R v Jehad Jodeh

Facts

1. The circumstances giving rise to the offences are set out in the Statement of Facts. It is not necessary to reproduce the entirety of that document in the body of this judgment. I will simply summarise the facts and set out the particular acts undertaken by the offender in furtherance of the conspiracy.
2. To be clear, I have had regard to entire contents of the Statement of Facts in determining the issues in dispute, assessing the objective seriousness of the offence and the offender's role in it and determining the appropriate penalty.
3. In March 2016, the Australian Federal Police commenced Operation Veyda, an investigation into the criminal activities of Ryan Watsford, Moustafa Ibrahim and their associates. During the investigation, 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 MDMA; smuggling tobacco products; and plans to import commercial quantities of border controlled drugs and precursors into Australia. The syndicates were subject to physical and electronic surveillance which involved lawful interception of telecommunications services used by the syndicate; lawful use of listening, optical, tracking and data surveillance devices; deployment of surveillance operatives and the deployment of an undercover officer, 'Zane', who came to be trusted by Watsford and Ibrahim.
4. Zane gradually built a relationship with Watsford and Ibrahim through the successful sale and distribution of smuggled cigarettes purchased from Zane. In late 2016, Zane informed these two men 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.
5. In November 2016, Moustafa Ibrahim contacted this offender and asked him and Dib to attend a meeting with Zane and Watsford, which they did. At the meeting, Dib, Ibrahim and Zane left the company of the offender and Watsford to have a private discussion about possible drug importations. The offender and Watsford were excluded from that private discussion.
6. It should be noted that on 22 November 2016, Ibrahim and Watsford had a successful dealing with Zane in relation to the purchase of 100,000 packets of smuggled cigarettes for $620,000. These separate dealings between these three men in respect of the purchase of smuggled cigarettes continued into March 2017, where, on 9 March 2017, the purchase of 190,000 packets of smuggled cigarettes for over $1 million was successfully affected. This offender had no part to play in that criminal activity.
7. Following the private discussion, Dib, Ibrahim and Zane returned to the company of the offender and Watsford where there was a brief discussion concerning smuggled tobacco. After that meeting, the five men participated in communications in which references were made to various illicit substances being available in various locations around the world. The focus of the communications then turned to making arrangements in relation to the importation of pseudoephedrine from Lebanon which included Dib stating that he was able to get 2,500 kg of pseudoephedrine from Lebanon.
8. In the initial stages of the conspiracy, before Dib was comfortable having direct communications with Zane, Dib used the offender as a conduit for communications between Dib and Watsford, who was in turn communicating with Zane. I pause to note, that although this was done to maintain some distance between Dib and the criminal enterprise, Dib had already met with Zane and discussed arrangements in relation to the importation of a substantial quantity of pseudoephedrine from Lebanon. In those circumstances, any attempt to protect Dib's identity or place some distance between him and the criminal enterprise before January 2017 was unsophisticated.
9. On 29 November 2016, Dib sent the offender a Blackberry message which the offender forwarded to Watsford who then forwarded it to Zane. It said: "If u get throught to him I can get sudo from lebanon 2500kg I can get talag fro china also from cyprus and greece i can get anything from there also rake [cocaine] from south america and philipens get rake and these blokes want to put as much as they can I mean tones and they will also pack it the guy has done my head in he wants a answer"
10. At this point there was no direct communication between Dib and Zane because they were not in possession of each other's Blackberry contact details. On the same day, Watsford sent a further Blackberry message asking Zane how he wanted the substance packed. Zane's response was forwarded to the offender. Zane sent Watsford a further reply advising that they had to tell him the source country so he could pick the right shipping company and to identify the commodity so that he could determine how it would be packed in light of the fact that liquid would be packed differently than powder.
11. That message was forwarded to the offender who replied on Dib's behalf: "Sudu [pseudoephedrine] from lebannon".
12. Further communications were exchanged between Zane and Watsford about what form the pseudoephedrine would take and the exact amounts so that Zane could organise the cover load.
13. At about 5:53PM on 2 January 2017, Watsford sent the offender a Blackberry message asking about what Dib had exactly said in respect of the importation so that he could send that information back to Zane as soon as possible. The offender forwarded this message to Dib who replied five minutes later stating: "2100kg sudo it comes in powder and tell us how he wants it back [packed]".
14. The offender forwarded Dib's response to Watsford as sent to him, including the apparent error in relation to the word "packed". Once again, the offender acted as a conduit forwarding Blackberry messages which related to the initial planning stages of the conspiracy.
15. On 4 January 2017, Watsford picked Ibrahim up from his house in Vaucluse. They drove to the Sheraton Hotel where Ibrahim met with Dib for about 40 minutes while Watsford remained in a car nearby. Ibrahim and Dib then spoke to Watsford for a short time before Dib departed. This offender was not present.
