R v Seguel (No 2)

[2025] NSWDC 262

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Seguel (No 2) [2025] NSWDC 262

Hearing dates:

13-14 February 2025

Date of orders:

14 February 2025

Decision date:

14 February 2025

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See pars [80]-[83], [85].

Catchwords:

CRIME – SENTENCE – Found guilty by jury – Attempt to possess border controlled drug – Marketable quantity of heroin – Package containing drug intercepted and substituted – Accepted by offender from UCO posing as delivery man – Whether offender knew drugs in delivery – Inferences to be drawn from electronic evidence (mobile phones and computer tower) – Prior conviction in New Zealand – Claimed need to care for elderly parents – Whether further attempts at education (university degree) realistic.

Legislation Cited:

Criminal Code Act 1995 (Cth), ss 11.1(1), 20(1)(b), 307.6(1).

Firearms Act 1996, s 65(3).

Cases Cited:

RvKassir [2020] NSWCCA 88 at [100].

RvNguyen; RvPham [2010] NSWCCA 238; (2010) 205 ACR 106 at [72].

RvSeguel [2024] NSWCCA 37.

R v Chew [2022] NSWDC 325.

R v Keelan [2022] NSWDC 387.

R v Lau [2020] NSWDC 843 at [44].

ShalidavRex [2024] NSWCCA 55 at [88], [95]-[99].

Texts Cited:

Nil.

Category:

Sentence

Parties:

Crown – R (Cth)
Offender – Dario Alexander Seguel

Representation:

Counsel:
Crown – Mr Tran, C.
Offender – Mr Royce, B.
Solicitors:
Crown – Office of the Director of Public Prosecutions (Cth)
Offender - Nelson Kurucz Lawyers

File Number(s):

2021/00102584

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Dario Alexander Seguel stands for sentence as a result of a finding by a jury that on or about 13 April 2021 at Botany in this State, he did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely, heroin, and the quantity being a marketable quantity of that drug.

2. That is an offence against the law of the Commonwealth; namely, the Criminal Code Act 1995 (Cth) (“Criminal Code”), s 11.1(1) and s 307.6(1). The maximum penalty for this offence is imprisonment for 25 years. The offender is also to be sentenced for three State offences. They are known as sequences 2 and 3, and a further offence known as Sequence 4. Sequences 2 and 3 are each a charge of possession of a prohibited weapon without a permit. The maximum penalty for those offences is imprisonment for 14 years each. Parliament has prescribed a standard non‑parole period of five years. However, when the matters are on a s 155 certificate, which is the case here, the maximum penalty is only two years. The Sequence 4 offence was possession of ammunition without holding a licence or permit. That is an offence contrary to s 65(3) of the Firearms Act 1996, and the maximum penalty is 50 penalty units, $5,500.

Agreed Facts

3. Although the trial was with a jury, there were a number of agreed facts.  There were in fact two statements of agreed facts.  The first was marked as Exhibit A at the trial.  These facts were agreed:

"1.  On 6 April 2021, a consignment bearing air waybill of lading number 106450751 was at the FedEx station at 2 Military Road, Matraville, having arrived in Australia by air from Malaysia.  The consignment consisted of a brown cardboard box which was depicted in pictures 1, 2 and 3, annexed to the agreed statements of facts.

2.  The consignment was recorded as being sent from (MBE OLD KLANG ROAD) SKY PEST SDN, BHD.  I understand the last two abbreviations to represent the equivalent in the Malaysian language of 'proprietary limited'.  An address was then given at the Bedford Industrial Centre, Jalan Klang Lane in Kuala Lumpur, Malaysia.

3.  The consignment was addressed to be delivered to Joe Desmid, [REDACTED] Banksia Road, Botany, NSW, 2019, Australia.  Beneath that was given a telephone number.

4.  The consignment was declared by the sender as containing 'books, clothes, snacks' and THIS was the subject of picture 4 annexed to the facts.

5.  The box contained books, snacks and clothes which were the subject of pictures 5 and six annexed to the agreed facts.

6.  X ray and physical inspection of the cardboard box by the Australian Border Force revealed that secreted inside the cardboard of two sides of the box were two clear plastic bags containing a white powdery substance, pictures of which were annexed to the agreed facts.

7.  Subsequent analysis found the white powdery substance to contain heroin.

8.  The first clear plastic bag found inside one of the walls of the box contained a powder weighing a total of 175 grams with a purity of 68.5% heroin, which was the subject of picture 12.

9.  The second clear plastic bag found inside one of the walls of the box contained a powder weighing a total of 175.9 grams with a purity of 68% heroin, which was the subject of picture 13.

10.  The total amount of the pure heroin contained in the two clear plastic bags was 239.5 grams.

11.  The 239.5 grams of heroin located in the two clear plastic bags within the consignment was unlawfully imported into Australia.

12.  The consignment, with the heroin now removed, was reconstructed and taped shut.

13.  The reconstructed Consignment was provided to Senior Constable [“SC”] Daniel Pietersma. 

ARREST AND SEARCH WARRANT

14.  At approximately 2.24pm on 13 April 2021, the Accused was placed under arrest by police at his residence at [REDACTED] Banksia Street, Botany.

15.  Police conducted a search of the accused's residence.  The following items were seized by police during the search:

a.  An Umidigi mobile phone belonging to the Accused, which was assigned exhibit number X0001337818 by police;

b.  A Samsung mobile phone belonging to the accused, which was assigned exhibit number X0003584355 by police;

c.  A black computer tower belonging to the accused which was assigned exhibit number X0001337825 by police;

d.  A digital scale with brown residue on it found in a safe in the accused's bedroom which was assigned exhibit number X0001337831 by police.

16.  The black computer tower, the Umidigi mobile phone...and the Samsung mobile phone...were later analysed by Craig Horsley of the New South Wales Police Digital Forensic Unit who prepared a report in respect of those devices.

