Hadil Kada v The Queen [2017] VSCA 339
Hili v The Queen
Source
Original judgment source is linked above.
Catchwords
Hadil Kada v The Queen [2017] VSCA 339
Hili v The Queen
Judgment (33 paragraphs)
[1]
Judgment
Moustafa Ibrahim, the offender, comes before the Court to be sentenced in respect of a number of serious offences which came to light as a result of an extensive controlled operation undertaken by the Australian Federal Police ("AFP") in 2016-2017. He will be sentenced for the following offences:
1. Firstly, that between about 10 November 2016 and 8 August 2017 he did conspire to import a commercial quantity of a border controlled drug, namely, MDMA. The offence is contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth) and carries a maximum penalty of life imprisonment. This conspiracy is referred to as the "syndicate one transaction". The co-conspirators included Ryan Watsford, Mostafa Dib, Hakan Arif, Hassan Fakhreddine and Ahmad Ahmad. The quantity of drug the subject of this conspiracy was 594.43 kg of pure MDMA (Sequence 1).
2. Secondly, that between about 22 March 2017 and 8 August 2017 he did conspire to import commercial quantities of border controlled drugs. This offence is contrary to ss 11.5(1) and 307.1(1) of the Criminal Code and carries a maximum penalty of life imprisonment. This conspiracy is referred to as the "syndicate two drug transaction". The conspiracy involved two separate transactions. A co-conspirator in this offence is Steven Elmir. The pure weight of the MDMA the subject of the first transaction in this conspiracy was 392.95 kg. The second transaction involved 344.6 kg of pure MDMA, 91.87 kg of pure cocaine and 12.04 kg of pure methamphetamine (Sequence 18).
When I sentence the offender for this offence, I take into account an offence on the s 16BA Schedule, namely, that between 8 March and 10 March 2017 the offender did aid and abet, counsel or procure the commission of an offence, namely trafficking of a commercial quantity of MDMA. This offence is referred to as "trafficking MDMA". It is an offence contrary to ss 302.2(1) and 11.2(1) of the Criminal Code and carries a maximum penalty of life imprisonment.
1. Thirdly, that between 14 November 2016 and 9 March 2017 he did deal in an instrument of crime, namely $2,863,870. This is an offence contrary to s 400.3(1) of the Criminal Code and carries a maximum penalty of 25 years imprisonment. The offence is referred to as "tobacco transactions 1, 2 & 3" (Sequence 19).
2. Fourthly, that between 13 April 2017 and 26 May 2017 he did deal in instrument of crime, namely $1,800,000, contrary to s 400.3(1) of the Criminal Code. The offence carries a maximum penalty of 25 years imprisonment. This offence is referred to as "tobacco transaction 4" (Sequence 12).
When I sentence the offender for this offence, I take into account two offences on a s 16BA Schedule. The first offence is that, between 9 March and 14 July 2017, the offender smuggled tobacco products, an offence contrary to s 233BABAD(1) of the Customs Act 1901 (Cth) which carries a maximum penalty of 10 years imprisonment and/or a $55 million fine. The second offence that I must take into account is that between 11 July and 24 July 2017 the offender did deal in proceeds of crime, namely money worth $1 million or more. The offence is contrary to s 400.3(1) of the Criminal Code and carries a maximum penalty of 25 years imprisonment and/or 1500 penalty units.
1. The fifth and last offence for which the offender is to be sentenced is an offence that, on or about 24 July 2017, he did deal in an instrument of crime, namely $2,224,540. This offence is contrary to s 400.3(1) of the Criminal Code and carries a maximum penalty of 25 years imprisonment. It is referred to as the "future tobacco transaction".
The offender was committed for sentence on 18 December 2018 from Central Local Court. It was a plea of guilty at the first opportunity. Having regard to the complexity of the issues and the voluminous material, the trial would have been a lengthy one, necessarily involving cross-examination of the undercover operative who was central to the criminal enterprise. In those circumstances I am satisfied that there is significant utilitarian value in the plea of guilty and that a reduction in sentence by 25% is appropriate to reflect the utilitarian value of the plea.
The case against the offender was a strong prosecution case involving extensive surveillance, listening device material and telecommunication interception. Notwithstanding the strength of the Crown case, I am satisfied that the plea of guilty also reflects a willingness on the part of the offender to facilitate the administration of justice. The content of the Crown Statement of Facts is largely undisputed, although there remains some dispute about the characterisation of the role of the offender and the extent of his criminality.
The Crown Statement of Facts is some 55 pages long. Although it is a voluminous document in itself, having regard to the number and nature of the offences, I am satisfied that the offender was willing, through his legal representatives, to engage in a process of at least attempting to distil the pertinent facts to facilitate the course of justice. A trial would have necessarily involved complex legal issues including identification of overt acts and questions of law as to whether conspiratorial liability attaches to acts engaged in with an undercover operative.
The police investigation into these criminal activities was extensive and resulted in charges being laid against a number of co-conspirators including Ryan Watsford, Mostafa Dib, Hassan Fakhreddine and Ahmad Ahmad.
I sentenced Ryan Watsford on 28 November 2019. His proceedings were conducted separately. In due course I will set out the offences to which he pleaded guilty and the sentence I imposed. I made findings in respect of his role in the criminal enterprise and discounted his sentence significantly. Following the application of a 60% discount I imposed an aggregate sentence of 8 years 6 months imprisonment with a non-parole period of 4 years imprisonment.
On 27 April 2020, I sentenced Mr Mostafa Dib for his role in the "syndicate one transaction". His proceedings were also conducted separately. Following the application of a 30% discount he was sentenced, in respect of the syndicate one conspiracy, to a term of 18 years 2 months imprisonment with a non-parole period of 12 years imprisonment.
Over three days between 5 and 7 April 2020, I heard the sentence proceedings in the matters of Ahmad Ahmad and Hassan Fakhreddine. That judgment is reserved, to be delivered on 12 June 2020.
In each set of proceedings a Statement of Facts has been tendered and evidence adduced on behalf of each offender. In the case of Ahmad Ahmad, for instance, the offender was called to give evidence. I have made findings on the basis of the specific evidence before me in each proceeding.
I am mindful that I must make findings on the Statement of Facts and other evidence adduced in these proceedings putting aside material adduced in the proceedings of the co-conspirators. I have expressed a view that it is unfortunate that the sentence proceedings have been conducted separately. However, it is incumbent upon me to proceed on the material and submissions made in these proceedings. One of the consequences is that I may make findings in these proceedings that are different or inconsistent with findings that I made or will make in the separate proceedings. That is simply a product of the way in which the proceedings have been conducted.
[2]
The Facts
The circumstances giving rise to the offences are set out in the 55-page Crown Statement of Facts. The facts are not disputed. However, there is a dispute about the extent of the offender's role and his position in the hierarchy of this criminal enterprise. The process of making findings has required a very close analysis of the facts in this case. It is necessary therefore to summarise the facts in more detail than ordinarily required, although what follows is only a summary of the lengthy document. I proceed now to summarise the facts (and some of the inferences I have drawn from the facts) upon which I will sentence the offender.
In March 2016, the AFP commenced an investigation into the criminal activities of Ryan Watsford and his associates. In November 2016, the investigation expanded to include this offender.
From November 2016, the AFP identified criminal activities being committed by multiple domestic and international criminal syndicates, including dealing in smuggled tobacco products, dealing in the proceeds from the further sale and distribution of smuggled tobacco products, trafficking of MDMA, smuggling tobacco products, and plans to import commercial quantities of border controlled drugs into Australia.
The investigation of these criminal activities, known as Operation Veyda, involved extensive physical and electronic surveillance over a period of more than one year. The surveillance included interception of telecommunications services, listening devices, deployment of surveillance operatives and, importantly, the deployment of an undercover officer known as "Zane".
The syndicate members communicated with each other using encrypted text-based mobile telecommunication devices known as Blackberrys which are secure from police interception.
Between June and August 2016, Watsford attended a number of meetings with Zane. Their relationship progressed from Watsford seeking advice on international money laundering methodologies to requesting Zane exchange unlawfully obtained foreign currency. Moustafa Ibrahim was not a party to these earlier communications and dealings.
It was during these communications that Zane informed Watsford that he had access to a "door". In this context, a door is a person or methodology that is able to facilitate the importation of goods into Australia without them being detected by Australian law enforcement.
On 12 October 2016, Watsford and Zane met. In the context of discussing a separate money laundering deal, Zane said: "if you want results, you take risks". Zane gave Watsford two cartons of cigarettes purportedly smuggled into Australia with the assistance of the "door". After receiving the cigarettes, Watsford made a number of inquiries with Zane including how he had access to the cigarettes, the brands he had access to, who he sells the cigarettes to and how much he charges for the cigarettes. It was then that Watsford said he had "boys that will buy some". It was Zane who raised the prospect of doing business in smuggled cigarettes although Watsford was quick to advise that he had potential customers.
During a subsequent meeting Zane told Watsford that the reason the cigarettes were so cheap was because tax was not paid on them. On 10 November 2016 Watsford introduced the offender and Fares Derbas to Zane. The three men agreed and arranged to purchase smuggled cigarettes from Zane. It is an agreed fact that the evidence does not demonstrate that this offender was involved in the supply, sale or distribution of smuggled tobacco prior to November 2016.
The first meeting between Zane, Watsford, Ibrahim and Derbas was on 10 November 2016. The offender explained that the potential buyers of the cigarettes did not want to pay until they saw the merchandise and the men discussed the logistics of the exchange of the smuggled cigarettes and payment. The offender provided Zane with his Blackberry handle so that they could keep in contact directly.
The offender said: "I'll be honest with you, I didn't want to get myself involved in this, I thought I could leave it up to them, but obviously I couldn't", as a reference to the smuggled tobacco. Zane told the offender: "we got a door, basically that guarantees nothing … You gotta organise it first and we can get it in".
[3]
"Tobacco Transaction 1"
On 14 November 2016, after Zane confirmed when the handover of smuggled cigarettes would occur, Zane, Watsford and the offender exchanged Blackberry messages about the potential sale of smuggled cigarettes and had a number of meetings during which the offender and Watsford confirmed that they would take two loads of smuggled cigarettes each containing 100,000 packets the following day and the offender confirmed that he would provide a $50,000 deposit to Zane to hold the smuggled cigarettes, which Watsford later delivered to Zane on behalf of the offender.
On the evening of 14 November 2016, Watsford and Zane met at the Intercontinental Hotel. During that meeting, Zane told Watsford of a conversation he had had with Fares Derbas in which Derbas enquired whether Zane could get anything into the country. Zane told Derbas that as long as he organised it and sourced it, Zane would guarantee it got in and he just required a fee. Zane had informed Derbas that he did not have the overseas connections to source substances but that he could guarantee them entering the country. In response to a question that was not picked up by the listening device, Zane replied: "anything, anything you want". Watford asked: "even kilos?"
Zane stated: "yeah. Anything. But, like… They're not gunna bring fuckin 5, 10 kilos. Like the risk for them - it's the same doing 5… (indistinct) .. You know, a bit more--- it's not worth it. So they do bigger, bigger amounts. But the reason why I charge what I charge…. Is because I guarantee it's in…. We got people in the right places." Following this conversation Watford and Zane met with the offender and they continued their discussion about the tobacco handover.
I am satisfied that the Zane, in relating the conversation between himself and Derbas to Watsford, was intending to convey that his "door" could guarantee the importation of large quantities of drugs from overseas. In stating that his contacts would not take the risk for 5 or 10 kilos, he was planting the suggestion that even larger quantities would need to be organised to justify the risk. Put another way, I am satisfied that Zane initially raised the possibility of large quantities of illicit substances being imported through the use of the "door" with Watsford.
Once raised however, the offender expressed an interest in the possibility by asking Zane: "do you want me to ask them if they can organise a container", to which Zane responded: "let me talk to my guy first … I don't want to sit here and promise you my guys want to do it". The offender then lowered his voice and told Zane: "I've got litres in Lebanon and 50 kegs of Coke in Lebanon…. Hundred litres of the oil - raw oil … I've got 50 kegs … Sitting there ready to come up". Zane said: "we asked for … Just a total fee".
The offender asked how much Zane required, to which Zane responded that "they" wanted $50,000 up front to pay off the right people and then on delivery they wanted more. The evidence does not demonstrate that the offender in fact had these drugs in Lebanon and there were no further discussions about this. However, this conversation demonstrates the offender's willingness to engage in discussions about the potential importation of border controlled drugs.
This evidence does not constitute an overt act in furtherance of any conspiracy. It is relevant, however, to the extent of the offender's willingness to engage in criminal conduct which extended beyond tobacco importations. The extent of his willingness to participate in the drug conspiracies is hotly contested by the offender.
