R v Shah

District Court of NSW|2022-07-22

index OFFENCE FACTUAL BACKGROUND ARREST AND INTERVIEW SUBJECTIVE CIRCUMSTANCES PSYCHOLOGICAL ASSESSMENT COMPARATIVE CASES CROWN SUBMISSIONS DEFENCE SUBMISSIONS CONSIDERATION DETERMINATION

OFFENCE

The offender, Abdul Malik Shah was found guilty on 28 April 2022 in respect of one count on indictment of attempting to possess a marketable quantity of a border controlled drug, namely cocaine. The quantity of cocaine imported was a nett weight of 400.3 grams which had a purity of 83%. This relevantly led to a calculated pure weight of cocaine of 332.2 grams.
Such an offence contravenes s 307.6(1) and s 11.1(1) of the Criminal Code Act 1995 (Cth).
The maximum penalty prescribed is imprisonment for 25 years and/or a pecuniary penalty of up to 5,000 penalty points. This translates to a maximum pecuniary penalty of $1,050,000.

ARREST AND INTERVIEW

After identifying the offender, police obtained a search warrant for his premises. A mobile telephone which had the same number which was written on each of the consignments as the contract number for the consignee was found during the search. Numerous items were located, predominantly in the memory of another mobile phone of the offender which indicated, respectively, circumstantial evidence with regard to his direct connection with packages posted from South Africa to Australia and also material which circumstantially showed a connection with prior involvement with drugs.
These included an image dated 20 April 2019 which had been sent to the offender and saved in his phone, and which highlighted delays in mail delivery from South Africa to Australia. The Google search history in his mobile phone recorded search terms such as "track number post" and "what time post office opens."
His mobile phone also included photographs of large bundles of cash photographed in his living room on 23 March 2019. There were also WhatsApp messages between the offender and another person between 10 and 19 May 2019 which were indicative of discussions relating to drugs. These messages included "Bro very weak stuff…6k per 100."
A series of messages and photographic images were sent and received between the offender and a user entitled "Kisoy Boy." The images included a quantity of white powder in a bag with portions of wrapping and packaging which appeared identical, or at least very highly similar to the secreted packages and packaging in the consignments which had arrived from South Africa in April and May 2019. Messages accompanying those images included "welcome to the lab" and "half a kilo." The response, in Swahili, from "Kisoy Boy" included: "God bless indeed give you softness my little brother."
In evidence at trial, the offender identified "Kisoy Boy" as his older brother Muharami Abdul Shah. That brother was identified in the course of the trial as the third eldest of the four sons in the family.
At trial and on the sentence proceedings, some level of confusion was evident regarding the names of each of the offender's siblings. It was, however, ultimately clear that each of the six siblings, four boys and two girls each have the name Abdul Shah which is also accompanied by a given name in each case. Of some significance is that the offender, in the course of the trial, pointed to the circumstance that one of his brothers had prior convictions relating to drugs. Various questions asked by defence counsel of the police were strongly suggestive of convictions overseas and a criminal history in NSW with respect to that brother. He was, however, not called by either side at the trial despite the evidence establishing that he was now living in Sydney.
The jury clearly rejected, as do I, the implicit proposition that the present offender was an "innocent patsy."
I am comfortably satisfied beyond reasonable doubt that he either knew or expected there to be drugs in the package which he went to collect.
I should at this juncture make clear that the circumstantial evidence of the offender's prior involvement with drugs, including his enquiries about the uncharged consignment, together with the images and messages on his mobile phone, do not operate to aggravate his criminality with respect to the single charge of attempt in respect of which he has been convicted.

