R v Spadina

Supreme Court of NSW|2015-06-03|Before: Blackmore AJ

Avni Djemal - Offender Rhys Graham - Offender

Solicitors: Commonwealth Director of Public Prosecutions - Crown Parisi Lawyers - Offender File Number(s): 2008/250866

SENTENCE

HIS HONOUR: Radoslav Spadina, the offender, pleaded not guilty to the offence of conspiring to import a commercial quantity of a border patrol precursor, namely pseudoephedrine, contrary to s 307.11(1) and 11.5(1) of the Commonwealth Criminal Code. The maximum penalty for the offence is 25 years imprisonment and/or a fine of $550,000.
On 10 February 2015 the jury returned a verdict of guilty in relation to the offence.
The facts as found by the jury will be summarised below. The jury have resolved most of the disputes with regard to the facts in finding the offender guilty. Some of the matters referred to in the facts are still in dispute and will require a finding by me. I should note that in most respects the facts are not in dispute.

FACTS

The Crown provided me with an outline of their submissions as to the factual findings during the sentence proceedings for which I was grateful. The offender's counsel also provided me with extensive written submissions and those submissions together with further oral submissions are referred to in the summary of the facts and more generally in this judgment.

BACKGROUND

The offender is an Australian resident who resided in Manly with his wife and children during the period of the conspiracy. The offender was involved in a company called Capital Access Pty Ltd which was apparently involved in lending money. Whilst it is apparent that the offender was an officer of that company, his precise role in that company remains largely unexplained. Whilst there was some effort during the trial to imply that some of the evidence relied on by the Crown, which mainly consisted of evidence provided by legally obtained listening devices, was somehow related to the offender's business interests, the jury by their verdict clearly rejected that characterisation of the evidence.
The offender was a close friend and an associate of Adam Watt (Watt), a prominent identity in the Manly area and a previous champion kick boxer. Watt was also the managing director of a business called Satellite Newspapers and later a business known as Global News Express which was located at a business warehouse at Old Pittwater Road, Brookvale.
Watt was acquainted with a male called Jan Plas (Plas) who resided in the Netherlands. Plas was a well-known trainer of kick boxers. Plas was also involved with an international drug syndicate (the Dutch syndicate) predominantly based in the Netherlands which was involved in the supply of illicit drugs and precursor chemicals. The Dutch syndicate involved a number of persons including Loek Weerden (Weerden), Michael Von Hohenberg (Von Hohenberg), Rene Asbeek-Brusse (Asbeek-Brusse), Thomas Van Den Berg (Van Den Berg), Paul Van Leeuwen (Van Leeuwen), Eric de Bolle (de Bolle) and Bifort Fortunat (Fortunat). Weerden, based on the evidence, was clearly the chief operating officer and mastermind behind much of the activities of the Dutch syndicate.

INVESTIGATION COMMENCED

As at February 2006 the National Crime Squad in Amsterdam commenced investigations into the operations of the Dutch syndicate. Investigations concerned the alleged distribution of precursor chemicals, hashish, cocaine and synthetic drugs such as ecstasy. It was also concerned with alleged money laundering.

THE CONSPIRACY ALLEGED

I can deal with much of the facts fairly succinctly.
There was a great deal of evidence during the proceedings designed to establish the fact that the Dutch syndicate intended to export into Australia something they described as the "Jerry shipment". The Jerry shipment was a shipment of pseudoephedrine. Whilst there was a little variation in the evidence, the preponderance of the evidence established that the shipment was to be a quantity of 210 kilograms. Ultimately there was little dispute in the proceedings before the jury in relation to any of the foregoing.
The question for the jury was whether the then accused, this offender here, was involved in the conspiracy to import the Jerry shipment. The jury, by their verdict, confirmed the offender's involvement in the conspiracy.
For one reason or another the shipment of pseudoephedrine never arrived in Australia. The precise quantity or quality or purity of the pseudoephedrine was not established in the trial as the drugs never arrived. There is now some evidence as to the purity of the drug in the sentencing proceedings and I will come back to address that evidence and the relevance of it to the sentence.
The gravamen of this offence is the intention of the offender to import the pseudoephedrine.
One issue raised on the sentencing proceedings was when the offender entered the conspiracy with Watt. I will address that and other areas of dispute below.

THE MONEY

In early December 2005 Watt approached the offender's friend and associate, Gary Stewart (Stewart) and his business partner, Martin Green (Green), to transfer some money overseas. On the same occasion the offender asked one or both Stewart and Green to assist Watt with the transfer of the money. Stewart and Green were directors of Mendika Pty Ltd which traded as Chinatown Cellars. On 8 December 2005 $110,000 Australian Dollars in cash was delivered to the officers of Chinatown Cellars by Watt. It was deposited into the business account of Chinatown Cellars by Stewart and then was transferred to the account of J&L Continental Pty Ltd in Amsterdam. J&L Continental was a company controlled by Weerden. The Crown submitted in the trial that as at the date upon which the offender and Watt requested the transfer of the funds, the offender, Watt and perhaps others (the Australian Syndicate) had agreed with at least some of the members of the Dutch Syndicate to import a substantial quantity of pseudoephedrine into Sydney.
The Crown submitted that this was the only logical conclusion from the fact of the transfer, the manner in which it occurred, namely in cash, through a company that concealed its source in Australia and the company to which the money was transferred in Holland, namely one associated with Weerden. It was both disputed during the trial and on the sentence that the cash money that was deposited and forwarded to Weerden in Holland was necessarily associated with the Jerry shipment. It was submitted by the offender that I could not find beyond reasonable doubt that the money had been transferred as part of the then operations of the Australian Syndicate.
It was submitted that there were alternative explanations available such as the money may have been needed to be transferred overseas of Watt's then legitimate newspaper business. In my view those suggestions were fanciful and I have no doubt that the jury rejected them as I do. I find that the funds were transferred on behalf of the Australian Syndicate as part payment for the supply by the Dutch Syndicate for approximately 210 kilograms of pseudoephedrine. In other words, this offender's involvement in the Australian Syndicate can be traced back to at least this payment.

