Director of Public Prosecutions (Cth) v Jackson

[2018] VCC 2141

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01261

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOE JACKSON

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	22-24 October and 30 November 2018
DATE OF SENTENCE:	13 December 2018
CASE MAY BE CITED AS:	DPP (Cth) v Jackson
MEDIUM NEUTRAL CITATION:	[2018] VCC 2141

REASONS FOR SENTENCE
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Subject:  SENTENCING

Catchwords:  Plea of guilty; attempt to import commercial quantity of         methylamphetamine; 125.6 kg pure (167.5 times commercial quantity); offender’s role active as trusted participant, but not instigator; “right hand man” to co-accused; now aged 66; no relevant prior offences

Legislation Cited:  Crimes Act 1914 (Cth), ss 16A(1) and (2); s 17A; s19AB

Cases Cited:DPP (Cth) v Thomas and Wu [2016] VSCA 237; Nguyen v   R; Phommalysack v R [2011] VSCA 32; DPP (Cth) v Brown - [2017] VSCA 162

Sentence:  14 years imprisonment; non-parole period of 9 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Dickie and Ms F. Holmes	Commonwealth Director of Public Prosecutions
For the Accused	Mr D. Gibson	Victoria Legal Aid

1Joe Jackson, you have pleaded guilty to a charge of attempting to import into Australia a commercial quantity of a border controlled drug, namely methylamphetamine. 

2The maximum penalty for this offence is life imprisonment and a fine of $1,350,000, or both.  Your sentence will not include a fine. Your sentence will be a substantial term of imprisonment with a non-parole period fixed.

3This charge is based on your participation in an attempted importation into Australia of a large quantity of methylamphetamine concealed in logs of wood imported in a container from Nigeria, and which arrived in Sydney in June 2016.  The intention was to truck the wood to Melbourne where the concealed drugs were to be removed from the logs.

4You were one of several people involved in the arrangements for the arrival and handling of this importation.  Charged with you are Mr Wedi Bembo, and
Mr Sadiki Sibomana.  They have maintained pleas of not guilty and their trial has been adjourned to March 2019.

5The prosecution alleges that Bembo was the leading participant amongst the three of your, directing you and others and keeping himself mostly removed from direct contact with the shipment.  It is alleged that you were acting as his “right hand man” or trusted assistant, and that Sibomana, although junior in age and role, was still an active participant over some days. 

6The concealment of drugs was detected by authorities after arrival in Sydney.  Once removed from the container and the logs, the substance was tested.  It was found that a total of more than 161 kilograms of a crystalline substance was concealed in 14 of the logs, which after analysis of its purity was estimated to contain about 125.6 kilograms of pure methylamphetamine.  After a substitution for the drug substance, the shipment was released with surveillance and monitoring of its delivery. 

7The named consignee of the shipment was a company called Evergreen Import and Export Pty Ltd (“Evergreen”).  This was a genuine business but, in fact, had no connection with this shipment.  The initial delivery address was to be in Mount Druitt, New South Wales, but it was redirected first to an address of Evergreen in Central Avenue, Sunshine, Victoria, and then to another address in Sunshine – a warehouse.  Ultimately the logs which were expected to contain the concealed drugs were moved to a bushland area near Anderson Road, Sunshine. Police posing as council workers took control of those logs before anyone actually tried to open them to remove the concealed substance.

8Details of the arrangements and your involvement are set out in the prosecution opening for your plea hearing, that is Exhibit 1.  I shall not repeat all of that detail, but only sufficient to enable the seriousness of the offence and your involvement to be assessed.

9The charge alleges that your offending occurred between 27 June and 20 July 2016. I sentence you on the basis that your offending was confined to that 24 day period.  However, it is clear that your involvement commenced much earlier, and also that your contact with your co-accused continued for a few days after 20 July, and was also related to the drug shipment.

10In 2015, there was a shipment of timber which followed a very similar path, and you were involved together with Bembo and Sibomana with arrangements and delivery for that.  It is not the subject of this charge, but is alleged by the prosecution to have been a trial run, and or alternatively, an attempt to build legitimacy for the shipment in June 2016. 

