Solicitors:
Crown: Ms H Sewell
Defence: Mr A Greville
Voros Lawyers
File Number(s): 2017/60282
[2]
Judgment
Isireli Vakatalesau appears for sentence in respect of a single offence, being attempting to possess a commercial quantity of a border controlled drug, being 81.4 kilograms of pure methylamphetamine, contrary to s 307.5(1) of the Criminal Code (Cth). The maximum penalty provided is life imprisonment and/or 7,500 penalty units.
The offender was arrested on 24 February 2017 and has been in custody since that date until today, and solely in relation to this offence.
He was committed for trial on 14 December 2017 from Central Local Court, and on 24 September 2018, which was the date appointed for the commencement of the trial, he entered a plea of guilty to the count.
The sentence proceedings in respect of Mr Vakatalesau were then joined up to be heard at the same time as the sentence proceedings in respect of his co-offenders, Mr Chan and Mr Kwan, heard on 26 April 2019. Chan and Kwan were sentenced this morning.
I have dealt with the co-offenders separately because there are some distinctions between the agreed facts as expressed, and also some material contained in the material supplied to the Court in relation to Mr Vakatalesau that was not relevant and indeed, at least in one case, prejudicial to one of the co-offenders. For those reasons, I have dealt with them separately.
The facts are as follows:
In October 2016, Maxfill Australia Pty Ltd, a freight forwarding company based in Sydney received an email from G-Harmsperity Co, a company based in China, requesting a quote "for delivery of a 20 foot shipping container to 60 Perry Street, Matraville." The bill of lading described the contents of the container as "112 packages of angle steel" and listed as consignee a person named as "Peter" with the address at Perry Street, Matraville and a contact mobile number, 0416 468 253, and an email address of pacific4p@gmail.com.
On 18 January 2017, Donald Chan, a co-offender, in the presence of Isireli Vakatalesau, leased a storage unit from Kennards Storage, located at 409 Great Western Highway, Wentworthville. Chan listed himself, Isireli Davis and Peter Bokadisu as persons authorised to access the Kennards unit.
On 19 January 2017, a container arrived at the Kennards unit and Chan spent the day unloading it with this offender. The contents of the container consisted of black [angle iron] metal frames which the offender and Chan placed into the Kennards unit.
On 20 January 2017, Chinese officials at the Criminal Technology Division of Huanggang branch of the Shenzhen Customs Anti-Smuggling Bureau (ASB) received intelligence relating to a container located at Yantian Port, China.
At about 6pm on 20 January 2017, officers from the ASB attended the inspection platform at Yantian Port and inspected the freight container, TCLU2495273 (the container). The container's bill of lading described the contents as "152 packages of angle steel". The consignee was listed as a person named as "Peter" with the address in Perry Street, Matraville and the same contact number and email address previously referred to.
The container was opened by officials of ASB. Inside were dark-coloured metal frames which were removed. The flooring was lifted, revealing a large number of vacuum sealed silver bags. An on-site drug test was conducted on the contents of one bag which showed a positive result for methamphetamine.
Officers from the ASB removed and seized 69 bags from the concealed floor area of the container. The flooring was returned to its original position and the metal frames were also placed back into the container. The door was closed and locked with new customs' locks. The 69 bags seized were handed over to officials of the Customs Anti-Smuggling Bureau. Ten bags were randomly selected and two samples were drawn from each, one for a drug test and one for a purity test.
The 69 bags seized from the container were weighed by Chinese investigating officials with a total net weight of 101.696 kilograms.
On 21 January 2017, gas chromatograph-mass spectrometry testing was conducted by the Chinese officials on the samples, and all ten were found to contain methamphetamine.
On 21 January 2017, the Chinese National Central Bureau advised the Joint Organised Crime Group that they had seized approximately 103 kilograms of methamphetamine concealed within the floor of a container which contained metal framing, scheduled to be sent from China to Port Botany, Sydney.
On 30 January 2017, the container departed China. On 7 February 2017 Harmsperity emailed Maxfill a request to handle the inbound container. Maxfill was supplied with the consignee name "Peter" with the contact mobile number previously referred to. A representative of Maxfill attempted to contact "Peter" on that number.
On 9 February 2017, a drug testing facility in Shenzhen, China, issued a drug purity test report showing the purity of methamphetamine in the ten drug samples taken from the seized bags varied from 75.16% to 78.24%.
On 13 February 2017, the representative of Maxfill received a text message from "Peter" informing her of a delivery address for the freight container of Unit 38, 65 Marigold Street, Revesby, New South Wales. This is an address at which "Peter" had arranged for the lease of a unit.
On 13 February 2017, the Department of Immigration and Border Protection advised that Maxfill had identified the consignee of the container as "Peter Bokadisu". On 18 January 2017 Bokadisu became a registered client with the Australian Border Force with the contact number being the mobile number previously referred to, provided at this time as the contact name for Bokadisu. That number is used by the offender and is subscribed to his aunt, Ms Mereani Matewasa.
