CDirector of Public Prosecutions v Whitworth & Jafari
[2023] VCC 583
•14 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-01919 & CR-22-02245
| THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DECLAN WHITWORTH & MOHSEN JAFARI |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 March 2023 | |
DATE OF SENTENCE: | 14 April 2023 | |
CASE MAY BE CITED AS: | CDPP v WHITWORTH & JAFARI | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 583 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Commonwealth offending – Sentencing – Importation of border controlled drugs – More than 8 times commercial quantity – Guilty plea No prior convictions – Young offender – Good rehabilitation prospects - Family hardship – Current sentencing practices.
Legislation Cited: Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth).
Cases Cited:Totaan [2022] NSWCCA 75; Wong v The Queen (2001) 207 CLR 584; Director of Public Prosecutions (Cth) v MHK [2017] VSCA 157; Matamata v The Queen [2021] VSCA 253; R v Pham [2015] HCA 39; Klomfar v R [2019] NSWCCA 61; Ng v R (Cth) [2010] NSWCCA 232; DPP v Omar [2019] VSCA 188; Kemal v R [2022] NSWCCA 83
Sentence: Whitworth – imprisonment for 9 years; non-parole period 5 years.
Jafari - imprisonment for 9 years; non-parole period 5 years and 4 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms G McMaster | Commonwealth DPP |
| For D. Whitworth | Mr T Glass | Slink & Keating |
For Mr M Jafari Mr C Nikakis Haines & Polites
HIS HONOUR:
1Declan Whitworth and Mohsen Jafari, you have each pleaded guilty to one charge of importing a commercial quantity of a border controlled drug, namely methamphetamine, together with Ali Jafari, contrary to sub-section 307.1(1) of the Criminal Code (Cth) (‘the Code’). The charge is brought pursuant to s 11.2A of the Code on the basis of ‘joint commission’. In other words, that there was an agreement between the three of you to import the drugs.
2The maximum penalty for the offence is life imprisonment.
Factual background
3You are each to be sentenced on the facts disclosed in the ‘Summary of Prosecution Opening for Plea’ dated 15 March 2023. It is attached as Appendix ‘A’. The following summary is drawn from that Opening.
4Whitworth and Jafari are both citizens of the United Kingdom. Jafari also holds an Iranian passport.
5On 26 May 2022, Whitworth and Jafari attended the Heathrow International Airport in London to board a Qantas flight bound for Melbourne, via Perth. When they attended the airport, they were also accompanied by Jafari’s brother, Ali Jafari, who did not board the flight.
6Mohsen Jafari checked in one ‘Prada’ suitcase and one ‘New Classic’ suitcase, and Whitworth checked in an additional ‘Prada’ suitcase. All three suitcases were listed on Mohsen Jafari’s baggage receipt.
7Early in the evening on the 27 May 2022, Whitworth and Jafari landed at the Melbourne International Airport.
8Both offenders completed an Australian Incoming Passenger card (‘IPC’) to declare that they were not bringing any prohibited items into Australia. On their respective IPCs, Whitworth and Jafari stated that they had travelled to Australia for a holiday and intended to stay in Melbourne for 13 days. They each listed their intended address in Australia as that of an AirBnb property in Richmond, and gave the contact details for their Airbnb host as their contact details in Australia.
9They collected their suitcases and proceeded to the Australian Border Force (‘ABF’) Immigration Entry Control Point, where they were stopped by ABF officers for baggage examination. As part of this examination, the Prada suitcase carried by Jafari was swabbed by ABF officers and returned a presumptive positive result for methamphetamine. The suitcase was then X-rayed, and further anomalies were revealed.
10ABF officers then cut the lining of the suitcase, revealing a white crystalline substance concealed within the suitcase lining. The substance was tested and returned a presumptive positive result for methamphetamine. The New Classic suitcase carried by Jafari was also examined and found to contain anomalies.
11The Prada suitcase carried by Whitworth was similarly examined by ABF officers. The suitcase was X-rayed, swabbed, and cut open, revealing a white crystalline substance concealed within the lining. Presumptive testing of that substance also returned a positive result for methamphetamine.
12The matter was transferred to the Australian Federal Police (‘AFP’), who conveyed the offenders to the AFP Melbourne Operations Centre.
