R v Lipovac

Facts

1. The parties presented an Agreed Statement of Facts, with four identified areas of dispute. I have taken into account the entirety of the document in arriving at the appropriate sentence. What follows is a summary of the facts necessary to understand the sentence imposed. I have resolved the areas of dispute as they arise in the document.

Importation of the Excavator

1. On 13 March 2020, a 42 tonne Doosan brand excavator arrived in Brisbane from the United Kingdom. The Doosan excavator was offloaded and inspected by the Australian Border Force (ABF). X-ray examination detected two voids within the excavator's boom that contained a substance.
2. Upon deconstruction of the excavator, Australian Federal Police (AFP) located 226 plastic bags containing MDMA inside the two cavities in the boom. These bags were wrapped inside a fire blanket and building insulation. The inner walls of the two cavities were lined with a thin layer of lead sheeting.
3. Forensic analysis of the MDMA identified that there was a total minimum of 448.4 kilograms of gross MDMA. The purity range was between 77.2-78.3%, with the total amount of pure MDMA seized estimated as being between 346.2-351.1 kilograms.
4. The AFP removed the MDMA from the boom and reconstructed the excavator. They conducted a controlled delivery of the Doosan excavator and an ongoing surveillance operation in relation to its delivery address.

Purchase of the excavator

1. Ritchie Bros is an Australian company specialising in facilitating online sale of heavy machinery, including construction equipment.
2. Between 3 March 2020 and 20 March 2020, Gordon Meilack, a person linked to the syndicate in the United Kingdom responsible for exporting the Doosan excavator, commenced email correspondence with Ritchie Bros. Mr Meilack organised for Ritchie Bros to list a Doosan excavator for sale on their website 'Ironplanet', with a secret reserve price of $275,000 AUD.
3. Tony Maaz was a registered user of Ritchie Bros from at least November 2019. On 14 March 2020, Mr Maaz registered a new account using his own contact details and the name of his construction business, 'Elmaaz Holdings'.
4. On 16 April 2020, the excavator went 'live' on the Ritchie Bros auction website 'Ironplanet' with a "Buy Now" price of $295,000 AUD and a secret reserve price of $275,000 AUD.
5. Between 16 April 2020 and 20 April 2020, Mr Maaz engaged in pre-arranged price negotiations with Mr Meilack, via the Ritchie Bros auction platform, regarding the sale of the excavator. The intention of these negotiations was to give the appearance of legitimacy to the purchase of the excavator.
6. On 20 April 2020, the excavator was purchased by Mr Maaz for $340,560 including GST and transaction fees.
7. Mr Maaz then arranged with Ritchie Bros for payment and delivery of the excavator to a construction site in Blacktown (the Blacktown site) managed by Mr Maaz in his capacity as construction manager.
8. In order to finance the purchase of the excavator, Mr Maaz borrowed money from several sources, including finance broker Rentmax Finance Pty Ltd and an associate identified as Zakaria Mohamad Jida.
9. On 7 May 2020, the excavator was delivered to the Blacktown site, where it remained unattended for 12 days.

