R v Martin

Parties: Commonwealth Director of Public Prosecutions
(the Crown)
Jack Martin (the offender)

Representation: Counsel: Ms P McEniery (the Crown)
Mr A Djemal SC (the offender)
Ms R McMahon (the offender)
Solicitors:
Ms E Gordon (the Crown)
Mr S Zahr (the offender)

File Number(s): 2023/00145555

Publication restriction: Pursuant to s15A of the Children (Criminal Proceedings) Act 1987 it is an offence to publish or broadcast the name of the co-offender, SH

REMARKS ON SENTENCE

1. The offender was born in 2002. He is to be sentenced for an offence of attempt to possess a commercial quantity of an unlawfully imported border controlled drug that occurred on 5 and 6 May 2023 when he was 21 years of age. This is an offence pursuant to ss11.1 and 307.5 of the Criminal Code 1995 (Cth) ("the Code"). The maximum penalty prescribed for this offence is imprisonment for life and/or 7,500 penalty units ($2,620,500).

2. The offender was arrested on 6 May 2023 and spent 237 days in custody. On 28 December 2023, the offender was released on bail and subject to house arrest for a period of 132 days. Thereafter he has been on strict bail conditions which have been varied on several occasions but have included him living at home, being subject to daily reporting, surrendering his passport, not approaching any international port of departure or applying for a passport, electronic monitoring, being subject to a night curfew, together with a guarantee by way of surety.

3. The co-offender, SH was sentenced by me on 16 October 2025 to a term of imprisonment of 3 years, and pursuant to s19AC of the Crimes Act 1914 (Cth) (“the Crimes Act”), I ordered a Recognizance Release Order effective immediately subject to conditions.

The sentence hearing

4. The sentence hearing took place on 7 August 2026. The Crown Sentence Bundle became Exhibit A. It included a lengthy statement of agreed facts which may be summarised as follows. In January 2023 anti-smuggling authorities in China detected a consignment of methamphetamine concealed inside a cast iron pulley. Between 3 February 2023 and 8 February 2023, the methamphetamine was removed, seized and substituted. It was identified as having a purity of 80.3% with a calculated pure weight of 187.1 kilograms, which is more than a commercial quantity (i.e. 750 grams). The pulley arrived in Sydney on 30 April 2023 and was subject to a controlled operation which included authorised surveillance by way of a covert listening device installed by the AFP.

5. On 2 May 2023, the offender and co-offender, Cucek were added to a group chat titled “THURSDAY JOB”. The group chat included the following messages from a person using the handle “Youngin77”:-

“Youngin77: Lads 90% sure there is a job Thursday paying 5k each cash, it’s extracting work from a concealment obviously risks like every job but these guys are smart and in the ball, will be in a warehouse in Penrith Youse can drive down together

Youngin77: It’s on an angle grinder

Cucek: Yeah sweet, I don’t get what we need to do but

Youngin77: Using a grinder to open up something that has something in it

Youngin77: If that makes sense

Cucek: Yeah sweet

Youngin77: Sweet

Youngin77: And this is never to be spoken on bro ever”

6. On 3 May 2023, the offender and the co-offender, Cucek were in another group chat also titled “THURSDAY JOB” with a person “Nike”, who was waiting on confirmation from others for details.

7. At 7:38 a.m. on 5 May 2023, “Nike” sent the offender and the co-offender, Cucek the following message:-

“Hire a truck and head to Penrith address I’ll cover truck cost and Truck Hiring it”.

8. The conversation concerned arrangements for a meeting time, together with discussion of the cost of the truck and the amounts to be paid. During the exchange, “Nike” informed the offender and co-offender that it “Will be 10K to Munster for driving and 5K to you Tony for helping with unpack.” Both the offender and the co-offender responded, “Sweet.” The user “Nike” informed the offender and co-offender, Cucek that “2 other Lads will be there to help unpack too…Tony has Addy. 1.30 arrive”.

9. At 9:43 a.m. on 5 May 2023, the pulley was delivered to industrial premises at Wetherill Park. The co-offenders, SH and James Palu were seated in a black Mazda motor vehicle parked next to the premises.

10. At 9:59 a.m., “Nike” sent the offender and co-offender, Cucek the following messages:-

“Ready to head down bros. It’s there.”

“This JOB could be 2 days work. So 5K each for each day bros.”

11. At about 10:20 a.m. a co-offender, Mounire Mokdassi, arrived at the premises driving a forklift, unlocked and opened the pedestrian door of the storage unit. Mokdassi and SH spoke to the delivery truck driver and SH signed the "Proof of Delivery Form" using a false name. Mokdassi removed the consignment from the truck using the forklift and moved it inside the storage unit. Mokdassi and SH removed the plastic wrapping from the consignment. Throughout the morning SH, Mokdassi and Palu repeatedly entered and exited the premises and a listening device captured their discussions about where they believed the consignment was concealed.

12. At about 1:10 p.m., the offender, co-offender Cucek and another male attended North Parramatta Avis Car and Truck Rental. The male signed a rental agreement for the Avis Truck.

13. At 2.09 p.m., the Avis truck arrived at the storage unit. The co-offender, Cucek, was driving the truck, and the offender was a passenger. Palu and SH made unsuccessful attempts to start the forklift and lift the pulley into the Avis truck.

14. At 2:14 p.m., the offender and Cucek were recorded discussing where the drugs were concealed within the pulley. They also indicated that they would likely stay overnight at the warehouse.

15. At about 2:38 p.m., Mokdassi returned to the premises and transferred the pulley into the rear of the truck. At 3:00 p.m., the offender and co-offender, Cucek drove the truck around the area surrounding Wetherill Park for approximately 45 minutes in an exercise of counter-surveillance in order to determine whether there was any police interest in the pulley. Mokdassi followed in his own vehicle.

16. At 3:09 p.m. the truck parked on Highland road, in front of a silver Ford Ranger utility. The car driven by Mokdassi parked behind the truck. An unknown male exited the Ford Ranger and walked towards the truck. At 3:11 p.m., “Nike” messaged a group chat titled “YO” as follows:-

Nike: Youse pulled over aye

Martin: Yeag

Nike: Just jump out

Nike: And wait for message

17. At 3.13 p.m., the offender and the co-offender, Cucek, exited the truck and stood at its rear with the cargo tray doors open and at 3:18 p.m. the unknown male drove away in the Ford Ranger. At 3:32 p.m. the offender and co-offender, Cucek drove away in the truck and Mokdassi continued to follow in his own vehicle.

18. At 3:40 p.m. Palu and SH returned to the premises and SH was observed to open the pedestrian gate and the pair entered the premises. The truck driven by the co-offender, Cucek with the offender as a passenger, arrived shortly thereafter and Mokdassi used a forklift to move the pulley back into the premises. At 4:00 p.m. all parties departed.

19. At 4:40 p.m., the co-offender Cucek had a conversation with “Nike” as follows:-

Nike: Yo lads we gotta stay over night

Nike: That means another 5K

Nike: Each

Cucek: We don’t have clothes or anything

Nike: On top of the 3K to Tony 2K truck 6K Munster

Nike: Can Youse go grab from Kmart

Nike: I’ll pay for them all

Cucek: We need to sort a bigger truck

Nike: They are sorting it bro

20. At 5:30 p.m. the offender and co-offender, Cucek entered the premises and had a conversation discussing how to “crack into” the consignment, and at 6:00 p.m. they both departed in the Avis truck.

