HIS HONOUR: Brian Lee Albanese appears today for sentence in relation to an offence for which he was committed for sentence, but for which he was also arraigned on indictment, alleging that he on or about 21 March 2014 in the State of New South Wales did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely, methamphetamine and the quantity being a commercial quantity.
The maximum penalty for the offence to which the prisoner has pleaded guilty is imprisonment for 'life' and or a fine of $1.275 million.
The offence is one contrary to s 307.5 Criminal Code (Cth), according to the Crown's written submissions, "by virtue of s 11.1 of the Code."
As I said, the prisoner pleaded guilty at the Local Court. There is some suggestion of some delay in the material specifically addressed by learned counsel for the prisoner. It seems to me, as I will expose when I deal with some Crown submissions, that in accordance with the practice in New South Wales in Commonwealth matters, a discount of 25% upon the otherwise appropriate sentence is appropriate to recognise the facilitation of the course of justice by the prisoner. He has facilitated the court of justice with his admissions as well.
The statement of facts are a detailed document. Some aspects of that detail need to be repeated, some aspects need not.
I start by noting that the prisoner is citizen of the United States of America. He arrived in Australia, as I understand it, on 18 March 2014. It is clear on the evidence that he had come to Australia for the purpose, by arrangement as set out in the facts which I will deal with shortly with another man, to receive a package that he understood had been sent to Australia.
The issue of what he knew, what he did not know, what he was expecting in the package when he first arrived in Australia and what he might have expected when he went to TNT on 21 March 2014 and was arrested trying to pick up the package, are all matters of some controversy.
This package was addressed to a person called "Jenny Smit" at a storage facility as I would understand it in Epsom Road, Rosebery. The consignor was a person with an address in Mexico. The contents were declared as "barium sulphate." The net weight of the contents of the package, as I understand it, was just over 10 kilograms.
The Crown facts state that barium sulphate can be purchased in Sydney, Australia at $2.07, plus GST which is 10% in the Commonwealth of Australia, per kilo from a particular corporation. The cost of 10 kilograms of barium sulphate equivalent to the weight of the consignment would be $37.77, including the delivery fee.
This consignment was examined by Australian Customs officers and the contents were discovered to include ten silver foil sachets inside which were in each case a clear plastic bag containing off‑white powder and also containing a second bag with a crystalline substance. Customs officers did a presumptive test and it gave an indication for the presence of methamphetamine.
The consignment, a photograph of which is part of the Crown material, was naturally then more closely examined. Ultimately it was discovered by scientific measurement that the various substances that were respectively wrapped in foil and plastic bags contained 2.028 kilograms of impure methamphetamine with a calculated pure weight of 1.5941 kilograms of pure methamphetamine. The average purity, the usual way these things are assessed, was about 78.9%. The street value of the methamphetamine is said to be about $1.778 million. The wholesale value of the methamphetamine is about $515,000. These figures were not the subject of any dispute. I am very mindful of the fact that street values and wholesale values need to be approached with some little circumspection. There may be some flexibility in price in the market.
The prisoner when he eventually was interviewed in relation to this matter told the AFP that he had come to Australia to perform the task, as he understood it, to receive the package in the manner he described in his dealings with the AFP for a sum of $5,000 plus any expenses.
In any event, the Customs officials and the AFP in their usual efficient way went about substituting for the border controlled drug, a substance which was put back into the reconstructed package for it to be ultimately picked up, or attempted to be picked up, by the accused on 21 March 2014 at the TNT organisation.
The offender arrived in Australia, as I said, on 18 March. He had an electronic travel authority which apparently was issued on his departure from the United States. I noted in his interview, it is a matter that I will take into account in the general scheme of things somewhat to his favour, that he actually had applied for the wrong document to travel to Australia and it was fixed up electronically when he was checking-in at the airport in Los Angeles. He had never previously come to Australia.
When he arrived in Australia he set up a mobile phone service with Vodafone Telecommunications. He gave his name but supplied an address in Wolli Creek which used to be called Arncliffe, close to airport, which is in fact the address of the Mercure hotel located at Sydney Airport.
I note in his interview, and it was not a matter really emphasised or commented upon in the submissions, that when he gave an explanation for giving an address that the "facts" state was one that he had never been a guest at and nor was intending to stay at, that he told the AFP that he did not provide all the details of his address. He gave some particulars and apparently the person at Vodafone filled in the rest of the details.
In any event, he then, when he had the mobile phone with an Australian service connected he rang TNT customer service and made arrangements to eventually pick up the package. He advised his new mobile phone number but advised TNT not to contact him on a listed consignment phone number that he must have had in his possession.
The delivery of the package to him was, it would seem to me, stalled by TNT because of the work of the AFP and the Customs office. I have particulars of the documentation that was on the original package and the description of the contents of the package. When the box had been reconstructed there was a controlled delivery of the consignment to the TNT Botany Depot. The accused was told to come and pick up the consignment sometime before 2pm, having been put off earlier in the day. He arrived at 12.17pm in a taxi. He picked up the consignment which had obviously been reconstructed by Customs and the AFP, and as he departed the reception area walking towards the taxi he was arrested.
The AFP officers or agents picked up from him the consignment, three mobile phones, including the mobile phone with the Vodafone SIM card used to contact TNT, an Apple iPad, a Mac electronic‑book, laptop, a number of hotel and airline receipts and four handwritten notes with details relating to conversations he had had about the consignment. A copy of those notes were attached to the facts and they are the subject of comment by the prisoner in the course of his interview.
