R v Sylla ROBILLARD

[2007] NSWDC 115

CITATION:	R v Sylla ROBILLARD [2007] NSWDC 115 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	11 May 2007
JUDGMENT DATE:	11 May 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
CATCHWORDS:	Criminal Law - Sentence - Importation of a border controlled drug - Serving sentence in a foreign country
PARTIES:	Crown Sylla Robillard
FILE NUMBER(S):	07/11/0179
SOLICITORS:	Commonwealth DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: Sylla Robillard appears for sentence today having pleaded guilty at the earliest opportunity to an offence of importing a border controlled drug, namely cocaine at a quantity which was a marketable quantity. He was detected at Sydney Kingsford Smith Airport by customs officers. Strapped to his leg was a bag of cocaine. It weighed in total close to a kilogram, with the pure weight of cocaine later found to be about three-quarters of a kilogram. It is a substantial package with a substantial value.

2 The offender co-operated with officers in that he allowed them to search him. He must have known at that stage that the package would be discovered and that he would be spending a considerable time in prison. The offender is a Canadian citizen who lives in Montreal. He flew from Montreal to Vancouver with the drugs in his possession and thence to Australia.

3 It is a matter of interest, but not a determinative in any way of the sentence I will impose, that this is the second occasion this week that this court has been asked to deal with a Canadian citizen living in Montreal, importing cocaine into Australia via Vancouver. As I said it is a matter of interest only and has not affected the sentence that I will impose in the present case.

4 The offender said that he got involved in this offence, despite being a man with no prior convictions, in order to satisfy a debt that was owed by a friend of his, that debt having been incurred because of his friend’s gambling and drug use. The offender claims that he decided to fly to Australia, bringing the drugs with him, in order to pay off his friend’s debt to drug dealers. I simply do not accept what the offender has said to me. It is on him to establish, on the balance of probabilities, any circumstances of mitigation. So if he wants me to sentence him on the basis that he did this for an altruistic purpose, only to protect his friend, then he has to prove that to my satisfaction on the balance of probabilities. I do not accept what he has said.

5 There is no mention to Ms Collins the psychologist, about this being the reason he got involved in the offence. Mr Robillard said that he wasn’t asked about it by Ms Collins, but in her report this appears under the heading “offence”: “Mr Robillard agrees with the police facts, he states that his involvement in the offence was not well thought out. He expresses regret for his conduct and he advised that he realises he did not consider the likely ramification of his actions at that time.” In such circumstances I find it very difficult to accept that there was not the opportunity for the offender to provide information to Ms Collins regarding what it was which motivated him to commit this offence.

6 I further note that not one of the many references tendered to me makes any mention of this circumstance. And finally the offender had no satisfactory explanation as to why his friend could not obtain a passport to fly to Australia, to do what the offender said he took it upon himself to later do.

7 However there is no material before me to establish that the offender was in any way a principal. It is notorious that those who are principals in drug importation endeavours never, or at least very rarely, get themselves in a position where they are in physical contact with drugs. The result is that I must sentence the offender for what he has done. I cannot put a label on him, I cannot say that he is a mere courier, although I am satisfied that he is not a principal.

8 The offence is a very serious one. The authorities referred to by the crown, and many others, make it clear that the community is rightfully concerned about those who involve themselves in drug importations, because it is the community which has to bear the brunt of the consequences of drug use and drug addiction. For that reason, those who contemplate bringing drugs into Australia must be made aware that they will spend a long time in custody if they are detected doing so.

9 As I mentioned the offender is a Canadian citizen. He will thus be serving his sentence in a foreign country. He has received since his incarceration only one visit when a friend of his was passing through Australia. Any other visits from family or friends are likely to be rare, if not nonexistent. In particular, it is unlikely that he will receive a visit from his fourteen year old daughter. This will mean that the offender is doing his time in custody harder than would otherwise be the case. Another factor suggesting that matter is that he knows that through his criminal activities, he has put his fourteen year old daughter in a position where she is denied his care and attention for a lengthy period of time. Of course not too much can be made of this because, after all, Mr Robillard went in to this with his eyes open. He cannot be surprised to learn that having been detected as a drug importer, thus will be serving his sentence in a foreign country and he will not be able to have the sort of contact that he had with his daughter as he did previously.

10 The offender works in a number of occupations in Montreal. He is a musician primarily and as I think I have mentioned already, has no previous criminal convictions. The references tendered to me attest to his otherwise good character. Family, friends and employers all suggest that this offence is out of character. The offender acknowledges that he was involved in drug use and no doubt this was one of the significant factors which led to him committing this offence.

11 The offender expresses regret for his actions. I am not entirely sure that this is genuine remorse. My doubts are due to the story, which I am satisfied is a false story, presented by the offender to both the Probation and Parole officer and in court today. No doubt the offender is remorseful for having being caught, but I am not satisfied on the balance of probabilities that he is remorseful in the sense that he recognises that what he did was wrong. He may recognise that it was against the law, but I am not satisfied that he recognises that he should not have done it for any other reason. I note that the offender pleaded guilty at an early opportunity. His willingness to facilitate the course of justice will be recognised by an appropriate discount for pleading guilty at an early stage. Of course the circumstances in which he was detected as a drug importer mean that the plea of guilty says nothing about any remorse. The offender is not entitled to call upon his plea of guilty in such circumstances as suggesting remorse.

12 I should have mentioned of course when talking about the offender’s daughter, that the fact that she is denied the offender’s close contact whilst he is in custody is a matter that I will take in to account as part of the general mix of subjective factors. It is certainly not exceptional, but the current way that the Court of Criminal Appeal approaches such matters, is to say that I am able to take it in to account, to a limited extent. I will do so.

13 Despite what I have said about the offender’s version of events and his lack of genuine remorse, I am satisfied that there are good prospects of rehabilitation. Indeed I am satisfied that the fact that the offender is going to spend a lengthy period in custody will play its part in personally deterring Mr Robillard from any further criminal activity, at least as serious as that for which he is now to be sentenced.

14 The sentence to be imposed upon the offender has to reflect the objective gravity of his conduct. That is a fundamental rule in sentencing. Notwithstanding the offender’s lack of previous criminal convictions and notwithstanding the other matters that I have referred to earlier, a significant period of custody is required.

15 The offender is sentenced to imprisonment for a non-parole period of four and a half years and a head sentence of seven and a half years. It commenced on 7 December 2006. The offender is therefore eligible to be released to parole on 6 June 2011.

16 HIS HONOUR: Now Mr Robillard what I have just done is imposed a period of imprisonment upon you. You will have to serve at least four and a half years in custody, commencing on the date of your arrest which was 7 December 2006. That means you are eligible to be released to parole on 6 June 2011. Of course if you continue the good conduct that you have displayed whilst in gaol, that will be a significant factor suggesting that you are likely to be released on that date.

17 Once you are released on that date you in all likelihood will be deported, but you will continue to serve your sentence until seven and a half years have expired, and if you were to commit further offences or otherwise not be of good behaviour, it is entirely possible that you will be returned back to custody to serve more of your sentence. Do you understand that?

18 OFFENDER: I do.

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14/04/2011 - Typographical error - Paragraph(s) Cover sheet