R v Sara

NATURE AND CIRCUMSTANCE OF THE OFFENCE S 16A(2)(a) OF THE CRIMES ACT

1. In short the facts are agreed and extracted in a ten-page document. I do not propose to read all of the facts onto the record given that the material can be easily assayed by reading the agreed facts. The following short details are drawn from that document. On 23 July 2014 police commenced an investigation into the importation of border-controlled drugs into Australia with a principal focus on importations using ocean-going vessels. The substantive operation here was called "Operation Okesi". As a result of the investigation the authorities investigated and ultimately charged various individuals with a total of five discrete conspiracies. This offender was involved in the first of those conspiracies known as the "Fiji conspiracy" and had no involvement in any of the later conspiracies notwithstanding that those latter conspiracies included some of the co-conspirators in the Fiji conspiracy together with other offenders over time. Although the conspiracy charges activities between 14 August 2014 and 13 January 2015, I am unable to be satisfied beyond reasonable doubt of any involvement by this offender in the conspiracy from any time earlier than 20 October 2014, and I can only be satisfied of his involvement beyond reasonable doubt to a date on 23 December 2014. Accordingly although he pleads guilty to a conspiracy operating for a longer period of time, his involvement is limited to actions having taken place a little more than two calendar months.
2. In summary Joseph Dagostino is a cousin of Joseph Pirrello. Through Joseph Dagostino, Pirrello met Garcia. Dagostino and Garcia had been friends for many years. Pirrello became acquainted with Garcia from about mid‑2014. Joseph Dagostino was aware of drugs arriving in Fiji which an overseas syndicate was seeking to import into Australia and presented the idea of the Fiji importation to Joseph Pirrello in the middle of 2014. There were discussions about Pirrello using his experience in the commercial fishing industry to pick up the drugs in Fiji and bring them to Australia. Joseph Dagostino indicated to Pirrello that he had to split his share of the proceeds with three other people, his partners. Some time later Joseph Dagostino introduced Pirrello to this offender and they also met with Frank Dagostino and Garcia in relation to the Fiji importation.
3. This offender was an Australian point of contact and an intermediary between what I will describe as the overseas participants and the Australian participants who were to provide the service to bring the drugs from Fiji to Australia. Mr Sara was aware that the importation was in relation to about 28 kilograms of heroin in the gross, although it is accepted between the parties that it is proper for this Court, consistent with principle, to sentence him in relation to conspiracy to import 18 kilograms of pure heroin.
4. There was initial planning toward the importation by co-conspirators other than this offender and on 20 October 2014 Pirrello, Joseph Dagostino and this offender met at the Star City Casino to discuss the importation. After Mr Sara had left the meeting Joseph Dagostino told Pirrello that the importation from Fiji was a trial and in effect was designed to test the methodology in advance of larger future importations. The co-conspirators were in contact with somebody called "Aaron" who was to attend in Fiji, effectively, to take delivery of the drugs there after they had been cleared in an uninterrupted fashion through customs at Fiji by dint of the use of a corrupt customs official. Unbeknownst to the parties, the person Aaron was an undercover police operative and much, although not all, of what is known about the offence derives from his involvement. Included within the material supplementary to the agreed statement of facts are some extracts of Blackberry communications between the undercover operative and a number of the co-conspirators including communications between the undercover operative and this offender.
5. On 5 December 2014 Joseph Dagostino, Frank Dagostino, the undercover operative and this offender met in Haymarket and discussed the importation. Relevantly, before Mr Sara arrived, Frank Dagostino told the undercover operative not to talk about percentages or money from the importation in front of Mr Sara. The undercover operative asked Frank Dagostino whether this offender was the one overseeing everything and Frank Dagostino replied "Pretty much, yeah, he's in contact with what is happening over there so". It is difficult to see exactly what reliance can be placed on that statement in terms of defining Mr Sara's role.