17.  The black computer tower and the Umidigi mobile phone...were later analysed by Renee Summerside of the New South Wales Police Digital Forensic Unit who prepared a report and a statement concerning those devices.

18.  The brown residue on the digital scales was tested by New South Wales Police and found to contain cocaine.

19.  The accused used the email address [email protected].

20.  And the [mobile telephone] number (redacted) was recorded in the Australian integrated public number database as being subscribed to a person with the name of 'Jason Meeth'.  Police officers spoke with Jason Meeth, and he provided a statement to the police as follows:

a.  He is the owner and user of a different phone number which he has used for five or six years.

b.  He also uses another phone for work purposes, being a different phone number for his employment.

c.  He can't recall what mobile phone number he used prior to that.

d.  The phone number (redacted) is not a number he recognises and has never used that number.  [Back to the first number I interpolate that the redacted telephone number is the telephone number given in [3], that is, the details of the consignee.]

PREVIOUS SURGERY

21.  On 8 July 2020 at the Prince of Wales Private Hospital, the accused underwent a form of cranial surgery, being a bifrontal craniotomy for a large parafalcine bifrontal meningioma, being a form of cancer in his brain.  [I interpolate that that is relevant only to identifying one of the various messages disclosed in the electronic evidence.]

22.  The accused has required regular scans of his brain and medical consultations since that date."

4. The further set of agreed facts was Exhibit S at the trial.  This was largely a précis of terminology used in what was referred to in the trial as the electronic evidence and also gives a précis of drug terminology and values.  It is not currently relevant other than its recording that the accused said to the police that he regularly received deliveries for other people. 

Delivery of the Package

5. The person nominated on the consignment records as the consignee of the parcel was a Mr Joe Desmid.  He is a real person.  Indeed, he is a personal friend of the offender and indeed, Mr Desmid asked the offender to be the godfather of his son, and the offender agreed to do that.  That was obviously many years ago.  The offender and Mr Desmid maintained contact over many years.  Indeed, there was a meeting between the offender and Mr Desmid on 30 March 2021.  Mr Desmid gave evidence on behalf of the Crown.  Mr Desmid denied any knowledge of the consignment, denied that he ordered the consignment or had any knowledge about it at all.

6. After the package had the heroin removed and was repackaged, it was taken by SC Pietersma to the address shown on the consignment note which was the address at which the offender resided with his elderly parents.  On 13 April 2021, he initially attempted to deliver the box containing the consignment at [REDACTED] Banksia Street, Botany.  He was not wearing police uniform. He was wearing a high visibility shirt, a cap, cargo pants and work boots.  He was in disguise as a deliverer of parcels.

7. He made his first attempt to deliver the parcel at 11.27am.  He knocked at the front door of the premises but there was no answer.  When he received no answer, he left the front of the premises, returned to the vehicle which he was driving and drove a short distance away and made some notes.  He made a second attempt to deliver the parcel at 1.23pm.  He repeated the process that he had initially undertaken at 11.27am.  On the second attempt, an elderly female opened the front door.  She appeared to be between 70 and 80 years of age and had grey hair.  This was the offender's mother.

8. According to the Senior Constable, he said to this lady, "I have a delivery for Joe Desmid; is he home?"  The lady replied that he was not at home but that he would be back soon.  The Senior Constable asked her how long would he be, meaning how long would it be until he returned home, and the lady replied, "Between 30 minutes to an hour".  He also told her that he had a parcel that he required the consignee to sign.  He said that he would be back soon.

9. He saw a male behind that lady; that male was later identified as being the offender's father.  The Senior Constable made a third attempt at 2.02pm.  On that occasion, the door was opened by the same lady.  The constable was able to identify the lady as the offender's mother because after the police executed the search warrant, he entered the premises and she was identified to him.

10. When the offender's mother opened the door and saw the SC posing as a delivery man, she said, "I'll go get him".  The offender then came to the front door.  He spoke first.  The offender said to the Senior Constable, "Is this for me?  What is this?"  The Senior Constable said to the offender, "Are you Joe Desmid?"  The offender replied by saying, "Yes".  The offender then said, "What have you got?" and the Senior Constable told him that he had a parcel for which he required a signature.

11. The SC then gave the parcel to the offender, and a TNT run sheet with position 7 on that run sheet having Joe Desmid's name on it.  The offender then signed the document beside the name.  Exhibit Q became a copy of that run sheet.  It is almost illegible.  However, there does not appear to be any real dispute that the document was signed by the offender next to Mr Joe Desmid's typed name.

12. The Senior Constable then went back to his motor vehicle, drove a short distance away and made further notes in his notebook about the interaction that he had just had with the offender.  He then gave the TNT run sheet to two other police officers:  Senior Constable Ashley Rodwell and Senior Constable Christopher Bradley. 

Search

13. The police then executed a search warrant at the offender's residence.  A video film which was taken at the commencement of the execution of the search warrant was played to the jury. It was clear that the offender's mother became very upset, and the offender's father was also perturbed, and there was a lady friend of the offender present who also was present and tried with the offender to calm the elderly parents of the offender down. The recording of what was referred to as a "walk through" at the accused's premises, that is, when the search warrant was being executed on 13 April 2021, became Exhibit B.

Electronic Evidence

14. A large amount of the evidence was concerned with what was on the offender's telephones, and what could be found on the black computer tower.  As far as the electronic evidence is concerned, there were introduced into evidence a forensic analysis report made by Renee Summerside, and an expert certificate made by Craig Horsley, a departmental professional officer, grade 4, working at the Digital Forensic Unit of the High Tech Crime Branch of the New South Wales Police Force. His certificate became Exhibit O.  The certificate of the report of Ms Summerside was Exhibit N.

