R v Doherty

R v Doherty - [2019] NSWDC 515 - NSWDC 2019 case summary — Zoe

[3]

Introduction

Rhys Doherty, the offender, has accepted his guilt of a very serious offence - that he in March 2016 aided and abetted an attempted possession of a commercial quantity of the prohibited drug methylamphetamine: ss 307.5, 11.1 and 11.2 Criminal Code Act 1995 (Cth). The offence carries a maximum penalty of life imprisonment and or a fine of 7,500 penalty units.
Two other men, Fadi El Jamal and Nathan Stanmore, were involved in the collection of the consignment. They have already been sentenced by me: R v El Jamal [2019] NSWDC153; R v Stanmore, unreported, NSWDC, 3/10/2018.
El Jamal pleaded guilty to attempted possession of a commercial quantity of the prohibited drug methylamphetamine and asked that another matter also carrying a potential life penalty be taken into account on the schedule: s.16BA Crimes Act 1914 (Cth). He disputed the facts put forward by the prosecution. After a hearing I resolved most of the issues against him and, after allowing a bit over 20% reduction for the utilitarian value of his guilty plea, sentenced him to 14 years imprisonment with a non-parole period of 9 years 8 months.
Stanmore also indicated an early plea and asked that another matter, also carrying a potential life penalty, be taken into account on a schedule. He had cooperated with the authorities from the moment of arrest. His sentence was reduced by 40% because of the early plea, his cooperation and assistance. He was sentenced to 7 years 6 months with a non-parole period of 4 years 6 months.
Doherty also indicated he would plead guilty in the Local Court. The initial delay was not his fault but he made a number of applications to postpone the proceedings once they came to this court. The otherwise appropriate sentence will be reduced by 25% to take into account the cooperation and facilitation of the course of justice implicit in that guilty plea.
After his arrest Doherty spent from 6 April 2016 until 13 October 2016 (189 days) in custody before being released on very strict bail conditions; those conditions have been moderated over time. His sentence will be backdated to take time served in custody into account. His adherence to bail conditions including a curfew and his efforts to rehabilitate himself while on bail will also be sympathetically considered.

[4]

Summary of facts for sentence

On 17 March 2016 the Office of the Narcotics Control Board, Thailand intercepted a consignment destined for Australia containing 5,156g of impure methylamphetamine secreted in showerheads. The address was a serviced office in Sussex St, Sydney.
The Thai authorities cooperated with the Australian Federal Police (AFP). The consignment was forwarded from Thailand to the AFP in Australia without the drugs. Later analysis found the substance to be 77.1% pure methylamphetamine with an estimated pure weight of 3,771.5 grams.
At about 7:30am on 30 March 2016, the offender and Stanmore met at Lugarno, NSW. Doherty received a message from El Jamal containing address details for the delivery. Doherty showed this message to Stanmore. El Jamal also instructed Doherty to tell Stanmore to keep "the blue phone" on him.
At 8.13am Stanmore drove from Lugarno to the city followed by the offender in a blue Toyota Hilux.
At 10.03am the offender, in the Hilux, followed Stanmore in the Commodore into the Wilson carpark in Sussex Street, Sydney. They parked in separate areas of the car park; Doherty later moved the Hilux within the carpark.
At 10.18am the consignment was delivered to the nominated office at Sussex Street Sydney.
At 10.20am Stanmore collected that parcel and took it on a trolley to the carpark.
At 10.26am there was a coded conversation between Stanmore and El Jamal confirming collection.
At 10.45am the offender left the carpark ahead of Stanmore and headed to the South Coast from Sydney with Stanmore following.
At 12.30pm the offender and Stanmore entered the Albion Park Hotel. The consignment was visible in Stanmore's car. El Jamal arrived soon after and the three men had lunch. El Jamal paid. The offender was seen with El Jamal later that afternoon.
At 7.58pm Stanmore took the consignment to El Jamal's home in Calderwood. At about the same time the offender arrived at Calderwood in a black Range Rover. At 8.07pm interception devices at the premises picked up sounds consistent with the consignment being opened.
At 8.14 pm the offender ran with the consignment from the garage of that premises to the beige Holden Commodore. Stanmore then drove the Commodore to a nearby Golf Club. A black Porsche Cayenne, with El Jamal and the offender in it, closely followed the Commodore. At 10.50 pm the Commodore was driven from the golf club and parked underground at the Novotel Hotel in Wollongong.
At 11.36 pm the Porsche Cayenne attended drive-thru service at McDonald's Wollongong and at a service road nearby picked up Stanmore.
At 11.52 pm Stanmore walked towards his vehicle in the Novotel carrying a red bag and retrieved something from the rear of his vehicle and then re-entered the hotel.
At 12.10 am on 31 March 2016 AFP commenced inquiries at the Novotel Hotel.
At 12.24 am a call was made from a payphone across the road from McDonald's Figtree to the Novotel purporting to be from the AFP.
At 12.30 am the offender and El Jamal were seen to walk from the payphone back to the Porsche Cayenne.
At 12.35 am AFP entered room 1032 at the Novotel and arrested Stanmore, who was in possession of the contents of the consignment.
At 5.50 am El Jamal's premises were searched. El Jamal was not at home. He was contacted by phone and agreed with AFP to voluntarily surrender himself at the AFP offices in Sydney.
At 3:02 pm the offender accompanied El Jamal to the Sydney International Airport, Terminal 1. El Jamal was attempting to flee the country. El Jamal was arrested at the Customs checkpoint.
On 2 April 2016 the offender disposed of his blue Toyota Hilux for $9,700. The redbook value of the car is $33,000.
The agreed facts conclude that: "The offender's role was limited to remaining with Stanmore whilst the consignment was being transported from Sydney to El Jamal in the Wollongong area, because Stanmore was not fully trusted."