On 15 November, Zane met with Watsford, Fares Derbas and Talal Derbas and provided a truck containing 100,000 packets of smuggled cigarettes which Talal Derbas drove away and returned to Zane empty. Zane was provided with two boxes containing $550,050 cash. There was however some problem with this transaction and Zane messaged the offender stating: "these guys are amateurs. My guys are filthy. They said they can't do the rest of the week. Bro, in my opinion I think we should do it tonight to keep them happy", to which the offender replied: "yeah I'm going there now if money is there am going to grab it and bring it first". Zane replied: "you're right. Shit doesn't get done without you there. Ryan and Fares were good it was the other blokes, they're amateurs".
The suggestion is that, at least in the mind of the undercover operative, the offender's presence and involvement increased the chances of the transaction going smoothly. Zane later met with Watsford, Fares Derbas and Talal Derbas in the same location and provided a truck containing 100,000 packets of smuggled cigarettes which was again driven away. Zane then met with Watsford, Fares Derbas and the offender in a car park where the offender provided Zane with $600,000 in cash.
[4]
"Tobacco Transaction 2"
Between 17 and 21 November 2016, Watsford, Zane and the offender had multiple discussions in person and via Blackberry in which Watsford advised Zane that the offender had arranged for a new Blackberry device to be used by Zane. The three discussed the purchase of more cigarettes which Zane said would be smuggled into Australia later in November. The offender confirmed that he would pay Zane $600,000 for 100,000 packets of smuggled cigarettes and they arranged a meeting on 22 November.
On that date, Watsford and Zane exchanged messages to confirm the time and location of the handover of the smuggled cigarettes. Watsford then met with the offender and, whilst in his company, exchanged Blackberry messages with Zane advising that the offender would provide Zane with an additional $20,000 due to the change in time explaining that the offender would charge the buyers an extra $20,000.
Zane later communicated to Watsford that he would not complete the handover without the offender and Watsford present because things would not run smoothly. Zane was told by Watsford that neither he nor the offender could attend the handover but vouched for Fares Derbas telling Zane that Derbas was the offender's cousin and that he should complete the handover with Derbas, saying: "we trust Fares, its Mick's cousin, bro". Watsford then sent a Blackberry message to Fares Derbas advising him that the offender's instructions were to hand over to Zane $620,000.
The offender also spoke to Zane and tried to persuade him to complete the handover. Zane was reluctant to do so and the handover was conducted in the presence of the offender and Watsford. $620,000 was paid for 100,000 packets of smuggled cigarettes.
Between 27 November 2016 and 4 March 2017, Zane had multiple meetings and Blackberry communications with the offender and Watsford both separately and together about the possibility of Zane selling further loads of smuggled cigarettes. He explained that he anticipated that three more loads of smuggled cigarettes would arrive in early March and also advised as to their cost. On 7 March 2017 there was a failed tobacco transaction, with Watsford returning the truck containing the smuggled cigarettes to Zane and Zane handing back two cooler bags containing $750,000.
[5]
"Tobacco Transaction 3" and "Trafficking MDMA".
On 8 March 2017, the offender met with Zane when they discussed a further attempt at the sale of smuggled cigarettes which was to take place the following day after the failed transaction conducted by Watsford.
During that conversation, and in reference to the failed transaction, the offender told Zane that he thought the buyers were just trying to get the cigarettes at a cheaper price and Zane confirmed that Watsford told him that the buyers wanted to renegotiate. The offender then said: "I was gonna bash Ryan yesterday… I'm sick of him not listening to what someone tells him to do".
The offender asked Zane whether he would be interested in purchasing MDMA from a third party, EF, and Zane agreed. The offender told Zane that he could provide an initial sample of MDMA or a full kilogram if Zane preferred, saying: "but you, you and him just, you can deal with each other. He goes if you want, he'll give you a full one to take tonight". The offender then said that Zane and EF could deal with each other directly via Blackberrys which the offender would provide. The suggestion that Zane do business with EF demonstrates the offender's connections with individuals who could source drugs. It also demonstrates his willingness to engage in drug-related offending, albeit that he was content for Zane and EF to communicate directly.
Later that evening, the offender and Zane exchanged Blackberry messages during which Zane confirmed that he would purchase a full kilogram which he could sell for $45,000. The offender and EF also exchanged messages during which EF confirmed that the MDMA could not be paid for in cigarettes because he needed to pay his supplier in cash. The offender confirmed he would have the cash for EF and forwarded this exchange to Zane telling Zane that he and EF could communicate directly.
Zane attended the Merrylands chicken shop to pick up the drugs. He collected a heat-sealed plastic bag containing MDMA from EF's associate. The gross weight was 991.7 g with a purity of 51.8%. The pure weight of MDMA was 517.85 g (these facts relate to the offence of trafficking of MDMA on the s 16BA Schedule).
The evidence does not establish that the offender received any money arising from the drugs supplied to Zane by EF. However, the offender's involvement indicates his willingness and preparedness to be involved in drug-related activity involving significant quantities of a prohibited substance.
On 9 March 2017 Zane attended the offender's mother's house and handed over a truck containing 125,000 packets of smuggled cigarettes. Later that evening he returned to the offender's mother's house and the offender provided Zane with the keys to the truck which was now empty and a bag containing $644,350 cash for the smuggled cigarettes. The offender explained that he had deducted $42,000 from the total amount he owed Zane for the cigarettes as he had given it to EF to offset the money owed to EF for the supply of the MDMA.
During the time that these transactions involving the smuggled cigarettes were taking place there were also discussions and arrangements in respect of the conspiracy to import MDMA (the syndicate one transaction). The facts in relation to that transaction will be set out more fully below. In relation to that transaction and on 9 March 2017 at the meeting in which the offender deducted the $42,000 from the total amount owed to Zane to pay EF, the offender told Zane: "I gave you my 50", which was a payment for himself and Watsford for the use of Zane's "door" service for the syndicate one drug transaction. The offender personally invested $25,000, as did Watsford, being part of the door fee for the importation of the MDMA.
While at the offender's mother's house, Zane was introduced to EF. Zane, EF and Ibrahim agreed that EF would provide a further 5 kg of MDMA to Zane for $205,000 which was to be paid by the offender to EF. The payment would be deducted from the total amount the offender owed Zane for the second lot of smuggled cigarettes that was to be delivered later that evening. A couple of hours later, Zane again met with the offender and provided him with the truck containing 65,000 packets of smuggled cigarettes for which he was later paid $152,470. The offender explained that he had already withheld $205,000 as payment to EF for 5 kg of MDMA.
The offender told Zane that he had two contacts to sell smuggled tobacco should there be any opportunities in the future and expressed his willingness to progress the importation of smuggled tobacco from Dubai in partnership with Zane.
On 10 March 2017, Zane and EF exchanged messages arranging the pickup of the 5 kg of MDMA. Zane was provided with 5 heat sealed plastic bags containing MDMA. The gross weight was 4996.1 grams with a purity of 47.4%. The pure weight was 2368.16 grams. Although the offender was not a direct beneficiary of these drug transactions, he facilitated them by putting Zane in contact with EF. His actions in this regard further point to his willingness to be involved in drug-related activity, albeit that in the transactions between Zane and EF he did not obtain a financial benefit.
The offender, Watsford and Fares Derbas each made $60,000 from the sale of smuggled cigarettes. Given that Watsford owed the offender $25,000 and also owed money for the "door" fee, the offender gave Watsford $10,000 as his cut.
[6]
"Tobacco Transaction 4" and "Syndicate One Drug Transaction"
During the meeting on 10 November 2016 when the conversation related to smuggled cigarettes, Zane asked the offender and Fares Derbas what Watsford had told them. The offender responded: "he says you can get anything you want". Derbas enquired whether Zane could bring in firearms to which Zane replied: "you got to organise it first, and we'll guarantee gets in".
The offender then asked Zane: "why don't youse bring in rack (cocaine) and shit like that?" Following further conversation set out at [57] the conversation turned once again to cigarettes. Towards the end of the conversation the offender said: "anything you get, you want to bring in just let me know, I'll move anything you want" and that he would be "your fuckin right-hand man, you know no one's going to want to rob me..." to which Zane suggested that they sit down and discuss further.
Once again, this conversation suggests that the offender was willing and prepared to be involved in drug-related activity. More importantly, he asserts that no one is going to want to rob him, an indication of his standing among those with whom they were conducting their illegal business. The offender provided a guarantee or assurance that his involvement would reduce the risk that they would be ripped off.
It was on 14 November 2016, during a conversation about the logistics of one of the tobacco handovers, that the offender asked Zane: "do you want me to ask them if they can organise a container".
On 18 November 2016 Watsford, Zane and the offender me,t during which time Zane explained he was looking at using a company from the region to disguise the pseudoephedrine and that it cost $50,000 for the freight forwarder and $350,000 for the door. I pause to note that discussions in respect of the pseudoephedrine were not productive, stalled, and are not the subject of any charge.
Zane said: "see, for them it doesn't matter, you can bring in 50, you can bring in 500, it doesn't matter… The risk is the same". Zane then raised the subject of bringing in drugs: "so I was thinking - obviously with your contacts or connections over there and how cheap it is over there and what you were saying the other day, you want to bring them in. We should get in some sort of partnership and bring stuff in, you know what I mean."
It was Zane who reintroduced the subject of bringing drugs into the country using the offender's contacts overseas and suggesting a partnership. The offender immediately responded: "well then, I'll need to bring in my other partner involved in it… He'll speak to you more about like the bb (Blackberry), then you can speak with him over the bb."
The offender suggested that he make the introductions that same day and Zane replied that he had a meeting but he might be able to shuffle things around. While the offender was on his mobile phone, Zane said to Watsford: "but you know what, don't bank on it (the cigarettes) don't rely on it, do other business as well, because if you rely on that and it doesn't come through, you're fucked". This statement by Zane was a further example of the way in which he kept the conversation alive about the possibility of importing drugs using the "door" service.
Towards the end of that meeting Zane told the offender: "we'll sit down and talk about the other thing, because even if you want, like, however you want to work it out… I can cover it for you, I can cover it". Later in the conversation the offender expressed his gratitude to Zane in relation to the earlier tobacco transaction stating: "I am indebted to you and your mate because you helped us out". Zane responded: "you're not indebted to us, Bro". The offender said to Zane: "I owe you'se", to which Zane replied: "I know what you mean", but reiterated that he and the offender were partners to which the offender replied: "yeah, I'd love to have you as my partner".
I am satisfied that during this conversation it was Zane who reintroduced the possibility of using the door service to import drugs. The offender expressed his gratitude to Zane for facilitating the importation of smuggled tobacco, an activity that the offender profited from. I am also satisfied that this conversation reveals a willingness and preparedness on behalf of the offender to introduce Zane to someone who could source drugs overseas.
Indeed, later that day (18 November 2016) a meeting took place attended by the offender, Zane, Watsford, Mostafa Dib and Jodeh. At one point the offender, Dib and Zane left the others and discussed the possibility of importing illicit substances from Lebanon and other places around the world such as China.
Zane told Dib that as long as he had the contacts overseas he could ensure that the product gets in to which Dib replied: "that's easy for me". Dib responded: "this side is easy for me". In this conversation Dib was representing that he had the overseas contacts who could source large quantities of border controlled drugs and Zane was confirming that he had the means by which to ensure that the drugs would enter the country.
This offender suggested that they have another meeting and Dib again confirmed that he had people overseas and said: "I'm gunna have a crack", a reference to sourcing drugs overseas, to which the offender responded: "mate, it's worth it for all of us", once again demonstrating his willingness to be involved in the agreement to source drugs overseas for the purpose of importing them into Australia.
On 27 November 2016, while in Thailand together, Zane told the offender that the door service fee was a flat $350,000 to be paid when the goods arrived to secure their release. The offender told Zane that he had told Dib that the fee was actually 20% of the amount to be imported and suggested that after they pay the door fee, he and Zane could split the remainder of the 20% commission.
The offender told Zane that if he introduced Zane to someone they would never rip him off because the offender would have introduced Zane as a good friend and that he would be the guarantee that Zane would definitely deliver. He also confirmed that Dib was trustworthy and that he would provide Dib with Zane's Blackberry handle so that they could communicate directly. The offender asked Zane that if he did do business with Dib that he tell him about it so that if anything goes wrong he would know about.
This is a further conversation in which the offender reassured Zane that his involvement by way of introducing the parties meant that Zane would never be ripped off. In essence he was introducing Zane as a good friend and someone who could be trusted to do business with. The very fact that the offender was doing the introductions reduced the risk of those with whom they were doing business ripping Zane off.
During this conversation the offender told Zane to get involved in the "ecs" (a reference to MDMA) but added: "it's scaring me to tell you the truth…". It appears that on this occasion the offender was afraid of being detected. Zane replied: "don't get involved then".
