CDirector of Public Prosecutions v Forcade
[2022] VCC 117
•11 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 21-00944
| The QUEEN |
| v |
| ALEXANDRE FRANCOIS GERARD FORCADE |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 November, 1 &15 December 2021 | |
DATE OF SENTENCE: | 11 February 2022 | |
CASE MAY BE CITED AS: | CDPP v FORCADE | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 117 | |
REASONS FOR SENTENCE
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Catchwords: Between dates attempt to import commercial quantity of border controlled drug (methamphetamine); Factual dispute re date of knowledge No prior criminal history. 27 almost 28 years old as at sentence. Early guilty plea; Worboyes v The Queen [2021] VSCA 169 – COVID-19; limited remorse; 122.5 kg pure drug. 163x Commercial Quantity
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Sonnet | Office of Public Prosecutions |
| For the Accused | Mr D Dann and Ms C Boston (30 November and 1 December) Mr J Kelly (15 December) Mr M. Cunningham (11 February 2022) | Paul Vale Criminal Law |
HIS HONOUR:
1 Alexandre Forcade, you have pleaded guilty to one between dates charge of attempting to import a commercial quantity of a border-controlled drug. The drug was methamphetamine. A lot of it.122.8 kilograms pure.
2 You are now 27 years of age, you will be turning 28 in a couple of days. You are a foreign national, a Canadian passport holder, but born in France in February of 1994. I assume you have dual nationality, though nothing hinges on that at all. You have no prior criminal history at all. Your worried mother and father have observed these proceedings previously and are online again today.
3 The charge carries the highest maximum penalty known to our law, life imprisonment.
Facts
4 Mr Sonnet appeared to prosecute on the plea. There was a very lengthy and detailed written summary of prosecution opening that was dated 3 November 2021. An amended form of that very same document dated 15 December 2021 was filed, the only difference being that for ease of reference, footnotes identified the electronic exhibits, as well as depositional page references. Those documents which were marked as Exhibit A, referenced various pieces of evidence within the depositions. For instance, the bill of lading or the incoming passenger card or emails or the photographic or video surveillance or the many intercepted phone calls and the product of the listening devices. Now the prosecution summary, as lengthy as it is, frequently included only a summary or a precis of the electronic surveillance material. I have gone to the full transcripts and in many cases have listened to the actual audio exhibit. I have viewed the video surveillance of your movements within the Storage King outlet. The case against you was a quite overwhelming one, as is plain from the very lengthy summary.
5 Mr Dann and Ms Boston conducted the first part of this plea on 30 November of last year and informed the court that it was an agreed factual statement, but that the inferences the Crown urged the court to draw as to the duration of your knowledge were in dispute. To that extent, but only to that extent, there was a factual dispute. That is to say, the Crown argued that you had the requisite state of knowledge throughout the between dates period. Your counsel argued it was only from 19 February of 2020.
6 I will detail my findings on the disputed aspect of the plea in due course, but see no need to set out the full sentencing facts in these my reasons, as I will sentence pursuant to that agreed summary.
7 Turning briefly then to the facts. On 23 January 2020, a shipping container arrived into Melbourne aboard a ship the Xin Ou Zhou. The consignment was from Mexico and the consignee was Eminent Empire Pty Ltd. The purported contents were silver concentrate. The bill of lading identified the shipper in Mexico City and described the shipment as 12 bags of silver concentrate with a gross weight of 20,290 kilograms.
8 Jumping ahead a week, on 30 January 2020, Australian Border Force officers examined the consignment within that container and they found that there were 12 industrial sized sacks each containing about one and a half tonnes of silver concentrate. Buried within four of those sacks were 154 packages containing a very large quantity of Methamphetamine.
9 If I pause for a moment then, necessarily, those responsible for sending the container into this country always knew that it was going to be necessary to have someone to unearth the hidden drugs at the Melbourne end. You were that person. That was your role, but you had other roles as the agreed summary makes plain. I will deal with the state of your knowledge later in these reasons.
10 Upon finding the drugs, Operation Spalford was commenced by the Australian Federal Police. The drugs were removed and they were replaced by an inert substance.
11 The agreed summary then sets out the steps taken by a number of players. The charge against you is framed as beginning on 5 February of 2020, which is the date that you made contact with Storage King to discuss arrangements for the delivery of the container. There had been earlier contact which I will discuss, but this was the first contact after the substitution by the Australian Border Force.
12 Going back one step then, you were a resident of Malaysia at the time. You were a university student.
13 On the very same date, as the consignment arrived into this country on 23 January 2020, you, still in Malaysia, rang Storage King in Richmond to get a quote for the future storage of 10 pallets. The quote was sent with the recommendation that the Burwood Storage King would be the appropriate venue. You then emailed Storage King. The charge sets out the between dates period. Any conduct predating the charged period is before me for completeness and context and of course I am not sentencing you for any acts in some expanded period.
14 The opening sets out the very many steps that you took, not just with Storage King, but with the shipping company and the customs broker. I will set out some of them.
15 You emailed Storage King on 5 February indicating you would be in Melbourne and would come in and make payment. At that stage, you were still out of this country. The next day, the customs broker ICAL received a call from a Malaysian phone number from a man identifying themselves as Raj. Raj stated that his colleague 'Alex' would call ICAL at a later time to organise delivery. On 6 February you made a payment of $659 to the shipping company. You were still in Malaysia. You only applied for a travel authority to enter Australia on 20 January.
16 You arrived into this country on 9 February. Your incoming passenger card filled out on that date, specified a seven day holiday. Your counsel, initially Mr Dann with Ms Boston and then Mr Kelly argued you were coming here for, as they described it, a holiday for your birthday. That was your evidence as well.
17 The summary sets out your ongoing discussions and communications with Storage King, the shipping company and the customs broker. In speaking to the customs broker, you identified yourself as Alex from Eminent Empire. The company was a sham company. In fact throughout, you identified yourself as engaged by or acting for that company. You had no real connection to that company at all.
18 You called Storage King on 10 February and stated amongst other things, that the consignment would be stored at Storage King for about a month. See paragraph [40].
19 You made enquires as to the costs involved in the storage and also with the customs broker. Again, there was a connection between you and Raj who was also in contact with the customs broker, with Raj having knowledge of steps that you had taken as to the storage facility. See paragraph [42] and [44]. In dealing with Storage King, you provided an alternative contact, being Benjamin Montel, with an address and a phone number provided. Well they were provided by you and all those details were false. There was no such person, the address was a vacant block and the phone number was not connected. See paragraph [45]. This was on 11 February 2020 (see paragraph [46]). In other words, well prior to the point in time that you say you got wind of any illegality here. You were also dealing with the shipping company. You set up the delivery of the container to Storage King. There was a Bitcoin transaction on 12 February and you used that cash to pay the amount owed to the customs broker (see paragraph [57]). You provided credit card details to the Storage King outlet for payment.
20 On the 13 February, audio from your room at the Ibis Budget Hotel picked up some of your conversation with an unknown person on the phone. You said that if everything went smoothly, you could fly back to KL on Saturday night, like you were supposed to, that you were waiting for the 'fucking Mexicans' and that when they deliver the container tomorrow, you could do everything at night and ‘get rid’ of what you were supposed to get rid of, before you can fly and then collect your money from Canada (see paragraph [59]).
21 On the 18 February, you made a series of enquires about the progress of the unloading of the container at Storage King. You were obviously anxious to receive details as to how you could enter the facility and whether you could drive in and do so after hours. You were making enquires that day as to the rental of a car. It was to be a short term rental, although that was deferred to the next day. There had been an issue with your credit card.
22 By 5.20pm on the 18 February, the consignment was fully unloaded and you were informed of that fact. You made your way to Storage King. You inspected and took photographs of packing labels. You tried to activate a new SIM card on that date, the 18th.