11For the shipment the subject of this charge, you made contact in April 2016 with the customs broker, Veney, with whom you had had communications for the 2015 shipment.  You had telephone contact using the same mobile phone number and false name that you had used the previous year, calling yourself “Mr Cam” or “Mr Luu”. There is in fact a man named Mr Cam Luu, but it was not him involved in these dealings.  This conduct, that is the telephone call to the customs broker in April 2016, is also not part of the 24 day period that is the subject of the charge against you.  However it reflects that you were involved and aware of the anticipated shipment well ahead of the actual offending period. In other words, your involvement was not a brief lapse in judgment nor a rash decision from which you had no time or opportunity to remove yourself.On 27 June 2016, using the same telephone number and false name of Cam or Cam Luu, you called the agent Veney for an update on the status of the consignment and asked for details by email.  You were told by Veney that he would email an invoice to you. That was to an email address which the prosecution alleges was mainly but not solely used by Mr Bembo.  It was a version of the named consignee's name.

12On 3 July 2017, you flew from Sydney to Melbourne.  Next day you again called Veney for an update and were told by Veney that it was waiting for quarantine and he would get back to you.  On 6 July 2017, you contacted a Mr Gill from a business called Timberland which had a warehouse in Sunshine not far from the Sunshine address of Evergreen. You had made contact with Mr Gill the previous year in relation to temporary storage of the previous shipment of timber.  Again using the name Cam, you contacted Gill about using the Timberland warehouse space the following week.  Following that, that is on 6 July, you returned to Sydney.Late on 17 July 2016, you flew again to Melbourne.  Next day you met Bembo who drove you to a café in Hoppers Crossing where, posing as Mr Cam you again rang Veney and discussed delivery arrangements anticipated for 20 July.  You were later picked up by Bembo from the café and taken back to his Williams Landing home.  The two of you later drove to Sunshine where you met Sibomana and attended with other men at the Akira Internet Café. At the time a computer was used to access the email address [email protected]. You and Bembo later attended the Carlton flat which you rented, driving in separate cars. 

13The following day you drove with Bembo and Sibomana to an address in Sunshine, behind which there was a large reserve abutting Kororoit Creek.  The three of you then drove past Market Road and very slowly passed the initial delivery address at Central Avenue. Then Sibomana was driven back to Sunshine, and Bembo drove with you around Sunshine including near the Central Avenue warehouse before returning to his car in a Sunshine car-park. 

14The prosecution case is that what the three of you had been doing was in anticipation of the delivery of the logs, and to look at a potential drop off point for the logs to be left and where they would subsequently have the drugs removed from them. 

15On 20 July 2016, voice messages were left on one of your mobile phone numbers and a text sent regarding delivery of the timber. Sibomana met the truck delivering the logs at Central Avenue, that is the Evergreen address, and redirected the driver to deliver them to Timberland which was nearby.  He then went to the Timberland warehouse following the truck, and instructed Mr Gill to separate pallets of larger and smaller logs.  Bembo drove past observing the delivery to Timberland. 

16After that delivery, you joined Bembo and Sibomana at a bushland area near 53 Anderson Road, Sunshine.  That was the area to which logs were later shifted.

17Just before 1 pm you used another mobile phone number to call Bembo who told you he thought you would be overseeing activities of Sibomana, and explained that there was immaturity in Sibomana which was why you were to wait with him. He chided you for not having your mobile phone turned on, saying that you had business.  Five minutes later in a separate conversation Bembo reminded you that the two of you needed to be on top of your game, indicating he expected updates from you to know everything was still going well.  At 1.01 pm you called Veney to confirm the cargo had been received and discussed a possible refund.  At about 2.26 pm you attended the car-park at Anderson Road and paid a man named Ahmed who had been hired to assist with transporting the logs from the Timberland warehouse to that area behind the Anderson Road property.

