The Queen v Franze

2 At your trial the prosecution alleged that you committed the offences pursuant to a joint criminal enterprise between Anthony Sitar, Erol Ramazanoglu and yourself. At the time of the offences, you had known Ramazanoglu and Sitar for a number of years, and you were friends with both of them. In about 2008, Sitar and you had established the Destino Latin Bar in Chapel Street, Prahran. After opening that bar, Sitar and you obtained a wholesale merchant's licence in the name of AAMA Pacific Pty Ltd, a company of which Sitar and you were joint shareholders. That company owned premises at Westside Drive, Laverton North, where it stored supplies of alcohol for the purpose of its wholesale business, and also for use at the Destino Latin Bar.

3 For the purposes of your businesses, Sitar and you commenced to import consignments of beer and other alcohol from Mexico. In October 2011, AAMA Pacific imported a consignment of 672 boxes of Cucapa beer which was purchased in Mexico. That consignment arrived in Melbourne on the vessel Manet on 11 October. After its arrival, it was searched by members of the Australian Federal Police and by Customs officials. They found that most of the bottles in 34 of the cartons tested positive for the presence of methamphetamine, and that most of the bottles in twelve other cartons tested positive for the presence of cocaine. The Australian Federal Police removed the suspect bottles from the 46 cartons, and replaced them with identical bottles which contained inert substances. Those 46 boxes - which were referred to in the trial as the controlled delivery - were then replaced in the consignment. Listening devices were secreted in two of those boxes.

4 On 21 October, Sitar and you arranged with the Customs agent to have the consignment of Cucapa beer delivered to the premises of AAMA Pacific at Westside Drive on 24 October. For that purpose, on 24 October, you accompanied Sitar to the premises of the Customs agent, in order for Sitar to pay the duties which had been levied on the consignment. You both then drove to the Destino Bar. There, a fake email, in the name of the manager of that bar, was sent to the Westside Drive premises purporting to order three pallets of the imported beer. In fact, the manager was not present at the time. It was common ground at the trial that the email was a ruse, in order to provide an innocent explanation for the presence of such a large consignment of alcohol at the Westside Drive premises.

5 Sitar and you then drove to the Westside Drive premises, where you waited, during the day, for the delivery of the consignment. Ultimately, the delivery was made at 5.45 pm. Sitar and you assisted to unload the consignment at the Westside Drive premises, and then you departed for the day.

6 Early on the next day, 25 October, Sitar and you attended at the Westside Drive premises. There you loaded a van with the 46 boxes of the controlled delivery, together with some bottles of Corona beer. You and Sitar then drove the van to premises at Fairbairn Road, Sunshine. Those premises were leased by an employee of Sitar, who also operated a gymnasium in St Kilda. Sitar used the premises to store equipment for the gymnasium. Sitar and you unloaded the 46 boxes at the Fairbairn Road property. You then drove Sitar to some premises at Yarraville, where he met up with Ramazanoglu. You then drove from those premises to the Destino Bar.

7 It would seem that, at about that time, Ramazanoglu had made his way to the Fairbairn Road property, which was in fact under surveillance by members of the Australian Federal Police. After Ramazanoglu arrived there, he left, returned, and left again. There were then a series of telephone calls and text messages which passed between Sitar and Ramazanoglu. It is clear from those contacts, and from what occurred subsequently, that Ramazanoglu had become suspicious that the Fairbairn Road property was in fact under police surveillance.

8 In the early afternoon, Sitar attended at the Destino Bar, and from there you accompanied him in the van, in which you had transported the controlled delivery to the Fairbairn Road property. You drove the van to Toorak Road, South Yarra, where Sitar and you abandoned it. You both then took a taxi to a Quest apartment in Brighton. You remained at that apartment for the rest of the day, and the following night.

9 By the evening of 25 October, you had in your possession another telephone, which had been registered in a false name and under a false address. You used that telephone to communicate with Ramazanoglu on a number of occasions late in the evening, and in the early hours of the next morning. The text messages sent from that telephone concerned a visit to be made by Ramazanoglu to the Fairbairn Road premises in the early hours of the morning. In fact, Ramazanoglu attended at the Fairbairn Road property with another person, Eric Ferdusi, at about 2.20 am. There the two men loaded all but three of the cartons, which comprised the controlled delivery, into a vehicle. Ramazanoglu reported to you that he had completed the task allocated to him. He then transported the controlled delivery to his own home at Roberts Road, Yarraville.

