Solicitors:
Commonwealth Director of Public Prosecutions
Elie Rahme & Associates Pty Ltd
File Number(s): 2012/81495
[2]
Judgment
The offender, Ahmed Karnib, was arrested on 13 March 2012 and subsequently charged with the following two offences, to which he entered pleas of guilty in the Local Court on 28 February 2014, and for which he was on that date committed for sentence to this Court:
The first is a Federal offence that he conspired with others, without requisite permission, to import prohibited tier 2 goods, namely, firearm parts and firearm magazines.
The other is a State offence alleging that between about 10 November 2011 and about 9 November 2012, at Sydney, he knowingly took part in the sale of a firearm part on three or more separate occasions.
The offender appears today for sentence, the matter having been stood over following a sentence hearing on 26 February this year.
The facts out of which these charges arise are set out in a Statement of Facts which exceeds 50 pages. It is supplemented by schedules relating to the various imports the subject of the charges and some written submissions on sentence from the Crown, which comprise some 42 additional pages of material. Needless to say, the detail encompassed by those documents cannot sensibly be reproduced in these remarks. I have taken all that material into account and have endeavoured to fairly summarise it in the remarks that follow.
In brief, the Statement of Facts describes the activities of a criminal enterprise operating in greater Sydney, New South Wales, which involved at least three known persons, the offender, a co-offender named Andrew Botros, who also appears for sentence today, and a co-accused Khoder El Ali.
The offender was employed by Transitainer New South Wales Pty Limited, the local arm of a multinational freight forwarding business which was located on the upper floor at unit 5, 12 to 14 Murrumbidgee Avenue, Sylvania Waters.
The co-offender was the licensee and operator of an Australia Post business located on the ground floor of 12 to 14 Murrumbidgee Avenue, downstairs from the office where the offender worked.
El Ali was employed as a network technician at SingTel Optus in Macquarie Park, New South Wales.
The criminal enterprise was collectively responsible for the progressive importation, between October 2011 and February 2012, of 20 packages, 18 from Germany and two from the USA, which in combination contained 496 prescribed constituent parts for at least 118 complete Glock semiautomatic pistols, 12 partial Glock semiautomatic pistols and also 220 magazines for use with Glock semiautomatic pistols. All of those parts and magazines, but for 140 magazines, successfully evaded detection by Australian authorities upon arrival and made their way into the community. The imported firearm parts were capable of being (and some in fact were) assembled by El Ali into complete firearms. Some of those firearms were unlawfully sold in either assembled or disassembled states. Police have recovered 14 Glock pistols, assembled, at least in part, from the Glock pistol parts imported as a result of this enterprise. At least 106 complete Glocks and 10 partial Glocks are believed to remain somewhere in the Australian community.
Additionally, 80 parts for a further 20 Glock complete semiautomatic pistols were seized by police in Germany and an additional 100 Glock semiautomatic pistols and 250 large capacity magazines for use with Glock semiautomatic pistols had been ordered and part paid for prior to the arrest of the offender, Botros and El Ali. Further, prior to their arrest, El Ali and the offender had been discussing further importations and were considering alternative international sources of firearm parts and magazines and different methods by which they might be smuggled into Australia.
Both offences are plainly very serious offences, as indicated by the maximum penalty which the respective Parliaments have prescribed for them. The Federal offence carries a maximum penalty of imprisonment for 10 years and/or a fine of $275,000. The State offence carries a maximum penalty of 20 years imprisonment.
In relation to the conspiracy count, the Crown submitted that the criminal enterprise involved offending within the worst category of conduct caught by this offence. The reasons advanced for that submission included the following:
First, that the object of the ongoing conspiracy was to smuggle into Australia firearm parts and magazines on a commercial scale.
Secondly, that the firearm parts imported were capable of constructing complete firearms, capable of use with the magazines.
Thirdly, the type of firearms involved were all high powered and readily concealable semiautomatic pistols, the availability of which to members of the public was tightly restricted under Australian law, because they pose a serious danger to public safety and law and order.
Fourthly, that 496 prescribed constituent parts for not less than 118 complete and 12 partial such pistols and 80 magazines for use with such pistols were successfully smuggled into Australia in 20 separate packages and consequently were introduced into unregulated circulation in the community.
Fifthly, a further 140 magazines for use with such pistols were also imported in a further package, however that package was intercepted, and its contents seized, by the Australian Customs and Border Protection Service upon arrival in Australia.
Sixthly, 80 prescribed constituent parts for 20 additional pistols, which had been packaged for intended shipment to Australia were seized by law enforcement authorities in Germany.
Seventh, orders had also been placed for an additional 100 such pistols and also for 250 large capacity magazines that were also intended to be smuggled into Australia, and those had been partly paid for.