The offender then told Zane: "I don't want the 30 (this was a reference to a 30% commission). I will give it to you, and you can give me a present out of it… You and Ryan can go halves… I like the cigarettes, but the other thing (the drugs) you and Ryan go halves".
The offender also told Zane during that conversation: "you, Ryan and him go 3 ways, that's not a problem, not a fucking problem… All I am doing is an introduction for you then see you'se later, do what you've gotta do, but the guarantee is still there that nothing can go wrong if I introduce you to these people".
The offender further told Zane: "look, if I can hook you up with my mate, you're a good bloke, you brought us in,[ind] alright it was Ryan, but at the end of the day, it's become me at the end of the day, you know what I mean, you brought us in, you helped us make money, everyone's got, everyone's having a laugh [a reference to the tobacco profits], so if I can help you out with my connections why not, you've done it for us. And these boys I'm giving you are good boys, not fucking scumbags… Ferry's got money… good boy... I won't introduce you to fuckwits".
I am satisfied that during this conversation, at this stage of the conspiracy, the offender was telling Zane that he did not want a cut or a commission and preferred to be involved in the smuggling of cigarettes. He maintained that, in respect of the drug importation, he would introduce Zane to those who could source the drugs, people who were trustworthy and dependable, and by virtue of the fact that he was the one conducting the introductions, provide a guarantee that nothing would go wrong.
At this point of the conspiracy, 27 November 2016, I am satisfied that the offender, while a participant in the agreement to import MDMA into Australia, considered that his contribution to the enterprise was to introduce Zane (the door) to Dib (the person with the overseas contacts) and to provide the guarantee that the parties would not cheat each other. It was by virtue of the very fact that he was conducting the introductions that he would guarantee that nothing would go wrong.
At this point of the conspiracy, he was content to do this for "a present" as opposed to a cut or a commission.
Between 25 February and 14 March 2017, Dib forwarded to Zane Blackberry messages which contained chains of communication that Arif sent to Fakhreddine which were forwarded to Ahmad and then forwarded to Dib. These messages contained information from Arif about the cocaine and MDMA including that the price for the MDMA was €4000 per kilogram and the purity was 86%. Dib told Zane that the quality was good so Zane would not need a sample.
This chain of communication did not include the offender. I am satisfied that the communications were passed through intermediaries, namely Ahmad and Fakhreddine, to provide a buffer or distance to the upper-level players such as Dib and Arif.
On 25 February 2017, Dib sent a message to Zane indicating that he had met with his contacts in relation to the MDMA and that his contacts were happy for Zane to go to Holland to inspect the product. Dib and Zane exchanged a number of messages in which Zane enquired as to how much deposit was required and Dib responded that he was not sure but would push for the lowest amount. It was during these exchanges that Dib enquired of Zane how much MDMA he wanted.
Zane nominated the initial amount as between 100 and 150 kg and that despite assurances, he still wanted a sample. He offered to go and collect and pack the MDMA himself as well as Dib's cocaine. I am satisfied that during this conversation the quantity of MDMA was nominated by Zane as between 100 and 150 kg. Although the initial quantity identified by Zane was a substantial amount of MDMA, the ultimate quantity the subject of the conspiracy was substantially more than 150 kg of MDMA, some 800 kg of impure MDMA.
A question has arisen as to whether the significant increase in the quantity of MDMA was a result of Zane talking up the operation and encouraging the parties to agree to larger quantities of MDMA.
The increase in the quantity of MDMA was largely the result of Dib and Arif's desire to take advantage of Zane's door service by putting on a larger quantity of MDMA. The ultimate breakdown of the drugs reveals that Arif's cut was some 456 kg of MDMA. However, Zane was not completely passive in what became an ever-increasing quantity of drugs. In April 2017, Dib informed Zane the amounts of MDMA would be 180 kg for Zane, an extra 20 kg for someone else in Australia and the syndicate was putting on an extra 200 kg which would be a total of 400 kg.
It was during this conversation that Zane told Dib: "the way I was looking at it, it took a container, you know what I mean, we're putting on 4, 450 total. We got a container that's what I'm saying there is much more space, we could put more on and get a cut out of it".
I cannot find that it was as a direct result of these representations by Zane that the ultimate quantity was 800 kg of impure MDMA. In my view it is more likely that the increase in the quantity of MDMA was the result of Dib and Arif's desire to take advantage of the door service. However, Zane was not completely passive in the discussions about increasing the quantity of MDMA or taking advantage of the opportunity to import a larger quantity of the drug. He was encouraging an approach that took full advantage of the door service by importing larger quantities of MDMA.
Zane's encouragement of increased quantities of drugs was also evident in his discussions with the offender in respect of the syndicate two conspiracy, where on 24 March 2017 he told the offender that "50 to 100 [a reference to 50 to 100 kilograms] isn't worth the door. Let's not fuck around while we have the door let's go bigger".
On 27 February Zane and Dib exchanged further messages in which Dib stated: "Bro 150 Kgs rake and 150 MDMA just waiting to work out what percentage my mate is gonna get out of the rake because when you get fixed up, M (the offender) gets a cut, Ozzy (Watsford) gets a cut, I get a cut, my mate won't have anything left".
It is an agreed fact that at this stage of the conspiracy, there is no evidence of the specific percentage that the offender was to receive of the proceeds of the importation.
On 28 February, the offender suggested that he would go with Zane to the Netherlands. During this conversation Zane told the offender: "all it is, all his getting is 200 [a reference to 200 kg of MDMA]", to which the offender responded: "that's why he [Dib] was asking are we going to get anything out of that. I said I don't know, I don't even know what you've been talking about, to tell you the truth, until recently you know what I mean?" This would accord with the fact that this offender was not included in the Blackberry message communications on 25 and 27 February.
Zane told the offender and Watsford that he needed to know how the drug was to be packaged so that the cover loads matched, to which the offender replied: "well when are you free next so I can organise?" Zane responded: "maybe at the end of this week if he [Dib] is free".
Dib and Zane exchanged messages about the quantity Zane would purchase and the cut Dib would receive. Zane explained that he needed a full 150 kg of MDMA so that if Dib's cut was 30 kg, he would purchase 180 kg of MDMA in total.
On 2 March 2017 Zane communicated with Watsford confirming that he needed $25,000 from each of them to cover all costs including the door deposit. This offender was not a recipient of this message.
The offender, Dib and Watsford agreed that they would each contribute $25,000 to cover the costs of everything Zane had to organise. On or about 9 March 2017 the offender provided Zane with $50,000 (being his contribution and that of Watsford) and stated his willingness to contribute a further $50,000 for the door.
The offender also agreed that he would go to the Netherlands with Zane to collect the sample. Zane complained to the offender about Dib pulling out of the trip to the Netherlands and about the fact that Zane believed that he was doing all the running around. In response to this complaint the offender said: "you know what I might get you to do, say listen…. The boys upped, they want 20%." The offender also said of Dib: "he's got the connections but I'm going to get my own connections man, you know I'm going to put my feelers out when I'm ready".
This is another example of a conversation in which the offender expressed his willingness and preparedness to be involved in drug-related activity by making his own connections and cutting out middlemen like Dib.
The offender reassured Zane that it would be either him or Watsford that accompanied him to the Netherlands. The offender complained that he didn't even want anything to do with it but may now have to fly over there with Zane.
Zane raised the issue of storage to which the offender replied: "that's between you and them, bro, as I said to you, I don't even want to get involved in this shit, I am only getting involved in this for you. I swear to God, I'm only getting involved to make sure…"
On 14 March 2017 the offender met with Zane and told him that Dib said that "they" wanted the money to be exchanged in Australia rather than overseas. The money would be left with the offender to hold onto and once Zane was happy with the product the offender would hand over the money. During this conversation the offender said to Zane; "after this first one goes (the importation of the border controlled drugs) I'm staying out of…. That's you'se and them now you know what I mean? I'll just focus on the cigarettes and you will have two things going on but you don't have to worry about it, all you have to worry about is bringing the cigarettes in and you don't have to worry about anything else. I'll control the cigarettes."
Later in the conversation the offender told Zane: "I vouch for you, like I've known you all my life. That's what you've got to understand. It falls on my head because I sit there and vouch for you".
Dib then attended and they continued to discuss the importation. Dib explained that his contact in the Netherlands would not put the drugs in packages or in boxes for Zane. Dib and the offender confirmed that they did not want the Netherlands syndicate to know anything about what company Zane was using because they were concerned that they would try to piggy back on the container. They then discussed how the handover was to take place. The offender confirmed that he would be in the Netherlands on the 19th and told Dib: "I will be your eyes and ears over there".
At that stage Dib confirmed that the load would be 200 kg of MDMA, 180 kg was for Zane which included (30 kg for Dib) and 20 kg for the person who facilitated the contact with the oversea syndicate. They discussed the costs of the MDMA and the offender said to Dib: "if he can get more, let me know…. Cos if we gonna do it, fuck it, might as well put more on", to which Dib replied: "yeah I may as well may as well, they're gonna put more to, I'll throw it on with you to man."
In the course of one day the offender expressed conflicting views about the drug importation. On one occasion he expressed a preference for the tobacco smuggling operation and a disinterest in the drug importation. On another occasion, he expressed an interest in putting more drugs on if Dib could source them. I am not persuaded that this conflicted position demonstrates that the offender was coerced or manipulated by Zane to participate in the conspiracy to import border controlled drugs. He was a willing participant motivated by profit although, on occasion, he did express a disinterest in the drug importation and a preference for the smuggled tobacco enterprise. Ultimately, however, he continued to participate in the drug conspiracies.
Between 18 and 22 March, Dib exchanged messages with Zane. The offender was copied into some of these messages in which Zane and Dib discussed when and where they would meet his contacts in the Netherlands to collect the sample of MDMA. This message chain originated from Arif via Fakhreddine and Ahmad. It included the precise details for the meeting.
On 22 March Zane, another undercover operative and the offender met two unknown men in Amsterdam who provided Zane with 1 kg of MDMA which was the sample. Later the same day the offender suggested to Zane that they offer his door service to another person by the name of Steven Elmir. He told Zane that Elmir was a person who could source drugs from all over the world and they could charge him 20% of the total amounts to be imported.
He provided Zane with Elmir's Blackberry handle. During this conversation the offender told Zane that he shouldn't even have been there with him because it had nothing to do with him. He said the only reason he accompanied Zane was to give Dib peace of mind. The offender told Zane that the other blokes he was putting him in contact with "are very, very good" (a reference to Elmir).
The offender introduced the possibility of Zane doing business with Elmir without any prompting from Zane. The conversation demonstrates that the offender was able to put Zane in direct contact with Elmir, a person who could source drugs from all over the world.
On the one hand, his willingness to introduce Zane to people who had the overseas contacts or were able to themselves source drugs, speaks of his willingness and preparedness to participate in conspiracies to import substantial quantities of drugs into Australia. On the other hand, his representations, on occasion, demonstrate that his interest was in the smuggled tobacco rather than the drug importation. During the conversation on 22 March 2017 the offender told Zane: "that's what I'm happy with you know (a reference to the smuggled cigarettes). But you know all this stuff (a reference to the drugs) I don't want nothing to do with it to tell you the truth. I want to hook you up with all these blokes, here you go, this is it… Give me all the cigarettes, you take this, I take the cigarettes, see you later you know what I mean?"
Insofar as the percentage for the cut of the MDMA was concerned, the offender told Zane: "you and Ryan… Just give me all the cigarettes. You'se take all of this. I don't want anything to do with this anymore. I don't want nothing to do with the drugs. I don't want nothing to do with that, this is all a favour to you, to get you going". He went on in that conversation to tell Zane that Elmir will want to do a test run and advised: "you know what we should say to him? All right you want us to do a test run. Not a problem but let us buy… What we want and put it on the same container as well". These representations are a further example of the offender's conflicted position.
Between 23 March and 4 April Zane and Dib exchanged messages (with this offender being copied into some of those messages) in which Dib asked Zane whether he was satisfied with the sample and they discussed how the drugs would be packed and whether the cocaine and MDMA would be marked differently. During some of these exchanges Dib forwarded Zane's questions to Arif via Ahmad and Fakhreddine.
Arif explained that the drugs would be packed whichever way Zane wanted and noted that if Zane wanted three tonnes that would be no problem. These messages from Arif were forwarded to Dib and then to Zane. Dib provided updates to Zane about the quantities of the drugs which fluctuated over time.
Dib and Zane discussed how the drugs and money would be exchanged and they agreed that the offender would hold the money in Australia and once Zane was satisfied with the drugs he would message the offender who would then hand over the money on Zane's behalf. They also discussed the possible deposit that Arif's syndicate now wanted and the increase in the cost of the MDMA from €4000-€4500 per kilogram. Ultimately no deposit was required.