[6]

Objective seriousness - general principles

As the High Court explained in GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198 at [30] and [31], while there may be an understanding, between the prosecution and the defence, as to evidence that will be led on sentence that does not bind the judge, except in the practical sense that the judge's capacity to find facts will be affected by the evidence tendered. In deciding the sentence, the judge must apply the relevant law and sentencing principles to the facts as found. The judge's responsibility to find and apply the law is not circumscribed by the conduct of counsel: "It is for the sentencing judge, alone, to decide the sentence to be imposed: The Queen v Olbrich (1999) 199 CLR 270. For that purpose, the judge must find the relevant facts: Cheung v The Queen (2001) 209 CLR 1 at 9-11 [4]-[10]. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally as in an agreed statement of facts. There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case."
General propositions that guide assessments of objective seriousness in matters such as this were conveniently collated in R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106, at [72] (citations omitted). Relevantly, here, they include: 1. Criminality must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation; 2. Where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing Judge should have regard to the offender's involvement in the overall transaction for the purpose of determining the offender's degree of involvement in a drug-smuggling enterprise; 3. Offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs. 4. 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. 5. 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. 6. 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.

[7]

The offender's version

The offender gave evidence on 16 August 2019. He also put forward a similar version of events to his psychologist, Mr Costello: Psychological assessment exhibit 1. Doherty told both me and Mr Costello that he had made a poor decision doing a favour for friend he did not know well. He said he was impressed by El Jamal, who he thought was a successful businessman; a man he could look up to and admire. He said he thought he was being asked to help guide a new business acquaintance from Sydney down to El Jamal's home.
He told me that although "a little bit" suspicious when given the blackberry phone he still had no evidence there was necessarily anything illegal in guiding Stanmore back from Sydney. He told Mr Costello he only became suspicious when El Jamal gave him a blackberry phone. After that he was aware that there was a significant risk a drug importation or something similar was involved but that he was too afraid to raise it in case it was illegal or if it was legitimate that he might look foolish and risk losing El Jamal's friendship. He could not say "no." Something he now recognises, having spoken to his counsellor, Mr Costello, was a personality defect.
In evidence he told me that at no stage did he have a suspicion a very serious offence was being committed: not even when he and El Jamal went and spend the night in Sydney and then went to the airport the next morning. He said, although he had met Stanmore at El Jamal's home on an earlier occasion, he did not consider it odd that he was to guide him to that address. He said there was no reason he did not park alongside Stanmore in the Sydney car park. He said that neither leaving Stanmore's car in the Hotel carpark nor what occurred once the consignment was taken to and then hurriedly removed from the garage excited in him knowledge a serious crime was being committed or that drugs might be involved. He was just doing El Jamal a favour and was trying to please him and be accepted by him as friend.
He said in cross-examination by Mr Kanagasabapathy, Solicitor for the Director, that he, "should have been more aware that a crime was being committed, I possibly should have been…"

