R v Daramy

Category: Sentence

Parties: Pius Abass Daramy (the offender)
Commonwealth Director of Public Prosecutions (the Crown)

Representation: Counsel:
Mr S Pararajasingham SC (the offender)
Mr R Baldeo (the Crown)
Solicitors:
Mr J Clements (the offender)
Ms T Neumann-Murphy (the Crown)

File Number(s): 2022/00191328

Publication restriction: Nil.

REMARKS ON SENTENCE

1. On 16 September 2025 the offender pleaded not guilty upon arraignment to 12 Counts on the Indictment. On 25 September 2025 the jury brought in a verdict of not guilty to Count 3 on the Indictment but verdicts of guilty to the following counts on the Indictment:-

2. Between about 24 November 2021 and 8 December 2021 at Sydney in the State of New South Wales and elsewhere, did aid, abet, counsel or procure the commission of an offence by another person, namely the other person did import a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a marketable quantity. Contrary to subsections 307.2(1) and 11.2(1) of the Criminal Code (Cth).

3. Between about 26 November 2021 and 8 December 2021 at Sydney in the State of New South Wales and elsewhere, did aid, abet, counsel or procure the commission of an offence by another person, namely the other person did import a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity being a marketable quantity.

Contrary to subsections 307.2(1) and 11.2(1) of the Criminal Code (Cth).

4. Between about 11 December 2021 and 20 December 2021 at Sydney in the State of New South Wales and elsewhere, did aid, abet, counsel or procure the commission of an offence by another person, namely the other person did import a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a marketable quantity.

Contrary to subsections 307.2(1) and 11.2(1) of the Criminal Code (Cth).

5. Between about 24 December 2021 and 4 January 2022 at Sydney in the State of New South Wales and elsewhere, did aid, abet, counsel or procure the commission of an offence by another person, namely the other person did import a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity being a marketable quantity.

Contrary to subsections 307.2(1) and 11.2(1) of the Criminal Code (Cth).

6. Between about 17 January 2022 and 10 February 2022 at Sydney in the State of New South Wales and elsewhere, did aid, abet, counsel or procure the commission of an offence by another person, namely the other person did import a substance, the substance being a border controlled drug. namely cocaine, and the quantity being a marketable quantity.

Contrary to subsections 307.2(1) and 11.2(1) of the Criminal Code (Cth).

7. Between about 17 January 2022 and 10 February 2022 at Sydney in the State of New South Wales and elsewhere, did aid, abet, counsel or procure the commission of an offence by another person, namely the other person did import a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity being a commercial quantity.

Contrary to subsections 307.1(1) and 11.2(1) of the Criminal Code (Cth).

8. Between about 17 January 2022 and 10 February 2022 at Sydney in the State of New South Wales and elsewhere, did aid, abet, counsel or procure the commission of an offence by another person, namely the other person did import a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity being a commercial quantity.

Contrary to subsections 307.1(1) and 11.2(1) of the Criminal Code (Cth).

9. Between about 17 January and 18 February 2022 at Sydney in the State of New South Wales and elsewhere, did aid, abet, counsel or procure the commission of an offence by another person, namely the other person did import a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity being a marketable quantity.

Contrary to subsections 307.2( 1) and 11.2(1) of the Criminal Code (Cth).

10. Between about 13 September 2021 and 11 October 2021 at Sydney in the State of New South Wales and elsewhere, did aid, abet, counsel or procure the commission of an offence by another person, namely the other person did import a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity being a marketable quantity.

Contrary to subsections 307.2(1) and 11.2( 1) of the Criminal Code (Cth).

11. Between about 25 October 2021 and 26 October 2021 at Sydney in the State of New South Wales and elsewhere, 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.

Contrary to subsections 307.5(1) and 11.1(1) of the Criminal Code (Cth).

12. Between about 24 May 2022 and 27 June 2022 at Sydney in the State of New South Wales and elsewhere, did aid, abet, counsel or procure the commission of an offence by another person, namely the other person did import a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity being a marketable quantity.

Contrary to subsections 307.2(1) and 11.2(1) of the Criminal Code (Cth).

2. The maximum penalty prescribed in respect of Counts 1, 2, 4, 5, 6, 9, 10 and 12 is 25 years imprisonment and/or a fine of 5,000 penalty units ($1,050,000). The maximum penalty for Counts 7, 8 and 11 is life imprisonment and/or a fine of 7,500 penalty units ($1,575,000).

3. The sentence hearing took place on 20 March 2026. The Commonwealth Crown Sentence Summary became Exhibit A. The covering sheet noted that the offender had spent two periods in remand custody, the first between 1 July 2022 and 30 March 2023 when he was granted Supreme Court bail. He was returned to custody on 25 September 2025 following the jury verdicts. It is common ground between the parties that if a term of imprisonment is to be imposed, it is to commence on 24 December 2024 to take into account the time served.

4. Exhibit A.2 comprised a statement of proposed facts prepared by the Crown which was agreed to by learned Senior Counsel for the offender. That document is referred to below. Exhibit A.3 comprised a NSW Police Force court history of convictions which confirmed the offender had no prior convictions. Exhibit A.4 comprised the offender’s custodial history which disclosed no custodial infractions and Exhibit A.5 was a bail chronology.

5. The offender relied on a tender bundle comprising ten documents made up as follows:-

Exhibit 1.1 – Report of Mr Sam Borenstein dated 27 January 2026

Exhibit 1.2 – Affidavit of Fanta Daramy dated 12 March 2026

Exhibit 1.3 – Pius Daramy Inmate Profile Document dated 12 February 2026

Exhibit 1.4 – Pius Daramy NSWDOC Case Note Report dated 12 February 2026

Exhibit 1.5 – Character reference from Scott Iverach dated 12 March 2026

Exhibit 1.6 – Character reference from Pastor (Dr) Theophilus Ajadi dated 27 February 2026

Exhibit 1.7 – Character reference from Alpha Barrie dated 22 February 2026

Exhibit 1.8 – Character reference from Vandy Momoh Kamara dated 23 February 2026

Exhibit 1.9 – Character reference from Murray-Jo Kamara dated 26 February 2026

Exhibit 1.10 – Character reference from David Adekoya dated 18 February 2026

6. The offender also relied on a letter from his wife, Marie Kabbay dated 17 March 2026 which became Exhibit 2. The evidence relied on by the offender is summarised below.

7. I am mindful that any findings of facts made against an offender by a sentencing judge must be arrived at beyond reasonable doubt and that any reasonable doubt must be resolved in favour of the offender. By contrast, the offender bears the onus of proving on the balance of probabilities facts which are to be submitted in his favour – see The Queen v Olbrich (1999) 199 CLR 270; Savvas v The Queen (1995) 183 CLR 1. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 the plurality said at [64]:-

“Where, therefore, the prosecution fails to prove a fact or circumstance which is adverse to the offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known.”

