On 2 February, 2001, the defendant has arranged and paid for the formation of an Australian listed company called Impex Australia Pty Limited to facilitate the importation of a number of black plastic floor crates from South Africa.
On 8 March 2001, approximately 580 single units of black modular flooring has entered the Botany terminal and under instructions of the defendant, other known persons have facilitated its transportation to shed 15, 8 Hargrave Street, Tamworth
This being a storage shed leased by the defendant for the purpose of unpacking and storing the flooring.
On 11 March 2001, two further known persons have entered Australia via Sydney and travelled to Tamworth where they were met by the defendant at Tamworth Airport.
On 14 March 2001, the shipment of flooring has been delivered to the shed 15, 8 Hargrave Street, Tamworth, where it was unpacked by the defendant and the two known persons.
On 17 March 2001, the defendant and two known persons have travelled from Tamworth to the Kennards self storage facility, 105 Pacific Highway, Hornsby. At the time the defendant has enquired about the lease of a storage shed.
The defendant has completed the rental agreement and provided his details and South African driver's licence as identification.
The defendant has paid cash for one month's rental and purchased a lock with two keys to the unit.
The defendant has retained one of these keys and the pin number and supplied another key to the two known persons.
The defendant and two known persons have then travelled back to Tamworth.
On 23 March 2001, the two known persons have returned to the Kennards self storage facility, 105 Pacific Highway, Hornsby, and completed an authority to break lock for unit M 72.
The two known persons have then with the assistance of staff removed the lock and after being left alone placed a new lock on to the storage unit. The two known defendants have then returned to the Tamworth area and returned the key for the Hargrave Street storage shed to a hotel for return to the defendant
On 30 March 2001, the two known persons have left Australia via Sydney.
On 11 April 2001, the defendant has contacted one of the known persons in the US via his mobile phone.
On 19 April 2001, the defendant has then contacted the Kennards self storage complex and advised them that he wished to pay for an additional month's rent for unit M 72 using his visa card and that he needed a new pin for access to the storage unit.
The defendant was advised that a pin could not be sent but that the payment could be accepted.
The defendant further stated that he had two agents coming over to the unit.
On 23 April 2001, the defendant's mobile phone was subject to a lawfully obtained telephone interception.
At 7.38am on 24 April 2001, the defendant contacted a known relative in which they stated, Dennis (one of the known persons) is in any case, um apparently um there. He um signed over the facility and put another lock on and so on. So I don't know what's going on there.' The defendant stated, No well I don't know about that, you know, so I'm going to arrive and just try my own key and if it doesn't work, then say to the people, what now? You know.'
At 3.16pm on Thursday 26 April 2001 the defendant's mobile phone has been subject to lawful interception in which the defendant had a further conversation with a known relative in relation to instructions for what the defendant should say and do in relation to the Hornsby storage shed.
At the completion of the telephone call the defendant expresses his desire to not talk on the phone any further and that he will communicate via email.
On 27 April 2001, police from the drug squad and APP have executed a search warrant on 79 Harrier Parade, Tamworth, the residence of the defendant. During this search during this time a search of the premises was conducted in the presence of the defendant and recorded on video. During this time a number of items were located including $32,800 in Australian currency.
At 10am in company with the defendant a further search warrant was executed at shed 15 8 Hargrave Street, Tamworth in which a further 577 pieces of black modular flooring were located, a mop, a number of cleaning products and a sheet of plastic attached to the window with, grey electrical tape.
At 1.18pm the defendant was cautioned and participated in an ERISP in which the defendant stated that he had commenced a business in Australia for the importation of the modular flooring for the purpose of selling for profit.
The defendant further stated that due to his busy employment he had been unable to conduct any market research, but that he intended to do so.
The defendant further stated that the two known persons had travelled from the USA to assist in the marketing of the flooring but had not completed in any such activity.
The defendant stated that he was undertaking the business on behalf of the known relative.
The defendant was then shown the authority to break padlock for unit M 72 in which he stated that he was unaware of the lock being broken and had no explanation for it.
The defendant further stated that the $32,800 in cash was part of . $100,000 in cash brought into Australia by the unknown relative in January 2001, This being part payment for a previous debt.
The defendant stated that the $32,800 was all that remained after purchasing a motor vehicle and other expenses.
At 7.09pm a further lawfully intercepted telephone call was obtained in which the defendant contacted the known relative and informed them of the search warrant by police. During this conversation the defendant speaks to the known relative about the explanation given to police in relation to the money seized.
At 9.18am on 28 April 2001 the defendant contacts one of the two known persons and informed them of the search warrant conducted by police.
During this call the defendant is advised not to talk on the phone and call on a pay phone. The defendant agrees.
On 3 May 2001 at gam a further search warrant is executed on 15 8 Hargrave Street, Tamworth where a number of scientific analyses were completed, and all items removed.
On 3 May 2001 at 2.47pm the defendant again contacts the known relative and has a conversation in relation to the actions of police. The defendant specifically advises about the police removing all items including the wooden pallets. The known relative shows considerable concern about this, and states But, but, clean wood, proper wood.' The defendant stated, Yes hopefully.'