Attempts to Access the Excavator

1. At about 9.55am on 18 May 2020, Mr Maaz called the offender to confirm he would meet him at Bunnings to purchase "the little sanding thing".
2. At about 10.00am, Mr Maaz met the offender at Blacktown Bunnings and purchased an angle grinder and discs. They then departed in separate vehicles at about 10.07am. Mr Maaz told the offender that he would meet him at McDonald's.
3. At about 11.00am, surveillance devices captured Mr Maaz and the offender arriving separately at the Blacktown construction site. Mr Maaz used the excavator to dig a large trench on the site, before lowering the excavator boom into the trench. Mr Maaz and the offender then erected a large fabric screen around the excavator, concealing the excavator boom from public view. Mr Maaz and the offender used a drill and angle grinder to cut into the wall of the excavator boom.
4. The offender and Mr Maaz were recorded discussing which side would be best to cut into.
5. The offender and Mr Maaz failed to find the MDMA in the excavator boom. They were recorded discussing which compartment of the boom the MDMA should have been located in and the various possible entry points within the boom. They discussed the need to call other people to obtain further instruction. Mr Maaz told the offender to call "them" to "find out where it is". Mr Maaz and the offender discussed taking photos of the excavator to obtain advice as to the location of the MDMA. They discussed the possibility of police intervention.
6. Mr Maaz and the offender discussed losing money. In the first dispute on the facts, the prosecution alleged that the offender was recorded as making statements consistent with the fact that he was financially interested in the importation of the excavator and that is why he had lost money. The parties provided me with the relevant portion of the recording and a transcript of what was allegedly said by Mr Maaz and the offender. The recording was very faint, there are competing sounds made by birds and there are large parts of it that are inaudible. Whilst I could identify some of the words set out in the transcript, those words were not put in context by being able to understand the whole conversation. It is reasonably possible that the conversation was not related to the excavator. I am not satisfied beyond reasonable doubt that the conversation set out at [25(q)] of the Agreed Statement of Facts (as amended at the sentence hearing) indicates that the offender was financially involved in the importation of the excavator.
7. A short time later, Mr Maaz drove away, returning 20 minutes later. During this time, the offender was observed on surveillance footage pacing up and down the footpath in front of the site, talking on his mobile phone.
8. At around 2.30pm on 18 May 2020, Bradley Grech attended the Blacktown site. He had been contacted by the offender to complete a welding job. Mr Grech assisted Mr Maaz and the offender to weld, sand and spray-paint the cuts that had been made to the boom of the excavator.
9. On both 19 and 20 May 2020, Mr Maaz and the offender returned to the excavator and made further attempts to access the cavities of the boom. They followed instructions that they had received from other people and used a tape measure to locate the area where they had been instructed to access the boom. Mr Maaz and the offender were recorded discussing whether they had cut into lead, with Mr Maaz saying "I told them for the record that the hole didn't have any lead in it".
10. Mr Maaz and the offender were recorded discussing the nature and size of the concealed substance. The prosecution alleged in the second dispute that words spoken by the offender about 'filling up' the boom with "four hundred" set out in [28(f)(i)] was a reference to the offender knowing that the drugs concealed in the boom had a gross weight of about 448kgs. The parties provided me with the relevant portion of the recording and a transcript of what was allegedly said by Mr Maaz and the offender at [28(f)(i)] of the Agreed Facts. The recording was very faint, there are competing sounds made by birds and there are large parts of it that are inaudible. Whilst I could identify some of the words set out in the transcript, those words were not put in context by being able to understand the whole conversation. I note that at [25(h)] of the Agreed Facts it was set out that the offender asked Mr Maaz if he thought that the drugs would be throughout the whole boom, which I accept is inconsistent with him knowing the amount of drugs he was looking for. I am not satisfied beyond reasonable doubt that the words spoken by the offender indicated that he was aware of the gross weight of the drugs.
11. The prosecution alleged that the offender's comment set out in [28(f)(ii)] of the Agreed Facts to the effect that the drugs were not cocaine, indicated that he was aware of identity of the drug and that there were to be future shipments. The statements recorded are not in context. I do not accept that the exclusion of one type of drug proves the existence of another. The comments may have been made sarcastically or in jest or inquisitively. I am not satisfied beyond reasonable doubt that the comments of the offender set out prove that he had any particular knowledge about the drugs or future shipments.
12. On 20 May 2020, the police covertly examined the excavator boom and identified three locations on the boom where black stickers marked 'Elmaaz' had been applied to locations where Mr Maaz and the offender had accessed the excavator boom in an attempt to locate the MDMA.
13. That same day, Mr Maaz contacted a printing business, Class Digital Print & Design, and requested the fabrication of two large orange stickers.
14. On 21 May 2020, Mr Maaz attended the Blacktown site and again lowered the excavator boom into the trench. Mr Grech attended the site and assisted Mr Maaz with further welding on the boom, repairing the boom's access areas. Mr Maaz applied orange stickers to the boom. Mr Maaz complained that the orange stickers were not the same colour as the excavator. He later called Class Digital Print & Design to complain that they were not the correct colour.
15. On 28 May 2020, AFP covertly examined the boom of the excavator and identified three locations where orange stickers had been applied, over the same area where Mr Maaz and the offender had accessed the boom.