SOURCE OF THE PSEUDOEPHEDRINE

The pseudoephedrine was originally to be sourced from the Democratic Republic of the Congo (the Congo) by the Dutch Syndicate and later from elsewhere, most likely Pakistan. Where the pseudoephedrine came from was a matter for the Dutch Syndicate. In my view it is clear from the whole of the circumstances that the $110,000 was only a down payment for sourcing the pseudoephedrine and arranging for it to come to Australia.
Whilst it is not completely clear since the pseudoephedrine never actually arrived in Australia, I accept the Crown's submissions to the effect that there was an arrangement for a final payment to occur upon the issue of a final airway bill indicating the shipment had been dispatched to its ultimate destination in Sydney.
The offender knew that the amount of pseudoephedrine which was to be supplied by the Dutch Syndicate was very substantial even if he was not aware of the precise quantity proposed to be imported. That is clear from the down payment of $110,000. It is inconceivable that someone would agree to such a payment without knowing what they were going to receive in return. There was clearly discussion in the evidence about 210 although there is no evidence that the offender ever knew of that precise amount. In the context of the evidence this reference to 210 had to relate to 210 kilograms of pseudoephedrine.
Further, accepting that the offender was involved in the conspiracy to import the pseudoephedrine I further accept that the offender intended to manufacture or have some other person manufacture methamphetamine from the pseudoephedrine following its arrival into Sydney. At trial the offender agreed (pursuant to s 191 of the Evidence Act 1995) that any Australian import of approximately 210 kilograms of pseudoephedrine, either intended to use the substance to manufacture a controlled drug and/or believed that another person intended to use any of the substance to manufacture a controlled drug.
The offender has a previous conviction concerning possession of another precursor, sassafras oil, which can be used to manufacture a drug, the precursor pseudoephedrine is used to manufacture methamphetamine.
I will come back to discuss the issue of the earlier conviction when addressing the need for the sentence to reflect deterrence.

MOTIVE

Whilst it is not strictly necessary to find why the offender involved himself in this offence, in my view it is clear he was motivated to commit the offence by the prospect of obtaining a very substantial financial gain. Estimates were made as to the potential amount of money available to be made and it is sufficient to say that the amounts were in the millions of dollars.

