R v Marquez; R v Maranon

[2020] NSWDC 83

District Court

New South Wales

Medium Neutral Citation:

R v Marquez; R v Maranon [2020] NSWDC 83

Hearing dates:

31 January 2020

Date of orders:

31 January 2020

Decision date:

31 January 2020

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

Marquez: A term of imprisonment of 5 years, with a non-parole period of 3 years: at [30].
Maranon: A term of imprisonment of 5 years, with a non-parole period of 3 years: at [30].

Catchwords:

CRIME — Drug offences — Commonwealth offences — Import/Export border-controlled prohibited plant or drug — Sentence by State court for offence against Commonwealth law
SENTENCING — Federal offenders — Relevant considerations
SENTENCING — Relevant factors on sentence — Character of offence — Circumstances of offence — Co-offenders — Deterrence — General and specific deterrence — Prevalence of offence

Legislation Cited:

Crimes Act 1914 (Cth)
Criminal Code (Cth)

Cases Cited:

Chong v R [2011] NSWCCA 182
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Duflaut v R [2019] NSWCCA 21
Gwardys v R [2019] NSWCCA 62
Hili v R; Jones v R (2010) 242 CLR 520
Lindsay v R [2012] NSWCCA 124
Neto v R [2016] QCA 217
R v Nguyen; R v Pham (2010) 205 A Crim R 106
R v Sutton [2013] QCA 151
Woodrum v R [2019] NSWCCA 270
Xiao v R (2018) 96 NSWLR 1
Xiao v R (2018) 96 NSWLR 1
ZZ v R [2019] NSWCCA 286

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)

 

Matias Marquez (Offender)

  Alberto Maranon (Offender)

Representation:

Ms L Hancock (Crown)

  Mr T Sphor (Solicitor for the Offender – Marquez)
Ms N Evans (Counsel for the Offender – Maranon)

File Number(s):

2019/118189; 2019/118181

Publication restriction:

Nil

Judgment

1. On the afternoon of Monday 15 April 2019 two, non‑English speaking Argentinian nationals arrived at Sydney Airport on QF28 from Santiago in Chile. Mr Marquez, who is 35 years old, had in his luggage a one litre bottle of Havana Club alcohol which contained 620 grams of pure cocaine. Mr Maranon, who is 25 years old, was carrying in his luggage a one litre bottle of Glenlivet scotch which contained 653 grams of pure cocaine. The Crown does not allege a joint commission of the offence between these two gentlemen even though there is evidence of contact between them prior to their arrival in Australia.

2. They both pleaded guilty to one count of importing a marketable quantity of a border-controlled drug, contrary to s 307(2) of the Criminal Code (Cth), which carries a maximum penalty of 25 years imprisonment. Both of them have been in custody since their arrest on 15 April 2019.

3. The task of sentencing these gentlemen has been assisted greatly by the preparation of comprehensive written submissions by the Crown and by Ms Evans, for Mr Maranon and Mr Spohr, for Mr Marquez. There is no substantive contest between the parties as to the principles to be applied or as to the applicability of a number of allegedly comparative cases in determining the sentence.

4. Both have pleaded guilty at an early opportunity in circumstances which justify, in my view, a 25% discount for the guilty plea taking into account what was said by the Court in (Xiao v R (2018) 96 NSWLR 1 in relation to s 16A(2)(g) of the Crimes Act 1914(Cth) .

5. Both gave evidence today and confirmed that the histories they had given to the authors of reports were accurate, and they were not substantially challenged on those histories.

Agreed Facts

6. The agreed facts are, to a large extent, common to both cases although there are some separate facts to be dealt with in relation to the individual offenders. Ultimately neither counsel for the offenders nor counsel for the Crown suggest that there is any relevant difference in culpability or subjective circumstance so that it is common ground that the term of imprisonment to be imposed on each gentleman should be of the same order.

7. Both gentlemen were selected by Border Force officers for search and examination of their luggage which led to the discovery of the bottles containing the drug. Marquez had an itinerary showing that his ticket had been booked on 12 April at Levy’s Tours and his onward flights were booked from Sydney on 28 April going to Melbourne and then on to Santiago. The facts also showed he had booked a vegetarian meal as had Mr Maranon for his return flight.

8. Marquez participated in a recorded interview. He said that he had been planning for at least two months to travel to Australia, he had never been here before, he had bought his tickets last week from an airline company in Argentina, he was travelling alone and that he came for a holiday. He travelled to Mendoza in Argentina by bus and then had a connecting bus to Chile. He said he bought the bottle of Havana rum in a supermarket in Mendoza and that he had not opened it. He did not know anyone in Australia. His mobile phone had the contact details, specifically the mobile number of his co-offender, Maranon, and also a contact which appears to have been a man named “Chaz Tity”. There is a photograph on Maranon’s phone showing Maranon and Marquez sitting beside each other on 12 April looking at the camera and smiling. They were obviously familiar with each other as a further photograph on 11 April shows them together.