23 The next morning, you checked out of your hotel. You attended a Vodafone store to activate the new SIM card and you hired the car from AVIS. That car had a listening device in it. That device picked up the conversation on the 19 February set out at paragraph [78]. This was where you mentioned that you had found out what you were doing, mentioned that the bags were full of soil, that you had to go there to work all night and you would get the first half of your pay and that there was 150 kilograms of ice. I will come back to that call later in my reasons.
24 From paragraph [103] onwards, there is coverage of your role in the handover of a portion of these drugs. You were the critical player. You commenced a Wickr chat using your false name of 'Lexomontel'. You were discussing matters with a person designated the title 'the last warrior' (see paragraph [109]). You were being given instructions by that person as to how the drugs were to be packaged. You had by then, gone to another apartment. What is clear is that you had an understanding of the scale and worth of the venture (see paragraph [113]). You ultimately met with the person described as the 'buyer' from New South Wales being Bond and transferred 25 kilograms of ice to him. That meeting was like something out of a John Le Carre spy novel. You were arrested. So too was Bond and he is going for trial.
25 You were interviewed by the police. Your interview was not an honest account at all. It is replete with lies. On virtually every aspect, where you chose to make a comment and where there was some objective evidence, it is clear that you lied. That is not a matter of aggravation. The fact is, you did not know what the police ‘had on you’, but learnt along the way of the existence of the listening devices. They played some listening device audio to you towards the end of the interview. Prior to that, you told them that you were here on holiday and with no other purpose, that you had started thinking of coming on 20 January, you booked a return ticket, but decided to stay longer as you no longer needed to be back in Malaysia as you had quit your job. See the record of interview Questions 102 and 103. You had not been to the bank, you said you had not had any discussion or expectation of $30,000, that you had not met up with anyone, had not heard of Eminent Empire or Montel. See questions 162 and 167. You had not received any money and had done nothing of note in the evenings on the few nights before your arrest. Once you realised how much material they had, you made it clear that you did not even know who was involved. See questions 426 to 429. Again, on your present account, that is also a lie. You made no mention at all of being deceived into this conduct.
26 The summary describes the various items found upon the execution of warrants.
27 The summary also details the nature of the drug with a net weight of 153.7 kilograms, containing 122.8 kilograms of pure methamphetamine. There are estimates of value in the materials. That is all they are. The actual value would be determined, as these things always are, by the measure of weight actually sold and the given price unit. The wholesale value ranges from $14.6 to $19.2 million dollars. The estimated retail value ranges from $38.4 million to $69.2 million dollars.
28 There is a summary of the WICKR messages from 21 and 22 February. The last warrior said that he liked the way you were handling this project. He said the following.
'Like the way you are handling this project. I am going to talk to the team and get you shares in our company. We like everyone to grow and make money.’
29 You responded by saying:
'Cheers, thanks for the gig, when we’re all sorted here and I leave, I’ll have someone that I trust meet you for the rest of payment.'
30 Mighty strange comments, Mr Forcade, for someone who claims to have learnt only days before that they had been dreadfully deceived by a friend into this whole arrangement and who was only reluctantly acting owing to veiled threats. Someone who was running scared.
31 The summary also sets out some communications you were having with a man named Devesh. It appears that Devesh was the person using the name Raj. See paragraph [157]. You were having discussions with Devesh about this consignment. Enquires with Curtin University disclosed that Devesh and you were students at the campus in Sarawak.
32 So then, you were a part of what was obviously a serious international syndicate. There was Canadian involvement from ‘the Last Warrior’. There was Devesh or Raj offshore in Malaysia and you were on the ground in Australia, but having dealings with each. Your role was not minor. It was an absolutely critical role. You did whatever had to be done. What though was your state of knowledge and when was it acquired? That was the subject of the factual dispute before me.
33 Now the plea had been taken out of the reserve list by another Judge on the 30 November of last year, but that Judge had a trial starting the following day and she did not appreciate that there was a contested issue and a plea certain to run into a second day. She could not retain the matter. I took the matter instead, as I was available the following day. I took it at very short notice. It followed though that when I came onto the Bench, I had scarcely read a word of the lengthy depositions and had only a very limited understanding of the matter. I disclosed that at page 1 and 2 of the transcript. Within minutes, your counsel Mr Dann addressed me as to your giving evidence on the plea and your indication that you did not wish to identify the principal and that this might be an impediment to whether you wanted to give evidence. I really do not quite know why this was being addressed to me. I simply said that you would need to work out whether you wanted to give evidence or not and if you did, you would be required to answer such questions as were put to you. The plea then proceeded with the prosecutor reading the very lengthy prosecution summary, but was stood down at one point. Mr Dann made it clear that he was not calling you on the plea. He then went ahead and conducted the plea on that day. He put before me submissions as to the reasons why the court should not be satisfied beyond reasonable doubt, as to you having any knowledge of the drugs prior to 19 February.
34 Now, plainly, your knowledge of the existence of the drugs is a matter of aggravation and must be established beyond reasonable doubt. You bear no burden. Mr Dann was placing before the court, your instructions. There was in fact no account from you at all at that stage, other than the various false accounts you had provided in the interview. As a matter of fairness, I raised some of my concerns about those instructions, given the lack of any evidentiary foundation or account. Mr Dann confirmed again that you would not be called on the plea. At the end of the day, the plea was adjourned off part heard to the following morning and on that next morning, 1 December, Mr Dann with Ms Boston, applied to adjourn the plea part heard. They told me there had been some incident, which they said they really were not free to go into, but which necessitated their application and so reluctantly, I adjourned the matter. I was told it related to some correspondence received from your family and perhaps some intimation of lack of confidence in the way the matter was proceeding. I had then, and still have not the slightest idea what that was really all about and nor does it matter one jot. I simply adjourned the matter off to 15 December as a part heard plea.
35
I came on to the Bench for the resumption of that plea on 15 December.
Mr Dann and Ms Boston were not present in the virtual hearing. Mr Kelly was and said that he was now appearing. I had in fact got wind of that fact with an email sent by his instructor very shortly before I came onto the Bench, enclosing a case of Ellis. Mr Kelly had the same instructor as Mr Dann and Ms Boston.
36 No notice had been provided by Mr Dann and Ms Boston, that they would not appear. How they, as counsel, thought it appropriate simply to not turn up and not apply to be excused from a part heard plea, well it remains something of a mystery to me, but that is what they did. That does not fall at your feet and has no role to play in my task in sentencing you. It reflects rather badly on them, but not you at all.
37 Mr Kelly, in his introductory remarks, referred to that early exchange between myself and Mr Dann on the topic of your giving evidence and he referred me to that case of Ellis[1]. It was a bit puzzling. He seemed to be suggesting that the case of Ellis was authority for the proposition that a Judge was debarred from asking questions on a plea as to the identity of a principal. Well if he thought that, he was quite wrong. It stands for no such proposition at all. In that case by the way, there was credible material in the hands of the prosecution and the Judge, touching upon a level of actual danger to an accused. There is nothing like that in this case as far as I am aware.
[1]Ellis v R [2015] NSWCCA 262 (‘Ellis”)
38 The fact is it was not for me on day one of the plea on (30 November) or day three on (15 December) to give any assurance as to what questions the prosecutor or I might ask. I said that it was a matter for Mr Kelly and you, as to whether you were to be called on the plea. Jumping ahead, for what it is worth, when you were called, you were not pressed on that topic, either by the prosecutor or by me.
39
So this plea took a very different turn on 15 December. Mr Kelly called you to give evidence and then adopted the submissions previously made by
Mr Dann who had declined to call you. Mr Dann had stated that he did not seek to rely on any aspect of pressure falling short of duress in mitigation. That was referred to on page 5 of the written submissions. Mr Kelly pretty late in the piece retreated from that concession and pointed to your evidence on that score.
