R v Vescio

Category: Sentence

Parties: Rex;
Daniel Vescio

Representation: Counsel:
Defence: S Buchen SC; E Sullivan
Solicitors:
Crown: M Dodson
Defence: A Sant

File Number(s): 2023/94183

JUDGMENT

1. On 16 August 2024 I sentenced Mohamad Naboulsi and Shadi Jamal for their involvement in an offence of attempting to possess an unlawfully imported border-controlled drug, namely a commercial quantity of methamphetamine. On 11 December 2024 I sentenced Aaron Waters for an offence of aiding and attempt to possess an unlawfully imported border-controlled drug, namely a commercial quantity of methamphetamine. All three offenders were complicit on only 22 March 2023.

2. This offender was involved in the shared offending. The facts only detail his involvement on 22 March 2023.

3. The offender has pleaded guilty to one count of attempt to possess a commercial quantity of an unlawfully imported border-controlled drug pursuant to ss 11.1(1) and 307.5(1) of the Criminal Code 1995 (Cth). The maximum penalty for the offence is imprisonment for life and/or 7500 penalty units.

4. The general sentencing principles that I must apply are contained in Part 1B of the Crimes Act, 1914 (Cth). In determining the sentence to be passed, I must impose a sentence that is of a severity appropriate in all the circumstances of the offence: s16A(1). I must also take into account the matters listed in s16A(2).

5. The nature and circumstances of the offence are set out in the agreed facts. I propose to refer to the facts in summary although the full document has been considered.

6. An industrial magnet weighing over 600kg was shipped from Mexico on 24 December 2022. ABF officers examined the magnet in mid-March 2023 and located the amphetamines. The drug involved was methamphetamine. The total weight was over 59kg with a purity of 80.3%. The pure amount at about 48kg is well above the 750g threshold for commercial quantity. I do not give undue significance to the weight. After replacing the drugs with an inert substance, the drugs were transported as intended by the import consignment documentation.

7. The facts summarise the involvement of each as:

[2] Over the course of that day, Jamal and Naboulsi were captured by audio and visual surveillance accepting delivery of the consignment before loading it onto the back of a truck and transporting it to industrial premises in Ingleside. Vescio was captured on audio and visual surveillance driving a white Volkswagen hatch in proximity to the truck transporting the consignment. Waters was also captured on visual surveillance driving a different vehicle in proximity to the truck.

8. Jamal and Naboulsi rented the truck in the morning. From about 10am, and for about 40 minutes, the offender used the encrypted application ‘Signal’ to provide direction to Jamal. The offender represented he had a surveillance team assisting. At about 10.35 am the offender parked near where the delivery to Jamal and Naboulsi was to occur. He exchanged further messages containing instruction to Jamal. The offender indicated he was assisted by drones. The delivery occurred about 10.50am. Thereafter the offender sent further messages to Jamal including requesting photographs. The offender directed them to attend Chatswood and advised they would need a knife to cut the plastic and further repeated that there was surveillance. Photographs were provided. Jamal and Naboulsi unsuccessfully attempted to access the packages with an angle grinder. The offender then directed them to attend Ingleside. The offender drove behind the truck. The offender sent a message that he sent a boy to obtain bowls and scales. In fact, the offender attended a supermarket and made the purchase. This of itself did not expose him to risk as the attendance and purchases were innocuous. Waters was involved in following the truck. Shortly after midday the truck and two cars with the offender and Waters arrived at the offender’s grandfather’s industrial property. All four offenders were present for about 15 minutes while attempts were made to access the packages with the angle grinder. At about 12.16pm the police attended and arrested all four offenders. Police located two phones on the offender and a further two phones in his car. One phone was associated with the consignee details.

9. The offender drove a car registered in his partner’s name and ultimately directed the truck and the drugs to his grandfather’s property. This reflects a lack of conduct to distance himself but is also consistent with his having maintained a distance from the truck and only approaching after observations had been made of the truck as it travelled some distance.

