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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Da Silva  QCA 176
DA SILVA, Fabio Stringari
CA No 270 of 2019
Court of Appeal
Supreme Court at Brisbane – Date of Sentence: 20 September 2019 (Holmes CJ)
25 August 2020
29 July 2020
Morrison and McMurdo JJA and Boddice J
Application for leave to appeal against sentence refused.
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant entered pleas of guilty to three counts relating to the importation of about four kilograms of cocaine – where the applicant was sentenced to nine years’ imprisonment for Count 1: importing a commercial quantity of cocaine – where the applicant seeks to challenge the sentences imposed on the sole ground that they are manifestly excessive – where the focus of the challenge was as to the nine year sentence – whether the sentences are manifestly excessive
R v Hasnan  QCA 281, cited
The applicant appeared on his own behalf
The applicant appeared on his own behalf
- MORRISON JA: On 26November2018 the applicant entered pleas of guilty to three counts relating to the importation of about four kilograms of cocaine. The offences were:
- (a)Count 1: importing a commercial quantity of a border controlled drug, namely cocaine;
- (b)Count 2: attempting to possess a commercial quantity of a border controlled drug, namely cocaine; and
- (c)Count 3: dealing in the proceeds of crime worth $10,000 or more.
- The sentencing was postponed and eventually took place on 20September2019. At that time the applicant was sentenced to the following terms of imprisonment: importation, nine years; attempt to possess the drugs, four years; and dealing in the proceeds of crime, 12 months. Pursuant to s19AB(1) of the Crimes Act 1914 (Cth) a non-parole period was fixed at four years and six months.
- The applicant seeks to challenge the sentences imposed on the sole ground that they are manifestly excessive. The focus of the challenge was as to the nine year sentence.
Circumstances of the offending
- The sentencing hearing proceeded on the basis of an agreed schedule of facts.
- The applicant was born on 28September1976. Thus, he was 39 at the time of committing the offences and 42 at the time of his sentence.
- In November2015 a person (“LN”) met with an associate named “Diego Sott”, in Brazil. At the meeting Sott introduced LN to another Brazilian national, identified only as “Rodrigo”.
- Rodrigo proposed that LN could undertake a trip to Australia for him. He offered to pay for all the costs associated with the trip. LN later agreed and was provided by Sott with instructions and cash to obtain a visa, passport, international air tickets, hotels and tickets for travel within Australia. Although he did not initially know precisely what he was to do on the trip to Australia, LN suspected that he would be carrying cocaine. LN was later told that he would earn $30,000 by doing the trip.
- In December2015 LN was advised that his travel route was going to change from Sydney to Perth. In January2016 Sott gave LN approximately $3,000 to purchase aticket and arrange accommodation.
- LN departed on 15February2016. On that day a man came to LN’s home and dropped off a suitcase, which LN was to bring to Australia. LN was instructed by Sott that when he arrived in Perth he was to spend three to four days in the hotel, and purchase an Australian SIM card. He was then instructed to take the train to Sydney. Upon arrival in Sydney, he was to post a photo on Instagram of Bermuda shorts or abottle of wine, so that others would know he had arrived. LN was instructed that after the photo had been posted someone would contact him, he would then take the train from Sydney to Brisbane and a bus from Brisbane to the Gold Coast. Upon arrival at the Gold Coast someone would collect the suitcase and provide LN with $3,000-$5,000. A week later LN would be provided with the rest of the money. LN understood that the person he would meet went by the name “Fabio Magico”. LN was also instructed to download the app Telegram to further communicate.
- On 18November2015 the applicant travelled to Brazil to meet with Sott.
- After returning to Australia, the applicant communicated with Sott on three days regarding available flights to Australia (including a flight to Perth).
- On 15February2016 LN departed Brazil for Perth via Dubai. Two days later LN arrived at Perth International Airport. Upon arrival LN was arrested by Australian Federal Police (AFP). A search of his baggage revealed several concealed packages of a white powdered substance hidden in the lining of the suitcase. In total, the powder weighed 4,820.1grams gross, and contained 4,053.7grams of pure cocaine.
