Director of Public Prosecutions (Cth) v Mizzi and Rodrigues
[2024] VCC 2021
•18 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01838
CR-21-01849
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN FRANCIS MIZZI and DONOVAN MARK RODRIGUES |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 October 2024 | |
DATE OF SENTENCE: | 18 December 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v Mizzi and Rodrigues | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2021 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Found guilty at trial – Import a commercial quantity of border control drugs – Significant quantity of drugs imported – No prior criminal history – Substantial and valuable quantity of drugs – 1700 times the commercial quantity of methamphetamine – 19 times the commercial quantity of heroin – Hierarchy of offending – Delay – Hardship on remand – Prospects of rehabilitation assessed as at least very good for both offenders – General deterrence.
LegislationCriminal Code (Cth) s 307.1(1); Bail Act 1977 s 30A; Crimes Act 1914 (Cth) Part 1B, ss 16A(1), 16A(2).
CasesCheung v The Queen (2001) 209 CLR 1; DPP v [Mason] (County Court, 14 December 2022, Judge Wraight); The Queen v Nguyen & Pham (2010) A Crim R 106; Nguyen & Phommalysack v The Queen (2011) 31 VR 673; Smith v The Queen (2017) 259 CLR 291; R v Nikodjevic [2004] VSCA 222; Wong v The Queen (2001) 207 CLR 584; Alicia Mason (a pseudonym) [2023] VSCA 75; Thompson v R [2023] NSWCCA 244; Geraghty v R [2023] NSWCCA 47; Lieu v The Queen [2016] VSCA 277.
Sentence:Imprisonment for a period of 32 years with a non parole period of 21 years (Mizzi); imprisonment for a period of 21 years with a non parole period of 14 years (Rodrigues).
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Ihle KC Mr M Keks | Commonwealth Director of Public Prosecutions |
| For Stephen Mizzi For Donovan Rodrigues | Mr G Steward (Trial) Mr H Rattray | Sarah Tricarico Lawyers Melasecca Zayler |
HIS HONOUR:
1Stephen Mizzi and Donovan Rodrigues, you have each been found guilty by a jury of one charge of import a commercial quantity of border control drugs contrary to s 307.1(1) of the Criminal Code (Cth) (CriminalCode), which carries a maximum penalty of imprisonment for life.
2You both come before the Court with no prior criminal history.
Background
3A document entitled Brief Overview of Facts for Sentence was tendered on the plea. In my opinion that document is consistent with the verdicts of the jury[1] and may be summarised as follows:
[1] Cheung v The Queen (2001) 209 CLR 1, [14], [162].
4Stephen Mizzi, you were born in 1982 and were aged 36 years at the time of offending.
5Donovan Rodrigues, you were born in 1981 and were aged 37 years at the time of offending.
6Your co-offender, Alicia Mason[2] was aged 37 years at the time of offending. On 14 December 2022, I sentenced Ms Mason for her role in the offending.[3] Ms Mason pleaded guilty to one charge of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Criminal Code, and one charge of contravening a conduct condition of bail, contrary to s 30A of the Bail Act 1977.
[2] A pseudonym.
[3] DPP v [Mason] (County Court, 14 December 2022, Judge Wraight).
7Ms Mason was sentenced to 11 years’ imprisonment, with a non parole period of 7 years. In the sentencing remarks, I indicated that but for the plea of guilty and Ms Mason’s undertaking to cooperate with the authorities, the head sentence would have been 29 years.
Circumstances of the offending
8Along with Ms Mason, each of you engaged in conduct which constituted the importation of a consignment containing about 1,280.6 kilograms of pure methamphetamine and about 29.5 kilograms of pure heroin. The consignment arrived in Melbourne by sea from Thailand on 30 March 2019.
9The offending arose in the course of each of you participating in an ongoing agreement with each other, Ms Mason and unknown others to import a number of consignments.
10Between December 2016 and April 2019, seven consignments were imported pursuant to that agreement. It is not alleged that you, Donovan Rodrigues, were involved in the importation of the first consignment. The contents of the first six consignments are unknown. The seventh consignment contained the border controlled drugs which are the subject of the charges the jury has found proven.
