Two serious offences
9Both the Commonwealth and State offences carry maximum penalties of, as I have said, life imprisonment. It is important to note that the maximum penalty for the Commonwealth offence becomes operative when amounts of more than two kilograms of cocaine are imported. So far as the State offence is concerned, the large commercial quantity figure cuts in at one kilogram. The State offence also carries with it a standard non-parole period of fifteen years. Those maximum penalties and the standard non-parole period, where applicable, act as guides to the exercise of my sentencing discretion. They indicate the seriousness with which Parliaments of the Commonwealth and New South Wales regard offences of the type now before me.
10When I formulate my sentence for the State offence I will also take into account the matter on the Form 1 by giving greater weight to considerations of personal deterrence and the community's entitlement to exact retribution for what was, in itself, serious offending.
11As will be clear from my findings, the supply offence does not fall within the middle of the range for objective seriousness for offences of its type. It would, in my opinion, fall at the very bottom of the range. This provides one reason for departure from the standard non-parole period, as does the plea, the subjective case, a finding of special circumstances that I will make, the need to take note of the other sentence to be imposed for the Commonwealth offence and the principles of totality.
12Every offender and every offence is, in a way, individual. Here, the sentence must be based on the Agreed Facts and the matter specific to the offender. Others apprehended following Operation Schoale have been sentenced by me. However, the facts in each case differ from the others. For example, the Agreed Facts here speak of two co-offenders being involved in the supply of firearms. Those co-offenders were not sentenced for offences of that particular type. Here, the offender faces the same two principal offences as the man, Moradian, but again the Agreed Facts differ from those agreed or proved against him. There is no rule of law that co-offenders be given the same sentence for the same offence. All things are rarely equal. Nevertheless, those other sentences act as a guide to the exercise of my sentencing discretion here. I take them into account. I have endeavoured to maintain due proportion between them. I note in particular the sentences imposed in Moradian [2011] NSWDC 130; Arja [2011] NSWDC 131; Johnson [2010] NSWDC 242, Peisley [2010] NSWDC 240 and Saliba [2010] NSWDC 277 (the offender's wife).
13I also note what occurred during the sentencing of two other men, Mato and Rusu by Judge Frearson (unreported, NSWDC 3 September 2010). Although no question of direct parity arises, there is a need to consider proportionality with this sentence. Those matters, however, involved multiple importations totalling over 200 kilograms of cocaine and those two offenders went to trial. Judge Frearson, there, characterised their roles as principals in the conspiracy. Here, there was a relatively sophisticated single importation using the same methods as those used by Mato and Rusu but there was a plea of guilty, a measure of co-operation and the Crown have agreed that the offender's role was subordinate to a person described as "a middle manager".
14So far as is relevant, I must also have regard to the pattern of sentencing for like offences. The Court of Criminal Appeal has recently set out the relevant principles for assessing objective seriousness of importation offences and referred to a number of cases to assist judges in the exercise of their sentencing discretion. I note Nguyen and Pham (2010) 205 A Crim R 106, De La Rosa (2010) 205 A Crim R 1 and Holland (2011) 205 A Crim R 429. The summaries in De La Rosa are very helpful but I must look to the facts as agreed here rather than simply make an attempt to compartmentalise this offender's crimes.
15I must sentence the offender for two offences. The purposes of sentencing, although one is a Commonwealth offence and one is a State offence, apply equally to both offences. It would be wrong to punish the offender twice for any elements and matters that are common to both. I must, however, fix an appropriate sentence and non-parole period for each offence and then consider questions of cumulation or concurrence as well as, of course, the question of totality. Factors relevant to the fixing of the term of the sentence are the same as those for the fixing of the non-parole period but the weight given to them may differ. The individual and total non-parole periods must reflect the minimum time period in all the circumstances of the offences this offender must spend in custody before being eligible for release. The total non-parole period must also maintain the benefits given in each sentence for the guilty pleas.
16In determining what sentence is to be imposed I must have regard to what is set out in s 16A of the Crimes Act 1914 (Cth) and ss 3A and 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
17Significant weight must also be given in the importation matter to principles relating to general deterrence, although that term is not used in s 16A. The principles in both Acts and the general common law recognise that, given the difficulty of detecting offences such as these and the great social consequences that are attendant on the illicit drug trade, the Court is compelled to attempt to neutralise the potential rewards by the risk of certain and severe punishment.
18As indicated, the supply shared a number of critical elements with the importation as the same cocaine was involved. The significant overlap in the criminality involved means most of the objects of sentencing apply equally to this offence and the importation. Given the way I will structure the sentence the supply offence's non-parole period has been subsumed by the non-parole period for the Commonwealth offence. I am, however, obliged to fix separate sentences for each offence and consider relevant New South Wales sentencing principles when fixing the sentence for the supply offence.
