R v AHMAD, Youssef; R v EL-KHAIR, Mohommed

R v AHMAD, Youssef; R v EL-KHAIR, Mohommed - [2018] NSWDC 406 - NSWDC 2017 case summary — Zoe

Mr El-Khair is to be sentenced in respect of two offences, the first being attempt to possess a marketable quantity of an unlawfully imported border-controlled drug, being cocaine, 975 grams gross, relevantly 637.6 grams pure, between about 3 September 2015 and 14 September 2015. The maximum penalty provided for that offence is 25 years' imprisonment and/or 5,000 penalty units. It is an offence contrary to s 11.1 and s 307.6(1) of the Criminal Code.
When being dealt with for that offence he asks the Court to take into account a further offence contained on a s 16BA schedule provided by the Crimes Act 1914, being an offence of attempting to possess a marketable quantity of an unlawfully‑imported border‑controlled drug, being cocaine, 99 grams gross, relevantly 74 grams pure, between about 14 December 2015 and 16 December 2016. That offence is again contrary to the same section as last referred to, and carries the same maximum penalty when dealt with separately.
He is further to be sentenced for an offence of attempt to possess a marketable quantity of an unlawfully imported border-controlled drug, being cocaine, 528 grams gross, relevantly 367 grams pure, between about 25 January 2016 and 29 January 2016. That offence is contrary to the same section as previously referred to in the last two offences and carries the same maximum penalty.
Each of the offenders was arrested on 9 June 2016 and each has been in custody since that time solely in relation to these matters.
Facts have been prepared by the Commonwealth DPP and provided to the Court. There are some objections in relation to the Facts as prepared. I intend first of all to deal with the Facts as prepared by the Commonwealth DPP before referring to the objections.
I note at the outset that the Facts also contain reference to an Alfred Manukyan, alleged to be a third offender in relation to the overall scheme of offending, who has been charged with two offences contrary to the Commonwealth Criminal Code, and who, as I understand it, has entered pleas of guilty in the Local Court but has not yet been dealt with in this Court as a result, as I understand it, of the timing of the pleas, being much later than the pleas in relation to these offenders, as he was arrested at a later date than they were.
The Facts were prepared on the basis that Mr Manukyan would be before the Court at the same time.
I will now deal with the Facts as alleged by the Crown.

[4]

CONSIGNMENTS 1-17 5. Between about 2 February 2015 and 30 November 2015 seventeen consignments were sent from Los Angeles County, California, USA to Australia via DHL or FedEx. Consignments 1-16 purportedly contained "used auto parts"; Consignment 17 purportedly contained "sporting goods" and the consignee for each were businesses in Western Sydney. Each consignment was delivered: Con. Date Consignor Consignee Collection No. Sent Jack Miller 1 2/2/2015 Select European Auto Parts 21250 Nordhorff St Tandoori on Church 327 Church St, Parramatta No delivery data available Chatsworth, CA 91311 USA Phone 7472318123 Jack Miller 2 17/2/2015 Select European Auto Parts 21250 Nordhorff St Dan & Johns mechanical repairs 23 February 2015, signed for by "Mohammed K" at 10.30am Chatsworth, CA 91311 U3/22 Anna St Marys USA Phone 7472318123 Jack Miller 3 26/2/2015 Select European Auto Parts 21250 Nordhorff St Dan & Johns mechanical repairs, U3/22 Anna Street, St Marys 2 March 2015, signed for by "Mark R" at 11.45am Chatsworth, CA 91311 USA Phone 7472318123 Jack Miller 4 5/3/2015 Select European Auto Parts 21250 Nordhorff St Kookaburra Plumbing, 9/12- 14 Severn Street, St Marys 9 March 2015, signed for by "Bilal K", at 12.30pm. Chatsworth, CA 91311 USA Phone 7472318123 Jack Miller 5 16/3/2015 Select European Auto Parts 21250 Nordhorff St Kookaburra Plumbing, 9/12- 14 Severn Street, St Marys. 19 March 2015, signed for by "Bilal K", at 2.41pm Chatsworth, CA 91311 USA phone 7472318123 Jack Miller 6 19/3/2015 Select European Auto Parts 21250 Nordhorff St Tandoori On Church, 327 Church Street, Parramatta 24 March 2015, signed for by "Bilal K", at 5.17pm Chatsworth, CA 91311 USA Phone 7472318123 Jack Miller 7 24/3/2015 Select European Auto Parts 21250 Nordhorff St Kookaburra Plumbing, 9/12- 14 Severn Street, St Marys 30 March 2015, signed for by "Bilal K", at 12.40pm Chatsworth, CA 91311 USA Phone 7472318123 Jack Miller 8 2/4/2015 Select European Auto Parts 21250 Nordhorff St ARZ, 275 Church Street, Parramatta 8 April 2015, signed for by "Bilal K", at 9.56am Chatsworth, CA 91311 USA Phone 7472318123 Jack Miller 9 16/4/2015 Select European Auto Parts 21250 Nordhorff St Tandoori On Church, 327 Church Street, Parramatta 21 April 2015, signed for by "Sam E", at 9.15am Chatsworth, CA 91311 USA Phone 7472318123 Jack Miller 10 25/6/2015 Select European Auto Parts 21250 Nordhorff St ARZ, 275 Church Street, Parramatta 29 June 2015, signed for by "Bilal", at 4.01pm Chatsworth, CA 91311 USA Phone 8182450437 Jack Miller 11 29/6/2015 Select European Auto Parts 21250 Nordhorff St Tandoori On Church, 327 Church Street, Parramatta 3 July 2015, signed for by "Bill K", at 3.11pm Chatsworth, CA 91311 USA Phone 8182450437 Jack Miller 12 3/7/2015 Select European Auto Parts 21250 Nordhorff St Visible Ink Media, Unit 2B 172 Silverwater Road, Silverwater 6 July 2015, signed for by "Francis at 2B", at 9.05am Chatsworth, CA 91311 USA Phone 8182450437 Jack Miller Visible Ink Media 13 10/7/2015 Select European Auto Parts 21250 Nordhorff St Unit 2B 172 Silverwater Rd Silverwater NSW 2128 13 July 2015, signed for by "Rener", at 9.01am. Chatsworth, CA 91311 Phone 0280684317 USA Phone 8182450437 Jack Miller 14 13/7/2015 Select European Auto Parts 21250 Nordhorff St City Fine Foods Services 4 Deniehy Street 20 July 2015, signed for by "Bill", at 3.06pm Chatsworth, CA 91311 Granville NSW 2142 Phone 0296824444 USA Phone 8182450437 Jack Miller IMS Autoparts Visible Ink Media 15 20/7/2015 7309 Lan kershim Blvd North Hollywood, CA 91605 Unit 2B 172 Silverwater Rd Silverwater NSW 2128 27 July 2015, signed for by "Bill", at 9.44am USA Phone 8182450437 Phone 0280684317 Jim 16 18/9/2015 Euro Cars My Budget, 323 Church Street, Parramatta NSW 2150 Signed for by EL-KHAIR on 23 September 2015 at 3.15pm giving "Mohammed" as name. He then met with AHMAD and they observed the 1125 Tuxford St Sun Valley CA 91532 USA Phone 96358338 package together. Phone 2134949233 17 30/11/2015 Karapet Amamchyan 4968 Hollywood Blvd Los My Budget, 323 Church Street, Parramatta NSW 2150 Signed for by EL-KHAIR on 7 December 2015 at 3.50pm giving "B.Bilal K" as name. He then met with AHMAD and they observed Angeles 90027 United States the package together.

