R v Cucek

File Number(s): 2023/00145580

Publication restriction: Pursuant to s15A of the Children (Criminal Proceedings) Act 1987 it is an offence to publish or broadcast the name of the co-offender, SH

REMARKS ON SENTENCE

1. The offender was born in 1999. He is to be sentenced for an offence of attempt to possess a commercial quantity of an unlawfully imported border controlled drug that occurred on 5 and 6 May 2023 when he was 23 years of age. This is an offence pursuant to ss11.1 and 307.5 of the Criminal Code 1995 (Cth) ("the Code"). The maximum penalty prescribed for this offence is imprisonment for life and/or 7,500 penalty units ($2,620,500).

2. The offender was arrested on 6 May 2023 and spent 230 days in custody. On 22 December 2023, the offender was released on bail. The offender was subject to home detention until 29 April 2024. Thereafter he has been on strict bail conditions which have been varied on several occasions but have included him living at home, being subject to daily reporting, surrendering his passport, not approaching any international port of departure or applying for a passport, electronic monitoring, being subject to a night curfew, together with a guarantee by way of surety.

3. A co-offender, SH was sentenced by me on 16 October 2025 to a term of imprisonment of 3 years, and pursuant to s19AC of the Crimes Act 1914 (Cth), I ordered a Recognizance Release Order effective immediately subject to conditions. Another co-offender, Martin, was sentenced by me today. The principle of parity in sentencing is therefore applicable here.

The sentence hearing

4. The sentence hearing took place on 7 August 2026. The Crown Sentence Bundle became Exhibit A. It included a lengthy statement of agreed facts which may be summarised as follows. In January 2023 anti-smuggling authorities in China detected a consignment of methamphetamine concealed inside a cast iron pulley. Between 3 February 2023 and 8 February 2023, the methamphetamine was removed, seized and substituted. It was identified as having a purity of 80.3% with a calculated pure weight of 187.1 kilograms, which is more than a commercial quantity (i.e. 750 grams). The pulley arrived in Sydney on 30 April 2023 and was subject to a controlled operation which included authorised surveillance by way of a covert listening device installed by the AFP.

5. On 2 May 2023, the offender was added to a group chat titled “THURSDAY JOB”, that included the co-offender, Martin. The group chat included the following messages from a person using the handle “Youngin77”:-

“Youngin77: Lads 90% sure there is a job Thursday paying 5k each cash, it’s extracting work from a concealment obviously risks like every job but these guys are smart and in the ball, will be in a warehouse in Penrith Youse can drive down together

Youngin77: It’s on an angle grinder

Cucek: Yeah sweet, I don’t get what we need to do but

Youngin77: Using a grinder to open up something that has something in it

Youngin77: If that makes sense

Cucek: Yeah sweet

Youngin77: Sweet

Youngin77: And this is never to be spoken on bro ever”

6. On 3 May 2023, the offender and the co-offender Martin were in another group chat also titled “THURSDAY JOB” with a person named “Nike”, who was waiting on confirmation from others for details.

7. At 7:38 a.m. on 5 May 2023, “Nike” sent the offender and the co-offender, the following message:-

“Hire a truck and head to Penrith address I’ll cover truck cost and Truck Hiring it”.

The conversation continued as follows:-

Cucek: So what do you need me to do now?

Nike: We need to hire a truck and head down to Penrith

Cucek: Sweet. I’ll sort it now.

Cucek: Is this the grinder job?

Nike: Yep.

8. The conversation concerned arrangements for a meeting time, together with discussion of the cost of the truck and the amounts to be paid. During the exchange, “Nike” informed the offender and co-offender that it “Will be 10K to Munster for driving and 5K to you Tony for helping with unpack.” Both the offender and the co-offender Martin responded, “Sweet.” The user “Nike” informed the offender and co-offender Martin that “2 other Lads will be there to help unpack too… 1.30 pm arrive”.

9. At 9:43 a.m. on 5 May 2023, the pulley was delivered to industrial premises at Wetherill Park. Two co-offenders, SH and James Palu were seated in a black Mazda motor vehicle parked next to the premises.

10. At 9:59 a.m., “Nike” sent the offender and co-offender Martin the following messages:-

“Ready to head down bros. It’s there.”

“This JOB could be 2 days work. So 5K each for each day bros.”

11. At about 10:20 a.m. a co-offender Mounire Mokdassi arrived at the premises driving a forklift, unlocked and opened the pedestrian door of the storage unit. Mokdassi and SH spoke to the delivery truck driver and SH signed the "Proof of Delivery Form" using a false name. Mokdassi removed the consignment from the truck using the forklift and moved it inside the storage unit. Mokdassi and SH removed the plastic wrapping from the consignment. Throughout the morning SH, Mokdassi and Palu repeatedly entered and exited the premises and a listening device captured their discussions about where they believed the consignment was concealed.

12. At about 1:10 p.m., the offender, co-offender Martin and another male attended North Parramatta Avis Car and Truck Rental. The male signed a rental agreement for the Avis Truck.

13. At 2.09 p.m., the Avis truck arrived at the storage unit. The offender drove the truck, and the co-offender Martin was a passenger. Palu and SH made unsuccessful attempts to start the forklift and lift the pulley into the Avis truck.

14. At 2:14 p.m., the offender and Martin were recorded discussing where the drugs were concealed within the pulley. They also indicated that they would likely stay overnight at the warehouse.

15. At about 2:38 p.m., Mokdassi returned to the premises and transferred the pulley into the rear of the truck. At 3:00 p.m., the offender and co-offender Martin drove the truck around Wetherill Park for approximately 45 minutes in an exercise of counter-surveillance in order to determine whether there was any police interest in the pulley. Mokdassi followed in his own vehicle.

16. At 3:09 p.m. the truck parked on Highland road, in front of a silver Ford Ranger utility. The car driven by Mokdassi parked behind the truck. An unknown male exited the Ford Ranger and walked towards the truck. At 3:11 p.m., “Nike” messaged a group chat titled “YO” as follows:-

Nike: Youse pulled over aye

Martin: Yeag

Nike: Just jump out

Nike: And wait for message

17. At 3.13 p.m., the offender and the co-offender Martin, exited the truck and stood at its rear with the cargo tray doors open and at 3:18 p.m. the unknown male drove away in the Ford Ranger. At 3:32 p.m. the offender and co-offender Martin drove away in the truck and Mokdassi continued to follow in his own vehicle.

18. At 3:40 p.m. Palu and SH returned to the premises and SH was observed to open the pedestrian gate and the pair entered the premises. The truck driven by offender with the co-offender Martin as a passenger, arrived shortly thereafter and Mokdassi used a forklift to move the pulley back into the premises. At 4:00 p.m. all parties departed.