Over two days on15 and 16 March the offender told Zane that he had someone else that wanted to do something from Vietnam. This contact is referred to as "Thehillbilly Roy", but the evidence does not demonstrate that any arrangements in relation to the importation of border controlled drugs were made with this contact.
Between 6 and 12 April 2017 Zane and the offender met and discussed the importation of cigarettes. Later in the conversation and in the context of the syndicate one importation, Zane asked the offender: "why don't you throw on?" (A reference to this offender purchasing drugs from the Netherlands), to which the offender responded: "I've got no cash flow". Zane said: "if you throw on, you've done all this for me, if you throw on whatever, however you want, I'm not going to take 20% from you, no way I would ever do that". Notwithstanding Zane's suggestion that the offender "throw on", the offender repeated that he had no cash flow.
Following the increase in the price of MDMA, Dib confirmed that he and Ahmad were going to cover the extra €500 per kilogram sought by Arif. He confirmed that the $350,000 door fee would be split with this offender paying $100,000, Zane paying $125,000 and Dib and Ahmad splitting the remaining $125,000. Arif's syndicate would not lock in an exchange rate given that the rate was fluctuating.
The offender confirmed that he would have $1,800,000 ready for the purchase of the smuggled cigarettes facilitated and organised through Zane but would withhold $1,120,000 to be paid to Dib, on Zane's behalf (and also $240,000 to be paid to Elmir for 50 kg of cocaine that Zane was going to purchase in relation to the syndicate two drug transaction). This meant that the offender only needed to give Zane $440,000 for the smuggled cigarettes.
Various arrangements were made by the offender to source the cash for the handover. Between 7 and 14 May 2017 a proposal was made by Dib to increase the size of the importation by 400 kg. Arif confirmed that 800 kg was available and the money needed to be ready by 21 May. Dib sent a message to Zane in which the offender was copied in confirming that the new load was 800 kg of MDMA and 50 kg of cocaine. It subsequently became clear that the cocaine could not be arranged.
On 19 and 20 May 2017 there were numerous tense messages exchanged between Arif, Fakhreddine, Ahmad and Dib about last-minute changes to the plans for the handover because Arif was concerned about conducting the handover on a Sunday as a result of increased law enforcement presence in the Netherlands.
At 4:55PM on 20 May the offender sent a message to Zane in which he stated that he no longer wished to be involved in the drug importation and that Watsford would take over and take the offender's commission. Shortly after this exchange Watsford sent a message to Zane advising that the offender did not want to be involved in the drug importation and that he was taking over. However that change of heart did not last long. About one hour later the offender sent Zane a further message in which he apologised for his earlier message and explained that "he just freaked out for a moment". He confirmed that he would take care of the cash handover the following day because he understood that Zane felt safer if he attended to it.
Although, the offender expressed an intention to withdraw from the conspiracy. He did not do so. He confirmed his willingness to attend the meeting where the cash would be handed over in payment for the drugs. Although Watsford expressed an intention to take over from the offender, he did not do so and I am satisfied that his involvement in the conspiracy essentially diminished following March 2017.
Dib and Zane exchanged messages in which they expressed their frustration at the changes proposed. There was a failed handover on 21 May 2017.
On the same day the offender discovered that Watsford and another man by the name of Chester had respectively skimmed $35,000 and $30,000 from the cash that was to be used by the offender to purchase 900,000 packets of cigarettes from Zane. The offender instructed Chester to attend his house and bring proof that the money taken was to settle a debt incurred by Chester. That day, Watsford met with the offender and told him that he would pay the money back that evening but was unable to do so. Later that evening the offender sent a message to Zane stating that Watsford and Chester had robbed him of $65,000 which meant that he had to run around and find it. He also said that he had bashed Ryan and expressed his frustration and anger.
On 23 May Chester attended the offender's house and had the middle part of his head shaved by the offender as punishment for taking the money. The offender took photographs of Chester's new haircut and circulated them to a number of associates. On 26 May 2017 the offender instructed Watsford to attend his home. The offender shaved the middle part of Watsford's head as punishment for taking the money and again circulated photographs to Zane and other associates.
On 26 May 2017, Zane, in the Netherlands, collected 34 plane boxes containing MDMA. He sent a message to the offender advising that he was unloading the product and confirmed that he had checked it and was happy for the offender to hand over the money. The offender handed over $1,120,000 cash to Dib and Ahmad. After Ahmad counted the money, Dib, Ahmad and Fakhreddine departed with it. Following the exchange of the MDMA and the money, the shipment of MDMA was seized by the Netherlands police.
Forensic examination of the MDMA revealed the total gross weight was 797.08 kg with a purity of between 71% and 78.1%. The pure weight was 594.43 kg. The street value was between $79.7 million and $398.5 million. The wholesale value was between $29.5 million and $35.1 million.
On 7 June 2017 the offender and Zane met and discussed how the drugs would be collected once they arrived in Australia. The offender explained that the drugs would go to Fakhreddine. The offender and Zane discussed future importations with Arif, who would receive a cut.
Between 9 June and 20 July 2017, Zane had a number of communications with Dib, the offender and Arif about how the 800 kg of MDMA would be distributed upon its arrival.
On 15 June, the offender and Zane met in Dubai where they discussed the progress of the importation and potential future importations with Elmir, Arif and other associates. During this conversation, Zane and the offender agreed they did not need the drama or the headache of dealing with Dib and Arif. The offender said: "we may as well not do business cos I don't need it…. We've got other people… We're are not petty cunts… We're gonna make millions…fucking million a week… We're talking about tens of millions, even making hundreds of millions of dollars". The offender had well and truly embraced the notion of making a large amount of money from the importation of large quantities of border controlled drugs.
These representations are inconsistent with the notion that he was a reluctant participant in the agreements to import border controlled drugs. The suggestion made in the written submissions filed on behalf of the offender that some of these representations were made in a state of unknown sobriety lacks an evidentiary foundation. There is no evidence from which I could find that the offender was affected by alcohol or other substance such as to have impacted upon what he said.
On 20 July 2017 Dib forwarded a message chain setting out the revised breakdown of the 800 kg of MDMA:
SYNDICATE ONE SHARE AMOUNT (KG)
M. Ibrahim 30 + 20 (door fee)
Unknown Person 50
Dib/Ahmad 74 (introduction fee)
Arif/Fakhreddine 456
Zane 150 + 20 (door fee)
Syndicate One Total 800 kg MDMA
[7]
Between 22 June and 11 July 2017, 900,000 packets of cigarettes arrived in Sydney from Dubai. Zane provided the offender the keys to the warehouse in Parramatta where they would be delivered. The offender attended the warehouse where he was met by other associates who began loading boxes of smuggled cigarettes onto a truck for distribution to unknown places in Sydney.
The total number of cigarette sticks imported by the offender, Fares Derbas and others facilitated through and assisted by Zane was 18 million. The total amount of duty evaded through the importation was over $11 million.
The offender sold the 900,000 packets of smuggled cigarettes for $8 per packet with $7.50 a packet being allocated to the offender, a total of $6,750,000. Fares Derbas was allocated $450,000. The two men completed the distribution of tobacco within a week.
[8]
"Future Tobacco Transactions"
On 19 July the offender and Zane exchanged messages in which the offender confirmed that he wanted to purchase more smuggled cigarettes. On 24 July 2017 the offender arranged for associates to deliver $2.25 million cash to a hotel in Balmain where he was meeting with Zane. During that meeting the offender and Zane discussed the further proposed importation of tobacco.
The offender told Zane that he intended to on sell each packet for $8.50 and thought they would each receive $3.2 million after deducting the cost price of $2.25 million. He confirmed that he would pay the people who invested in the transaction from his own cut.
[9]
Syndicate Two Drug Transaction
The 'Syndicate Two Drug Conspiracy' involved two separate drug transactions. The offender disputes that he was a participant in the second transaction. The offender does not accept conspiratorial liability for this transaction and disputes that he had any meeting of the minds with Elmir in respect of this attempted second importation.
On 22 March 2017 during the drive to the meeting location to collect the 1 kg of MDMA sample in respect of the syndicate one transaction, the offender and Zane discussed Elmir's capacity to source drugs from around the world. The offender told Zane that if they used Elmir's syndicate they would not need anyone else because they were well respected and had a lot of people working with them. They discussed the commission but the offender clarified that the commission would be split between Zane and Watsford because the offender would just be happy with the cigarettes and he did not want anything to do with the drugs. He was simply doing a favour by introducing Zane to Elmir.
The offender told Zane not to tell Dib that they were dealing with Elmir because it was none of their business. He talked about him and Zane making a "fucking 50 million dollars each". It is hard to accept that he was there referring to profits made from smuggling tobacco as opposed to money made from the importation of drugs. In any case, when Zane raised Watsford in the conversation, the offender said: "you let me drive with the other blokes. It's got nothing to do with Ryan. It's our share mate. I'll be straight out with you…. Ryan's got the cigarettes, but this other stuff…. He's too scared to go and do anything. Like he was supposed to be here with you". The offender said that he can't get the lion's share for sitting back and doing nothing, "it doesn't work like that."
On 24 March 2017 the offender and Zane exchanged numerous messages regarding an importation of drugs sourced from Elmir's syndicate. The offender asked Zane if Elmir's drugs would be put on the same container as Dib's without Dib knowing. Zane confirmed that they would be.
The offender and Elmir exchanged messages which the offender then forwarded to Zane. In these messages the offender confirmed the commission would be 20% to get the ball rolling and the offender would confirm with Elmir whether he was purchasing drugs as part of the importation or simply taking a commission. Elmir told the offender that his associates could import 500 kg if they wanted to do "a massive amount". The offender forwarded these messages to Zane stating: "I'm trying to get this done for us so what's the most he can put on with us".
He told Zane to message Elmir directly with the questions he needed answering. Zane asked the offender if he had told Elmir that they already had a container coming out of Holland. Zane said that 50 to 100 wasn't worth the door. He said "let's not Fuck around while we have the door let's go bigger". The offender responded: 'you just tell him that". This is another representation from Zane suggesting that they take advantage of the door by importing a larger quantity of drugs.
Between 24 March and 1 April Zane and Elmir exchanged numerous messages discussing the quantity of drugs proposed for the importation; that the 20% door fee would cover the packing by Zane; the need for the drugs to be heat sealed; and that Elmir would need to get the cover load ready. These communications were conducted directly between Zane and Elmir.
Between 1 April and 3 April, the offender forwarded to Zane a series of messages he had exchanged with Elmir which included discussions about how Elmir would source the drugs; the prices Elmir charged for cocaine and MDMA and the fact that the offender could not purchase any drugs at the moment as he had put all his money into cigarettes but "for the next one he could". The offender also vouched for Zane.
Between 10 and 19 April 2017 Zane exchanged messages with the offender and Elmir about the proposed importation including the quantity of the drugs and pricing. On 10 May 2017 the offender, Zane and Elmir met in Dubai where they discussed packaging, timing of the importation, delivery in Australia and sourcing the drugs from other locations.
On 15 May 2017 the three men met again during which time they discussed collection date and ongoing importations. On 22 May 2017 Zane and Elmir exchanged numerous Cipher messages regarding the arrangements for the collection of the drugs. Later that day Zane and another undercover operative attended the meeting point in the Netherlands and collected the MDMA and part of the cocaine.
The gross weight of MDMA the subject of this conspiracy is 502.30 kg with a purity of 77.9% and 78.6%. The pure weight is 392.95 kg. The street value of the impure MDMA was between approximately $50.23 million and $251.1 million. The wholesale value was between $18.58 million and $22.1 million. The total gross weight of cocaine was 20.03 kg with a pure weight of 15.77 kg. The street value of the impure cocaine was between approximately 4 million $12 million. The wholesale value of the impure cocaine was between approximately $3.7 million and $5.6 million.
The breakdown of the 500 kg of MDMA and 20 kg of cocaine for the first transaction of the syndicate two conspiracy is as follows:
SYNDICATE TWO SHARE COMMODITY AMOUNT (KG)
M Ibrahim MDMA 50 + 30 (door fee)
Cocaine 2 (door fee)
Elmir MDMA 80
Elmir's Unknown Syndicate Associates MDMA 240
Cocaine 16
Zane MDMA 50 + 30 (door fee)
Cocaine 2 (door fee)
Total 500 kg MDMA
20 kg Cocaine
[10]
On 15 June 2017 the offender and Zane met and discussed a number of things including further importations and future commissions. This is further evidence of the offender's willingness to be involved in drug-related activity
[11]
Arrangements for further importation by Syndicate Two (disputed liability)
On 22 June Zane and Elmir met in Dubai. During their discussions, Zane said to Elmir: "if you want to go again you tell me where and you tell me how much and I'll start to arrange it tonight. I'll start getting a cover load sorted straightaway". Elmir discussed bringing the drugs in from Greece and Holland and said that MDMA was easy. The offender was not party to these discussions.