16. On 5 January 2017, Watsford met with Zane where they discussed commodities and weights for the importation of pseudoephedrine from Lebanon. Zane related the particular questions that he wanted to ask Ibrahim, Dib and the offender regarding importation specifics such as cover load, origin port, packing, methodology and deposits to be paid to Zane for the importation.
17. There is no evidence that this offender was aware of any of the specifics or that he had any decision-making role to play in relation to these details. Further, there is no suggestion that he deposited or was to make any deposit to Zane in respect of this importation.
18. During the course of their meeting, Watsford told Zane that the others were avoiding meeting Zane to avoid law enforcement scrutiny being placed on their relationship. Zane suggested that if Dib was comfortable giving Zane his Blackberry handle they could communicate directly. In response to this suggestion, Watsford said that he did not even deal with Dib himself. The conversation suggests that there was still some reluctance to provide Dib's contact details at that point.
19. Watsford sent Blackberry messages throughout the conversation to the offender relaying Zane's questions regarding the importation. When asked by Zane as to who he was messaging, Watsford responded: "you met him with the beard. That's Ferry's right-hand man, G. G. Top bloke … he did 10 years gaol with Michael [a reference to Moustafa Ibrahim] … Very trustworthy people. The 4 of us are very trustworthy."
20. At about 8:30PM on 5 January 2017, Ibrahim, Watsford and Zane met. During that meeting, Ibrahim explained that Dib and the offender did not want to deal with him directly because they did not know him. Discussions then took place between Zane and Watsford about the proposed amount of pseudoephedrine.
21. On 6 January, Zane sent Watsford details of the company to be used as the consignee and the cover load for the pseudoephedrine importation. Watsford forwarded that message to the offender who replied on behalf of Dib: "Hey do we have to find a broker there or does he no [know] a broker".
22. Clearly, while there had been discussion of the quantity and form of the pseudoephedrine and Zane had provided what were purportedly legitimate details in respect of the consignee and cover load, Dib was still uncertain as to who would find a broker.
23. It was later that day that the offender provided Watsford with Dib's Blackberry handle to give to Zane so that they could contact each other directly. He told Watsford not to refer to Dib by name but rather as "the other guy". After 6 January, there were no further intercepted messages from the offender about the importation. I am satisfied that there is no evidence that the offender was aware of messages between the other co-conspirators after 6 January.
24. One of the issues I must determine is the duration of the offender's involvement in the conspiracy. It is submitted on his behalf that I would find that his involvement ceased on 6 January 2017. The Crown relies upon one further act which took place on 1 March 2017. That act is relied upon as an act committed in furtherance of the conspiracy.
25. The act relied upon is a phone call made by the offender on the evening of 1 March 2017 to Razija Adilovic, asking her whether she was prepared to accompany his mate [Dib] on an all-expenses paid trip to Lebanon, staying in separate rooms.
26. The offender also spoke to Mariam Karout, effectively to get her approval for Ms Adilovic to go on the trip. Following the conversation with Ms Karout, nothing came of this arrangement and the offender made no further requests or enquiries regarding the possibility of travel by Ms Adilovic or anyone else.
27. The Crown relies upon this material in support of the contention that it was an act committed by the offender in furtherance of the conspiracy, effectively an attempt by him to provide a female cover for Dib when he travelled to Lebanon in connection with the importation of pseudoephedrine.
28. Mr Dhanji SC, on behalf of the offender, submits that I could not be satisfied beyond reasonable doubt that this was an act in furtherance of the conspiracy.
29. In determining this issue, I have had regard to the fact that, between 6 January and 1 March 2017, there is no evidence to suggest that this offender committed any act in furtherance of the conspiracy.
30. Furthermore, there is no evidence to establish that the offender knew, on 1 March 2017, the purpose of Dib's trip to Lebanon. While I might be suspicious about the offender's approach to Ms Adilovic, I am not satisfied beyond reasonable doubt that his proposal to her was so as to provide a cover to Dib in connection with this particular conspiracy and am not therefore satisfied that it was an act in furtherance of the conspiracy.
31. I am satisfied therefore that the duration of the offender's involvement in the conspiracy was between late November 2016 and 6 January 2017, a relatively short period.
32. A further fact in issue in the proceedings is whether the offender's involvement ceased voluntarily or because he was no longer needed. I will return to this issue in due course.
33. On 10 January, there were communications about the packaging of the pseudoephedrine. There is no evidence that the offender was aware of any of these discussions, details, plans or arrangements.