[6]

RELATIONSHIP BETWEEN THE OFFENDERS 6. During the relevant period of these offences El-Khair, Ahmad and Manukyan were associates. El-Khair often acted under the direction of Ahmad. Police intercepted over 500 calls between the pair which show that Ahmad gave El‑Khair instructions which were followed. [I note that the offender Ahmad disputes that El-Khair acted under his direction and that the Crown Facts include as Annexure "A" a schedule of 13 contacts, either by way of telephone call or SMS message, between 28 September 2015 and 6 January 2016.] DATE TIME SOURCE CONTENT 28/09/2015 20:21 TI AHMAD asked EL-KHAIR to go to Nutrition Station. 28/09/2015 20:46 TI AHMAD asked EL-KHAIR if food was picked up and asked him to drop it at the shop. 01/10/2015 10:34 TI AHMAD instructed EL-KHAIR to come straight away and get the car 01/10/2015 15:21 TI AHMAD told EL-KHAIR to drop what he is doing and come quickly to the Commonwealth Bank in Riverwood. 3/10/2015 14:14 TI AHMAD told EL-KHAIR to go to servo/shop and get him credit. 8/10/2015 12:19 TI AHMAD asked EL-KHAIR to go to Bankstown Footlocker and buy him a pair of size 11 white 'TMs.' 23/10/2015 14:15 TI AHMAD told EL-KHAIR to get in a cab, see what his wife wanted and drop it off to her. 10 minutes later, AHMAD asked if EL-KHAIR got a car or a cab and EL-KHAIR answered that he borrowed his father's ute. 25/10/2015 21:33 TI AHMAD told EL-KHAIR to go and change the mop head. 28/10/2015 22:47 TI AHMAD and EL-KHAIR discussed EL-KHAIR dropping unit keys off to and from "that Brother". AHMAD then told EL-KHAIR to call him ["that Brother"] and "Just make sure no one like sees him with you or anything." 29/10/2015 11:21 TI EL-KHAIR reported to AHMAD that Badr came past this morning and AHMAD asked if he gave EL-KHAIR the keys and EL-KHAIR responded saying that he will come now. 30/10/2015 11:02 TI AHMAD told EL-KHAIR he broke his wife's phone yesterday so EL- KHAIR needed to go to the Apple shop 20:16 AHMAD: "Go to nutrition station bankstown and pick up food name sam" 23/11/2015 20:16 SMS EL-KHAIR: "Now" 20:19 AHMAD: "Yes" 06/01/2016 21:39 SMS AHMAD texted EL-KHAIR to call his wife. 5 minutes later, AHMAD 21:44 instructed EL-KHAIR, "Make sure the burger is cut in half for her"

[8]

MEETINGS BETWEEN OFFENDERS BETWEEN 5 JULY 2015 AND 12 JULY 2015 8.On 5 July 2015, Manukyan travelled to Sydney from Los Angeles. El-Khair collected Manukyan to and from the airport and the Meriton Apartments on Pitt Street, Sydney. Between 5 July 2015 and 12 July 2015, Manukyan, El-Khair and Ahmad met separately and together and did the following: (a) On 5 July 2015, El-Khair picked up Manukyan and attended unit complex 71-73 Cairds Avenue, Bankstown, at 9.40am, with Ahmad later attending the same premises at 10.57am; (b) On 8, 10 and 11 July 2015, Manukyan and Ahmad met in Manukyan's hotel room, where they discussed Ahmad pushing for Manukyan, tracking numbers and delayed payments: (i) (8 July 2015 9.04pm - 10.22pm) Ahmad asked how Manukyan was going to give him the tracking number and they discussed money transfers. They further discussed Ahmad pushing for Manukyan, which they could arrange by giving "him" $75,000 "from this week's money" and Ahmad going direct to the person in the future so there would be no one in the middle. Following these conversations, on 9 July 2015, El-Khair informed Manukyan that "150 would be ready by 6pm the next day". (ii) (10 July 2015, 11.21am - 11.39am) Ahmad told Manukyan he gave "one, forty-six" to his "brother" who was in the black Mercedes Benz outside the house "yesterday", just before Manukyan arrived. Ahmad told Manukyan that "he" would give Manukyan the proper transfer papers for China. Ahmad told Manukyan that "Dubai" gave "him" about two hundred. Ahmad told Manukyan that "he" said Ahmad would get something in Dubai tomorrow. Manukyan said that he "cannot do two jobs at the same time" and that he "cannot go back here with nothing". Ahmad stated that he understood Manukyan said either they do it the right way, or they don't do it. Manukyan said that it had been one week and not even a penny had been moved. Ahmad said that they were doing it right and that he had given "the guy" the money to send. Ahmad said he did not know why "he" had not sent it. Ahmad said "a hundred and forty-six thousand…that's what I fucking gave him. You know what I sold this fucking shit for...". Manukyan told Ahmad he had to follow it up. Ahmad told Manukyan not to worry and that they would sort it out. Manukyan had had to make three people wait to move "this shit" over there and that nothing had happened. Manukyan said "they" think he is a liar and a "Juckin monkey". (iii) (11 July 2015 21.19 - 22.23) Ahmad asked Manukyan if "they" had called him. Manukyan confirmed that they had and said they want to give "him" the rest either tonight or tomorrow. Ahmad said "Leave the box there or just them him to get rid of it, scrap metal". Manukyan asked Ahmad "How much quantity?" There was no audible response. (c) At 12.15pm on 9 July 2015, after El-Khair and Manukyan looked through large industrial bins in the vicinity of Visible Inc Media (see para 7 (a) (i) (above), being the consignee address for Consignments 12, 13 and 15. They then attended Ahmad's residence where Manukyan and Ahmad were engaged in conversation. (d) At 1.29pm on the same day, Manukyan received a call from an associate in Los Angeles, Suren Hovhannisyan, Manukyan informed Hovhannisyan that "they threw it out" and "the guys don't know what's happening". Hoyhannisyan replied, "Fuck, man, the other worker was not there and the other worker was the owner, Brother". Manukyan told Hoyhannisyan, "If they had've known at least one day ahead, the trash would have still been there, and the 'stuff' was getting sent to the same place tomorrow"; (e) On 10 July 2015, El-Khair and Manukyan went to Smartways Trade Pty Limited at 11/61 Haldon Street, Lakemba, a money remittance business, where they met with Ahmad and two males. Later that day, El-Khair had the following conversation with Manukyan: EL-KHAIR: "I said we were busy shopping, we had something there, we didn't even know". MANUKYAN: "Fucking, can you imagine. Monday morning (13 July 2015) you be ready 8 o'clock". EL-KHAIR: "Al, I'm going to be up very early. No fuck-ups this time". 9. On 12 July 2015, Manukyan departed Sydney and returned to California.

