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District Court 6 October 2020

R v Embradora

[2020] NSWDC 849

DrugsFraud & dishonesty
CRIME DRUG OFFENCES SUPPLY PROHIBITED DRUG COMMERCIAL QUANTITY

Citation: R v Embradora [2020] NSWDC 849
Court: District Court of New South Wales
Date: 6 October 2020
Judge: Buscombe DCJ

Background

The offender, a 35-year-old man born in the Philippines who migrated to Australia as a child, pleaded guilty to three offences arising from events on 13 April 2018 in the Riverstone area. The offences followed a police-controlled operation in which an undercover officer posed as the transporter of 11 kilograms of cocaine that had actually been intercepted by United States authorities. The packages delivered to the offender contained an inert substance, not cocaine.

As part of the operation, a co-offender (Dogan) collected the packages from the undercover officer at Leichhardt Oval and transported them to Riverstone, where he handed them over to the offender. The offender took the bag to a residential address at Swift Street, cut open one package, and discovered the substance was not cocaine. He and another co-offender (Matthew Peffer) then moved the bag to a nearby vehicle, which police later searched and seized.

In addition to the cocaine supply offence, police found 188.3 grams of 1,4-Butanediol (a prohibited drug) and $19,850 in cash, together with a diary consistent with a drug ledger, at the residential address. The offender's fingerprints were identified on multiple items recovered from both the vehicle and the premises.

Legal Issues

  • What was the appropriate aggregate sentence for the offender's three guilty pleas, having regard to his objective role, subjective circumstances, and the applicable standard non-parole period for the cocaine offence?
  • What discount applied for the early guilty plea, and what weight should be given to remorse and prospects of rehabilitation?
  • Whether special circumstances existed warranting a departure from the standard non-parole period and a longer parole period.
  • How parity considerations applied given the earlier sentence imposed on co-offender Dogan.

Decision

Objective seriousness of the cocaine supply offence

The court assessed the cocaine supply offence as below a notional midrange but not at the bottom of the range (at [20]). Although no actual cocaine changed hands, the offender believed he was taking possession of 11 kilograms of real cocaine, a quantity far exceeding the large commercial quantity threshold of one kilogram (at [18], [40]). The offender held a higher position in the supply hierarchy than co-offender Dogan: he did not deal directly with the undercover officer, directed co-offender Peffer on the day, and was the person who tested the packages (at [18]-[19]). The court noted that planning and anticipated financial gain were present but could not be treated as statutory aggravating factors given the nature of the offence (at [19]).

Objective seriousness of the remaining offences

The 1,4-Butanediol supply offence, at 188.3 grams against a commercial quantity threshold of one kilogram, was assessed as well below the midrange of objective seriousness (at [20]). The proceeds of crime offence, involving $19,850, was also assessed as well below a notional midrange, though the court accepted the overwhelming inference that the money derived from prohibited drug sales (at [20]).

Subjective circumstances and plea discount

The offender had no prior criminal history, which entitled him to some leniency (at [22]). His upbringing involved domestic violence, periods of instability, and a difficult trajectory after a career-ending eye injury led him to substance misuse and ultimately this offending (at [24]-[27]). The court drew on the principles in Bugmy v The Queen regarding the relevance of social disadvantage to sentencing (at [33]). The offender received a 25 percent discount for his early guilty plea, and the court found him genuinely remorseful based on his acceptance of responsibility (at [32]).

Special circumstances and parole

The court found special circumstances, departing from the standard non-parole period, on the basis that this was the offender's first time in custody, that a longer parole period would assist rehabilitation, and that custody during the COVID-19 pandemic increased the hardship of imprisonment (at [34]). The court assessed the offender as having very good prospects of rehabilitation, supported by his clean record and positive custodial behaviour (at [33]-[34]).

Parity with co-offender Dogan

Dogan had been sentenced to four years and two months with a non-parole period of two years and one month for his role in the same cocaine operation (at [37]). The court acknowledged the current offender's role was significantly greater than Dogan's and that he faced additional charges, justifying a substantially higher sentence, while still having regard to parity principles (at [38]).

Orders Made

  • Aggregate sentence of six years and three months imprisonment imposed, with an aggregate non-parole period of three years and ten months, commencing 25 July 2019 and expiring 24 October 2025 (with the non-parole period expiring 24 May 2023).
  • Conviction recorded for possession of steroids (s 166 certificate offence) under s 10A of the Crimes (Sentencing Procedure) Act 1999, with no further penalty imposed.

Key Takeaways

  • In a controlled drug supply operation where the substance delivered was inert, the District Court confirmed that the offender's belief that he was acquiring real cocaine remained the operative basis for assessing objective seriousness, even though no actual drug reached the community (at [18], [40]).

  • A finding of special circumstances, permitting departure from the 15-year standard non-parole period applicable to large commercial quantity cocaine supply, can be supported by the combination of a first custodial sentence, good rehabilitation prospects, and the additional hardships of imprisonment during the COVID-19 pandemic (at [34]).

  • The court applied parity principles with reference to a co-offender sentenced for the same operation, but imposed a substantially greater aggregate sentence where the current offender held a meaningfully higher role in the supply hierarchy and faced additional charges (at [37]-[38]).

  • Where an offender's background involves childhood disadvantage, domestic violence, and instability, the principles from Bugmy v The Queen (2013) 249 CLR 571 remain relevant to the sentencing exercise, even where the court is also required to give significant weight to general deterrence for serious drug supply offending (at [33], [41]).

  • Aggregate sentencing was applied across three substantive offences involving different drugs and a separate proceeds of crime charge; the court indicated that, absent aggregation, partial accumulation would have been appropriate given that the supply counts involved different prohibited drugs and the proceeds offence was not directly linked to either (at [36]).

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), s 193B(2)
- Poisons and Therapeutic Goods Act 1966 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37