R (Cth) v Derley; R

The statutory scheme

1. A brief notice of the statutory scheme needs to be made. The Criminal Code s 307.1 provides: "(1) A person commits an offence if: (a) the person imports or exports a substance; and (b) the substance is a border controlled drug or border controlled plant; and (c) the quantity imported or exported is a commercial quantity. Penalty: Imprisonment for life, or 7,500 penalty units, or both. (2) The fault element for paragraph (1)(b) is recklessness. (3) Absolute liability applies to paragraph (1)(c)." The same maximum penalty applies to possessing a commercial quantity of unlawfully imported border controlled drugs (s 307.5), and possessing a commercial quantity of border controlled drugs reasonably suspected of having been unlawfully imported (s 307.8).
2. Under s 11.1 a person who attempts to commit an offence commits an offence of attempting to commit that offence and is punishable as if the offence attempted had been committed. The like provision applies to those who aid, abet, counsel or procure the commission of an offence (s 11.2) and s 11.5 (1) provides: "A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, commits the offence of conspiring to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed"
3. In short, each of these offenders is liable to imprisonment for life and or a fine of 7,500 penalty units, even though the importation was thwarted and the role of each was different and the charge to which each has pleaded guilty is different.

Principles of Sentencing for Drug Importation Offences

1. In R v Nguyen; R v Pham [2010] NSWCCA 238, Johnson J (with whom Mcfarlan JA and RA Hulme J agreed) said this: 70 The importation and possession offences now contained in the Criminal Code Act 1995 (Cth) provide for a structured sentencing regime by reference to the quantity of drug imported. Section 307 adopts "a quantity-based penalty regime" by fixing commercial and marketable quantities of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties: Adams v The Queen [2008] HCA 15; 234 CLR 143 at 146 [2]. 71 Before turning to the individual sentences imposed in this case, it is appropriate to refer to principles applicable to sentencing for drug importation offences. I include in this offences of attempting to possess a quantity of an unlawfully imported border controlled drug contrary to s.307 Criminal Code Act 1995 (Cth). 72 The following general propositions emerge from the authorities: (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 at [27]; (b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]; R v Lee at [25]; (c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the "mastermind" does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26]; (d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen; Leung v The Queen at 607-608 [64]; R v Lee at [23]-[24]; (e) the statements by the High Court in Wong v The Queen; Leung v The Queen 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] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar v The Queen (No. 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46]; (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; (n) the range of sentences referred to in the decision of the Court of Criminal Appeal in R v Wong and Leung remain useful to sentencing for offences of this type; although they have no validity as guidelines, their utility results from the fact that they are based on the patterns of actual sentences, although allowance must be made for the repeal of s.16G Crimes Act 1914 (Cth) : R v Taru [2002] NSWCCA 391 at [12]; R v Bezan at 438 [34]-[36]; R v Mas Rivadavia [2004] NSWCCA 284; 61 NSWLR 63 at 67-68 [65]-[66]; R v SC at [27]; R v Chea [2008] NSWCCA 78 at [40]; (o) insofar as each Respondent asked the sentencing Judge to take into account on sentence offences under s.16BA Crimes Act 1914 (Cth) , it is necessary for a sentencing court to comply with the general principles applicable to the State regime for taking offences into account in accordance with Attorney General's Application Under Section 37 Crimes (Sentencing Procedure) Act 1991 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146: R v Poynder [2007] NSWCCA 157; 171 A Crim R 544 at 550 [28]; Assafari v R [2007] NSWCCA 159 at [9].
2. The important point to note is that the Court must consider the actual activities of those involved in a drug importation, or attempted drug importation, in assessing their criminal culpability, rather than categorising the offender's role in the (attempted) drug importation.
3. Where, however, the offence is conspiracy there are further considerations. In Tyler v R; R v Chalmers [2007] NSWCCA 247 Simpson J (as she then was) with whom Spigelman CJ and Harrison J agreed) said this: 78 It has long been the case that a relevant consideration in sentencing for conspiracy is the "role" played by the offender being sentenced: The Queen v Olbrich [1999] HCA 54; 199 CLR 270; Savvas v The Queen [1995] HCA 29; 183 CLR 1; R v Wong; R v Leung [1999] NSWCCA 420; 48 NSWLR 340. 79 But this, to my understanding, has generally been intended, and read, as a reference to the position or seniority in the organisation of the offender whose sentence is under consideration. Those low in the hierarchy, such as couriers, are usually to be sentenced less harshly, because, although they are of fundamental importance in the execution of the object of the conspiracy - in a drug importation conspiracy, without couriers, no drug could or would be imported - they have no managerial or decision making function; and, experience shows, usually derive the least monetary reward. 80 By contrast, those who have managerial or decision making functions are seen to occupy a more senior position, and, accordingly, to be more culpable. A relevant factor here is the level of profit to be derived. 81 That is not the same as saying, as was here said, that a participant in a conspiracy is to be sentenced (solely) for what he or she does. In this case, that was applied to mean that Chalmers was to be sentenced only for his physical (or overt) acts undertaken in pursuance of the conspiracy. 82 The issue was dealt with at some length in Fox and Freiberg: Sentencing: State and Federal Law in Victoria, Oxford University Press, 1999. At pp 1012-1015, the authors said: "Role of the offender 12.916 The courts have noted that the organisation of the importation, manufacture, or cultivation of drugs and their distribution and sale takes on the features of a hierarchical commercial enterprise [R v Chaplin (1991) 58 A Crim R 194]: 'At the top of the distribution chain monopoly of power is high, risk of detection low (but the consequences if detected are very severe) and addiction rare. Profits at that level are very high. Further down the line monopoly of power evaporates and the risk of detection rises as the number of separate transactions increases … Generally manufacturers (or importers), and wholesalers handle much larger quantities of the drug than middlemen, retailers or consumers. The level of operation within the distribution chain, the scale of operation and the quantities of drugs, all correlate reasonably closely, but it is by no means a perfect relationship.' The level of sentences will generally reflect the level of the offender in the hierarchy, whether he is an importer/producer, a courier, a medium scale distributor, or a low level distributor/consumer … However, the fact that an offender is a mere retailer does not necessarily entail a lenient sentence, only one lower than would have been earned had the person been a principal. 12.917 The severest of penalties will be reserved for offenders who have taken 'a leading or executive part in the crime', … the 'masterminds or controlling agents' … who often finance the entire venture. Large quantities are often involved, … and the schemes are usually carefully planned as commercial operations for personal financial gain … In Perrier (No 2) [1991] 1 VR 717 at 719 McGarvie J, in affirming a sentence of life imprisonment with a minimum of 19 ys 6m … upon a person convicted of being knowingly concerned in the importation of a commercial quantity of heroin, remarked: The organisation by which the heroin is imported is devised in such a way that the criminal law is seldom applied to those primarily responsible for its importation, the principals of the criminal enterprise. Those who are detected, convicted and sentenced are usually not the master traders who set up and operate the organisation and receive its enormous profits, but those recruited as couriers who do the lowest level work, receive much lower financial return, take the greatest risks, and are most frequently caught. They deserve substantial sentences, and receive them, but they are the small fry. The master traders typically prosper, expand their criminal empires and their corruption of the community. Clearly enough, the most effective protection of the community from the ravages of the drug trade is provided by removing from the trade the principals who organise and control it. That should be the primary objective of the community agencies directed against the trade, including the courts in sentencing. …" 83 Identifying the "role" of a participant by reference to his position in the organisational hierarchy is a very different proposition from isolating the precise physical acts that can be attributed to the particular offender, and selecting the punishment by reference solely to those isolated acts. It would be quite artificial, and contrary to the very concept of a conspiracy, to dissect with precision the physical acts of each of the conspirators, and to sentence that conspirator for those acts alone. That would be a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. It would represent too literal an application of the decisions that identify the "role" of any participant as a relevant factor in the sentencing exercise. It would be to ignore the essential feature of the offence of conspiracy - the agreement to participate in an organised criminal activity. 84 That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry: see R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at [102]. That, in my opinion, is the first, and most fundamental, flaw in the approach to sentencing here taken. 85 Here, the sentencing overlooked the central "act" of Chalmers; he agreed, with the other conspirators, to participate in the importation of a large quantity of a prohibited drug into this country. While the authorities establish that identification of the role of the participant (if it can be identified) is relevant (Olbrich) and important, they do not establish that the fact of agreement, and the subject of the agreement, are to be put aside in favour of concentration upon the physical act or acts of the offender. In Savvas the appellant had been convicted of two conspiracies - the first to import, and the second to supply, heroin. The High Court held that, notwithstanding that the offences charged were of conspiracy, the sentencing judge was entitled to take into account that the heroin was in fact imported and distributed pursuant to the conspiracy, and that the appellant was involved in those events. To do so did not involve a contravention of the principle stated in The Queen v De Simoni [1981] HCA 31; 147 CLR 282. There was there no suggestion that it was Savvas who had in fact carried the heroin into this country; nevertheless, on what was decided in the High Court, it was appropriate for the sentencing judge to take into account that the object of the conspiracy had been achieved. The sentencing judge was not confined to sentencing the appellant on the narrow basis of what he actually physically did. With these principles in mind, I turn to consider the facts.