[9]

DRUG CONSIGNMENT 1 (SEQUENCE 1 for MANUKYAN and SEQUENCE 2 for EL-KHAIR) 10. On 2 September 2015, another consignment (Drug Consignment 1) was sent from Los Angeles County, CA, to Sydney, with the following details: Date sent: 9 September 2015. Consignor: Jack Miller, 7309 Lankershim Boulevard, North Hollywood CA. Consignee: Visible Inc Media, 172 Silverwater Road, Silverwater. Collection: Seized by Australian Border Force, no controlled delivery. 11. In relation to Drug Consignment 1: (a) Jack Miller was the consignor name for Consignments 1-15 and Visible Inc Media, 182 Silverwater Road, Silverwater, was the consignee name and address for Consignments 12, 13 and 15; and (b) 7309 Lankershim Boulevard, North Hollywood, was the consignor's address for Consignment 15. 12. At 12.33pm on 3 September 2015, Drug Consignment 1 was lodged at the Burbank Shipping Center, 1812 West Burbank Boulevard, California, by Manukyan and his associate Hoyhannisyan. Manukyan paid the shop assistant at the shipping centre and received a receipt which he photographed before leaving the store. The consignment purportedly contained "used auto parts" (consistent with Consignments 1-16). 13. It was due to be delivered on 7 September 2015. 14. Between 7-9 September 2015, El-Khair attended the car park of Visible Inc Media at 172 Silverwater Road, Silverwater. During this time, El-Khair: (a) Between 10.20am and 1.05pm on 7 September 2015 was seated in a vehicle, being a Holden Colorado ute in the car park at that location. (b) Between 12.15pm and 1pm on 7 September 2015, he met with and spoke to the owner of Visible Inc Media outside the premises; (c) Between 3.06pm and 3.07pm on 8 September 2015, he met with and spoke to the owner of Visible Inc Media outside the premises. 15. Between 9-14 September 2015, El-Khair also made numerous telephone enquiries to DHL and Customs in relation to the status of Consignment 6201992801 and its expected delivery date. El-Khair held himself out to be "Bill Khair" of "Visible Inc" in four of the calls to Customs and three of his calls to DHL. In relation to this name: (a) "Bill" or "Bill K" was the name signed to collect consignments 11, 14 and 15, and, (b) Similar names, "Bilal" or "Bilal K" and "B.Bilal K", were the names signed to collect Consignments 4-8, 10 and 17. 16. Drug Consignment 1 was examined by Australian Customs Officers and found to conceal 975 grams of white powdered substance concealed in a metal drum brake. 17. The substance was tested by the National Measurement Institute and determined to be cocaine with a purity of 65.4% and a calculated pure weight of 637.6 grams. 18. The estimated wholesale value of the cocaine in New South Wales, if sold in 1 kilogram amounts in 2016, was approximately $185,000 to $240,000. 19. The estimated street value of the cocaine based on the purity of 65.4%, if sold in New South Wales in 2016, was approximately $159,000 to $318,800.

[11]

DRUG CONSIGNMENT 3 (SEQUENCE 5 for AHMAD and SEQUENCE 3 for EL-KHAIR) 27. On 12 December 2015, a consignment (Drug Consignment 3) sent from Brazil arrived in Sydney with the following details: Date sent: unknown. Consignor: Eliana da Silva Almeida Av Francisco Bernadino 85 Juiz de Fora-MG-CEP36013 Brazil. Consignee: Daniel Lackey, 2/1 Junia Avenue, Toongabbie, New South Wales 2146. Collection: delivered to Australia Post Office, unsuccessful collection, seized by New South Wales Police Force. 28. At about 2.54pm on 14 December 2015, El-Khair was observed talking with an Australia Post Office employee who was holding a brown cardboard box (Drug Consignment 3). El-Khair left the post office empty handed. 29. A short time later, El-Khair drove in a vehicle to 159 Hillcrest Avenue, Greenacre, where he met with the offender Ahmad and had a conversation for almost an hour between 3.15pm and 4.12pm. 30. Drug Consignment 3 was seized by NSWPF and the delivery was not conducted. Concealed inside a "Brother" brand toner cartridge were three bags of a white substance weighing 99 grams in total. 31. At 4.13pm, Ahmad made a call to the Toongabbie Post Office. During this call Ahmad informed the post office employee that his name was Daniel Lackey, (the consignee name on Drug Consignment 3) and that he had sent his "colleague, Mohommed" with a "consent paper" to collect a package approximately an hour ago as he was currently working interstate. Ahmad provided El-Khair's mobile telephone number to the post office worker as a contact number to call. 32. Between 15 and 16 December 2015, El-Khair spoke with Australia Post four times about the status of this consignment, also purporting to be Daniel Lackey. El-Khair provided the consignment number and delivery address associated with that consignment. 33. The substance was tested by NMI to be cocaine with a purity of 74%. The calculated pure weight of the cocaine is 74 grams. 34. The estimated street value of the cocaine if sold in New South Wales in 2016 was approximately between $24,275 and $48,550.

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DRUG CONSIGNMENT 4 (SEQUENCE 6 for AHMAD and SEQUENCE 5 for EL-KHAIR) 35. On 25 January 2016 another consignment, (Drug Consignment 4) was sent from Los Angeles County CA to Sydney with the following details: Date sent: 25/1/2016. Consignor: Universal Mail Box 4968 Hollywood Boulevard Los Angeles CA, universalmailbox4968@yahoo.com. Consignee: Mybudget 323 Church Street Parramatta. Collection: Seized by the LAPD and a controlled delivery occurred, the consignment was signed for by El-Khair on 29 January 2016 at 4pm giving 'B. Bilal K' as his name. 36. In relation to this consignment: a) 4968 Hollywood Boulevard is the same consignor's address as Consignment 17. b) Mybudget 323 Church Street, Parramatta, is the same consignee's address as Consignment 16/17. This address is also adjacent to the 325-327 building being the consignee's address for Consignments 1, 6, 9 and 11. c) At the relevant time, Diaa Mohammed, an associate of the offender Ahmad, resided at Mybudget. 37. Drug Consignment 4 purported to contain "glass hooker with metal stand and accessories" and was due to be delivered at Parramatta on 28 January 2016. 38. The Los Angeles Police Department seized Drug Consignment 4 and conducted an examination, locating a metal hooker stand with three bags. The three bags were found to conceal 528 grams of white substance in quantities respectively of 164 grams, 180 grams and 184 grams. The police removed the white substance and replaced the contents with pieces of wood. 39.At about 9.30am on 29 January 2016, El-Khair was seated in a motor vehicle waiting in the carpark of 323 Church Street, Parramatta, the consignee's address. 40. At about 4pm, the substituted Drug Consignment 4 was delivered to Mybudget at that address. The delivery driver provided the consignment to El‑Khair who provided his name as "B. Bilal K". In relation to this name: a) Similar names: "Bilal" "Bilal K" and "B. Bilal K" were the names signed to collect Consignments 4 to 8, 10 and 17 and; b) "Bill" or "Bill K" was the name signed to collect Consignments 11, 14 and 15. 41. The offender El-Khair carried the substituted drug consignment to the vehicle and placed the items into the front passenger seat. He then drove to 31-73 Cairds Avenue, Bankstown, the premises where Ahmad, Manukyan and El-Khair had meetings in July 2015, and with the consignment on the front passenger seat entered the garage area of the unit complex. About 7.10pm El-Khair attended Unit 9 inside the complex with the consignment and placed the consignment in the kitchen area of the unit. 42. 25 minutes later, at about 7.35pm, Ahmad attended Unit 9 and met with El‑Khair. Over the following 60 minutes, El-Khair and Ahmad unpacked and removed the pieces of wood put in there by the LAPD. Ahmad took photographs of the pieces of wood on a mobile telephone and sent them to another person. Ahmad said to El-Khair "how much pieces of wood, man?" El-Khair responded "seven pieces, eight pieces". Ahmad later said, "Can you believe this shit? Can you fucking believe it?", and directed El-Khair to "See if it's in the box or not". 43. The substance was tested by NMI to be cocaine with an average purity of 77%, the calculated pure weight of the cocaine is 367 grams. 44. The estimated street value of the cocaine, based on 77% purity if sold in New South Wales in 2016, was approximately between $91,750 and $183,500.

