Solicitors:
Crown: Mr I Lewis
McGlone: Mr E Matouk
McKell: Mr E Rahme
File Number(s): 2013/00156338 - R v Richard McGLONE; 2013/00156342 - R v Jason Troy McKELL
[2]
SENTENCE
HIS HONOUR: Jason Troy McKell and Richard McGlone appear for sentence in respect of a number of offences of which they were found guilty by a jury on 21 July 2016. The trial proceedings commenced with applications before Judge Baly on 6 and 7 June 2016 and the matter commenced before me on 8 June 2016. With a jury empanelled, the matter started on 9 June 2016.
Each of the offenders was found guilty by the jury in respect of an offence that on 20 May 2013, at Sydney, in the State of New South Wales, did import a substance, intending to use or believing that another person intended to use any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely pseudoephedrine, and the quantity imported being a commercial quantity. The quantity was 63,177.1 grams of pure pseudoephedrine. Such an offence is contrary to s 307.11(1) of the Criminal Code.
The maximum penalty provided is 25 years imprisonment and/or a fine of $850,000. In respect of that offence, Mr McKell asks the Court to take into account a further offence pursuant to s 16BA of the Crimes Act 1914 (Cth), being an offence contrary to s 33(1) of the Customs Act 1901. I note in respect of the additional matter to be taken into account that the penalty includes no term of imprisonment but simply a maximum pecuniary penalty of $85,000.
That offence is intentionally moving customs goods, namely an air freight consignment with the airway bill number 176-3978 5955, the said goods being the subject of the control of customs and the movement not being authorised by the Customs Act 1901. As will be referred to later, that offence relates to conduct in respect of what is later referred to as Consignment 1.
Each of the offenders was also found guilty of a charge that between about 13 May 2013 and about 20 May 2013, at Sydney, in the State of New South Wales, and elsewhere, did conspire with each other and divers others to import a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity imported being a commercial quantity.
The quantity was 5,698.6 grams of pure methamphetamine. Such an offence is contrary to s 307.1(1) and s 11.5(1) of the Criminal Code. The maximum penalty provided is life imprisonment and/or a fine of $1,275,000.
Jason McKell was also found guilty by the jury in respect of a charge that he on 20 May 2013 at Sydney, in the State of New South Wales, dealt with money or property that was, and that he believed to be, proceeds of crime, and at the time of the dealing the value of the money or property was $100,000 or more. The actual amount was $400,150. Such an offence is contrary to s 400.6(1) of the Criminal Code and the maximum penalty is 20 years imprisonment and/or a fine of $204,000.
Richard McGlone was also found guilty of an offence that he on 20 May 2013 at Sydney in the State of New South Wales dealt with money or property that was and that he believed to be proceeds of crime, and at the time of the dealing the value of the money or property was $10,000 or more. The actual amount was $42,550. Such an offence is contrary to s 400.4(1) of the Criminal Code. The maximum penalty provided is 10 years imprisonment and/or a fine of $102,000.
The facts relating to the offences are as follows.
SUMMARY:
These matters involve Richard McGlone (McGlone) and Jason Troy McKell (McKell) and their role in the importation into Australia of three consignments via air freight.
The first consignment was not intercepted by authorities and there is no evidence that it contained any prohibited substance. It was relevant to the Crown case as evidence of the system used to effect deceit of the authorities.
The second consignment contained a commercial quantity of a border controlled precursor, namely 63,177.1 grams of pure pseudoephedrine sent from Dhaka, Bangladesh, concealed in pails purporting to contain an adhesive, with the gross weight of approximately 77.7 kilograms.
Concealed within talcum powder bottles in the third consignment was 9.96 kilograms of a crystalline substance comprising 5,698.6 grams of pure methamphetamine.
The money laundering offences relate to money located in each of the accused's residences following their arrest.
$400,150 in Australian currency was located in McKell's bedroom at his unit in Waterloo. $42,550 was located in a walk-in wardrobe, ($4000) and secreted in the structure of a day seat ($38,550) in McGlone's bedroom at his house at Bronte.
McKell has been further charged with intentionally interfering with customs goods in relation to Consignment 1 to be dealt with pursuant to s 16BA of the Crimes Act 1914, when being sentenced in respect of the offence of importing the border controlled precursor, pseudoephedrine.
BACKGROUND
In January 2013, Joint Task Force Operation Polaris commenced an investigation into the alleged criminal activities of McGlone.
On 11 May 2013, the AFP commenced the interception of a telecommunications service, being a mobile telephone used by McGlone exclusively to contact McKell on another mobile phone used exclusively by McKell to contact McGlone from 11 May 2013. Each of the mobile phones was subscribed in a false name and address, or at least to unidentifiable persons who did not reside at the given address. Both mobiles were with Vodafone and activated on 6 March 2012.
At the time of the offences, McKell was employed as the Movements Manager at Wymap Group Propriety Limited, a company providing under bond air freight forwarding and goods handling services. McKell resided at Unit 512/12 Broome Street, Waterloo.
At the time of the offences, McGlone was a personal trainer, residing with his wife and children at 24 Evans Street, Bronte.
FACTS
Sunday 12 May 2013
On Sunday 12 May 2013, using these mobiles, McKell and McGlone arranged by text to meet for a coffee the following morning at 8am, without any reference in the text as to where.
Monday 13 May 2013
The following morning, further text messages were exchanged between McKell and McGlone as McGlone was going to be late.
At 8.47am, McKell, using his work mobile, sent a text message to Andrew Neate (Neate), the Unit Allocator at Wymap who worked under McKell's supervision, asking Neate to make enquiries regarding the arrival of three consignments by air and providing to Neate the airway bill numbers (AWB).
Neate then made a number of enquiries and responded to McKell via text message, indicating that two of the AWB's did not exist.
Neate then made further enquiries with Menzies Aviation, an air freight logistics company, with respect to one of the AWB's and sent a further text message at 9.51am to McKell indicating that none of them existed.
Between 11.02am and 6.14pm, further text messages were exchanged between McKell and McGlone. McKell informed McGlone that Consignment 1 was due Wednesday night or Thursday morning and that he was not sure when the others would arrive, using horse racing code "Not sure when trialling". They also arranged to meet the following morning without reference to where.
Tuesday 14 May 2013
The following morning, McKell sent further text messages to Neate between 7.11am and 7.53am seeking his assistance to check the AWB's.
At about 8am, McGlone met with McKell at Cafe Two Baristas (Cafe) in Crystal Street, Waterloo. During this meeting, McKell showed McGlone an iPad screen. A short time later, McKell was observed departing the cafe and entering his residential premises, a building in Broome Street, Waterloo.
At around this time, Neate had been making further enquiries with Toll about the three airway bills as requested by McKell and at 8.15am informed McKell that they did not exist at Toll.
At 10am, McKell entered a blue Holden utility vehicle with New South Wales registration BHC37W (the blue utility). The blue utility was a Wymap vehicle.
At about 10.30am, the blue utility entered the security gate at the QANTAS Limited Freight Terminal, Link Road, Mascot, and continued out of sight.
At around this time, Neate had a face to face conversation with McKell at the airport. Neate asked McKell why he had been asking him to chase the airway bills because it was something McKell could do himself. McKell told Neate that he thought Toll was playing games because on the Malaysian Airlines website it was showing that the freight had been booked. He did not explain why he had Neate doing the checks.
From 5.13pm, text messages were exchanged between McKell and McGlone arranging to meet at 8.15pm. McGlone was late. There was no reference to where they would meet, except McKell indicating at 8.15 that he was in "C" (Cafe).
Later that evening at 11.37pm, McKell sent a further text message to Neate requesting a further check on the AWB's.
Wednesday 15 May 2013
The following day at 8.15am, Neate responded to McKell indicating that he had not been able to obtain any further information from Toll or Menzies.
Later that day at 10:55 pm, McKell sent McGlone a coded message "Not trialling yet, not sure why, maybe U can ask when".
Thursday 16 May 2013
At 6.32am, McKell used his iPad to track the first and second consignments online. Over the course of the day from 8.14am to 3.22pm, a number of text messages were exchanged between McKell and McGlone regarding enquiries as to what was happening with the AWB's, and arrangements were made to meet at 8pm. At 8.14pm, McGlone by text indicated he would "Find out today what's happening" and at 8.27pm, McKell asked "Thanks, and what's trialling from where".
At 5.25pm, McKell had again used his iPad to track the first and second consignments online.