[9]

Determination - factual issue

The history given by the offender to the court and to Mr Costello is at odds with the agreed facts, in particular what he was observed to do on the 30 and 31 March 2016. It is the entire period that I must consider. The Court Attendance Notice founding the guilty plea covers all of the 30 March 2016 and until 3:00 AM on the 31st.
Mr Goldsworthy's submission that this offence concluded when the consignment reached the Albion Park Hotel cannot be accepted. Possession never crystallised as there were no drugs in the consignment to possess. What is being punished here is Doherty's aiding and abetting that attempted possession. He is not charged with aiding and abetting the delivery to El Jamal. The crime of attempting to possess the drug (believed to be) in the consignment continued until Stanmore was arrested in the Novatel Hotel in the early morning of 31 March 2016, with tools and showerheads taken from the consignment delivered early the following day. Doherty's aiding and abetting that attempted possession continued up until he called the Novatel from a payphone and purported to be an AFP officer. I reject his assertion in evidence he did not mention being from the AFP as contrary to the agreed facts. After the commission of the offence Doherty stayed with El Jamal and neither returned to their homes - indicating awareness that they were both in serious trouble.
I am prepared to accept, on balance, that Doherty was never told of the actual contents of the consignment. He didn't "know" because he deliberately didn't ask. I cannot accept his assertions he did not know that he was aiding a serious crime. To the contrary, consistent with his guilty plea - he was aware of a substantial risk and that it was unjustifiable to take the risk: Criminal Code Act 1995 (C'th) s 5.4. To use pre-Criminal Code language, his attitude was one of "wilful blindness:" see He Kaw the v The Queen (1985) 157 CLR 523, at [10] and [18].
In reaching that conclusion I take into account: the initial meeting with Stanmore at Lugarno; the use of the blackberry phone and the messages received on it; the visit to the underground carpark where he waited at a distance from Stanmore and his car; that he escorted Stanmore to the hotel, not El Jamal's home. Further, when the consignment was delivered and unpacking started, it was Doherty who took the box to the Holden. Doherty remained with El Jamal all evening and was with him the next day when the call was made to the Novotel and later at the airport.
A simple repetition of these agreed facts puts the lie to the offender's assertions he was an innocent dupe whose actions were only technically criminal. The objective facts prove beyond reasonable doubt that Doherty knew he was shadowing Stanmore because Stanmore was picking up an unlawful consignment of some value and that while Stanmore could not be trusted by El Jamal, he could.
The agreed facts note that the offender's role was limited to remaining with Stanmore whilst the consignment was being transported from Sydney to El Jamal in the Wollongong area, because Stanmore was not fully trusted. That statement summarises the task he was given and the task he fulfilled. I will sentence him on that basis not his assertions to the contrary. In doing so I note that while I accept that now over 3 years after the events the offender may have convinced himself the situation is as he now deposes, unless a matter is otherwise supported or uncontroversial, I do not accept his account.
That conclusion does not prove the contrary propositions. Here, there is no evidence what, if any, reward he expected. Here, there is no evidence Doherty was part of a syndicate or that he played any other role in this importation or El Jamal's other crime. He is to be sentenced on the basis he was only involved this day.

[14]