18About 15 minutes later you returned to near Timberland where you remained for about ten minutes before driving to Sunshine, parking and attending the Akira Internet Café. You were followed by Bembo who left shortly afterwards and returned to Anderson Road.  You wandered around Sunshine for half an hour, then drove back to Cairnlea where you had been staying. Bembo joined you and the two of you drove in separate cars in convoy to a nearby street where you left your car and entered Bembo’s and were driven around for 16 minutes.  At 5.50 pm you arranged a flight back to Sydney for later that night, and you did fly back to Sydney that night.  That was 20 July 2016, and the end of the alleged period of your offending.

19The following day you sent text messages to falsely confirm Sibomana's application for a loading job.  You spoke with Bembo about this on one of the phone numbers, and these arrangements are alleged to be attempts to provide an air of authenticity for Sibomana. There were further phone conversations you had with Bembo and Sibomana that day, and a call by you to a man named Omar to convey instructions. 

20The next day using a different telephone number you spoke with Bembo, and he told you to get rid of all the phones you had at home.  He also said he wished you were there with him in person so the two of you could speak openly.

21The following day Bembo called you and told you to give him a call on another number. He called you again almost an hour later when phones were discussed and you said you had put them somewhere else.  He said it was very very important for you to go ahead and they were waiting for the green light from you, and he reminded you not to talk much on that line.

22On 25 July you text Bembo that you could not register a SIM without full information, and you asked Bembo to send some LYCA SIM cards to your Sydney home address. 

23Those actions and that involvement by you after 20 July, show your ongoing contact and knowledge of what was occurring, but are not part of the offending because it is not within the dates that are alleged to constitute your offending.

24On 25 July 2016, posing as council officers, police attended the bushland where a portion of the logs had been placed.  It is alleged that the logs were there awaiting being opened for the drugs to be removed. It is likely that the offenders involved knew shortly after this that the logs at least were under observation.

25On 3 August 2016 you were arrested in Sydney.  Sibomana was also arrested that day.  Warrants executed at various premises including your Sydney home and Carlton flat led to police finding a large number of mobile phones and SIM cards, some still in their packaging.  Police also found documents relating to you, and notebooks including one later found to have the fingerprints of Bembo, containing notations about email addresses and other information and documents related to the importation.

26Bembo was arrested on 5 August 2016 and further searches were conducted.

27You were extradited to Melbourne from Sydney.  On 5 August 2016 you were interviewed by police, and although you made some admissions you then exercised your right to make no comment.  On 1 September 2016 you were further interviewed by federal police at your request.  In that interview you gave a number of explanations which in light of your plea of guilty now appear to have been false in a number of aspects.

28You have been in custody since your arrest on 3 August 2016, that is now 862 days, and that time will count towards your sentence.  A contested committal hearing involving you and your two co-accused was held on 21 and 22 June last year, at the end of which the three of you were committed for trial and you all pleaded not guilty.

29The initial directions hearing in this court was on 23 June last year, and a trial date was set for 22 October of this year with a six week estimate.  Several further directions hearings were held with other judges, and then before me commencing 5 July. It was not until the morning of the third day of the trial, although no jury had yet been empanelled, that you pleaded guilty having apparently indicated an intention to do so the previous day to the prosecution.

30For reasons having no connection with you or your decision to plead guilty, the trial of the other two men could not proceed, and has been adjourned to 4 March 2019, with a further pre-trial hearing listed for next Monday.

31Your personal history and circumstances have been outlined to me.  You are now aged 66 and appear to have led a mainly responsible and constructive life, not without some adversities, until your involvement with this offending.  

32You were born in a village in Ghana.  I am told that you had a stable and happy childhood with four siblings, until your father, a building contractor, died when you were aged 16.  The following year your maternal grandfather with whom the family had been living also died.  I am told that your father's death had significant financial as well as emotional impact on you, and that the loss of your grandfather was also of great emotional impact.

33Nevertheless, you were a good student, completed high school the following year, and then worked as an auditor in a government department for some years. 