8. The facts to be derived from the jury verdicts are as follows. On 30 June 2022 the offender was arrested while sitting in the driver’s seat of his vehicle. He was the sole occupant of the vehicle and inside a black shoulder bag on the front passenger seat was a mobile phone handset with an IMEI number ending in 900 (hereinafter referred to as “Handset 900”). At the time of his arrest the offender was using mobile phone number ending in 462 in that handset. Relevant WhatsApp messages were also located on this handset.

9. Also in his possession was another mobile phone handset with IMEI number ending in 210 (“Handset 210”) which the offender told investigating police was his own personal mobile phone. A number of matching contacts were found between the two handsets. During the offending period the offender used mobile phone number ending in 355 on this handset. The mobile service number was subscribed in his name and in his email address, namely “pdaramy444@gmail.com”. Lawfully intercepted telephone calls and text messages from this service number revealed that the offender was a supplier of prohibited drugs.

10. Another handset bearing IMEI ending in 66230 (“Handset – 230”) was also used by the offender during the offending period but was not located during the investigation. A mobile phone number ending in 287 used in this handset was relevant to advising consignee contact numbers and other relevant information in respect of Counts 1, 2, 4, 5, 6 and 10.

11. In its proposed facts document (Exhibit A.2), the Crown set out the under heading “Conduct during the offending period”, the conduct it proposed as facts to be derived from the jury verdicts in respect of each of the counts for which the offender is to be sentenced. That summary comprised 77 paragraphs of detailed evidence, with which the offender agreed. A copy of the Crown proposed findings of fact is annexed to these remarks. What follows are my findings of the facts to be derived from the jury verdicts on which the offender is to be sentenced.

Count 1 – Aid and abet the importation of a marketable quantity of a border controlled drug between about 24 November 2021 and 8 December 2021

12. From 6 November 2021, the offender exchanged a series of messages of WhatsApp with a contact named “Help Man”. The messages concerned “spring water” which was a slang term for cocaine. On 18 November 2021, Help Man sent the offender an audio message via WhatsApp in which he requested the offender to call him as Help Man needed to know how to “Bring out this matter, when it comes, like in plastic”.

13. On 24 November 2021, Help Man sent the offender another audio message via WhatsApp requesting that he provide him with an “akala”, which was a slang term for an address. On the same day, the offender sent a WhatsApp message to him advising delivery to Paul Dekorah, 101 Henrey Street, Guildford together with a phone number as a contact. The messages included discussions as to the quality and colour of the cocaine to be supplied.

14. Further messaging took place on 2 December 2021 and 3 December 2021 concerning the consignment and on 8 December 2021, a consignment originating from the Bahamas was seized by the Australian Border Force (ABF) in Sydney with the same consignment details advised by the offender on 24 November 2021.

15. When examined the consignment concealed white powder inside the walls of two plastic mugs. Analysis confirmed the white powder was cocaine with a net weight of 414.7g and a purity of 63%, equating to a pure weight of 261.2g. The offender had used the telephone number on the consignment note in Handset 230 during the offending period.

Count 2 – Aid and abet the importation of a marketable quantity of a border controlled drug between about 26 November 2021 and 8 December 2021

16. On 26 November 2021, in response to a request for another “akala”, the offender forwarded to the contact named “Ma G E” the following message:-

PETER KENNY

101 HENREY STREET

Guildford NSW 2161

Phone: +61450626993

17. Further messaging on 1 December 2021, included the offender advising Ma G E that he had checked online and it was an “unsuccessful delivery”.

18. On 8 December 2021, a consignment originating from Tanzania (HAWB…8384) was seized by the ABF in Sydney with the same consignment details and phone number. It was found to contain three shower curtains wrapped in plastic packaging, with a white cloudy crystal substance concealed within a piece of cardboard inside each of the packages. A forensic analysis confirmed that the substance was methamphetamine, with a net weight of 193.4g and a purity of 78.5%, equating to a pure weight of 151.8g. The offender had used the phone number on the consignment ending in 993 in Handset 230 during the offending period.

Count 4 – Aid and abet the importation of a marketable quantity of a border controlled drug between about 11 December 2021 and 20 December 2021

19. On 19 November 2021, a contact named “Arinz Friend” contacted the offender via WhatsApp enquiring in relation to three prohibited drugs being, “MDMA crystal, brown and orange color, Speed Amphetamine and Katamine shade” (sic). There followed a number of text messages in which the price of ketamine and MDMA was discussed. On 11 December 2021, a further conversation took place on WhatsApp in which the offender provided the following details:-

John Moore

50 O’Neill STREET GUILDFORD

NSW 2161

Phone: +61450626993

20. On 20 December 2021, a consignment (HAWB…6275) originating from Belgium was seized by the ABF and contained the same consignee details and phone number. The consignment was a cardboard box containing Christmas related goods in which were located four duct-taped packets each containing a fine white powder which upon forensic analysis was confirmed to be cocaine with a net weight of 487.0g and a purity of 57.5%, equating to a pure weight of 280.0g. The phone number on the consignment ending in 993 was used by the offender in Handset 230 during the offending period.

Count 5 - Aid and abet the importation of a marketable quantity of a border controlled drug between about 24 December 2021 and 4 January 2022

21. On 24 December 2021, a consignment (HAWB…0472) originating from Kenya was seized by the ABF in Sydney. It had the following consignee details:-

Name: Mark Dudu

Address: 3 Kirrang Avenue Villawood NSW 2163

Phone: 0433 812 166

22. The consignment was found to contain packets of hair extensions with concealed packets containing a cloudy crystal substance. Following forensic analysis, it was confirmed to be methamphetamine with a net weight of 347.2g and a purity of 79%, equating to a pure weight of 274.2g.

23. On 29 December 2021, the offender had a lengthy conversation via WhatsApp with a contact named “Mazzi” concerning “akalas”, in which the offender requested “Please very good sizes and high quality. I trust u on that”, to which Mazzi replied, “It won’t take me more than 2 days to arrange and move… Same source, same chef”. Mazzi then forwarded a number of details including names, street addresses and phone numbers to the offender. After speaking to the offender on a WhatsApp phone call, Mazzi then sent three images to the offender one of which was a photo of a shipment receipt for a consignment with the same consignment number ending in 0472 with the consignor listed as “Jamila Njoki Shaaban”.