34. On 10 February, Dib sent a message to Zane advising that the importation was on hold because of the war in Syria. There is no evidence that the offender was aware of this communication. Nor is there any evidence that the offender was aware of communications between the co-conspirators in the period between 16 February and 24 February 2017 as set out in paragraph [47] of the Statement of Facts.
35. Between 2 and 14 March 2017, discussions between Ibrahim, Dib, Watsford and Zane turned to progressing a proposed importation of a substantial quantity of MDMA from the Netherlands. It is not alleged that this offender was a participant in that conspiracy.
36. In order to progress the importation from the Netherlands, Zane required the co-conspirators to pay $25,000 each to cover the costs of the freight forwarder, cover load and other expenses.
37. On 14 March 2017, this offender delivered Dib's $25,000 to Ibrahim and Watsford, who then handed over to Zane. This conduct constitutes the criminality involved in the offence set out in the s 16BA schedule.
38. On 6 April 2017, Dib told Zane that he would progress the pseudoephedrine importation from Lebanon after securing funds from the successful importation of the drugs from the Netherlands. It would appear that at that stage he did not have the funds to progress the importation of pseudoephedrine. Dib said that there was 600kg of pseudoephedrine waiting in Lebanon but he had run out of money. There is no evidence that this offender was informed of this communication.
39. No pseudoephedrine was imported as a result of the conspiracy. On 26 May 2017, approximately 800 kg of MDMA was seized by police after Zane had collected it from the Netherlands by agreement with Dib, Ibrahim and Watsford.
40. There is no evidence that this offender was involved in the sourcing or financing of the pseudoephedrine to be imported. There is no evidence of the offender had a direct financial interest in the pseudoephedrine to be imported or any intended sale or distribution of the pseudoephedrine.
41. The conspirators communicated with each other using encrypted text-based mobile telecommunication devices, namely Blackberry devices. Many of the conspirators used a Blackberry device before the commencement of the conspiracy.
42. This offender was arrested on 8 August 2017.

Disputed issues and the role played by the offender

1. In sentencing the offender I am required to have regard to the matters set out in Part 1B of the Crimes Act 1914 (Cth), and more specifically to the matters set out in s 16A. The governing principle under s 16A(1) is the imposition of a sentence which is of a severity appropriate in all the circumstances of the offence. In doing so I have taken into account, amongst other things, the matters listed in s 16A(2) as far as they are relevant.
2. Before I set out my findings in respect of the objective seriousness of the offence and the offender's role in it, I must resolve a number of factual issues that arose during the course of submissions.
3. The first issue is as to the period in which this offender was involved in the conspiracy. For the reasons set out above, I am satisfied that he was involved in the conspiracy between late November 2016 and 6 January 2017, a relatively short period of about six weeks.
4. The second issue is whether his involvement ceased voluntarily or came to an end because he was no longer needed. The Crown submits that I would infer that, by 6 January, Dib had become comfortable in conducting direct communications with Zane and it was for that reason that the offender provided Dib's Blackberry handle.
5. Mr Dhanji SC submits that I would find on a balance of probabilities that the offender ceased his involvement voluntarily having regard not only to the material contained in the Statement of Facts but also the evidence given by the offender's sister, Joanna Jodeh.
6. Ms Jodeh gave sworn evidence which included the following: the offender comes from a loving and supportive family. During the 9 years that he spent in custody for unrelated matters, family members continued to have close contact with him. The offender and his family were very excited and enthusiastic about his release in September 2016.
7. Following his release, he returned to reside with his parents. The witness observed that, upon coming home, the offender spoke of his plans which included marriage and completing a course that he had started in custody. He attended to his assignments and commenced working on a casual basis with his brother-in-law.
8. Sometime following his release, the family became concerned about the offender spending time with associates he had met in custody. Some of these associates were his co-conspirators. As a result, the family conducted an intervention. In the first week of 2017, the offender's father told him that he must stop mixing with these associates. Essentially, the family rallied and intervened to talk some sense into the offender. Miss Jodeh gave evidence that, having regard to the nature of the family dynamics, their father was highly respected and, from her perspective, what he said had some import.
9. Following this intervention, she observed that the offender's behaviour appeared to change. Amongst other things, he spent more time at home. In cross-examination, she conceded that she could not exclude the possibility that he continued to have some contact with his previous associates, although she maintained that his behaviour did appear to change and he was spending more time at home.
10. It is clear from the objective evidence that the offender did not completely break ties with Dib and Ibrahim following 6 January 2017. The offence contained in the s 16BA schedule demonstrates that he continued to associate with these individuals and, on that occasion, associate in a criminal fashion by handing over Dib's cash being reckless as to the risk that the money would become an instrument of crime.
11. However, the objective evidence establishes that the offender ceased involvement in the conspiracy following the 6 January 2017, that is, a period that coincides with the family intervention.
