R v Torres

[2016] NSWDC 318

District Court

New South Wales

Medium Neutral Citation:	R v Torres [2016] NSWDC 318
Hearing dates:	26 February 2016
Date of orders:	26 February 2016
Decision date:	26 February 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	For each offence the offender is sentenced to imprisonment . Set a non-parole period of 8 months and 18 days which expires today and order that the offender is released to parole. Set a head sentence in each matter of 2 years and 9 months
Catchwords:	CRIMINAL LAW – Sentence – Knowingly take part in the manufacture of a prohibited drug – Absconding – Criticism of Crown’s “Statement of facts” – Not a statement of fact at all
Legislation Cited:	Crimes (Sentencing Procedure) Act
Category:	Sentence
Parties:	The Crown Antonio Torres
Representation:	Counsel: Mr M Johnston - Offender   Solicitors: Director of Public Prosecutions
File Number(s):	2014/1304802014/136155

SENTENCE

1. HIS HONOUR: The offences for which I must sentence the offender, Antonio Torres, were committed some time ago. The explanation for the delay is simple; Mr Torres absconded and lived overseas for a number of years before being extradited back to Australia.

2. The offender certainly cannot be rewarded for having delayed his sentencing proceedings in that way, but on the other hand I must sentence him as he is today, not as he was at the time he should have been sentenced many years ago.

3. The offender pleaded guilty in the Local Court to two offences of knowingly taking part in the manufacture of prohibited drug. One of those offences concerned a manufacture at Lansvale and another at Hornsby.

4. The statement of agreed facts tendered by the Crown was mis-named, it was a summary of evidence, not a statement of facts. I have had occasion in the past to criticise documents in the form that were tendered to me today, and I will continue to do so in the future. I am not the only one who has complained about statements of facts in that form. What happens is that a great deal of irrelevant information is recorded, precise times are given, registration numbers of motor vehicles are given, telephone numbers are given, all of which has the effect of obscuring rather than revealing what an offender actually did.

5. As part of the tender bundle the Crown tendered statements of facts tendered before other Judges in relation to co-offenders. Those statements of facts did accurately summarise what those offenders did. It is disappointing that I was not given the same courtesy as those other sentencing Judges were.

6. With the assistance of the Crown, who did not prepare the statement of facts she tendered, I was able to identify the criminality of the offender’s conduct. He was involved in the Lansvale manufacture by assisting in the sourcing of finance to buy pseudoephedrine, a drug that was needed in order to ultimately produce methyl amphetamine. Mr Torres told one of his co‑offenders how to purchase it, and that it should be maintained in liquid form. He had thus an organisational role in relation to the Lansvale manufacture. In relation to the Hornsby manufacture his role is somewhat unclear. The only thing the Crown knows is that he was at the premises where the drugs were manufactured and of course his fingerprints were found there.

7. The offender had a far from ideal upbringing. Mr Johnston, who appears for him, tendered today a letter from his uncle which sets out the offender’s background, the abandonment of him and his brothers by their mother, and a lack of any significant effective parenting. In those circumstances it is perhaps understandable that the offender would gravitate towards organisations which offered him friendship and support even if those organisations were heavily involved in illegal activities. The offender’s uncle summarised his background this way:

“Your Honour he has never had the love of a mother and a father, he has never had a stable family life and through all of this found it hard to belong anywhere and really struggled with life in general. The sense of belonging that comes about through membership of the organisations which Mr Torres joined was clearly attractive to him in those circumstances.”

8. Since committing these offences there has been a significant change in the offender, that is why I said I would have to sentence him as the person he is today rather than as he was some time ago. Much of that change I am not going to refer to in these public remarks on sentence but the offender has provided a great deal of information of great value to law enforcement authorities which demonstrate a significant change in attitude towards authority, and a realisation that at 30 years of age he needs to move forward with his life in a law abiding way.

9. The offender pleaded guilty at the earliest opportunity. When I take into account his assistance and his plea I will impose upon him a sentence which is approximately 60% less than it would otherwise have been. I appreciate that is a very high level of discount. In my view, however, that appropriately reflects that offender’s assistance whilst still not breaching the underlying rule that a sentence ultimately imposed must not be unreasonably disproportionate to the objective circumstances of Mr Torres’ offending.

10. I am required under the Crimes (Sentencing Procedure) Act to specify how much of that discount is for future assistance. It is incredibly difficult to be in any way precise given the lack of information as to what is proposed for the future. Doing the best I can I will specify that 10% of that discount is for future assistance.

11. The offender has plans for the future, plans to study, and plans to have his four year old son come to live with him. I am satisfied that he is remorseful, perhaps the best evidence of that is pleading guilty to one of these offences when the only evidence of his role and his involvement in one of the manufactures consists of a couple of fingerprints located at the premises.

12. The offender has done eight months and 18 days in custody solely referrable to these offences. In addition he has served a sentence in South Australia for unrelated matters where it appears that his release was delayed by a number of months, perhaps because of the need for him to be extradited to New South Wales to face sentence today. I will start the sentence I will imposed upon Mr Torres eight months and 18 days prior to today and take into account that delay in release in determining the length of that sentence.

13. It is clear that a custodial sentence must be imposed. The Crown submitted that and Mr Johnston did not seek to submit otherwise. The question really facing me is whether Mr Torres needs to be returned to custody to spend more time in gaol before release on parole. I will explain my process of reasoning in reaching the conclusion that I did. Having taken into account the 60% discount and the eight months and 18 days pre-sentence custody I formulated what I believe to be the appropriate sentence. I have allowed a finding of special circumstances and came up with a result that would see Mr Torres return to custody for a matter of only a few months.

14. Recognising that sentencing is not a mathematically precise activity, I am satisfied that it is appropriate to impose upon Mr Torres a sentence which will see his non‑parole period expire today such that he does not need to be returned to custody but will spend a significant period on parole.

15. For each offence I impose sentences as follows.

16. The offender is sentenced to imprisonment. I set a non-parole period of eight months and 18 days to date from 8 June 2015. The non-parole period will expire today and I order that he is to be released to parole. I set a head sentence for each matter of two years and nine months. As will be clear I made a finding of special circumstances in his favour they being his prospects for rehabilitation, and the need to assist Mr Torres in the future to avoid him relapsing into committing further offences.

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Decision last updated: 25 November 2016