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District Court 31 January 2019

R v Bittencourt-Silva

[2019] NSWDC 80

Drugs
SENTENCING SINGLE OFFENCE COCAINE GUILTY PLEA EXPRESSIONS OF REMORSE FINANCIAL GAIN

Citation: R v Bittencourt-Silva [2019] NSWDC 80
Court: District Court of New South Wales
Date: 31 January 2019
Judge: M L Williams SC DCJ

Background

The offender, a Brazilian national, was arrested at Sydney International Airport on 26 February 2018 after a random customs search revealed two concealed packages containing 3.27 kilograms of cocaine (at 82% purity) hidden in her suitcase. She had no prior criminal record and was making her first trip to Australia. She had been promised $10,000 for carrying the suitcase from Brazil, travelling via Dubai on a ticket booked in her name.

The offender gave evidence that she initially believed the suitcase contained undeclared cash. She later acknowledged that, at some point during the journey, she suspected it might contain drugs. She also gave evidence that, after attempting to withdraw from the arrangement when her mother was injured, she was told her family would be in danger if she did not proceed. Her counsel did not press this as a formal claim of exculpatory duress, but it was placed before the court as a relevant circumstance.

The offender pleaded guilty to a single charge under s 307(1) of the Criminal Code (Cth): importing a commercial quantity of a border controlled drug. That offence carries a maximum penalty of life imprisonment.

  • What sentence was appropriate for a low-level courier who imported a commercial quantity of cocaine, given her personal circumstances, guilty plea, and expressions of remorse?
  • What weight should be given to general and specific deterrence for a foreign national acting as a drug courier?
  • What discount applied for the utilitarian value of the guilty plea?
  • What relevance, if any, did the threatened duress have to the sentencing exercise?
  • How should the court treat the offender's personal hardship, including her isolation in custody, her separation from her children, and her diagnosis of major depression?

Decision

Williams SC DCJ imposed a sentence of five years and eight months, with a non-parole period of two years and ten months. The court accepted a 25% discount for the utilitarian value of the guilty plea and genuine expressions of remorse, consistent with the Court of Criminal Appeal's decision in Xiao v R (2018) 96 NSWLR 1.

The court found that the offender occupied a low level in the importation hierarchy, acting purely as a courier with no demonstrated deeper involvement in the drug syndicate. There was no evidence that she knew the weight or type of drug she was carrying. The court accepted her remorse as genuine, and assessed the need for specific deterrence as slightly reduced, given her character, age, family separation, and low-to-negligible prospects of reoffending.

General deterrence remained a primary and weighty consideration. The court affirmed the established principle that drug organisations depend on the willingness of couriers to take on these roles, and that potential financial rewards must be neutralised by the prospect of severe punishment. Prior good character was given lesser weight for the same reason.

The court also acknowledged, as relevant to the harshness of the sentence, that the offender had no English language skills and no family or support network in Australia. Her threatened withdrawal from the scheme and the subsequent coercion were taken into account as part of the overall circumstances, though not as formal mitigation going to culpability. The possibility of deportation after sentence was treated as irrelevant to the sentencing exercise.

Orders Made

  • The offender was convicted of the offence.
  • A sentence of imprisonment of five years and eight months was imposed, commencing 26 February 2018 and expiring 25 October 2023.
  • A non-parole period of two years and ten months was set, expiring 25 December 2020.

Key Takeaways

  • A 25% discount for the utilitarian value of a guilty plea and genuine remorse was applied in accordance with Xiao v R (2018) 96 NSWLR 1.
  • General deterrence occupies a central role in sentencing drug couriers, even where the offender is at the lowest level of the importation hierarchy: the court emphasised that trafficking organisations rely on the participation of couriers and that heavy penalties reflect this.
  • Prior good character carries reduced mitigatory weight in commercial drug importation cases, given the primacy of general and specific deterrence in this sentencing category.
  • Threatened coercion that falls short of exculpatory duress may nonetheless be placed before the sentencing court as a relevant circumstance in the overall assessment, even where no formal mitigating submission is pressed on that basis.
  • Consistent with Adams v The Queen (2008) 234 CLR 143, the District Court confirmed that sentencing judges should not grade penalties based on the type of drug involved in the offence.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), s 307(1)
- Crimes Act 1914 (Cth), Part 1B

Cases
- Adams v The Queen (2008) 234 CLR 143
- DPP (Cth) v Gow [2015] NSWCCA 208
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Legault v R [2014] QCA 280
- R v Agboti [2014] QCA 280
- R v Cunha; R v Bernardo [2017] QCA 6
- R v De La Rosa (2012) 79 NSWLR 1
- Xiao v R (2018) 96 NSWLR 1