not surprising she finds he is at low risk of offending on release.

85. Given Pham’s background it is unsurprising that many respected community members have provided references. They note his community and charity work and good character. His friend, Ms Ngyuen, gave evidence. She told me about the impact of custody had had on him. She confirmed the opinions of many other references that apart from this lapse he was and would remain in their eyes a good person.

Pham - Submissions

92. Mr Peluso, for Pham, drew my particular attention to the hardship Pham had suffered during the long CV-19 shutdown. He said the absence of any evidence of pre-offending bad behaviour and the evidence demonstrating Pham was a model prisoner could give me confidence he would not re-offend again. Accordingly, it was submitted that only the minimum period necessary to meet the objective seriousness of his crime should be served. He submitted that this was a case where the mitigating circumstances are such the standard non-parole period could have no weight at all in a sentencing exercise because of; Pham’s prior good character, strong rehabilitation prospects, harsh custodial experience and positive involvement in programs while in custody.

93. Given the evidence he gave and his responses to cross-examination Mr Peluso accepted however that Pham should be treated as falling on or at the same level as Le and Stephens.

94. While I accept most or Mr Peluso’s submissions that regarding the standard non-parole period cannot be accepted. Regardless of the subjective case for an offender the standard non-parole period remains one of many guides to the exercise of my sentencing discretion. A standard non-parole period indicates Parliament’s intention that heavy and retributive sentences with a focus on deterrent sentences must be considered in such matters. It is not meaningless and I must give it some content: Muldrock v The Queen at [27]

DPP sentencing submissions

95. Along with the defence submissions much of what Ms Stanley put to me has been incorporated into this judgment. I trust it does justice to their diligence.

96. Ms Stanley, in written and oral submissions in relation to each matter, drew my attention to the degree of criminality involved in the offence and the culpability associated with bringing a large commercial quantity of illicit drugs into marketable form.

97. Ms Stanley conceded that Le, Pham and Stephens fell “well below” the mid-range of objective seriousness. Forero-Gomez, she submitted, was more involved and his role justified a finding he was “slightly below the mid-range.”

98. She cited some cases where offenders rely on their prior good character to avoid detection but with respect these are not such cases. Good character did not enable the commission of these offences or help the offenders avoid detention. Rather, they were caught red handed because of good police work.

Parity

99. Each sentence must be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability - like must be compared with like. However, different personal and criminal histories may “justify a real difference in the time each will serve in prison:” Postiglione v The Queen (1997) 189 CLR 295. This principle is known as parity. It is the classic example of the need to, so far as possible, ensure equal justice: Green v The Queen (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246. In like cases that principle can also encompass the structure of a sentence and its non-parole period: Lau v R [2010] NSWCCA 43.

100. Here, Forero-Gomez was more involved and for longer. He played a more important role than the others.

101. His sentence starting point must be greater than the others and his sentence can only be reduced by 10% to recognise its utilitarian value. Pham, Le and Stephens’ sentences must be reduced by 25% as each entered their guilty pleas in the Local Court.

102. Pham, Le and Stephens all went to Yass to do a job. That day’s work has already cost them 2 years of their lives. It will cost them more time in custody and a substantial period on parole. Objectively each played the same role and that role compels the same head sentence be imposed on each.

103. There is a reason in the subjective case made for each offender for some variation in the percentage of the sentence each must spend in custody but for all I make a finding of special circumstances. The subjective cases for Forero-Gomez and Pham, while different, require the same percentage.

104. Le had a prior record for a drug supply offence. His involvement in drug use places him more at risk of re-offending than the others requiring a marginally higher percentage.

105. Stephens was by far the youngest and least mature - a factor that allows for some modest differential in the amount of time he must spend in custody before becoming eligible for consideration of release to parole.

106. Each offender will have to earn their parole but on the material available to me I am confident the State Parole Authority will grant their release as soon as practicable after they become eligible.

107. Each offender has demonstrated solid progress toward rehabilitation. Each will need assistance adjusting to normal community life on release. A substantial finding of special circumstances can be made for each. However, in so finding I am mindful of a requirement that the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offence and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534 at [59].

108. It also important to note that studies reveal that offenders who received parole supervision upon release from custody take longer to commit a new offence, were less likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497. parolesupervisionandreoffending.pdf

Synthesis

109. Each offender knowingly took part in a sophisticated and well-planned manufacture of illicit drugs. The manufacture took place in a clandestine laboratory in a rural area. Each offender took part in the manufacture for personal but relatively modest gain.

