R v Farah; R v Boustani

District Court of NSW|2020-05-04

Solicitors: Kiki Kyriacou Lawyers (E Boustani) Hanna Legal (R Farah) File Number(s): 2018/00311862; 2018/00311864

Judgment

Each offender comes before the Court to be sentenced in respect of one offence of possessing a commercial quantity of a border controlled drug, reasonably suspected of having been unlawfully imported, by way of joint commission. The offence is contrary to ss 11.2A(1) and 307.8(1) of the Criminal Code 1995 (Cth) and carries a maximum penalty of life imprisonment and/or 7,500 penalty units ($1,575,000).
The border controlled drug is cocaine with a combined pure weight of 98.07kg. The wholesale value of the cocaine seized is estimated at between $18,958,000 and $26,427,000.
Mr Farah entered a plea of guilty on 29 November 2019 in the District Court when the matter was listed in the Commonwealth Super Call Over. His trial had been listed to commence in November 2020 alongside the trial of the co-accused, James Bahmad (whose trial remains listed to commence on 9 November 2020). The Crown concedes that this was a plea entered well in advance of trial. An appropriate reduction in sentence to reflect the utilitarian value of the plea of guilty is 20%.
Mr Boustani entered a plea of guilty in the Local Court, at the earliest opportunity. I am satisfied that the appropriate reduction in sentence to reflect the utilitarian value of his plea of guilty is 25%.