10 At about 7.40 am on the same morning, you recommenced trying to contact Ramazanoglu. You sent him a number of text messages, in which you were particularly concerned that all was well. It seems that you had difficulty contacting Ramazanoglu. During the morning you had some telephone conversations with Ramazanoglu. The listening devices were only able to record Ramazanoglu's side of the conversations. However, it is clear from the conversations that he was expressing concern to you that the police were maintaining surveillance of his premises, and of your own home, which was nearby.

11 Your wife, Angela, was due to undergo a surgical procedure on her knee at the Box Hill Hospital on 26 October. Ramazanoglu drove Angela to the hospital, where you met them in the early afternoon. You and Ramazanoglu then compiled a list of matters which you and Ramazanoglu needed to attend to. The list, which was mainly in your handwriting, included an entry that Ramazanoglu was to get rid of the bottles. You then returned to the Quest apartment, and Ramazanoglu returned to Roberts Road. He was arrested there shortly after 6.00 pm on the same day by members of the Australian Federal Police, while attempting to tip the contents of the bottles, from the controlled delivery, down the drain. On the next day, you handed yourself in to the Australian Federal Police, and were duly arrested. You have been in custody since. Sitar fled the jurisdiction, and as yet the police have not been able to locate him.

12 A forensic examination of the bottles, which were seized from the consignment at the Australian Customs Facility, was then undertaken. The total net weight of the methamphetamine suspension was 300.9 kilograms; the weight of the pure methamphetamine derived from the suspension was 133.3 kilograms. The total net weight of the cocaine suspension was 79.6 kilograms; and the weight of the pure cocaine derived from that suspension was 14.1 kilograms. The methamphetamine and cocaine were contained within 1,061 bottles out of the 1,100 bottles which had been seized.

13 You gave evidence at your trial. You maintained that you did not know that the consignment of Cucapa beer, imported from Mexico, contained either of those substances. You gave evidence that, on 25 October, at the Westside Drive premises, you were involved in removing cartons of Coronas from their pallets, in order to return some pallets to a neighbour, which you had borrowed from him the previous evening. You then had to restack the Coronas. Thus, on your evidence Sitar had the opportunity to select the 46 cartons, which he believed contained the drugs that had been imported from Mexico. In your evidence, you stated that while you were working at the Destino Bar about 2.00 pm on 25 October, Sitar asked you to go with him to help him. You then both left in the van. You claimed that it was then that Sitar told you that the consignment had contained a quantity of cocaine, which he had imported in order to repay a gambling debt which he had incurred. Sitar told you that he had learnt that the consignment was under surveillance, and that he was in difficulty. He informed you that Ramazanoglu was involved in the importation of the drugs, and that his role would be to deliver them to the person to whom Sitar owed his gambling debt. In your evidence, you claimed that it was then that you made a decision to remain with Sitar and to assist him in his time of difficulty. You told the jury that you did so out of feelings of loyalty and sympathy towards Sitar. You also felt compromised, because you were a partner in the business, which had imported the consignment of beer that contained illegal drugs. It was those motives, you claimed, that led you to accompany Sitar to the Quest premises in Brighton, and to then have contact with Ramazanoglu concerning his attendance at the Fairbairn Road premises. You told the jury that it was your intention and understanding that when Ramazanoglu went to the Fairbairn Road premises in the early hours of 26 October, he would pour the drugs down the drain.

14 At your trial, I instructed the jury that in order to convict you, it must be satisfied, beyond reasonable doubt, that you were a party to a joint enterprise to possess each of the two substances contained in the consignment of Cucapa beer addressed to AAMA Pacific. The jury was also instructed that it must be satisfied, beyond reasonable doubt that, from the time of the inception of the enterprise, until the time at which the attempt to take possession of the two drugs occurred, you intended to possess the two substances in question. It is clear by its verdicts that the jury was satisfied, beyond reasonable doubt, of both of those two elements of the offences. Thus, it is clear that the jury rejected your account, and particularly your evidence that you first learnt that there were drugs in the consignment in the afternoon of 25 October.

15 The two offences, for which you have been convicted, are particularly serious. The maximum sentence for each offence is life imprisonment, reflecting the seriousness with which the law regards the type of activity in which you willingly engaged. The facts, which I have recited, demonstrate that this was a serious instance of the category of offences for which you have been convicted. The weight of the pure methamphetamine, involved in the first charge, was 177 times the amount prescribed as constituting a commercial quantity. The weight of the pure cocaine, which was the subject of the second charge, was seven times the amount prescribed for a commercial quantity of that drug. Some evidence was led on your trial as to the value of the cocaine, but no evidence was led as to the value of the methamphetamine. However, as a matter of common sense, it is clear that you were engaged in an enterprise which, if successful, would have resulted in extremely large profits for your co-offenders and yourself.