The United Kingdom Syndicate

1. On 15 June 2020, UK law enforcement arrested two UK citizens, Stefan Baldauf and Danny Brown, for their alleged involvement in organising and overseeing the purchase of the excavator, packing it with MDMA and shipping it to Australia from the UK.
2. As a result of the arrests and subsequent execution of search warrants for the residential premises of Mr Baldauf and Mr Brown in London, the following digital and physical evidence was located by investigators: 1. Encrypted messages between European syndicate members via the "Encro" encrypted chat platform; 2. Images and documents on digital devices being sent between Mr Brown and Mr Baldauf, including: 1. invoices for the Doosan excavator from Hutchinson Engineering Services Ltd; 2. a screenshot stating that a ship had arrived in Brisbane on 13 March 2020 and its associated movements to Ritchie Bros Auctioneers on 9 April 2020; 3. digital images of the Doosan excavator at the Blacktown construction site, including an image of a large fabric screen, marked "Elmaaz" erected around the excavator, sent by a person using codename "Z"; 4. digital images of the excavator with cut outs and voids within the boom whilst at the Blacktown construction site; 5. a waybill relating to the excavator's movements from the UK to Australia; 6. hand-drawn illustrations of where the concealment in the boom once was and narrative to explain where to look and where to cut into the excavator's boom; 7. hand-written notes relating to the costs of shipping the excavator to Australia; and 8. references to "they" and "Z" being unable to locate the items secreted within the excavator boom.

Search of Mr Maaz's Residential and Business Premises

1. On 9 December 2020, the AFP executed search warrants on residential and business premises associated with Mr Maaz. Police located and seized the following: 1. the excavator at the Blacktown construction site; 2. $30,000 AUD in cash bundled in rubber bands and in a black nylon bag, under the driver's seat of a vehicle used by Mr Maaz; 3. Mr Maaz's two mobile phones; and 4. expensive watches belonging to Mr Maaz.

Search of the Offender's Residential Premises

1. On 9 December 2020, the AFP executed a search warrant on the offender's residential premises. Police located and seized the following: 1. Various bundles of Australian currency, located in different parts of the house, including: 1. eight bundles of Australian currency in heat-sealed bags in the master bedroom. Each bundle contained approximately $100,000, with the total value of the bundles $799,940; 2. bundles of Australian currency in a safe in the master bedroom, totalling $235,000 (taken into account on a s 16BA Schedule); 3. one bundle of Australian currency on a bed totalling $6,200; 4. one bundle of Australian currency in a blue purse in a concealed dresser compartment, totalling $30,700; 5. one bundle of Australian currency in a pink purse in a concealed dresser compartment, totalling $31,950; 6. two bundles of Australian currency in a wardrobe totalling $7,150; 7. three bundles of Australian currency, located in a bedside cabinet, totalling $15,230. 1. Numerous telephone handsets, including the following: 1. an encrypted Blackberry phone, which police found in a kitchen sink full of water; 2. a Vodaphone device located in a box in the garage; 3. a Vodaphone device located in a box in the garage. This device had been removed from its original packaging, with the plastic and other security seals removed. The device was in used condition and had "#Z" handwritten in ink on the back of the device. No data could be retrieved upon forensic analysis of the device; 4. an iPhone in a drawer in the kitchen; 5. a Nokia C2-01 on the kitchen bench; 6. a black iPhone on the ground in the master bedroom. This was identified as the offender's personal phone; 7. a dual-sim Samsung mobile, located in a bag belonging to the offender. This phone was identified as an ANOM encrypted device and could not be forensically accessed by law enforcement. The offender denied ownership of the phone; and 8. a Blackberry mobile, located in a bag belonging to the offender. 1. Expensive watches and jewellery; 2. A number of vehicles, including the following; 1. a Vespa scooter; 2. a Harley Davidson; 3. a Ducati 1198 motorcycle; 4. a Toyota Corolla; 5. a Toyota Hiace van; and 6. a Mercedes AMG.