Facts

The circumstances giving rise to the offences are set out in the statement of agreed facts that can be summarised as follows.
In July 2018, Australian Federal Police (AFP) commenced operation Razorclaw to investigate the activities of James Bahmad and Ray Farah and their associates. During the course of the investigation it was established that Elias Boustani was an associate of the pair.
The three men entered into an agreement to commit the offence of possessing a commercial quantity of unlawfully imported border controlled drugs. By their pleas of guilty each offender admits that they had a reasonable suspicion that the border controlled drugs had been unlawfully imported, although they had no part to play in the importation of the substance.
The shipment of drugs arrived in Brisbane on 7 October 2018 concealed within a diesel generator. On 31 July 2018, Mr Farah had departed Sydney and travelled by car to Queensland where he remained on the Gold Coast and then travelled back to Sydney approximately 9 hours later. On 1 August 2018 he attended premises at Croydon where he met with Mr Bahmad. There is no evidence about what was discussed on that occasion.
On 22 August, Mr Boustani had a telephone conversation with Mr Bahmad, during which he was referred to as the "post man". On 12 September, these two men had a telephone conversation during which they discussed when they would catch up. The pair arranged to meet later that same day and they caught up at premises in Croydon Park near Mr Bahmad's home.
On 19 September Mr Boustani and Mr Bahmad met again. There is no evidence as to what they discussed on each occasion. On 25 September, Mr Boustani and Mr Bahmad had a telephone conversation in which they discussed going for a drive. Mr Boustani suggested they could go for a drive that weekend but Mr Bahmad suggested the following night. In a subsequent conversation, Mr Bahmad instructed Mr Boustani to organise dinner for "tomorrow night and pick them up".
On 26 September, a number of conversations took place during the course of the day. In the morning, Mr Bahmad told Mr Farah to come around that afternoon to catch up and that the three men would have dinner. Mr Bahmad instructed Mr Boustani about preparations for the dinner including picking them up.
Mr Boustani collected Mr Bahmad and Mr Farah as directed and all three travelled to a property at Austral which is owned by Mr Boustani's parents. They spent approximately one minute outside the property before returning to their respective homes. The evidence does not establish the purpose for this meeting.
Between 2 October and 5 October 2018, Mr Bahmad made multiple enquiries with retail stores concerning the repair of a number of scanning devices and whether he could obtain a loan of a small device to use to scan for law-enforcement surveillance devices for use in relation to a remote location (the Austral property). The evidence does not establish that these two offenders were aware of the inquiries made by Mr Bahmad.
On 8 October, the three co-offenders had multiple telephone conversations with each other arranging to meet. As a result, Mr Boustani and Mr Bahmad travelled to Mr Farah's premises. The evidence does not establish the purpose for which the men met or what was discussed.
On the evening of 8 October, Mr Boustani flew to the Gold Coast and hired a car. He checked into accommodation in Surfers Paradise where a booking was made until 11 October.
At 11:52am on 10 October, Mr Farah arrived at Mr Bahmad's house. There is no evidence as to the purpose of this meeting or what was discussed.
At 12:35pm, Mr Boustani hired a 3-tonne flat tray truck and returned his hire car to the airport. At 1:47pm, Mr Bahmad had a telephone conversation with an associate (Hanna Ibrahim) requesting that he collect an electrical metal cutter from a hire place.
At 4:17pm, Mr Bahmad attended Kennards at Burwood and made an enquiry about hiring heavy duty metal cutters. He was advised that this was unavailable and no items were hired or purchased. Shortly after, he retrieved an orange and black coloured grinder from his premises. He returned the grinder and a number of cutting discs to his premises that afternoon following an aborted trip to the Sandhub business premises which was closed.
At 6:45pm, Mr Boustani commenced travelling from Surfers Paradise in the Thrifty Hire truck, on the back of which was a large wooden crate. He drove through the night to return to Sydney. Mr Bahmad attended the premises of Hanna Ibrahim and asked if he could use his truck the next day.
At about 9:05pm Mr Bahmad and Mr Farah met at Mr Bahmad's premises and then travelled in a Hyundai iLoad driven by Mr Farah to an unknown location, returning some 10 minutes later. Mr Bahmad retrieved an item from his black Mercedes and placed it in the rear of the Hyndai iLoad, which Mr Farah then departed in. There is no evidence as to what this item was.
On 10 October, Mr Farah was provided with a 'Ciphr' device by Mr Bahmad. A Ciphr device facilitates encrypted communications.
At 5:14am on 11 October, Mr Farah travelled in the Hyundai iLoad to Mr Bahmad's premises. On arrival at those premises, no further telephone calls or messages were made or received to his mobile telephone until his arrest some five hours later.
At 6:21am, Mr Bahmad placed the bag containing the grinder and cutting tools in the Hyundai iLoad. Mr Bahmad and Mr Farah departed the premises in convoy, with Mr Farah driving the Hyundai iLoad and Mr Bahmad driving an Audi.
They then attended the premises of Hanna Ibrahim where they collected the white Mitsubishi truck. At 6:33am, Mr Bahmad in the Mitsubishi truck, Mr Farah in the Hyundai iLoad and Mr Boustani in the Thrifty Hire truck with the large wooden crate on the back, arrived at Sandhub. All three men, with the assistance of Mr Bahmad's associate, Hanna Ibrahim, removed the straps that were used to tie down the large wooden crate and used a forklift (driven by an employee at Sandhub) to move the large wooden crate from the Thrifty Hire truck onto the Mitsubishi truck.
All three men then departed Sandhub, Mr Bahmad in the Thrifty Hire truck, driving in convoy with Mr Farah in the Hyundai iLoad and Mr Boustani driving the Mitsubishi truck which now had the large wooden crate affixed to the back. This was the crate that contained the generator which contained the border controlled drugs.
They then travelled to the Austral property, arriving at 8:04am. Upon arrival, Mr Farah retrieved the bag believed to contain the grinders and transported it to the shed. Mr Boustani parked the Mitsubishi truck within the shed. Mr Bahmad parked in the carpark of the Austral Bowling Club and remained there for a period of time observing the property.
At 8:53am, Mr Bahmad went to a hardware store where he obtained a cutting disc, extension lead and an angle grinder. He returned to the property and supplied these items to Mr Farah. He then departed again and drove around the surrounding streets, observing the area and taking photographs.
At 10:20am, Mr Farah reversed the Hyundai into the shed and three boxes containing 60 blocks of cocaine wrapped in plastic were transported to the rear of the Hyundai iLoad. It is not known who extracted the cocaine from the consignment, nor is it known who loaded the blocks of cocaine into the rear of the Hyundai iLoad. Mr Farah departed the property shortly thereafter in the Hyundai iLoad which now contained 60 blocks of cocaine. He met up with Mr Bahmad, who was driving another vehicle, and followed Mr Bahmad towards Leppington. Both men were intercepted shortly after by AFP officers.
Mr Boustani was arrested at the Austral property. He was in possession of a Samsung Ciphr mobile telephone. Located on the back of the Mitsubishi truck was a large generator and the remnants of a wooden crate. A number of items were seized including tools.
Upon inspection of the large generator, police found that the base had been cut open, with a half empty cavity containing a further 62 blocks of cocaine.
The combined total weight of the 122 blocks of cocaine was 114.91kg with a pure weight of 98.07kg. The wholesale value of the cocaine seized is estimated at between $18,958,000 and $26,427,000. The street value is estimated at between just over $82 million and nearly $115 million. There is no evidence to establish that either offender was going to engage in the sale of the cocaine either on a wholesale or street-level basis.

