Solicitors:
Commonwealth Director of Public Prosecutions
File Number(s): 2016/240824
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Judgment
HIS HONOUR: Many offenders coming for sentence to this Court have terrible backgrounds. They are raised by parents who model illegal behaviour. They are abused, they do not have guidance and they associate with criminals.
The offender has no excuse whatsoever for his behaviour. He was raised by his widowed mother in an appropriate way. She made sacrifices to give him a good education. He studied, had a job and the support of his family.
Yet he on two occasions now has committed offences involving the importation of drugs. Only one reason has been suggested for his involvement in the offences for which I must now sentence him, financial gain, or to put matters more bluntly, greed.
In 2013 the offender was dealt with by another judge of this Court in 2013 for two offences of importing pseudoephedrine and for possessing cocaine and a restricted substance. The sentencing judge made a finding that the pseudoephedrine was to be used by the offender as part of some body building activity. Her Honour also said this "The chances of his re‑offending are very low". I mean no criticism of her Honour when I say that that prediction has proved to be inaccurate. Indeed, were I in her Honour's position I would probably have made the same finding. But it remains the case that within a year of having completed the bond imposed upon him by her Honour in 2013, the offender involved himself in two very serious importations of cocaine.
The statement of facts tendered by the Crown reveals what I would describe as a sophisticated operation to import cocaine into Australia. It was apparently quite a successful one until the authorities were able to intervene. Clearly there were a significant number of people involved in the enterprise and equally clearly what I have to focus on is the role played by the offender in identifying the level of his criminality.
The drugs were to be sent into Australia by air cargo transport. One described as glass sculptures was sent from California arriving in Australia in early August 2015. Another consignment was described as a car positioning wheel dolly. It was sent to Australia, again from California, in May 2016.
In relation to each consignment the offender played a particular role. It was his role to track the shipment and to pass on the information he thereby obtained to others. He did this by repeatedly accessing the DHL website, they being the company transporting the shipment, and in relation to the first shipment also making a telephone call to DHL in which he made an enquiry over the phone using a false name. The statement of agreed facts records this:
"The offender communicated the tracking information he obtained to another person or persons involved in the importations. The offender expected to receive a substantial cash amount for his role in the importations."
There is something of a puzzle. The offender was not the only person tracking those shipments and indeed anyone in the world could have got onto the DHL website and found out information about the shipments if that person knew the relevant consignment number. The puzzle is what was the purpose of the offender doing what he did? As I say, anyone involved in the importation could have himself or herself made the enquiry that the offender made.
I have of course to avoid speculation and not allow suspicions to enter into this sentencing exercise. I am not going to sentence the offender on the basis that his role extended beyond what I have described, but I am going to accept the Crown's submission that for reasons which may not be apparent, those involved in the importations must have perceived that the offender was especially suited to the role he played. One does not receive a substantial cash amount for doing something that anyone else in the world could do.
So I repeat, I am not going to sentence him on the basis that he had a greater role than simply checking the DHL website, making a telephone call and passing on the information he received, but I am going to sentence him on the basis that he was going to get a substantial cash amount for that work and that for reasons which are impossible to identify his role was regarded as significant by those involved in the enterprise.
I mentioned before that the offender has no real excuse for what he did. His background has been made clear to me. His mother provided an affidavit which, after some discussion, the Crown indicated that he did not wish to cross‑examine her upon. I mentioned that she was a widow. The offender's father died when he was very young, three years of age. Of course that presented challenges, but his mother brought him up in a loving and caring environment. He had the odd difficulty at school with bullying but nothing out of the ordinary, and certainly nothing which would provide any excuse for his criminal behaviour.
At the time he committed these offences he was studying, he had a good job and he was engaged to be married. Upon his arrest things have rather got worse for him. He has separated from his fiancée, he has lost his job and he had been in custody since his arrest on 2 September 2016.
His time in custody has not been easy either. Part of the problem relates to some very inaccurate reporting, and indeed some very dangerous and irresponsible reporting by the A Current Affair television program. It was reported that he was a senior executive in Rio Tinto. That appears to have resulted in an attempt to extort some money from him which, when the attempt failed, led to an attack upon him, an attack with either a fist or a sandwich press which has led to long terms consequence for the offender, in particular his hearing.
But worse was to come. Some so-called expert on this television program said that the fact that the police had been able to access the encrypted BlackBerry that the offender was carrying upon his arrest meant that he must have been assisting the police. Of course a demand had been made upon the offender. He had been told that it was an offence not to provide the password for the BlackBerry and in those circumstances he did what was required of him. For it to be said that he was somehow a police informer was not only wrong but dangerous indeed.