19. At 4:40 p.m., the offender had a conversation with “Nike” as follows:-

Nike: Yo lads we gotta stay over night

Nike: That means another 5K

Nike: Each

Cucek: We don’t have clothes or anything

Nike: On top of the 3K to Tony 2K truck 6K Munster

Nike: Can Youse go grab from Kmart

Nike: I’ll pay for them all

Cucek: We need to sort a bigger truck

Nike: They are sorting it bro

20. At 4:30 p.m. the offender and co-offender Martin entered the premises and had a conversation discussing how to “crack into” the consignment, and at 6:00 p.m. they both left the premises.

21. At 7:35 p.m. the offender and co-offender Martin returned and were observed removing inflatable mattresses and bedding. Mokdassi returned to the premises at 7:40 p.m. and entered the storage premises with Martin. The offender sent “Nike” images of the makeshift beds set up in the rear of the truck. At 7:48 p.m. Mokdassi departed the premises. The offender and co-offender Martin departed the premises at 8:00 p.m. and returned at 10:07 p.m. and slept in the cargo hold of the truck overnight.

22. On 6 May 2023, at 6:30 a.m. the offender and co-offender Martin departed in the truck and shortly thereafter Mokdassi unlocked the storage premises and entered the unit. The offender and co-offender returned at around 6:55 a.m. and attempted to cut into the pulley using angle grinders. At 7:25 a.m. the co-offender, SH entered the premises.

23. At around 8:30 a.m. Martin and Mokdassi were recorded on the listening device discussing how to cut into the pulley. Throughout the morning, police observed the offender and co-offenders Martin, Mokdassi and SH frequently entering and exiting the storage unit wearing personal protective equipment including gloves, eye and ear protection. The offender and Martin were recorded discussing how they would cut into the pulley.

24. At around 9:00 a.m. “Nike” messaged the offender, “bro is everything sweet” and at 9:40 a.m. the offender responded, “We can’t get through this thing I’ve been cutting for 3 hours”. “Nike” replied “Bro every day you’re there it’s another 5k”. Another conversation between the offender and the co-offender Martin was recorded during which they discussed how to cut into the pulley. At the same time, the offender was messaging “Nike” who advised him “It’s in middle bro”. The offender also sent “Nike” an image of the pulley.

25. Between 10:04 a.m. and 10:19 a.m., the offender and co-offender Martin continued to discuss where the drugs were concealed within the pulley and attempted to cut into the pulley.

26. At 10:21 a.m. police arrived and the offender and co-offender were arrested inside the premises. The co-offender Martin was seated on the forklift using a mobile phone to photograph or video the offender, who was cutting into the consignment. Mokdassi was arrested a short distance from the premises. SH was seated in the truck and arrested.

27. Exhibit A included NSW Police Force Court History Convictions which revealed that the offender had no previous relevant convictions relating to prohibited drugs and only traffic related offences.

28. Exhibit A also included the offender’s NSW Department of Corrective Services record of conviction, sentences and appeals, chronology of bail conditions and my remarks on sentence for the co-offender, R v SH [2025] NSWDC 410.

The offender’s evidence

29. The offender relied on a tender bundle of documents which became Exhibit 1.1 to 1.13. Exhibit 1.1 was a report from psychologist Ms A De Santa Brigida dated 23 July 2016. She assessed the offender on 22 June 2026. She took a family history and noted that the offender had one sibling, and that his parents had separated at age 6. His father abused alcohol and had mental health issues. He left school in year 11 and commenced an apprenticeship which he did not complete. Subsequently, he became fully accredited as a carpenter and has been employed as a carpenter since December 2025.

30. The offender gave an explanation for his offending as a result of him “drowning in debt” at the time due to the car loan he had been asked to take out on behalf of a workmate. He responded to an encrypted message asking him, “Do you want to make money?” and reported he felt this was the only out of escaping his debt. He expressed that he was remorseful for his criminal conduct.

31. The author took a substance abuse history, which included that the offender first consumed alcohol and prohibited drugs at age 17 and experimented with cocaine at 21 years of age. He also started gambling at age 18 and reported spending $1,000 per week on gambling up until the time of the index offence. He was assessed as a problem gambler.

32. The offender was born in 1999 and was not yet 25 years of age at the time of the index offence. The author noted that at that age, the pre-frontal cortex of the brain which controls higher cortical functions including the ability to anticipate consequences and control impulses, is not fully developed.

33. Following psychological assessment, the offender was assessed as being within a very high risk category for a multitude of problems, including alcohol abuse, substance abuse and risky behaviour. Notwithstanding a history of some childhood abuse, he was not assessed as having a wide range of PTSD symptoms, although he scored highly on negative alterations in cognition and mood. There was no history of depression and the offender was assessed as being within the low/moderate range for overall risk/needs assessment. Notwithstanding his history of substance abuse, Ms De Santa Brigida opined that at the time of the index offence his more significant problem was gambling. His history of family instability and developmental criteria did not meet the criteria for PTSD.

34. Exhibit 1.2 was a letter from the offender dated 28 July 2026 to the Court expressing his sincere remorse and accepting full responsibility for his criminal conduct. The offender also outlined his insight into the potential harm to the community by the dissemination of border controlled drugs and stated that at the time of the offence he was struggling with a serious gambling addiction and was overwhelmed by financial pressure. He stated the offending was completely out of character for him and he deeply regretted it. He further regretted the pain, stress and worry caused to his loved ones. The offender stated he had worked hard since being granted bail over two years ago and has sought help for his gambling addiction and mental health by attending Uplift, a men’s support group every week. He was also fully employed as a carpenter in the building industry and was determined to continue to make positive choices and contribute to his community in the future.

35. Exhibit 1.3 was an affidavit sworn by the offender’s mother, Mrs K Cucek in which she deposed to the offender’s family history. She deposed that the offender was exposed as a young child to significant family difficulties including his father’s struggles with mental health issues, grief, financial hardship and alcohol abuse. The family grief stemmed from her loss of twin sons prior to the offender’s birth.

36. Mrs Cucek described the offender as “a caring, respectful and hardworking person” who had never been associated with criminal behaviour. He had provided significant emotional support to his father and brother who had also experienced serious mental health challenges and struggled with alcohol.

37. Mrs Cucek deposed that she had been shocked and devastated when she heard of the offender’s arrest and has since suffered significant emotional distress, feeling overwhelming guilt and having questioned whether she had failed as a parent. She deposed that the publicity surrounding the matter had a significant impact on her mental health and wellbeing, that she had lost friendships and received hurtful comments from people she had previously considered to be close friends. These experiences left her feeling embarrassed, isolated and emotionally overwhelmed. Unrelated traumatic events affecting the offender’s brother and father had also placed enormous emotional pressure on her family.