19I now turn to an assessment of the offences' objective seriousness. This requires an examination of the Agreed Facts. Those facts reveal that Mr T, who worked for an international freight business and whose identity cannot be revealed, had assisted Mato and Rusu with their importations of cocaine. The offender, together with his co-offender Alen Moradian, employed a private investigator to find Mr T. In October 2006 they paid Mr T a visit at his home. The visit so concerned Mr T's wife that she called the police. The two men left before the police arrived leaving $500,000 with Mr T as "a gesture of goodwill". Further meetings took place during which an illicit business proposition was put whereby Mr T would facilitate the importation of cocaine by providing relevant forged documents and the services of the company he worked for. The offender met with Mr T on a number of occasions with the offender, Moradian, and another co-offender, Mr Johnson. A further $1 million was paid to Mr T. A foreign exchange dealer was used by the offender and Moradian to change another $1AUD million to US dollars. This sum was involved in part-payment of the cocaine to be imported.
20Associates of Mr Moradian sourced the cocaine in the US. It was secreted in one kilogram blocks and packaged and sent via Mr T's company to Australia. In December 2006 the package arrived as a shipment labelled "Concrete Blades". It followed the same procedure adopted by Mr T, Mato and Rusu with their conspiracy. After the package had cleared customs Mr T took it to Homebush. Moradian met him there and directed him to a townhouse at Newington. There the package was unpacked. Although the townhouse was occupied by another co-offender, John Youkhana, this offender, as the Agreed Facts reveal, had an association with the premises.
21In the Moradian matter I examined the evidence relating to the amount of cocaine imported. It is agreed in these proceedings that the importation yielded a pure weight of cocaine of between forty to sixty kilograms, based on a purity of sixty-one per cent. It is important to note again the commercial quantity of cocaine required to found a s 307.1 charge and the maximum penalty of life imprisonment is two kilograms.
22As to the offender's role, the Agreed Facts note, so far as the s 307.1 charge is concerned, and I quote from those facts:
"The offender was subordinate only to Moradian who was a middle level manager. The offender's role and participation was significant to give effect to the importation. His conduct encompassed the following: engagement of the services of the private investigator to identify and locate Mr T; participation in the initial meetings where Mr T was recruited to take part in the importation for them in preference to Mato and Rusu. Those meetings included the meeting on 27 October 2006, the meeting at the Chinese restaurant at Fox Studios and the continuation of that meeting at Johnson's premises. The offender did not take part in any subsequent discussions between Moradian and Mr T where the furtherance of the importation was discussed, including arrangements such as the weight of the importation and payment of money to Mr T for his services. The offender was associated with various rental properties used by the organisation in relation to the importation, receipt and unpacking of the cocaine partially in the presence of Mr T and the presence of Moradian; the organisation of the finances, including the facilitation of exchange of large amounts of Australian currency into United States currency to fund the importation; the collection of some of the proceeds derived from the importation".
23He is to be sentenced on that basis.
24Here, a very high commercial quantity of the drug with a correspondingly high street value was imported. The offender played a senior role in an enterprise that was well planned and of some sophistication. His role was important to its success. He took a degree of risk with an expectation of large reward. His motivation was personal profit and greed.
25I am anxious not to apportion a single label to this offender. The matters just discussed reveal he did very important things to facilitate the importation. Some of the things he did were critical to that importation. He expected, and received, a substantial reward. He wanted the lifestyle; the underworld prestige. His words from his letter to me are that he was caught up in the hype. He wanted the money and he wanted the goods that are associated with such large sums of money. It would appear that he wanted to play, and did play, the role of a major drug dealer. I find his motives were purely selfish and for greed. He took risks but, as he now says, he belatedly realises greater risks are taken by those who used the product he imported.
26As to the supply offence, the Agreed Facts reveal that one kilogram of cocaine mixture was sold by the offender and Moradian to Mr T on 20 December 2006 for $AUD90,000, about half the usual price. This is the only supply charged against the offender. Following any large illicit drug importation there is an expectation the drug imported will be supplied. Here, the actual supply charged appears to relate to a spontaneous gesture to a fellow offender. While clearly sold by both men to Mr T for profit, it was at a reduced rate and appears to me more as a gesture of goodwill. There is no evidence that the offender, unlike Moradian, chose to increase his profit or extend his criminal activity by acting as a wholesaler of the drug he had imported.
27I note that for offences pursuant to s 25(2) and the punishment provision in s 33 the large commercial quantity of cocaine which would attract the maximum penalty of life imprisonment is one kilogram. While a very serious offence in itself, that fact, and the other matters relating to the supply to Mr T, place this matter at the very bottom of the range for offences of its type.
28As it occurred as an incident of the importation a considerable degree of concurrency of sentences is required. When I consider the question of concurrence I take into account the compounding effects of long sentences. When I consider the sentences as a whole, and individually, I take into account those compounding effects: severity is not simply a product of length of sentence, severity increases at a greater rate the longer the sentence.