Mr A Williams (Counsel for the Offender)
File Number(s): 2019/169145
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Judgment
James Mirceski, aged 26, appears for sentence having pleaded guilty to one count under s 400.42 of the Criminal Code 1995 (Cth), the particulars being that on about 10 December 2017 he attempted to deal with money where there was a risk that the money would become an instrument of crime, being reckless as to the fact that there was a risk it would become an instrument of crime in relation to a Commonwealth indictable offence, and at the time the value of the money and property was more than $100,000. The maximum penalty for this offence is ten years imprisonment or a fine.
The offender has spent no time in custody and he has no criminal record.
The detailed facts set out an attempted importation by a criminal syndicate of an extremely large quantity of cocaine as the background to this matter. However it is important to note that there is no suggestion that the offender had any knowledge of the drug importing activities of that syndicate, but it does set the background against which his offending occurred. In short, two shipping containers arrived in Australia in March 2017. The Australian Federal Police had been investigating an international criminal syndicate responsible for the importation of a large amount of cocaine into Australia, and they seized 1.28 tonnes of cocaine, said to have a street value of between $700,000 and $1.5 billion.
It was asserted by undercover operatives eventually that the container had been lost, but then the police commenced attempts to obtain evidence of the involvement of the syndicate members responsible for the importation. There were meetings arranged by secure telecommunications devices known as a Cipher. Those meetings occurred in various parts of Australia, New Zealand and Belgrade, Serbia. Some of the principal members of the syndicate were detained in Serbia and have been returned to Australia and are being prosecuted.
As part of the attempt to lure the syndicate members into negotiations to fix the situation of the missing container, arrangements were made for an exchange of $300,000 to occur in Sydney in December 2017.
The first involvement of the offender which, as Mr Williams of counsel put, extended over a period of about five hours on that one day, emerged when he is described in a Cipher message, and at about 10am, following instructions he had been given, the offender entered a Woolworths supermarket at Campsie and purchased a specified quantity of chicken breast.
Before that time, one of the group's participants named OM had sent a series of photographs to an undercover operative known as Ivan depicting wrapped chicken breast and three stacks of Australian currency, which was proof that OM's associates were in possession of cash at the time. Ivan instructed OM to tell your guy to go to a car park at Tempe. Police saw the offender get out of a Mercedes hatchback near Tempe carrying a backpack and an orange in his hand.
There was then an instruction to go to a golf driving range at Barton Park. The same Mercedes, wasdriven by an unknown male with the offender in the front passenger seat. The undercover officer met with the offender. He asked him if he liked grilled chicken and the officer responded, "I love grilled chicken breast" and the offender told the UCO that he had 300 here and that he was told to give the code and do a count and not to leave until he gets a phone call.
The offender put the blue bag on the ground and opened it, revealing a large amount of Australian currency. He told the UCO that the receipt was in one of the bundles and the offender told him that there were 30 bundles of ten in the bag, and he said he had been up since 9 am counting the cash.
At about 2.05pm the offender and the UCO observed a suspicious‑looking male drive into the car park and stare at them, and they became concerned about the observer's intentions. They both got back in their cars and drove out of Barton Park. The offender was still in possession of the cash. The UCO informed Ivan on the Cipher chat that the cash handover had not gone ahead because of this. At about 2.35pm the Mercedes departed from Barton Park with the offender in the passenger seat and the unknown male driving the car. The vehicle went to park in the offender's residence at Bexley.
It was not until almost 18 months later, on 29 May 2019, that Australian Federal Police officers attended the offender's residence at Bexley and served a Court Attendance Notice upon him. That ultimately led to a plea of guilty, and in light of what the Court has said in Xiao v R (2018) 96 NSWLR 1 and subsequent cases, the Court considers the extent to which a plea of guilty may reflect remorse and contrition, and that the plea may also demonstrate a subjective willingness to facilitate the course of justice, notwithstanding that it was in the light of a strong Crown case, given that the meeting between the offender and the UCO was part of a controlled operation. Although state sentencing principles in this area do not strictly apply, it is appropriate in my view in these circumstances to apply a 25% discount on any term of imprisonment due to those factors.