38. Mrs Cucek deposed that the offender had consistently demonstrated genuine remorse for his offending conduct and acknowledged the seriousness of the offence and repeatedly expressed shame, embarrassment and disappointment in himself. He had however, continued to work and support himself and she opined that any further period of imprisonment will have a substantial impact on the offender and her family.

39. Exhibits 1.4 to 1.8 comprised testimonials from Mr J Cook, the offender’s employer Mr J Wildman, Mr J Uptin, Mr R Calkin and Mr H Williams. Each attested to the good character of the offender, describing him as hardworking, respectful, honest and generous in his dealings with others in the community. Through sport and the wider community, the offender had displayed outstanding character and had expressed deep remorse for his actions. He had progressed his rehabilitation, was a dedicated worker and would not reoffend.

40. Exhibits 1.9 to 1.13 comprised documents from the Department of Corrective Services. Exhibit 1.9 was a letter dated 5 August 2023 from Mr J Smith, provisional psychologist and Mr L Hassock, clinical psychologist noting that on initial classification the offender had presented with a history of anxious and depressive symptoms and had been treated in custody. He reported subjective improvements in his mental health. Exhibits 1.10 to 1.12 comprised certificates of attainment for courses completed whilst in custody and Exhibit 1.13 comprised the Department of Corrective Services case notes for his time in remand custody between 8 May 2023 and 20 December 2023. There were no negative entries and on 2 November 2023, the offender was described as “always so well-mannered and polite”.

The Crown submissions

41. The Crown relied on a detailed and thorough written outline of submissions in which it provided an overview of the offending conduct and submitted the only appropriate sentence is a significant term of full-time imprisonment with a non-parole period. The Crown noted that the offender entered a plea of not guilty in the Local Court on 5 March 2025 and was committed to the District Court for trial to commence on 2 February 2026. A plea of guilty was entered on 19 January 2026, two weeks before the trial was due to commence.

42. The Crown set out relevant sentencing principles for Commonwealth offences and the principles that apply to sentencing for drug importation offences, including offences of attempt to possess a border controlled drugs referred to in R v Nguyen; R v Pham [2010] NSWCCA 238 at [72]. Those principles are not in issue.

43. The Crown submissions encompass the relevant factors pursuant to s16A(2) of the Crimes Act. With respect to ss(2A), the Crown submitted that the nature and circumstances of the offending required consideration of the role of the offender, the nature of the enterprise, the quantity of the drug and the offender's motivation. Following the interception of the 4.5 tonne cast iron pulley in China, the extraction of 187.1kgs of pure methamphetamine from inside the pulley, the pulley was delivered on 5 May 2023 as part of a controlled operation by the AFP.

44. Prior to that delivery on 2 May 2023, the offender was engaged in encrypted communication with an unidentified person “Yougin77” to discuss whether he was interested in doing extracting work (also referred to as an “unpacking job”) involving an angle grinder for which he would be paid in cash, and he agreed to do so. The offender was involved in further communications on 5 May 2023 with an unidentified person “Nike” regarding the logistics involved, which included the cost of hiring a truck, the possibility of “a warehouse drop to another warehouse then unpack”, how much he would be paid and when he should head down to Sydney with the co-offender Martin.

45. Early in the afternoon, the offender and co-offender Martin arrived at the storage unit in a hire truck driven by the offender. The pulley had already been placed inside the storage unit and its plastic packaging had been removed by others. During the afternoon they worked with the co-offenders Mokdassi and SH in an attempt to load and move the pulley to another location. This offender drove the loaded truck from the storage unit accompanied by Martin and they drove around Wetherill Park before returning to the storage unit.

46. On the evening of 5 May 2023, the offender and Martins sourced clothes and sleeping mattresses so they could stay overnight in the truck. It is the Crown case that they did this to safeguard the large amount of drugs stored in the pulley.

47. On 6 May 2023, the offender and Martin spent several hours trying to unsuccessfully cut into the pulley using angle grinders in the company of Mokdassi and SH. The offender communicated during the morning directly with “Nike” and others via encrypted communications to workshop the difficulties he was encountering in locating the drugs hidden inside the pulley and to identify where the in cast iron pulley the drugs were hidden. At the time of his arrest, the offender was using an angle grinder to cut into the pulley and Martin was videoing the process on a mobile phone.

48. The Crown submitted that the offender engaged in conduct that was pre-meditated and planned in respect of the offence, relying on the encrypted chats on 2, 3 and 5 May 2023. The Crown further submitted that the offender's role was essential to the success of extracting the substance that he believed was drugs that were concealed in the pulley. He, with others, spent a number of hours using angle grinders to try and cut into the pulley and discussed with others, ways to get into the pulley and where the "product" was located, while keeping "Nike" updated as to progress.

49. The Crown submitted that the offender believed the consignment contained border controlled drugs based on the encrypted chats referred to above. The offender’s role was to drive the hire truck, use the angle grinder to cut into the pulley and unpack the drugs from the consignment and to communicate with "Nike" and others as to progress with that process.

50. The Crown noted that the full extent of the criminal enterprise and the hierarchical organisation of the criminal organisation was unknown. The Crown submitted that the role played by the offender was below that of Mokdassi but well above that of SH, who was significantly younger and was tasked with menial jobs. In contrast to SH, the offender was trusted with logistics and arrangements, including transporting the consignment in the truck, guarding the consignment overnight and the critical role of removing the drugs by cutting through the steel. He was in direct communication with “Nike” and spent a significant amount of time and effort attempting to extract the drugs he believed to be hidden inside the pulley.

51. The weight of the drugs involved was another highly relevant factor in determining the seriousness of the offence. The Crown submitted a commercial quantity threshold for methamphetamine is 750 grams pure weight, whereas the quantity of border controlled drugs attempted to be possessed in the present matter was 187.1kgs of pure methamphetamine which significantly exceeded by 250 times the commercial quantity threshold.

52. The Crown conceded that the evidence did not establish that the offender knew the precise amount of drugs meant to be in the pulley, nevertheless the Crown relied on the following evidence to support a finding beyond reasonable doubt that the offender believed that the quantity of drugs meant to be concealed was very large:-

53. The sophisticated methodology used to hide the drugs, welded inside an extremely heavy 4.5 tonne pulley, which required the cast iron pulley to be cut open with angle grinders;

54. That two storage units had been arranged – one to deliver the pulley to and one to transfer or drop it to;

55. The large amount of cash money they were being offered to drive the truck and extract the drugs, which was meant to be for a day or two of work;

56. The number of people involved with the consignment that they interacted with;

57. That they were followed by Mokdassi when they left the storage unit with the pulley in the truck;

58. That, once plans changed, they were required to stay at the storage unit overnight to, it can be inferred, keep watch over the pulley containing the drugs;

59. Their conversations captured by the listening device about getting into the pulley, and “how big it is”; and

60. That the offender was sent and shown photos of, and thus knew the scale and size of, the actual container meant to be inside the pulley that the drugs had been stored in – which, it can be inferred, he discussed with Martin.