Between 8.08pm and 8.23pm, text messages were exchanged as to McKell being late.
At 8.25pm, McGlone and McKell met on a bench seat outside Coles Supermarket, located in Crescent Street, Waterloo. During this meeting, McKell showed McGlone an iPad screen. McGlone and McKell departed at about 8.35pm.
Between 9.06pm and 9.49pm they exchanged further text messages; McGlone stating that "My friend spoke to them out there today and they said what you said and tried to stall trials. Should be next few days". McKell asked "Is that for both or just 22?" and McGlone replied "22". Consignment 2 was to consist of 22 cartons.
At about 10.05pm, Consignment 1 arrived in Sydney on Emirates flight EK414. The details on the consignment were as follows:
AWB 176-3978-5955
House Bill 7DMH328
Flight K414
Arrival Date/Time 16052013 2205
Consignor Producto Mitre Limited, Esperanza 23
Estacion Central, Santiago, Chile
Consignee Reach Limited, 1 Adelaide Street,
Bondi Junction 2026 Sydney Australia
Consignor Ph No 0405072880
Other Contact Details James Leddell
james.reach.limited@live.com
Goods described as PYJAMAS
Cartons 5
Gross Weight 99 kilograms
Courier company DHL
[3]
Between 10.52pm and 11.02pm, McKell used his iPad to track the first and second consignments online.
At 11.06pm, McKell, using his work phone, sent a text message to Savo Miljevic, a truck driver for Wymap. The text message read "Savo, please get 176-39785955 - keep on your truck, I will pick up off you, ok".
Friday 17 May 2013
At 4.47am, McKell used his iPad to track the first consignment online. At 5.31am, McKell sent a text message to Miljevic "Savo, do you have????"
At 5.32pm, Miljevic rang McKell. In the call McKell directed Miljevic to
"... just keep it on the truck, don't put it in the PDA cause I gotta transfer it, okay?
SM: Just call me when you want, I'm here (indistinct) what time do you want, what you wanna, I give it to you, I bring it to you.
JM: Yeah, okay, um.
SM: Half an hour, one hour.
JM: Yeah probably, what time are you going DHL?
SM: Ah, I'm here already.
JM: Okay keep it on your truck and then, where you going to next?
SM: Ah I'm going to (indistinct) because I couldn't (indistinct) I'm back going to Toll T2.
JM: Okay you'll be there for a while will ya?
SM: No, no, not really, I'll be maybe one hour. I have to pick up second run. I'm going to DHL O'Riordan Street. That's in, I have to do with 7 o'clock DHL O'Riordan Street.
JM: Yeah I'll probably see you after that.
SM: Okay no problem.
JM: So if they ask you, just say no it's not for you, okay. I've gotta transfer it, okay?
SM: No problem, no problem.
JM: How many pieces?
SM: Ah, five pieces.
JM: Yeah ok, thanks man.
SM: No worries man, bye."
At 8.06am, McGlone sent a text (SMS) to McKell "Should we aim for lunch time?"
At around this time, Miljevic collected Consignment 1 from Toll Dnata at Coward Street, Mascot. The consignment comprised five rectangular cardboard boxes and each was wrapped with plastic.
At 8.36am, Miljevic arrived at the DB Schenker freight depot, located in Bourke Road, Alexandria. At about 8.41am, McKell rang Miljevic and after establishing the truck was in Bourke Road, directed Miljevic, "Oh yeah, hang there, I'll be there in about ten minutes okay".
At 8.53am, McKell responded to McGlone's text message, enquiring whether they should "Aim for lunchtime" by text message "No now" and McGlone confirmed at 8.59am "Ok".
At 8.59am, McKell, driving the blue utility, entered the secure area of the DB Schenker freight depot and parked next to the Wymap truck. McKell exited the blue utility and opened the cover on the rear tray. McKell then removed five brown cardboard boxes comprising Consignment 1 from the Wymap truck and placed them in the rear tray of the blue utility and closed the cover.
At 9.02am, McKell departed the depot driving the blue utility. At about the same time, a white Holden utility vehicle (registration CIP11D; the "white Holden utility") being driven by McGlone drove into the underground car park at McKell's unit building in Broome Street, Waterloo. A number of cardboard boxes were in the front passenger seat of the vehicle.
The white utility was registered to Juan Fratti of 2 Autumn Leaf Place, St Clair, NSW. Mr Fratti, a personal trainer, gave evidence that he sold the vehicle for cash to an unknown person in early March 2013 in parkland somewhere in Auburn.
At 9.05am, McKell again rang Miljevic. The conversation proceeded as follows,
"SM: Hello chief.
JM: Yeah sorry, you didn't put in a PDA did you?
SM: No, no, no.
JM: No that's all right, because I'll put it on the manual. That's good, all good, thank you.
SM: Oh, okay, okay bye.
JM: Thank you, bye."
At 9.10am, McKell, driving the blue utility, entered the underground car park at 12 Broome Street and parked in the vicinity of the elevators. At about 9.30am, the white Holden utility being driven by McGlone drove out of the underground car park.
At 9.53am, CCTV footage recorded the blue utility arriving at Menzies depot located at Sydney Domestic Airport, Mascot.
At 10.08am, CCTV footage recorded McKell and Miljevic inside the office area of the Menzies depot. Miljevic was informed by McKell that it was a mistake, that the shipment he took was wrong.
About 10am, CCTV footage recorded McKell and Miljevic unloading the five boxes comprising Consignment 1 from the blue utility into the Wymap truck.
McKell left Menzies after they had put the boxes back in the truck. Miljevic continued collecting deliveries from Menzies that were going to be transported to DHL Global Forwarding in Coward Street, Mascot. Miljevic noticed that all five boxes had been opened, as they had been resealed with brown packing tape, including over the DHL sticker that had the airway bill number on it.
At 11.12am, Miljevic sent a text message to McKell "This boxes is open. Where is damage report".
At about 11.15am, Miljevic rang McKell and was directed to lie about the condition in which they had been received if anyone noticed when delivered. The conversation proceeded as follows,
"JM: Savo.
SM: Hey chief.
JM: Yeah mate.
SM: G'day mate (indistinct) I'm still here at the Menzies, I start to unloading in my truck.
JM: Yep.
SM: And then I found that the boxes was opened. There is different sticky tape around her.
JM: What?
SM: Sticky tape is different and is not original box like it used to be.
JM: Mm.
SM: What are you going to do now?
JM: What do you mean? What are you talking about?
SM: I'm talking about five boxes, my friend.
JM: Oh the five, yeah.
SM: Yeah.
JM: Don't worry about it, cause they were the wrong ones so it's all good.
SM: You reckon?
JM: Yeah mate, yeah, 100%.
SM: Okay chief, no problem.
JM: It doesn't - they're not open are they?
SM: Ah no, I can see mate, they put someone's sticker around her.
JM: I think that was that Direct Courier, that was Direct Couriers.
SM: All right because some of the boxes is put in sticky tape and easy to take off. It wasn't like that when I pick up this morning.
JM: It was shrink-wrapped, wasn't it?
SM: No, no.
JM: It came out on the skid?
SM: Yeah sticky tape, sticky tape, all around the boxes. He put it someone, I don't know who it does but it's much different.
JM: I didn't mate. To tell you the truth, I didn't even see that or check that, sorry, so it doesn't matter, just I'll, I'll - it's all good, I'll - I got you, okay, so don't worry about it, just here it is, that's how it came out if anyone asks, all right?
SM: Okay, no problem chief.
JM: Okay thank you, bye.
SM: Okay, bye."
At 11.38am, McKell rang Miljevic and denied knowledge of the resealing and again directed Miljevic to lie while endeavouring to placate him. The conversation proceeded as follows,
"SM: Hello, Savo speaking.
JM: Yeah Savo, you okay?
SM: Ah yeah (indistinct).
JM: (indistinct)
SM: Someone put stickers there around the DHL stickers, it can't be like that.
JM: Ah mate, I don't know, I took the boxes.
SM: (Over talk)
JM: Listen to me, listen to me, I dropped it off at Direct. They rang me up, don't worry about it.
SM: Okay.
JM: Just drop it off, just put it all amongst everything else and go "here's your pieces', they'll take it, they'll do whatever they want with it. Just say that's how it came out, okay?
SM: Okay
JM: Just say you collected it this morning and that's how it came out, otherwise if we start saying that we've got stickers on it, I will get in trouble, and I took the wrong boxes, so I'll get in trouble, okay?
SM: Okay.
