CDirector of Public Prosecutions v Gill

[2024] VCC 17

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00293

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

AMRITPAL GILL

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2023
DATE OF SENTENCE:	24 January 2024
CASE MAY BE CITED AS:	CDPP v Gill
MEDIUM NEUTRAL CITATION:	[2024] VCC 17

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Import a commercial quantity of a border controlled drug; Deal with money worth $10,000 or more that is proceeds of crime

Legislation Cited:      Criminal Code 1999; Crimes Act 1914

Cases Cited:Nguyen and Phommalysack v R (2011) 31 VR 673

Sentence: Total effective sentence of 13 years and 6 months with a non-parole period of 8 years and 9 months – 1078 days reckoned as served - s6AAA: total effective sentence of 17 years' imprisonment with a minimum of 11 years before being eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms C. Hill	Commonwealth Director of Public Prosecutions
For the Offender	Mr P. Smallwood	Anthony Issacs Criminal Defence Lawyers

HER HONOUR:

1Amritpal Gill, you have pleaded guilty on indictment to single charges of import a commercial quantity of border-controlled drug and deal with money worth $10,000 or more that is the proceeds of crime.

2In sentencing you for these crimes, I must have regard to the maximum penalties for the offences that you have committed.  These maximum penalties reflect the seriousness with which Parliament regards each offence.  Those maximum penalties are as follows:

(a)   Import a commercial quantity of a border-controlled drug – life imprisonment or 7,500 penalty units;

(b)   Deal with money worth $10,000 or more that is proceeds of crime – 10 years' imprisonment or 600 penalty units.

3The circumstances of your offending are set out in the document entitled 'Prosecution Plea Opening' dated 1 December 2023. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.

The Offending

4I will not repeat the entire summary as it is a matter of record, but in brief terms, the offending that gives rise to these charges occurred between 11 December 2020 and 11 February 2021, a period of some 62 days overall.

5In brief compass, between 11 December 2020 and 11 January 2021, you imported six consignments of border-controlled drugs into Australia, specifically heroin and methamphetamine. You were assisted by Vishal Sharma and Gurpreet Kang who lived with you at an apartment in Riverside Quay.

6An investigation conducted by the Australian Federal Police revealed that you would arrange for packages containing border-controlled drugs to be delivered to various residential premises around metropolitan Melbourne. You would take   steps to distance yourself from the consignments. These steps included:

(a)   Using phones that had been subscribed in false names;

(b)   Using bank accounts and Australia Post accounts opened fraudulently using details of innocent third parties;

(c)   Using encrypted messaging applications;

(d)   Using false or altered identity documents; and

(e)   Arranging for packages of drugs to be sent to vacant rental properties or Australia Post parcel lockers.

7During the relevant times you lived at the Riverside Quay address and drove vehicle BDR131, both of which had been rented by Mr Kang.

8You also operated the telecommunications service number 0481 810 002, referred to as the ‘002’ number.  The ‘002’ number was subscribed from 26 September 2020 in the name of Jie Liang to an address in Lonsdale Street, Melbourne and was the number you used during the period of your offending.

9You would communicate with other persons known only as '22' and 'God of War' about various drug transactions and handling techniques. These persons remain unknown to the authorities. Some of these communications were outlined in the crown opening.

10As referred to earlier, to facilitate the importations of the border-controlled drugs into Australia, you used bank accounts and Australia Post parcel locker accounts opened using the details of innocent third parties who had previously had their identification documents stolen. Persons whose names and details were used to open accounts or have phones subscribed to them include Bronson Shane Martin, Seyat Abazov, Christopher Anderson and Isabella Franco. Personal details were changed and allowed you to subscribe to phone services, open bank accounts and Australia Post accounts in such names.

Charge 1 – Import a commercial quantity of a border-controlled drug

Consignment One

11On 11 December 2020, an air cargo consignment arrived in Australia from Thailand addressed to Navjinder Singh at 19A Turnstone Street, Doncaster East. This consignment had the 002 number attached as the contact number for the consignee.