Objective Seriousness

Each offender is to be sentenced for an offence that carries a maximum penalty of life imprisonment. The maximum penalty is one indication of the seriousness of the offence. The offenders are to be sentenced in accordance with Part 1B of the Crimes Act 1914 (Cth). The sentence to be imposed must be of a severity that is appropriate in all the circumstances, taking into account the matters listed in s 16A(2) insofar as they are relevant and known to the Court.
The nature and circumstances of the offences are set out in the Statements of Agreed Facts. The offences arise out of each offender's participation in a joint criminal enterprise concerning 122 blocks of cocaine with a total pure weight of 98kg, reasonably suspected of having been unlawfully imported. The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to commit the offence.
Neither offender was involved in the importation of the drugs. Although this factor may have limited weight in assessing the objective seriousness of the offence to which each has pleaded guilty, the absence of any involvement in the importation is a matter I have taken into account as relevant to the role each played and the extent of any decision-making responsibility, autonomy or seniority.
The weight of the border controlled drug is substantial. I take into account that the weight of the drug although a relevant factor, is not the chief or determinative factor in determining the appropriate penalty: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584.
The weight of the drug will have increased significance where an offender has knowledge of the amount of the drug involved. The evidence does not establish that the offenders would have known that the quantity of the drug was substantial until 11 October 2018.
In the case of Mr Boustani, I am satisfied that he undertook the following tasks: 1. he was entrusted with travelling from Sydney to the Gold Coast to collect the generator in which the drugs were concealed and to bring the cargo back to Sydney; 2. he assisted with the transfer of the generator and its contents from the Thrifty truck to the Mitsubishi truck; 3. he drove the Mitsubishi truck with the generator from Strathfield to the Austral property; 4. he remained at the property with Mr Farah, at which time the cavity in the base of the generator was accessed and half of the cocaine was removed and packed into boxes before being loaded into the Hyundai iLoad van, which was driven away from the property by Mr Farah; and 5. Mr Boustani remained at the property with the remainder of the cocaine.
The Crown points to a number of meetings and communications between Mr Boustani and Mr Bahmad (as set out in [6]-[11] of the Statement of Agreed Facts), to contend that prior to 8 October, Mr Boustani was aware that he was involved in some type of illegal activity, although the Prosecution cannot establish an awareness that the illegal activity related to drugs. I am unable to make this finding beyond reasonable doubt. The Statement of Agreed Facts sets out a number of communications between the co-offenders in relation to meeting up on 26 September 2018. They attended the Austral property between 8:00PM and 9:30PM on that date.
The evidence does not establish the purpose of the meeting or attendance at the property. There is no evidence as to the discussions engaged in. While the contact may be suspicious, the evidence does not establish beyond reasonable doubt that Mr Boustani or Mr Farah were aware of illegal activity prior to 8 October 2018.
Furthermore, I proceed to sentence Mr Boustani on the basis that he did not have knowledge (as opposed to recklessness) as to the nature of the illicit substance to which the agreement was aimed at gaining possession were border controlled drugs until 11 October 2018, when the generator was accessed and the cocaine was partly unpacked.
I am satisfied that between 8 October and 11 October all activity in which Mr Boustani participated was undertaken with recklessness as to the nature of the substance and the quantity.
The Crown submits that I would be satisfied that the degree of recklessness was of a "high degree", just short of knowledge. Mr Walker SC, on behalf of Mr Boustani, submits that "recklessness is recklessness", the point being that his client had a lesser degree of culpability than an individual with actual knowledge.
I do not find it necessary to identify a range of recklessness and to fix Mr Boustani's degree of recklessness at the higher end. Instead, I find that his state of mind, namely recklessness, is informed by the fact that he admits being approached to participate in the activity by a drug dealer; he took possession of a device that could be used to engage in encrypted communications; and, having regard to his own admissions, he had an expectation that he would obtain a not insignificant financial advantage, believing that the benefit would pay off his debts. The fact that he engaged in this criminal conduct for financial benefit is an aggravating factor, although this is not a case where he sought to enrich himself or where there is evidence to establish that he was living a lavish lifestyle.