6. At a time after Mr Sara and Joseph Dagostino arrived at the meeting Mr Sara indicated he had been advised that the drugs would be available in Fiji from 13 December 2014 and that there was some connection to Laos and Thailand. The undercover operative indicated that he was ready to travel to Fiji. They discussed a vessel to be used to bring the drugs back to Australia, but the undercover operative expressed some concerns about how he would get the drugs onto the boat depending on how many packages there were. Mr Sara indicated there would be 104 packages in total comprising 80 "plates" or "half catties" of heroin which were 350 grams each or around 28 kilograms gross. It is that material that gives rise to my finding beyond reasonable doubt that Mr Sara knew the weight and kind of drug involved. Mr Sara explained that his contact had "a door" in Fiji that would help move the drugs without incident through Fijian customs. At that meeting there was discussion that included Joseph Dagostino, this offender and the undercover operative about the importation being a trial toward future, bigger, importations.
7. The undercover operative indicated that he wanted to use a Blackberry to communicate with both Mr Sara and the contacts in Fiji and asked Mr Sara to provide that Blackberry at his own expense. Relevantly, Mr Sara indicated that he did not want to ask his associates to pay two and a half thousand dollars for the undercover operative to have a Blackberry. In due course the undercover operative agreed to make arrangements to pay for the Blackberry himself and Mr Sara agreed to source a Blackberry and in due course assisted the undercover operative with the features and operation of same.
8. Again relevantly in terms of an overt aid to establishing this offender's role, Mr Sara said "In this you've got one side, you've got another side and you've got a piggy in the middle to put it together like a middle man, we're the middle man", and the undercover operative said, "We might be the middle man brother but we're also the ones going to take the most risk, particularly myself".
9. Joseph Dagostino made comments including confirming "the main Asian bloke" involved in the importation was travelling to Fiji, and that material is consistent with Joseph Dagostino having his own connection to overseas contacts over and above any connection provided by this offender.
10. In due course there is a range of communications between this offender and the undercover operative at the time that he had travelled to Fiji. In the most part, apart from advising as to some delays in the arrival of the shipment to Fiji, the bulk of the communications made by Mr Sara to the undercover operative consisted of him forwarding, without commentary, communications that he had received from what I might describe either the overseas connection, that is somebody of inferentially Asian origin, and also a local Fijian connection by the name of Kai.
11. In due course the shipment was seized by Fijian authorities and the success of this conspiracy came to an end. As I have indicated the last effective overt acts by Mr Sara were undertaken on 23 December 2014. On 8 January 2015 the undercover operative attempted to communicate with the Blackberry service that had been operated by the offender saying "Hey brother Happy New Year, how have you been? Are you around next week, I will be back in Sydney if you want to catch up". That can be understood in my view as an interest in the undercover operative re-engaging with Mr Sara for whatever reason. Then, on 13 January 2015, the undercover operative again communicated with the Blackberry service that had been operated by Mr Sara saying: "G'day mate I spoke to Italian [code name for Joseph Dagostino] today but he couldn't give me any answers. No drama. I just wanted to catch up with you for a coffee to see what your people are saying went wrong in Fiji. Just be good to put my mind at ease so I don't have to worry about anything and learn from what went wrong so it doesn't happen again, and I can get back to business [inferentially a reference to further legal activity]. Let me know when is good for you, cheers."
12. On the same day the service that had been operated by Mr Sara communicated to the undercover operative's Blackberry: "Hi mate, I think you have the wrong person, there's more than one person uses this phone, but I have an idea who you're talking about. I'll pass on the message or you can get this Italian guy to contact your friend."
13. I find in relation to that communication beyond reasonable doubt that it was sent by Mr Sara to the undercover operative. Although that message was likely sent in an attempt to avoid detection by Mr Sara, I also find on the balance of probabilities that it represented a voluntary termination of any involvement in the exercise and that view is buttressed by the fact that there had not been any active engagement by Mr Sara in terms of moving the conspiracy forward since 23 December 2014. Additionally, on that issue, it emerges as available to my mind on the balance of probabilities that the other members of that conspiracy did not have any further need for the services of Mr Sara, and that sounds, to some extent, in the determination of his role.
14. In assaying the role of Mr Sara the following matters are relevant. As I have indicated there was overt material to at least define part of his role, that is, as a "middle man" creating introductions between two sets of people, the overseas people involved in transporting or landing the prohibited drugs in Fiji, and those from Australia who planned to transport the drugs from Fiji into Australia. Although the Crown invited me to draw an inference that one portion of the profits unaccounted for might have been this offender's share, the reality is there is no material on which I could be satisfied about the degree to which Mr Sara was to be rewarded for his involvement in the matter. I am unable to be satisfied beyond reasonable doubt it was a substantial amount but I am prepared to infer to that standard that there must have been some plan for financial reward.
