R v Hernandez; R v Mendoza; R v Tiznado; R v Garcia; R v Munoz - [2019] NSWDC 882

District Court

New South Wales

Medium Neutral Citation: R v Hernandez; R v Mendoza; R v Tiznado; R v Garcia; R v Munoz [2019] NSWDC 882
Hearing dates: 16 & 17 December 2019
Decision date: 19 December 2019
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
In respect of the Commonwealth offence, each offender is sentenced to nine months imprisonment, with the exception of Ms Hernandez. I sentence her to eight months imprisonment in relation to that offence. In the case of each offender, that sentence runs concurrently with the aggregate sentence

Hernandez – Convicted. Sentenced to a total aggregate sentence 5 years; non-parole period 2 years 9 months imprisonment.

Mendoza – Convicted. Sentenced to a total aggregate sentence 8 years imprisonment; non-parole period 4 years 9 months imprisonment.

Tiznado – Convicted. Sentenced to a total aggregate sentence 5 years imprisonment; non-parole period 3 years imprisonment.

Garcia – Convicted. Sentenced to a total aggregate sentence 7 years imprisonment; non-parole period 4 years 3 months imprisonment.
Munoz – Convicted. Sentenced to a total aggregate sentence 5 years 6 months imprisonment; non-parole period 3 years 3 months imprisonment
Catchwords: SENTENCE – multiple breaking entering and stealing – totality – parity – effect on third parties – circumstances of custody for foreigners – professional burglars from overseas
Legislation Cited: Crimes Act 1900 s 93T; s 193B
Crimes (Sentencing Procedure) Act 1999 s 21A ;
s 17A; s 21A; s 54A
Migration Act
Cases Cited: Attorney General’s Application Number 1 (2002) 56 NSWLR 147
Bugmy [2013] HCA 37
De La Rosa [2010] NSWCCA 194
Holder v R (1983) 3 NSWLR 245
Jimmy v R [2010] NSWCCA 60
Johnson v R (2004) 78 ALJR 616
MAK (2006) 167 ACrimR 159
Mapp [2010] NSWCCA 269
Markarian v R (2005) 228 CLR 357
Mill v R (1998) 166 CLR 59
Muldrock v R (2011) 244 CLR 120
Pearce v R (1998) 194 CLR 610
Postiglione v R (1997) 189 CLR 295
Quintero and ors [2018] NSWCCA 190
R v Ponfield (1999) 48 NSWLR 327
R v Tepania [2018] NSWCCA 247
R v XX (2009) 195 ACrimR 38
Veen No 2 (1988) 164 CLR 465
Category: Sentence
Parties: Regina (DPP Cth)
Diana Elizabeth Veloso Hernandez (offender)
Eduardo Rual Diaz Mendoza (offender)
Matias Ignacio Wevar Tiznado (offender)
Guiovanni Hernan Saladrigas Garcia (offender)
Victor Manuel Parades Munoz (offender)
Representation:
Counsel:
Mr Looms (offender Diana Elizabeth Veloso Hernandez)
Ms Avenall (offender Diaz Mendoza)
Mr Trevallion (offender Wevar Tiznado)
Mr Quilter (offender Saladrigas Garcia)
Mr Valentin (offender Parades Munoz)

Solicitors:
Mr Reville (DPP Cth)
Mr Stidwill (offender Veloso Hernandez)
Ms Van der Velde (offender Daiz Mendoza)
Mr Shenouda (offender Wevar Tiznado)
Mr Marsden (offender Saladrigas Garcia)
Ms Wearin (offender Parades Munoz)

File Number(s): 2018/00348035 - Hernandez; 2018/00348038 - Mendoza; 2019/00178100 - Mendoza; 2018/00353808 - Tiznado; 2018/00348041 - Garcia; 2018/00353810 - Munoz
Publication restriction: No

Judgment

I turn now to what I propose to sentence each prisoner to and I will start with Ms Hernandez.
Ms Hernandez, in your case, I propose to sentence you to a total of five years imprisonment with a non-parole period of two years, nine months. You will be eligible for release to parole on 26 August 2021.
In the case of Mr Mendoza I propose to sentence you to a total of eight years imprisonment with a non-parole period of four years, nine months. You will be eligible for release to parole on 27 August 2023. It should be understood, in Australia those differences of sentence, given the common crimes you have committed, recognise substantial differences in your individual circumstances.
With regard to Mr Garcia, I propose to sentence you to a total of seven years imprisonment with a non-parole period of four years, three months. You will be eligible for release to parole on 26 February 2023.
In the case of Mr Tiznado, I propose to sentence you to a total of five years imprisonment with a non-parole period of three years, expiring on, 20 November 2021.
In the case of Mr Munoz, I propose to sentence you to a total of five years, six months imprisonment with a non-parole period of three years, three months. You will be eligible for release to parole on 21 February 2022.
I will give what are called “indicative sentences” in relation to that aggregate sentence. In respect of each offender, I propose to sentence each offender in respect of the Commonwealth offence to nine months imprisonment, with the exception of Ms Hernandez. I sentence her to eight months imprisonment in relation to that offence. That sentence runs concurrently with the aggregate sentence, for the reasons we discussed on the last occasion.
The five prisoners before me I have just spoken to and indicated certain matters, such as referring to each of them by their last given name as it appears in the form of the charges brought against them. There is considerable overlap in the offending, particularly as between Mr Mendoza, Ms Hernandez and Mr Garcia in one block and as between Mr Munoz and Mr Tiznado in respect of another block of offending, although there is some overlap between those two groups, if I might call them that.
Each of the offenders is a Chilean citizen and each of the offenders came to Australia in late 2018. Mr Munoz was the first to arrive on 1 September 2018 and I note in relation to him, for the purposes of my judgment, that he was born in September 1991 and was, at the time of the offending, 27 years of age.
Mr Tiznado was the next person to arrive from Chile. He arrived in Australia on 20 September 2018 and he was born in September 1995 and was, at relevant times, as I understand it, 23 years of age.
Mr Garcia was born in March 1996 and was 22 years of age and is the youngest of the offenders with whom I am now concerned. He arrived in Australia on 5 October 2018.
Ms Hernandez and Mr Mendoza are partners. They have been in a relationship for five years as of October this year. Ms Hernandez was born in October 1982 and was 36 years of age. She was the oldest of the five offenders but that is a matter of no significance in this case, given her marital relationship to Mr Mendoza and the absence of any criminal history on her part in Australia and in Chile. Mr Mendoza and Ms Hernandez arrived in Australia together, on 11 October 2018. He was born in October 1990 and was 28 years of age.
Dealing with issues common to all the prisoners, I am satisfied that they each pleaded guilty at the first reasonable opportunity in accordance with the legislative provisions and each of the offenders, in relation to the State matters, will receive a discount of 25 per cent upon the otherwise appropriate sentence that I impose to recognise the utilitarian benefit of the pleas of guilty.
Each of the offenders will further receive a 25 per cent discount upon the otherwise appropriate sentence in respect of the Commonwealth matter that I am concerned with, which I will come to in a moment. They are commonly charged in relation to that matter in circumstances I will outline. I am entitled, in sentencing for a Commonwealth matter, in the context of the New South Wales Court of Criminal Appeal decision of Xiao, to recognise both the utilitarian benefit of the plea of guilty and the facilitation of the course of justice by a plea of guilty. Thus, the sentences I have foreshadowed reflect, in every instance, a discount of 25 per cent.
If I might deal with the Commonwealth matter discretely, although it is inevitably bound up with the factual matrix with which I am concerned, each of the prisoners, at different times, although it was, in the case of Mr Mendoza and Ms Hernandez at approximately the same time given they came to Australia together, made a false declaration to Immigration officials regarding their intended address in Australia. The Agreed Statement of Facts asserts,

“The purpose of this false declaration was to avoid detection by Australian authorities while committing offences.”

There is an implication in that part of the Agreed Statement of Facts that each of the offenders came into the country for the purposes of committing offences. I will come back to that matter as it relates to Ms Hernandez shortly. Two of the offenders have clearly admitted that they did so. Two of the offenders have not admitted that they did so, but it is clear in my view, and I can be quite satisfied beyond reasonable doubt, that they in fact did enter the country for the purposes of committing offences.
Mr Munoz, Mr Tiznado and Mr Garcia each made a booking at a hostel on their arrival but none of them attended for their booking. This is, of course, very significant, given the three men arrived separately. It would seem to suggest that, at least by implication, although each of them has not directly addressed it in the cases they have presented, that they did not know one another before they came into the country.
In each case involving these three offenders, when the hostel attempted to debit the nominated credit card the payment was rejected. I place no emphasis upon the words “the nominated credit card”, other than a credit card in each case was nominated. Whether it was the same credit card or not, I do not know.
The offenders each provided their hostel address to Immigration officials as a place they intended to reside. I take it that is an address they provided in the incoming passenger card required to be filled in by all visitors to this country, as well as citizens.
Mr Mendoza and Ms Hernandez nominated the same hostel as Mr Garcia as the place they intended to reside but they never attended the hostel.
Ms Hernandez gave an account of Mr Mendoza’s credit card not being accepted for the booking. Whether that is true or not I cannot say, but certainly her assertion in that regard had some implications for an understanding of the basis upon which she came into this country and the reliance she had upon her partner whilst in this country, at least initially.
In relation to the Commonwealth offence, this is not as serious an offence in breach of the Migration Act as might be an offence that involved false declarations in relation to entry to the country for the purposes of committing more serious crimes, such as terrorism related offences. This is not an offence that involved a false declaration in relation to matters concerning items that were being brought into the country, such as border controlled drugs or items that otherwise would be subject to duty.
The offence has, as the Crown points out, a maximum penalty under Commonwealth law of 10 years imprisonment. I have determined, having regard to the objective seriousness of the offence and relevant subjective matters that an appropriate sentence for each offence should be 12 months, with the exception of Ms Hernandez; in her case, slightly less, having regard to the circumstances in which she revealed the booking for the hostel was one made in the name of or by her partner. The precise circumstances in which those two people filled in their incoming passenger forms, I do not know and it was not a matter examined by any party when both prisoners gave evidence before me.
All the offenders have pleaded guilty to the offence of participating in a criminal group. The only distinction between the offenders relates to the particulars. The particulars reflecting, in effect, the period of time they were in Australia from the time of entry through to the time of their respective arrests. Each for the offences of participating in a criminal group is to be dealt with on a Form 1. All of those particular offences on Forms 1 are to be taken into account in respect of the common offence in respect of each offender of ‘knowing deal with the proceeds of crime’. Participation in a criminal group contrary to s 93T Crimes Act 1900 carries a maximum penalty of five years if dealt with as a discrete offence in the District Court.
As far as ‘knowingly deal with the proceeds of crime’ is concerned, that carries, in each instance pursuant to s 193B Crimes Act 1900, a maximum penalty of 15 years imprisonment. There is no standard non-parole period.
The particulars in relation to these matters, being offences committed after each prisoner embarked on a course of conduct of committing essentially the breaking and entering of private properties are as follows:

Mr Garcia sent a total of $8,500 to Chile on 10 October 2018 and 22 October 2018. He provided his own passport as identification and nominated the recipients as his mother and a brother.

In relation to Mr Mendoza, he sent a total of $8,850 to Chile on 20 and 24 October 2018.

Ms Hernandez sent a total of $8,136 to Chile on 20 and 22 October 2018.

Mr Munoz sent a total of $13,118 to Chile over five transactions between 10 October and 23 October 2018.

Mr Tiznado sent a total of $17,000 to Chile over seven transactions between 4 October 2018 and 12 November 2018.