[13]

INTENT TO DEFRAUD BY FALSE OR MISLEADING STATEMENT ($177,426.60) (SEQUENCE 11 on FORM 1 for AHMAD) 45. On 24 September 2015, Ahmad lodged a loan application to BMW Finance in relation to the purchase of a 2015 series Mercedes Benz C63. The loan amount was $177,426.60. The application was rejected by BMW Finance. 46. The application was lodged with false or misleading particulars with the intention of obtaining a financial advantage. The false or misleading particulars included: a) That Ahmad was employed at Gemstar Automotive as a manager earning $5,002 a month. b) That Ahmad was residing at 1335 Canterbury Road, Punchbowl. 47. On 27 November 2014, Gemstar Automotive Pty Limited payroll records were backdated to at least 26 June 2014, showing an annual salary of $120,000 for Ahmad, being an increase from $58,136. That change was made under the direction of the manager of Gemstar Automotive, Sheran Chalouhi. 48. At the relevant time, Ahmad had not been employed by Gemstar Automotive Pty Limited for a period of two years. His previous role had been as a "driver" and he had been residing at 159 Hillcrest Avenue, Greenacre. 49. Between 1 September 2015 and 29 September 2015, telephone intercepts captured conversations between Ahmad and his associates, during which: a) Ahmad instructed his associate, Simon Wakim, to organise finance for the "C63" (22 September 2015 at 17.03); b) Ahmad contacted his associate, Diaa Mohammed, and asked if he knew anyone who can help him out by getting finance in their name, (22 September 2015 at 17.08): c) Ahmad spoke with his associate, Wakim, about his income and previous credit and finance, (22 September 2015 at 17.14). Wakim said that he would put the loan through BMW Finance and told Ahmad he must show earnings of $2,000 to 3,000 a week. Ahmad said he worked for Gemstar Automotive as a manager. Wakim said, "Okay, so you're a workshop manager, you earn, two to three grand a week". Ahmad replied, "Yeah". Wakim said, "Okay, done, stick to that, okay". d) Ahmad spoke with Wakim and confirmed that he wanted to get the car tomorrow. He told Wakim to call "Tony" and tell him he's waiting on the payslips (22 September 2015 at 19.06). e) Ahmad spoke with Wakim and said that he is waiting for Mohommed to give him a name so he can arrange finance on the "Black C", (26 September 2015 at 13.45). f) Ahmad told Wakim to sell the C63 as Ahmad still does not have a name (28 September 2015 at 14.29). [I interpolate for the amount of $177,426.60 the Mercedes Benz C63 was probably a top of the line model such as an AMG.]

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FRAUD OFFENCE ($59,458) (SEQUENCE 4 for AHMAD) 50. On 28 November 2015, Diaa Mohamed lodged a loan application to BMW Financial Limited, trading as Alphera Financial Services for the purchase of a 2015 series Toyota Hilux for the sum of $59,458. The loan was in the name of Devon Property Services (Director Muayad Alsabgh) of address, 10/9-13 Brandon Avenue, Bankstown. The amount of finance was $59,458.60. On 22 September 2015, Ahmad contacted Mohommed and sought someone who would be willing to use their name to obtain finance to "help him out". 51. Ahmad had a number of conversations with Mohommed about ordering a Toyota Hilux, including: "(a) On 2 November 2015, Ahmad and Mohommed discussed which colour Hilux Ahmad wanted and Ahmad instructed Mohommed to go ahead with the order. (b) On 3 November 2015, Mohommed asked Ahmad for conformation for the Hilux, asked if the car had been brought to Ahmad and asked Ahmad if he should get a deposit on the Hilux. (c) On 16 November 2015, Mohommed told Ahmad he needed the deposit for the white Hilux. (d) On 18 November 2015, Mohommed told Ahmad the deposit was $4,250 and Ahmad said he would pass it over that day. (e) On 28 November 2015, Mohommed made enquiries with Peter Shade of Knightsbridge Financial Services about obtaining finance on two motor vehicles, including a new Toyota Hilux SR 5 being the vehicle previously referred to. (f) On 30 November 2015, Mohommed confirmed with Ahmad that the loan had been approved and that the car should be ready by Thursday or Friday; and (g) On 3 December 2015, Mohommed confirmed with Ahmad that the "bloke" signed the finance contract for the white Hilux." 52. On 4 December 2015, Muayad Alsabgh attended the Land Rover dealership in Church Street, Parramatta, presented his driver's licence and signed the loan documents. The amount financed was $59,458.60. 53. Between 5 December 2015 and 10 December 2015, Ahmad had a number of conversations with Mohommed about the settlement of the loan and the delivery of the vehicle. On 10 December 2015, Mohommed confirmed that the car was ready and that he would bring it to Ahmad.

[15]

ARREST AND SEARCH WARRANTS 54. At about 8.30 am on 9 June 2016, Ahmad was arrested at his premises at 3/66 Gowrie Avenue, Punchbowl, New South Wales, and has been in custody since that date. 55. A search warrant was executed on those premises, and police located and seized a number of items, including: "(a) Three encrypted Blackberry devices, [It is well known from cases before this Court and referred in the footnotes to the facts, that Phantom Secure encrypted Blackberry devices commonly using encryption referred to as "PGP" or "pretty good privacy" are commonly used by organised crime syndicates as they provide communications secure from lawful interception by authorities. They offer clients total anonymity and they constitute a closed loop network, ensuring that users can only communicate with other Phantom Secure device users. They have, as far as I am aware, an unbreakable military grade encryption as previously referred to and a remote data wiping service. They cost a substantial sum of money for a six months subscription which can be renewed]. (b) A small quantity of white powder was located in a cushion in the garage of the premises. Examination found it to be 3.81 grams of cocaine (Sequence 12 for Ahmad on the s 166 certificate). (c) Drug paraphernalia, including electronic scales, a money counter, heat sealing bags along with a heat sealer; (d) A Samsung mobile telephone, which was used to take photos of Consignment 19 which contained the substituted pieces of wood". 56. At about 6.40 am on 9 June 2016, the offender El-Khair was arrested at his premises at 42 Gowrie Avenue, Punchbowl, and he has been in custody since that date. 57. At about 8.30 am, a search warrant executed at El-Khair's residential premises located and seized a number of items, including: a) One encrypted Blackberry communication device. b) A lease agreement in the name of El-Khair for the premises being Unit 9 at 71-73 Cairds Avenue, Bankstown, being the premises at which Consignment 19 was unpacked by Ahmad and El‑Khair after it was collected and delivered by El-Khair; and c) An orange block press". 58. On 28 January 2017, Manukyan arrived in Sydney from Los Angeles. 59. At about 9.45 am on 2 February 2017, Manukyan was arrested at Ross Smith Avenue, Mascot, on route to Kingsford Smith International Airport and has been in custody since that date. 60. On 2 February 2017, Manukyan participated in a record of interview where he stated the following: a) That he knew Ahmad and El-Khair and had attempted to build a business relationship with Ahmad in relation to Iron Doors to Australia from China. b) That the business relationship never developed between Manukyan and Ahmad, and c) That he never arranged for or sent any packages to Sydney from Los Angeles which were to be collected by El-Khair or Ahmad".