Eighth, after the importation of firearm parts was frustrated by the investigations of Australian and German law enforcement authorities, El Ali and the offender continued to conspire to source firearm parts from other sources and to smuggle them into Australia by other means.
Ninth, the conspiracy was a sophisticated one and involved significant dishonest conduct, principally by El Ali, but also by the offender.
Finally, in this connection, it was submitted that it is appropriate to have regard to the actual and potential consequences that may reasonably foreseeably result from the uncontrolled introduction into the community of the type and quantity of these prohibited goods, which the offenders voluntarily participated in smuggling into Australia.
Each of those matters provides a reasonable foundation for informing an assessment of the objective gravity of the offending, however that assessment cannot be divorced from consideration of the particular conduct of the offender and his role in the criminal enterprise.
In addition to supporting the general propositions just outlined concerning the nature and scope generally of the ongoing criminal enterprise, the Statement of Facts also conveys information concerning when each participant became involved in the criminal enterprise, the nature and extent of their respective roles, the extent of their knowledge of the full nature and scope of the criminal enterprise and their motivations for offending.
In terms of the offender's conduct, I will consider first his involvement in the Federal offence and then his involvement in the State offence.
A rational assessment of the offender's role and participation requires that some consideration also be given to assessing the role, knowledge, and motivation of El Ali, so far as it is revealed on the material before me.
On the evidence before me, it is plain that El Ali was the principal controlling mind of the conspiracy, with complete knowledge of its extent and nature. The Statement of Facts describes the following activities undertaken by him in furtherance of the criminal enterprise:
El Ali placed each of the orders for Glock pistols, parts and magazines using false identities and he selected what goods were ordered.
He engaged in voluminous email correspondence with the German supplier of the vast majority of the firearms, misrepresenting that he was corresponding as or on behalf of various false personal and corporate identities, including "Tony Ibbotson" and "Greg Richardson" of "Secure Training Pty Limited", "George Koulakiti" of "Safari Arms Australia Pty Limited", inducing the German supplier to wrongly believe those fictional identities were involved in legitimate business activities with full knowledge of Australian law enforcement authorities. El Ali groomed the German supplier with promises of a lucrative ongoing business relationship.
El Ali created and provided the German supplier with 11 counterfeit official Australian import permits, purportedly issued by an Australian Department of Defence official, for provision to German authorities, in order to induce legitimate export permits to be issued.
El Ali directed the German supplier concerning the packaging of the orders of complete pistols, disassembled in separate parts, and provided alternative paperwork and packaging labels, with assistance from the offender, to accompany the packages to evade detection of their true contents when passing through foreign and Australian border controls.
El Ali created a false email, supplied to the German supplier, impersonating an Australian Customs Officer as the email's purported author, misrepresenting that Australian law enforcement authorities had knowledge of and approved of the importation of the firearm parts and the method by which they were imported.
El Ali also used a false identity, "Simon Saltan", when ordering Glock pistol parts in the USA, arranging on two occasions for them to be shipped to the address of a mail forwarding service for subsequent onward shipping to Australia.
In 12 separate transactions, El Ali transferred or otherwise paid the German and US suppliers a total of approximately $A120,000 as payment for the goods and associated services supplied by the German and US suppliers. On five occasions El Ali did so using false identities, "Tim Gordon" or "Simon Saltan". On the final occasion payment was made, El Ali instead arranged for a third party, in return for promised payment, to transfer money, supplied by El Ali, on his behalf.
Upon the arrival of the packages in Australia, El Ali was involved in assembling all or some of the parts into complete pistols.
In addition to the 20 packages successfully imported into Australia which contained pistol parts or magazines, El Ali also ordered and part paid for further orders of pistols and 250 large capacity magazines which he intended be exported from Germany to Australia for sale here.
Further, El Ali discussed with the offender possible future activities of the ongoing enterprise, discussing potential alternative avenues by which future quantities of firearm parts could be sourced from suppliers in Europe, the Middle East, North America or Asia and methods by which Australia's Customs controls could be evaded, such as concealment of firearm parts in imported shipping containers or importation via boat.
The evidence points to El Ali's principal motivation likely being to derive personal profit from the unlawful sale of complete firearms constructed from the imported firearm parts and magazines.
The offender's role in the enterprise, at least so far as it is revealed on the material before me, was far less extensive than El Ali's. That role was not insignificant by any means, and he was obviously trusted by El Ali, and an important adjunct to El Ali's activities, however, as the following outline of his involvement reveals, he plainly occupied a subordinate role to that of El Ali.