These offences within the range of offences of this type, having regard to the sums of money involved, are at the lower end of seriousness, just by reference to the sums of money concerned. In the case of the respective offenders, bearing in mind I am taking into account the matters on the Form 1, I have determined, in relation to Mr Garcia, the indicative sentence for him should be 18 months, as it would be for Mr Mendoza. For Ms Hernandez, the indicative sentence I will fix is 15 months imprisonment. Having regard to the slightly more substantial sums of money sent by Mr Munoz and Mr Tiznado, I propose to impose indicative sentences for those offences of 20 months in each instance.
All three offences that I have just discussed are offences that provide a context for a consideration of the offending with which I am concerned. Participation in a criminal group reflects what is self-evident from the facts of the matter of the close relationship between various prisoners in various ways in the course of committing particular offences. It reflects upon pre-planning and particularly what I have described in the course of submissions as “premeditation” and deliberation by each of the offenders, including Ms Hernandez, I hasten to say, when she agreed to participate in the joint criminal enterprises that extended over a considerable period of time.
For the four men who came into the country intending to commit crimes in this country, as I have found, notwithstanding some protestations to the contrary by two of the offenders, they had ample opportunity to deliberate upon what they were about to embark upon and continued with their course of conduct until they were either arrested leaving the country, as was the case in the situation of Mr Munoz and Mr Tiznado or, in the case of Mr Garcia, Mr Mendoza and Ms Hernandez, when they were arrested at an address at Olympic Park on 27 November 2018.
It would seem, that when arrested they were interrupted in the course of their criminal activities. I cannot conclude beyond reasonable doubt they were going to commit more crimes. But certainly I have no evidence as to when they intended to leave the country. I bear in mind, in relation to Ms Hernandez and Mr Mendoza, by reference to some evidence she gave about coming to Australia for a “honeymoon” or a “second honeymoon” or a “holiday”, by the time she was arrested she had been in the country for over six weeks.
So far as the arrest of Mr Munoz was concerned, that occurred on 22 November 2018, after he booked a flight home the day before. Therefore, he had no pre-plan for a specific date of departure when he arrived in Australia. As for Mr Tiznado, he was arrested on 21 November 2018, having pre-booked a flight back to Chile the day before, 20 November and the same observation could be made about him. It is, to my mind, something of a significant coincidence that they booked flights the day after one another. Clearly, they were not prepared to travel together, for fear of attracting suspicion I would imagine.
I have taken into account all the time that each prisoner has been in custody. Thus, the sentences in relation to Mr Tiznado will dated from 21 November 2018; Mr Munoz’s sentences will date from 22 November 2018; and the other three prisoners, their sentences will date from 27 November 2018.
Thereinafter consideration of those three offences that are essentially common to each of the offenders, I have to deal with in this sentencing exercise a range of offences committed between 6 October 2018 and 26 November 2018. Just to summarise the position, perhaps dealing with the three offenders with most in common between themselves first, Ms Hernandez, over a period of time from 18 October 2018, was involved in three aggravated breaking and entering and stealing offences; five breaking, entering and stealing; and one offence of entering lands with intent to steal.
Mr Mendoza was involved in three aggravated breaking, entering and stealing offences; one breaking and entering with intent to steal; five breaking, entering and stealing; and two enter lands with intent to steal.
Mr Garcia was involved in eight breaking, entering and stealing offences; two aggravated breaking, entering and stealing; one enter lands with intent to steal, over a period of time. His offences commencing, in terms of dishonesty offences, from 6 October 2018. Mr Mendoza’s offences commencing on the day before Ms Hernandez started committing breaking and entering and stealing crimes, that is, on 17 October 2018.
With regard to Mr Tiznado, he committed five breaking, entering and stealing offences and one enter dwelling with intent to steal offence. In terms of these types of crimes, they commenced on 15 October 2018.
Mr Munoz, his crimes of breaking, entering and stealing amounted to six such offences, one offence of enter dwelling with intent to steal. Those offences commenced on 7 October 2018.
I have referred to the number of offences in a global fashion. Unfortunately, if that is the correct expression, not all prisoners have been dealt with in the same way as I have pointed out. Some have particular offences which are common offences for discrete sentence, others have the same offence where they have been involved in a common purpose or a joint criminal enterprise to commit the crime and have the offence in question on a Form 1.
I note, in relation to Ms Hernandez, one of her aggravated breaking, entering and stealing offences is in fact, on a Form 1. But, in fixing the appropriate sentences, I hope I have had proper regard to the distinction to be drawn between sentencing for a principal offence and taking the matter into account on a Form 1.
With regard to Ms Hernandez, a principal offence for sentencing, which is referred to as sequence 4 in relation to the offences relating to her, an offence at Chiltern Crescent, Castle Hill, is an aggravated breaking, entering and stealing. All the aggravated breaking, entering and stealing I point out, carry a maximum penalty of 20 years imprisonment. They each have a standard non-parole period of five years imprisonment.
In respect of each of the offenders, that is, Ms Hernandez, Mr Mendoza and Mr Garcia, charged with those types of crime, they have pleaded guilty to committing a breaking and entering and stealing as a serious indictable offence and, in each instance, the circumstance of aggravation pleaded is that of being “in company”.
With some exceptions, most of the breaking, entering and stealing offences are offences where the Crown is unable to say who did what and whether people were particularly in company but were offences, on the Crown facts, that were committed as part of a joint criminal enterprise.
In respect of that offence that I have identified in relation to Ms Hernandez, there are two matters on a Form 1. One, an offence of breaking, entering and stealing at Henson Street, Brighton-Le-Sands on 17 October; the other a breaking, entering and stealing at an address at The Esplanade, South Hurstville on 27 October.