Facts

1. Piras had a troubling gambling problem. He was in debt. He had no substantial assets. He was working as an Uber driver. On 22 February 2017, Piras drove a police undercover operative numbered 1 (UC01) in his Uber motor vehicle. Piras gave a further lift to UCO 1 on 23 March 2017. The officer in charge of the investigation, DSC Mitchell Carrigan, gave this evidence: Q. Can you also confirm that on both occasions … the officer was pretending to be somebody who could deal with large sums of cash in a covert criminal manner? A. The evidence I can give is that a bag of cash was utilised in the scenario, purported to Mr Piras. The degree of which, or mechanics of that, I can't comment on. Earlier evidence given by DSC Carrigan confirmed that UCO1 deployed "a bag full of money" on 23 March 2017. Piras was tempted by the prospect of earning a relatively large sum of money to fall into criminal activity. UCO1 arranged to meet Piras in a café in Alexandria on 13 April 2017.
2. At that meeting, UCO1 told Piras that he had a proposition for him. The proposal was from "people … I'm working with" who provided a money laundering service. UCO1 told Piras that he and his associates had the ability to facilitate an importation into Australia through a "door" (a way of avoiding border security) and to launder the proceeds of the importation. In response to a question from Piras, UCO1 said that his group could import "anything" and made signs indicating both ice and heroin. UCO1 added that his group had to deal with "the right person". Piras indicated that he knew such a person and that he would speak to him and ask him if he wanted to meet UCO1. UCO1 said, "if they want to meet, we'll meet, we'll tell him, we'll let the bosses talk." UCO1 told Piras that his group used Blackberries to communicate and Piras told UCO1 that he used such a device. Blackberry devices offer their users a military-grade encryption service, and are often used in the criminal underworld. At this meeting UCO1 told Piras that his group would be prepared to pay him a fee for arranging an introduction, but the amount of the fee was not discussed.
3. On 24 May 2017, Piras commenced attempts to contact UCO1 at 11:38am. This was 41 days after the meeting on 13 April 2017. At 2.10pm on that day, Piras and Derley were observed talking for about 3 minutes in Haberfield. Piras was then living in Strathfield and Derley in Lilyfield. On 26 May 2017, UCO1 met Piras and Derley at a café in Haberfield. This was to allow Piras to introduce Derley to UCO1. Derley discussed using UCO1's group to enable the importation of illegal drugs. UCO1 agreed to introduce Piras and Derley to UCO2. The implication to be drawn was that UCO2 was UCO1's "boss". Derley asked about quantities. UCO1 said, "it's one container 'cause if you've got half a tonne or a tonne … it's the one container. If you want to split it up over two, three or four containers that's a fee for each one, alright?" Later Derley asked, "say they wanna send 250 pieces straight up?" UCO1 said, "Well that's not an issue". In the facts provided to me, the word "piece" appears to mean at times "kilogram" and at other times "package". The context would make it clearer to a regular participant in the drug trade. The important point to note is that Derley and UCO 1 were discussing amounts of between 250 kgs and 1 tonne of illegal drugs.
4. There was a third offender involved in this attempted importation, in Australia. He is Scott Allan May ("May"). I was told on 20 December 2019 that May initially pleaded 'not guilty' but after committal to this Court pleaded 'guilty' and that a contested facts hearing is to be held in this Court in March 2020. Hence, he does not stand for sentence with these offenders.
5. On 3 June 2017, UCO1 and UCO2 meet Piras and Derley at a café in Alexandria. There were further discussions of methods of importing illegal drugs. It was indicated that May ("Scotty") was Derley's contact and that he would arrive shortly. He did so. During this meeting May introduced himself to UCO1, UCO2 and Piras. May spoke at length about importing drugs. The principal conversations were between May and UCO2, i.e. between "the bosses". May wanted details and it appears that they were supplied to his satisfaction by UCO2. May indicated that possible ports of origin could include ports in China and South America. During this meeting Derley said that he would provide to UCO2 another Blackberry to enable UCO2 to communicate with May over a secure network. May explained that this was his usual modus operandi (my description). It is clear from agreed fact 20 that the ultimate source (either supplier or financier) of this Blackberry was May. At the end of the meeting UCO2 said that he would look after UCO1 and Piras. I infer that UCO2 was offering to "pay" them for their role in the proposed importation.
6. On 13 June 2017 Piras met UCO2 at Breakfast Point and delivered to him a Blackberry and gave UCO2 the user name and passwords. Piras advised that the cost of the device was $2,500 but their was no requirement of immediate payment. On 23 June 2017, UCO2 offered payment to May but it was declined.
7. A short time later May contacted UCO2 via the Blackberry and there was direct conversation about importing drugs. May asked UCO2 if he could facilitate an importation from Mexico. From this time until 22 June UCO2 and May were in frequent contact about importations. May again nominated Mexico as his preferred country of origin and said that he wanted to import between 500 and 600 kgs of drugs.
8. On 23 June, May and UCO2 met at a café in Woolloomooloo. UCO2 told May that the fee for facilitating the importation would be $30,000 and this had to be paid before UCO2 commenced to facilitate the importation. It was also agreed that UCO2 would receive the cash value of 15% of the total weight of the drugs that arrived in Australia.
9. On 29 June, Piras met UCO1 at a restaurant in Pyrmont. He told UCO1 that his contacts wanted to speak about an additional importation of illegal drugs and asked whether UCO2 could facilitate another importation using the same method offered to May. UCO1 said he would speak to UCO2 about this.
10. Between 2 July and 11 July there were further dealings between May and UCO2. On 6 July, May advised that his Mexican cartel connections had obtained a shipping container that would be used in the importation.
11. On 12 July Derley and Piras met UCO2 at a café in Redfern. Derley said that they had been sent by May to probe UCO2's trustworthiness and to ask further questions about the proposed method of importation. The agreed facts continue thus: 23. … DERLEY said, "Yeah… I've been um… I dunno how to say it really. I been getting hammered by um… by a couple of people overseas and ah they're worrying about ah who we're seeing, alright?" UCO2 said, "I can see where you're comin' from… I guess like have you… have you had a chat to our mate about it as well?" DERLEY replied, "Yeah, yeah yeah… He said to me (IND) can you go over and (IND) do his dirty work". 24. PIRAS explained the reason for the level of caution in dealing with UCO2 stating "it's just like, we have to know who we're dealing with that's all. They wanna know who we're dealing with." PIRAS asked whether DERLEY now felt comfortable, and DERLEY said, "Yeah, yeah, no problem". PIRAS then asked UCO2 to provide his surname. 25. PIRAS and DERLEY asked UCO2 if he could facilitate a further importation of border controlled drugs (separate from the Mexican importation) using the same methodology offered by UCO2 to MAY. UCO2 declined to assist with what PIRAS and DERLEY proposed until the importation with MAY had concluded. DERLEY said "Well, don't worry, we'll figure that one after we get these done… get the first ones out of the way first… we'll do it after things settle down with these ones." PIRAS spoke about building a relationship and waiting until "this one" (the Mexican importation) went well before commencing the further importation. UCO2 referred to the large quantity that was being imported from Mexico in a container, stating, "This is the um… the top end of that we're… you… you're aware of how it's happening this one?" DERLEY said, "Yeah". UCO2 said, "Yeah. Well the way that this is happening, this is the top end of… unless you know it you wanna go anymore, you'd be doin' multiple containers so um but… But you can't argue with how much is comin' in, so…"
12. One can easily accept a person in the position of May being extremely cautious, indeed nervous, as he was about to commit himself to a large importation - he would have to make some commitment to the Mexican cartel, most probably financial or, if not financial, he would be at severe risk of harm if the Mexican cartel suffered loss. One can understand May (and perhaps those he was associated with, of whom we know nothing) checking the bona fides of UCO2, and sending Derley and Piras to undertake the task. The question which arises is whether the talk of Piras and Derley about another importation, of cutting out May, was genuine or whether it was part of the testing of UCO2's bona fides. This extends back to what occurred on 29 June and may extend to events which occurred on 19 July. I cannot exclude as a reasonable possibility the contention that it was all part of the testing of UCO2's bona fides. Therefore, I cannot find that either Derley or Piras had formed the intent to participate in some further criminal enterprise.