15. One important finding was that on one of the accused's telephones was a picture of another telephone which contained a photograph of part of the consignment paperwork which contained the details of the consignee.  That photograph was made by the offender on 31 March 2021, a day after he had met Joe Desmid on 30 March 2021.  As I have said, Joe Desmid gave evidence.  However, he was not contacted by the offender on 31 March 2021 or at any time thereafter until the delivery of the parcel to the offender's residence on 13 April 2021.

16. In other words, the offender knew on 31 March 2021 that there was a parcel addressed to Joe Desmid at the offender's premises, but the offender does not appear to have contacted Joe Desmid to ask him what that parcel was about.  It is also clear from the evidence that the offender knew from what he was told by Senior Constable Pietersma, that the parcel was for Joe Desmid, and the offender nevertheless took possession of the parcel and signed for it next to Joe Desmid's name.

17. The Crown case is that the offender was reckless as to his taking delivery of the parcel, reckless as to whether it might contain a border controlled drug.  The bulk of the electronic evidence concerned the offender's familiarity with the drug trade and his familiarity with sites on the “dark web” where illicit drugs could be ordered.  As ought be clear from what I have already said, the small set of scales found in a safe in his house were found to contain traces of cocaine. The offender had in the past been a regular consumer of cocaine, and most of his electronic voyaging through the dark web and the internet concerned that illicit substance.

Offending in New Zealand

18. On 24 August 2006, the offender appeared before Baragwanath J, sitting in the High Court of New Zealand at Auckland.  He appeared before his Honour for sentence.  There is before me in Exhibit SB, a copy of his Honour's remarks on sentence, although they appear to call such documents in New Zealand, "sentencing notes".  As used to occur much more frequently in this State and in other common law jurisdictions, the remarks on sentence were addressed to the offender in the second person.

19. The remarks contain this:

"1.  Mr Seguel, you pleaded guilty to two counts, one of importing the Class A controlled drug, cocaine, which carries a maximum penalty of life imprisonment, and the other of attempting to export from New Zealand that drug, which carries a sentence of a period not exceeding ten years.  The volume of cocaine involved was 546.2 grams of 23% purity, which calculated out is the equivalent of 125.626 grams of pure cocaine.

2.  You are a man of 41 years.  You and your family immigrated from Chile to Australia and your fiancée immigrated to Australia at about the same time.  You have lived in Sydney for most of the time since.  You are a man of obvious ability.  You have worked as a self employed credit analyst and have a range of qualifications in accounting, hospitality and human resources.

3.  ...

4.  You have no previous convictions in New Zealand and there is no evidence of convictions in Chile or Australia.

5.  The facts which you have acknowledged are these:  on 23 January of this year, you left Sydney Airport for Chile and were due to return to Sydney on 15 February.  In the interim, on 11 February, your brother flew from Sydney to Auckland and stayed at an Auckland hostel.  He was booked to fly back to Sydney on the same day as you.

6.  On 12 February, Ms Christia arrived in Auckland from Sydney and met up with your brother.  On 14 February, you flew from Chile to Auckland.  You took onto the aircraft in Santiago a number of bottles of face cream and lotion.  Some of these bottles were part of a three bottle gift pack.  Those bottles were later found to contain the drug that I have described.  You carried the bottles in a duty free bag.

7.  Your flight arrived at about 4.04am on the morning of 14 February in Auckland Airport.  After disembarking, you went through to the departure hall and sat by yourself with the bag containing the bottles of cocaine.  At about the same time, your brother and Ms Christia left their accommodation and took a shuttle to Auckland Airport.  You and Ms Christia communicated by texting on your mobile telephones while you were waiting in your respective parts of the airport.

8.  At about 6am, your brother and Ms Christia checked in for their Sydney flight, completed departure procedures and walked through to the departure hall.  There they met you at a quiet end of the hall area.

9.  After some conversation and looking through the duty free bag with the bottles containing cocaine, your brother and Ms Christia went to a duty free shop, leaving you with the baggage.  They bought items from the duty free shop, including a gift pack of face cream and lotion bought by Ms Christia, of the same brand and packaging as the one that you brought with you from Chile that contained the cocaine.  Your brother took the shop label off the gift pack that Ms Christia had just bought and put it on the one that you had brought from Chile.  The obvious purpose of this was so that the gift pack you had brought from Chile with cocaine in it would look to the Australian authorities as though it had been bought in New Zealand, which has very close links with Australia, as all Australasians know.  We trust each other.

10.  You then swapped the bottles of duty free items and face cream and lotion between the different bags so all the bottles with the cocaine went from your possession into that of your brother who would take the drugs through to Australia with Ms Christia.

11.  The three of you stayed together until about 8.20am when your brother and Ms Christia went to the departure lounge to board their aircraft.  Your brother had the duty free bags with the cocaine.

12.  The police who had been watching, stopped your brother and Ms Christia.  The New Zealand customs officers spoke to you.  There was then a customs search which located the bottles containing the cocaine.

13.  ...

14.  ...

15.  The pre sentence report records that you had been using cocaine on a daily basis.  You recounted consuming at least 5 grams of cocaine at the party you had arranged to celebrate leaving Chile.  You told the probation officer that on the afternoon before your departure, friends were packaging the cocaine you intended to take Australia, and you said you snorted about 2 grams of cocaine as well as drinking some bourbon.

16.  The probation officer took the view that your substance use increased the likelihood of an offence being committed by impairing your decision making skills.  He considered that your decision to buy the cocaine and take it to Australia was made in the company of drug using associates.  You gave an account of feeling an adrenaline rush as you got through the Chilean customs, being a mix of fear of being caught and a feeling of superiority from the use of cocaine.  You told him that cocaine could be bought in Chile for about $5 a gram, while in Australia, it cost about $200 a gram.  You said that you felt that your friends would be impressed, and you would feel superior and proud that you got away with your smuggling.  You expressed remorse, saying that you have let down Ms Christia, who is your fiancée, and your family."