The offender's involvement was limited to a relatively short period of a few days, with knowledge crystallising on the day of arrest. Although he was a trusted participant who performed necessary tasks, particularly in hiring the truck and transporting the generator with its contents from Queensland back to Sydney, he had no decision-making role to play at any time. He was not exercising autonomy, instead following the instructions and directions of Mr Bahmad at all times.
Furthermore, he was exposed to the greatest risk of being caught having regard to the fact that he drove the generator from Queensland back to Sydney, and that the shed used to access and unpack the cocaine was a shed on his parents' property. In addition, once the generator, with its contents, had been moved from the back of the Thrifty Hire truck to the back of the Mitsubishi, it was again Mr Boustani who assumed the most risk by driving the Mitsubishi truck to the Austral property.
Mr Farah entered the agreement the day before his arrest. The evidence does not establish that he had any knowledge of the nature of the concealment or the process of delivery before 11 October. There is no evidence that he took any steps to advance the offence before 10 October. He was provided with a Ciphr device on 10 October, and the activities in which he participated constituting the commission of the offence were essentially limited to 11 October. He did engage in the offence for financial gain. I have taken this into account as an aggravating factor, although I am unable to determine the extent of the profit he stood to make. Having regard to his limited role, it is unlikely that he stood to profit a substantial amount of money.
He was involved in helping to remove the straps holding the crate so that it could be transferred from one truck to another. He then drove to the Austral property, conveying the tools that would be used to access the generator. Once inside the shed, a quantity of the cocaine was placed into the Hyundai which Mr Farah then drove away. His involvement was also relatively limited. I cannot be satisfied beyond reasonable doubt that he was aware of the large quantity of drugs before the generator was accessed and a quantity of the cocaine was placed in the Hyundai.
At all times he was working under the direction and instruction of Mr Bahmad. Mr Farah was not responsible for any of the decisions made in connection with the offending conduct nor did he display any autonomy such as to suggest a managerial role.
Each offender's role was lacking in sophistication and any planning involved in the offence cannot be said to be in excess of that inherent in offences of this type. I agree with the Crown's description of the offenders as being part of the "un-packing crew". They performed menial tasks under the direction of Mr Bahmad.
Mr Boustani's involvement extended to travelling to another state and hiring a vehicle to convey the crate back to Sydney. Although I am not satisfied that he had actual knowledge at that point of the nature of the substance, he had a greater involvement in the tasks undertaken in connection with the offence. On the other hand, he was placed at the greatest risk of exposure There is little, in truth, to distinguish between the roles of the offenders. True it is that it was Mr Boustani who was entrusted with conveying the generator and its contents to Sydney from Queensland. However given the nature of his contact with the generator, he was exposed to the greatest risk of coming under the notice of the authorities. Both offenders were exposed to the greatest risk in light of their role in transporting the generator and/or a quantity of the cocaine. They were expendable.
I proceed to sentence both offenders on the basis that they occupied a similar role in the offending conduct and that their involvement falls at the lower end of the range of objective seriousness having regard to the limited period in which they were involved in the offence and the limited period where they had knowledge of the nature of the substance and an awareness of it being a substantial quantity of a border controlled drug.
Each offender is sentenced on the basis that they were involved in a single occasion of criminal activity for a relatively short period of time. There is no evidence of any loss or damage. The drugs were not disseminated into the community as a result of the efficient and timely efforts of investigators. However, the extent to which this factor operates in mitigation of sentence is limited, having regard to the fact that it was through no act of either offender that the drugs were not disseminated into the community.
For completeness, I should add that, on the facts before me, Mr Bahmad played a more significant role which involved directing and instructing his co-offenders. His role demonstrated a degree of decision-making and autonomy that these offenders' role did not.
In each case, general deterrence remains a relevant and important consideration. For reasons that I will come to, in the case of Mr Farah the weight to be given to general deterrence is reduced having regard to his mental health issues. That said, the possession of large quantities of border controlled drugs reasonably suspected of having been unlawfully imported is a serious matter that warrants condign punishment, not only to deter the individual offender, but to deter other like-minded offenders from engaging in this hazardous criminal conduct. Clearly the only appropriate penalty is one of full-time imprisonment.