The prisoner approximately an hour and a half later was given an opportunity to participate in a taped record of interview. He made contact with the US Consulate which is a sensible thing for him to do and then requested the police interview him later, so that he could get legal advice with the assistance of the Consulate.
If one was reading the facts the next thing one would see is that on 1 May, that is obviously six weeks later or thereabouts, he participated in a recorded interview and I will come to that document in a moment.
However, the facts are that, by reason of material that is placed in a sealed envelope, I am aware of the fact that in reality the prisoner actively cooperated with the AFP from shortly after the time of his arrest and participated as a civilian participant in a controlled operation run by the AFP with the aim of identifying the intended recipients of the consignment. During this operation he did various things which indicate a complete willingness to assist the AFP. The operation involving him as a "civilian participant" concluded on the 22nd with no arrests and in the course of his cooperation it is clear that he was able to provide particular information about matters relevant to the consignment arriving in Australia.
His counsel tendered as an exhibit, but it became a Crown exhibit for obvious reasons, the transcript of the interview of the prisoner on 1 May 2014. The Crown in the statement of facts sought to summarise details of that interview. I do not propose, save for dealing with the particular issues that were raised in submissions, to quote from it extensively.
He set out the circumstances in which he came to meet a man called Dale Schwade in Lima, Peru. He gave details about that person. This was a person, I hasten to say, the prisoner had identified shortly after his arrest, and in fact with whom he liaised throughout 21 and 22 March to assist the police in their further enquiries. He gave explanation as to what was asked of him to come to Australia, what his relevant state of knowledge was at various times, the circumstances of his activities in Australia, why he obtained an Australian phone number, why he had a number of mobile phones, things that he was required to do as part of the approach made to him by Mr Schwade, what he was going to be paid which I have already outlined, how he tracked the consignment online and matters pertinent to how he came to become suspicious of the fact that the enterprise that he had agreed to participate in was not a legal enterprise that he initially believed it to be.
I might add to some of the detail in the "facts", because they are not meant to be exhaustive, that the accused told the AFP about another person called Daniel Keenan whose older brother he had stayed with at Peru when he met Mr Schwade. It would appear that he understood that Mr Schwade was friends with the Keenans and he knew the Keenans because there was a Jeremiah Keenan with whom he had worked in the United States in Washington, D.C.
Part of the factual matrix of this offending is that the prisoner was for several years before coming to Australia a procurement officer, in part involved in procuring equipment for the Federal Government of the United States, particularly in relation to the area of defence, including equipment that the United States Government was proposing to use for military operations in Afghanistan.
This connection between Schwade and the Keenans gave Schwade an air of respectability and it is a relevant matter to assessing the account that the prisoner gave. In the electronic interview in answer to question 24, he went into great detail as to the circumstances in which he came to Australia. He indicated that by the time he came to Australia, having regard to the conversations that he was having with Schwade, there was a certain amount of uncertainty about what he was actually here to do. He said that he was initially brought to Australia to get access to or to obtain a substance "used on statues" and he was to deliver this substance to a business partner of Dale Schwade whose identity was known to the prisoner through Facebook. It was in these circumstances that he agreed because he saw this as some form of exciting new business opportunity for him. I take it from that that his involvement working for the Federal Government had come to an end at least temporarily. He said that he "honestly" thought that in the box that he was to pick up on the instructions of Schwade there were "art supplies."
He then went on to explain that Schwade was very "reassuring" and he was concerned when there was some delay in picking up the package. He said, inter alia, and I am only picking some of the answers he gave in the context of the information provided in the Crown's detailed statement: "I had no reason not to trust him. The people that introduced me to him were good people, I mean I worked with, you know, his brother in the Government. I had no reason to not believe him."
He made the point that he was in Australia by himself and there was nobody else that he could really trust. When he learnt that there was a Custom's hold on the consignment he was asked by the AFP interviewer did he suspect there may be drugs, he said, "It maybe something illegal" ... "Whether it was drugs or something else illegal, just something illegal."
He explained the notes in the Post‑it pads, or small pieces of notepaper, were made by him because he was "raising flags...in my mind" and he was trying to keep a record of what was happening, bearing in mind he was having some uncertainty about relevant events.
He volunteered that Schwade had asked him to pick up a "Teflon pipe and Pyrex dish" as part of the tasks that he was assigned, but he was not familiar with those items. He did not know what to do with them but he had to deliver the items to Schwade's business partner. When he saw the package he realised it was from Mexico.
He said he had never been to Mexico before and he said the name of the contexts "Barium sulphate" was not something he had heard of previously. All he understood of what was being said, were "minerals used for statues...I didn't have a specific name for it, nor did I, you know, request the name."
Bearing in mind that the suspicions he had about it being something illegal, either guns or drugs, had arisen the day before, he went through with "picking it up" he said because; "I was simply...scared and, you know, I didn't know...the best way to get out of the situation besides...doing what he was telling me to do."
He was then asked this question, "Tell me a bit more about that. Tell me what you - what you mean by that?" Answer, "Well when he mentioned that he was - that I was delivering this to the cartel I knew that, you know, I was in danger, you know, because he knew, he knew my name and he knows where I live."
This conversation happened the day before he picked up the package. He had a whole "bunch of questions", as he described it, in his head. He said that Schwade could sense his "uncertainty." He said that Schwade "just wanted to make sure that I would still, you know, go through with it. He was asking me to do what he was asking me to do because it was our lives, his life and my life at stake." (emphasis added).
When pressed as to what the cartel was, he said it was "just a very, very dangerous group of people." When asked what group of people, what type of cartel it was, he said that he was not told what type of cartel it was, just that Schwade had mentioned that his family was Vietnamese and being of Canadian and Dominican descent, he said;
"But when I think cartel, I think, you know it's very dangerous people from where, where I'm from. It's all - it's only danger when you hear about them on the news."