10. The offender requested photos at various times. It is submitted on behalf of the offender this denotes he did so for others. It is just as likely it was for his own benefit. I cannot determine this either way. However, given my acceptance others were involved I do not consider this is a matter of any real significance.

11. The facts include statements that there was no evidence of a number of issues including any offender related surveillance.

12. The value of the drugs is not precisely known but it is accepted to entail a not insignificant value. The offender was involved for a financial benefit being the repayment of a $40,000 drug debt. There is no evidence he was to be involved in a share of the value of the drugs.

13. The offender was evidently involved prior to his first communication in the morning. He was ready to proceed and to interact with those involved in taking delivery. When he became involved is not known. His active involvement on the day extends over 2 hours. He provided directions and he was privy to the locations to direct others. The facts for this offender do not disclose any interaction with Waters, and only disclose an awareness he was present nearby. Some of his representations denoting sophistication, such as surveillance and drones is not confirmed by evidence. Given that this was involvement in a commercial quantity of an illegal drug, it is implied that the offender was involved for some financial gain.

14. In addition to the agreed facts, the offender sought to advance further information informing his involvement. The offender wrote a letter to the Court. Therein he said he was involved as he was addicted to drugs, he had a drug debt and no ability to purchase drugs. His drug use would not lessen his criminality. That he was involved out of need rather than greed is pertinent.

15. Further, the offender provided an explanation for the offending to the psychologist. He reiterated the financial need for involvement and the need to support his drug use. However, he also added that during the offence he was taking verbatim instructions from those higher up the supply chain. This assertion only appears in the hearsay account to the psychologist. The offender also told his mother this location was chosen after he was directed to change the location. The offender did not directly provide this account or give sworn evidence. On behalf of the offender, I was invited to accept matters additional to the agreed facts: Defence written submissions (“DWS”) at [8]. Absent direct evidence I am disinclined to accept it. The fact he introduced his grandfather’s site as a location reflects he was adapting and using his own initiative. It demonstrates a lack of sophistication in choosing to connect him with the chosen property. That does not mean that I am of the view he was electing to make the change. I do however determine there were others who were likely involved in the attempt to possess the drugs and others who would have performed other important roles.

16. I appreciate these drugs were not disseminated into the community.

17. The offender’s role and knowledge are to be determined based upon what he did and when he did it. I am assisted by the Crown’s nomination at Crown written submissions (“CWS”) [16] of the acts performed as including:

18. Physical supervision of the collection and transportation of the Consignment by Jamal and Naboulsi, by driving the white Volkswagen at close proximity to the Pantech truck.

19. Communicating with Jamal and Naboulsi via encrypted messaging application, to provide live updates with respect to the status of the Consignment and specific directions, including:

20. (a) Where the Pantech truck should be driven to, and how it should be driven, to collect and transport the Consignment.

21. (b) How to identify the delivery truck and what to tell the delivery driver.

22. (c) Instructing Jamal and Naboulsi to ask the delivery driver to forklift the Consignment directly into the Pantech truck.

23. (d) To take photographs of the Consignment.

24. (e) To remove the plastic from the Consignment.

25. Providing ongoing assurance to Jamal and Naboulsi that the operation was secure, through the use of countersurveillance (there is no evidence that the countersurveillance measures described by Vescio existed).

26. Purchasing electronic scales, a metal bowl and plastic resealable bags from Woolworths Forest Way.

27. Providing the premises at 3 Chiltern Road, Ingleside, for the Consignment to be unpacked.

28. Participating in the deconstruction of the Consignment, involving use of an angle grinder, for approximately 15 minutes.

29. Possession of the mobile phone operating the telephone number associated with the consignee details for the Consignment.

30. It is contended on behalf of the offender that it is not established beyond reasonable doubt that the offender was other than reckless, that there is no evidence the offender knew the substances were a border-controlled drug, or that he knew the type, quantity or purity of the drug. The offender was involved in drug use and became involved to reduce his drug debt. I am satisfied he knew he was involved in illicit drugs of sufficient quantity to require persons performing different roles and requiring a truck for transportation. The freezer bags purchased with the scales by the offender reflect an expectation that what was to be retrieved required multiple bags. Those bags were large sized.