On 15 February 2017, the container arrived at Port Botany, Sydney, and was unloaded.
On 16 February 2017, investigators covertly entered the freight container and placed 69 bags of an inert substance underneath the floor boards of the container. Surveillance devices were also installed within the container.
On 17 February 2017, the co-offender, Chun Man Kwan, arrived in Australia from Hong Kong. It was Kwan's first visit to Australia.
On 20 February 2017, Maxfill received notification that the consignment was cleared to be collected from the wharf. Maxfill was notified that the delivery address for the container was 38/65 Marigold Street, Revesby, NSW.
On 21 February 2017, between about 8.38am and 10.09am, the container was delivered to the premises in Marigold Street, Revesby. That address is an industrial complex containing multiple business units. The premises were at the time the subject of physical surveillance by numerous investigating officers.
At about 9.55am, whilst the container was being unloaded in front of unit 38, the offender and another male, Savenaca Alageto, arrived at the premises. The offender took delivery of the container.
At about 10 am, the container was unloaded in front of the unit at Revesby. At about 10.18am, the offender and Alageto opened the doors of the container. Between 10.18am and 1.23pm Alageto removed the steel frames from the container whilst the offender, his left arm in a grey mesh sling, assisted from time to time.
At about 1.18pm a white Mitsubishi, registration 1II5GT, arrived at the premises at Revesby. The co-offender Chan was driving and the co-offender Kwan was in the front passenger seat. Chan left the white Mitsubishi and walked into the premises and approached the container, and at about 1.25pm entered the container together with the offender. Between 1.25pm and 1.30pm, the offender and the co-offender Chan remained inside the container.
At about 1.45pm, the co-offender Kwan exited the white Mitsubishi and walked towards the freight container where he met with the offender and Alageto. The co-offender Kwan shook the offender's hand and the offender and Kwan walked toward the freight container, with the offender walking in and out of the freight container, and Kwan walking in the vicinity of the freight container. A short time later, Kwan returned to the white Mitsubishi and he and the co-offender Chan left the Marigold Street premises.
Between about 1.47pm and 3.05pm, the offender and Alageto were observed in the vicinity of the open freight container, moving the metal frames.
At about 4pm, Chan and Kwan returned to the Marigold Street premises in the white Mitsubishi. At about 4.20pm, the offender entered the rear of the white Mitsubishi with Chan as the driver and Kwan as the front-seat passenger. The Mitsubishi was driven by Chan to Bunnings, Bankstown Airport in Milperra Road.
At about 5pm, Chan and the offender went into Bunnings. Chan purchased a torch headlight before Chan and the offender left Bunnings a short time later returning together to the white Mitsubishi. The white Mitsubishi with Chan, Kwan and the offender was then driven back to the 62 Marigold Street, Revesby, premises.
At about 5.11pm, the white Mitsubishi entered the southern driveway of the Marigold Street premises, parking with the front of the vehicle facing the open doors of the container. The three men left the car and a short time later entered the container.
A short time later, the offender left the container. About 5.16pm, Chan and Kwan removed part of the flooring of the container and began to retrieve packages of the inert substituted material from underneath the floor. At this time, the offender was outside of the container with Alageto.
At about 5.18pm, Chan and Kwan left the container. Chan manoeuvred the white Mitsubishi so that the passenger side doors were facing the open shipping container doors. The offender and Kwan watched Chan do this momentarily from the vicinity of the entrance of the container.
At about 5.19pm, the offender, Chan and Kwan again entered the container together and removed packages from the concealed area of the container floor. The offenders Chan and Kwan together placed a number of foil bags containing the inert substituted material into luggage-style bags before returning the removed flooring to its original position.
Between 5.25pm and 5.32pm, Alageto removed a number of metal frames from the container.
Between 5.41pm and 5.56pm, the offender, Chan and Kwan again went into the container and removed a further part of the flooring and together retrieved the remaining packages of inert substituted material from underneath the floor. The 69 packages were apportioned by the offender, Chan and Kwan between three luggage-style bags.
Between about 5.57pm and 6pm, Alageto removed the three luggage-style bags from the container and placed them into the rear of the white Mitsubishi.
Shortly afterwards the offender and Alageto secured the doors of the container before all four men left together in the white Mitsubishi with Chan driving, Kwan in the front passenger seat and the offender and Alageto in the rear seats.
At 6.24pm Chan dropped the offender and Alageto at Bankstown Train Station. Chan and Kwan then continued to the Travelodge at Blacktown. At 7pm, CCTV from the Travelodge Blacktown showed Chan and Kwan jointly wheeling in a luggage-style bag. The bag appeared to be one of the bags into which the inert substance had been placed by the offenders Chan and Kwan in the container and later transferred into the white Mitsubishi by Alageto.
On or about 22 February 2017, the offender attended the premises of The Avenue, Granville at which his aunt, Mary Matewasa, resides with her husband. The offender had with him three bags. He said to Matewasa, "Aunty, I've got to leave my bag here. Don't touch. It's for my friend." He left the bags at that address and left the premises.