SUBJECTIVE CIRCUMSTANCES

Information about the subjective background of the offender has been gleaned from his evidence at trial, numerous character references, letters from his father and his wife, and a neuropsychological report from Dr Sally McSwiggan.
The offender was born in Tanzania in 1987. He was the last born of six children to his mother and father. His mother is reported to have died when he was still an infant aged either 1 or 2. His father remarried and had a further eight children with the offender's stepmother who brought him up from the age of about 2.
The offender first went to Habibu Punja Primary School at Ilala Boma Dar Ses Salaam in Tanzania, according to the various character references from his relatives, in 1999. He is then reported as having gone to secondary school at Kinondoni Muslim Secondary School. He was educated in Swahili which he can read and write.
In approximately 1999 the offender's family met Ms Janelle Tames, an Australian who was visiting Tanzania. In due course, the offender married Ms Tames' daughter Samantha and he emigrated from Africa to Australia with his wife in 2008. He was approximately 22 years of age at the time.
The account he provided to the psychologist indicated that he had learnt most of his conversational English after arriving in Australia.
After arriving in Australia, he has been consistently employed fulltime. He initially worked as a mail processor for a marketing company in Lane Cove before being made redundant after approximately 5 years in such employment. He subsequently worked in construction, specifically undertaking scaffolding work.
The offender and his first wife divorced in approximately 2013. They did not have any children.
He met his second wife, Doreen, and they married in approximately 2015. They subsequently had a daughter who is approximately 4 years-old. His wife works in disability care as a paid carer. He and his wife rent privately and are described as not having received any government benefits. The offender also has a niece who lives with them whilst she is studying as a student in Australia. Her parents live in Tanzania.
A letter from his mother-in-law Ms Janelle Tames dated 30 June 2022 indicates that she first met Abdul Malik Shah in 1999. She described becoming firm friends with his family and expresses her absolute shock at the finding of guilt in the matter which proceeded to trial. She had visited Tanzania many times since 1999 and has stayed in the home of the offender's family. Following the offender and his wife migrating to Australia in 2009, Ms Tames lived with the offender and her daughter for several years until the marriage ultimately failed.
Notwithstanding the separation between the offender and Ms Tames' eldest daughter, she has remained firm friends with him. She deposes that she has personally witnessed the offender to become a most loving, caring father and husband.
The offender's first wife, Samantha Tames, has also provided a reference. She has known the offender since 2002. Her reference does not indicate precisely when they were married, nor when they were divorced. However, she states that despite their divorce which was caused "due to irreconcilable differences", they had subsequently remained very close and often visited each other on a social level. His former wife indicates that she has never known the offender to be involved in any illegal dealings. She describes having observed him mature into a loving, caring father and husband whose first born daughter was still a young baby at the time of his arrest. She described the offender being very focused on life and his young family.
She described the offender in the following terms: "Malik is an upstanding member of the community and has learnt a lot from this experience and is now very focused on a good quality of life and health."
A reference from Mr Frank Mtao, Chairman of the Tanzanian Community Association of NSW was also tendered.
Mr Mtao has known the offender for 10 years. He describes him as having been actively involved in community activities including providing support for individuals in the Tanzanian community who were seeking help or advice on matters such as settling in NSW.
He described the offender as being among the key community members especially in making preparation for community activities. The offender has also been a good advisor to younger Tanzanian members of the community in terms of settling in Australia, relationship affairs and religious matters. Mr Mtao said that it was unfortunate that the offender had been found guilty of the offence and that the news of the guilty finding "was received with different feelings" given his positive contribution to the community and how supportive he is to others who needed advice from him. He described the offender as being taken to be a role model by many community members.
The next reference was provided by Jaylawi Njwelige. Mr Njwelige indicates that he has been a friend of the offender since the time that he was working as an IT consultant in Tanzania. His friendship has extended since that time and they regularly spent time together in Tanzania and in due course in Sydney. Together with his wife and family, the respective families often visited each other on weekends. He was shocked when the offender was charged and described himself as being the first to be informed when the offender was arrested. Mr Njwelige broke the news of the offender's arrest to the offender's family in Tanzania. He deposes to having known the offender as a hard-working person and as a family man with very close ties to the Tanzanian community in Sydney. He said that the offender had become more careful about who he allows in his social circle. He said that he strongly believes that the offender has learnt a lesson and is now an even better person.
The next reference is from Robert Lyakurwa. Mr Lyakurwa is a Risk, Systems and Quality Assurance Manager in the Civil and Rail Division of a company called CPB Contactors Pty Ltd. He described having known the offender for approximately 13 years and having a relationship that was built on integrity. They are both Tanzanian and both speak Swahili. He said he was prepared to write the reference as, prior to this incident, the offender had also been a rather reliable and respectable person. He described the offender's provision of assistance and advice to various people in the Tanzanian community and believed that the present incident is an exception as it does not reflect the mannerisms and values held by the offender. He described the offender's involvement in the present matter as follows: "Mr Malik is a usually upstanding member in our Tanzanian community. While it is unfortunate that he has made some bad decisions, thus resulting in this case, it comes as no surprise that he is ready to accept responsibility for his actions."
He described the offender as having expressed a deep sense of remorse in making such "a bad decisions" (sic). I should note in passing that this description sits somewhat uncomfortably with the offender's maintenance of a denial of criminal involvement in the offence.
A letter dated 29 June 2022 from the Muungano Recovery Community (MRC Tanzania) has also been tendered. It is under the hand of Musa Kambaya, the Operations Manager of MRC Kigambon Sober House which is an institution which provides assistance to drug addicts and alcoholics for their rehabilitation. The letter indicates that the MRC Tanzania has been acquainted with the offender for "at least three years." Given that the offender was arrested on 24 May 2019 and released on bail on 13 June 2019, it is somewhat unclear as to whether his involvement with this rehabilitation movement preceded his arrest or not. The letter implies that he had been working at the Recovery Community prior to his arrest in stating: "So his arrest has affected the organisation a lot in our performance, but it has also had a profound effect on the addicts who were receiving support from him."
Perhaps somewhat optimistically the letter concludes: "So in this letter we ask that he be cleared of his charges and that he be allowed to return to continue his duties in bringing about changes in our institution and its society as a whole. Thanks in advance."
Unfortunately, the court will not be in a position to comply with that request.
Another friend of the offender, Gabriely Francis Msumba, has also provided a reference. He had first met the offender at a community event in 2014. He described having been given much advice regarding settling in Australia and the offender assisting him in finding jobs that would help him earn money to sustain his studies and life needs during his initial time in Australia. Since that time, they have become good friends and he describes family gatherings and spending time with their respective children. He described the closeness of their friendship: "We both BBQ; Malik is excellent at preparing barbie and his ability to African Dance always makes us laugh." He described the offender as becoming a very positive member of the community and said that the offender "regrets everything that ever put him in trouble with the law before."
Mr Msumba expressed his desire for the offender as follows: "We hope his matter will be resolved soon, and we would like him to be free so we can travel with each other to explore the Australian outback as we have planned for a long time."
The next character reference is from Hamisi Mbwana. He indicates that he has known the offender since he first arrived in Australia. He describes the offender as a very generous man who is involved in helping the Tanzanian community. He describes having built a father/son relationship with the offender. He describes him having a good demeanour and personality which he had demonstrated by assisting Mr Mbwana in lifting heavy objects because of Mr Mbwana's chronic back pain. He described the offender having "made an effort to rehabilitate himself through changing his social groups, becoming more religious and through making better healthy habit choices."
Mr Mbwana asks for leniency and describes the offender having evolved for the better for the community.
The next reference is from Candice Tames who is the sister-in-law to the offender through his first marriage. She indicates that to her knowledge the offender has not previously had any kind of trouble with the law. She said she had only ever known him to be an upstanding citizen. She describes him having been a model citizen since the time of his arrest. She indicated her continuing support for the offender into the future.
A reference has been provided from one of the offender's employers, Frank Ackaoui from FM Scaffolding. He indicates having known the offender for over 2 years when he has worked with their firm erecting scaffolding. He describes the offender as a great person who has always been honest and reliable for his work: "I know for a fact that he does not use drugs on our worksites and he has told me that he doesn't use drugs because it is against his religion. I have told him that if he has to go to prison I will hire him once he is out again as long as the company is still trading."
A letter written in Swahili from the offender's wife has been translated by an accredited translator. Doreen Steven Kalage indicates that she had known the offender since 2013 and married him in 2014. They have one daughter and Ms Kalage indicates that she had found out a week earlier than the undated letter that she was again pregnant. She described the offender being very troubled in his mind following these problems, which I take to be a reference to his arrest, and that much of the time it has ruined his capacity to work. Ms Kalage said that she believes her husband has learnt a great deal from these problems and that he needs a second chance. She prays that the court will reduce the penalty for her husband because he is needed a lot in the family and in the Tanzanian community in general, especially his relatives who he helps over in Africa.
The next character refence is from Juma Abdul Shah who is a biological brother of the offender. This brother describes the offender having been born in 1987. The offender was the last born sixth child to their late father. His mother had died in 1988 and his father in November 2020.
Mr Juma Shah lists the names of his brothers. He requests the court that the offender "deserve one more chance to be advised and warned not to repeat or engage in any crime records." Mr Juma Shah describes the offender from a young age as being a person who did not involve himself "with odd issues and did not engage himself with criminal gangs." Mr Shah deposed that the offender "is now aware that he messed up." Mr Juma Shah goes on to indicate that he is dependent on the offender for all his own costs of living as he himself is suffering from HIV. Mr Juma Shah has a wife and children and tells the court: "Am depending on this gentleman to assist me for school fees and all costs of living, and really wish one day Malik be free as he has a lesson already."
Annexed to Mr Juma Shah's letter, which clearly indicates that he still resides in Tanzania, is a letter from a pharmacy, Mikwambe Dispensary in Tanzania. It indicates that Mr Juma Shah has been a client at the dispensary since 2019 where he receives medication for HIV. A copy of the treatment card for Mr Juma Shah is also attached. The pharmacist, or medical practitioner at the dispensary, indicates his knowledge of the offender supporting Mr Juma Shah financially. The attached letter from the dispensary, by reference to Mr Juma Shah, asks "please release his relative to help our patient if possible."
The next reference is from a sister of the offender, Aziza Abdul Shah, who is still resident in Tanzania. She deposes that she is presently 53 years of age and was the first born in the family. She confirms that the offender was the last child born of the six children in her family. She said that she was shocked by the information she had received about the case and the offender's conviction. She said, "we never expect that Mr Malik will involve in such issues." The offender's sister said that he needed a second chance to correct his mistakes. She said he has reduced friends that may incite him to criminal issues. She described the offender having relatives that depend on him who "will be assisted only by this Court by acquitting him on condition to be a good person."
A further sister of the offender, Malika Abdul Shah, similarly states that she is 53 years of age. It is not clear to me whether these two sisters are in fact twins. I note that Malika Abdul Shah annexes her citizen identity card issued by the United Republic of Tanzania which shows a date of birth of 1 March 1969. The identity card attached to the earlier letter from Aziza Abdul Shah, where she also states she is 53 years of age, does not have a date of birth recorded on the identity card.
Malika Abdul Shah indicates her shock at hearing about the conviction of her brother. She had lived with him until he went to Australia and subsequently had regular dealings with him via WhatsApp video calls. Since discovering the circumstances of the trial she said the offender is now aware that he "messed up." She described the case having cost the offender as well as the family at large. She described some of the family members depending on him, especially those with disability such as blindness and old age. She described the brothers who depend on him as well as his stepmother. She said that he normally sends money directly to her, some of which was for herself and the rest distributed to other relatives. She said that she had no earnings for living and depends on the offender for her living costs. She concluded her letter: "It is my request that this court pardon Mr Malik and give him more chance to reconstruct himself." She said it was her observation that the offender has changed a lot and is ready to change more and to be a good person. She annexed a screenshot regarding advice of remittances being sent to her including a transfer of 117,613 Tanzanian Shillings and further transmissions of 95,250 Tanzanian Shillings and 32,412 Tanzanian Shillings. Those remittances in Australian Dollars were respectively $74.46, $60.30 and $20.52.
In the multiplicity of references from the offender's relatives, a further reference has been provided by Halima Abdul Shaha. Ms Shaha is 86 years of age and is an aunt of the offender, being one of his father's sisters. She sets out a similar history of observation of the offender and expresses the opinion that he was a "good man." She describes having one son, Twalib Chaulembo, who is blind and who was assisted by the offender. She further states that being of old age she now also depends on the offender. Both of these persons are in Tanzania and I infer that the dependence is financial. She describes the offender's case being "like a nuclear bomb dropped to our family." Similarly to the other relatives, she states "am sure Mr Malik is now good person. I request you to pardon him."
The blind son, Twalib Chaulembo, similarly provides a reference. He is 69 years of age and describes himself as a brother of the offender. He explains that description as deriving from being born to his biological aunt. I would understand that he is in fact what would be described as a cousin. He confirms that due to his own blindness he depends on the offender for his living costs. He similarly asks the court to pardon the offender. He stated, "more chance will suffice not to repeat or engage in any other crime." A certificate from the Ministry of Health in Dar Ses Salaam region in Tanzania confirms that Mr Chaulembo suffers from acute angle glaucoma in both eyes and is consequently blind.
The last reference is from Sakina Saidi Samaluku, the 55 year-old stepmother of the offender. She raised the offender from the age of about 2 years. She describes the shock felt by the whole family as a consequence of the offender being arrested and charged. She expresses the opinion that the news caused the offender's father to suffer pressure and a stroke leading to his death in November 2020. She similarly expressed the view that the offender was a good man. In very similar language to other referees, she describes the offender being aware that he messed up and since the offending conduct, describes him having become "a cool guy who always regret for what happened." Various of the other character references also describe him as quite a "cool guy." Ms Samaluku concluded with a request that the offender be given "a warning."
Ms Samaluku says that she is old now and also a widow and depends on the offender for her living. Her letter attaches the death certificate for the offender's father.

