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District Court 27 September 2024

R v FLORES

[2024] NSWDC 457

Drugs
CONTROLLED DRUG IMPORT MARKETABLE QUANTITY OF BORDER CONTROLLED DRUG IMPRISONMENT

Citation: R v Flores [2024] NSWDC 457
Court: District Court of New South Wales
Date: 27 September 2024
Judge: Noman SC DCJ

Background

The offender, an American citizen, was recruited by a South American drug syndicate in early March 2023 and travelled to Sydney to receive cocaine shipments mailed from the United States. He leased multiple private mailboxes under fictitious names, communicated with a Mexican contact via an encrypted messaging application, and repackaged cocaine into vacuum-sealed bags for distribution. His travel and expenses were funded by the syndicate.

Over approximately two months, the offender was involved in importing, trafficking, and possessing marketable quantities of cocaine. Australian Border Force intercepted 25 envelopes addressed to his mailboxes, containing a total of 1,006.86 grams of pure cocaine. Further cocaine was found at his residence when he was arrested on 30 May 2023.

The offender pleaded guilty in the Local Court to three Commonwealth offences: possessing a marketable quantity of unlawfully imported border-controlled drug (cocaine), trafficking a marketable quantity of a controlled drug, and importing a marketable quantity of a border-controlled drug.

  • What was the objective seriousness of each of the three cocaine offences, having regard to the offender's role, the quantity and purity of the drug, and the duration of his involvement?
  • What weight should be given to the offender's subjective circumstances, including his personal history, psychological state, claimed duress, and cooperation?
  • How should the three interrelated but separately charged offences be structured in terms of concurrency and the aggregate sentence?
  • What was the appropriate non-parole period in light of the relevant sentencing factors under Part 1B of the Crimes Act 1914 (Cth)?

Decision

The court assessed both the importation and trafficking offences as serious examples of their respective provisions. The key considerations included the offender's actual knowledge (not mere recklessness), the duration of his involvement over roughly two months, the type, quantity, and purity of the cocaine, and the fact that he had been recruited and travelled to Australia specifically to participate in the offending. The possession offence was assessed at a lower level of seriousness.

The court declined to ascribe a formal descriptive label to the offender's role within the syndicate, instead scrutinising what he actually did. His conduct showed he was not at a higher level of the syndicate hierarchy, but his role was nonetheless important: he had direct contact with the sender of consignments, took active steps to avoid detection, and continued his involvement willingly over months for financial gain.

The offender's claims of duress and coercion were assessed carefully. The court found his account internally inconsistent and undermined by the agreed facts, including evidence that he contacted his handler about new mailboxes and continued actively participating after any claimed attempt to withdraw. The court accepted his guilty plea, letters of support, psychological report, and genuine remorse as mitigating factors, but found they did not fundamentally alter the objective gravity of the offending. Full-time imprisonment was the only appropriate sentence.

On the question of concurrency, the court accepted there was significant overlap between the three offences but found that each reflected distinct criminality. Accordingly, the sentences were structured with considerable, but not complete, concurrency under an aggregate term.

Orders Made

  • The offender was convicted on all three charges.
  • An aggregate sentence of 6 years and 2 months imprisonment was imposed, backdated to commence on 30 May 2023 (the date of arrest).
  • A non-parole period of 4 years was set.
  • Indicative sentences: possession (Sequence 10): 16 months; trafficking (Sequence 11): 3 years and 8 months; importation (Sequence 12): 5 years and 4 months.
  • Eligibility for parole: 29 May 2027; sentence expiry: 29 July 2029.

Key Takeaways

  • The District Court declined to assign a hierarchical label to the offender's syndicate role, instead assessing his conduct by reference to what he actually did, how long he did it, and the extent of his knowing participation.
  • Both the importation and trafficking offences were assessed as serious examples of their respective provisions, with the combination of quantity, purity, duration, and actual knowledge all pointing toward elevated objective gravity.
  • Claims of duress or coercion require careful scrutiny against the agreed facts; here, the court found the offender's account inconsistent and not established on the evidence before it.
  • Under the Commonwealth sentencing framework, the court applied the principles summarised in R v Nguyen; R v Pham [2010] NSWCCA 238, including the requirement to assess each offence separately for its criminality while recognising their interrelationship.
  • Significant, but not complete, concurrency was applied to three overlapping charges arising from a single criminal episode, reflecting the court's view that each charge captured distinct criminal conduct that could not be subsumed by any single sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16A (sentencing principles, Part 1B)
- Criminal Code Act 1995 (Cth), ss 302.3, 307.2, 307.6, 311.2, 311.4

Cases:
- R v Nguyen; R v Pham [2010] NSWCCA 238 (sentencing principles for Commonwealth drug offences)