34In January 1978 you came to Australia, and lived with your uncle who was the ambassador to Australia from Ghana.  Living in Canberra, you completed a Bachelor of Arts at the ANU in 1983, majoring in computer science.  You then commenced a steady pattern of employment taking you from programming, to database administration, to program management.  Some years of that employment was in the Commonwealth Public Service, and other periods at major computer companies.  You worked in the USA and Saudi Arabia from 1993 to 1995, then returned to Australia and moved between various further employers and industries.

35I am told that you married in 1987, having met your wife in 1979, she being the niece of the Nigerian ambassador.  You have two children.  Your son who is now aged 31, I am told he is severely autistic and requires full time care, and your wife is his carer which is difficult for her to manage alone.  You also have a daughter now aged 29 who works for a media organisation in Sydney.  I am told she was overseas at the time of your plea hearing.

36Your marriage was under pressure at various times, and I am told that you divorced and then remarried, and settled in Sydney in your own home.  In the early 2000s employment opportunities decreased for you, and between 2007 and 2009 you returned to Ghana with your wife and children, but that relocation did not achieve high enough paying jobs, so you returned to Australia in 2009.  By then you had sold your family home in Sydney and had to rent accommodation.

37Unfortunately on your return to Australia you were unable to obtain employment.  You went onto Commonwealth benefits, and although you have had some part time teaching work, you have otherwise remained on benefits and been under financial pressure since then.  Your marriage was again under pressure and you effectively separated.

38I am told that in 2014 you came to Melbourne to stay with a friend who is a pastor and lives in Cairnlea and who is a neighbour of Mr Bembo.  You then obtained Director of Housing accommodation in Carlton, and had started further studies in Victoria while returning frequently to Sydney to help your wife in the care of your son.

39As I said earlier, you were arrested on 3 August 2016 and extradited to Melbourne on 5 August, and have remained in custody ever since.  I am told that you were moved to Marngoneet Prison in October 2016, and since being there have been teaching other prisoners music and have become the musical billet for the remand centre.  You have also done a range of courses, probably all that were available to you, to try to keep busy.  I am told that you have been a model prisoner and although there is no independent evidence of that I have no reason not to believe it.

40Having outlined the factual circumstances of the offending and your personal circumstances, I now turn to the sentencing principles which relate to your case.

41Under s.16A(1) of the Crimes Act (Cth), the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.

42Under s.16A(2), the court must take into account a number of matters if relevant in the particular case, and I now turn to those that are relevant in your case.  In doing this I shall not specify sub-paragraphs or case names but will footnote those in the revised reasons for this decision.

43First I must take into account the nature and circumstance of the offence.[1] In doing this I must assess both the objective seriousness and the level of criminality of your role in this offence. 

[1] S 16A(2)(a)

44The maximum sentence for this charge is life imprisonment which is an indication of the objective seriousness of offences of this nature.  That is the most severe sentence for any crime in Australia.  The reasons for this include the widespread harm done within the community by the distribution and use of such drugs, the difficulty of detection of this type of offence, and the large sums of money to be made by those cynical enough and greedy enough to make a business from such trade.

45The fact that the drugs were intercepted and replaced does not decrease the seriousness. Indeed the maximum penalty is the same for an attempt, and the intention of you and others involved was to receive the shipment expecting it to contain the drugs.

46The quantity of drugs is highly relevant[2] and in this case was very large indeed.  The threshold for a commercial quantity of this drug is 750 grams so the amount to be imported was 167.5 times a commercial quantity, and that reflects its very high objective seriousness.   The prospective value was between $12 to 19 million if sold in bulk, and between $40 to 80 million if sold on the street. 

[2]Nguyen v R; Phommalysack v R [2011] VSCA 32;                

47The arrangements for the importation were relatively sophisticated with the use of names and addresses of a real company, that is Evergreen, and a real person, Mr Cam Luu, the changing of delivery addresses from New South Wales to Victoria, the setting up of the warehouse storage with Mr Gill of Timberland, and the use of multiple SIM cards and phone numbers and internet cafes to try to guard against calls and messages being traced.  The preceding importation in September 2015 also reflects considerable planning and preparedness to spend time and expense on an extra container shipment many months earlier. 