PSYCHOLOGICAL ASSESSMENT

A medico-legal report dated 1 July 2022 was provided by Dr Sally McSwiggan, consultant psychologist. After taking a personal history, the neuropsychologist conducted a number of examinations and assessments. Although the offender appeared low in mood and described feeling anxious, sad and worried about the future, he did not present with any features indicating a major depressive disorder or psychosis.
Various tests were carried out with the assistance of a Swahili interpreter, notwithstanding that the offender has what is described as a rudimentary understanding of conversational English. A number of sub-tests within the Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV) revealed his general intellectual ability was on the cusp of borderline and low average range. His test on the Verbal Comprehension Index was similarly placed within the borderline range. The Perceptual Reasoning Index was also within the borderline to low average range while his Processing Speed Index which measures the speed of mental processing was placed in the extremely low range. The Working Memory Index, a sub-test which measures attention, concentration and the holding of information was placed in the borderline to below average range.
His ability to read and spell in English was at a level consistent with middle primary school. He was not suffering from any substantial cognitive deficits. Of some note was the account given to the psychologist by the offender with respect to the offence. Dr McSwiggan reported: "Mr Shah maintained he was not a knowing participant in the offence. He has no condition that would impact on this. He described the relationship with a brother (with the prior conviction for drug offences) was now fractured due to these proceedings."
The psychologist did not conclude that the offender had any mental health treatment needs or any substance use disorder requiring treatment.
In her opinion the offender operates in what she described as the "cognitively competent" domain and he did not require any community support.