40 Well I was not able to sentence last year, owing to the way the plea had unfolded and the fact that I needed to obtain a transcript of the evidence that you had given and reflect on that evidence and all of the materials before me.
41 I have had the opportunity of observing you give evidence for close to two hours. You were cross examined by Mr Sonnet. I have also had the chance of rereading your interview and the listening device and phone intercept product. I have listened to much of that product. I have viewed the optical surveillance material from Storage King. I have now had the chance of actually reading the depositional materials. I have had the chance of examining the chronology, including for instance, the timing of your application to obtain an entry authority. I have also reflected on your evidence of coming out to Australia for a holiday. In fact, I have read the entirety of your evidence and the submissions made on that day and the earlier date. I am not going to descend to every detail of your evidence.
42 In brief summary, you have said that you were approached by a ‘friend’ in a bar in Kuala Lumpur it would seem in late January, asking you to be involved in what you believed was an entirely legitimate transaction. All you knew was that it related to 10 pallets. You accepted this approach to do this person a favour. There was not initially any question of money being paid and that persisted really for quite some time, despite the fact that you were expending some of your own money. You were in fact coming out to Australia for a holiday, you said. You knew no one here. You arranged the storage whilst in Malaysia and your contact was not going to be in Australia at the time of the delivery. You paid money whilst in Malaysia and then whilst in Australia. When you asked him why you were doing certain things, he said he was just following instructions or did not know. See transcript of your evidence at 113, 117, 118, 126 and 127. He told you to use the false alternative contact and to represent Eminent Empire. You confirmed in your evidence that you had the bill of lading. You said that you missed your return flight. You did not board it and by then your contact, wanted you to stay on and said he would pay for your flight home. He instructed you to rent a car. You described receiving a text overnight leading into 19 February stating 'the container has 150 of windows'. You said that meant nothing to you at all until you Googled and learnt this was a reference to methamphetamine. There were further texts where you said he specified 150 kilograms of ice and you voiced your frustration by text (see transcript 12). You felt you were left with little choice as you were, it was suggested, ‘all over’ this importation and your friend was mentioning the Colombians and the fact that you could not run or go to the authorities and that you would be paid. You said that you had deleted the texts, including one where he admitted that he had ‘screwed you over’. You said that your friend had reminded you that he had a copy of your passport and hence was making a veiled threat. You said you had only learnt of the existence of drugs on the morning of the 19th. Prior to that, you believed the cargo was silver concentrate.
43 I am satisfied beyond reasonable doubt that, you were not out here on a holiday at all. I am satisfied beyond reasonable doubt that you came to play this role in relation to this cargo and the drugs within it. There is an air of complete fantasy to your account, including this notion of a principal informing an innocent dupe of the existence of the massive quantity of illegal drugs in the manner you describe. You claim this detail was ‘dropped’ on you overnight out of the blue, by a coded text message from your friend, a message you did not even under. Quite bizarre. You claim that when you realised what he was saying, you voiced, as you put it, your ‘frustration’ in texts. That is bizarre on so many levels. Frustration? At being innocently involved in what you thought to be an importation of 150 kilograms of ice? And texting upon learning that fact? That is just totally foreign to any normal human reaction. It would be a quite incredible response to try to negotiate this ordeal by text. How about a phone call and a fierce argument with your friend? But of course, you now know that there was a listening device in your room, so you are not free to concoct or create an account of getting on the phone to your friend. You claim it was all done by text and all those texts have been deleted by you. Total rubbish, on both counts. Surely those texts demonstrating your innocence to that point would be preserved by you forever, whatever you were told to do and whatever bind you found yourself in. You would never have deleted such texts and you did not. I am satisfied beyond reasonable doubt. They never existed.
44
You claim that you then acted out of fear or under the pressure of the moment, that you were a reluctant player caught up in all of this. Well
Mr Forcade, not only have I read the listening device and phone intercept materials which show not one hint of pressure on the face of the transcript. As I have said, I have also listened to much of that material. Many were in English and I have listened to all of those. I wanted to listen to what you said and the tone. There is not one hint of pressure. For someone who has learnt this ‘awful truth’ about the consignment, you adapted remarkably swiftly. Well of course you did not learn the truth or adapt, for I am satisfied it was always your role to come here purely for this cargo, something you told your mother in the call on the 19th. You told her that you had come to Australia for the purposes of this consignment and that people had paid for you to do so. I have absolutely no doubt that is so, though you were lying to her about the true nature of that cargo.
45 I lost track of how many different versions were before me about the fate of your internship. You had just started it. Were you on leave or had you quit or had you been fired? Well the answer is yes to each one of these, depending on which of your many accounts I accept. I accept none of them. You are a complete liar and I reject virtually everything you have said in your evidence dealing with this shipment.
46 I see no great utility in descending to the full detail of your evidence. It was complete nonsense. Rejecting your account though does not provide the answer to the other question. That is, the extent to which I can conclude beyond reasonable doubt, your knowledge prior to 19 February.
47 That is because I am engaged in a different exercise. When I ask if I am satisfied beyond reasonable doubt of your knowledge for periods beyond those conceded by your counsel, that is not a matter for you to establish at all. If there exists a reasonable possibility that you did not have the requisite state of knowledge at an earlier point of time, then that feature of aggravation will not be established. That is, because as I say, a matter in aggravation has to be established beyond reasonable doubt.
48 Your counsel Mr Dann had set out in his written submissions some matters he argued were germane to this issue, including the contention that you were on a holiday. He relied on the use of your own details and the listening device product from 19 February. Mr Kelly, when he took over the matter, made some further brief submissions on the last day of the plea. Mr Sonnet placed before me some further written submissions on this topic dated 14 December, working his way through the various things you had said and done and the conclusions that he argued should be reached in this case. I am not going to slavishly work my way through every point made by the parties. These reasons will be plenty long enough as is.
49 When I examine all of the materials, including your evidence, I am left in no doubt at all that you had knowledge of the fact that border controlled drugs were involved throughout the charged period.
50 I am satisfied beyond reasonable doubt that you knew what this exercise involved from the moment you became involved in that charged period. The various steps taken by you, the very fact that you were taking them and the timing of them, all that you said and did, leaves me in no doubt at all as to your knowledge of the existence of controlled drugs throughout the charged period. I am satisfied beyond reasonable doubt you did not just learn about drugs on 19 February. I am satisfied beyond reasonable doubt that you were fixed with that knowledge throughout the between dates period of the charge. Why else were you contacting Storage King or the shipping company or the customs broker and doing all of these things mentioned in the summary? Your evidence was absurd. Every time there was a question as to why you were doing something which made no sense, the answer was that either it was what you were told to do or your principal told you he was just doing what he had been told to do. I am satisfied beyond reasonable doubt that your arrival into this country was entirely connected up with your knowing involvement with this illegal venture. You told police you had quit your job. You told me through counsel at one point, that you had taken a week off from a new job. Later, you told me you had been sacked. Your ticket was booked for a return flight within a week. You were booking storage space for a month and your planned exit from the country was intimately connected with your finally discharging your function, in relation to that consignment. It was not much of a holiday you were having, because of course, it was not one. You were not here on holiday at all. You made that very plain to your mother in that conversation captured by the listening device at 12:18pm on 19 May. You told her you were here for a friend from Canada. Your mother had heard only a handful of lines from you about what you were doing and asked you if it was legal and persisted with those concerns the more she heard about what you doing. She was very concerned as to you not being in Malaysia with your internship. She was concerned about the legality of your conduct from what little you were telling her. She was puzzled as to your role and asked a pretty sensible question 'but haven’t they got an agent to do that in Melbourne?' You said that they did have an agent, but not in Melbourne. You told her it was three weeks that you had been working on this. You told her they are from Canada and the friends in Canada knew you were in Malaysia, not far from Australia and they asked if this might interest you and you said 'why not' and 'they sent me here'. You told her that this was the first job you had done with them. She asked you if you were paid and you said 'of course. I’m not here for free. Of course I’m paid”. You told her they had paid for your travel and the car and your accommodation.