61. The Crown submitted that the offender was motivated by financial gain given that he was to be paid $10,000 for the first day for being the driver, which increased when plans changed. He admitted to police that “Nike” told him he would be paid between $10,000 to $15,000 to complete the job.

62. In considering the injury, loss or damage resulting from the offence pursuant to s16A(2)(e) of the Crimes Act, the Crown submitted that the fact that the consignment was intercepted and the importation failed should carry little, if any, mitigating weight in sentencing. The Crown submitted that had such a large amount of methamphetamine been imported without detection, the impact on the community given the scourge of the illicit drug trade would have been significant. Further, there was a great deal of law enforcement time and resources taken up with the investigation of this criminal drug activity.

63. The Crown submitted that general deterrence pursuant to s16A(2)(ja) together with denunciation are significant considerations in sentencing for offences involving border controlled drugs. The Crown submitted that stern punishment is warranted because of the difficulty in detecting drug importation and possession offences and the social consequences that follow to the community. Any sentence must act as a deterrent to others from attempting to possess border controlled drugs and signal that the prospective financial gain from such activities is neutralised by the risk of severe punishment. Pursuant to s16A(2)(k) of the Crimes Act, the Crown submitted that any sentence must be of a severity to ensure that the offender is adequately punished for this offence.

64. The Crown submitted that in respect of the offender's plea of guilty pursuant to s16A(2)(g) of the Crimes Act, the plea was not entered at the first reasonable opportunity and whilst it was accepted that it had some utilitarian value because of the time and cost of a trial that had been saved, that value should be reflected by a discount in the order of 10%. The Crown submitted the plea of guilty here largely represented a recognition of the inevitable given the strength of the Crown case.

65. The Crown submitted in relation to s16A(2)(f) of the Crimes Act that the Court should be guarded in making a finding of contrition or remorse, and that the Court is not bound to accept hearsay evidence of what the offender may have said to third parties about his remorse.

66. Pursuant to s16A(2)(m) of the Crimes Act, the Crown submitted the following matters were relevant to the offender’s subjective case. He was born in 1999 and was 23 years of age at the time of the offence and is currently 26 years of age. The offender had a number of previous driving offences, however the Crown noted that “no submission will be made on his behalf as to prior good character or that this was an isolated incident of being involved in drug related offending”.

67. Under the heading “Mental condition” the Crown submitted that as a general rule, drug or alcohol addiction does not require any significant moderation of sentencing considerations such as denunciation or deterrence. Addiction, in this offender’s case, a gambling addiction, is relevant only to the extent that it throws light on the offending or that it is relevant to the offender’s subjective circumstances.

68. In relation to s16A(2)(h) of the Crimes Act, cooperation with law enforcement agencies, the Crown noted that the offender had provided investigators with the passcode to his mobile phone which meant they were able to access the encrypted messages involving himself and the co-offenders. He also made relevant admissions during a recorded interview on 5 May 2023 and the Crown conceded that his assistance to authorities should be taken into account “in his favour”.

69. The Crown also conceded that hardship to the offender’s family remains a relevant factor to be taken into account pursuant to s16A(2)(p) of the Crimes Act. The Crown submitted this was a discretionary matter for the Court subject to the overriding principle that the Court must impose a sentence of severity appropriate in all the circumstances of the offence.

70. In relation to whether the strict bail conditions on the offender amounted to quasi-custody was subject to the following principles distilled in Testici v R [2025] NSWCCA 88 at [108]:-

"(1) Whether or not conditions of bail (be they residential rehabilitation conditions or otherwise) amount to quasi-custody is a question of fact.

(2) It is for the sentencing judge to determine, as a matter of discretion, the manner in which quasi-custody should be taken into account.

(3) There is no mandatory requirement to accommodate quasi-custody by way of backdating, nor to provide reasons for not doing so.

(4) Where there is an evidentiary foundation for it being taken into account, a sentencing judge may be obliged to have regard to quasi-custody, even when not specifically asked."

63. The Crown conceded that extended home detention conditions may be taken to constitute quasi-custody, but not always. The offender’s bail conditions from 21 December 2023 included:-

64. A home detention condition between 21 December 2023 and 29 April 2024 (4 months, 9 days).

65. An electronic monitoring condition between 21 December 2023 and 24 June 2025 (6 months, 4 days).

66. A residential curfew condition from 29 April 2024 until present (23 months, 20 days).

67. A daily reporting condition between 28 December 2023 and 10 December 2025, when it was reduced to three times per week.

68. The Crown submitted that neither of the offender’s bail conditions amounted to quasi-custody. To the extent that they imposed restrictions on the offender’s liberty, there was no evidence of any particular hardship or effect on this offender.

69. The Crown accepted there had been some delay in the finalisation of this matter. The offender was arrested on 6 May 2023 and not committed to the District Court until 5 March 2025. The Crown submitted the delay in the Local Court was largely attributable to the time involved in obtaining foreign evidence from China. The subsequent delay in the District Court was attributable to the fact that the offender initially entered a plea of not guilty and the matter was listed for trial. The Crown accepted that the delay in the Local Court, and the offender’s compliance with bail conditions over a lengthy period are factors that should be taken into account on sentence.

70. The Crown submitted that the parity principle is to be applied in this matter having regard to the sentence I have previously imposed on SH. The Crown submitted that the offender was above SH in the hierarchy of the criminal organisation and the offending conduct of this offender was much more serious than that of SH. The Crown submitted that this offender:-

71. Was not merely reckless as to whether the pulley contained border controlled drugs, but believed from as early as 2 May 2023 that the job involved extracting drugs;

72. Was actively involved in planning for the extraction and critical logistics for extraction of the drugs;

73. Had specific skills that were needed to undertake the extraction;

74. Spent more time at the storage unit than SH, including sleeping in the Avis hire truck overnight to safeguard the drugs he believed were hidden inside the pulley; and

75. Was actively more involved than SH in attempts to cut into the pulley, including by working out with Mokdassi how to resolve the lack of power to the storage unit and what type of additional equipment was required.

76. The Crown went on to submit that Mokdassi was more culpable than the offender.

77. The Crown noted that the offender had spent 230 days (7 months and 16 days) in custody and accepted the sentence should be backdated to reflect the time spent in custody.

78. The Crown provided a schedule of comparative cases to provide guidance in the identification and application of relevant sentencing principles and to show a range of available sentences.