WAS THE OFFENDER THE BOSS OF THE AUSTRALIAN SYNDICATE

During the trial the jury was invited to find that the offender was the boss of the Australian Syndicate. That was not a finding that they were required to make beyond reasonable doubt. But on the sentence proceedings the Crown has pressed that matter as part of the circumstances of the offence. And in particular in relation to the role the offender played in the offence.
The offender disputes that characterisation of his role. It was argued on behalf of the offender that I would not be able to make a finding beyond reasonable doubt that the offender was the boss. What a sentencing court should focus on is the role played by the offender during the commission of the offence; Olbrich v R (1999) 199 CLR 270 at 279. In my view it does not matter and it is not necessary for me to find definitively whether the offender was the boss of the syndicate. It would be more important to decide if he in effect played the lead role with regard to the operation of the syndicate.
The Crown submitted that the offender's role was correctly described as the boss of the Australian Syndicate. His role could be contrasted with that of Mr Watt whose role was described by the Crown as the go-between with the Dutch Syndicate.
Clearly Watt knew Jan Plas well and Plas knew Weerden and other members of the Dutch Syndicate. The Crown submits that the relationship between the offender and Watt was one where Watt occupied a secondary role. To the contrary, the offender submitted that I should find that he and Watt were equal participants in the scheme, both having different roles.
The Crown referred to evidence that suggested that the offender was Watt's mentor. As noted in the trial the Crown alleged that the offender was the boss of the Australian Syndicate and Watt was the go-between or his worker. The Crown referred to an SMS message left by Watt on the offender's phone (see page 1745 of exhibit Z). In effect it is an acknowledgement by Watt of his role as the offender's fighter who watched out for the offender's back. It is an acknowledgement that demonstrates, submits the Crown, the relationship between the offender and Mr Watt, namely that the offender was the boss and Watt was his assistant. It was further submitted this was a theme that reoccurs over and again in the evidence.
It was submitted by the Crown that the Dutch Syndicate understood this relationship well. There are a number of occasions when the Dutch used terms such as Jerry and Jerry's boss. There was one particular piece of evidence which comes chronologically very early in the piece. The Crown submits it is significant that Weerden discloses the identity of Jerry and also of his boss when speaking to another member of the Dutch Syndicate.
Weerden was trying to organise meetings in July. It was to include him, Plas, Von Hohenberg, Jerry and Jerry's boss. It related to a proposed importation into Australia of a product which was the pseudoephedrine.
On 23 April 2006 Weerden and Von Hohenberg had a conversation (see page 29 of Volume 1 of exhibit Z which is a transcript of the conversation). It was said at page 30 that Jerry was flying over with his boss. Then at page 35 there was an indication that they are to meet Jerry's boss. Weerden says, "I want Adam or ah Jerry and Ray to arrive on Monday you know."
The Crown submits this evidence makes it abundantly clear that Weerden knew that Jerry had a Christian name Adam. That must have been a reference to Adam Watt, submits the Crown. And the evidence further makes it plain that Weerden's understanding was that Jerry's boss was Ray. The Crown submits that there was no reasonable doubt that Weerden is speaking about Ray Spadina. It reflects Weerden's understanding that Ray is the boss of the Australian side of the transaction.
The offender never attended meetings in Dubai although there is some evidence Watt did attend the meeting in Dubai. I accept that Weerden was speaking of the offender in this conversation and it was his understanding that the offender was Jerry's or Watt's boss.
How could Weerden have got that understanding. Weerden was a friend and close associate of Plas. It could be that Plas informed Weerden that Jerry's boss was Ray. Watt was closely associated with Plas so it is also reasonable to assume he was the source of the information provided to Weerden. Of course it may be that Watt was promoting Ray to the position of boss to take some pressure off himself, but if the offender was not the boss of the Australian Syndicate, he had an opportunity to make that clear directly to Weerden when he later met him in Paris. In my view it is clear from the evidence of the meeting in Paris that the offender was acting as the leader of the Australian Syndicate.
The video evidence of the meeting in Paris in my view was particularly damning of the offender and pointed directly to his role, namely as the leader of the Australian Syndicate. Moreover, there is nothing in the evidence surrounding that meeting or thereafter that would indicate that Weerden had changed his view as to the roles that were being played by Watt and the offender.
In my view the roles played by Watt and Spadina were both independently important. The conspiracy could not have been completed without both being actively involved. Watt had the connections with the Dutch Syndicate. In my view it is likely that it was he who was able to introduce the business to Spadina. However, Watt did not have the connections or expertise to facilitate the importation into Australia. Spadina had that expertise and had the contacts in various different fields to enable the importation to successfully arrive.
Spadina was able through his connections to facilitate the arrival of two dummy runs which were designed to test the process of importation.
The fact that the final importation of pseudoephedrine did not arrive is essentially outside the control of any of the persons loosely known as the Australian Syndicate. In my view the offender can be seen as the leader of the Australian Syndicate. There is simply nothing in the evidence that detracts from that finding.
Having said that, Watt's role in the conspiracy was very significant. He can certainly be seen as the trusted lieutenant.