12Messages were exchanged between you and both '22' and 'God of War' in relation to this consignment, as outlined in the crown opening, in which you advised of the delivery details for the consignment, were sent a copy of the shipping label and advised of the delivery date and you sent a screenshot of tracking information.

13Subsequent forensic analysis of this consignment indicated a pure weight of 980 grams of methamphetamine concealed within the consignment.

Consignment Two

14On 26 December 2020, an air cargo declared as 'Metal Foundries' arrived in Sydney from Mexico. The air waybill for the consignment had an address of 23 Sullivan Road, Cairnlea.

15You contacted International Delivery Services Australia (IDS) under the name 'Jagdeep'.  IDS is a logistic company that facilitated the arrival of the consignment into Australia. You contacted IDS requesting the consignment be delivered to 11 Westwood Drive, Deer Park, and left several messages about the consignment, providing the '002' number as a contact number. You also used an email address to communicate with IDS staff about the consignment.

16On 17 December 2020, an online reservation was made with Storage King Caroline Springs for a car space in the name of Nirmal Singh, with the ‘002’ number provided as the contact. The reservation was paid using a credit card in the name of Isabella Franco.

17You exchanged messages with 'God of War' in relation to the consignment, discussing various aspects such as the weight, collection and whether DHL had contacted you about the 'machines' and the '40 tundie inside'.

18On 4 January 2021, Australian Border Force inspected the consignment and located two wooden crates. White powder was concealed inside a total of 32 clear plastic packages from the first crate, and a further 32 packages from the second crate.

19Presumptive testing indicated the presence of methamphetamine and subsequent forensic analysis indicated a pure weight of 39.66 kilograms of methamphetamine concealed within the consignment.

20IDS notified you that the consignment had be seized by the Australian Federal Police, at which point you stopped contacting the IDS.

21Later that same day you sent messages to 'God of War' saying 'Bad news' and 'Sydney has been seized', to which 'God of War' responded:  'Oh yes brother, I know, delete the email account…change the phone that you contacted on'.

22An invoice from IDS, consignment address details, and visits to the email address provided were later found on a laptop located in your apartment.

Consignment Three

23On 3 January 2021, four consignments declared to be 'Small Boat for Decoration' arrived in Australia from Thailand. The consignment was in the name of Ajay Verma and was addressed to 20 Dorothy Street, Tullamarine.

24Australian Border Force inspected the consignments which contained wooden boat statues that had packages of a white powder concealed within them. Subsequent forensic analysis indicated that a total pure weight of 1638.6 grams of heroin was contained within the consignment.

25Between 3 December 2020 and 6 January 2021, you exchanged messages with 'God of War' and '22' regarding the consignment, including details of addresses to be used, updates on the arrival of the consignment, and collection of the consignment. These communications were also outlined in the crown opening.

Consignment Four

26On 11 January 2021, four air cargo consignments arrived in Australia from Thailand described as 'Silk' and addressed to Nirmal Singh at 96 Monash Street, Sunshine. At the relevant time this property was in fact listed for sale.

27The consignment was subsequently seized and analysed. It consisted of cardboard boxes, each of which did contain lengths of fabric. Approximately 1608.3 grams of pure heroin was concealed within the consignment.

28You exchanged messages with '22' relating to this consignment, including address details and tracking of the consignment.

29Additionally, you also exchanged messages with Mr Sharma regarding the consignment and manipulating the passport document of Nirmal Singh.

Consignment Five

30On 11 January 2021, four air cargo consignments arrived in Australia from Thailand, described as ‘'Clothes' and addressed to Nirmal Singh of 23 Koonalda Road, Gladstone Park, an address which had been advertised as available for rent.

31You exchanged messages with '22' regarding the consignment, including details of addresses and tracking numbers.

32Subsequent forensic analysis of the consignment indicated a total pure weight of 1576.6 grams of heroin.

Consignment Six

33Also on 11 January 2021, five air cargo consignments arrived in Australia from Thailand described as 'Clothes' and addressed to Nirmal Singh of 38 Calverton Road, Kealba.