The following day Zane confirmed the 250 kg was the minimum but that they wanted to do 500 kg. He said that he would fill the offender in but the offender was not included in these communications. Further communications on 24 June between Zane and Elmir related to the quantity of MDMA and the door fee. The offender was not a recipient of these messages nor was he informed of the specifics of the discussions between Zane and Elmir at this stage.
Between 1 July and 4 July 2017 Zane and Elmir exchanged messages about the next importation. There is no evidence that this offender was informed of the specifics of the discussions at this stage.
On 6 July Zane sent a message to the offender letting him know that he was sorting out stuff with Elmir and that his uncle was picking up 500 kg of MDMA and 200 kg of cocaine from Elmir's associates in the Netherlands and that "obviously we get our 20% from that but please brother don't tell anyone…" To which the offender replied: "Sweet bro, sounds mad".
On 16 July 2017 Zane and the offender met. During this meeting they discussed the offender's travel plans to Thailand with his brothers. The offender also told Zane about a conversation he had with Elmir who had become paranoid and suspicious about Zane. He again vouched for Zane telling Elmir that he trusted him 100%. Zane told the offender about the quantities of drugs that had been arranged with Elmir. The evidence does not demonstrate that the offender had negotiated, or been party to the negotiations between Zane and Elmir in relation to the quantity is the subject of this importation.
On 18 July Zane's uncle (another undercover operative) attended a meeting place in Rotterdam where he collected the drugs. After the successful handover, Zane sent a message to the offender confirming that it was "all sorted". The total gross weight of MDMA the subject of this transaction was 498 kg with a pure weight of 344.6 kg.
The total gross weight of cocaine was 116 kg with a pure weight of 91.87 kg. The gross weight of methamphetamine was 15 kg with a pure weight of 12.04 kg.
The substances were to be divided as follows:
SYNDICATE TWO - TRANSACTION TWO COMMODITY AMOUNT (KG)
MDMA 49.5 (door fee)
M Ibrahim Cocaine 11.5 (door fee)
Methamphetamine 1.5 (door fee)
MDMA 399
Elmir Cocaine 93
Methamphetamine 12
MDMA 49.5 (door fee)
Zane Cocaine 11.5 (door fee)
Methamphetamine 1.5 (door fee)
498 kg MDMA
Total 116 kg cocaine
15 kg methamphetamine
[12]
On 7 August 2017 the offender was arrested in Dubai. Between 8 August and 17 September 2017 he was held in the custody of the authorities in the United Arab Emirates. On 13 August 2017, DFAT staff visited the offender in custody in Dubai at which time he advised that during his arrest and afterwards he was beaten by police officers and forced to sign a document in Arabic that he did not understand. He was asked about what he meant by being beaten but he did not elaborate further.
On 17 September 2017 he was extradited to Australia.
[13]
The disputed liability for the second transaction in the Syndicate Two Conspiracy
The offender does not accept conspiratorial liability for the second transaction which involved 344.6 kg of pure MDMA, 91.87 kg of pure cocaine and 12.04 kg of pure methamphetamine. It is for the Crown to establish the offender's agreement in respect of this drug transaction beyond reasonable doubt.
The offender submits that, after Zane's collection of the first quantity of "Elmir drugs", Zane and Elmir commenced preparations for the second transaction. The offender was not party to the next arrangements and there was no meeting of the minds as between the offender and Elmir in respect of the second transaction. It is agreed that Zane exposed the offender to his arrangements with Elmir by keeping him informed as to those arrangements. However, this is said not to constitute a meeting of the minds. The drugs, the subject of this second transaction, were collected by police operatives on 18 July 2017.
The offender submits that it is not enough that the offender had knowledge of, or acquiesced on the face of it, to profit from the arrangements asserted by Zane. Furthermore, it is submitted that this sham orchestrated by Zane, namely, asserting that he was cutting the offender into a profit, is not a criminal conspiracy to import narcotics.
The Crown submits that the evidence establishes beyond reasonable doubt that the offender was party to an agreement to import the drugs the subject of the second transaction. The Crown relies upon the following facts:
1. the offender encouraged Zane to use Elmir as a contact for sourcing drugs to be preferred over Dib;
2. he introduced Zane to Elmir's associate for the purpose of discussing the quantity and commodity of drugs to be imported;
3. the offender communicated with Elmir so as to alleviate his suspicions about Zane;
4. the offender agreed to take 20% (to be shared with Zane), from Elmir and his syndicate, of the drugs collected on 18 July 2017. He is said to have promoted that percentage to both Zane and Elmir.
I make the following findings: the offender introduced Zane to Elmir and encouraged him to use Elmir to source drugs, preferring him over Dib. That he did so was not for the purpose of one transaction only but with an intention to conduct future importations (plural).
On 10 July 2017 it was Zane who made arrangements with Elmir to have Hawchar attend the meeting so he could speak to him about Elmir's business. On 11 July, Zane, Hawchar and the offender met at the Sheraton Hotel during which time Zane explained to the offender how to find a warehouse where the cigarettes were stored. Zane and the offender also had a conversation in relation to whether Elmir decided to give Dib a cut of the drugs or profits.
I do not accept the Crown's submission [CWS at 54 (b)] that the offender introduced Zane to Hawchar for the purpose of discussing Elmir's business. It appears that Zane had already made arrangements with Elmir for Hawchar to attend the meeting.
I am satisfied that the offender communicated with Elmir to reassure him and alleviate his suspicions that Zane might be a police officer. He told Elmir that he trusted Zane "a hundred percent". It is unclear as to when the offender had this conversation with Elmir but it appears to have been after the first successful transaction on 22 May 2017. His actions in vouching for Zane could only have been to ensure that Elmir would continue to engage in the second transaction.
I am also satisfied that the offender agreed to take 20% of the drugs, to be shared with Zane, from Elmir and his syndicate. On 6 April 2017, the offender told Zane in relation to Elmir: "we're gonna make 20% on everything". That the arrangement was for the offender to share in a 20% commission with Zane is supported by the fact that on 26 June 2017, during the course of a message exchange between Zane and the offender, Zane told him that Elmir was bringing something else in from Holland and Taiwan but "it's 20% between us for now". On 6 July 2017, Zane sent a message to the offender updating him about the second transaction stating: "obviously we get our 20% from that but please brother don't tell anyone…" The offender replied: "Sweet bro, sounds mad".
In addition to these communications, the final breakdown of the drugs supports the contention that the offender had agreed to take 20% to be shared with Zane.
I am satisfied that there was an agreement between Zane, Elmir and the offender to import the drugs the subject of the second transaction and that the offender intended that the objective should be carried into effect. Even if there can be no meeting of the minds between the offender and Zane, there was a meeting of the minds between the offender and Elmir that the second transaction go ahead. The offender vouched for Zane in furtherance of the conspiracy, in an effort to ensure that the transaction went ahead.
That said, the offender's direct involvement in this transaction was limited. He was not included in many of the messages between Zane and Elmir in which the negotiations and arrangements were communicated.
While I am satisfied that the Crown has established conspiratorial liability beyond reasonable doubt, the role played by the offender in this second transaction of the syndicate two conspiracy is significantly less than the role he performed in the syndicate one conspiracy and the first transaction of the syndicate two conspiracy.
[14]
The role of the offender in each offence
The offender is to be sentenced for criminality spanning what may be described as three syndicates. The first can be described as the tobacco syndicate, which included the offender, Ryan Watsford and Fares Derbas (sequences 19, 12, 15 and sequences 13, 14 on the s 16BA Schedule). His criminality in these offences included the sale and distribution of smuggled tobacco which involved the offender dealing with the instruments in proceeds of crime to the value of $2,863,870. On another occasion he was involved in the importation of 900,000 packets of smuggled tobacco from Dubai and dealt with a total sum of $1.8 million to purchase the smuggled cigarettes from Zane. He also engaged in plans to import a further amount of smuggled tobacco and dealt with a total sum of $2,224,540 to facilitate that importation.
The second syndicate can be described as the MDMA Dib syndicate which was a conspiracy that included the offender, Watsford, Dib, Ahmad, Fakhreddine, Arif and Saki to import 800 kg of MDMA into Australia (sequence 1).
The third syndicate can be described as the Elmir syndicate which was a conspiracy that included the offender, Elmir and various unknown contacts of his, to import commercial quantities of border controlled drugs. Common to the operation of each syndicate was the undercover operative Zane.
In determining the offender's role in each syndicate and thereby his role in the offences, a number of preliminary issues must be addressed. The first issue is whether the apparent meeting of the minds as between Zane and the offender constitute criminal acts? Are the conversations and arrangements as between the offender and Zane relevant to determining the extent of the offender's conspiratorial liability or are they relevant to motive and the application of specific deterrence?
The second issue is whether the offender was a willing and enthusiastic (as opposed to a reluctant) participant in the conspiracies to import border controlled drugs.
[15]
Is the apparent meeting of the minds between Zane and the offender a criminal act?
The offender submits that it is critical to appreciate that the apparent meeting of the minds (on any topic) as between Zane and the offender is not a criminal act. The Statement of Facts is replete with examples of arrangements forged between these two men. The offender submits that whilst these arrangements may be relevant to motive and the application of specific deterrence, they amount to no offence at all.
Mr Walker SC points out that it is essential to the existence of a conspiracy there are at least two persons who agree or combine together to accomplish an unlawful act. It is essential that each of the two parties to the conspiracy has knowledge or is deemed to know the carrying out of the purpose involves the commission of a criminal act. If only one of them has such guilty knowledge, it is not a conspiracy: Rex v Segal (1929) 45 CCC 32. The critical question in a conspiracy is whether or not a common design exists to commit an unlawful act; here, to import into Australia a commercial quantity of border controlled drugs.
The offender submits that it would be quite wrong to import into an evaluation of the objective seriousness of the charged criminal conspiracies things otherwise agreed as between Zane and the offender and only between those two men, in light of the fact that Zane was an undercover operative acting pursuant to a controlled operation. He did not intend that the drugs be imported into Australia. There was no intention on his part to commit a criminal act and therefore it cannot be said that there was a common design as between Zane and the offender.
The Crown relies on the case of R v Ong [2007] VSCA 206 in support of the contention that there can be a meeting of the minds between an offender and an undercover operative. In that case, Ong's co-conspirators included undercover police officers of the Royal Thai police force. One of the undercover operatives was engaged to collect the heroin in Bangkok and transported to Australia. Thai and Australian police cooperated to bring the heroin to Melbourne by aeroplane. In that case, the undercover police officer was said to have intended to import the heroin into Australia and that constituted a crime despite the fact that the police were not liable in respect of its commission. The fact that they were not liable in respect of the commission of the crime was held not to preclude their status as parties to the agreement constituting the conspiracy in that case.
Having reviewed the authorities, I am not persuaded that the arrangements forged as between Zane and the offender alone are acts in furtherance of the conspiracy. However, on those occasions where the offender was participating in a two-way conversation that includes a co-conspirator, there is a meeting of the minds between the offender and the co-conspirator such as to establish conspiratorial liability.
However, the arrangements forged between Zane and the offender alone are relevant to the offender's motivation and a determination of the extent of his willingness to participate in the drug conspiracies.
[16]
Was the offender a willing and enthusiastic (as opposed to reluctant) participant in the conspiracies to import drugs?
There is no issue that the offender embraced the tobacco enterprise for the purpose of obtaining a significant financial benefit. There is an issue, however, as to what extent he embraced the conspiracies to import border controlled drugs and whether, in truth, he was a willing or enthusiastic participant or whether his involvement was motivated by his indebtedness to Zane, who in turn manipulated and pressured the offender to participate in the drug conspiracies.
A chronology (MFI 2) sets out the relevant dates and events. It is not necessary to reproduce that 16-page document in the body of this judgment. In summary, between June and November 2016, Watsford and Zane conducted discussions in relation to money laundering and smuggled tobacco.
On 10 November 2016, Watsford introduced Zane to the offender, the purpose of which was to bring the offender into the tobacco enterprise already forged. The tobacco transactions continued over the course of the following 8 months. It is clear that the offender was a willing and enthusiastic participant in the tobacco transactions and that he was motivated by desire to make a financial gain.
On 14 November 2016, in a conversation between Zane and Watsford, Zane raised the subject of using the "door" to guarantee "anything". I am satisfied that during that conversation it was Zane who introduced the possibility of using the door service to import drugs. Zane also raised the possibility of importing large quantities of drugs because it wasn't worth the risk to bring in "five or ten kilos".
The offender then joined the meeting and asked Zane "do you want me to ask them if they can organise a container?" The offender also referred to having access to drugs in Lebanon. The evidence does not establish that he did in fact have access to drugs in Lebanon but the conversation is one example of the offender's willingness to engage in discussions about the importation of border controlled drugs.