Forensic analysis of the suitcases
13AFP Forensics examiners later conducted full deconstructions of each of the three suitcases. Each suitcase was found to contain plastic inserts holding various quantities of a white crystalline substance:
a) In the Prada suitcase carried by Jafari, 2,812.2 grams of a substance containing methamphetamine with a purity of 79.9%;
b) In the New Classic suitcase carried by Jafari, 2,224.5 grams of a substance containing methamphetamine with a purity of 80.1%; and
c) In the Prada suitcase carried by Whitworth, 3,159.8 grams of a substance containing methamphetamine with a purity of 80.6%.
14The total pure weight of methamphetamine imported into Australia by the offenders in the three suitcases was 6,573.2 grams. A commercial quantity of methamphetamine is 750 grams.[1]
[1] Item 157 of Schedule 3 of the Criminal Code Regulations 2002 (Cth).
15Further investigations revealed:
a) Airbnb accommodation in Melbourne was booked and paid for by Mr Whitworth;
b) Mr Jafari’s phone showed him to have been in regular communication with his brother Ali between 16/4/22 and 26/5/22 concerning arrangements for the trip;
c) Mr Whitworth’s phone revealed that he had been in communication between September 2020 and February 2022 with ‘Alex’ concerning travel restrictions and vaccination requirements to countries including Australia;
d) The phone data also revealed communication about planning for this trip between 27 April 2022 and 24 May 2022 with ‘Askan’ who it is alleged was Ali Jafari in which there is a reference to another person making 55,000 for the same job. On one occasion, Ali Jafari tells Mr Whitworth not to let him down this time
16Both offenders participated in Records of Interview.
17Mr Whitworth told police that he had come to Australia on a holiday. He said that no-one else had been involved. In response to direct questioning about whether Ali Jafari gave him the suitcase, he repeatedly said ‘I can’t’ and explained that he was fearful for others back home.
18He denied knowing that his case contained a border controlled substance. He stated that Ali Jafari had told him he could make money from the trip but he could not say how much.
19Mohsen Jafari was also interviewed. He provided a great deal of assistance, made a number of admissions to police, and named his brother Ali as a co-offender. He said he was not threatened but felt emotional pressure to comply. He received 4,000 euros for travel expenses from Ali.
Commonwealth Sentencing
20Importation of border controlled drugs is a federal offence. Section 16A(1) of the Crimes Act 1914 (Cth.) provides that:
'In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence, or make an order, that is of a severity appropriate in all the circumstances of the offence.'
21In making this determination, s 16A(2) requires the Court to take into account a broad range of matters, including but not limited to:
a) The nature and circumstances of the offence;
f) The degree to which the person has shown contrition for the offence;
g) If the person has pleaded guilty to the charge;
(j) Specific deterrence;
(ja) General deterrence;
(k) Adequate punishment;
m) The character of the offender, including their mental and physical condition;
n) The offender’s prospects of rehabilitation; and
(p) The probable effect of the sentence on the offender’s family
22The legislature has not prescribed a hierarchy of sentencing considerations. All of the matters set out in sub-section (2) must be considered by the court to the extent that they are ‘known to the court’.[2]
Section 16A(2)(a) – Nature and Circumstances of the Offence
[2] Totaan [2022] NSWCCA 75 at [83].
23The offenders in this case have pleaded guilty to jointly importing in excess of 6.5 kg of pure methamphetamine. The ‘commercial quantity’ for this drug is 750 g. Therefore the case is concerned with importation of 8.76 times the commercial quantity.
24In Quah v The Queen,[3] the Victorian Court of Appeal referred to the quantity-based nature of the drug trafficking legislative regime and concluded that, ‘other things being equal, an offence of large commercial quantity trafficking which involves … a quantity representing multiples of the large commercial quantity threshold is more serious than an offence of commercial quantity trafficking which involves a quantity representing multiples of the commercial quantity threshold.[4]
[3] [2021] VSCA 164.
[4] [2021] VSCA 164 at [56].
25Although the court was there referring to Victorian law, the observation that the quantity of drugs that are trafficked or imported is an important consideration in an assessment of the seriousness of particular offending holds true for offending against the Criminal Code.
26The quantity imported in this case, being several times over the ‘commercial quantity’, makes this a significant example of what is a very serious offence, being one which attracts a maximum sentence of life imprisonment.