34You exchanged messages with '22' regarding this consignment, including messages about addresses, tracking numbers and consignee details.

35Subsequent forensic analysis of this consignment indicated a total pure weight of 1658.5 grams of heroin.

36These details of six consignments form the basis of Charge 1, Import a commercial quantity of border-controlled drugs. This offence is alleged to have been committed jointly with '22' and 'God of War.'

Arrest and Search Warrant

37On 11 February 2021, AFP members arrested you at the front door of 7 Riverside Quay, Southbank. At the time of your arrest, you were holding an Apple iPhone which contained a SIM card for the ‘002’ number.

38Mr Sharma and Mr Kang were arrested later that day in Keilor Park.

39AFP members executed search warrants at Riverside Quay and Mr Kang’s car. They located numerous items during the execution of the warrants, including $46,374 in a bedroom said to be used by you. These facts form the basis of Charge 2, Deal with money worth $10,000 or more that is proceeds of crime.

The AFP also located quantities of methamphetamine and heroin; multiple mobile phones and SIM cards; and drug related paraphernalia, including multiple sets of scales, clip seal bags, aluminium foil with white powder residue, as well as computers with documents relevant to the police investigation.

Offence Gravity

40This is obviously extremely serious offending, particularly Charge 1.

41Whilst Mr Kang and Mr Sharma were also charged, it was for different offending and it is conceded that there is no application of the parity principle. They were not charged with importation.  As referred to earlier, neither '22' or 'God of War' have been identified.

42Whilst I have no specific information as to the impacts, your use of the identity of innocent third parties was undoubtedly at least an inconvenience for each of them as they had to 'tidy up' the aftermath of your wrongdoing using their personal details. The use of these identities also highlights the extent of preparatory work done in advance of your offending.

43The crown has also referred me to the decision by the Victorian Court of Appeal in Nguyen and Phommalysack v. R (2011) 31 VR 673 at 681-684, paragraphs 33 to 39 in which the following principles, where relevant to your case, can be distilled to include:

(a)   The criminality of an offender is to be assessed by consideration of the involvement of the offender in the steps taken to effect the importation. Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence.

(b)   Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and is of increased significance when the offender is aware of the amount of drugs imported.

(c)   As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit.

(d)   Importation offences are difficult to detect and there are great social consequences that follow an importation. This suggests that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.

(e)   The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.

(f)    Involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served.

(g)   The prior good character of a person involved in drug importation offences is generally to be given less weight as a mitigating factor than might otherwise be given.

44Heroin and methamphetamine are both border-controlled drugs. The commercial quantity of methamphetamine is 0.75 kilograms, whilst the commercial quantity of heroin is 1.5 kilograms.

45During the period of your involvement, you played an essential and trusted role in your joint commission in the sophisticated and professional importation of some 6482 grams pure weight of heroin and 40.64 kilograms pure weight of methamphetamine into Australia over six separate consignments. You organised consignee addresses and contact details, performed logistics, were in regular contact with '22' and 'God of War,' followed instructions given and kept them updated with relevant information. You were not a mere underling. The amount of methamphetamine imported was 54 times the commercial quantity for that drug and the amount of heroin imported was more than four times the commercial quantity.

46A search of your premises highlighted the sophistication in this offending in police locating items capable of supporting your offending and as to the incentive to you shown in police also locating cash in excess of $46,000 in your bedroom, the subject of Charge 2. This amount is just below the $50,000 threshold attached to a more serious charge under s400.5 (1) of the Criminal Code and is nearly half of the $100,000 threshold for the next level of seriousness provided for in s400.4 (1).

47Observationally, your moral culpability for both offences would appear to be high.

48The system used between you appears to have kept '22' and 'God of War' at arms- length with you being responsible for necessary tasks in Australia to avoid detection and ensure a successful importation. 

49Whilst it is submitted on your behalf that you did not know with precision the weight of the drugs involved, this is somewhat at odds with your role in Australia as outlined in the crown summary. You appear to be under constant communication and consultation with '22' and 'God of War'.