He said that he did not know that it was drugs in the consignment.
He said, "I just knew it was something illegal" referring to the time that his suspicions were aroused having regard to the delay in gaining access.
He went on to explain that he thought this was a "normal trip" and in relation to the hotel, as to whether he had told the person at Vodafone what hotel he was going to be staying at, as I mentioned earlier, he said, "I didn't have an address and I told the guy that was working that I'm going to be staying in a hotel and just (he) put an address."
"Q. Did you inform him what hotel you'd be staying at?
A. I don't think - I don't think I had to. He just simply, you know, put it together."
That is some of the interview. Some of what I have read supplements what is in the statement of facts. Some is included in the statement of facts. But it is important to read onto the record some of those passages because the question of the accused's state of mind is relevant to the assessment of his moral culpability. Of course, also relevant to the issue of his moral culpability is the issue of what is described as "non‑exculpatory duress" that is raised on behalf of the prisoner.
The Crown also provided detailed written submissions which I will come to when I conclude my treatment of the evidence and a number of comparative cases which invites some comment in the context of other authorities, particularly the decision of the Court of Criminal Appeal in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194.
In relation to the defence case, apart from the interview, as I said, I note that whilst the prisoner did not give evidence, nor any oral evidence was called on his part, there was produced a number of documents relating to the prisoner's personal circumstances. This included a letter addressed to the Court from the prisoner which I have taken into account, another document which I would take to be his curriculum vitae, probably a document more appropriate for a job application I should say than court proceedings, and a range of references from people who know the prisoner in the United States, including and this is a very brief summary, Fraternity Brothers from the University of Maryland from which the prisoner graduated in 2007, a co-worker who knew him through in part what was described as the prisoner's "social activism," a retired Sergeant Major from the United States Army, retiring in the mid‑90s with a background in military intelligence who appears to be a family friend and is aware of the prisoner's past employment and family circumstances, another person describing himself as the prisoner's "mentor" and "spiritual leader", a Senior Associate for PricewaterhouseCoopers in the Washington D.C./Marylands/Virginia area and other associates who report to be respectable people in their community, including a military member of the United States Air Force who has worked with the prisoner when he worked at a military hospital at an Air Base near Washington, D.C., work supervisor holding the position described in the reference as Director of Procurement with the United States Department of Labour, a co‑worker in defence procurement, the Director of Athletics at a Maryland High School who knew the prisoner through his younger sisters and his coaching of that High School's basketball team and, finally, a reference from the Chaplain at Long Bay Gaol.
I do not mean any disrespect to the way the case was presented, but on behalf of the prisoner I believe I would have been greatly helped by a chronology to sort out the wheat from the chaff, so to speak, of the information available in evidence through the references.
I appreciate of course, learned counsel for the prisoner provided written submissions which set out a type of chronological outline of the prisoner's "subjective background", with information that does not seem to be able to be found in the references I have been provided, but I am prepared to accept the information is consistent with the other information I know.
In relation to that matter, just to put the prisoner's case in context;
he is now aged 30, being born on 6 May 1984. He is one of four siblings. He has got two younger sisters and an older sister as I understand it. His father he has had no contact with since he was five years of age. His stepfather who had raised him since he was seven separated from his mother approximately five years ago. There is evidence in the documentary material that his mother had worked in the Federal Government for over 20 years and up until coming to Australia he lived with his mother and his three sisters, somewhere in the Washington, D.C./Maryland area. This is a house that he purchased jointly with his mother.
Over the last several years he has been employed by the US Federal Government as a procurer of property and other items, described as a "Senior Contract Specialist." I accept that the family is supportive.
He is said, in the submissions of his counsel, to have a Bachelor of Administration and Communications at the University of Maryland, but his own CV suggests he has what is described as a Bachelor of Arts with a Major in Public Relations and a "Minor" in Business Administration.
As best I can work out, as far as his Federal work is concerned, he has worked, as I have pointed out, in a military hospital, apparently whilst he was an undergraduate. He has particular qualifications relating to procurement of property and has worked for the Federal Government as best I can work out since 2006, including procuring military and defence equipment. This would require of course a security clearance and I accept that up until coming to Australian he was a person of excellent character and with no prior criminal convictions.
It would seem that, at face value, all his referees are very respectable people and I have set out some of their curriculum vitae without naming them. The Sergeant Major to which I referred said that he had had 30 years of service in military intelligence and was apparently currently employed with the Richard Nixon Presidential Library, wherever that is, assisting with collating of material, no doubt a position of great responsibility. His various fraternity brothers and other associates appear to be people with responsible positions within their community.
The thread of the evidence within the references that I have read, and I accept, is that the prisoner has close community ties in the Maryland/Washington, D.C. area. He is a community minded person. He is involved in what is described as "social activism" and community projects. He is a strong supporter of his mother and his siblings who were left to cope in some difficulty when his stepfather abandoned the family.
He, amongst other things, at some time, either whilst an undergraduate or shortly after graduating, volunteered to run the basketball program for a local high school. This area where the high school is located is referred to in some references as "Seton" although I understand the high school is called "Elizabeth Seton." I have heard of a College famous for its basketball team called "Seton Hall", where Andrew Gaze played college basketball some 15 years ago, but whether that is in the same area I have got no idea.