16 In addition, I am satisfied that you played a significant role in that enterprise. I accept that you did not organise the importation of the two prohibited substances. Rather, on the evidence, it is clear that Sitar was responsible for organising the importation of those substances to Australia. I am also prepared to infer that Sitar was the moving force behind the joint criminal enterprise which involved your attempt to possess the two substances. Nevertheless, as I stated, it is clear that you played an important, and substantial, role in the enterprise. You were involved in receiving the consignment of alcohol which contained the drugs at the warehouse premises in Westside Drive, unloading them, then moving the cartons which you believed contained the drugs to the premises at Fairbairn Road. Thereafter, when Sitar and you were alerted to the fact that your enterprise was the subject of police surveillance, you played a central role in directing Ramazanoglu as to the disposal of the substances. Thus, I am satisfied, on the evidence, that you played a substantial and important role in the enterprise, although I do accept that that role was, to some extent, less significant than that of Sitar.

17 There was no evidence that you knew the precise quantities of the two drugs which were the subject of the enterprise. However, on your plea, your counsel, Mr M Tovey QC, who appeared with Ms C Boston, realistically conceded that you knew that the consignment of beer contained a significant quantity of the two substances. The evidence as to your conduct, both in receiving the consignment, and, later, in endeavouring to have Ramazanoglu dispose of it, make it clear, beyond reasonable doubt, that you well knew that this was an enterprise involving a substantial quantity of the two illegal substances.

18 Further, there is no evidence that you became involved in, and participated in, the enterprise, out of any financial or other need. On the contrary, you were then involved in at least two successful businesses, and you owned your own home. No reason was proffered on your plea as to why you might have become involved in the enterprise. The inevitable inference is that you succumbed to the lure of the potentially enormous profits, which might be derived from dealing with the substantial amounts of the substances that were involved in the enterprise.

19 As I stated, the offences for which you have been convicted are particularly serious. The devastating effects of illegal drugs on our society are well known. Those persons, such as yourself, who engage in this type of offending, are well aware of the highly destructive effects of drugs, particularly on our young and vulnerable citizens. In your case, as in so many cases, the motivation for the offending was greed. The offending itself, in your case, involved premeditation and planning. You clearly knew that what you were doing was wrong. Like so many others who offend in the same way, you chose to take the risk of detection, because you had calculated that the opportunity for profit made that risk worthwhile.

20 For those reasons, it is recognised that the principle of general deterrence must assume particular significance in a case such as this. To put it bluntly, those who contemplate becoming involved in this type of offending must be made aware that, if they do so, and if they are detected, they will face long terms of imprisonment. It is only in that way that the law can, hopefully, alter the calculus which otherwise motivates persons, such as yourself, to become involved in this type of enterprise.

21 It is often the case that those persons, such as yourself, who become involved in this type of offending, come from good families, and are otherwise law abiding citizens. In your case, that is so. You are 32 years of age, having been born in September 1980. You have two minor previous convictions in 1999 and 2002, neither of which are relevant for the purposes of sentencing you. Rather, I am prepared to accept that you come before this Court as a person of otherwise good character.

22 You come from a good family. Your father established, and still conducts, a cabinet making business in Yarraville. Your three brothers are gainfully employed in that business. They each have their own families, and none of them have been in trouble with the law.

23 You were educated to Year 11 level, and you left school at the age of 16. You then commenced an apprenticeship as a cabinet maker in your father's business. You successfully completed that apprenticeship, and remained working in the family business until you were 25 years of age.

24 Throughout your working life, you have demonstrated a great degree of industry and initiative. You purchased your first house during the third year of your apprenticeship. Four years later, you purchased a second house. You became engaged in purchasing and renovating properties for resale. At the age of 25 years, you decided to branch out on your own as a full time builder. That business was apparently successful. Indeed, some of the telephone intercepts in the present case contain references to your ongoing involvement in that business.

25 At the same time, at about the age of 26 years, you become involved in the purchase of a nightclub business in Shepparton in partnership with a friend, Mr Vincent Tassone. In the following years, Mr Tassone and yourself purchased the building in which the business was conducted, together with the property next door. In 2010, you converted the two properties into a student accommodation business, which you still own.

26 In the meantime, you had met, and become friends with, Anthony Sitar and his wife. In about 2008, Sitar suggested establishing a Latin bar in Chapel Street, Prahran. As a result, you and Sitar acquired the premises in Chapel Street, and then established the business, which became known as the Destino Latin Bar, and to which I have already referred. You borrowed $50,000 to fund your interest in the business. As I have already noted, at the same time, Sitar and you became involved in the wholesale liquor business which you conducted from the premises at Westside Drive, Laverton North.