79. The Crown submissions concluded by submitting that having regard to the threshold in s17A of the Crimes Act, the maximum penalty for the offence, the importance of general deterrence, the large amount of drugs involved and the significant role played by the offender, a term of full-time imprisonment with the imposition of a non-parole period was the only appropriate penalty in this case.

80. In her oral submissions, the Crown rehearsed her submissions regarding the nature of the offending, submitting that this offender played a similar role to Martin. He was responsible for driving the vehicle and using his skills in angle grinding to access the border controlled drugs. The Crown accepted that he was towards the lower end of the hierarchy in this drug importation enterprise but submitted he was an essential and necessary participant. Given the nature of the cast iron pulley, a significant amount of angle grinding was undertaken together with much discussion between the co-offenders as to where the prohibited drugs were hidden. When arrested on 6 May 2023, the offender was in the process of using the angle grinder on the pulley.

81. The Crown referred to its supplementary submissions in which it addressed the self-reporting of the offender to Ms Santa De Brigida concerning the offender’s $50,000 debt. The Crown submitted there was limited documentary evidence of this and no adequate evidence for the Court to be satisfied on the balance of probabilities. Similarly, there was no evidence of this offender’s gambling addiction or problems.

82. The Crown submitted that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27 were not enlivened, however the offender’s background could be taken into account on the limited material that was supported by the offender’s self-reporting to the psychologist.

83. The Crown accepted that this offender had provided assistance to authorities but submitted that he had not made full and frank admissions as to his offending conduct. The Crown rehearsed its submissions regarding the offender’s plea of guilty not being entered early, just two weeks before the trial and its submissions regarding hardship to the offender’s family and whether his home detention for a period of 4 months and 9 days constituted quasi-custody.

Submissions on behalf of the offender

75. Counsel for the offender relied on a thorough and detailed written outline of submissions. She too set out relevant sentencing principles for Commonwealth drug importation offences which are not in issue and dealt with the checklist of relevant factors in s16A(2) of the Crimes Act. The offender was 23 years of age at the time of the offending and is now aged 27 years. It was submitted that he had a history of substance misuse and a gambling addiction which motivated the offending. However, in the more than three years since the offending, this offender had taken real and substantive steps to rehabilitate himself and the Court should conclude that he his now unlikely to re-offend.

76. Counsel acknowledged that the offender by his plea and on the facts clearly had knowledge that there was something within the consignment and he readily accepted that he knew it was illegal. Counsel submitted there was no evidence that he knew what the drug was or the quantity of it.

77. Counsel submitted that the offending was of short duration (less than 24 hours over 5 to 6 May 2023) and that the degree of preparation and planning was exceedingly limited. Further, the sophistication of the enterprise concerning this offender’s role was very low in that it involved an attempt to cut open the consignment which was not successful. Whilst it might have been envisaged that his role was essential as submitted by the Crown, in reality it was not at least by the time of his arrest. Counsel submitted the offender’s role was at the very bottom of the hierarchy in this importation scheme and that he received no reward despite an expectation of receiving $10,000 to $15,000. This offender told police that he participated because of his financial position, namely that he was in debt, reflecting impecuniosity as the financial motivator rather than greed. Having regard to all of the circumstances, counsel submitted that the objective seriousness of the offending was at the lower end of the range for offences of this type.

78. With respect to the matters personal to the offender pursuant to s16A(2)(m) of the Crimes Act, counsel noted the offender had very limited criminal history comprising driving offences dealt with in the Local Court and had no institutional misconduct charges whilst in custody. Various documents in Exhibit 1 informed his personal background which concerned him being born into a family that tragically had lost twins before he was born. This impacted on the breakdown of his parent’s marriage and his father misused alcohol and was violent towards his mother, the offender and his brother. His mother had deposed that the offender was “carrying out emotional burdens well beyond what would normally be expected of a child”. Unfortunately, the offender’s father continues to struggle with mental health problems and alcohol abuse and recently required rehabilitation treatment. Counsel rehearsed the offender’s employment history as set out in the report of Ms De Santa Brigida and his history of problematic gambling as well as ongoing cocaine use at the time of the offending.

79. Counsel referred to well-known authorities regarding the recognised immaturity of young offenders in the sentencing discretion, which are not in dispute. Counsel submitted that the Court should have regard to the immature functioning of this offender who was in his early 20s at the time of the index offence. It was characterised as an opportunistic act to take up an offer to be involved in an enterprise to get some quick financial payment. Counsel submitted that the Court would give less significance to the principles of general deterrence and retribution/denunciation and give more prominence to rehabilitation in the sentencing process here.

80. Counsel referred the offender’s experience of growing up in an environment of social dysfunction, deprivation and/or instability to invoke the principles in Bugmy v The Queen, noting that on assessment by Ms De Santa Brigida he scored in the very high risk category for the development of a multitude of problems linked to such childhood exposure. Whilst he had not developed PTSD, he did continue to present with clinically significant results.

81. Counsel submitted that whilst the level of dysfunction in this offender’s background did not compare with offenders from highly disadvantaged communities, it is clear that his early life experiences had some impact on his development as a young man and likely impacted his decision making in relation to the index offence. This called for a slight reduction in his moral culpability and the weight to be given to general deterrence.

82. Counsel submitted the offender had expressed contrition in his letter to the Court pursuant to s16A(2)(f) and had expressed remorse to Ms De Santa Brigida and repeatedly to his mother and the testimonial authors.

83. Counsel submitted that pursuant to s16A(2)(n) the offender had made good use of his time in custody completing several programs and engaging positively in psychological treatment. Following his release on bail, he had advanced his rehabilitation by attending a men’s support group and had retained stable employment, avoiding gambling and other problematic behaviours. It was submitted he had remained compliant with strict bail conditions and was a low/moderate risk of reoffending. Counsel submitted the offender had good prospects of rehabilitation and was unlikely to reoffend.

84. Counsel referred to the significant delay in finalisation of these proceedings, albeit caused in some part by the offender’s decision to plead not guilty. During the significant delay, the offender had demonstrated rehabilitation which required a level of leniency and flexibility in sentencing, referring to R v Todd (1982) 2 NSWLR 517; Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70. Counsel submitted that the offender’s rehabilitation will be best promoted by allowing him to serve a large proportion of his sentence in the community under supervision by the probation and parole service. The authorities made clear that the offender’s “state of uncertain suspense”, caused by delay entitled him to an added element of leniency and in this case the uncertainty about his possession had impacted upon this offender’s mental health. It was further submitted that a return to custody will inevitably disrupt the offender’s progression in rehabilitation, will have an impact upon his family and would be bear heavily upon the offender and be onerous for him.