51 Even without this listening device product, the notion of this being a holiday was absurd. At relatively short notice, deciding to come on a holiday to a country where you knew not one soul to celebrate your birthday on your own. Then spending virtually all of your time engaged in tasks relating to this cargo and incurring expense which you were not sure would even be repaid. Your movements on your actual birthday are pretty instructive. So many acts relating to this container. You were working on behalf of the principals and it is plain that you had knowledge of the existence of the drugs from start to finish. Why else were you actually here? If, as is suggested, this was a transaction involving many tonnes of silver concentrate, what was your actual work to be? What was your proposed role? Why were you needed? Why would you be approached? Why would you volunteer to be involved? What was your expertise and how would people even know you were coming here? You had the bill of lading which disclosed a cargo with a nett weight of over 20,000 kilograms and with many bags of silver concentrate. If it was a legitimate cargo and believed to be so by you, what were you going to be actually doing? Overseeing the delivery? How? Why? Turning up at a venue as you did in a small car, where you knew there were tonnes and tonnes of silver concentrate. Doing what with it? If you thought that this only involved a large quantity of silver concentrate, why would you even think there was any need to have someone in this country do anything? Why was that someone you and as I say, and I repeat, doing what exactly? The legitimate cargo could just be shipped to the consignee once it had cleared customs and transported to them. Of course, what had to happen was the decanting of the drugs from the cargo. That was critical and that is what you were involved in and I am satisfied beyond reasonable doubt you knew that throughout the charged period.
52 Why and how would a drug principal sense that an innocent dupe would so swiftly and seamlessly make the jump to being an enthusiastic participant in a serious crime upon learning that the consignment contained millions of dollars of ice and that they had been so badly deceived? Why and how would or could they trust such a person not to inform the authorities or run off with the drugs or to baulk at any further involvement? It is all complete nonsense.
53 It was fundamental to this whole exercise that the container be stored once it exited customs and then the illegal contents unearthed and moved on and every step of your presence in this country and in the charged period before your arrival, was devoted to that end game. I have no doubt on that score at all, none. It is an inescapable inference.
54 Your counsel submitted that based on your evidence, you only learnt of the existence of drugs on 19 February. He suggested that up to that point, you were doing someone a favour. You will not name that someone and I stayed out of that area. The theory is that person and hence this syndicate, got wind of the fact that you were coming to Australia on this so called holiday and asked you to do this favour. There is not the slightest suggestion that you had any expertise or experience in customs clearance or shipping or storage of minerals, and yet the summary discloses the detailed discussions that you were having in some of these areas. You were a university student. You only applied for the entry authority on 20 January. That is only three days before the container entered this country, so this syndicate would be cutting it very fine indeed to have a chance encounter with someone who happens to decide to come to Australia. A chance encounter with someone not even ‘in the know’ as to what lay ahead. And you, that person who is from Malaysia, contacting Storage King in Australia on the very day that the container arrives into this country. I repeat, the notion that a principal is sending many millions of dollars’ worth of drugs to a city in Australia with no one appointed to do the necessary groundwork is completely absurd. It is as plain as day that you were that someone and knew that you were. The suggestion that you only learnt on 19 February as to the existence of drugs is inconsistent with everything that you did and had done. I have the conversation on 13 February, (see paragraph [59]). You said that:
'If everything goes smooth tomorrow here, I fly back to KL on Saturday night’.
55
Everything being what Mr Forcade? You said you were still waiting for the Mexicans. You said that when they deliver the container tomorrow, you could do everything at night and get rid of what you were supposed to get rid of before you can fly. You mentioned the collection of the balance of your money from Canada. What exactly is that reference to things going smoothly and doing everything at night and getting rid of what you had to get rid of
Mr Forcade? It is in fact a remarkably accurate prediction of exactly what you ultimate did do, the decanting of drugs from the packages at night and then the movement of it. You knew as of the 13th that this was your job. You knew what you were doing. You knew that you were dealing with a border controlled drug and being paid for that task. I have no doubt about that at all. I reject your account of that discussion. In later captured conversations, you spelt out your plan to go to Canada, again linking it to payment for your involvement in this matter.
56 You had the car on 19 of February, a small Sedan, and had been making enquires the day before about rental. It is plain as day that you understood there was a need to have a car and to be in a position to access the consignment. Why? Well to do what you ultimately did do, to decant the drugs and move some of them on to the next person which is exactly what you did do. You had seen the various massive bags the night before at the Storage King outlet and examined them. You were taking particular interest in their individual package labels. You then rented the Sedan the next day. There were many tonnes of silver concentrate, but the critical cargo of course was what was within that 'dirt' and that would and did fit into a small Sedan.
57 As I have said, you had already mentioned as early as the 13th the fact that you were being paid. For what? You were describing in that listening device product getting the money from the people in Canada. What money? And for what?
58 There is the absurdity of you missing your flight on the 16th, not even board it, because the delivery had not been completed. What was that to you? Someone just doing some friend a favour during a holiday? Someone who had other places to be, either at university or the internship. A friend so keen to have you stay on that they would pay for your flight home. Well you needed to stay to fulfil what you knew was your actual task; the unearthing of the drugs.
59 It is true that in a conversation with an unknown person captured by the listening device on 19 February that you said:
'I found out what I’m doing too Elly, I’ll tell you when I’m done'.
60 You went on in that call to describe the shipment as being 150 kilograms of ice, of meth. The suggestion that this detail, that is the existence of 150 kilograms of ice has been dropped on you out of the blue by a text, is as absurd as the suggestion that learning this out of the blue, you just fell into step in the way that you did. The various calls and the listening device audios on and after 19 February, have you enthusiastically engaged in this conduct. Even that call I have mentioned on the 19th at 11:58pm. This is on the day that you claim that you have learnt that you have been so dreadfully deceived. You are laughing and saying as you were driving 'this is so much fun'. You are describing your intention to be in Vancouver by the weekend. You are not shy about describing what you are doing saying: ‘It’s windows, if you know what that is, look it up, you’ll find it’. You went on to describe getting the first half of your pay and then the rest when you get to Vancouver. You said it was really good money. You said:
‘I told you where the shipment is from, so you can guess the rest, 150 kilograms of ice, of meth’.
61 Of course you always knew where the shipment was coming from. It was on the bill of lading. Again, not the slightest suggestion in that or any other of the intercepted conversations of being ‘dudded’ or deceived or ‘dropped in’ this arrangement. Nor, in your call to you mother later on that very same day. On 21 February, in an intercepted conversation at 8:59pm, you are captured happily chatting to a person about what you have been doing and how much you are being paid. You disclose having what you believe to be a 111 kilograms of meth in your bag and another 50 kilograms to get out from storage. No suggestion of unwillingly finding yourself in this position and slightly later, whether to the same person or another, you said you have got '111 with me right now' and you said 'These guys are from Canada, but this stuff comes from South America'.
62 On 21 February, you are captured speaking of what should be done the next time. You said, 'You know what would be good, what I was thinking for the next one' and you went onto describe what you could do. See p1761.
63 In your evidence, you described the conversation at 1:30 pm on 21 February that is set out at p1777 of the depositions. You said in your evidence that this was a conversation with a fellow student and it followed on from a text exchange, where you had described that you were involved in an ordeal. See transcript p132. Where is that text? It has not been produced. The conversation has no mention of your being duped or deceived. Instead, you are giggling at one point in the conversation saying that everything is fantastic.
