Hadi Kada v The Queen [2017] VSCA 339
Wang v R [2010] NSWCCA 319
Source
Original judgment source is linked above.
Catchwords
Hadi Kada v The Queen [2017] VSCA 339
Wang v R [2010] NSWCCA 319
Judgment (17 paragraphs)
[1]
Proceeding 2017/241867:
E Muston SC with G Wright (CDPP)
A Djemal (Offender)
File Number(s): 2017/241866; 2017/241867
[2]
Judgment
Ahmad Ahmad and Hassan Fakhreddine have pleaded guilty and come before me to be sentenced in respect of one count of attempting to import a commercial quantity of border controlled drug.
The charge to which they have pleaded guilty is that they, between about 25 February 2017 and 8 August 2017, with each other, Hakan Arif, Nejmi Saki, Mostafa Dib, Moustafa Ibrahim and Ryan Watsford, attempted to import a commercial quantity of MDMA. The offence is contrary to ss 11.1(1) and 307.1(1) with ss 11.2A(1)(a) and 11.2A(1)(b)(ii) of the Criminal Code (Cth). It carries a maximum penalty of life imprisonment and/or 7,5000 penalty units.
I have sentenced Ryan Watsford, Mostafa Dib and Moustafa Ibrahim in respect of charges arising from the same enterprise to import a commercial quantity of MDMA into Australia. I will in due course I will set out my findings about the respective roles and deal with the issue of parity.
The sentence proceedings of the co-offenders were conducted separately. The facts and circumstances giving rise to the offending conduct are largely the same as the facts in the current proceedings. There are some differences. There is also evidence presented in the Defence cases here, that was not available when sentencing the co-offenders.
It follows that I must proceed to sentence these offenders on all of the evidence before me in these proceedings. The findings I make in respect of any disputes between the parties, the objective seriousness of the offence to which these offenders have pleaded guilty, and their roles in the offence are based only on the evidence presented in the current proceedings.
On 18 November 2018 each offender entered a not guilty plea in the Local Court. On 8 March 2019 the matters were listed for trial to commence on 17 February 2020 with an estimate of 10-12 weeks. On 29 November 2019, in the course of a specially organised Super Callover, the offenders entered pleas of guilty and the matters were listed for sentence in March and May 2020.
It is contended, on behalf of each offender, that notwithstanding the late plea of guilty, a reduction in sentence by 20% is appropriate to reflect the utilitarian value of the plea. The Crown submits that a reduction in sentence by that order is excessive and unwarranted in the present circumstances.
Although the pleas of guilty were entered at a late stage, there is significant utilitarian value. The trial was listed as a 10-12 week trial involving complex issues and the necessity to have the undercover operative give evidence in the proceedings. The brief of evidence included hundreds of folders and hundreds of hours of electronic material. I am satisfied that a reduction in sentence by 20% is appropriate in this case to reflect the utilitarian value of the plea. The pleas of guilty, although late, have avoided the need to run a lengthy trial in the New South Wales District Court, in circumstances where that trial would have been lengthy and occupied significant resources.
I am also satisfied that thereafter lengthy discussions took place between the parties with a view to settling a Statement of Agreed Facts and clearly identifying the issues in dispute. Although the sentence proceedings were lengthy, taking approximately three days for evidence and submissions, the disputed issues were clearly identified and evidence relating to these issues was placed before me in an efficient manner. That could only have happened with the agreement of the offenders. I am satisfied that therefore, in addition to the utilitarian value of the pleas, each offender has facilitated the course of justice.
[3]
Facts
The circumstances giving rise to the offences are set out in a 33-page Statement of Facts. The contents of that document are largely undisputed. There are however discrete disputes between the parties about which, in Mr Ahmad's case, evidence was adduced. I intend to summarise the Statement of Facts, identifying the areas of dispute and setting out my findings in respect of them.
I do not reproduce the entirety of the contents of the Statement of Facts, but to be clear, I have had regard to all of the facts and the evidence adduced in the proceedings in determining the objective seriousness of the offence, the role of the offenders and resolving the areas of dispute.
In March 2016 the Australian Federal Police commenced an investigation into the criminal activities of Ryan Watsford. That investigation was known as Operation Veyda. In November 2016, the investigation expanded to include Moustafa Ibrahim and Mostafa Dib.
The investigation involved the deployment of an undercover officer, "Zane", who built a relationship with Watsford and Ibrahim.
The relationship with Watsford was developed through Zane assisting Watsford in dealing with suspected proceeds of crime and later through the successful sale and distribution of smuggled cigarettes. In October 2016 Zane told Watsford that he had access to a "door". In this context, a "door" is a person or methodology that is able to facilitate the importation of illegal goods into Australia without being detected by Australian law enforcement. At the time Zane first mentioned the door, Watsford stated: "I don't want to get involved with drugs man… too risky".
In November 2016 Watsford introduced Zane to Moustafa Ibrahim (and another associate, Fares Derbas) to discuss a smuggled tobacco transaction. During that meeting Ibrahim asked Zane: "what else can you do?" to which Zane responded that he could "get anything you want". Zane explained that "you got to organise it first and then we'll just guarantee it gets in. But if you want to use our companies and stuff… It's additional fees". Ibrahim asked: "why don't you'se bring in fuckin rack and shit like that?" (rack being a reference to cocaine).
On 14 November 2016 Watsford and Zane met again to discuss the smuggled tobacco transaction. Zane said that he was confident that the three of them (Zane, Watsford and Ibrahim) could do a lot of business together. Zane reiterated that he could get anything in, "no hassles at all". Watsford asked: "even kilos?" to which Zane replied: "Yeah- anything - but, like, not fucken - they're not gunna bring in fucken, five, 10 kilos. Like, the risk for them - it's the same doing five, ten as doing, you know, a bit more".
Mr Ibrahim later joined the meeting. He told Zane that he had "50 litres in Lebanon and 50 kegs of Coke in Lebanon", a reference to drugs. Zane replied that there was an upfront fee of $50,000 and then more on delivery.
On 18 November 2016, Watsford and Ibrahim introduced Zane to Dib and another associate, Jodeh. They commenced discussions about arrangements to import pseudoephedrine from Lebanon which eventually stalled in late February 2017-early March 2017. The present offenders were not participants in the discussions about the proposed importation of pseudoephedrine. Indeed at this stage, these offenders were not involved in any way in any discussions about the importation of border control drugs.
Over 22 and 23 February 2017, a number of Blackberry communications were exchanged between Dib and Zane in relation to the importation of drugs. They discussed the progress of the proposed importation of pseudoephedrine from Lebanon and its continued delay. The conversation continued and they discussed the possible importation of MDMA from the Netherlands. Zane enquired as to when Dib would provide the $50,000, a fee for holding the window open for 2 to 3 months. Dib replied that he would confirm later that day because "I am gonna see the guy. I want to make sure he's got the $50,000 before I tell you".
Zane asked Dib about his contacts in the Netherlands. Dib replied that his contacts in the Netherlands had cocaine and wanted to try about 150 kg. If it arrived safely they would put "heaps more on". Zane asked Dib whether he knew anyone who could supply MDMA and that he wanted about 150 kg to bring into the country. Dib told Zane that the MDMA was about €3000 - €4000 per kilogram.
Zane said that he intended to go to Holland and asked whether he could get a sample of the product. They then discussed whether the MDMA and cocaine could be put on the same load.
On 25 February 2017 Dib forwarded to Zane a chain of communications from Arif (who was using the Blackberry handle Babyface). Arif was the person who was to source the drugs in the Netherlands. The communication chain originated from Arif who sent the message to Fakhreddine (using the Blackberry handle Blacknight6), who forwarded it to Ahmad (who was using the Blackberry handle Narcosaint) who forwarded it to Dib (who was using the Blackberry handle The-Enemy). The message contained a response to Zane's question about the price of MDMA.
Arif's message stated that the cost price of the MDMA per kilo was €4000 and if they were keen they would have to give a deposit. The purity of the MDMA was said to be 86%. When Fakhreddine forwarded the message to Ahmad, he added: "Hey brother, that's price 4K euro". Ahmad then forwarded this message to Dib, who in turn forwarded it to Zane.
Dib then sent a further message to Zane asking how much MDMA he wanted and Zane replied 100-150 kg and that he wanted a sample. He also said that if he was happy with the sample he would put a deposit down. There was further communication between Dib and Zane about going to the Netherlands to inspect the sample and for Zane to pack the drugs.
From this point forward the large majority of Blackberry messages sent from Arif and received by Zane, or sent by Zane and received by Arif took place in chains of communication from Arif to Fakhreddine to Ahmad to Dib and then to Zane or back the other way.
In subsequent communications between the men they were referred to by various names or nicknames as set out in paragraph [22] of the Statement of Facts.
On 27 February 2017 Dib and Zane exchanged further Blackerry messages in which Zane asked about how much of a deposit was needed. During this exchange the men discussed the cut that each would get. In answer to a question by Zane, Dib replied: "Bro 150kg [cocaine] and 150 kg [MDMA] just waiting to work out what percentage my mate is gonna get out of the cocaine because when you get fixed up [Ibrahim] gets a cut, [Watsford] gets a cut. I get a cut, my mate won't have anything left".
Dib clarified that a deposit was no longer required. Dib also stated that the cocaine was for his mate and that Zane was only getting the MDMA. They then exchanged messages about the timing of when Zane would go over to the Netherlands. These communications involved Dib and Zane only. Dib did not identify, in these communications, who the "mate" was that he was referring to.
Between 28 February 2017 and 10 March, there were a number of communications and meetings between Ibrahim, Watsford and Zane and Dib in connection with the drug importation. For instance, Dib and Zane exchanged Blackberry messages about the quantity of MDMA that Zane would purchase and the cut that Dib, Ibrahim and Watsford would receive. Dib tried to negotiate 30 kg of MDMA out of the 150 kg Zane purchased, or 40 kg if Zane purchased 180 kg. Zane explained that he needed a full 150 kg. Dib agreed and confirmed that he would tell Ibrahim and Watsford. There is no mention in these communications of a cut going to either of these offenders.
Dib, Ibrahim, Watsford and Zane agreed over Blackberry messages that they would each contribute $25,000 to cover the costs of everything Zane had to organise for the cover load, warehouse trucks and other expenses in the Netherlands, given that they were each to receive a cut of the MDMA from Zane.
Dib and Zane exchanged messages about Zane's plans to travel to the Netherlands to collect the sample. Dib asked whether Zane was organising the cover load and Dib suggested to Zane that they take Watsford to collect the sample. As it turned out it was Ibrahim who travelled to the Netherlands when Zane collected the sample of MDMA.
In March 2017 Zane was provided with the $25,000 contribution for expenses. $25,000 was provided on behalf of Dib. $50,000 was provided on behalf of Ibrahim and Watsford. Neither of these offenders contributed $25,000 to the expenses.
On 14 March 2017 Zane met with Ibrahim at the Sydney Fish Market and they discussed how the money would be exchanged for Zane's purchase of MDMA. The money was to be exchanged in Australia rather than overseas. Zane was to leave the money with Ibrahim to hold and once Zane was happy with the MDMA, Ibrahim would hand over the money.