13. Agreed fact 26 is this: On 19 July 2017, PIRAS and UCO1 met at a café in Darlinghurst. PIRAS relayed the conversation he and DERLEY had with UCO2 at their meeting on 12 July 2017 including their interest in another importation after the first one. Piras referred to someone who had "got done on the wharfs" and people had become a bit nervous and they spoke about building their new relationship together. PIRAS later said he hoped everything goes well as "I don't need any headaches" and referred to someone who had got really nervous in the last week and it had made him nervous. They further discussed their understanding of the requirements to work for the consignment company proposed by UCO2. UCO1 said, "The thing is, the, these things with trust takes time, but, eh?" PIRAS said, "That's right, I said, after the first one I don't care… So I really want them… they do your one. After they're done with your one, they do one…" PIRAS engaged an associate to physically monitor this meeting while it took place and to follow UCO1 after the meeting had finished. Again, I cannot exclude as a reasonable possibility that this was testing the bona fides of UCO1 as part of what I have described as his group, his relationship with UCO2.
14. Between 20 July and 25 July, May and UCO2 maintained their communications via Blackberry. On 24 July, May indicated a "slight revision" of the quantum of the importation to "450 mex", and that the drug was methamphetamine ("Mex we doing cold") and that Piras would pay UCO2 the $30,000 required to commence the importation. At this time May arranged for his Mexican contacts to send photographs at the shipping container to be sent to UCO2, on line, which revealed the container's serial number and allowed UCO2 to track the movement of the container from Mexico to Sydney.
15. After making arrangements by text messages, Piras met UCO2 at Mrs Macquarie's Chair on 26 July 2017 and handed him $30,000.
16. There was a further meeting between Piras and UCO2 at Mrs Macquarie's Chair on 19 September 2017. UCO2 had used his May-supplied Blackberry to send a message to an email address associated with the Blackberry group, asking where he could obtain another Blackberry. This triggered an alert on the Blackberry network which caused panic about security. Piras explained this to UCO2 and told him that if he wanted another Blackberry he ought discuss it with May. Piras made it clear that May had voiced his concern to Derley who had voiced it to Piras ("Scottie's telling my mate, my mate's coming and … telling me"). Piras suggested to UCO2 to tell May that there had been a misunderstanding. During the conversation Piras said, "I'm just a gofer here". Towards the end of the meeting Piras requested to see UCO2's identification, but expressed his embarrassment at having to do so. UCO2 showed Piras identification but did not permit him to photograph it. After the meeting May sent UCO2 a Blackberry message stating that his explanation had been accepted. This last fact indicates clearly that Piras was acting as the agent of May or of May and Derley.
17. On 19 October 2017, Piras and UCO1 met. There was a conversation about a issue concerning the shipping paperwork, which had been resolved, the time taken for the shipment to arrive and the time for making payments. They also discussed wanting others to communicate directly, rather than relying on them to relay messages, clearly indicating that Piras was a mere agent for others.
18. On 21 November, Piras and UCO1 met at a hotel at Milsons Point. UCO1 discussed payment options for Piras, to reward him for introducing Derley to UCO1, which led to the UCOs being introduced to May. In essence, Piras was offered either one kilogram of the drug, known to be methamphetamine, or its wholesale value in cash, "roughly" $80,000. Piras opted to take the money, consistently with his reason for becoming involved in the attempted importation.
19. As mentioned earlier, the shipping container arrived at Port Botany on 28 November 2017. On 30 November, May and UCO2 communicated via Blackberry. There was discussion as to the ultimate fate of the shipping container. May wanted it to be destroyed, once unloaded. There was also discussion about sharing the proceeds of the importation. May told UCO2 of his plans to distribute the methamphetamine. He would give $1 million to UCO2 initially. He planned to sell the drug for $70,000 per kilogram, the wholesale price, in order to expedite the collection of cash, so that all with a financial interest in the importation would be paid before Christmas. Between this time and 4 December arrangements were discussed as to the extraction of the drug from the container. UCO2 was to provide the necessary tools and equipment and a "hands on man" (UCO3) to help with the extraction.
20. Surveillance detected a meeting between May and Derley in Rosebery on 1 December 2017 around 10:40am but how that meeting was arranged is unknown, and what was discussed is unknown.
21. On 4 December 2017, May and UCO2 agreed to meet at a café near Redfern oval. UCO2 told May that he would prefer to take May with him to the container, rather than to provide its address to him.
22. 5 December was a marked day. On 4 December Derley telephoned Piras at 2:47pm and told him, "Don't take any work on for tomorrow… or tonight." They arranged to meet at 6pm that evening. Derley made two further but unsuccessful attempts to call Piras that afternoon. They met at 8:25pm on St Paul's Street, Randwick.
23. On 5 December at 10am, Piras met UCO2 and UCO3 at the café in Redfern. UCO2 asked Piras what was going on and Piras said that, I infer, May was going to meet him at the café, that he was coming and that he was to wait until May arrived. Piras indicated that he was reluctant to be at the meeting. UCO2 then received a message via Blackberry directing him to a café in Zetland. UCO2 and UCO3 went to Zetland. Derley picked up Piras and drove to Zetland, parking near the café. They then joined UCO2 and UCO3. The intended extraction was discussed. Piras did not want to attend the proposed event. Discussion concerning the extraction was mainly between Derley and UCO2. Around this time UCO2 and Derley were in contact with May via Blackberry. At 10:29am May sent a message indicating he might not attend the extraction but that "it's all good" and that there were adequate hands to do the job. UCO2 and UCO3 then travelled in their car to Alexandria and Derley and Piras in Derley's car to the same place, where the emptied shipping container had been stored.
24. After entering the premises, UCO2 asked Derley whether he knew where the drugs were. Derley said that there were "probably 400, should be 450 odd" packages but they were not in kilogram weights. Whilst they were standing next to the shipping container Derley and Piras were arrested by police who had concealed themselves in the premises.
25. At 10:54am UCO2 received this Blackberry message from May: "Mate no need to explain anything to anyone, including my guys thank you. And about the stacking and all fine detail that's between us, my guys are purely there to help and assist you and to verify that is all. We get all this done as quick and efficient as possible plz. I'll have my other guy coming in to help you and collect stock. I will have big chunk of your $ in coming days and I'll come and see you personally OK once I explain everything I'm sure u will totally understand my friend thank you sorry for the inconvenience." May appears not to have wished to expose himself at the opening of the container, perhaps just in case it was under police or customs surveillance. This message makes it clear that there was at least one other in May's "team", he to whom he entrusted the collection of the drugs. Furthermore it illustrates that, as far as May was concerned, Derley and Piras were only "workers" who were not to be given any explanation of what had been arranged.
26. After his arrest Derley was taken to Newtown Police Station where he participated in an ERISP but responded "No comment" to most questions. At the time of his arrest he was in possession of a Blackberry device. A search warrant executed at 10:50am on 5 December lead to the police seizing from his car: 1. a set of electronic scales, found in a plastic shopping bag; 2. a sealed bag containing $2,295 in cash, and 3. a signal jamming device.
27. After his arrest Piras was taken to Redfern Police Station where he participated in an ERISP but denied his involvement in the attempted importation. A search warrant was executed at his home at 12:49pm on the day of his arrest. Police seized 9 mobile phones from his bedroom, including 2 Blackberry devices, but there is no evidence that these were used by him in this attempted importation. Police also found and seized 4.89 grams of cocaine, 0.53 grams of methamphetamine and 0.98 grams of pseudoephedrine. For possession of those substances Piras was sentenced in the Local Court on 20 March 2019.
28. May was arrested at 11:20am on 5 December 2017 as he was driving out of the carpark of his apartment building at Coogee. He was taken to Maroubra Police Station where he declined to participate in an ERISP. At the time of his arrest he possessed 2 encrypted devices.
29. Each of the offenders has been in custody since 5 December 2017.