OTHER EVIDENCE WHICH TIED THE OFFENDER TO THE CONSPIRACY

On 24 May 2006 the offender activated a mobile telephone number 0424948519 (the 8519 Daniel Smith number). It was activated by the offender in a false name and a false address because he intended to use it as his contact number for the importation. It was the offender's intention that the 8519 Daniel Smith number would be used as the sole Sydney contact. It was his intention that he, and he alone, would be called on that number once the pseudoephedrine had arrived in Sydney.
The offender used the 8519 Daniel Smith number which is described as "the other one" on 8, 9 and 15 July 2006 in calls between himself and Watt. It was also used to make and receive calls from various people who had actually communicated with the offender's usual mobile phone number at various times and/or from his contact list.
Between 21 and 22 June 2006 Weerden sent the "project list" to Asbeek-Brusse in the Congo via email. It listed the shipments which were to be moved out of the Congo including the Jerry shipment. Weerden also sent Asbeek-Brusse packing lists for the shipments located there including packing lists in the name of Kuwait Petroleum Company to be used for the Jerry shipment.
At some time prior to 21 June 2006 the following information was conveyed to Weerden - (a) the 8519 Daniel Smith number for use with respect to importation; (b) the name and contact details for Housewares International (HWI), the address for delivery of the importation, and (c) the name and address of Boris Kokot and Kokot Transport, the proposed transport company for the importation. Kokot was known to the offender as a truck driver through the offender's close friend, Tony Juras. Tony Rossi was a former employee of HWI and a close friend and associate of the offender.
The information referred to above was most likely conveyed by the offender to Watt who then communicated it to the Dutch Syndicate on the offender's instructions.
On or about 19 June Weerden (using the nom de plume Weinstein) issued an instruction to Katja Mielke (of ITS Limited) to arrange for the shipment of the Jerry shipment. The instruction, described as Project A, contained, inter alia, the information referred to above. The 210 kilograms (being a shipment of 245 kilograms gross weight) referred to in the Project A as "deshyratant" was the Jerry shipment.
The Jerry shipment was pseudoephedrine. It came from the same source as the other shipments, two of which were seized in Belgium and tested positive for pseudoephedrine. It was Weerden's intention that the Jerry shipment would be sent from the Congo to Sydney via Brussels through a company Dissaco Airfreight. After the seizure of the two shipments there was a deal of confusion and delay with respect to the Jerry shipment. It became clear the Jerry shipment had not left the Congo.
On 25 July 2006 the 8519 Daniel Smith number together with the fax number for the New Development Internet Cafe (an internet cafe frequented by Watt) was found on a document on a flash drive seized from the hotel of Messrs Weerden and Von Hohenberg by the Dubai Police. The flash drive also contained various draft documents addressed to Kokot and Kokot Transport. Those documents also contained the 8519 Daniel Smith number. This evidence clearly linked the offender to the conspiracy.
The seizure of the two shipments necessitated a change in plans for the Dutch Syndicate.
There were a number of attempts to arrange meetings with the Australian Syndicate including one that was supposed to take place in Thailand. That meeting never took place.
The Paris meeting referred to above was preceded by a conversation which occurred on the 25 September 2006 which was intercepted on a listening device that has been installed at 7/128 Old Pittwater Road, Brookvale. Watt made the travel bookings for Paris but ultimately did not travel. The bookings were changed by the offender so as to add a flight to Malta. The booking to Paris was maintained.
A truck driver, a close friend of the offender, Chiodo travelled to Paris in place of Watt. The offender had arranged to be in Paris on 10 October 2006. The offender made this clear to the travel agents when he made the bookings. On 10 October 2006 the offender met with Weerden in Paris.
The meeting was a meeting between the head of the Australian Syndicate and the head of the Dutch Syndicate. The purpose of the meeting was to progress the conspiracy. Previous to the meeting Weerden had said in a call to another associate, Beekelar, that he was going to meet his "customer tomorrow". The offender was the customer to whom Weerden was referring.
Plas and Van Hohenberg also attended the meeting in Paris. However, it was Weerden and the offender who broke away from the group, as seen on the video of the meeting, walking ahead and ultimately sitting at a cafe on their own. Frankly this evidence was damning of the offender and clearly indicated his involvement and role of the conspiracy.
The conspiracy continued on after the Paris meeting. In early 2007, Watt met with Plas and Weerden in London to arrange for the delivery of the pseudoephedrine. It was during this meeting that Weerden proposed a delivery of a dummy sample of goods (dummy run) to test the method of delivery. This was proposed to see what, if any, attention the importation would attract from the authorities and see whether that method of delivery was in fact secure.
There were a number of technical difficulties which had to be addressed for the purpose of facilitating the delivery. Ultimately there was sufficient information available to the Dutch Syndicate to enable the first dummy run to take place.
The first dummy run arrived on 28 March 2007. It consisted of cans of coconut milk. They were collected and provided to Rossi, a member of the Australian Syndicate. At the time of the delivery the offender and Watt were conveniently away in Hong Kong.
Part of the details for the delivery of the dummy run involved the use of another false number known in the proceedings as the 3283 David Small number.
Between 5.15pm and 10.25pm on 7 April 2007 there was a series of exchanges of text messages between the 3283 David Small number and Plas.
I accept the Crown established in the trial evidence that made it clear that it was the offender who sent the text messages to Plas. These were particularly damning of the offender. The following text was sent by the offender:

Update please... please, put the name of receiver on the goods... the third.
Please hear me. This is another. We have done as agreed. It was told and done as said. If you have delay tell us now. No more changes do we accept. Please stick to plan. We have many jobs on hold for this.
All clean from 1st.
Okay, he will tell you.
Okay, I looked, once we know the 2nd position we will inform you. 3rd, must arrive within 14 days from today. Your effort is great. Please tell your friends of our deadline that we have been given. Your friend will be back in four days. All shall have a great reward. Let's remember our goal.

The "2nd" was a reference by the offender to the second dummy run. The third, was a reference by the offender to the delivery of the real pseudoephedrine, and the messages showed both the knowledge that the offender possessed of the delivery, and also his frustration with the delays that had taken place.
Between 9am on 12 April 2007 and 9am on 13 April 2007 there were further exchanges of texts between the offender using the 3283 David Small number and Plas. I accept that the following texts were also sent by the offender:

Please listen. This is me. We meet before. We take it from his hands. We make this clear. We keep away from the 2nd and 3rd, when it comes it gets stored. We don't touch it. We don't touch, it's too dangerous, we don't know if it arrives for two weeks. We have set the plan from your words. Just tell us when it's sent. We cannot confirm the 2nd because we agreed to keep distance with receiver. Safety for all this way. If you have problem tell now.
Great time is important. Please keep name on the package for receiver. You are a good man.

Again the offender's reference to the "2nd"was a reference to the second dummy run, and the "3rd" was a reference to the delivery of the real pseudoephedrine.
The Crown evidence showed that by 16 April 2007 the 3283 David Small number had been returned by this offender to Watt. On 17 April 2007 there was a "team meeting" at the offender's home. The participants were the offender, Watt, and Rossi. The meeting was held in anticipation of the second dummy run arriving. Either during or shortly after that meeting a text was sent most likely by Watt to Plas on the 3283 David Small number. It was as follows: "We had final meeting today. All now is ready. Please remember to put the personal name of the receiver on the parcel. Good luck friend".
On 21 April 2007, Watt sent the following text to the offender: "Stop. Think. Who has yours and your teams back more than me. You want to invite hang on cunts to your house. That's your call. Me, I want to kill them. But you do you want. I am your fighter. But pick worthy fight for me. Because drunk fights will put me in gaol. Understand this. Aim for greatness and so some respect to the killers, not the bullshitters".
As previously noted the Crown submitted that this text described in summary form the nature of the relationship between the offender and Watt in the conspiracy. The offender was the boss, or the team leader, it was Watt's role to look after or out for the offender and the team.
On 9 May 2007 the products which made up the second dummy run arrived at HWI. They comprised Indian lollies and other food stuffs. The goods were accompanied by a note from Australian Customs suggesting that duty was payable.
Despite some further messages being sent by the Dutch Syndicate to the effect that the shipment was still supposed to be coming, it never did arrive.