COMPARATIVE CASES

In giving consideration to an appropriate determination of the present matter, I have had recourse to the "blunt instrument" of the Judicial Commission Statistics.
Of the 24 cases in the higher courts with a conviction relating to possession or attempted possession of a marketable quantity of unlawfully imported border controlled drugs, being an offence contrary to s 307.6(1) of the Criminal Code Act 1995 (Cth), 19 resulted in the imposition of a custodial term of imprisonment, three resulted in Intensive Correction Orders, while two were dealt with by Conditional Release. The effective term of the sentences imposed ranged between 2½ and 7 years while the substantial majority of cases, namely 11 cases, fell within the range of 4½ years up to 6 years as the head sentence. The overwhelming majority of cases, 14 in total, resulted in non-parole periods within the range of 2 to 3 years.
I have also had recourse to a number of broadly comparable cases.
In R v Lau [2020] NSWDC 843, his Honour Judge W Hunt imposed a sentence of 22 months on a 52 year-old female offender. Ms Lau had been recruited to collect a parcel which had been posted to a PO Box rented by her at Kingsford Post Office. After being notified that the parcel was available for collection following the delivery of a "You have mail" notification in her Post Office box she attended the Post Office where she signed the relevant consignment documentation and took possession of the package which, unbeknown to her, had been intercepted by the authorities. Approximately half a kilogram of methamphetamine had been discovered in the consignment which was a personal gift box posted from Malaysia and addressed to Ms Lau. The pure quantity of methamphetamine was a little over 400 grams.
Ms Lau had been resident in Australia for approximately 36 years after originally coming from Hong Kong. She resided with her daughter and was in receipt of Centrelink payments. She had taken up the use of illicit drugs, specifically ice, in her middle-age following a number of what might be described as the vicissitudes of life. It would appear that she had been a law-abiding person up until the time she commenced daily use of drugs in her late 30s. She had also become a heavy drinker since that time.
Ms Lau had been induced to collect the package on the promise of the provision to her of some of the methamphetamine to which she was addicted. Ms Lau was arrested following her receipt of the substitute package. She made full admissions and in due course pleaded guilty.
Following her arrest, she was initially refused bail and spent a period of some 4 months in fulltime custody. The sentencing judge found that that period in custody had a profound effect on her and was a significant factor in his consideration of the reduced need for specific deterrence. She was subsequently on conditional bail including a stringent curfew for approximately 14 months. Whilst on bail she undertook a drug rehabilitation program. Her necessity to continue counselling was terminated because of her apparent successful rehabilitation from drug use.
Ms Lau's subjective circumstances indicated a difficult upbringing which was followed by a failed marriage during which her husband had a gambling addiction and lost their savings. Thereafter, she was a single mother. The offender received a total utilitarian and assistance discount, including her plea of guilty, of 30%.
Hunt DCJ commenced with a starting point of 3 years which reduced to a little over 25 months as a consequence of the discount. A further reduction taking into account the approximate 4 months whilst in custody on remand reduced the sentence to slightly more than 21 months. His Honour rounded it up slightly to impose the final sentence of 22 months. The sentencing judge reached a firm view that prospects of rehabilitation and hence protection of the community would be significantly decreased if she were to return to full time custody. The sentence was directed to be served by way of an Intensive Corrections Order.
In R v LeGros [2020] NSWDC 733, Neilson DCJ passed a sentence of 3 years and directed the immediate release of the offender on a recognizance on the day of sentence. The offender was a 30 year-old man who had been a well-respected and well-regarded athlete during his student years. He ultimately became involved in illicit drug use after a number of years in the workforce. He had initially commenced an apprenticeship as a motor mechanic which he did not complete. He moved to a good job as a sales representative on a full salary but by 2015 began hanging out with an anti-social group and began using drugs consistently. By 2017 he was unemployed and in 2019 he moved to Sydney where he became involved in using cocaine and Xanax on a daily basis. He accumulated a large drug debt. In the second half of 2019 he consumed a cocktail of drugs in an attempt to take his own life. Evidence at the sentence hearing indicated that the high tolerance to drugs which he had developed led to a failed attempt at taking his own life although he was hospitalised.
As a consequence of his drug dependency and the large accumulated drug debt he began working for a cartel which was involved in importing drugs into Australia. The modus operandi was similar to both the matter of Lau before Hunt DCJ and in many respects to the present matter involving Abdul Malik Shah. A parcel sent from Germany was addressed to the Balgowlah Post Office to a name in which a parcel locker had been registered at that Post Office. The parcel had been intercepted by authorities and approximately 1 kilogram of cocaine had been located concealed within the cardboard covers of textbooks within the package. The offender attended Balgowlah Post Office but was unable to locate the parcel in the parcel lockers.
A similar parcel was subsequently intercepted by Australia Post officials in August 2019. It likewise was ascertained to contain approximately 1 kilogram of cocaine hidden within the covers of textbooks. The second parcel was addressed to the Chatswood parcel lockers and the offender attended Chatswood Post Office in an attempt to retrieve the parcel from the rented parcel locker at that Post Office. The offence of attempting to obtain the parcel at Balgowlah was the first substantive offence for sentence while the second attempt was placed on a Commonwealth Schedule which is the equivalent of a Form 1.
The offender was eventually arrested in October 2019. He remained in custody until granted bail by the Supreme Court in April 2020. He had spent in excess of 6 months in custody. His release on bail had been conditioned on his attendance at the Connect Global Drug and Alcohol Rehabilitation, Education and Training Centre at Swan Bay. That fulltime residential program is a high-intensity, semi-custodial rehabilitation program which takes approximately 12 months to run the full course. The pure quantity of cocaine in each of the consignments was approximately 740 grams in the first and 785 grams in the second parcel.
Neilson DCJ accepted the submission put by Senior Counsel on behalf of the offender that the conduct in this particular matter was at the bottom of the range for an offence of attempting to possess a border controlled drug. A powerful subjective case was supported by an affidavit from the offender, evidence from members of his family and from a highly qualified forensic psychiatrist.
The substantial steps taken towards formal rehabilitation were supported by a detailed reference from the rehabilitation centre and in all of the circumstances, Neilson DCJ determined that a total discount of 40% was appropriate in circumstances where there had been assistance provided to authorities in addition to the plea of guilty. The undiscounted head sentence would have been 5 years which reduced to 3 years as a consequence of the 40% discount. The sentencing judge allowed the equivalent of 9 months imprisonment to be taken into account by reference to the fulltime residential course together with what his Honour approximated as 6 months in custody.
Equating the custody and quasi-custody to the equivalent of approximately 15 months, his Honour directed the offender's immediate release on a recognizance on the day of sentence, namely 9 October 2020 conditioned on the offender immediately returning to and continuing to reside at the Connect Global Rehabilitation Program.
In R v Nguyen [2019] NSWDC 174, Judge ML Williams SC sentenced an offender for a substantive offence of attempting to possess approximately 650 grams of cocaine. Two additional counts were placed on a Commonwealth Schedule. These related to offences of trafficking in MDMA being small quantities located during a search of the offender's premises.
The offender had one previous conviction of cultivating cannabis in 2005 for which he had received a term of imprisonment of 15 months which had been suspended pursuant to s 12.
Australian Federal Police had investigated a crime syndicate which had been utilising a company called Parcel Post Logistics to import drugs into Australia. Mr Nguyen was the fleet manager for the company and his role included organising addresses for the delivery and collection of drug consignments. The offender used one of the delivery drivers employed by the parcel delivery company to collect a consignment in which approximately 1 kilogram of compressed cocaine had been secreted. The pure quantity of cocaine on analysis was approximately 650 grams.