What did Derley do?

1. Derley's activities may be summarised thus: 1. he agreed with Piras to meet UCO1, for what was obviously a criminal purpose; 2. he went with Piras to meet UCO1. Derley discussed drug importation with UCO1 and agreed to meet UCO2; 3. Derley introduced May to UCO2; 4. Derley, as agent for May, raised with UCO2 the provision of a Blackberry; 5. Derley, as agent for May, sought to test the reliability of UCO2's trustworthiness Although he was assisted by Piras, his recorded words in agreed fact 23 tell me that it was Derley who was initially entrusted with this role; 6. May raised with Derley his concern about UCO2's seeking another Blackberry and Derley assigned the task of checking up UCO2 on this to Piras; 7. Derley was clearly in contact with May re 5 December 2017 and he arranged for Piras to be available on that day. 8. On 5 December Derley clearly acted for May, in his place, in gaining access to the shipping container and was available to assist in the recovery of the presumed drugs from the container.
2. Probably the most significant fact, as far as Derley is concerned, is his plea of guilty to the charge of conspiracy. He admitted by that plea that he did conspire with at least May to import a commercial quantity of methamphetamine. He admitted that he knew what the plot was, and that he took an active role in that plot.
3. The Crown submitted that "Derley played the role of a mid-level organiser and facilitator of the Mexican importation and was essential to its anticipated success. Derley performed the role of the trusted right hand man of the principal organiser May, representing May's interests at various meetings with Piras, UCO1 and UCO2, and at the warehouse for the unpacking on 5 December 2017." Mr Dalton SC submitted otherwise. He pointed out that the inferences to be drawn from the known facts show that Derley "was a low-level and expendable representative of May who was only given information on a need to know basis and was exposed to May's direction at critical times [such as] at the initial meeting [on 26 May 2017], thereafter when May was concerned with the bona fides of the UCOs … and at the warehouse when the goods were supposed to be unpacked…"
4. What the available evidence does disclose was that Piras was at the very bottom of any pyramid or hierarchy. His only initiative was to introduce Derley to UCO1. The evidence suggests that thereafter Piras worked under Derley although I cannot exclude the possibility that at some stage Piras may have taken a task directly from May. However, it appears that Derley was one level in the pyramid or hierarchy above Piras, taking his directions or assignments from May. Whilst there was a level of trust between May and Derley, the message sent by May to UCO2 at 10:54am on 5 December 2017 clearly indicates that that trust was limited: UCO2 was not to tell Derley or Piras anything they did not already know, "about the stacking and all fine detail" and that they were not to collect the drugs which were supposed to be imported - that was entrusted to another.
5. As Mr Dalton pointed out, there is no evidence that Derley was involved in any commercial negotiations, nor the sourcing of the drugs in Mexico and the financial arrangements in that regard. As I have recited the facts all the critical information provision and decision making was between May and UCO2. Sometimes Derley may have been present e.g. on 3 June 2017. If one were to describe Derley as a "manager", he only "managed" Piras and the evidence does not suggest anyone else. This would lead to the categorisation of "low-level manager" but there is nothing to suggest Derley had any decision making or similar executive function. In my view, the submissions of Mr Dalton (MFI 2) in this regard should be accepted.

What did Piras do?

1. Piras' activities may be summarised thus: 1. he succumbed to the temptation made by UCO1 to involve himself in criminal activities to relieve his gambling debts; 2. he introduced Derley to UCO1; 3. he was aware by 20 May 2017 that the criminal activity involved a large quantity of illicit drugs - 250 kilograms were mentioned; 4. he accompanied Derley to the meeting at which Derley introduced May to the UCOs and Piras; 5. he delivered a Blackberry device to UCO2; 6. he assisted Derley checking UCO2's trustworthiness 7. he delivered $30,000 to UCO2 at Mrs Macquarie's Chair; 8. he confronted UCO2 about his request for another Blackberry device, but clearly acting at the behest of May directly or indirectly; 9. on 19 October 2017, he indicated his reluctance to acting as a messenger; 10. he was recruited into the events of 5 December 2017, although he was reluctant to assist in unpacking the shipping container.
2. As ought be evident from what I said about Derley's role, Piras was at the bottom of the pyramid or hierarchy, whose only initiative was to recruit Derley. Thereafter, he appears to have been a "worker" or gopher. I reject the Crown's submission that "both Derley and Piras were in the middle range of the hierarchy of that criminal organisation". To be "in the middle" requires that there be someone beneath Piras, but there is no such known person

Injury, loss and damage

1. The matters which I must take into account when passing sentence for an offence against the law of the Commonwealth are set out in Crimes Act 1914 section 16A(2). Under pars (d), (e) and (ea), I am required to consider the personal circumstances of any victim of the crime, any injury loss or damage resulting from the crime and the contents of any victim impact statement. Here, the attempt to import illegal drugs failed, and was bound to fail because of the involvement of the police ab initio. There is no victim, no injury, no loss and no damage. The offenders are to be punished for the actions which they took to attempt to import the drugs. This does not mitigate their crime, rather it means that their crime is not aggravated by there being victims, damage or loss.

Guilty pleas

1. Crimes Act 1914, s16A(2)(g) requires me to take into consideration that the offenders pleaded guilty to the charges with which they were accused. Both Derley and Piras pleaded guilty in the Local Court, after a brief of evidence had been served but before a committal hearing. A plea of guilty may be relevant for its subjective value, as evidence of genuine contrition and remore and/or a willingness to facilitate the course of justice and as an acceptance by the offender of his responsibility for his crime: R v Olbrich (1999) 199 CLR 270; Filippou v The Queen (2015) 256 CLR 47. I may now also take into account the utilitarian value of the plea, even if there be no subjective value: Xiao v R [2018] NSWCA 4. Ordinarily, there will be no material difference between the discount allowed for the subjective or objective value of the plea: Huang v R [2018] NSWCCA 70. Here, the utilitarian value of the pleas is great: the UCOs did not need to give evidence at either committal or trial and that enhanced the protection of their identities. I have no hesitation in allowing a discount of 25% for each plea of guilty. Mr Crown almost conceded that: Transcript, 20 December 2019, p.39.33.