110. The maximum penalty and standard non-parole period are indications that in such matters judges need to give some weight to general deterrence, protection of the community and denunciation. The impact of the remand period on each offender has however met the need for specific deterrence.

111. It bears repeating that the manufacture of illicit drugs for distribution in our community causes considerable harm not just to those who purchase and ingest such drugs but to the community in general. The illicit trade in drugs is one of the principal sources for crime in the community. It is not just the sale of drugs; it is the crimes that are committed by those who seek to obtain funds for drugs and the destruction to family life and personal life that drugs cause.

112. I am not here to give these offenders or anyone else a lecture about the use of illicit drugs. The evidence before me indicates each during their time in gaol has had those dangers rammed home to them. But, it must be made perfectly clear that those who engage in the commercial manufacture of illicit drugs for profit will almost inevitably end up in gaol if caught. There is a community interest in appropriate and just punishment of such offences for a significant and telling period.

113. Each offender put a powerful case for moderation of the harsh penalties often imposed for matters such as this. The extensive evidence here about their individual prior good character and or efforts made while in custody (with the help of family and friends) to demonstrate by their actions that they are well on the way to rehabilitation mean that in each case further criminal behaviour is unlikely.

114. Sentences should as far as possible operate to not just punish but also to protect the community from further offending. Removal of a person from the community by gaoling them can achieve only short term protection, as they must be returned to the community. Protection of the community is helped by the successful rehabilitation of offenders:

“This aspect of sentencing assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an order to avoid offending in future, the protection of the community is to that extent enhanced.” Blackman & Walters [2001] NSW CCA 121; Yardley v Betts (1979) 22 SASR 108 at 112-113.

115. But mitigating circumstances can go only so far. I must return to what was done. Each offender played a role in bringing a large commercial quantity of illicit drugs into marketable form. Those drugs were manufactured for sale and profit. Each offender must be adequately and appropriately punished for what he did.

116. I have rounded each sentence to the modest advantage of each offender. There is no need for absolute arithmetical precision in the assessment of sentences: Kristensen v R [2018] NSWCCA 189. Despite the apparent mandatory terms of s25D the specification of a term in days or hours is not necessary: Ruano v R [2011] NSWCCA 149 at [20]; Rios v R [2012] NSWCCA 8 at [42]-[43].

Orders

117. Each offender is convicted.

Forero-Gomez

118. The original starting point of the sentence was about 7 years; after applying a discount of 10% the term of the sentence is 6 years 3 months.

119. You are sentenced to a term of imprisonment of 6 years 3 months consisting of a non-parole period of 3 years 6 months to commence on 4 June 2019 and expire on 3 December 2022. You will be eligible for consideration for release to parole on 3 December 2022 to serve the balance of term of 2 years 9 months to commence on 4 December 2022 and expire on 3 September 2025.

Le

120. The original term of the sentence was 6 years; after applying a discount of 25% the term of the sentence is 4 years 6 months.

121. You are sentenced to a term of imprisonment of 4 years 6 months consisting of a non-parole period of 2 years 8 months to commence on 4 June 2019 and expire on 3 February 2022. You will be eligible for consideration for release to parole on 3 February 2022 to serve the balance of term of 1 year 10 months to commence on 4 February 2022 and expire on 3 December 2023.

Pham

122. The original term of the sentence was 6 years: after applying a discount of 25% the term of the sentence is 4 years 6 months

123. You are sentenced to a term of imprisonment of 4 years 6 months consisting of a non-parole period of 2 years 6 months to commence on 4 June 2019 and expire on 3 December 2021. You will be eligible for consideration for release to parole on 3 December 2021 to serve the balance of term of 2 years to commence on 4 December 2021 and expire on 3 December 2023.

Stephens

124. The original term of the sentence was 6 years: after applying a discount of 25% the term of the sentence is 4 years 6 months.

125. You are sentenced to a term of imprisonment of 4 years 6 months consisting of a non-parole period of 2 years 3 months to commence on 4 June 2019 and expire on 3 September 2021. You will be eligible for consideration for release to parole on 3 September 2021 to serve the balance of term of 2 years 3 months to commence on 4 September 2021 and expire on 3 December 2023.

126. Sentences explained to offenders.

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Decision last updated: 22 April 2021