The offender used the knowledge and experience he obtained with respect to international shipping through his employment at Transitainer NSW Pty Limited to engage in conduct which furthered the object of the smuggling enterprise. He also used that employment as a "cover" to minimise detection both of the enterprise generally and also his own and El Ali's unlawful involvement in the enterprise.
The evidence establishes that the offender was involved in arranging the shipment to Australia of each of the packages shipped from Germany and also the USA. Including by communicating with various international freight companies, he facilitated each package being successfully smuggled into Australia, making arrangements for and monitoring the progress of shipments and undertaking activities to evade detection of the criminal enterprise by both foreign and Australian authorities.
From an early stage, prior to any packages being successfully exported from Germany, the offender undertook overt activities in furtherance of the criminal enterprise, utilising skills and experience gained through his employment, to facilitate the importation of packages of firearm parts in a manner that evaded detection of their true contents, demonstrating his willingness or agreement to be involved with El Ali in the enterprise.
Further, the offender, directly or indirectly, received each successfully imported package upon its arrival in Australia and distributed or caused them to be distributed to El Ali:
Within one hour of the package designated G1 being received by the offender at his workplace from a FedEx courier on 11 November 2011, El Ali corresponded by email with the supplier, querying the whereabouts of the "locking blocks" that were to be included in that package, demonstrating the speed with which the offender distributed that package to El Ali.
On 16 November and 13 December 2011, the offender arranged for a courier to collect the packages designated G2 and G6 from GFI Airlift and DHL's depots respectively and for their delivery to his workplace. Two days after the offender arranged for the collection of the package designated G2, El Ali corresponded with the supplier, acknowledging he had come into possession of that package by indicating he was returning the trigger locks that had been affixed to the receivers in that package for use in connection with El Ali's next order.
The packages respectively designated G3, G4, G7 and G8 were received by the offender at his workplace from a FedEx courier.
The offender arranged for a fellow employee of Transitainer to collect the package G5 from DHL's depots and deliver it to him. Package G12 was collected from DHL's depot either directly by the offender or by a colleague on his behalf.
The packages designated G11, G13, G14 and G15 were delivered to Botros at his workplace. Whether the offender or Botros directly received packages G9, G10, G16, G17 and G18 from the delivering FedEx courier is more ambiguous, as records indicate that they were received by "Ahmad" at Botros' workplace.
However, regardless of which packages Botros received directly, it is clear that Botros provided each package he received to the offender, or to an unknown person at the direction either of the offender or El Ali, more likely the former, for ultimate provision to El Ali. Evidence inferentially establishing that such coordinated activity occurred includes evidence of multiple unintercepted telecommunications between the offender and Botros on 20 and 23 January and 9 February 2012 proximate to the delivery of packages G13, G14, G15 and G18. Further, evidence derived from intercepted telecommunications and listening device recordings on 11, 17 and 25 February 2012 and 1, 5, 8, 9 and 13 March 2012 contribute to proof of the close association between the offender and Botros and support the inference that the offender coordinated the involvement of Botros' unlawful activity for promised remuneration to Botros.
Additionally, to facilitate the continuation of the smuggling enterprise, the offender sought the return to the consignor of four packages sent to Australia, the true contents of which had been or were suspected of having been detected.
The evidence, in particular intercepted telecommunications, discloses that the offender participated with El Ali in discussions concerning the future activities of the ongoing enterprise. From 17 February 2012, police lawfully intercepted the offender's telephones. A number of intercepted communications between the offender and El Ali, together with a conversation between the offender and El Ali on 1 March 2012, that was overheard in part by an undercover surveillance officer, disclose the offender's involvement in discussions concerning plans for the ongoing smuggling enterprise; discussing alternative avenues by which future quantities of firearm parts could be sourced from suppliers in Europe, the Middle East, North America or Asia and methods by which Australia's Customs controls could be evaded, such as concealment of firearm parts in shipping containers or importation via boat.
It was submitted that the offender's role also extended to agreeing to participate in financing the ongoing criminal enterprise by agreeing to an unspecified portion of his share of an anticipated return from the enterprise being used to fund ongoing smuggling activities. This inference is said to arise in particular from intercepted telecommunications between the offender and El Ali on 17 and 25 February and 7 and 12 March 2012. The effect of those conversations seems to me to suggest that the offender is prepared to forego some of his anticipated financial reward so that some other unidentified participant might also be paid. I consider it is overstating the situation to say this represents some contribution to financing the operation. I am satisfied that the primary, if not sole, source of funding for the enterprise was El Ali, not the offender.
I am satisfied that the offender knew that the criminal enterprise in which he was participating was specifically concerned with importing firearm parts and magazines into Australia, for use in construction of complete firearms, on a commercial scale. Evidence supporting that inference includes the following:
First, evidence of the offender's involvement in making arrangements for the packages to be shipped to Australia from Germany and the USA, which I have already referred to.