Personal circumstances - Derley

1. Derley was born in November 1953. At the time of his arrest he was 64 years old. He is now 66 years old. He has an extensive criminal history. Leaving aside Children's Court matters, matters which are no longer crimes, and trivial or driving matters, his criminal history includes these offences: Date Offence Penalty 29/08/72 Possess and smoke prohibited drug Fines 14/12/72 Assault Fine Possession of firearm 3 months hard labour 02/11/73 Larceny Fine 25/11/74 Rape 6 years NPP 2 years 6 months 21-04-81 Larceny 6 months suspended False pretences 12 months suspended 25/11/82 Goods in custody Fine Obtain licence by false statement 3 months 13/10/84 Possess and smoke prohibited drug Fine 15/03/91 Assault occasioning actual bodily harm Fine 06/05/93 Supply prohibited drug 3 years periodic detention 09/08/96 Assault Police CSO 50 hours 30/03/01 Possess unregistered firearm Bond Manufacture prohibited drug 18 months suspended 08/07/03 Supply commercial quantity of prohibited drug 4 years NPP 3 years 08/09/03 Break enter and steal 2 years 4 months NPP 1 year 9 months 17/08/01 Break enter and steal 2 years 8 months (charged 02/08/04) NPP 2 years 31/05/04 Aggravated Break, enter to commit serious indictable offence 2 years 8 months NPP 2 years

The offender's custodial record (which is incomplete) shows that his last period of imprisonment was from 2 June 2004 to 28 November 2010, a period of almost 6 years and 5 months.

1. The significance of Derley's criminal record is this: 1. it does not "aggravate" the criminality for which he is about to be sentenced; 2. it does, however, mean that the Court cannot grant him any leniency for his current offending; and 3. as he has a lengthy experience of serving prison sentences, the effect of being taken into custody at the age of 64 is not the same as it would be for a man of similar age who has no custodial experience.
2. Derley was born in Sydney. He grew up in the Glebe, where he attended the local Public School. He described himself to Dr Furst as a slow learner. He had 2 older brothers and 2 younger sisters. His father worked on the wharves at Pyrmont. He was involved in a serious industrial accident when a crane toppled, leading to the loss of half of one of his feet. His father then purchased and drove a taxi, and then purchased a hotel in which both parents worked, but that led to a bankruptcy. His mother died of cancer in 1977 (when Derley was 23 or 24) and his father also died of cancer in 1988 (when Derley was 34 or 35). His second older brother committed suicide in 1992 at the age of 30, when Derley was 38 or 39.
3. Derley's teenage years were troubled. Dr Furst has this history: "Mr Derley was in trouble with the police from an early age, as reflected in his criminal history, including break and enter offences when he was 12 or 13 years of age. He said he was 'living on the streets' and was 'running wild' at the time, having no money. Mr Derley was placed in boys' homes at the age of 13 years. He subsequently attended Ibrox Park High School in Leichhardt when he was 14 years of age, leaving school after only 6 months when he was about 15 years of age…"
4. Derley's work history was interrupted by gaol sentences and by drug and alcohol addictions. He worked in the wool stores in Ultimo for six months. He worked with a step-brother in a bricklaying business for about five years, but this business collapsed in the late 1980s. After his release from custody in 2010, he obtained work as a fruit packer at a fruit and vegetable warehouse in Regents Park in 2011, and he did this work until his arrest for the current offence.
5. His first wife was Patricia. They had four children: Renae (38 years), Rochelle (28 years), Jake (26 years) and Reanne (22 years). The offender and Patricia broke up in the late 1990s. His second wife is Amanda. This relationship is more than 20 years old. Amanda has developed chronic health problems, including arthritis, lupus and asthma. In his letter to me (exhibit 5) the offender said: "I hope and pray my wife gets well while I am in here [prison] as she is not well and she has not been to see me at all. She is very angry with me. [I] hope she will forgive me in time as I have grandchildren I'd like to see grow up as well."
6. Derley has a history of excessive and regular drinking from the age of 16 years. He drank heavily in his 20s, 30s, 40s and 50s. He had frequent blackouts. During his last, lengthy period of imprisonment he sought counselling and assistance to overcome his alcohol addiction. In recent years, he was only drinking on social occasions such as birthdays. In the past he also abused illegal drugs. Commencing in his late teens. He used cocaine, amphetamines and MDMA when he had money to buy the drugs. He was spending $1000 per day on his combined drug and alcohol addictions at the time of his drug supply offending in 2003 and the break and enter offences of 2004. The offender appears to have discontinued his ingestion of illicit drugs during his incarceration between 2004 and 2010. The offender denied to Dr Furst, who examined him on 5 February 2019, using illicit drugs "over recent years".
7. The offender's previous addiction played no part in his motivation to participate in this current crime. Like Piras, Derley had a gambling problem. Dr Furst obtained this history: Mr Derley said that he and Amanda were living in a Housing Commission dwelling at the time, struggling to meet their weekly bills that included rent, Amanda's medical bills and his medical bills. He had also been gambling on an ongoing basis over the previous couple of years, generally on poker machines. Mr Derley reported losing up to $3,000 in two hour periods of gambling, often chasing his losses, and gambling on a regular basis, about 2-3 times per week. He hid the extent of his gambling and losses from his wife, such as by gambling on the way home from work. He would feel worse after losing. Mr Derley apparently accrued gambling debts totalling $176,000 by 2017. He was under pressure to repay the money he owed. He stated he was worried about the safety of himself his wife and his grandchildren if he did not repay the money, but he did not have sufficient resources to do so. He was not drinking at the time and denied using illicit drugs. Mr Derley maintained that he understood his debt would be 'wiped' for his role in the offences in question before the Court, i.e. 'picking up stuff' from a warehouse in Alexandria. That history explains not only why Derley became involved in this crime but also what he expected to gain from it, about $100,000 more than Piras.
8. Unsurprisingly, Dr Furst diagnosed Substance Use Disorder (alcohol, cocaine, amphetamines) in remission, and Gambling Disorder. Dr Furst recommends that Derley attend Gamblers Anonymous sessions, either in custody or whilst on parole. Alcoholics Anonymous appears to have greatly assisted him to overcome his alcohol addiction. I would expect that Gamblers Anonymous would similarly assist him.

Derley's remorse

1. Dr Furst obtained this history: "Mr Derley described feeling "very angry with himself", "beating himself up" and "struggling to cope" with what he had done. His wife Amanda is also apparently very angry with him." In that regard Dr Furst observed that the offender was anxious about his wife's health and welfare without his direct assistance, as her arthritis and lupus were serious conditions which restricted her mobility.
2. After referring to his wife's anger, Dr Furst's history continues thus: "He appreciates his offending activities would have caused significant harm to the community and to his family [if] the drugs in question had been imported as planned, stating, "I shocked myself. I don't know why I end up in these situations… it's the stupidest thing I've ever done. Think of the harm I could have done if it had arrived here…" The offender's letter (exhibit 5) repeats graphically the same sentiments. Although Derley did not give evidence, I am prepared to accept that he has true remorse and contrition for his crime. He is aware that his action has damaged his relationship with his wife, may have damaged his relationship with his children and may also interfere with his bonding with his grandchildren. He is also aware of, and regrets, the damage that his actions could have caused to our community.