15. Wilson J in Supreme Court proceedings determined on 14 December 2018 sentenced Mr Pirrello as being the principal in relation to the Fiji conspiracy. I do not have the facts that related to Mr Pirrello's matter before me. The Crown do not contend that Mr Sara is a principal. It is however the prosecution's submission that he was central to the conspiracy. Mr Walker SC who appeared for Mr Sara invited me to characterise Mr Sara's involvement as being toward the lower end of involvement. Mr Walker proposed that Mr Sara could be seen as a "mere conduit" between the two sets of parties that I have referred to earlier. Having carefully considered the material, and perhaps unsurprisingly, I arrive at a characterisation of the offender's role and criminality that is between the two extremes that have been the subject of the parties' submissions. It is clear from the material before me that Mr Sara was a middle man in the sense of introducing two sets of interested parties one to the other. He had knowledge of the amount of drug, the type of drug and the way in which it was packaged. He had the facility to put the Australian side of the operation in contact with somebody who could allegedly (although not in the event) have the drugs move without Customs detection into Fiji. I take into account that on the material the agreement to import seems to have been well established in advance of the offender's overt involvement. There is nothing to suggest that the offender either had a capacity to or in fact directed any of the parties as to how to engage and execute their various tasks. There is nothing to suggest that the offender was to be involved in the storage of drugs. Indeed there is some material that suggests he was not to be on notice of the ultimate storage places either in Fiji or eventually in Australia, and there is nothing to suggest that he was to be involved in the distribution of any imported drugs. There is other material from which it is possible to arrive at the view that the offender was not the only point of contact in Australia for the overseas participants.
16. Apart from his role in making the initial introduction between the two sets of parties, there was some limited continuing involvement in terms of Mr Sara communicating with the undercover operative delays in the arrival of the shipment and forwarding onto him communications from both the offshore person known as Kim Chi and the Fijian contact Kai. His role was an important one. It was not essential to my mind. There was also some level of trust, but there was a greater risk of exposure to risk by this offender than by some of the people more senior in the hierarchy. I do not accept the characterisation that the offender had a central role as contended for by the prosecution and I do not accept the proposition, for the offender, that he was toward the lowest end of the hierarchy. His role, as I characterise, is one of being important in terms of this conspiracy but of no further utility to the co-conspirators in relation to latter matters, places him toward the lower end of the hierarchy but not at the lowest end.
17. In relation to the weight of the drug, although 18 kilos of pure heroin exceeds the threshold for the commercial quantity by a significant degree, it was a relatively small amount of drugs when compared say with the later conspiracies in which the other co-conspirators involve themselves. I will return to that aspect briefly as it is relevant to considerations of parity in due course.
18. It is accepted that following on from Wong v R (2001) 207 CLR 584 at para 68 and following that the weight of the drugs should not be given too much emphasis in the sentencing process, although there is, as I have said, knowledge that this offender was aware of the weight involved given the relatively lower role in the enterprise that I have determined reduce significance should attach to the weight of drugs in terms of my assessment of the objective criminality of the offence, see R v Pham, Tran & Dang; ex parte DPP (Commonwealth) [2017] QCA 46 at para 35.
19. In assessing the circumstance of the offending I have regard to the fact that the undercover operative being engaged in the conspiracy at a early stage, the conspiracy was destined to failure. In that regard I have regard to what Badgery-Parker J said in R v Taouk (1998) 65 A Crim R 387 at para 390 and following. His Honour's comments about the importance of assaying whether an attempt to import was unlikely to succeed were adopted in the context of an attempted importation offence in R v Irusta (2000) 117 A Crim R 6 at para 41 and following. Accordingly the objective gravity of the offender's conduct is somewhat reduced because of the unlikelihood success of the planned importation.