Count 6 - Aid and abet the importation of a marketable quantity of a border controlled drug between about 17 January 2022 and 10 February 2022

24. On 17 Janaury 2022, WhatsApp messages were exchanged with Mazzi, the second of which sent by the offender contained the following details:-

Mark Kenney

1 Gozo Road

GREYSTANES NSW 2145

Phone: +61450374853

25. On 10 February 2022, a consignment originating from India (HAWB…8153) was seized by the ABF in Sydney with the same consignee details and phone number. The consignment was found to have two plastic packets with white cloudy crystals sewn into the fabric which were forensically analysed and confirmed as methamphetamine with a net weight of 299.7g and a purity of 80%, equating to a pure weight of 239.7g. The offender used the number associated with the consignment ending in 4853 in Handset 230 during the offending period.

Count 7 - Aid and abet the importation of a commercial quantity of a border controlled drug between about 17 January 2022 and 10 February 2022

26. On 17 January 2022, the offender sent Mazzi, via WhatsApp, two messages one of which contained the following details:-

Thomas Killey

5 Sybil STREET

Guildford west

NSW 2161

PHONE: +61450217627

27. On 8 February 2022, the offender using Handset 900 had a WhatsApp conversation with a contact named “King Duke New”, in which the offender forwarded the same consignee details.

28. On 10 February 2022, a consignment originating from India (HAWB…3635) was seized by the ABF in Sydney and found to have the same consignee details and phone number. The consignment had a second label on which the phone number ending in 4853 appeared. The offender used that number in Handset 230 during the offending period.

29. The consignment contained two clear vacuum sealed packs with a white crystalline substance sewn into the fabric which following forensic analysis, was confirmed to be methamphetamine with a net weight of 1031.4g and a purity of 80%, equating to a pure weight of 825.12g of methamphetamine.

Count 8 - Aid and abet the importation of a commercial quantity of a border controlled drug between about 17 January 2022 and 10 February 2022

30. On 10 February 2022, a consignment from India (HAWB…3742) was seized by ABF and found to have the following consignee details:-

Name: Thomas Killey

Address: 5 Sybil Street

Guildford West NSW 2161

Phone: 0450 217 627

31. The offender provided these details to Mazzi on 17 January 2022. The consignment was found to contain three clear vacuum sealed packs with a white crystalline substance, which following forensic analysis was confirmed to be methamphetamine, with a net weight of 1328.5g and a purity of 80%, equating to a pure weight of 1062.8g of methamphetamine.

Count 9 – Aid and abet the importation of a marketable quantity of a border controlled drug between about 17 January 2022 and 18 February 2022

32. On 18 February 2022, a consignment originating from India (HAWB…7780) was seized by the ABF in Sydney. It had the same consignee details identical to Counts 7 and 8, which had been provided by the offender to Mazzi on 17 January 2022.

33. The consignment was found to contain three clear vacuum sealed packs with a white crystalline substance sewn into the fabric. Following forensic analysis, this was confirmed to be methamphetamine with a net weight of 592.6g and a purity of 80%, equating to a pure weight of 474.08g of methamphetamine.

Count 10 – Aid and abet the importation of a marketable quantity of a border controlled drug between about 13 September 2021 and 11 October 2021

34. On 13 September 2021, the offender had a number of WhatsApp phone call conversations with a contact named “Uche Friend” in which he provided the following details to the contact:-

John Willis

18 HILWA STREET VILLAWOOD

Nsw 2163

Phone - +61426388287

35. The conversation included the offender asking, “How many you doing?” and also stating “Please quality matters”.

36. On 11 October 2021, a consignment originating from South Africa (HAWB…4262) was seized by the ABF in Sydney containing the following consignee details:-

Name: John Williams

Company: Younger LLC

Address: 18 Hilwa Street Villawood Australia 2163

Phone: 0426 388 287

37. The consignment contained plastic packaging wrapped in brown masking tape containing a white cloudy crystal substance. Forensic analysis confirmed the substance was methamphetamine with a net weight of 991.5g and a purity of 72.5%, equating to a pure weight of 718.8g. The offender used the phone number associated, namely ending in 8287 in Handset 230 during the offending period.

Count 11 – Attempt to possess a commercial quantity of a controlled drug between about 25 October 2021 and 26 October 2021

38. On 24 October 2021, a consignment originating from Zambia (HAWB…4736) was seized by ABF in Sydney. It contained the following consignee details:-

Name: Alex Odion

Address: 45 Vernon Street Greystanes NSW 2145

Phone: 0468 602 349

39. The consignment was found to contain a white cloudy crystal substance wrapped in brown masking tape concealed inside an automotive part. Forensic analysis confirmed the substance was methamphetamine with a net weight of 1417.7g and a purity of 80%, equating to a pure weight of 1134.1g of methamphetamine.

40. On 25 October 2021, the offender received a series of WhatsApp messages from a contact named “Olu”, containing three images and stating the same consignee details and phone number.

41. On 26 October 2021, the offender called DHL and provided the consignment number and identified himself as “Alex Odion” from 45 Vernon Street, Greystanes. The offender told the customer service representative that he had moved house and needed to update his address, and he requested that the consignment be redirected to 18 Hilwa Street, Villawood, the same street where he lived. He did that so the consignment could be re-delivered to his home address.

Count 12 – Aid and abet the importation of a marketable quantity of a border controlled drug between about 24 May 2022 and 27 June 2022

42. On 23 May 2022, the offender received a WhatsApp message from Ma G E stating “Need akala again” and on 24 May 2022 the offender sent the following details:-

Daniel Barrett

49 Daisy street

GREYSTANES

NSW 2145

Phone=+61410728968

43. On 27 June 2022, a consignment originating from India (HAWB…54IN) was seized by ABF in Sydney with the same consignee details and phone number.

44. The consignment was found to contain two gold cardboard boxes and concealed within the walls of each box were two plastic packets containing a white cloudy crystal. Forensic analysis confirmed the substance was methamphetamine with a net weight of 293.93g and a purity of 78.5%, equating to a pure weight of 230.7g.

45. Digital analysis of Handset 900 used by the offender at the time of the offending, located a photo of a handwritten note with the consignee name, address and phone number and a screenshot of a real estate listing for the consignee address, which was listed for lease.

The offender’s evidence

46. The offender relied on a bundle of documents which became Exhibit 1, comprising Exhibit 1.1 to 1.10. Exhibit 1.1 was a report from Mr Sam Borenstein, psychologist dated 27 January 2026. Mr Borenstein had interviewed the offender via audio-visual link on the same day. He noted the verdicts but did not take a version of events relating to the offending from the offender.

47. Mr Borenstein took a history that the offender had been suffering with chronic and severe symptoms of Post-Traumatic Stress Disorder (PTSD) over many years. The offender was raised in Sierra Leone. At age 10, when rebel forces overtook the country, his family were held captive because his father was a police officer. He witnessed his mother being raped and both parents being shot soon after the civil war in that country was declared in 1990. The offender was then forced to train as a child soldier and introduced to cannabis and cocaine by the rebels at the age of 10. When the country was liberated, he was taken to a UN camp in Guinea and eventually arrived in Australia together with his siblings in 2006. The author took a history that three months later the offender was using cocaine daily, together with cannabis and a gram of ice or methylamphetamine every two days. During the period of the offending he had consumed drugs on a regular basis.