50At least in relation to consignment two, in the accepted crown opening, references include a communication between you  and 'God of War' referencing the '40 tundie inside' on a date in advance of the importation, and 'God of War' describing to you the weight of the consignment and the need for a transport company in what was 39.66 kilograms pure weight importation of methamphetamine.

51I accept that you were not in control of what was included in each consignment. Bearing in mind that there were six consignments which are the subject of Charge 1, I accept that you would have had a general awareness of the quantities being imported, even if this was not a position of exactness.

52The unlawful importation of border-controlled drugs into Australia represents grave offending. Your offending involved two border-controlled drugs, each capable in their individual potential to destroy the lives of those who come to use them – something that was well within your knowledge. Whilst a drug user, your offending also had its benefit to you in the financial reward offered, and, on your own report, in some part received.

Plea of Guilty

53I am obliged to take into account the stage at which you entered your pleas of guilty.

54You were committed for trial by way of straight hand-up brief. No witnesses were subject to cross-examination in committal proceedings.

55The first trial indictment was filed on 16 September 2022 and included seven charges of importing a commercial quantity of a border-controlled drug, one charge of importing a marketable quantity of border-controlled drug and one charge of dealing with money worth $10,000 or more that is the proceeds of crime.

56You made attempts to resolve the matter which, at that stage, were rejected. I accept that your attempts were genuine.

57A second trial indictment was filed on 25 May 2023 which included importing a marketable quantity of a border-controlled drug, five charges of importing a commercial quantity of a border-controlled drug and the dealing with the proceeds of crime charge. At this point in time, the importation charges were put on the basis of joint commission in accordance with s11.2A of the Criminal Code (Cth). This was a change to the way the prosecution had until that point in time put the charges against you. This section does not require proof that a person committed an act of participation in furtherance of the agreement that the offence be committed. The prosecution therefore did not have to prove that it was you personally who performed the conduct of importing the substances that informed the charges.

58A multiple week trial was scheduled to commence on 29 August 2023. You did not proceed with a sentence indication sought in advance of your trial date. A plea indictment was signed on 24 August 2023 with the two charges presently before this court, and you formally entered your pleas of guilty on 28 August 2023.

59In a formal sense, your plea of guilty was entered in close proximity to your trial.  However, I do accept that you had tried to resolve the matter at an earlier stage, were accepting of legal advice given as to any defence, and upon the adjustment to the crown case, the matter was able to resolve.  In this sense, your plea of guilty has occurred when it was in the best position to be able to do so.

60This decision has saved the court and the community the time and expense of somewhat lengthy proceedings given the need for legal argument about the crown’s intention to use coincidence evidence and the prospect of more than one trial.  Furthermore, I am told that the materials involved were voluminous, no witnesses were ultimately required to give evidence. It is conceded that your plea of guilty is of significant utilitarian value in those circumstances and I accept that this is so.

61Your plea has also come on the back of the court’s continued response to the COVID 19 pandemic and the backlog that event created, and in that sense has additional utilitarian value.

62Whilst remorse is somewhat harder to discern, I do accept that you have taken responsibility for your offending.

63These factors will all be taken into account in your favour.

Personal Circumstances

64You are now 35 years old, having been born in January 1989.

65You were raised in the Punjab region of India. You mother was a homemaker and is now retired, and your father was a government employee in the Police Department. Unfortunately, your father passed away in 2012.

66You remain a citizen of India.

67You have a sister some three to four years older than you who is married and living in the United States working as an optical engineer. I understand she is pregnant with her first child on the way.

68You describe your family life as average, indicating that there was no exposure to family violence, adult substance use, or child abuse. You do say that your father used to drink heavily after work and would then fall asleep but state that he was never violent.

69During your formative years, you state that you were sexually abused three times by different perpetrators, giving rise to problems with self-esteem and depression that have impacted you throughout your life.

70You attended the same primary and secondary school until Year 12. You were an average student who had friends, but you reportedly felt excluded. You and your friends were of Sikh faith and most of the students attending your school were of Hindu religion. You state that you 'felt different from them' and that you have been unable to 'open up to people'.