The offender pleaded guilty shortly before trial and was given a 10% discount on account of the late plea. It was common ground that the offender's conduct was a mid-level offence. It was conceded that the charged offence was not an isolated occurrence and that the offender's role was integral in obtaining the drugs and getting them to the intended recipient. The offending conduct was made possible by reason of the offender's position as a trusted employee of the courier parcel company. The offender was addicted to cocaine and there was no direct evidence of financial gain other than the alleviation of the need to pay for his own drug habit. The offender had undertaken a number of rehabilitation programs whilst in custody. A co-offender in the sense of another employee of the parcel delivery company had been dealt with for more substantial quantities of cocaine on two substantive offences. After an allowance of 12.5% discount for his pleas of guilty, that offender had been sentenced to 7 years 3 months with a non-parole period of 4 years 9 months.
Williams SC DCJ accepted that a significantly different sentence was required to be imposed. Taking into account the Schedule matters his Honour imposed a sentence of 6 years with a non-parole period of 3 years. The offender had been in custody since the time of his arrest, namely a period of almost 2 years 3 ½ months.
In R v Pink [2021] NSWDC 47, the offender was convicted of an offence of attempting to obtain a marketable quantity of ketamine. The offender was also charged with a number of State offences of supply relating to drugs located at his premises. The surrounding circumstances followed a familiar course. Packages were mailed to Australia, in this instance from the United Kingdom, containing a border controlled drug, namely ketamine. The pure quantity of ketamine was slightly over 850 grams. The modus operandi on this occasion involved the use of a pseudonym as the addressee. The offender, originally from England himself was in Australia on a working visa. His role was to arrange a co-worker who he worked with in a hotel to provide her home address at Bellevue Hill for delivery of the consignment. In due course, three packages arrived in Australia which were intercepted by authorities prior to their delivery to the Post Office at Bellevue Hill.
A notification that there was mail to be collected was delivered to the Bellevue Hill address requiring the packages to be picked up from the Post Office. The offender in that matter coordinated the co-offender to attend the Post Office and supplied the co-offender with a fabricated letter of authority in accordance with a draft that had been sent to him electronically from overseas.
Whilst it is probably a distinction without a difference insofar as the sentence which was passed is concerned, there is some apparent confusion as to whether the charge brought against Mr Pink under the Commonwealth Criminal Code was one of attempting to import pursuant to s 307.2(1) of the Commonwealth Criminal Code or of attempting to possess which is an offence contrary to s 307.6 of the Code. Both offences carry the same maximum penalty of 25 years imprisonment and both sections and both descriptions appear in relation to what was sequence 8 in the Remarks on Sentence.
Be that as it may, the offender was described as the "collector" of the drugs, which had in fact been replaced with an inert substance by the authorities, and the legal distinction between an attempt to import and an attempt to possess assumes no relevance as to the analysis of the case as a comparative.
Pink pleaded guilty and received a 25% discount. He also suffered from an underlying serious medical condition which would render his time in custody more onerous.
The sentencing judge, Mahony SC DCJ, imposed a sentence of 4 years 6 months with a non-parole period of 2 years. Absent the 25% discount, this indicates a starting point of 6 years. The State offences of supply received a term of imprisonment of 2 years 6 months with a non-parole period of 12 months. The effective sentence imposed was 5 years 6 months with a non-parole period of 3 years.
In a recent decision of R v Chew [2022] NSWDC 325, Judge Haesler SC dealt with an offender who had been the recipient of parcels posted from Malaysia. The package contained a quantity of heroin of which some 186 grams was pure heroin. As with all Commonwealth prosecutions, the pure quantity is the relevant amount for the purpose of sentence, unlike the aggregated quantity under the State legislation where the nett bulk weight is considered, rather than actual purity.
A search of the offender's premises yielded an additional quantity of methylamphetamine which had come from a previous parcel which was awaiting collection. The offender ultimately confessed to having received previous parcels from a friend which had contained an amount of white powder which he removed and weighed before handing it over for collection by another. Subsequent investigation revealed that the offender had made some 29 deposits into various bank accounts in an amount approaching $250,000. The offender was paid $500 in respect of each transaction.
Following a plea of guilty and hence a 25% discount, Haesler SC DCJ imposed a total effective sentence of 4 years 1 month with a minimum period to be served of 2 years 6 months. The possession of methamphetamine was dealt with as a State supply and a fixed term of 1 year 6 months was imposed. The Commonwealth offence of attempting to possess a marketable quantity took into account an offence of dealing with the proceeds of crime on a Schedule. The Commonwealth sentence was 3 years 4 months with a minimum sentence of 1 year 9 months. The Commonwealth sentence was delayed in its commencement for 9 months after the commencement of the State sentence.
Recognising, of course, that direct arithmetical comparisons can be misleading, particularly where there are multiple offences and the principle of totality has been taken into account, in broad terms the sentence for attempt to possess imposed on Mr Chew reflected a starting point before the discount for his plea of guilty of approximately 4½ years.
In addition to the cases to which I have referred which have been extracted from reported NSW District Court published judgments, the Crown provided a table summarising salient features of a number of predominantly interstate decisions. These, of course, relate to the importance of an endeavour to achieve general parity for Commonwealth offences wherever within the Commonwealth of Australia they are committed. I do not propose to embark on an analysis of the fine detail of all of them.
In R v Freeman [2019] QCA 150, the Queensland Court of Appeal dismissed an appeal against the severity of sentence of 4 years 6 months with 2 years 6 months non-parole. That matter related to an attempt to take possession of a border controlled drug by a 68 year-old man who had no prior convictions. There had been a late plea of guilty, but an unquantified discount had been allowed by the sentencing judge. No percentage of relevant discount is identified in the judgment.
In Lopes Duque v The Queen [2019] VSCA 212 and the related decision of R v Villalobos [2018] VCC 1334, two co-offenders were found in possession of a package which had been posted from Chile. The package contained slightly less than half a kilogram of pure cocaine. Duque was ascertained to have been the Australian organiser and was more criminally liable than his co-offender Villalobos. Villalobos had been the actual collector of the consignment under the direction of Duque. Duque was sentenced to 6 years with a non-parole period of 4 years following a plea of guilty while Villalobos, who similarly pleaded guilty, was sentenced to 4 years with a non-parole period of 2 years 6 months.
In Eriyo v R [2015] NSWCCA 16, a package sent from Tanzania was intercepted by the authorities. It was found to contain a pure quantity of 130 grams of heroin within the soles of sandals contained in the package. A controlled delivery following the substitution of the drug was effected and in due course the offender, who was the addressee, was arrested. A second shoe found at the premises from an earlier package contained approximately 120 grams pure heroin.
The offender pleaded guilty and admitted that packages he had received were known to contain drugs. The judge at first instance, Huggett DCJ, was satisfied in relation to the two offences charged, namely attempting to possess a marketable quantity in the intercepted package and possession of a marketable quantity with respect to the earlier importation, that they placed the offender above being a mere conduit or courier. His role was viewed as being akin to a trusted middleman. He was sentenced to 6 years imprisonment with a non-parole period of 4 years with respect to each of the offences. The overall partial accumulation resulted in a sentence of 6 years 10 months with a non-parole period of 4 years 10 months.
As a consequence of a technical oversight, the appeal was allowed but on resentencing by the CCA, the same sentence was imposed but backdated by 22 days to take into account pre-trial custody which had been overlooked by the sentencing judge. The starting point with respect to the substantive sentences can be seen to have been 8 years.