Arrest and interviews

1. On 9 December 2020, the AFP arrested the offender and Mr Maaz. They were provided the opportunity to give a recorded interview.
2. During his interview with police, the offender denied owning any phone other than an iPhone, although not the iPhone discovered by police during execution of the search warrant. He reported being self-employed and the director of his own plumbing business.
3. In the interview, the offender estimated that he earned $1000 per week as a wage from his company. He stated that his savings were "in bits and pieces everywhere", meaning in cash and bank accounts. He estimated that he has approximately $5000 in savings in his bank account as well as other
4. He reported knowing Mr Maaz for about four or five years. He reported working for Mr Maaz in the past, completing plumbing contracts for him.
5. The offender reported that he was aware of Mr Maaz's construction project at the Blacktown site. He stated that he had been asked by Mr Maaz to provide a quote for plumbing for the project but had not done so yet. He stated that he had been to the Blacktown site in preparation for providing a quote.

Use of AN0M Communication Platform

1. AN0M is an encrypted communication system that offers private communication between users. Such encrypted platforms are installed in mobile telecommunications devices and may prevent communications on the platform from being lawfully intercepted. Since October 2018, the AFP have been conducting an investigation named Operation Ironside into use of the AN0M communication network. The offender was identified by the AFP during this investigation as a user of two mobile phone devices that supported the AN0M system.
2. AN0M Device 1 used the handle "Froggy", which then changed to "Lè Frog" AN0M device 2 was identified as being the Samsung phone located in the offender's bag during the search warrant conducted at his house. This device used the handle "Lè Frog". The offender was identified as the sole user of both the "Froggy" and "Lè Frog" handles.
3. The prosecution contended in the third dispute that I could infer from this conversation that Mr Maaz was subordinate to the offender because the offender was being told to direct Mr Maaz about his encrypted devices. On the assumption that the person referred to as "b1" was Mr Maaz, I am not satisfied beyond reasonable doubt that this evidence assists me to place the offender and Mr Maaz in the hierarchy. The evidence does not support this contention and is to the opposite effect. There is a plethora of evidence as to Mr Maaz's involvement in the lead up to the offence and no evidence of the offender having any involvement at all before 18 May 2020. I am not satisfied that this evidence demonstrates that the offender had a line of communication with the UK arm of the syndicate in May 2020.
4. The prosecution contended in the fourth dispute that [44] of the Agreed Facts demonstrated that the offender was in the business of money laundering. The evidence did not demonstrate that it was the video sent by the offender was of him counting the cash. There was a cash counting machine was found on the execution of the search warrant, but there was no evidence that it was the machine depicted in the video. The offender did not submit that the money laundering offence was an isolated offence. I am not satisfied that the content of [44] of the Agreed Facts aggravates the money laundering offence, in anyway, other than that which is conceded that it was not an isolated offence.