85. Counsel submitted that the offender is entitled to a utilitarian discount on sentence of 15% as a result of his offer to plead 14 days before the trial. The Court would also take into account his cooperation with law enforcement pursuant to s16A(2)(h) by providing full and frank admissions, a detailed account of his role in the offending and the passcode to his phone which allowed police to access the encrypted messages.

86. Counsel submitted the Court would take into account the 230 days remand custody but also find that the home detention of 4 months and 10 days amounted to quasi-custody noting that he was also subject to electronic monitoring. Thereafter the offender’s movements were strictly curtailed and counsel submitted the Court would make further allowance for this time of quasi-custody. The offender submitted that he should be entitled to a discount for the strict bail conditions that applied up until April 2024.

87. Counsel also submitted that principles of parity apply to the sentence of SH. A number of matters were noted which justified disparity between this offender and SH including the discount for a plea of guilty, the fact that SH was 17 years at the time of the offending and had a more serious history of mental health conditions and childhood dysfunction which reduced his moral culpability for the offending. Counsel also noted a difference in SH’s role but submitted his role was more significant than the offender. SH was involved for a longer period, he signed for the delivery with a false name, was found to be involved in planning and coordination with others and discussed the contents of the consignment with the co-offender Mokdassi and was trusted with a key to the storage unit. It was he who opened the unit for the offender and co-offender Martin. It was submitted that all of those factors elevated SH’s role in the offending.

88. Counsel noted the similarity in roles between the offender and co-offender Martin and some differences in their subjective cases, namely that Martin was slightly younger and presented with slightly worse mental health issues but a more serious criminal history and did not cooperate with law enforcement. Ultimately it was submitted that none of these factors called for significant disparity, if any.

89. Finally, the offender accepted that no sentence other than imprisonment is warranted and that the Court should make allowance for approximately 7.5 months of pre-sentence custody and more than 4 months of quasi-custody.

90. In her oral submissions, counsel for the offender adopted submissions made by learned Senior Counsel on behalf of the co-offender Martin as to the objective seriousness of the offence in assessing the role of both co-offenders compared to that of SH. She rehearsed her submissions concerning the role of SH. In response to the Crown’s submission that the offender must have had knowledge that the pulley contained a substantial amount of border controlled drugs, counsel submitted the only evidence of that was that “Nike” was ready to pay money and provided equipment for the task of accessing the drugs.

91. In relation to the offender’s subjective case, counsel referred to Lloyd v R [2022] NSWCCA 18 at [42] and following where McCallum J (as her Honour then was) stated there was no rule that the sentencing Court must exercise caution in assessing expert witness reports which relied on histories provided by the self-reporting of offenders. Here, there was no reason to reject the opinions of Ms Santa De Brigida which were corroborated by the offender’s mother’s affidavit. It was submitted that it was neither implausible nor unlikely that at the time of the offending the offender was using cocaine and had a problematic gambling addiction. The fact of this offender’s debt was not the high point of his subjective case, however it was a relevant factor to explain his offending conduct, although not mitigatory.

92. Counsel rehearsed her submissions regarding the application of the principles in Bugmy v The Queen, the offender’s cooperation with the authorities and the utilitarian discount of 15% for his early plea of guilty. She also rehearsed her submissions regarding the youth of the offender.

93. In response to a Crown submission that having regard to the offending involving planning and preparation the weight to be given to the offender’s relative youth should not outweigh the need for retribution and deterrence, referring to Tamer v R [2020] NSWCCA 333 at [46]-[49], counsel submitted that even though the offending concerned adult-like conduct it was still open to the Court to take the offender’s youth into account particularly having regard to Ms Santa De Brigida’s opinion that this offender’s immaturity and limited executive functioning should be taken into account.

94. Counsel rehearsed her submissions regarding parity and a finding of quasi-custody which concerned two periods, namely 132 days of house arrest and 2 years and 3 months during which his liberty was curtailed by strict bail conditions.

95. Counsel noted that the JIRS statistics provided by the Crown demonstrated a large range of sentences imposed for all offences pursuant to s307.5(1) of the Criminal Code regarding both possession and attempts to possess offences. In this case the offender was labour for hire and therefore should be sentenced at the bottom of the range for this type of offending conduct.

Determination

96. In determining the objective seriousness of the offending for drug importation offences, the principles summarised by Johnson J in R v Nguyen; R v Pham at [72] include the following:-

"(l) where an offender…is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing Judge should have regard to the offender's involvement in the overall transaction for the purpose of determining the offender's degree of involvement in a drug-smuggling enterprise.

(m) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs;"

97. Although the weight of the drug that would have been imported is not the principal factor to be considered, it is a relevant factor which has increased significance when the offender is aware of the amount of drugs involved. Here, the Crown has conceded that the offender was not aware of the amount or type of drugs involved. I find that it is a matter of common sense and should be inferred that the offender and co-offenders here knew they were attempting to possess a large quantity of border controlled drugs.

98. The most relevant factor in determining the objective seriousness of the offending here is the role played by the offender. It is therefore important to identify that role with precision. I am satisfied beyond reasonable doubt that from 2 May 2023, the offender took instructions by the encrypted application to do a job which involved extracting work from a concealment using a grinder to open up something. On 3 and 5 May 2023, the offender was given further instructions with the co-offender Martin to hire a truck and to head to premises in Penrith. The offender was told that he would receive $10,000 and co-offender Martin would receive $5,000. The offender took possession of the hire truck on 5 May 2023 and thereafter drove it. The offender was, from the outset, aware that he would be required to use an angle grinder. On 5 May 2023 when he asked “Nike”, “Is this the grinder job?” and “Nike” replied, “Yep”.

99. Later that day when the offender and Martin arrived at the storage premises, they met the co-offenders SH, Palu and Mokdassi. Later that day, after the pulley had been loaded onto the truck the offender drove the truck away from the storage unit around Wetherill Park followed by a car driven by Mokdassi. They drove around Wetherill Park until they returned with the pulley to the storage unit where Mokdassi unloaded the pulley back into the storage unit. The offender and Martin then communicated again with "Nike" and received instructions to stay the night, obtain a bigger truck and they would be paid to stay overnight and guard the pulley. The offender joined in attempts with Martin and Mokdassi to start a petrol generator for the storage unit. On the morning of 6 May 2023, the offender spent a number of hours using the angle grinder to attempt to cut into the pulley during which he discussed with Martin different ways to get into it and where the "product" was located within it. The offender also updated "Nike" as to progress or lack of it.

100. During the morning of 6 May 2023, the offender communicated by encrypted messages with “Nike” advising that, “We can’t get through this thing I’ve been cutting for three hours” and “Nike” responded, “Bro everyday you’re there it’s another 5K”. Further discussions between the offender and Martin were recorded in which they discussed where the drugs were concealed within the pulley and their attempts to cut into it.