9. It is clear that the unknown person, Chaz Tity, or Charlie, was the organiser of the travel for both men to Australia and that that person took steps to avoid law enforcement detection by arranging for the importation of a border‑controlled drug by these two offenders.

10. Marquez’s fingerprints were not located on the bottle. Marquez has no recorded convictions in Argentina or Australia. He is not an Australian citizen and has no ties to the country. The same applies to Maranon, and although they are not Australian citizens and likely to be deported at the expiration of their non-parole period, that is not a matter to be taken into account in the sentencing process as the authorities clearly demonstrate.

11. Maranon’s luggage contained an itinerary also showing that his trip was booked a few days before his flight. He participated in an interview on the day of his arrest and gave a relevantly similar story to Marquez, namely, that he was going to Sydney for about two weeks, did not know anyone here, he was travelling by himself and he did not know anyone on the flight. He bought the bottle of scotch at a bottle shop in Argentina and he planned to drink it in Australia. He did not think there was anything strange about the bottle of whiskey.

12. Although the phone numbers of other were found in their respective phones, there is no evidence of correspondence between the phones of Marquez and Maranon. On Maranon’s phone there is a text conversation with Chaz Tity, in which he outlines to Maranon the details of his travel to Australia with Marquez. Chaz Tity suggested travelling and booking travel for two weeks to avoid drawing attention from a shorter trip and not to buy airline tickets at an airport. Chaz Tity said he had been doing this for 20 years and has not lost anyone. Maranon was to take out $500 with his card and give half to the friend to buy sneakers and a track suit to wear on the flight, and he told him he ordered the vegetarian meal option because it comes out earlier than the other meals which means you can hide the tray and get a second meal.

Subjective case - Maranon

13. The subjective case for Mr Maranon, as I have said, was adopted in evidence and not challenged. He was born in Tucuman, Argentina, the eldest of four boys. His father was a teacher and he had a favourable upbringing, although his two younger brothers had chronic problems with illicit drugs. He lived in the family home all of his life until his trip to Australia. As he told me today his earnings while working in custody, are being spent on telephone calls to his family in Argentina as frequently as possible. He had a normal education, studied mathematics at a tertiary level and planned to be teacher. He has an unremarkable health history and no mental illnesses.

14. He said that he got involved in this enterprise when a female told him she had done the same thing. He was offered $10,000, which was a large sum of money and could change his life. He thought he would be able to pay off credit card debts and then contribute to his family. He knew there was something illegal in the bottle and although he had first-hand knowledge of the problems of drug addiction through his two brothers he did not consider the implications, instead focussing on the financial incentive.

15. He expressed regret to the psychologist and to me and I accept his expressions of regret and remorse.

16. Obviously his time in custody is, and will be more difficult than for those for whom English is their native tongue. He has support from (a Catholic priest in his home town, from two co-workers and from a long-term friend. He acknowledged in evidence the harm that could be occasioned to families in Australia who had come into contact with drugs.

Subjective case - Marquez

17. Mr Marquez also grew up in the same region of Argentina and had an uneventful upbringing until his parents’ relationship disintegrated during his early teenage years. He is the eldest of three children. He had a normal education and left school at the end of year seven with the intention of becoming a professional basketballer. He worked in various other jobs when that did not come to fruition. He had a security business and worked in a supermarket. He reported drug use commencing with cocaine at age 18. His alcohol and cocaine use increased after his separation from his partner, who was the mother of his two daughters, aged ten and five. He had been struggling to financially support his daughters and not earning enough to cover his expenses when he met a man at a nightclub where he worked, who told him that he could earn money by travel. He said he was simply hoping to get his family back on track.

18. He also expressed regret and remorse and accepted responsibility for the offences and I can say that these are all too familiar histories of young men of prior good character being seduced into the promise of easy money without regard to the risks of significant terms of imprisonment.

19. He has support in references from his aunt and his mother, who are naturally traumatised by his absence from their family. They say that his time in custody has helped him understand the true value of family and the consequences of his actions and that he acknowledges that what he did deserves punishment, and that it was the biggest mistake of his life, notwithstanding it was done for a reason which he thought was valid at the time.

20. The Crown submissions helpfully remind the Court of the general principles for sentencing for Commonwealth offences and in particular for drug offences as summarised in R v Nguyen; R v Pham (2010) 205 A Crim R 106. The role of the offender is obviously an important matter to take into account when assessing the objective seriousness. The Crown acknowledges that although the full nature and extent of the role of each offender is not known, there are a number of factors in each case which point to this being described as serious offending with a significant degree of attempted deception, including in each case the inaccurate declarations on incoming passenger cards, the attempt to take the drug through Customs, and the incorrect assertions in the interviews as to travelling alone and as to the purpose of the visit in each case. It is accurate to say that the offenders did not act independently but they were linked to a larger group of individuals who dealt with illicit substances.

21. In addition to pointing out the strength of the Crown case on the question of the discount for the plea, to which I have referred, the Crown also acknowledges that each offender provided some assistance to police by way of providing the pass code to their mobile phone.

