Citation: R v Luiz Diego Mouzinho de Lima [2020] NSWDC 249
Court: District Court of New South Wales
Date: 28 May 2020
Judge(s): Noman SC DCJ
Background
The offender, a Brazilian national aged 30 at the time of offending, was arrested in Sydney on 10 May 2019 after collecting two packages from a post office in Vaucluse. The packages, sent from Portugal, contained a total of 904.3 grams of pure cocaine concealed within books. The offender had allowed his home address to be used for the deliveries and collected the packages using his own identification.
The offender had been living and working in Australia for approximately five years, employed casually in the construction industry while also studying English and marketing. He became involved in the importation scheme for financial gain, expecting to receive $10,000 for facilitating receipt of the two consignments. He was not a drug user. His motivation was partly connected to a recurrence of Hodgkin's lymphoma, from which he had suffered twice previously, and a desire to fund treatment and return to Brazil.
The offender pleaded guilty in the Local Court on 5 February 2020. He was charged with one count of importing a marketable quantity of a border controlled drug, contrary to section 307.2(1) of the Commonwealth Criminal Code, which carries a maximum penalty of 25 years imprisonment and/or 5,500 penalty units.
Legal Issues
- Where within the range of objective seriousness the offending fell, having regard to the offender's role, the duration of involvement, and the type, quantity and purity of the drug
- What weight to afford the early guilty plea, including whether it reflected genuine remorse or mere recognition of an inevitable outcome
- How to balance the offender's compelling subjective case (prior good character, serious illness, low recidivism risk, strong rehabilitation prospects) against the objective gravity of the offence
- What sentence, including non-parole period, was appropriate under Part 1B of the Crimes Act 1914 (Cth)
Decision
His Honour assessed the offending as falling just below the mid-range of objective seriousness. The pure cocaine quantity of 904.3 grams sat at approximately half the upper limit of the marketable quantity range (2 grams to 2 kilograms). The offender had direct contact with the overseas sender and a local contact, actively tracked the consignments, and was committed to the scheme for at least 12 days. While these features confirmed the importance of his role, the ease with which he was identified and his use of his own address indicated limited sophistication and a lesser position within the syndicate.
His Honour accepted that the plea was genuinely early and warranted a 25 percent reduction in sentence. The prosecution case was strong: the offender had been arrested in possession of the substituted drugs and his phone messages were available to police. Despite this, His Honour found the plea went beyond mere recognition of the inevitable. The offender gave evidence of his actual knowledge and true payment, both of which were against his interests and would otherwise have been difficult for the prosecution to establish. This, together with the letter of remorse and references tendered, supported a finding of genuine remorse and acceptance of responsibility.
The subjective case was regarded as compelling. The offender had no prior criminal history, had the strong support of family, friends and associates, and was assessed as having excellent prospects of rehabilitation and a low risk of reoffending. His battle with recurring cancer, including receiving treatment while on remand and away from family, was taken into account as a source of particular hardship. His Honour also noted the additional hardship of serving a sentence far from family in Brazil.
After reviewing the comparable cases provided by both parties, His Honour concluded that only a full-time custodial sentence was appropriate. The sentence was backdated to the date of arrest.
Orders Made
- The offender was convicted of importing a marketable quantity of a border controlled drug contrary to s 307.2(1) of the Commonwealth Criminal Code.
- Sentenced to 7 years imprisonment, backdated to commence 10 May 2019.
- Non-parole period of 4 years, with eligibility for release to parole on 9 May 2023.
- Sentence to expire on 9 May 2026.
Key Takeaways
- The District Court placed the offending just below mid-range of objective seriousness, distinguishing it from higher-culpability cases where offenders held more senior roles within importation syndicates or were involved with larger drug quantities.
- A 25 percent discount for an early guilty plea was applied where the plea was entered in the Local Court and the offender gave evidence at sentence that affirmatively disclosed matters against his own interests, supporting a finding of genuine remorse rather than tactical capitulation.
- Limited sophistication, including use of the offender's own address and identification, can indicate a lesser role within a syndicate even where the offender had direct contact with overseas and local participants.
- Compelling subjective features, including prior good character, serious illness, strong support networks, and excellent rehabilitation prospects, were weighed against the objective gravity of a Commonwealth drug importation offence but did not displace the need for full-time imprisonment.
- Financial motivation, where an offender is not a drug user but becomes involved in importation to address personal financial pressure, does not reduce the seriousness of the offending, though it may inform the overall picture of the offender's circumstances.
Legislation and Cases Referenced
Legislation:
- Commonwealth Criminal Code, s 307.2(1)
- Crimes Act 1914 (Cth), s 16A
Cases:
- R v Villa [2017] NSWDC 355
- Alpha v R [2015] NSWCCA 225
- R v Neto [2016] QCA 217
- R v Nikolovska [2010] NSWCCA 169
- Alavy v R [2014] VSCA 25