48. Prior to his arrest, and whilst on bail awaiting trial, the offender had consulted a psychologist and had been diagnosed with chronic and severe PTSD.

49. The author took a history that the offender married in 2010 and has a daughter aged 9 years. The offender studied English following his arrival in Australia and had worked as a storeman for ten years, with Aldi for three years and for about four years prior to his arrest was working in disability primarily with clients who have dementia. He held a Certificate IV in Community Services via Bankstown TAFE.

50. Mr Borenstein took a detailed history of the offender’s recollection of the offender’s “horrific and traumatic memories” of being held captive by the rebels as a child. The offender and his siblings were saved when British troops intervened, following which they spent two years in a UN camp in Guinea with no education or work. During that time he was unable to access prohibited drugs but continued to experience symptoms of PTSD including flashbacks, intrusive recollections, nightmares, sleep disturbance and a sense of foreshortened future. He explained his use of drugs following his arrival in Australia as helping to him to cope with PTSD.

51. Following clinical testing, the offender was found to be demonstrating extremely severe symptoms of depression, anxiety and stress and as suffering with chronic and severe symptoms of PTSD.

52. Mr Borenstein opined that the offender had developed a substance use disorder in an attempt to self-medicate against chronic and severe PTSD during the period of the offending. The offender had reported a deterioration in his mental health in prison, which was a trigger and a reminder of his imprisonment in Sierra Leone. He presented as highly motivated to engage in psychiatric and psychological treatments to address his chronic and severe PTSD symptoms and substance use disorder which was currently in remission due to his incarceration.

53. Mr Borenstein set out a treatment plan to facilitate the offender’s rehabilitation and reduce his risk of recidivism.

54. Exhibit 1.2 was the affidavit of Fanta Daramy sworn on 12 March 2026 deposing to the trauma suffered by the offender and his siblings during the civil war in Sierra Leone and confirming the history provided by the offender.

55. Exhibit 1.3 was a Corrective Services Inmate Profile document noting the offender’s custodial movements.

56. Exhibit 1.4 comprised Department of Corrective Services Case Note Reports during the offender’s two periods of incarceration which confirm a strong work ethic, his polite nature and his diagnosis as suffering from PTSD and substance use disorder for which he had been receiving psychological treatment prior to his index offending.

57. Exhibit 1.5 was a letter from Mr S Iverach dated 12 March 2026. Mr Iverach is a Correctional Officer who had known the offender since his arrival at the Mid-North Coast Correctional Centre. He wrote that the offender consistently demonstrated a strong work ethic, reliability and a willingness to take responsibility. He was respectful towards both staff and fellow inmates and his attitude stood out in the prison environment. Mr Iverach was of the opinion that the offender’s behaviour reflected a genuine effort to use his time in custody constructively and to make positive changes to rehabilitate himself.

58. Exhibit 1.6 was a letter from Pastor Ajadi dated 27 February 2026. He described the offender as someone who had shown kindness and selflessness in his dealings with others and as a generous individual. He described the offender as being embarrassed by his conduct and as willing and ready to turn over a new leaf in life. He also attested to the strong bond the offender has with his daughter and that his incarceration was affecting her mentally and emotionally.

59. Exhibit 1.7 was a letter from Alpha Barrie dated 22 February 2026. The author confirmed the offender’s abduction by the rebels in Sierra Leone which took a toll on him mentally. He had known the offender for a period of over 25 years and described his offending as “totally out of character”, and something he sincerely and completely regrets. The offender was described as “a friend with integrity, honesty and a dedicated individual to his family”, and a community minded individual.

60. Exhibit 1.8 was a letter from Vandy Momoh Kamara dated 23 February 2026. Mr Kamara had known the offender for 25 years having grown up with the offender in Sierra Leone and reunited with him in Australia. He also described the offending as out of character for this offender and something which the offender sincerely and completely regrets. He described the offender as “a very courteous, respectful and reliable man”, and a man of “integrity and honesty” and a community minded individual.

61. Exhibit 1.9 was a letter from Murray-Jo Kamara dated 26 February 2026 on the letterhead of the Sierra Leone Youth Group NSW. He stated that the offender was a community mentor and had been actively partaking in community activities following his arrival as a refugee from Sierra Leone. He had been an active member of the community soccer team and had been actively involved with and supported other refugees. The offender was described as “a pillar of support for his family and friends in the community”. The author described the offender as “a reliable, conscientious and hard-working soccer player who was trusted and relied on” and as a “role model who will be an asset to our community and Australia as a whole”.

62. Exhibit 1.10 was a letter from David Adekoya dated 18 February 2026. Mr Adekoya had known the offender for three years as a family friend and community member. He described the offender as “a person of integrity, reliability, honesty and strong work ethic who put his love for family at forefront of anything he does”. The author referred to the offender’s service as an advocate of persons living with disability. He also attested to the impact of the offender’s incarceration on his employment and the adverse effect on his family. He opined that the offender suffered from unresolved trauma for which he required mental health assessment and as a person who conducts himself with “respect, sincerity and accountability”.

63. Exhibit 2 was a letter from the offender’s wife, Marie Kabbay dated 17 March 2026. She stated that since she had known the offender since 2007, he had consistently shown himself to be “a man of integrity, compassion and strong moral character. He has always been an intelligent, thoughtful and deeply family oriented person”. She described the offending as entirely out of character for the man she had known for nearly two decades and stated that he sincerely regrets his conduct and fully understands the gravity of the situation.

64. Ms Kabbay detailed the daily care the offender provided for their daughter and described him as “the emotional anchor of our home”. Since his incarceration, she described life as becoming extremely difficult for both their daughter and her as the offender was the primary person responsible for managing the household financial obligations. More importantly, she described the emotional impact on their daughter as being “profound”. In addition, her own mental health had been seriously affected by his absence. She described the offender as “a good man who has made a serious mistake, influenced in part by the difficult circumstances and traumatic experiences he endured while growing up during the war and crisis in Sierra Leone”. She asked the Court to take into account “his long-standing character and dedication as a father and husband and the positive role he had played in their lives”.

The Crown sentence submissions

65. The Crown relied on a detailed written outline of submissions in which it set out the offences and maximum penalties. The Crown then set out well-established principles for sentencing for Federal offences pursuant to Part 1B of the Crimes Act 1914 (Cth) (“the Crimes Act”).