On 18 November 2016, Zane suggested to the offender that they enter into a partnership and "bring stuff in". His suggestion was predicated on his understanding that the offender had contacts or connections to source the drugs and that Zane could provide a guaranteed "door" to bring the drugs into the country.
I am satisfied that during this conversation Zane was encouraging the idea of using the "door" to import large quantities of border controlled drugs. He suggested the partnership; he discouraged reliance on the cigarettes alone and suggested to the offender that he could assist with financing - "I can cover it for you, I can cover it".
But the offender, on 18 November 2016, embraced the opportunity presented by Zane by immediately suggesting he would need to bring in his "other partner" (a reference to Dib) for the purpose of discussing further the proposed importation of border controlled drugs. True it is that the offender expressed his gratitude to Zane for providing the opportunity to make money from the smuggled tobacco, but I am not persuaded that the offender embraced the opportunity presented by Zane simply because he felt indebted to him. This is simply not borne out by his subsequent representations and actions. He did not simply introduce Zane to Dib and have nothing further to do with the arrangements and negotiations
There were occasions when the offender expressed a disinterest in the drug transactions. Examples of those representations include that on 27 November he told Zane that he liked the cigarettes but as to the drugs, Zane and Watsford could "go halves". That apparent expression of disinterest was precipitated by the offender telling Zane that he had told Dib that the fee was 20% of the amount to be imported and that after the door fee was paid Zane and the offender could split what was left over of the commission.
On 5 January 2017, the offender said that he didn't want anything to do with the importation of the drugs and he only wanted to be involved in the purchase of smuggled cigarettes.
On 14 March 2017, he conveyed that he didn't want anything to do with the importation of drugs and expressed some frustration about having to fly over to the Netherlands in connection with the importation. He repeated that he wanted to focus on the cigarettes and that after the syndicate one transaction he was staying out of it.
However, on other occasions, by both words and deeds, the offender demonstrated that he was a willing participant in the drug conspiracies. I am not persuaded that he was an unwilling or reluctant participant, notwithstanding that on occasion he expressed a disinterest in the drug importations. Nor am I persuaded that he was a "naïve" participant. I am satisfied that the prosecution has established that the offender was a willing participant in the drug importations, motivated by the fact that he was to obtain a significant portion of the drugs on each occasion. I make this finding for the following reasons:
1. On 18 November the offender introduced Dib to Zane and during a meeting on that date the three men walked away from the cafe to discuss the possibility of importing illicit substances from Lebanon and other places;
2. In March 2017 the offender agreed that he would contribute $25,000 to cover the costs of everything Zane had to organise. I am satisfied that this was a contribution to the door fee in respect of the importation of drugs because this arrangement included Dib contributing $25,000 to the costs. Dib was only involved in the syndicate one transaction. The offender also stated his willingness to contribute a further $50,000 for the door.
3. On 8 March 2017 the offender asked Zane whether he would be interested in purchasing MDMA from a third party, EF, and Zane agreed. Not only was the offender a willing participant in the syndicate one transaction, he also willingly aided and abetted, counselled or procured the trafficking of the commercial quantity of MDMA;
4. On 14 March 2017, the offender said of Dib that he had his connections but that the offender was going to get his own connections and put his "feelers out".
5. On the same date, although the offender expressed a desire to focus on the cigarettes only, he engaged in discussions with Zane and Dib about the importation of MDMA, confirming that they did not want the people in the Netherlands to know anything about what company Zane used because they were concerned that the Netherlands syndicate would try to piggy back on the container;
6. The offender confirmed that he would attend the Netherlands and be Dib's "eyes and ears over there".
7. During the conversation about the cost of the MDMA in respect of the syndicate one conspiracy, the offender said to Dib: "if he can get more, let me know…cos if we're gonna do it, fuck it, might as well put more on".
8. On 22 March 2017, while in the Netherlands, the offender again expressed a disinterest in the drugs and a focus on the cigarettes. However in the same conversation the offender suggested that they offer Zane's door service to another supplier, Elmir, a person who could source drugs from all over the world and charge 20% of the total amounts to be imported. On this occasion the offender was able to provide Elmir's Blackberry handle to Zane. The offender also suggested that they tell Elmir that they would buy whatever they wanted and put it on the same container.
9. On 20 May the offender sent a message to Zane stating that he no longer wished to be involved in the drug importation and would not attend the handover. However one hour later he sent a further message explaining that he "freaked out for a moment", telling Zane that he wouldn't let him down and that he would be there to take care of everything.
10. On 26 May 2017 the offender handed over $1,120,000 cash to Dib on behalf of Zane.
11. The offender's share of the drugs in the syndicate one conspiracy was 30 kg of MDMA +20 kg for the door fee;
12. On 15 June 2017 the offender and Zane met in Dubai during which time they discussed the progress of the importation and potential future importations with Elmir, Arif and other associates;
13. On the same day the offender had a conversation with Zane about doing business with someone other than Dib's group, during which he said: "we're not petty cunts. We're going to make millions….fucking million a week. We're talking about tens of millions, even making hundreds of millions of dollars". I am satisfied that this was a reference to making profits out of the drug importations as opposed to the smuggled tobacco. While the offender's expectations about the extent of the profits may have been exaggerated, his representations clearly reflect that he was enthusiastic about obtaining a significant financial gain from the importation of border controlled drugs;
14. On 24 March 2017 in the course of exchanged messages between the offender and Elmir the offender confirmed the commission would be 20% to get the "ball rolling". In the course of the messages to Zane, the offender added: "I am trying to get this done for us so what's the most he can put on with us";
15. On 6 April 2017 the offender told Zane: "We're gonna make 20% on everything".
I am satisfied that the evidence establishes that Zane provided the opportunity to import large quantities of border controlled drugs and encouraged the use of the "door" service for such importation. I am also satisfied that Zane, on a number of occasions, suggested that larger quantities be imported so as to take full advantage of the door service. However, the examples referred to above demonstrate, clearly in my view, that the offender was a willing participant in the conspiracies to import substantial quantities of drugs into Australia. Although on occasion he expressed a preference for the smuggled tobacco transactions, he embraced the suggestion that the door service be used to import border controlled drugs; he made the introductions necessary to facilitate each drug conspiracy; his purported cut of the drugs was significant; and he participated in not one but two conspiracies to import substantial quantities of border controlled drugs into the country.
[17]
The drug conspiracies
The assessment of criminality includes consideration of the offender's particular acts or acts in furtherance of the conspiracy. However, that assessment goes well beyond the mere recognition of the offender's actions and role in the enterprise. In R v Elomar & Ors [2010] NSWSC 10, Whealy J said at [15]:
The primary aspect of the assessment of individual criminality is well understood to be on a broader basis. The gravamen of the offence - the essential feature - is the agreement to participate in organised criminal activity. The sentence must reflect the organisational nature of the conspiracy rather than by confining the sentencing discretion to the identification of the role of an offender with specific reference to the physical acts that he undertook. It is necessary, as a consequence, to examine the nature and scope of the conspiracy and to assess … the level of criminality exhibited by the conspiracy itself.
The weight of the border controlled drugs in each conspiracy was substantial. The value of the drugs was also substantial. The evidence does not establish that the offender was to engage in street level dealing. However the wholesale value of the drugs was very high, attracting significant potential profit. I bear in mind that the weight of the drug is not the chief or determinative factor in determining the seriousness of the offences although it remains a relevant factor: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584.
Each conspiracy to import border controlled drugs involved a high degree of criminality. The conspiratorial agreement related to the importation of very substantial quantities of drugs. It involved planning and organisation on an ongoing basis over several months. The offender was involved in two separate conspiracies each having links to professional, international criminal syndicates. Although sophisticated, I am not persuaded that the degree of sophistication exceeds that inherent in offences of this type, namely agreements to import substantial quantities of border controlled drugs. Having regard to the quantity and the value of the drugs, the nature of the conspiratorial agreement and the methodology used, I am satisfied that each conspiracy is properly characterised as objectively very serious.
The Crown submits [CWS 20] that the element of concert which differentiates the offence of conspiracy from the substantive offence makes the offence of conspiracy more serious than if an individual were acting alone to plan and commit the offence, as the likelihood of the crime occurring is increased by the involvement of multiple participants making a commitment to each other to do so: DPP v Fabriczy [2010] VSCA 334 at [19]. That cannot be said of the present case having regard to the fact that there was never any likelihood that the drugs would be imported into Australia.
In this case, the fact that a number of offenders were acting in concert to achieve an unlawful act/acts did not increase the likelihood of the crime/s occurring because of the nature of the undercover operation (a matter about which I will have more to say in due course). I am not persuaded that the offences of conspiracy here are more serious than substantive offences.
There was never any risk that these large quantities of drugs would reach Australia. From the outset this was a police undercover operation and the drugs were seized by police before they made their way into the country.
The weight to be given to the fact that the drugs were not disseminated into the community will vary from case to case. Here, a primary consideration remains that the offender intended that substantial quantities of drugs reach Australia to be disseminated into the community and it was through no act of his that no such risk arose. The dissemination of drugs into the community constitutes a significant aggravating factor. However, the absence of an aggravating factor does not thereby constitute a mitigating factor. The fact that the drugs were not actually disseminated into the community as a result of the police operation is not a factor that reduces the moral culpability of the offender: Cam Huynh Giang v R [2017] NSWCCA 25.
I am satisfied that the indicative sentence in respect of the syndicate two conspiracy (sequence 18) should be higher than the indicative sentence for the syndicate one conspiracy (sequence 1). That is because the syndicate two conspiracy involved two separate transactions (albeit that the offender's role in the second transaction was relatively minor). Furthermore, in determining the appropriate indicative sentence for the syndicate two conspiracy, I must take into account the offence of trafficking MDMA on the s 16BA Schedule which in itself is an objectively serious offence carrying a maximum penalty of life imprisonment.
I turn to consider the role of the offender in each of the drug conspiracies. The Crown submits that the offender's role should be characterised as a principal and organiser who exercised autonomy, was personally invested in the importations and stood to make significant profits from them. He is said to have performed crucial physical acts in furtherance of each conspiracy and was trusted to make decisions and relate information to ensure the conspiracies could proceed.
The offender takes issue with the characterisation of his role as an organiser and trusted high-level participant who exercised significant autonomy. His role and that of Watsford is said to be comparable. His role is said to be less than that of Dib. The assertion that "this offender was in no more critical position than Watsford" fails to properly characterise the role he played and the autonomy he exercised.
I am not persuaded that this offender's role is comparable to Watsford, or that it sits under the role played by Mostafa Dib. The fact that the offender was less "hands on" than Dib in attending to the tasks required in connection with the syndicate one transaction, does not establish that he had a lesser role. Indeed, it is not unusual for individuals who hold some seniority in a drug hierarchy to distance themselves from the criminal activities by performing less direct tasks.
The offender's acts in furtherance of the agreement the subject of the syndicate one transaction includes:
1. introducing Dib to Zane as someone who is able to source illicit substances and was keen to import such substances using Zane's "door" service (November 2016);
2. contributing a $25,000 deposit for the costs associated with the "door" (9 March 2017);
3. in company with Watsford, meeting with Jodeh to take Dib's $25,000 contribution to the costs associated with the "door" (14 March 2017);
4. offering to contribute a further $50,000 for the costs associated with the "door";
5. liaising with Zane and Dib about how the money handover would take place in Sydney upon receipt of the drugs to Zane's satisfaction in the Netherlands;
6. agreeing to hold the money in Australia for handover once Zane had checked the drugs;
7. travelling to the Netherlands with Zane and collecting a sample of the MDMA (22 March 2017);
8. attending the meeting on 26 May 2017 and handing over $1,120,000 in cash after receiving word from Zane that he had successfully received the MDMA in the Netherlands;
9. introducing Zane via Blackberry to Arif (15 June 2017).
The offender was a trusted and respected participant in the enterprise. His role extended beyond merely making introductions. By his own representations, the fact of his participation provided the guarantee that the enterprises would run smoothly with a reduced risk of being "ripped off".
On 10 November 2016, he told Zane: "anything you want, anything you want to bring in just let me know, I'll move anything you want" and that he would be " your fucken right hand man, you know no one's going to want to rob me".
During a conversation on 27 November 2016, in relation to the syndicate one drug transaction, the offender told Zane: "you, Ryan and him go 3 ways….. But the guarantee is still there that nothing can go wrong if I introduce you to these people". In his trusted role, the offender vouched for Zane on more than one occasion, facilitating the smooth running of the enterprise.
That the offender did demonstrate autonomy and a decision-making role is evidenced by the fact that he had the contacts and connections which resulted in introducing Zane to Dib (and through him the Arif syndicate) and to Elmir. Indeed it was this offender who suggested that they deal with Elmir because he considered him more reliable than Dib. Furthermore, it was this offender who asked Zane whether he would be interested in purchasing MDMA from EF.