CROWN SUBMISSIONS

The Crown's ultimate submission in the present matter was that the only appropriate sentence, having regard to the seriousness of the offender's conduct and the need for deterrence and punishment, was a term of immediate imprisonment with a non-parole period.
The Crown reminded the court of the relevant sentencing principles applicable to sentencing federal drug offenders which were summarised by Johnson J in R v Nguyen; R v Pham (2010) 205 A Crim R 106 at [72].
The Crown accepted that there was no evidence to suggest that the offender had a managerial role in facilitating the importation. However, the Crown referred to authorities such as R v Muanchukingkan (1990) 52 A Crim R 354 and Laurentiu & Becheru (1992) 63 A Crim R 40 in support of the proposition that offenders who perform only a menial or limited role cannot necessarily anticipate a degree of leniency.
The remarks in both of those cases by Wood J (as his Honour then was) derive from the observations of Wells CJ in Le Cerf (1978) 13 SASR 237 (at 239-240). Those observations have been repeated in numerous cases: "Where evidence discloses that a convicted person is highly placed in an organisation for the importation, distribution, and sale, of drugs, contrary to law, it is, to my mind, obvious that, other things being equal, he must expect condign punishment. Substantial retribution must be exacted from those who deliberately, cynically and greedily seek to profit on a large scale from breaking the law. But again, assuming all other things are equal, it does not follow that a person less exalted in the organisation can confidently expect that his punishment will be correspondingly less severe. The ambit of his direct responsibility in deliberate law breaking is, in a sense, less, simply because his authority and role are less important to the organisation as a whole, but it remains true that he has knowingly entered into an unlawful conspiracy with persons known and unknown to obtain and distribute drugs, and it is only because persons like him are ready, able, and willing to do such a thing that the entrepreneur is able to ply his nefarious trade on a large scale. If there were no middlemen and underlings, there would be no top men in an organisation. If an organisation is starved of recruits it must collapse."
The Crown also submitted that general deterrence and adequate punishment necessitated a significant sentence.