21. At 7:35 p.m. the offender and co-offender, Cucek returned and were observed removing inflatable mattresses and bedding. Mokdassi returned to the premises at 7:40 p.m. and entered the storage premises with the offender. The co-offender, Cucek sent “Nike” images of the makeshift beds set up in the rear of the truck. At 7:48 p.m. Mokdassi departed the premises. The offender and co-offender departed the premises at 8:00 p.m. and returned at 10:07 p.m. and slept in the cargo hold of the truck overnight.

22. On 6 May 2023, at 6:30 a.m. the offender and co-offender departed in the truck and shortly thereafter Mokdassi unlocked the storage premises and entered the unit. The offender and co-offender returned at around 6:55 a.m. and attempted to cut into the pulley using angle grinders. At 7:25 a.m. the co-offender, SH arrived.

23. At around 8:30 a.m. the offender and Mokdassi were recorded on the listening device discussing how to cut into the pulley. Throughout the morning, police observed the offender and co-offenders Cucek, Mokdassi and SH frequently entering and exiting unit 48. All four men were observed at various times wearing protective equipment including gloves, eye and ear protection. The listening device captured intermittent grinding noises.

24. At around 9:00 a.m. “Nike” messaged the co-offender, Cucek “bro is everything sweet” and at 9:40 a.m. Cucek responded, “We can’t get through this thing I’ve been cutting for 3 hours”. “Nike” replied “Bro every day you’re there it’s another 5k”. A listening device recorded a conversation between the offender and the co-offender Cucek, during which they discussed how to cut into the pulley. At the same time, Cucek was messaging “Nike” who advised him “It’s in middle bro”. Cucek also sent “Nike” an image of the pulley.

25. Between 10:04 a.m. and 10:19 a.m., the offender and co-offender, Cucek continued to discuss where the drugs were concealed within the pulley and attempted to cut into the pulley.

26. At 10:21 a.m. police arrived and the offender and co-offender were arrested inside the premises. The offender was seated on the forklift using a mobile phone to photograph or video Cucek, who was cutting into the consignment. Mokdassi was arrested a short distance from the premises. SH was seated in the truck and arrested.

27. Exhibit A included NSW Police Force Court History Convictions which revealed that the offender had a previous conviction of robbery in company while armed with dangerous weapon in 2019 for which he received a sentence of imprisonment for 1 year and 10 months and non-parole period of 1 year imprisonment.

28. Exhibit A also included the offender’s NSW Department of Corrective Services record of conviction, sentences and appeals, chronology of bail conditions and my remarks on sentence for the co-offender, R v SH [2025] NSWDC 410.

29. Exhibit B comprised records of the Department of Corrective Services regarding the offender’s time in remand custody.

The offender’s evidence

30. The offender tendered a bundle which became Exhibit 1 comprising documents Exhibit 1.1 to Exhibit 1.11. Exhibit 1.1 was a report from Ms M Pal, clinical psychologist. Ms Pal took a family history. He was the eldest of four children in a family that relocated frequently between the Central Coast, Wagga Wagga and Sydney. His parents separated when he was 9 years of age. He lived with his father and siblings from the age of 11 to 13. His father was a drug addict and alcoholic and the offender was exposed to his father’s escalating drug abuse. He was also exposed to domestic violence which was directed towards him because he was the eldest. He described his father’s physical abuse as severe and it included being hit with golf clubs and having bruises all over his back.

31. The offender returned to live with his mother pursuant to a court order and he described her as “very caring and loving”. He has had no contact with his father since the age of 13. The author noted that the offender had completed nearly 2 years of juvenile detention, however had otherwise remained living with his mother. He had reported a 3 year relationship from the age of 21 which broke up due to his increasing drug abuse a couple of weeks prior to the index offence. He had since terminated that relationship.

32. The author took a history of a dysfunctional educational history, the offender attending 8 different public primary schools. Socially, it was difficult for the offender to fit in with his peers at school due to his frequent relocations. From age 18 he had worked with an uncle in stonemasonry but resigned due to his escalating drug use. He thereafter had sporadic casual labouring jobs but was not employed full-time at the time of the offending.

33. The offender reported completing 8 months in remand custody and then being released on bail, on condition of home detention for the first 6 months. However the conditions slowly eased over time and he was able to start a building company with a close friend in early 2025.

34. The author took a history of the offender’s drug and alcohol use. He commenced the use of alcohol at age 14 with a pattern of binge drinking on weekends. He also tried MDMA at 14, which he used on weekends. This escalated to cocaine use at age 16 and that led him to participate in the armed robbery for which he was incarcerated as a juvenile. Following release from juvenile detention, he relapsed into drug abuse at age 18 and his cocaine use escalated over the next couple of years. Whilst he was abstinent from drug abuse during his 8 month incarceration in remand custody, he relapsed in late 2025 due to the stress of these proceedings. His cocaine use led to a number of seizures and he was diagnosed with epilepsy and medicated with anti-seizure medication. This gave him motivation to abstain from cocaine and he has been abstinent since. He has also completed the Drug Offenders Program. Since his diagnosis with epilepsy he had also ceased using steroids.

35. The author also took a psychiatric history. In juvenile detention he had been diagnosed with anxiety and PTSD, for which he had been counselled. The offender also admitted that he had experienced reoccurring depression since the age of 15 years due to the various hardships and trauma he suffered whilst living with his father. He admitted his drug use escalated “to block things out”. The offender underwent mental status examination and psychometric testing. Ms Pal opined that her assessment revealed “a significantly, emotionally and socially deprived childhood where he was subjected to significant domestic violence against his mother, significant physical abuse from his father, his father’s intravenous drug use and associated neglect and frequent relocations during his developmental period. There was also severe financial hardships and the offender experienced a period of absence from his stable mother during his early adolescence which were critical developmental years. During that time he felt abandoned and believed she had died in a motor vehicle accident. The offender’s early exposure to trauma and drugs led him to turn to drugs from the age of 14 years to cope with his sense of helplessness, hopelessness, and despair. He never developed healthy coping mechanisms to regulate his emotions and he was pre-disposed to the onset of conduct behaviours which led to his contact with the criminal justice system at age 16.” She opined that he satisfied the criteria for Post-Traumatic Stress Disorder (“PTSD”), depressive disorder which was moderate and recurrent, and a cocaine use disorder which was severe but currently in early remission.

36. The author noted that he was currently in early remission for substance abuse but had completed a drug rehabilitation course whilst on bail and had demonstrated meaningful employment in his new business. She opined that he would find the custodial environment more onerous given his psychological conditions. The author also noted that he had positive pro-social factors which included the strong support of his mother, stable accommodation, a capacity for empathy, a natural age maturation process, his recent abstinence and successful business endeavours. These factors suggested a positive prognosis for the future and supported his assessment as a low to moderate risk of recidivism.