JM: All right, so say it came out like that, all right?
SM: Okay, you know it's very dangerous, ah, chief, don't worry about putting sticky tape around the DHL stickers, mate, it can't be like that, all the stickers over is going around the sticky tape. No sticky tape around the DHL boxes.
JM: Well, I didn't know mate, I don't know, don't worry about it.
SM: (Over talk)
JM: Just say that you don't know, that's how it came out, okay.
SM: Okay chief, no problems.
JM: Okay thank you, bye bye.
SM: Bye."
At 12.45pm, customs officers attended at DHL in Coward Street, Mascot, and seized the five cardboard boxes comprising Consignment 1. It was observed that the boxes were sealed with brown packing tape. Forensic examination of the boxes identified the fingerprints of McKell on both the underside and top side of the brown packing tape used to re-seal them.
The evidence demonstrates that McKell had unlawfully removed Consignment 1 from an under bond transport, met with McGlone at 12 Broome Street, Waterloo, and provided McGlone access to Consignment 1. Consignment 1 was re-sealed and returned to the Wymap truck for transport to the DHL freight depot in Coward Street, Mascot.
At about 2.22pm, McKell used his iPad to track the second consignment online.
At about 5.42 and 5.54pm McGlone and McKell exchanged text messages arranging to meet the following morning. At 5.42pm, McGlone stated "Hey brekkie in the morning, can explain".
Saturday 14 May 2013
McGlone and McKell exchanged texts from 8.18am to arrange a meeting at 10am. McGlone arrived early at about 9.15am.
At about 9.41am, McGlone was in the vicinity of Crystal Street Waterloo. At about the same time, McKell used his iPad to track Consignment 2 online.
At about 9.45am, McKell used his iPad and attempted to track Consignment 3 online.
At about 10.15am, McKell met with McGlone outside the cafe Two Baristas, in Crystal Street, Waterloo. At about the same time, McKell again used his iPad to track the second consignment online.
Sunday 19 May 2013
At 8.10am, McKell used his iPad to track the second and third consignments. Between 8.34pm and 8.55pm that evening, McGlone and McKell exchanged text messages arranging to meet the following morning at 8am.
Monday 20 May 2013
At 7.38am, McKell used his iPad to track the second and third consignments.
At 8am, McKell sent a text indicating he would be ten minutes late.
At about 8am, Consignment 2 arrived in Sydney aboard a Malaysian Airways flight. The consignment bore the following details:
AWB 232-85019362
House Bill 5033691
Flight MH123
Arrival Date/Time 20 May 2013 0800
AP Fashion Haosen
Consignor: Garment & Screen Printing
Jannatabugh, Rayerbagh, Kadantoly
Dhaka, Bangladesh
T Shirt Printing Australia,
Consignee: 249 Addison Road,
Marrickville, Sydney,
NS 2204 Australia
Consignor Ph No 0405828816
Other contact details Mr David Rameh
Goods described as Printing Transfer Adhesive,
T-shirt non Printing
Cartons 22
Gross Weight 204 kilograms
Courier Company DHL
[4]
At 8.18am, McKell met with McGlone outside the Cafe Two Baristas in Waterloo. A listening device recorded the conversation as they spoke about, the flights and route of Consignment 2 and queried whether they had the wrong AWB for Consignment 3. Analysis of McKell's iPad reveals that at the time of the meeting, it was used to access cargo arrival information for the AWB of Consignment 2 and attempting to access the cargo arrival information for the incorrect AWB they had for Consignment 3.
"RM: Anything yet?
JM: Um (indecipherable, background noise). (Indecipherable) it's reported five minutes ago (indecipherable)
RM: (Indecipherable) I don't know, your call mate.
JM: Yeah.
RM: (Laughs)
JM: Yeah um, yeah (indecipherable)
RM: Yeah.
JM: Um oh well about 12 brother.
RM: Yeah.
JM: See you."
The conversation included reference to "BA15" and "Heathrow", which were references to Consignment 3 which was due to arrive on board flight number BA15 on 21 May 2013 from Heathrow, London.
Also said was "It's reported five minutes ago" being a reference to Consignment 2 which had arrived at approximately 8am on 20 May 2013, on board Malaysian Airlines flight number MH123.
At 8.22am, McKell and McGlone concluded their meeting. McGlone walked to Crescent Street, Waterloo and entered a silver Toyota Hilux, (Registration BMH07C - 'silver Toyota Hilux") and drove away. McKell was observed on CCTV footage entering the Danks Street shopping centre.
At about 8.29am, McGlone attended the Kennards Self Storage Facility, located in O'Dea Avenue, Waterloo ("Kennards"). McGlone entered the customer service area and purchased a number of flat pack cardboard boxes and two rolls of clear packing tape.
McGlone then attempted to load the flat pack cardboard boxes into the silver Toyota Hilux. At 8.39am, McKell sent McGlone a text message: "Don't forget to tape the trial".
At the time McGlone looked at his mobile phone.
At about 8.42am, McGlone returned flat pack cardboard boxes to the customer service area and at 8.45am, departed Kennards in the silver Toyota Hilux.
At 8.51am, McKell used his iPad to track Consignment 2 online.
At 10.28am, McGlone parked the silver Toyota Hilux on Morehead Street, Waterloo, adjacent to the white Holden utility. McGlone transferred a stack of flat pack cardboard boxes from the silver Toyota Hilux to the white Holden utility.
At 10.35am, McGlone entered the white Holden utility and drove into the underground car park of residential premises located at 2-4 Danks Street. McGlone then drove the white Holden utility to the underground car park of the Dank Street shopping centre.
At 10.50am, McGlone, in the vicinity of the white Holden utility, taped the base of a cardboard box. A number of cardboard boxes were on the ground at the rear of the vehicle.
At 11.30am, McGlone drove the white Holden utility from the underground car park of the Dank Street shopping centre.
At 12.22pm, McGlone sent McKell a text message "Spoke to friend, he said other one is close or here, grab details again so you can look."
At 12.37pm, McGlone carried flat pack cardboard boxes from the rear of the white Holden utility into a garage at the rear of 24 Evans Street, his residential premises.
At about 12.52pm, McKell used his iPad to track the second consignment online.
At 12.53pm, Miljevic received a call from McKell. The conversation was as follows:
"SM: Hello Savo speaking.
JM: Hello Savo, how are you?
SM: All right, thank you chief.
JM: Yeah where are you buddy?
SM: I'm here at Toll, Toll TP.
JM: For DHL?
SM: Yes correct.
JM: All right, remember that one last week, it's the wrong one, now I've got the real one. Can I, can I give you an airway bill for you to check?
SM: Ah okay mate, okay chief (indistinct) (the "indistinct" was words to the effect of "hold a sec, I want use piece of paper.")
JM: Yeah thank you.
SM: I'm ready.
JM: Okay 232.
SM: 232.
JM: Yeah, 8501.
SM: 8501.
JM: 9362.
SM: 9362, okay how many pieces?
JM: Think it's 22.
SM: 22?
JM: Around about 200.
SM: 200 kilos okay (over talk) put it in my PDA?
JM: No, not, don't like, cause I'll transfer it.
SM: All right, no problem, all right.
JM: Okay so if you can just get that and then, and put it on and then I'll come um, and meet you at your next port, okay?
SM: Okay and I'll just check it out now and let you know
JM: Yes please.
SM: Okay I'll let you know, okay bye.
JM: Thank you, thank you bye.
At about 12.59pm, Miljevic rang McKell and told McKell he had already put the consignment in his PDA. McKell told Miljevic to cancel it and to leave the consignment on the truck. McKell then spoke about meeting with Miljevic at a later time.
At 13.02pm, McKell attempted to track Consignment 3 online using his iPad.
At 13.20pm, Miljevic again rang McKell. Miljevic told McKell that he had the consignment on his truck. McKell told Miljevic "Stay five, I'll meet you somewhere, I'll meet you okay".
At 13.26, Miljevic sent a text message to McKell "I am rady (sic) to go".
At about 1.30pm, McKell rang Miljevic. During this call, McKell told Miljevic to pull out of Toll and park near "Hellman" or somewhere in front of the building.
At about 1.33pm, McKell parked the blue utility next to the Wymap Truck parked on Coward Street Alexandria. The location was directly outside Hellman Worldwide Logistics. McKell exited the blue utility and met with Miljevic. Both McKell and Miljevic unloaded a number of boxes from the rear of the Wymap truck and placed them into the blue utility. McKell entered the blue utility and drove away.