On 24 February 2017, police arrested the offender at his home in Castlereagh Street, Liverpool, during the execution of a search warrant. A grey mesh arm sling was seized together with a Fijian passport in the offender's name and a Papua New Guinean passport in the name of Peter Bokadisu with the offender's photo in it.
Later that day, police arrested the co-offenders Chan and Kwan from within a Toyota Camry stopped near a residence in Coghlan Crescent, Doonside. On the same day, search warrants were executed on the premises at Marigold Street, Revesby, and on the freight container located there. Search warrants were also conducted on the same day at the Coghlan Crescent premises, being the residence of the co-offender Chan's parents and at the Vibe Hotel, Rushcutters Bay, during which time the white Mitsubishi was also searched.
The offender participated in an interview with police, in which he made full admissions to being inside the container, lifting its floor and removing the concealed bags. The offender stated he was involved with the person he identified interchangeably as "Bob" and "Boss" (Chan) and a person he identified only as "Bro" (Kwan) in the removal of the concealed bags, which he believed at that time to be drugs.
The offender made further admissions to being involved with "Bob/Boss" (Chan) in the importation of a shipping container in January 2017, which was delivered to Kennards Storage in Wentworthville. The offender stated the importation of a container in January was conducted in preparation for the subsequent importation of the second container in February 2017. The offender also made admissions to attending Kennards Wentworthville with "Bob" (Chan) in January in order to book the storage unit and unload the steel frames contained in the first container and place them into the Kennards Unit.
The offender made further admissions to using the identity of "Peter Bokadisu" in furtherance of these activities, and to using the email address and mobile number previously referred to which had been used to arrange for the importation of both the January and February containers. The offender identified "Bob" as being Chan, and as the person who organised the false passport in the name of "Peter Bokadisu", and who provided the false passport to him. The offender admitted to arranging the premises at Marigold Street using this false identity and to involving Alageto to help him move the frames, which he was unable to do himself, due to his injured arm.
The offender indicated that he was promised $30,000 by Chan but received only approximately $3,000. On 28 February 2017, a search warrant was executed at the Kennards Unit in Wentworthville. The black steel frames, which the offender stated he unloaded with Chan in January in preparation for the February container importation, were located in the storage unit rented by Chan.
On 8 March 2017, Ms Matewasa contacted police, who attended her unit. Attending police opened the three bags that had been left at her premises by the offender on or about 22 February. Inside the bags were a large number of clear resealable bags and foil bags containing a crystal substance. The items were seized by police and subsequently re-identified as the foil substitute packages created by police on 14 February 2017, with the exception of the clear resealable bags into which some of the content of the foil bags had been placed.
On 7 June 2018, a federal agent travelled to Shenzhen, China, and was provided with ten samples from the drugs seized at the Yantian Port on 20 January 2017.
Following the drug samples being transferred to Australia, they were tested for purity on 14 June 2018 and 2 July 2018. The samples were found to have an average of 80.1% purity resulting in the pure quantity of methamphetamine being approximately 81.4 kilograms. Calculations were also performed in relation to the purity of samples obtained by Chinese investigators on 20 and 21 January 2017. It was calculated that, based on the gross weight of the crystalline substance, being 101.696 kilograms with an average purity of 76.82 kilograms, the total pure weight of methamphetamine was 78.12 kilograms.
In 2017, in New South Wales, the estimated bulk value of 101.696 kilograms gross of methamphetamine sold in bulk or on a wholesale basis was between $8,080,000 and $14,140,000.
In 2017, in New South Wales, the estimated street value of 101.696 kilograms methamphetamine was estimated as being between $50,848,000 and $152,544,000.
I note that while the facts refer to the offender as in effect making full admissions, part of Exhibit 1 is the transcript of his interview. While the offender made a number of relevant admissions in respect of himself, he referred to Mr Alageto as being a friend by the name of "Tony Robuka", whose actual address he could not provide, and who he was, it seems to me, at pains during the interview to ensure that he said nothing that might implicate Mr Alegeto/Robuka in any knowledge of the content of the container.
I note that at question 155 of the interview, he answered, as to when it had started, he said,
"Ah, it was last year. I started from last year by someone calling me from Fiji and asking me if I could work for - of his - one of his ah - ah mates - um his friend and um he said, 'It's good money.' So it's because that time I don't have ah - I don't have any tax file with me but I just want to get it. I just want to - I just want some more extra cash and then I said, 'Yes to - to the bloke.' And the bloke gave me his number so I contacted him and then after a while we meet. We meet with the guy and he started talking with me about um, ah, how I helping him. How to um selling him drugs."
As to the time when this had happened, his answer continued to indicate that it was in September/October 2016.
He claimed not to know the names of either Mr Chan or Mr Kwan, or any address in relation to Mr Chan, and to have only dealt with Mr Chan by telephone or by meeting him in public places. He did, towards the end of the interview, when photographs were produced to him of Chan and Kwan, identify the persons in the photographs as being "Boss" (Chan) and "Bro" (Kwan).