66. The Crown noted that all of the offences but for Count 11, concerned the offender aiding and abetting another person in the commission of the offence of importation of border controlled drugs. He did so by providing consignee details which were utilised by the importers to send border controlled drugs into Australia. Count 11 concerned the offender’s attempt to possess a commercial quantity of methamphetamine which had been unlawfully imported into Australia.

67. In assessing the objective seriousness of the offending, the Crown submitted that the Court should have regard to the actual role played by the offender and the particular activities undertaken by him in performing that role. With respect to the offence in Count 11, the Crown submitted that the offence can be attended by a wide range of moral culpability, so that the circumstances in which he attempted to come into possession of the drugs, and what it was that the offender intended to do with the drug are relevant to determining the degree of moral culpability attached to the act of attempted possession itself. The Crown submitted that regard should be had to the offender’s involvement in the overall transaction for the purpose of determining his degree of involvement in a drug smuggling enterprise, relying on El-Ghourani v R [2009] NSWCCA 140 at [33]-[37].

68. The Crown submitted the offender was a trusted and essential member of a well-planned criminal enterprise engaged in the importation of border controlled drugs into Australia. Senior Counsel for the offender agreed with that submission. The Crown relied on the following matters:-

69. The offender knew that border controlled drugs were to be imported into Australia. That was precisely what he was communicating about.

70. The offender intended to take possession of the border controlled drugs. The Crown relied on messages relevant to Count 4 and 5 relating to the quality and market for the relevant drugs. Also, with respect to Count 11, he had attempted to re-direct the consignment to his home address, knowing the consignment contained a significant quantity of border controlled drugs.

71. The offender was in direct communication with those who sourced and arranged for the importation of the border controlled drugs.

72. The offender provided directions and instructions regarding those drugs and the addresses to which the consignments should be sent. The Crown submitted that to do so, he must have undertaken meaningful research into suitable consignee addresses. At the very least, he must have been confident that the drugs could be delivered and collected with minimal risk of detection.

73. The Crown submitted that the offender committed the offences for financial reward which was an aggravating factor relying on R v Kaldor (2004) 150 A Crim R 271 at [104] and R v Lee [2007] NSWCCA 234 at [32].

74. The Crown submitted that the weight of the drugs was a relevant factor in a assessing the objective seriousness of the offending and had increased significance when the offender was aware of the amount of drugs imported.

75. The Crown noted that Schedule 2 of the Criminal Code Regulations 2019 (Cth) prescribes the marketable quantity of cocaine to be 2 grams and the commercial quantity to be 2 kilograms. The marketable quantity of methamphetamine is 2 grams, and the commercial quantity is 750 grams. The quantities of pure cocaine in the three consignments were 261.2 grams (Count 1), 280 grams (Count 4) and 239.7 grams (Count 6). The Crown characterised the quantities as “significant, albeit well below the prescribed commercial threshold”. Collectively, the offender aided and abetted in the importation of 780.9 grams of cocaine.

76. The Crown noted the following quantities of pure methamphetamine subject of the counts as follows:-

151.8 grams (Count 2)

274.2 grams (Count 5)

825.12 grams (Count 7)

1,062.8 grams (Count 8)

474.08 grams (Count 9)

718.8 grams (Count 10)

1,134.1 grams (Count 11)

230.7 grams (Count 12)

73. With respect to Counts 2, 5 and 12 the Crown characterised the quantities as “significant albeit well below the prescribed commercial quantity threshold”. The amount referable to Count 10 was much more significant, being just below the commercial quantity threshold and the quantities in respect of Counts 7, 8 and 11 were “comfortably in excess of the commercial quantity threshold”. Collectively, the offender aided and abetted in the importation of, and attempted to possess, 4.871 kilograms of methamphetamine.

74. With respect to s16A(2)(c) of the Crimes Act, the Crown submitted the offending was not an isolated incident or a spur-of-the-moment type of lapse in judgment. Rather, the offender was involved in a course of conduct which spanned from 13 September 2021 (Count 10) to June 2022 (Count 12) and involved a substantial degree of planning and organisation.

75. With respect to specific deterrence pursuant to s16A(2)(j) of the Crimes Act, the Crown submitted the offender had not accepted any responsibility nor shown any insight into his offending behaviour. He was involved in the offending for a protracted period and only ceased upon his arrest. Therefore specific deterrence was a relevant consideration in sentencing.

76. With respect to general deterrence and the need for adequate punishment (s16A(2)(k) and 16A(2)(ja) of the Crimes Act), the Crown rehearsed well-known authorities for the proposition that general deterrence is a significant consideration in sentencing for drug importation offences. Any sentence imposed must signal to would be drug traffickers, that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.

77. With respect to the subjective matters referred to in s16A(2)(m) of the Crimes Act, the Crown noted that the offender was between 41 and 42 years of age at the time of the offending and is now 46 years of age. He had no prior criminal convictions. The Crown rehearsed the personal history of the offender outlined to Mr Borenstein and the psychologist’s opinion that he satisfies the essential criteria for the diagnosis of chronic and severe PTSD. The Crown noted that during his time in custody the offender’s conduct had been positive with no adverse events recorded.

78. The Crown submitted that an appropriate degree of accumulation was required between each of the offences here to reflect the total criminality of the offender’s conduct. The offending comprised 11 separate consignments for which the offender engaged with several different persons, namely Help Man (Count 1), Ma G E (Counts 2 and 12), Arinz friend (Count 3), Mazzi (Counts 4, 6 and 9), Duke New (Count 7), Uche friend (Count 10) and Olu (Count 11). The offending occurred over a period of many months. The Crown submitted a wholly concurrent sentence could not comprehend and reflect the totality of the criminality of the overall offending. The Crown submitted that each individual count represented a serious example of an offence contemplated by ss307.2(1) and 307.1(1) of the Criminal Code (Cth).

79. In his oral submissions, the Crown conceded that the circumstances of the offender’s childhood provided sufficient evidence to apply the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27 as observed by Weinstein J in YZ v R [2025] NSWCCA 165. The Crown submitted that the Court’s discretion concerned the weight to be attributed to those circumstances. Allied to that was that the Crown disputed the offender’s self-reporting to Mr Borenstein of a “decade’s long history of substance abuse”. The Crown submitted this claim should be subject to careful scrutiny given that it was based on the self-reporting of the offender, whereas the Corrective Services records contained no reference this, and it was as odds with the testimonial evidence including Exhibit 2, the letter from the offender’s wife.

80. The Crown rehearsed his submissions concerning the assessment of objective seriousness of the offending taking into account the weight of the drugs as a material factor distinguishing the individual counts and the offender’s role and conduct with respect to each consignment. The Crown submitted that his role was more significant and influential than the quantities of prohibited drugs involved and rehearsed his submissions concerning those quantities.