Elias Boustani

Mr Boustani is 32 years old. He reported a good upbringing with no history of trauma or abuse. His parents are hard-working and struggled financially to provide for their children, and particularly to give them a good education. Both his parents worked together on their farm growing vegetables and selling their produce at Flemington Markets. The offender has a close and supportive relationship with his parents and siblings.
Following the completion of his HSC, he enrolled in a TAFE course that lasted for about one year before he started to associate with a negative peer group and was introduced to a variety of drugs, including cocaine and anabolic steroids.
Although he first used cocaine at about the age of 17, it was not until about 21 years of age that his use escalated. At about the age of 23 years, a gambling addiction also manifested. By 2014, he was using steroids as part of his fitness regime and reported that the combination of taking steroids and taking cocaine made him aggressive. As a result he stopped using steroids in 2016.
The offender's sister recalls that in about 2009 the offender was hired as a security guard and worked in a number of nightclubs and pubs around Sydney. It was during this period that she observed that he commenced gambling and using drugs and associating with "the wrong crowd".
In 2017 the offender obtained his truck driving licence and secured a job driving trucks for DC Earthworks. He had accumulated debts to pay off and his employer had agreed to hold back money from his wages to pay people he owed money to. He was still using cocaine at this time. The offender reported to his psychologist that he had accrued significant debts in the amount of about $150,000. He owed money to his family members, friends, drug dealers and the bank and was struggling financially prior to his involvement in this offence.
The offender reported experiencing depression at about the age of 16. He was placed on a s 9 bond in October 2016 during which time he engaged in some counselling sessions with a psychologist although it does not appear that the counselling sessions continued.
Psychometric assessment revealed that his anxiety levels are in the "severe" range, although those symptoms may be related to the criminal proceedings. He is assessed as suffering from moderate levels of depression and stress.
Ms Ram, forensic psychologist, notes a history of substance abuse, specifically cocaine use, and problem gambling. She also notes that the offender expressed having feelings of low self-esteem, worthlessness and a lack of meaningful life purpose. Ms Ram opines that these feelings likely precipitated and perpetuated his use of illicit substances. Early onset of depression, if left untreated, can lead to isolation from family and friends, risk-taking behaviours and drug and alcohol abuse in adulthood.
Ms Ram further opines that, at the time of the offending, the offender would have met the criteria of a substance use disorder. In addition, he may have qualified for a diagnosis of a gambling disorder, however it is unclear whether some of the symptoms may be better accounted for by his substance abuse. Given the offender's reported history of depression and his poor financial situation at the time of his offending, Ms Ram states that the offender may have met the criteria for a major depressive disorder, which in turn perpetuated his cocaine use and gambling behaviours, contributing to a feeling of indifference or inability to think through the consequences of his actions. Ms Ram concludes that it appears that the offender's conduct is directly related to a combination of drug addiction and a desire to get out of associated debt.
The evidence does not establish on a balance of probabilities a nexus between the offender's mental health issues and the commission of the offence such as to reduce his moral culpability. I accept that he engaged in the criminal conduct at a time when he had a substance use disorder and was motivated by a desire to clear a significant debt which was generated as a result of drug use and gambling addiction.
His drug use disorder and financial difficulties do not excuse his conduct nor do I take them into account as mitigating factors. That said, they are relevant to the offender's motivation and distinguish his case from cases where an offence is committed out of greed or to maintain a lavish lifestyle.
I take into account the history of depression and his anxiety in assessing the weight to be given to his overall subjective case and in determining the extent of the non-parole period that justice requires he serve.
The offender has a limited criminal record. He was fined and placed on a Bond in 2014 for possession of anabolic steroids and stalk and intimidate. In 2016 he was placed on a s 9 Bond for an offence of assault occasioning actual bodily harm. He was not subject to conditional liberty at the time he committed the present offence. I am satisfied that he can be extended a degree of leniency having regard to his limited record.
An affidavit of the offender's solicitor, Mr Kiki Kyriacou, sets out the details of a number of courses and programs in which the offender has engaged since his incarceration. In 2018 he completed a number of programs including the Chaplain program; the Core Skills Assessment Program; and a Support Services Program.
In 2019 he completed the Health Survival Tips Program and was described as always polite and compliant. In 2020 he attended the Alcohol and Other Drugs Program.
In January 2020 a staff member at Long Bay Hospital Correctional Centre reported that the offender is hard-working with no issues with doing any work that is asked of him. He gets along well with other inmates and is well mannered to officers and staff. The records confirm that he is employed as a sweeper in the gaol, a trusted position demonstrating that he is responsible and engages well with inmates and custodial staff.
A number of references attest to his character. He is described as being kind-hearted and caring. The offender's sister, Joyce Boustani, confirms that the offender owed her some $30,000 as a result of his gambling and drug addiction. Notwithstanding the offending, the family remains supportive of him and will ensure a stronger presence in his life upon release so as to assist him in readjusting to life in the community.
Joe Dimassy from DC Earthworks has known the offender for some 10 years and describes him as a hard-working and reliable worker. Mr Dimassy has maintained telephone contact with the offender and will provide him with employment upon his release. His referees speak of his contrition and remorse.
The Sentencing Assessment Report confirms some of the history contained in the other documents. The offender is assessed as a low risk of reoffending.
In addition the offender has written a letter to the Court in which he expresses his remorse and contrition. He was made available for cross-examination but was not required by the Crown. The contents of his letter are not challenged.
The offender confirms attendance at a number of courses while he has been in custody. Until recent suspension of courses, he commenced and completed 10 modules of the Remand Addictions course. He is remorseful for his actions and is determined to resume life as a law-abiding member of the community upon his release.
I am satisfied that he is remorseful and accepts responsibility for his actions. Having regard to his limited criminal record, his remorse, the courses and employment in which he has engaged while in custody, and the assessment by Community Corrections that he poses a low risk of reoffending, I am satisfied that the offender has good prospects of rehabilitation and is unlikely to reoffend in the future. In light of this finding and his limited prior record, I am satisfied that the weight to be given to specific deterrence is reduced.