In respect of the syndicate two drug transaction, the offender performed following acts in furtherance of the conspiracy:
1. introducing Zane to Steven Elmir as a person who could source drugs from all over the world (22 March 2017);
2. travelling to Dubai and facilitating an introduction in person between Zane and Elmir (10 May 2017);
3. attending meetings in Dubai on 10 May and 13 May 2017 during which the offender, Zane and Elmir discussed the logistics for the importation;
4. communicating with Elmir about the timing of the shipment of the drugs from the Netherlands.
A further indication of the senior role of this offender is that he stood to receive 50 kg of the total MDMA imported as a result of the syndicate one drug transaction, comprised of a door fee of 20 kg and 30 kg. The offender stood to receive a total of 80 kg of MDMA in respect of the first transaction of the syndicate two drug conspiracy, comprising of his purchase of 50 kg together with the commission to him of 30 kg of MDMA.
The fact that the drug split in each case was a sham arrangement and that, in truth, the offender did not stand to make anything from the drug transactions, is not to the point. The point is that he was aware of the breakdown of the drugs. He purportedly stood to gain a substantial quantity of the drugs. The negotiated profit is not meaningless in this case because it is a further indication of the offender standing in this hierarchy.
Watford contributed $25,000 to the door fee. However, I am satisfied that he was not allocated a portion of the drugs the subject of the syndicate one transaction. His involvement in the syndicate one transaction diminished significantly after March 2017. Watsford did not have the overseas connections. That this offender was more senior in the enterprise than Watsford is also demonstrated by the way he administered punishment to Watsford when he uncovered that Watsford had cheated him of $30,000. On 26 May 2017, the offender instructed Watford to attend the following day. Upon attendance the offender shaved the middle part of Watford's head as punishment for taking the money. He took photographs of Watsford and sent them to Zane and other associates.
Of course this offender had no control over the "door" or any information about the door other than that provided by Zane. The person who was the principal or lynchpin in the Sydney-based group was Zane. He purported to guarantee the successful importation of border controlled drugs and tobacco products. His "door" service was crucial, indeed essential. The lynchpins in the overseas drug syndicates were Arif and Elmir. Without them there would be no drugs.
In respect of each offence of conspiracy to import a commercial quantity of border controlled drugs, I find the objective seriousness to be of a high (as opposed to the highest order) having regard to the substantial quantity of border controlled drugs the subject of the conspiracies; the planning, organisation and methodology involved; the lengthy period of several months over which each conspiracy was on foot; and the degree of coordination and communication between the Sydney-based syndicate and the overseas syndicates.
In terms of the offender's role, I find that in respect of each conspiracy, he was a trusted and willing participant who engaged in the criminality expecting significant financial gain. I am satisfied that this offender played a significant role, slightly higher than that of Dib and well above Watsford in the syndicate one transaction. Although the crucial decisions about pricing and logistics in respect of the drug conspiracies were largely made by Arif and Elmir and Zane, this offender was consulted and was included in some of the communications.
I am not persuaded that his role is properly characterised as the principal in each conspiracy. As indicated above I am satisfied that the Zane was the principal in the Sydney-based syndicate and that Arif and Elmir were the principals in the overseas-based syndicates.
However, the offender's criminality is of a high order in that he exercised autonomy and a degree of decision-making power. His involvement extended beyond making introductions. His ongoing presence and participation was regarded as guaranteeing the smooth running of the enterprises. He was involved in and consulted about the importation of border controlled drugs. He was personally invested in the importations and/or stood to make significant profits from them. In that respect he was important, and indeed, essential to the instigation of each conspiracy (by making the introductions) and to the smooth running of each operation once it had commenced.
But to be clear, he was not a "lynchpin" in the same sense as Zane (in the Sydney-based syndicate) and Arif and Elmir (in the overseas-based syndicate). Without Zane, the opportunity to import border controlled drugs would simply not have arisen having regard to the fact that he provided (or purported to provide) the essential means by which the border controlled drugs could be imported into Australia. Without Arif and Elmir there could have been no importation because there would have been no product.
For completion, I add that the uncharged conduct relied upon by the Crown (outlined in Annexure A) provides context as to the way in which the enterprise developed and to counter any suggestion that the offender's conduct was an aberration or constituted an isolated incident. I do not take into account the uncharged conduct in increasing the objective seriousness of the offences to which the offender has pleaded guilty. The offender makes no submission that his offending was an isolated incident.
[18]
The nature and scope of the tobacco transactions and the offender's role in those offences
The scheme of money laundering offences set out in Chapter 10 of the Criminal Code makes clear that the two primary factors in determining the seriousness of an offence are the amount of money involved and the state of mind of the offender. There is no issue that the offences relating to the smuggled tobacco were on foot at all relevant times over the course of 8 months from November 2016 until the offender's arrest in August 2017. By the time of his arrest, his share of the proceeds of the tobacco sales was $6,750,000 (minus costs).
Three tobacco transactions comprise a rolled up charge (sequence 19) , spanning a period of about 4 months in which the offender engaged in 3 transactions totalling $2,863,870 for the purchase of tobacco purportedly smuggled into Australia.
His involvement included attending meetings where logistics, distribution and payment were discussed. He provided $50,000 deposit for the transaction. He had an oversight role in relation to the delivery by Watsford and Fares Derbas of the first handover of $550,050 and the second handover of $600,000 in cash to Zane in exchange for the smuggled tobacco.
In relation to the second transaction, the offender negotiated with Zane regarding the price of the tobacco; he arranged a new Blackberry handle for Zane to facilitate ongoing covert communication; he financed the transaction and had an oversight role in respect of the delivery by Fares Derbas of $620,000 cash to Zane.
Following the failed transaction on 7 March 2017, the offender stepped up his hands-on involvement as evidenced by the fact that by the third tobacco transaction he took more control of the logistics of the enterprise.
I am satisfied that the offender's role in the tobacco transactions was more significant than that of Watsford. Although each stood to make significant financial gain, the offender demonstrated more control. On occasion, he directed Watsford and Fares Derbas to physically deal with the money on his behalf and he took personal control of transaction three when he perceived that Watford was unreliable having regard to the failed tobacco transaction.
In respect of tobacco transaction 4, the offender dealt in $1.8 million to import 900,000 packets of smuggled tobacco from Dubai. Zane again provided the means of the importation. The offender borrowed money to assist in financing the importation and directed a number of associates to assist in the financing of the enterprise.
I am satisfied that this offender played a senior role in tobacco transaction 4 and exercised a degree of authority over others in the enterprise. That he wielded authority is demonstrated by the events on 21 and 26 May when he "punished" Watsford and Chester for allegedly skimming $35,000 and $30,000 respectively.
In relation to the future tobacco transaction, the offender engaged in discussions with Zane for the importation of a substantial quantity of smuggled tobacco which would be funded by the offender using the proceeds of the tobacco for transaction. He arranged with Fares Derbas to have $2.25 million in cash available and either physically engaged in or oversaw the transfer of the cash into Zane's car.
In respect of each of the tobacco transactions, I am satisfied that the offender played a senior role. He was personally invested and obtained a substantial financial benefit. I am also satisfied that he played a more senior role than others involved in the transactions including Watsford and Fares Derbas.
[19]
Role of undercover operative and reduction in culpability
Mr Walker SC submits that it is legitimate to discount the sentence by reason of the circumstances in which an offender was led to commit the offence, including dealings with an undercover police officer acting as an agent provocateur. In this case, the submission is made that it is clearly open to conclude that the offender would not have engaged in the importation offences without Zane and that his culpability is otherwise reduced.
The Crown submits that "the fact that the offender committed the offences in circumstances involving dealings with an undercover police officer is relevant on sentence. However, the question is not whether the offender can show that but for the involvement, encouragement or incitement by police, he would not have committed the crime; but rather, whether in all circumstances of the case, the involvement of the police was such as to diminish his culpability": [CWS 95]. In support of that contention the Crown refers to the case of R v Taouk (1992) 65 A Crim 387 at 404.
The submission does not accurately reflect the statement of principle enunciated in that case by Badgery-Parker J (with whom Clarke JA and Abadee J agreed):
It is abundantly clear that, were it in this State a defence to a criminal charge to show that police officers entrapped the accused by inducing him to commit a crime which he would not otherwise have committed, the appellant would have failed to establish that defence. However, when it comes to sentence, the question is not whether the accused can show that but for the involvement, encouragement or incitement by police he would not have committed the crime, but rather, whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have done so, and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as diminished his culpability.
The Crown submits that, in the circumstances, involvement of the police was not such as to diminish the offender's culpability because he was plainly prepared to import large quantities of illicit substances by any means possible and to purchase smuggled tobacco from whomever he could. The Crown further submits "it is feasible that, without assistance, the offender would have made progress in carrying out the illicit drug enterprise as he embarked upon given his connections through Dib and Elmir": [CWS 97].
I do not accept the submission that, without assistance, the offender would have made progress in carrying out the illicit drug enterprise. There is no evidence that the offender was engaged in, or had contemplated dealing in, smuggled tobacco or importing border controlled drugs prior to Zane presenting the opportunity to do so through the door service. This is not a case, for instance, where the offender was engaging in drug-related activity with an intention to import border controlled substances into Australia before the involvement of the undercover operative.
However, once the opportunity was presented, the offender immediately embraced it. I accept that his involvement in the tobacco transactions was more consistently enthusiastic then his involvement in the drug importations. He did, on occasion, express a disinterest in the drug importations. But overall he was a willing participant who continued his involvement in the conspiracies being motivated by the desire to make the potential financial gain.
The statement of principle enunciated in Taouk remains good law. Whether, and to what extent the involvement encouragement or incitement by police operates to reduce an offender's culpability must be judged on the basis of the facts in each case.
In the sentence proceedings of the co-offender Mostafa Dib, Mr Buchen SC relied upon what was described as the critical and instrumental role of Zane to submit that there was never any prospect or risk the drugs would be imported into Australia and that his involvement "tends to impact on the seriousness of the offence". The role Zane played in initiating and driving the enterprise was said to be a relevant factor in assessing the culpability of Mr Dib, although it was conceded, in that case, that it was not a factor that "should have pronounced significance in the sentencing exercise".
A great deal more emphasis has been placed on the role played by Zane and the relevance of the undercover operative to an assessment of this offender's culpability. As a result, it is necessary to provide more detailed reasons in relation to whether and to what extent the police participation is relevant to that assessment.
Since the decision in Taouk, a number of cases have dealt with the issue of whether an offender's culpability is diminished by reason of the involvement encouragement or incitement by police to commit the crime. I do not intend to set out a detailed or comprehensive summary of those authorities. There is no question about the accuracy of the stated principle; the question is whether it applies at all, and if so, to what extent, in the particular case: Cam Huynh Giang v R [2017] NSWCCA 25; Mihelic v R [2019] NSWCCA 2; Parris v R [2013] NSWCCA 5.
The Victorian Court of Appeal has provided valuable guidance in relation to the factors that may be relevant in assessing the impact of police involvement on the culpability of an offender: Haval Kada v The Queen; Hadil Kada v The Queen [2017] VSCA 339.
The first matter worth noting is that, unlike many cases involving covert police operations, here, the undercover operative was pivotal or instrumental in the offending conduct from the very outset. There is no evidence that this offender was engaged in, or contemplated, dealing in smuggled tobacco or agreeing to import large quantities of border controlled drugs prior to Zane's involvement.
Zane presented the opportunity for this offending conduct to take place by introducing the notion of a door service that guaranteed the importation of illicit substances into the country without detection. This is not a case where the agreement to import large quantities of border controlled drugs was accommodated within the offender's existing drug-related operation or supply lines. There is simply no evidence that the offender was involved in the smuggling of tobacco or drug-related activity of any kind prior to being introduced to Zane.
Zane dealt directly with the offender. Indeed, it is open to conclude that the two men developed a friendship and trusting relationship (genuinely held on the part of the offender).
On the other hand, once the opportunity was presented by Zane, the offender wholeheartedly embraced the tobacco transactions. He also embraced and was a willing (as opposed to reluctant) participant in the drug conspiracies. He engaged in the offending for substantial profit.
Zane presented the opportunity to conduct these potentially lucrative criminal enterprises. Was there a real possibility that but for the assistance, encouragement or enticement by police he would not have committed the crime? Would the offender have engaged in the offending conduct without the opportunity presented by Zane? The answer to that question must be no because it was the guarantee of the door service that precipitated reaching out to the overseas syndicates who could source the border controlled drugs.
In the circumstances of this case, having regard to the particular interplay between the involvement of Zane, the extent of the undercover operation and the offender's conflicted position about the drug importations, I am persuaded that the offender's culpability is diminished. I make this finding because there is no evidence to suggest that the offender was contemplating or engaging in drug-related activity prior to Zane presenting that opportunity by guaranteeing a method of importation that would not attract law enforcement attention. It is partly for this reason that I am not persuaded that the offending conduct falls into the highest order.