The defendant had a further conversation in relation to changing his explanation about the source of the money seized, and coached as to his explanation to be offered to police on how the money was obtained.
At 3.54pm the defendant participated in a second ERSP in which he stated that he bought the $60,000 into Australia himself as part of a pension pay out and that he was aware of his obligation to report such amounts entering Australia.
The defendant again denied any knowledge of the cocaine located. On 15 January 2002 after further extensive enquiries by the drug squad, police attended the British Aerospace Section, Tamworth Airport, and at 1.06pm the defendant was informed of his arrest and conveyed to Tamworth Police Station.
The defendant was cautioned and participated in an ERISP. He stated that approximately one to two weeks after receiving delivery of the modular flooring, he had it placed in the Tamworth self storage unit. He then began the lease for the storage shed at Hornsby. He then received a phone call from each of the both known persons, who informed him that a large amount of cocaine had been located in his storage shed. He was advised by one of the known persons to leave Australia. The defendant states that he was extremely concerned about these calls and immediately contacted his girlfriend and arranged for her to fly to Sydney where he would meet with her. The defendant states he discussed his concerns with his girlfriend about the calls and the apparent location of the drugs in the unit at Hornsby.
The defendant further stated that although concerned enough to fly to Sydney, he did not feel concerned enough to travel to Hornsby, or contact the police, or make any enquiries to confirm the information.
The defendant further stated, that although he was the only person in Australia with access to the storage shed at Hornsby, he made no attempt to do so.
The defendant further stated that the reason he obtained the storage shed in Hornsby, was to allow for the showing of the modular flooring to prospective customers, although he had no knowledge of the brand, the cost price, the manufacturer, guarantee or warranty, import costs, competition or whether the flooring was even new or second hand. The defendant further stated that he had in fact made no sales, or contacted any persons in relation to the sale of the items.
The defendant further stated that he had made no attempt to obtain contact details from the two known persons, although he believed them to be in Australia prior for the purpose of developing a market, and having been previously involved in the selling of the products.
The defendant was questioned in relation to the expenses of establishing the business to which he replied that one of the known persons had attended Australia and handed him $10,000 in cash for expenses. This being something the defendant had not revealed in the two previous interviews.
The defendant was questioned in relation to the lawfully obtained telephone intercept in which he was unable to provide answers for the inconsistencies in his previous interviews.
The defendant was charged with the matters now before the Court."
4 The applicant gave oral evidence on more than one occasion before the sentencing judge. His Honour found that in statements which he had made to the police, which included denials of his involvement, he gave "various versions of events with the clear intention to mislead and deceive." His Honour found that the applicant told numerous lies and provided accounts minimising his involvement and supplying exculpatory descriptions of his activities including a false explanation as to how he came to possess significant money sums.
5 In a statement which his Honour described as his "final statement", made two years after his arrest, the applicant presented a scenario which was different to that which had previously been provided to the police. However, his Honour concluded that it was not possible to find that even this final statement represented "an honest, full and accurate version of what had occurred." Having observed the applicant his Honour was not persuaded that he was a truthful witness.
6 His Honour said this:
"Before me, it appears as though he has attempted to adhere as closely as he could to his final version to police.
He presented a highly unlikely account of an agreement between himself and his brother Jacobis to import industrial flooring into Australia. At no point in the prisoner's evidence as to the alleged scope of the importation of industrial flooring and as to how it was to be financed and marketed did he provide a sensible and credible explanation. The prisoner described the formation of a company Impex Australia Pty Ltd to facilitate the importation of industrial flooring. He claimed that he had been told by his brother that two persons Dennis and Gorgy [sic], would assist him with the unloading of that flooring.
It had been his intention to move to Tamworth to live, and for reasons for which no convincing explanation is advanced, it was decided to transport the flooring to Tamworth after it was landed in Sydney. To this end, he rented premises in that centre.
He claimed that only on the day prior to flooring arriving in Tamworth was he informed by Dennis and Gorgy [sic] that there were drugs contained within the flooring and its packaging.
I simply do not believe that he was not well aware of the presence of the drugs long before this.
It is impossible to accept that the prisoner had any genuine belief that the timber flooring was to be marketed in Australia, as a bona fide operation. No sales persons had ever been engaged, no advertising had been arranged, no facility to demonstrate the product at Tamworth. There were no details of pricing, anticipated profits, landed cost of the timber, how it was to be sold or distributed.
Apparently the proposed method of attracting customers, if the prisoner is to be accepted, was to have the storage shed at Kennards storage depot at Hornsby where a number of pieces of timber would be available for inspection. It is a mystery to me as to who the prospective customers would be and how they would ever be attracted to a storage shed 1.8 metres x 1.5 metres x 1.4 metres. No sensible explanation was offered as to how prospective customers were to be informed of the whereabouts and qualities of the flooring.
On his account Mr Coetzee was aware eighty-four kilos of cocaine had been imported into Australia. He, of course, is charged with an offence involving but 24.4 kilos of that drug and will be dealt with on that basis.