Submissions

I am indebted to Mr Kanagasabapathy, solicitor, for the Commonwealth Director Public Prosecutions and to Mr Goldsworthy for the offender for their comprehensive oral and written submissions. I hope this judgment does justice to them. I have not explicitly referred to all of the matters raised but I have considered and addressed them in coming to my determinations as to the appropriate sentence.
In short, the prosecution position is that a sentence of a severity appropriate to all the circumstances of the offence requires a long period in custody.
Mr Goldsworthy raised a number of issues other than the offender's role: the impact of delay; his efforts at leading a normal community life; that his mental health condition reduced his moral culpability and may have contributed to his offending.
I am prepared to accept that Doherty has used his time on remand to his advantage and has demonstrated a capacity to reform and lead a worthwhile life in the community. He has been kept in a period of uncertainty and heightened anticipation for some years. He and his family and his business will suffer if he is returned to gaol.
I am prepared to accept he has had a number of psychological problems for which he has benefited from counselling and treatment. To an extent they may have predisposed him to accepting whatever it was that El Jamal offered him or he thought he might gain from helping him. He may have been vulnerable to a flawed thinking process, as Mr Costello opines, but that does not significantly reduce his moral culpability. Nor do his psychological conditions make him less a vehicle for specific and general deterrence.
Mr Goldsworthy submits that when all is synthesised; taking into account time served, making allowance for the "quasi-custody" of strict bail and a curfew and the early guilty plea, less than two years imprisonment could be imposed. And, given the very favourable Sentence Assessment Report and Doherty's progress to rehabilitation and the hardship custody would cause him and his family; it should be served in the community subject to an Intensive Corrections Order. This, he said, would meet all the purposes of punishment given Doherty's limited role in this crime and his exceptional subjective case.
While there is no prescriptive rule that precludes any sentencing option an inevitable function of the maximum penalty of life imprisonment is that only in very exceptional circumstances would a sentence other than full-time imprisonment be imposed: R v Qi [2019] NSWCCA 73. Mr Goldsworthy submits that this is such an exceptional case. I cannot accept that submission.

[15]

Purposes of Sentencing

The factors bearing on the determination of sentence will frequently pull in different directions: Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, at 476. A judge must balance often incommensurable factors and arrive at a sentence that is just in all of the circumstances. A judge must take account of all of the relevant factors and arrive at a single result which takes due account of them all: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611 [75]; [2001] HCA 64.
In doing so "[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick." Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 372 [31].
I also have to have regard to statistics and the other cases to which I have been referred by the prosecution and Mr Goldsworthy: Mr Kanagasabapathy made specific reference to R v Karam [2013] NSWCCA 53; R v Considine [2013 NSWCCA 97 and R v Riddell (2009) 194 A Crim R 524.
The consistent application of principle must always be considered. The guidance offered by appellate courts and other decisions is always welcome. The pattern of past sentences for an offence may serve as a guide and can help establish a range, however each case and each offender is individual: See Hili v The Queen (2010) 242 CLR 520, Barbaro v The Queen (2014) 253 CLR 58 at [74].
Care needs to be taken here as the offender's role was different than that of a run of the mill courier and of lesser duration than in the case of the bulk of ss 307.5 Criminal Code offenders. It would not be appropriate to apply the range of sentences applied generally to those low in the hierarchy for commercial drug importation offences: "[S]entencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.'' The Queen v Pham [2015] HCA 39, per Bell and Gaegler JJ at [47].

[17]

Synthesis

It is impossible to determine Doherty's exact role but given the evidence and concessions by the prosecution I sentence on the basis of the objective facts set out above. His role was significantly less than El Jamal's and less Stanmore's. Stanmore well knew what he was involved in and was involved more directly and for longer but he was not trusted by El Jamal; Doherty was.
By allowing himself to fulfil the role of Stanmore's minder, Doherty allowed El Jamal to remove himself from direct supervision of the consignment. He remained with El Jamal, willing to assist, through most the day; returning to El Jamal's home after a short break to visit his own home nearby and have a meal. He did assist directly by moving the box and making the phone call to the Novatel.
The importance of low level operatives to those higher in the operation has long been recognised. Without people such as Doherty those who stand to make to huge profits available from the criminalisation of drugs could not operate their syndicates. While a distinction must be drawn between those at the top and those who are used as underlings, anyone who involves themselves in such serious crimes must expect significant punishment. Without the Doherty's and the Stanmore's drug importation organisations would collapse: R v La Cerf (1975) 13 SASR 237; (1976) 8 ALR 349 at 35. What Doherty did what he did deliberately. It was designed to assist in the commission of what he realised was, and was in fact, a serious crime.
No sentence other than full time imprisonment is appropriate nor could any other type of sentence be imposed. The seriousness of the particular offence before the Court is reflected in the maximum penalty of life imprisonment. I am required to impose an appropriate and just punishment. That consideration, even when all mitigating factors are taken into account, requires imprisonment for a significant and telling period. The sentence can be moderated by requiring that a significant portion of it be served on parole.
Had it not been for Doherty's guilty plea a sentence of 8 years would have been imposed.

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