71In your school years you participated in sports such as cricket, volleyball and basketball.

72After finishing secondary school, you attended a university near your home, studying mechanical engineering. You state that your university was a welcoming environment and that they were happy years.

73It was in your fourth year of engineering studies that you began to use heroin. You started using drugs around 19 or 20 years of age and became fully addicted by the age of 21. You claim that your drug abuse was a form of self-medication to help you cope with your mental health issues.

74Your family eventually discovered your drug addiction. Your mother pressured you into marriage and coming to Australia. You were 24 years old when you married your 22-year-old wife. I understand that it was a marriage arranged between yours and your wife’s families.

75You came to Australia with your wife in approximately 2014. You worked three jobs upon arrival, working at a car wash during the day, pizza delivery man during the night, and as a courier driver.

76Your marriage was troubled, as you report that your wife was constantly disgruntled and would complain to her family about your absence. Your family would then berate you as a result. You describe that marriage as a contract and say that it was impossible to form any attachment to your wife.

77In December of 2015, you had a work-place accident which resulted in your arm being broken. Whilst the Transport Accident Commission paid for your medical bills, you were unaware that you could claim loss of earnings. You were living at home, unable to earn, and described your mood as low and spiralling downwards. It was at this point, in early 2016, and after a year of abstinence, that you returned to drug use, initially heroin, then methamphetamine.

78You state that you were using drugs in Australia for most of 2016. Your relationship with your wife deteriorated to the point where you were asked to return to India by your family by August of that year. You did so and during this time you lived with your parents and undertook a Naltrexone program. You returned to Australia in December of 2016.

79Throughout 2017 you worked in a fruit shop, as a pizza delivery driver and a courier. Your strained relationship with your wife continued.

80In February of 2018 your wife returned to India, living with your parents for a month whilst she undertook English class. During this time, you began using methamphetamine every now and then. You felt that your drug use was under control. You worked for Toll Transport during this period.

81In March of 2018 you were arrested and remanded for a month. Your wife filed for divorce.

82By 30 October 2018 you returned to custody and received a sentence of six months' imprisonment.

83By 2019 you were back in the community and using half a gram of heroin and a point of methylamphetamine a day.

84In March of 2019 you were detained at the Migration Detention Centre for six to eight weeks. You were eventually released after you obtained a protection visa on the basis that you could not return to India as you believed you were homosexual. You have since rethought your sexuality and believe that you are not a homosexual but rather were not sexually interested in your former wife.

85Your offending before this court is said to have occurred when you were using drugs and had received a telephone call from India from someone who wanted to arrange a contact in Australia. In the context of being unemployed and using drugs you agreed to be that contact. You instruct that you received between $20,000 to $30,000 for so doing.

Criminal History

86Your prior criminal history does form part of your personal circumstances.

87Your criminal record commences in the Broadmeadows Magistrates Court, already referenced by me,  on 30 October 2018 for a range of dishonesty, drug, bail, weapon and driving offences, as well as charges of hinder/resist police. Whilst this was your first court appearance, you were sentenced to an aggregate sentence of six months' imprisonment with 49 days reckoned as served. You were fined the amount of $1,500 and suspended from driving for three months for a range of driving related offences and for use of heroin.

88On 15 February 2019 you appeared at Broadmeadows Magistrates Court for charges of fail to remain stopped at a breath test station, state false name when requested, drive whilst authorisation suspended and theft of a motor vehicle. You were convicted and fined $2,000 and had your license cancelled and suspended for two years.

89Your most recent appearance was at Sunshine Magistrates Court on 4 August 2020 for charges of possess heroin, use heroin and commit indictable offence whilst on bail. You were convicted and fined $300 and forfeiture orders were made.

90You are not to be sentenced for your criminal history a second time.

91Your criminal history is relevant to the assessment of your moral culpability for this offending and the weight to attach in the sentencing task to the principles of specific deterrence, denunciation and protection of the community.