There is a further breaking, entering and stealing at The Appian Way in South Hurstville on 21 November, as well as an offence of breaking, entering and stealing at another address at The Esplanade, at Hurstville, on 21 November 2018. The breaking and entering and stealing offences, of course, carry a maximum penalty of 14 years in each instance.
She committed another offence of breaking, entering and stealing at Rosslyn Street, Bellevue Hill on 22 November. She committed an aggravated breaking, entering and stealing in company at Gipps Street, Drummoyne on 26 November. In respect of that matter, I am required to take into account the aggravated breaking, entering and stealing that I referred to earlier occurring in Balintore Road, Castle Hill on 20 or 21 November 2018 and an offence of enter lands with intent to steal at Fairweather Street, Bellevue Hill. The offence of enter lands with intent to steal, when dealt with as a principal offence, carries a maximum penalty of seven years imprisonment.
In relation to Mr Mendoza, a number of his offences, as I have pointed out, are common, although they are treated in somewhat different ways, depending upon whether they are identified as a principal offence or a matter on a Form 1.
He pleaded guilty to a breaking, entering and stealing with which Ms Hernandez was not involved, committed on 17 October 2018 at Henson Street, Brighton-Le-Sands. He was involved in a breaking, entering and stealing in company in circumstances of aggravation at Chiltern Crescent, Castle Hill on 18 October. He was involved with unknown people in an aggravated breaking and enter and damaging property in company at the Kentucky Fried Chicken establishment at St Peters on 22 October 2018. He pleaded guilty to an offence of breaking, entering and stealing at The Esplanade, South Hurstville, committed on 27 October. He also pleaded guilty to a breaking, entering and stealing at The Appian Way, South Hurstville, committed on 21 November 2018. In respect of that offence, I am required to take into account, on a Form 1, two offences: enter land with intent to steal on 10 November, an offence committed at Crawford Street, Blakehurst and a breaking, entering and stealing, again at The Esplanade, South Hurstville, on 27 November.
He was involved in the Rosslyn Street breaking, entering and stealing at Bellevue Hill matter on 22 November. In respect of that matter, there is a matter on a Form 1 of entering lands with intent to steal, which, as I earlier said, would carry a seven year term of imprisonment if dealt with on indictment in this Court. That was committed on 22 November 2018.
He also was involved in the aggravated breaking, entering and stealing in company at Gipps Street, Drummoyne on 26 November and asks me to take into account an aggravated break and enter with intent to steal at Rickard Street, Five Dock, which, is not far away from Gipps Street, Drummoyne, committed on 26 November 2018.
Mr Garcia commenced committing breaking, entering and stealing offences, on 6 October, 2018. It is not without some significance that that course of conduct commenced the day after he arrived in Australia.
He committed a breaking, entering and stealing at Wiley Street, Waverley on 6 October 2018. He committed another breaking, entering and stealing at Pioneer Drive, Castle Hill on 7 October 2018. He asks me to take into account another breaking and entering and stealing committed at Louisa Road, Birchgrove in October 2018, and a breaking, entering and stealing at Henson Street, Brighton-le-Sands committed on 17 October 2018. Those two matters are on a Form 1.
He was involved in the aggravated breaking, entering and stealing in company at Chilton Crescent, Castle Hill in conjunction with Ms Hernandez and Mr Mendoza. That occurred on 18 October 2018. He was also involved in the breaking, entering and stealing at The Esplanade, South Hurstville on 27 October 2018, which requires a discrete sentence. A further breaking, entering and stealing for sentence is the offence at The Appian Way committed on 21 November 2018 and in respect of that matter I am required to take into account two offences of breaking, entering and stealing, one at The Esplanade, South Hurstville on 21 November, another at Roslyn Street, Bellevue Hill on 22 November 2018 and the enter lands with intent to steal matter at Fairweather Street, Bellevue Hill on 22 November 2018. Further, as with Ms Hernandez and Mr Mendoza, he was involved in the aggravated breaking, entering and stealing in company at Gipps Street, Drummoyne on 26 November 2018.
I should point out, although it is self-evident from not having referred to it before, there is no standard non-parole period in respect of any of the other offences with which I am concerned other than the aggravated break, enter and steal matters.
Mr Tiznado committed his first break, enter and steal matter on 15 October. He did so at an address on the Pacific Highway, Turramurra. He committed that offence in conjunction with Mr Munoz on 15 October. He and Mr Munoz also jointly committed a break, enter and steal at Bundara Avenue, Wahroonga on 15 October 2018. He committed a break, enter and steal at Womerah Street, Turramurra on 25 October 2018, and would wish me to take into account an enter dwelling with intent to steal committed at Lomond Place, Castle Hill. To enter dwelling with intent to steal would carry a maximum penalty of 10 years imprisonment if dealt with on indictment or by committal for sentence as a discrete offence.
He committed the offence of breaking, entering and stealing at an address on the Pacific Highway, Pymble on 25 October 2018. That was an offence also committed by Mr Munoz. Mr Tiznado committed a breaking, entering and stealing at Ebsworth Street, Zetland on 27 October 2018. This is an offence with which Mr Munoz is not charged.
In relation to Mr Munoz, in respect of the breaking, entering and stealing that he has pleaded guilty to at Pioneer Drive, Castle Hill, I am required to take into account on a Form 1 three offences of firstly breaking, entering and stealing at Louisa Road, Birchgrove on 7 October, entering a dwelling with intent to steal on 21 October at Lomond Place, Castle Hill and a breaking, entering and stealing at Womerah Street, Turramurra on 25 October 2018. That is an illustration of what I was talking about earlier; an offence on a Form 1 for him which happens to be a principal offence for sentencing of Mr Tiznado, with Mr Tiznado asking me to take into account in relation to that principal offence a matter on a Form 1. There is, I regret to say, no consistency in this charging process.
I have one other complaint, if I may call it a complaint. The Statement of Facts is not complete. I raised this matter with the Crown and nothing I say is to be taken as a criticism of the Crown or the prisoners. But it is quite clear that I have not been given the full information as to the value of property that was stolen by the various prisoners. I was advised from the Bar table that there may have ended up a dispute over particular facts. I am to take a guide from the expression used in the Agreed Statement of Facts as to the character of the property stolen, in other words, “expensive watches” or “valuable jewellery” and the like. In some crimes where cash has been taken or a particular bundle of property is particularly identified as having a value, I can have some idea of the character of the offending involved. I am somewhat dismayed that the mere threat of some dispute over facts should prevent the full facts being made available to a court. That is what judges are here to do, to decide the facts.
One might have thought, not referring necessarily to these prisoners but to people generally, that people who embark on a course of conduct of dishonesty who seek to dispute the value of property that was taken by them do not come to court with particularly enhanced credibility, particularly in circumstances where the people who have had their property stolen would be usually law-abiding citizens without the burden of a reputation for dishonesty.
Anyway, be that as it may, I have to make the best I can of the available material in gleaning the objective seriousness of the offending. I appreciate, of course, in relation to breaking, entering and stealing matters that the value of the property stolen is just one matter to take into account but in the context of dishonesty offences, the value of the property or the character of the property, if it be property of considerable sentimental value such as wedding rings and engagement rings, is an important matter in considering the objective seriousness of the particular offending.
Having said that, I now turn to some general principles that apply across the board to each of the prisoners which I am required to take into account, and I approach these matters in no order of importance. Firstly in respect of breaking, entering and stealing matters, I am mindful of what the Court of Criminal Appeal, particularly in the judgment of Grove J, said about the character of sentencing for breaking, entering and stealing matters, simpliciter at least, in the guideline judgment known as Attorney-General’s application (No 1); R v Ponfield (1999) 48 NSWLR 327. There the Court, declined to issue a guideline in respect of breaking, entering and stealing matters simpliciter because of the complexity of circumstances that arise in relation to some offending.
I am also mindful of the caution I must exercise when considering the wisdom of Grove J, one of the best judges I ever appeared in front of in the Supreme Court, bearing in mind that this judgment has been somewhat overtaken by the evolving s 21A Crimes (Sentencing Procedure) Act 1999, hereinafter to be referred to as “the Act”, given that a number of the matters that his Honour identified as of some relevance in sentencing for breaking, entering and stealing matters have been picked up as “aggravating factors” in the current s 21A.
However, his observation of relevant factors to be taken into account in relation to sentencing people for offences of breaking, entering and stealing are still relevant and are particularly relevant, one would have thought, in this matter given the conclusion I reached that, by and large, there are no specific “aggravating factors” that arise under s 21A(2) of the Act. Because the various objective features of the matter, including matters that might be said to reflect upon the seriousness of the offending, can be effectively picked up by consideration of s 21A(1) of the Act. Some of the matters, without referring to all the matters that his Honour noted, that are relevant in sentencing for breaking, entering and stealing, include that particular offences are the result of professional planning, organisation and execution; that an offender has a prior record for particularly like offences; that offences are committed at the premises of the elderly, the sick or the disabled, although there is no evidence of that in this case; that the offence is accompanied by vandalism or any other significant damage to property.
I note, as I will when I go through the facts, point out that many of the properties that were broken into were “ransacked”. The offenders should understand, if they do not understand it from their own personal circumstances of deprivation, the serious violation of a person’s right to privacy by having some stranger enter their house and tear it apart simply for the purposes of obtaining some property for some short-term gain.
The multiplicity of offences are to be considered. Of course, this is a matter reflected in principles of totality and I appreciate the need to fix an appropriate sentence for each offence in accordance with what the majority of the High Court said in Pearce v R (1998) 194 CLR 610, particularly at [45]. There the majority in a conviction appeal expressed obiter observations about the need to fix an appropriate sentence for each offence and then turn one’s attention to the issue of the extent of concurrency, accumulation, partial accumulation and, of course, related to that, totality.
Other matters to be taken into account relevant to the facts of this case are the value of the property of the victim, whether that value is measured in terms of money or in terms of sentimental value; whether the offence was committed at a time, absent specific knowledge on the part of the offender as a circumstance of aggravation, but where it was likely the premises would be occupied, particularly at night; any particular trauma that a victim may have suffered, if there be such evidence, although I have no evidence of that in this particular case; the use of threatened force if it arose, and that is not a matter that I am concerned with here.
I will come back to the individual offences and some characteristics of them as they reflect upon those matters and other issues I am required to take into account.
Each of the offenders in respect of the Commonwealth matter require me to consider Pt 1B of the Commonwealth Crimes Act and particularly s 16A including those matters set out in s 16A(2). I do not propose to work my way methodically through that section as I would ordinarily in dealing with solely Commonwealth matters. But it would be self-evident as I work my way through the material that I have taken into account the various matters that are required under s 16A, including in respect of the Commonwealth matter fixing an appropriate sentence to reflect the seriousness of the offending.
With regard to the State offences, I am required to have regard to s 3A of the Act. I have to ensure that each offender is adequately punished. I must deter both the individual offenders and other persons from committing similar offences. I point out, as it is clear from the authorities dealing with the sentencing of offenders who come from overseas to commit crimes in our country, that general deterrence has a significant role to play in sentences imposed, in part to deter people from the same place of origin from following in the footsteps of the offenders who are now for sentence. I am required to protect the community from the offenders to the extent that such protection is required. I am required to promote the rehabilitation of each of the offenders, make each of the offenders accountable for his or her actions, denounce their conduct and recognise the harm done to the victims of the crime and the community.
I point out in relation to these offences there is no suggestion of threats of violence or violence occasioned to any particular person but in cases where actual stealing occurred there was loss to each of the victims. The facts are very vague as to the extent to which victims have recovered property. In some instances, I understand, a great deal of property was recovered but through no thanks to the individual offenders. I also understand that in some cases there was only partial recovery of property, but the extent of that recovery by comparison to the total amount of property stolen in a particular case is denied me.
As the High Court said in Veen No 2 (1988) 164 CLR 465, particularly at 474, the purposes of criminal punishment are various. They overlap. They cannot be considered in isolation. They are guideposts to the appropriate sentence but sometimes those guideposts will point in different directions.
Each of the prisoners has committed crimes in their objective seriousness which requires the application of s 5 of the Act and crossed the threshold identified in s 5. Only terms of imprisonment are appropriate in relation to each of the offences.
Likewise, in relation to the Commonwealth matter by reference to s 17A of the Commonwealth Crimes Act, only a term of imprisonment can practically be imposed for the breach of the Migration Act.
I am required to have regard to s 21A and I will not dwell on that at the present time.
In respect of Ms Hernandez, Mr Mendoza and Mr Garcia, they have committed offences with standard non-parole periods. That requires me to have regard to s 54A(2) of the Act which provides that the standard non-parole period represents the non-parole period for an offence in the Table of the Division, taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness. This provision reflects an amendment that occurred after the decision of the High Court in Muldrock v R (2011) 244 CLR 120.
I am also required to have regard to s 54B which provides that the standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.
In respect of each of the offences carrying a standard non-parole period, I am obliged to fix a non-parole period, even if it is a sentence to be reflected in an indicative sentence, as is the case here, where an appropriate sentence has to be imposed for such an offence. Of course, as I pointed out, I think in two instances two offences with standard non-parole periods are on a Form 1.
With regard to the issue of the fixing of an assessment of the objective seriousness, I have regard to the wisdom of Johnson J in the decision of R v Tepania [2018] NSWCCA 247, particularly at [112] and at [119]. His Honour pointed out that in sentencing for an offence, whether or not it has a standard non-parole period, and these observations, obviously, have equal application to the other matters for sentence without non-parole periods, a court should make an assessment of the objective gravity of the offence, applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account unless excluded by statute. Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the defendant that are causally connected with or materially contributed to the commission of the offences, including, if it be the case, a mental disorder or mental impairment. It is recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence. He also went on to point out that taking into account an offender’s moral culpability on sentence may be seen as a consideration of one of the many factors which bear on sentence, sometimes pulling in different directions, which form part of the exercise of distinctive synthesis discussed by McHugh J in Markarian v R (2005) 228 CLR 357, particularly at [52].
With regard to the issue of totality of criminality, this is a significant matter here and I propose to endeavour to reflect the principle of totality in the aggregate sentence and the structuring of sentences that I am required to impose. It is a matter that has been discussed by the High Court in several leading decisions; Mill v R (1998) 166 CLR 59, particularly at 63, and in Johnson v R (2004) 78 ALJR 616, at [18]. To my mind, although reasonable minds may differ on this, the best description of the proper application of the totality principle were the observations of then Street CJ in the decision of Holder v R (1983) 3 NSWLR 245, where his Honour said at p 260:

“The ‘principle of totality’ is a convenient phrase descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences(sic) in order to achieve an appropriate relatively between the totality of the criminality and the totality of the sentences.”

In other words, for the benefit of the prisoners, they are fortunate they are not being sentenced in Texas where there are instances of judges fixing specific sentences for specific crimes and making those sentences entirely cumulative, one upon the other, leading to a result of many hundreds of years of imprisonment in particular cases.

In MAK (2006) 167 ACrimR 159 at [18] the Court cautioned that there should not be any suggestion that a “discount” is given for multiple offences. The Court said:

“A sentencing court must...take care when applying the totality principle. Public confidence and the administration of justice requires the Court to avoid any suggestion that what, in effect, being offered is some kind of discount for multiple offending,”

applying an earlier decision of Knight. This matter, I might point out, was picked up by one of the learned counsel in the submissions to which I was referred, citing a more recent decision of Mapp [2010] NSWCCA 269. I note the observations, consistent with what I have said, of the Court adopting what was said in MAK, I hasten to say, at [16]-[17], which I have already cited. And there is the earlier dicta in Pearce, which I have previously quoted.

Another general principle clearly significant in this matter, and it has been a difficult matter to properly assess, given the complexities of the sentencing and the subtleties of the differences between various offenders, is the issue of ‘parity’ of sentencing. That is, ensuring that there is parity of sentencing between offenders charged with common offences or charged in relation to offences that have a relationship with one another in terms of participation in joint criminal enterprises and the like. The issue of parity of sentencing has been discussed in a range of authorities. It was of particular discussion in the decision of Jimmy v R [2010] NSWCCA 60 in the judgments of Campbell JA, Howie and Rothman JJ. I think Rothman J most pithily discussed the matter at [254] when he said:

“The principle of parity in sentencing derives, as the High Court has made clear, from an application of the fundamental principle of equal justice,”

(citing Postiglionev R (1997) 189 CLR 295 particularly at 301-302 in the judgment of Dawson and Gaudron JJ). He went on to say at [255]:

“Equal justice requires that like should be treated alike and that the difference in treatment of different persons should be rational. Equal justice is a principle that is fundamental to the exercise of judicial power...”

To put it another way, like shall be treated alike and the unlike shall be treated to the extent of their unlikeness on rational and reasonable grounds.

There are other matters of common legal significance in this particular case. To varying degrees, each of the prisoners has raised the issue of the deprivation of opportunity in their backgrounds and I am prepared to accept in a range of ways that their criminal histories, where they have criminal histories, their conduct in Australia and their other personal circumstances reflect aspects of deprivation. One of the difficulties in this matter, however, is the extent of the deprivation is not easily measured. This is not a case such as was determined in Bugmy v R (2003) 249 CLR 571 where the Court at first instance and the High Court of Australia could readily measure the extent of deprivation and dysfunction that informed the offending of Mr Bugmy and his personal circumstances. He was an Aboriginal man from Wilcannia, a community with which people, within the legal community at least, are well familiar and the circumstances of his background of deprivation and dysfunction were not only measurably profound but known to be intergenerational. In that decision, noting particularly the judgment of the majority at [40], the High Court confirmed that a relevant sentencing consideration is deprivation and social disadvantage in the personal history of an offender. That has been taken into account in relation to each of these offenders.
Furthermore, in the majority decision of the Court of Criminal Appeal in a case of some relevance to this matter of Quintero and ors [2018] NSWCCA 190, it was observed at [103] by Schmidt J, who gave the leading judgment, that evidence of a deprived background may mitigate a sentence because the offender’s moral culpability may be less than the culpability of an offender whose formative years have not been marred in that way, citing again Bugmy. Her Honour pointed out that the:

“effects of profound deprivation do not diminish over time and should be given full weight in determining the sentence in every case” (Bugmy at [42]-[43]).