SECTION 16A(2)(b) OTHER OFFENCES TO BE TAKEN INTO ACCOUNT

1. There are no other offences to be taken into account. Mr Sara falls for sentence in relation to the index offence only and no other.

ANY INJURY, LOSS OR DAMAGE RESULTING FROM THE OFFENCE S 16A(2)(e)

1. Given what I have already said about the inevitability of failure, there was no injury, loss or damage that resulted from the offence. That said, had the conspiracy succeeded and the heroin been imported into Australia, it is well understood the level of both health distress and social disruption that is likely caused by the distribution of border controlled drugs to, and ultimately the use by, the drug-addicted.

CONTRITION S 16A(2)(f) OF THE CRIMES ACT

1. Although the offender did not give sworn evidence, I am persuaded on the balance of probabilities that he is in fact remorseful. The reasons for that determination are, first, he pleaded guilty at a relatively early stage in the Local Court. Second, within the material tendered there is an unsworn letter to the Court from the offender in which he expresses, in his own words, and vividly, his remorse and regret about his involvement in the matter. Within the written material submitted, both an affidavit of one of his sisters, references from his father, his other sister and his brother, and a number of supportive friends, there are included expressions of remorse made by Mr Sara to them recorded by those persons. Additionally from a body of material obtained from his custodial records there is a case note from Ms Yeow, a psychologist in the employ of New South Wales Corrective Services, in which there are expressions of guilt and shame. Additionally Mr Sara expressed his remorse when comprehensively assessed by Alison Cullen, forensic psychologist. On the basis of all those materials I consider he is remorseful.

SECTION 16A(2)(g) THE PLEA OF GUILTY

1. I take into account the early plea of guilty as being demonstrative of Mr Sara's willingness to facilitate the course of justice. It is accepted by the prosecution that the plea of guilty was early although not at the earliest possible point in the proceedings. It is proper since Xiao v R [2018] NSWCCA 4 for this Court to exercise its discretion by nominating a discount having regard to the offender's willingness to facilitate the course of justice and having regard to the utilitarian benefit that flowed from the plea of guilty. In the circumstances of this case I record that I propose to apply a discount of 25% on that basis.

SPECIFIC AND GENERAL DETERRENCE NEED FOR ADEQUATE PUNISHMENT S 16A(2)(j)(ja)(k)

1. As already indicated general deterrence is an important part of sentencing for these types of offences. I accept in circumstances where the offender has two minor irrelevant matters on his record and then has been, as a man in his early twenties, served a period of imprisonment for three supply offences in relation to prohibited drugs, there is an additional need for specific deterrence in his case. Having said that, I am persuaded that his period to date in custody has been made more difficult because he has effectively spent almost three years on remand in maximum security. Additionally because of circumstances to do with the breakdown of his marriage and some very difficult circumstances attaching to his mother to which I will return, I am persuaded that the period on remand has already done a lot of the work of specific deterrence in this particular case. It is inevitable, given the stoutness of the sentence to ultimately be imposed taking into account all the countervailing considerations in this particular case, that there will be adequate punishment achieved by the sentence to be imposed.