However, the extent of that diminution is not substantial because, although there was a degree of encouragement and perhaps enticement on Zane's part, no coercion or pressure was applied. The offender was not a reluctant or unwilling participant.
[20]
Section 16BA Schedule
In sentencing the offender for sequence 12, I take into account two further offences, and in imposing a sentence for sequence 18, I take into account a further offence, as contained on the s 16BA Schedule. These offences do not operate to increase the objective seriousness of the substantive offences. They are however relevant to assessing the weight to be afforded specific deterrence and retribution. Each offence on the Schedule is itself an objectively serious offence in which the offender played a crucial role.
General and specific deterrence and denunciation are important sentencing considerations in this case having regard to nature of the criminality and the duration over which the offender engaged in it. During a period of some months, the offender participated in not one but two conspiracies to import substantial quantities of border controlled drugs into the country. Condign punishment will be meted out to those who engage in such activity, not only to deter the individual offender, but also to deter other like-minded individuals.
The money laundering offences also constitute serious criminal activity. Money laundering is difficult to detect, investigate and prosecute. It is for this reason the general deterrence is a significant factor when sentencing for such offences.
This is not the first time that the offender comes before the Court having committed a criminal offence. Apart from driving offences, he has been convicted for possessing an unauthorised firearm in 1997; assault occasioning actual bodily harm in 2000; the possession and supply of prohibited drugs in 2005; and hindering an investigation in 2006. In addition, he was sentenced to imprisonment for 9 years 4 months with a non-parole period of 6 years and 6 months having pleaded to a charge of manslaughter in 2008.
His record does not contain convictions for drug-related offences of the magnitude for which I must sentence him, but he is not entitled to the leniency that would be extended a first-time offender or a person with a relatively minor record.
[21]
Subjective Circumstances
The report of Sam Borenstein, Clinical Psychologist, includes a summary of the offender's background. He is the youngest of six children, having three older brothers and two older sisters.
The offender's father died in 2014, aged 71, of a heart attack. His childhood was a difficult one. His mother migrated to Australia from Lebanon with five children. The family suffered dislocation and poverty during the offender's childhood. It appears that the offender's father was absent for significant periods during his childhood, travelling to and from Lebanon. The offender's father was a chronic gambler and essentially left the burden of parenting his children to his wife.
The offender attended school until the end of Year 8. He struggled with literacy and was placed in special classes. He also experienced bullying at school. He has worked as a builder's labourer but his employment history is poor having regard, at least in part, to the fact that he has spent a significant portion of his adult life in custody. Since 2002, he has spent approximately 14 years of his life in prison. I am satisfied that if not already institutionalised he will certainly be so by the time he is released. This is a relevant consideration in determining the time that justice requires the offender spend in custody serving the non-parole period.
The offender's mother confirms that the family came to Australia in 1972 from Lebanon to flee the Civil War, as refugees. She came to Australia with five children. Her sixth child, the offender, was born in Australia. The offender's mother confirms the history of bullying that the offender experienced at school. He was also subjected to beatings by his older brothers. In his teenage years he gravitated towards and associated with a negative peer group.
When the offender was released from custody on the last occasion he was having great difficulties gaining employment. Not long after his release his wife suffered a miscarriage which was devastating for both of them. Thereafter he increased his use of MDMA cannabis and alcohol. Having set out at some length the offender's involvement in the offences, I reject the suggestion in the psychological report that the offender was subjected to a degree of manipulation which included emotional coercion on the part of the Zane.
Mr Borenstein opines that the offender's intelligence is no better than low average and likely falls in the borderline range. His response to vocabulary items are said to be simplistic and naïve. I accept that the offender's intelligence is no better than low average which appears to be consistent with his learning difficulties and semi literacy at school. I am not however of the view that his low intelligence reduces his moral culpability having regard to the nature and extent of his involvement in the offences.
The offender's wife remains supportive of him. In her letter to the Court, Ms Hall, describes the anguish and concern experienced following the shooting of the offender outside his home in 2015. He was hospitalised for a period of time and became more paranoid. He experienced complications as a result of the gunshot wound although there is no evidence to suggest that he has an ongoing medical condition as a result.
[22]
Hardship in custody
The offender has been held in segregation for discrete periods, the last being between 6 and 20 November 2019. I accept that those periods in segregation would have had a detrimental effect upon his mental health. However, as I understand the evidence he has been released from segregation and is housed in the main prison population. Although the offender has experienced onerous conditions during discrete portions of his time in custody, I cannot find that his future custody will be similarly onerous because the evidence does not establish that he will be placed in segregation in the future.
The offender's mother is 72 years old and suffers from a number of medical conditions including breast cancer (in remission). In light of the sentence that I must impose upon him, there is a real chance that his mother will never see her son as a free man. In addition, due to Mrs Ibrahim's failing health she is no longer able to visit her son in custody. I am prepared to find that the inability to see his mother will weigh heavily on the offender during his time in custody.
The decision to impose a lengthy term of imprisonment that will see the offender disconnected from his mother is not taken lightly. But it is incumbent upon the Court to impose a proportionate sentence having regard to the objective gravity of the offences, the relevant sentencing principles and the offender's subjective case.
[23]
Remorse
Exhibit 1 is a document entitled "Letter of Apology", however it does not contain an apology or any expression of remorse. The offender's pleas of guilty reflect some remorse on his part although this was a strong Crown case against him. There is little other evidence to demonstrate remorse or contrition.
[24]
Future prosects
Having regard to the offender's criminal record and the nature and extent of the offending involved in these offences, I am guarded about his future prospects of rehabilitation. In light of the lengthy term of imprisonment to be imposed, it is however difficult to predict with any precision the offender's future prospects and the likelihood of his reoffending.
[25]
Penalty
The proper approach to sentencing involves the weighing of all relevant factors in order to reach a conclusion that a particular penalty should be imposed. The Court should avoid taking a mathematical approach as this would depart from the principle because it does not take into account that there are many conflicting and contradictory elements which bear upon sentencing an offender: Markarian v The Queen (2005) 228 CLR 357.
Clearly, having regard to the nature and scope of the offences, the only appropriate penalty is one of full-time imprisonment of some length: s 17A Crimes Act 1914 (Cth). I am mindful that in setting the non-parole period there is no starting point or judicially determined norm as a percentage of the head sentence for the period of imprisonment that a federal offender should serve in custody before release to parole. It is wrong to begin from some assumed starting point and then seek to identify special circumstances. Sections 16A(1) and 16A(2) make it plain that all of the circumstances must be taken into account in setting the non-parole period just as they must be taken into account in imposing a sentence of imprisonment.
[26]
Accumulation and totality
I will proceed by way of an aggregate sentence. In doing so I must consider questions of accumulation or concurrence as well as the principle of totality. In this case each of the drug conspiracies and money laundering offences involved separate and distinct episodes of criminal activity. I am satisfied that some accumulation between the sentences for each offence is required to reflect the separate criminality involved.
In determining the extent of the accumulation I have had regard to the fact that the offender's criminality is properly understood to be an interrelated series of transactions involving Zane and the door service that he provided. I have also had regard to the overall criminality in all of the offences and have applied the principle of totality in determining what, if any, downward adjustment is necessary.
[27]
Parity
The principle of equal justice requires, as far as the law permits, that like be treated alike and that differential treatment be meted out to reflect differences between those who are relevantly different. The parity principle requires that where two or more offenders are involved in the same criminal conduct or enterprise there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the case including differences between the charged offences, the role of each offender, and the subjective cases.
I bear in mind that I must first determine the appropriate sentence having regard to the objective criminality and other relevant factors in this case, and then consider whether the sentence needs further adjustment because of the parity principle. I do not use the co-offenders' sentences as a starting point and then increase or decrease the sentence by reference to other factors.
[28]
Ryan Watsford
Ryan Watsford was sentenced to an aggregate term of imprisonment in respect of a number of offences, some of them common to the offences in this case. For his involvement in the syndicate one offence the starting point of the sentence was one of 16 years imprisonment. I found that his offending was just below the middle of the range of objective seriousness and that he was acting under the direction of this offender. I also found that this offender performed a more substantial and senior role in the offending conduct.
For the reasons set out above, I am not persuaded that this offender's role is comparable to that of Watsford. The extent of his involvement from the outset was more extensive. It included introducing Zane to those who could source the border controlled drugs; exercising a degree of responsibility and autonomy; being invested in the enterprise; and standing to gain what can only be described as a substantial cut of the drugs. I am satisfied that this offender's role is higher than that of Watsford.
Furthermore, in respect of the "tobacco 4 transaction" (sequence 12 in this case and sequence 7 in Mr Watsford's case), the starting point of the indicative sentence here must be greater not only because I am satisfied that this offender played a more senior role, but because the money involved in the offence here is $1.8 million as opposed to $440,000 in Mr Watsford's case. In addition, here I must take into account two offences on the s 16BA Schedule.
A further point of distinction favouring Mr Watsford overall was his positive subjective case. He came before the Court with no prior criminal history … [redacted] … a level of remorse of a high order.
[29]
Mostafa Dib
Mostafa Dib was sentenced in respect of one offence relating to the syndicate one transaction. Following an application of 30% reduction in sentence, I imposed a term of imprisonment of 18 years and 2 months with a non-parole period of 12 years imprisonment. The offender and Dib were personally invested in the syndicate one importation and stood to make significant profits from it. Both performed crucial physical acts in furtherance of the conspiracy and both were trusted to make decisions in respect of it.
This offender undertook less "hands-on" tasks than Dib. However, I find that he played a slightly more serious role than Dib because his involvement operated to make the various pieces fit together and assured that the drug enterprises ran smoothly by reducing the risk that they would be "ripped off". He guaranteed trust between the two sides. That his position was slightly higher than that of Dib is also evidenced by the fact that he suggested to Zane an alternative source for the drugs (namely Elmir) when tensions arose in respect of the syndicate one transaction.
[30]
Ahmad and Fakhreddine
I have not yet sentenced the co-offenders, Ahmad and Fakhreddine. For completion I am satisfied that the roles of these co-offenders were less than that played by this offender. On the facts before me in these proceedings, Ahmad and Fakhreddine did not exercise autonomy or decision-making responsibility. They essentially acted as a buffer or "wall" to shield the more senior participants.
While the principle of parity remains relevant and has been taken into account in determining the appropriate penalty in respect of the relevant offences, this offender has also pleaded guilty to a second conspiracy, involving the Elmir syndicate. The overall criminality of this offender is greater than that of his co-offenders. The aggregate sentence that I impose upon him must reflect that additional criminality and will therefore be greater than that imposed on his co-offenders.
[31]
Comparative sentences
I have been provided with and considered a "Schedule of Other Relevant Cases" (Annexure A). In doing so I have been mindful of the approach to the use of comparative cases set out by the High Court in R v Pham (2015) 256 CLR 550. I am also mindful when considering sentences imposed in previous cases, either by reference to charts or schedules, of the limitations of that exercise as indicated by the High Court in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520. It is necessary to consider sentencing practices across Australia and decisions of intermediate appellate courts to ensure national sentencing consistency in the application of relevant sentencing principles. If such analysis yields discernible sentencing practices and possibly a range of sentences then those comparable sentences may be used as a yardstick that might serve to illustrate, but not define, the possible range of available sentences.
[32]
Determination
The offender is convicted in respect of each offence.
Taking into account a 25% reduction in sentence to reflect the utilitarian value of the pleas of guilty, I set out the following indicative sentences:
1. Conspiracy to import commercial quantity of border controlled drug (Sequence 1 - "Syndicate One Transaction"): 21 years imprisonment.
2. Conspiracy to import commercial quantity of border controlled drug (Sequence 18 - "Syndicate Two Transaction"), taking into account s 16BA Schedule offence (Sequence 20 - trafficking MDMA): 22 years 6 months imprisonment.
3. Deal in instrument of crime (Sequence 19 - "Tobacco Transactions 1, 2 and 3"): 7 years 6 months imprisonment.
4. Deal in proceeds of crime (Sequence 12 - "Tobacco Transaction 4"), taking into account s 16BA Schedule offences (Sequences 13 and 14): 8 years 6 months imprisonment.
5. Deal in instrument of crime (Sequence 15 - "Future Tobacco Transaction"): 6 years imprisonment.
Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) I impose an aggregate sentence of 30 years imprisonment commencing on 8 August 2017 and expiring on 7 August 2047. I fix a non-parole period of 18 years imprisonment commencing on 8 August 2017 and expiring on 7 August 2035.
The offender will be 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.
[33]
Amendments
24 June 2020 - Amended to correct typographical error in file number.
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: 24 June 2020