As previously referred to, those are the Facts as alleged by the Crown in relation to each of the offenders, and also in relation to Mr Manukyan, who is not presently before this Court for sentence.
Clearly, the Facts in relation for the offences brought against Mr Ahmad of dishonestly obtaining a financial advantage in the sum of $59,458, and the offence of intend to defraud by false or misleading statement in the sum of $177,426.60, and the offence of possess prohibited drug being cocaine, 3.8 grams, are not relevant to Mr El‑Khair.
What Mr Manukyan said to the police during the course of an interview on 2 February 2017 is, in any event, not admissible against either Mr El‑Khair or Mr Ahmad, although since it was a denial, it does not in any event hurt either of their interests.
At the time that the alleged Facts were tendered, objection was taken by Mr James AM QC, appearing on behalf of the offender, Ahmad, and by Mr Scragg, barrister, appearing for Mr El‑Khair. Mr James, in particular, referred to the Schedule of 17 consignments, contained at p 4 to 5 of the alleged Facts. Mr Scragg, on behalf of the offender, El‑Khair, joined in the submission made by Mr James, and further, specifically took objection to paragraphs 8 and 9 as referring to meetings between the offenders between 5 July 2015 and 12 July 2015, where those Facts refer to meetings between Mr Manukyan and Mr Ahmad but not Mr El‑Khair.
The Crown in written submissions which were provided to the parties in advance of the sentencing hearing, referred under the, perhaps unfortunate title, of "Previous Uncharged Conduct of the Offenders", to the basis on which that material had been included in the Crown facts - the offence at para 17 of the submissions dated 9 November 2017: "17 - The Crown relies on the conduct of the offenders in relation to the previous consignments outlined in the Statement of Facts not to be taken into account on sentence as an aggravating factor, to increase an otherwise appropriate sentence, but to give context to the true nature of the enterprise the offenders were involved, and to demonstrate the nature of the relationship between the co‑offenders. 18 - While there is insufficient evidence to prove consignments 1‑15, contained border‑controlled drugs, the previous consignments do demonstrate the following: (a)The frequency of the delivery of the 15 consignments demonstrates the sophistication of a syndicate that is able to repeatedly use the same modus operandi to successfully import consignments in the false name of Jack Miller without detection by authorities; (b)Approximate to the importation of Consignments, 11, 12 and 13, in the name of Jack Miller, between 5‑12 July 2015, Manukyan, the sender of the drugs concealed in auto parts in the name of Jack Miller, arrived in Australia, and met frequently with Ahmad and El‑Khair. On 9 July 2015, El‑Khair and Manukyan looked through bins in the vicinity of the visibly mediate, and after not finding what they were looking for, they attended Ahmad's residence where Manukyan and Ahmad engaged in discussions. The Crown submits that the Court would find that the conversations between Ahmad and Manukyan about tracking numbers, and money transfers, were related to those consignments from July 2015, imported by the same syndicate; (c)The nature of the conversations between Manukyan and Ahmad in July 2015 in Australia, are consistent with senior members of the syndicate. In these conversations, Ahmad has the authority to discuss payments or logistics, cutting out the middleman, and refers to directing others to send money. Ahmad's seniority as at July 2015 ought to inform the Court of his role in the drug matters for which he is charged, and, (d)El‑Khair signing Drug Consignments 1 and 4 in the names of El‑Khair in September 2015 and, 'B. Bilal, K', in January 2016, should not be viewed as two isolated offences but within a pattern of conduct established through the collection of Consignments 4‑8, 10, 11, 14, 15 and 17, in false names throughout at least from March 2015 to January 2016."

[16]

SUBJECTIVE MATTERS - MOHOMMED EL-KHAIR

The offender was 29 years of age at the time of the offences and is now 31 years of age. He did not give evidence on sentence. Available to the Court in respect of subjective matters are the following: 1. New South Wales Criminal History 2. New South Wales Department of Corrective Services Report 3. Report of Dr R Furst, psychiatrist, dated 7/11/2017 4. Letter of the Court from Mrs Mona El-Khair, mother of the offender, undated 5. Letter from the offender to the El-Khair family, dated 8 July 2016 6. Letter "To Whom It May Concern" from Dr Duraid Haddad, concerning Mrs Mona El‑Khair, dated 8 November 2017 Subjective matters are drawn from that material.
The offender's father migrated to Australia from Lebanon in 1984 and later married the offender's mother. The offender has four younger siblings, three sisters and one brother. He was born in Bankstown and attended Greenacre Public School and then Granville High School to the end of Year 12, achieving average marks in the school certificate. He had no learning or health issues as a child or adolescent. Dr Furst recorded that there was no indication of psychiatric illnesses such as schizophrenia, bipolar disorder, anxiety disorder or depressive illness. The offender has no other significant medical issues.
His family is well-regarded in the local community, and close-knit. There is no history of family violence or parental drinking. His father has worked as a landscaper for 20 years and his mother has performed domestic duties for the family. His parents have visited him each weekend while he has been in custody.
At school he developed an interest in laying rugby league and continues that interest as a supporter of the St George Dragons.
After leaving school, he worked in the building industry for about five years as a labourer and cement renderer. He has also worked as a carpet cleaner, including running his own business with a contract with St George Housing for about five years. For a period of approximately two years he worked transporting disabled children to school. For approximately five years before his arrest he was the carer for his mother who suffers from chronic anxiety and depression. According to Dr Haddad, she suffers from migraines, bursitis of the hip and depression.
As an adolescent, he was free from any drug or alcohol issues. He commenced smoking cannabis at 21. However, between 2013 and his arrest he was using cocaine on most weekends, typically about 3.5 grams. He was spending money on drugs and also gambling around $1,000 per week. His relationship with the co-offender Ahmad developed between 2013 and January 2016. He frequently did chores and ran errands for Ahmad and Ahmad's wife. He was participating to support his own cocaine habit and did not think of the potential consequences of his participation.
Dr Furst found the offender to be remorseful and aware of the negative impact of his conduct on his family and society. Dr Furst opined that he appeared to be of average intelligence.
The offender has a limited criminal history, being two offences of driving while suspended in 2009, common assault in 2011 and possess prohibited drug in 2015. All offences were dealt with by fines and the driving offences also resulted in disqualification periods. The offender's criminal history is not such as would disentitle him to some leniency, although of concern is that despite informing his mother that he "want(s) to clean himself up and turn his life around" that he has committed three breaches of prison discipline by being in possession of a drug on 2 June 2017, 15 August 2017 and 20 September 2017.
Mrs El-Khair's letter indicates that the offender's behaviour changed significantly in approximately 2013 and that his family became aware of his abusing prohibited drugs and mixing with like-minded friends. While the family did their best to assist him, it was to no avail, the offender eventually committing these serious offences. Mrs El-Khair's letter to the Court is eloquent testimony to the pain and anguish caused to an offender's family when they commence using prohibited drugs, particularly when that use leads to the commission of serious offences. Both Dr Furst and Mrs El-Khair indicate that the offender has expressed remorse and contrition. Certainly his letter to his family indicates that he is acutely aware of the stress, embarrassment and shame that he has brought to his parents and siblings.
The offender entered his plea of guilty to the offences on 19 July 2017 at Burwood Local Court, being at an early opportunity, both facilitating the course of justice and providing utility, and accordingly, warranting a discount on sentence. Until recently it was accepted that in respect of the Commonwealth legislation, an offender was entitled to a discount for facilitating the course of justice, rather than the utility of the plea, unlike New South Wales law which provides for a discount for the utility of the plea. Recently, however, consideration was given by a five-judge bench of the Court of Criminal Appeal to the issue as to whether the discount for the utility of the plea should be allowed in relation to Commonwealth offences. That was in the matter of Xiao [2018] NSWCCA 4.
The Court examined the circumstances in which that approach had been adopted and the Commonwealth legislation at para 268-277: they set out their reasoning before they stated at para 277: "In these circumstances it is our opinion that in sentencing proceedings governed by s 16A a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that Tyler and the cases which followed it provide to the contrary, they should not be followed".
They also dealt with the question as to whether it is appropriate to specify the discount for a guilty plea in relation to Commonwealth legislation and stated at para 279 that: "Section 16A(2)(g) neither requires nor prohibits the specification of a discount. However, once it is accepted that s 16A allows a sentencing judge to give a discount to the sentence which would otherwise be imposed, it seems to us desirable that in the interests of transparency such discounts be specified. However, there is no obligation on the sentencing judge to do so, and a failure to do so would not of itself amount to an error".
It has been expressed in the past that where in respect of New South Wales legislation a discount for the utility is allowed for utility alone, it should be where the plea is at the earliest opportunity, 25%, Thomson & Houlton (2000) 49 NSWLR 383.
There have in the past been a number of occasions where facilitation of the interests of justice at the earliest opportunity has resulted in that particular level of discount being provided for the early plea. In this matter I intend to provide a discount of 25% for the facilitation of justice and the utility of the plea to Mr El-Khair. In determining the sentence that I will later state, I have allowed for such a discount.
I accept in respect of Mr El-Khair that he is genuinely remorseful and contrite. I accept that there is a reasonable to good prospect of rehabilitation. Of course those prospects will be enhanced should Mr El-Khair cease use of prohibited drugs, whether in custody or in the community, again noting the three breaches of custodial regulations relating to the possession of prohibited drugs while he has been on remand. As long as he continues to be tempted by the use of prohibited drugs, his outlook is uncertain. Any significant level of abuse generally leads to the commission of more serious offences committed to satisfy the abusive behaviour.