37. Exhibit 1.2 was a letter of apology from the offender dated 1 April 2026. In it, he expressed his apology to the court and for his offending conduct for which he took full responsibility. The offender outlined his history of drug abuse and the escalation of that abuse prior to the index offending. He was buying cocaine with money he did not have and had no way of paying it back. He was offered to do some work for $5,000 to pay off his debt and stated that he did not know what the work was until after he had already agreed to it and was added to group chats with people he did not know. He knew that he had gotten himself into something that he could not control.

38. The offender set out his family history and the impact of his arrest on his mother, who had worked hard her entire life to raise him and his siblings. He outlined the progress he had made starting a carpentry business with a close friend and his recent seizures and diagnosis with epilepsy.

39. The offender had voluntarily completed the Drug Intervention Program which was a 2 day course. He was spending a lot of time finding ways to keep on track and lead a healthy life and had the support of his mother. He was also trying to support a younger brother who suffered a brain injury in a motor vehicle accident. He now fully understood the dangers of drugs and the negative impact it has on innocent lives in the community and expressed that he was truly sorry for his involvement in the offence.

40. Exhibit 1.3 was an affidavit sworn by the offender’s mother on 16 Aril 2026 setting out the family history and the exposure of her children to domestic violence directed towards her and drug abuse of their father. Despite his dysfunctional early education, the offender had attended Brisbane Water High School from years 7 to 11 and did well at school obtaining decent marks. He also played sport throughout his teenage years and made a lot of friends. He played rugby league all the way through high school. When he was 17 years of age, the offender was arrested for two offences involving violence. He finished year 11 at the Baxter Juvenile Justice Centre and then dropped out of school.

41. Ms Croft noted the offender’s relationship prior to the index offending and noted that leading up to his arrest he was going out a lot but he never did drugs in front of her. Following his arrest she was shocked and disappointed and he was apologetic towards her.

42. Ms Croft outlined events since the offender’s release to bail, including his home detention, the commencement of his carpentry business with a friend and his brother’s serious motor vehicle accident. She also set out his history of seizures and diagnosis with epilepsy which led to him stopping drinking and taking drugs and to focus on rehabilitating himself. He had completed the Drug Offenders Program and she had spoken to him about his future plans.

43. Ms Croft deposed that the offender had changed for the better since his arrest and was making healthier choices for himself. She confirmed that she will continue supporting him well into the future.

44. Exhibit 1.4 comprised eight references tendered on behalf of the offender as testimonials to his character. The authors were Ashlee Knott (Aunt), Ben Smith (friend), Jason Fawcett (business partner), Jessica Sanders (friend), Kiah Gaddes (friend), Mark Matthews (football coach), Robin Sanders (friend) and Zoey Martin (sister). Each attested to the very difficult childhood experienced by the offender who was a respectful and kind young man who had fallen in with the wrong crowd but has now taken full responsibility for his actions, had expressed remorse for his offending conduct and worked hard to rehabilitate himself so as to have a productive future and not make the same mistakes. He was described as genuinely remorseful and regretful for his actions which were out of character for him.

45. Exhibit 1.5 comprised Department of Corrective Services records, evidence that he completed a barber hygiene awareness course, had completed work assignments and had access to psychological services whilst on remand custody.

46. Exhibit 1.6 was a certificate attesting to the offender’s completion of the Drug Offenders Program on 11 January 2026 and Exhibit 1.7 was information relating to the registration of Ocean Shore Homes Pty Ltd on 27 February 2025.

47. Exhibit 1.8 was a letter from Mr B Regan dated 23 July 2026, who was the boxing coach and friend of the offender for a period of 8 years. He opined that the offender was experiencing a deep sense of disappointment in himself, was regretful for his actions and the impact it had on his family. He attested to the efforts the offender had made to surround himself with more positive influences and that he had accepted responsibility for his actions and was prepared to accept the consequences.

48. Exhibit 1.9 were urinalyses results confirming no adverse, unexplained results between 7 May 2026 and 16 July 2026.

49. Exhibit 1.10 comprised two letters explaining abnormalities in those results.

50. Exhibit 1.11 comprised invoices from a business “Think again tattoo removal” for laser treatment carried out between 10 February 2026 and 14 July 2026.

The Crown submissions

51. The Crown relied on a detailed and thorough written outline of submissions in which it provided an overview of the offending conduct and submitted the only appropriate sentence is a significant term of full-time imprisonment with a non-parole period. The Crown noted that the offender entered a plea of not guilty in the Local Court on 5 March 2025 and was committed to the District Court for trial to commence on 2 February 2026. A plea of guilty was entered on 19 January 2026, two weeks before the trial was due to commence.

52. The Crown set out relevant sentencing principles for Commonwealth offences and the principles that apply to sentencing for drug importation offences, including offences of attempt to possess border controlled drugs referred to in R v Nguyen; R v Pham [2010] NSWCCA 238 at [72]. Those principles are not in issue.

53. The Crown submissions encompass the relevant factors pursuant to s16A(2) of the Crimes Act. With respect to ss2(A), the Crown submitted that the nature and circumstances of the offending required consideration of the role of the offender, the nature of the enterprise, the quantity of the drug and the offender’s motivation. Following the interception of the 4.5 tonne cast iron pulley in China, the extraction of 187.1kgs of pure methamphetamine from inside the pulley, the pulley was delivered on 5 May 2023 as part of a controlled operation by the AFP.

54. Prior to that delivery on 2 May 2023, the offender was engaged in encrypted communications with an unidentified person “Yougin77” to do the extracting work involving use of an angle grinder for which he would be paid in cash, and he agreed to do so. The offender was involved in further communications on 5 May 2023, with an unidentified person “Nike” regarding the logistics involved, which included the cost of hiring a truck, how much he would be paid and when he should head down to Sydney with the co-offender Cucek. They arrived at the storage unit in the hire truck early in the afternoon after the pulley had been placed inside the storage unit and its plastic packaging removed by others. During the afternoon they worked with the co-offenders Mokdassi and SH in an attempt to load and move the pulley to another location. The Crown rehearsed the agreed facts as to what the offender did thereafter, which included being in the vehicle when it was driven by the co-offender Cucek around Wetherill Park before it returned to the storage unit, sourcing clothes and sleeping mattresses so they could stay overnight in the truck and spending several hours in the morning of 6 May 2023 trying unsuccessfully to cut into the pulley using angle grinders. At the time of their arrest by police that morning, the co-offender Cucek was using an angle grinder to cut into the pulley and the offender was videoing the process using a Samsung mobile phone that was never accessed by investigators.

55. The Crown submitted that the offender engaged in conduct that was pre-meditated and planned in respect of the offence, relying on the encrypted chats on 2, 3 and 5 May 2023. The Crown further submitted that the offender’s role was essential to the success of extracting the substance that he believed was drugs that were concealed in the pulley. He, with others, spent a number of hours using angle grinders to try and cut into the pulley and discussed with others, ways to get into the pulley and where the “product” was located, while keeping “Nike” updated as to progress.

56. The Crown submitted that the offender believed the consignment contained border controlled drugs based on the encrypted chats referred to above. Whilst the co-offender, Cucek’s role was to drive the hire truck, use the angle grinder to cut into the pulley and unpack the drugs from the consignment, the offender’s role was to accompany Cucek, unpack the drugs from the consignment and to communicate with “Nike” and others.