What is interesting about those observations relevant to this case is that Ms Quintero, Carvajal and Salazar, like these offenders, were people from Chile who committed crimes in Australia. There was a significant difference between these people and these offenders in the sense that these women were under the thrall of a particular individual.
They had not necessarily come to Australia to commit crimes. In fact they had been in Australia for considerably longer periods than these three offenders before they started committing crimes. Some of them had been pressed into prostitution before they turned to the commission of housebreakings. I also point out that, whilst they committed multiple breaking and entering in their own ways of residences across the St George area and Eastern Sydney and whilst damage was done on some occasions, the extent of property lost is arguably substantially less than the property here. Each of them of course had individual issues relating to their circumstances, which the sentencing judge failed to take into account. But the observations I made from the judgment concerning the background of those individuals in a factual sense, have some pertinence and certainly have relevance in this matter.
There is one other matter of general principle that arises, common to each of the offenders here that was discussed in Quintero. That is the relevance of the fact that these offenders are from Chile and are separated from family and will be for whatever period of time that they spend in custody. I was particularly invited to consider that aspect of the judgment in this matter and I am prepared to accept, to varying degrees that their circumstances of custody may cause personal hardship. But despite the relevant principles as they have been discussed in the decision of Quintero, I note what Justice Schmidt said at [97], that is that:

“Those who come to Australia specifically to commit a serious crime have no justifiable cause for complaint when incarcerated in this country where the language is foreign and the offender is isolated from outside contact.”

I appreciate Mr Garcia was born in the United States and lived there for eight years and is accomplished in the English Language, has a brother who continues to live in, or has returned to, the United States and he expects to live in the United States when released from gaol, but the other offenders claim to have no English. I doubt that that is so after a year in custody. But certainly they are primarily Spanish speakers with limited English, if in fact no English, when they arrived in Australia. Justice Schmidt went on to say this at [98],

“Where there is evidence that an offender has limited English”,

which is the case for four of the offenders, and to some extent Mr Garcia I suppose, but nowhere near as much:

“and no friends or family who are able to visit, making their imprisonment harsher than would be the case for the ordinary prisoner, some, although not much, recognition of these difficulties can be given”.

I propose to do that again. This aspect of the matter of being separated from one’s family and support network, as all prisoners are, is of varying intensity. It is a much more significant matter in my view, in the case of Ms Hernandez. She is the mother of five children. I appreciate some of the men have children back in Chile and in fact Mr Mendoza and Ms Hernandez share a child, her youngest child. But I see, in the context of her mental disabilities, her separation from her children as a matter of causing more hardship to her than is the case in relation to the other offenders. But it is a relevant matter in each instance.
There is another aspect of this case specifically relevant to Ms Hernandez, and that is the issue of her mental health. I will come to the specific evidence shortly, in her case, but by reference to the principles that I am required to apply, it is quite clear that she has a chronic mental condition, to wit bipolar disorder, which she has suffered from for quite a number of years. Its causal connection to her offending in Australia is not clear. Obtaining the services of a psychologist to analyse her or to discuss her situation does not assist the court in this regard. This is quite clearly a matter really for a psychiatrist to undertake, but it has not been undertaken. Whether in fact her bipolar disorder was such that she went through a manic phase during the time of the offending, such as to affect her judgment, there is no evidence of that from her and there is no analysis of that in any report that I have. But it is a background aspect of her circumstances which is of some significance firstly. I accept the evidence that has been given that it is a matter that rendered her unable to work for a few years, at least, before she came to Australia. It is a matter that affects the circumstances of her custody. There is also reference in the evidence, to the fact that she is receiving medication for the treatment of depression. There is no evidence available to me that she suffered a depressive illness before she came to Australia, although I can accept that it is possible that her depressive illness could be generated by the circumstances of her bipolar condition. In any event, her depressive illness, which is being treated in custody, at least is reactive to the circumstances of her custody and affects her situation whilst in custody in Australia.
Justice McClellan, then the Chief Judge of the Common Law Division, in the decision of De La Rosa, discussed the relevance of mental illness or intellectual handicap or “other mental problems”, in sentencing, reviewing a range of important authorities, such as Engert from 1995, Hemsley from 2004 in which Justice Spurling summarised principles reiterated by Justice McClellan, and other decisions. He summarised the position of the law in this way that that the state of a person’s mental health that contributes to the commission of the offence in a material way may reduce a person’s moral culpability. I note he went on to say that consequently the need to denounce the crime may be reduced with a reduction in the sentence. There has been a subsequent decision of Kearsley where reduction upon the weight to be given to general deterrence or consideration of moral culpability was said to not necessarily require a causal connection between the mental health of the individual and the commission of the offence. But, be that as it may, he went on to say as a consequence, the offender may not be an appropriate vehicle for the full weight of general deterrence. It may mean also that a custodial sentence may weigh more heavily on that person because the conditions of custody may be a greater burden for that person. It may reduce or eliminate the significance of specific deterrence or alternatively, because the person’s mental illness makes them a danger to the community, considerations of specific deterrence may result in an increased sentence, discussed in cases such as Israil and also the decision of Henry from 2007. Here I accept that the condition of the offender is certainly a matter that is relevant to the assessment of her circumstances in custody and reflect upon her custody being more onerous for her and in her case I particularly form the view that slightly less weight should be given to general deterrence. There is another aspect of her situation where less weight may be given to general deterrence, and that is in the conclusion I have reached as to whether she came to Australia to commit crimes.
With regard to taking into account matters on the Form 1, I do so in accordance with the guideline judgment of the Court of Criminal Appeal from 2002, Attorney General’s application number 1 (2002) 56 NSWLR 147, there the Court of Criminal Appeal pointed out, at [18]-[44], that the fact that matters will be on a Form 1, may mean that greater weight will be needed to be given to personal deterrence from the community’s entitlement to extract retribution. The entire point of the process, the Court pointed out, is that usually to impose a longer sentence or to alter the nature of the sentence, would have been imposed if the principle offence for sentence that stood alone, it was wrong to suggest the additional penalty should be small, sometimes it will be substantial.
I digress for a moment, to point out it will depend as to the character of the offences on the Form 1, the number of offences on the Form 1 and their relationship to the principle offence. But it is the fact the court is only concerned with the principle offence, not to determine appropriate sentence for matters listed on a Form 1. It is the fact also that deterrence and retribution are entitled to greater weight than they otherwise may be given when sentencing for the primary offence if it stood alone. There are matters that limit the weight to be given to matters on a Form 1, in terms of s 33 of the Act. These include the maximum penalty for the primary offence and of course the principle of totality. Rarely would it be appropriate for a sentencing judge to attempt to quantify the effect of a sentence upon the principal offence by taking into account matters on a Form 1.
Just one last matter, in terms of reference to principles in the context of discussing the totality of criminality, I neglected to cite Justice Hall’s observations, or propositions, not all of which are relevant in this case, as set out in R v XX (2009) 195 ACrimR 38, particularly at [52]. I note, before deal with the summary of the relevant facts to each offence, that Ms Hernandez has no prior criminal convictions. I also note that Mr Tiznado appears to have one finding, at least, of guilt in Chile, but it is of no significance. I propose to regard him as a person of generally good character without prior significant convictions. Such is not the case for Mr Mendoza. I pause to point out that Chilean criminal histories are absolutely hopeless. They do not tell me anything about what sentences were imposed. In fact, to be fair to Mr Mendoza, he admitted that he had spent three years in gaol in relation to at least one of the offences. It appears on his Chilean history and, although I know very little Spanish indeed, it seems to me, in the context of the Chilean records I have received, that not all the details of the Chilean records have in fact been translated relevantly for my purposes.
So far as Mr Mendoza is concerned, he apparently has a finding of guilt in relation to an offence of battery, as it is described, involving minor injuries. He has a conviction in 2009 for burglary in a place intended as a dwelling. He has a conviction in 2014 of burglary in a non-dwelling. He has a conviction in 2015 for carrying items known to be used in the commission of the crime of theft or burglary. Likewise, he has another conviction recorded in the same year in respect of the similar category of offending and a conviction in 2017 in Chile of, “carrying items known to be used in the commission of the crime of burglary”. Mr Mendoza told me that he’d spent other times in prison, once for a hundred days, as he described it, and on another occasion for 60 days.
With regard to Mr Munoz, he has findings of guilt in 2011 for burglary and intimidation. He has a finding of guilt in 2013 for assault against a police officer, as I would understand it. He had a conviction in 2016 for theft of a “motorised vehicle”. With regard to Mr Garcia, he has a conviction in 2015 for burglary of a non-dwelling and a conviction in 2016 for, “simple theft”. In fairness to the prisoners, the criminal histories provided lack the detail that would be available from criminal histories in Australia. None of the offenders of course, have criminal histories in Australia. But having regard to the information available to them, I could not find that Mr Mendoza, Mr Garcia or Mr Munoz, were relevantly men of good character or without significant criminal convictions. But I have noted what is recorded and the number of convictions and the significance of them, of course reflects varying degrees of prior culpability.
With regard to the offending, the first offence in time on 6 October, involving Mr Garcia, involved him committing the crime with another offender or offenders, who are unknown, breaking into a residence in Waverley, forcing a rear locked door and I will quote from the facts, “ransacked the residence and stole four expensive rings from the master bedroom, including an engagement ring and a wedding ring”. In fairness to Mr Garcia, the circumstances in the context of the professionalism at least, of that offence, he left his fingerprints behind on jewellery boxes, which were examined and one of the rings stolen was later found in the possession of a co-offender and returned to the owner.
With regard to the next offence in time on 7 October, Mr Garcia and Mr Munoz committed this offence together. It was committed at night. It can’t be proven that they were in company or who entered the residence. One of them forced a rear locked door, smashed an alarm box off the wall and stole jewellery, including earrings worth $16,000 and a ring worth $11,790, as well as other jewellery items, the prisoners foolishly photographed themselves with the stolen items.
The next offence in time is the offence at Louisa Road Birchgrove. This is an offence of breaking, entering and stealing on a Form 1 in relation to Mr Garcia and Mr Munoz. Again, they were together, as part of a joint criminal enterprise. Whether they were in company or not, nobody knows. They broke into the residence at Birchgrove and stole, “expensive jewellery”.
The next offence in time at Turramurra on 15 October 2018 was at an apartment on the Pacific Highway. Mr Munoz and Mr Tiznado committed this offence together, again as part of a joint criminal enterprise. Whether they were in company or not, it is not known. They forced a side window, wedged a spoon in the front door, placed a chair against the front door to prevent it being opened, ransacked the residence and stole “expensive jewellery and watches”. A photograph was found on Mr Munoz’s phone with some of that stolen jewellery. His search history on the phone included the address of the offence.
With regard to the offence at Bundarra Avenue Wahroonga on 15 October, Mr Munoz and Mr Tiznado committed this offence together, again as part of a joint criminal enterprise. They broke into a residential unit at Bundarra Avenue, forced open a rear locked door, wedged two spoons in the front door and placed a chair against the front door, to prevent it being opened, again as they had done at a nearby residence at Turramurra and there they, “ransacked the residence” and “stole jewellery, cash and designer goods”.
I just pause for a moment, in the context of reflecting upon the “remorse”, that each of the prisoners have expressed, none of their remorse is timely. It may be genuinely expressed and ultimately I am prepared to make a finding that there is some evidence of remorse and some evidence of taking responsibility, but it is not significant matter in any particular prisoner’s sentencing exercise. I point out none of these prisoners have shed any light upon their specific participation in a particular crime, nor shed any light on who may have been with them that might have not been detected. For example, the offence at Wiley Street, Waverley, involves Mr Garcia and at least another person. Nobody knows who that other person is.