Offender's Case on Sentence

1. The offender tendered the following documents: 1. psychological assessment report by Dr Kala Ram dated 27 November 2022; 2. offender's letter of apology; 3. affidavit of Bianka Ann Al-Alam (sister) dated 30 November 2022; 4. affidavit of Brad Bezzina (friend) dated 4 December 2022; 5. affidavit of Jamie Paul Bezzina (friend) dated 4 December 2022; 6. affidavit of Abdul Tlais (solicitor) dated 2 December 2022; 7. character reference by Hadi El-Azzi (colleague) dated 1 December 2022; 8. character reference by Angelique Pappas (friend) dated 1 December 2022; and 9. character reference by Mary Zegura (friend) dated 1 December 2022.
2. The following is a precis of the evidence relied upon by the offender.
3. The offender was born in Auburn in 1978. He is the eldest of three children born to his parents' union.
4. His parents migrated to Australia from Croatia when they were teenagers.
5. The offender's father was a heavy drinker and was physically and emotionally abusive towards him when he had been drinking. The offender reported that his father was never physically abusive towards his siblings, as whenever they got into trouble, he would take responsibility and be beaten instead. He maintained that he has always been very protective of his siblings. In her affidavit, Bianka Al-Alam, the offender's sister, also recalled the physical abuse experienced by the offender when their father had been drinking. She stated that their father would take all his anger out on the offender.
6. The offender also stated that he would try to intervene when his father was abusive toward his mother. He recalled memories of his father on occasion beating him with a fan belt or electrical lead.
7. The offender recalled occasions where his parents fought about his father's alleged affair. He reported that once, on a family holiday, he found his mother in a distressed state after an argument with his father, and she told him that she wanted to take her own life.
8. The offender attended school from Kindergarten to Year 10. He reported that he did well at school and had friends. He reported that he rarely got into trouble at school because he feared his father's punishment.
9. After leaving high school, the offender commenced a plumbing apprenticeship with a family friend. At age 20, the offender worked for a plumbing company in a high-rise building. The offender was eventually promoted to leading hand on the site and was responsible for supervising 30 employees.
10. At age 23, the offender started his own plumbing business. After his brother's death in 2009 the offender did not work for two years, returning to his business in 2011. In 2019-2020, when his drug use was at its worst, the offender reported that he was under significant pressure at work. The offender continued to run his business until his arrest in December 2020, but his drug use significantly impacted his performance at work.
11. The offender met his ex-wife at age 27 and they married five years later. He reported that they had issues conceiving.
12. In or around 2017 his ex-wife fell out with the offender's family. The offender reported that she believed his family were manipulating him and were taking advantage of him financially.
13. Following his arrest, their relationship progressively deteriorated. In October 2022, the offender's ex-wife filed for divorce and they no longer have contact.
14. The offender reported that he has never consumed alcohol because of his father's alcohol use issues. He reported that he took anabolic steroids from ages 17-22, and then from mid-20s until age 30. The offender reported experimenting with MDMA at age 17-18, using it socially when he would go to night clubs and festivals.
15. At age 30, following his brother's death, the offender began using cocaine once per week. His use soon escalated to one ounce per week and he would use cocaine daily. He hid his cocaine use from his wife. Once the offender recommenced work, he began taking Valium and Xanax daily to deal with the stress of work. In the year prior to his arrest, the offender reported that his cocaine use was at its worst. Ms Al-Alam stated that, as a result of his drug use, the offender became paranoid, recalling occasions where he experienced hallucinations of men with guns entering the family home. She also reported that there were periods where he would lock himself in his room for days at a time or would not come home for days at a time.
16. The offender has been drug-free since his arrest in December 2020.
17. The offender's brother died in a motorcycle accident in 2009. The offender knew of his brother's association with an OMCG. In the year prior to his death, the offender noticed that his brother was partying more and spending more time away from his home and his wife. The offender disclosed to Dr Ram that his brother began using ice in this period, which became a source of tension in their relationship. The day before his brother's death, they got into a physical altercation where the offender told him that he was "dead" to him. The offender reported to Dr Ram that he continues to feel guilty about his final encounter with his brother.
18. The offender was asked to identify his brother's body in hospital after his death, which greatly impacted him.
19. The offender reported that at his brother's funeral, there were many OMCG members. Following his brother's death, the offender reported to Dr Ram that a high-ranking member of the gang approached him and informed him of a significant debt that his brother owed to the organisation. He was told that the debt would have to be paid.