57. The Crown noted that the full extent of the criminal enterprise and the hierarchical organisation of the criminal organisation was unknown. The Crown submitted that the role played by the offender was below that of Mokdassi but well above that of SH, who was significantly younger and was tasked with menial jobs. In contrast to SH, the offender was trusted with logistics and arrangements, including transporting the consignment in the truck, guarding the consignment overnight and the critical role of removing the drugs by cutting through the steel. He was in direct communication with “Nike” and spent a significant amount of time and effort attempting to extract the drugs he believed to be hidden inside the pulley.

58. The weight of the drugs involved was another highly relevant factor in determining the seriousness of the offence. The Crown submitted a commercial quantity threshold for methamphetamine is 750 grams pure weight, whereas the quantity of border controlled drugs attempted to be possessed in the present matter was 187.1kgs of pure methamphetamine which significantly exceeded by 250 times the commercial quantity threshold.

59. The Crown conceded that the evidence did not establish that the offender knew the precise amount of drugs meant to be in the pulley, nevertheless the Crown relied on the following evidence to support a finding beyond reasonable doubt that the offender believed that the quantity of drugs meant to be concealed was very large:-

60. The sophisticated methodology used to hide the drugs, welded inside an extremely heavy 4.5 tonne pulley, which required the cast iron pulley to be cut open with angle grinders;

61. That two storage units had been arranged – one to deliver the pulley to and one to transfer or drop it to;

62. The large amount of cash money they were being offered to drive the truck and extract the drugs, which was meant to be for a day or two of work;

63. The number of people involved with the consignment that they interacted with;

64. That they were followed by Mokdassi when they left the storage unit with the pulley in the truck;

65. That, once plans changed, they were required to stay at the storage unit overnight to, it can be inferred, keep watch over the pulley containing the drugs;

66. Their conversations captured by the listening device about getting into the pulley, and “how big it is”; and

67. That Cucek was sent and shown photos of, and thus knew the scale and size of, the actual container meant to be inside the pulley that the drugs had been stored in – which, it can be inferred, he discussed with Martin.

68. The Crown submitted that the offender was motivated by financial gain given he was to be paid $5,000 per day.

69. In considering the injury, loss or damage resulting from the offence pursuant to s16A(2)(e) of the Crimes Act, the Crown submitted that the fact that the consignment was intercepted and the importation failed should carry little, if any, mitigating weight in sentencing. The Crown submitted that had such a large amount of methamphetamine been imported without detection, the impact on the community given the scourge of the illicit drug trade would have been significant. Further, there was a great deal of law enforcement time and resources taken up with the investigation of this criminal drug activity.

70. The Crown submitted that general deterrence pursuant to s16A(2)(ja) together with denunciation are significant considerations in sentencing for offences involving border controlled drugs. The Crown submitted that stern punishment is warranted because of the difficulty in detecting drug importation and possession offences and the social consequences that follow to the community. Any sentence must act as a deterrent to others from attempting to possess border controlled drugs and signal that the prospective financial gain from such activities is neutralised by the risk of severe punishment. Pursuant to s16A(2)(k) of the Crimes Act, the Crown submitted that any sentence must be of a severity to ensure that the offender is adequately punished for this offence.

71. The Crown submitted that in respect of the offender’s plea of guilty pursuant to s16A(2)(g) of the Crimes Act, the plea was not entered at the first reasonable opportunity and whilst it was accepted that it had some utilitarian value because of the time and cost of a trial that had been saved, that value should be reflected by a discount in the order of 10%. The Crown submitted the plea of guilty here largely represented a recognition of the inevitable given the strength of the Crown case.

72. The Crown submitted in relation to s16A(2)(f) of the Crimes Act that the Court should be guarded in making a finding of contrition or remorse, and that the Court is not bound to accept hearsay evidence of what the offender may have said to third parties about his remorse.

73. Pursuant to s16A(2)(m) of the Crimes Act, the Crown submitted the following matters were relevant to the offender’s subjective case. He was born in January 2002 and was 21 years of age at the time of the offence and is now 24 years. He had previously pleaded guilty on 26 November 2021, to one count of robbery in company while armed with a dangerous weapon and no submission was made on his behalf that this was an isolated incident of being involved in drug related offending.

74. The Crown submitted that the offender’s drug addiction was not of itself a mitigating factor but was relevant only to the extent that it explained the offending conduct that was relevant to the offender’s subjective circumstances. Further, evidence of the offender’s attempts to overcome an addiction might affect the assessment of his prospects of recidivism or rehabilitation.

75. The Crown submitted that the offender had not cooperated with law enforcement agencies pursuant to s16A(2)(h) of the Crimes Act.

76. The Crown submitted that hardship to the offender’s family pursuant to s16A(2)(p) of the Crimes Act was a relevant factor, however, was a discretionary matter for the Court subject to the overriding principle that the Court must impose a sentence of a severity appropriate in all of the circumstances of the offence.

77. In relation to whether the strict bail conditions on the offender amounted to quasi-custody was subject to the following principles distilled in Testici v R [2025] NSWCCA 88 at [108]:-

“(1) Whether or not conditions of bail (be they residential rehabilitation conditions or otherwise) amount to quasi-custody is a question of fact.

(2) It is for the sentencing judge to determine, as a matter of discretion, the manner in which quasi-custody should be taken into account.

(3) There is no mandatory requirement to accommodate quasi-custody by way of backdating, nor to provide reasons for not doing so.

(4) Where there is an evidentiary foundation for it being taken into account, a sentencing judge may be obliged to have regard to quasi-custody, even when not specifically asked.”

70. The Crown conceded that extended home detention conditions or participation in a full-time residential rehabilitation subject to compliance with strict conditions for an extended period of time may be taken to constitute quasi-custody, but not always. The offender’s bail conditions from 28 December 2023 included:-

71. A home detention condition between 28 December 2023 and 8 May 2024 (4 months, 11 days).

72. An electronic monitoring condition between 28 December 2023 and 24 June 2025 (5 months, 28 days).

73. A residential curfew condition between 8 May 2024 and 17 April 2025 (11 months, 10 days).

74. A daily reporting condition between 28 December 2023 and 5 December 2025, when it was reduced to three times per week.

75. The Crown submitted that the offender’s bail conditions did not amount to quasi-custody. To the extent that they imposed restrictions on his liberty, there was no evidence of any particular hardship to the offender.

76. The Crown accepted there had been some delay in the finalisation of this matter. The offender was arrested on 6 May 2023 and not committed to the District Court until 5 March 2025. The Crown submitted the delay in the Local Court was largely attributable to the time involved in obtaining foreign evidence from China. The subsequent delay in the District Court was attributable to the fact that the offender initially entered a plea of not guilty and the matter was listed for trial. The Crown accepted that the delay in the Local Court, and the offender’s compliance with bail conditions over a lengthy period are factors that should be taken into account on sentence.

77. The Crown submitted that the parity principle is to be applied in this matter having regard to the sentence I have previously imposed on SH. The Crown submitted that the offender was above SH in the hierarchy of the criminal organisation and the offending conduct of this offender was much more serious than that of SH. The Crown submitted that this offender:-

78. Was not merely reckless as to whether the pulley contained border controlled drugs, but believed from as early as 2 May 2023 that the job involved extracting drugs;

79. Was actively involved in planning for the extraction and critical logistics for extraction of the drugs;

80. Had specific skills that were needed to undertake the extraction;

81. Spent more time at the storage unit than SH, including sleeping in the Avis hire truck overnight to safeguard the drugs he believed were hidden inside the pulley; and

82. Was actively more involved than SH in attempts to cut into the pulley, including by working out with Mokdassi how to resolve the lack of power to the storage unit and what type of additional equipment was required.

