By Paul Gregoire and Ugur Nedim
New South Wales police officers executed a search warrant upon a premises and vehicle in the southern Sydney suburb of Carlton that belonged to Alexandre Da Silva on 29 September 2022. Da Silva was under police observation, when he drove to a western Sydney suburb to pick up a small black backpack, and when NSW police pulled him up in Kogarah, it was found to contain four bags of methamphetamine.
The backpack also contained two mobile phones, one of which was encrypted, along with $1,500 in cash. In terms of the illicit drugs, the “substance had a net weight of 3,475.9 grams of which 2,791.1 grams were pure methamphetamine”.
The police further “located a number of remote controlled structural hidden compartments within” the vehicle, which was a courier truck. The items inside these compartments included $136,550 in cash, 1,549.9 grams of methamphetamine, another 1,081.6 grams of meth, 123 grams and 159 grams of cocaine and 53.7 grams of heroin, amongst other located drug dealing paraphernalia.
On raiding Da Silva’s Carlton residence, officers also located $95,860 in cash, along with sizable amounts of cocaine and cannabis. The total amount of money police located in the possession of Da Silva was $233,910. However, the man’s banking and tax records provided no indication as to why he’d be in possession of such a large amount of cash.
The 25-year-old father was then arrested and charged with six serious drug offences, as well as being refused bail at Sutherland Local Court. Da Silva’s lawyer had argued that he needed time on conditional release to build his case for trial and added that he had strong familial ties. However, NSW Magistrate Phillip Stewart considered he posed a flight risk due to his access to drugs and cash.
Serious drug offences
Da Silva entered guilty pleas at an early date in respect of three offences. The first was one count of dealing in proceeds of crime, amounting to $100,000 or more, contrary to section 400.4(1) of the Criminal Code Act 1995 (Cth). This offence carries a maximum penalty of 20 years imprisonment and/or a fine of $396,000.
The defendant also pleaded guilty to a count of trafficking in a commercial quantity of drugs, contrary to section 302.2(1) of the Criminal Code. This offence can see the convicted put away for life and/or fined up to $2.475 million.
The third count that Da Silva conceded guilt to was the offence of trafficking in a marketable quantity of drugs, contrary to section 302.3(1) of the Criminal Code, and this is a crime that sees an offender liable to up to 25 years gaol time and/or a fine of $1.65 million.
Da Silva further requested that a fourth count of trafficking in controlled drugs be taken into account in sentencing. This offence is contrary to section 302.4(1) of the Criminal Code, and it carries maximums of 10 years imprisonment and/or a fine of up to $660,000.
This fourth offence was taken into account as per section 16BA of the Crimes Act 1914 (Cth), which provides that the court will take into account extra offences when sentencing a convicted person over the substantive crimes they appear in court in respect of. The sentencing judge will ask the defendant if they admit guilt to such offences and whether they want them to be taken into account.
During the sentencing hearing, the prosecution relied on a sentencing report by Community Corrections Officer Kylie Moore, whilst the submission provided by the defence included an assessment by psychologist Tim Watson-Munro.
NSW District Court Judge James Bennett sentenced Da Silva on 6 December 2023 to 12 years and 9 months imprisonment with non-parole set at 8 years and 3 months. The sentence reflected a 25 percent discount that was granted due to the utilitarian value of Da Silva’s early guilty pleas.
A ground made out
Da Silva appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 18 October 2024. He did so based on three grounds.
The grounds included the sentencing judge failing to take into account Da Silva’s history of childhood sexual abuse on sentencing, after signalling he’d do otherwise, that an error had occurred when the judge rejected the psychologist’s analysis provided by Watson-Munro without providing the defendant with any notice and lastly, that Da Silva’s “childhood trauma” was left unaddressed.
NSWCCA Justice Kristina Stern outlined that ground one comprised of a supposed denial of procedural fairness, as the judge rejected evidence that Da Silva had been sexually abused, when the evidence was unchallenged and the judge gave no indication that he would reject the evidence”, and ground three represented a failing to “take into account a mandatory relevant consideration”.
Her Honour added that whilst Da Silva’s “history of sexual abuse” could play a factor in sentencing in terms of mitigating the penalty’s length, it was actually up to the defence to satisfy the judge of this. The defence needed to show that the abuse occurred and that it was relevant to the current matter.
Da Silva told the court that he had been sexually abused by a family friend on multiple occasions in 2007, when he was 10 years old. This was left unreported, and it led him to start taking drugs at 14-years-old. But the judge had raised the point that the assertion that Da Silva’s alleged history of sexual abuse had contributed directly to his offending involved “a bit of a jump” in logic.
Justice Stern added that Judge Bennett showed scepticism about the alleged history of sexual abuse but not Da Silva’s later heavy drug use.
However, the sentencing judge did not reject the claim of abuse but rather appeared to reject its relevance in contributing to his offending, as a supposed low-level drug dealer supporting his habit, when he was actually a part of a “sophisticated and highly successful enterprise”.
She therefore rejected the notion that procedural fairness had been denied Da Silva on sentencing and further found that the first and third grounds were not made out, which left the second ground to be considered, which entailed whether a denial of procedural fairness occurred when the judge rejected the diagnoses in Watson-Munro’s report without notifying the defendant to this point.
Da Silva further asserted that while Judge Bennett had not stated that he would not be accepting Watson-Munro’s assessment, in circumstances like these where evidence is left unchallenged by the prosecution and no cross-examination of the psychologist had occurred, it was required of the sentencing judge to provide notice to the defendant that he’d rejected the report.
“I would accept the applicant’s contention that, in rejecting Mr Watson-Munro’s diagnosis of depression in this way, the sentencing judge denied the applicant procedural fairness. This led to practical injustice,” her Honour found. “Mr Watson-Munro’s diagnosis flowed from his clinical impression of the applicant and the outcome of assessment using the Beck Depression Inventory.”
Her Honour added that regardless of whether the sentencing judge had reservations about the telehealth facility that Watson-Munro had used to make his assessment, “it was procedurally unfair for the primary judge to have rejected Mr Watson-Munro’s diagnosis without giving any indication to the applicant that he proposed to do so”. So, it followed that the final ground was made out.
Resentenced in light of procedural unfairness
On resentencing Da Silva in light of his successful appeal of his sentence, Justice Stern set out that the sentencing judge had failed to take into account the offender’s depressive disorder when imposing a term of prison. Her Honour raised the fact that Da Silva had not challenged any of the assertions made by Judge Bennett, besides the fact that he left the childhood abuse unaddressed.
Further her Honour, in coming to an appropriate new sentence, did not place significant weight on the offender’s history of sexual abuse and drug use, because she found that whilst the abuse may have led him into his initial forays into drug use, this reasoning did not hold to the extent that the abuse Da Silva was subjected to directly led to large-scale commercial drug trafficking.
“I thus do not consider that the applicant’s history of sexual abuse nor his substance use disorder materially impact upon his moral culpability, nor lessen the need for specific or general deterrence,” said NSWCCA Justice Stern. “Both specific and general deterrence are matters of some significance given the nature of the offending conduct.”
On 27 November 2024, her Honour then ordered that Da Silva’s original sentence be quashed and a new sentence of 10 years and 9 months, with a non-parole period of 6 years and 10 months, be imposed. This reflected a 25 percent discount in line with the inmate’s early guilty pleas.
NSWCCA Justices Hament Dhanji and Tim Faulkner agreed with their colleague’s orders.