It would be unusual for the high degree of trust that was placed in the offender to have been placed in relation to such a significant importation of a prohibited drug in the absence of some greater knowledge of him by those he was assisting. However, there is no evidence of any other contact.
As to the friend from Fiji who was said to have introduced him to Chan, he provided only the name "Bill" and said he was unable to provide a surname or any other detail that might have identified that person.
Attempts to import commercial quantities of border controlled drugs are clearly regarded as very serious by the legislature, which has provided for a maximum penalty of life imprisonment and/or 7,500 penalty units.
A shipment of 101.696 kilograms (81.4 kilograms pure) of methamphetamine is well in excess of the commercial quantity. The commercial quantity provided by the legislation is 750 grams pure; accordingly, there was more than 108 times the threshold that qualifies as a commercial quantity.
The legislation makes no distinction between different border controlled drugs other than by way of quantity, but it is clear that in recent years methamphetamine has become a serious problem for the community - that is, for the entire Australian community. In New South Wales it is evident from the matters that come before this Court that it has spread through every socio-economic group and to every geographic area. It is well recognised that it creates serious problems. For those who use it, it may cause brain damage or drug-induced psychosis amongst other adverse effects. Its use is frequently associated with violence while users are affected by it. It has become a fact in relation to criminal offending in New South Wales that a significant number of offences coming before the Court are not simply in relation to the use of the prohibited drug, methamphetamine, or its sale or purchase, but because of the adverse effects that it has on the user. It has reached the position that in recent times it has been seen as necessary to commence an inquiry into the prevalence of the use of methamphetamine in New South Wales, which is currently carrying out its task.
As to whether or not the offender was aware of the nature of the drug that he was attempting to possess, I note I have already referred to that part of his interview where he referred to having being asked to "sell" drugs in the answer to question 155; he also subsequently in the interview indicated that he was aware that there was a container coming in and that his role was to arrange for a warehouse in respect of it and that the first container that he dealt with was to be a "test" container. At question 164,
"And I arranged it for him - arranged it for him and he said um - um, 'This container doesn't have anything in there so it's just a test. It's just a test to see how the people will see about this container, first container'."
He also referred to having been provided by Chan with two mobile phones for the purpose of the importation and cautioned by him at one stage to turn the phones off because the police would track him via the phone. He said he was told that in January.
Significantly, he was asked questions (at approximately question 596) about a conversation before the first container in January and his answer was, "Um, he was telling me um there will be ah some ah - ah 'ice coming'." So there can be no doubt that this offender knew that the importation was to be of methamphetamine being imported into Australia via a shipping container as he has admitted to that knowledge.
There was no evidence or admission as to knowing of any particular quantity, but it might be reasonably presumed that as he understood that it was being smuggled into Australia in a container, and that the method or process of importation was to be tested by the earlier container, it was likely to be a significant or substantial quantity.
It has been held in the past that Courts sentencing should have regard to the role played by the offender in the particular activities undertaken by him in performing that role, R v To [2007] 172 A Crim R 121 at [141] but that care must be taken to ensure that any shorthand description of the offender's role does not obscure the assessment of what he actually did, R v Olbrich [2000] 117 A Crim R 326 at [279].
As to the offender's role, it involved the following:
In relation to the first container:
the offender's pseudonym "Peter" was listed as the consignee on the bill of lading. The contact number provided, that is the mobile number ending 253, was subscribed in the name of the offender's aunt, Ms Matewasa.
On 18 January 2017, the offender and Chan attended the Kennard Self Storage facility in Wentworthville to hire a unit.
On 19 January 2017, the first container arrived at the Kennards Wentworthville facility and on that day the offender and Chan unpacked the metal frames from the container and moved them into a storage unit.
In relation to the second container:
the offender used a false name, email address and phone number to facilitate the receipt of the container in Sydney.
The offender also contacted Maxfill, the freight company, on 13 February 2017 to change the delivery address of the container to Unit 38/65 Marigold Street, Revesby.
The offender recruited his friend, Alageto, to assist with moving the steel frames out of the second container on 21 February 2017, as his arm was injured and in a sling, and in order for the substituted bags under the floor to be accessed.
Later that day, the offender assisted the co-offenders, Kwan and Chan, to lift the container floor so that the substituted bags could be accessed and placed in luggage and then into the vehicle driven by Chan for removal from the Revesby address.
On or about 22 February 2017, the offender had possession of three pieces of luggage containing approximately 20 kilograms of the drug substitute, As to how the offender came to be in possession of them, there is no evidence before the Court.
I note that the Crown in its written submissions as to that fact opines:
"That the offender may have been entrusted with the management of the remaining substitute bags after the substitution presumably had been discovered."