83. The Crown went on to submit that Mokdassi was more culpable than the offender.

84. The Crown noted that the offender had spent 237 days (7 months and 23 days) in custody and accepted that the sentence should be backdated to reflect the time spent in custody.

85. The Crown provided a schedule of comparative cases to provide guidance in the identification and application of relevant sentencing principles and to show a range of available sentences.

86. The Crown submissions concluded by submitting that having regard to the threshold in s17A of the Crimes Act, the maximum penalty for the offence, the importance of general deterrence, the large amount of drugs involved and the significant role played by the offender, a term of full-time imprisonment with the imposition of a non-parole period was the only appropriate penalty in this case.

87. In her oral submissions, the Crown rehearsed her submissions regarding the objective seriousness of the offending and conceded the offender was lower down in the hierarchy, given that he was taking instructions from “Nike”. However, it was submitted he played a substantial and necessary role, having discussed the project in specific terms in the chats from 2 May 2023, it was submitted that from the outset he knew what he was getting involved in.

88. The Crown submitted that whilst the evidence did not establish that the offender knew the particular amount of the border controlled drugs, he was aware that a very large amount of prohibited drugs was involved. Further, the evidence established that the offender believed there were prohibited drugs involved.

89. The Crown emphasised the serious nature of the offending which was not spontaneous or impulsive. Whilst weight must be given to the relative youth of the offender, it should not outweigh considerations of denunciation and deterrence which looms large in the sentencing synthesis.

90. The Crown referred to the offender’s subjective case, and accepted the evidence established he suffered childhood disadvantage as outlined by the clinical psychologist, which meant that his moral culpability for the offending may be reduced, however the extent of such a reduction should not be significant. Here there was significant planning involved and no evidence other than the offender’s self-reporting that he had a drug debt of about $30,000 which motivated him.

91. The Crown rehearsed her submissions regarding the offender’s prior criminal history establishing that this was not isolated offending and her submissions in respect of parity with the co-offender, SH.

92. The Crown rehearsed her submissions regarding the home detention of the offender for a period of 4 months and 11 days by submitting that it was a matter of full discretion of the Court as to whether this amounted to quasi-custody.

The offender’s submissions

84. Learned Senior Counsel for the offender also relied on a thorough and detailed written outline of submissions. He too, set out relevant sentencing principles for Commonwealth offences which are not in issue and dealt with the checklist of relevant factors in s16A(2) of the Crimes Act.

85. The offender submitted that as the drugs were seized by Chinese authorities on 30 January 2023, the offending was doomed to failure, that is that the drugs were never going to be possessed by the offender. Relying on R v Taouk (1992) 65 A Crim R 387, it was submitted that this was a matter which would reduce the objective seriousness of the offending (see also R v Irusta (2000) 117 A Crim R 6 at [41]-[49]). Counsel noted that the weight of the drug (187.1 kgs) was considerably above the commercial threshold, however submitted that for this offence there is no other limit in terms of quantity. It was further submitted that the weight here was of less significance because there was no evidence that the offender was aware of the quantity or type of drug.

86. Counsel submitted that the offender had a narrow and limited role in the drug importation operation. It was submitted that his role was limited to accompany Mr Cucek for the purpose of unpacking the drugs from the consignment and ultimately, he did not end up unpacking the inert substance because it could not be accessed. The offender’s communication with “Nike” was for the most part, to receive instructions and it was the co-offender Cucek’s role to drive the hire truck, use the angle grinder and unpack the drugs.

87. Counsel submitted that the offender was not involved in any particular planning and was clearly acting on the instructions from others in higher roles in the operation at all times. Given his limited role, this would translate to a substantial downward pressure on any finding regarding the objective seriousness of the offending. His role also assumed a significant degree of risk by being present with the drugs at the storage unit, including remaining with the consignment overnight. This was consistent with a person who is at a low level role in the criminal hierarchy. Other factors relevant to the assessment of the seriousness of the offence included that the offender was not being offered a substantial sum for his involvement (i.e. $5,000 per day), that his involvement was over a relatively short period of time being 5 to 6 May 2023 and the offender was unaware of the type and weight of the drug.

88. Counsel submitted that given the offender’s role, reduced significance should be attached to the weight of the drugs when assessing the objective criminality of the offence relying on R v Nguyen; R v Pham at [127]. Also relevant was that no drugs were disseminated into the community.

89. Counsel referred to the circumstances that the offender had revealed to Ms Pal concerning his involvement in the offence. His chronic abuse of cocaine was affecting every aspect of his life – he was not working and his relationship was suffering. In addition, he had accumulated a $30,000 drug debt and was offered $5,000 to do a “job” to reduce his debt. When accepting the “job” he had no idea of the type or amount of drug involved.

90. Counsel submitted that when applying principles of parity, the role of SH would be considered to be similar in nature to the role of the offender. Counsel submitted that the offender engaged in more risk-laden activity than SH, while SH was in possession of keys to the premises that housed the drugs. It was further submitted that the offender’s role was lower than that of Cucek.

91. Counsel submitted in relation to s16A(2)(f) that the offender was remorseful and his remorse was genuine and he had accepted responsibility for his conduct taking into account his plea of guilty, insight and remorse expressed in his letter to the Court, the remorse expressed to those close to him who wrote testimonials, the courses he had completed and good behaviour in custody and the progress that he had made with rehabilitation including completing the Drug Intervention Program whilst on bail and engaging in meaningful work.

92. Counsel submitted that pursuant to s16A(2)(g), the Court would take into account his plea of guilty two weeks prior to what would have been a lengthy jury trial and allow a utilitarian discount on sentence in a range of 15% to 20%. In addition, the Court would afford the offender a subjective component of his plea demonstrative of contrition and his willingness to facilitate the course of justice.

93. Pursuant to s16A(2)(j), counsel submitted that when assessing the weight to be given to specific deterrence considerable weight should be placed on the fact that he will find any further period in custody more onerous because of his background of trauma and mental health conditions.

94. Having regard to the subjective case of the offender pursuant to s16A(2)(e) and (m) the Court would have regard to the following factors:-

(a) The offender is aged 24 years. He was 21 years old at the time of the offence. (b) He was born in Gosford and is the eldest of 4 siblings. He moved frequently throughout his childhood. He had a very traumatic and deprived childhood as addressed further below. (c) He had disruptive schooling and did not finish high school due to spending time in juvenile detention. (d) The offender started using alcohol and taking drugs at an early age (14 years), against the backdrop of being exposed to and being a victim of violence at home and being exposed to serious drug misuse by his father. (e) He has an adult record for a robbery matter for which he received a sentence of imprisonment. This is his first conviction for a drug offence. (f) He has had one significant relationship of 3 years with Ms Sanders. This relationship was under strain prior to his arrest due to his drug use. They are no longer together and whilst they broke up whilst he was in custody, she still supports him as a friend. (g) Whilst on bail, in April 2025, his brother was in a serious motor vehicle accident (involving a drunk driver) which has resulted in his brother suffering brain damage. (h) The offender was also hospitalised twice for seizures in July 2025 associated with a relapse. He has been abstinent since being discharged from hospital. (i) He has started a carpentry business with a friend and has good work prospects. (j) He has the strong love and support of his mother and family.

