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District Court 27 February 2019

R v Jose Degouveia; R v Joshua Degouveia

[2019] NSWDC 161

Drugs
SENTENCE COURSE OF CONDUCT ROLLED UP OFFENCES FACT FINDING ROLE OF OFFENDER’S MOTIVATION GREED

Citation: R v Jose Degouveia; R v Joshua Degouveia [2019] NSWDC 161
Court: District Court of New South Wales
Date: 27 February 2019
Judge: Haesler SC DCJ

Background

A police task force identified a family-run cannabis wholesale operation based in the Wollongong suburb of Flinders. Between August 2017 and March 2018, a father (Jose) and his son (Joshua) supplied large quantities of cannabis leaf to street-level distributors, using a third associate (Leti Tugaga) to assist with distribution. Transactions were typically measured in imperial units of five or ten pounds, and were recorded through lawfully intercepted telephone calls and surveillance.

Joshua Degouveia, a stevedore at the time, admitted the enterprise was his idea. He approached his father after Jose initially tried to dissuade him. The operation used two side-by-side properties in Flinders, one occupied and one vacant, to store and pass cannabis. Jose acted as the link to an upstream supplier and as the financier, while Joshua managed on-supply to downstream buyers.

Both pleaded guilty in the Local Court. Jose faced two charges: supplying a commercial quantity of cannabis leaf and dealing in the proceeds of crime. Joshua faced one charge of commercial supply. Tugaga had been sentenced separately in November 2018 to a three-year term.

  • What was the respective role of each offender in the enterprise, and how should that affect the assessment of individual culpability?
  • What profit, if any, did each offender derive from the operation, and how should proceeds of crime be assessed where seized money relates to the principal offence?
  • How should the principle of parity apply when sentencing co-offenders with different roles, including by reference to Tugaga's earlier sentence?
  • What weight should be given to early guilty pleas, subjective circumstances, and the utilitarian value of those pleas?
  • How should general and specific deterrence be reflected in the sentences?

Decision

Haesler SC DCJ identified Joshua as the initiator of the scheme and found that his motivation was greed and the desire for a lifestyle his legitimate employment could not fund. The court regarded this as a significant aggravating feature rather than a mitigating one. Jose, though initially reluctant, became fully involved and took on the upstream sourcing role, making him the more culpable of the two.

On the proceeds of crime charge against Jose, the court considered how to assess the seriousness of that offence where the money seized was directly connected to the principal supply offence. This required careful analysis to avoid double-counting while still giving the proceeds charge appropriate independent weight.

Both offenders gave evidence that was broadly consistent with the agreed facts. The court accepted that their guilty pleas, entered at an early stage, reflected practical remorse and an open acceptance of responsibility. That utilitarian value reduced the sentences below what would otherwise have been imposed: six years for Jose on the supply charge and five and a half years for Joshua.

General deterrence was identified as a paramount consideration. The court emphasised that the community must understand that wholesale drug supply of this scale attracts substantial custodial sentences. Special circumstances were found to justify a modest reduction in the non-parole periods relative to the balance of the terms.

Orders Made

Joshua Degouveia (commercial supply of cannabis leaf):
- Convicted
- Total sentence: 4 years and 1 month
- Non-parole period: 2 years and 8 months, commencing 22 March 2018
- Eligible for parole: 21 November 2020
- Sentence expires: 21 April 2022

Jose Degouveia (commercial supply of cannabis leaf):
- Convicted
- Total sentence: 4 years and 6 months
- Non-parole period: 3 years and 4 months, commencing 22 March 2018
- Eligible for parole: 21 July 2021
- Sentence expires: 21 September 2022

Jose Degouveia (dealing in proceeds of crime):
- Convicted
- Fixed term: 1 year and 6 months, concurrent with supply sentence, commencing 22 March 2018
- No separate non-parole period (concurrent with existing non-parole period)

Other orders:
- All matters on the section 166 certificates for both offenders withdrawn and dismissed
- Drug destruction order made

Key Takeaways

  • The District Court confirmed that a sentencing court may roll up multiple drug transactions into a single charge where it is appropriate to do so, consistent with Hamzy v R and Jadron v R, and that the gravity of each co-offender's conduct must be assessed by reading their respective facts documents together.

  • A finding that offending was motivated by greed and the desire for a luxury lifestyle is an aggravating factor in sentencing for commercial drug supply, not a neutral or mitigating one. The court treated Joshua's stated motivation as increasing rather than reducing his moral culpability.

  • Where seized money in a proceeds of crime charge relates directly to the principal drug supply offence, the sentencing court must take care to assess the proceeds charge's independent seriousness without engaging in double-counting against the offender.

  • Early guilty pleas that reflect genuine and practical acceptance of responsibility carry utilitarian value that reduces the sentence imposed, even where the underlying offending is serious. In this case, each offender received a meaningful discount from what would otherwise have been imposed.

  • General deterrence was treated as a fundamental sentencing consideration for wholesale commercial cannabis supply, reflecting the court's view that substantial custodial sentences are necessary to communicate the consequences of large-scale drug distribution to the broader community.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) (supply commercial quantity of cannabis leaf)
- Crimes Act 1900 (NSW), s 193B(2) (dealing in proceeds of crime)
- Evidence Act 1995 (NSW)

Cases:
- Afu v R [2017] NSWCCA 246
- Cahyadi v Regina (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Green v The Queen (2011) 244 CLR 462
- Hamzy v R (1994) 74 A Crim R 341
- Jadron v R [2015] NSWCCA 217
- Olbrich v R (1999) 199 CLR 270