Dib arrived and they continued to discuss the proposed importation. Dib explained that the overseas syndicate was going to leave it up to Zane to package the drugs. Dib, Zane and Ibrahim agreed that they did not want the overseas syndicate to package the drugs or know anything about the company being used to transport the drugs because they didn't want them to "piggyback" the container. The present offenders were not a party to these discussions.
The three men discussed how the money handover would take place in Sydney. Dib asked whether they would go halves in the remaining cost of the door and Zane agreed. They discussed a remaining amount of $350,000 that Zane said would need to be paid upon arrival in Australia otherwise the drugs would not be released. Again, these offenders were not party to these discussions.
Dib also confirmed that (at that time) the load would be 200 kg of MDMA. 180 kg was for Zane which included the 30 kg for Dib, Ibrahim and Watsford. Dib said that 20 kg was for "the bloke that put me through to...". It is unclear as to who the "bloke" was that he was referring to.
Between 18 March and 21 March 2017 Dib exchanged messages with Zane and Ibrahim about when and where they would meet in the Netherlands to collect the sample of MDMA. On 21 March, Dib forwarded to Zane a Blackberry message chain originating from Arif to Fakhreddine in relation to the arrangements for picking up the sample. That message was forwarded to Ahmad who forwarded it to Dib who then messaged Zane to ask that he make sure that he picked up Ibrahim on time to collect the sample and then to message Dib following collection of the sample so that they would know that everything was fine.
On 22 March 2017 Zane in company with another undercover operative and Ibrahim picked up the 1 kg sample of MDMA.
Between 23 March and 24 March 2017, Zane, Dib and Ibrahim exchanged messages in which Dib asked Zane whether he was satisfied with the sample. Dib also messaged Zane to ask him to make sure all the paperwork and cover load was ready and asked what else needed to be done overseas so that all that remained was for Zane to go over there, collect and send the drugs. These offenders were not party to these discussions and arrangements.
Zane replied that he had questions that needed to be answered and asked Dib to forward them on. Dib replied to Zane in part "that guy is a runner doesn't know anything, ask me". He sent a further message in which he told Zane: "I'm not saying no to you about the questions. I'm saying his runner [here] doesn't know. Ask me I will ask main bloke." I am satisfied that the reference to the "main bloke" is a reference to Arif. It is unclear as to who the "runner" is but it is open to infer that the reference to "his runner here" is a reference to Fakhreddine.
Zane sent Dib a message with questions about how the drop-off would happen, where it would happen, how the drugs would be packaged and whether the cocaine and MDMA could be marked differently. Dib forwarded these questions to Ahmad and added: "he needs these questions answered".
Ahmad forwarded those messages to Fakhreddine who forwarded them to Arif, with Fakhreddine stating to Arif: "Brother, can these questions be answered? And never mind the 150 rack. My guy hasn't told them yet but he will lol".
Arif then sent a message to Fakhreddine referring to the way in which the drugs would be packaged. Fakhreddine forwarded Arif's message to Ahmad, adding: "they can pack it however your guys want brother." Ahmad then forwarded that message to Dib who forwarded it to Zane. Further communications were sent by way of Blackberry message chains originating from Arif to Fakhreddine, on to Ahmad and then to Dib.
On 28 March Dib sent a message to Zane asking him to advise what else he needed so that Dib could tell the other side. He also enquired of Zane how long he needed to get ready as the other side was ready to go. Zane replied that he needed a photograph of the boxes that would be used to pack the drugs so he could make sure the cover load was packed the same way. Dib responded that he would get a "cypher" which was a device that could send photographs.
On 2 April Dib and Zane exchanged Blackberry messages about the appearance of the boxes for the container. Dib forwarded a Blackberry chain to Zane. In the first message in time in the chain, Ahmad sent a message to Fakhreddine which stated: "Salam brother. I am getting cypher now. Have our mates over there get it. I need piks of boxes they're going to use to pak 25 kilogram at a time so my mate can get same boxes".
This was clearly a message sent by Ahmad following the enquiry made by Zane and the requirement that a cypher be obtained to send photographs, a requirement initiated by Dib, not Ahmad.
Fakhreddine replied to Ahmad: "yes brother they have I will get the pics". Ahmad forwarded that exchange to Dib who forwarded it to Zane.
Between 3 April and 11 April 2017 Dib, Ibrahim and Zane exchanged numerous messages about a possible deposit; an increase in the cost of the MDMA from €4000 to €4500 per kilogram; and the total amount that Zane would need to pay to purchase 180 kg of MDMA. The three men also met to discuss the progress of the proposed importation. These offenders were not involved in these communications.
The changing price caused some tension and during an exchange between Zane and Ibrahim, Ibrahim accidentally sent Dib a message meant for Zane about the drugs being cheaper through another source, Elmir, a better contact than Dib. Dib sent a message to Ibrahim trying to reassure him by telling him that Zane would not lose his deposit. During that communication Dib said: "I've been arguing with them back and forth. I know his cousin here. His cousin is the main guy over there, but the dick head here makes decisions before he asks his cousin over there".
The Crown alleges that the "cousin here" is a reference to Fakhreddine (a matter disputed by Fakhreddine) and the "main guy over there" is a reference to Arif.
When Dib was asked by Zane the exact amount of the deposit required and whether it was to be paid in dollars or euros, Dib forwarded to Zane a chain of Blackberry communications. In the first message in time, Ahmad sent a message to Fakhreddine asking "how much deposit we need?" and Fakhreddine replied to Ahmad: "the total amount owing including the exchange rate is 1.249m if they pay 249K that will leave 1 m. let me know if they're happy with that khaye".
Ahmad replied to Fakhreddine: "that's 4 180 pieces, yeah" and Fakhreddine responded to Ahmad with the following: "Correct. 180 kegs at 4,500 euros is 810,000 euros. Into au$ $1,136,000 plus the 10% exchange rate =1,249,000."
Ahmad forwarded those messages to Dib adding the words: "that's the figures". Thereafter there was an exchange of messages between Dib and Zane about the change in price and the amount of deposit required. These offenders were not involved in that communication. Dib requested a meeting with Zane and Ibrahim. Zane agreed.
On 4 April 2017 Dib forwarded to Zane a chain of Blackberry communications. In the first message in time, Fakhreddine sent a message to Ahmad that stated: "Hey brother, good news. No deposit needed. But when your guy goes there and checks work with people over there. As soon as his happy. All the papers have to be passed immediately". The message confirmed that a deposit was no longer required but that payment would have to be made immediately upon being satisfied with the drugs.
Ahmad forwarded that message to Dib adding the words: "good news". Zane asked Dib whether he confirmed that the price was €4000 per kilogram and Dib confirmed that it was. Thereafter on 6 April 2017 Zane and Ibrahim met to discuss the arrangements for the handover. Dib later joined the meeting and confirmed the amounts of MDMA would be 180 kg for Zane, an extra 20 kg for someone in Australia, and Arif and Saki's people were putting on an extra 200 kg, which totalled 400 kg.
Dib agreed that he would obtain photographs of the boxes that the MDMA would be packed in so Zane could arrange the cover load. They discussed the logistics of the handover in the Netherlands; the exact price in Australian dollars; and the likely arrival time in Australia. They also discussed how the $350,000 release fee would be split three ways. These offenders were not engaged in these communications or meetings.
At this stage, on 7 April 2017, the discussions confirmed that the release fee of $350,000 would be split three ways only, between Zane, Dib and Ibrahim.
On 7 April, further communications took place between Zane and Dib which included an enquiry from Zane about locking in the total cost. Dib responded that he was waiting on a reply and on 10 April 2017 he forwarded to Zane a chain of Blackberry messages. The first in time was from Arif to Fakhreddine setting out the total cost. Fakhreddine forwarded the message to Ahmad with Fakhreddine adding: "OK brother that's a total for 180 kegs plus the 10% exchange rate". Fakhreddine was passing on what Arif had calculated.
Ahmad forwarded the message to Dib who messaged Zane. Zane replied to Dib by setting out what he calculated the total cost to be in the message set out at paragraph [56] of the Statement of Facts. The next series of messages are relevant to some of the issues in dispute in Mr Ahmad's case and it is therefore necessary to set them out in full.
Dib replied that Zane's figures did not match the figure Arif quoted which was AU$1.286 million. Dib also forwarded Zane's message to Ahmad, with Dib adding: "That wat were gona cover 126 fck didn't know that much so Indian is happy with the figures can we confirm". Ahmad replied to Dib: "he has to pay 1.146k".
Dib also sent a message to Ahmad which stated: "so were gona have to put that in 126 than were gona put 125 wen the stuff get here. Its 350- lebo putting 100, indian 125, me and u 125 between us those guys in Holland wont wait for the 126 to it gets here."
Dib sent a further message to Ahmad stating: "Bro Indian said his putting one million and twenty if we put 126 it doesn't come to the figure". Ahmad replied with the following message: "1 million and 20k +10%". Dib then forwarded his exchanges with Ahmad to Zane.
The Crown relies upon these exchanges in support of the contention that Ahmad was not simply a conduit in the exchange of messages, but that he had a more significant role including contributing to a portion of the door fee and contributing to a shortfall of the price difference in respect of the MDMA.
Dib and Zane continued to exchange messages setting out the calculations for the total price. A further chain of Blackberry communications was sent through these offenders in respect of locking in the exchange rate. I am satisfied that these offenders were simply passing on those messages without adding to them.
On 11 April 2017 Ibrahim and Zane exchanged messages during which Ibrahim confirmed that he would have $1.8 million ready for the purchase of the smuggled cigarettes but would hold $1,120,000 to pay for Zane's purchase of 180 kg of MDMA.
On 12 April 2017 Zane sent a message to Dib making further inquiries in respect of the transportation of the drugs which passed through these offenders. On 18 April 2017 Zane sent a message to Dib asking whether "your boys will be able to get pics of the boxes….But tell them important thing is it's in 25 kg bags heat sealed bro". Dib forwarded this message to Ahmad who forwarded it to Fakhreddine adding the word "important". On 21 April Dib messaged Zane advising that he had just received confirmation about the product being placed in heat sealed bags.
On 22 April 2017 Ahmad received a message from an unknown person warning that the cypher had been compromised. He forwarded that message to Dib. Dib forwarded the messages to Zane with Dib adding: "Lucky we didn't use". Clearly, the fact that Ahmad forwarded the message he had received to Dib was to warn against using a cypher that had been hacked. It does not in itself inform the seniority of his role. Even if his role was limited to being a conduit through which messages were being exchanged, he was involved in a serious criminal enterprise and was keen to ensure the success of the enterprise. It is not surprising therefore that he would warn Dib about the cypher being compromised.
On 5 May 2017 Ibrahim, Watsford and Zane met and discussed the proposed importation from the Netherlands including the storage and the progress of a separate proposed importation involving Elmir and a separate plan to import smuggled tobacco. These offenders were not involved in these discussions.