ARREST

On 28 May 2008 members of the Dutch Syndicate, Von Hohenberg, Van Den Berg and Van Leeuwen were arrested. On 25 September 2008 the offender and Watt were arrested in Sydney.

SERIOUSNESS OF THE OFFENCE

The seriousness of the offence can be gauged by the penalty attaching to its commission. Here the maximum penalty is 25 years imprisonment. That is the second most serious penalty that can be imposed with respect to any offence under Commonwealth law. The objective seriousness of the offending is to be found by examining the nature of the offence, in terms of its sophistication, the quantity of the product that was intended to be imported, the length over which the offence was committed, the danger that importing such a substance might have had on the community, and the offender's role and motivation for committing the offence.

THE NATURE OF THE OFFENCE

Pseudoephedrine is a precursor to the drug methylamphetamine. Methylamphetamine is a serious illicit drug, the use of which is prevalent in the community. I am satisfied beyond reasonable doubt that the offender intended to obtain a very substantial quantity of the precursor drug for the purpose of either manufacturing methylamphetamine, or more likely selling it to someone who would manufacture that drug.
The quantity that was supposed to arrive in Australia was 210 kilograms. The commercial quantity for the drug is an amount of 1.2 kilograms of pure pseudoephedrine. Whilst it is not possible to be precise as to the quantity that was intended to be obtained by the offender (as opposed to what was intended to be exported by the Dutch Syndicate) I am satisfied that the offender was aware that the quantity was going to be a very substantial multiple of 1.2 kilograms.
Purity of the drug is an issue on sentence. It is accepted by both the Crown and the offender that the purity of the pseudoephedrine could not be found to be greater than 20 per cent. Consequently, I accept that whatever quantity was intended to be imported by the offender, ultimately had it made its way into the country it would only have had a purity of no more than 20 per cent.
The fact that the drug did not actually make its way to Australia is also a factor to be taken into account on sentence. Because the drug never was available to manufacture methylamphetamine, it was obviously impossible to distribute that illicit drug into the community. It is the distribution of the drug methylamphetamine that provides the real danger to the public. In this case that danger never eventuated, and consequently it is appropriate to recognise that fact and reduce the objective seriousness of the offending.
This case did display a degree of sophisticated planning. It was necessary for this offender to gather around him a crew of other participants with particular skills to allow him to safely import illicit substances into the country. Obviously to enable that to happen he needed to be sure that the persons he used were trustworthy, and would not divulge their activity to others, or to the authorities.
I note that the evidence in this case originally arose out of a tip-off from the Netherlands Police to Australian Police. As the evidence shows the Australian Police were investigating the Australian Syndicate from early in 2006 right through until 2008. I commend them for their work and obvious professionalism. Not only did the offender have to recruit his syndicate, he also had to expend significant amounts of money pursuing the purpose. There was some travel involved that had to be paid for. It is also not clear where the $110,000 cash came from to pay for the initial deposit. I have no evidence that would allow me to find that the offender was the source, or at least the sole source of that money. He clearly was aware that the payment had been made.
In my view this was a well-organised, criminal syndicate that planned to obtain a very significant quantity of a precursor for the manufacture of a dangerous illicit drug. It was a very serious example of this type of offending. In my view the offender's motive in undertaking the crime was obvious. It was to obtain money or pure profit. He made that clear in his communications with Plas. He could have anticipated receiving at least millions of dollars as recompense for his actions.
The fact that the offender's motivation was naked greed is an aggravating factor on sentence. It is not so much the amount of money involved, but the moral decrepitude that such an attitude to the behaviour of offending displays. Having said that, it is not an unusual motivation for this type of offending, and might be seen to be part and parcel of the offence itself.
Another factor to be considered is the length of time over which the conspiracy was on foot. Here the period was approximately 21 months. In that time the offender was attempting to act in a clandestine way, using false names to obtain telephone numbers, which could then be utilised as part of the conspiracy. In conjunction with Watt the offender also used false email addresses and other tactics designed to avoid detection. It is both the combination of the use of these techniques and the length of time over which the offences committed that demonstrates the seriousness of the offending.

ROLE OF THE OFFENDER

As noted in the facts above I am of the view that the offender can rightly be seen as the leader of the Australian Syndicate. As to his precise role it is revealed in my earlier findings. I will come back to consider whether there are any issues of parity on sentence with respect to Adam Watt.

CONCLUSION ON OBJECTIVE SERIOUSNESS OF THE OFFENDING

In my view having regard to the above mentioned factors, the objective seriousness of the offending was high. The only appropriate sentence is one of full-time custody. These are offences that require particular attention being paid to the principle of general deterrence. The sentence must attempt to act as a guide to other potential offenders that if you commit an offence of conspiracy to import a precursor substance then a condign sentence will follow.