DEFENCE SUBMISSIONS

The written submissions on behalf of the offender conceded that the threshold in s 17A of the Crimes Act 1914 was crossed, that is that no other sentence is appropriate other than a sentence of imprisonment. However, the submissions on behalf of the offender were that the requirements of Part 1B of the Crimes Act 1914 could adequately be met with the imposition of a period of imprisonment with immediate release on recognizance pursuant to s 20(1)(b) of the Crimes Act 1914.
The offender only served a period of 20 days in custody following his arrest before being released to bail. His bail has continued until today.
At the sentence hearing itself, in the course of oral submissions, counsel for the offender, Ms Orman-Hales, appeared to recognize the futility of the submission that an immediate release on a recognizance would be an appropriate outcome.
On behalf of the offender, it was submitted that the offending would not be found to be a serious example of such offending but should be more appropriately viewed to fall above the lower end of offending having regard to the comparatively lower quantity of cocaine, the unsophisticated nature of the offending and that the offender should be sentenced on the basis that he was reckless.
In the Defence submission, the offender presents with a low risk of reoffending and has very good prospects of rehabilitation. The significant hardship to his immediate family in Australia and the dependence on him by his other relatives were also relied upon as relevant factor. A number of comparative cases were specifically referred to in support of the proposition that fulltime custody is not an inevitable outcome for such offending and that release by way of recognizance is an appropriate exercise of the court's sentencing discretion.
The first case relied upon by the offender was Veale v R [2022] NSWCCA 154 Veale was a somewhat unusual case in which the Crown and the Defence both agreed that the time already served in custody would be an adequate length of time for the minimum term to be imposed. The judge at first instance, Ellis DCJ, proceeded to impose a sentence of 3 years 5 months with a non-parole period of 1 year 5 months which was backdated to the date the offender had gone into custody. His Honour's intention was that the offender should be immediately released to the community on parole. However, the court fell into error because the power to make or refuse an order releasing a federal prisoner on parole is a power conferred on the Commonwealth Attorney-General. The sentencing court had no power or jurisdiction to make that determination.
In the circumstances with which the Court of Criminal Appeal was confronted, they ultimately imposed a sentence of 3 years which permitted the court to make a recognizance release order which in practical terms provided a similar outcome to that which Ellis DCJ had intended.
The case has no direct relevance to the current proceedings where the offender has been on bail after being in custody for only a period of approximately 3 weeks.
The second case relied upon by the Defence was R v Robson-Bolan [2022] NSWCCA 1. The offender was 21 years of age with no prior criminal convictions. He had ordered some 300 grams of cocaine on the dark web using his own name which was sent from South America to Australia via the mail. The offender took possession of the consignment after a substitution had been made for the drugs by authorities. Cocaine, a substantial quantity of cash and other indicia of involvement in drug supply were subsequently located in his home. He had been assaulted on a number of occasions in custody and had a strong subjective case. He pleaded guilty and was afforded a 25% discount.
At first instance the sentencing judge, Abadee DCJ imposed a fixed term of imprisonment of 12 months for the State supply charge and wholly accumulated a sentence of 2½ years with a minimum term of 1 year 6 months with respect to the Commonwealth attempt to import charge. The Commonwealth offence being less than 3 years required the imposition of a recognizance. The affect of the accumulation was a sentence of 3½ years with 2½ years to be served before release.
On appeal, a challenge to the proper application of the totality principle was successful. In resentencing, the Court of Criminal Appeal reduced the State supply charge to 9 months imprisonment and similarly reduced the Commonwealth attempt to import sentence to 2 years 3 months. The recognizance release order was again 1 year 6 months. The two sentences were partially accumulated leading to a total sentence of 2 years 9 months with a minimum period in custody of 2 years.
The next case in the Defence comparative cases was Omorogbe v R [2013] NSWCCA 201. This case involved an offender who had pleaded guilty to one count of attempted possession of a marketable quantity of cocaine (106.4 grams pure). The offender had attended a private mailbox at a newsagency in Engadine where he collected a package which had been sent by express mail from China. The cocaine was secreted inside a number of purses which were each individually wrapped.
The judge at first instance, Solomon DCJ allowed a discount of 25% for the plea of guilty. The offender had a strong subjective case with a difficult upbringing in Nigeria and isolation from his family. He had made positive progress in custody by the time of sentence, was of prior good character and was found to be unlikely to reoffend.
At first instance, a sentence of 5 years imprisonment with a non-parole period of 3 years was imposed.
In a split decision, a majority in the Court of Criminal Appeal (Macfarlan JA and Adams J; Latham J disagreeing) held that the judge at first instance ought not to have been satisfied that a prior collection of a parcel from the same newsagency necessarily related to an act of criminality. Judge Solomon had interpreted part of the statement of facts as implying that the earlier collection was nefarious and hence that the offender was deprived of the benefit that the offending conduct be viewed as a one-off.
The majority reduced the sentence to 4 years imprisonment with a non-parole period of 2 years 6 months.
The Defence also referred to Ojielumhen v R [2014] ACTCA 28. This offender pleaded guilty to one offence of attempting to possess a marketable quantity of cocaine. The cocaine was packaged inside a DVD player and had been sent through the mail to Australia from Thailand. The quantity of pure cocaine was 196.3 grams out of a nett weight of 325.1 grams. In predictable form, a substitution was effected and a collection card left at the address for the consignee. The offender and a co-offender collected the package and were followed back to their premises. Police entered the premises and ascertained that the DVD player had been unscrewed revealing the black plastic package containing the substituted substance. The offender's role had been to collect the parcel and provide the contents to another party.
A discussion took place before the judge at first instance, Nield AJ with regard to a numerical figure for an appropriate head sentence should there be a plea of guilty. The matter was fixed for trial.
Notwithstanding a specific numerical concession that 7 years was an appropriate head sentence by the Crown Prosecutor, a concession and nomination completely at odds with the remarks of the High Court in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323, the offender at that juncture maintained his plea of not guilty.
Following an unsuccessful pre-trial application to exclude evidence obtained under the search warrant, the offender was re-arraigned and then pleaded guilty. He was given a 10% discount with respect to that late plea. An additional 15% discount was allowed for assistance which was provided to the authorities. In the result, the sentence imposed at first instance was 6 years with a non-parole period of 4 years.
The ACT Court of Appeal found error in the sentencing judge having accepted the nominated 7 years proffered by the Crown as an appropriate starting point and reduced the sentence to one of 5 years with a non-parole period of 2½ years. It is to be observed that 5 years after a 25% discount represents a starting point of 6 years 8 months.

