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District Court 31 January 2020

R v Marquez; R v Maranon

[2020] NSWDC 83

Drugs

Citation: R v Marquez; R v Maranon [2020] NSWDC 83
Court: District Court of New South Wales
Date: 31 January 2020
Judge(s): M L Williams SC DCJ

Background

Two Argentinian nationals, aged 25 and 35, arrived at Sydney Airport in April 2019 on a flight from Santiago, Chile. Border Force officers searched their luggage and discovered that each man was carrying a liquor bottle that had been hollowed out and filled with cocaine. One bottle contained 620 grams of pure cocaine and the other 653 grams.

Both men were first-time offenders with no prior convictions in Argentina or Australia. The agreed facts established that an unidentified third party, referred to in text messages as "Chaz Tity" or "Charlie," had organised the entire enterprise, including booking travel, providing detailed instructions to avoid detection, and arranging payment of approximately $10,000 to each courier.

Each man pleaded guilty at an early opportunity to one count of importing a marketable quantity of a border-controlled drug, contrary to s 307(2) of the Criminal Code (Cth). The Crown did not allege that the two men committed the offence jointly, despite evidence they knew each other before the flight. Both had been in custody from the date of their arrest.

  • What sentence was appropriate for each offender, applying federal sentencing principles under the Crimes Act 1914 (Cth)?
  • What discount, if any, applied for early guilty pleas in the federal sentencing context following Xiao v R (2018)?
  • How should the court treat the offenders' lack of prior criminal history, their role as recruited couriers, and their subjective circumstances?
  • Were the two offenders relevantly different in culpability, warranting different sentences?

Decision

The court found that the offenders were at the lower end of the culpability range for this type of offence. Both were recruited as couriers by an unidentified organiser, each carried a similar quantity of cocaine, and neither had any criminal history. The court accepted their expressions of remorse as genuine and their personal histories as accurate.

Both offenders received a 25% discount on sentence for their early guilty pleas, consistent with the approach to s 16A(2)(g) of the Crimes Act 1914 (Cth) confirmed in Xiao v R. The court noted that the comparable cases cited by the Crown frequently involved offenders with criminal records, making direct comparison less useful. More recent decisions from the NSW Court of Criminal Appeal, including Woodrum v R, Gwardys v R, Duflaut v R, and ZZ v R, supported the proposition that an absence of prior convictions tends to produce lower head sentences.

The court also noted, but did not rely upon, the likelihood that both men would be deported at the conclusion of their non-parole period. The authorities clearly establish that likely deportation is not a relevant sentencing consideration. Despite the hardship of serving a sentence without English language skills, the court proceeded on the standard sentencing framework applicable to all federal offenders.

All parties agreed that the two men were of comparable culpability and that sentences of the same order were appropriate. The court was satisfied the sentences reflected both the objective seriousness of commercial drug importation and the mitigating factors particular to each man's circumstances.

Orders Made

For each offender (Maranon and Marquez):

  • Convicted of one count of importing a marketable quantity of a border-controlled drug contrary to s 307(2) of the Criminal Code (Cth)
  • Sentenced to 5 years imprisonment, commencing 15 April 2019
  • Non-parole period of 3 years, expiring 14 April 2022, with eligibility for parole release on that date

Key Takeaways

  • The District Court confirmed that likely deportation upon release is not a factor that can reduce a sentence for federal offenders, regardless of nationality.
  • A 25% guilty plea discount applied in both cases, consistent with the treatment of s 16A(2)(g) of the Crimes Act 1914 (Cth) following Xiao v R (2018) 96 NSWLR 1.
  • Where an offender has no criminal history, recent NSW Court of Criminal Appeal authority supports a meaningfully lower head sentence, with that impact being most pronounced at the head sentence level rather than the non-parole period.
  • Recruited couriers who played no organisational role, carried similar quantities, and pleaded guilty at an early opportunity may attract sentences at the lower end of the range for marketable quantity importation offences under s 307(2) of the Criminal Code (Cth).
  • The court treated the subjective circumstances of both men, including financial vulnerability, family pressures, and exploitation by an unknown organiser, as mitigating, while making clear that general deterrence remains a significant sentencing consideration for commercial drug importation.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), s 307(2) (importing a marketable quantity of a border-controlled drug; maximum 25 years imprisonment)
- Crimes Act 1914 (Cth), s 16A(2)(g) (guilty plea as a sentencing consideration)

Cases
- Xiao v R (2018) 96 NSWLR 1
- Woodrum v R [2019] NSWCCA 270
- Gwardys v R [2019] NSWCCA 62
- Duflaut v R [2019] NSWCCA 21
- ZZ v R [2019] NSWCCA 286
- Hili v R; Jones v R (2010) 242 CLR 520
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Nguyen; R v Pham (2010) 205 A Crim R 106
- Chong v R [2011] NSWCCA 182
- Lindsay v R [2012] NSWCCA 124
- R v Sutton [2013] QCA 151
- Neto v R [2016] QCA 217