31. Having regard to the offender’s conduct and his knowledge, the duration of involvement, the type, quantity and purity of the drug I consider the offence and more significantly his role in it to be assessed as of not insignificant seriousness.

32. Also located in the car was a bottle containing 11.48g of 1,4 butanediol. This is a prohibited drug. The offender was charged with an offence of possession of a prohibited drug contrary to s.10(1) Drug Misuse and Trafficking Act 1985 (NSW). The quantity is relatively low and sits just below the traffickable quantity. The maximum penalty is 2 years imprisonment. The offender has pleaded guilty, and the matter is before the court for sentence on a s.166 certificate. The offender is entitled to the full benefit for his plea. This offence aligns with the evidence of the offender’s drug use. I am guided by State sentencing principles. There is an overlap in considerations that apply to Commonwealth sentences. Findings made on sentencing principles when considering the principal offence are largely shared with the State offence, and don’t require addition or repetition when addressing the State offence.

33. The offender entered a plea of guilty to the principal offence in the Local Court. The plea was entered 21 months after charging. This is a very lengthy period. However, as the plea was entered in the Local Court the plea is to be regarded as an early plea with a utilitarian benefit. The circumstances allow for the plea to be recognised by a reduction in the sentence of 25%. The same reduction will be extended for the lesser offence. The pleas were entered in the face of what may be regarded as a strong Crown case. Nonetheless, I determine the pleas reflects a willingness to facilitate the course of justice and more than a recognition of the inevitable.

34. The offender has expressed remorse in his letter to the court. There are additional hearsay accounts reflecting remorse. I am satisfied that the offender is remorseful and accepting of responsibility.

35. The offender is now aged 27. He was 25 at the time of offending. Rehabilitation assumes somewhat greater significance given his age although he is on the cusp of this not having continuing application.

36. The offender has limited criminal antecedents commencing in 2016. He has received various sentencing outcomes including the community-based orders. The offence categories include drugs and violence. I observe on 2 February 2022 he received a community corrections order for a drug driving offence. This order was current at the time of this offending and therefore the offender was in breach of this order. A breach of such an order entails a breach of trust reposed in an offender. His criminal history does not entitle him to leniency. His sole institutional misconduct offence is for drug possession in October 2023.

37. The offender is supported by his letter, a report by Patrick Sheehan, psychologist, and evidence of support from various family members, friends and a work colleague.

38. From these various sources it is evident that the offender was fortunate to reach maturity in a loving environment. He was still residing in the family home at the time of arrest. His partner and child were also residing in the family home. His parents have offered that he can return upon his release.

39. It is reported that he did not enjoy high school, that he experienced some bullying and teasing and he left to attend TAFE. That he was experiencing issues during his adolescent years is supported by his engagement at the time with a psychiatrist. A major depressive disorder was diagnosed. ADHD was also raised as a possible diagnosis but retrospectively that is queried given the non-disclosure of drug use which may have explained some observed symptoms. Mr Sheehan did not challenge the major depressive disorder diagnosis even though a number of the symptoms noted by the psychiatrist to support her opinion similarly seem to be informed by drug use. The offender now advances more drug use at that time, then admitted to as ‘dabbling’. The medical notes refer to continuing issues with depression.

40. He failed to complete his apprenticeship and although he obtained employment it was casual and not full-time.

41. The evidence supports he commenced illicit drug use and favoured this lifestyle over stable employment. This drug use commenced in his teens and continued until December 2024 when he accessed the appropriate dose of medicinal drug treatment. Mr Sheehan diagnosed a polysubstance use disorder based on the drug history provided. According to the psychologist’s report he commenced with drugs at 13 and over the years used different drugs. I note the offender told Justice Health he commenced at 16. The drug use is said to be linked to his major depressive disorder that was diagnosed at the age of 16. At 17 his use increased, he commenced using amphetamines and there was an impact to his employment. As time progressed it significantly impacted his health with various overdoses and hospitalisations. He tried rehabilitation programs without success. The psychologist reported none of those attempts were serious attempts by the offender. Ultimately his drug use connected him to organised crime groups. Whilst on remand he has undertaken programs to address his addiction. He was proactive in seeking engagement in programs. His family and partner remained supportive despite their awareness of his drug problem. The continued incarceration of the offender will impact those close to him, and they will be deprived of his participation in their lives in the community, but there is no hardship that necessitates amelioration.