12. Furthermore, there is little if any evidence to persuade me that between 5 January 2017, when Watsford was telling Zane that he did not deal directly with Dib himself, and 6 January, when the offender provided Dib's contact details, that Dib had become more comfortable in dealing directly with Zane.
13. But even if that were the case, it is not inconsistent with the offender voluntarily ceasing his involvement. It may well be that Dib, on 6 January, was willing to communicate directly with Zane and that the offender provided Dib's contact details following a direction from Dib.
14. What is important is that the objective evidence establishes that, following that day, this offender had no further involvement in the conspiracy. Although he continued to be trusted, as evidenced by the commission of the offence on the s 16BA schedule, having regard to the evidence given by his sister and the absence of further involvement by him in the conspiracy I am persuaded on the balance of probabilities that he ceased involvement voluntarily.
15. What then is the significance of this finding? His voluntary cessation is relevant to a number of matters including the weight to be given to specific deterrence, an assessment of the offender's remorse and prospects of rehabilitation. There is also a public policy to be served in providing encouragement to offenders to cease criminal activities: R v Pickett [2010] NSWCCA 273; R v Burns [2007] NSWCCA 228.
16. The third issue to determine relates to the offender's motivation. The Crown submits that I would find that the offender was involved in the conspiracy for financial gain. Although there is no specific evidence the offender was to receive a financial reward for his role in the offence, the Crown contends that the "common sense" inference is that the offender was involved for profit. In support of that contention the Crown relies upon the cases of R v Kaldor [2004] 150 A Crim R 271 (at [104]) and R v Lee [2007] NSWCCA 234 (at [32]).
17. Mr Dhanji SC submits that there is a distinct lack of evidence suggesting that the offender had a financial interest in the substance sought to be imported. Further, that this is clearly not a matter where a "common sense" inference can be drawn that the offender would receive a financial reward. The cases relied upon by the Crown are distinguished. In Lee, the offender in respect of the inference drawn had come to Australia from Hong Kong and spent 22 months here for the purpose of conducting multiple complex transactions and "test runs" involving containers being received to a warehouse resulting in the actual importation of 73kg of heroin.
18. In Kaldor, it was considered appropriate to infer that a "drug courier" who had agreed to, and assisted in, bringing a guitar case in to Australia with him from Vietnam containing half a kilogram of heroin, was doing so for financial reward. It is submitted on behalf of the offender that he cannot be described as either a "drug courier" or "drug importer". It is submitted that the limited role played by the offender does not dictate that any "common sense" inference be drawn as to anticipated financial reward.
19. While I accept that the offender played a limited role (for reasons I will come to) I am satisfied beyond reasonable doubt that he was motivated, at least to some degree, by financial reward. True it is that he had come to know Dib and Ibrahim through his own experience in custody during his formative years, and while I am prepared to accept that such an association may bring with it a sense of loyalty, the offender had entered into an agreement relating to the importation of a substantial quantity of pseudoephedrine. Over a period of some weeks he was privy to information about the quantity proposed. He acted as a conduit, passing information through Blackberry messages from one co-conspirator to the other in furtherance of the conspiracy.
20. I am satisfied that a "common sense" inference can be drawn to the requisite standard that the offender was motivated, at least in part, by financial reward. I take this into account as a factor adverse to him. That said, the evidence does not establish the extent of the financial benefit he anticipated he would receive and, having regard to his limited role in the conspiracy, whatever financial benefit he stood to gain would have been modest in my view.
21. I accept that the offender was a willing participant in the conspiracy, playing a facilitative role by passing messages about the proposed importation to and from Watsford to be passed on to Zane. I also accept that he was a trusted participant by the initiators of the conspiracy.
22. While his role in that regard allowed Dib to initially remain at arms-length from Zane, Dib had met with Zane and the other co-conspirators in November 2016. Any attempt to keep Dib at arms-length was relatively unsophisticated and unlikely to have been successful in concealing his identity.
23. I am satisfied that the offender played a limited role for a limited duration. While a trusted participant, he was not included in aspects of the discussions relating to the importation. This is evidenced by his exclusion from discussions on 18 November 2016 when there was a meeting at 21 Restaurant. Dib, Zane and Ibrahim walked away from the offender and Watsford, into a laneway, to conduct private discussions.
24. Although Watsford described the offender as "Ferry's right-hand man", that he held such a position is not borne out by the evidence. There is no evidence that the offender was involved in the sourcing or financing of the pseudoephedrine to be imported or that he assisted in that regard. There is no evidence that he had a direct financial interest in the pseudoephedrine to be imported. There is no evidence that he was to have any involvement in any intended sale and distribution of the pseudoephedrine. There is no evidence that he undertook any decision-making role or had any control about any aspect of the planning involved in the conspiracy.