In my view that is a most unlikely presumption. The offender had been intimately involved in the arrangements and participated in the accessing, retention and removal of the whole of the substitute. He left it with Chan and Kwan in the Mitsubishi when he got out at the railway station and departed. How it later came to be in his possession so that he was able to leave it at Ms Matewasa's is completely unknown, but if in the intervening period it had somehow been discovered to be in fact substitute rather than methamphetamine, it does not accord with common sense that he would have taken it to his aunt's to be left in her custody rather than what might be inferred as the common-sense approach of simply immediately abandoning it at any convenient location to ensure that there was no evidence that might tie him or others to the importation.
The offender, in his interview, was entirely silent as to then having at his aunt's premises approximately 20 kilos of the substance. Whether it was part of his benefit for participation as a result of some prior agreement, or whether he had it in his possession for the purpose of transmitting it to others for reward or as directed is entirely unknown, but it does indicate that the offender's role was not simply terminated on the removal of the substance from the container and his departure. He clearly had on-going contact resulting in approximately 20 kilograms of substitute being found at his aunt's.
In those circumstances it is clear that he cannot be regarded as some simple unpacker.
Also of note in relation to the activities carried out by the offender, it included adopting the false identity and holding the Papua New Guinean passport in the false identity of "Peter Bokadisu" as well as his active role in taking delivery and arranging for premises for the deliveries. He was involved in the offending over a period of time admitted in his interview, commencing in about October/November 2016 and continuing through to the time of his arrest.
I find that he played an important role in the mechanics of the receipt in Sydney of both the test container and the second container, using a false name and a contact number registered to his aunt.
I find the actions of the offender were pre-meditated and planned.
He recruited his friend, Alageto, to assist him with the unpacking and later paid him $500.
I note that there is no evidence before me or in the trial that Mr Alageto was aware of the contents of the container and indeed the video footage shown at trial demonstrated that while the floor was being lifted, the substitute removed and placed into the luggage bags, Mr Alageto was in fact never in the container and did not return to the container until such time as he was tasked to take the three bags and put them in the rear of the motor vehicle.
The offender was clearly involved in the logistical and organisational aspects of the receipt of the containers, and not merely an unpacker or courier. He had a trusted role and was involved at the crucial time of lifting the floor boards and obtaining the 69 bags of substitute.
I am of the view that there is no substantial distinction between the seriousness of the role played by this offender and the seriousness of the roles played by the co-offenders, Mr Kwan and Mr Chan, although no doubt there are distinctions in respect of the acts performed by each.
It was said in R v Muanchukingkan [1990] 52 A Crim R 354 at [356]; R v Laurentiu [1992] 63 A Crim R 402, that even if an offender has performed only a menial or limited role or may have been subordinate to others involved in the offence, that does not necessarily reduce the objective gravity of the offending or entitle an offender to any degree of leniency, particularly where their role was crucial to the success of the criminal enterprise.
Superior courts have repeatedly stated that illicit drug organisations are only able to prosper because people are ready, willing and able to undertake these types of roles. It is a well-established sentencing principle that persons who participate in the illicit drug trade at any level should expect and receive heavy penalties. R v Budiman [1998] 102 A Crim R 411, citing with approval the observations of Wells CJ in Le Cerf [1975] 13 SASR 237 at 239. The Crown in written submissions said as follows:
"This is however a case in which the full extent of the enterprise is not known to the Court. There are some aspects of the evidence which suggests the offender falls slightly below Chan and Kwan in the structure of the group involved in the possession of the substituted bags."
I accept, despite what I have said earlier, that there is some possible distinction between this offender and the co-offenders, although in my view that is largely answered by the fact of the 20 kilograms located at his aunt's.
The amount of the drug is of course not the factor of most relevance in relation to the determination of sentence, as referred to in Wong v The Queen; Leung v The Queen [2001] 270 CLR 584. However it remains a relevant factor to which the Court must have regard in determining the seriousness of the offence.
As I have said, there is no evidence that the offender was aware of the quantity, although he was aware of the nature of the drug, but as he was aware it was coming in in a container and that the process was being tested by importing a test container, I am of the view that he must have been of the opinion that it was a substantial quantity that would be coming in, in order to justify such expense, including I note, what I regard as being a dummy cargo of no particular value but designed to fill the container in such a way that if it was opened by customs they could immediately look in and realise that there could be nothing in the steel frames because they were angle iron and not pipe or tube. Indeed, considering the nature of the frames and the large spaces, they being essentially the equivalent of a line drawing of a three-dimensional object with no side panels, a customs officer would have been able to look from the doors to the far end of the container without too much difficulty and without having to remove any of the steel frames. Nonetheless, they must have cost something to produce and of course there were the costs of sending the two containers themselves, as relevant to the offender's appreciation of the quantity that might be being imported, even in the absence of any specific information.
The offender, in his record of interview, referred to being promised certain sums of money, being $15,000 in respect of the first container and a further $15,000 in respect of the second container, giving a total of $30,000. He also referred to only receiving in effect approximately $3,000, of which he gave $500 to Alageto for his assistance.
The offender, in his record of interview, accepted that he had a financial motive for participating because of his then current financial circumstances.
It is of course impossible for the Crown to establish whether his assertions as to his expected benefit were truthful, and I note, as previously referred to, he was prepared to make false statements about his friend, Mr Alageto, as to who he was, and I have no doubt that to some degree the offender sought to diminish his responsibility.