20. Shortly after the funeral, the offender was contacted by the Crime Commission, who advised that his brother had been a member of a criminal organisation and accordingly, they would be seizing his assets which they believed to be purchased using proceeds of crime, including his house and car. The offender sought legal advice and took out a loan to pay the Crime Commission.
21. Several months later, the OMCG contacted the offender again and reportedly told him that he needed to complete jobs for them to pay off his brother's debt. The offender refused to be involved in any crime involving drugs but agreed to "count money" and "hold money" for the OMCG. During this time, the offender reported witnessing extortion and significant violence at the hands of gang members, which made him fearful of being non-compliant. He felt responsible for paying off his brother's debt and did not want his family involved. The offender reported after seven years he had paid off $1,000,000 of his brother's debt, but still had a portion remaining.
22. In 2016, there was reportedly a change in the OMCG's leadership and the new leader was less lenient. During the offender's first meeting with the new leader, he was reportedly "manhandled". The offender reported that they threatened that if he did not follow their instructions to complete a task, they would take his car and anything else that they wanted. The task was to pick up, which he suspected would be drugs and transport them somewhere. He understood that a large portion of his brother's debt would be cleared once he completed this task.
23. The offender reported to Dr Ram that he did not know precisely what Mr Maaz's affiliation with the OMCG was and reported meeting Mr Maaz when doing a plumbing job for him. He maintained that he did not know the quantity of the drugs that would be stored in the excavator until, after not being able to find them, he received a message from an OMCG member specifying the quantity that they should've found in the machine. The offender told Dr Ram that he had contacted Mr Grech to weld and patch the excavator so that they would avoid detection. The offender disclosed to Dr Ram that he had helped Mr Maaz on a second occasion to locate the drugs in the excavator, but after that decided that he no longer wanted to assist.
24. The offender told Dr Ram that an OMCG member had dropped off a bag of money for him to "hold", totalling $1,200,000. The offender told Dr Ram that the jewellery and watches found by police at his home were his brother's.
25. In September 2022, a close friend of the offender died of a heart attack. The offender stated that this friend was the next closest person to him after his brother.
26. The offender has never been formally diagnosed with mental illness but reported experiencing anxiety and depression for periods during his childhood and adulthood. He reported attending counselling sessions whilst in custody and found these sessions very beneficial. He expressed desire to continue counselling sessions whilst in custody and upon his release.
27. The offender had a car accident in late 2017. He sustained a slipped disc and pinched nerve in this accident.
28. In late 2018, the offender was diagnosed with rheumatoid arthritis. He reported losing most of the strength in his hands. The offender reported that, between March 2022-October 2022, his condition further deteriorated. He is currently receiving a weekly injection which has slowed progression of the disease and he has noticed an improvement. Ms Al-Alam and Brad and Jamie Bezzina depose that they have observed the offender's physical deterioration in custody; they report that he has lost mobility in his hands, has difficulty walking, and has lost weight.
29. Dr Ram opined that the offender has Prolonged Grief Disorder, which is a prolonged maladaptive grief reaction that occurs at least twelve months after the death of someone with whom the bereaved had a close relationship. The offender has intense feelings of guilt associated with his brother's death. Dr Ram also opined that the offender has major depressive disorder with anxious distress and substance misuse.
30. The offender expressed desire to continue his drug abstinence and to start a family.
31. The offender expressed remorse to Dr Ram. In their affidavits, Ms Al-Alam, Brad Bezzina and Jamie Bezzina all deposed that the offender has expressed remorse for his actions. Mary Zegura also stated that the offender regretted his actions in her character reference.
32. Whilst in custody, the offender has had regular contact with his family and friends. Ms Al-Alam reports calling the offender in prison three times per day and visiting him in-person twice weekly. His parents visit him in person once a month. Ms Al-Alam states that she has seen a marked changed in her brother's attitude in custody, in that when issues arise, he attempts to maintain a positive attitude and move on from them.
33. In custody, the offender has been working in the ground maintenance team. The workload for this team has increased significantly to meet COVID-19 hygiene protocols. He has received positive feedback from correctional officers for whom he has performed tasks, who observe that he is always respectful and willing to assist.
34. In late November 2022, the offender was approached by another inmate who demanded that he pay him $80,000. The offender refused and the next day, this inmate and another person entered his cell and assaulted the offender. The inmate was not known to the offender. The offender made a contemporaneous complaint of the extortion attempt to his family and solicitor.
35. During his time in custody, the offender has spent a significant number of days in isolation due to the COVID-19 pandemic, documented in Mr Tlais' affidavit.