25. In light of these circumstances, notwithstanding that he was motivated by some degree of financial reward, I am satisfied that his role was at the lower end of the scale. I am satisfied that not only was his culpability lower than that of his co-conspirators, but that it was significantly lower by comparison.

Objective gravity of the offence

1. However, an assessment of the objective gravity of the offence is not limited to findings in respect of the role played by the offender. While the offender's role and physical acts are relevant to the assessment of his criminality, they are not the starting point for such an assessment. I must also determine the nature and scope of the conspiracy.
2. The principles relevant to sentencing in conspiracy cases were summarised in the case of R v Elomar; R v Hasan; R v Cheikho; R v Chiekho; R v Jamal [2010] NSWSC 10. Whealy J said (at [15]): "While the assessment of the criminality of each of the offenders will not overlook, as a relevant matter, his particular act or acts in furtherance of the conspiracy, it is clear that the criminality of an offender in a conspiracy case goes well beyond the mere recognition of his or her actions and role in the enterprise. 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 on a basis, generally common to all the participants, the level of criminality exhibited by the conspiracy itself."
3. I turn then to analyse the nature and scope of the conspiracy. The agreement involved the importation of a very substantial quantity of pseudoephedrine. Although the quantity of pseudoephedrine proposed changed over the months - from 2500kg to 2100kg to 600kg - on any view of it, the quantity involved was very substantial.
4. In Wong v The Queen (2001) 207 CLR 584, the High Court cautioned against giving undue weight to the quantity of the substance involved in the importation. While the quantity of the border controlled precursor remains a relevant and important factor, it is not the primary or determinative factor in assessing objective seriousness.
5. The High Court observed that in general, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, and the greater the reward the offender hopes to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence in the sentences that are or were imposed: at [64].
6. The Crown submits that the criminal enterprise utilised sophisticated methods to engage in criminal activity on a very significant scale. I reject that submission. Although the conspiracy involved multiple co-conspirators and the use of encrypted devices to communicate without detection, I am not persuaded that the methodology utilised was sophisticated. The attempts made to avoid surveillance were not sophisticated having regard to the fact that there were a number of meetings in public between the co-conspirators.
7. The fact that each participant occupied a particular role is not unusual in matters of this type. It is inherent in an offence of this kind that particular individuals will take on specified roles.
8. Two further matters are relied upon by the Crown in support of the contention that the criminal enterprise utilised sophisticated methodology and was at an advanced stage of planning. The first is what is asserted to be ready access to very significant stockpiles of pseudoephedrine and "international connections that in fact did pack pseudoephedrine as required in 20kg bags and ensure they were ready to be placed in cardboard boxes".
9. Although Dib claimed to have ready access to significant quantities of pseudoephedrine, there is no objective evidence to support his assertions in that regard. In fact, he was clearly unable to advance the agreement to import 2500kg of pseudoephedrine. The proposed quantity was then reduced to 2100kg of pseudoephedrine and, some weeks later, reduced again to 600kg of pseudoephedrine
10. A second matter relied upon by the Crown in support of the contention that the criminal enterprise was at an advanced stage of planning is a communication on 10 January 2017 sent by Dib to Zane claiming that the pseudoephedrine was ready in 20kg bags and asking whether they should be put in cardboard boxes with or without plastic lining.
11. I have some difficulty accepting that Dib's claim was in fact truthful. Not only was the proposed quantity of pseudoephedrine reduced on more than one occasion but on 14 March 2017 Dib informed Zane that he was cutting out his contact in Lebanon and wanted nothing more to do with them.
12. This communication suggests some frustration on the part of Dib with his contacts in Lebanon in advancing the preparations for the importation. If the pseudoephedrine was in fact available and packed on 10 January, it is unlikely that Dib would be cutting ties with his contact in Lebanon by 14 March.
13. I am not persuaded that the conspiracy was at an advanced stage of planning. I find that the conspiracy was at an early stage of planning and far removed from the implementation stage. I make these findings for the following reasons: 1. I am not satisfied that Dib's asserted capacity to import substantial quantities of pseudoephedrine from Lebanon was realistic; 2. no broker had been arranged and, on 6 January 2017, Dib was still enquiring whether they had to find a broker or whether Zane knew of a broker; 3. whatever arrangements were in place between Dib and his contact in Lebanon appear to have well and truly fallen through by 10 January 2017. Thereafter, the agreement to import pseudoephedrine appears to have been placed on hold until the importation of MDMA was completed.