As to subjective matters, I note the following materials before the Court. The offender's criminal history in New South Wales indicates a number of matters in 2016 of stalk, intimidate, destroy or damage property and a further offence of destroy or damage property, being domestic violence related, in relation to which he received fines.
I do not regard his criminal history as having any significant relevance in relation to the sentencing procedure in respect of these matters.
There is no evidence of him having any criminal history anywhere else, and in those circumstances I will accept that he has no history of criminal offending even in his native country, Fiji.
The offender has written a letter to the Court, which is Exhibit V3. Letters to the Court cannot be the subject of cross-examination, and the Court must treat with some circumspection letters indicating that offenders have taken responsibility and understand the seriousness of their offending, and/or expressing remorse and contrition.
In addition to his letter, there is a report from Anita Duffy, psychologist, of Duffy Robilliard Psychologists, dated 29 January 2019.
In this matter, despite having made relevant admissions in relation to his own role and knowledge when arrested, the offender did not enter a plea of guilty until the first day of the scheduled trial.
Ms Duffy in her report states, "He expressed shame and remorse over his actions and their repercussions on his fiancé and sons as well as the family in Fiji." She does not explain in her report how he expressed shame and remorse, although I accept that she is an experienced psychologist who would well understand those concepts, and despite my reservations about his letter to the Court and evidence of remorse and contrition in the absence of evidence tested by cross-examination, I am prepared to accept, despite the belated plea, that there is genuine evidence of remorse and contrition.
There is also before the Court a certificate of completion, the offender having graduated from a course titled, "The Prisoner's Journey" which is a programme of prison fellowship. In addition, the offender obtained a credit certificate having completed a course titled, "The Bible. What's In It For You?" on 12 February 2018 and a certificate of recognition from having participated in a course entitled, "Secrets of Prophecy", dated 14 March 2018, and a TAFE transcript of academic record indicating that while in custody, apart from the courses I have just referred to, he has completed courses in "Perform Routine Gas Tungsten Arc Welding", "Perform Routine Gas Metal Arc Welding", "Use Hand Tools'," Use Power Tools/Hand-held Operations", being found to be competent in each of those, as well as courses of "Shift Material Safely Using Manual Handling Methods" and "Following Work, Health and Safety Procedures", the certificate of attainment being dated 22 July 2018, and a further TAFE certificate dated 30 June 2018 in relation to participating in "Workplace Health and Safety". There is also a certificate of appreciation from Corrective Services New South Wales, certifying that he has successfully participated in the 2017 NAIDOC Dance and Celebrations, dated 28 July 2017 and a remand addictions letter of attendance indicating that while in remand he has attended courses related to urges and cravings, problem solving and balanced living and a final TAFE certificate, dated 21 January 2019, in relation to courses entitled "Identify Measure and Estimate Familiar Quantities for Work", "Participate in Simple Spoken Interactions at Work", "Write Simply", "Workplace Information." Those, as I understand it, are individual courses as part of the attainment of foundation skills for writing and numeracy.
I just interrupt myself for a moment. I have had to deal with the two co-offenders today and I've been dealing with trials and other sentence matters during the course of the week. I cannot for the moment find in my file the Sentence Assessment Report. I'm sure there is one.
GAITANIS: There is one.
HIS HONOUR: Because I have read it.
GAITANIS: Samuel Gordon, 17 April.
HIS HONOUR: Thank you. It somehow has probably managed to slip into one of the files for the co-offenders.
In addition to that material, there is a Sentencing Assessment Report which refers to the offender as being in a domestic relationship with the mother of his two children. He has been in a relationship with her for four years and she is said to remain supportive. He was previously, prior to the offending, employed in the civil construction industry as a plan reader. He indicated to the assessment officer that he was remorseful of his involvement and that he does not condone drug use in any way. I have already indicated that I accept that he is remorseful and contrite. I have, however, some difficulty with the statement contained in the report under "Attitudes". That report, if I didn't say, was under the hand of Samuel Gordon, dated 17 April 2019. Under "Attitudes" is stated,
"Mr Vakatalesau stated when he commenced working for his co-offender he was naïve to the fact drugs were involved and continued to think his employment was based on his previous civil construction skills. However, when he was made aware of his co-offenders' involvement in drug importation he felt that he was 'in too deep' and 'couldn't get out'."
I also that note under "Social Influences" it refers to him as having claimed that he was introduced to his co-offender, presumably Mr Chan, by a family member. This is the person that no doubt identified in the record of interview only as "Bill", whose surname he did not know.
He was at least honest in relation to financial benefit,
"Mr Vakatalesau stated the reason behind his involvement in the current offences was purely for financial benefit. He further stated he was offered more money to work for his co-offender and was tempted by the opportunity to earn more than his weekly wage in the civil construction industry."
As I have previously referred to, the record of interview indicates that he commenced his participation with his eyes wide open, particularly in the case where he informed the interviewers that Mr Chan had contacted him for the purpose of selling drugs.