27However, it is important not to elevate the quantity of drugs that are imported beyond other salient considerations. In distinguishing between co-offenders in a case such as the present one, it is very important for a sentencing court to assess the level of each offender’s criminality by reference to their state of knowledge about the importation in which they were involved. This will often involve considering the ‘kind and size of reward given or promised to the offender for involvement in the importation’.[5]
[5] Wong v The Queen (2001) 207 CLR 584 at [69]-[70]
28It will also be important to ascertain the role played by each offender. The labelling of offenders as ‘couriers’ or ‘principals’ must not ‘obscure the assessment of what the offender did’.[6]
[6] R v Olbrich (1999) 199 CLR 270 at [19].
29Each of the co-offenders agreed with Ali Jafari to play the role of couriers. While they were not the principals of the drug importation business (it appears that was Ali Jafari), they played a critical role. That role was explained by the NSW Court of Appeal in the case of Gwardys v R in terms that are directly applicable to the present case:
The applicant’s criminality must be assessed by a consideration of his involvement in the steps which were taken to effect the importation. Importantly, it is his criminality which must be assessed. The fact that another person may be characterised as the “mastermind” does not mean that a person in the applicant’s position, who was responsible for effecting the actual importation into Australia, is properly described as having only a middle (or indeed, lower) level of responsibility. The relevant inquiry must centre upon what the applicant actually did.
Put simply, the applicant imported a significant quantity of a prohibited drug into Australia. In doing so, he helped to facilitate and promote large scale international drug trafficking. Even if it is accepted that his place in some notional hierarchy was low, that does not mean that his role was insignificant. On the contrary, without him performing the role that he did, the importation could not have been effected.[7]
[7] [2019] NSWCCA 62 at [42]-[43], citations omitted.
30The offenders had their travel to Australia financed. Ali Jafari paid for the suitcases. Mr Whitworth paid for the accommodation in Melbourne.
31It is not alleged that either offender was involved in sourcing the drugs; nor is it part of the case that either was to play a role in the distribution of the drugs in Australia.
s 16A(2)(g) - Plea of Guilty
32In applying s 16A(2)(g) of the Crimes Act, a court will have regard to the timing of the plea, the strength of the prosecution case and ‘whether the plea at a late stage was a recognition of the inevitable rather than evidence of contrition or a real willingness to facilitate the course of justice’.[8]
[8] SC [2008] NSWCCA 29 at [48].
33In this case the offenders entered early pleas of guilty. Their pleas are indicative of a preparedness to accept responsibility and are some evidence of remorse.[9]
[9] Crimes Act 1914, s 16A(2)(f).
34The Court of Appeal has repeatedly emphasised that a plea of guilty entered in the context of the ongoing disruptions caused by the COVID-19 pandemic is worthy of a pronounced amelioration of sentence.[10] I have assessed the utilitarian value of the guilty pleas in light of the above and mitigated the sentences accordingly.
[10] Worboyes v The Queen [2021] VSCA 169, [39].
Degree of co-operation with authorities – s 16A(2)(h)
35The section is concerned with past co-operation. S 16AC is concerned with prospective cooperation and is not relevant in this case.
36As noted, both offenders were interviewed by police on 28 May 2022, the day after they arrived in Australia.
37Mr Jafari told police through a Farsi interpreter that he wanted the police to help him and that he wanted to tell the truth. He told police that his brother Ali had asked him to bring the suitcases to Australia and he knew they contained drugs but was unaware of the quantity. On a previous occasion he had seen methamphetamine in bags at his brother’s house. His brother Ali told him that they were the drugs he would carry to Australia. He collected Mr Whitworth from Newcastle at his brother’s direction.
38Mr Jafari told police that the suitcases were packed at Ali Jafari’s house in Manchester. He placed his personal items in the suitcase in a plastic bag. After he had done that, Whitworth did the same.
39He had been offered the same ‘job’ by his brother on a previous occasion but refused. He was told by Ali that it was easy and safe and he would be paid good money. Although he was not threatened by Ali he felt emotional pressure to comply.
40The authorities were clearly assisted in investigating and prosecuting this case by the co-operation of Jafari. I have taken this into account among the mix of mitigating matters in relation to his sentence.
41Mr Whitworth was considerably less co-operative although I accept that this was due to his fear of the consequences of telling police all he knew including to his family in England.