101. At the time of his arrest at 10:21 a.m. that day, the offender was still using an angle grinder to cut into the pulley. I find that the offender’s role was to drive the truck to the storage premises and away from those premises when the pulley was loaded onto the truck on 5 May 2023, and importantly to cut into the pulley with an angle grinder so as to locate the contents of the consignment concealed within it. Whilst this was an essential role for the drug operation to obtain possession of the consignment it was towards the lower end of the hierarchy in the operation in that it exposed the offender to the high risk of detection by the authorities. It still constituted serious offending, particularly as the quantity of drugs intercepted was 187.1 kilograms of pure methamphetamine. I accept that for offences pursuant to s11.1(1) and 307.5(1) of the Criminal Code 1914 (Cth), that particular commercial quantity, whilst being well over the statutory amount for a commercial quantity, could not be considered to be a very high volume of border controlled drugs, given that the range is open ended.

102. Having regard to the quantity and more importantly the role of the offender, this offending fell in the lower range of objective seriousness for such an offence. It still constituted very serious offending particularly given the overall sophistication of the importation, the level of planning and premeditation involved on the part of the organisation which was high, and this offender’s participation over a number of days for financial reward.

103. I have had regard to the following relevant factors pursuant to s16A(2) of the Crimes Act:-

s16A(2)(a) Nature and circumstances of the offending

104. The nature and circumstances of the offending are set out above. It was objectively serious offending having regard to the role of the offender as outlined above, and subject to what appears below, it was highly morally culpable offending motivated by financial gain to offset a debt accumulated as a result of his cocaine addiction and/or gambling addiction.

105. The fact that the border controlled drugs were not disseminated into the community may be a relevant factor on sentence given the potential harm to the community and the significant cost to the community in terms of law enforcement and investigation of criminal drug activity. However, it is clear that this offender had no role to play in the potential dissemination of the prohibited drugs into the community which does reduce the objective seriousness of the offending. He did, however, actively engage in the role that he was given to assist in attempting to obtain possession of the contents of the pulley.

s16A(2)(e) Injury, loss or damage caused by the offending

106. There was no injury, loss or damage caused by the offending here as a result of the consignment being intercepted. However, the potential for harm to the community was significant, given the large amount of methamphetamine involved.

s16A(2)(f) The degree to which the person has shown contrition for the offence

107. I accept that the offender is genuinely remorseful and has accepted responsibility for his criminal conduct as expressed in his letter to the Court and that he has expressed remorse to Ms De Santa Brigida and repeatedly to his mother and the authors of the testimonials tendered on his behalf.

s16A(2)(g) The offender’s plea of guilty

108. The offender pleaded not guilty in the Local Court and entered his plea of guilty to the index offence two weeks before his trial was due to commence. I find that in doing so, there was a utilitarian benefit to the community and I further note that the trial of Mokdassi took some four weeks. His plea of guilty does reflect some remorse for his offending conduct and therefore I intend to allow a 15% discount on sentence for it.

s16A(2)(j) The deterrent effect that any sentence or order under consideration may have on the person

109. Specific deterrence has a role to play in sentencing for the offences such as the index offence. The offender must understand that if he were to re-offend, he would be to subject to increasingly severe sentences being imposed on him.

s16A(2)(ja) The deterrent effect that any sentence or order under consideration may have on other persons

110. General deterrence is a significant factor in sentencing for drug importation offences. Parliament has prescribed the most severe penalty of life imprisonment for such offences and a clear message must be sent to the community that those who engage in such criminal activity for egregious profits will be severely punished by the Courts if their crimes are detected. As set out above, the dissemination of large volumes of prohibited drugs does enormous harm in the community, comes at a considerable cost to the community in terms of law enforcement and detection and promotes further criminal activity in the community.

s16A(2)(m) The offender’s subjective case

111. The offender was 23 years of age at the time of this offending and I am satisfied that he suffered some childhood disadvantage in that he was exposed to his father’s alcohol abuse and domestic violence directed towards his mother, himself and his brother. The offender had a history of drug abuse from age 17 and a problematic gambling addiction which placed him in considerable debt at the time of the index offending. His psychological assessment by Ms Santa De Brigida revealed that he was within a very high risk category from a multitude of problems including alcohol abuse, substance abuse and risk behaviour but he did not meet the criteria for any psychological diagnoses, for example, PTSD. I accept that his early life experience had some impact on his development as a young man and impacted his decision making in relation to the index offence. I find that this does not engage the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27 but does in accordance with authorities slightly reduce his moral culpability for the offending and therefore the weight to be given to general deterrence which is generally of significance for drug importation offences.

s16A(2)(n) Prospects of rehabilitation

112. I accept that the offender has advanced his rehabilitation since his release on bail by attending a men’s support group and that he has been in stable employment and thus has avoided gambling and other problematic behaviours. I find that he has good prospects of rehabilitation and is a low risk of recidivism.

s16A(2)(p) Hardship to the offender’s family

113. The offender has the prosocial support of his mother who described the offender as “a caring, respectful and hardworking person” who had never been associated with criminal behaviour. He had also provided significant emotional support to his father and brother who both experienced serious mental health challenges. Whilst there is no evidence that the inevitable sentence of imprisonment will have any financial impact on the family, I accept that there will be some impact without his emotional support.

114. I have had regard to the maximum penalty of life imprisonment and/or a substantial fine as a guidepost in the sentencing process. This is the most severe penalty imposed by Parliament and indicates the seriousness with which the Parliament regards such criminal conduct and thus remains a guidepost in the sentencing process.

115. The fact the offender was 23 years of age at the time of the offending must be taken into account on sentence. The Courts have long recognised that young people and young men in particular do not mature until their mid-twenties. It is well established that in sentencing young offenders emphasis must be given to rehabilitation rather than general deterrence, denunciation and retribution - see KT v R (2008) A Crim R 112; [2008] NSWCCA 51 per McClellan CJ at CL. In BP v R (2010) 201 A Crim R 372; [2010] NSWCCA 159 Hodgson JA, having referred to KT v R, said as follows:-

"4 First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36].

5 Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a 'child offender' of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.

6 Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. …"

116. The relevant principles were summarised by Hamill J in Sarhene v R [2022] NSWCCA 79 and applied recently in Shehade v R [2026] NSWCCA 107. There is no doubt that the youth of an offender is a most significant factor in assessing what sentence should be imposed and considerations of general deterrence may be of less significance as emphasis should be placed on the need to provide an opportunity for rehabilitation. Youth is a significant consideration on sentence because of its potential relevance to moral culpability and therefore its implications concerning the prospects of rehabilitation, the significance of general and specific deterrence and the moderation of retribution as well as hardship in custody. I have therefore taken into account this offender's youth in the sentencing synthesis.