On 7 May 2017 messages were exchanged between Ibrahim, Dib and Zane about the various calculations and commissions. In one of those messages Ibrahim replied that Dib had said that he, his mate, Zane and Ibrahim would get 5% each and Zane agreed. The Crown alleged that "his mate" is a reference to the offender Ahmad.
The Crown also alleges that the reference to "my partner" in a message sent by Dib to Ibrahim and Zane on 7 May 2017 [70 SAF] is a reference to the offender Ahmad. On 9 May Arif sent a message to Fakhreddine which was forwarded to Ahmad and then to Dib about the arrangements for the handover. Dib replied to Ahmad that when Zane was happy with the product the money would be handed over. Ahmad forwarded Dib's message to Fakhreddine who sent it on to Arif adding: "the Indian is the door brother he will be the one checking the work and giving the green light. He is the main guy who will be there to take work from your people.[The reference to "work" is a reference to the drugs] we need to agree on things now so we don't have misunderstandings later. They don't want to pass paper until work is checked. And they want to check it properly over there brother. So if you can have all the work ready to be checked and when they like it papers will be passed and held until everyone is happy"
This message was forwarded from Fakhreddine to Ahmad, with Fakhreddine adding: "that's what I sent him". Ahmad forwarded this to Dib, who forwarded it to Zane. Further messages were exchanged between Arif and Fakhreddine in which Fakhreddine emphasised that the Sydney syndicate would not want the drugs to leave their sight. Fakhreddine forwarded this exchange to Ahmad who passed it on to Dib who sent it on to Zane.
Dib sent a group message to Zane and Ibrahim about the handover arrangements and the date. These offenders were not included in that message. Zane responded that 21 May was a suitable date for him and requested that Dib find out whether the Netherlands syndicate would lock in the price. This is a reference to locking in a transfer/exchange rate. On 10 May Dib forwarded Zane's message about locking in the price to Ahmad, adding that he needed a reply. Ahmad forwarded the message to Fakhreddine who responded that he hoped to have a reply by that night.
On 11 May Dib sent a group message to Ibrahim and Zane. There was also an exchange of messages between Zane and Ibrahim about how much money would be required to accommodate for fluctuating exchange rates.
On 12th May Dib sent a message to Ibrahim and Zane informing them that he was not sure how much MDMA would be in the whole load because "my partner told them if he puts on 100 kgs m extra they said yes ill put on 300 kg m but then he went down to 50 kg of M they said sweet we will still put on 300 kg M but his mate is struggling to get 20 kg M if he doesn't tell Holland ppl I told him I will tell them that he only can get 20 kg M I'm telling u this bro to make sure u have enough cover load boxes bcus not sure what's gonna be on".
The Crown alleges that in this message the reference to "his partner" is a reference to the offender Ahmad. The Crown alleges that in this message Dib explained that his partner had asked Arif/Saki's people whether he could put on 100 kg of MDMA and they agreed and would put on 300 kg more. Then, his partner told Arif/Saki's people he could only put on 50 kg of MDMA and they still agreed to put on 300 kg but his partner's associate was struggling to purchase 20 kg of MDMA. Dib said that he was telling Zane this information so he could arrange a sufficient amount of cover load.
On 14 May Dib advised Zane and Ibrahim in a group message that he had sourced someone to purchase 50 kg of MDMA which was needed so that the overseas syndicate could put on an extra 350 kg of MDMA. Dib confirmed that the original load was 400 kg of MDMA and 50 kg of cocaine and the new load was 800 kg of MDMA and 50 kg of cocaine. As it transpired, no cocaine was sourced.
The present offenders were not included in this exchange. Separately, on 14 May 2017 Dib sent a message to Ibrahim in which he stated that "R" thought that he and Dib would also get a percentage commission from the 30 kg that Ibrahim was to receive from Zane's 180 kg but that Dib had told "R" that he was incorrect, they were only receiving 20% commission split 4 ways on the extra 400 kg.
The Crown alleged that "R" is a reference to Ahmad who was also known by the nickname "Rock". There is no dispute that he was known by that nickname. There is a dispute as to whether "R" is a reference to Ahmad and, alternatively, if it is a reference to Ahmad, it was a communication sent by Dib in an effort to create the false impression that Ahmad was his partner, thereby reducing the risk that Dib would be ripped off - the "ruse".
On 16 May Fakhreddine sent a message to Ahmad stating: "Salam brother, you didn't get back to me on the job run-down to confirm". Ahmd replied: "All good brother went tru it why its 10.5% I can do it at under 8% brother there". Fakhreddine replied: "that's the worst case scenario brother. But 10% is more than likely. We have worked off 10% this whole time khaye so have the Indian and that side. That's the normal exchange rate. But let me forward this to him." The reference to the Indian is a reference to Zane. I am satisfied that Fakhreddine intended to send that message to Arif, who was the person making the decisions.
Arif responded that "if he can do it for under 8 let him do it no issue. This is what I pay and I am not into transfers so if he goes it even better for me". Fakhreddine forwarded Arif's response to Ahmad who passed it on to Dib asking him: "how much can we do transfers 4 brother? They said if we can do it better than 10% to do it".
Dib forwarded these exchanges to Zane and Ibrahim asking them: "how much can u do transfer for". Clearly the decision as to the exchange rate was to be made by those much higher in the hierarchy. Dib also sent a group message to Zane and Ibrahim suggesting that it would be better to hand over the cash in Australia. Zane and Ibrahim agreed that they should stick to the original plan of Ibrahim handing over the cash to Dib as soon as Zane had confirmed that he was happy with the MDMA.
On 17 May Ibrahim asked Dib to lock in a price with Arif's syndicate. Messages were exchanged between the three men in respect of some of the arrangements for the handover. Dib forwarded these messages to Fakhreddine who replied to Dib: "that's fine brother but tell them one guy from [their] side will be with them until papers are passed here". This is a reference to an unknown person being with Zane in the Netherlands until the money was handed over in Australia.
On 18 May Dib and Zane exchanged messages about the handover during which Dib replied: "Sweet bro there gona do it the way u said bro wen do u need exact kilograms they might put on another hundred kilograms of M more for us for to split". The Crown alleges that Dib was referring to splitting the commission on the additional 100 kg of MDMA between himself, Zane, Ibrahim and Ahmad.
On 19 and 20 May numerous messages were exchanged about last-minute changes to the plans for the handover because Arif was concerned about doing the handover on a Sunday as he was told by the Netherlands suppliers that Sunday was unsafe. These messages are set out at paragraphs [96]-[107]. The messages reveal tension about the last-minute changes. A number of these messages were from Dib directly to Fakhreddine (although this offender was copied in) who then sent on Dib's messages to Arif. One of the messages sent by Dib was a group message to Ahmad and Fakhreddine: "Ur mates get bck to u about time and place. I haven't told Indian yet but good chance he will pull out of the deal if u don't agree to his time and place bcus they already agreed now they want to change their minds can't believe this".
Clearly the tension was rising because of the last-minute changes to the proposed handover date. Dib forwarded that chain of communication to Ibrahim who forwarded it to Zane. Ibrahim later left his premises and drove to the vicinity of Dib's home. In an intercepted call that afternoon Ibrahim was captured saying that he saw "Rock today…. I was with him for about 2 hours just laughing". The Crown alleges that the reference to "Rock" is a reference to the offender Ahmad and that Ibrahim had met with Ahmad and Dib earlier that day. I accept that the reference to Rock was a reference to the offender Ahmad. The fact that Ahmad may have met with Ibrahim in relation to the building tensions does not add in any significant weight to the Crown's characterisation of Mr Ahmad's role.
At 4:07pm Zane (now in the Netherlands) communicated to Ibrahim that they should stick with the original plan. Dib and Zane exchanged numerous messages about their dissatisfaction with the proposed change to the handover date and discussed how the MDMA would be packaged. Dib sent a message to Fakhreddine in which he asked: "does he have them". Fakhreddine replied to Dib: "Brother 800 is ready just let him get up and reply". Dib confirmed with Zane that there would be no cocaine.
Fakhreddine forwarded to Arif the messages about how the MDMA would be packaged. Arif replied to Fakhreddine and confirmed that the MDMA was packaged into kilogram lots so that they could split it up to make 25 kg boxes or 24 kg and 26 kg boxes.
Further messages were exchanged on the same day between Fakhreddine and Arif about the handover in which Fakhreddine explained to Arif that the cash was ready to be handed over at 7 PM Sydney time the following day and that he would be with Ahmad, Dib and Ibrahim at the handover in Sydney.
Arif replied to Fakhreddine: "brother paper with u is paper with me" and that a photo of the cash would be fine, then Fakhreddine could pass to "one of the boys he will come to collect". Fakhreddine thanked Arif for trusting him and asked Arif to "send someone right away so he picks up directly from the people. So less driving around with it brother". Fakhreddine forwarded these exchanges with Arif to Ahmad and Dib adding: "we are all set lads".
On 21 May, the day the handover of the drugs was supposed to take place, Arif/Saki's people decided not to proceed because they believed that it would be unsafe given the increased law enforcement presence on Sunday. There was an exchange of messages which indicated the frustration in respect of the changed arrangements. These exchanges are set out at [118]-[125]. Zane was then put directly in contact with Saki. Zane and Saki then commenced exchanging messages about the failed handover. During that time Dib continued to exchange messages with Zane who explained that he was in contact with the "boss", Saki.
An alternative handover date was decided upon although between 23 and 24 May 2017 a number of messages were exchanged discussing the details of the handover. There continued to be some tension as Zane had not received responses on Cypher about the handover.
Zane sent a message to Dib to confirm that he had been able to contact the driver and asked Dib to confirm the arrangements for the handover of cash. Dib forwarded Zane's messages to Fakhreddine who responded that he was waiting on a reply as there appeared to have been a miscommunication. About two hours after that message Arif sent a message to Fakhreddine stating that the MDMA would be handed over at the same time as the cash and Arif would send an associate to pick up the cash from Fakhreddine. Fakhreddine appeared to be happy about those arrangements because he did not want to hold on to the money overnight.
On 25 May Fakhreddine sent a group message to Ahmad and Dib advising that he had just received confirmation that the handover would happen on 26 May.
About an hour before the handover time Dib, Ahmad, Fakhreddine and Ibrahim went to the premises of Daniel Taylor, Ibrahim's nephew. About 30 seconds later Fakhreddine left the premises and drove around the adjoining streets for about one hour.
Meanwhile, in the Netherlands, Zane and another undercover operative attended the meeting address that had been provided. They collected 34 plane boxes containing MDMA. Zane sent a message to Ibrahim telling him that he had checked the product and was happy for the money to be handed over.
At Taylor's premises, Ibrahim handed over $1,120,000 cash to Dib and Ahmad. They took the money to Fakhreddine's car. All three men departed and drove to meet with another car nearby driven by an unknown male. The driver removed the suitcase which contained the cash from Fakhreddine's car placing it in his own car. This was the associate that Arif had organised to take possession of the cash.