Second, evidence of the offender's involvement in receiving the imported packages.
Third, evidence of the offender's involvement in monitoring packages and arranging or attempting to arrange the return of four packages sent to Australia, the true contents of which had been or were suspected of having been detected.
Fourthly, evidence of lawfully intercepted telecommunications of conversations between the offender and El Ali covertly discussing difficulties El Ali was experiencing with respect to sales of firearm or firearm parts due to some ordered parts and, in particular, magazines not being available for supply to purchasers.
Fifthly, evidence of lawfully intercepted telecommunications of conversations between the offender and El Ali indicating the offender's awareness of the substantial sum of money expended by El Ali in connection with the enterprise.
Finally, the listening device recording on 13 March 2012 in which the offender affirms in response to Botros' inquiry, "Is it only mags in it?" "Yeah, I don't know what size. It's for the Glocks."
The offender was aware that the activities being undertaken by the enterprise in which he was participating were unlawful. Evidence supporting that inference includes:
First, the experience and knowledge the offender derived from his employment in connection with the importation of goods into Australia.
Second, his participation in covert email communication with what he knew to be El Ali's false identities which concealed the true nature of the activities in which they were involved and which sought to portray the offender's involvement as genuine business activities, undertaken as part of his employment, when in fact the activities were undertaken independently of his employment.
Third, evidence of the offender's efforts to conceal detection of the true contents of packages from foreign and Australian Customs officials, which I have already referred to.
Fourth, lawfully intercepted telecommunications and listening device recordings of the offender's discussions with El Ali regarding possible or probable covert Australian Customs or police investigation, including discussion referring to El Ali's use of falsely subscribed telephone services and the need for the offender to exercise caution when discussing the enterprise with El Ali in telephone conversations due to the possibility of telecommunications interception by police.
Fifth, lawfully intercepted telecommunications and listening device recordings of the offender and El Ali's discussions concerning Australian Customs border detection methodologies and their perception of the porousness of Australia's borders due to corruption within Australian Customs.
Sixth, lawfully intercepted telecommunication recordings of conversation between the offender and El Ali concerning the purchasers of imported firearms and firearm parts, including a reference to a member of an outlaw motorcycle group, the Rebels.
Finally, lawfully covertly recorded statements made by the offender to Botros whilst in police custody.
I am satisfied that the offender's principal motivation was to derive some financial gain by way of payment to him of an unspecified sum. Intercepted conversations between the offender and El Ali support this inference, though no precise figure concerning actual or anticipated financial benefit can be quantified. I do not think there is a sufficient evidentiary foundation for the proposition that it was intended that he acquire a substantial share of the profits of the unlawful sale of the imported firearm parts and magazines. To characterise his expectation of financial gain as being a share of the profits is to attribute to him a more significant role than I am satisfied the evidence will bear.
On the basis of the material I have outlined, the Crown submitted that the offender's objective criminality in respect of the Federal offence, whilst less than that of El Ali, ought properly be regarded as falling within the worst category of case. I do not accept that submission. Whilst his conduct is serious indeed, it seems to me one simply has to contrast the nature and extent of his involvement with that of El Ali to demonstrate the lack of a reasonable objective foundation for that conclusion.
I turn now to consider the State offence.
The offender is to be sentenced with respect to one State offence alleging that on three or more occasions between about 10 November 2011 and about 9 November 2012 he knowingly took part in the sale of a firearm part.
The relevant Act, the Firearms Act, defined "firearm part" to include parts such as the slide, barrel, trigger mechanism, receiver and magazine of a firearm. That Act also contained a broad and non-exhaustive definition of "sell" which included "... have in possession for sale or...consign or deliver for sale...". The Act further extended the meaning of sale by defining taking part in sale to include conduct whereby a person "takes, or participates in, any step, or causes any step to be taken, in the process of that sale...".
There is no evidence that the offender personally sold any firearm parts to any particular person. There is, however, evidence strongly supporting the inference that the large quantities of firearm parts were intended for sale and that some, if not all, were sold.
The offender's guilty plea constitutes at its lowest an acceptance that in the relevant period he intentionally came into possession of the contents of three or more packages containing firearm parts and caused the contents of those packages to be delivered to El Ali, knowing that each package contained parts intended for sale for profit or to be offered for sale by El Ali.
The Crown submitted, and I agree, that the objective seriousness of the offending was greater than the minimum established by the plea. However, I do not accept the Crown's submission that the offender's conduct should be assessed as objectively falling within the worst category of offending. As with the Federal offence, the conduct is serious but far from being rationally assessed as in the worst category in my assessment. The following matters inform the objective gravity of the offending.