The various referees talk about the prisoner's honesty, his commitment to work colleagues and social causes, his professionalism. They all seem to agree that what he has been charged with is a great shock to them and uncharacteristic of him. One referee said that the prisoner she knew "would never go to another country transporting drugs and risking his life to be away from his family and friends." Within his fraternity at the university he is respected for his qualities and his concern for others, he has no reputation for being an associate of the criminal elements. The Associate with PricewaterhouseCoopers summed it up by saying that from ten years of association the prisoner was 'driven...genuine...loyal...honest...selfless." He and others speak of the prisoner's industry.
The Air Force military member talked of him having demonstrated in the past "sound judgment", strong decision-making skills and being extremely responsible. Part of the prisoner's downfall he opined might have been his willingness to assist others. Whilst in custody the prisoner has attained some certificates which I have taken into account.
The Chaplain has written a very favourable reference saying that the prisoner is active in the Christian group in his wing and he has impressed the Chaplain very much with his concern for his fellow inmates and his overall maturity. The Chaplain described him as a "model inmate" compliant with all directions from custodial staff. The prisoner expressed to him his remorse as he did in his letter to the Court and the Chaplain noted that the prisoner has experienced a "salutary lesson" and believes that the prisoner will seek to obey and respect the laws of any country in which he is resident. He noted the prisoner's concern to return to his homeland, as one would expect.
The prisoner said in his letter to the Court that he hoped to make his experience of being in custody here one that he could turn to advantage to help young people in his home country make better decisions and "trust authorities in these situations." He said, "I vow to turn this mistake into good for this community and mine in the U.S." He noted in his testimonial to the Court that when he asserts that he realised that something was wrong, as he stated in the record of interview, he felt scared but he did not know where to turn to, claiming that he had been threatened to do what he was told or bad things would happen to him and that would cause him to comply. This account in his statement does not strictly accord with the account that he gave in the interview, where the threat that he perceived is expressed by him in the interview on 1 May as more indirect and subtle than claimed in his statement to the Court. In his statement he also asserts that being in custody has been a salutary experience and one he does not wish to experience again, and I accept that that is so given his background.
He also understands quite obviously that his previous employment in Government is "in jeopardy", to use his words, as would be any security clearance. I would be very, very surprised if he would ever be given a security clearance such as he had before when he returns to the United States. He also understands that his conviction here in this country will have implications for him in relation to his association with various people. He has said that he, however, would like to re-establish those relationships and it would appear that many of their testimonials indicate that those people will stand by him on his return.
I appreciate of course that with regard to the referees who come from the United States and the prisoner's statement by Court the Crown is effectively prohibited from undertaking any meaningful enquiry in relation to any of the representations that are made. Of course, it could undertake some enquiries to the very existence of the referees through various means, I accept, but many of the assertions cannot be tested. I am not suggesting for a moment that these people do not exist. I believe in the circumstances, particularly having regard to the cooperation the prisoner has shown to the AFP in a very, very timely way, without long reflection, I can proceed on the basis that many of the observations made about him have been made in good faith.
I note at least one of the referees has reflected upon the accused's "innocence", an assertion I took to be more loose language rather than anything else. Of course, that assertion cannot be correct. Particularly the Crown has not had an opportunity to test the accused's statement, nor even his previous representations to the AFP but that having been said that they have acted upon his information.
I have taken into account in the assessment of both the subjective circumstances of the prisoner and reflection upon the objective facts, particularly as far as his moral culpability is concerned, his ready willingness to be interviewed by police confirming a number of matters, it must be fairly said, already known to the AFP, but in circumstances where he could have exercised his right to silence. There is, as I have said earlier, his immediate cooperation with the AFP. I have already noted the AFP confirms as it might relate back to the observations I made about the subjective case, that the prisoner is known to be a Senior Contract Specialist in the United States and it asserts that the prisoner has close family connection and "strong ties with his community."
So far as his cooperation is concerned I have already read some material from the confidential information provided to me. I point out that there is an opinion expressed within that report that the accused did not "make full admissions in relation to the nature of the substance concealed within the consignment." However, that opinion or evaluation must be subject to an assessment of the matter by this Court with all the information available to it as to whether the prisoner at the time that he came to the country knew precisely what was being imported or, in fact, whether he believed his visit to this country was to be involved in illegal activity.
I note from the information I have the prisoner has continued to provide assistance in the form of written statements relating to matters concerning activities with which he is familiar. I propose not to go into the detail of that information which is independent of the charge. He has provided assistance to the AFP on four separate occasions between April and July 2014 and some details of some of the intelligence he has provided is set out in the report.
The level of assistance provided by the prisoner has been assessed by the AFP as "high" and the report says that the prisoner is believed to have "provided all the assistance he reasonably could following his arrest" and continues to provide assistance whilst in custody. The value of that assistance is assessed as "low."
He has provided intelligence both to domestically and internationally but there have been no arrests arising from it. This evaluation clearly is one to be seen as reflecting the results of the cooperation, not the truth or accuracy of the cooperation. I note overall the assistance identified is described as "medium." That assessment, however, does not necessarily present a yardstick that definitively defines or assesses the calculation of a discount for assistance that the Court has the discretion to grant.
I turn now to the submissions in this matter and will deal with the particular matters of controversy, if I might call them that, that arise from the evidence in the case.
The Crown's submissions are in their usual way thorough and highly pertinent and there is not a need for me to go to particular matters in detail beyond noting particular matters, although all matters have been taken into account. Clearly I am required to sentence the prisoner in accordance with Pt 1B Commonwealth Crimes Act and amongst the relevant provisions I must have regard to are particularly s 16A and the various matters identified in s 16A(2) Commonwealth Crimes Act. These include the nature and circumstances of the offence which I have summarised, although I will come back to the role of the offender in a moment.