At 1.42pm, police stopped the blue utility near the intersection of Kent Street and Coward Street and arrested McKell with Consignment 2.
Following McKell's arrest and caution, the following conversation between McKell and police was recorded.
"Detective Glenzendorf: So Jason, did this bloke ask you personally to go and collect them?
JM: Yeah.
Detective: Or is this something you normally do?
JM: I have done it before for other clients. He asked me, he said 'there's an airway bill'. An airway bill is something that comes through on the client. He said 'Can you get these for me, they're DVD's. If they get ... if I get in trouble ... if they found, find out I'm importing DVD's I'll get in trouble. I don't know, like, I guess on a DVD it says pirating or something like that.
Detective: Like do not duplicate and things like that?
McKell: Yeah yeah, shit like that and I thought fuck.
Detective: So have these gone through customs inspection yet or you don't know?
McKell: Yeah, actually I don't know, well I assume so because they have come through the CTO. You know, they have to, they've got to get cleared off the plane, so they go from the plane, stop there, they're at Link Road, transported over to here and then we transport it from here to wherever it has to go
Detective: To wherever the customer is.
McKell: Yeah.
Detective: And what was the delivery address for these ones?
McKell: He just said I'll meet you at your place and pick them up.
Detective: Okay, what time?
McKell: Whatever time I said.
Detective: Have you said yet or not?
McKell: No.
Detective: Okay, but you said you had to phone him, is that right?
McKell: Yeah I'll text him and say I'll see you soon.
Detective: Okay.
McKell: And he will come to my house or he might say I'll meet you at wherever.
Detective: Did you speak to this -
McKell: Guy? No.
Detective: What's his name?
McKell: Rick.
Detective: Rick. Did you speak to him before you picked up the goods?
McKell: No
Examination of Consignment 2 revealed that of the 22 boxes, 15 were found to each contain five plastic pails, a total of 75 pails. The pails were labelled "Printing transfer adhesive" and "Made in Bangladesh" and each contained a fine white powder. The gross weight of the powder was approximately 77.7 kilograms.
Forensic analysis of Consignment 2 by the National Measurements Institute calculated the purities ranging between 80.7% and 81.9% with an average of 81.3%. The weight of pure pseudoephedrine was calculated to be 63,177.1 grams.
A black apple iPhone mobile telephone handset and a black Nokia C5-00 mobile telephone handset were located within the blue utility.
The Nokia C5-00 mobile telephone handset seized from the blue utility contained a Vodafone SIM card associated with telecommunications service 0450130655, the telecommunication service used exclusively by McKell for communication with McGlone on 0450134687, which was also used exclusively for communication with McKell from 11 May 2013.
Analysis of the Nokia C5-00 handset revealed that the contact numbers for a number of Wymap and DHL employees were saved in the contacts, including McKell. Further, incoming text messages from telecommunications service 0450134687 (McGlone) dating back to 5 December 2012 were recorded in the handset's memory.
Analysis of the Vodafone SIM card also revealed incoming text messages from telecommunications service 0450134687 (McGlone) dating back to 2 August 2012.
Analysis of the Apple iPhone mobile telephone handset revealed an electronic note entry dated 17 May 2013 containing the following details: the notation "AWB 232-58019362" which referred to the AWB of Consignment 2; and the notation "125-90383701 - no record" which referred to the consignment with AWB 125-93083701 (Consignment 3) with the numbers 3 and 0 incorrectly transposed.
ARREST OF McGLONE
At 2.52pm, McGlone exited 24 Evans Street and entered the white Holden utility and drove to Surrey Hills.
Pursuant to a Controlled Operations Authority, police took control of telecommunications service 0450130655 and moved the blue utility which substituted boxes purporting to be the complete consignment to the underground car park located at McKell's unit building in Broome Street, Waterloo.
At 2.53pm, McGlone sent a text message to McKell asking "What time?"
At 3.11pm, police using the 0450130655 service responded "Running a bit behind time, be there just after 5" to which McGlone responded "Okay". At 4.44pm, the officers sent "Here" and at 4.49 "Down in a sec".
At about 4.45pm, McGlone drove the white Holden utility into the underground car park at Broome Street, Waterloo. He opened the cover of the vehicle and exposed a number of brown cardboard boxes in the rear. He then walked over to the blue utility and lifted the cover and looked inside the rear tray. Police then arrested and cautioned McGlone.
McGlone was searched and located in his pocket was a grey Nokia dual SIM mobile telephone handset containing one Vodafone SIM card.
Analysis of the Nokia dual SIM mobile telephone handset seized from McGlone, revealed the handset was identified by two separate IME numbers, and that the Vodafone SIM card was for service 0450134687.
Analysis of the Vodafone SIM card revealed incoming text messages from telecommunications service 0450130655 (McKell) dating back to 17 May 2013.
As police were inspecting the tray of the white Holden utility, McGlone stated (after his arrest and caution) that the cardboard boxes located in the rear contained 75 pails of "substitute".
"McGlone: The five big ones have got 12 in them.
Detective: Sorry, what was that?
McGlone: The five big ones have 12, and the three small ones have five.
Detective: 12, what do you mean by 12?
McGlone: 12 of the substitute, 12 of the substitute.
Detective: Okay so 12 tubs?
McGlone: Yes.
Detective: Okay, what's the powder in there?
McGlone: Honestly, I don't know.
Detective: You don't know?"
McGlone intended to remove the 75 pails containing pseudoephedrine from Consignment 2 and substitute them with the 75 pails of inert substance from the rear of the white Holden utility.
The only rational inference is that the intention was to reseal the cardboard boxes, and return them with the substitute to the under bond transport system and deliver them to DHL, hence the pseudoephedrine would have been removed from the possibility of detection and its importation completed.
SEARCH OF McKELL RESIDENCE - Broome Street, Waterloo
On the evening of 20 May 2013, police executed a search warrant on McKell's residential unit in Broome Street, Waterloo. During the search, police located $400,150 in Australian currency in McKell's bedroom. The money was secured within a silver lock box. Located on the bedside table in his bedroom was a handwritten note detailing the number "125-90383701".
The number on the note referred to the consignment with AWB 125‑93083701, Consignment 3, with the numbers "3" and "0" incorrectly transposed.
SEARCH OF McGLONE RESIDENCE - Evans Street, Bronte
On the evening of 20 May 2013, police executed a search warrant on McGlone's residence in Evans Street, Bronte. During the search police located the following:
Plastic pails identical to those seized earlier that day and a quantity of inert white powder.
The pails were contained in cardboard boxes from which labels had been cut. At least one box had not had the labels removed. The labels were for "AP Fashion, Bangladesh" and "printing transfer adhesive". These were identical to the labels on the cardboard boxes associated with Consignment 3.
$4000 Australian currency within the walk-in wardrobe of the main bedroom.
$38,550 in Australian currency within the structure of a bench box seat in the main bedroom.
Within the walk-in wardrobe of the main bedroom:
18 clear plastic bags, each containing 1 gram of white powder of which 46.5% was pure cocaine located in envelopes visibly protruding from a jewellery box on the female side of the wardrobe.
5 tablets in a clear plastic bag containing 2C-B, a psychoactive drug with effects similar to MDMA, located on the male side of the wardrobe.
In the kitchen:
Tanita brand electronic scales in the cupboard which subsequently returned a positive result for traces of cocaine. Instructions contained with the scales indicated they were accurate to 2 grams.
SEARCH OF VEHICLE CIP11D - White Holden Utility
On 21 May 2013, police searched the white Holden utility. During the search, police located the following:
A grey coloured Kathmandu backpack containing rubber gloves and various roles of packing tape.
Eight cardboard boxes containing 75 pails of inert substance that were identical in appearance to the 75 pails of pseudoephedrine located in Consignment 2.
A cardholder containing the following: One NSW driving license in the name Richard McGlone, born 14 June 1976, one HID proximity swipe card, one Westpac handy card in the name of Richard McGlone and one handwritten note.
The handwritten note seized from the cardholder in the vehicle contained the following notations:
The notation "1259 308 3701" referred to the consignment with AWB 125-93083701 (Consignment 3).
The notation "5 pcs start ARG arrow DUB arrow SYD. why??" referred to the consignment with AWB 176-39785955 (Consignment 1) which consisted of five boxes loaded in Santiago, Chile, and routed by Buenos Aires, Argentina, and Dubai, UAE.