So far as Henson Street, Brighton-Le-Sands is concerned, the offence committed on 17 October, this is on a Form 1 in relation to Mr Garcia and on a Form 1 in relation to Ms Hernandez, but to be subject of a discrete sentence for Mr Mendoza, was a joint criminal enterprise. It cannot be established whether they were in company. They were captured on CCTV footage, at least two of them were looking in windows. It is impossible to identify who the offenders are. Significantly, when the residence was broken into through a locked rear door, the residence was “ransacked”, and items stolen included expensive jewellery and watches, $3,000 in Australian currency, perfumes, designer bags and personal documents such as birth certificates, marriage certificate, a property deed, wills and passports, of no value unless the prisoners wanted to involve themselves in identity theft. There was $6,000 damage done to the doors, the locks and the safe in the premises. Some of the property was later found in the possession of Mr Garcia, Ms Mendoza and Hernandez at their place of residence at the time of their arrest and was returned to the owners, but it does not tell me how much was returned.
The breaking and entering and Chiltern Crescent, Castle Hill, was committed by Mr Garcia and Mr Mendoza and Ms Hernandez. It is pleaded as being in company between Mr Garcia and Mr Mendoza and Ms Hernandez was involved as part of a joint criminal enterprise. She apparently can be established as being near the location when the offence was committed, as a type of lookout, and there is an inference available from other offences that she in fact performed the role as a lookout whilst Mr Garcia and Mr Mendoza went about breaking into the property.
In any event, the offenders who broke into the property entered through a rear sliding door. They “stole expensive jewellery and watches including a Richard Mille watch”. Mr Garcia and Mr Mendoza were actually filmed leaving the premises, taking a bag containing the stolen items. Some of this property was identified in a parcel which Mr Garcia, Ms Mendoza and Ms Hernandez sent from Melbourne and was intercepted by authorities in Chile and returned to the owners. In that regard I note that the prisoners, Garcia, Mendoza and Hernandez, in the context of committing crimes around Sydney, managed to travel to Melbourne between 12 and 19 November 2018. On 15 November 2018, they attended the DHL courier facility at Melbourne Tullamarine Airport. They brought a number of bags and suitcases containing stolen items, including items stolen during the offences that they have pleaded guilty to. They packed these items into two boxes, with a combined weight of 30 kilograms and sent to them to Talca, Chile, the home of a ‘Mr Diaz Mendoza’. They were sent in the name of Mr Mendoza with the nominated recipient being another person by the name of Mr Luis Ernesto Velosa Urra. One of the boxes was intercepted in the United States of America and returned to Australian authorities. One of the boxes was intercepted in Santiago, searched by Chilean authorities who advised Australian authorities of the contents. I am not advised as to whether the contents of that box were returned.
The next offence involved an offence of entering a dwelling with intent to steal committed jointly by Mr Munoz and Mr Tiznado which is on a Form 1. They entered the premises at Castle Hill at about 8.45am on 21 October and ransacked the premises looking for valuable items to steal but the victim could not identify any items that were stolen. With regard to the “KFC aggravated breaking, entering and stealing” on 22 October 2018, committed by Mr Mendoza, this was to be fairly said, a serious offence of its type. He broke into the premises at 1.30am. He tried to force open the front sliding doors, damaging them, then went to the rear of the store and smashed a glass window to gain entry. He forced open a locked, internal door and accessed a safe which Mr Mendoza and another unknown person forced open. They were unable to access an internal section containing money. They damaged a second safe which they attempted to open. They cut the wiring to the CCTV system and the alarm system and they left the store at 1.45am. They left behind a spanner, screwdriver, torch, angle grinder, crow bar, power board, gloves and a backpack. DNA matching Mr Mendoza was located on one of the gloves. They caused $15,000 worth of damage to the store and its property.
The breaking and entering at Turramurra on 25 October 2018 involved Mr Tiznado and Mr Munoz. For Mr Munoz this matter is on a Form 1. For Mr Tiznado this is a matter for discrete penalty though a part of a joint criminal enterprise. They forced entry into the premises through a locked, rear door, again wedging a spoon in the front door to prevent it being opened, ransacked the residence and stole a number of items of jewellery. In relation to the break in at the premises on the Pacific Highway, Pymble again Mr Munoz and Mr Tiznado together broke in at night between 8pm and 10pm. They forced entry though a locked rear door, placed a chair against the front door to prevent it being opened, and proceeded to ransack the premises. They stole $50,000 in US currency, jewellery items and a safe. In relation to that property, some of it was found at a property at Bayswater Road, Potts Point. The relationship of that property with the offenders I am not aware of.
The offence committed by Mr Tiznado alone at Zetland on 27 October involved him breaking into an apartment between 7.30 and 8.30pm, forcing entry through a rear locked door. Again they wedged two forks in the front door to prevent it being opened, ransacking the house, stealing “expensive watches and jewellery items including two Piaget watches, one Cartier watch, one wedding ring, a one carat diamond, one Bulgari gold ring and one Tiffany necklace”.
I pointed out in the course of the case there was a time, seemingly now remote, where it would have been a very dangerous thing to be breaking into somebody’s house in Zetland to steal property from the occupants.
On 27 October 2018 Mr Garcia, Mr Mendoza and Ms Hernandez were involved in a joint criminal enterprise to break into a residence on The Esplanade, South Hurstville. This is a matter where there is a sentence required to be imposed on Mr Garcia and Mr Mendoza, but it is taken into account on a Form 1 in relation to Ms Hernandez. This was a joint criminal enterprise because nobody knows precisely who did what. Entry was forced through a locked door. The premises again were ransacked. The offenders stole jewellery worth at least $5,000. Some of the property stolen was identified in one of the parcels intercepted in Chile and has been returned to the owners. Some of the property stolen was found at the address where those three offenders were arrested.
The offenders Hernandez and Mendoza found their way up to the Gold Coast in the search no doubt, for assistance for the plight of their son and there they sent a package from Broadbeach to an address in Chile containing stolen items, some of which had been stolen from premises earlier identified. Mr Mendoza entered land with intent to steal at Crawford Street, Blakehurst on 10 November 2018 just before he travelled to Melbourne and that matter is on a Form 1, an offence committed at night. He was in company with an unknown person.
With regard to the address at Balintore Road, Castle Hill, this is an aggravated breaking, entering and stealing knowing a person to be inside. Slightly different I hasten to say contrary to what I said earlier, than the offences committed in company. It is on a Form 1. The offender Ms Hernandez was part of a joint criminal enterprise with unknown persons. The residence was broken into at night. A Mr John Willis, an elderly gentleman aged 83, was asleep in the residence when it was broken into. In fairness nobody disturbed him, nobody attacked him, which is a saving I suppose. But whoever was inside took advantage of the fact he was asleep or that he did not disturb them, by stealing a necklace worth $2,800 which belonged to Mr Willis’ deceased wife as well as $1,175 in Australian currency. The classic example of property, perhaps in financial terms not worth a lot, but considerably valuable to the victim in emotional terms one would have thought.
The breaking, entering and stealing at the Appian Way, South Hurstville on 21 November involved Mr Garcia, Mr Mendoza and Ms Hernandez. They were captured on CCTV footage at about 8.20pm approaching the residence. Ms Hernandez walked around nearby the residence while the two men approached the house and it would appear she acted as a lookout. This is consistent with some other evidence in relation to other offences. Some items of jewellery were taken along with $900 in cash. Some of the items of jewellery stolen were later located at the residence at Olympic Park where the prisoners were arrested.
A further breaking and entering at South Hurstville on 21 November 2018 is a crime of some considerable significance. This was a joint criminal enterprise involving the three offenders, Garcia, Mendoza and Hernandez. I hasten to say this is at about the time of the attempt by the other two offenders to flee the country. Ms Hernandez appeared to perform the function of look out. In any event a person broke into the property. Valuable items were stolen “worth over a hundred thousand dollars” including 13 watches, 26 jewellery items, four designer bags, one phone, one computer and $3,000 in Australian currency. Some of this property has been recovered from the residence where the three offenders were arrested on 27 November. There was a breaking, entering and stealing at Roslyn Street, Bellevue Hill again involving Mr Garcia, Mr Mendoza and Ms Hernandez. In relation to this matter Mr Garcia’s involvement is recognised by an offence on a Form 1. Mr Mendoza and Ms Hernandez stand to be principally sentenced. They were part of a joint criminal enterprise. The power to the premises was turned off before entering the premises and forcing a locked rear door. The premises were “ransacked”. Jewellery and designer goods were stolen. A handbag stolen in this offence was later found where Mendoza, Garcia and Hernandez were living at the time of their arrest.
Another offence at Bellevue Hill on 22 November involved the three offenders. This was a matter taken into account on a Form 1 in relation to each offender. This is an enter land with intent to steal. Again in this matter the power was switched off but that caused someone to raise the alarm. Then there is the offence at Gibb Street, Drummoyne; an offence of aggravated breaking, entering and stealing in company. Each offence is a principal offence for sentence. Ms Veloso Hernandez was part of the joint criminal enterprise, waiting near the location obviously as some type of lookout. The premises were approached and entered at about 7.30pm. They turned off the power to the residence, forced entry through a locked window, ransacked the residence again, and stole items of jewellery and designer goods. Finally, the offence at Rickard Street, Five Dock on 26 November, the day before the three offenders were arrested. An aggravated break and enter and attempt to steal involved an attempt to break into the premises at Five Dock at about 8.45pm captured on CCTV footage.
I have concluded, and it is not disputed by the Crown, that each of the aggravated breaking, entering and stealing offences in circumstances of aggravation by reference to consideration of s 54A(2) can be assessed as being below the middle range of objective seriousness. The extent of their relationship to the middle range of objective seriousness is to some extent dictated by the value of the property. None of the offences are at the lowest end or at a low end of objective seriousness. I have noted one of the offences involved committing an offence knowing somebody was in the residence, but I have also pointed out that no harm came to that gentleman and thus I regard that offence as likewise being below the middle range of objective seriousness.
As for the other breaking, entering and stealing offences they are not at the low end of objective seriousness. They are serious violations of the privacy of the victims although that is an inherent characteristic one would expect of breaking into domestic premises. Some of the breaking, entering and stealing matters involved very substantial property being stolen and that “aggravates”, or increases the seriousness of the offending. The stealing of property valued over one hundred thousand dollars represents a breaking, entering and stealing more serious than one normally sees. Each of the offences involved a considerable degree of premeditation if that is the correct expression. There was some degree of professionalism in many of the breaking, entering and stealing offences, the cutting of power, the method of entry. It varied from offence to offence as I have tried to note by reference to the facts as I have said. The breaking into the KFC property was an offence of substantial seriousness in the context of the equipment that was taken to assist in the commission of that crime and the way in which the crime was executed and the extensive damage that was done. It is to be fairly said that burglaries of commercial premises reflect upon professionalism to the extent that they reflect upon the expectation of greater reward than might otherwise be expected from breaking into domestic premises. I have sought to reflect the more serious character of that particular offence by the indicative sentence that I have settled upon.
All the offences have the characteristic of either intention to obtain financial reward or actually obtaining financial reward, each of the offences involved damage to property for the purposes of entering the premises, each of the offences involved at least some professionalism and/or degree of planning but I could not be satisfied that planning represents an aggravating factor. It is a feature of the matter that is satisfactorily to be taken into account under s 21A of the Act. I have ultimately concluded in respect of each of the offenders that notwithstanding the fact that they were participating in a criminal group, I could not conclude that they were part of organised crime. I know one of the offenders suggests that he was paid to come to Australia to commit crimes, but again the degree of “organisation”, such as to make it a matter involving organised criminal activity, I could not be satisfied of beyond a reasonable doubt.
If I could just now turn to the cases of the prisoners. In the case of Ms Hernandez, there was a body of documentary evidence. A report from Mr Watson-Munro dated 11 December, a report from the Nepean Blue Mountains Local Health Area District which encompasses the prison where the prisoner is held concerning forthcoming treatment of a prolapse that has occurred whilst the prisoner has been in custody. There is a reference from a chaplain at the Dillwynia Correctional Centre. Some certificates of completion of basic courses and references from two friends. One of those friends has known her for three years, the other has known her for 15 years. I have taken all that material into account.
Mr Watson-Munro’s report is a fairly cursory affair. He has not really undertaken significant psychometric testing of the prisoner. He sets out some history which in general terms I am prepared to accept. Her parents are alive and are aged 60 and 55. She has a sister and two brothers. She has high school education and some tertiary education. She gave evidence before me which I will come to shortly. She worked at a bank as a commercial manager for two or three years. As I understood her evidence, bearing in mind I do not have a transcript of the proceedings up to this point, she worked until 2015 but was unable to continue working according to Mr Watson-Munro’s history because of mental health issues. As I said, she was diagnosed with bipolar disorder about six years ago. She has five children aged between 19 and three. Her children are currently in the care of either extended family members or, in the case of her youngest child, her “godfather’s mother”. She has had no contact with her children since her arrest which is understandable. She does not abuse alcohol or illicit drugs, or so she claims. There is a family history of bipolar disorder. She has a 17 year old son. At this time he has been diagnosed with cancer of his eye. This condition, as I understand it from various sources, has existed for about 14 years. He has had his eye removed but awaits surgery to have an artificial eye implanted. Previous surgery has been unsuccessful. He needs management in relation to that condition.
She reported to the psychologist language and cultural difficulties in Australia. She has been able to access a Spanish speaking psychologist by telephone connection and has had some counselling on a fortnightly basis as I said earlier. I am satisfied she is receiving medication for the treatment of her bipolar disorder and the depressive illness to which some reference is made.
Of course the history taken was both basic and largely uncritical. There has been no examination in the history obtained from her of her association with Mr Mendoza, a man with a substantial criminal history. As I said, apart from the Beck Depression Inventory which was undertaken, there is no real psychometric assessment. There is no significant or reliable history of depression predating her incarceration. The psychologist has not commented in any way upon her intelligence or other characteristics capable of proper psychometric assessment. There is nothing in the report of any reliability that links her bipolar disorder to her offending behaviour and on the facts available to me I can only conclude that the causal connection between her and her offending is essentially through her husband. Although as I said, I do not discount the possibility of her bipolar disorder having some role to play. She has a degree of emotional vulnerability whilst in custody. She has never been in custody before. She is separated from her children. She has a chronic psychiatric illness which requires medication and she has difficulties with language including, as I said, isolation from her family.
The Chaplain, in the reference of 1 August, reflects upon the prisoner’s depth of commitment to a better understanding of her situation and she said that the prisoner brings insight to her discussions on human nature and its impact on decision making. The prisoner is an active participant in Christian services at the custodial centre. The Chaplain is prepared to continue to support her whilst in custody.
One of the referees spoke of her devotion to her children and the difficulties for her son with the ocular cancer and the emotional support being provided to the prisoner’s family by associates. She described the prisoner as not having “the best of lives”. Her other friend who had known her for 15 years described her as a lawful person, hard-working, having a “very hard life”. She is described as a good mother “sole supporter of her children” and reflects upon difficulties the prisoner will have in custody. She seeks mercy on her part.
She gave evidence as did Mr Mendoza. They were the only prisoners to give evidence directly and be subject to the test of cross-examination.
With regard to Mr Mendoza’s material, he produced an affidavit setting out details of his background, his employment history, an affidavit from his solicitor relating to his performance in custody which I have taken into account. I accept that he and all the other prisoners have been compliant and respectful prisoners. I have an affidavit from a law clerk from Mr Mendoza’s solicitor’s firm concerning arrangements to translate various documents. I have a certificate of accomplishment undertaken in Chile showing that he has finished at least part of a course in ‘human resources’. I have a reference from his mother setting out his family circumstances, indicating that she is not of good health and that she is currently an invalid seeking mercy on his behalf. I have a reference from his father who has significant health difficulties. His father spoke of the prisoner’s support of his two daughters, one he shares with Ms Hernandez and assistance he provides to elderly members of his family. He seeks mercy on behalf of his son.