The maximum penalty serves as a yardstick and reflects upon the seriousness of offending contemplated by the legislation. This does bring me back to De La Rosa, a case that for some reason the Commonwealth Crown rarely cites in its written submissions, although in all respects is a very, very helpful judgment in Commonwealth sentencing matters relating to crimes that associated with the importation of border controlled drugs. I appreciate, of course, in De La Rosa that offender was sentenced and was the subject of a Crown appeal in relation to his plea of guilty for the importation in 2008 of a border controlled drug, namely, cocaine in what was described as a "marketable quantity." I am mindful of the fact personally that this prisoner did not "import" the drug but attempted to "possess" the border controlled drug which clear had been imported. I am mindful of the fact, of course, here, we are dealing with a commercial quantity. Here, of course we are dealing with the border controlled drug, methamphetamine. De La Rosa is a case about cocaine, and I am not here to express any opinions based upon authority, or personal, about the relative merits or demerits of methamphetamine as opposed to cocaine as dangerous drugs.
I am mindful of the fact that, as I understand it, the scheme for identifying marketable and commercial quantities in terms of weight for those drugs might vary to some extent but the general observations are made by Justice McClellan, the then Chief Judge at Common Law, amongst a Full Bench of five judges concerning arrangement penalties that may be appropriate to consider to achieve consistency in sentencing, from [193] onwards, is of some relevance. His Honour undertook what could be called an exhaustive analysis having regard to detailed submissions from both Crown and defence of the categorisation of offending in relation to both importing trafficable or marketable quantities of border controlled drugs and importing commercial quantities of border control drugs and sought to analyse the matter by reference to categorisation of conduct having regard to particular characteristics of the offending and having regard to the quantities, bearing in mind as he said that whilst the quantity was not definitive within a particular range of criminal conduct, it was still a relevant matter as the High Court had held in Wong.
The quantity with which I am concerned here of course is a commercial quantity and his Honour in relation to the importation of commercial quantities of cocaine identified four groups of offending, in relation to marketable quantities he identified three groups of offending. In respect of what he described as "Group 4" he described this group of offenders as being those involving quantities of drugs subject to, of course, the legislative scheme for commercial quantities, ranging from 1 kilogram to 30 kilogram, and offenders occupying roles variously described as instigators, overseers, collectors and couriers. Many of the offenders in this group had good antecedents and no prior convictions and nearly all pleaded guilty. I refer particularly to [214] - [215] and the outline table that he set out at [224].
He said in relation to this group he described as "Group 4" in his Table as being usually from his analysis of many cases;
"No prior convictions; good antecedents; quantity not indicative; plea not indicative although discount provided for early plea; role not indicative although generally part of syndicate."
I pause to point out I have got no basis for concluding that the prisoner was part of a "syndicate" in a knowing or substantial way.
The matter of the role of the prisoner, as it is discussed by the Crown and this is the reason I dwell on this matter at this time, involves the Crown identifying the various steps in the accused's involvement from agreeing to come to Australia for payment and the various things he did in Australia set out in para 13 in the prosecution submissions.
So far as receipt of the package is concerned, I agree with the analysis of the Crown set out in that paragraph that the prisoner was "the main contact" for the purposes of picking up the package, but there is absolutely no evidence that the accused was "the main contact" for the distribution or dissemination of the border controlled drugs. It is clear that the prisoner's role is that of a "collector" and clear, bearing in mind he was fully exposed by name and identity, that if something went wrong with the importation he would be the first person intercepted. Thus the true "main contact in Australia", that is the person who was to make use of the border controlled drugs, was protected if the package was intercepted, as it was, and the person collecting the package was arrested.
In the Crown's very helpful oral submissions, if I might again get a little ahead of myself, the Crown pointed to matters that the prisoner had "given the wrong address" for the mobile telephone service, the prisoner had received - or was to receive a substantial sum of money, the prisoner was the person who arrived separately from the package, had been sent a mobile phone, knew enough about the delivery to advise TNT not to contact the particular contact number that was on the consignment slip and was tracking the package. The Crown submitted that if the prisoner had no knowledge of what he was involved with when he agreed to come to Australia one might ask why he was to be paid so much for doing such a menial task. In relation to that matter the facts of the matter are that given the prisoner had travelled from the United States, whilst the actual collection of a package was a "menial task" it was menial task undertaken not by a local contact but by a person who had taken up a great deal of time to travel here which of itself might explain to some degree the financial remuneration that was to be paid to him.
I accept the account given by the prisoner that he when he left the United States he was not aware of the fact that he was coming to Australia to perform an illegal act. There is, however, in this matter from his own account some degree of circumspection that was missing in his approach to the matter. He met a man in Lima, Peru, which of itself to my mind has an element of suspicion, he was given very few details about precisely what he was to take delivery of, except a very general description of the fact that it was relevant to something to do with art supplies, and he was not given a great deal of particulars as to precisely who he was to contact and in what circumstances that contact was to occur. These matters, of course, raise suspicion as do the matters identified in the Crown's helpful submissions. But the truth of the matter is that there were other features of the case to be taken into account that might reflect upon the truth of the assertions made by the prisoner in his recorded interview. There was his prior good conduct, lack of criminal convictions and his trusted role in the American Federal Government in jeopardy if he was involved in the type of offending that ultimately came to pass. In my view he was somewhat naïve in his approach to the matter but his own interview indicates that his trusting of the man that recruited him stemmed in part from the fact that that person was known to people that the prisoner knew were respectable people.