The evidence reveals that, directly or indirectly, the offender came into possession of and delivered to El Ali each of the packages successfully imported from Germany and the USA containing firearm parts, being 18 packages from Germany and two from the USA.
On that basis, in circumstances where several packages were received on the same date, I am satisfied that in the period between 10 November 2011 (the date upon which the first imported package was received by the offender) and the date of his arrest on 13 March 2012, the offender knowingly participated in the sale of a firearm part on multiple occasions, that is approximately seventeen times.
Additionally, on each occasion he knowingly participated with respect to multiple firearm parts; between 4 and 80 parts on each occasion. The number, type and quality of the parts to be sold is also a relevant consideration in assessing the seriousness of the offending.
The type of firearm to which the firearm parts correspond is also a relevant consideration. Each of the firearm parts related to a firearm that constituted a prohibited pistol within the meaning of the Firearms Act, a more restricted class of firearm, and in relation to which aggravated penalties for unlawful possession apply. Each type of firearm was so characterised due to its short barrel length, which made it more readily concealable, consistent with unlawful possession and use for criminal purposes, and hence a greater risk to public safety.
As at February 2015, 14 firearms known to have been constructed from not less than 38 parts successfully imported into Australia by the criminal enterprise have been recovered by police. It might reasonably be inferred that each of those firearms part were sold by El Ali prior to the arrests of El Ali and the offender on 13 March 2012. Of those 14 firearms, five firearms, constructed from parts contained in seven of the successfully imported packages were recovered in the 12 month period commencing from the arrival of the first successfully imported package on 10 November 2011.
Further, although the whereabouts of most of the imported firearm parts has not yet been ascertained, I am satisfied that the evidence supports an inference that they or a large proportion of them were sold by El Ali prior to his arrest.
There is evidence that the offender knew or at least eventually became aware of the reasonably foreseeable probability that the firearm parts were to be sold to members of the criminal milieu, including those potentially connected with drug trafficking activities. Apart from the inference to be drawn from the commercial nature of the enterprise, the intercepted telephone conversation between the offender and El Ali on 17 February 2012 refers to El Ali informing the offender about problems that had arisen with respect to the sale of firearm parts to a member of The Rebels outlaw motorcycle club.
In my assessment, the scale and extent of the criminal enterprise, the quantity and type of firearm parts concerned and the longevity of risk created by their sale gave rise to a risk to the public substantially exceeding the norm for the offence. The risk to public safety here is beyond the norm due to the reasonable expectation that the firearms are to be sold into a criminal milieu generally.
In considering the potential risk it is relevant that of the 14 firearms recovered by police, three are alleged to have been unlawfully discharged in public places and one was recovered six days after the occupant of the property in which the firearm was located allegedly committed an armed robbery. The high public risk is manifest.
The concerted nature of the activities of the offender in his dealings with El Ali also informs the seriousness of the offending. It is not an inherent feature of the offence that multiple persons will act in concert in bringing about the sale of the firearm parts. Whilst it might not constitute a marked difference, the fact that the offender was more in the nature of an intermediary in respect of this offending, and plainly below El Ali in the clear hierarchy of the enterprise, supports a finding of less culpability on the part of the offender.
As with the Federal offence, the present offending was part of a planned criminal activity motivated by the prospect of monetary gain. In respect of both offences, it should be noted, however, that there is no evidence that the offender in fact benefitted substantially from his involvement. There is no apparent accumulation of wealth or substantial assets. All the offending was carried out whilst the offender was living at home with his parents and sharing a room with his teenage brother. There is also no evidence that the offender was a significant contributor with respect to the cost of any of the parts.
The proper characterisation of his conduct is that he participated, directly or indirectly in the forwarding of packages to the intended vendor so that their contents could be sold. He was not the seller, nor could he rationally be equated with the seller in the scheme of the criminal enterprise. Accordingly, as I have indicated, whilst his involvement is serious it is far from being within the worst category of offending.
The gravamen of the Federal offence relates to the offender's involvement over an extended period in an agreement to import into Australia substantial quantities of firearm parts, capable of assembly into complete firearms, and corresponding magazines. It encompasses offending of an incomplete or inchoate nature, relating to the contents of the packages seized in Germany and ongoing plans to continue to import firearm parts and magazines supplied by other sources and smuggled into Australia by alternative means. The gravamen of the State offence is that the offender came into possession of and directly or indirectly participated in the distribution to El Ali of firearm parts from the successfully imported packages, knowing that they were to be sold or offered for sale by El Ali. I am satisfied that the ultimate importer was El Ali and that until the parts were in his hands the importation was continuing.