Ray Farah

The offender's father suffered a serious accident in the early 1980s resulting in paralysis. As a result it was his mother who worked to maintain the family and provide for her children. There is no history of trauma, abuse or domestic violence in the offender's background. He has a good relationship with his siblings.
He was raised Catholic and attended St Joseph's College Primary School and St John's High School where he completed Year 10. He engaged in sporting activities and appeared to engage well with teachers and students. After leaving school he commenced an apprenticeship as a painter/decorator. He completed his qualifications whilst employed with Damildash Pty Ltd over a five-year period. He worked with Sierra Painting for a number of years until he had an accident which caused a significant back injury.
Sometime in 2003/2004, he fell off a scaffold while a sub-contractor. He was bedridden for two months and could not move. He was treated by way of physiotherapy for a period of time and commenced pain relief medication, namely Endone. Although the medication eased the pain initially, he has struggled with chronic pain and physical limitations over the last 17 years as a consequence of his serious back injury.
During his period of incarceration, the offender underwent surgery at Prince of Wales Hospital. He reported having numbness and partial paralysis to the right side of his body and continues to suffer chronic pain.
Some 12 months before his incarceration he separated from his wife. The offender reported that he attempted to maintain contact with his four children but experienced what is referred to as "parental alienation".
The offender attempted to manage his chronic pain through pain relief medication including Endone and Xanax. He also used cannabis in an attempt to relieve his pain. This was a particularly low point in his life. When recounting this history to the psychologist Mr Borenstein, the offender broke down and cried.
In 2016, he attempted suicide by overdosing on 48 Xanax tablets and alcohol. He was taken to Concord Hospital where he remained in a coma for three days. He was then held in psychiatric ward for some two weeks. Mr Borenstein states that the offender's mood was depressed and his affect defined by emotion and tearfulness. The Depression Anxiety Stress Scale test revealed extremely severe symptoms of depression, anxiety and stress.
The offender reported that he became engaged in the offence so as to support his children financially and maintain some connection with them during a period where he felt alienated from them as a result of the separation from his wife.
Mr Borenstein concludes that the offender was suffering severe symptoms of depression and anxiety leading up to and during the offending period. He made a serious attempt on his own life in 2016 and, although he consulted a psychologist for a period of some two years following the overdose, he was not treated with antidepressants or similar medication.
His major depression was compounded by chronic and unremitting pain which resulted in surgery whilst held at Long Bay Hospital. Although not a heavy drug user leading up to and during the offending period, he did take Xanax and cannabis in an attempt to deal with his chronic pain.
Mr Brady SC, on behalf of the offender, submits that there is a causal connection between the offender's mental health issues and the commission of the offence such as to reduce his moral culpability. The Crown does not take issue with that submission.
I am satisfied that there is a nexus between the offender's mental health issues and the commission of the offence. I make that finding for the following reasons: 1. the material establishes that the offender has a history of being a hard-working, family orientated individual prior to the commission of this offence. Although he has a number of criminal convictions on his record, they date back over 20 years in some instances with the last conviction in 2005. I'm satisfied that he has no relevant criminal record; 2. at the time of the offending, I am satisfied that his life was spiralling out of control as evidenced by his suicide attempt in 2016, his chronic pain and depressive illness, and the acrimonious divorce and isolation from his children; 3. the opinion of Mr Borenstein that the offender was suffering with severe symptoms of depression and anxiety leading up to and during the offending period is not challenged.
I am therefore satisfied that a nexus is established between his mental health issues and the commission of the offence which operates to reduce the offender's moral culpability. It also operates to reduce the weight to be given to general deterrence.
In addition I am satisfied that his physical and mental ill-health will make his conditions in custody more onerous. The clinical records produced by Justice Health confirm that the offender continues to suffer chronic pain. The records also confirm repeated requests by the offender to see a doctor in relation to his pain. He was observed by Mr Borenstein to require the assistance of a walking stick. He is vulnerable in custody. He has had three falls and fears for his physical safety.
While Corrective Services are able to meet the medical needs of the offender, including treatment, his chronic pain and mental health issues are relevant to his experience of custody. The question is not only whether the prison system can manage the offender's health problems but also one of whether prison life for the offender, by reason of his condition, is likely to be significantly harsher: R v Miranda [2002] NSWCCA 89.
A number of references are relied upon by the offender. His sister confirms some of the offender's background and describes him as having a strong work ethic. Sometimes his back pain was so intense that he could not walk properly which affected his work and his capacity to receive an income.
The offending conduct is considered to be out of character for a man who was previously a loving father, respectful community member and hard worker. I am satisfied that he is remorseful for his conduct. I find that he has good prospects of rehabilitation and is unlikely to reoffend. Having regard to this finding and his limited criminal history, the weight given to specific deterrence is reduced.