There are a number of problems with this account, apart from the fact that it is unsworn and untested. This account pays absolutely no heed to the significance of the agreed facts in relation to the Migration Act offence, supplying a false address, in the same modus operandi as that of his co-offenders. This unblinking acceptance of the version given by the prisoner by Dr Lennings does not reflect upon what is evident from the facts, that this prisoner commenced committing offences with a person that he must have only known on his account a week or two and who had arrived in the country one month and four days after he arrived in the country.
So far as his version of events is concerned, it is not possible to accept it. The common modus operandi of providing false information to the authorities, his criminal history in Chile, his admission, to be fair to him frankly, of being previously in gaol in Chile in 2010, all provide little comfort or support for his version of events.
This claim that he got involved in the break, enter and stealing offences because his son needed corrective surgery for a heart complaint could be a possible contributing factor to the motives for committing the crimes. I am prepared to accept that his son has significant health issues. I do not accept, however, that need for money to assist his son’s medical treatment was the sole motivation for his offending.
If it was the sole motivation for his offending, it must have been the sole motivation for him coming to Australia in the first place, to work for $40 an hour. If he was desperate for money to pay for medical expenses for his son before leaving Chile, that might have, of itself, provided a motivation for him to remain in his country to commit the sort of crimes that he committed here. It seems quite unlikely that an increase in an hourly rate would greatly contribute to any need for money for his son’s medical condition. And, as I pointed out in relation to another prisoner, I still do not have any information about the adequacy of Chilean health services, absent private funding, to provide adequate care in the circumstances set out in this prisoner’s version of events.
He spoke of his difficulties in his upbringing to the psychologist, the restrictive and physically abuse father, which I have taken into account. But the details of his background are quite incomplete. I accept that he comes from poor circumstances but there is insufficient evidence, as there is in most of the prisoners’ cases, except for perhaps Mr Garcia, of the significance of that deprivation beyond financial disadvantage.
The prisoner claimed no alcohol or drug issues, other than some limited use of cannabis. His circumstances in custody are similar to the other prisoners that I have spoken of. He has limitations in English. He has difficulty maintaining contact with his family. He, like all the other prisoners, is a model prisoner and has no institutional infringements, which I have taken into account in their favour, as I have already noted.
I have some difficulty believing that he cannot speak any English, having been in custody for 13 or 14 months. The psychologist, in terms of reflecting upon matters pertinent to his qualifications, noted his difficult upbringing and the risks to his development in that upbringing. The psychologist suggested;

“some kind of undiagnosed or at least not treated attention deficit hyperactivity disorder and/or he was experiencing the effects of trauma related hyper vigilance and anxiety associated with his exposure to child abuse.”

This is a very vague opinion and falls far short of any sort of reasonable diagnosis. All it does is suggest a possible analysis of the relationship of the offending to his upbringing, based upon the prisoner’s say so but it does not explain the prisoner’s dishonesty.
There is some reference in this report to medical difficulties that he has had in custody, for which he has been treated by Justice Health. But I do not have any particular details about that and nothing has been put to me that his medical condition is one that requires special consideration in this sentencing exercise.
He did tell the psychologist that he was experiencing “a harsh time in gaol”, although there are no particulars about that. There is no evidence of physical violence against him, sexual assault or anything of that type.
The psychologist identified the prisoner’s primary psychological need as one of being reunited with his family. I would have thought that was self‑evident, I did not need a psychologist to tell me that. He states that the prisoner’s difficult environment in growing up, his lack of an appropriate role model and guidance when he was young, his inability to obtain skilled employment, his subsistent lifestyle and early life experience has meant that he has

“operated out of a survival mode and his decision making was compromised by his focus on short term goals, as is common with people who struggle with survival needs.”

This may well be true, but it does not explain the character of his offending and sits somewhat at odds as to the explanation the prisoner gave for his offending in this particular matter. The psychologist’s analysis provides really only marginal assistance and it is based upon the psychologist accepting unreservedly what he has been told, including coming here for work.
The psychologist states, optimistically, that the prisoner does not present as “a person who typically represents a risk of danger to society”. With the greatest of respect to the psychologist, that very favourable analysis seems to ignore the character of the crimes he committed in Australia and his capacity to commit those crimes. The only qualification that the psychologist makes to that analysis is the offender’s “criminal antecedents”, which I take to be a reference to his criminal activities in Chile. Of course, I do not have any details of how long he was in gaol and the precise nature of his criminal activities.
I also doubt that the prisoner is relevantly as “pro-social” as the psychologist opines, given his criminal antecedents and the character of this offending. However, I note that he does have a partner in Chile and he does have that young son to return to in due course.
The value of any expert report, sometimes even its admissibility, is dependent upon the reliability and the depth of the material upon which the relevant opinions are based. In this particular matter, the psychologist has not undertaken, as I said, any meaningful psychometric testing, simply a clinical examination, in effect, relying upon what the prisoner has stated.
There were some difficulties, I appreciate, because of the character of the interview via AVL and with an interpreter. Ultimately, the report in the context of not identifying any psychological or psychiatric issue that is relevant to this sentencing exercise presents as a pre-sentence report based upon limited information.
With regard to Mr Tiznado, his case was relatively brief and limited. I have a letter of apology from him. He says he is the father of two children, one born whilst he was in Australia and a son who is three years of age. He has custody of that child and I accept that is so from the documentation that is produced. He says that that is because of the mother’s mental illness. There is evidence in the material that custody orders have been made in his favour.
He is the youngest of 11 siblings, has no criminal history of significance, as I see it and is serving his first term of imprisonment. He expresses remorse for his conduct and expresses a positive desire to return to society without further offending.
His mother, in her letter, supports the basic details as I have set out above and says that he is supported by his family in Chile and that she seeks mercy in his sentencing.
A chaplain, Reverend House, has made the acquaintance of the prisoner at Sunday chapel. He notes the prisoner is a respected worker within the prison, has expressed remorse for his actions to the chaplain and found the prisoner to be a friendly, co-operative inmate.
The prisoner has produced some certificates of attainment achieved whilst in custody. He does not have any significant criminal history, as I have said and he is the second youngest of the offenders with which I am concerned.
I have taken into account all the material presented by the prisoners and made some comments about some of the material presented in terms of what weight I should give to it.
In turning, just briefly, to the submissions, it would be self-evident for those who were here for the submissions and have listened to my remarks on sentence, that I have obviously had regard to many of the matters that have been raised with me and I have dealt with them as I have worked my way through the issues I have to address.
Ms Hernandez’s counsel did not prepare written submissions, but orally took me to matters, including Mr Watson-Munro’s report, the chronology of events and principally addressed his submissions to the issue of whether the prisoner came to Australia to commit the relevant crimes. He noted her expressions of remorse, her prospects of rehabilitation, her background of education being of some assistance; she would appear to be the best educated of all the prisoners who are before me. He noted the matters I have already said I accept, the isolation from her family, the difficulties of her physical and mental health.
With regard to Mr Mendoza, I had helpful written submissions from his counsel. I have also taken into account the oral submissions that are made. I have already dealt with the issues that are identified and those written submissions relating to the character of the offending and its objective seriousness. I have taken into account the relevant subjective circumstances, as I have already pointed out, the weight to be given to the plea of guilty, the relevance of his criminal history. His criminal history, of course, is not an aggravating factor but, in his case, it is not a matter that entitles him to any particular leniency.
I have had regard to what has been said about his prospects of rehabilitation and obviously the framing of the orders will reflect my consideration of totality of criminality. I have made a determination that there are, relevantly, special circumstances.
Likewise, in relation to Mr Garcia, there are extensive written submissions, all of which I have taken into account. There are specific submissions made about the character of the offending. I note it is put that there is no evidence that the prisoner was “living a lavish lifestyle”, but I cannot accept that his crimes were for anything other than “greed”, even if he had financial obligations in Chile. The fact that a criminal is not living a lavish lifestyle does not establish that the person involved is not committing offences for personal financial advantage, to which they are not entitled, which is a characteristic of greed.
I have taken into account what has been put in relation to the statements made concerning entry into Australia and the offence of dealing with proceeds of crime and I have already foreshadowed the distinction I have made between the prisoners having regard to the quantity of the funds involved.
There is one particular matter, however, his learned counsel, Mr Quilter, stressed, both in his oral submissions, his written submissions and then his submissions in reply to the learned Crown Prosecutor.
He cited a decision of Hodgson JA of the Court of Appeal, with whom, with the greatest of respect, I completely agree, when he said in BP v R [2010] NSWCCA 159 that,

“In relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be or more significance but may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves and, in my opinion, where emotional immaturity or a young person’s less than developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution.”