CONSIDERATION

In sentencing an offender for a Commonwealth offence, the court is obliged to sentence in line with Part 1B of the Crimes Act 1914. The governing principle is that the court must impose a sentence or make an order that is of a severity that is appropriate in all the circumstances of the offence (s 16A(1)). Section 16A(2) provides a non-exhaustive check list of the matters which the court is obliged to take into account.
The nature and circumstances of the offence have been set out earlier in these remarks. I should note that the circumstances are such that the offender is deprived of specific mitigation on the basis of his offending behaviour being a "one off."
However, the evidence suggestive of prior involvement in drug related activities, whilst relevant to establishing his culpability for the charged offence, plays no part in any aggravation of an appropriate sentence.
In assessing the objective seriousness of the offence, a number of factors are relevant. The quantity of drug is one relevant factor, as is the role of the offender in the enterprise of which he is a participant. In the present matter the pure weight of cocaine was 332.2 grams. The relevant regulations prescribe the marketable quantity of cocaine at a threshold of 2.0 grams. Although substantially over the minimum marketable quantity threshold, the quantity of border controlled drug in the present matter is well short of the commercial quantity threshold of 2 kilograms. Whilst I am conscious of the need to be cautious in attributing a designated role, I am not satisfied beyond reasonable doubt that the present offender was anything above a collector and passer-on of the contents of the package which he went to collect. The objective seriousness of this offence falls below the mid-range of offending.
Consideration of general deterrence is a relevant factor in sentencing for drug offences under the Commonwealth criminal provisions. As the High Court pointed out in Wong v The Queen [2001] HCA 84; 207 CLR 584 at [64] (per Gaudron, Gummow and Hayne JJ) the difficulty of detecting drug importation offences, and related offences, and the great social consequences that follow from their commission, suggest that deterrence should be given "chief weight" in the sentencing task and that stern punishment will be warranted in almost every case.
I am satisfied beyond reasonable doubt that the offender was likely, in a general sense, to have had some reasonable expectation of the likely quantity of drug contained in the package. I am satisfied beyond reasonable doubt that he was at least a conduit, in the sense of being the receiver and likely passer-on of the drugs once they were retrieved. I would infer that his involvement was for financial gain.
It may well be, particularly given the described "fracturing" of the relationship with his brother that some level of familial cooperation was involved.
However, in the absence of any other material or evidence, such an inference does not rise above a possible explanation. In no sense does it operate in mitigation, or aggravation of the offender's own criminality (see R v Olbrich [1999] HCA 54; 199 CLR 270).
The question of remorse or contrition is difficult to assess in light of a not guilty plea and the continued maintenance by the offender of an asserted lack of knowledge or belief as to the contents. I have little doubt that he is remorseful for the position in which he has placed himself and his family. However, he has not revealed anything about the fractured relationship with his brother, or the reasons for it.
I am satisfied that his immediate family and his family members in Tanzania to whom he sends sums of money will suffer hardship as a consequence of his inevitable incarceration. The factors sent out in the Commonwealth Crimes Act including family hardship do not need to rise to the level of "exceptional" in order to be properly taken into account - Totaan [2022] NSWCCA 75. I have taken that factor into account.
As I have indicated earlier, I do not accept that a release to a recognizance would be within the sound exercise of an appropriate judicial discretion.

DETERMINATION

The offender served 3 weeks in custody following his arrest prior to being released to bail. He has thereafter been on conditional liberty. I have taken those circumstances into account in determining the appropriate non-parole period and the head sentence which will commence from today.
Abdul Malik Shah, you are sentenced to a term of imprisonment of 5 years 11 months. There will be a non-parole period of 2 years 11 months. Both the sentence and non-parole period will commence from today's date.
Mr Shah, I am required pursuant to the Commonwealth legislation to explain the effect of that sentence. The period of 2 years 11 months is the minimum period which you will be required to serve in custody. Prior to the expiration of that period, the Attorney-General for the Commonwealth is empowered to make a determination as to whether you should be released at the expiration of that term. If and when you are released to parole, you will be subject to the supervision of the parole authorities.

Amendments 14 December 2022 - Coversheet amended Heading added for Index Paragraph [151] split into two paragraphs Case of R v Olbrich [1999] HCA 54; 199 CLR 270 added to paragraph [150] 14 December 2022 - Date of orders and date of decision amended 03 March 2023 - Case name updated - changed to (No 2) 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: 03 March 2023

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