COVID-19 Pandemic

The existence of the COVID-19 pandemic creates a challenge for the criminal justice and penal systems. In an effort to reduce the risk of infection, Corrective Services NSW has put in place a number of necessary but extreme measures including the suspension of face-to-face family, social and legal visits.
Although these measures will be temporary, there is no information to date as to how long the suspension of visits will be in place.
In the case of Mr Farah, as outlined above, I am satisfied that his physical and mental health issues operate to make the conditions in custody more onerous. Although there is no specific evidence before me, I am satisfied that, having regard to these issues, his inability to have face-to-face visits with family members can only serve to exacerbate his anxiety and depression.
In the case of Mr Boustani, there is unchallenged evidence that the last occasion on which he had a visit from family members was on 15 March 2020. Although inmates were advised that Corrective Services were attempting to provide audio-visual link visits with family members, he has only had one audio-visual link social visit on 25 April 2020 which lasted 25 minutes. I have no doubt that Corrective Services NSW are endeavouring to facilitate more visits of this type so that inmates can have more fulfilling contact with family and friends than that which limited telephone contact can provide. However, the demand on the system means that there is still some way to go before inmates can have regular audio-visual link visits with family and friends.
In addition, Mr Boustani has experienced 21 lockdowns of full-day and half-day duration between 5 March and 1 May 2020. He is also concerned that there are few social distancing measures in place when he is engaging in his work as a sweeper or during muster/roll-call. I am satisfied that these circumstances would create some stress and anxiety on the part of the offender.
The conditions of custody are relevant to the subjective experience of the offender and in determining the appropriate non-parole period to be imposed. The extent to which factors relating to COVID-19 may be taken into account, if at all, is a matter to be resolved on the particular facts and circumstances of the individual case: Brown v R [2020] VSC 60 at [48].
In DPP (Cth) v Politopoulos [2020] VCC 338, while the current crisis in relation to the COVID-19 pandemic was not sufficient reason to warrant immediate release from custody or outweigh all other sentencing factors, the Court accepted that it did cause the offender added concern and this was taken into account in moderating the sentence.
In DPP v Tennison [2020] VCC 343, the current COVID-19 pandemic was taken into account for two reasons. Firstly, there had been a suspension of face-to-face visits. Secondly, the offender had reduced opportunity for work and meaningful occupation in custody. These factors were taken into account as adding to the offender's stress while in custody.
In DPP v Morey (a pseudonym) [2020] VCC 320, the Court took into account the suspension of family visits and the concern experienced by the offender for the welfare of his family as playing some part in mitigating the sentence.
I am satisfied on the evidence before me that the COVID-19 pandemic operates to increase each offender's level of concern and anxiety at least to some extent. True it is that neither offender is in a vulnerable category in terms of having an underlying medical condition. However, the authoritative position is that gaols and other places of detention are more susceptible to the rapid spread of the novel coronavirus: Rakielbakhour v DPP [2020] NSWSC 323 at [14]. Notwithstanding the efficient and sustained efforts on the part of Corrective Services, the risks are real and likely to engender anxiety in the offenders.
To that extent, I have taken into account the current situation relating to COVID-19 as adding (at least for a time) to the offenders' stress and anxiety.
In Mr Farah's case, quite apart from the measures put in place to reduce the risk of the COVID-19 pandemic, I have taken into account that his time in prison will be served in more onerous conditions having regard to his physical and mental health issues.

Parity

In determining the appropriate penalty I have had regard to the principle of parity. For the reasons set out above, there is little to distinguish between the offenders in respect of the role each played in the commission of the offences. Although Mr Boustani's acts extended to travelling to Queensland to pick up the crate and convey it back to Sydney, both offenders fulfilled menial roles falling at the lower end of the range of objective seriousness.
However, the sentence I will impose on Mr Farah will be less than that imposed on Mr Boustani because Mr Farah's moral culpability is reduced, as is the weight to be given to general deterrence, having regard to the causal connection between his mental health issues and the commission of the offence.