64 You are ultimately messaging one of the principals, thanking him for the gig, in response to his praise for your work on the project. I mentioned that earlier in these reasons at paragraph [28] and how your thanking the principal, sits so uneasily with your role as a man who had been so seriously deceived into this activity. In addition though, those words from those above you in the syndicate, praising you for your work on the project are equally ill-fitting with this concept of your being a dupe who has been tricked into acting at the last moment.
65 As I have indicated, it dawned on you in the interview with the Australian Federal Police that they had a wealth of material and you knew then that the 'game was up'. You said:
'I mean I can tell that you have everything. So I can tell you what I know, that’s it. I could try to help you guys that way, but that’s it. Either way I’m fucking, you have this stuff, but if you want to talk about who is involved and who is in it and all that stuff, I can’t even help you with that cause I don’t know who. I don’t know names. I don’t know who sent it. I don’t know whose container it was, nothing’.
66 See Q426-429 in the interview.
67 Not one word from you about being tricked or duped.
68 I have no doubt at all that you were sufficiently trusted to be the man on the spot dealing with the Canadian and the Malaysian ends. The absence of a willing and trusted person with knowledge is equally absurd, as I have said. The suggestion that the success of a multimillion dollar international importation of drugs hinges on your being told at the last moment of the existence of the drugs and the hope that you might then just do what was asked of you is just silly. I am satisfied beyond reasonable doubt that that is not what happened and nor is it the tenor of any of the intercepted communications or texts or messages.
69 I am satisfied beyond reasonable doubt you were an involved knowing participant throughout the charged period. You knew that border controlled drugs were involved here. The use of your details was part of your function. You were the man on the ground in this country. That is why you were being paid US$30,000. The suggestion that was made on the plea that it somehow understandable that you had provided a false name to Storage King as an alternative as you had provided your true details was, if I may say so, an unusual submission. What was the problem in providing a genuine alternative name and phone number, if this was all a legitimate exercise involving silver concentrate Mr Forcade? Your account that you did it because you were told to do it is again, just empty nonsense. As I have said, time and time again in your evidence, when you were asked why you did something, you fall back on the answer ‘because you were asked to or told to do it.’
70 Well you are not some silly impressionable teenager. You were 25 and 26 years old at the time of these events, a mature and obviously intelligent man. You were not doing anyone a favour at all. You were clearly not in great financial state. You were paying some of the bills connected up with these transactions in advance of having any expectation of necessarily being reimbursed on your account. Again, just no sensible reason why you would be paying these bills as a favour. It was another totally unrealistic aspect of the account.
71 No doubt you were, from time to time, getting further information as to the next step which accounts for your description of finding out what you are doing on the 19 May intercepted conversation. For instance, who you were to meet and how much drug to remove and what to do with it. It is obvious from the materials you worked solidly, unearthing the drugs and it is plain enough that you were repackaging them to order. You were the only person on deck. That much is clear. See paragraph [100]. You were the person trusted by those overseas to discharge these critical functions that you did discharge. You were doing it with knowledge. You were doing it for money.
72 The container is what brought you out to this country as you told your own mother. I totally reject your evidence. More importantly though, I am satisfied beyond reasonable doubt that you had knowledge of the essential nature of this transaction throughout the charged period. You knew it involved a sizeable quantity of a controlled drug. You knew that before you entered this country. You knew prior to entering this country that you were involved in a very serious crime. You were coming here to commit it and you were the critical player on the ground. I am satisfied of that beyond reasonable doubt.
73 I will sentence pursuant to the lengthy agreed statement which is marked as Exhibit A on the plea and as I say, I have made my views crystal clear as to the factual dispute.
In Mitigation
74 As I have said, Mr Dann with Ms Boston conducted the initial plea on your behalf and relied upon a written outline dated 24 November and a written outline dealing with the factual dispute that was dated 30 November. Those documents were marked as Exhibit 1.
75 There was a letter from your parents, one from a Ms Kostachuk, as well as two clean drug screens and a course certificate.
76 Your counsel took me to your personal background, including the existence of ongoing family support. They made submissions as to the nature of the offence and your prospects of rehabilitation. They raised matters in mitigation leading into day two of the plea. On that day, they successfully applied to adjourn the matter and as you know, they were then replaced by Mr Kelly who adopted the submissions that had been made.
77 He raised the following matters in mitigation:
· Your early guilty plea in the midst of the global pandemic;
· The presence of sincere remorse;
· The existence of some delay;
· The impacts of COVID-19 upon your custodial experience; and
· An increased prison burden arising from isolation.
78 He, unlike Mr Dann, argued that there were some reduction in culpability arising from your learning late in the piece the true nature of the cargo and being motivated by pressure falling short of duress to do these acts.
79 Your counsel correctly conceded the inevitability of a substantial prison term here.
Prosecution
80
Mr Sonnet, on behalf of the Commonwealth Director of Public Prosecutions had prepared some very detailed written submissions dated 30 November 2021. He also made some oral submissions on the disputed factual issue to supplement the detailed written submissions on that topic dated
14 December.
81 The two sets of Crown written sentencing submissions were marked as Exhibit B.
82 The prosecution written submissions dated 30 November were in no way controversial, traversing as they did matters of general sentencing principle and then applying those well-established principles to this case.
83 I will not in these reasons set out slabs of these various submissions. The prosecution conceded it would be appropriate to treat your plea as one made at a very early stage. They were not suggesting that you were the mastermind here, but your role, they submitted, was an important one with many active and crucial steps along the way.
84 The prosecution placed before me a chart of cases as well as those cases, see Exhibit C. I have read them all. None is on all fours. Neither party has seen fit to take me in any detail to that material. I had read them but I did not find that to be a profitable exercise and told Mr Kelly as much. I have to pass sentence in your case not those others.
Background
85 I will turn now to your family background, but I am going to do that pretty briefly for two reasons. The first is that your background is not in dispute. Secondly, it has nothing at all to do with your committing this serious crime. The details of your background are contained in the written and oral submissions, as well as in the detailed letter from your parents. Also, in your evidence of course, and I am prepared to act at least on that aspect of your evidence dealing with your family background and upbringing.
86 What is plain to me and to you, is that you come from a loving family. Though there have been some moves arising from your father’s changing employment situation, it was a good, loving and stable background. You have always had family support and importantly, you still do. You were born on 13 February 1994 in France. So you are almost 28. The family moved to Quebec when you were nine and then to British Columbia when you were 13. You were a good student and graduated from high school in 2012. The family moved out to Malaysia and you stayed on in British Columbia and commenced a university degree. You started using cannabis as an 18 year old and struggled to adapt to the absence of your family. I was told that you withdrew from university and worked instead. The details of your various jobs are set out in the written submissions. You started to use ketamine and cocaine a few years later following the death of a friend. You continued to work, by then as a driver. You moved to Malaysia in 2017. That was to live with your family and to obtain an Australian University degree at the Curtin University satellite campus. You passed the first year in 2018. Your family returned to France and I was told that you then lost your way a bit and failed second year. You obtained a six month internship in the finance department at British American Tobacco, but I was told that you took leave to travel to Australia.
87 I was told that you have had issues with ketamine, cocaine, alcohol and to a lesser extent, ecstasy, but none with ice only having used that substance once. I have some doubts on that score, given some of your discussions in the intercepted materials where you give a pretty decent imitation of someone almost licking their lips looking at the crystals in the bag in front of you and speaking of going from the bottom to the top of the food chain. It is, however, not necessary for me to determine that matter. Drug use, whether of ice or any other drug, is not put forward as being in any way, a mitigatory factor in this case or even of significant context. The argument was that you had been motivated by being unknowingly caught up in this matter. I have rejected that altogether.