14. In assessing the moral culpability of the offender, I am asked to have regard to the involvement of Zane in the conspiracy. While it is accepted that the key conspirators were clearly very receptive to forming the relevant agreement, but for the involvement of Zane, the conspiracy would not have been brought into existence. Mr Dhanji SC submits that it only became a possibility as a result of Zane offering a "door" to facilitate the importation. Furthermore it is submitted that the conspiracy was not going to be successfully carried out and therefore there was no risk of harm occurring through the distribution of drugs in the community.
15. The offender was a willing participant in the conspiracy for a period of weeks. There is no suggestion that he was pressured or forced to participate. I have however taken into account the role of the undercover officer in the particular circumstances of this case because he played an important role in bringing the conspiracy into existence. He made it known to the conspirators that he had a "door", a service which would enable the importation.
16. Furthermore, it is evident that there was never any possibility that the pseudoephedrine would be used to manufacture illicit substances resulting in the dissemination of drugs into the community.
17. However, the weight to be given to this factor is moderated in light of the fact that it was through no positive act of the offender that the pseudoephedrine was not successfully imported and in view of the fact that I am satisfied that the conspirators enthusiastically embraced Zane's offer of a "door".
18. I am satisfied that the nature and scope of the conspiracy was limited, as was the role of the offender. I find that the offence falls below the middle of the range of objective seriousness but not at the lower end of the range having regard to the fact that the agreement involved the importation of a substantial quantity of border controlled precursor into Australia.
19. In determining the appropriate penalty, I take into account the offence contained in the s 16BA schedule. The scheduled offence represents additional criminality that should be reflected in the sentence imposed for the principal offence by way of additional weight to be given to retribution and specific deterrence.
20. General deterrence, denunciation and punishment are relevant and important considerations in determining the appropriate penalty. Notwithstanding my finding that the offence falls below the middle of the range of objective seriousness, this is a serious offence involving an agreement to import a substantial quantity of pseudoephedrine into Australia. Such criminal conduct must be met with condign punishment that sends a message to other potential importers of illicit substances that the courts are prepared to proceed by way of lengthy custodial penalties.
21. In all the circumstances, the only appropriate penalty is full-time imprisonment. In determining the seriousness of this offence I have also had regard to the maximum penalty.

Subjective Circumstances

1. The offender is 31 years old. His subjective case is before me by way of a psychological report and numerous references. His sister has given evidence in the proceedings and the offender has written a letter to the court setting out his remorse and his intentions to work and marry once released from custody.
2. The offender has spent much of his adult life in prison. From 2007 until September 2016, the offender was in custody serving a sentence for unrelated offences of robbery while armed with a dangerous weapon and one offence of maliciously inflicting grievous bodily harm. He was released on parole on 23 September 2016 and within a short time became involved in the agreement to import pseudoephedrine. He committed the present offences while on parole. The fact that he did so is a matter adverse to him and relevant to my assessment of the weight to be given to specific deterrence and his prospects of rehabilitation.
3. His record of previous offending includes these serious offences for which he received a lengthy period of imprisonment and it disentitles him from the leniency that would be afforded a first-time offender or a person with a relatively minor record.
4. The offender was born in Australia. His family moved around a great deal in his developmental years and as a result he attended four different primary schools.
5. Dr Ahmed Dennaoui, a Community Liaison Officer at Granville Boys High School, confirmed that he had known the offender during years 10-12 of high school and found him to be "understanding and humble", and "no trouble".
6. The offender's history of employment is very brief, which is attributable to his periods in custody. He was employed as a bricklayer for two months, and employed as a courier with VIP Transport for a period of two months. It is noted that he also completed a Statement of Attainment from TAFE in 2016.
7. The offender has no history of illicit substance abuse prior to a motor bike accident in 2006. He had decided to take a friend's motorcycle for a short ride. He sustained injuries to his right leg which required two surgical procedures, and an injury to his left knee.
8. Following the motor bike accident, the offender was prescribed Tramadol (a painkiller which is a partial opiate agonist). He stated that he was initially prescribed 200 mg but that he started to abuse the drug.
9. Following his use of Tramadol, the offender started to use cannabis, averaging two 'joints' per day for one to two months, and subsequently started to smoke 'cones' until his incarceration. Following the accident, he used cocaine two days per week, and started to consume alcohol, averaging 10 alcoholic drinks over the course of Friday-Sunday.
10. A psychological report by Ms Helena Paras dated 19 October 2007 states that the offender had amnesia from the accident and presented with very poor autobiographical memory. In November or December 2019, the offender disclosed to Ann Marie De Santa Brigida, Psychologist, that sometime after the motor bike accident he was also hit with a baseball bat "on the right side of the frontal lobes". He did not seek medical intervention.