CHARACTER

The offender has a prior conviction involving his possession of a precursor. On that occasion the precursor was sassafras oil which was apparently a precursor for the manufacture of ecstasy. He pleaded guilty to an offence of being an accessory before the fact to the manufacture of a prohibited drug. The offence occurred in 1994. He was ultimately sentenced to pay a fine of $3,000 and was released on a good behaviour bond for a period of three years. The bond was issued on 4 January 1999 and, therefore, ended on 4 January 2002. It is of some concern that within the period of four years from the end of bond he was again conspiring to involve himself with precursor drugs. His prior criminal record does require attention being paid to specific deterrence in his case. Of course since his arrest in 2008, many years have now passed. He has committed no more drug related offences. His only other recorded offences are driving offences, and one offence of destroying property, and in each case he was fined, and it can be presumed that these were relatively minor offences.
The offender's character is not to be judged solely on the basis of his prior offending. There is also before the court a large number of testimonials which speak of the good qualities of the offender, and that he's possessed those qualities and displayed them over a number of years. Accepting the thrust of those testimonials, he is regarded as a very generous person. He has gone out of his way to assist others, sometimes even people who he does not know well. He is regarded as a strong family man. He is married and has two children. His wife stands by him and will continue to do so.
The offender's arrest has been difficult for the family. That is not something about which he can of course complain, he is the master of his own destiny in that regard, but the effect of his initial incarceration and then release on bail, has had on the offender and on his family, is something that I am entitled to take into account in considering the appropriate sentence.
In my view, given the length of time the proceedings have taken to complete, about which I will have some more to say, the effect on the family is a factor that should mitigate the sentence to be imposed, at least to some extent.
Returning to consider the character of the offender, he is described as kind and genuine. He was also described as a knowledgeable businessman, who has assisted in a number of business ventures. It is frankly difficult to reconcile the character descriptions provided in the testimonials with a person who is prepared to act in the manner in which the offender has been found to have acted in this case.
As with most people, their characters are not merely black and white, all good or all bad. In my view the offender is a pragmatic person who was deluded by the opportunity to make a quick and substantial profit from the importation and sale of pseudoephedrine.
That description is not necessarily inconsistent with him being a generous man who possesses real ability in the business world, and who is also a good father and family man. The question is whether he could be described as a person of good character, and in my view that is not a description that could be applied to him. It requires a certain type of moral debility to want to seek to obtain financial gain by spreading misery to other persons in the community, by being involved in the business of illicit drug production at any level. Based on his criminal history, this must ultimately be regarded as part of his character, and it is essentially for that reason that I find that he is not a person of good character.

MITIGATING FACTORS

The offender is a 50 year old man. He is, as earlier noted, married, and has two children, who are still of school age. His wife has written to the Court outlining her assessment of her husband. I have considered her views, in particular with regard to the assessment of the offender's character. As a result of his offending the offender's family has had to move from their permanent home. They were living in a house owned by the offender's brother for some time, but recently that property had to be sold.
Undoubtedly all of this is extremely difficult for the offender and his family, although there is nothing particularly unusual about the collateral effects on the family in such circumstances.
The offender's wife acknowledged that the offender would by necessity be sentenced to a lengthy term of imprisonment, but that she would continue to support him.
The offender clearly has many positive personality traits. People who know him from the business world have acknowledged that he has ability in that realm. It is indeed unfortunate that he has again allowed a tendency of his, to chase the easy dollar, to take hold rather than applying himself to legal business, which he appears to have some real aptitude for.
The offender has spent a lengthy period of pre-sentence custody totalling two years five months and 19 days. After he was granted strict bail on 29 September 2010 he continued on bail until after his conviction. It was agreed between the parties that the date for commencement of sentence should be 16 December 2012 to reflect pre-sentence custody. It is further submitted that some recognition of the lengthy period of strict bail, which included strict reporting conditions and the wearing of an electronic bracelet for some time, be taken into account when setting the sentence. I agree that this is a factor that can be taken into account on sentence.
It is not the case that the period on bail is equivalent to a period of custody, or quasi custody, the situation that sometimes arises when an offender attends a full-time rehabilitation course. However, some recognition of the period is warranted given the length of the period on bail, and the strictness of the conditions, I will mitigate the sentence to some extent on this basis.
The offender by his plea of not guilty is not entitled to a finding that he is contrite for his actions. Given his willingness to enter into this conspiracy within years of having served a period on a good behaviour bond for a similar offence, it is now extremely difficult to find that the offender has reasonable prospects of rehabilitation.