48Whilst not the largest ever importation into Australia nor the most sophisticated, in my view, objectively, this was a very serious instance of this offence.

49As to your role and culpability or criminality, it is not suggested that you planned or instigated the shipment, had an intended role in whatever the next stage of distribution was to be, nor that you stood to share in the profits from it.  However your role was clearly an active and important one.  It consisted of numerous acts over the 24 day charged period, with knowledge of the offence both before and after that period.  It was not a spontaneous or unplanned involvement.  You had more than a single function.  You conducted phone conversations with the customs agent, setting up the arrival details and did so using a false name, that of Cam Luu.  You made the contact and negotiated arrangements for hiring warehouse space for delivery of the timber in Sunshine with Mr Gill of Timberland, again using the name Cam.  You used several SIM cards or phone numbers when dealing with those businesses and also when communicating with Bembo. 

50You travelled to Melbourne from Sydney twice for active participation in the delivery arrangements.  You had multiple discussions with Bembo at various stages whether in cars or at your flat or by phone.  You attended at the bushland area where logs were to be taken.  You had contact with Sibomana, partly at least supervisory or keeping an eye on him because of his perceived immaturity.

51I accept the prosecution's characterisation of your role as substantial, as a trusted right hand man to Mr Bembo although still taking direction from him.

52I am told that your motive was financial desperation, and that you were to earn $1500 in total, none of which you ever received.  This is said to reflect your naivety through having no association with drug use or dealings, and being unaware of the enormity of the potential value of this shipment.

53I accept that your motive was not to create or sustain a lavish lifestyle and was based in your being in very difficult financial circumstances,.  However, I find it very hard to believe that you would participate to the extent that you did over the period that you did for only $1500.  By your plea of guilty you admit the elements of the offence including that you knew or were at least reckless as to whether the shipment contained a commercial quantity of drugs.  I accept that you did not know the actual quantity that was contained in the logs.  I accept that you had no previous drug associations, and to that extent may have been naive about the enormous profits to be made from such an importation.

54However, you are intelligent enough that you must have realised that this was an expensive and sophisticated arrangement with a lot of effort being put into disguising the actions of those involved, and that that would only be worthwhile if the end product was of significant value.  I find it hard to believe that you would have agreed to become involved and to act, including making the trips to Melbourne from Sydney even if you had other purposes to travel to Melbourne frequently, and spending many days involved as you were, if you were only to receive a total of $1500.  However there is too little information on which I could form a view of what higher amounts you may have stood to gain, or any other gain you may have had.  I therefore sentence you on the basis that you did this for monetary gain, but probably only a moderate amount compared with the level of risk and responsibility you were taking in such a large intended importation, and in circumstances where you were under financial strain as I have said with long term unemployment, no assets, and little means to support yourself, your wife or your dependent son.

55Taking all of these considerations into account, I assess your culpability as considerably above the lowest level for participation in offences of this nature. However it is not possible for me to place it at any particular level on the potential scale of involvement.  As I have said it was substantial and lasted over 24 days with knowledge preceding that period and for a short while afterwards.  Without knowing other roles than those allegedly taken by Mr Bembo and
Mr Sibomana, I can assess that your role was between that of the two of them, but I cannot assess the further ramifications of your role in light of the limited amount of information available. 

56As I have said, your role falls to be considered in what I find to be objectively a very serious instance of this offence, and therefore even if not anywhere near the most senior or high level, your culpability was still very great because of the seriousness of the offence. 

57I take into account that you pleaded guilty to this charge.[3] That was not formally until the third of the trial, so far from an early plea.  There had indeed been a disputed committal hearing, and many, many months of directions hearings.  Nevertheless your plea was still of real utilitarian value[4] and that I intend to reflect tangibly in your sentence.  Your plea of guilty has lessened the likely duration of the trial and you are entitled to some leniency for that.  I also note that through your lawyers you had indicated that certain matters would be admitted, and other evidentiary issues originally foreshadowed would not be pursued on your behalf.  That approach, even before you indicated a plea of guilty, was consistent with an intention to minimise use of court resources, and with a willingness to facilitate the course of justice, as was your ultimate decision through your plea of guilty to accept responsibility for your offending.

