By Paul Gregoire and Ugur Nedim
Kevin Vazquez checked into the Drummoyne Furnished Apartments on 20 June 2023, and on 21 July, he contacted the manager informing a consignment addressed to an “Alejandro Evans” arriving from the US was his. After arrival, of what was being referred as the “dummy run”, Vazquez took various photos of a white substance contained in that package, but there is no evidence it was illegal drugs.
A consignment marked “Sample of New Voltage Converter for Industrial Use”, was sent from Mexico to Alejandro Evans at the apartments on 8 August 2023. But the phone number attached belonged to Vazquez. Two days later, US Customs and Border Protection intercepted this consignment numbered 672, and found it concealed an electronic box with bags containing 797 grams of methamphetamine.
Vazquez move to Redfern’s Canterbury Student Places on 10 August. And between 13 August and 10 September 2023, he and a “Walter” exchanged messages over an encrypted app, tracking the consignment and discussing Vazquez’s expenses. This included a document titled “Kevin_Alejandro_$_50,000.pdf”. Vazquez later confirmed he had received the payment it detailed.
Walter too provided then 20-year-old Vazquez, a Mexican national, with the consignment number and told him that it would arrive at the apartments on 8 September 2023. Vazquez was then arrested by police at the Drummoyne apartments, when he’d attended the premises to make a new booking for a room on 10 September.
Four more consignments identical to consignment 672 were then sent from Mexico on 10 August 2023, bound for Alejandro Evans at the Drummoyne address. It’s unknown whether Vazquez was aware of them. But he and Walter did discuss another consignment around 21 August, and it was seized at Melbourne Airport on 18 July 2023. But it could not later be directly linked to Vazquez.
During investigations, police found Vazquez had also received and sent child abuse material in a WhatsApp chat with a Rodo Puebla. Two messages sent to Vazquez involved children, one aged 3 to 5 and in the other a 5- to 7-year-old, in a sexual positions with adults. The third sent by Vazquez on 22 August 2023 involved a 6- to 8-year-old engaged in a sex act with a person of an unknown age.
Pleading guilty to all charges
Vazquez pleaded guilty to several charges. The first plea involved one count of attempting to import a commercial quantity of an unlawfully imported border controlled drug, contrary to sections 11.1(1) and 307.5(1) of the Criminal Code Act 1995 (Cth). And this drug importation offence carries up to life imprisonment and/or a fine of up to $2,475,000.
In terms of importing drugs into Australia, there are two types of quantities: a marketable quantity and a commercial quantity, with the latter being the larger and therefore, carrying more serious penalties.
Schedule 2 of the Criminal Code Regulation 2019 (Cth) lists the various quantities that relate to differing illegal drugs, and a commercial quantity of methamphetamine under this regime, is at least 750 grams of the substance.
As Vazquez’s importation crime was not successful, the law of attempt, which is an inchoate offence, or an incomplete crime, came into play. Attempt only becomes a criminal act when combined with another offence. And an accused convicted over an attempted crime faces the same maximum penalties that would have applied if they’d completed the commission of the offence.
The failed drug importer also pleaded guilty to one count of using a carriage service to transmit child abuse material, contrary to section 474.22(1) of the Criminal Code Act 1999 (Cth). This crime carries up to 15 years prison time.
Vazquez was also charged with using a carriage service to access child abuse material, which is too an offence under section 474.22 of the Code. But as per section 16BA of the Crimes Act 1914 (Cth), this second offence was taken into consideration when sentencing in respect of the “transmitting offence”, which is a process Vazquez had to agree to, as well as to provide whether he accepted guilt.
In assessing Vazquez’s subjective circumstances, then NSW District Court Judge Paul McGuire stated that he was “not satisfied that the evidence establishes that the offender suffered from such deprived and difficult circumstances during his childhood that it results in him having a reduced moral culpability or that he is an inappropriate vehicle for general deterrence”.
His Honour, who is now a NSW Supreme Court justice, then sentenced Vazquez to 6 years and 3 months prison in respect of his attempted drug importation and to 4 months gaol time for the child abuse material. So, the total sentence was 6 years and 7 months imprisonment, and this sentence reflected a 25 percent discount due to the utilitarian value of his early guilty pleas.