The notation "Shall they ring up about other one? 125?" referred to the consignment with AWB 125-93083701, (Consignment 3)
The notation "15 boxes 7 shirts" referred to the consignment with AWB 232-85019362 (Consignment 2) which consisted of 22 cartons, being 15 boxes containing plastic pails of pseudoephedrine and 7 boxes containing T-shirts.
Tuesday 21 May 2013
Consignment 3 - AWB 125-93083701.
At about 5.10am on Tuesday 21 May 2013, British Airways flight VA15 arrived at Sydney International Airport. A consignment with the following details was aboard the aircraft:
AWB 125-9308 3701
Flight BA015,
Arrival Date/Time 21/05/2013.
SDTMCI P/C GNAMIEN ERIC.
Consignor: 01 BP 2096 Abidjan 01
Abidjan
RCI
Consignee: Rich Limited, 1 Adelaide Street,
Bondi Junction, 2026 Sydney Australia.
Consignor PH 0405072880.
Goods described as Cacao butter, Shea butter, Loin Cloth.
Cartons: 2
Gross weight: 150 kg
Courier company Menzies Aviation Australia.
[5]
Consignment 3 was seized by Customs and handed to AFP members. Forensic deconstruction of Consignment 3 revealed it contained approximately 9.96 kilograms of a crystalline substance, methamphetamine, concealed in talcum powder bottles.
Forensic analysis by the National Measurements Institute calculated the purities ranging between 52.1% and 63.3% with an average of 57.2% and a weight of pure methamphetamine of 5,698.6 grams.
VALUE OF THE IMPORTS
The wholesale value of the pseudoephedrine if sold in a pure form on the black market is between $6.16 million and $6.93 million. If the pseudoephedrine was used to manufacture methamphetamine, the practical yield would be 58.88 kilograms of pure methamphetamine with a value, if sold on a per kilo basis, of between $11.6 million and $15.08 million.
The wholesale value of the methamphetamine if sold in crystal form on the black market is between $1.99 and $2.5 million and between $3.43 and $5.39 million in powder form.
OBJECTIVE SERIOUSNESS
The evidence before the Court demonstrates a very sophisticated and well-resourced criminal enterprise to import substantial quantities of border controlled precursor and drug into Australia. The enterprise required the establishment of a system to abuse customs procedures, requiring not simply a knowledge of the procedures, but the participation of a person in authority who was able to direct other persons to comply with breaches of the under bond customs transport system to enable removal of the substances from the system. Such a system must, as a matter of common sense, have been arranged prior to the investment of substantial funds to allow the purchase of the substances overseas and air transport. The quantities involved were substantial, as referred to above. The consignments originated from a number of different countries.
Consignment 1 - Chile;
Consignment 2 - Bangladesh;
Consignment 3 - Abidjan.
This alone discloses a truly sophisticated international criminal enterprise.
Consignment 2 involved the pre-arrangement of a significant quantity of substitute in identical pails to those in Consignment 2. There is no evidence as to when or how the substitute pails were imported, but the inevitable inference is that they had been imported from Bangladesh prior to the arrival of Consignment 2 in order to facilitate the removal of the pseudoephedrine while under bond and replacement with the substitute to ensure that the system would not be discovered and could continue to operate.
While not crucial, it also involved investment in the white utility for transport after removal of the imports, with at least the prospect that in the absence of the vehicle being stopped while occupied in the offences, any subsequent identification by the authorities of its involvement and enquiries as to its registered owner would lead nowhere.
Communications between McGlone and McKell were coded and on mobile phones used exclusively for communications between them relating to the importations with false subscriber details to hinder any possible discovery by the authorities.
McGlone on a number of occasions undertook to McKell to obtain further information, and subsequently responded with updates.
Despite the very high level of physical and electronic surveillance, the authorities were unable to identify the involvement of any other participant in the enterprise, nor were they able to identify any link between McGlone and/or McKell to the ordering, payment or arrangements for any of the consignments. This again indicates a sophisticated criminal enterprise.
The wholesale value of the importations has already been referred to. They were of very substantial value on the black market, being in the millions of dollars. While the legislation distinguishes between border controlled drugs and border controlled precursors on the basis of their nature, and within the separate categories on the basis of differing quantity thresholds relevant to commercial quantities, the quantity of any particular drug or pre-cursor remains an important consideration, although not the only consideration in respect of any assessment of the objective seriousness of an offence.
Pseudoephedrine is a precursor that can be converted to methamphetamine. Methamphetamine in recent years has become a very serious concern to the community because of the frequently publicised and known adverse consequences for users. It has penetrated all levels of society and all geographical locations. There is no urban or rural setting, large or small where it is now not available, and its harm to the community is legion. Those who participate in supplying the black market with methamphetamine or its precursor do so knowingly as to its pernicious effects, and in total disregard for the community and the law.
In respect of pseudoephedrine, the commercial quantity threshold is 1.2 kilograms or more of pure substance. 63,177 grams is more than 52 times the threshold.
In respect of methamphetamine, the commercial threshold is 750 grams or more pure substance. 5,698 grams is more than seven and a half times the threshold.
The extent to which a border controlled precursor or drug exceeds the commercial threshold is clearly a relevant matter to be taken into account in establishing the objective seriousness of the offence. In each case, the quantities were substantially in excess of the legislated threshold.
While I will subsequently deal with the respective role and participation of each of the offenders, I note that there is no evidence of a hierarchy in the enterprise, as opposed to whether the management and control was a flat structure where the various persons involved, including any potential co‑offenders, were of equal status but with different functions. Nor is there any evidence that would permit distinction between the offenders and any other possible co-offender on the basis of reward received or anticipated. Neither of the accused has provided any illumination on these issues at any time, either on arrest, at trial or on sentence.
An offender who wishes to be perceived as having a lesser role or participation than another must demonstrate that on the balance of probabilities. Of course, it is necessary for the Court, before taking any matter adverse to an accused into account on sentence to find facts consistent with the jury verdicts as well as find such facts beyond reasonable doubt. R v Isaacs (1997) 41 NSWLR 374, Olbrich v The Queen (1999) 199CLR 270.
In that light, the offences in respect of the importation Count 1 and conspiracy to import, Count 2, must be regarded as objectively very serious instances of such offences.
As to the respective offences relating to the proceeds of crime, I accept that the only rational inference consistent with the jury verdicts and the circumstances as to the possession of each of the offenders of the money, is that the money in their respective possession was as a result of, or as pre‑payment for, involvement in drug activity, and that the offenders were each cognisant of that fact. Each of the offenders was a principal in the possession. The particular circumstances of each possession have already been referred to.
In respect of McKell, the jury clearly rejected his evidence that the $400,150 in cash was the unrecorded cash winnings from his "on course" betting over a number of years. Such a rejection by the jury was inevitable in the circumstances of the evidence of his recorded betting with Tabcorp between 28 February 2012 and 29 August 2013, showing a loss of $117,934.88, and his William Hill account showing a loss between December 2006 and May 2013 of $136,177.73, giving a total loss between the two accounts of $254,112.61.
In respect of McGlone, who did not give or call evidence except as to character, the $43,150 was entirely inconsistent with his and his wife's tax returns and their outgoings in respect of lifestyle, rent and vehicle lease fees. That is, the evidence demonstrated a lifestyle not supported by income, and in circumstances of traces of cocaine being found on kitchen scales and eighteen 1 gram deal bags in the matrimonial walk-in wardrobe.
In those circumstances, in each case each particular offence is an objectively serious offence within the range of objective seriousness for such an offence.
[6]
SUBJECTIVE MATTERS - Jason McKell
Mr McKell gave evidence in the trial but not on sentence. Material in respect of subjective matters is sourced from the following:
The report of Dr Olav Nielssen dated 28 September 2016, and references from Maureen McKell, the mother of the offender, Debbie McKell, sister of the offender, Shaun Willey, brother-in-law, Corey Adams, Station Commander Balmain Fire Station And Vice President of the Cudgee JRLFC. John Dignan, financial accountant, Wymap Group, Anthony Demetrios, treasurer of Cudgee JRLFC, Keryl Byrne, a senior manager in banking and financial services and qualified lawyer, Scott Murray, Geoff Tunk, Richard Allen, Trent Collins, Dean Johnson, Brendan Prouse, all being football associates and friends of longstanding of the offender; Reverend Peter Baines, chaplain at Long Bay Correctional Centre as to the offender's regular attendance at church and being a "normal inmate".