88 You have been in custody since your arrest and have been subject to quarantine and have had some level of restrictions for a large part of that period. There are the two drug screens and a course certificate. You have been held up at Fulham Prison. You have tried your best to stay out of trouble. You have been the head billet for four months leading up to the date of the plea. I assume you still are. You will have no visitors once restrictions lift as quite simply, there are none in this country. You have no prior convictions at all.
89 Let me turn then to discuss the matters that were raised on your behalf in mitigation.
Guilty plea
90 The first of those matters is your early guilty plea. There is a chronology on the prosecution summary and one in your counsel’s submissions. I will not waste your time or mine trawling through either of those chronologies. Your plea was entered at what I will treat as a very early stage in this case. By pleading guilty, you have taken this early responsibility for your offending.
91 As a result of your early plea, the time, the cost and effort of a committal hearing in the lower court or a trial up in this court has been avoided. There was a committal hearing, but that falls at the feet of your co-accused and it had nothing at all to do with you. You did not participate in that. So it is a very early plea.
92 You have in these ways facilitated the course of justice.
93 Your guilty plea is also worthy of extra weight for the many reasons set out in the decision of Worboyes[2]. There is, as you may or may not be aware, a very large backlog of cases waiting for a hearing in this court. Well your case is not one of them. Mr Bond’s is of course.
[2]Worboyes v The Queen [2021] VSCA 169
94 I take these various matters into account in mitigation.
Remorse/contrition
95 The written submissions argued that you were sincerely remorseful and referenced the early guilty plea. Mr Kelly had adopted those written submissions. A guilty plea can be indicative of remorse, but that is not always the position. Well, this case was an overwhelming one with evidence from multiple sources including listening devices, telephone intercepts, photographic and physical surveillance and forensic links. The strength of the case is not relevant to the discount afforded to you for your guilty plea. That allowance is not dependent on whether there is a finding of remorse or not. I do not confuse the two matters. But is there actually remorse or contrition here? Does your plea evince it?
96
As to remorse, well there is no sign of it in the depositional materials. Once arrested, you gave a ‘cock and bull’ story to the Australian Federal Police. Well, that was in the moment and one can hardly blame a person for panicking in such a setting as that. You must have been horrified when you were arrested and when they played portions of the listening device conversations to you. That interview was way back in February 2020, so a long time ago now, with much water under the bridge and much time to reflect on your conduct. My concern lies more in the factual dispute which was based on your instructions and the evidence that you have given on the plea. I have totally rejected the suggestion of your having no knowledge prior to 19 February. I am satisfied beyond reasonable doubt that you did. It is very difficult for me to gauge much remorse in this case when you are prepared to peddle this nonsense through your counsel and in your evidence to me in December 2021. Your plea was being conducted with you endeavouring to minimise your true criminality and hence the penalty. You were not protecting anyone else. At one point, when questioning your counsel Mr Kelly as to the suggestion in the written outline authored by
Mr Dann that there was sincere remorse, I asked him to take me to it. He conceded there was no evidence of any remorse, other than what could be inferred from the plea. I do note, however, that one of the referees
Ms Kostachuk comments on the existence of remorse. In any event, I allowed Mr Kelly to recall you and you gave evidence on this topic for a handful of pages from transcript 218 onwards. I have no doubt you regret putting your family in the position that they find themselves in. I have no doubt that you are sorry, very sorry to be facing the dreadful predicament that you are in and in that sense, I am sure you must have some regret for committing this serious crime. I am prepared to find the existence of some limited remorse in this case.
Rehabilitation
97 I turn then to your prospects of rehabilitation. The evidence that you gave when asked those additional questions by Mr Kelly and one or two by me, suggests to me that you have had the ability to reflect on your criminality whilst being in custody. Regrettably, you have tried to minimise your conduct. That is not too encouraging, but really it is perhaps unsurprising. You are in a very serious predicament.
98 You are, relatively speaking, a young enough man.
99 You have pleaded guilty at a very early stage. You have no prior criminal convictions. That is hardly unusual in this sort of case I should add.
100 You call in aid your past good behaviour. I do not ignore the absence of any prior criminal history. Of course I do not. You have, however, commenced your criminal history with an extraordinarily serious piece of offending. It was calculated conduct requiring you to travel from Malaysia to Australia. There is nothing spontaneous about this offending. You knew that you were taking a massive risk. You were prepared to take that risk for financial reward. Though you were not in great financial shape at the time, you were an intelligent man with a supportive family. Your parents reference speaks of the financial support they were providing to you at the time.
101 Your drug use has no role to play that I can determine on the materials. Nor is there anything else reducing your culpability. Though you were young enough of course, you were not some silly teenager or labouring under mental health issues and though money was not abundant, you were not destitute and were lucky enough to enjoy family support. So this was a calculated decision to commit what was an unmistakably serious crime and financial reward is the only explanation. You had so many opportunities to pause for thought and to consider the seriousness of what you were doing and to step away. Regrettably, you did not and here you are now and your life will change forever as a result.
102 You are in custody and have been already for a large enough time. That has not been easy. That will continue for a very sizeable period indeed. You are doing well in custody, working and you told me, in some of those supplementary questions, that you are considering continuing with a university degree of some sort. You spelt out to me your plans for the future and your hope of re-joining your family in France.
103 No doubt the fact of apprehension and being charged and being brought before the court and being on remand to this point will serve to deter you to a degree. So too of course, the sentence which I will soon impose, which will very significantly extend your time in custody.
104 You still have those who will support you upon your return, presumably to either France or Canada. As I have said, your family has shown their support both in their reference and in their virtual presence throughout these proceedings. They must be beside themselves with worry.
105 Mr Dann in his written submission had argued that you had excellent prospects of rehabilitation. Whilst adopting the written submissions, I believe Mr Kelly pitched those prospects at a slightly lower level. Whether he did or he did not, I find they are less favourable than that. I am guarded owing to the seriousness of this crime, its calculated nature, the lack of any sensible explanation for your decision to commit this crime other than financial reward and to a lesser extent, the endeavours you made and continue to make to minimise your offending. Still, having assessed al the materials, I do believe your prospects are at least good.
106 Those prospects of course will not take shape in this country ultimately as you will in due course be deported. That is not a matter in any way relied upon in mitigation in this case.
COVID-19
107
I accept the submissions made by your counsel as to the impact of
COVID-19 restrictions on your custodial experience. You will get no allowance by way of emergency management days, as legislation has been enacted to ensure that is the position for those serving Federal sentences.
108 It is clear enough that the COVID-19 virus and the response to it by those running the prisons has increased your prison burden. Prison has been a more stressful environment in the time that you have been there to this point. Social distancing has not been easy. I am sure there has been worry about catching the virus in such a setting where, unlike someone in the community, you have no level of autonomy.
109 There have been limitations to ‘in person’ visiting, but this has had no real impact upon you to date, as you have no people to visit you in this country. There has been impact no doubt upon the availability of the full range of courses in the period in which you have been held.
110 On any view of it, it has not been a good time to be locked up and it is your first experience of prison. You have been there since February 2020. So throughout the pandemic really. You have been there in that Covid setting.
111 That, in a setting where there is also isolation flowing from your status as a Foreign National. Your family, friends and your acquaintances, all the people who would be visiting you, well they all live overseas and that has left you isolated. There was mention made in the submissions of cultural isolation and the absence of many French speakers in custody. Well you are fluent in English. That cultural factor is of very limited weight indeed.
112 In fact, I can pay only very limited regard to any of these matters. You came to this country to offend. I am satisfied of that beyond reasonable doubt. Isolation from your family and from your friends and from French speakers for that matter and your culture, was up an occupational risk and it was one that you were prepared to take on board. It was inevitable if you were caught, and you were. I do not ignore these matters, but they cannot be given any sizeable weight. You came from a country where if you had been caught with a tiny fraction of these drugs, you would likely have been executed. You could hardly pretend ignorance about the seriousness of your offending or the potential ramifications.