Part of the lacuna of the evidence available to me is that I am unaware precisely of the prisoner's financial circumstances at the time that he agreed to undertake this exercise. Clearly, he was not doing American Government work at that time. Whether his contract had come to an end, or whether there was no more work, or whether he had a break between contracts it is not clear in the evidence what is the case. To find the time to come out to Australia to perform the tasks that he agreed to do is something that could not have been done if he was then in regular employment. But, on the other hand, there is a body of evidence produced, which I accept, that he is generally industrious and has been in regular employment.
Clearly the criminal culpability of the prisoner must focus on his failure, once he became suspicious, to take his suspicions to an authority. I understand he was 'a stranger in a strange land' but Australia is not so that much different from the United States that he could not have appreciated that if he had suspicions about the matter they were matters that he could properly take to local authorities. This is not Peru. Anyone who has been to South America, or particularly Peru and Bolivia, knows that one would approach investigating authorities with some considerable circumspection given their reputation for corruption. But no such suggestion can be made of that in Australia. In all respects Australia is very, very similar to the United States in terms of the reputation and integrity of its investigating authorities.
Ultimately I conclude, in the context of dealing at the moment with the role of the prisoner in the matter, that I could not conclude that the prisoner came to Australia with the intention of committing an offence or being relevantly as the law requires reckless to the commission of an offence. I have taken into account, of course, the matters raised by the Crown but they have to be seen in conjunction with the matters that militate against the finding that the Crown urges upon the Court in that regard.
Turning now to another aspect of the matter raised in submission by the accused, the issue of the non‑exculpatory duress, this is a matter that was urged upon the Court and a number of authorities were referred to by learned counsel for the prisoner. Particularly the submissions of the accused focussed upon cases such as Olbach v R (2005) 158 A Crim R 586, R v Liu [2005] NSWCCA 378, Tiknius v R (2011) 2001 A Crim R 365, in the judgment of Justice Johnson, and most recently in the decision of RCW v R (No 2) [2014] NSWCCA 190.
The principles to be applied I believe are probably best set out in the judgment of Johnson J. In that judgment between [32] - [53], in his usual thorough way, the learned Judge of the Supreme Court dealt with the mitigatory aspect of non‑exculpatory duress. This is a matter that when it arises for consideration in this Court, it is required to be established on balance by the prisoner. I accept that it affects the degree of the prisoner's subjective of moral culpability. It is also relevant to the assessment of the prisoner's prospects rehabilitation in the appropriate case.
His Honour cited the South Australian decision of Day v R [2009] SASC 84 [35] where the Full Bench of the South Australian Supreme Court said;
"The fact that the offence has not been committed out of motives of greed or malice but rather out of fear may carry with it the consequence that if the cause of the fear is removed, the offender will be unlikely to offend again. But whether in a particular case the fact that fear of intimidation has played a part in the commission of offences, should result in a reduction in penalty, must depend on the circumstances of the particular case."
Justice Johnson noted at [42]
"Matters of motive are causally related to the offending and may be considered as part of the circumstances of the offending. It may mean that the offence is not one motivated by financial profit or greed which may weigh upon the moral culpability of the offender."
It was also noted that this is a common claim in many importation cases and claims of this sort require a significant degree of circumspection. Careful and close assessment of the evidence to support such a claim should be made with the onus upon the offender being kept firmly in mind.
It was also noted that it will still remain for the Court to determine what weight should be given to that factor on sentence. It will involve, amongst other things, consideration of the duration of the criminal conduct, the nature of the threats made and the opportunities for the offender to report the matter to relevant authorities. I have taken all these matters into account.
His Honour pointed out that it was also be borne in mind that the policy considerations underlining the law of duress and the raising of duress do not exclude the weight to be given to general deterrence. In some cases as a matter of police "general deterrence may provide a counter‑threat" to the compliance of the prisoner to the duress. (see [51] - [53]).
In relation to this matter I have referred to some of the evidence, although there are some other references in the interview of the accused in which this issue was raised. Reliance is made in the oral and written submissions upon the decision of RCW which I have earlier cited. What I have understood from that decision, having read it very closely it has other relevance in this case which I will deal with in a moment, is that the issue that arose in that appeal was that the claim was made that insufficient weight was given to non‑exculpatory duress.
The non‑exculpatory duress in RCW was quite different than that here. The facts in relation to the matter that were tendered in the sentencing proceedings stated;
"Throughout the course of his involvement in the offending the Offender felt somewhat intimidated by Thomson and his behaviour. He believed that Thomson had become volatile and increasingly prone to making threats of violence. Accordingly, he felt pressured to carry out tasks as requested by Thomson so as to not upset Thomson.
He nevertheless accepts that he voluntarily carried out the tasks requested of him and willingly participated in the offending."
I hasten to say that RCW was an offender who voluntarily then withdrew from the criminal enterprise. Ultimately, the sentencing judge in RCW concluded that the weight to be given to duress in that matter was "slight." The judge in that matter accepted the applicant's claim of duress was credible and in fact support for that claim was that the prisoner withdrew himself from the enterprise and came forward before he was aware of any police investigation, that assisted in supporting "the truthfulness of his claim to have only become involved because of the duress applied to him by Thomson."
Here, the prisoner became involved initially without knowledge of importation of drugs, but once he had his suspicions, reading his interview as favourably as I can, no direct threat was made at all by his contact. Reference was made to 'possible' implications and that fear affected the prisoner, he said, because the contact knew his address and the address of his family. But there was, it must be fairly said by comparison to the facts in RCW, a lower level of direct and real threat as opposed to speculative threat at work, in the context of assessing the issue of non‑exculpatory duress as it is relevant to the prisoner's moral culpability. Bearing in mind, of course, that the prisoner did have the opportunity to withdraw because nobody was restraining him from doing it, or to report the matter to the authorities before he took delivery of the package. It is the case that if in RCW the role of that factor was "slight", accepting what the prisoner has said in his interview, the weight to be given to that matter and this matter must be less than slight.