There is accordingly a substantial overlap between the Federal and State offending, such that it is appropriate there be limited accumulation between the sentence for each offence. Some modest accumulation to reflect the two crimes is appropriate and will be evident in the sentences I impose.
The offender did not give evidence on sentence. What follows concerning his subjective circumstances is taken from the evidence tendered on his behalf, which comprised the evidence of his father, both oral and written, from his mother, his younger sister and brother, two character references, one of which contains an offer of future employment, and a report of a psychiatrist, Dr Olav Nielssen.
The offender was born on 12 November 1990. He is now 24 years old. He was only 20 years of age when he commenced his involvement in this criminal enterprise. According to a history given to Dr Nielssen, the offender's participation was secured following an approach from some people who found out he worked in the shipping industry. Those people were apparently acquainted with people known to the offender. He told Dr Neilssen "they asked me to do something...they told me we can use your name...it's clean...nothing will come back to you...they did promise me a little bit of money...me being stupid, I agreed". Apparently he was repeatedly reassured that nothing would happen to him and he now accepts it was pretty stupid of him to have believed that. The evidence points to the likelihood of the offender having been introduced to El Ali through a maternal uncle, his mother's step-brother, a man named Jihad Taha.
The offender has no prior criminal history and I am satisfied his participation, which was completely at odds with his history and upbringing, was a consequence of his immaturity. He was lured by the prospect of some financial gain, I suspect without any advertence to the significance or broader consequences for the community of the crimes in which he became involved.
The offender appears to have had a relevantly unremarkable upbringing. He appears to have grown up within a stable and loving family, with whom he was still living at the time of his arrest. He is the eldest of three children. His sister, now aged 22, is studying to become a teacher and his younger brother is in year 12 at high school. His father is, and has for 25 years, been self-employed driving limousines. Both parents are of Shia Muslim background. His father, originally from a rural area in the south of Lebanon, moved to Australia when he was six and his mother, also of Lebanese background, was born in Australia. His parents have always tried to instil in their children the values of hard work and honesty and integrity.
The offender attended an Islamic school near the family home in Greenacre. He was a keen sportsman, and played soccer, rugby league and cricket. He left school in year 9, to the immense surprise, apparently, both of his family and the school. It seems he was a bright, capable student, who had promising prospects and had displayed no conduct problems. He left school to take up a job at Transitainer, a business apparently owned by one of his father's clients. He remained in that job until the time of his arrest and by all accounts applied himself diligently and capably to the work and progressed within the firm, being promoted a number of times. At the time of his arrest he held the position of operations supervisor. He had completed a TAFE course in freight forwarding. Outside of work his hobbies include all forms of support and fishing and boating in the Sydney region.
The offender has expressed to his family and to Dr Neilssen his considerable regret for his conduct. In prison he has been exposed to people who would use guns to harm others. This experience has brought him to comprehend the seriousness of his offending. He appreciates now that he has not only let himself and his family down, but also the entire community. He had never previously appreciated the effect and seriousness of having gun parts enter Australia destined for the black market. I accept that the offender's remorse is genuine and that he has now, but did not at the time, a genuine appreciation of the seriousness of his conduct and the appalling consequences to which it was giving rise.
The offender's time in prison has been confronting and disturbing. He was by reason of his conduct taken from the warmth and security of his family home, the only home he had ever known, into the confronting reality of maximum security detention. That experience has had significant consequences for him. He has lost a considerable amount of weight, and hair, both he thinks on account of the stress he feels in his present situation and does not sleep well. He has developed a degree of anxiety, fearful for his own safety, particularly after having had to share cells at times with people withdrawing from the effects of the drug ice. He told Dr Nielssen that he has to watch his back and that it has been "pretty scary".
The offender has a deep and committed connection with his family. The support from them that he enjoys, notwithstanding his circumstances, is considerable. His mother, father, sister and brother have all regularly visited him in prison. He has also maintained telephone contact with individual family members between visits. His family have been deeply affected by the apparent physical and psychological decline of the offender as a result of his experience of incarceration.
There are a number of factors which in my view support a conclusion that the offender has excellent prospects of rehabilitation once released. These are in addition to the insight into offending which he has gained during his time in custody, and the strong family support he enjoys, both of which I have already mentioned and which themselves provide an important foundation to his prospects.
First, he has a commendable employment history since leaving school. Save for the period shortly before his arrest when he was drawn into this offending, he appears always to have applied himself diligently and energetically to his work and to have achieved appropriate recognition through promotion.
Secondly, and related to that first consideration, the offender has work already lined up upon release from custody. He plans to return to work with a family friend, helping in the administrative side of that friend's plumbing business.
