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District Court 22 April 2021

R v Forero Gomez; R v Le; R v Pham; R v Stephens

[2021] NSWDC 131

Drugs
CRIME RELEVANT FACTORS ON SENTENCE MULTIPLE OFFENDERS EARLY GUILTY PLEAS ONE OFFENDER ENTERED A LATE PLEA ROLE OF EACH OFFENDER

Citation: R v Forero Gomez; R v Le; R v Pham; R v Stephens [2021] NSWDC 131
Court: District Court of New South Wales
Date: 22 April 2021
Judge: Haesler SC DCJ

Background

Four men were sentenced for their roles in the extraction and refinement of cocaine that had been impregnated into the bases of concrete statues and imported into Australia. The operation took place across two isolated rural properties near Yass in mid-2019. None of the offenders were alleged to have been involved in the importation of the statues or the purchase and transport of most of the chemicals and apparatus used.

Police executed covert search warrants and installed a listening device at the second property. On 3 June 2019, all four men arrived together and spent the day working at the site, engaged in a solvent-based separation process to extract cocaine. They were arrested at a nearby motel the following morning. Police seized a total of 31,827 grams of cocaine at 91.5% purity across both properties, well exceeding the large commercial quantity threshold of one kilogram under the relevant legislation.

One offender, Forero-Gomez, was linked to both properties and was charged with manufacturing a large commercial quantity of cocaine. The other three, Le, Pham, and Stephens, were each charged with knowingly taking part in the manufacture of a large commercial quantity of cocaine. All four offences carry a maximum penalty of life imprisonment and a standard non-parole period of 15 years under the Drug (Misuse and Trafficking) Act 1985.

  • What was the objective seriousness of each offender's role in the manufacturing operation?
  • How should the court assess the role of each offender, all of whom were described as hired labourers without special skills?
  • How should the parity principle be applied to ensure equal justice between co-offenders sentenced together?
  • What discount applied to each offender for their guilty plea, noting that Forero-Gomez entered a late plea while the others pleaded early?
  • What findings of special circumstances were appropriate, and how should they differ across offenders?
  • What weight should be given to each offender's subjective case, including evidence from Pham that shifted under cross-examination?

Decision

Haesler SC DCJ characterised all four offenders as hired labourers engaged for short-term menial work. No special skills were required, and any person could have performed the tasks. Nevertheless, their presence was critical to the manufacturing process, and each was aware of the nature of the operation. The court found the objective seriousness of the offending to be significant, notwithstanding that the active involvement of all four men spanned only a single day.

Forero-Gomez was distinguished from the others on the basis of his connection to the first property and the listening device capturing him directing others during the extraction process. This elevated role, combined with his late guilty plea, produced a higher sentence. His 10% plea discount reflected the lateness of that plea, compared with 25% discounts applied to the other three offenders who pleaded guilty early.

The court applied the parity principle carefully, noting that the starting point for Le, Pham, and Stephens was the same at six years, but that modest differences in their subjective cases warranted different non-parole periods reflecting findings of special circumstances. Pham's evidence shifted materially under cross-examination, when he conceded he knew he was attending the property to do something illegal. The court was entitled to treat that change of account sceptically in assessing his subjective case. All four offenders were found to have solid subjective cases and good prospects for rehabilitation.

The court noted the drugs had not been disseminated into the community and that COVID-19 conditions in custody were relevant to the offenders' sentences. Despite the offending occupying only one day for three of the four men, the court held that the objective seriousness of manufacturing cocaine at large commercial quantities required adequate punishment.

Orders Made

  • All four offenders convicted.
  • Forero-Gomez: sentenced to 6 years 3 months imprisonment (starting point approximately 7 years, reduced by 10% for late guilty plea); non-parole period of 3 years 6 months commencing 4 June 2019, expiring 3 December 2022; balance of term 2 years 9 months, expiring 3 September 2025.
  • Le: sentenced to 4 years 6 months imprisonment (starting point 6 years, reduced by 25%); non-parole period of 2 years 8 months commencing 4 June 2019, expiring 3 February 2022; balance of term 1 year 10 months, expiring 3 December 2023.
  • Pham: sentenced to 4 years 6 months imprisonment (starting point 6 years, reduced by 25%); non-parole period of 2 years 6 months commencing 4 June 2019, expiring 3 December 2021; balance of term 2 years, expiring 3 December 2023.
  • Stephens: sentenced to 4 years 6 months imprisonment (starting point 6 years, reduced by 25%); non-parole period of 2 years 3 months commencing 4 June 2019, expiring 3 September 2021; balance of term 2 years 3 months, expiring 3 December 2023.

Key Takeaways

  • The District Court confirmed that hired labourers with no special skills can still attract substantial sentences for drug manufacturing where their participation was essential to the operation and they knew its nature.
  • A late guilty plea attracted only a 10% discount, compared to 25% for those who pleaded early, reflecting the established principle that the timing of a plea directly affects the discount available.
  • Parity between co-offenders was maintained through a common starting point for three of the four offenders, with differences in non-parole periods reflecting modest variations in subjective circumstances rather than differences in role or objective seriousness.
  • Where an offender's sworn evidence shifts significantly under cross-examination, the sentencing court treated that change as relevant to the weight given to the subjective case, consistent with the principle that courts may be sceptical of unsubstantiated assertions.
  • A single day of active participation does not diminish the objective seriousness of manufacturing a large commercial quantity of cocaine; the court held that adequate punishment was required despite the short duration of the offending conduct.

Legislation and Cases Referenced

Legislation
- Drug (Misuse and Trafficking) Act 1985 (NSW), ss 24, 25D
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Muldrock v The Queen (2011) 244 CLR 120
- Green v The Queen (2011) 244 CLR 462
- Hili v The Queen (2010) 242 CLR 520
- Postiglione v The Queen (1997) 189 CLR 295
- Barbaro v The Queen (2014) 253 CLR 58
- Olbrich v The Queen (1999) 199 CLR 270
- Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
- Kristensen v R [2018] NSWCCA 189
- Howard v R [2019] NSWCCA 109
- Clarke-Jeffries v R [2019] NSWCCA 56
- Afu v R [2017] NSWCCA 246
- BP v R [2010] NSWCCA 159
- R v Cheung; R v Choi [2010] NSWCCA 244
- Lau v R [2010] NSWCCA 43
- KT v R [2008] NSWCCA 51
- R v DW [2012] NSWCCA 66
- R v Chan [1999] NSWCCA 103
- R v Blair (2005) 152 A Crim R 462
- Blackman & Walters [2001] NSWCCA 121
- Oncu and others v R [2018] NSWDC 106