42. I accept the link between his major depressive disorder and his initial drug abuse and that the drug abuse explains how he came to be in debt and to need to become involved in commercial drug activity. The material supports he was medicated for his depression. This history explains his progression to being a participant in a serious offence and I determine it warrants some lessening of his moral culpability.

43. I particularly note the importance of general deterrence and denunciation and the importance of reducing the level of access to illicit drugs due to the enormous damage inflicted by them upon society. The offender’s lived experience amply demonstrates the devastation drugs may inflict upon the addict, their family and the wider community.

44. I anticipate this arrest, and subsequent incarceration will serve a salutary lesson. I note the link between drug usage and this offending. Mr Sheehan referred to the encouraging step towards rehabilitation but cautioned the drug abstinence was recent and that it was too early to see if it would be sustained. He opined intensive rehabilitation program participation was required. Although he will have support in the community this support was available at the time of offending and not sufficient to prevent his offending. As is recognised by the offender it is only through drug abstinence that his situation will alter favourably. His desire to remain abstinent will require further professional work and personal commitment. Abstinence in custody differs to abstinence in the community. There are positive steps but the first of many. His risk of reoffending is uncertain. There is a continuing role for personal deterrence.

45. The offender told the psychologist that he had been bashed and stabbed whilst in custody. This is an entirely unacceptable outcome for a person who is entitled to expect adequate protection. I regard it as extra-curial punishment and will accord it some consideration in determining sentence. I accept the offender’s conditions in custody have been more onerous due to his addiction and his efforts to address it. Given his relatively recent success with drug replacement that has alleviated adverse impact.

46. I am required to consider the sentences imposed on the three co-offenders. I propose to consider those sentences to avoid creating any legitimate sense of grievance from differing outcomes. The offender, Jamal and Naboulsi were charged with an attempt in contrast to Waters being charged with aiding an attempt. The same maximum penalty is provided. The objective seriousness of this offender is greater than for any co-offender. Waters presented as performing the least significant role and operated at a lower level.

47. The subjective cases differ. Waters was older and had more serious antecedents including for drug supply. As with this offender, Waters breached conditional liberty by committing the offence. Waters breached parole for a similar offence. Jamal and Naboulsi were not subject to conditional liberty.

48. I have reviewed the comparable cases schedule. I have reviewed those cases being mindful of the limitations. These involve offending of different objective seriousness and different subjective cases. I have reviewed these cases for the assistance gained.

49. I am required to impose a sentence that reflects the seriousness of the offending measured against the guidance provided by the maximum penalty and allowing for the amelioration as appropriate for relevant subjective factors. I am guided also by sentencing authority on the application of principle and comparative cases.

50. The offender has been on remand since his arrest on 22 March 2023. Sentence will commence from this date.

51. The offender is convicted of both offences.

52. The sentence imposed on the State offence is a conditional release order for a period of 18 months. The conditions of the order are that the offender:

53. must not commit any offence;

54. must appear before the court if called on to do so at any time during the term of the order;

55. must abstain from illegal drugs;

56. must submit to supervision by Community Corrections; and

57. must participate in any rehabilitation program or receive treatment as directed by Community Corrections.

58. A copy of this order will be provided electronically by the court registry and explained by Corrective Services.

59. The sentence imposed on the Commonwealth offence is a term of 4 years and 6 months with a non-parole period of 2 years and 6 months to commence on 22 March 2023. Eligibility for release to parole arises on 21 September 2025 and the term will expire on 21 September 2027.

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