113 As to what lies ahead on the pandemic front, well that is impossible for me to determine. I am not here to guess about that. I cannot speculate about how long restrictions on prisoner visits will persist. The fact is though that they have to this point, had no real impact on you. At the time of the plea back in December, we were starting to open up in the community with further easing of restrictions. Prisons seem to have lagged a bit behind the community in terms of restrictions being lifted. There was mention even back then as to the Omicron strain and that has taken hold since the plea date. It is a bit hard to know what lies ahead. There are still restrictions to visiting as well as some quarantine requirements. Presumably though, those restrictions will lift in due course. I cannot say when.
114 I do take into account though that it seems likely that these current restrictions will continue into the future, at least in the short term. No doubt that would produce some ongoing worry and uncertainty and increased burden. So I take into account the increased burden posed by the response to COVID-19, in the ways contemplated by your counsel, including the fact of serving out some periods in quarantine. The fact is, it is never an easy thing serving a first sentence. You are doing that and you are doing that with isolation from your family, from your friends and amidst the limitation on prisoners arising from COVID-19. None of this is easy and I do not ignore that.
Delay
115 I do not believe there is much in the point made as to delay at all. The chronology is set out in the materials. I am not going to restate it. You were arrested in February of 2020 and much of the ensuing period arose in a setting where there was negotiation as to the resolution of the matter. It is not one of those cases where the prosecution agency has behaved unreasonably or taken an unduly leisurely approach to the finalisation of the matter. Nor does your counsel suggest that it is such a case. After a process of negotiation with offers rejected on each side, it settled in May of last year and was listed then for a contested plea and here you are now. I am not satisfied that the delay, such as it is, is a matter of any great significance here. I do not ignore it. I do accept it is not easy having this matter over your head and that you have done your best in the period of that delay.
The Offence
116 I must pay regard to the nature and gravity of the offence before the court. Mr Dann and Ms Boston and then Mr Kelly accepted this was very serious offending.
117 You were engaged with a syndicate and prepared to do pretty much anything asked of you. You travelled to this country. You arranged storage and payment. You liaised with the shipping company, the customs broker and the storage facility. Your role was critical. There were very many acts committed by you. The summary sets them all out. You came to Australia to facilitate this. You continued to do what was needed to be done. You had connections with others in the syndicate and you were on notice that this was an international arrangement. You also had an understanding of the scale of this crime. At the outset, you were booking in storage for 10 pallets. Of course that predates the between dates nature of the charge.
118 You knew your role was to unearth the hidden drug and repackage it. You then were going to distribute it to the person described as the 'buyer'. That is what you did with Bond. That was only 25 kilograms. You had rented a car. There were Bitcoin transactions and Wickr encrypted messages. There was movement from accommodation to other accommodation and a change of SIM card. You were in this up to your neck doing really whatever was needed to be done and doing it for money. Doing all this quite willingly. Mr Kelly pointed to the motivation derived from pressure falling short of duress. Well that was a matter in mitigation and that had to be established on the balance of probabilities. It was not. In fact, I am satisfied beyond reasonable doubt there was no such motivation.
119 You cannot claim to have no sense of the scale or the value or the nature of the actual drug. Your own monetary reward gave you a decent clue, but so too the size of the container which you were having unloaded. By the 19th of course, you were speaking of 150 kilograms of ice worth many millions of dollars. You were a critical and willing player throughout the charged dates. This was a sophisticated scheme with many players and an international flavour and it was critical to have someone on the ground and that someone was you. It was a massive quantity of drugs.
120 No one suggests, nor do I find that you are the principal or financier of this scheme. We rarely see those people in the dock. But you were not some low level player, that is for sure. You were trusted to do whatever was required, including arranging storage, liaising with the shipping company, the broker, making payments, unearthing the concealed drug, moving the drug, cleaning, repackaging and then delivering onto the next player on these soils. The first of those was coming down from New South Wales. This was very serious, sophisticated, criminal conduct with Bitcoin, Wickr chats, secret meetings and codes. Also a massive quantity of pure drug. As I have said, your role was just critical.
121 The case law emphasises that those who engage in the importation or attempted importation of drugs into this country must, if caught, expect to suffer significant punishment. There are references in the prosecution written submissions to some of the cases and the principles to be distilled from them, see paragraph [13].
122 I see no need to descend to a review of the case law or the principles at play. I asked Mr Kelly and he made it plain that they are not seriously in dispute.
123 There are many statements in the case law as to the difficulty of detecting importation type offences and also the great social consequences that flow on from such crimes. Of the vital role of deterrence in cases such as this one. The cases suggest that stern punishment is to be expected and that sentences imposed by the courts must signal to would be future offenders that the potential financial rewards on offer, are neutralised by the risk of severe punishment, if apprehended.
124 It is an inherently serious offence to import drugs into this country at any level. You were prepared to take a risk and you did so for financial gain.
125 This was considered planned, serious criminal conduct, with a high level of premeditation. You had a lot of time to think about the ramifications of what you were doing. You no doubt were tempted by the money on offer and that money caused you to ignore or at least to shoulder the large risks you knew were in play. It was, as you know, a terrible decision.
126 Any person importing or attempting to import into this country drugs of this quantity or having a role in such a venture, must expect to receive a very substantial prison term. That is simply unavoidable. There is a maximum of life imprisonment for this crime and I must have regard to that maximum term.
127 The Criminal Code and the regulations made thereunder, set up various thresholds by way of quantity. Unlike the State regime, in the Federal sphere the code deals with pure quantity of the drug. It is no part of my task to concern myself with the relative harmfulness of a particular drug.
128 This was not a quantity of ice just tipping over into the commercial quantity threshold of 750 grams. Even for an importation at a low amount above that threshold, there is a maximum sentence of life imprisonment. An offence even at the lower levels is inherently serious.
129 Well here, you were attempting to import 122.8 kilograms of pure methylamphetamine worth a King’s ransom. So 163 times the commercial quantity. Now the offence does not require proof that the offender was aware of, or reckless as to the quantity of the drug imported. But here, given the materials before me, I have no doubt at all that throughout the charged period, you understood this transaction related to a very substantial quantity of the drug, given that you were coming to this country and all the steps undertaken by you in this country and before you arrived, and given the nature of the receptacle, its weight, the international flavour known to you and the nature of your reward, I am satisfied of that beyond reasonable doubt. You spoke of 150 kilograms and you were mentioning ice worth many millions of dollars.
130 Though by no means the only matter, quantity is always a matter of real importance. The case law spells out that often enough, it is the only point of distinction between different examples of commercial quantity importation or attempted importations. Though there are some importations or attempts that relate to larger quantities, this one was very large indeed. As I say, 163 times the commercial quantity threshold. So your attempted importation related to a massive amount of the drug and, as I have said, your role was absolutely vital.
131 There is no reduction in culpability here as there sometimes is.
132 One can always imagine more serious instances of a crime. But what I have to do is examine this one and deal with you for this crime, taking into account all the matters in aggravation and mitigation.
133 This is, in my view, a very serious example of an offence that carries a maximum of life imprisonment. As I have said, I must pay regard to that maximum penalty.
134 I must punish you, but I must do that justly and proportionately. Punishment is obviously important in this sort of case.
135 I must also denounce your conduct. That also is important.
136 I must also deter you. That concept known by us lawyers as specific deterrence, no doubt is relevant here. Unquestionably, if you had relevant prior criminal history or had been given chances by a court in the past, well of course it would be a weightier, if not far weightier, sentencing purpose. The fact is, you were a relatively young man with no criminal history. I must still deter you.