11. In her report (dated 4 January 2020), Ms De Santa Brigida asserts that the offender's presentation during interview was "somewhat perplexing" in that he has no criminal record prior to age 18, and has few adolescent criminogenic factors that would be considered to predict adult course criminality.
12. Ms De Santa Brigida acknowledges a report prepared by Dr Bruce Westmore, Psychiatrist, in relation to civil proceedings related to the motor bike accident, and apparently relied upon in the earlier proceedings. Dr Westmore expressed a view that: [the offender's] criminal legal team should be alerted to the fact that I am of the opinion that the motorbike accident is likely to have had a significant impact on his mood state prior to the offending behaviour and the offending behaviour may have been influenced in a significant way because of his depression and his illicit drug abuse.
13. Psychologist, Chris Probets, concurred with these findings and stated: While the drugs enabled [the offender] to reduce his pain and gain some control over his moods, it also reduced his ability to make sound and rational judgements and decisions. I also agree that he does not have antisocial personality disorder and, in my opinion, this makes the possibility of re-offending much less likely.
14. This has not occurred, however, the offender having gone on to reoffend and finding himself once again before the Court for sentencing. Despite this, Ms De Santa Brigida defers the diagnosis of Anti-Social Personality Disorder, based on the fact that some conduct problems must be present before the age of 15 for this diagnosis to be applicable. This assertion is made along the guidelines specified in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).
15. Ms De Santa Brigida concurs with Dr Westmore and Mr Probets that the accident has had a significant effect on the offender's mood state and his illicit drug abuse.
16. An earlier psychological report by Ms Paras dated 28 June 2007 makes the diagnosis of Adjustment Disorder with depressed mood. The initial report also noted that he satisfied the diagnostic criteria for Post-Traumatic Stress Disorder and the results of the Impact of Events Scale supported this finding. However, the subsequent report dated 19 October 2007 notes the primary diagnosis as Adjustment Disorder with depressed mood.
17. Ms De Santa Brigida notes that, while the majority of Adjustment Disorders abate within six months after the cessation of the stressor, some do not abate, but instead continue and become a severe and persistent form of the disorder. There are indications that this may have occurred with this offender, and the results of psychometric testing indicate the presence of marked negative affect.
18. Her report also notes that when the motor bike accident occurred, the offender was still young and he possibly did not have the resilience to cope with the long-term consequences of the accident. It is noted that his previous adult criminal offences revolve around threats of violence or violence, and this may be linked to adjustment problems which never actually resolved and have gone on to become a persistent form of the disorder.
19. Ms De Santa Brigida opines that lengthy periods of incarceration have not resulted in the offender's desistence from crime, and what he actually requires is psychological or psychiatric intervention to overcome the persistent form of an Adjustment Disorder with disturbance of conduct.
20. The offender was administered a brief neuropsychological screening battery known as the Repeatable Battery for the Assessment of Neuropsychological Status Update (RBANS) (Form A). His scores were reasonably consistent, falling in the 'Low Average' range for 4 of the 5 domains (Immediate Memory, Visuospatial/Constructional Abilities, Language, and Delayed memory), with a total Index Score of 83 also falling in the 'Low Average' range.
21. The offender's responses on the Personality Assessment Screener (PAS) indicated significantly marked potential for problems within the Negative Affect domain. Ms De Santa Brigida opines that follow-up assessments are very likely to identify significant problems with depression, anxiety, personal distress, tension, worry and feeling demoralised. A follow-up evaluation has not been conducted.
22. The offender's responses also indicated marked potential for problems with Acting Out. He is 'very likely to be impulsive, and sensation-seeking' and follow-up evaluation in this area is also strongly recommended.
23. The offender scored on the high side of the moderate range for risk of recidivism. In reporting this result, however, Ms De Santa Brigida notes that she considers there to be 'a significant issue that compromises the validity of actuarial tools of risk assessment' concerning the unreliability of applying group-based risk evaluation to the assessment of risk on an individual basis: The actuarial approach emphasizes static factors, which do not change over time, and ignores crucial dynamic factors such as the effects of treatment and lack of victim access that may affect level of risk. In addition, it is difficult to formulate treatment and prevention management programs based solely on static factors. It must also be remembered that a group based instrument cannot specify if an individual will reoffend, as actuarial measures are designed to assess level of risk to groups and not to individuals.
24. Having regard to the limitations of the risk assessment, it is only one of a number of factors I have taken into account in assessing the offender's prospects of rehabilitation and likelihood of reoffending.
25. I have had regard to the letters of support tendered on behalf of the offender and the evidence given by his sister. I accept that he comes from a loving and supportive family and that upon his release he will continue to be supported by them.