117. I have taken into account that the offender was on strict bail conditions, including home detention for a period of four months and 9 days, an electronic monitoring condition for a period of 6 months and 4 days, a residential curfew condition for over 2 years and a daily reporting condition for almost 2 years which was subsequently reduced to three times per week. Recently, the Court of Criminal Appeal in YA v R [2026] NSWCCA 38, having reviewed the authorities including Testici v R [2025] NSWCCA 88 set out the following principles to be applied in exercising the Court's discretion to reduce a sentence on the basis of quasi-custody:-

“(1) The decision as to whether an offender’s bail conditions are so “harsh or restrictive” that they may require a conclusion that at least some part of the period on bail should be treated as the notional equivalent of custody is reviewable only on a House v The King (1936) 55 CLR 499; [1936] HCA 40 basis.

(2) Whether bail conditions amount to “quasi-custody” is a question of fact. The test is whether the finding was “reasonably open”.

(3) Even if the sentencing judge is satisfied that the bail conditions amount to quasi-custody, there is no mandatory requirement for a sentencing judge to reflect that finding by way of backdating, and

(4) Factual findings in other decisions do not constitute binding authority.”

(Authorities and citations omitted)

118. I am satisfied here that the strict bail conditions set out above do warrant a finding that they amount to quasi-custody and I intend to make an allowance of approximately 2 months to be taken into account on sentence. Taking into account the 230 days this offender has spent in custody on remand, I intend to backdate any sentence imposed by a total of 290 days.

119. The Crown has accepted that there was some delay involved in prosecuting the offender and co-offenders as a result of a delay in obtaining evidentiary material from China regarding the interception of the border controlled drugs. Thereafter however, the offender pleaded not guilty in the Local Court and entered his plea of guilty two weeks prior to the commencement of the trial in this Court. The relevant principles to be applied in Elchiekh v R [2016] NSWCCA 225 are as follows:-

"56 Delay may be taken into account in favour of an offender: firstly, when it relates to the uncertain suspense in which a person may be left; secondly, when there is demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, because sentencing for a stale crime calls for a measure of understanding and flexibility of approach: R v Todd [1982] 2 NSWLR 517 ("Todd"); R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 at [16]. Where delay is relied upon as a mitigating factor, the onus is upon the offender on the balance of probabilities: Sabra v R [2015] NSWCCA 38 at [47]."

120. I do not find here that the offender was in a state of uncertainty or suspense or that he has been prosecuted for a stale crime. I have therefore taken the initial delay in prosecuting the matter into account, but not to a significant degree.

121. The principles of parity were recently reviewed by the Court of Criminal Appeal in Bridge v R [2026] NSWCCA 40 where the Court adopted the summary of principles in Tasdik v R [2024] NSWCCA 195. The principle is one of equality in sentencing for like offences so there is no unjustifiable disparity between sentences imposed for similar criminal conduct. The application of the principle is concerned with considerations of substance rather than form and applies in NSW by virtue of s21A of the CSPA. Parity requires different outcomes in cases that are different in some relevant respect, such as different degrees of culpability, differences in age, background, criminal history or the role played in the relevant criminal conduct or enterprise.

122. The offender here has contended that principles of parity should be applied on the basis that any sentence imposed should be similar to that of SH. He submitted that his role was not markedly different from that of SH who was a trusted member of the operation given that he had a key to open the storage unit premises on their return to that unit after they had driven around Wetherill Park. I do not accept that this offender's role could be regarded as the same as that of SH. SH was 17 years at the time of the offence and 19 years old when sentenced. He had the benefit of a 25% utilitarian discount on sentence and I found that he was instructed at all times by Mokdassi and having regard to all of his conduct he was the lowest rung of the criminal enterprise and had acted recklessly. Whilst the agreed facts outlined that he opened the pedestrian gate on their return to the storage unit there was no evidence that he was entrusted with a key so as to elevate his role. SH had no prior criminal offences, had spent 14 days in custody and was on strict bail conditions for a period of 2 years. In that case the Crown had conceded that both Bugmy and De La Rosa applied, as did the provisions of the Children (Criminal Proceedings) Act 1987 (NSW) which stipulated that rehabilitation was a paramount consideration in the sentencing synthesis. He was sentenced to a term of imprisonment for a period of 3 years, to be released immediately on conditions that he be of good behaviour for a period of 4 years.

123. The co-offender Martin was 21 years of age at the time of the offending and his role was on a low rung of the hierarchical structure of the drug importation enterprise, but I held that it was above that of SH. He was involved in the index offending over a period of 2 days with the offender including sleeping overnight in the hired truck so as to guard the pulley. In sentencing Martin, I took into account the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 to reduce his moral culpability for the offending and thereby diminish the significance of general deterrence, specific deterrence and denunciation in the sentencing synthesis. Martin had a prior conviction for armed robbery and was entitled to a 15% utilitarian discount on sentence. He was sentenced to a term of imprisonment of 5 years with a non-parole period of 2 years and 3 months which was backdated to take into account his time in remand custody and quasi-custody.

124. The offender was 23 years of age at the time of the offending and his role was also on a low rung of the hierarchical structure of the drug importation enterprise. His role was above that of SH in that he was responsible for driving the truck that was hired for the purpose of moving the pulley which is what occurred on 5 May 2023. He was also actively engaged in using an angle grinder in an attempt to open the pulley so as to access the consignment of what was believed to be drugs. In addition, the offender and Martin slept overnight in the truck so as to guard the pulley and were engaged in exploring ways to extract the contents of it. At the time of his arrest he was using the angle grinder to cut into the pulley.

125. An important distinction from the co-offender Martin is that this offender had no relevant criminal record. He too is entitled to a 15% utilitarian discount for his plea of guilty and his moral culpability is reduced somewhat as a result of childhood disadvantage. In balancing all of these matters, I find there should be no disparity in sentencing this offender from the sentence imposed on Martin.

126. Applying principles of parity and proportionality, I intend to sentence this offender to a term of imprisonment of 5 years. Having regard to the need to further progress his rehabilitation, I intend to impose a non-parole period of 2 years and 3 months to be backdated by 290 days to take into account his remand custody and quasi-custody as outlined above.

ORDERS

127. You are convicted of the offence of attempt to possess a commercial quantity of an unlawfully imported border controlled drug pursuant to ss11.1 and 307.5 of the Criminal Code 1995 (Cth).

128. I sentence you to a term of imprisonment of 5 years to commence on 2 December 2025.

129. I impose a non-parole period of 2 years and 3 months to commence on 2 December 2025 and terminate on 1 March 2028. The balance of term will be a period of 2 years and 9 months to commence on 2 March 2028 and terminate on 1 December 2030.

130. Your parole eligibility date will be 1 March 2028.

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