The offender is now 24 years of age. He was, however, at the time of the offending, 22 years of age. There is a significant difference in my view between the age of this offender and the co-offenders. It has long been recognised that males retain a certain degree of immaturity and make poor decisions at least into their early twenties.
The psychologist's report indicates that he had learning and literacy problems in his early education which were partly overcome when he undertook vocational training courses. He was apparently subjected to harsh physical discipline during his childhood, particularly from his stepfather, although that is described as having been customary in the Fijian culture.
He was born in Suva. His parent separated prior to his birth and he saw his father infrequently, only about once or twice a year.
He grew up with his mother and stepfather, whom she had married when he was a baby. He is the youngest of four siblings from his parents' union. His eldest brother is 36 and a chef in Suva. His sister is a member of the British Army in the United Kingdom and his younger sister is a club manager in Suva.
His mother and stepfather have subsequently had eight more children ranging in age from 21 to two years.
His father also remarried and there are four children from his father's fresh union.
In his early life, his mother and stepfather were often fighting, and he grew up in relative poverty as they struggled to make ends meet.
He was dealt with strictly by his stepfather, and left primary school at age 11, and was sent to live with his grandmother in the mountains near Suva, where he remained with her for three years until her death. She was a very religious woman who taught him to read through the Bible.
Although his education was truncated by his extended stay with his grandmother, he returned to Suva after her death and resumed high school. He studied for two years and left at the age of 16, and in his last year included attendance at TAFE. As a result he was accepted into the Fiji National University where he studied a four-year course in heavy mobile engineering and obtained a trade certificate in that field.
At the age of 18, he came to Australia to play for the Box Hill AFL team in Melbourne. He remained there for a year before travelling to Sydney to play with the under 20s Parramatta Rugby League and he then played one season with the Newtown Jets and West Harbour Concord. He had tried to obtain employment in his trade in Australia, but was unable to afford the TAFE course to gain the necessary accreditation. In 2015 he found a job in the construction industry with British Concrete as a steel fixer. He had been promoted to leading hand in the construction of large contracts with gaols and the railways. It is said in the report that he worked there until his arrest in February 2017 but that appears to be somewhat inconsistent with the content of his record of interview, which appears to indicate that he had at least ceased work because of the offer made to him by his co-offender, Mr Chan. However, it is unnecessary to resolve that issue.
While in custody, he has worked in the metal shop and done welding courses, as I have previously referred to. He has apparently also worked as a sweeper in the chapel and has regular contact with the chaplain, who provides spiritual support.
Prior to his arrest, he said he had been worried by his finances, as everything was more expensive in Australia and he had been sending money back to his family in Fiji as they were struggling, and particularly as a result of his father having sustained injuries which prevented him from working and of because there was a large family.
Although he reported drinking alcohol from around 11 or 12 years of age, and before he left to live with his grandmother, after the age of 15 when he returned home and was apparently baptised, he ceased alcohol consumption except for a very occasional beer. He denied having tried illicit drugs.
He reported being fond of his siblings and his parents, despite having little contact since his arrest for obvious geographic reasons. They are apparently aware that he is in custody, but he last spoke to his mother in 2018 and has been unable to phone them. He believes that this is a result of them possibly having moved.
He met his partner, Milika, in 2014, and they have two sons born in 2016 and 2017. They have been living with her parents in Liverpool. She remains supportive of him and visits him with the children every few months and they talk on the phone every two days or so.
The psychologist's report suggests he met Mr Chan not through a relative, but his brother's friend from Fiji. He also informed the psychologist to the effect that he had been employed to unload containers and had trusted Chan, but became suspicious when he was asked to lease the warehouse in a false name, and that he did not want to go through with the delivery which was addressed to him, but felt that he could not back out of it as he was afraid that Chan or his associates could harm his family, and further that,
"He was aware that the consignment had something in it, and he suspected drugs. He could not stop the process and said that he regrets his role in the offence. He had been too trusting. When he did get suspicious he was already in too deep."
I have already commented on the inconsistency of those claims with the content of the record of interview.
His intelligence was assessed. He had a verbal score in the below average range and a non-verbal score in the sound average range. He was assessed by Ms Duffy in terms of re-offending as being in the low to moderate range. He was assessed by a Mr Gordon, the Community Corrections Officer, as being in the medium to low risk of re-offending according to the Level of Service Inventory - Revised.
I accept in the circumstances of the matters that I have previously referred to, in particular his relatively insignificant prior criminal history and his age, those assessments. He is said to suffer from mild levels of depression and anxiety and normal stress, although currently being above the norm but related to his current circumstances of being in custody. There is in my view nothing unusual about a prisoner, awaiting sentence for a significant offence, feeling depressed and anxious.
I accept in relation to this offender that there is a reasonable prospect of rehabilitation.
I accept that despite the belated nature of the plea on the first day of trial that he is entitled to a discount for the utility of the plea, and also as the plea facilitated the course of justice. Such a discount, however, in the circumstances of the belated plea, cannot be substantial.