Shortly after his first contact with the Police, the offender commenced a treatment program with a clinical and forensic psychologist, Mark Milic, and has seen him on numerous occasions since June 2019. He appeared to the psychologist as being very disappointed in him-self for damaging not only his sporting career, but his relationship with his parents and his reputation. He had been given the opportunity to play Rugby League for the Serbian national team in late 2019, which involved him in applying for bail variations to enable him to travel to Serbia, and as Mr Williams indicated, that is some indication of his willingness to accept responsibility and abide by Court orders without a breach.
He started gambling at an early age, and became preoccupied with various forms of gambling. He said he was embarrassed about the extent of his losses and he hid them from his friends and family. He said he had spent about $70,000 on gambling over the years. In his version of the offending adopted in evidence here today, was that someone had offered him $10,000 to deliver a bag full of money, and he saw that as an opportunity to alleviate some of the financial damage that his gambling had caused him, which by that stage had left him with a debt of $15,000.
He has prevailed upon his parents to give him $10,000 from their hard‑earned life savings. He said he had recently attended a poker night but had resisted the temptation to gamble. He was diagnosed as having a gambling disorder. He has strong prospects of rehabilitation according to the treating psychologist, who annexes to his report a peer-reviewed article on pathological gambling and criminality.
He has taken steps to engage in the Positive Lifestyle Program at the Salvation Army, which will be of assistance in his rehabilitation. He has the support of his employer where he works as a telecommunications technician. He is described as open and honest about his criminal offending, which came as a complete shock to his employer, who describes the offending as completely out of character. He has expressed remorse and regret to his employer.
His mother, father and maternal grandfather also provide lengthy references in support of him, and they describe their disappointment in seeing his downfall in 2017 during a challenging year when he was struggling with his gambling addiction. They have obviously spoken to him in great detail about his offending and he has expressed sincere remorse to them. He has strong family support which will be of assistance in his rehabilitation. They have noticed a significant change in his behaviour since he has come under the care of Dr Milic, and they assert that he is now leading a positive life and will, but for this mistake, continue to be a law‑abiding citizen.
He also expressed remorse and regret to the author of a Sentence Assessment Report and he understands now that he has been made aware of the drug importation attempts behind the offending, that laws need to be in place to stop massive amounts of drugs from ruining people's lives.
He was assessed as being at a low risk of reoffending and suitable for community service work.
As is frequently the case in this type of matter, the offender declined in evidence to mention the name of the person who approached him about becoming involved in this offending. He also declined to nominate that person in response to police enquiries. This refusal to identify the person, notwithstanding the fact that he has been advised by his lawyers of the likelihood of a reduced sentence if he were to proffer assistance to the authorities by way of nominating that person, shows that he is not prepared to take the risk which he perceives of harm or injury to his family and loved ones.
He says that he was under the influence of cannabis at the time which clouded his judgment but as the Crown quite properly extracted from him in cross-examination he was not so far under the influence that he was unable to follow the instructions that he was given as to participating in the attempted handover of the money.
It is not suggested that he had any knowledge of the drug importation activity and he said that he was aware, even though he did not ask the person if there was some illegality, he clearly thought that perhaps the money was going to some underground gambling source given that he had seen this person involved in stakes of up to $1.3 million in a high roller's room at the casino.
His counsel acknowledges that this is a very serious offence, and acknowledges that he was reckless as charged. He points out that he was clearly acting at the direction of others on the day of his involvement. He makes reference to the period of two years and three months since this offence occurred and to the efforts that he has made to address his gambling and drug problems. He acknowledges that the fact that the attempted handover was to an undercover operative does not reduce his moral culpability to any great extent to the sentencing process.
He points to the fact that the amount involved, namely $300,000 was significantly less than the next threshold in the scale of offences being $1 million.
He highlights the offender's expressions of genuine remorse and his determination not to reoffend. I accept that his prospects of rehabilitation are good and unlikely to reoffend having learned a salutary lesson from this experience.