CHARACTER, ANTECEDENTS, AGE, MEANS AND PHYSICAL OR MENTAL CONDITION S 16A(2)(m) OF THE CRIMES ACT

1. The offender presents a powerful subjective case. As I have indicated there is a detailed psychological assessment of him. Although it is the case that the offender did not give sworn evidence adopting the history given to forensic psychologist Alison Cullen, I am prepared to ascribe significant weight to her report and to the findings therein. That is principally because there is a concordance between historical psychological records within Corrective Services and more recent records during the period of Mr Sara's remand. Further, some of the history given to Ms Cullen was derived from medical reports and psychological assessments of the offender since he was a relatively young man. There is also a concordance between the material provided from members of Mr Sara's family and supportive friendship group and particularly from the very detailed affidavit of his sister, Stephanie Neville, who was not required for cross-examination by the prosecution.
2. I do not propose to slavishly summarise the material in the offender's subjective case, but extract the following short matters. The offender is now 34 years of age. He was born in this country to a Lebanese father and an Australian mother. He continues to have very strong family support and is one of four siblings in a very tightly knit family. The offender is devoted to his faith, has been since a young age and has deeply re-engaged with that faith since being back in custody. The offender completed high school and studied a builder's diploma part-time but did not conclude the final year of that study. When in the community the offender has maintained continuous employment including working with his father from time to time as a builder. He has demonstrated a work ethic while in custody. He has maintained employment while in custody including being a leading hand in the textiles unit, working in the laundry and also in the kitchen. It would seem from the material before me that he is well regarded by custodial staff. He is observed to apply himself diligently both to work and to the units of study that he has undertaken. The offender first commenced to use drugs at the age of 14 using both marijuana and cocaine and did so until he was incarcerated for the first time in 2007. The evidence suggests that thereafter he ceased all illicit use of drugs. His custodial record is clean of any infringements.
3. Although the offender's family unit is a tight one, his mother regrettably suffers from mental illness and across his teenage years and again much more recently she has attempted suicide. The most recent suicide attempt was at a time after the offender went into custody and had ceased to have any meaningful dealings with his mother. Inferentially there seems to be a connection between her suicide attempt and that state of affairs. Additionally as I have indicated the offender's marriage broke down since he went into custody. On my reading of all the material that would seem consistent with the offender releasing his wife from the burden of being involved with him while ever he was in custody.
4. The offender himself has an extended medical and psychological and psychiatric history. He has been diagnosed with obsessive compulsive personality disorder, attention deficit hyperactivity disorder and adjustment disorder when he was a child. He has had a long history of oppositional behaviour together with depression and anxiety and for those two latter conditions he remains subject to a medication regime that seems to manage those conditions.
5. Although Ms Cullen opined that Mr Sara's OCPD "contributed to his offending conduct…" I am not persuaded that there is sufficient evidence of a link between his mental condition and his offending so as to either reduce his moral culpability or reduce the importance of considerations of general deterrence in his case. I do take into account that his time in custody will be much more onerous because of his constellation of mental health difficulties. There is explicit evidence about that in the custodial psychological records and in his own heartfelt statement to the Court. The prosecution accepted that the principle as set out in R (Commonwealth) v De La Rosa (2010) 205 A Crim R 1 at para 177 and 178 operated in terms of the onerousness of his custodial conditions. As I have indicated he has, to my mind, visited upon himself some extra curial punishment both in terms of the loss of his marriage and the fraught conditions in relation to his mother's mental health and the distance between them which has since ameliorated. Those are other ways in which additional to his mental condition and the high security rating that he has been subject to while on remand that either had operated or will operate to make his time in prison more onerous than for others.

SECTION 16A(2)(n) PROSPECTS OF REHABILITATION

1. Although the offender has a prior record for involvement with prohibited drugs which denies him a leniency which somebody without that record would enjoy, in a guarded fashion consistent with the contention of the prosecution I formed the view that Mr Sara has relatively good prospects of rehabilitation. The reasons for that are first that, notwithstanding the existence of his prior sentence of imprisonment, he was able to serve out his period on parole without breach or incident. Additionally he was able to employ himself gainfully in the period before he went into custody. He has a strong support network to assist him when he is released in due course. His prior record of consistent employment and his expression of desire to return to useful work are also protective factors.
2. Ms Cullen's assessment, which I accept as to his reduced risk of recidivism, identifies "additional protective factors" as including "strong familial support, religious affiliation, meaningful and achievable job prospects and stabilised mood (following resumption of his psychotropic medication)". Ms Cullen while identifying that a number of past diagnosed conditions no longer operate including ADHD, Tourette's syndrome, intermittent mood disorder and bipolar. Those issues dissipating together with his continuing conditions being amenable to medication, also increase his prospects of rehabilitation in my view.
3. Another reason I formed the view that Mr Sara had relatively good prospects for rehabilitation, my finding that he voluntarily terminated his involvement in the conspiracy.