20. At [36], his Honour observed that the offender was entitled to an abatement of 25% for his plea of guilty and the net result on a sentence of nine and a half years was a sentence of seven years and one and a half months which he rounded down to seven years.  On the attempt to export the drugs from New Zealand, his Honour sentenced the offender to five years imprisonment, with that sentence to be served concurrently with the seven year sentence.  Apparently, in New Zealand at that time, non‑parole periods were not fixed. The offender’s letter to the Court, which is Exhibit S1, shows he served three and a half years of his seven year sentence.  I assume that after three and a half years; the offender was released on parole. 

Self Improvement

21. He returned to Australia in 2009.  In his letter, the offender said this:

"In 2006, I was incarcerated in New Zealand for drug trafficking, for which I pleaded guilty.  During my imprisonment, I was determined to turn my life around.  I undertook computing courses to improve my skills, attended church services regularly to find spiritual guidance, and participated in Narcotics Anonymous every single week.  Additionally, I completed a comprehensive rehabilitation program, which played a crucial role in my early release after serving 3.5 years of a seven year sentence.  Since returning to Australia in 2009, I have not consumed any illegal drugs and have worked to build a life centred on personal growth, family, and education".

22. I can accept everything but the last sentence of that statement.  It is clear that the police found in the safe in the offender’s premises a set of scales that had on them cocaine.  That suggests that he may still have been using that drug, or that he may have been trafficking in that drug.  That is only a suggestion; it cannot be a positive finding.  However, it is clear from the electronic evidence as it was described at the trial that the offender has a distinct interest in drug trafficking.

23. That may, of course, be academic, but it may not be.  That was a matter for the jury to take into consideration in their deliberations.  In the offender’s letter, he goes on to say this:

"Your Honour, I have taken steps to turn my life around since my arrest.  I have completed a certificate 4 in accounting, a certificate 3 in entrepreneurship and new business, and am currently pursuing a Bachelor of Accounting.  I am determined to become a productive member of society and to contribute positively to my community.  I believe these educational pursuits demonstrate my commitment to rebuilding my life and contributing positively to society.  I am fully prepared to engage in any rehabilitation, counselling, or community service programs that the Court may deem appropriate".

24. The evidence tells me that the offender has enrolled in the degree of Bachelor of Commerce at the Ultimo campus of TAFE.  That degree has in it a major in Accounting.  The course commenced on 10 February 2025 and will not be completed until 30 June 2027.  The cost of that course is stated on Exhibit S2 to be $33,720.  Clearly, as today is 14 February, the offender may only have attended a few lessons since he commenced the course.

25. Exhibit S3 is a Certificate IV in Accounting and Bookkeeping which the offender obtained from TAFE on 2 August 2023.  Why it is necessary to study for the bachelor's degree after obtaining the Certificate IV in Accounting is not clear to me.  However, inconsistently with trying to advance his skills which may enable him to obtain work, on 12 December 2024, the offender applied for the Disability Support Pension to be given to him by the Commonwealth. Exhibit S8 tells me that Centrelink expects to finalise the offender’s claim between 10 March and 17 March this year. 

26. The offender is now 60 years old.  The bachelor's degree will not be completed until 30 June 2027, that is, for another two years, when the offender shall be 62.  If he have the Disability Support Pension awarded to him, it is difficult to see the offender re‑entering the workforce with so many qualifications in one field, yet with little incentive to earn because of the Pension.

Sentencing Principles

27. The general principles in sentencing for drug importation offences, including attempted possession of unlawfully imported border controlled drugs, were collated in R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 ACR 106 (‘Nguyen and Pham’).  They are contained in [72] of that judgment, and they are these:

“(a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee at [27];

(b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]; R v Lee at [25];

(c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the “mastermind” does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26];

(d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen; Leung v The Queen at 607-608 [64]; R v Lee at [23]-[24];

(e) the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar v The Queen (No. 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46];

(f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32];

(g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v the Queen ; Leung v The Queen at 607-608 [64];

(h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552-553 [114];

(i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6];

(j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49];

(k) where offenders are not young (Mr Nguyen was 42 years’ old and Ms Pham was 32 years’ old), the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 474 [98];

(l) where an offender (such as Ms Pham) is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing Judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise: El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208 at 217 [33]-[37];

(m) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs: R v Ferrer-Esis (1991) 55 A Crim R 231 at 230;

(n) the range of sentences referred to in the decision of the Court of Criminal Appeal in R v Wong and Leung remain useful to sentencing for offences of this type; although they have no validity as guidelines, their utility results from the fact that they are based on the patterns of actual sentences, although allowance must be made for the repeal of s.16G Crimes Act 1914 (Cth) : R v Taru [2002] NSWCCA 391 at [12]; R v Bezan at 438 [34]-[36]; R v Mas Rivadavia [2004] NSWCCA 284; 61 NSWLR 63 at 67-68 [65]-[66]; R v SC at [27]; R v Chea [2008] NSWCCA 78 at [40];

(o) insofar as each Respondent asked the sentencing Judge to take into account on sentence offences under s.16BA Crimes Act 1914 (Cth) , it is necessary for a sentencing court to comply with the general principles applicable to the State regime for taking offences into account in accordance with Attorney General’s Application Under Section 37 Crimes (Sentencing Procedure) Act 1991 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146: R v Poynder [2007] NSWCCA 157; 171 A Crim R 544 at 550 [28]; Assafari v R [2007] NSWCCA 159 at [9].”

28. In Shalida v The King [2024] NSWCCA 55, Gleeson JA (with whom Rothman and Cavanagh JJ concurred) quoted from that list with approval at [88]. In R v Kassir [2020] NSWCCA 88, Bathurst CJ (with whom Fullerton and Hulme JJ concurred) referred to that passage from Nguyen and Pham and said this at [100]:

"To this statement, I would only add what was said by Bell and Gageler JJ in R v Pham (2015) 256 CLR 550 at [45] that 'the quantity of drug is not the controlling factor when it comes to the assessment of seriousness' but will usually be a relevant and in some cases, the most significant consideration".