I appreciate of course that the prisoner from his general knowledge of the world may have a reasonably speculated about the implications of what was happening, but in the absence of any direct threat and his continuation of his involvement, notwithstanding his misgivings with no one looking over his shoulder, as I said, the matter is of little moment in this sentencing proceeding.
The Crown's written submissions properly identify the amount of the drug is a relevant matter. The commercial quantity of methamphetamine is 0.75 kilograms, I am informed. The amount of methamphetamine involved in this matter is thus almost twice that of the commercial quantity threshold but has to be considered in the context of the range of quantities that may be involved which are discussed in greater length than the Crown submissions by Justice McClellan in De La Rosa.
Ultimately, in the context of what I have referred to relevant to non‑exculpatory duress, I would have concluded, that one of the factors that weighed upon the prisoner's mind when he continued in the matter not withstanding his suspicions and what had been said to him by his contact was the fact that he was to receive $5,000 on his return to the United States and was to receive reimbursement of expenses and that was a matter that contributed to his continued involvement in this matter. Of course people involved in any level in relation to the importation of border controlled drugs with their well-known effects upon the community both here and in the United States should understand that an element of general deterrence is to be expected as part of the sentencing matrix.
I have dealt with the issue of the guilty plea. It is a relevant matter to take into account under s 16A(2) of the Act but here in New South Wales also the prisoner is entitled to a discrete discount which I am prepared to give him in the discrete discount which I am prepared to give him in the amount of 25%.
The Crown refers to the general principles in its written submissions but as I have earlier pointed out it is quite clear from reading the decision of De La Rosa that the Court of Criminal Appeal has on a multitude of occasions approved a range of discount in accordance with the guideline judgment relevant to State offences of Thomson and Houlton.
Another relevant matter to take into account in sentencing the offender is the issue of the cooperation of law enforcement officers and there is no need to reiterate the various principals that are identified in the Crown's very helpful written submissions, the various cases that deal with this issue include the 1989 decision of Cartwright footnoted by the Crown, R v Gallagher from 1991 and more recently decisions such as El Hani [2004] NSWCCA 62, Chiu [1998], SZ (2007) 168 A Crim R 249 and of course the decision of Sukkar who I sentenced at first instance, but whose sentence was increased by the Court of Criminal Appeal ((2006) 172 A Crim R 151) particularly the observations of Justices Howie and Latham. I have taken into account all the particular matters identified by the Crown.
I have concluded the prisoner is entitled to a combined discount of 37%, including both the discount for the plea of guilty and the past and present cooperation. The significant features of his cooperation are, in my view, it was complete even if it has not been effective and it was extremely timely given many times people come forward for benefit of their cooperation with the authorities having for months on occasions failed to provide cooperation in circumstances where their cooperation might reasonably be seen to be foredoomed to failure. As I pointed out from the facts available to the Court the prisoner's cooperation was extremely timely and the fact that no arrests were made I could not attribute it any way to character to the character or quality of his cooperation or its timeliness. However, there is nothing in the information available to me that indicates that there is some aspect of his imprisonment or alternatively there is no aspect of his future involvement with law enforcement agencies, that will require him to give evidence that necessitates a component of future cooperation. Of course, I am very mindful of the observations in Sukkar of the restraint that needs to be exercised in this regard.
The assessment by learned counsel for the prisoner that the discount shall be as great as 50% refers to a yardstick for the combination of plea and cooperation that would involve consideration of circumstances of custody and future requirement of the prisoner to give evidence, or the probability of the prisoner to give evidence, against other offenders. That does not arise here.
I accept the Crown's submissions in relation to the need, obviously, to give weight to adequate punishment. The offender's character, antecedents and background are entirely favourable.
I am very mindful of the fact that good character may on occasions be a matter that may not carry as great a weight as it may in other offending when dealing with people involved in substantial importations of border controlled drugs and like offending, but here the offender's character, antecedents and background have been of assistance in assessing the account he gave to the investigating authorities.
His post‑arrest conduct also has been exemplary as the chaplain has pointed out. This foolish action of the prisoner in continuing to be involved in this offending in circumstances where he had every reason to take the matter to the authorities will jeopardise his future in the United States.
It is not the subject of any submission by his counsel of substance that there is any particular hardship to his family. I appreciate that his mother and his siblings are to some extent dependent upon him for his support and encouragement and I am mindful of what he says about the effect upon him of not being able to be with family for important milestones whilst he is in custody. But in the context of all the evidence available to me no exceptional circumstances have been identified that warrant some mitigation of penalty by reason of hardship to third parties. I accept the Crown's submissions in that regard.
Obviously in sentencing the prisoner I am required to have regard to s 17A Commonwealth Crimes Act. It is conceded in the submissions of counsel for the accused that a term of imprisonment must be imposed, although his submission was that I should impose a term of imprisonment that warranted a recognisance release order, which I would take to be from my understanding of the Commonwealth legislation, a sentence of three years imprisonment or less.
In my view taking all matters into account most favourably to the prisoner such a sentence would not reflect the true combined picture of the objective facts and the relevant subjective matters to take into account in this case.
The Crown provided several supposedly "comparative" cases in its written submissions and these were most helpful, I do not in any way suggest the Crown's assistance in this regard or in any other regard was not helpful. Those cases without reading the citations are decisions of Tang from Western Australia in 2013, Tran New South Wales Court of Criminal Appeal in 2013, Lee, a judgment of my brother Judge Berman SC from 2013 and a Queensland decision of Harris from 2009.