81. With respect to s16A(2)(c) of the Crimes Act, the Crown rehearsed his submission that the offender’s conduct involved an extended course of criminal conduct, relying on Elzein v R [2021] NSWCCA 246, but noted this was not to be double counted as punishment of the offender.

82. The Crown noted that an issue that had arisen was whether the offender intended to take possession of the drugs. The Crown submitted that the offender intended to take possession, not physically to go and collect each consignment but rather the border controlled drugs were destined to be delivered to him and that it had been established beyond reasonable doubt that he wanted the drugs and had provided details not only of the addresses but also the price and market for them. It was a global submission that the evidence established the offender’s intention overall and there was no evidence raising a reasonably rational alternative to it.

83. The Crown rehearsed his submission that each of the offences was a serious example of an offence contemplated by s307 of the Crimes Act. The Crown rehearsed his submissions concerning the application of the Bugmy principles and in particular, referred to in YZ v R at [64], where Weinstein J referred to a previous judgment of Dhanji J in Chiarlini v R [2023] NSWCCA 227, where his Honour referred to evidence of planning not being a barrier to the reduction of moral culpability and general deterrence in sentencing (at [21] and [37]), and stated that general deterrence remained an important factor in sentencing for such offences (at [39]).

84. The Crown submitted that there was no evidence here that the offender’s judgment had been impaired and therefore no foundational basis in the evidence for such a finding, rather it was no more than a possibility. If the Court was against that submission, to the extent that there was evidence upon which to base a finding, whilst there could be some diminution of moral culpability, general deterrence remained a significant factor in sentencing here.

85. The Crown rehearsed his submissions concerning the prospects of the offender’s rehabilitation being guarded and his risk of recidivism must reflect that there had been no acceptance of responsibility, and no evidence of insight or awareness of the seriousness of his offending. The Crown acknowledged that the custodial records confirmed his good behaviour in custody and good work ethic which gave rise to some optimism, and were matters favourable to his prospects of rehabilitation. The Crown submitted that was a matter to be taken into account, together with the fact that the offending took place over a lengthy period of time, the number of offences and seriousness thereof which would warrant a finding that his prospects of rehabilitation are low.

86. The Crown relied on a list of comparable sentencing decisions in all of which it was held that the quantity of prohibited drugs was not decisive but relevant to the sentence to be imposed.

Offender’s submissions

87. Learned Senior Counsel for the offender relied on a written outline of submissions. In respect of the assessment of the objective seriousness of the offending, counsel submitted:-

(a) The basis of the offender's liability is as an accessory however he is exposed to the same maximum penalty as if he were liable as principal; (b) plainly, the evidence accepted by the jury supports the finding that the offender played a significant role in the importations; (c) for the majority of the importations, the quantum of the border-controlled drugs lies towards the lower reaches of quantities within the relevant range. The quantum in Count 1 (261.2g cocaine) represents an amount 13% beyond the marketable threshold; Count 2 (151.8g methamphetamine) represents an amount 20% beyond the marketable threshold; Count 4 (280g cocaine) represents an amount 14% beyond the marketable threshold; Count 5 (274.2g methamphetamine) represents an amount 37% beyond the marketable threshold; Count 6 (239.7g cocaine) represents an amount 12% beyond the marketable threshold; Count 12 (230.7g methamphetamine) represents an amount 31% beyond the marketable threshold; and Count 7 (825.12g methamphetamine) is less than 100g beyond the commercial threshold.

88. Counsel characterised a key issue on sentence as being the offender’s significant childhood disadvantage. He rehearsed the evidence including the offender’s report to Mr Borenstein, the offender’s sister’s account, the result of psychometric testing and also his history of treatment in 2003 and his diagnoses of PTSD and substance use disorder. It was submitted the Court would make a finding of significant childhood disadvantage on, at least, the balance of probabilities.

89. Counsel submitted that the offender’s significant childhood disadvantage impacted the sentencing exercise in three ways. First, his moral culpability was reduced. Secondly, it was submitted that in the unique circumstances of the case, the call for general and specific deterrence is attenuated. Thirdly, counsel submitted the offender’s background of childhood disadvantage would impact adversely on the experience of punishment.

90. Counsel also relied on the offender’s prior good character and the evidence that he had been an active and valued participant in the Sierra Leonean community, relying on Elomar v R [2018] NSWCCA at [116].

91. Counsel submitted that the offender’s prospects of rehabilitation may be necessarily guarded, however he had demonstrated a consistently positive work ethic whilst in custody and subject to bail and had also received treatment from a psychologist whilst on bail. Further, according to Mr Borenstein the offender presented as “highly motivated to engage in combined psychiatric and psychological treatment”. These matters also justified a shortened non-parole period.

92. Counsel conceded that the offender stands to be sentenced for discrete offending that occurred over the course of a 9 month period. However, principles of totality loom large for the following reasons:-

(a) Counts 1 and 2 occurred at approximately the same time, as did Counts 6 to 9. It is submitted that some measure of concurrency may apply to each set of offending given that on one view, that offending arose from a single course of conduct: Pearce v R (1998) 194 CLR 610 at [40]; (b) the offender ought not be subjected to a “crushing sentence” not in keeping with his record and prospects: Postiglione v R (1997) 189 CLR 295 at 304; and (c) given the offender’s complex subjective case, including his PTSD diagnosis occasioned by his significant childhood disadvantage, there is a real risk that a lengthy custodial sentence will induce a feeling of hopelessness and destroy any expectation of a useful life after release: MAK v R (2006) 167 A Crim R 159 at [17]; WC v R [2008] NSWCCA 268 at [61]; Murrell v R [2012] NSWCCA 90 at [46]. It may also destroy such prospects as there may be of rehabilitation and reform: Van der Baan v R [2012] NSWCCA 5 at [103].

93. Finally, counsel submitted any aggregate sentence of imprisonment should commence on 24 December 2024, which date was agreed by the Crown.

94. In a written outline of supplementary submissions, learned Senior Counsel for the offender submitted in response to the Crown submission that the evidence did not establish to the requisite standard that the offender generally intended to take possession of border controlled drugs. It was submitted that the representations made by the offender on 19 November 2021 and 29 December 2021 are equally consistent with knowledge and involvement in the importation of border controlled drugs, while falling short of an intention to personally take possession of those substances. The Court would also take into account the following matters regarding the offender’s conduct:-

(a) while on the evidence the offender took steps to conceal his involvement through the use of multiple devices, it could not be said that the offending involved any great guile; (b) the actual role inhabited by the offender, which involved liaising with various parties, meant that to some extent he was exposed to detection by law enforcement; (c) there is no evidence the offender played any role in sourcing the border-controlled substances, rather the evidence suggests that role was inhabited by others. For example, see Statement of Proposed Facts at [50] where “Mazzi” informs the offender “It won’t take me more than 2 days to arrange and move” and “I order from good source”; and (d) in large part it appears the offender was responsive to requests by others. For example, see Statement of Proposed Facts at [16], [30], [38], reflecting one feature of his role in the enterprise.