[3] S 16A(2)(g), Crimes Act 1914 (Cth)

[4]DPP v Thomas; DPP v Wu [2016] VSCA 237

58Despite the lateness of your plea and there being little else to indicate contrition, I also accept that the plea indicates some contrition or remorse on your part.  I accept that as one of three co-accused it would have been difficult to break ranks with the others by pleading guilty when they have not.  By doing that you will be serving a long prison sentence, as you know yours inevitably will be, when there is a possibility that the others might be found not guilty.  I accept that this indicates some genuine contrition[5] as well as acceptance of responsibility for your involvement.

[5] S 16A(2)(f)

59Next I must take into account your character, age, means and health[6].  I have already outlined the factual basis of these circumstances.  As I have said, you are now aged 66, and facing a long period of imprisonment.  I accept that that prospect must be burdensome for you, together with your knowledge that your wife in Sydney has been left to support your elder child who has special and burdensome needs, without your presence or financial support.

[6] S 16A(2)(m)

60You have no assets and when eventually released from prison will be of an age when the prospect of further employment is highly unlikely.  While you have no significant physical or mental health conditions, I accept that your personal circumstances are such that they are likely to weigh heavily on you, as they will have been doing for the last two years while you have been in custody.  Further, with no family members in Victoria, and physical as well as financial impediments to your immediate family, particularly your wife, travelling here, you are less likely than many others to receive visits, and that also inevitably makes the serving of imprisonment more onerous.  There is apparently one contact, your friend who lives in Cairnlea, who has been visiting you.

61There can be no doubt that the nature and seriousness of this offence requires general deterrence[7] to be the principle sentencing purpose, together with considerable weight given to adequate punishment[8] and community denunciation.  General deterrence is to send a message to other people tempted to engage in offending of this nature that it will attract stern punishment. 

[7]S 16A(2)(ja)

[8]S 16A(2)(k)

62Although you have some prior convictions, I do not regard any of them as of relevance in this sentence.  They were all many years ago, mostly relating to driving in the 1980s in the Australian Capital Territory, one for theft from a shop in 1991 for which a small fine was imposed, and another driving offence in New South Wales in the year 2000.  I sentence you on the basis that your overall history is of being a constructive member of the community.  You have no prior association with drug use or drug dealings, which makes your leap into offending of such a serious nature and at your age, difficult to understand, and particularly sad for its impact on you and your future. 

63In my view specific deterrence[9], that is the sentencing purpose of discouraging you from future offending, has little importance in deciding your sentence. 

[9]S 16A(2)(j)

64At your age rehabilitation[10] is not usually a significant sentencing purpose, but I accept that you have the capacity and intelligence to occupy yourself constructively while in custody, as you have apparently been doing so far, and it is to be hoped that you can turn your abilities to some constructive activities when you are eventually released.  You do not have the impediments of any substance addictions nor mental health disorders, so there is every prospect that on your release you can use what capacities you have to set up some constructive activity for the rest of your life.

[10] S 16A(2)(n)

65Finally, I must have regard to current sentencing practice for offences of this type.  In doing so must take into account Australia-wide practices to apply consistency in sentencing on Commonwealth offences of which this is one.  I have considered the range of cases to which I was referred by both prosecution and defence, and how they compare to the circumstances in your case.  No two cases are ever identical, but there are features that make the circumstances of yours either more or less serious, or invoke more or less blameworthiness in your role. 

66In the case of Brown[11] after trial, that is without a plea of guilty, and involving two separate shipments containing drugs, the first of which was some 4.5 times a commercial quantity and the second time 60 times a commercial quantity, the Court of Appeal found the original sentence manifestly inadequate.  In that case the offender played an essential and managerial role at the Australian end of the operation, including travelling to Mexico between shipments to discuss the next one, and it was found he was motivated solely by greed and not addiction or financial distress. The Court of Appeal re-sentenced him to 11 years'  imprisonment on the first importation and 16 on the second, the total effective sentence being 20 years' imprisonment with a non-parole period of 15 years. 