Following the exchange of the MDMA and the money the shipment of MDMA was seized by the Netherlands police and the container for the importation was loaded with an inert substance in substitution for the MDMA.
Between 27 and 29 May 2017 Dib asked Zane to let him know when the drugs had been placed in the container. Saki asked Zane whether the "job" left safely and when it would arrive and Zane replied that the shipment would leave on 10 June, arriving in Sydney on 15 August. Zane sent a message to Dib and Ibrahim advising that the drugs had been packed and that the freight forwarder would pick them up in a few days. He also advised that the container would leave the Netherlands around 10 June and arrive in Sydney around 15 August.
On 7 June 2017 Ibrahim and Dib met and discussed how the drugs would be collected once they arrived in Australia. On 9 June Dib advised Ibrahim: "Rok said its 80 kg half me and him". Ibrahim asked: "what about what his mate put in for?" to which Dib replied that "Gee gets 50 kg".
The Crown alleges that the reference to Rok is a reference to the offender Ahmad. Dib then sent a message to Ibrahim setting out the breakdown of the drugs including a reference to "80 kg me and rok" [SAF 141]. Dib later clarified that the 180 kg that was to go to Zane, which included 150 kg for Zane and 30 kg for Ibrahim.
On 9 June 2017 Zane sent a message to Ibrahim questioning Dib's calculations as his understanding was that the four men would get 20% of anything over 200 kg. The Crown alleges that the four men were Ibrahim, Zane, Dib and Ahmad. On the same day there were further messages exchanged between Dib, Zane and Ibrahim about who was to receive what. These offenders were not included in that message exchange.
About two hours after that exchange Ahmad telephoned Dib and told him that he would be at his home in 10 minutes. 40 minutes later Dib sent a message to both Ibrahim and Zane stating: "Bro I spoke to Rok it's easier if youse send 580 kg to him then he will split it up bcus babyface gets more Gee gets less". The Crown alleges that in this message, Dib explained that he had spoken to Ahmad who had said that Zane should send 580 kg to him and he would split it up.
Zane responded that before the drugs came into the country he wanted to sit down with everyone and work out exactly how the product would be delivered to avoid any confusion or disagreements.
On 15 June Ibrahim met Zane in Rose Bay. Their discussions included "Rock" taking possession of the drugs to conduct the split. The Crown alleges that "Rock" is a reference to Ahmad.
That night after the meeting, Ibrahim introduced Zane via Blackberry to Arif for the purpose of continuing discussions about possible future importations and the delivery of the importation. Zane and Arif arranged to meet in Dubai. Zane and Saki also arranged to meet in person. On 20 June 2017 Zane met with Saki and discussed possible future importations.
On 21 June Zane met with Saki and Arif during which various matters were discussed. Zane confirmed that Ibrahim was his partner. Arif confirmed that "Fraka" was not his partner but was a good friend. He advised against Zane meeting Fakhreddine. Zane referred to Ibrahim not wanting to cut Dib out of any future importations but, in relation to Rock (which I accept is a reference to Mr Ahmad) "they wanna fuck him off". I am satisfied that by June 2017, Arif and (possibly) Ibrahim, did not want Ahmad involved in any future business.
Arif made it clear that his 580 kg would not go to Ahmad or Fakhreddine but that he had somebody else in mind. I am satisfied that by this time both of these offenders were no longer useful to the enterprise. Clearly, those playing more senior roles such as Arif and Ibrahim were of the view that by June 2017 these two offenders were dispensable.
Part of the conversation between Zane and Arif is disputed. The recording is unclear. I have listened to it several times. I am unable to ascertain with any certainty the precise words in dispute. I cannot therefore find in favour of the Crown in respect of the terms of that part of the conversation as set out at [150]. I am however satisfied that the import of the conversation is that Arif was telling Zane that he had Fakhreddine "under control" and that he was going to give him a "drink", a reference to some financial benefit.
I am satisfied that the conversations between Zane and Arif in June 2017 demonstrate that Fakhreddine was very much under the control of Arif, rather than an autonomous decision-maker.
On 20 July 2017 Arif sent Zane a message asking for a breakdown of the drugs. Zane then sent a message to Dib asking for a breakdown of 800 kg of MDMA, telling Dib that Arif did not want the drugs delivered to Rock (a reference to Ahmad). Dib replied that he was going to get the breakdown from Rock as he did not look after the breakdown.
About a minute after that message Dib forwarded to Zane a Blackberry chain of messages between Fakhreddine and Ahmad about the breakdown of the drugs. Ahmad asked Fakhreddine about how much of the load would go to each side and Fakhreddine responded by supplying a breakdown.
Ahmad forwarded this exchange to Dib with Ahmad adding: "that the end result". Dib forwarded the message to Zane. I am satisfied that the exchange of messages in respect of the breakdown of the drugs reveals the following:
Zane 150 kg + 20 kg door fee
Ahmad's "mate", an unknown person referred to as "Gee" 50 kg
Dib and Ahmad 74 kg
Ibrahim 30 kg + 20 kg door fee
Arif 456 kg
[4]
On 4 August Ibrahim and Dib travelled to Dubai. On 6 August Zane sent a message to Ibrahim advising that he would be delayed. On 7 August Zane picked up Ibrahim, Elmir, Dib and another associate and went on to a yacht. Ibrahim and Zane discussed who would take possession of the drugs. Ibrahim said that Arif would arrange someone but it would not go to either Ahmad or Fakhreddine. Zane told Ibrahim that Arif had said: "not Fraka - He said no more Fraka".
Later that evening after they disembarked from the yacht, Ibrahim, Elmir, Dib and Zane were arrested.
On 8 August 2017 a search warrant was executed at Ahmad's home. A number of items were seized including encrypted Blackberry handsets. A search warrant was executed on the same day at Fakhreddine's home. An encrypted Blackberry handset was located as well as SIM cards.
The 34 boxes Zane collected contained a total of 494 heat sealed clear plastic packages with a total gross weight of 797.08 kg. The pure weight was 594.43 kg. In 2017 the street value of 797.08 kg of impure MDMA was between approximately $79.7 million and $398.5 million. The wholesale value of that quantity of impure MDMA was between $29.5 million and $35.1 million.
[5]
Disputed Facts - Fakhreddine's case
I turn now to consider the disputed facts in the case of Mr Fakhreddine and set out my findings in respect of his role in the enterprise. The disputed facts in his case are limited and some have been dealt with in the course of summarising the circumstances giving rise to the offending conduct.
I am not persuaded that the reference to Arif's cousin is a reference to Mr Fakhreddine. I am satisfied that Mr Fakhreddine was a friend of Mr Arif, sufficiently trusted to be relied upon to pass messages from Mr Arif to the Sydney based group and to convey messages back to Mr Arif.
As indicated above it is difficult to make out the disputed portion of the conversation between Zane and Arif on 21 June 2017 on the telephone intercept recording. I am satisfied that the import of the conversation was that Arif had Fakhreddine "under control" and was going to give him a financial reward for his part in the enterprise. I am unable to determine with any certainty the extent of that financial reward. However, having regard to the scope of the enterprise and the quantity of the drugs to be imported, I am satisfied that Mr Fakhreddine stood to gain a significant financial benefit. The fact that he engaged in the activity for significant financial reward is an aggravating factor.
There is no evidence that this offender was responsible for taking physical possession of any of the drugs that were to be imported. There is no evidence that he was the purchaser of any of the drugs to be imported. There is no evidence that he was assigned any particular portion of the drugs as payment for his role in the proposed importation.
Mr Fakhreddine was a trusted participant in the enterprise acting on behalf of Arif, and provided Arif with a degree of separation from the Australian group. The fact that he was a trusted participant does not necessarily add to the importance of his role because having regard to the nature and scope of this importation, it would defy reason to involve someone who was not trusted.
All of the participants were trusted. All of the participants had a keen interest in ensuring that the enterprise would succeed. All of the participants, in their various roles, were important to the enterprise. All of the participants stood to gain financially, although to different degrees. Notwithstanding the role played by each participant in the enterprise, they were all keenly interested in ensuring that the arrangement would proceed and the drugs imported into the country.
However, Mr Fakhreddine's involvement does not demonstrate autonomy or a decision-making role of any significance. He was a facilitator who wanted assure each side of the transaction that the other was trustworthy and reliable. For the most part he simply passed messages between the two groups. He did not do so mindlessly. On occasion he did add words to the messages he was forwarding on. However, the remarks added by Fakhreddine do not demonstrate autonomy. He made no decisions about the quantity of the drugs, the way in which the drugs would be packaged, the pricing of the drugs, or the way in which the drugs would be split.
On occasion he did show initiative, for instance by attempting to persuade the Australian group to consider the proposal to delay the handover of the MDMA. On other occasions, when tensions started to increase because of changes in some of the arrangements, he strove to ensure that the enterprise stayed on track. Clearly, he was interested in ensuring that the importation remained on track. He was motivated by the desire to obtain a financial reward. The bigger the enterprise, the greater the potential for an increase in financial reward. So much so is evidenced by his excitement on 21 May 2017 when Arif sent a message referring to a possible quantity of 1.2 tonnes. Fakhreddine responded: "please don't get me geed up brother".
Mr Fakhreddine did liaise with Ahmad about how the MDMA was to be distributed as between the two sides. On 15 July 2017 he replied to a message sent by Ahmad advising of the drug breakdown. True it is that on 20 July Arif asked Zane to refresh his memory of how the breakdown should be calculated. However I am not persuaded that the breakdown was determined by Fakhreddine independently. The evidence falls short of establishing that he had the type of decision-making role, control or autonomy required to determine the breakdown of the drugs.
He was trusted to ensure that his principal was properly briefed as to that breakdown. But in the same way that a bookkeeper may be able to brief his senior accountant about relevant bookkeeping records without being responsible for the decisions made in respect of those records, Mr Fakhreddine did not independently arrive at the split of the drugs between each group.
Although he was a useful and important part of the enterprise, he held no significant decision-making or managerial role. He was more a facilitator than a manager. That he was always under the control of Arif and ultimately dispensable is clearly evidenced the conversations between Arif and Zane.
His involvement appears to have commenced in late February 2017 and continued until late July or early August, a period of about six months. Although not actually physically present during the handover, he was aware of the details of the handover and returned to the premises to collect Ahmad and Dib. He was trusted by Arif to take possession of the cash payment intended for Arif. However, he was only in possession of that money for a very short period of time. Upon taking possession of the money, he drove to meet with another car nearby which was driven by an unknown male who took possession of the cash on behalf of Arif.
I am not persuaded that this offender was simply a mindless conduit for the messages being passed between the two groups. On the other hand describing him as a "lynchpin" in the communications is putting it too highly. He was a facilitator who engaged in this criminal activity for financial reward.
[6]
Disputed Facts - Ahmad's Case
The Crown submits that this offender's role in the enterprise was that of a trusted intermediary. His connection to other participants, particularly those with overseas contacts who could source illicit drugs, was instrumental in the agreement to import drugs forming, developing and being implemented. The Crown also submits that any submission that he was simply a conduit of information between other participants cannot be sustained. On the contrary, he had a degree of autonomy in his decision-making function particularly in respect to the arrangements between himself and Dib to contribute financially to facilitate the importation, negotiating how their cut/commission should be calculated, and attempting to source additional buyers in order to increase the total amount to be imported.