I have to bear those principles in mind when setting the sentence to be passed upon the offender. 

29. In addition to the conviction that he has in New Zealand, he has only one other conviction of which I am aware in this State.  The other conviction was one recorded by the Waverley Local Court on 9 April 2019 for an offence of common assault committed on 23 July 2013 for which a fine of $500 was imposed, together with a bond to be of good behaviour for a period of 12 months.

Considerations

Medical Conditions

30. A number of factors have to be taken into account.  The first is the offender’s age.  At the age of 60, he would find that gaols are, in the main, occupied by persons much younger than him.  However, incarceration would not be a surprise to him as he has spent three and a half years in a gaol in New Zealand.  The offender’s health is certainly a pertinent consideration.  In his letter, he refer to his "severe sleep apnoea", to bilateral keratoconus and to mobility issues.

31. There is before me a medical report of Dr Emily Kemp FRACP, a staff specialist in the Respiratory and Sleep Department at the Prince of Wales Hospital.  She records that in the past, the offender has come under the care of Professor Paul Thomas.  Before me is a diagnostic sleep study, bearing date 24 August 2023, reported by Dr Nicholas Murray, a respiratory and sleep physician.  According to Dr Kemp's report, the offender initially presented to the relevant clinic at the Prince of Wales Hospital in May 2023 where he described symptoms, including sleep fragmentation and severe daytime somnolence.

32. It was noted at that time that the offender was obese, and his other documented medical history included the frontal meningioma which led to his brain surgery in 2020, diabetes mellitus type 2, gout and rheumatic polymyalgia.  Polymyalgia merely means pain in the muscles of many parts of the body.  Dr Kemp said that the offender had been diagnosed with severe obstructive sleep apnoea (‘OSA’) by the diagnostic sleep study made in August 2023.

33. Dr Kemp expressed the view that the offender’s obesity was the most likely underlying cause of his OSA.  By the time that he was reviewed by Dr Kemp in December of last year, the offender had not had any specific treatment for his OSA, but Dr Kemp made a prescription for a CPAP device on 5 December 2024.  That is Exhibit S7.  Dr Kemp said this:

"CPAP is widely considered gold‑standard therapy for OSA by preventing upper airway collapse and thereby allowing unimpeded airflow during sleep.  CPAP is delivered via facemask and is expected to be worn for all of sleep time.  Unless Mr Seguel is able to achieve sustained and significant weight loss, I expect treatment with CPAP to be life‑long.

It is also worth noting that Mr Seguel's severe OSA places him at increased risk for other serious health complications such as cardiovascular disease, hypertension, arrhythmias, cognitive impairment and metabolic derangement, all of which can have further long‑term impacts on his health and quality of life.  Ongoing management of these risks will require careful monitoring, and if necessary, the involvement of other healthcare professionals."

34. However, as I understand it, if the offender regularly uses the CPAP device during sleep each night, there will be a lessened risk of those complications.  Dr Kemp went onto say this:

"It is most likely that OSA has been present in Mr Seguel for many years leading up to his diagnosis.  A cognitive and mental health assessment was not performed either by myself or my sleep specialist colleagues in the preceding clinic visits, and therefore, I am unable to specifically comment on Mr Seguel's executive function".

35. Dr Kemp was asked to comment on the impact of incarceration on the offender’s diagnosis and management of his OSA.  She pointed out that incarcerated individuals may be treated for OSA with CPAP.  She qualified that by pointing out that there may be no easy availability of having necessary check‑ups for OSA whilst incarcerated.

36. The use of CPAP devices is quite common.  I regularly go on circuit and have often found members of the Bar boarding planes carrying their CPAP devices onto the plane to take with them on the same circuit that I am about to conduct.  There is no evidence of any cognitive of mental health assessment that has been prepared.  However, I have read the offender's lengthy letter which is Exhibit S1.  It is perfectly composed in very good English, clearly outlined and does not suggest that he has any problem with his executive function, that he has any problem with his mental health or cognition.

37. It appears to be undoubted that the offender has bilateral keratoconus.  Without using custom made hard contact lenses, he is legally blind.  However, he needs biannual ophthalmological reviews for that condition.  I expect that should the offender be incarcerated that there will be some facility through Justice Health for an ophthalmological review should it be necessary, but perhaps not biannually, but annually.

38. There are hospital records from the Prince of Wales Hospital concerning the offender’s admission between 3 July 2020 and 10 July 2020.  That was the admission for the brain surgery to which reference has made earlier; the meningioma was benign not malign.  There are also hospital records before me for an admission between 29 February 2020 and 1 March 2020, that is, a shorter prior admission, and that provides this "summary of care":

"Thank you for reviewing Mr Seguel.  He is a 55 year old male who presented with back pain when mobilising and urinary incontinence.  He gives a history of neurogenic claudication for 12 months.

‑ Pain in bilateral posterior thighs only on mobilising, especially climbing stairs

‑ Alleviated by sitting and lying down.

‑ No hypoesthesia, paraesthesia or weakness.

- Incontinence for more than six months that is sometimes accompanied by urge and sometimes, urgeless.

‑ No faecal incontinence

‑ Can mobilise ten kilometres without stopping from the neurogenic claudication".

39. A CT scan of the lumbar spine was performed which showed multilevel disc disease with moderately severe canal stenosis at L4‑L5.  The impression which was given as a result of that admission was that the offender had chronic progressive neurogenic claudication from lumbar stenosis.  However, I suspect that some of the symptoms there described probably resulted from the meningioma which was the subject of the surgery performed in July of 2020. I accept that the offender has degenerative disc disease in the lumbar spine, but that is not uncommon for a man of his age.  The fact that the offender could walk for ten kilometres without a problem means that the condition was not at all severe. 

