R v Trejos, Francisco Javier - [2016] NSWDC 399

District Court

New South Wales

Case Name:	R v TREJOS, Francisco Javier
Medium Neutral Citation:	[2016] NSWDC 399
Hearing Date(s):	29 April 2016
Date of Orders:	29 April 2016
Decision Date:	29 April 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full-time custodial sentence. For orders see [95]
Catchwords:	CRIMINAL – supply prohibited drug – cocaine – commercial quantity – knowingly deal with the proceeds of crime – SENTENCE – early plea of guilty – form 1 offences – prior convictions overseas for similar offending – standard non-parole period – middle range objective seriousness – committed for financial gain – no drug addiction – unsophisticated operation - Australian Citizen born in Columbia – no mental illness – totality – remorse and contrition – co-operation with police – family overseas – displayed capacity to live a law-abiding life – special circumstances
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Confiscation of Proceeds of Crime Act 1989 (NSW)
Cases Cited:	Attorney General’s Application No 1 of 2002 [2002] 56 NSWLR at 147 Huynh v R [2008] NSWCCA 216 Mill v The Queen [1988] 166 CLR 59 Muldrock v The Queen [2011] 244 CLR 120 Pearce v The Queen [1998] 194 CLR 610 R v Thomson; R v Houlton [2000] 49 NSWCCA 309 Raniga v R [2016] NSWCCA 36 RCW v R (No 2) [2014] NSWCCA 190 Riggio v R [2015] NSWCCA 223
Category:	Sentence
Parties:	Regina (Crown) Francisco Javier Trejos (Defendant)
Representation:	Counsel: Mr. Ly (Crown) Solicitor: Mr. Bowe (Defendant)
File Number(s):	2015/56774
Publication Restriction:	Nil

SENTENCE

HIS HONOUR: Francisco Javier Trejos appears today for sentence in relation to four offences to which he pleaded guilty at the Local Court and adhered to pleas of guilty in this Court. Three offences are, respectively, “Sequence 2”, supplying a prohibited drug, to wit, cocaine greater than the commercial quantity for that prohibited drug an offence committed on 16 September 2014, “Sequence 3” another supply prohibited drug, namely, cocaine greater than the commercial quantity, that offence was committed on 3 February 2015; “Sequence 4”, that is another offence of supply prohibited drug greater than a commercial quantity, to wit, cocaine, an offence committed on the date of the prisoner’s arrest on 23 February 2015.
Each of those offences, contrary to s 25A(2) Drug Misuse and Trafficking Act 1985, carries a maximum penalty of 25 years’ imprisonment and/or a pecuniary penalty of 3,500 penalty units. Each offence has a standard non-parole period of ten years’ imprisonment.
The fourth offence is described as “Sequence 7”, that is, knowingly deal with the proceeds of crime, to wit, $104,500 found in the possession of the prisoner, in the sense of hidden in his home on the day of his arrest, that is, 23 February 2015. This offence carries a maximum penalty of 15 years’ imprisonment and there is no standard non-parole period.
Clarifying the matter with the learned Crown Prosecutor, who now appears but did not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWDC 399
Decision Date: 29 April 2016

CaseChat Overview and Summary

The appellant, Francisco Javier Trejos, was charged with multiple offences related to the supply of a commercial quantity of cocaine and dealing with the proceeds of crime. The matter was heard and determined in the Supreme Court of Queensland. The central legal issues that the court needed to address were the appropriate sentence for these serious drug-related offences, taking into account various mitigating and aggravating factors. The court was required to consider the standard non-parole period for the offences, the objective seriousness, and the particular circumstances of the appellant.

The court found that the appellant had pleaded guilty to the charges at an early stage, which warranted a discount in his sentence. However, the appellant's prior convictions for similar offences, both in Australia and overseas, were significant aggravating factors. The court assessed the objective seriousness of the offences as middle range, considering the substantial quantity of cocaine involved and the appellant's intention to gain financially from the criminal activity. Other factors considered included the appellant's lack of drug addiction, the unsophisticated nature of the operation, and his capacity to live a law-abiding life. The court also noted the appellant's remorse, co-operation with the police, and his family ties overseas. These factors, combined with the totality of the circumstances, led the court to determine that a full-time custodial sentence was appropriate.

The court ultimately decided that the standard non-parole period for the offences, adjusted for the early guilty plea, should be nine years. The final orders of the court were that the appellant be sentenced to a full-time custodial term, with specific details provided in the judgment at [95].

Orders

Orders of the court

Full-time custodial sentence. For orders see [95]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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