[17]

SUBJECTIVE MATTERS - YOUSSEF AHMAD

The offender was 27 years of age at the time of the offence and is now 29 years of age. He did not give evidence on sentence. Available to the Court in respect of subjective matters are the following: 1. NSW criminal history; 2. NSW Corrective Services report; 3. Report of John Macklin, psychologist, dated 2 November 2017; 4. Letter to the Court from P Laalaa, wife of the offender, dated 25 October 2017; 5. Letter to the Court from Mrs C Reaiche, director of Cuddles 4 Kids, Punchbowl, dated 14 September 2017; 6. Letter to the Court from Ms M Yarar, restaurateur, dated 22 September 2017; 7. Letter to the Court from P Cannizaro, real estate agent, dated 22 September 2017; 8. Letter to the Court from Mr M Fenej, friend, dated 21 September 2017; 9. Letter to the Court from Fadia Zakhia, pharmacist, dated 18 September 2017; 10. Letter to the Court from Mr A Bobb, director of Bobb Property Group, dated 19 September 2017; 11. Letter to the Court from Ms N Elafashel, café proprietor, dated 14 September 2017; 12. Letter to the Court from Mr A Ahmmoud, friend, undated; 13. Letter to the Court from Mr M Dannoun, proprietor of Punchbowl Convenience Plus, dated 22 October 2017; Subjective matters are drawn from that material.
The offender was born in Sydney to Lebanese parents. He is the youngest of 11 children. He was raised in a close-knit family and he denied any incidents of domestic violence or mental health problems in respect of his parents. His father worked in a factory seven days a week to provide for the large family. Unfortunately, some of the offender's older brothers have criminal records dating back many years. He has seen a number of his brothers go to prison and come out again from the time he was seven or eight, and at one time four of his older brothers were in custody simultaneously. One of his brothers was murdered in April 2016, only shortly before he was arrested in relation to these offences. At the time of the consultation with the offender by Mr Macklin in October 2017, two of the offender's brothers were currently in custody.
Stress has been caused in the family in the past because of his mother's treatment for breast cancer. He moved out of home and got married at the age of 22, and there are two sons aged five and four. His wife and children apparently visit him on a weekly basis.
He attended local schools in Punchbowl. He had no literacy problems or other specific learning difficulties and described himself as average academically. He apparently had no significant behavioural problems and was never suspended. He had plenty of friends and he enjoyed football in various forms. He went to Bankstown TAFE to do a small business management course but then commenced associating with what he referred to as "the wrong crowd" and failed to complete the course. His longest job was at a fruit stand at the Flemington Markets for about 18 months. He has done furniture delivery for briefer periods and in recent years some of his time has been devoted to the care of his children.
For most of his adult life, he has in fact been unemployed, which he sees as a result of the company that he keeps. He also had a drug habit which escalated in the year before his arrest. Although his wife had urged him to obtain regular employment, he failed to do so. He has no physical health problems or mental health problems.
He commenced smoking cannabis at 15 and using cocaine at 21. He has occasionally indulged in the recreational use of MDMA. His use of cocaine gradually increased until he was using in the year before his arrest cocaine "all day, every day" at a frequency he could not estimate. He said "it was always in front of me (due to) the people around me" and he needed Xanax at night to help him sleep.
He claims to have been able to control his cocaine use by abstinence for only a three and a half week period in March 2016, but had returned after the murder of his brother to the heavy use of cocaine in the five weeks leading up to his arrest on the current charges. He claims that while in custody he has remained drug free and stated that he has put his name down for the drug counselling program at John Moroney Correctional Centre, which was to commence at the beginning of this year. There is no evidence before the Court that he has participated or been able to participate in that program as yet.
As to the circumstances of the offending, he informed Mr Macklin that he became involved at a time when he had no money and a young family and a cocaine habit to support. He thought it was "fast cash - that it wouldn't hurt anyone. I didn't really think anything would happen to me...I needed cocaine...i was worried about my finances, I was worried about my kids upbringing". I note that in relation to his assertion that he has not used cocaine while in custody, that unlike his co-offender, there is no record on the New South Wales Corrective Services report of any breaches of prison discipline of any nature let alone in relation to the illegal possession of prohibited drugs.
According to the psychologist, he was contrite in relation to the offences and stated that "Looking back, I can't believe I've done it...all for quick money...hurting other people around me...(cocaine) causes enormous harm...it ruins lives...it was selfish for me to attempt to import drugs into the community. I am sorry for putting the community at risk. I blame myself".
He stated that he had resolved to stay off drugs because it was not worth losing his family.
On psychometric testing, his depression and stress levels were found to be in the normal range and his anxiety level was only mildly elevated. He was not experiencing any significant levels of mood disturbance.
I accept that having four older brothers, each of whom was significantly involved in criminal offending to have warranted being incarcerated on one or more occasions, was likely to have an adverse impact on the offender's attitudes to complying with the law. However, there is nothing in his background, including that material that would justify a finding that his moral culpability was lowered, as referred to Fernando (1992) 76 A Crim R 58 and Bugmy [2013] HCA 37.
I note that his wife refers to him as being honest, trustworthy and above all dedicated to his friends and family. I have some difficulty with the reference from Mrs Laalaa: it could hardly have been anything but apparent to her that her husband was a significant abuser of prohibited drugs, on the basis of the information he provided to the psychologist about his use, which must inevitably have brought about personality or mood changes, and, of course, he has been for a significant period unemployed, and one can only wonder how she thought he was maintaining the family in the circumstances where she now states that she is reliant entirely on Centrelink benefits which are not enough for her to remain in the premises where they currently are, and to look after the children. She refers to herself and the children as being on the verge of being homeless "as my Centrelink benefits barely cover the necessities of rent, electricity and petrol". I accept on the basis of the content of the psychologist's and Mrs Laalaa's letter to the Court that the offender is remorseful in relation to the commission of the offences, but I cannot accept in the light of the material that is before me that she "cannot think of any consequences on a negative side of personality ledger when it comes to Youssef, he is a fine, well balanced husband and father with an abundance of positive qualities".
I accept that all of the other persons who have provided references to the Court, which I have indeed taken into account, have expressed their genuine view of the offender. However, it is evident that a number of the references are from persons whose contact with him was as the providers of services, such as Care for Children, for the necessities of life, or meals. A number of the referees do not appear to have, with the exception of ordinary contact in those circumstances, any significantly close relationship with the offender. Indeed, none of the references that have been provided indicate that the referee was alert in any way to the fact that the offender had been abusing at least a prohibited drug, for a significant period of time during which they had known him -even those who have purported to be close family friends and/or have known him for significant periods of time. It is apparent that the offender was at least leading a double life, presenting himself in a good fashion to many members of the community who provided references attesting to their high regard for him in circumstances where he was in the course of committing significant offences, while they knew him, at least in relation to the obtaining and use of cocaine as well as the present offences.
As to his criminal history, I ignore the offence recorded as coming before the Lidcombe Children's Court in July of 2006 for use unauthorised firearm, which was dismissed pursuant to s 133 (1) (a) with a caution, as well as the later offence before the Kogarah Children's Court in March of 2007, of possessing a prohibited drug, again dismissed pursuant to s 133 (1) (a) with a caution.
As an adult, he was convicted on in May of 2008 at the Bankstown Local Court of offences of custody of a knife in a public place and possess prohibited drug, in each case being fined a small amount.
In January of 2009, at the Burwood Local Court, he was dealt with for an offence of possess, attempt to possess anabolic or androgenic steroidal agent for which he received a s 9 bond of 12 months, and a further two counts of possess, attempt to possess anabolic or androgenic steroidal agent for which he received a fine of $450.
He has not been convicted of any other offences. All of the offences that I have just referred to as an adult were dealt with in the Local Court either by bonds or by relatively small fines. Clearly they were at the lower end of any scale of criminal offending, and while they indicate that he has committed offences in the past they are not in my view of particular significance in relation to sentencing on this occasion.
I accept from the material before me that the offender, Mr Ahmad, is remorseful and contrite, and there are at least reasonable grounds for accepting that there is a reasonable prospect of rehabilitation, although I note that if his wife had been aware of his use of cocaine in the past, any efforts she has made to cause him to cease using it obviously failed.