Counsel also cites another authority of Kim [2019] NSWCCA 165, where the Court of Criminal Appeal held that a 22 year old offender from a “disjointed upbringing” was apposite to be considered in the context of Hodgson J’s observations that I have just quoted, because he was “heavily influenced by his co-offender, being his father” and because of his upbringing. I just say, in passing, that situation is far removed from this matter. There is absolutely no suggestion of Mr Garcia being under the influence of Mr Mendoza. In fact, the way it is presented to me by the witness Hernandez, she would state that she and her husband were drawn into this offending by Mr Garcia. But, be that as it may, I do not propose to find against Mr Garcia in that respect.
The point I am making is, whilst I recognise his youth and I have reflected it in the effective sentence I impose, given the totality of the criminality, I have already, in discussion of the matter with learned counsel for the prisoner, pointed out these features. This prisoner arrived in Australia on 5 October and started committing crimes on 6 October, that is, before he came in contact with Mr Mendoza. He committed at least two break, enter and steal offences. He clearly came to this country for the purposes of committing crimes and admits that that is so.
By reference to the particular observations of Hodgson J, accepting them as I do, I have to see whether there is any evidence of “immaturity” or if there is any feature of the case that reflects a lack of capacity to control “impulsive behaviour”. With the greatest of respect, there is absolutely nothing impulsive about the offending. He came to this country to commit crimes. He committed the crimes he came here to commit. He committed them over quite a number of weeks. He travelled to Melbourne and sent valuable property back to Chile or America, or tried to do so. He committed multiple crimes on many occasions.
The observations of Hodgson J I am not suggesting for a moment are of universal application in the following situation but, largely, they are concerned, I would have thought significantly, with what could be called “one-off criminality”, occurring in either impulsive or unplanned or unpremeditated circumstances, entirely consistent with acts of immaturity. There is nothing in the evidence available to me, nothing frankly in the affidavit of the offender that supports a finding of immaturity. He is entitled to a distinction from Mr Mendoza because of his comparative youth and I appreciate his comparative youth assists him in the assessment of his prospects of rehabilitation. But, to conclude that the scientific learning to which Hodgson J refers to in the judgment of BP has some particular application in this case is inappropriate, given the absence of relevant evidence.
So far as his background is concerned, I have taken that into account and I accept that he has had a background of dysfunction which has been factored into the many matters I have to consider. I have taken into account his pleas of guilty, the issues that relate to his prospects of rehabilitation, his youth, his health, his bilingual capacities, his productivity in gaol, as with all the other prisoners I hasten to say and family support. His realistic goals of returning either to Chile or perhaps the United States and whether the United States will allow him back into the country, although he is a citizen, is another issue but I assume that he will have free entry because of his citizenship.
I note the issue of isolation from family, which I have accepted is relevant to all the offenders to varying degrees and what has been put in relation to totality of sentencing and special circumstances, I have made a finding of special circumstances in his case, as I have in all the other cases.
With regard to Mr Munoz, again I was provided with detailed submissions by his counsel. I do not propose to go through those because I have addressed every one of the matters that are addressed in those submissions. I have accepted, essentially, what has been put about the potential for this matter being found as a planned or organised criminal activity and also the reference by counsel to the fact that the offences were committed in “the home of the victim”. That is not a relevant “aggravating factor” on the facts of these cases. These matters are, of course, offences committed in the homes of victims, but it is not a relevant “aggravating factor” as that is understood.
As for all the offenders, just to come back to this issue of planning, there is no doubt, so far as those offenders who came into the country, that they were planning criminal offences but I am required to consider the issue of planning as an aggravating factor as it might arise in relation to each individual offence. And, in the absence of evidence that the prisoners chose a particular place to commit a particular crime because of research or particular information they were given about that address, I don’t believe that I can conclude that the criminality involves planning beyond that that can be considered under s 21A(1) of the Act.
It is true that the offenders, all of them involved in these offences, allegedly chose well to do or seemingly comfortable suburbs, but that is very rudimentary planning. If one wants to steal from rich people, all one needs to do is go out to Vaucluse or Double Bay or Rose Bay. You would have no trouble finding a house where someone of some wealth could be found.
They chose suburbs where one is likely to find more middle class and upper middle class people, but certainly people that generally could be regarded as comfortable and they, in their various ways, chose residences where substantial property was stolen. But not because, as I understand it, they had any particular inside information or had done any particular research to determine that that was the case. Hence, I am not prepared to make that finding that I have already discussed.
With regard to Mr Munoz’s counsel’s written submissions, he reflects upon matters I have already spoken about; his subjective circumstances, his difficulties in custody. These are matters that are taken into account. There is some reference to his medical condition in custody in those written submissions but there is no evidence in relation to that matter.
His counsel and I discussed his claims concerning the purpose of coming into the country and I have already discussed the objective seriousness of the offending, as submitted by his counsel.
With regard to Mr Tiznado, again I have written submissions from his learned counsel which I have taken into account and I have addressed in the course of my findings. Mr Trevallion dealt with the character of the offending, the weight to be given to the pleas of guilty, the totality issue for which he provided helpful submissions, the relative youth of the offender. He was going to refer me to comparative cases, but he chose not to in the end and I do not hold that against him.
His counsel, in oral submissions, reflected upon the planning issue, which I have already dealt with. He noted the prisoner’s remorse, his pleas of guilty, the support he has of his family, his insignificant criminal history which I have accepted and the fact that he, like all the others, appears to be a model prisoner. He submitted, in effect, that there should be a finding of special circumstances, based upon his relative youth, his absence of significant criminal history and his conduct in custody up to the present time. I have taken all those submissions into account.