- LN’s mobile phone was seized by the police and he was interviewed about his involvement in the importation of the cocaine. He was later arrested and charged.
- On 21February2016 the applicant engaged in a series of text messages with a person, believed to be Sott, in relation to the whereabouts of LN. During the exchange the applicant was told to call the hotel to see “if the friend did the check in”. When the applicant asked, “Is everything ok? Did something happen?”, he was told “He is missing … For about six days”. The applicant was told the hotel was the Mercure Hotel in Perth, and was provided with the hotel’s telephone number. The applicant was told to call the hotel and ask to speak to “him”. For that purpose he was provided with the name of LN.
- On 21February2016 AFP officers accessed LN’s Instagram account. An image was posted indicating to the syndicate that LN had arrived successfully in Australia, and to initiate contact. Thereafter, an AFP undercover operative (UCO) obtained an Australian mobile phone number and pretended to be LN in further communications with syndicate members.
- On 24February2016, following the posting of the image, Sott made contact with UCO, who was posting and communicating as LN via social media.
- On 26February2016, Sott and UCO discussed whether the applicant had contacted UCO. At 9.20pm UCO received a message from Sott via Instagram that read: “The friend is trying to call you”.
- On 26February2016, the applicant engaged in a WhatsApp conversation with an unidentified syndicate member, believed to be Sott, on a particular Brazilian telephone number. The applicant was provided with UCO’s contact number and given directions to make contact with him using WhatsApp. The applicant was communicating with Sott to arrange for the collection of the cocaine from LN.
- On 27February2016 the applicant contacted UCO on WhatsApp. On 29February the applicant and UCO arranged, via SMS, for UCO to come to the Gold Coast from Sydney. On 1March UCO informed the applicant, via SMS, that he had bought aticket to the Gold Coast and would leave the next day. On 2March2016 UCO received SMS communications from the applicant asking how and when he would arrive at the Gold Coast. UCO replied that he would arrive after lunch the next day.
- The applicant continued communications on the Brazilian phone number, regarding the progress of the deal. The information passed in the messages from that Brazilian phone number to the applicant are consistent with the messages UCO had provided to Sott.
Events on 3 March 2016
- At 12.42pm UCO informed the applicant via SMS that he had arrived on the Gold Coast, and asked where to go. The applicant replied via SMS and asked: “Hey man, give me the address you are at and I will come around later”.
- At 5.54pm UCO received a call from the applicant, which he did not answer. At 6.10pm UCO made three return calls, each of which was not answered. At 6.14pm UCO sent an SMS to the applicant, which stated: “I tried to call you, call me”.
- About 20 minutes later, at 6.36pm, UCO received a call from the applicant, during which they discussed the meeting location, the integrity of the drugs, and the expected payment of $27,000. The applicant confirmed that he would meet UCO at the Mantra Hotel on Ferry Road “in about one hour”, after confirming the street address and apartment number. The applicant also confirmed that he would have the money on him when he arrived. UCO stated that he “had to use a bit of that stuff, the gear”. The applicant responded, “… you can sort that out with the guys later, nothing to do with my part, I don’t want to know about it, you can sort it out with them”.
- Later that evening, at 7.20pm, police executed a search warrant at the applicant’s residence. AFP officers conducted searches of the premises and the applicant’s motor vehicle. During the search of the premises, police located a heat-sealed bag containing $45,000 in the walk-in robe of the applicant’s bedroom. They found afurther $3,700 in a chest of drawers in the applicant’s bedroom. An Apple iPhone was located in the boot of the applicant’s car. Later examinations of the iPhone confirmed it was the mobile phone that had been used to communicate with UCO. The mobile phone number being used by UCO was saved in the contacts of the applicant’s phone under the name LN. Numerous social media accounts under the username “Fabio Magico” were set up on the iPhone.
