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District Court 29 April 2016

R v TREJOS, Francisco Javier

[2016] NSWDC 399

Drugs
CRIMINAL SUPPLY PROHIBITED DRUG COCAINE COMMERCIAL QUANTITY SENTENCE EARLY PLEA OF GUILTY

Citation: R v Trejos [2016] NSWDC 399
Court: NSW District Court
Date: 29 April 2016
Judge: Judge S Norrish QC

Background

The offender, an Australian citizen born in Colombia, was sentenced following guilty pleas to three counts of supplying cocaine in a commercial quantity, contrary to section 25A(2) of the Drug Misuse and Trafficking Act 1985 (NSW), and one count of knowingly dealing with the proceeds of crime. The offences occurred between September 2014 and February 2015 and were uncovered through a police strike force investigating cocaine importation from South America.

The offender operated as an "up-line" supplier, providing cocaine to a co-offender who then on-sold it to buyers known to police. Each of the three supply transactions involved approximately 498 to 499 grams of cocaine at high purity levels. On the day of his arrest in February 2015, $104,500 in cash was found concealed at his home, giving rise to the proceeds of crime charge.

Two further supply offences (involving quantities above the indictable threshold found at the time of arrest) were listed on a Form 1 and taken into account when fixing the sentence on the principal offence.

  • How to apply the standard non-parole period of 10 years for each commercial supply offence, and whether each fell within the middle range of objective seriousness
  • The appropriate discount for early guilty pleas entered at the Local Court and maintained in the District Court
  • How to treat prior overseas convictions for similar offending as an aggravating factor
  • The weight to be given to mitigating factors including remorse, cooperation with police, family ties, and the absence of drug addiction
  • How to structure the overall sentence to satisfy the totality principle across multiple offences

Decision

Judge Norrish accepted that each of the three supply offences sat within the middle range of objective seriousness, noting that each involved close to the commercial quantity threshold, was committed for financial gain, formed part of an ongoing arrangement to import and distribute cocaine sourced from South America, and was unsophisticated in its execution. The offences were serious but did not reach the upper range, a finding relevant to the application of the standard non-parole period.

The offender was entitled to a 25 per cent discount on each sentence for his early guilty pleas, consistent with the guideline in R v Thomson; R v Houlton. The court acknowledged genuine remorse, cooperation with police, the absence of a drug addiction, and the offender's demonstrated capacity to live lawfully. However, prior overseas convictions for similar offending weighed against him as a significant aggravating factor.

His Honour identified special circumstances justifying a departure from the otherwise applicable ratio between the non-parole period and the balance of sentence, largely to allow for appropriate supervision on release given the offender's circumstances, including his family being overseas. The sentences were structured to achieve a just and proportionate overall term, applying the totality principle across all counts.

The court also made forfeiture orders over $104,500 found at the offender's home, in accordance with the Confiscation of Proceeds of Crime Act 1989 (NSW). The orders were not opposed by the defence.

Orders Made

  • Total effective sentence of 11 years' imprisonment with a non-parole period of 7 years, commencing 23 February 2015, with eligibility for release to parole on 22 February 2022
  • Forfeiture of $104,500 to the State pursuant to section 18(1) of the Confiscation of Proceeds of Crime Act 1989 (NSW)
  • Leave granted under section 19 of that Act for the forfeited property to be disposed of forthwith
  • Order for the destruction of the drugs

Key Takeaways

  • The District Court applied the standard non-parole period framework from Muldrock v The Queen to each commercial supply count, assessing objective seriousness before moving to subjective factors, rather than treating the standard non-parole period as a starting point.
  • A 25 per cent guilty plea discount applied where pleas were entered at the Local Court and maintained in the District Court, consistent with the Thomson and Houlton guideline.
  • Prior convictions recorded overseas for similar offending constituted an aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW), even though those convictions arose in a different jurisdiction.
  • Special circumstances were found to exist, supporting a longer than usual parole period, where the offender's personal circumstances (including overseas family) pointed to an extended need for post-release supervision.
  • Totality required the court to structure individual sentences so that the aggregate term was just and proportionate when viewed as a whole, rather than simply accumulating maximum or mid-range sentences for each count.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(2)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 18(1), 19

Cases
- R v Thomson; R v Houlton [2000] 49 NSWLR 309
- Muldrock v The Queen (2011) 244 CLR 120
- Pearce v The Queen (1998) 194 CLR 610
- Mill v The Queen (1988) 166 CLR 59
- Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147
- Huynh v R [2008] NSWCCA 216
- RCW v R (No 2) [2014] NSWCCA 190
- Riggio v R [2015] NSWCCA 223
- Raniga v R [2016] NSWCCA 36