The Crown was not opposed in its oral submissions, nor in its written submissions, to the finding of ‘special circumstances’. The Crown had listened carefully, obviously, to the discussion I had had with the parties about matters relating to the assessment of the objective circumstances that I have repeated today and had no particular complaint about my analysis in discussion with the parties. He had specific submissions to make about Ms Hernandez and Mr Mendoza and I have taken those matters into account.
He agreed with my analysis that there is clear evidence of premeditation in the offending, which is a separate matter from planning. Premeditation, of course, is not an “aggravating factor” under s 21A(2) of the Act, but it is certainly an important matter to consider in the context of the assessment of the objective facts, pursuant to s 21A(1).
He noted that the circumstances in custody arose out of them taking a calculated risk to come to Australia. I have already acknowledged that by reference to the authority I earlier cited.
He submitted that there was probably more constructive remorse from Mr Garcia. To some extent, I accept that is so. But all claims of remorse have to be seen in the context of my remarks about the absence of timeliness and the limited practical effect of that remorse.
He made a submission that there was a lack of remorse in the evidence of Mr Mendoza and Ms Hernandez. I do not mean to be unkind to the learned Crown Prosecutor, but I thought there was quite to the contrary in the case of Mr Mendoza. He was asked a question by me, when he said that he wanted to clarify something and I asked him what he wanted to clarify and he went on for about five minutes and I am not criticising him for that, about how remorseful and regretful he was for his conduct. Whether all the things he said I could absolutely accept, I am not sure, but he certainly expressed his remorse and his regret volubly and repeatedly in the course of my innocent question.
So far as Mr Mendoza’s counsel’s oral submissions are concerned, I forgot to point out that she relied on her written submissions but would not engage me in relation to what findings I would make in respect of his oral evidence, particularly his claim that he made up his mind to commit crimes in Australia on the plane trip here.
The Crown has provided me with useful and helpful submissions I have taken into account about the technicalities of sentencing under State and Federal law; the relationship of the proceeds of crime and the Migration Act offence to the offences that I have to otherwise sentence the offenders for; the breaking, entering and stealing offences; the character of the features of the case; the particulars of the individual offences of breaking and entering which I have particularised in some detail, which I have taken into account; the criminal histories of the respective offenders, which I have taken into account; and the deterrence of criminal activity by foreign nationals coming here for that purpose, which I have taken into account. All those matters have been acknowledged.
Coming back then finally to two statutory matters arising out of what has been said, I have concluded, as I have said on at least two occasions, no specific aggravating factor arising out of s 21A(2), although matters that can be identified as aggravating factors can be found sufficiently under s 21A(1).
In none of the cases can I find, as a mitigating factor, that any offence was not part of planned or organised criminal activity, but that is a different matter than not being satisfied beyond reasonable doubt. The finding I make is not inconsistent with the finding I have made that there is no aggravating factor in that regard.
In relation to Ms Hernandez, I accept that she did not have any record of previous convictions; that she previously was a person of good character. I am prepared to find in her case that she is unlikely to re-offend and, because of her family situation and her previous good character, she has good prospects of rehabilitation.
I am prepared to accept, on balance, that she has expressed remorse but it is of little significance in this sentencing exercise. The plea of guilty is a relevant mitigating factor but she also gets a discrete discount for that.
With regard to Mr Mendoza, I cannot find that he is unlikely to re-offend. I do not have a crystal ball that assists me to make that prediction but I am prepared to making the finding on the basis of the matters that I found favourable to him that he has good prospects of rehabilitation. I note, of course, that he is only 27 or 28 years of age. Again, I find in his favour on balance that he has expressed relevant remorse but it, again, is not a significant matter in this case. His plea of guilty is a relevant mitigating factor.
So far as Mr Garcia is concerned, I am prepared to find, in the context of what has been conceded by the Crown about his expressions of remorse, that he does have good prospects of rehabilitation, that he has relevantly shown remorse, and that his plea of guilty is a mitigating factor. Whether he is unlikely to re-offend is a difficult question to answer or address. Ultimately, I am prepared to make a finding on balance in his favour in that regard. But, again, I do so with some hesitation.
With regard to Mr Munoz, he, like Mr Mendoza, in my view, has prospects of rehabilitation, has relevantly shown remorse and his plea of guilty is a mitigating factor. I obviously could not find he was a person of good character, nor that he did not have a relevant criminal history, but I am prepared to find in his favour that he is unlikely to re-offend, having regard to his age and other matters.
With regard to Mr Tiznado, in his favour pursuant to s 21A(3) I find that he did not have any significant record of previous convictions. I am prepared to find on balance that he was a person of good character. I am prepared to find he is unlikely to re-offend, that he has good prospects of rehabilitation, that he has shown relevant remorse, again not a significant matter in the overall scheme of things, and his plea of guilty is itself a mitigating factor for which he receives a discrete discount.
In all prisoners’ favour, I have made a finding of ‘special circumstances’. There are a number of matters I have taken into account pursuant to s 44 of the Act. Firstly, I am sentencing the offenders, as I am required to do, as if they would be amenable to parole supervision in Australia. I believe, having regard to the fact that they are serving substantial terms of imprisonment that they will need an extended period of supervision to adjust to community living. They certainly would need professional guidance and direction in relation to matters concerning their management of financial matters, the finding of employment and their choice of associates. They are serving sentences of imprisonment in Australia for the first time, although at least Mr Mendoza and Mr Munoz are not strangers to being in gaol. But I am mindful of the circumstances of their custody being more onerous in a general sense for all of them because of their isolation from their communities and their language difficulties. This matter, as I said, is much more pronounced in the case of Ms Hernandez, given her commitments in Chile and her prior good character. Ultimately, I believe I should exercise the discretion I have to adjust the relationship of the non-parole period to the balance of sentence. I bear in mind too of course, I am fixing an aggregate sentence which has components of accumulation or partial accumulation inherently contained within it. Of course, accumulation or partial accumulation will in an instant case provide the basis for the exercise of the discretion to make a finding of special circumstances.
Ms Hernandez, in relation to the matters you have pleaded guilty to, in respect of sequence 1 you are convicted. Sequence 1 is the Commonwealth Migration Act offence. You are sentenced to 8 months imprisonment to commence on 27 November 2018 and to expire on 26 July 2019.
In relation to sequence 4 taking into account the matters on the Form 1, sequence 6 taking into account the matters on the Form 1, sequence 8 taking into account the matter on the form 1, sequence 34, 5 and 42, you are convicted of all offences. Taking into account all the matters on the Forms 1 pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, you are sentenced to an aggregate sentence of 5 years imprisonment commencing on 27 November 2018 and expiring on 26 November 2023. I fix a non-parole period of 2 years 9 months imprisonment commencing on 27 November 2018 and expiring on 26 August 2021.
That means you are eligible for release to parole on 26 August 2021. If you are released on that date or shortly after that date, or whenever, you will no doubt be taken into Commonwealth custody and deported from Australia, but you would probably understand that in any event.
The indicative sentences I fix are as follows. In relation to the offence described as sequence 4, taking into account sequences 30 and 40 on a Form 1, you are sentenced to 2 years 3 months imprisonment with a non-parole period of 1 year 3 months imprisonment. In relation to sequence 6, taking into account sequences 36 and 39 on a Form 1, you are sentenced to 2 years 6 months imprisonment with a non-parole period of 1 year 5 months imprisonment. In relation to sequence 8, taking into account sequence 11 on a Form 1, you are sentenced to 15 months imprisonment. In relation to sequence 34, you are sentenced to 2 years 6 months imprisonment. In relation to sequence 35, you are sentenced to 18 months imprisonment; 1 year 6 months imprisonment. In relation to sequence 42, you are sentenced to 18 months imprisonment.
In sentencing you, I have taken into account not only the matters favourable in your subjective case. I have taken into account what is, to my mind, self-evident from the facts that, whilst you committed crimes as part of a joint criminal enterprise, your role in the commission of the offences reflects a lesser moral culpability on your part. Whilst you are all equally responsible for your crimes, that is, you Mr Mendoza and Mr Garcia, that were jointly committed, it is to be fairly said that in circumstances where the other two were inside the premises whilst you were keeping watch, you specifically, for example, had no control over precisely what property would be taken from the premises.
Mr Mendoza, in relation to the sequence 1 offence, you are convicted. You are sentenced to a term of imprisonment of 9 months to commence on 27 November 2018 and expiring on 26 August 2019.
In relation to sequences 4, 6, 8, 30, 35, 36, 40, 42 and the various sequences on Forms 1 which are identified in the orders, as well as the separate offence which is 2019/00178100, sequence 1, you are convicted of all offences. Taking into account offences on Forms 1 pursuant to s 53A Crimes (Sentencing Procedure) Act 1999, you are sentenced to an aggregate term of 8 years imprisonment to commence on 27 November 2018, expiring on 26 November 2026. I fix a non-parole period of 4 years 9 months imprisonment to commence on 27 November 2018, expiring on 27 August 2023.
The indicative sentences are as follows. In relation to sequence 4, you are sentenced to 3 years imprisonment with a non-parole period of 1 year 10 months. In relation to sequence 6, taking into account sequence 7 on a form 1, you are sentenced to 3 years 3 months imprisonment with a non-parole period of 2 years 2 months imprisonment. In relation to sequence 8, taking into account sequence 11 on a Form 1, you are sentenced to 18 months imprisonment. In relation to sequence 30, you are sentenced to 2 years 3 months imprisonment. In relation to sequence 35, taking into account sequence 36 on a Form 1, you are sentenced to 2 years 9 months imprisonment. In relation to sequence 40, you are sentenced to 2 years 6 months imprisonment. In relation to sequence 42, you are sentenced to 4 years imprisonment, taking into account sequences 34 and 47 on a Form 1. In relation to the separately charged matter which is described as sequence 1, you are sentenced to 3 years 4 months imprisonment with a non-parole period of 2 years imprisonment.
You are eligible for release to parole, as I said, on 27 August 2023. When you are released you will be deported, I would imagine, but that is a matter for the Commonwealth authorities.
Mr Garcia, in relation to sequence 1, that is the Commonwealth Migration Act offence, you are convicted. You are sentenced to a term of imprisonment of 9 months to commence on 27 November 2018 and that expires on 26 August 2020.
In respect of sequences 4, 6, 8, 34, 35, 46 and 48 and the matters taken into account on the Forms 1, you are convicted of all offences. Taking into account all the matters on the Forms 1 pursuant to s 53A Crimes (Sentencing Procedure) Act 1999, I fix an aggregate sentence in your case of 7 years imprisonment commencing on 27 November 2018 and expiring on 26 November 2025. I fix a non-parole period of 4 years 3 months imprisonment commencing on 27 November 2018, expiring on 26 February 2023.
So the minimum period of time you will be in custody subject to this order is 4 years 3 months. You are eligible for release to parole on 26 February 2023.
The indicative sentences are sequence 4, taking into account the matter on the Form 1, sequence 11, 3 years imprisonment with a non-parole period of 1 year 10 months. Sequence 6, 3 years imprisonment with a non-parole period of 1 year and 10 months. Sequence 8, 18 months imprisonment. Sequence 34, 2 years 3 months imprisonment. Sequence 35, taking into account sequences 33 and 36 on a Form 1, 3 years imprisonment. Sequence 46, 2 years 3 months imprisonment. Sequence 48, taking into account sequences 40, 41 and 42 on a Form 1, 3 years 6 months imprisonment.
So the effective sentence, as I said, is 7 years with a non-parole period of 4 years 3 months. Do you understand that?
OFFENDER GARCIA: Yes, I do.
HIS HONOUR: Mr Munoz, could you stand up, please.
In relation to sequence 1, the Migration Act offence, you are convicted. You are sentenced to 9 months imprisonment to commence on 22 November 2018 and to expire on 21 August 2029 - 2019.
Re sequences 2, 6, 21, 23 and 28, taking into account the matters on the Form 1, you are convicted of all offences. Taking into account all matters on Forms 1 pursuant to s 53A Crimes (Sentencing Procedure) Act 1999, you are sentenced to an aggregate sentence of 5 years 6 months imprisonment to commence on 22 November 2018 and expiring on 21 May 2024 with a non-parole period of 3 years 3 months imprisonment commencing on 22 November 2018 and expiring on 21 February 2022.
The indicative sentences are as follows. Sequence 2, 2 years 6 months imprisonment. Sequence 6, taking into account sequence 24 on a Form 1, 1 year 8 months imprisonment. Sequence 21, 3 years imprisonment. Sequence 23, 3 years 6 months imprisonment. Sequence 28, taking into account sequences 22, 25 and 29 on a Form 1, 3 years 3 months imprisonment.
Do you understand that sentence, sir? Do you understand that you are eligible for release to parole on the date that I told you? Take a seat, thanks very much.
Mr Tiznado, do you mind standing up.
Mr Tiznado, in relation to the offences to which you pleaded guilty, you are convicted. In relation to sequence 1, you are sentenced to 9 months imprisonment to commence on 21 November 2018. That sentence expires on 20 August 2019.
In relation to sequences 5 and 6, 26, 28, 29 and 30, taking into account the four matters on Forms 1, you are convicted. Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999, you are sentenced to an aggregate sentence of 5 years imprisonment to commence on 21 November 2018, expiring on 20 November 2023. I fix a non-parole period of 3 years imprisonment commencing on 21 November 2018, expiring on 20 November 2021. That means you are eligible for release to parole on 20 November 2021.
In relation to the indicative sentences: In respect of sequence 1, 2 years 3 months imprisonment; sequence 6, with sequence 18 on a Form 1, 1 year 8 months imprisonment; sequence 26, 2 years 3 months imprisonment; sequence 28, 2 years 6 months imprisonment; sequence 29, with sequence 22 on a Form 1, 2 years 8 months imprisonment; sequence 30, 3 years imprisonment.
Do you understand the sentence I have imposed? You are eligible for release to parole after 3 years dating from 21 November 2018, the date you were arrested at the airport.
INTERPRETER: Yes.
HIS HONOUR: In fixing the sentences, by the way, Mr Crown and ladies and gentlemen at the Bar table, I have obviously taken into account the submission you made about the progression of a person’s criminal history by committing offences subsequent to offences for which at the time of the subsequent commission, the offender was not at that stage convicted.
HIS HONOUR: We’ll give you copies of those orders, subject to corrections of things that - in a couple of the orders as they were drafted, “A” was missing after s 53, for example and minor matters like that, but when we’ve fixed those things - all right, thank you to the interpreters very much. You've had to work very hard today, I appreciate that. The prisoners are excused and can go with the officers.

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Decision last updated: 04 May 2020

Medium Neutral Citation:	R v Hernandez; R v Mendoza; R v Tiznado; R v Garcia; R v Munoz [2019] NSWDC 882
Hearing dates:	16 & 17 December 2019
Decision date:	19 December 2019
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	In respect of the Commonwealth offence, each offender is sentenced to nine months imprisonment, with the exception of Ms Hernandez. I sentence her to eight months imprisonment in relation to that offence. In the case of each offender, that sentence runs concurrently with the aggregate sentence Hernandez – Convicted. Sentenced to a total aggregate sentence 5 years; non-parole period 2 years 9 months imprisonment. Mendoza – Convicted. Sentenced to a total aggregate sentence 8 years imprisonment; non-parole period 4 years 9 months imprisonment. Tiznado – Convicted. Sentenced to a total aggregate sentence 5 years imprisonment; non-parole period 3 years imprisonment. Garcia – Convicted. Sentenced to a total aggregate sentence 7 years imprisonment; non-parole period 4 years 3 months imprisonment. Munoz – Convicted. Sentenced to a total aggregate sentence 5 years 6 months imprisonment; non-parole period 3 years 3 months imprisonment
Catchwords:	SENTENCE – multiple breaking entering and stealing – totality – parity – effect on third parties – circumstances of custody for foreigners – professional burglars from overseas
Legislation Cited:	Crimes Act 1900 s 93T; s 193B Crimes (Sentencing Procedure) Act 1999 s 21A ; s 17A; s 21A; s 54A Migration Act
Cases Cited:	Attorney General’s Application Number 1 (2002) 56 NSWLR 147 Bugmy [2013] HCA 37 De La Rosa [2010] NSWCCA 194 Holder v R (1983) 3 NSWLR 245 Jimmy v R [2010] NSWCCA 60 Johnson v R (2004) 78 ALJR 616 MAK (2006) 167 ACrimR 159 Mapp [2010] NSWCCA 269 Markarian v R (2005) 228 CLR 357 Mill v R (1998) 166 CLR 59 Muldrock v R (2011) 244 CLR 120 Pearce v R (1998) 194 CLR 610 Postiglione v R (1997) 189 CLR 295 Quintero and ors [2018] NSWCCA 190 R v Ponfield (1999) 48 NSWLR 327 R v Tepania [2018] NSWCCA 247 R v XX (2009) 195 ACrimR 38 Veen No 2 (1988) 164 CLR 465
Category:	Sentence
Parties:	Regina (DPP Cth) Diana Elizabeth Veloso Hernandez (offender) Eduardo Rual Diaz Mendoza (offender) Matias Ignacio Wevar Tiznado (offender) Guiovanni Hernan Saladrigas Garcia (offender) Victor Manuel Parades Munoz (offender)
Representation:	Counsel: Mr Looms (offender Diana Elizabeth Veloso Hernandez) Ms Avenall (offender Diaz Mendoza) Mr Trevallion (offender Wevar Tiznado) Mr Quilter (offender Saladrigas Garcia) Mr Valentin (offender Parades Munoz) Solicitors: Mr Reville (DPP Cth) Mr Stidwill (offender Veloso Hernandez) Ms Van der Velde (offender Daiz Mendoza) Mr Shenouda (offender Wevar Tiznado) Mr Marsden (offender Saladrigas Garcia) Ms Wearin (offender Parades Munoz)
File Number(s):	2018/00348035 - Hernandez; 2018/00348038 - Mendoza; 2019/00178100 - Mendoza; 2018/00353808 - Tiznado; 2018/00348041 - Garcia; 2018/00353810 - Munoz
Publication restriction:	No