Citation: R v Diaz Hernandez [2023] NSWDC 598
Court: District Court of New South Wales
Date: 17 November 2023
Judge: Haesler SC DCJ
Background
The offender, a man of previously good character, pleaded guilty to two serious federal drug offences. The first was manufacturing a controlled drug (cocaine) for a commercial purpose, contrary to s 305.41 of the Criminal Code Act 1995 (Cth), occurring between May and September 2021. The second was conspiring with a person referred to as "J," believed to be based in Colombia, and others to import a marketable quantity of cocaine into Australia, contrary to ss 11.51 and 307.21 of the same Act, between March and July 2021.
The agreed facts revealed that the offender received a shipment of approximately 35 kilograms of roasted coffee concealing cocaine, delivered to his home address. Following instructions sent by "J," he extracted over one kilogram of pure cocaine from the coffee using chemical processes. A second consignment, similarly concealed in coffee, was intercepted by Colombian authorities before it arrived. The offender was arrested at his home on 8 September 2021, when cocaine, coffee packets, and extraction equipment were found. He had been in custody since that date.
The offender's stated motivation was financial hardship. He sought to send money to his family in Colombia, where his mother was suffering from liver cancer (she died shortly before his arrest) and his father was blind. He also supported his own family in Australia and claimed that COVID-19 restrictions had prevented him from returning to Colombia to assist his parents directly.
Legal Issues
- What sentence was appropriate for each offence, having regard to objective seriousness, the quantities of cocaine involved, and the structured sentencing regime under the Criminal Code Act?
- To what extent did the offender's stated motive (financial support for his seriously ill family) mitigate the seriousness of the offending?
- What guilty plea discount was warranted, and how should partial accumulation of sentences be structured to avoid eroding that discount?
- What findings of fact could the court make on matters not agreed, given the standard of proof applicable to aggravating and mitigating circumstances?
Decision
Haesler SC DCJ accepted that the offender's dominant motivation was to support his family in Colombia, and that COVID-19 restrictions had constrained his options. However, the court was careful to note that motive, while it explained the offending, did not excuse it. The court also observed that the only reason cocaine of this quantity is imported and manufactured is for on-sale to users, and that profit is ordinarily a feature of such trade. Greed was not found to be the dominant motive, but the court noted its experience that significant profits are available from selling over a kilogram of cocaine.
The court assessed the objective seriousness of both offences by reference to the quantity of pure cocaine involved: 1.16 kilograms, which sits below the commercial quantity of two kilograms but well above the marketable quantity of two grams. The manufacture offence was factually connected to the successful importation, as the cocaine had to be extracted from the coffee to be of any commercial use. The conspiracy encompassed both the successful and thwarted importations.
Each offence carries a maximum penalty of 25 years imprisonment, and the court treated that maximum as a meaningful guide to the exercise of its sentencing discretion. Applying the instinctive synthesis methodology, the court weighed the offender's good character, lack of prior convictions, remorse, and family circumstances against the seriousness of the offending. A 25% reduction was applied to each sentence to reflect the utilitarian value of the guilty pleas. The court structured the sentences with partial accumulation, with the conspiracy sentence commencing nine months after the offender entered custody, to reflect both the plea discount and the need for some accumulation without wholly subsuming the guilty plea benefit.
Orders Made
- Convicted and sentenced to 4 years imprisonment for the manufacture of a controlled drug (cocaine), commencing 8 September 2021.
- Convicted and sentenced to 6 years and 9 months imprisonment for conspiracy to import a marketable quantity of a controlled drug (cocaine), commencing 8 June 2022.
- A single non-parole period of 4 years and 6 months fixed, expiring 7 March 2026, on which date the offender is to be released to parole (subject to s 19AL of the Crimes Act 1914 (Cth)).
- Total effective sentence: 7 years and 6 months, commencing 8 September 2021, with an earliest parole date of 7 March 2026.
- Both sentences reflect guilty plea reductions of 25%.
Key Takeaways
- A sympathetic personal motive, such as supporting seriously ill family members, may be accepted as the dominant driver of offending without constituting an excuse. The District Court accepted the offender's family circumstances but still imposed substantial custodial sentences.
- Where agreed facts do not resolve all factual questions, aggravating circumstances must be proved beyond reasonable doubt and mitigating circumstances on the balance of probabilities, consistent with The Queen v Olbrich (1999) 199 CLR 270. Where findings simply cannot be made, the court sentences on what is known.
- The structured sentencing regime under the Criminal Code Act, which distinguishes between marketable and commercial quantities of controlled drugs, directly informs the assessment of objective seriousness. Quantity relative to those legislative thresholds is a significant factor.
- Partial accumulation of sentences, rather than full concurrency or full cumulation, can serve as a tool to reflect both the separate criminality of distinct offences and the benefit of a guilty plea, provided the accumulation does not erode the discount.
- Active personal involvement in extracting cocaine from a concealed importation, even where the offender was relatively inexperienced in the process, is treated as a meaningful level of participation rather than a minor or peripheral role.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 11.51, 305.41, 307.21
- Crimes Act 1914 (Cth), s 19AL
Cases
- Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- R v Nguyen; R v Pham [2010] NSWCCA 238
- R v Totaan [2022] NSWCCA 75; (2022) 108 NSWLR 17
- The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270