Thirdly, the offender's prospects are enhanced in my view by the positive role-modelling provided by the example of his father who throughout the offender's life has had stable employment in the form of the long-term conduct of his own business, and who has always tried to instil in the offender the values of hard work and integrity.
Fourthly, his risk of recidivism seems to be low. That risk is reduced by factors such as his stable mental health and his strong family support. As Dr Neilssen pointed out the two main predictors of recidivism, a history of anti-social conduct and the presence of any form of substance use disorder, do not feature in the offender's history.
Finally, for present purposes, the offender's prior good character provides a sound basis for confidence for his future. That good character is manifest not merely in the absence of prior convictions but in the body of evidence that points to the offender having been, at least until drawn into the criminal enterprise that led to his arrest, a determined, hard-working and caring young man.
In addition to the contribution it makes to my confidence in his prospects, the offender will be accorded the leniency that his prior good character fairly attracts, notwithstanding that he engaged in a course of conduct over a period of time and that his employment afforded him the opportunity more readily to commit the offences, in particular the Federal offence.
He will also be extended leniency on account of his pleas. Notwithstanding what the Crown reasonably submits is a strong Crown case, in respect of each offence I will allow a discount of 25% for the plea, to recognise the facilitation of the course of justice in respect of the Federal offence and the utilitarian value of the plea to the State offence.
The offender's remorse is profound in my assessment. It is not only reflected in the pleas of guilty. It is also reflected in the insight which he has plainly acquired as to the nature of his offending, and the profound repercussions for the community generally which flow from the introduction of illegal firearms onto a black market.
I am satisfied that the offending represents the naive conduct of an immature young man who foolishly acceded to a request made of him, without any, or any significant, advertence to the true nature or the broader consequences of his conduct. He was seduced, apparently, by the prospect of some unquantified financial gain. That seduction, however, seems to have been profound, in that the level of his involvement plainly escalated over time, from an initial willingness to lend his name to the enterprise, in his capacity as a freight forwarder, to an eventual participation in discussions concerning future importations.
As in any sentencing exercise, at least whilst it continues to have statutory recognition, appropriate account must be given to the object of general deterrence, along with the other, some countervailing, objects of sentencing.
Without any apparent foundation in evidence, whether in the form of academic research or otherwise, in respect of offences of this character (and other offences which might involve a risk to public safety, or be considered abhorrent on some other ground) courts have sometimes said that general deterrence should be a predominant consideration. Frankly, absent an evidence base, it does not appear to me that there is a sufficient basis in principle or policy for the object at all, much less a basis to give that object any prominence in the synthesis over and above the other objects which are given statutory recognition in the sentencing exercise. Bald statements to the effect that it is a "cogent fact that the fear of punishment does, and will, prevent the commission of any many [crimes] that would have been committed if it was thought that the offender could escape punishment", or incur only a light punishment, (R v Rushby [1977] 1 NSWLR 594 at 598 per Street CJ, cited at para [64] of the Crown's written submissions) cannot rationally be elevated to expressions of principle without some objective demonstration of the asserted cogent fact. If the notions of individualised justice, which substantially underpin the exercise of the sentencing discretion, are to be given any more than mere lip service, then the various objects of sentencing must be balanced according to the particular circumstances and features of individual cases.
To dictate in advance that predominance be given to one object over another divorced from a consideration of the circumstances of any particular case, for example merely by reason of the character of the offence, is to fetter the discretion in a way that skews the balancing exercise which must necessarily be undertaken in each individual case. So to skew the exercise neither serves the interests of justice, so far as those interests are comprehended by serving the best interests of the community, nor serves the interests of justice so far as an individual offender is concerned. Indeed to give predominance to general deterrence, without any evidence base to support the proposition that there is any relevant deterrent effect achieved by sentences heavier than they might otherwise be, seems to me to run the significant risk of creating a positive injustice, particularly if other features of a case provide rational support for the proposition that the interests of justice and the community are better served by giving a preponderance of weight to other objects, such as an appropriate mix of rehabilitation and specific deterrence for example. It may be, in due course, there should be reconsideration of the statutory recognition of some of the presently recognised objects of sentencing, so as to reflect an appropriate evidence base.
Whether it be by considerations of general deterrence, or by giving due weight to notions of punishment and denunciation, recognition must be given in this exercise to the reasonable community concern about firearms-related offending. Whatever might have been the motivation for the offending, and however little thought might have been brought to bear by the offender as to the broader consequences of the offending, one must acknowledge in this synthesis the fact that his conduct contributed to the introduction into the community of a substantial number of dangerous weapons, inevitably destined for illicit use of one kind or another, and most of which have not been recovered. The community is entitled to know that the Courts, through the sentences they impose, give appropriate recognition to the seriousness of these consequences.