In relation to the offences contrary to the New South Wales legislation, the offence concerning 3.8 grams of cocaine being in his possession is, in the span of criminal offending, at the lower end of seriousness. In relation to the two offences involving dishonestly obtaining a financial advantage by deception, being $59,458, and the offence of intending to defraud by false and misleading statements, being the sum of $177,426, that although they were not particularly sophisticated forms of such offences, that they should still be regarded as objectively serious. In each case, the conduct involved considerable planning: it was premeditated, considered and deliberate. They were motivated by a desire to obtain an inflated lifestyle which would only effectively have been anticipated to be supported by way of mortgage payments by way of the commission of the offences for which he has been charged or like offences.
Each of the offences involved him encouraging and engaging third parties to facilitate his dishonesty, and in each case they involved a significant amount of money and each involved a significant degree of dishonesty. For that reason each was objectively serious.
There is no evidence before the Court that the mortgage provider in relation to the Toyota Hilux suffered any loss. Indeed, according to the facts, it was a person entirely different to the offender who was liable under the mortgage agreement for any payments. There is no information for the Court as to what has happened in regard to the Hilux and any payments, that is whether the person who falsely assisted him by taking out the loan now has the Hilux or whether it has been reclaimed by the finance company.
In those circumstances, there is in fact no evidence of any loss and as I have already indicated, I anticipate or I infer that the offender believed he would be capable of meeting the mortgage commitments, whether it had been for a successful loan to buy the Mercedes Benz C63 or the Hilux, by income he would derive from offending. That is, he did not intend the financial institution to lose anything.
Each of the drug importation charges in respect of each of the offenders, whether it be a completed offence or only an attempt, in my view it is a serious offence. It is extremely difficult for the authorities to detect the importation of drugs in individual small packages because of the vast number of packages coming into Australia on a daily basis. Despite the fact that such importations are regularly detected, it would seem to be a small percentage of what actually gets through, whatever the authorities might claim.
The presence in Australia of prohibited drugs that have clearly been imported has been constant for years, and they do not necessarily all come from large container importations, rather than a series of small individual importations. Such offences of course are extremely difficult to detect, investigate and prosecute successfully, and of course, offences of importation are typically crimes of contemplation. I am of the view that it is important that such offences receive significant penalties in order to deter others from committing such offences.
In relation to Mr Ahmad, there are both offences under Commonwealth legislation and New South Wales legislation. They are, of course, offences of an entirely different nature and the sentence for either the New South Wales offences or the Commonwealth offences cannot comprehend the total criminality represented by each of the different types of offending.
I will not repeat what I have said about the current law in relation to facilitating the course of justice and the discount for a utility plea, as previously referred to. I intend to provide the same discount of 25% in relation to Mr Ahmad as referred to, and for the same reasons as referred to in respect of Mr El-Khair. Such a discount has been provided in relation to each of the offences.
For the purposes of sentencing in regard to the State offences, I have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999 and I take into account the mitigating and aggravating factors and referred to in s 21A(2) of the Act as are present, and the other matters that I have already referred to. Any sentence imposed must reflect the objective seriousness of the offence as well as both the need for specific and general deterrence as well as meeting the fundamental purpose of punishment: that is, the protection of society. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act, having considered all possible alternatives, that no penalty other than imprisonment is appropriate in relation to the State offences.
In respect of the Commonwealth offences and each of the offenders, the Court must have regard to s 17A(1) of the Crimes Act 1914, before imposing a sentence of imprisonment must be satisfied that no other sentences are appropriate in all the circumstances.
I am of the view that in relation to each of the offenders, no sentence other than a period of imprisonment is appropriate in relation to the Commonwealth offences, and no submission to the contrary has been made on their behalf by either of their representatives. I have taken into account all of the matters that I have referred to. I now turn to the individual sentences.
I will first deal with the sentences in respect of the offender, Mohommed El-Khair, and Sequence 5, being an offence of attempting to possess a marketable quantity of a border controlled drug, being 367 grams of cocaine. The term of the sentence is four years and six months commencing on 9 June 2016.
In respect of the second offence, being Sequence 2, attempting to possess a marketable quantity of an unlawfully imported border‑controlled drug, being 637.6 grams of cocaine, and also taking into account the matter contained on the s 16BA form, being Sequence 3, a further charge of the same nature in respect of the amount of 74 grams of cocaine, giving between the offence for sentence and the s 16BA offence to be taken into account a total of 711.6 grams of cocaine, the sentence is one of six years. It will commence one year after the last imposed sentence, that is, it will commence on 9 June 2017.
I am required to in those circumstances set a non‑parole period, and the non‑parole period will be four years and six months commencing on 9 June 2016. I make an order for his parole on 8 December 2020; the balance of the term is accordingly two years and six months. Mr El-Khair, you need to understand that when released on parole, if you are in breach of the conditions of your parole, you will inevitably end up being returned to custody for whatever balance remains. The practical effect of those sentences is that it is a total term of imprisonment of seven years with a four year, six month non‑parole period. You are of course convicted in relation to each of the offences.
In relation to Mr Youssef Ahmad, I will deal firstly with the New South Wales offences and in respect of the offence, being Sequence 12 contained on a s 166 certificate as a related offence, being possess prohibited drug, being 3.8 grams of cocaine, he is sentenced to a fixed term of imprisonment of six months to commence on 9 June 2016. That sentence will accordingly expire on 8 December 2016, a date of course which we are already past. In relation to the second State offence, being Sequence 4, dishonestly obtain a financial advantage in the sum of $59,458, taking into account when sentencing you for that offence, the offence contained on a Form 1, being intent to defraud by a false or misleading statement the amount of $177,426.60, you are sentenced to a fixed term of imprisonment of two years commencing three months after the last imposed sentence. That is, it commences on 9 September 2016. It will expire on 8 September 2018. I have made each of those a fixed term of imprisonment because there is no utility in providing a parole period in circumstances where you will still be continuing to serve the Commonwealth sentences on the expiry of each of those matters. In relation to the first of those matters, you will be continuing to serve the sentence for Sequence 4, the second sentence imposed, and at the time of the expiry of that sentence you will still be continuing to serve a sentence in respect of the Commonwealth offences.
In respect of the first of the Commonwealth offences, being Sequence 5, attempt to possess a marketable quantity of a border‑controlled drug, being 74 grams of cocaine, the term of the sentence is three years imprisonment commencing on 9 June 2017. In relation to the second offence contrary to Commonwealth legislation, being Sequence 6, attempting to import a marketable quantity of a border‑controlled drug, being 367 grams of cocaine, you are sentenced to a term of imprisonment of five years, which is to commence two years after the first imposed sentence in relation to the State offences: that is, it commences on 9 June 2018. In relation to the Commonwealth offences, it is necessary to provide a parole order and I order that you be released on parole on 8 June 2021. The balance of term is accordingly two years.
The effective practical result between the State and Commonwealth offences is a total term of seven years imprisonment with a five year non‑parole period. I should say in relation to the expiry of the non-parole period: that will occur on 8 June 2021. The parole period will expire on 8 June 2023. I trust you would understand as I have explained to Mr El‑Khair that if when released on parole, you are in breach of the parole orders, expect to find yourself returned to custody.
In each case I have considered the offenders' expressed addictions to cocaine, and I am of the view that the period of parole allowed in each case is sufficient to assist them in terms of rehabilitation and/or treatment, subject to the conditions of their parole, to deal with their prohibited drug problems, particularly if they utilise such counselling and treatment services as are available to them while in custody. HIS HONOUR: Now, is there anything I've forgotten? I don't think anyone has mentioned any order for the destruction of the drugs. JAMSHIDI: Your Honour, I'm seeking an order for the destruction of the drugs. HIS HONOUR: Do you want that in the circumstances where at least Mr‑‑ JAMSHIDI: I'm seeking the order specific to the s166 certificate for Mr‑‑ HIS HONOUR: Yes all right. The 3.8 grams relevant to the s 166 certificate can be destroyed. There is probably no reason why the others can't be destroyed, but what do you want me to do Madam Crown? JAMSHIDI: The order is specific to the s 166‑‑ HIS HONOUR: Just that, all right. Now is there anything that anyone can think of that I have omitted during this somewhat lengthy process? I will indicate that while I had some notes in relation to subjective matters, apart from the facts that I've dealt with, most of this has been in fact put together as I sit here, so it may well be that there are some matters that I have failed to refer to. If I detect any of those during the course of settling the reasons when they're available, I will inevitably adjust the reasons. If it's any matter of significance, I will refer it to the parties.