Arrest and caution
- Later on 3March2016 the applicant participated in an interview with investigating police. During that interview the applicant made the following admissions:
- (a)he owned the iPhone which had been located in the boot of his car, and he was the user of that device;
- (b)he owned the $48,700 located in his bedroom;
- (c)he knew Sott and had met him in Brazil in late 2015; and
- (d)he owned and operated the Facebook, WhatsApp, Instagram and other social media platforms on the iPhone, using the identity “Fabio Magico”.
- When initially questioned, the applicant denied all knowledge of any person by the name of LN. When questioned as to whether he was in contact with or making any arrangements for any specific persons, he denied any contact or arrangement other than with some surfers unrelated to this matter. The applicant was unable, when questioned, to provide a plausible explanation for the large amount of money he had in his possession.
- When advised that he had been conversing with an undercover police officer, and that the interactions had been recorded, the applicant altered his story and further admitted:
- (a)he had communicated with the person saved in his phone contacts as LN;
- (b)he was the person who sent and received the messages between the phones being used by himself and UCO; and
- (c)in the 3March2016 telephone conversation when he had made arrangements to meet the other person in an hour, he believed he was speaking to the person known as LN.
- Despite the admissions made by the applicant, he denied any knowledge of or involvement with the importation of cocaine from Brazil. At the conclusion of the interview he was arrested and charged.
Approach of the sentencing judge
- The learned sentencing judge commenced by observing that the charges were extremely serious, and Counts 1 and 2 carried a maximum penalty of life imprisonment. Her Honour then reviewed the essential facts of the offending conduct, much as appears in the agreed statement of facts. Her Honour then referred to the following matters which reflect the view she had formed of the seriousness of the offending:
- (a)the drugs were of a very large quantity, high purity and high value; the value was $1.26million wholesale, or $5million if sold on the street;
- (b)the applicant’s role in the importation was limited to paying the courier and receiving drugs; there was no evidence that he would do anything but pass them on as directed;
- (c)that role had been assumed, however, well in advance of LN’s arrival; there was nothing impromptu or spontaneous about the applicant’s involvement;
- (d)the applicant’s limited level of autonomy in the arrangements meant that he was acting on instructions, but clearly trusted to carry out those instructions;
- (e)her Honour rejected the proposition that the applicant might only be expected to receive a few thousand dollars by way of reward, finding that “no doubt … you would have received at least as much as the courier, LN, who was to get $30,000, given the risk of this enterprise, the value of the drugs, the level of trust clearly reposed in you”;
- (f)the applicant had no stake in the profits of the importation, and the actual outcome of the importation was not of primary concern to him; and
- (g)the applicant was more culpable than LN, though not greatly so; LN was merely the human mechanism by which the drugs were transported from Brazil to Australia; by contrast, the applicant had at least the limited role of seeing that LN did get to the Gold Coast, delivered the drugs and was paid, “which required some degree of organisation and activity on your part”.
- The learned sentencing judge rejected the contention that there was a deal of parity between the position of LN and that of the applicant. Her Honour found that LN was in a very different position because he cooperated with the police immediately on his apprehension, gave them access to his social media accounts so that they could establish contact with the applicant and the supplier, and assume his identity, and he also undertook to give evidence against the applicant. As a consequence, the sentencing judge in LN’s case gave a 40percent reduction of his sentence for past cooperation and the plea of guilty, and then a further reduction to reflect the undertaking to give evidence. LN was sentenced to five years and 10 months, with a non-parole period of three years and nine months.
- The learned sentencing judge found the decision of R v Onyebuchi; Ex parte Commonwealth Director of Public Prosecutions to be of assistance. That case involved an offender playing a similar role to that of the applicant but for asignificantly smaller amount of drugs. In that case a nine year sentence was imposed, to serve four and ahalf years.