95. The offender also took issue with the Crown’s submission that s16A(2)(c) of the Crimes Act applies, namely that the Court must take into account that the offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar character. It was submitted the subsection typically applies in cases involving “rolled up charges”, for example in R v De Leeuw [2015] NSWCCA 183 at [116] and other cases. It was submitted here, that each importation and the single attempt possession offence are the subject of counts on the Indictment and the offender therefore stands to be sentenced for each discrete offence. Consequently, for the Court to apply the factor in s16A(2)(c) would amount to erroneous double accounting in circumstances where the Crown adopted the above course at trial, meaning to charge separate and discrete offences.

96. Further, the offender submitted that ss16A(2)(p) requires the Court to take into account the probable effect of sentence on an offender’s family and dependents, and that the hardship contemplated need not be exceptional, relying on Totaan v R [2022] NSWCCA 75 at [81]-[83]. The offender relied on the letter of his wife which, he submitted, reveals the “essential” role played by the offender and the financial and emotional strain occasioned to his family since his incarceration.

97. In his oral submissions, learned Senior Counsel for the offender rehearsed his submissions regarding the objective seriousness of the offending. In respect of the importation counts, the offender was liable as an accessory and his conduct involved, providing prior to consignment, details of addresses of other parties and in respect of most consignments, the quantities were at the lower end of the statutory amounts. In respect of the attempted possession count (Count 11), the various steps he took occurred in late October 2021. It was submitted the Court would not be satisfied beyond reasonable doubt that he was aware of the quantum of border controlled drugs, although it was conceded the quantity amounted to a commercial quantity.

98. Counsel submitted that the role of the offender was important here, but not as submitted by the Crown, for the first time in oral submissions, that his role was a more important factor than the quantity of drugs involved. Counsel submitted the following propositions relying on R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 at [72] are relevant to sentencing for drug importation and attempted possession offences:-

“(a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee [2007] NSWCCA 234;1 BC2007O6634 at [27];

…

(e) the statements by the High Court in Wong v R; Leung v R do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen (2005) 195 FLR 1; 157 A Crim R 80; [2005] NSWCCA 362; BC2005O8991 at [110]; Sukkar v R (No 2) (2008) 178 A Crim R 433; [2008] WASCA 2; BC200800074 at [46];”

99. Counsel submitted that the Crown had not established here that the offender’s role was a more important factor and that it was the quantity of drugs that differentiates the seriousness of the offending in each case. It was submitted that the steps taken by the offender demonstrated a lack of guile and had a high risk of detection. For example, Handset 900 was found in his vehicle. Further, the fact that he was clearly the person depicted in the video shown at trial demonstrated a lack of sophistication in the offending, inconsistent with the role of a key decision maker in the drug importation enterprise.

100. Counsel accepted the Crown characterisation of the offender’s role as “a trusted and essential member of a well-planned criminal enterprise engaged in the importation of border controlled drugs into Australia”. However, counsel took issue with the Crown contention that the offender intended to take possession of the border controlled drugs and submitted that this had not been established beyond reasonable doubt. Counsel referred to the proposed facts in respect of each of the counts for which the offender was found guilty to submit that he had provided delivery details only of the consignments, namely names, addresses, and phone numbers and whilst the evidence established that he was clearly expressing an interest in prohibited drugs it did not extend to an intention to take possession of them.

101. Counsel rehearsed his submissions regarding the application of s16A(2)(c) and cautioned concerning double counting on penalty, and the impact of the offender’s childhood disadvantage, relying on YZ v R [2025] NSWCCA 165. It was submitted the evidence clearly established the catastrophic childhood suffered by this offender, and whilst there was no link between his childhood and the offending, no causal link was required. It therefore had the three consequences outlined the written submissions.

102. Counsel also rehearsed his submissions regarding the probable adverse impact on the offender’s family and relied on his written submissions regarding the application of the principle of totality.

Determination

103. The offender is to be sentenced in accordance with Part 1B of the Crimes Act 1914 (Cth), and 16A(1) provides that a Court must impose a sentence that is of a severity appropriate in all of the circumstances of the offences. The Court is also required to consider matters set out in s16A(2), which are relevant and known to the Court. They are as follows:-

s16A(2)(a) the nature and circumstances of the offence

104. The nature and circumstances of the offences are set out in my findings of fact outlined above. Each of the offences, but for Count 11, concerned the offender aiding and abetting another person in the commission of an offence of importation of border controlled drugs. He did so by providing consignee details which were utilised by the importers to send the border controlled drugs to specific addresses in Australia. It was not an element of the any of those offences that the offender intended to take possession of the drugs himself. Further, whilst the WhatsApp communications are clear evidence of the offender’s knowledge and involvement in the importation of the border controlled drugs and the drug milieu generally, no finding could be made beyond reasonable doubt that it was his intention to take possession of each consignment. Rather, he is to be sentenced as a trusted and essential member of a well-planned criminal enterprise engaged in the importation of the drugs. His role was to communicate with those involved in sourcing and arranging the importation of the drugs to provide addresses to which the consignments should be sent. His role was that of an accessory to those importing the drugs, and I find that he played a significant role in the importations. Each of the offences constituted serious offending, the seriousness of which is differentiated by reference to the quantity of drugs involved in each count.

105. Count 11 also constituted serious offending involving an attempt by the offender to possess a commercial quantity of methamphetamine and acting to ensure the consignment was delivered to premises in the same street where he lived. A clear inference arises from the evidence supporting this count that he intended to take possession of the border controlled drugs. Given his active role in directing where the drugs were to be delivered, his moral culpability for this offending is high.

106. The offender’s conduct in the offences, to the extent that it facilitated the importation of border controlled drugs into Australia, was clearly done for financial reward and, but for the intervention by the ABF, would have contributed to drug trafficking in the community with all of the attendant harm that such trafficking is known to cause. Subject to my findings below, the offender’s moral culpability would otherwise be regarded as high for all of his offending conduct.

s16A(2)(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct

107. I am not persuaded that this subsection applies only to “rolled up” charges of criminal conduct. It is clear that the offending conduct here took place over a period of 9 months and consisted of a series of criminal acts, namely aiding and abetting the importation of border controlled drugs which were of the same character as well as the conduct in Count 11, which was of similar character. This is therefore a relevant matter to take into account, but not as an aggravating factor so as to be double counted in the eventual penalty to be imposed.

s16A(2)(d) the personal circumstances of any victim of the offence

108. There were no victims of the offending conduct, only by virtue of the ABF’s intervention so as to confiscate the border controlled drugs involved.