26. I accept that the offender is genuinely remorseful for his involvement in these offences. Mr Ahmed Deeb confirms that the offender worked for him as a groundsman in 2017. The offender proved to be diligent in all aspects of his work. He is described as having been reliable and punctual. He presented with a positive attitude and completed the assigned tasks without any issues.
27. The offender commenced a certificate in building and construction through TAFE and upon his release intends to complete his qualifications, obtain employment and marry.
28. Mr Manal Daher is Director of an organisation called Unity for Our Community ('the Organisation') which provides various services for children, youth and women including counselling, spiritual growth workshops in a safe place to socialise. One of the aims of the Organisation is to help boys in Western Sydney by providing services so as to give them an opportunity to come off the streets and congregate in a place where they feel welcome, safe and supported.
29. Mr Daher confirms that, prior to the offender's incarceration, he volunteered with some of the local community organisations. He also confirms that the offender has expressed an interest in joining the Organisation more formally to speak to youth groups and share his own experiences with them in an effort to emphasise how crucial it is to make good choices in life. The offender will be accepted as a mentor, if he chooses, upon his release.
30. Having regard to the offender's criminal record and the commission of the present offences while on parole I am guarded about his prospects of rehabilitation. However this is not a case where it can be said that he has poor or no prospects of rehabilitation. He has the continued support of his family. He is remorseful for his criminal conduct. Importantly, although he did not completely sever ties with his criminal associates, he voluntarily ceased his involvement in the conspiracy in January 2017. Rehabilitation remains an important consideration in this case and I will structure a sentence so as to facilitate that rehabilitation on supervised parole.
31. What weight is to be given to specific deterrence? I am not persuaded that the weight to be given to specific deterrence is substantially or significantly moderated. Instead, I am satisfied that the weight to be given to specific deterrence can be moderated to some degree. Specific deterrence remains an important consideration in light of the offender's criminal history and the haste with which he became involved in further serious criminal offending upon his release to parole in 2016.
32. The weight to be given to specific deterrence can however be moderated because I am satisfied that he demonstrated some maturity and capacity for restraint by voluntarily ceasing his involvement in the conspiracy.
33. The Crown has provided a schedule of other relevant cases, although concedes that none of those cases are of any real assistance having regard to the particular factual circumstances of the present case.
34. Although there are a number of co-conspirators, none of them were charged with the conspiracy to import pseudoephedrine and as such none of them have been sentenced or will be sentenced for this offence. They have been charged with other offences in which this offender was not involved. As such, the parity principle does not apply. Having regard to the particular roles played by each participant in this conspiracy, I am satisfied that the offender's degree of culpability is significantly lower than that of his co-conspirators.
35. I note that there is no judicially determined norm or starting point for the period of imprisonment a Commonwealth offender should serve in prison before release. In setting the non-parole period I must determine the minimum period the offender is to spend in custody to reflect the objective gravity of the offence.
36. Although originally charged with a different conspiracy, a charge not pursued, it is accepted that he has been bail refused in respect of the present offences since 8 August 2017. Upon his arrest, he was serving the parole period of a sentence imposed for the earlier offences of armed robbery. He was released on parole on 23 September 2016. His parole was revoked solely as a result of the commission of the present offences. The breach of parole report notes that Community Corrections recommend that the parole be revoked by reason of the serious nature of the allegations, in combination with the fact that he engaged in this conduct within a short time frame following his release on parole.
37. The balance of parole will expire on 23 September 2021. A parole review is scheduled on 13 February 2020. Where, as is the case here, the parole has been revoked by reason of the offence for which the offender is to be sentenced, I have a discretion to direct the sentence commences on a date so that it is concurrent partially concurrent or wholly cumulative upon that sentence.
38. In determining that question, I have had regard to the fact that the earlier offences involved completely separate criminality and were of a very serious nature. On the other hand, the sole reason for the revocation of parole was as a result of the commission of these offences. Furthermore, I have already taken into account the fact that the offender was on parole at the time he committed the offences as a matter adverse to him and in determining that specific deterrence remains a relevant and important consideration. I have also had regard to the fact that he was subject to parole at the time he committed the present offences in determining that I am guarded about his prospects of rehabilitation.
39. In those circumstances, while there will be a measure of accumulation, the degree of accumulation will be modest.
40. Accordingly, the offender is convicted.
41. Taking into account a discount of 25% for the plea of guilty and the offence on the s 16BA schedule, I impose a sentence of imprisonment consisting of a non-parole period of 3 years imprisonment commencing on 8 November 2017 and expiring on 7 November 2020, with a balance of term of 3 years imprisonment. The total term is 6 years imprisonment.
42. The starting point before the application of the discount is 8 years imprisonment.
43. The offender will be eligible for release on parole at the expiration of the non-parole period.

Amendments 26 February 2020 - Correction of 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: 26 February 2020