Convoluted laws on the books
Vasquez appealed against the severity of his sentence to the NSW Court of Criminal Appeal on 13 March 2026. He did so based on two grounds.
The first was that the judge made an error in sentencing in finding that there was a presumption towards being sentenced to prison in regard to the transmit offence unless exceptional circumstances were found, and the second ground was that the sentence was manifestly excessive.
In approaching the first ground, NSWCCA Justice Peter Hamill explained that part 1B of the Crimes Act 1914 (Cth) (the Act) governs sentencing over federal offences. His Honour further underscored that the sections under this part are set out in a “byzantine and dizzying” manner, or they’re just plain confusing to follow.
Section 17A of the Act stipulates that a convicted person shouldn’t be sentenced to prison time, unless all other alternatives are considered.
Further, subsection 20(1)(a) of the Act provides that a convicted person can be released without the need to serve any prison time on agreeing to have a good behaviour bond imposed upon them whilst living in the community, as well as pay or undertake any court ordered reparations.
However, subsection 20(1)(b)(i) of the Act outlines that a person convicted over a federal offence or offences may be sentenced to prison, but then after a period be released on a good behaviour bond, as per subsection 20(1)(a), unless one of the offences is a child sex offence.
Subsection 20(1)(b)(ii) of the Act provides that if the person is convicted over at least one child sex offence and the court has found there are no exceptional circumstances then that individual can be released on a bond after a specific time has been served.
Then subsection 20(1)(b)(iii) of the Act states that if at least one federal offence is a child sex crime and there are exceptional circumstances, then that person can be released immediately.
Vasquez put to the court that the sentencing judge, in interpretating subsections 20(1)(b)(ii) and 20(1)(b)(iii) of the Act, had been in error.
“Exceptional circumstances” is not defined by the law, but the courts have found it refers to something unusual in terms of the offender who committed the child sex offences. Further, there should not be an over-readiness to find exceptional circumstances, and a combination of circumstances cannot produce this outcome, unless each circumstance is exceptional in its own right.
The sentencing judge set out that the child abuse material offences that Vazquez had been convicted in respect of did fit the definition of child sex offence within section 3 of the Act, and he added that for those crimes there is a statutory presumption towards imprisonment unless exceptional circumstances are found.
So, the requirement that a court must consider other options other than a full-time custodial sentence, as set out in section 17A of the Act, had not been considered.
Therefore, the first ground was made out, and as resentencing was required, the second ground of appeal did not have to be considered.
Resentencing over child abuse material
Justice Hamill found that the transmitting offence was a serious crime because it depicted a real child, naked and posing in a sexual manner, and the long-term psychological harm to this child has to be taken into account when charging over such child abuse material offences. However, the crime was of “low-level objective seriousness”, when compared to other such crimes.
His Honour also found that on considering the alternatives as required under section 17A of the Act, he was not satisfied a custodial sentence was necessary for the transmitting offence, due to the objective seriousness, as well as the offender’s youth, his early guilty pleas, his insight into his offending, his remorse, the efforts he’d made in prison and his incarceration so far from Mexico.
“In reaching that conclusion, I have taken into account the accessing child abuse material offence but also the sentencing judge’s statement that the offence… had a ‘very minor’ impact in the circumstances of the case,” his Honour added.
On 1 May 2026, Justice Hamill ordered that in terms of the transmitting child abuse material offence, Vazquez should be resentenced to a Community Correction Order, which is like a good behaviour bond, under NSW law. A CCO requires that the subject not break the law during the duration of its imposition and that, they appear in court if required to.
In terms of the sentence for the importation of a commercial quantity of drugs, his Honour noted that the appellant had not raised the manifestly excessive ground in relation to the prison term that related to this crime, so he would “not interfere with the head sentence imposed for the drug offence”.
But his Honour did consider that Vazquez’s non-parole period should be reconsidered in light of the resentencing in relation to the transmitting offence, and this resulted in it being reduced by a single month.
NSW Chief Judge at Common Law Natalie Adams and NSWCCA Justice Dina Yehia agreed with their colleague’s order that Vasquez be resentenced to 6 years and 3 months imprisonment for his drug crime, with non-parole set at 3 years and 11 months, while a 2-year CCO was also imposed upon the appellant, which was to be served in partial concurrence with the term of prison.