The Crown submits that I would accept that Mr Ahmad was Dib's "partner". He was going to contribute to the shortfall of $126,000, being the difference in the price increase per kilogram of MDMA, and to a portion of the door fee, namely $125,000. Further he was going to share with Dib in the intended receipt of 74 kg of MDMA. In those circumstances it is submitted that I would reject the contention that Mr Ahmad's role was limited to providing security for Dib and being a conduit of information between other participants.
Mr Ozen SC, on behalf of Mr Ahmad, submits that I would not be satisfied that the offender was going to contribute to the shortfall or the door fee nor that he stood to gain a share of the MDMA. The communications to that effect were, in truth, part of the "ruse" developed by Dib to ensure that he would not be ripped off by the other participants in the enterprise.
Mr Ahmad gave sworn evidence and was cross-examined at length. He gave evidence that he was approached by Dib to become involved in the enterprise and fully understood that the nature of the enterprise. He understood that they were attempting to import a substantial quantity of MDMA. Mr Ahmad maintained, however, that he was recruited as the "muscle" for Dib and to simply pass messages from one group to the other. He denied having any share in the imported drugs. He denied having any decision-making role to play and maintained that he was always acting pursuant to the instructions given to him by Dib.
He acknowledged receipt of a number of Blackberry communications from Dib in which it is purported that he was going to receive a cut of the drugs and was going to contribute to a portion of the door fee and the shortfall of the price for the MDMA. However, he maintained that this was part of the false impression presented by Dib in an effort to ensure that nobody would cheat him.
Mr Ozen SC has forcefully submitted that I would accept, on the balance of probabilities, that the incriminating communications were part of a "ruse". Mr Ozen SC submits that, even if I were to reject the evidence given by Mr Ahmad, I would not be satisfied beyond reasonable doubt that the Crown has established Mr Ahmad played a more significant role than providing security for Dib and being a conduit through which the messages were passed between the two groups.
In support of that submission, Mr Ozen SC points to the following factors: Mr Ahmad has no history of importing border controlled drugs; in all of the searches of his person and property, no drugs or amounts of cash were discovered; there is no evidence that he had the money to invest in the enterprise; he was not involved in the initial discussions between Zane, Ibrahim and Dib; and, towards the end of the enterprise, Dib dealt directly with Arif and Fakhreddine and this offender was essentially cut out of the discussions.
Mr Ahmad had engaged in work as a debt collector. I am satisfied he was that it was Dib who approached him, inviting him to participate in the enterprise to import a substantial quantity of MDMA. Initially his participation was to provide security for Dib and to be a conduit for information between the Sydney group and the Netherlands group. I am also satisfied that he was aware at all times of the nature and scope of the enterprise. He, together with Fakhreddine, operated to provide distance or separation between the senior members of the enterprise on each side.
I accept that initially Mr Ahmad was promised between $250,000 and $300,000 for his participation. However, by April 2017 his role had developed from being a "conduit" and "muscle" to something more. The question is as to what that something more was precisely. I have some difficulty accepting that this was a "ruse" developed by Dib to ensure that he would not be cheated. On the offender's own account he was recruited partly to act as "muscle" for Dib. He was Dib's man and the other participants would have been aware of that. I am not persuaded that there was less chance that Dib would be ripped off if Ahmad was presented as his partner as opposed to his security.
Mr Ahmad's participation involved, to a large extent, having Mr Dib's back. He received messages from Dib to forward on to Fakhreddine and, through him, to the overseas syndicate. There was no need to engage in a "ruse" of the type identified to ensure that Dib was not ripped off.
Some of the messages sent by Dib to Ahmad and others establish that, by April 2017, Ahmad was more invested in the enterprise than he had been in the initial stages. For example, on 7 April 2017 Dib forwarded a message sent by Zane to Ahmad adding: "that's what were are gonna cover, 126..". The additional statement was intended for Ahmad and is a reference to Dib and Ahmad covering the shortfall brought about as a result of the change in price per kilogram of MDMA.
Dib also sent a message to Ahmad stating: "So were gona have to put that in 126 than were gona put 125 wen the stuff get here. Its 350 - lebo putting 100 indian 125, me and u 125 between us…". Notwithstanding the fact that these messages might have been forwarded on, the statement clearly refers to Dib and Ahmad together contributing to a portion of the door fee and together covering the shortfall in the price of the MDMA.
Dib sent a further message to Ahmad which stated that Zane said "his putting 1 million and twenty if we put 126 it doesn't come to the figure", referring to the fact that $1.2 million plus hundred and $26,000 did not add up to Arif's figure. Ahmad replied with: "1 million and 20K +10%", referring to the 10% exchange/transfer rate that Arif and Fakhreddine had previously advised even though the figure Zane calculated already included the 10% exchange rate.
By April 2017 I am satisfied that the understanding or agreement was that Ahmad was going to contribute to a portion of the door fee and the shortfall in the price of the MDMA. True it is that there is no evidence that the offender had the cash to make the contributions upfront. There is no evidence that Mr Dib had the cash either. However, the breakdown figures provided by Dib in June and July 2017 include references to Rock (the name by which Ahmad was known) receiving a cut of the MDMA. The final breakdown figures note that 74 kg of MDMA were to go to Dib and Ahmad. The offender stood to gain a significant quantity of the drugs which were of considerable value.
What then was the offender's role? It had morphed from one of being simply a conduit of information and providing security for Dib, to someone whom Dib could refer to or rely on to ensure, for instance, that the calculations on breakdown was accurate. For example, on 7 April 2017 when Dib forwarded Zane's message to Ahmad, Ahmad pointed out that Zane "had to pay 1.146k." In answer to a further message sent by Dib, Ahmad clarified that Zane would pay "1 million and 20K +10%".
I am also satisfied that in about May 2017 Ahmad was demonstrating increased initiative by sourcing another purchaser, Gee, so that the quantity of drugs could be increased. The arrangement ultimately became one where Gee was to receive 50 kg of MDMA. Mr Ahmad was no longer simply a "runner" for Dib.
I am satisfied that the offender was a trusted and knowledgeable intermediary. But I am not persuaded that he was his "partner" insofar as that term conveys an equal relationship where there is the same degree of autonomy or decision-making responsibility.
Mr Ahmad was not involved in the initial discussions, dating from November 2016, between Zane, Ibrahim and Dib. He was not included in many of the communications and meetings between those three men. The majority of Blackberry communications were simply forwarded on by Ahmad to Fakhreddine and then to Arif. To the extent that the offender added any words to the text, they were minor additions and do not demonstrate autonomy or a decision-making role. I am not persuaded that this offender had a decision-making role of any significance although he was relied upon by Dib when the latter was unsure about calculations.
Neither Ahmad or Fakhreddine had any control whatsoever over the "door"; the MDMA sourced from the Netherlands; the pricing, packaging or transporting of the drug. The offender participated in the enterprise for a number of months and played an important role in the enterprise that was not limited to merely being a mindless conduit of information between the two groups or simple "muscle" for Dib. However, he was not Dib's "partner".
Insofar as each of the participants was fully aware of the nature and scope of the importation, the quantity of the drugs, and was careful to ensure that the enterprise was successful, they were partners in a joint criminal enterprise attempting to import a substantial quantity of MDMA. That does not mean that Ahmad was Dib's equal partner or that he played an equal role.
Indeed, the statement of agreed facts notes that there is no evidence that Ahmad was the purchaser of any of the drugs to be imported and, in the majority of the chains of Blackberry messages relating to the proposed importation in which he was a participant, he was either only a recipient of the messages or passed the messages he received to and from Dib and Fakhreddine. His role was to act as an intermediary between other persons involved in the proposed importation. By April 2017 his role included an arrangement, albeit not realised, whereby he was to contribute to a portion of the door fee and the shortfall created by the change in price for the MDMA.
That he took on that additional responsibility is evidenced by the fact that, by June/July 2017, the arrangement was that he was to obtain a cut of the drugs. It follows that I am satisfied that this offender's role was less than that of Dib but slightly more than that of Fakhreddine. I reject the submission that his role falls "right at the bottom of the syndicate".
On his own account, given during his sworn evidence, he stood to gain a benefit of between $250,000 and $300,000. The fact that he engaged in this serious criminal conduct for substantial financial reward is an aggravating factor.
To be clear, I am not of the view that without the involvement of the present offenders the importation could not have succeeded. Both offenders facilitated the enterprise because of their association with Dib and Arif. However, they had no control over the door; they did not have control over the drugs that were sourced; they had no final decision-making role to play in terms of price, packaging or logistics. Neither were a lynchpin in the same sense as Zane (in the Sydney-based syndicate) and Arif/Saki (in the overseas based syndicate).
Without Zane the opportunity to import border controlled drugs would simply not have arisen having regard to the fact that he provided (or purported to provide) the essential means by which the border controlled drugs could be imported into Australia. Without Arif/Saki there could have been no importation because there would have been no product.
[7]
Objective Seriousness
The maximum penalty for the offence is life imprisonment. The maximum penalty provides guidance as to the seriousness of the offence. In R v Nguyen; R v Pham (2010) 205 A Crim R 106 at [72], Johnson J (Macfarlan JA and R A Hulme J agreeing) summarised the principles that apply to sentencing serious federal drug offenders for importation and related offences.
A critical consideration is to determine the offender's role. I have endeavoured to do that above. The criminal organisation underpinning the importation of drugs is also relevant. The attempted importation involved planning and organisation on an ongoing basis over several months. Although sophisticated, I am not persuaded that the degree of sophistication exceeds that inherent in offences of this type, namely the attempted importation of a substantial quantity of drugs. I have taken into account that each offender was part of a professional criminal syndicate with international links utilising methods to engage in criminal activity which included covert methods of communication.
I bear in mind that the weight of the drug is not the chief or determinative factor in determining the seriousness of the offence although it remains a relevant factor. In this case the quantity of the drugs was very substantial, involving a gross weight of 797.08 kg, with a pure weight of 594.43 kg of MDMA. The value of the drugs was also substantial attracting significant potential profit. I am satisfied that the offence is objectively very serious.
The weight to be given to the fact that the drugs were not disseminated into the community is modest having regard to the fact that in each case the offenders intended that substantial quantities of drugs reach Australia to be disseminated into the community and it was through no act of theirs that such risk did not arise. The dissemination of drugs into the community constitutes a significant aggravating factor. However, the absence of an aggravating factor does not thereby constitute a mitigating factor. The fact that the drugs were not actually disseminated into the community as a result of the police operation is not a factor that reduces the moral culpability of the offenders to any significant degree.