- The learned sentencing judge then referred to the mitigating circumstances that had been advanced in the applicant’s favour. But for them, her Honour considered asentence of 12 years would probably be appropriate. The mitigating factors were:
- (a)the plea of guilty which, though not early, nonetheless was of assistance to the administration of justice;
- (b)the modest cooperation shown by the applicant which was indicative of some level of contrition;
- (c)the absence of any criminal history;
- (d)the applicant had an established good history of employment, and excellent references given from various witnesses, all revealing the applicant as agenerous, helpful person, and that the offending was out of character;
- (e)the personal circumstances of the applicant including his family;
- (f)a psychologist’s report revealing that the applicant suffers from a panic disorder;
- (g)the fact that a prison sentence would be more difficult for the applicant because of his anxiety and panic symptoms;
- (h)the prospect of deportation and consequent separation from the applicant’s family; the consequent hardship to the applicant’s family, in the nature of emotional and financial hardship, which her Honour did not regard as being exceptional; and
- (i)the applicant’s excellent prospects of rehabilitation, otherwise good character, and good work history.
- The learned sentencing judge balanced those matters, and drew support from the decision in Onyebuchi, concluding that a period of nine years was appropriate in respect of Count 1, four years on Count 2, and 12 months on Count 3. All sentences were to be served concurrently, and a non-parole period of four years and six months was set.
- The applicant, who appeared on his own behalf, advanced a number of matters in support of the contention that the sentence of nine years was manifestly excessive. Iwill deal with each in turn.
- The applicant first contended that it was not possible that he could have received an indication through social media that LN had arrived in Australia. He pointed to the fact that he had nothing to do with regard to the planning, booking or purchasing of LN’s flights, did not know LN, did not meet him, and never spoke to him.
- This contention misses the point. The agreed facts were that the applicant travelled to Brazil to meet Sott, and communicated with Sott after he had returned to Australia in relation to flights from Brazil to Perth. That was the path of travel taken by LN. Further, after LN had arrived in Perth, the applicant communicated with someone (believed to be Sott) about how to contact LN at a nominated hotel in Perth, and for that purpose was provided with LN’s name. A few days later Sott told UCO that “The friend is trying to call you”, evidently referring to the applicant. Communications that day between the applicant and Sott were for the purpose of arranging the collection of the cocaine from LN.
- In the circumstances, the applicant was plainly aware that LN was in Australia. The fact that the applicant might not have seen or understood the social media message is not to the point.
- The applicant also contended that there was no evidence that the cocaine was his or that he would do anything with it such as selling or distributing it. He added that he had no knowledge about the quantity or quality or anything else besides the money that he had to give to LN.
- Those matters may be accepted, but the fact is that the applicant was a participant in arrangements between himself and Sott to: (i) contact LN at his hotel in Perth; (ii)meet LN on the Gold Coast; (iii) take possession of the suitcase LN was bringing; (iv)pay LN $27,000 on behalf of those for whom LN was working; and (v)inferentially, pass the drugs to someone else. The agreed facts were that the applicant and UCO discussed the arrangements to meet, the payment, and the integrity of the drugs. Plainly, the applicant was an important, even if limited, participant in the importation and handover of the cocaine.
- The applicant contended that there was no clear or substantial evidence that he had participated in planning the importation, or that he was motivated by financial gain to do what he did. That should be rejected. The agreed facts were that the applicant travelled to Brazil in November2015 in order to meet with Sott, the person with whom he made arrangements in respect of meeting the courier (LN), collecting the drugs, and paying LN. Whilst Sott directed the applicant as to how to contact LN in Perth, including the provision of the particular hotel, the hotel’s phone number and what to do, nonetheless the applicant had a degree of autonomy in how he went about that task. Likewise, the applicant had a degree of autonomy as to how he was to arrange the meeting with LN on the Gold Coast, and make the payment. The applicant’s contact with the person he believed to be LN was arranged by the applicant, who had possession of the money to hand over.