40. There is a report from his general practitioner, Dr Charles Ellis, bearing date 16 January 2025.  That refers both to the offender’s OSA and his ocular condition. With reference to the offender’s back complaint, Dr Ellis states that the offender is being reviewed every 12 months by Dr Willis, I assume, at the Prince of Wales Hospital, and he has an annual MRI.  Dr Ellis notes that in the past, the offender has benefited from periods of regular physiotherapy to prevent further "lower limb deterioration" but that can also be obtained by regular exercise.

41. The offender's medical conditions are such that they would not prevent the imposition of a sentence of imprisonment, but it might make the experience of imprisonment more difficult.

Care of Elderly Parents

42. The next matter to take into account is the offender’s caring for his elderly parents.  I understand that the offender’s father is now 88 years old. His mother is probably a few years younger. There is no up to date medical evidence about either of them.  I have records concerning the offender’s father's admission to the Prince of Wales Hospital on 9 December 2024 until his discharge on 23 December 2024.  Those records are Exhibit S12.

43. The records tell me that the offender’s father has a past medical history of hypertension, atrial fibrillation, ischemic heart disease with a need for coronary stents, and right sided hearing loss.  This "social history" is recorded concerning the offender's father:

"From home with wife and son.  No services.  Needs assistance showering, cooking, cleaning.  Mobilises independently, nil aid.  Wife is EG, Ivan (son) is second EG and PoA (lives in Oyster Bay)".

I understand that the offender's brother, Ivan, who lives in Oyster Bay has an enduring power of attorney for the benefit of his father, and the reference to "EG" may refer to guardianship shared between the offender's mother and the offender's brother over the offender's father. 

44. There is in evidence a letter from Ms Sheryl Keren of Malabar.  She is a long‑term family friend.  Her letter is Exhibit S13. She tells me of no qualifications that she has to diagnose any medical conditions.  She refers to the offender's parents as being "frail", but many older people can be so described.  Ms Keren refers to the offender's mother as being "forgetful", but many older people are; even judges are required to retire at the age of 75 because such things are commonly found in older people.

44. Ms Keren expressed this view:

"The idea of them [the offender's parents] being left alone, without the one person who truly cares for them, is heartbreaking.  I am genuinely afraid of what will happen to them if he [the offender] is not there".

However, that appears to overlook the fact that the offender's parents have a second son who lives at Oyster Bay which is not very far from Mascot, a journey of probably no more than 30 minutes.  Of course, if the offender is not there to assist his parents, it may be that the brother will be more solicitous and visit them more often.

46. Equally, other family friends such as Ms Keren herself could assist, and our society fortunately has organisations which can help the elderly stay in their home.  It is much better that they do that than become institutionalised in nursing homes or hospitals.  Again, this is another matter I should take into account.

Delays in Proceedings

47. There has been delay in these proceedings coming on for trial.  As ought be clear from the facts that I recited earlier, the offender was arrested on 13 April 2021.  He was initially bail refused.  On 5 May 2021, the offender was granted bail and was released from custody.  It is now agreed that he had been in custody for 23 days.  On 14 December 2021, the offender was committed for trial to this Court.

48. The original trial date was 21 November 2022.  That trial was vacated on the application of the offender.  The next trial date allocated was on 17 April 2023.  That trial was vacated on the application of the Crown.  The offender's third trial was to commence on 20 November 2023 before Turnbull SC DCJ.  However, that trial was vacated on the application of the Crown before a jury was empanelled after his Honour ruled on a number of items of evidence that the Crown wished to adduce.

49. His Honour's ruling was against the Crown.  The Crown asked that the trial date be vacated in order to appeal the rulings that his Honour had made.  On 15 March 2024, the Court of Criminal Appeal in R v Seguel [2024] NSWCCA 37 allowed the Crown's appeal. The matter was then set down for the trial on 20 November 2024; that trial commenced before me on that date and the jury returned its verdict on 27 November 2024.

50. The Crown then made a detention application which I declined on the basis that it was necessary for the offender to obtain evidence concerning his health and that of his parents.  I fixed the sentence date for yesterday and the sentencing hearing continues today.  Essentially, the trial could have been heard and determined during a week commencing 17 April 2023, some two years ago.

51. The rest of the delay has been caused by the adjournments sought by the Crown, and the adverse rulings made by Turnbull SC DCJ. It was necessary that the hearing date fixed for late November 2023 was vacated to allow for the appeal to be heard and determined.

52. When bail was initially granted on 5 May 2021, the offender was required to report to Mascot Police Station three days per week.  However, those bail conditions were varied on 29 June 2021 and the offender was only required to report to the Mascot Police Station between 8am and 8pm on Wednesday of each week; that was not an onerous regime.  The regime could be described as somewhat onerous between 5 May and 29 June 2021, a period of less than two months.

53. When I declined to grant the detention application, I reinstated the requirement to report to Mascot Police Station, three days each week and certain other conditions, but that was in lieu of immediately incarcerating the offender.  However, I accept that there has been delay in these proceedings coming on for trial at the proper time.

54. Another factor I bear in mind is that the trial was conducted expeditiously.  The real issue to be decided by the jury was whether the Crown could prove beyond reasonable doubt the necessary mens rea.  The jury did that and hence, these proceedings.  However, no point was taken about many issues at all at the trial, making it relatively short.

Comparable Cases

55. There has been much resort in addresses to what may thought to be comparable cases which might assist me in determining the appropriate sentence.  It has been strenuously argued by Mr Royce on behalf of the offender that a sentence of two years or less for the principal offence is available, and that I would impose an ICO if I so determined.

56. There are a number of cases before me which assist.  I have been greatly assisted by the decision of Shalida v Rex [2024] NSWCCA 55 (‘Shalida’) and the précis provided by Gleeson JA of some earlier cases.  Shalida was a case involving the attempted possession of an unlawfully imported drug; the drug was cocaine concealed in a mail consignment.  The amount of drug involved was 63.17 grams of pure cocaine.