The offender is 45 years of age and has only one past conviction, being for stealing as a clerk or servant in August 1999. He is the eldest of two children to his parents' union. Born in Queensland, he lived in New South Wales when young and in Penang, Malaysia, for several years before returning to Queensland. He and his younger sister spent two years residing with an aunt and uncle in Gladstone as teenagers. He completed the HSC in 1989 in Bundaburg, obtaining a score that would have allowed university admission. After high school, he worked in spare parts at an uncle's car yard before working casually in New South Wales while playing country rugby league.
In 1995, he moved to Sydney and worked in bars and clubs while pursuing his football career. He worked as a surveyor's assistant for two to three years before commencing work as a truck driver with Wymap Group in 2002. At Wymap, he progressed to being the Transport and Movements Manager in charge of 50 to 60 drivers and 20 trucks.
In this position he describes himself as "managing everything". He has obtained a Certificate III in Business Management and partially completed Certificate IV at TAFE to improve his understanding of management.
The offender's father, now deceased, was in the air force and did not work after leaving that service due to alcohol problems. He was abusive and occasionally violent to the offender, but not his wife. As a result, the offender only drinks socially and does not consume any prohibited drugs. He claims to have an anti-drug reputation in rugby league circles, and that assertion is supported by a number of the referees.
He is currently single, although he has had a number of relationships of some years. There is one son of a short term relationship and although he has paid child support, he has no relationship with the now 18 year old. He has given a lot of his time over the years to coaching and mentoring young rugby league teams and players. Many of his referees are persons whose friendship has commenced because of his association with football. His career as a player resulted in a number of injuries and operations which have left him with residual discomfort, dealt with by consuming anti-inflammatory medications, particularly for joint pain.
Mr McKell does not suffer from any mental or intellectual deficits, although he has suffered periods of despondency on the breakdown of past relationships, and has been anxious and depressed since being charged and has required an anti-depressant medication, PrIstiq. He saw a psychiatrist on one occasion and a counsellor on 12 to 14 occasions. Depression and anxiety are frequent consequences of being charged. He is said to be in partial remission, the anti-depressant being provided while in custody since trial.
He gave evidence in the trial and the Crown produced financial records of his recorded gambling accounts. He also called evidence as to his success at "on course" betting. He had part owned four racehorses and has had some very successful race days, but his recorded bets on races demonstrated a substantial loss for the years produced.
His family and friends view him in a highly favourable light and have expressed their ongoing support, and disbelief that he committed the offences. He has a very good reputation as a coach and football/life mentor to his teams which have endured substantial success. The community has benefited from his involvement in football.
Dr Nielssen opines that he "would appear to have a good prognosis and prospect for rehabilitation, from his age and current maturity, the absence of any pattern of anti-social behaviour or recurrent substantial use disorder, which are the main predictors of recidivism. There is also a history of continuous employment in a responsible role, which suggests that he would be able to return to full time employment at a similar level."
[7]
SUBJECTIVE MATTERS - Richard McGlone
Subjective matters are sourced from: the report of Ms Andrea Davidson, psychologist, dated 6 October 2016, Jody McGlone, wife of the offender, Paige Dowd, ex-defacto partner of the offender, Anthony Reilly, co-ordinator of the First Nations program at St Ignatius College, Riverview, John Restuccia, a director of Surf Life Saving NSW, Leigh Rockman, personal training client, a medical report by Dr Laura Gavson, psychiatry registrar, The Heidelberg Repatriation Hospital, Victoria, in respect of Ms Dowd, and printouts from the New South Wales Department of Corrective Services in relation to the offender's participation in a number of programs including Visual Arts, Health Survival Tips, Work Readiness, and a single page, also from New South Wales Department of Corrective Services, relating to the offender's work assignments, indicating work while in custody for a period of approximately a week in 2016 as an accommodation cleaner.
The offender did not give evidence in the trial, or on sentence. He is 40 years of age, was approximately 37 at the time. The offender has no previous criminal convictions. He was born in New Zealand, the second of three children, and is of Maori descent. With his parents, he migrated to Australia when he was four years of age. His parents separated in 2011 and he experienced an unsettled childhood characterised by a disconnected family life, absent close attachment and nurturing guidance. Although he displayed challenging social behaviour at primary school and was regularly disciplined for disruptive behaviour between Years 1-5, he found his interest in sports, being a successful rugby player, playing in representative sides from 12 years of age and his behavioural concerns had resolved by Year 7.
He completed the High School Certificate with average grades and embarked on a career as a professional rugby league player. Serious injuries, however, forced him to cease football in 1997, shortly after commencing his adult career. He subsequently worked as an airport baggage handler for five years before completing a certificate in personal training and commencing a business as a personal trainer. In 2008, he invested in a restaurant with his brother, which failed within two years, creating significant financial stress and causing the sale of his house to meet debt.
His interests and friendships have been orientated around his interest in sport and personal training. After high school, he commenced a relationship with Ms Paige Dowd. The union lasted approximately ten years, and there are three boys of the union, aged 19, 18 and 16. The eldest and youngest are already participants in the work force and their middle son was due to sit the recent High School Certificate. In 2005, he commenced a new relationship and married in 2006. There are three daughters of the union, aged nine, eight and approximately six months. The youngest child must of course have been conceived while the offender was at liberty awaiting trial, with potential significant consequences to his family circumstances being obvious.
He reported no history of problematic substance use, drinking alcohol occasionally and only using cocaine regularly when he was operating the restaurant. He briefly experimented with ecstasy in his twenties. The sporting injuries have left him with chronic pain in the hips and lower back, and although he has suffered intermittent mood disturbances since adolescence, they have never required treatment, either psychological or pharmacological, and he has no other mental health difficulties. He has had a relatively stable and functional adult life.
Ms Davidson, psychologist, opines that he does not have an entrenched pattern of conduct disordered behaviour during childhood or an anti-social personality, and that his strong intellectual, vocational, and social resources provide for a favourable prognosis, provided that there is management of his mood disturbance and counselling to assist him in dealing with his childhood experience of emotional abuse and the fractured relationship with his father.
The references from the persons that I have previously referred to demonstrate that the offender is highly regarded by the referees as a very supportive parent and partner who has a close and caring relationship with all of his children, as well as his wife and ex-partner. As a result, he continues to enjoy a high level of support, which can be expected to continue. He has contributed to the community through his support of youth engaged in sport.
There can be no doubt that his conviction in respect of these offences has created financial and emotional problems for his families, and that such problems will continue while he is incarcerated. However, these are the ordinary and expected consequences of committing serious criminal offences. It is very regrettable the offender did not give greater regard to the potential adverse consequences for his loved ones, if not himself, before embarking on this offending.
[8]
ROLE OF THE OFFENDERS
The critical consideration for the Court is to determine what each of the offenders did in participating in the drug importation offences.
The Court must have regard to the role played by an offender in the particular activities undertaken in performing that role. Care must be taken to ensure that a shorthand description of the offender's role does not obscure the assessment of what the offender actually did. The Queen v Olbrich (1999) 199 CLR 270 at [19].
[9]
McGlone
In relation to the importation of Consignments 2 and 3, McGlone did the following:
Used the 0450134687 phone service subscribed in false details exclusively to contact McKell. A code was employed in the communications dealing with the consignments.
Obtained the AWB numbers for the three consignments and provided them to McKell.
On at least six occasions over the course of a week, meet with McKell to discuss and make arrangements in relation to the three consignments.
Obtained the correct airway bill number from Consignment 3 from an unknown third party also involved in the importation at some time on 20 May 2013, making a handwritten note of the number.
Used a utility registered in the name of a third party, Carlos Fratti, in connection with Consignment 2.
Obtained pails and stickers identical to those within Consignment 2 filled with an inert substance in order to substitute them for the precursor in Consignment 2 and return the consignment to an under bond warehouse without being detected.
Purchased packing tape, implements and boxes to facilitate the substitution of Consignment 2.
Drove to McKell's basement car park with the substitute boxes and pails with the intention of taking possession of the contents of Consignment 2.
With respect to Consignment 3, entered into an agreement with McKell to import methamphetamine into Australia.
The agreed drug importation venture involved an agreement that McGlone and McKell would deal with the methamphetamine by:
1. One or both of them taking possession of the consignment after it arrived into Australia, and/or
2. Arranging for the release of the consignment after it arrived into Australia, such that it could be collected by or delivered to another participant in the conspiracy.
[10]
McKell
In relation to the importation of Consignments 2 and 3, McKell did the following:
Used the 0450130655 mobile subscribed in false details exclusively to contact McGlone. A code was employed in the communications dealing with the consignment.