42He told police that he and Jafari were on a one-month holiday to Australia. He only planned the trip with Jafari. No-one else was involved in planning the trip. He did not think it was unusual to be given free tickets and a suitcase to travel to Australia.
43He told police that he did not know why Ali Jafari was at the airport in London.
44He denied knowing there were drugs in his suitcase but accepted that Jafari ‘possibly’ knew. Jafari told him they could make money from the trip but he could not say how much.
45He told police that he thought that the suitcase contained fake passports.
46In relation to this, I accept the prosecution submission that by his plea of guilty to the s 11.2A offence, Mr Whitworth has admitted to entering into an agreement with Jafari and Ali Jafari to commit the offence of importing a commercial quantity of a border controlled drug. In so doing, he admits by his plea that he knew that the suitcase contained drugs and not passports.[11] I note that counsel for Whitworth did not take issue with this legal analysis.
[11] Crown submissions on Sentence, 8(i).
47Mr Whitworth’s counsel submitted that his client had been ‘guilted into performing the favour of travelling to Australia’.[12] He had been helped financially by Ali Jafari in the past. There is no doubt that Ali Jafari took advantage of Mr Whitworth’s vulnerability. This is sadly a common feature of drug importation cases.
[12] Plea Submissions (Whitworth) dated 29 March 2023 at [15].
Character, antecedents, cultural background, means and physical or mental condition of the offender – s 16A(2)(m)
48Mr Whitworth was born and raised in England and is 23 years old. He has been in a relationship with Lily Mahon since he was 16 and they have a 2 year old daughter, Athena, who the court was informed is ‘being assessed in relation to Autism Spectrum’.[13] They live in England. He is in regular video contact with them. He is also in contact with his mother.
[13] Plea Submissions (Whitworth) dated 29 March 2023 at [11].
49Mr Whitworth has his whole life ahead of him. It is well established that when sentencing youthful offenders such as him:
‘… rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)[14]
[14] R v Mills [1998] 4 VR 235 at 241.
50However, the law makes an exception to this general principle in respect of very serious criminal offences such as the importation of significant quantities of drugs. In such cases, even where the offender is young, general deterrence remains a highly significant sentencing consideration as does protection of the community.[15]
[15] The general principle is discussed in Director of Public Prosecutions (Cth) v MHK [2017] VSCA 157.
51The court was provided with some limited information about Mr Jafari. He is 33 years old. Ali Jafari is his older brother. Mr Jafari holds both Iranian and United Kingdom citizenships. He travelled to the UK as a refugee a number of years ago. He speaks poor English and was assisted by a Farsi interpreter for the hearing.
52Mr Jafari is married to a woman who lives in Iran. They do not have children.
53Neither offender has any prior convictions, and I accept that they are both of prior good character. This is relevant to both their prospects of rehabilitation and the need for specific deterrence to be achieved by the sentence imposed. However, as the NSW Court of Appeal in Gwardys v R explained:
… it has been recognised that good character is not an unusual characteristic of persons who are involved, at this level, in this type of offending. It is not uncommon for persons who physically import drugs to be specifically selected for that task because of their blameless background, in the hope that the authorities will pay less attention to the venture which is being undertaken. It follows that the prior good character of a person involved in a drug importation offence is generally given less weight as a mitigating factor on sentence.[16]
[16] [2019] NSWCCA 62 at [50]
Mental Health
54The court received a report concerning Mr Whitworth from Laura Fleming, forensic psychologist.[17] Ms Fleming assessed Mr Whitworth on 21 February 2023.
[17] Report of Laura Fleming dated 16 March 2023.
55Mr Whitworth told Ms Fleming that he was transporting passports in exchange for money. He maintained he was unaware that he had drugs in his suitcase.[18] He said that he was motivated by financial reasons ‘and to repay the debt he perceived to the Jafaris’.[19]
[18] Report of Laura Fleming dated 16 March 2023, [41], [44]
[19] Report of Laura Fleming dated 16 March 2023 [44].
56On testing, Mr Whitworth scored 38 on the Autism Spectrum Quotient ‘indicating an Autism diagnosis is likely which confirms his self-reported history’.[20] He has no history of drug use.
[20] Report of Laura Fleming dated 16 March 2023 [61].
57Ms Fleming diagnosed Mr Whitworth with a probable diagnosis of Generalised Anxiety Disorder and Autism Spectrum Disorder and assessed him as a low risk of recidivism, noting protective factors such as a lack of criminal or substance abuse history, remorse and shame in relation to his behaviour, and support available from his partner and family.