27 Pausing there, it is clear that throughout your adult life you have displayed the commendable qualities of industry, initiative and enterprise. You clearly have the ability to be a law abiding and worthwhile member of our community. Your history and background satisfy me that your prospects for rehabilitation are good.

28 You married your wife Angela in 2005. You have been in a relationship with her for approximately 12 years. For a number of years, your wife has suffered from anxiety, depression and severe panic attacks. On your plea, I received a report from her medical practitioner. It is clear that, notwithstanding her ongoing treatment regime, your wife has continued to suffer significantly from those conditions. Her condition has been exacerbated by your arrest, and then subsequently by the outcome of your trial. Your wife has been unable to work for some time, and she is financially dependent on you.

29 On your plea I also received a report of Mr Patrick Newton, a clinical and forensic psychologist. Mr Newton states that you are suffering from significant symptoms of anxiety arising out of your concern for your wife's wellbeing, and arising out of your concern that you will not be able to assist her and care for her.

30 It was accepted on your plea that your wife's unfortunate circumstances do not constitute exceptional circumstances, which, of themselves, would otherwise mitigate the sentence which is to be imposed upon you. However, I am satisfied that you do suffer, and will continue to suffer, significantly from your concern and anxiety about your wife's wellbeing. I have no doubt that during your term of imprisonment, the knowledge that your wife is suffering, that she needs your help, and that you are unable to assist her, will weigh heavily upon you.

31 In addition, for some time you and your wife have been endeavouring to start a family of your own. Your wife had become pregnant on two previous occasions, but, unfortunately, on each occasion she miscarried. I was told on your plea that she would need to have access to IVF treatment in order to enable you to have children. Unfortunately, the term of imprisonment, which I must impose upon you, will compromise your wife's ability to access that treatment, and may have the effect that she and you will be unable to have a family. It is understandable that that would be a cause of grief to you. In addition, I have no doubt that your concern for your wife will be magnified by the knowledge that, because of your imprisonment, she may not be able to access the IVF program in time for her to successfully have children.

32 Thus, in your case I am satisfied that there are a number of mitigating circumstances. Those circumstances consist, firstly, of the matters relating to your background and antecedents. As I stated, you are a person who has proven to be industrious and enterprising. Secondly, I take into account the fact that, apart from the two minor blemishes (which are not relevant), you otherwise do not have any previous convictions. Thirdly, I take into account, in mitigation, that a term of imprisonment will bear heavily on you, because of your wife's situation.

33 On the other hand, as I have already stated, the offences for which you have been convicted are particularly serious. You played a significant role in the offences, and the amount of drugs involved was substantial. As I have also stated, it is necessary that the sentence which I impose on you must be such as to deter other persons who might otherwise be minded to embark on the same type of enterprise which has resulted in your convictions.

34 In determining the sentences to be imposed upon you, I have read and taken into account a number of sentencing decisions, both of appellate courts and also of sentencing judges. The facts and circumstances of each of those cases are relevantly different. Nevertheless, taken together, they reflect the current sentencing practices for this type of large scale offending. In particular, the decisions to which I have referred make it clear that it is necessary to impose a heavy sentence in a case such as this, in order to demonstrate the community's and the court's condemnation of your offending, and to serve as a general deterrent.

35 I accept that the two offences, for which you have been convicted, arise effectively out of the same enterprise. Thus it is appropriate that I allow for a substantial degree of concurrency in respect of the terms of imprisonment which I shall impose in respect of them.

36 Taking into account the matters to which I have referred, I sentence you as follows:**

(1) On count number 1 (attempt to possess a commercial quantity of the unlawfully imported border controlled drug methamphetamine) I sentence you to sixteen (16) years' imprisonment.

(2) On count number 2 (attempt to possess a commercial quantity of the unlawfully imported border controlled drug cocaine) I sentence you to ten (10) years' imprisonment.

**37 I direct that the sentence on count 2 is to commence immediately, and that the sentence on count 1 is to commence twelve months after the commencement of the sentence on count number 2, that is, on 16 August 2014. Thus, you are sentenced to a total term of seventeen (17) years' imprisonment. I direct that you are to serve a minimum of thirteen (13) years before becoming eligible for parole.

38 Pursuant to s 16E of the Crimes Act, I declare that you have served 660 days by way of pre-sentence detention, and I shall cause that declaration to be noted in the records of the court.**