In relation to Harris and the West Australian case, of course, being interstate cases there are quirks of local sentencing that would not apply here in New South Wales as there are quirks in New South Wales that would not apply here in those States. I have taken into account what I can glean from the material available to me about those sentences.
I have already referred to the fact that I have had regard to the analysis of Justice McClellan in De La Rosa which is of great assistance. His Honour said in respect of the fourth group, concerning commercial quantities of the relevant border controlled drug, that the range of sentences that he can identify usually with a plea of guilty were between 6.25 years through to eight years. The value of the pleas of guilty are not identified. The non-parole period range between three to 4.5 years.
In this mater I factor in an objective fact, which I would assume generally, that the knowledge of the relevant offenders of the significance of their role in the importation would have been greater at an earlier time than it was for this particular offender, as I have assessed the matter.
The New South Wales cases to which the Crown referred me in its schedule of comparative cases which postdate De La Rosa are not inconsistent with his Honour's analysis in the decision of De La Rosa. There is as I said earlier, however, something out of RCW at first instance that needs to be pointed out. In that case the complaint was made that the judge in sentencing RCW placed too much weight on one particular comparative case. I note particularly the discussion at [47] - [49] in RCW that the Court has to sentence this prisoner subject to the discrete discounts that are recognised by superior courts by applying the principles as set down by the High Court in Markarian [2005] HCA 25, particularly at [51], and of course the decision of the High Court of Australia in Hili v R; Jones v R [2010] HCAS 45.
In relation to the use of comparative cases their Honours criticised too much reliance on a comparative case, or comparative cases. In that matter, that is RCW, the Court said in its judgment, "There was no process of instinctively synthesising all the relevant objective and subjective facts and circumstances to arrive at a proposed sentence and then looking at the outcome of other similar cases that may have provided the check or yardstick". Their Honours approved of the observation that arithmetical quantification of the mitigating effect of a single feature of the case was wrong and of course in that matter there was complaint that personal circumstances of the prisoner had not been taken into account properly given the reliance upon the comparative case.
In summarising and dealing with some of the aspects of the Crown submissions insofar as they might be at odds with the defence submissions, I have obviously taken into account the helpful written submissions of the prisoner and the oral submissions that were made on his behalf.
I accept the prisoner has excellent prospects of rehabilitation and I accept that he is unlikely to reoffend. I further accept that he has demonstrated true remorse, this is demonstrated not just by his cooperation for which he receives a discrete discount but also by the observations of the chaplain and his concern about family and friends back home in the United States as a result of his wrongdoing. I believe he has insight into the circumstances of his offending.
I have taken into account the submissions made in relation to the issue of the fixing of the minimum terms, particularly in the context of the decision of the High Court in Hili v R; Jones v R.
Ultimately, all things taken into account, I concluded that the starting point of the appropriate sentence in this matter should be six years and six months. I concluded that the prisoner, as I said earlier, should have a combined discount of 37.5%. That left the sentence to be fixed taking into account the matters brought to my attention and also referred to by me of four years with a non-parole period of two years. The prisoner has been in custody since 21 March 2014.
I am sorry to take so long. Mr Albanese, could you stand up, thanks very much. In relation to the offence to which you pleaded guilty and for which you are convicted, you are sentenced to a term of imprisonment of four years to commence on 21 March 2014 and shall expire on 20 March 2018.
In relation to that sentence of imprisonment I fix, as I am required to under Commonwealth law, a non-parole period which will commence on the same date that your head sentences commences.
The non-parole period will expire on 20 March 2016.
You will be eligible for release to parole on that date. That will be a matter for the New South Wales Parole Authority in consultation with the Commonwealth authorities. The likelihood is of course when you are released to parole you will be taken into Immigration Department custody and deported very shortly thereafter. You can take a seat. The sentence means that you will be required to spend a minimum of two years in custody in Australia.
Do you understand that?
OFFENDER: Yes.
HIS HONOUR: Yes. Thank you. Now Madam Crown, is there anything else from you?
TANDA: No, your Honour. No, your Honour.
HIS HONOUR: Mr Watson, anything else from you?
WATSON: No, your Honour, thank you.
HIS HONOUR: Thank you. There's nothing else that I need to explain to the prisoner about the sentence imposed upon him?
TANDA: No, your Honour.
HIS HONOUR: Thank you, you are excused. Do you want to speak to your client because he will go straight--
WATSON: Yes, please.
HIS HONOUR: Feel free to have a quick chat to him, I know the officers want to get away. There is no other offences or anything to be taken into account on a schedule or wasn't drawn to my attention?
TANDA: No, your Honour, just the one charge on the indictment.
HIS HONOUR: Yes.
The fixing of the non-parole period is of course subject to the relevant provision of the Commonwealth Crimes Act, that is s 19AL, is it not, of the Commonwealth Crimes Act.
TANDA: Your Honour, I will just double-check. Yes, your Honour.
HIS HONOUR: Yes. Thank you. That is in the orders I have made and I sign. Yes, thank you, Mr Albanese, I wish you well for the future. I trust you won't regard Australia adversely by what has happened to you but at the end of the day you've ended up being the author of your own misfortune and it's probably the case if you travel into Los Angeles International Airport involved in the same type of criminality you might have expected a sentence that was somewhat greater than that. Certainly, if you had gone to Bali or Thailand you would well know the consequences in those countries of this type of conduct whatever your role. You are excused, thanks very much.
I will adjourn the Court and I thank the Corrective officers very much and I thank the Court staff for staying back.
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Decision last updated: 18 August 2015