Nature and circumstances of the offences

1. The agreed facts, whilst comprehensive, do not allow me to make complete findings as to the role the offender played in the attempt to possess the drugs and it is difficult to be satisfied beyond reasonable doubt of a number of matters. What follows is the best I can make of the available information.
2. The evidence proves that the offender was involved in attempting to possess the drugs between 18 May 2020 and 20 May 2020. There was no surveillance evidence or documentary evidence to prove that the offender had any involvement in the importation of the excavator, or any involvement at all prior to 18 May 2020. His participation involved cutting into the boom to try to locate the drugs. It is fair to say that the bulk of his involvement was as a labourer. He had access to a diagram of where the drugs were supposed to be, but I cannot infer that he had access to the diagram because he was at a particular level of the hierarchy. He spoke to unknown others about where to locate the drugs, which is consistent with the conclusion that he was directed by others to do what he did. The offender engaged Mr Grech to come and weld the cuts to repair the boom, but I cannot infer that he did so by reference to his position in the hierarchy. There is no evidence as to who paid Mr Grech for his work. The role of the offender in the attempt to possess the drugs was highly visible and he was more likely to be detected than others involved in the operation.
3. The offender told Dr Ram that he became involved in attempting to possess the drugs to pay off a debt owed by his brother to an OMCG and that he did so after being threatened and to avoid his family having to deal with the issue. He said that he only became aware of what he was being asked to do on 18 May 2020 after meeting Mr Maaz, who he knew from previous legitimate business dealings. He told Dr Ram that he sought instructions from a member of the OMCG when they could not find the drugs and that at that time he became aware that a large quantity of drugs was involved. The offender did not give evidence in the sentence proceedings and these assertions are untested. However, there was other evidence that the offender was very close to his brother and protective of his family. There was no evidence that the offender would be involved in the dissemination of the drugs if they had been located or that he stood to receive a financial benefit.
4. The amount of the drugs at about 350 kgs pure was substantial. The amount was more than 690 times the commercial quantity. I am satisfied that by reference to where the drugs were said to be located that the offender knew that the quantity involved was substantial and had a substantial value. I do not accept that the offender knew the actual quantity of, or the identity of the drug involved.
5. On all of the evidence, I am satisfied that the offender played a relatively minor but essential role as a labourer in the attempt to possess the drugs. His involvement in the scheme of the operation was well below that of Mr Maaz. What he told Dr Ram is consistent with the objective evidence that the offender became involved at the request of unknown others to undertake a particular task being to assist Mr Maaz to cut open the boom and remove the drugs. This conclusion is supported by the tenor of the recorded conversations between the offender and Mr Maaz.
6. The cash the subject of the proceeds of crime charge was located in heat sealed bundles and labelled $100K "Froggy" a reference to the offender. No heat-sealing equipment was located at the offender's residence and I find that it is unlikely that the offender was responsible for packaging the cash and labelling it with his own name. The amount of the cash at $799,400 is well above the $100,000 threshold, but there is no upper limit for offences of this kind.
7. The offender told Dr Ram that he had been given the cash the night before and told to hold it on behalf of the OMCG for safe keeping, but I note that there is a discrepancy between the sum of the cash seized and the sum he told Dr Ram he was asked to hold. The prosecution did not allege that the money belonged to the offender. The relevant dealing was possession of the cash and the offender believed that the cash was the proceeds of crime. The offender accepted that the money laundering offence was not isolated offending, telling Dr Ram that his efforts to clear his brother's debt took a considerable period of time. This admission to Dr Ram was significantly adverse to his own interest and I accept it as a truthful statement.
8. Taking into account all of the evidence, I am satisfied on the balance of probabilities that the offender became involved in the offences partly as a result of non-exculpatory duress to clear his brother's debt with the OMCG and to protect his family from them.
9. I have taken into account the maximum penalty for the offences.

Contrition

1. The offender has expressed contrition to the authors of the reports, his family, his referees and the Court.
2. His plea of guilty also indicates remorse. I am satisfied that the offender is genuinely contrite.

Specific deterrence

1. There is a need for specific deterrence, but it is significantly reduced for the reasons that follow. The offender has good insight into the circumstances that led to his offending conduct. He has been a model prisoner, undertaken drug rehabilitation courses available to him and remained abstinent. He is receiving treatment for his mental health and is actively engaged with his psychologist. He has good support from his family, employer and friends in the community. He has prosocial plans for the future. Dr Ram assessed the offender as a low risk of reoffending and I am satisfied on the evidence that he is unlikely to reoffend.