95. Counsel rehearsed the evidence concerning the offender’s childhood trauma and disadvantage as described in the report of Ms Pal and the affidavit of the offender’s mother, Ms Croft. His experiences of childhood and adolescent trauma and disadvantage were characterised as profound and it was submitted they clearly engaged the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27.

96. Counsel submitted that the Court would find that his drug use was inextricably linked to his upbringing in a number of ways as a means of self-medication to deal with the trauma of his childhood and the normalisation of serious levels of drug abuse by his father.

97. Counsel further submitted that the offender’s mental health history is long-standing and complex, referring to Ms Pal’s opinion that the offender currently and at the time of the offence had diagnoses of PTSD, depressive disorder and a stimulant (cocaine) disorder. Counsel relied on the well-known principles in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 and authorities concerning whether a causal link is required to engage such principles. It was submitted that the opinions expressed by Ms Pal clearly draw a nexus between the offender’s complex mental conditions and his offending. As a result, the Court would find the offender’s moral culpability significantly reduced and substantially moderate the weight to be given to general and specific deterrence. His mental health also meant that his time in custody would be more onerous for him.

98. Counsel also referred to the fact that the offender was 21 years of age at the time of the offending and characterised this as a significant factor to be taken into account relying on Yildiz v R [2020] NSWCCA 69 at [2] where their Honours Simpson AJA and N Adams J (as her Honour then was) set out the relevant principles.

99. Counsel submitted that the offender has good prospects of rehabilitation and with the right support is unlikely to reoffend having regard to the progress that he had made with his rehabilitation as outlined above.

100. Whilst conceding that the offending was of sufficient seriousness that imprisonment was appropriate, counsel submitted that in setting the non-parole period the Court should have regard to the offender’s subjective circumstances including his young age, strong capacity for rehabilitation, his traumatic background and mental health conditions, need for treatment and the onerous nature of the conditions in custody. Additionally, any sentence should not be of a nature that would cause a justifiable sense of grievance with SH, once account is taken of the differences and similarities in their respective cases.

101. In his oral submissions, learned Senior Counsel rehearsed his submissions concerning the assessment of the objective seriousness of the offending and emphasising the role of the offender. He submitted that this offender was on the lowest rung here, and that he was not very trusted, for example, he did not have a key to the premises, unlike SH. The role also involved this offender accompanying Cucek as a passenger in the truck and that he acted at all times on instructions.

102. Counsel submitted that in respect of this offender’s level of knowledge as to the quantity, weight and type of border controlled drug, there was no doubt that from the outset there was a level of recklessness involved on his part. However, the Crown had not established that this offender had knowledge of the contents of the consignment. It was submitted that it may have been inferred to be a substantial amount but that it could be 5 or 10 kilograms and there was no evidence that the offender knew it would have been larger than that.

103. In response to the Crown’s submission that the payment of $5,000 per day was a substantial amount, counsel submitted that in the context of the operation it was a paltry sum indicating this offender’s role at the lower rung of the drug operation.

104. Counsel rehearsed his submissions regarding the fact there was no dissemination of drugs into the community given this was a controlled operation applying R v Taouk and R v Irusta, which meant there was downwards pressure in assessing the objective seriousness of the offending. Counsel referred to Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15 at [7] as authority for the proposition that in a case such as this where there is interception of the drug importation before any of the product reached consumers, there is no injury, harm or damage to be taken into account pursuant to s16A(2)(e). Counsel rehearsed his submissions regarding the offender’s role being a very delineated role which took place over a very short period of time.

105. Counsel noted that the Crown had conceded that this offender’s subjective case substantially engaged the principles in R v Bugmy, which were not limited to offences involving planning relying on Baines v R [2023] NSWCCA 302. Counsel submitted the Court should give full effect to those principles in sentencing here.

106. Counsel rehearsed his submissions regarding the progress the offender had made with his rehabilitation, particularly after he had been diagnosed with epilepsy. He had used the delay in sentencing to advance his rehabilitation and had started a successful business.

107. Counsel noted that the Crown accepts that the offender’s home detention constituted quasi-custody for a period of 4 months, thereafter he was on strict bail conditions including a curfew which should be taken into account as well.

108. Counsel then rehearsed his submissions with respect to the application of the principle of parity to submit that, having regard to principles of proportionality and having regard to substance and not form, the offender’s sentence should be similar to that of SH. In sentencing SH, the amount of money he was paid was unknown whereas this offender was motivated to reduce his drug debt. Their roles were not markedly different and whilst SH was 17 years of age, this offender had served 4 months of full time custody already.

109. Finally, counsel rehearsed his submissions regarding a utilitarian discount in the range of 15% to 20% having regard to Mokdassi’s trial, which took place over a period of 4 weeks.

The Crown submissions in reply

110. In response to the submission on behalf of the offender that SH was in a trusted position given his possession of the key, the Crown submitted there was no evidence upon which a finding could be made to that effect. He did not have a key when he first arrived at the storage facility. It was an agreed fact that after driving around Wetherill Park, SH did open the warehouse. Moreover, those facts established that at all times when the premises were open the offender and Cucek had access.

111. In response to the offender’s submission regarding the harm, loss or damage caused to the community, the Crown referred to Taysavang v R; Lee v R at [45]-[47] to submit that because the drugs had been intercepted and removed from the pulley and therefore were not capable of dissemination into the community was not a mitigating factor because of the potential harm to the community and the great deal of law enforcement time and resources that are taken up in the investigation of criminal drug activity at a significant cost to the community. The Crown referred to R v Achurch where Johnson J at [97] stated that:-

“These authorities make clear that, although the fact that drugs are not disseminated into the community may be a relevant factor on sentence, the weight to be given to that factor will vary from case to case. A primary consideration remains that an offender intended to supply the prohibited drug to members of the community, and that it was no act of an offender that resulted in this not happening.”

112. Finally, the Crown accepted that the principles in Bugmy v The Queen were enlivened, however the fact that there was planning involved here could be taken into account in respect of the reduction in moral culpability for the offending conduct.

Determination

113. In determining the objective seriousness of the offending for drug importation offences, the principles summarised by Johnson J in R v Nguyen; R v Pham at [72] include the following:-

“(l) where an offender…is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing Judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise.

(m) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs;”

114. Although the weight of the drug that would have been imported is not the principal factor to be considered, it is a relevant factor which has increased significance when the offender is aware of the amount of drugs involved. Here, the Crown has conceded that the offender was not aware of the amount or type of drugs involved. I find that it is a matter of common sense and should be inferred that the offender and co-offenders here knew they were attempting to possess a large quantity of border controlled drugs.