137 The same can be said for community protection. It must not be ignored, given the nature and gravity of this crime, but the weight given to that purpose would no doubt be greater if you had relevant past criminal offending.
138 There is, however, no basis to moderate the weight given to general deterrence. General deterrence is the need for the courts to deter others and that has a vital role to play in this sort of case.
139 This court must send a very clear message to any like-minded person thinking of being engaged in this sort of activity into the future. People really need to think long and hard before choosing to become involved in any way, in importing or attempting to import drugs into this country. They must understand that if detected importing or attempting to import a commercial quantity of a border controlled drug of this scale, that the consequences may well be life altering, as they most certainly will be in your case. We need like-minded people to rethink and to turn away from the commission of serious crimes, as you plainly should have.
140 Consistency of sentencing is an important consideration and I do pay regard to it. I have looked at the other cases involving sentencing for this type of offence to which I was referred. As I mentioned earlier, that exercise was of very limited use. None of the cases was on all fours. There were a host of differences, some in your favour, some not.
141 I have looked also at many other past sentences imposed. They are summarised in the Judicial College of Victoria Sentencing Manual at 7.1.
142 I have looked also at the Commonwealth sentencing database statistics for commercial quantity importation or attempted importation.
143 Statistics have inherent limitations, so too for that matter do other cases. Other sentences imposed on other offenders for other crimes, are not precedents. They do not dictate how I must deal with you. Every case is different and so too is every offender and every crime. Nor is there any such thing as one correct sentence.
144 What is clear to me is that most of the cases previously dealt with, can have had no regard to the formal Worboyes factors that I must pay regard to. That decision is quite a recent development, arising amidst the Covid pandemic. Even before the decision was published, many judges were already making a decent allowance for the additional weight to be attached to a guilty plea, amidst the global pandemic.
145 What I must do at the end of the day is pass an appropriate sentence for your very serious crime.
146 I have regard to the relevant matters that are set out in s.16A(2) of the Crimes Act (Commonwealth).
147 Prison is always a disposition of last resort, whether a court is exercising Federal or State powers. Clearly, prison is called for here. There is no debate about that.
148 I must only pass a proportionate sentence and one no more onerous than is required to achieve the purposes of sentencing.
149 I am not dealing with multiple offences and then considering the extent of cumulation and concurrency of sentence and considering totality of sentence in that regard.
150 I am dealing with a single charge. A single sentence.
151 Nonetheless of course, I must still be careful to ensure that my individual sentence is not one which will crush any hope of reformation and any reasonable expectation of a useful life after your release. I have taken a last look to ensure that this outcome is not a crushing one.
152 However, in this case, as your counsel correctly conceded, owing to the seriousness of the offending, there is no alternative but to impose a very substantial term of imprisonment upon you. I cannot ignore the maximum penalty. I cannot ignore the massive quantity of drugs involved here, or your critical role performed for reward. Nor can I ignore the matters in mitigation, but a crime of this magnitude simply demands a very sizeable prison term indeed. That is the unfortunate reality for you having committed it.
153 I will have you remain seated.
Sentence
154 On Charge 1, the only charge before me, that is attempting to import a commercial quantity of a border-controlled drug, you are convicted and sentenced to 18 ½ years' imprisonment. That sentence will commence today.
155 As there is only that one sentence, though probably a misnomer to even say this, there is a total effective sentence then of 18 ½ years' imprisonment.
Non Parole period
156 I must fix a non-parole period. I direct that you serve a non-parole period of 13 ½ years .
157 I am required to explain the nature and effect of this parole order. Though it was not raised in a mitigatory fashion, it is clear that you eventually will be deported from this country. I must not have regard to that fact in making these decisions as to whether to fix a non-parole period or the length of that period. I have to ignore that consideration and equally, under the statute, I am required to explain the nature of a parole order, as illusory as I am sure it would be in your case.
158 The purpose of such an order is to permit your possible release from prison, subject to certain conditions, at the expiry of the non-parole period. It follows then that you will serve a period of 13 ½ years in prison. A parole order may then be made. In the Federal sphere, that is in the hands of the Commonwealth Attorney-General and would be under the auspices I believe of the Federal Offenders Unit of the Commonwealth Attorney-General's Office (s.19AL of the Commonwealth Crimes Act 1914).
159 Such an order, if it is made, would involve a period of service in the community called the 'parole period' to complete the service of this sentence.
160 Now, as I have said, I cannot speculate about whether you will or you will not be paroled.
161 If a parole order is made, it would be subject to conditions which you would need to comply with, and an order such as that can be amended or revoked. I could not possibly know in 2022 what those conditions might be. They would no doubt be informed by your needs well over a decade from now. If you failed without excuse to fulfil these conditions on parole, you would then be ordered to serve the balance of the sentence up to 18 ½ years.
Section 17A
162 I am obliged to state the reasons for proceeding to impose a term of imprisonment. No other sentence was appropriate, given the nature and the gravity of your crime. This was explicitly conceded by your own counsel and my reasons to this point would surely explain why there was no other option other than to send you to prison.
Pre-sentence detention
163 I make a declaration pursuant to s.16E of the Crimes Act 1914, as to the time you have already served in custody. You get the benefit of that time of course. I declare that the period of 720 days has already been served by you pursuant to this sentence. That amount of pre-sentence detention is to be noted in the records of the court.
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164 I have told you that I have reduced your sentence because you have pleaded guilty. Had you run a trial and been convicted of this offence, I would have sent you to prison for 23 years.
165 I would have fixed a non-parole period of 18 years. That statement is to be noted in the records of the court as well. Let me just see if there are any other matters that I need to deal with. Mr Sonnet - - -
166 MR SONNET: No other matters, Your Honour.
167 HIS HONOUR: No other matters I need to deal with? And I have said everything - - -
168 MR SONNET: No, Your Honour.
169 HIS HONOUR: - - - I need to say in terms of the Commonwealth sentencing regime? I have fixed a commencement date, that is all I need to do?
170 MR SONNET: Yes, Your Honour.
171 HIS HONOUR: Yes all right. Mr Cunningham, any matters from you at all or not?
172 MR CUNNINGHAM: No matters from defence, Your Honour. Thank you. May it please the court.
173 HIS HONOUR: Now what's the state of play? You are obviously going to need to have discussions with your client and I'm just looking for the clock, where is it?
174 ASSOCIATE: There's only ten minutes remaining in the link - - -
175 MR CUNNINGHAM: I think given the circumstances, I'll book a specific time with my client.
176 HIS HONOUR: Yes, look we've got ten minutes on the link that we can give you, but that's obviously not going to be sufficient to talk about these matters and you will need to - anyway you're going to book a specific time for either you or counsel to speak to Mr Forcade and to discuss the ramifications of what has occurred here today and his rights in relation to it then.
177 MR CUNNINGHAM: Yes, Your Honour, I'll do that as soon as possible.
178 HIS HONOUR: Do you want to use the limited time that we have on the link, just for any other purpose at all with him or not?
179 MR CUNNINGHAM: I think I will, Your Honour, if the court's able to accommodate that.
180 HIS HONOUR: You just broke up a bit, are you saying you will or you won't?
181 MR CUNNINGHAM: Yes please, Your Honour, I will.
182 HIS HONOUR: Very well, so just let me see how we do that. All right, what I'll do is I'll stand down at the moment and that can be arranged. So Mr Forcade, that completes the matter then and you'll speak briefly to Mr Cunningham in a moment, that'll be in a private sort of setting I'm sure. I'll get off the Bench, so that can be organised, but otherwise of course you understand, he'll be organising a conference with you, so that he can discuss what's occurred here today and your rights in relation to it. Do you understand that?
183 OFFENDER: I do, Your Honour.
184 HIS HONOUR: Very well, all right. Well that completes the matter then, so adjourn then till 10.30 on Monday then. Thank you.
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