Derley's future

1. Crimes Act 1914, section 16A(2) requires me to consider: (j) the deterrent effect that any sentence … may have on the person; (h) the prospect of rehabilitation of the person; Dr Furst provided this prognosis which is replete with common sense: "He is now at retirement age and is facing a significant sentence for a serious drug offence, limiting the utility of vocational training or other education, as the likelihood is that Mr Derley will become a pensioner and will likely live in Department of Housing accommodations when released from custody. It is also likely he will become the carer for his medically disabled wife Amanda when released from custody, as her conditions are serious and progressive, as are anticipated associated disabilities.
2. Previous incarceration led to the offender's release from drug and alcohol addictions. I expect that this incarceration and its consequences will allow the offender to escape his gambling addiction. His concern for his disabled wife appears to be genuine. On his release from custody, I anticipate that he will return to their Housing Commission accommodation at Lilyfield to care for Amanda and to establish strong ties with his children and grandchildren. I do not see Derley as being a further threat to our society, at risk of further offending or of exposing himself to the risk of again being locked up in gaol. The prospect of his not re-offending, the prospect of rehabilitation is, in my view, very good. Specific deterrence is not an issue, but general deterrence remains: s16A(2)(ja).

Personal circumstances - Piras

1. Piras was born in July 1957. At the time of his arrest he was 60 years old. He is now 62 years old. Unlike Derley, he has no prior criminal conviction. For the drugs found at his home after his arrest, three convictions (one for each drug) were recorded and one $500 fine imposed. Piras comes before this Court as a man of prior good character and he is entitled to be dealt with leniently. He was first taken into custody at the age of 60 years. His custodial history shows 10 movements in less than 2 years. He has been incarcerated at Surry Hills, Silverwater, Parklea, Cessnock, Kempsey, Shortland (Hunter Valley), Long Bay Hospital, Parklea and Silverwater. I can accept that this would have been a frightening and unsettling experience for him.
2. Piras was born in Sydney. He grew up in Newtown and later in Hurlstone Park. He described his childhood to Dr Dayalan, a psychiatrist who examined him on 12 December 2019, as having been good and one in which he shared a close relationship with his parents. There was no history of abuse or trauma in his childhood. The offender has one younger brother.
3. He completed Sixth Form (Year 12) at Christian Brothers High School at Lewisham. Dr Dayalan records that he studied an electrical engineering course, but that does not appear to have played any part in his employment history. Piras described his academic performance to Dr Dayalan as average. He appears to have completed secondary education in 1975. His employment history is this: 1. Government Clerk for 8 years, and casual waiting at the Mandarin Club, Sydney; 2. Owner and operator at the 'Il Nido' restaurant in Darlinghurst from 1984 to 1996; 3. Owner and operator of a carwash and café at Burwood called "CarWash 2000" from 1997 to 2006; 4. Manager of "Cucina Sopranos" restaurant, Sydney, from 2011 to 2014; 5. From 2015, an Uber driver, working up to 60 hours per week, until his arrest.
4. He met Nadia in 1981 and they married in 1988. They have four children: Ashley (a daughter) (30 years); Giuseppe (29 years); Marco (28 years) and Bianca (27 years). Ashley swore an affidavit on 19 December 2019 (exhibit 8) and gave oral evidence. In that evidence she said that, "We had a really nice upbringing. We had a really good childhood and there was a lot of love in our household". She described her father as always working to support the family and her mother as a housewife and carer ("stay at home mum"). Ashley described herself in evidence as a "cloud delivery manager for a fintech company". Her partner is Piero Fonseca; who provided a reference dated 9 December 2019. Mr Fonseca has known the offender for 6 years. He described the offender as "always [being] a family-focused person". Mr Fonseca said this: "Robert is a very easy-going man, always there to laugh with and make jokes about life. He never takes himself too seriously and that's what I like the most about him. We share a common Italian background - the love of food, wine and soccer. He is reliable, generous and always happy to be there for others. There have been times when I was in need and he rushed and made himself quickly available to help. He has been a great mentor whenever I have had questions relating to restaurant businesses. I was about to open a new venue and all of his suggestions were very valuable having owned businesses in the past."
5. Bianca Piras now lives with Ashley and Piero. She provided a reference dated 12 December 2019 (exhibit 10). Inter alia, she said this: "Growing up, I had a good relationship with him [my father], as he is a kind, reasonable and supportive man. He has helped me through several hard times in my life, ensuring that I am thinking clearly and teaching me to be more understanding. Still to this day, even after two years of being incarcerated, I have my father's support and guidance in every decision I make. …………………… My father has always been a caring individual, who has no limit to the help he will offer someone who is going through a hard time. When I have issues with my partner, as soon as I would call him for help, he would come to the rescue."
6. Mrs Nadia Piras also supplied a reference dated 8 December 2019 (exhibit 9). After stating her relationship to the offender and her knowledge of his offending, she said this: "Robert and I have known each other for over 40 years, and we have been married for 32 years. We have four wonderful children together and over the years, we have shared many experiences together that have shaped the people we are today. I consider myself to be a good judge of his character, having known him for more than half of my life. Robert has a very kind and gentle soul and his generosity knows no boundaries."
7. What I have quoted thus far is but part of the testimonial evidence tendered in Piras' case. It establishes that the offender and his wife raised and educated four children in a happy home and that those children are a credit to Mrs Piras and the offender. He has been a good parent and, as such, contributed to our society positively. His generous disposition to others, attested to by Mrs Piras, is seen in the story of Sean, told to me by Mrs Piras. Sean was struggling with substance abuse. He asked the offender for employment. The offender not only employed him but provided accommodation for Sean in the Piras family home and assisted Sean to remain drug free. In a similar vein is the story of Dominic Calvi who provided a reference dated 11 December 2019 (exhibit 12). Mr Calvi arrived in Australia from Italy in 2003, alone and friendless. The offender gave him full time work, a motor vehicle to use and helped him to find an apartment in which to live. The offender employed him for a number of years and set him on a career to become an executive chef. Mr Calvi has remained a friend of the offender ever since. But for the failing which lead to the offender's participation in this crime, one would consider him to be an upright and valuable member of our community.
8. Dr Daylan obtained this history of the offender's gambling addiction: Mr Piras had started gambling in his late 20's and he had quickly progressed to gambling on a daily basis. He acknowledged that he had struggled to control his gambling behaviour and his gambling stakes escalated in an effort to make up for losses. He described salience of his gambling behaviour and had experienced psychological withdrawal symptoms of feeling restless and irritable if he did not gamble for a few days. Due to his gambling, he had incurred a lot of debts and owed money to his friends. His gambling had led him to sell the property inherited from his parents. He said that he had struggled to pay the school fees for his children at one point. His relationship with his family members and friends got strained due to his gambling addiction. Mr Piras had sold his car wash business after having successfully run restaurants and car wash businesses for several years. He had found the transition to working as an employee quite hard and had struggled to maintain his employments. In the context of strained relationship with family members and friends, financial difficulties and perceived loss of status in his society, Mr Piras had felt quite stressed and low in mood. He had resorted to using increasing amounts of illicit drugs to deal with his emotional distress. He said that every time he lost money on gambling, he got into a habit of using illicit drugs to stop him ruminating about the loss. Mr Piras had not sought any professional help for his mental health issues and addictions. He had never been prescribed psychiatric medication. There was no history of admission to inpatient psychiatric facilities. Around the time of the offences, Mr Piras had been gambling on a daily basis. He had been using cocaine mostly on weekends and admitted to using cannabis after having used cocaine. He had used crystal methamphetamine occasionally to boost his energy levels. His wife had suspected that he had been using illicit drugs and this had caused further strain in the relationship. Mr Piras had strained his relationship with a number of friends due to money owed to them. His siblings and extended family members had disapproved his decision to sell the property inherited from his parents. He had worked as an Uber driver for 60 hours a week due to his financial constraints. Mr Piras recalled that he had been feeling very stressed around the time of the offences. He had been sleeping only four hours a night. He had struggled to stay focused on tasks and had made impulsive decisions. His energy levels had been low. He had been quite irritable especially towards his wife. His self-esteem had been low given the strained relationship with most of his friends and family members. Mr Piras added that he had felt hopeless about the future. He denied any suicidal thoughts. He had experienced panic attacks characterised by chest tightness, increased sweating and palpitations.
9. The offender's gambling addiction explains but does not mitigate his criminality: to attempt to make substantial amounts of money to repay personal or family debts is no less criminal than to attempt to make the same amounts for pure profit: vide Botero (Ruben) (NSWCCA, unreported, 24 June 1998) per Barr J. There is authority that pathological gambling will properly go to mitigation of penalty: R v Petrovic [1998] VSCA 95; Molesworth [1999] NSWCCA 43. In the present case Dr Dayalan has diagnosed a gambling disorder, but that condition results from the offender's voluntarily taking up the habit "in his late 20's" and places Piras in the same position as a man who at that age started to ingest illegal drugs, which practice eventually led to addiction. In my view it is not a mitigating factor. See also Johnston v R [2017] NSWCCA 53.
10. Besides diagnosing a gambling disorder, Dr Dayalan also diagnosed a stimulant and cannabis use disorder, which was secondary to his gambling disorder: "Mr Piras resorted to using increasing amounts of cocaine and cannabis since 2008 to reduce the emotional distress secondary to his gambling disorder and life circumstances." In Dr Dayalan's formulation, these disorders together with the offender's financial circumstances and marital strain secondary to them led to a major depressive disorder at the time of his offending. One can certainly accept that the offender was depressed by his increasing debt and resulting marital strain but, again, this is all secondary to his voluntarily acquired gambling addiction. It explains why the offending occurred, but does not mitigate it.
11. The offender no longer suffers from major depressive disorder. Piras has sought to rehabilitate himself. This letter to me of 20 December 2019 (exhibit 7) contains this: The past two years of my incarceration has opened my eyes to the damage drugs do to our society. I have seen people bashed and stabbed over drugs. What I have witnessed has left me with real concerns for our society in dealing with this problem. I had no idea until I was incarcerated. My time has really opened my eyes to the harsh reality of drug addiction, and I have considered how my actions seriously contributed to this problem. I have tried to mentor any inmate who I could give advice to, in order to help them make a difference to their own lives. I am proud to say there are a few inmates who keep in contact with my family to tell them how well they are doing because of my help. I have also done some Narcotics Anonymous classes which are a great help for my addiction problem. I have been clean since I have been in custody and this is something that I am really proud of. The Narcotics Anonymous classes have really helped me understand my own addiction and how to deal with it. I now know that resorting to drugs and withdrawing from my loved ones is not the solution to my problems. I need to be confident in seeking help when I need it and address my issues head on. I have also been attending the prison Chapel and the Chaplain has played an important role in aiding my recovery. I am making better choices and my religious beliefs are now at the core of my life, which is something I didn't have before I went into custody. My faith helps me and gives me a solid foundation on how to move forward positively when I am released. I intend to make my recovery a lifelong commitment and am also looking to access more "self-improvement" programs when I am sentenced to help keep me on the right path. I would also really like to throw myself into some community work through Narcotics Anonymous to help people who have problems with gambling and drug addiction. I would love to speak about my experience with addiction to try and help others, so they don't end up in the same position as me. It is my hope that I can give these people a new perspective on their own lives and urge them to understand the consequences of their actions. This is confirmed by Ms Ashley Piras. Her affidavit (exhibit 8) contains this evidence: The offender has told me how embarrassed and disgusted his is with himself for becoming involved in trying to import illicit drugs, particularly ice. We have spoken about how he has seen, firsthand, the devastating effects that drug addiction can have on people's lives. The offender has spoken to me about how he has tried to make his time in custody as positive for himself and others, as best he can. I have received approximately four (4) phone calls from inmates who have expressed to me how supportive the Offender was during their time on remand. These inmates spoke to me about how pure-hearted, encouraging and kind he was to them in sharing food, helping them make plans for the future and in some instances, transitioning to living a sober life. I know that when the Offender was at Kempsey Correctional Centre, he assisted a young Indigenous man to break free from his drug addiction. This is something that the Offender is very proud of, as he has been able to help someone better their own life. My father has also been attending Narcotics Anonymous and frequently seeks guidance from the Chaplain at Long Bay Correctional Centre. This is because he is committed to drawing from the networks around him, so he can continue to grow and develop as a person.