A critical consideration for the Court to determine is the role of an offender in respect of the commission of an offence. It is more important to determine what the offender actually did, rather than to ascribe some label to the role, as referred to in Olbrich v The Queen [1999] 199 CLR 270 at 279. The Crown's submissions in relation to the role of the offender Ahmad were as follows: that Ahmad played a senior role in the attempted possession of cocaine in Drug Consignment 3 (Sequence 5) and the attempted importation of cocaine in Drug Consignment 4 (Sequence 6). In performing that role, Ahmad engaged in the following conduct: 1. In December 2015, he instructed El-Khair to attend an Australia Post office to collect Drug Consignment 3 on his behalf. The Crown's submission was that the Court would find that El-Khair was acting under the direction of Ahmad for the following reasons: 1. Immediately after El-Khair left the post office, El-Khair met with Ahmad and had a 57 minute conversation with him, which the Crown submits was to report on what happened at the post office. 2. A minute later Ahmad telephoned Toongabbie Post Office, falsely purporting to be the consignee and falsely purporting to be interstate, and advised that he had sent his colleague "Mohammed" to collect the package, and provided the post office with El-Khair's mobile telephone number. 3. The nature of their relationship, as can be inferred from Annexure "A" of the Facts, is one in which El-Khair was clearly subordinate to Ahmad and acted in accordance with Ahmad's directions for even the most menial tasks. 1. In January 2016, he instructed El-Khair to attend the vicinity of MyBudget in Parramatta to collect Drug Consignment 4 on his behalf. MyBudget is a commercial premise in which Ahmad's associate Diaa Mohammed (involved in the fraud offence) resided during the commission of the drug offences. The Crown submits that the Court would find that El-Khair was acting under the direction of Ahmad for the reasons stated above in the last paragraph, and for the following reasons: 1. After El-Khair collected the substituted Drug Consignment 4, he transported the consignment to the Bankstown address, but did not open it until Ahmad arrived at the premises; and 2. Once Ahmad and El-Khair discovered that the drugs were missing, Ahmad directed El-Khair to "see if it's in the box or not". 1. On 29 January 2016 he attended the premises at Bankstown and unpacked the substituted drug consignment with El-Khair to gain access to the drug he expected would be concealed inside the consignment. 1. Prior to the attempted importation of Drug Consignment 4, in September 2015 and 30 November 2015, Ahmad instructed El-Khair to similarly attend the vicinity of MyBudget in Parramatta to collect Consignments 16-17, which the Crown submits were dry runs to the MyBudget address. After collection of the dry runs El-Khair transported the consignments to Ahmad.

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