The Crown's helpful written submissions point to the matters to be taken into account when sentencing in accordance with Pt 1B of the Crimes Act 1914 (Cth). The role of the offender in a money laundering type case must be considered in the light of principles summarised in R v Ansari (2007) 70 NSWLR 89.
Here the offender played an important role in the attempted handover of $300,000 cash. The source of the cash was unknown but his involvement, as I have said, spread over the period of about 10am until after 2pm when he purchased the chicken and travelled to Arncliffe and engaged in the activities and the attempted handover before being frightened by a suspicious male and he undertook every step that his role in the offending required except for the ultimate handover of the money to the UCO.
Financial reward is the acknowledged motivation for his involvement in the offence in the light of his evidence.
The Crown correctly points to the need for general deterrence to feature prominently in the sentencing process.
The Crown notes that a sentence of imprisonment may only be imposed pursuant to s 17A of the Crimes Act 1914 (Cth), if that it is the only appropriate sentence.
I have taken into account the statistics and the four comparable cases of Du Randt [2008] NSWCCA 121, Ihemeje v R [2012] NSWCCA 269, Van Eeden v R [2012] NSWCCA 18 and R v Guo; R v Qian (2010) 201 A Crim R 403; [2010] NSWCCA 170 referred to in the Crown's submissions.
He has been on conditional bail since 18 June 2019 and while the Crown ultimately submitted in writing that a full-time custodial sentence with time to serve was the appropriate sentencing option, the Crown acknowledged the Court's discretion as to the way in which a term of imprisonment may be served.
I am satisfied that a term of imprisonment should be imposed, but having regard to the purposes of sentencing to which I have referred, and as summarised by the Crown, and having regard to the fact that there is no suggestion of any risk to the community's safety I am satisfied that a term of imprisonment of one year and ten months, after the discount to which I have referred, should be imposed and that such sentence may be served by way of an intensive correction order. The orders that I make are:
1. The offender is convicted of the offence.
2. I impose a sentence of imprisonment of 1 year, 10 months.
3. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the court directs the sentence to be served by way of an intensive corrections order commencing today.
4. The offender is to report to the OIC at the Sutherland office of CCS at 9am, Monday 23 March 2020.
5. The conditions to apply during the term of the order are as follows:
STANDARD CONDITIONS
1. You must not commit any offence.
2. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.
ADDITIONAL CONDITIONS
1. Undertake 200 hours of community service work.
Anything further, Mr Crown?
FLOOD: I do note, your Honour--
HIS HONOUR: It is usually at this stage that the Crown stands up and says there is another schedule or--
FLOOD: No, no, your Honour.
HIS HONOUR: There's a confiscation order or there is a--
FLOOD: No, nothing like that. I do note that there is the general orders in relation to accepting treatment but there is a specific treatment plan that is attached to the report that was tendered.
HIS HONOUR: Yes. Do you want me to make that a condition?
FLOOD: I think that given the emphasis that's been placed on his underlying gambling issues that I do ask that, your Honour.
HIS HONOUR: I am happy to do that. Yes. The additional condition:
(d) Accept the continuing recommendations of Dr Mark Milic regarding rehabilitation and treatment
FLOOD: Thank you, your Honour.
WILLIAMS: May it please the Court.
HIS HONOUR: We will just print out some amended orders containing that and we will send those out in a minute. Thank you both for your assistance. Do you understand, Mr Mirceski?
OFFENDER: Yes, your Honour.
HIS HONOUR: I have imposed a term of imprisonment but you are to serve that term of imprisonment in the community as long as you comply with the conditions of what which are:
1. To not offend at all.
2. To follow the recommendations and directions of your psychologist, and
3. To perform 200 hours of Community Service Work.
The fact that you have your family here is a significant matter and don't abuse the trust and the hope that they have placed in you, all right, because if you breach this order in any way, Mr Williams has probably told you, you won't come back before me or before any other judge, they will just arrest you and take you off to gaol. All right?
OFFENDER: No worries.
HIS HONOUR: That's what usually happens, so that is a significant threat hanging over your head.
WILLIAMS: Thank you, your Honour.
OFFENDER: Thank you, your Honour.
Note - These extempore remarks were revised without access to the court file.
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Decision last updated: 20 May 2020