A former colonel in the South African Air Force, he was certainly not an unsophisticated, ill-educated man. He either was aware at all times of the importation, as I believe, or if his version is accepted, he was told shortly before or at the time the drugs arrived at Tamworth.
That consignment of cocaine was worth a small fortune involving millions of dollars, yet the prisoner would have me believe that there was at the same time a genuine commercial operation on foot, selling industrial flooring. He had no qualification or expertise in this field, and it is ludicrous to expect his companions would have engaged in such unplanned, unorganised venture which may or may not result in any profit.
Having regard to the undoubted vast amounts to be made in selling the cocaine, I have not the slightest doubt that the importation of the flooring was to the prisoner's knowledge, but a device to disguise the drug importation.
I make mention of these matters only to demonstrate my complete scepticism as to the reliability of the prisoner's final account to the police and of his explanations given before me. This is relevant on the question of any remorse or contrition."
7 His Honour went on to express his further scepticism about the applicant's account that he was surprised to receive the sum of $130,000 which the applicant said was thrust upon him by Gorby with the explanation "this is for helping us around Sydney." His Honour found, holding "no doubt" about the matter, that the applicant had full knowledge that a substantial quantity of cocaine had been imported into Australia contained within the pallets and packing associated with the flooring. His Honour also found that the applicant was fully aware that compressed cocaine had been placed in the storage unit at Hornsby where it was located by the police.
8 His Honour also rejected any suggestion that the actions of the applicant were influenced by any threats or duress and rejected any suggestion that his conduct resulted from coercion or deception which had been practised upon him. Although the applicant had claimed to a probation officer that he was unaware that the goods imported contained illegal drugs, his Honour rejected this assertion. His Honour also rejected the proposition advanced to a probation service interviewer that the reason for his failure to report the presence of the drugs, was because of threats of harm to himself and family in Africa, should he contact the police or compromise the illegal activity in any way.
9 His Honour said that the complications with the applicant's evidence made it impossible to accurately categorise his status in the hierarchy of the criminal activity. However, his Honour found that he was not some minor functionary in an insignificant position. His Honour found that his participation was central and vital to the success of the scheme. He had arranged the formation of a company to facilitate the importation. Although his Honour did not find that the applicant was responsible for financing the purchase of the cocaine, he nevertheless, concluded that he would have benefited financially in a significant manner from a successful operation.
10 His Honour determined that by reason of the size of the criminal activity and the prospect of profits it was important to impose a sentence which reflected the need for deterrence, protection of the public and provided appropriate punishment for the applicant.
11 The applicant had a career as a pilot and flying instructor and his business activities reflect a sophisticated and intelligent person. His Honour found that he was fully aware of the devastating effects of the availability of 24.4 kg of cocaine within the community. Finding that cocaine is a highly dangerous drug, his Honour concluded that the quantity involved in the activity had the potential to corrupt and destroy many people.
12 His Honour also had access to a pre-sentence report which set out the relevant subjective matters. The applicant was born in South Africa, the eldest in a family of three children. He was brought up in a supportive environment free of significant material or other deprivation. However, his father was killed in a motor vehicle accident in 1992 when the applicant was driving the vehicle. The applicant has been married and divorced on two occasions and has two children aged fourteen and eighteen at the time of sentence who live with their mother in South Africa. He again became engaged in March 2003 and at the time of sentence his fiancée continued to be supportive of him.
13 The applicant was employed directly from school by the South African Air Force. He served as an Air Force pilot for in excess of twenty-three years. After leaving the Air Force he set up a debt recovery business with his brother.
14 He came to Australia to work for BAE Systems, as a flying instructor after seeing an advertisement in a local newspaper. Initially that employment required him to live in South Australia, largely at his expense, while learning and obtaining Australian civilian aviation qualifications. He then moved to Tamworth with the BAE Systems College situated at the airport.
15 His Honour found that there was nothing in his background by way of physical or psychological disability or drugs, which would explain his conduct. His Honour was satisfied that the applicant was motivated by greed. The applicant had a previously unblemished record. Letters from his family and former Air Force colleagues described a series of impressive achievements as a career pilot and instructor. He was well regarded in the South African Air Force and held many responsible positions. He received a variety of merit awards and decorations. His Honour concluded that the reports of his time in custody indicated impressive efforts on the applicant's behalf to rehabilitate himself.
16 His Honour found that the applicant's plea of guilty was not entered at the earliest opportunity, but, nevertheless at an early stage and had utilitarian value, in that it saved the community the cost of a trial and relieved the pressures on the resources of the trial court. His Honour determined that a discount of 15% was appropriate.
17 There was a delay of 15 months between when the applicant entered his plea of guilty and when he was sentenced. This delay was in part due to difficulties in the sentencing judge being available at convenient times. However, it was also significantly due to the applicant seeking to have his sentence hearing deferred in the expectation that if he cooperated with the authorities in the prosecution of others involved in the enterprise, he may receive more favourable consideration. His Honour found that in reality the prospect of a prosecution of others eventuating was unrealistic and any expectation that the applicant could have given relevant assistance to authorities was misplaced.
18 The applicant advanced ten grounds of appeal.