22. In each case while the conduct of the offender may be described as opportunistic, it was not a momentary or impulsive lapse in judgment and there was clearly a degree of preparation and engagement which highlights the need for specific deterrence in each case.

23. The prospects of rehabilitation are favourable in each case, in my view, given the prior good character and the lesson that they have learnt by their apprehension and detention and the evidence of strong family support and their willingness to rehabilitate themselves.

24. General deterrence is of course a significant factor to be taken into account along with the need for denunciation in cases such as this. The sentences to be imposed must be of such severity that they deter others from engaging in the importation of illegal drugs.

25. The Crown provided a schedule of cases which were said to provide some guidance as to the particular unifying principles of sentencing, bearing in mind what the High Court said in (Hili v R; Jones v R (2010) 242 CLR 520 in those cases, and the well‑known characterisation by McClellan CJ in DPP (Cth) v De La Rosa [2010] NSWCCA 194. I have also taken into account the facts and ultimate outcomes of the cases referred to the in the Crown Schedule of Cases including (Chong v R [2011] NSWCCA 182, Lindsay v R [2012] NSWCCA 124, R v Sutton [2013] QCA 151, Neto v R [2016] QCA 217.

26. As Ms Evans points out, her client Mr Maranon was on one view a mere courier, but as the Courts have often indicated drug importation operations only function with the use of people described as mere couriers who are, as I have said in these cases often young people of prior good character who are thought to be more able to avoid detection. The amount of cocaine, in the order of 600 grams in each case, is above the threshold of 250 grams but well below the two kilogram limit. The offending in each case is, in my view, is in the lower range of objective seriousness. Ms Evans’ ultimate submission was that given his unsophisticated role, his prior good character and his excellent prospects of rehabilitation Mr Maranon should be sentenced to a term in the lower range for offences of this nature.

27. Mr Spohr for Mr Marquez puts, in summary, that his offending was at the lowest levels of the hierarchy and that his subjective case shows that the offending was out of character. It was offending with a view to obtaining money to provide for his family and he has expressed remorse and pleaded guilty at the first opportunity. He points out that there is no evidence that the offender had the resources to pay for his own flights or to pay for the drugs or and any authority within the importation hierarchy. His only role was to carry an item into the country which he suspected might contain drugs. I accept his characterisation of the offending as a pedestrian example of a relatively unsophisticated offender in need of money, being offered a financial reward to travel to another country carrying an illicit item, that way does not, of course, detract from the seriousness of drug importation offences. Both offenders have favourable subjective cases which are taken into account.

28. Mr Spohr’s submissions helpfully delve into the comparative cases by pointing out some significant limitations, without being in any way critical of the selection of cases in the Crown’s submissions. One being the relative age of some of those cases in circumstances where there have been significant shifts in the Commonwealth sentencing practices in the last several years, including the application of the discount for the utilitarian value of the guilty plea as referred to in Xiao v R (2018) 96 NSWLR 1. Another important limitation was that many of the cases cited by the Crown involved offenders with significant criminal records. Mr Spohr took me to a number of recent cases summarised in the submissions including (Gwardys v R [2019] NSWCCA 62, (Duflaut v R [2019] NSWCCA 21, ZZ v R [2019] NSWCCA 286, Woodrum v R [2019] NSWCCA 270 lending support to his submission that a lack of criminal record tends to result in lower sentences. and that impact ( is more marked in respect of head sentences as was said by Harrison J in Woodrum v R [2019] NSWCCA 270 It was also submitted that, whileacknowledging the very limited sample size, he points to an apparent shift in the common law in relation to the utilitarian value of the plea, reflected in marginally lower sentences.

29. In each case the orders that I make are:

Maranon

1. The offender is convicted of the offence.

2. I impose a sentence of imprisonment of 5 years, to commence on 15 April 2019.

3. I impose a non-parole period of 3 years, expiring on 14 April 2022. The offender is eligible for release to parole on that date.

Marquez

1. The offender is convicted of the offence.

2. I impose a sentence of imprisonment of 5 years, to commence on 15 April 2019.

3. I impose a non-parole period of 3 years, expiring on 14 April 2022. The offender is eligible for release to parole on that date.

30. SPOHR: Only to undertake, your Honour’s probably aware that an obligation in the Crimes Act that--

31. HIS HONOUR: I have got to explain the sentence to them.

32. SPOHR: Subject to your Honour’s views and conscious that I am obliged to speak to Mr Maranon we could undertake to explain that to save your Honour the issue.

33. HIS HONOUR: I will just do it now.

34. Mr Maranon and Mr Marquez the sentence that I have imposed on both of you is five years with a non-parole period of three years and it commences on the day that you were arrested, 15 April 2019 and you are eligible for release on parole on 14 April 2022 that is three years. You will probably be sent straight back to Argentina after that, do you understand?

Note – These extempore remarks were revised without access to the court files

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Decision last updated: 03 April 2020