[8]
Role of Zane and Relevance of the Police Undercover Operation
On behalf of each offender, Counsel submits that the role of Zane is relevant in diminishing the culpability of these offenders. It is not necessary for the offender to show that, but for the involvement, encouragement or incitement by police, he would not have committed the crime. The two considerations said to be relevant to whether the offender's culpability is reduced by the involvement of police are: (i) whether the offence may not have been committed had the police not facilitated it: R v Leung (unreported 21 July 1994 NSWCCA); and, (ii) whether the offender engaged in criminal acts to a greater extent than would have happened if no assistance was provided to the authorities: R v Thomson [2000] NSWCCA 294.
The Crown accepts the police involvement in the operation is a relevant consideration and would be taken into account, but submits that in this case it does not substantially mitigate the offenders' culpability. Neither offender had any actual contact with Zane; they were not encouraged or pressured by Zane; and each was a willing participant.
In my judgment in R v Ibrahim [2020] NSWDC 254, I dealt with the issue (albeit on the particular facts relevant to that case) of Zane's involvement in the enterprise. In R v Taouk (1992) 65 A Crim R 387 at 404, Badgery-Parker J (with whom Clarke JA and Abadee J agreed) said:
It is abundantly clear that, were it in this State a defence to a criminal charge to show that police officers entrapped the accused by inducing him to commit a crime which he would not otherwise have committed, the appellant would have failed to establish that defence. However, when it comes to sentence, the question is not whether the accused can show that but for the involvement, encouragement or incitement by police he would not have committed the crime, but rather, whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have done so, and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as diminished his culpability.
Since the decision in Taouk, a number of cases have dealt with the issue of whether an offender's culpability is diminished by reason of the assistance, encouragement or incitement by police to commit the crime. I do not intend to set out a detailed or comprehensive summary of those authorities. There is no dispute about the accuracy of the stated principle. The question is whether it applies and, if so, to what extent, in the particular case: Cam Huynh Giang v R [2017] NSWCCA 25; Mihelic v R [2019] NSWCCA 2; Parris v R [2013] NSWCCA 5.
The Victorian Court of Appeal has provided valuable guidance in relation to the factors that may be relevant in assessing the impact of police involvement on the culpability of an offender: Haval Kada v The Queen; Hadi Kada v The Queen [2017] VSCA 339.
The first matter worth noting is that, unlike many cases involving covert police operations, here, the undercover operative was pivotal or instrumental in the offending conduct from the very outset. Was there a real possibility that but for his assistance the offenders would not have committed the crime? As indicated above, there is no evidence that these offenders were involved in drug-related activity or were attempting to import border controlled drugs prior to Zane presenting the opportunity of a door service to the senior participants who in turn engaged these offenders.
I am satisfied that both of these offenders were plainly willing to participate in the enterprise which involved the attempted importation of a substantial quantity of MDMA. There was no occasion on which either of them expressed any reluctance, disinterest or hesitation, but there is no evidence that either offender was engaged in drug-related activity or in any attempts to import illicit substances into the country prior to Zane presenting the opportunity to do so through the door service.
True it is, these offenders had no relationship with Zane in the same way that Mr Ibrahim did. However, Zane presented the opportunity for this offending conduct to take place by introducing the notion of a door service that guaranteed the importation of border controlled drugs without detection. This is not a case where the attempt to import border controlled drugs was accommodated within the offender's existing drug-related operation or supply lines.
I am satisfied that the role of the undercover operative operates to reduce the moral culpability of each offender to some extent but do not agree that it operates to reduce their moral culpability to a substantial degree. Once they became involved, they were each very willing participants who engaged in the activity for a significant financial reward.
[9]
Purposes of Sentencing
General and specific deterrence and denunciation are important sentencing considerations in this case having regard to the nature of the criminality and the duration over which each offender engaged in it. Each offender participated in the offence for a period of about six months. Each offender was fully cognisant of the nature and scope of the enterprise. They intended that substantial quantities of drugs be brought into Australia and disseminated into the community. Condign punishment must be meted out to those who engage in such activity, not only to deter the individual offender, but to deter other like-minded individuals from engaging in this serious criminal conduct.
Mr Fakhreddine comes before the Court with a criminal record that includes an offence of armed robbery of which he was convicted in 1999 and sentenced to a term of 4 years imprisonment. In 2002 he was sentenced for an offence of supplying a commercial quantity of prohibited drug, by way of a term of imprisonment of 12 years with a non-parole period of 8 years. The non-parole period expired in May 2010. It appears that he was released to parole in December 2011 having served a period of approximately 11 years in gaol. He was taken back into custody on 8 August 2017 in respect of the present offence.
This is not the first time that he comes before the Court for a serious drug related offence and I am satisfied that specific deterrence is an important consideration that must be given significant weight in his case.
Mr Ahmad's criminal record is not as serious or extensive. He has a number of driving related offences. However, he did not come under notice between 1998 and 2004. In 2004 he was charged with an offence of being an unlicensed driver. Between 2004 and 2016 he did not come under notice and was not charged or convicted of a criminal offence. In 2016 he was sentenced to a term of 6 months imprisonment for an offence of possessing an unauthorised pistol, a replica pistol that was found at his home during a search.
The weight to be given to specific deterrence in his case is moderated having regard to the fact that he has no prior drug related matters and his record is not extensive.
[10]
Subjective Case: Mr Fakhreddine
The offender is the fifth of eight children. He grew up in the midst of the Lebanese Civil War and recalls incidents that involved bullets, tank fire and bombs exploding. He described to Ms Cullen, psychologist, the fear associated with attending check points. These collective childhood experiences of feeling terrified were his most traumatic memories. He and his family immigrated to Australia in December 1987, when he was 6 years old, due to the war.
In 1992 he and his family returned to Lebanon after finding it difficult to integrate in Australia. However as a result of the ongoing war they returned to this country. The family's difficulties were contributed to by his father's gambling behaviour. That addiction was at its worst during 2002 and 2010 during the time that the offender was incarcerated.
The offender's younger brother is physically and mentally challenged and needs full-time care. Prior to his arrest he helped his mother in providing care for his brother.
The offender met his wife at high school and they have three children aged 8, 6 and 4 years. His relationship with his wife has remained very strong and they speak on a daily basis. His incarceration has left his wife struggling mentally, emotionally and financially. She is currently living with her children at her mother's residence.
After leaving school the offender commenced labouring work until he was imprisoned in April 1999. Upon his release, he commenced work with his second eldest brother in concreting. Thereafter he was unemployed and in 2002 was again incarcerated. During his periods of incarceration he has been employed as a sweeper, including as head sweeper since 2017. Upon his release from gaol in 2010 he commenced working in concreting with three of his brothers.
Thereafter he attempted to open a gaming arcade in Arncliffe but the business failed and he lost approximately $30,000 in this venture. Between 2014 and 2016 he was unable to secure work. In 2014 he joined the Lone Wolfs (outlawed motorcycle) club where he fulfilled the role of a debt collector. In 2016 he worked for a period of 9 months with a civil company in council work.
The offender has a gambling addiction. His gambling behaviours became problematic following his release from gaol in 2010. The addiction became progressively worse, winning significant amounts of money at the casino and then losing it just as quickly. He borrowed money from people to chase his losses. Exhibit B includes a summary of gambling transactions relating to a Commonwealth Bank account for the period November 2016 until August 2017. I am satisfied that he had a significant gambling problem, winning and losing substantial amounts of money.
The offender reported that he saw an advantage in connecting Arif with an associate of Dib. He continued to be involved because Arif asked him to so that no one would rip him off. He admits that he engaged in this conduct with the intention that he would benefit financially, particularly having regard to the fact that his gambling addiction had escalated.
Ms Cullen opines that, at the time of the offending, the offender met the diagnostic criteria for persistent severe gambling disorder. Ms Cullen also concludes that the gambling condition most probably influenced his decision-making around his offending conduct. Ms Cullen concludes that it is plausible that his gambling addiction and his association with the Lone Wolfs contributed to his offending conduct.
I accept that the offender engaged in this criminal conduct for financial reward. As indicated above I am unable to determine with any precision how much money he stood to make, but it must have been a significant sum having regard to the scope of the enterprise. I am also satisfied that he was motivated by a desire to obtain funds, at least in part because of his debilitating gambling habit. The extent to which his gambling addiction reduces his moral culpability is, however, modest because he engaged in this serious criminal conduct for a number of months. His offending was not isolated or an aberration. He continued to be involved in what he understood was a large scale attempt to import a commercial quantity of MDMA. In those circumstances his gambling addiction does not excuse his criminal conduct nor is it a matter of significant mitigation.
Ms Cullen states that the offender's remorse appears genuine, as evidenced by his expressed insight into how his past behaviours led to the offending conduct. There are a number of protective factors that are said to reduce the risk of recidivism, including a supportive and stable family, the importance he places on fatherhood, his religious practices, his motivation to seek assistance for addressing his underlying issues, and his shift in attitude demonstrated by his decision and action to leave the Lone Wolfs and abstain from gambling indefinitely..
The evidence of the offender's brother, Hussein Fakhreddine, confirms the family background including their father's gambling addiction. He observed that the offender's gambling commenced at about the age of 15. When he turned 18 he started going to the casino. The offender has expressed remorse for his offending conduct and regret at being separated from his children.
The references provided by family members and friends reveal that he is a good father. He has expressed shame and guilt for his conduct and feels a great loss at being separated from his wife and children. He is described as a generous, kind-hearted and selfless man. He was involved with a not for profit organisation called 14 Stars Children Foundation that raised money for sick and hospitalised children and disadvantaged families. The offender also volunteered at the Imam Husain Islamic Centre which is a community centre and place of worship.
I accept that the offender is remorseful for his conduct. I make that finding not only because of his plea of guilty, but on the basis of his repeated expressions of remorse to family and friends and to the psychologist. I also accept that he has been employed as a sweeper, including as head sweeper, during his period of incarceration. These are positive factors that I have taken into account in his favour. However, his criminal history does not assist. Not only does it disentitle him to the leniency that would be afforded a first-time offender or a person with a relatively minor record, but it is relevant to his future prospects of rehabilitation.
The offender was sentenced in respect of a serious drug supply matter for which he was imprisoned for a number of years. His involvement in this offence in 2017 also reflects considerable criminality. I am guarded about his prospects of rehabilitation although I acknowledge that there are some protective factors that may operate to reduce the risk of recidivism once he is released.
The offender's wife has the care of their three children and is reliant upon Centrelink payments. The hardship to the offender's family is not exceptional and does not operate to significantly reduce the otherwise appropriate penalty. However I have taken into account the offender's concern about the welfare of his family and his anxiety about the welfare of his mother, who was diagnosed with lymphoma earlier this year, as part of the general mix of his subjective case. I accept that he struggles as a result of being separated from his wife and children and that his mother's ill-health has only increased his sense of helplessness and guilt.
[11]
Subjective Case: Mr Ahmad
Mr Ahmad's subjective case is before me by way of a number of documents and his sworn evidence. Mr Machlin's report sets out some of the family history. The offender was born in Australia and raised in the Punchbowl area in a large Lebanese family. His father had five children to his first wife and nine to his second wife, of whom the offender is the 2nd eldest. His parents migrated from Lebanon during the Civil War and his father took factory work in Sydney to provide for the family. The offender's father is described as a tough and very physical man who taught his sons how to fight. Physical aggression at home was passed down from one brother to the next. Despite the fighting there was always a strong sense of family unity.