On at least six occasions over the course of a week, met with McGlone to discuss and make arrangements in relation to the three consignments.
Instructed Andrew Neate, a Wymap employee, to make enquiries in relation to the airway bill numbers for all three consignments.
Used his iPad on numerous occasions to track the progress of the three consignments.
Reported back to McGlone about the enquiries he had made.
Made a note on his iPhone of the incorrect airway bill number he had at that time for Consignment 3.
Instructed an employee of Wymap under his direction, Savo Miljevic, to collect Consignment 2 and deliver it to him despite the fact that it was under bond freight and he knew this to be the case.
He instructed this employee to cancel the delivery of Consignment 2 from his electronic run sheet to avoid detection.
Took delivery of Consignment 2 from Miljevic with the intention of delivering it to McGlone in his basement car park.
Used his position of trust within Wymap and the under bond system to circumvent customs control of Consignment 2.
In respect of Consignment 3, entered into an agreement with McGlone to import methamphetamine into Australia.
The agreed drug importation venture involved an agreement that McGlone and McKell would deal with the methamphetamine by:
1. One or both of them taking possession of the consignment after it arrived into Australia and/or
2. Arranging for the release of the consignment after it arrived in Australia such that it could be collected by or delivered to another participant in the conspiracy.
The foregoing demonstrates that McGlone also played an essential role in the importation of the Count 1 and Count 2 consignments. He provided the airway bill numbers to McKell with a view to taking possession of the consignments, or making them available to the ultimate intended recipients. He was in contact with other members of the group and was to execute the substitution of the pseudoephedrine in Consignment 2 before it was to be returned to the freight forwarders. McGlone acted as the sole contact point between McKell and the organisers of the importation.
In relation to Consignment 2, the role played by McKell was vital to the success of the importation. His access to inside information and ability to access the consignment itself was premised on his role as "Movements Manager" within the Wymap Group. He was in a position to, and did, direct innocent employees of the business to assist him in gaining access to the consignments so as to make it available to McGlone. The importation of Consignment 2 could only have been put into effect with McKell's insider knowledge of the under bond freight system and the intricacies of the day to day operations of freight forwarders operating in and around Sydney airports.
McKell's role in relation to Consignment 3 was to track its progress and provide this information to McGlone with a view to taking possession of it himself or making it available to the ultimate intended recipients. As the receiver of the crucial consignment details, McGlone was in a position closer to those who had organised the importations than McKell, and may be viewed in that circumstance as more senior; however, the unique position occupied by McKell to facilitate the importations, and what he actually did in relation to the importations, places each of them on an equal footing in terms of their criminality.
[11]
AMOUNT OF THE DRUG
Despite the criticism expressed by the High Court in Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 the weight of the drug remains a relevant factor which the Court must have regard to in determining the seriousness of the offence. This is particularly so where there is limited evidence before the Court as to the extent of any drug organisation behind the importation. The weight of the drug will have increased significance where the offender has knowledge of the amount of the drug and/or the precursor to be imported. R v Nguyen and Ors (2005) 157 A Crim R 80 at [110].
With respect to Consignment 2, McGlone was aware of the quantity to be imported. This was demonstrated by his possession of the substitute pails. This was also demonstrated by McGlone having a line of communication with those organising the importation as evidenced by him obtaining the airway bill numbers initially and then obtaining the correct airway bill number for Consignment 3 some time on 20 May 2013. McGlone's contact with other unknown persons in respect of the third consignment and his necessarily detailed knowledge of the second strongly suggest he knew the approximate amount of drug concealed within Consignment 3, or at least that it would contain a substantial quantity to warrant the organisation and personal risk.
While there is no direct evidence to suggest that McKell was aware of the exact quantity of drugs or precursors to be imported in each consignment, the evidence does suggest that he knew that they contained a significant quantity with a not insignificant value. This includes:
The length McKell went to in terms of time and effort expended to effect the consignments and conceal his direct involvement;
The fairly sophisticated methodology employed to retrieve Consignment 2;
The amount of money possessed in his home, subject to the proceeds of crimes offence, the inference being that it is either accumulated wealth from previous activity or pre-payment for his involvement in the importation of the consignment;
The willingness of McKell to involve himself in this activity, in particular abusing his position of trust within his company, the inference being that he would only do this if he sought to gain considerably on a financial level;
He knew the size and the weight of at least Consignments 1 and 2 through his online tracking of the consignments, and had arrangements in place for the pick-up of the consignments via truck in the utility vehicle.
While there is no specific evidence to suggest that the offenders would receive any financial reward for their respective roles in the offences, the obvious motivation for each offender's involvement is the common sense inference that the offenders were involved for profit. There is no evidence to the contrary. R v Kaldor (2004) 158 A Crim R 271 at [104].
Given the value of the drugs, the offenders' important roles in the importation enterprise and the cash money located at each of the offender's homes, I infer that each offender was to receive a very significant financial reward for his involvement in the importation offences.
[12]
DETERRENCE
The principle of general deterrence is a relevant factor that must be taken into account when sentencing an offender under the Crimes Act for a Commonwealth offence. DPP (Cth) v El Karhani (1990) 21 NSWLR 370 at 377. It is a fundamental consideration when sentencing an offender for a drug importation offence. R v Riddell (2009) NSWCCA 96 at [55] - [58]. Sentences imposed on offenders in relation to offences such as these must be of such a severity as to deter others from engaging in illicit drug activities of this nature, and must signal to would-be traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment. R v Cheung Wai Man and Ors (NSWSC, 22 March 1991, unreported, per Sully J) and as cited in subsequent cases including R v Stanbouli [2003] NSWCCA 355 at [114].
Involvement at any level in a drug importation offence must attract a significant sentence otherwise the interests of general deterrence are not served. R v Pang (1999) 105 A Crim R 474 at 476. In relation to proceeds of crime offences, general deterrence is also of particular importance. Proceeds of crime charges by their nature tend to be difficult to detect, investigate and to prosecute. This type of offence critically involves the possession (or disposition) of funds used or gained from illegal activities, without confidence in which the original crimes would be unlikely to be committed in the first place.
In relation to specific deterrence, the offences before the Court were not an uncharacteristic aberration for the offenders. The cash seized in each of the offender's residence, and the drugs and scales (contaminated with traces of cocaine) located at McGlone's residence indicate that both offenders have been engaged in the drug trade over a period of time, although neither is being sentenced except in respect of the current offences.
Accordingly, there is a strong need for specific deterrence in this instance. Objectively viewed, the offender's criminality is very high, and a substantial period of full time imprisonment is the only appropriate sentence in the circumstances to have an adequate deterrent effect on these offenders and to reflect general deterrence.
As previously referred to, the trial with the offenders commenced before me on 8 June 2016, and continued for some 25 days. The jury returned their verdicts on 21 July 2016.
McKell gave evidence at trial, as he was entitled to. He mounted a positive defence case that he believed that Consignments 1 and 2 were direct freight and not subject to customs control, and that he did not believe or suspect that Consignments 2 and 3 contained either a border controlled precursor or a border controlled drug, respectively. He denied any involvement in the drug trade and gave evidence that the money located in his bedroom was the proceeds of gambling activity that stretched back over a number of years.
The manner in which he conducted his defence is not an aggravating feature, but it does establish a lack of entitlement to any discount for contrition or remorse.
As at 13 September 2016, when consulting with Dr Nielssen, he continued with his complete denial of having committed the offences and maintained his funds were from a legitimate source. He continues to demonstrate by that a lack of insight into his offending.
Neither of the offenders has demonstrated any contrition or remorse for their offending.
Mr McKell has a previous conviction, preceding these offences by approximately 14 years, involving a breach of his employer's trust but he had managed since that time to reach a position of authority with Wymap. That is a period of relative good character subsequent to the 1999 offence. I previously referred to the high regard he is held in by his associates.
Mr McGlone of course has no prior convictions. It is, however, a well-established principle that for offences of this nature, prior good character is generally of less weight as a mitigating factor. Onuorah (2009) NSWCCA 238 at (49).
Neither Mr McKell or Mr McGlone is entitled to any leniency that might otherwise be afforded to first time offenders in circumstances where it is clear that their involvement in these matters was not an isolated event, but part of an ongoing involvement in the drug trade, as demonstrated by:
The large amount of cash located at each of their premises
The high patterns of personal spending above their legitimately earned income. In the case of McKell, represented by gambling losses, and in respect of McGlone, car, holiday and housing expenses.