57. The sentencing judge, O'Rourke SC DCJ, sentenced the offender to imprisonment for two years and six months, and permitted his release on recognisance after serving a term of one year and three months, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). The recognisance which he entered required him to be of good behaviour for a period of three years, commencing from 30 January 2024.

58. Commencing at [95] his Honour said this:

"[95]  R v Boutros [2013] NSWDC 291 concerned attempted possession of cocaine which was concealed in a mail consignment; the net (pure) weight was 324.1 grams. A conviction appeal was unsuccessful: Boutros v R [2015] NSWCCA 171. There are some similarities with the present case in that the offender was approaching 30 years of age with no prior convictions. However, there were material differences, including the objective criminality of the offending was assessed as relatively low and the offender was not to be paid or receive any benefit for what he did. The offender was sentenced to 2 years' imprisonment to be served by way of an ICO. The lesser penalty imposed in this case is not useful in the resolution of the manifest excess ground, given the material differences referred to above.

[96]  Patel v R [2022] NSWCCA 93 concerned several drug‑related offences, including attempted possession of MDMA (75.45 grams pure) which was concealed in a mail consignment, trafficking a controlled drug (MDMA ‑ 9.31 grams pure) and two further attempted possession offences were taken into account on a s 16BA schedule. The offender was 26 years old at the time of offending and of previous good character, however, this was not taken into account in light of the repeated offending, which is a difference with this case. An appeal against the severity of sentence was successful on the basis that the sentencing judge had not taken into account the offender's demonstrated remorse. (By contrast, in this case there were findings that the applicant was of good character but lacked real genuine remorse.) On appeal, the offender was resentenced to 3 years and 6 months' imprisonment on the attempted possession charge and 15 months' imprisonment (with 6 months' concurrency) on the trafficking charge. A single non‑parole period of 2 years' imprisonment was imposed.

[97]  R v Chew [2022] NSWDC 325 [‘Chew’] concerned attempted possession of heroin (186.27 grams pure) concealed in a parcel sent from Malaysia, a separate offence of supply prohibited drug, methamphetamine, and an offence of dealing with the proceeds of crime over $100,000 dealt with on a s 16BA schedule. The offender's role was found to be low‑level and for financial gain of a one‑off payment of $500. The offender was 25 years old; he gave evidence on sentence, and there was a finding that he was a person of good character. There also was a finding that he was contrite and had been cooperative with authorities. After applying a 25% discount for an early guilty plea, the offender was sentenced to a term of imprisonment of 3 years and 4 months with a non‑parole period of 1 year and 9 months for the Commonwealth offence, and a term of imprisonment of 1 year and 6 months for the State offence, with 9 months' concurrency. Although the attempted possession concerned a larger quantity of a prohibited drug than that in the present case, the objective criminality of the offender was less than the applicant and the offender had a stronger subjective case than the applicant.

[98]  R v Keelan [2022] NSWDC 387 [‘Keelan’] concerned attempted possession of heroin (239.7 grams pure) in a package consigned to a post office from Kenya.  The offender was aged 56 at the time of sentence and had a very long criminal record.  He was found to be a low‑level participant doing the pickup and later the drop off for reward of no more than $1,000.  Although he had a weak subjective case, emphasis was given to his difficult formative years through to adulthood and ongoing use of drugs in pursuit of which he engaged in petty crime throughout his life and had spent a significant part of his adult life in gaol.  After a 25% discount for the utility of his plea, the sentence imposed was 3 years and 4 months' imprisonment with a non‑parole period of 2 years.

[99]  R v Taleb [2023] NSWDC 139 concerned attempted possession of methamphetamine (133 grams gross, and 85 grams pure) concealed in a parcel consigned to a caravan park. The objective seriousness of the offending was assessed as below the mid‑range. The offender gave evidence on sentence, including of a history of drug abuse. He was assessed as a medium‑low risk of reoffending. There were findings of remorse and, given the offender's drug addiction, that the likelihood of reoffending was more likely to be reduced by providing, as far as possible, rehabilitation intervention and an environment in which that is supported. The offender was sentenced to a term of imprisonment of 2 years and 9 months and immediately released upon a recognizance upon giving security in the amount of $1,000 and complying with the conditions imposed, including undertaking drug and alcohol counselling. Although the applicant placed emphasis on the immediate release on recognisance in this case, this case is distinguishable given the emphasis on rehabilitation in light of the offender's drug addiction."

59. The decisions of Chew and Keelan were significantly relied upon by the Crown in this case. The offender relies on what can be gleaned from Exhibit S14. The first page of that concerns statistics from the Judicial Commission of New South Wales for offences contrary to s 307.6(1) of the Criminal Code, possessing a marketable quantity of an unlawfully imported, border controlled drug.  They show a total of 63 cases having been dealt with between 24 September 2018 and 30 June 2024. In six cases, there was a release pursuant to s 20(1)(b).  There were nine cases in which an Intensive Corrections Order (‘ICO’) was imposed.  In 48 of the cases, or 79.2% of all the cases, a sentence of imprisonment was imposed.  Mr Royce relied upon the statistics concerning those released on ICOs.  In summary, there is only one actual judgment available for those who were released on recognisance, and mere summaries in respect of other offenders.

60. Although the summaries tell me the drug type, they do not tell me the amount of the drug or its value.  The one case that can be gleaned from those summaries is R v Lau [2020] NSWDC 843 (‘Lau’), a decision of W Hunt DCJ.  That case concerned an attempt to possess a marketable quantity of an unlawfully imported, border controlled drug, being 402.74 grams of pure methylamphetamine.