The offender started smoking cannabis and drinking alcohol at the age of 13 and continued to do so until his late 20s when he commenced using cocaine.
The family had its share of trauma with one of the offender's half-brothers dying in combat in Lebanon in the early 1990s and another shot and killed in Bankstown in 2016. Amongst his other brothers, two have been in prison and one has a drug addiction. I accept that the high incidence of offending and associated problems among some of the brothers has taken its toll on his parents.
The offender left school in Year 9 after which he engaged in work as a painter and builder, doing renovations and some construction work. He married at the age of 21 and has three sons and a daughter. The children range in age from about 10 to 20 years. The offender played a major role in his children's upbringing particularly during periods when his wife was indisposed due to health problems including epilepsy and depression. He has a close relationship with his children.
I accept that due to his wife's medical conditions he became the primary caretaker for the children for most of their lives. Following the birth of his son, he had a new lease on life, and for a period of some four to five years everything in his life was going well. He focussed on taking care of his family and abstained from drug use.
He reported to Mr Machlin that the offence occurred after a period of significant decline in his circumstances. The murder of his brother, who was gunned down in April 2016, was a major trauma for the offender and his family. He was not challenged about this aspect of his background.
He reported that his psychological state was further impacted by a number of "raids" by police during a 13-month period. The offender gave evidence that, following the death of his brother, a Firearm Prohibition Order (FPO) was imposed upon him. He gave evidence that the FPO gave the police a license to "harass me and my family" and that his home was subsequently raided 28 times in 13 months.
These claims were the subject of challenge during cross-examination. Exhibit H is a table setting out a summary of searches conducted pursuant to the FPO. The undisputed evidence is that, between 12 April 2017 and 20 July 2017, a period of some 15 months, 37 searches were conducted. They were not all conducted on his home. The total number of searches included searches of his premises, person and vehicle. This is an average of over two searches per month pursuant to the FPO. The offender gave evidence that there were other searches conducted by the authorities that were not the pursuant to the FPO.
The searches that were conducted pursuant to the FPO were conducted largely during the day. While I am not persuaded that the authorities were using the FPO to deliberately harass the offender and his family, I am satisfied that he felt harassed and that the searches of his premises impacted adversely on his wife and children.
The offender's brother had accumulated over $100,000 in debt. Following the death of his brother, the offender became responsible for these debts and had to sell his business to repay the debt. Following the death of his brother, the offender's work as a debt collector ceased as no one wanted to work with him. He became more withdrawn and returned to using drugs including the use of cocaine daily. He also used Valium to relieve his stress and anxiety however his drug use only resulted in increased anxiety.
It is important to note that the 37 searches, which included searches of the offender's premises, his person and his vehicle, resulted in only one occasion (on 30 November 2016_ when any item of interest was located. On that occasion, a replica pistol was located during the search. The offender's evidence is that this was a toy gun that his wife had purchased from Chinatown for his son. It appears that this explanation was not accepted by the Court having regard to the fact that he was sentenced to a short term of imprisonment.
Dr Furst's report confirms much of the offender's background including the devastating impact upon the offender of his brother's murder in April 2016. Up until that time the offender was experiencing a period of stability working in casual jobs, looking after his children and taking care of much of the domestic work because of his wife's medical conditions. That period of stability came to an end when his brother was murdered. There followed publicity which effectively stopped most of his friends from seeing him and stopped people from offering him casual work in the building industry. He suffered financially having paid off his brother's significant debts and became increasingly stressed and anxious. This psychological state was exacerbated by what he perceived to be police harassment. As indicated above his reliance upon drugs to relieve his mental condition made things much worse.
Dr Furst opines that the offender meets the criteria for the diagnosis of adjustment disorder with depressed and anxious mood and substance use disorder. Mr Machlin confirms that the offender describes pervasive affective symptoms reactive to adverse and compounding life events consistent with adjustment disorder and mixed anxiety and depressed mood.
The offender expressed remorse and has accepted responsibility for his conduct. He has also displayed a high sense of personal responsibility for the damage he has done to his family and the emotional price currently being paid by his children, his wife and his parents. Dr Furst confirms that the offender regrets his actions and especially the impact that his conduct has had on his wife and children.
Mr Machlin states that the offender's criminal conduct arose in the context of an unconventional lifestyle and in the wake of his brother's murder. Mr Machlin also states that the offender was in a vulnerable state in view of his bereavement, trauma, financial losses and broadly anxious and depressed condition. Dr Furst also refers to the significant psychological trauma, namely the highly publicised murder of the offender's brother, and that, apart from issues of grief, the offender had to deal with media exposure, the need to repay his brother's debts, being essentially ostracised by his friends and work colleagues and what he perceived to be police harassment.
Dr Furst opines that the most likely motivation for the offender's participation in the offence was financial gain, at least in part motivated by a desire to relocate and escape what he perceived to be police harassment and media attention. Dr Furst opines that the offender's high levels of stress, anxiety and depression coupled with his social isolation, unemployment and regular drug use probably contributed in a material way to his decision-making when he agreed to take part in the offence in question.
Having regard to the psychiatric and psychological evidence, I am satisfied, on the balance of probabilities, that the offender's high level of stress and anxiety and depression following his brother's murder, and the events thereafter, did contribute to his decision-making when he agreed to take part in the offence, and that his psychological state operates to reduce his moral culpability. However, the extent to which his moral culpability is reduced is limited having regard to the extent of his criminality and the period of time that he was involved in this offence. He was fully aware of the scope of the enterprise; the substantial quantity of drugs that were being imported into Australia; and was engaged in the conduct for financial reward.
A number of references are relied upon by the offender. His sister, a secondary school teacher, is aware of the offending conduct and states that it is totally out of character. She describes the offender as a loving husband and dedicated father to four children. He is well-known in the community and has helped many people through charity work through the local mosque and community centre. On the occasions when she has visited him in gaol he has expressed his remorse and has reflected upon his criminal conduct. He is ashamed that he has set a bad example for his children and is determined to rehabilitate.
Other referees describe the offender as reliable, honest and caring. The offending conduct is said to be out of character. Many of the referees speak of the adverse impact upon the offender's mental health following the murder of his brother. They describe the offender becoming withdrawn and depressed although still managing to continue his duties by supporting his wife and children.
The offender's contribution to his community includes supporting and volunteering at an organisation called Brotherhood Boxn, a community-based gym which provides programs targeting at-risk youth.
The offending conduct extended over a number of months and involved the offender's participation in an extensive criminal enterprise to import a substantial quantity of drugs into Australia. The objective seriousness of the offence is high, although I have found that the offender's role is not a senior role and that the offender cannot be properly characterised as an organiser or a lynchpin in the enterprise. Notwithstanding the seriousness of the offence I am satisfied that the offender has reasonable prospects of rehabilitation.
I make that finding because, unlike his co-offender, he does not have an extensive criminal history. There have been lengthy periods where he has not come under notice. He is described as a dedicated husband and father. He has the support of his family and I am satisfied is genuinely remorseful not only for the suffering he has caused to his wife and children, but by acknowledging the inherent wrongfulness of his conduct.
I have also taken into account [redacted] in determining that he is remorseful... [redacted].
Furthermore, I have taken into account Dr Furst's opinion that the offender has a moderate risk of reoffending and reasonable prospects of being successfully rehabilitated notwithstanding the seriousness of the offending in question, partly because he does not have an entrenched or severe drug addiction and has managed to achieve relative stability over a number of years in his early 20s to late 30s.
In determining that the offender has reasonable prospects of rehabilitation I have considered the evidence placed before me about misconduct charges since the offender has been in custody. The charge of possess drug on 9 February 2020 relates to the possession of Panadol. The offence of creating or possessing a prohibited good on 9 February 2020 relates to tobacco. The offence on 30 August 2019 relates to tobacco use. The charges on 14 August 2019 were all dismissed for no evidence. On 18 October 2018 he was charged with damaging property and offence that was proven but dismissed. That offence related to putting a hole in the bottom of the sheet and tying the sheet to the bed, making it easier to keep the sheet in place. On 26 July 2008 he was charged with possessing tobacco. There are two entries in March 2018 for failing a prescribed drug test and possessing drugs. Those offences related to the offender consuming a Valium tablet that was not prescribed to him. He admits that he consumed that tablet because he was feeling anxious.
On 27 March 2018 he was cautioned for desecrating a religious object. The offender gave evidence that he was moved to a cell where a number of books including a Bible were left behind. A number of pages from the Bible were ripped out, but not by the offender. That cell was searched and he was blamed. He gave evidence, which I accept, that he would not damage a Bible.
Little weight can be placed on these misconduct charges having regard to the nature of the charges and the offender's explanation for them. The only misconduct charge of significance relates to the offender abusing a Corrective Services officer in January 2018. Notwithstanding his apparent frustration, he should not have abused the officer in the way that he did. However, I am not of the view that this conduct operates to alter my finding that he has reasonable prospects of rehabilitation.
[12]
Hardship in Custody
Mr Ahmad places some weight on onerous conditions in custody as a matter relevant to mitigating the otherwise appropriate sentence. The hardship is said to be twofold. Firstly, that he has not received appropriate medical attention in respect of his hip condition. Secondly, that his status as an Extreme High Security Inmate means that his movements are extremely restricted.
The offender has given evidence that, when first taken into custody, he continually requested medication for a hip condition which caused him extreme pain. There were delays in accessing medical treatment. When he was transferred to Goulburn Correctional Centre, he had no access to medical treatment for a period of between 12 to 14 weeks. When returned to the MRRC, it took a number of weeks before he was prescribed pain relief medication.
The offender was cross-examined in respect of this complaint. He agrees that he signed a document on 20 March 2019 electing to be removed from the orthopaedic clinic's wait list and instead was to make arrangements for his own orthopaedic surgeon when released.
The Crown submits, that far from finding that Corrective Services did not properly attend to his medical needs, I would accept that the offender was not afforded surgery because he elected to be taken off the wait list. I am not persuaded that Corrective Services ignored the offender's medical complaints and requests for pain relief. The offender was placed on a wait list for GP triage in September 2017 and was prescribed medication thereafter. However there was clearly a significant delay between first complaining about the pain caused by his hip condition (September 2017) and finally deciding to take himself off the waitlist for the orthopaedic clinic (March 2019). As far as I can tell from the records he had not been seen by an orthopaedic surgeon during that period of time.
While I am not persuaded that Corrective Services have wilfully ignored his condition, I am satisfied that he has suffered from chronic pain as a result of it and for a period of about 2 years was not able to see an orthopaedic surgeon. I take this into account as a matter that would have increased his anxiety.
The second, and to my mind more substantive issue, relates to the onerous conditions in place as a result of his classification as an Extreme High Security Inmate. I have no information as to the reasons for his classification. An affidavit sworn by Philip Dodds, manager of security at Goulburn Correctional Centre, states that the offender was placed in the "Lebanese yard" in accordance with operational policy and procedures.