PARITY

1. It is important in this case to have regard to the principles of parity directly in relation to Mr Pirrello and in a muter fashion, in relation to other co‑conspirators or offenders dealt with in relation to some of the later conspiracies. As I have indicated, Wilson J sentenced Mr Pirrello as the principal of the Fijian conspiracy in relation to which this offender is a co‑conspirator. It is inevitable, given her Honour's finding and my findings about Mr Sara, that Mr Sara is less criminally culpable, and significantly so than Mr Pirrello. Mr Pirrello, among other matters, pleaded guilty to a rolled up charge that incorporated his criminality for both the Fijian conspiracy and another conspiracy, the second in time, known as the Eclipse conspiracy. That matter had as its object the importation of 400 kilograms of cocaine with Mr Pirrello's anticipated share of the proceeds equating to $1 million. In relation to the rolled up charge Mr Pirrello, who was ultimately sentenced to an aggregate sentence, attracted for that matter an indicative sentence of ten years. Given that Mr Pirrello attracted for various reasons a sentencing discount of 50% the parties agree that her Honour's undiscounted starting point sentence in relation to Mr Pirrello's criminality across the Fijian and Eclipse conspiracies, as being 20 years.
2. Mr Pirrello was a person who was 65 years of age at the time of sentence. Her Honour took the view because the aggregate sentence likely in real terms, represented a life sentence or something close to it for Mr Pirrello. That matter somewhat ameliorated the sentences indicated both for reasons of totality and because of Mr Pirrello's age, his unblemished record and his positive contribution to the community across many years. However, her Honour did accept that Mr Pirrello's lack of a record made him attractive as a co-conspirator to others involved and that somewhat discounted the weight that should attach to his blameless record.
3. I have been provided by the prosecution with a digest of some potentially analogous cases. It was accepted on behalf of the Crown that there was no case that imitated this matter with any particularity, but I received those materials to help me ascertain an appropriate range. Similarly I had regard to material tendered by the prosecution which is described as sentencing authorities. What those cases summarised were the sentences imposed on some of the offenders involved (but no co-conspirators) in relation to some of the later conspiracies in which Mr Pirrello was involved. Mr Crown availably identified that many of those offenders were functionaries who had relatively low level or very low level and last minute involvement. Against that Mr Walker SC availably identified that many of those offenders stood to gain large sums of money and were involved albeit as aiding and abetting conspiracies in importations that involved pure quantities of border-controlled drugs including 388 kilos, and 449 kilos, being significantly more serious importation offences than the one that this offender faces. I have had regard again to those materials to assist me in determining an appropriate range however they are less apposite given that each of those offenders were dealt with for aid and abet importation of a commercial quantity rather than conspiracy. The more direct comparison for parity purposes needs to be made with Mr Pirrello. Mr Pirrello as I have said was significantly older than this offender, had no record, was sentenced as a principal, gave evidence before her Honour and was found to have good prospects of rehabilitation. This offender of course has a prior relevant record, voluntarily withdrew, did not have an essential role in the one conspiracy with which he had involvement, and suffers far more significant mental health difficulties than Mr Pirrello who was perhaps unsurprisingly depressed at the time of sentence. There is nothing that suggests that Wilson J had regard to Mr Pirrello's custody as being more onerous because of mental health issues although she accepted that his older years would make his time in custody more difficult than younger people.
4. Now coming to the formal part of the orders, having considered the starting point sentence and the differences which cut in opposing directions in relation to Mr Pirrello and this offender, I have determined that an appropriate starting point sentence for this offender's involvement, taking into account all the matters that I have identified, would have been ten years. Mr Sara is convicted. After the application of the discount the offender is sentenced to a period of imprisonment of seven and a half years to date from 27 December 2016 and to expire on 26 June 2024. There is to be a non‑parole of five years which means that the earliest date of release to parole is 26 December 2021.
5. Mr Sara I am obliged to explain the sentence to you. I do not think it takes much explaining but the whole sentence is seven and a half years. I started at ten, applied the sentencing discount of 25%, the longest period that you would serve is that seven and a half years. The earliest date that you will be available for consideration to parole is that five year mark which is 26 December 2021. I have done the best I can to balance the completing issues in this case. I am very confident that you would be a very good candidate for parole and if things continue in the way that they have for the balance of your minimum term, I would anticipate the parole authority would release you to parole as soon as you are able to do that. Ms Lopez do you require any further explanation of the sentence to your client?
6. LOPEZ: No, that was very clear, thank you

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2020