61. The offender pleaded guilty in the Local Court and was committed for sentence.  She was entitled to a 25% discount for the utilitarian value of her early plea of guilty.  His Honour also allowed a further 5% discount for assistance to the authorities, which gave the offender in that case a total discount of 30%. In this case, on 16 June 2019, a postal consignment which was declared as a personal gift box arrived at the Sydney Gateway Facility from Malaysia.  The consignor was a person with details in Malaysia.  The consignee was Chan Lau with a nominated post office box at Kingsford.  That consignment was intercepted by the Australian Border Force and examination revealed the presence of the methylamphetamine.

62. On 16 May 2019, the offender had started renting a post office box at Kingsford.  That was the post office box to which the consignment was directed.  She had done so at the behest of David Lee.  His Honour was satisfied beyond reasonable doubt that she did that for some kind of financial reward.  The financial reward was not directly in monetary terms; the reward was that Mr Lee would continue to supply her with methamphetamine to allow her to continue her then current addiction to that drug.

63. When she went to collect the consignment, she was arrested.  When the police searched her home, they found the business card of David Lee and paraphernalia for the self‑administration of the methamphetamine.  Her further discount of 5% was because of her assistance to the authorities in pointing out the person who was providing her with the methamphetamine.  At [44], his Honour said this:

"In terms of some of the pragmatic considerations of sentencing, I take the view that a starting point sentence for this matter, taking into account the objective seriousness of the matter, notwithstanding some of the benign matters raised in the subjective case, mean that a starting point sentence of about three years would be appropriate, after the application of the combined utilitarian and assistance discount that a 36 month period becomes a little over 25 months, reducing in a direct fashion from that the four months of remand, arrives at an amount of a little bit over 21 months.  With some rounding, that is antithetical to the offender's interest, I determine that a sentence of 22 months is appropriate in all the circumstances".

64. His Honour went onto impose an ICO for a period of 22 months.  I should point out that the authorities require that when it comes to rounding, the rounding down should occur in the offender's favour, not rounding up.  However, it is clear that the offender in that case but for her discounts would have been sentenced to imprisonment for three years.  And if I were to follow that as some form of precedent, I could not impose an ICO because the offender is not entitled to any discount.

65. According to Exhibit SA, the value of the heroin which the offender attempted to possess was between $125,000 and $165,000.  If the heroin in the consignment were diluted by adding 350.9 grams of admixtures, the purity would be approximately 34% which was still an acceptable purity for street deals.  The heroin with admixtures could then have been sold for approximately $350,900. If the heroin in the consignment were diluted to a purity of 6.8%, the street value of the heroin with admixtures could be as high as over $1,750,000.  On any view of it, the value of the heroin was substantial.  What would have happened with the heroin if the offender were not arrested is entirely unknown, and therefore, not capable of proof by the Crown.

66. However, it is clear on the authorities that the amount of the drug involved, the drug itself involved, and the value of the drug are very important factors in sentencing.  In this matter, there are two cases to which I have referred that are directly relevant where the fault element was recklessness.  Those cases are Keelan, a decision of Bennett SC DCJ to which I have referred, and Lao, a decision of W Hunt DCJ to which I have already referred.

67. I seek to draw in all the matters which I have considered in this sentencing exercise.  I cannot accept that the head sentence ought be two years or less; that is just completely inconsistent with sentencing patterns and the facts of this case.  The offender is not entitled to any leniency because of his offending for which he was sentenced in New Zealand.  That must be made clear.  Bearing in mind all of the matters that I have considered, I believe that the appropriate head sentence is imprisonment for four years.

68. I am required by the Crimes Act 1914 (Cth) to impose a non‑parole period. In my view, the non‑parole period should be two years and eight months, meaning that the offender will be on parole for a period of one year and four months thereafter. It is now common ground that the sentence should commence on 22 January 2025 to account for the period when the offender was held in remand until being granted bail.

State Offences

69. As far as the State offences are concerned, Mr Crown very properly referred to them as being of little significance.

70. The Sequence 2 offence concerns three butterfly knives; they are knives which have a single edged or multi‑edged blade or spike that fits within two handles attached to the blade or spike by a transverse pivot and is capable of being opened by gravity or centrifugal force.  The photograph attached to the agreed facts of the 166 certificate show them clearly.  For that offence, I fix a three month fixed sentence commencing on 22 January 2025.

71. The Sequence 3 offence is a black coloured Panther branded Taser which was found in the upstairs living area occupied by the offender.  Most of us know what a Taser is.  I impose for that offence a six month fixed term, commencing on 22 January 2025.

72. As far as Sequence 4 is concerned, I am looking at three bullets which looked to be merely curios as far as I can see. I merely record a conviction only, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Sentence

73. Dario Alexander Seguel, when the jury returned its verdict, I pronounced sentence of conviction upon you.  I now sentence you for the crime contrary to the Criminal Code of the Commonwealth of Australia to imprisonment for four years, commencing on 22 January 2025.  I fix a non‑parole period of two years and eight months which expires on 21 September 2027.  You are eligible for parole on 22 September 2027.  Your head sentence will expire on 21 January 2029.

74. For the offence known as Sequence 2; possession or use of a prohibited weapon without a permit; namely, the butterfly knives, you are convicted.  I sentence you to imprisonment for three months, commencing on 22 January 2025, and expiring on 21 April 2025.

75. For the offence known as Sequence 3; the possession or use of a prohibited weapon without a permit; namely, the Panther taser, I sentence you to imprisonment for six months, commencing on 22 January 2025, and expiring on 21 July 2025.

76. For the offence known as Sequence 4; possession of ammunition without holding a licence or permit, I record a conviction but impose no further penalty.

77. Any other orders sought?

TRAN: No, your Honour.

ROYCE: No.

78. HIS HONOUR: I direct that a copy of the medical reports concerning the offender which are currently before me be given to the corrections officers to be taken by them with the offender to a place of imprisonment.

**********

Amendments

23 October 2025 - Redact confidential information in Agreed Facts, at [3].

23 October 2025 - Correct case title numbering.

Decision last updated: 23 October 2025