Piras' remorse

1. The offender's letter contains this: "I am a man who has raised my own children to respect the law, work hard, stay away from drugs and live life to a high standard, which is why I am very embarrassed and saddened to have committed this offence. I make no excuses for my actions and I sincerely apologise for what I have done. …………………….. My network of friends have already assured me of employment and support for when I am released and have continued to be there for me since I was arrested. I don't want to let these people down again. The gravity of what I have done has really hit my wife hard. She has struggled so much over the last two years with being teary and anxious and I hate that it was me who put her in that position. We have lost relationships with family and friends who won't talk to me or my family because of my involvement with helping import drugs. I am now in my 60s and have missed out so much with my wife and children. I don't want to waste any more time with my family. Drugs have no place in our society. Those statements, together with what the offender is doing to rehabilitate himself, in particular assisting others, indicates to me true victim empathy, real contrition and remorse.
2. What Piras says, is abundantly corroborated: 1. Ms Ashley Piras' affidavit [39] and [45]; 2. Mrs Nadia Piras' reference, final paragraph; 3. Ms Bianca Piras' reference, final paragraph; 4. Ms Natalie Bechara's (offender's niece), reference, final paragraph; 5. Mr Dominic Calvi's reference, final paragraph; and 6. Mr Piero Fonseca's reference, final three paragraphs. I accept that the offender is truly remorseful and understands the harm which his crime could have caused to our society.

Piras' future

1. I accept that Piras has thoroughly learnt that crime does not pay. I wholly accept that he will not offend again. The prospects of rehabilitation are excellent. He clearly still has the support of a loving family and good friends. On release from custody, he will re-enter the workforce and live a law-abiding life.