[11]DPP v Brown [2017] VSCA 162

67Your charge involves double the quantity of the drug making it objectively considerably more serious, however in contrast to Mr Brown,  you have pleaded guilty  and accepted responsibility.  Further, I do not find that you were motivated solely by greed in the sense that you were under financial distress, and I find your involvement, while well above the lowest level, was not as senior or managerial as that comparatively of Mr Brown.  I have considered the individual sentence on resentencing on Charge 2 in that case as of most relevance to your case.

68In the case of Jaafar[12] the offender had pleaded guilty early to conspiracy with others to import a commercial quantity of cocaine, the amount being 61 times a commercial quantity.  That was in a sophisticated concealment.  The New South Wales Court of Appeal reduced the head sentence for parity reasons to 17 and a half years, maintaining the non-parole period of 11 years despite calling it particularly generous.  In that case the offender had the longest involvement amongst the co-offenders, was found to not be subject to anybody else's direction although his involvement was to a degree below that of two co-offenders.    He was found to have known the quantity to be imported of the drug, and that feature as confirmed also in Brown's case, is to be regarded as increasing the seriousness of the offence.  That feature does not apply to you, nor for that matter did it to Mr Brown. 

[12]Jaafar v R [2017] NSWCCA 223

69Again, the quantity in your case makes yours objectively more serious than in Jaafar's case, but the role of that offender was higher and he knew the amount to be imported.  I have assessed your culpability as below his but that sentence is a relevant indication of range also.

70In the recent Victorian Court of Appeal decision in Blango,[13] an appeal against sentence was dismissed.  There were three charges in that case but one of them closest in similarity to your case, on which a sentence of 15 years' imprisonment was imposed for a charge of attempting to possess a commercial quantity of methylamphetamine because the authorities prevented an intended importation.  The offender had attempted to possess 33 consignments that were to arrive in close proximity to each other on different days.  The total of 55.76 kilograms of ice is said on the chart of comparable cases that was provided to me to indicate that it was 74 times the commercial quantity.

[13]Blango v The Queen [2018] VSCA 210

71The fact of multiple consignments, albeit each of smaller quantities increases the objective seriousness of Mr Blango's offending, and he also had a more serious criminal history in his early 30s.  He had pleaded guilty to those charges and they were rolled up charges, all features of more seriousness compared with yours.

72In the case of Alvarez[14],  the Queensland Court of Appeal found severe, but not outside a proper exercise of sentencing discretion, a sentence of 22 years' imprisonment with a non-parole period of 14 years and eight months.  That case involved a young man in his early 20s who was involved for more than a two year period, having conspired with others to import and also traffic a commercial quantity of cocaine.  The total amount is said to be 35 times the commercial quantity for that drug, that being considerably less a multiple of a commercial quantity than that in your case.  Mr Avarez had also pleaded guilty, although a number of facts were disputed requiring the judge to hear evidence and determine them.

[14]Alvarez v The Queen [2018] QCA 162

73In the case of Yuan,[15] over a period of three to four months the offender had organised importation of a container with 68.8 kilograms of pure methylamphetamine.  It is said that is a little under half of the amount in the present case (although I think it is a little over on the calculation unless my arithmetic is wrong).  That offender was characterised as having a pivotal role in that importation.  The original sentence of ten years imprisonment with a non-period of six years was found manifestly inadequate, and increased by the majority of judges in the New South Wales Court of Appeal to 15 years with a non-parole period of ten years, although the dissenting judge indicated 13 years with a non-parole period of eight and a half.