It is perhaps tragic in relation to this offender that having initially made significant admissions in relation to his own conduct, even if in my assessment not completely frank, that he failed to enter a plea of guilty at the earliest stage and indeed further failed to offer real assistance to the prosecution. Such assistance may have resulted in the co-offenders not defending at trial, but whether he would have been required to give evidence in a trial or not, the offer of assistance combined with an early plea and the facilitation of justice would have resulted in a substantial discount on sentence, which is unfortunately not now available to him. I will however discount the sentence to be provided, taking into account all of the matters I have referred to, but also the utility of the plea, the facilitation of the course of justice and also the fact that at the time of the offending he was 22 years of age, that is, significantly younger than his co-offenders.
I accept that there is bound to be some hardship to his partner and children in the circumstances, particularly having regard to their age and the fact that it would appear that he was their sole or at least significant, support. In relation to hardship to his immediate family and children there is however nothing extraordinary about that hardship and it is a matter that the offender should have taken into account before he embarked on such a serious offence. I have, however, had regard to it.
I also accept that as his family otherwise appears to be resident in Fiji, that it is unlikely that he will receive a great deal of support by their attendance in Australia to see him.
On the material before me, I do not accept that there is such evidence as would warrant taking into account the principles referred to in Bugmy v The Queen [2013] HCA 37 and R v Fernando (1992) 76 A Crim R 58
There appears to be no causative reason for the offender's participation in this offence other than his financial circumstances and his admitted desire to be rewarded for participation.
In view of what I regard as his being not entirely frank in the information provided to Ms Duffy, I do not accept that a major or significant factor contributing to his offending behaviour was his tendency to be susceptible to peer pressure. I note that that was not a factor that he raised at any time during the record of interview.
Of significance in relation to offences of this nature are both specific and general deterrence.
In view of the offender's lack of previous offending and my finding as to the low to medium risk of re-offending and the reasonable prospect of rehabilitation, I am of the view that the need for specific deterrence is significantly reduced. However, general deterrence must always remain a significant factor for the Court to take it into account in relation to offences of this nature, which, where successful, have serious adverse impacts on the community in the ways that I have previously referred to.
I must also take into account the sentences that I have imposed earlier this morning in relation to the co-offenders, Mr Kwan and Mr Chan, noting that I imposed in each case a sentence of 23 years imprisonment with a non-parole period of 15 years. There is a relevant issue of parity in relation to this offender and his co-offenders.
The Crown has submitted that, in effect, the offence committed by this offender, in the circumstances, is just as objectively serious as that committed by his co-offenders. There is merit in that submission. Although the acts were different, it was in my view a very important role played by the offender. However, I am of the view that some distinction can be made because of the matters that I have already referred to. That is, the discount for the belated plea, remorse and contrition, the reasonable prospect of rehabilitation, the low to medium risk of re-offending and his age at the time of offending of 22.
Having taken all of those matters into account, I have determined the sentence.
Mr Vakatalesau, would you please stand.
You are convicted in relation to the offence of attempting to possess a commercial quantity of a border controlled drug, methamphetamine, in the quantity of 81.4 kilograms pure contrary to s 307.5(1) of the Criminal Code.
You are sentenced to a term of imprisonment of 18 years with a non-parole period of 12 years.
The sentence commences on the date you were arrested, 24 February 2017, and I order that you be released on parole at the conclusion of the non-parole period, which is 23 February 2029.
The balance of term is six years and the total sentence will expire on23 February 2035.
You have now spent a considerable period of time in custody, and it is highly unlikely that you are not aware that if, when released on parole, you breach the terms of your parole, you will be returned to prison. I implore you, Mr Vakatalesau, to make sure that when released on parole, you do not commit any further offences.
I regret having to deprive your children and your partner of the support that you might have been able to provide them if at liberty in the community. Unfortunately, offending of this nature is extremely serious, and the role you played was a significant and important one in relation to the commission of the offence, and as I have said, you failed to do anything in your own interest after having made admissions by way of not entering a plea of guilty until the first day of trial and not offering to assist the prosecution.
Please sit down.
Is there any matter that I've omitted? There probably is because I've had difficulty trying to keep these matters isolated, that is, the matters this morning and this afternoon.
GAITANIS: I could see that your Honour has dealt with many of the issues raised by the Crown and myself in written submissions and orally; however, did your Honour nominate the extent of the discount?
HIS HONOUR: I did not nominate the extent of the discount because it's not required in respect of Commonwealth matters.
GAITANIS: Thank you, your Honour.
HIS HONOUR: I know that the case law, that is, from the Court of Criminal Appeal, has suggested that for transparency it would be appropriate to do so, but it is not required.
GAITANIS: No, thank you, your Honour. I was just double checking.
HIS HONOUR: But I have, as I said, given him a discount. Anything,
Madam Crown?
SEWEL: No your Honour.
[Addendum: Discount in the order of 10%]
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Decision last updated: 17 September 2019