92It is also relevant to the assessment of your prospects for rehabilitation, to which I now turn.

Prospects for Rehabilitation

93You have been on remand since your arrest on 11 February 2021, a period now, including today, of some 1,078 days, in effect, almost three years.

94Given your remand from February of 2021, at least part of it was during the Corrections response to the COVID 19 pandemic where I accept, in general terms, that there was less access to personal visits, less freedom of movement and less access to rehabilitative, therapeutic and educational courses. This made the remand experience more difficult than it would otherwise be.  Prisoners were also required to quarantine upon reception into any prison. I take these matters into account. 

95Your prison experience is one in which you will be separated from family given your parents remain in India and your sister in America. Your family are aware of your offending and remain in contact. Your sister and her husband attended your plea hearing remotely, as indeed they attend today.

96Axiomatically this is the longest period you have spent in custody to date, and also axiomatically, any sentence I must impose upon you will include a lengthy further period in custody.  There has to be sanction in this actuality, as well as deterrence to others and in terms of your future decision making on your eventual release.

97You appear to be using your time in custody wisely.

98You are part of a methadone programme. More recently you have completed an 'Ice and Me' program and a Certificate II in kitchen operations. You have also commenced or completed certificates in Access to Vocational Pathways, Civil Construction Skill Program and Engineering. Certificates confirming completed programs have been tendered on your behalf.

99You have found employment in prison.

100You have also returned to your religion. On remand at the Metropolitan Remand Centre, you met a Sikh chaplain.

101You were moved to Fulham Correctional Centre in 2021. There was no Sikh chaplain, and it took you some nine to ten months to locate the chaplain you had met whilst housed at the remand centre.

102You have ensured that the contact details for the chaplain are now available at all Victorian prisons as well as a list of religious books. You are working to encourage Correctional services to recognise Sikh religious and cultural holidays.

103You completed a Peer Educator Training program and have been appointed a Peer Educator at Fulham Prison. A letter from Fulham Correctional Centre confirming this achievement has been tendered on your behalf.

104You are also an induction billet helping prisoners when they enter Fulham prison and assisting Indian prisoners who cannot speak English.

105You have taken an interest in art and your request to access an arts teacher has apparently resulted in arts and hobby classes to commence shortly.

106You have become an advocate for your own self-improvement and on behalf of others.  This represents a considerable and positive change to your thinking and approach to life and is indicative of remorse.

107A report from Pamela Matthews, forensic psychologist, dated 29 November 2023 has been tendered on your behalf.  This report sets out much of your personal history. In Ms Matthews' opinion your cognitive function is in the average to high average range.

108Perhaps unsurprisingly, you meet the criteria for opiate and stimulant use disorders.

109Linked to your experience of child and adolescent sexual abuse as part of three separate and discrete incidents, Ms Matthews is also of the opinion that you have a delayed emergence of post-traumatic stress disorder. You have low self-esteem and have tended to self-medicate through your use of illicit drugs.

110No application of the Verdins principles are sought on your behalf

111Ms Matthews sees benefit for you in accessing psychological treatment to manage your post-traumatic stress disorder and its symptoms and in continued assistance to maintain abstinence from drug use. 

112The reality for you is that you will, in all likelihood, be returned to India upon your release. Your parents still reside in the Punjab region. You told Ms Matthews that you want to return to India and to be an artist.  

113Your prospects for rehabilitation would appear to be good in the overall context at the present time and there is merit in an extended period of supported transition into the community.

Sentencing Submissions

114Your counsel properly concedes that the only available response for your offending is one of imprisonment, and for a significant period.

115Both counsel have referred me to cases said to be comparative.  I have had recourse to each decision to which I have been referred and they were of some assistance in the sentencing task.

Sentencing Principles

116The Federal sentencing regime is set out in Part 1B of the Crimes Act 1914. Under that regime the court must impose a sentence that is of a severity that is appropriate in all the circumstances. That requirement must obviously be read together with the need to ensure that a person is adequately punished for the offence.