115. The most relevant factor in determining the objective seriousness of the offending here is the role played by the offender. It is therefore important to identify that role with precision. I am satisfied beyond reasonable doubt that from 2 May 2023, the offender took instructions by the encrypted application to do a job which involved extracting work from a concealed consignment using a grinder to open up something. On 3 and 5 May 2023, the offender was given further instructions with the co-offender Cucek to hire a truck and to head to premises in Penrith. The offender was told that he would receive $5,000 and co-offender Cucek would receive $10,000. On 6 May 2023, the offender received instructions as to the address of where the consignment was to be located. With Cucek he took possession of the hire truck on 5 May 2023. Whilst Cucek was the driver, the offender was a passenger in the truck when they met the co-offenders, SH, Palu and Mokdassi at the storage unit.

116. Later that day, after the pulley had been loaded onto the truck the offender accompanied Cucek who drove the truck away from the storage unit followed by a car driven by Mokdassi. They drove around Wetherill Park until they returned with the pulley to the storage unit where Mokdassi unloaded the pulley back into the storage unit. The offender with Cucek then communicated again with “Nike” and received instructions to stay the night, obtain a bigger truck and they would be paid to stay overnight and guard the pulley. The offender joined in attempts with Cucek and Mokdassi to start a petrol generator for the storage unit. On the morning of 6 May 2023, the offender spent a number of hours with Cucek using the angle grinder to attempt to cut into the pulley during which they discussed different ways to get into it and where the “product” was located within it. The offender also updated “Nike” as to progress or lack of it.

117. I find that the offender was provided with essential information by “Nike” concerning the location of the pulley and the payment of money. Otherwise, his role was to accompany Cucek, unpack the drugs from the consignment and to communicate with “Nike” and others. The evidence does not establish that the offender had any intention to further deal with the drugs in any way.

118. It is clear from the established facts that the offender’s involvement in the overall transaction of this drug smuggling enterprise was towards the lower rung of that enterprise and carried with it a great deal of risk of detection by the authorities. It still constituted serious offending, particularly as the quantity of drugs intercepted was 187.1 kgs of pure methamphetamine. I accept that for offences pursuant to s11.1(1) and 307.5(1) of the Criminal Code 1914 (Cth) that particular commercial quantity, whilst being well over the statutory amount for a commercial quantity, could not be considered to be a very high volume of border controlled drugs, given that the range is open-ended. Having regard to the quantity and more importantly the role of the offender, this offending fell in the lower range of objective seriousness for such offences. It still constituted very serious offending, particularly given the overall sophistication of the importation, the level of planning and pre-meditation involved on the part of this offender to participate over a number of days for financial reward.

119. I have had regard to the following relevant factors pursuant to s16A(2) of the Crimes Act:-

(a) Nature and circumstances of the offending

120. The nature and circumstances of the offending are set out above. It was objectively serious offending having regard to the role of the offender as outlined above, and subject to what appears below, it was highly morally culpable offending motivated by financial gain to offset a drug debt accumulated as a result of his cocaine addiction.

121. The fact that the border controlled drugs were not disseminated into the community may be a relevant factor on sentence given the potential harm to the community and the significant cost to the community in terms of law enforcement and investigation of criminal drug activity. However, it is clear that this offender had no role to play in the potential dissemination of the prohibited drugs into the community which does reduce the objective seriousness of the offending. He did, however, actively engage in the role that he was given to assist in attempting to obtain possession of the contents of the pulley.

(2)(e) Injury, loss or damage caused by the offending

122. There was no injury, loss or damage caused by the offending here as a result of the consignment being intercepted. However, the potential for harm to the community was significant, given the large amount of methamphetamine involved.

(2)(f) The degree to which the person has shown contrition for the offence

123. I accept that the offender is genuinely remorseful and has accepted responsibility for his criminal conduct as expressed in his letter to the Court and the expressions of remorse to the authors of the testimonials and his mother. I also take into account that he has completed courses in custody and has progressed his rehabilitation by completing the Drug Intervention Program whilst on bail and engaging in meaningful work.

(2)(g) The offender’s plea of guilty

124. The offender pleaded not guilty in the Local Court and entered his plea of guilty to the index offence two weeks before his trial was due to commence. I find that in doing so, there was a utilitarian benefit to the community and I further note that the trial of Mokdassi took some four weeks. His plea of guilty does reflect some remorse for his offending conduct and therefore I intend to allow a 15% discount on sentence for it.

(2)(j) The deterrent effect that any sentence or order under consideration may have on the person

125. Specific deterrence has a role to play in sentencing for the offences such as the index offence. The offender must understand that if he were to re-offend, he would be to subject to increasingly severe sentences being imposed on him.

(2)(ja) The deterrent effect that any sentence or order under consideration may have on other persons

126. General deterrence is a significant factor in sentencing for drug importation offences. Parliament has prescribed the most severe penalty of life imprisonment for such offences and a clear message must be sent to the community that those who engage in such criminal activity for egregious profits will be severely punished by the Courts if their crimes are detected. As set out above, the dissemination of large volumes of prohibited drugs does enormous harm in the community, comes at a considerable cost to the community in terms of law enforcement and detection and promotes further criminal activity in the community.

(2)(m) The offender’s subjective case

127. The offender was 21 years of age at the time of this offending and I am satisfied that he suffered childhood disadvantage and he was exposed to serious drug misuse by his father and domestic violence directed towards both his mother and himself. He started using alcohol and drugs at an early age of 14 years and failed to finish high school due to spending time in juvenile detention. I accept the opinions expressed by Ms Pal that the offender satisfied the criteria for PTSD, moderate depressive disorder and a cocaine use disorder which was severe but is currently in remission given that he has been abstinent from using prohibited drugs since being discharged from hospital following epileptic seizures he suffered in July 2025.

128. His childhood disadvantage and adolescent trauma clearly engage the principles in Bugmy v The Queen, where the High Court held as follows:-

1.The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his/her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way [40].

2. The effects of profound deprivation do not diminish over time and repeated offending and should be given full weight in determining the sentence in every case [42-44].

3. A background of that kind may leave a mark on a person throughout life and compromise a person’s capacity to mature and learn from experience [43].

129. In addition, the offender’s long-standing and complex mental health diagnoses engage the following principles in DPP (Cth) v De La Rosa:-

“• Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

• It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28].

• It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

• It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

• Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] – [24].”

130. I am satisfied that these principles must be given full effect to reduce the moral culpability for this offender’s criminal conduct, and to diminish the significance of specific and general deterrence in sentencing.

(2)(n) Prospects of rehabilitation

131. The offender has made progress with his rehabilitation. He has been abstinent from prohibited drugs, has commenced a business and has pro-social support from his family and in the community. I find that he has good prospects of rehabilitation and is a low risk of recidivism.

(2)(p) Hardship to the offender’s family

132. The offender has the pro-social support of his mother who has deposed to the progress he has made with his rehabilitation following a number of seizures and diagnosis with epilepsy which has led him to be abstinent from alcohol and prohibited drugs. In addition, the offender’s brother suffered brain damage in a serious motor vehicle accident in April 2025, whilst the offender was on bail. There is no evidence that the inevitable sentence of imprisonment will have any deleterious effect on his family.

133. I have had regard to the maximum penalty of life imprisonment and/or a substantial fine as a guidepost in the sentencing process. This is the most severe penalty imposed by Parliament and indicates the seriousness with which the Parliament regards such criminal conduct and thus remains a guidepost in the sentencing process.