On 14 October 2017 he was assigned an Extreme High Security designation. Mr Dodds sets out a number of people who have been approved on the offender's telephone system account and approved as legal contacts. Two of the people identified as legal contacts are unknown to the offender. The four people referred to in paragraph [33] of the affidavit are also unknown to the offender. I accept the offender's evidence in this respect. No evidence has been called in reply from Mr Dodds or anyone else to contradict it.
I also accept the offender's sworn evidence that his father, mother and wife are not currently approved to visit him. The last recorded visit from his parents is 12 December 2019. He has received no AVL visits since that time. The process of approving visitors takes place periodically and it may be that, as a result of Covid-19, that process has been interrupted and delayed. However it remains the case the last visit by any family member was on 19 January 2020.
Mr Dodds states that the "Lebanese yard" is the length of "Unit 3", expanded to 50 m at the rear then narrows to 2 m at the front gate and has its own gym equipment. Mr Dodds also states that the offender's yard has access to the oval at least once a week.
The gym equipment comprises a chin-up bar. The "Lebanese yard" is shared between 40 to 45 people. The offender does not have access to a running track or a basketball court or yards other than the "Lebanese yard". Furthermore, a consequence of his classification is that he is moved regularly between cells and between gaols. For example, between August and October 2017 he was moved in excess of 18 times; between October 2017 and November 2018 he was moved in excess of 24 times; and between December 2019 and April 2020 he was moved some 13 times.
As I understand it, these frequent movements are one of the ways that the authorities deal with Extremely High Security prisoners. I make no criticism of the authorities. However, moving an individual between cells, or indeed between gaols, as frequently as this offender has been moved must be extremely disruptive to him and would only add to his levels of anxiety.
I am satisfied that the evidence establishes that the offender has served his time in custody in onerous conditions. His classification as an Extremely High Security Inmate has remained in place since October 2017 and there is nothing to suggest that that classification will change in the future. I have taken into account the onerous conditions in custody in determining the appropriate penalty.
[13]
Parity
The Crown does not dispute that these offenders played a less significant role than Ibrahim and Dib. The Crown concedes that each offender's culpability was less than that of Ibrahim and Dib. For the reasons indicated above I am not persuaded that Dib and Ahmad were in a partnership which included a degree of equality in their relationship to each other. Clearly, Dib's involvement was more extensive than the involvement of these offenders. He instigated the original communication and performed numerous physical acts to ensure that the importation could proceed. He had a degree of autonomy and decision-making responsibility that these offenders did not have.
Notwithstanding my finding that, as the enterprise developed, an arrangement had been reached whereby Ahmad was to contribute to the enterprise and stood to gain a portion of the drugs, his role was less serious than that of Dib.
The Crown does not accept that each offender played a lesser role than Mr Watsford. The Crown submits that each offender's degree of culpability should be regarded as "significantly higher than Watsford."
Mr Jemal, on behalf of Mr Fekhraddine, submits that having regard to this offender's role I would conclude that, unlike the other offenders, he was not a financier of the attempted importation nor was he to receive any portion of the drugs. Rather, I would accept that he stood to gain the least financial reward when compared to the co-offenders. During oral argument it was submitted that Mr Fakhreddine's role was less than that of Mr Watsford having regard to the fact that Mr Watsford did invest $25,000 in the enterprise and did, at least initially, stand to gain a cut of the drugs.
Mr Ozen SC , on behalf of Mr Ahmad, submits that I would reject the Crown's contention that this offender's culpability is "significantly higher" than that of Watsford. Mr Ozen points to this offender's involvement being for a short period of time; the fact that Mr Watsford was engaging in the enterprise from the outset for financial gain in the form of a cut of the drugs; and that he contributed financially by investing $25,000.
Mr Watsford is said to have engaged in direct meetings with key organisers including Zane and Ibrahim and was kept "in the loop". Mr Ozen submits that on the facts in these proceedings I would not find that Watsford was acting under the direction of Ibrahim.
Mr Ozen also submits that I would find that Mr Fakhreddine's culpability to be greater than that of Mr Ahmad. I reject this submission because I am unable to find to the requisite standard that Mr Fakhreddine "used a degree of autonomy in acting as Arif's man in Australia".
I am not so satisfied. He performed the role of a facilitator, acting on behalf of Arif, having an interest in ensuring that the enterprise remained on track. However, I am not satisfied that Mr Fakhreddine acted with autonomy or had any real decision-making role to play.
Instead, I am satisfied that Mr Ahmad's role was slightly more serious than that of Fakhreddine because I am satisfied that, as the enterprise developed, there was an agreement in place for him to cover at least a portion of the shortfall in the price of the drugs and a portion of the door fee. In addition, Mr Ahmad stood to gain a portion of the MDMA, although that benefit was not realised.
The extent of the difference in the sentences to be imposed on these offenders is not significant because, although I have determined that Mr Ahmad's role is slightly higher than that of Mr Fakhreddine, there are other factors that favour Mr Ahmad. He does not have an extensive criminal record and has better prospects of rehabilitation. I am also satisfied, having regard to the evidence adduced in his case, he will serve his term of imprisonment under onerous conditions.
I return then to consider where these offenders' sit in comparison to the role played by Watsford. In making that assessment I proceed on the facts and evidence before me in these proceedings. I reject the Crown's submission that each offender's degree of culpability is significantly higher than that of Watsford.
Mr Watsford introduced Zane to Ibrahim and was involved in the discussions to import border controlled drugs from the outset (November 2016). On the material before me he remained engaged in that enterprise until May 2017, a period of 6 months, albeit that his direct participation diminished after March 2017). He contributed $25,000 to the enterprise and was therefore personally invested.
These offenders participated in the criminal enterprise from about late February until July/August, a period of five or six months. The period over which all three men were involved in the enterprise was similar. The present offenders did not actually make an investment although in Mr Ahmad's case I have determined that he intended to do so.
Mr Watsford did not ultimately stand to share in a cut of the drugs, although he did initially. Mr Ahmad was initially to be rewarded by way of a monetary payment but as the enterprise developed stood to obtain a cut of the drugs.
Mr Fakhreddine was never going to receive a portion of the drugs. Although Mr Fakhreddine was a facilitator, he did not have decision-making responsibility.
Each offender here was a trusted participant involved in passing communications between the two groups. However, I am not persuaded that the manner in which those communications were passed between the groups (even having regard to the words added by the offenders) reflects autonomy or decision-making responsibility. The fact that some communications suggest that, towards the end of the enterprise, Mr Ahmad may have wanted the 580 kg of MDMA to be delivered to him so that he could conduct the split, does not establish autonomy. Even accepting that he did have that desire, it was fanciful. Having regard to the attitude expressed about him by Arif, there was never any chance that Ahmad was going to receive those drugs so that he could carry out the split.
Mr Fakhreddine had a direct link to Arif in the same way Watsford had a direct link to Zane and Ibrahim. The Crown's submission that Fakhreddine had a direct and immediate link to the overseas supplier does not establish that his role is significantly higher than that of Watsford. It was Watsford who had the initial immediate link to Zane and introduced Zane to Ibrahim, which was the genesis of the attempt to import the MDMA. Ahmad, Fakhreddine and Watsford were fully across the nature and scope of the enterprise.
Having considered the competing submissions, the evidence before me in these sentence proceedings, and my findings set out above, I am satisfied that Mr Ahmad played a different, but not a greater, role than Watsford. I am satisfied that although different, their roles are comparable. The starting point of Mr Watsford's indicative sentence was 16 years imprisonment. It does not follow, however, that the starting point in Mr Ahmad's case is the same. Mr Ahmad does not come before the Court with no prior criminal record and has not demonstrated the degree of remorse and contrition demonstrated by Mr Watsford. Having considered the countervailing factors both in favour and against Mr Ahmad, I am satisfied that a starting point slightly higher than that applied in the case of Mr Watsford is appropriate.
In the case of Mr Fakhreddine, I am satisfied that his role is slightly less than that of Watsford. He did not invest in the enterprise. He was a facilitator only. His links with Arif do not place him at a more senior level in the enterprise than Mr Watsford, whose links to Zane and Ibrahim were equally close.
To be clear then, I am satisfied that each offender's role is substantially less than that of Ibrahim and less than that of Dib. Mr Ahmad's role is about the same as that of Watsford. Mr Fakhreddine's role is slightly less than that of Watsford and that of Ahmad. The remorse and contrition demonstrated by Watsford and his prior good character are also relevant to the issue of parity in each case.
[14]
Comparative Cases
The Crown relies upon a schedule of other relevant cases. Having regard to comparative cases provides guidance as to the identification and application of relevant sentencing principles and may yield discernible sentencing practices. If the latter purpose is achieved, comparative sentences may be used as a yardstick that might serve to guide, but not to define, the possible appropriate sentence in a given case.
The schedule contains six cases. I have had regard to these cases insofar as they identify relevant sentencing principles, however, I am not of the view that the cases establish a discernible pattern. Furthermore, in some of the cases relied upon the offenders played a more significant role than each offender in this case.
In Wang v R [2010] NSWCCA 319; Ma v R [2010] NSWCCA 320, Ms Wang was described as having a significant role and had recruited her co-offender. There is no suggestion that the offenders here recruited anyone and their role can be distinguished from that of Ms Wang.
In Jaafar v R [2017] NSWCCA 223, the sentencing Judge found that the offender had a "managerial role in the conspiracy" and was "a junior partner in the affair". I am not persuaded, in this case, that the offenders had a "managerial role".
While the quantity of drugs involved in each of the cases in the schedule is significantly less than the quantity of drugs the subject of the present offence, none of the cases relied upon (as far as I am aware) involved the participation of an undercover officer, not merely in the investigation of the enterprise and seizure of the drugs, but as an instigator of the enterprise by virtue of presenting the door service which provided the means by which the drugs could be imported into Australia.
[15]
Ahmad Ahmad
The offender is convicted. Taking into account a discount of 20% for the plea of guilty, I impose a sentence of imprisonment consisting of a non-parole period of 8 years 9 months commencing on 8 August 2017 and expiring on 7 May 2026, with a balance of term of 6 years 5 months imprisonment expiring on 7 October 2032. The total term is 15 years 2 months imprisonment.
The offender is eligible for consideration for release on parole at the expiration of the non-parole period.
[16]
Hassan Fakhreddine
The offender is convicted. Taking into account a discount of 20% for the plea of guilty, I impose a sentence of imprisonment consisting of a non-parole period of 8 years commencing on 8 August 2017 and expiring on 7 August 2025, with a balance of term of 5 years 7 months imprisonment expiring on 7 March 2031. The total term is 13 years 7 months imprisonment.
The offender is eligible for consideration for release on parole at the expiration of the non-parole period.
[17]
Amendments
21 July 2020 - Redaction to paragraph [211] consistent with suppression orders in force in relation to these proceedings.
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Decision last updated: 21 July 2020