58Ms Fleming concluded that imprisonment would likely weigh more heavily on Mr Whitworth than a person without his conditions and that he will be vulnerable in custody.[21] This enlivens limb 5 of the Verdins[22] principles and I have moderated the sentence of Mr Whitworth accordingly.
[21] Report of Laura Fleming dated 16 March 2023, [86].
[22] (2007) 16 VR 269.
59I have also taken into account that each offender will spend time in custody separated from family and friends. Mr Jafari will also face a considerable cultural and language barrier. However, this consideration is not to be accorded significant weight given that ‘…in entering Australia for the very purpose of committing a serious offence and of doing so at the moment of entry, [they] had taken a calculated risk of suffering incarceration in a foreign prison’.[23]
[23] Zehavi [1998] VSCA 81 at [10].
60Both offenders will almost certainly be deported when their non-parole periods expire. The risk of deportation may be taken into account as a factor in sentencing which generally has a mitigatory effect.[24] For example, it may be relevant that a person who has lived in Australia will lose the opportunity to settle here permanently. However, in this case, deportation will result in the offenders being reunited with their families. It is therefore of little relevance in sentencing.
[24] Matamata v The Queen [2021] VSCA 253 at [28]-[31].
S 16A(2)(p) - Family hardship
61The court must have regard to the ‘probable effect that any sentence …would have on any of the [offender’s] family or dependants’. In contrast to the position at common law,[25] there is no requirement for ‘exceptional circumstances’ to be made out in the application of s 16A(2)(p).[26]
[25] Markovic [2010] VSCA 105.
[26] See Totaan [2022] NSWCCA 75 and Rogerson (No 2) [2022] VSCA 154 at [73].
62Mr Whitworth’s counsel submitted that his being sentenced to imprisonment would have a significant effect on his young partner and infant child. I accept that this will be the case and have mitigated his sentence accordingly.
63Mr Jafari’s counsel made a similar submission on behalf of his client but acknowledged that Mr Jafari had lived apart from his wife for a number of years and further separation would not have the impact that it will likely have on Mr Whitworth.
Current Sentencing Practices
64Although Part 1B of the Crimes Act does not expressly require a court to take into account current sentencing practices, the ‘implicit’ requirement to do so is imposed on this court by the common law.[27]
[27] R v Pham [2015] HCA 39 at [23] by reference to s 5(2)(b) of the Sentencing Act 1991 (Vic.).
65Consistency of sentencing, so that like cases are treated alike and different cases are treated differently, is an important sentencing principle. ‘Consistency’ in this regard is ‘not synonymous with numerical equivalence’ but means ‘consistency in the application of relevant legal principles’.[28] Because sentencing is fact-based, and all cases are different, a sentence imposed in another case ‘gives rise to no binding precedent’.[29]
[28] R v Pham [2015] HCA 39 at [28].
[29] Wong v The Queen (2001) 207 CLR 584 at [57]
66This court, when sentencing an offender for a federal offence, must have regard to ‘sentencing practices across the country’.[30] Comparable cases decided by the intermediate courts of appeal ‘provide the most useful guidance to a sentencing judge’ in this respect.[31]
[30] R v Pham [2015] HCA 39 at [18]
[31] R v Pham [2015] HCA 39 at [50].
67Four such cases involving importation of border controlled drugs contrary to s 307.1(1) of the Criminal Code were identified in the submissions of the prosecutor. Three were decided in the recent past.
68The first is Klomfar v R.[32] The offender and a co-offender, both of whom were Czech nationals, pleaded guilty to importing more than twice the commercial quantity of cocaine into Australia. The offender had limited criminal history, was remorseful to some extent and was assessed as being unlikely to re-offend. He was sentenced as a ‘courier’. A sentence of 7 years and 8 months with a non-parole period of 5 years was upheld on appeal.
[32] [2019] NSWCCA 61.
69In DPP v Omar,[33] the offender was a 34 year old Malaysian national with no prior convictions who pleaded guilty to importing 1.7 times the commercial quantity of heroin into Australia on board a flight on which he was working as a flight attendant. The hardship to his family of a custodial sentence was considerable but did not amount to exceptional circumstances.[34] The sentence of 5 years and 6 months with a non-parole period of 3 years was increased on appeal to 8 years with a non-parole period of 5 years. The Court of Appeal observed that the role of a courier in drug importations is ‘indispensable’.[35]
[33] [2019] VSCA 188.