HEALTH OF THE OFFENDER

The offender has a history of heart conditions that resulted in a myocardial infarction in March 2004. He underwent surgery around that date, which appears to be successful. However, it was also recommended that he receive the insertion of a pacemaker.
After his conviction I permitted him to remain on bail, and he had the pacemaker inserted on 1 April this year. That also appears to be a successful operation.
He has been treated by a Dr Mathur, cardiologist, and a report was requested from him but unfortunately it has not been provided.
In substitution for that report, at least to some extent, a report was provided by Dr Dylan Wynne, who is a consultant cardiologist. Dr Wynne qualified his report on the basis that he had not seen the offender for a number of months. He opined that if the insertion of the pacemaker was successful, and he had no reason to doubt that it was not, then he did not expect any particular complications with the pacemaker.
Dr Wynne did comment that pacemakers require a regular checkup. This should certainly be undertaken whilst the offender is in custody. Dr Wynne said that the offender had complained about chest discomfort, but it was "of no acute concern clinically". If the offender suffers palpitations, or breathlessness whilst in custody, then he would require conventional cardiovascular follow-up.
Dr Wynne's report should be provided to Justice Health to aid with any problems that the offender may have in custody in the future. It is submitted that the offender's medical conditions are likely to make his stay in custody more difficult for him. It does not appear that he is presently suffering any medical conditions that inhibit his activities in custody.
I accept that, given his recent health treatments, he will understandably be concerned about his long-term health, and that might be a concern that is not shared by other prisoners. This is a factor that I will bear in mind on sentence, although in my view it is a matter of marginal significance when setting an appropriate sentence.
The offender also saw a forensic psychiatrist, Dr Farrar. Dr Farrar has provided a report to the Court. The report outlines the offender's background. I have taken that history into account on sentence.
Dr Farrar diagnosed the offender as suffering from a major depressive disorder as well as generalised anxiety disorder. Dr Farrar recommended treatment in the form of pharmacological treatment with an antidepressant. She also recommended psychological treatment, although the doctor noted that this type of treatment is not readily available in custody.
In my view Dr Farrar's diagnosis is of some significance on sentence. The diagnosis does not relate to, or form part of the facts of the offence itself. It appears that his depression and anxiety has arisen after being charged with this very serious offence. Despite that, the condition, if it remains untreated, will make his stay in custody markedly more difficult for him. The symptoms cause the offender clinically significant impairment in social functioning, and have led him to not wishing to participate in exercise which would otherwise aid his anxiety, and could be important to maintain his coronary health.
It is a factor that I will have regard on sentence, and it will result in a reduced sentence on the basis the offender does not represent an appropriate person about whom to apply, at least at full value, the principles of general deterrence.

DELAY

The Crown submitted that it accepts that there has been some relevant delay in the prosecution of this case, and which can be taken into account on sentence; see paragraph 73 of the Crown submissions. In terms of determining the period of delay, it is not an easy matter. The case has a very long history, and there are a number of decisions in earlier proceedings that could be considered. The offender was charged in 2008, and only finally found guilty in 2015. The Crown has outlined the principles which it submits ought to be taken into account when considering a submission that delay is relevant on the sentence. I note those submissions, and the authorities referred to; see Crown submissions on sentence, paragraph 67 to 71.
In my view the offender can only have a period of delay taken into account on sentence as a mitigating factor if such a period can be found to be outside what might otherwise be regarded as a reasonable one for the conduct of the particular case brought against the offender, and for which he is not responsible. It is in this sense that I use the term 'relevant delay'.
The offender has submitted that there is a period of unexplained delay between when the offence was detected and when the offender was charged. I disagree with that submission. It is clear from the circumstances of the offence that the police were still monitoring the behaviour of the offender and his syndicate. The police were obviously liaising with their Dutch counterparts. Once the Dutch Syndicate was charged, there was little relevant delay in charging the offender and Watt. I would reject this period as involving a relevant period of delay.
The offender submitted that there was a lack of disclosure made by the Crown of certain intercepted material which was said to be critical to the offender's defence. That failure to disclose has allegedly led to delay in the proceedings.
I accept that a considerable degree of leniency should be permitted to the offender in investigating the defence case in a matter such as this. The offender had to employ an expert to establish that there were some missing phone calls and transcripts. Having done so, those items had to be sought from the prosecution.
Part of the problem with disclosure was the nature of the offence. It was an international conspiracy, covering a number of countries. At paragraphs 57 to 63 of Justice Price's judgment in R v Spadina [2013] NSWSC 4 there is identified a series of documents and transcripts summaries that were apparently unavailable to the defence which should have been provided. His Honour did not suggest that the Crown had failed to disclose the material, however, his Honour did note that Detective Aston's efforts to identify what he thought was relevant material was far removed from what the defence thought was relevant. Justice Price essentially agreed that the material sought by the defence should be provided. This decision was made after an application was made to stay the proceedings. His Honour granted a vacation of the trial at that time, and also a temporary stay of the proceedings.
In my view this does involve a period of relevant delay. None of the delay can be laid at the feet of the offender, and he is entitled in my view to recognition of this delay on sentence.
The judgment of Justice Price was provided on January 2013. The trial of the offender commenced in September 2014. It is not unreasonable to find that there was a period of at least a year of relevant delay which occurred resulting from this judgment.
However, that is not the only alleged delay. It is clear that the offender ran out of funds to continue his defence at some point. As a result he was unable to brief counsel, and this resulted in a delay of some length. Ultimately this was resolved by Justice Hamill recommending to the Legal Aid Commission that legal aid be provided to the offender. That recommendation was made on 28 May 2014. The recommendation was accepted and, thereafter, the offender was represented.
It is not necessarily easy to identify the length of delay which might have resulted from the offender's initial failure to obtain legal aid. The offender filed an affidavit in the case heard by Justice Hamill which indicated that he did have, at least initially, significant assets. It is unsurprising in the circumstances that he was refused legal aid. However, that situation changed over time as outlined in his affidavit. I cannot now judge the truthfulness of his account in that regard but accept that in December 2012 the offender made a second application, but that application was again refused. At that stage the affidavit revealed that the offender was still working, and in receipt of income.
I cannot second-guess the decision made by the Legal Aid Commission to again refuse the offender's application for aid at that point. As indicated in the affidavit in July 2013 the offender lost his job, and at that point was no longer able to raise funds for legal costs. Consequently he made a third application for legal aid, which was again refused.
The offender accepted in his affidavit that he made some errors in his application for legal aid but asserted that they are relatively minor and that he had been truthful in his applications.
Given the amount of money that the offender had expended on legal fees in the preparation of his case as disclosed in the affidavit and that he seemed to have had very substantial financial support from friends and acquaintances, it is quite possible that the Legal Aid Commission was sceptical as to whether the offender had properly disclosed his assets.
In any case the whole issue was resolved by Justice Hamill who recommended the grant of legal aid. In my view there was no actual delay thereafter.
It is frankly impossible for me to judge, at this distance, whether the decisions made by Legal Aid Commission were reasonable or not. It is clear that the offender had not provided completely accurate information to the Commission and in my view he cannot now complain about the delay in the proceedings based on the failure of the government to pay for that defence.
I accept that there was a delay but that in my view it should be viewed at best as a neutral factor.
Returning then to consider the delay in proceedings that I have found, the question is what relevance that should have on sentence.
I accept that the delay would have caused the offender some additional anxiety. The delay would undoubtedly have caused financial distress for the offender who was, up until quite recently, funding his own defence.
It is also likely to have caused some further psychological distress for him.
It also meant that he had to continue on strict bail conditions for a long period - in my view it is worthy of some recognition and additional leniency on sentence.