- The learned sentencing judge drew the inference, which was plainly open, that the applicant was to be paid a significant sum for his trouble. Accepting that the drugs were not to remain with the applicant, he was plainly in a position of trust with the true owners of the drugs, as he was to take possession of them from LN and deal with them in some unknown way (presumably handing them on to someone else).
- By contrast, LN was given the sole task of delivering a suitcase to the applicant. There was no suggestion of further involvement by LN, and particularly no involvement in what was done with the drugs after he handed them over.
- The applicant contended that he was not a drug user and not a drug dealer, nor was he part of any criminal organisation. That he was not a drug user may be accepted. However, his participation in the receipt of four kilograms of cocaine imported from Brazil, the payment of a substantial sum to the courier, and the passing of the drugs onto someone else, demonstrate that even on that limited basis he was dealing in drugs and part of a criminal organisation.
- The applicant proffered what he described as a “resume of my involvement on this matter”. It consisted of a version which was different from and went beyond the agreed schedule of facts. For that reason it should be disregarded.
- The applicant contended that the sentence of nine years was not a reflection of the level of his involvement in the matter as his role was very limited. In particular, he contended that his sentence should be comparable to that imposed on LN.
- Those contentions should be rejected. As the learning sentencing judge explained, LN cooperated from the earliest moment after his arrest, not only providing information about the importation but undertaking to give evidence against the applicant. That high level of cooperation was reflected in a substantial discount to the sentence that was imposed upon LN. As noted above, the sentencing judge in LN’s case gave a 40percent reduction of his sentence for past cooperation and the plea of guilty, and then a further reduction to reflect the undertaking to give evidence, resulting in a sentence of five years and 10 months, with a non-parole period of three years and nine months. That means the notional start point was something close to 11years. By contrast, the applicant’s cooperation was quite limited, and on no basis would warrant the same discount. The reasons given by the learned sentencing judge for distinguishing between the sentences for LN and for the applicant were sound.
- The applicant also contended that his lawyers had not done as well as he had hoped, and he would have had a more experienced barrister if he could have afforded it. It was also said that the Crown made an offer at one point that if he pleaded guilty they would drop a charge, and that did not happen. There is nothing in these points. The applicant was represented by very experienced counsel; the same counsel appeared for him on his arraignment nearly a year earlier, and the delay between then and sentence included time for the defence to examine the eight or nine hours of transcripts of the applicant’s interviews. No doubt that was done in an attempt to formulate a case for a discount for cooperation. If the cooperation did not warrant asimilar discount to that granted to LN, then there was little room to manoeuvre, as the comparable authorities supported a sentence such as was imposed for the importation. And, it is notable that the applicant’s parole eligibility date was set, in his favour given these were Commonwealth offences, at only 50 per cent of the head sentence.
- As to the submission about an offer, there is no evidence to substantiate that it was ultimately pressed, and the fact is that the applicant pleaded to all three charges. In any event, there is no reason to infer that the Crown would have dropped the importation charge.
- The applicant lastly contended that the likelihood of his deportation, and consequent separation from his family, constituted an extreme punishment, not only on his family but as a result of the drastic impact on his professional career. That was a matter taken into account by the learned sentencing judge, in a way which cannot be criticised. The emotional and financial hardship for the family was not regarded as exceptional, and was taken into account. It is the inevitable consequence of participation in an offence of this kind that a non-citizen becomes liable to deportation. The applicant and his wife had separated in January2015 so that by the time of sentencing, more than four and a half years had passed. The family had more than three years to become accustomed to the prospect of the applicant’s likely deportation. There is nothing in the learned sentencing judge’s balancing of that factor which renders the sentence manifestly excessive.
- In my view, it has not been demonstrated that the sentence imposed was manifestly excessive. I would refuse the application.
- McMURDO JA: I agree with Morrison JA.
- BODDICE J: I agree with Morrison JA.
- Published Case Name:
R v Da Silva
- Shortened Case Name:
R v Da Silva
 QCA 176
Morrison JA, McMurdo JA, Boddice J
25 Aug 2020