Those considerations must be taken into account in a way that reflects appropriate proportionality between the circumstances of the crime committed and the sentence imposed, taking appropriate account, of course, of the subjective circumstances so as to properly reflect that fundamental notion of individualised justice underpinning the exercise of the sentencing discretion.
Specific deterrence too, must not be left out of account, even accepting, as I do, that the case for the conclusion that the offender has excellent prospects for rehabilitation, and is at a very low risk of re-offending, is reasonably compelling. Even when the risk is low, there is a risk. It can be managed, and the present expressed intensions and desires of the offender for the future fortified, by structuring a sentence which takes account of a degree of specific deterrence.
Above all, however, where one is sentencing someone as young as the offender, with the prior good character that he has demonstrated, and against the background of the strong case which has been presented for a finding of excellent prospects of rehabilitation, one must give particular account to that object in the synthesis alongside the other objects of sentencing which I have indicated must also feature in this sentencing exercise.
The development to maturity is a process. It is trite to say that it does not occur overnight. This offending, which in my assessment was substantially founded in the cognitive, psychological and social immaturity of the offender, and a corresponding lack of capacity to appreciate the true nature, scope and consequences of what he was being asked to do, has had profound consequences for the offender and his family. For him, it has provided a cathartic opportunity to gain valuable insight into the consequences of offending generally, but of this type of offending in particular, both for the broader community and, more immediately, for his family. He has now had an opportunity in custody to reflect on the future and his capacity for choice in terms of finding the right path in life. For his family, the offending has produced a considerable dislocation and stress, I think particularly for his mother, but not only for her. This has not escaped the offender's attention and, in my assessment, his expressed desire to ensure that this never happens again, which I find to be both a considered and genuine expression, will be a powerful motivating factor going forward.
My instinctive assessment is that this offender's history, his present attitude, the strength and depth of family and other support he has, including in terms of having a place to live and a job to return to upon his release, point to the likelihood of him making a law abiding return to being a productive and valuable member of his family and the community. Extending appropriate leniency at this stage, I believe, will positively encourage that process. It does not seem to me that the process, or the corresponding benefits to the community, will be served by requiring this young man to spend considerably more time in prison than the time he has already served. Indeed, to do so has greater potential for deleterious inhibition of the process in my view. Due recognition must be given to the capacity, which I am satisfied the offender has, to reform and mould his character so as to return to his former law abiding existence. The interests of the community in facilitating the process of rehabilitation is much better served in this case by a significant finding of special circumstances, which I make based upon the various matters I have outlined, and a substantial corresponding adjustment to the statutory ratio in respect of the State offence. In that way, a sentence can be structured which gives appropriate recognition to the various countervailing objects of the exercise and which provides the greatest potential for the community to benefit positively from the offender's ultimately renewed contribution to it. A head sentence for that offence can be fixed which appropriately reflects the objects of general deterrence, punishment and denunciation, and a period of supervision imposed which will allow for two significant things. Firstly, for the monitoring and support of the progress of the offender's return to a productive law-abiding life, including through any programs that might be deemed necessary in assisting that reintegration, including possibly some counselling, from which Dr Neilssen thought the offender would benefit. Secondly, in fortifying the offender's presently positive resolve, through the deterrent effect of knowing that if he re-offends he may have a substantial period of additional custody to serve if his parole is revoked. In the structure of an overall sentence, the sentence imposed in respect of the Federal offending can be accommodated around the sentence for the State offence, with some modest accumulation as I have already indicated.
The offender has been in custody since his arrest on 13 March 2012, having at some point been refused bail by the Supreme Court. As at today, he has spent just short of three years and two months (1,150 days) in custody. I will, of course, taken that time into account when imposing sentence.
I make the following orders.
In respect of the offence of conspiracy to import prohibited goods the offender is convicted. The offender is sentenced to a term imprisonment of six years to date from 13 March 2012 and ending on 12 March 2018. I direct that he be released on 12 December 2015 upon entering into a recognizance self in the sum of $1,000 without surety to be of good behaviour for the balance of the term, that is the period of two years and three months from 12 December 2015 until 12 March 2018 and to appear to receive sentence if called upon to do so at any time in respect of any breach within that period.
In respect of the offence of knowing participation in the sale of firearm parts the offender is convicted. He is sentenced to a term of imprisonment comprising a non-parole period of three years and six months commencing on 13 June 2012 and expiring on 12 December 2015, and a balance of term of four years and six months commencing on 13 December 2015 and expiring on 12 June 2020.
The total effective sentence is eight years and three months, the total effective non-parole period is three years and nine months. The offender will be eligible for release to parole on 12 December 2015.
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Decision last updated: 03 June 2015