[34] The case was decided before the case of Totaan [2022] NSWCCA 75.
[35] [2019] VSCA 188 at [9].
70In Ng v R (Cth),[36] a Singaporean citizen pleaded guilty to importing 1.6 times the commercial quantity of heroin into Australia. He was characterised as an importer but not the ‘mastermind’. He had limited criminal history and was 49 years old. His sentence of 11 years, 3 months with a non-parole period of 7 years and 3 months was left undisturbed on appeal.
[36] [2010] NSWCCA 232.
71The final case to which the court was referred was Kemal v R.[37] The offender pleaded guilty to importing nearly 3 times the commercial quantity of methamphetamine which was concealed in his suitcase. An appeal against his sentence of 7 years and 6 months with a non-parole period of 4 years was dismissed.
[37] [2022] NSWCCA 83.
Consideration
72While the offenders before the court must be sentenced in light of their own unique circumstances, I have taken the cases to which the court has been referred into account in imposing sentence. It is significant that the quantity of the drugs imported relative to the commercial quantity for methamphetamine in this case far exceeds the quantities imported in each of those four cases. The offenders here jointly imported 8.76 times the commercial quantity of this border controlled drug.
73By their pleas of guilty, each offender is taken to have known that they were importing border controlled drugs into Australia. Mr Jafari likely knew the nature of the drugs.
74Although they were not the masterminds of the operation, the offenders played a vital role in the importation. Without their willing involvement, the importation could not have occurred. The drugs they imported do untold damage to society as this court regularly sees. They were motivated by financial gain.
75In each case I therefore assess their moral culpability for the offending as high. I have imposed identical head sentences but have given Mr Whitworth a slightly lower non-parole period on account of his youth, mental health concerns and family circumstances.
76I can only pass a sentence of imprisonment if, having considered all other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case.[38] In all the circumstances, I have no alternative but to impose a term of imprisonment.
[38] Crimes Act 1914, s 17A.
77In fixing the non-parole period, I must pay regard to s 19AKA of the
Crimes Act 1914 (Cth) which sets out the purposes of parole. Those purposes are:(a) the protection of the community;
(b) the rehabilitation of the offender; and
(c) the reintegration of the offender into the community.
78Taking into account the maximum penalty, the pleas of guilty, the personal circumstances of each offender and the other matters in mitigation discussed above, I make the following orders:
79Mr Whitworth is sentenced to nine years’ imprisonment with a non-parole period of five years.
80Mr Jafari is sentenced to nine years’ imprisonment with a non-parole period of five years and four months.
81I am required to explain the impact of my Order to each offender.[39]
[39] Crimes Act 1914, S 16F(2)
82Mr Whitworth, the total effective sentence is nine years’ imprisonment. I have directed that you serve a minimum period of five years before becoming eligible for parole. Accordingly, you will be required to serve a minimum period of not less than five years less 321 days. If you are then released on parole, the balance of your sentence will be served in the community, subject to the conditions of your parole and subject to any order for your deportation. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison.
83Mr Jafari, the total effective sentence is nine years’ imprisonment. I have directed that you serve a minimum period of five years and four months before becoming eligible for parole. Accordingly, you will be required to serve a minimum period of not less than five years and four months less 321 days. If you are then released on parole, the balance of your sentence will be served in the community, subject to the conditions of your parole and subject to any order for your deportation. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison.
84Having come to the conclusion that I have no alternative but to impose a term of imprisonment, under s 17A(2)(b) of the Crimes Act 1914 (Cth), I direct that my reasons for so finding be entered in the records of the Court.
85Pursuant to s 18 of the Sentencing Act 1991,[40] I declare that both offenders have served 321 days in custody not including today which is to be reckoned as time served in respect of the sentences the Court imposes today.
[40] See also s 16E, Crimes Act 1914.
86Pursuant to s 6AAA of the Sentencing Act 1991, but for the pleas of guilty, both offenders would have been sentenced to 13 years’ imprisonment. Mr Whitworth’s non-parole period would have been 7 years and 10 months; Mr Jafari’s non-parole period would have been 8 years and 2 months.
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