"Comparable Cases"

In determining the non-parole period, I must set the minimum time that justice requires the offenders serve having regard to all the circumstances of the offences and the offenders. It would not be appropriate to begin from some assumed starting point.
Section 16A(2)(k) of the Crimes Act 1914 (Cth) emphasises the primary obligation of the Court to impose a sentence or make an order that is of a severity appropriate in all the circumstances and to ensure that the offender is adequately punished for the offence.
The Prosecution has provided a schedule of comparative cases that set out sentences imposed upon 11 offenders. Many of those cases are of little assistance having regard to the greater role played. Many of the cases in the table relate to offenders who were found to be principals or who were more involved in the decision-making process.
Particular care must be adopted when the Court is asked to engage in such a comparative exercise because of the broad range of moral culpability which is encompassed by an offence.
Of the cases set out in the Prosecution's table of comparative cases, the case of R v Zeng [2008] NSWCCA 183 has some similar features to the present case. The offender in that case was conscripted into the enterprise somewhat unwittingly and only became aware of the drugs once unpacking commenced. His role was subservient and short-lived. He provided transportation and was trusted with possession of the boxes containing the drugs, also providing a safe-house for the extraction to occur. He was sentenced to a term of imprisonment of 10 years with a non-parole period of 6 years following conviction after trial. The Crown appeal was dismissed.
In the case of R v Michael Anderson (unreported, District Court of NSW, 27 November 2008) the offender was sentenced to 10 years imprisonment with a non-parole period of 6 years imprisonment following a plea of guilty. There was no evidence of involvement in planning and organisation of the conspiracy to import 20kg of cocaine. His role was limited to being involved in the removal of the container, thereafter withdrawing from the conspiracy.
On behalf of Mr Boustani, Mr Walker SC has provided the judgment of the Victorian Court of Appeal in Shakhanov v The Queen [2019] VSCA 38. The offender in that case was sentenced to a term of imprisonment of 9 years with a non-parole period of 6 years. He appealed against the severity of sentence on the grounds that the disparity between the sentences imposed on the three co-offenders was such as to result in a justifiable sense of grievance. His appeal was upheld and he was resentenced to 8 years imprisonment with a non-parole period of 5 years imprisonment, the Court being satisfied that this sentence adequately balanced the considerations of parity between the three co-offenders.
The point of sentencing judges and intermediate appellate courts having regard to what has been done in other comparable cases throughout the Commonwealth is twofold: first, it can and should provide guidance as to the identification and application of relevant sentencing principles; and, second, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence: The Queen v Pham (2015) 256 CLR 550. What is sought is consistency in the application of legal principle, not numerical equivalence: Hili v R; Jones v R (2010) 242 CLR 520; R v Kassir [2020] NSWCCA 88.
Insofar as the cases provided to me identify relevant sentencing principles, I have endeavoured to apply those principles. However, I am not of the view that the cases yield a discernible sentencing pattern. There are, as would be expected, differences in criminality, objective seriousness and subjective circumstances.
For instance, in the present case I am satisfied that each offender's role falls at the lower end of the range of objective seriousness. Furthermore, in the case of Mr Farah I am satisfied that there is a nexus between his mental health issues and the commission of the offence such as to reduce his moral culpability.
I am not sentencing these offenders for an offence that falls in the middle of the range of objective seriousness. Each offender performed menial tasks and was exposed to the greatest risk by reason of his immediate connection with the border controlled drugs. They brought no particular expertise, knowledge or skill (other than perhaps their driving skills) to the enterprise. This is not a case, for instance, where the offender was an employee of a company or organisation and by virtue of that position facilitated the possession of the drugs.
Having regard to the objective gravity of the offences, the offenders' roles, their subjective cases and the relevant sentencing principles, I am satisfied that terms of full-time imprisonment are warranted. This is so particularly having regard to the importance of general deterrence and denunciation. However, the sentences I impose must also reflect the menial role played by each offender and their subjective cases.

Ray Farah

The offender is convicted. Taking into account a discount of 20%, I impose a sentence of imprisonment consisting of a non-parole period of 4 years 9 months imprisonment commencing on 11 October 2018 and expiring on 10 July 2023 with a balance of term of 3 years 9 months imprisonment, expiring on 10 April 2027. The total term is 8 years 6 months imprisonment. The starting point before the application of the 20% reduction in sentence is 10 years 8 months imprisonment.
The offender is eligible for consideration for release on parole at the expiration of the non-parole period subject to the guidance and supervision of Community Corrections for as long as they deem necessary.

Elias Boustani

The offender is convicted. Taking into account a discount of 25%, I impose a sentence of imprisonment consisting of a non-parole period of 5 years imprisonment commencing on 11 October 2018 and expiring on 10 October 2023, with a balance of term of 4 years imprisonment, expiring on 10 October 2027. The total term is 9 years imprisonment. The starting point before the application of the 25% reduction in sentence is 12 years imprisonment.
The offender is eligible for consideration for release on parole at the expiration of the non-parole period subject to the guidance and supervision of Community Corrections for as long as they deem necessary.

Amendments 13 May 2020 - Amended to correct typographical error on cover sheet. 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: 13 May 2020

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Judgment (12 paragraphs)

Legislation Cited (1)

Cases Cited (12)