General deterrence

1. General deterrence is a fundamental consideration in serious drug and money laundering offences. The sentence must be of such severity to deter others from similar activities. The sentence must signal to would be participants in drug offences that the financial rewards will be neutralised by the risk of severe punishment.
2. The weight to be given to general deterrence can be reduced to some extent in this sentencing exercise by reference to the offender's mental condition and the non-exculpatory duress he endured, in that he is an inappropriate vehicle for general deterrence.

Character, antecedents, age, physical and mental condition

1. The offender has no prior criminal record. His referees and family considered him to be person of good character, but this must be tempered against his own admission of prior uncharged offending. He has an excellent work ethic and has demonstrated this in the community and in prison.
2. The offender had a difficult upbringing marked by physical and emotional abuse as a child and exposure to domestic violence. I accept Dr Ram's opinion that these matters made the offender susceptible to anxiety and depression. From about 2010 onwards, the offender suffered from prolonged grief disorder, anxiety and depression. He began to use cocaine and to abuse prescription medication to deal with his mental conditions. I accept Dr Ram's opinion that there was a causal connection between his mental condition and his offending conduct. For all of these reasons the offender's moral culpability for the offences is reduced.
3. The offender suffers from rheumatoid arthritis and is significantly disabled by it. His condition is making incarceration more difficult for him, in that he needs care that is not ordinarily available in custody and he cannot defend himself against other inmates.

Prospects of rehabilitation

1. The offender has excellent prospects of rehabilitation. He has good family and community support and has demonstrated that he is committed to rehabilitating himself. He continues to engage with a psychologist in custody and is making good progress with his mental health. I am satisfied that the offender has reached a cross-roads in his life and that significant leniency is justified to facilitate the continuation of his multi-faceted rehabilitation.

Comparable sentences

1. I have had regard to the comparable cases referred to me by the parties and I have taken into account the limitations of that exercise: Hili v The Queen (2010) 242 CLR 520.

Other matters

1. The offender has been in custody since his arrest on 9 December 2020 and the sentence imposed will be backdated to that date to take into account his pre-sentence custody.
2. I have taken into account the conditions imposed on prisoners in New South Wales in response to the COVID-19 pandemic and the impacts those conditions have had on the offender. I accept that those conditions will continue for some time into the future.

Penalty

1. I have had regard to s 17A Crimes Act 1914 (Cth) and I am satisfied having considered all other available sentences that no sentence other than imprisonment is appropriate in all the circumstances of the case, for the reasons I have given in this judgment.
2. The offender is convicted.
3. For the s 400.4(1) offence and taking into account the matter on the s 16BA schedule, I impose a term of imprisonment of 3 years to date from 9 December 2020, expiring on 8 December 2023.
4. For the s 307.5(1) offence, I impose a term of imprisonment of 6 years to date from 9 December 2021, expiring on 8 December 2027.
5. Pursuant to s 19AB(1) Crimes Act 1914, I fix a single non-parole period of 4 years to date from 9 December 2020, expiring on 8 December 2024. The offender will be eligible to be released on parole on 8 December 2024.
6. This is a total effective term of imprisonment of 7 years with a non-parole period of 4 years.
7. Mr Lipovac the sentences I have imposed mean that you will be obliged to spend a minimum period in custody of 4 years. This means that, having regard to the time you have already spent in custody, you will be eligible for release on parole on 8 December 2024.
8. It will be a matter for the Federal Attorney General as to whether you will be released on that day. It may depend upon your behaviour in prison. It will also be a matter for the Attorney General to determine whether any conditions should apply to you while you are at conditional liberty on parole after 8 December 2024. If you are released on that day, you will remain on parole for a further period of 3 years. If you were to breach your parole, you may be required to return to prison to serve the balance of the term of your sentence.

Amendments 30 January 2023 - 18 February 2020 has been changed to read 18 May 2020 in [49], [87] and [88]. 28 June 2024 - Publication restriction lifted. 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: 28 June 2024