[15]R (Cth) v Yuan [2015] NSWCCA 198; (2015) 252 A Crim R 422

74I have also read and considered relevant passages from the other cases to which the prosecution referred me, or at least all of those that have occurred this decade.  I shall not repeat their details, but those cases were R v Schelvis &. Hildebrand,[16] Velez,[17] Peng,[18] Thi Kim Phung Nguyen,[19] Pham and Tang,[20] as well as Nguyen and Phommalysack.[21]

[16]R v Schelvis & Hildebrand [2016] QCA 294; (2016) 263 A Crim R 1

[17]Velez v R (Cth) [2015] NSWCCA 177

[18]DPP v Peng [2014] VSCA 128

[19]Thi Kim Phung Nguyen v The Queen [2012] VSCA 119

[20]Pham v The Queen; Tang v The Queen [2012] VSCA 101

[21]Nguyen v R; Phommalysack v R (2011) 31 VR 673; [2011] VSCA 32

75I have taken all of the cases I have mentioned into account, as relevant guidance, but not setting outer limits on sentencing range. 

76Under s.17A(1) of the Crimes Act, a court must not pass a sentence of imprisonment unless after having considered all other available sentences, the court is satisfied that no other sentence is appropriate in all the circumstances of the case. As already stated, and as was conceded by your counsel, the very serious nature of this offence means that no other sentence than imprisonment would be appropriate, and indeed a substantial term of imprisonment, and I have just outlined a number of other cases that give some indication of appropriate range.

77I will be directing that, as I find that no sentence other than imprisonment is appropriate, I will be directing pursuant to s.17A(2)(b) that these reasons be entered in court records.

78Would you stand up now please, Mr Jackson.

79Joe Jackson, on the charge of attempting to import a commercial quantity of methylamphetamine, you are convicted and sentenced to imprisonment for 14 years.  I fix a non-parole period of nine years. 

80I declare that 862 days of pre-sentence detention be reckoned served, and direct that that be entered in court records.  That period will be deducted administratively.  It means that approximately two years and four months is taken to have been served already, and that will be deducted from both the head sentence and the non-parole period.  It means on my calculations you have a little under a further six years and eight months before you can be considered for parole.

81It will be up to the Parole Board to decide if and when you are granted parole.  I have no reason to believe you would not, especially if you continue to conduct yourself as you have so far in custody.  In being granted parole, you will be released at that stage but the balance of the head sentence remains hanging over you, and were you to breach your parole you may be dealt with and required to serve more of the head sentence.  Those are decisions that are made by the Parole Board.

82As I have said, I formally direct pursuant to s.17A(2)(b) that these reasons be entered in court records. 

83Now you can take a seat while I check that I have covered –

84I have not dealt with the vexed question of whether I specify the discount for the plea of guilty.  I was urged to do so.   I have expressed on other occasions my hesitation when it is a purely Commonwealth matter in doing so, and whether that interferes or is inconsistent with the instinctive synthesis that must be the approach to such a sentence.  However,  I am prepared to state that had there not been a plea of guilty I would have imposed a head sentence of 17 years' imprisonment and a non-parole period of 12 and a half years.

85MR DICKIE:  As Your Honour pleases.

86HER HONOUR:  Now have I covered all matters I need to in terms of formal need.  There were no other orders sought - no ancillary orders.

87MR DICKIE:  No, Your Honour.

88HER HONOUR:  No.  Mr Gibson, your client's already been in custody for some time.  As I understand it health wise he suffers from high blood pressure, but that must already be known.

89MR GIBSON:  Yes.

90HER HONOUR:  I don't have any medical reports in front of me anyway to ‑ ‑ ‑

91MR GIBSON:  No.

92HER HONOUR:  ‑ ‑ ‑ so it does not need  a custody note, that must already be in the records.

93MR GIBSON:  It does, Your Honour, no, thank you.

94HER HONOUR:  All right.  Do you want to talk to your client before he is removed?

95MR GIBSON:  I will go down and see him, Your Honour.

96HER HONOUR:  You will go and see him downstairs.  All right, well, Mr Jackson, as I say it is a very substantial sentence but you now have the certainty of knowing what it is, and on my calculation it means that you have a little under six years and eight months more before you can be eligible for parole.  I will ask that you now be removed from the court room, your barrister will come and speak to you shortly.

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