117Section 16A(2) sets out a non-exhaustive list of factors that the court must take into account where they are relevant and known to the court.  Of particular relevance to your case are the nature and circumstances of the offence, general deterrence, specific deterrence and prospects of rehabilitation, contrition, guilty plea, the need for adequate punishment, and your character, antecedents, age, means and physical or mental condition.

118I have already been through my consideration of these factors.

119I also take into account the matters contained in Part IB of the Commonwealth Crimes Act and specifically the principles in s17A, and the factors listed in s16A of that Act.

120It is made clear by s17A that imprisonment is to be a sentence of last resort and only to be imposed where a court is satisfied that no other penalty is appropriate in the circumstances of the case.  I am so satisfied and direct that my reasons for so finding be entered into the records of the court.

121Whilst mindful of the principle of totality, I note that each offence to which you have pleaded guilty are discrete, albeit would also appear somewhat interrelated. Some cumulation is in the circumstances is warranted.

122Now counsel, this is the moment in time where I ensure that I have not made any factual errors or there is nothing that you wish to raise.

123MS HILL:  No, nothing from the prosecution.

124HER HONOUR:  Thank you, Ms Hill.

125MR SMALLWOOD:  Just one matter, Your Honour, although it's not going to have any bearing in relation to the sentence itself.  Your Honour, earlier in Your Honour's sentencing remarks referred to Mr Gill's father having died in 2012.  That comes from Ms Matthews' report, but Ms Matthews' report was wrong in that respect, Mr Gill's father is still alive and living in India.  So, Your Honour, later in Your Honour's sentencing remarks referred to Mr Gill's parents, plural, which is correct, but it's not clear why Ms Matthews said that in her report but that was a mistake.

126HER HONOUR:  Thank you for bringing that to my attention.  That would perhaps have come as quite a surprise to Mr Gill and his family when I stated that and I do apologise.

127MR SMALLWOOD:  Not at all, Your Honour.  It's something that is in Ms Matthews' report at p2 but Ms Matthews was wrong about that.

128HER HONOUR:  Thank you for bringing that to my attention. 

129Mr Gill, on Charge 1, the charge of import a commercial quantity of border- controlled drugs, you are convicted and sentenced to 13 years and three months' imprisonment. That sentence is to commence today. 

130On Charge 2, deal with money worth $10,000 or more that is the proceeds of crime, you are convicted and sentence to 12 months' imprisonment. That sentence is to commence nine months prior to the expiration of the sentence imposed on Charge 1. It is therefore my intention that the effect is to add three months to the sentence imposed on Charge 1 .

131The impact of my order is that the total effective sentence is therefore one of 13 years and six months' imprisonment.

132In fixing a non-parole period I have regard to the factors set out in s19KA of the Crimes Act (Cth) 1914 as to the purposes of parole. You are to serve 8 years and 9 months before being eligible for parole. If released on parole, you will serve the balance of your sentence in the community subject to any imposed conditions or any order for deportation. Any order for parole can be revoked if you are non-compliant.

133178 days, which does include today, are reckoned as having already been served.

134Whilst not obliged to do so, s6AAA of the Sentencing Act would require me to state the sentence that I would have imposed had you not pleaded guilty.  If not for your pleas of guilty, you would have been sentenced to what would be a total effective sentence of 17 years' imprisonment with a minimum of 11 years before being eligible for parole.

135Subject to hearing from the Commonwealth any further at a later stage, I believe this completes the matters for today, and Mr Smallwood, should you wish to do so, you can use the connection to confer with Mr Gill and family members.

136MR SMALLWOOD:  I'm grateful for that, Your Honour.  I heard Your Honour to say 178 days of pre-sentence detention - - - 

137HER HONOUR:  I did.

138MR SMALLWOOD:  As opposed to 1,078 days.

139HER HONOUR:  Thank you.  1,078 – I had better be very clear about that too, Mr Smallwood, so thank you for bringing that to my attention as well.  I do thank the parties for their assistance and at this I close the court until 10.30 tomorrow.

140MR SMALLWOOD:  As the court pleases.

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