The cocaine pills and scales contaminated with traces of cocaine located at McGlone's residence.
The coded communication between the two offenders using phones registered in false names over a period extending potentially up to 12 months before their arrest.
I have previously referred in particular to the hardship to the family of Mr McGlone, however hardship to an offender's family will only operate as a mitigating factor where it is sufficiently extreme - that is, beyond the sort of hardship which inevitably results to a family when a parent is incarcerated. It does, however, remain as a relevant factor to take into account as part of an offender's "general mix" of subjective features, and I have done so.
It has been submitted by Mr Smith on behalf of the offender McGlone that, in some aspects, although not specifically identified by Mr Smith, there was some cooperation with the Crown during the course of the trial.
One of the first exhibits was in fact the Agreed Facts in relation to the actual importations, that is, the circumstances, and there was further cooperation during the course of the trial in relation to the compilation of a number of summary schedules, which I have no doubt would have made it easier for the jury to follow the evidence. It was, however, in the interest of all parties not to unnecessarily prolong the matter. Either way, Mr Smith SC's submission was in effect that the trial was not as protracted as it might have been. I will, however, as part of the instinctive synthesis, take into account that there was some reasonable level of cooperation. That applies to both offenders, even though the submission was only made by Mr Smith.
Proceedings were commenced in the Supreme Court against each of the accused in respect of the respective sums of money found on their premises and in respect of which they were convicted. Each of the offenders consented to the forfeiture of the funds, the subject of the proceeds of crime charges. That, in the circumstances, is a matter of assistance that can be taken into account on sentence. However, in relation to the forfeiture order and cooperation during the trial, while taking them into account as part of the instinctive synthesis of establishing an appropriate sentence, they are not such as to result in some calculated discount for the sentences to be imposed.
In respect of Mr McKell, there was some assistance also provided by him at the time of his arrest in relation to indicating where, in accordance with his false story, the DVD's were to be transported. That, in the circumstances known to the authorities at the time, even though given for the purpose of supporting the false story, was of assistance, as it enabled the police to continue the anticipated delivery to Mr McGlone and obtain further relevant evidence to support what could otherwise be inferred from the significant level of physical and electronic surveillance that had already been carried out. Again, I will take that assistance into account as part of the instinctive synthesis.
I have been provided with references to a number of cases by the Crown and by Mr Smith SC, as well as relevant statistics. In particular, Mr Smith has relied on the matter of De La Rosa (2010) NSWCCA 194 and the attachment to that judgment of the schedule as provided by McClellan CJ at CL. I note in respect of that case that McClellan J, subsequent to that decision, pointed out that De La Rosa was not a guideline judgment but simply a collection of cases placed in various categories as his Honour saw fit. I have referred to the schedule and the cases contained in it on a general basis. I have also referred to the other cases to which I have been referred by the Crown and by the parties, as well as the statistics themselves.
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Amendments
27 April 2017 - Formatting issue resolved
01 September 2020 - Formatting error on cover sheet amended.
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Decision last updated: 01 September 2020
In relation to the statistics available through JIRS, I have also taken the opportunity, as is now available, to drill down through the individual entries in order to find individual cases, particularly where the statistics are linked to the report of the case, as the statistics on their own, in the absence of such information as to quantity, in particular, and other matters such as assistance, are a very blunt tool, as has frequently been observed by the New South Wales Court of Criminal Appeal. At the end of the day, the Court must take into account the matters that are listed in s 16A(2) of the Crimes Act 1914 together with common law principles and must impose a sentence that is of a severity appropriate in all of the circumstances as required by s 16A(1) of the Act.
Of course, of significance is the seriousness with which such offences are regarded, as is indicated by the maximum sentences provided by the legislature. In particular, the conspiracy offence to import methamphetamine has a maximum sentence of life imprisonment, and in respect of the offence of importing a border controlled precursor, pseudoephedrine, the maximum sentence is at the second highest level of seriousness provided in respect of any Commonwealth offence, that is, 25 years imprisonment.
The Court must also take into account there are a number of offences. Although the importation and conspiracy to import offences occurred as an actual event within a narrow timeframe, they are separate offences and each is significant. The Court must take into account the need to reflect, in any sentence imposed, the seriousness of the different offences, and the fact that they are separate offences. The methamphetamine and precursor offences are both legally and factually discrete, and have a different gravamen. The proceeds of crime offences are also different offences to the importation offences.
Accordingly, there is a need for accumulation in respect of each of the offences for each of the offenders. However, in determining the actual sentence, the Court must have regard to the principle of totality as referred to in Pearce v R (1998) 194 CLR 610.
Despite the lack of contrition or remorse, I am of the view that considering each of the offender's relative good character and the lack of other offending by Mr McGlone, and at least for a period of approximately 14 years for Mr McKell, that there is a reasonable prospect that neither of them would reoffend in the future.
There can be no issue in respect of this matter, the significant seriousness of the offences and the roles of the offenders, that there can be any alternative in each case to a term of full time imprisonment, and no such submission has been made on behalf of either of the offenders by their counsel in recognition of the common sense inevitability of a prison term.
Mr McKell, would you please stand?
I have taken into account all of the matters that I have referred to, and if I did not say it at the conclusion of the trial, you are convicted in relation to each of the three counts relating to you contained on the indictment. I refused bail on 21 July 2016 and you have been in custody since that time, solely in relation to these matters. You were arrested on 20 May 2013 and released on 21 May 2013. Accordingly, the sentence will be backdated by two days from 21 July 2016.
I will deal first with the sentence in respect of the proceeds of crime matter, contrary to s 400.4(1). The sentence is a term of imprisonment for two years and six months. Having been backdated from the date of your refusal of bail, that sentence commences on 19 July 2016 and will expire on 18 January 2019.
In respect of the offence being the conspiracy to import methamphetamine, contrary to s 307.1(1) and pursuant to s 11.5(1) of the Criminal Code, you are sentenced to a term of imprisonment of ten years. That will commence six months after the commencement of the last imposed sentence. That is, it commences on 19 January 2017 and will expire on 18 January 2027.
In respect of the offence of importing the border controlled precursor pseudoephedrine, contrary to s 307.11(1) of the Criminal Code, the sentence is one of 16 years. It will commence two years subsequent to the commencement of the last imposed sentence. That is, it will commence on 19 January 2019. That means that the total length of the sentences imposed is a term of 18 years and 6 months commencing on 19 July 2016. The total term will expire on 18 January 2035.
In dealing with the offence of importing the border controlled precursor, I have also taken into account the offence contained on the s 16BA certificate, noting of course that the maximum penalty that could be provided in respect of that offence, relating to Consignment 1, had only a pecuniary penalty available.
I am required to set a non-parole period in relation to that total sentence, and the non-parole period will be 11 years and 9 months, with a balance of six years and nine months. The non-parole period will expire on 18 April 2028 and I order that you be released on parole on 18 April 2028. Thank you, you can sit down.
Mr McGlone, would you please stand?
You are, if I did not say it at the conclusion of the trial, convicted in respect of each of the three offences. Again, I have taken into account all of the matters that I have previously referred to. You were in custody from 20 May 2013, being the date of your arrest, until being released on bail on 8 November 2013. That is a period of 173 days. At the conclusion of the trial, I revoked your bail on 21 July 2016. I deal firstly with the offence contrary to s 400.6(1) being the proceeds of crime matter. The term of the sentence is five years imprisonment, taking into account the period of time you have been in custody and backdating to accommodating the earlier period of custody. That sentence commenced on 30 January 2016 and will expire on 29 January 2021.
In respect of the offence relating to the conspiracy to import methamphetamine, contrary to s 307.1(1) and 11.5(1), the sentence is one of ten years imprisonment. It will commence one year after the commencement of the last imposed sentence. That is, it will commence on 30 January 2017 and expire on 29 January 2027. In respect of the offence involving the importation of pseudoephedrine, contrary to s 307.11(1) of the Criminal Code, the term of the sentence is 16 years.
It will commence two years after the commencement of the last imposed sentence. That is, it commences on 30 January 2019 and will expire on 29 January 2035. That with accumulation means a total sentence of 19 years commencing on 30 January 2016 and expiring on 29 January 2035. I am required to provide a non-parole period in respect of that period, and the non‑parole period will be 12 years. The non-parole period will expire on 29 January 2028, so I order that you be released on parole on the expiry of the non-parole period. Thank you, you can sit down.