Oral evidence was given today by a former cellmate of the offender. He reported what happened as the television program was played in gaol. Chants of "dog, dog, dog" began to emanate from the wing and a short time after that his cellmate noticed that the offender had been wounded. The offender told him that he had been stabbed. Others have since seen what appear to be scars from stab wounds on the offender's body.
Given the evidence of the offender's former cellmate, and the evidence of the injuries which he suffered, I am satisfied that the offender was attacked in custody as a result of that irresponsible television program.
Gaols are terrible places. They are places where violence is ever present. But the conditions of custody are made even worse when an inmate is suspected of having assisted the authorities. The offender has been serving his time in custody on protection. It is no longer automatically the case that that will result in a lower sentence. After all, there is no guarantee that the offender will serve the entirety of his sentence on protection, and even then there is no guarantee that the conditions of custody will be harsher than those applying to the general prison population. But there is a risk that both of those things will take place. I will take into account those risks in formulating the appropriate sentence to impose upon the offender. Those risks, at least partially, relate to a matter I am not going to refer to.
The offender pleaded guilty at the earliest opportunity. The sentence I impose upon him, taking into account his willingness to facilitate the course of justice and another matter, will be about 40% less than it would otherwise have been.
There are a number of things which are difficult to understand in this case. I have already referred to a couple of them. But perhaps the most obvious is why this man would do what he did, especially having done something broadly similar in the past.
Many references were tendered to me today. They attest to the offender's character and they all speak highly of it. True it is that not all of those referees appear to have been made aware of Mr Schwartz's earlier offending, but even taking that into account the offender has done much in his life that he is entitled to be proud of. I mentioned before that he had a good job and was studying. He was successful at university too. He had started his own business importing tea. He assisted charities. So there is much to be said for the offender's character in a positive way.
But it remains the case that he has now, on a number of occasions, committed serious criminal offences. Nor was this offending on this occasion something that involved a single isolated act which the offender immediately regretted. His involvement in each of these importations extended over a significant period and involved repeated enquiries of the DHL organisation.
The offender must also have known that these importations were of significant size. He may not have known that each of them was four times the commercial quantity, that being the quantity that exposed him to life imprisonment, but he must have known, given that he was about to receive a substantial cash payment for what he did, that drugs were involved and not a small quantity of drugs at that.
The offender expressed his remorse in a letter to me and many of the referees spoke about expressions of remorse that the offender has made towards them. Remorse is something which is easy to say but difficult to assess. One thing that makes it easier for an offender's expression of remorse to be accepted is when the offender gives such evidence from the witness box during his sentence proceedings but that did not happen in this case. Frankly, I am not able to make a decision as to whether the offender's expressions of remorse are genuine. They may be or they may not.
Of course, general deterrence is of prime importance in this case. It is undeniable that drugs cause enormous harm to individual drug users in our community. It is undeniable that there are unscrupulous, even at times, evil people who satisfy the demand for drugs purely for profit and it is undeniable that the profits which can be made are enormous. For that reason, general deterrence must be given full weight in most sentences imposed for drug importations especially drug importations, of the size with which I am dealing.
Specific deterrence must also not be ignored in the present case especially given the offender's prior offending. He was dealt with leniently by the sentencing judge on that occasion. He should have reflected upon how lucky he was but he apparently did not, allowing the prospect of financial gain to operate on him in a way which led him to become involved in these two significant importations.
I have spoken about the offender's mother on a number of occasions in these remarks on sentence, let me return to one aspect. Hardship to third parties such as the offender's mother can only be taken into account when such hardship is exceptional. As a result of the offender's behaviour, the offender's mother has been significantly distressed, and she has had to endure threats, but unfortunately such consequences to her are not exceptional at all. Of course, the offender, however, will do his time in custody harder knowing that he has made his mother's life much harder than it deserves to have been.
Both the Crown and Mr Boulten SC, who appeared for the offender today, provided me with comparative cases. Mr Boulten suggested that some of them were not terribly comparative at all. Of course, no two cases are alike. I found all of the cases relied on both, Mr Crown's and Mr Boulten's, as helpful to me and I am able to take into account the similarities and differences and make appropriate allowances when determining the sentence to impose upon the offender. I impose sentence as follows:
For the first offence committed in 2015, I impose a sentence of imprisonment of four years to commence on 2 September 2016. For the second offence committed in 2016, I impose a sentence of four years imprisonment to commence on 2 September 2018. The head sentence is thus effectively six years. I set a non-parole period of three and a half years to date from 2 September 2016 which will expire on 1 March 2020.
Mr Schwartz, it is my job to explain the sentence to you. The most important date you need to know is 1 March 2020 because you cannot be released before that date. Whether you are released or not on that date or after it depends not on me but on the parole authorities. Once you are released you will be spending the next two and a half years, if you are released on 1 March 2020, in the community but still be serving your sentence.
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Decision last updated: 04 May 2018