PARITY

It has been fairly faintly submitted that some recognition should be undertaken on sentence here of the penalty that was imposed on Adam Watt.
In my view no issue of parity of sentence arises in this case. Watt was not convicted of an offence. He was dealt with by way of a special hearing that resulted after Watt was seriously injured in gaol. He was assaulted by being hit on the head by an implement leaving him with serious brain injuries.
Any penalty applied in such a case cannot be seen as a guide to the sentence to be applied in this case. In my view Mr Spadina could feel no justifiable sense of grievance by reason of the penalty applied to Watt.
I have taken into account the penalty that was applied to Watt. I am of the view that it does not affect the sentence to be applied in this case.

WILLINGNESS TO FACILITATE JUSTICE

It has been recognised that an offender's willingness to facilitate justice by cooperating with the Crown so as to shorten the proceedings is something that can be taken into account on sentence. See Damoun v R [2015] NSWCCA 109 at paragraph 51
In this case I observed during the proceedings that the defence was willing on a number of occasions to make real concessions that substantially shortened the proceedings and resulted in the Crown not needing to call a large number of witnesses, some of whom would have been required to attend from overseas.
Pragmatically this must have saved considerable Crown funds. In my view his cooperation is worthy of recognition on sentence and I propose to give a discount on sentence which I will set as five percent from the sentence that might otherwise be set.

THE LENGTH OF SENTENCE BEFORE CONSIDERATION OF MITIGATING FACTORS REFERRED TO ABOVE

In this regard there have been a number of decisions provided by the Commonwealth DPP. I have read and taken note of those decisions. I have also had regard to the statistics provided from the Judicial Commission. I note in that regard that sentences ranged in length between 18 years and four years as head sentences. I can discount the sentence of 18 years - the sentence provided to offender Standen. He was a member of the Crime Commission when he committed the offence. His standing at that time and consequent breach of trust was so extreme that his offence can be seen to be significantly different to the offence committed by this offender. It was also objectively more serious. Moreover he was found to be guilty of other offences at the same time including supply prohibited drugs which led to an even lengthier sentence.
In my view the case of Standen does not provide any accurate guide to the length of sentence to be provided in this case.
In my view having regard to the objective seriousness of the offending, the statistics to which I referred and the other cases that I have read that were provided by the Crown a sentence of 12 years imprisonment could have been applied in relation to this offence.
Given the matters that I identified in mitigation of sentence I am of the view that the period of 12 years can be reduced to a period of ten years and six months imprisonment.

SECTION 16A OF THE CRIMES ACT

In as much as I have not referred in detail to section 16A of the Commonwealth Crimes Act and the factors outlined therein I have taken those matters into account in sentence.

SENTENCE

Mr Spadina you are convicted of the offence of conspiring to import a commercial quantity of a border controlled precursor, namely pseudoephedrine, you are sentenced to a total term of ten years six months imprisonment to be made up of a non-parole period of six years and six months.
The non-parole period will commence on 16 December 2012 and end on 15 June 2019.
I recommend your release to parole on that day. There will be a period of four years on parole. The sentence will be completed on 15 June 2023.
On parole you are to accept the supervision of Community Corrections New South Wales. Such supervision should be provided at the discretion of that Service. The supervision can also be terminated at the discretion of the Service.
Just so you are clear with the dates, the total term ten and a half. Starts when you first went into custody which we backdated to 16 December 2012. That was the agreed date when everyone was here.
So, I then set a non-parole period, that is the period you have to spend in custody of six years and six months.

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: 15 July 2015

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