Comparative cases

1. Considerable time was taken, both in written and oral submissions, in discussing cases which Counsel believe were comparable with the current case. In chief Mr Crown referred me to 7 cases, although they were numbered 1 to 8 (omitting any numbered 6). In reply Mr Crown summarised a further 7, which were those referred to by Mr Dalton SC and Mr Boulten SC in their submissions, less 1 of those authorities. These authorities are: R v Lee [2007] NSWCCA 234 Cheun v R [2004] NSWCCA 116 Wang v R [2010] NSWCCA 319 Ma v R [2010] NSWCCA 320 Pham v The Queen; Tang v The Queen [2012] VSCA 101 R v Yeo [2012] SASCFC 60 Sparos v R [2013] NSWCCA 223 Visser v The Queen; Falanga v The Queen [2015] VSCA 168 Velez v R (Cth) [2015] NSWCCA 177 R (Cth) v Yuan [2015] NSWCCA 198 R v Schlevis; R v Hildebrand [2016] QCA 294 Vi v The Queen; Lach v The Queen [2017] VSCA 264 Jaafar v R [2017] NSWCCA 223 Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270 Shakhanov v The Queen [2019] VSCA 38
2. In Mr Crown's initial list the highest sentence was 27 years and 5 months (NPP 18 years 11 months) [R v Lee] and the lowest sentence was 14 years (NPP 9 years) [R v Hildebrand]. In the other cases to which I was referred, the highest sentence was 17 years (NPP 10 years) [Velez v R] and the lowest sentence was 8 years (NPP 5 years) [Shakhanov v The Queen]. However in the latter case there is reference to sentences passed on co-offenders, one of whom was sentenced to 7 years (NPP 4 years) [DPP v Findlay [2018] VCC 276]. Accordingly the "comparative cases" show a range of head sentences between 27 years and 5 months, and 7 years, and a range of NPPs between 18 years and 11 months, and 4 years. The range is so large that it shows that all of these cases cannot be comparable.
3. The case which Mr Dalton SC suggested was the most analogous was Shakhanov v The Queen [2019] VSCA 38. Shakhanov and Findlay were members of a group of offenders, involved in the attempted importation of 209.79 kgs of pure methamphetamine. The shipment of the drugs was intercepted in the Melbourne Docks by officials from the Australian Border Force and the Australian Federal Police, and was substituted by an inert substance. When arrested, Shakhanov had in possession 107.25 kgs of the inert substance. After the substituted substance had been unloaded, part of it was left in a location in an unattended van. Shakhanov and Findlay made arrangements by text message and telephone. Each of these offenders then drove separately to the location of the unattended van. Findlay removed the substituted substance from the van into his car, whilst Shakhanov kept watch from a nearby location. They then each drove to another location where the substance was unloaded from Findlay's car into a shopping trolley obtained by Shakhanov. Findlay then drove away from the scene, perhaps to return the borrowed car he was driving. Shakhanov remained at the scene and was arrested. Findlay was arrested when he reached his destination. The question raised on appeal was parity. Shakhanov was initially sentenced to 9 years imprisonment (NPP 6 years) which was significantly greater than the sentence passed on Findlay and only slightly less than a sentence passed on another offender, Nguyen, of 10 years (NPP 7 years) whose role appeared to be greater. On appeal the County Court sentence was reduced to 8 years (NPP 5 years), Hargrave JA pointing out that Shakhanov's culpability was greater than that of Findlay and less than that of Nguyen.
4. Of course, every case depends on its own facts and even where there are co-offenders, their roles are often different and the personal circumstances of each co-offender can differ remarkably, as they do in this case. I shall not seek to tabulate the "comparative cases". I have, however, considered them. What comes through, loud and clear, is the importance of general deterrence: the community must know that those who seek to import large quantities of illegal drugs will suffer condign punishment.

Consideration: Derley

1. I have already considered Derley's actions in this attempted importation. Piras was on the bottom level of the hierarchy. Derley was only one level above him. Derley managed Piras but the evidence discloses no one else. Derley's major contribution appears to be the introduction of May to UCO2. Thereafter Derley acted for May. His role was relatively minor. He was trusted to some extent but, clearly, not entirely. He appears to have made no financial input or to have had any contact with anyone in Mexico. The most significant fact in his admission to be one of the conspirators - he knew what the plot was and took an active part in it. I accept that he is remorseful. I accept that specific deterrence is not an issue. General deterrence is important.
2. Derley has some medical problems, not unsurprising for a man of 66 years who has led the life he has. Dr Furst's history includes this: He has a history of atrial fibrillation and obstructive sleep apnoea, requiring CPAP. Mr Derley takes multiple medications for his heart condition, thyroid condition, hypercholesterolaemia and [gastric] reflux." There is also a report from his treating cardiologist, Prof. R.W. Jeremy. When he reviewed Derley in July 2015, he remained in sinus rhythm without any evidence of heart failure and the same obtained when he last saw his patient in July 2016. There is no suggestion in the evidence of any recent cardiac symptoms. His thyroid problem was diagnosed on 14 April 2016 as being hypothyroidism, which condition should be controlled by appropriate medication (see exhibit 4). There is no suggestion that Derley's health problems cannot be adequately managed by Justice Health. However, common experience is that health problems can multiply with advancing age - this may indicate a moderation of the sentence otherwise to be passed.
3. After careful consideration I have reached the view that I should commence the sentencing exercise with a term of 12 years. I reduce that to 9 years for the utilitarian value of his plea of guilty. There is no statutory nexus in Commonwealth law between the head sentence and the non-parole period which I am required to fix pursuant to Crimes Act 1914, section 19AB(1): Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45. It must, however, incorporate all the relevant sentencing principles, including punishment and deterrence: Power v R; sub nom. Lyons v R (1974) 131 CLR 623. I have reached the decision that the appropriate non-parole period is 6 years, such that the offender will be released on parole shortly after his 70th birthday.

Consideration - Piras

1. Piras was at the bottom of the hierarchy in this attempted importation. He has pleaded guilty to abetting, not to a more serious (in my view) charge of conspiracy or attempting to import. He did what he did in an attempt to earn either $70,000 or $80,000. His major role was to introduce Derley to UCO1. His allocated tasks were no sophisticated. He did what either Derley or May told him to do. He expressed his reluctance at times. He comes before this Court as a man of prior good character, a man who all his life had worked to support his family and, unfortunately, a gambling addiction. For his error of judgment in allowing himself to be embroiled in this criminal enterprise he has paid a hefty price: incarceration at the age of 60 years. He is entitled to leniency. His prospects of rehabilitation are excellent.
2. He, too, has health problems. They appear to be, at this time, more severe than Derley's. Ms Ashley Piras attested to this in her affidavit: The Offender suffers from chronic kidney stones. He has suffered from kidney stones on numerous occasions previously and he has been hospitalised in the past. I am aware that he has struggled with this condition whilst in custody. I know that he has been taken to hospital twice this year, as the kidney stones are too large for him to pass and he has blood in his urine. He struggles with the pain from these chronic kidney stones. In 2016, the Offender had a bad car accident. After this accident, he began to suffer from severe back pain. He has suffered ongoing back issues since then to the point where, prior to his arrest, he required assistance with getting out of bed in the morning. I know that he is still suffering from this pain and has seen a nurse in custody. He has been provided with exercises to perform in order to alleviate the pain, but this has not improved the situation, nor is it a long-term solution to his pain. He is not being provided with any medication to alleviate the pain. The Offender has told me that since he has been in custody, there have been mornings where he has been immobile, and he cannot get off his mattress. He has previously seen an acupuncturist and Chinese herbalist to assist with this pain, but he cannot access this treatment in custody. These problems call for a further moderation of his sentence.
3. Parity does not arise in any great way in this case. Derley's crime is much more significant. His background allows no leniency. Piras' prospects are brighter than Derley's. I have reached the view that I should commence with a head sentence of 5 years. I reduce that by 25% for the utilitarian value of the offender's plea of guilty. That provides a head sentence of 3 years and 9 months. I have reached the view that the appropriate non-parole period is 2 years and 6 months.

Sentences

1. Trevor Alfred Derley, you are convicted of the charge that between about 13 April 2017 and 5 December 2017 at Sydney in this State and elsewhere you conspired with Scott Allan May, Robert Albert Piras and divers others to import a border controlled drug, methamphetamine and the quantity being a commercial quantity. I sentence you to imprisonment for nine years commencing on 5 December 2017 and expiring on 4 December 2026. I fix a non-parole period of six years expiring on 4 December 2023.
2. Robert Albert Piras, you are convicted of the charge that between about 13 April 2017 and 5 December 2017 at Sydney in this State and elsewhere, you did aid, abet, counsel or procure the commission of an offence by Scott Allan May and Trever Alfred Derley against sections 307.1 (1) and 11.1(1) of the Criminal Code. I sentence you to imprisonment for three years and nine months commencing on 5 December 2017 and expiring on 4 August 2021. I fix a non-parole period of two years and six months expiring on 4 June 2020.

Amendments 01 December 2020 - [34] typo amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 December 2020