134. The fact of the offender’s addiction to cocaine does not mitigate the seriousness of his offending but it does explain his motivation to engage in this criminal enterprise with the prospect of payment of $5,000 a day, on any view a large amount for an unemployed young person addicted to drugs and a clear enticement to act recklessly without regard to the consequences. The Courts have long recognised that young people and young men in particular do not mature until their mid-twenties. It is well established that in sentencing young offenders emphasis must be given to rehabilitation rather than general deterrence, denunciation and retribution – see KT v R (2008) A Crim R 112; [2008] NSWCCA 51 per McClellan CJ at CL. In BP v R (2010) 201 A Crim R 372; [2010] NSWCCA 159 Hodgson JA, having referred to KT v R, said as follows:

“4 First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person’s less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] – [36].

5 Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, and that a ‘child offender’ of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.

6 Third, I do not think courts should be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult. …”

135. The relevant principles were summarised by Hamill J in Sarhene v R [2022] NSWCCA 79 and applied recently in Shehade v R [2026] NSWCCA 107. There is no doubt that the youth of an offender is a most significant factor in assessing what sentence should be imposed and considerations of general deterrence may be of less significance as emphasis should be placed on the need to provide an opportunity for rehabilitation. Youth is a significant consideration on sentence because of its potential relevance to moral culpability and therefore its implications concerning the prospects of rehabilitation, the significance of general and specific deterrence and the moderation of retribution as well as hardship in custody. I have therefore taken into account this offender’s youth in the sentencing synthesis.

136. I have taken into account that the offender was on strict bail conditions, including home detention for a period of four months and thereafter strict conditions which included a curfew for a period of over two years. Recently, the Court of Criminal Appeal in YA v R [2026] NSWCCA 3, having reviewed the authorities including Testici v R [2025] NSWCCA 88, set out the following principles to be applied in exercising the Court’s discretion to reduce a sentence on the basis of quasi-custody:-

“(1) The decision as to whether an offender’s bail conditions are so “harsh or restrictive” that they may require a conclusion that at least some part of the period on bail should be treated as the notional equivalent of custody is reviewable only on a House v The King (1936) 55 CLR 499; [1936] HCA 40 basis.

(2) Whether bail conditions amount to “quasi-custody” is a question of fact. The test is whether the finding was “reasonably open”.

(3) Even if the sentencing judge is satisfied that the bail conditions amount to quasi-custody, there is no mandatory requirement for a sentencing judge to reflect that finding by way of backdating, and

(4) Factual findings in other decisions do not constitute binding authority.”

(Authorities and citations omitted)

137. I am satisfied here that the strict bail conditions for over two years, including home detention for a period of 4 months do warrant a finding that they amount to quasi-custody and I intend to make an allowance of approximately 2 months to be taken into account on sentence.

138. Taking into account the 237 days this offender has spent in remand custody, I intend to backdate any sentence imposed by a total of 300 days.

139. The Crown has accepted that there was some delay involved in prosecuting the offender and co-offenders as a result of a delay in obtaining evidentiary material from China regarding the interception of the border controlled drugs. Thereafter however, the offender pleaded not guilty in the Local Court and entered his plea of guilty two weeks prior to the commencement of the trial in this Court. The relevant principles to be applied in Elchiekh v R [2016] NSWCCA 225 are as follows:-

“56 Delay may be taken into account in favour of an offender: firstly, when it relates to the uncertain suspense in which a person may be left; secondly, when there is demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, because sentencing for a stale crime calls for a measure of understanding and flexibility of approach: R v Todd [1982] 2 NSWLR 517 (“Todd”); R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 at [16]. Where delay is relied upon as a mitigating factor, the onus is upon the offender on the balance of probabilities: Sabra v R [2015] NSWCCA 38 at [47].”

140. I do not find here that the offender was in a state of uncertainty or suspense or that he has been prosecuted for a stale crime. I have therefore taken the initial delay in prosecuting the matter into account, but not to a significant degree.

141. The principles of parity were recently reviewed by the Court of Criminal Appeal in Bridge v R [2026] NSWCCA 40 where the Court adopted the summary of principles in Tasdik v R [2024] NSWCCA 195. The principle is one of equality in sentencing for like offences so there is no unjustifiable disparity between sentences imposed for similar criminal conduct. The application of the principle is concerned with considerations of substance rather than form and applies in NSW by virtue of s21A of the CSPA. Parity requires different outcomes in cases that are different in some relevant respect, such as different degrees of culpability, differences in age, background, criminal history or the role played in the relevant criminal conduct or enterprise.

142. The offender here has contended that principles of parity should be applied on the basis that any sentence imposed should be similar to that of SH. He submitted that his role was not markedly different from that of SH who was a trusted member of the operation given that he had a key to open the storage unit premises on their return to that unit after they had driven around Wetherill Park. I do not accept that this offender’s role could be regarded as the same as that of SH. SH was 17 years at the time of the offence and 19 years old when sentenced. He had the benefit of a 25% utilitarian discount on sentence and I found that he was instructed at all times by Mokdassi and having regard to all of his conduct he was the lowest rung of the criminal enterprise and had acted recklessly. Whilst the agreed facts outlined that he opened the pedestrian gate on their return to the storage unit there was no evidence that he was entrusted with a key so as to elevate his role. SH had no prior criminal offences, had spent 14 days in custody and was on strict bail conditions for a period of 2 years. In that case the Crown had conceded that both Bugmy and De La Rosa applied, as did the provisions of the Children (Criminal Proceedings) Act 1987 (NSW) which stipulated that rehabilitation was a paramount consideration in the sentencing synthesis. He was sentenced to a term of imprisonment for a period of 3 years, to be released immediately on conditions that he be of good behaviour for a period of 4 years.

143. This offender was 21 years of age at the time of the offending and his role was on a low rung of the hierarchical structure of the drug importation enterprise. His role was above that of SH in that his conduct included communicating with those above him in the hierarchy over a period of some days, being actively engaged in the hiring of the truck on which the pulley was transported over a period of 2 days, sleeping overnight in the truck so as to guard the pulley and being engaged with Cucek in exploring ways to extract the contents of the pulley. Importantly he had previously been sentenced to a term of imprisonment for an armed robbery offence and his offending demonstrated a disregard for the law.

144. As outlined above, his moral culpability is reduced and he is entitled to a 15% utilitarian discount for his plea of guilty. An appropriate starting point for sentence is a term of six years imprisonment, however, having regard to all of the above matters and applying principles of parity and proportionality, I intend to sentence the offender to a term of imprisonment of 5 years. Having regard to the need to further progress his rehabilitation, I intend to impose a non-parole period of 2 years and 3 months to be backdated by 300 days to take into account his remand custody and quasi-custody as outlined above.

Orders

145. You are convicted of the offence of attempt to possess a commercial quantity of an unlawfully imported border controlled drug pursuant to ss11.1 and 307.5 of the Criminal Code 1995 (Cth).

146. I sentence you to a term of imprisonment of 5 years to commence on 21 November 2025.

147. I impose a non-parole period of 2 years and 3 months to commence on 21 November 2025 and terminate on 20 February 2028. The balance of term will be a period of 2 years and 9 months to commence on 21 February 2028 and terminate on 20 November 2030.

148. Your parole eligibility date will be 20 February 2028.

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