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

109. I accept that the offender has expressed to his wife, and others who have provided testimonials on his behalf, some contrition for his offending conduct. However, having pleaded not guilty to the offences, the offender has not taken responsibility for his offending conduct nor demonstrated any insight into his offending conduct.

s16A(2)(j) and (ja) the deterrent effect that any sentence or order under consideration may have on the person or other persons

110. As outlined above, general deterrence is an important factor in sentencing for such serious offending conduct. Specific deterrence is also relevant here given the offender’s lack of responsibility for the offending conduct. However, both matters are subject to some attenuation as outlined below.

s16A(2)(k) the need to ensure that the person is adequately punished for the offence

111. The maximum penalty of 25 years imprisonment and/or a fine of 5,000 penalty units for the importation offences in Counts 1, 2, 4, 5, 6, 9, 10 and 12 and the maximum penalty of life imprisonment and/or a fine of 7,500 penalty units for Counts 7, 8 and 11 demonstrate the seriousness with which Parliament regards such offending and also provide guidelines for sentencing such offences.

s16A(2)(m) the character, antecedents, age, means and physical or mental condition of the person

112. The offender is now 46 years of age and was 42 years of age at the time of the offending. He had no prior convictions and had suffered catastrophic childhood disadvantage when he was a child aged 10 when the rebels took over Sierra Leone, murdering his parents and introducing him to drugs and training him as a child soldier. It is clear that the following principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27 apply:-

1. The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his/her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way [40].

2. The effects of profound deprivation do not diminish over time and repeated offending and should be given full weight in determining the sentence in every case [42-44].

3. A background of that kind may leave a mark on a person throughout life and compromise a person’s capacity to mature and learn from experience [43].

The application of these principles, and their impact in diminishing the offender's moral culpability for the offending and how that further impacts the purposes of sentencing was recently explained by Weinstein J (with whom Wright and Sweeney JJ agreed) in YZ v R [2025] NSWCCA 165 at [59] to [68]. The reduction in this offender's moral culpability must therefore be given "full weight" in the sentencing synthesis (per Bugmy at [44]).

113. I accept that the offender did not use drugs when placed as a teenager in a UN camp in Guinea with his siblings for a period of 2 years due to the unavailability of drugs, however he lapsed shortly after his arrival in Australia. Whilst there is a marked contrast between the man described by the offender’s wife and the authors of testimonials tendered on his behalf as to his character, and a history of a decades-long addiction to prohibited drugs, I find that he did contribute to the community both by way of his employment history and his contribution to the welfare of the Sierra Leonean community in Sydney.

114. I accept that the offender suffers symptoms of the diagnoses of PTSD and substance use disorder and was suffering those symptoms during the offending period. In DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, McClellan CJ at CL set out at [177] the following principles to be applied when sentencing an offender suffering from a mental illness, intellectual handicap or other mental health problems as follows:-

115. "Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

116. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28].

117. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

118. It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

119. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]."

120. Having regard to and giving the above principles full effect I therefore find the offender’s moral culpability for his offending is diminished and also that there is some diminution of general and specific deterrence required in the sentencing process here, notwithstanding that general deterrence remains an important factor in sentencing for such serious drug offences. I also find that the offender’s diagnoses mean that any prison sentence will be more onerous for this offender than the general prison population, notwithstanding that to date he has fared well in custody demonstrating a good work ethic with no infractions.

121. Given the longstanding nature of the offender’s PTSD and substance use disorder, his prospects of rehabilitation must remain somewhat guarded notwithstanding the advances that he has made whilst in custody and his desire to undergo treatment and return to a constructive life in his community. Given his age, and the likelihood or a relatively lengthy term of imprisonment and the offender’s desire to undergo treatment regimes of a psychiatric and psychological nature, I find that his risk of recidivism should not be high given the support of his family and community.

s16A(2)(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants

117. I accept the evidence of the offender’s wife, Marie Kabbay that the incarceration of the offender has rendered her life extremely difficult as he was primarily responsible for the family’s financial obligations. I also accept that the emotional impact on their daughter has been profound and that Ms Kabbay’s mental health has also been seriously affected by his offending. I have taken these matters into account in arriving at an appropriate sentence.

118. The principles relevant to sentencing offenders for drug importation and attempted possession offences derive from R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 referred to by counsel for the offender, also included the following:-

“(f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32];

(g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v the Queen; Leung v The Queen at 607-608 [64];

(h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552-553 [114];

(i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6];

(j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49];

(k) where offenders are not young (Mr Nguyen was 42 years’ old and Ms Pham was 32 years’ old), the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 474 [98];

(l) where an offender (such as Ms Pham) 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: El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208 at 217 [33]-[37];

(m) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs: R v Ferrer-Esis (1991) 55 A Crim R 231 at 230;

…”

See, for example Ozgen v R (Cth) [2025] NSWCCA 65 at [59] where those principles were applied.

119. Recently, in The King v McGregor [2026] HCA 3, the High Court confirmed that an aggregate sentence of imprisonment under s53A Crimes (Sentencing Procedure) Act 1999 (NSW) can be imposed for multiple offences against a law of the Commonwealth and I intend to sentence this offender by way of an aggregate sentence. To ensure transparency in the sentencing process, I am required to provide indicative sentences for each of the offences. The indicative sentences are as follows:-

Count 1 – 3 years’ imprisonment

Count 2 – 3 years’ imprisonment

Count 4 – 3 years’ imprisonment

Count 5 – 4 years’ imprisonment

Count 6 – 3 years’ imprisonment

Count 7 – 5 years’ and 6 months imprisonment

Count 8 – 6 years’ imprisonment

Count 9 – 3 years’ and 6 months imprisonment

Count 10 – 5 years’ imprisonment

Count 11 – 7 years’ imprisonment

Count 12 – 3 years’ and 6 months imprisonment

120. In assessing the aggregate sentence the principle of totality of criminality applies. Any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

121. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:-

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

122. I note that Counts 1 and 2 occurred at approximately the same time, as did Counts 6 and 9, which would warrant some concurrency in sentencing for those counts.

123. Applying the above principles, together with that of proportionality, I intend to sentence the offender to a term of imprisonment of 12 years and impose a non-parole period of 6 years imprisonment commencing on 24 December 2024 and terminating on 23 December 2030.

Orders

124. You are convicted of the offences in Counts 1, 2, 4, 5, 6, 7, 8, 9, 10, 11 and 12 on the Indictment.

125. I sentence you to a non-parole period of imprisonment of 6 years to commence on 24 December 2024 and terminate on 23 December 2030. The balance of term will be a period of 6 years, commencing on 24 December 2030 and terminating on 23 December 2036. R v Daramy - Crown proposed findings of fact (71.4 KB, docx)

**********

Amendments

24 April 2026

Annexure