11The methodology used to import the consignments was consistently characterised by the use of a false consignee for the imported goods, the creation and use of false documents to facilitate the importation, and the collection and the delivery of the consignments to unknown locations (but for the final consignment the subject of the charges).
12Between 3 December 2016 and 15 October 2018, six consignments were imported into Australia by you Stephen Mizzi and Alicia Mason. You Donovan Rodrigues were involved in all of the importations save for the first one.
13The methodology employed was designed to conceal the true identity of the people responsible for the importation:
(a) Ms Mason used her existing (otherwise legitimate) businesses to communicate with the shipper, ECU;
(b) you Stephen Mizzi operated false email addresses, made or arranged payments to ECU, and created false documents on behalf of the ostensible consignees, concealing your involvement by using a Virtual Private Network and cryptocurrency; and
(c) you Donovan Rodrigues used your (otherwise legitimate) business, DCorp Pty Ltd (DCorp), to collect all but one of the consignments underbond and then delivered them to unauthorised destinations.
14For Synergy Consignments 3, 4 and 5 and the CPL Consignment, DCorp issued invoices to the ostensible consignee for services purportedly rendered in respect of those consignments. The invoices relating to the CPL Consignment and Synergy Consignment 4 were paid by unknown persons using cryptocurrency into a DCorp bank account controlled by you Donovan Rodrigues, totalling $11,456.83.
15Additionally, shortly after the deliveries of Synergy Consignments 2, 3 and 4, cash deposits totalling $112,750 were made into bank accounts held by you Donovan Rodrigues. That money was payment for your role in the importations.
16The charges relate to the importation of a consignment which arrived in Melbourne by sea on 30 March 2019 which was referred to in the trial as ‘Synergy Consignment 6’. It was shipped by BKK Sound System Co Ltd to Synergy Audio Visual Pty Ltd (Synergy) and was declared to contain six pallets, or 72 cartons, containing speakers, with a gross weight of 2,314.8 kilograms.
17Synergy is a real company which did not, in fact, order or import the consignments. It was used as a front consignee for Synergy Consignment 6, and five previous consignments which were imported pursuant to the ongoing agreement.
18Both prior to the arrival of Synergy Consignment 6, and after it had arrived in Australia on 30 March 2019, Ms Mason together with you Stephen Mizzi communicated by licit and illicit (i.e. concealed or encrypted) means. You and Ms Mason also met to discuss the consignment.
19Between 18 March 2019 and 4 April 2019, you Stephen Mizzi imported the border controlled drugs which were contained in Synergy Consignment 6, by:
(a) on 18 and 26 March 2019, using an email address falsely purporting to be associated with Synergy to send emails to Ms Mason, attaching shipping documentation regarding Synergy Consignment 6;
(b) on 29 March 2019, using the false Synergy email address to send an email to ECU, saying that you would send a remittance through shortly in respect of ECU’s invoice for its shipping fees;
(c) on about 30 March 2019, making, or arranging to be made, a cash deposit of $3,953.81 into a bank account held by ECU, in payment of ECU’s invoice;
(d) on 2 April 2019, using the false Synergy email address to send an email to ECU, attaching a false remittance advice in respect of the payment of ECU’s invoice, which was a remittance advice purporting to be from Synergy but had in fact been created by you;
(e) on 3 April 2019, using the false Synergy email address to send the delivery order to Ms Mason; and
(f) on 3 or 4 April 2019, providing Ms Mason with a mobile number which you had purchased and falsely subscribed in the name of Renato Trentin on 3 April 2019, being a number which Ms Mason subsequently provided to Cargoport as a contact number for the consignee.
20On 4 April 2019, you Donovan Rodrigues imported the border controlled drugs which were contained in Synergy Consignment 6, by:
(a) at 12:30pm on 4 April 2019, using internet banking to make a payment of $461.58 to Cargoport in respect of its fees regarding Synergy Consignment 6; and
(b) at 12:36pm on 4 April 2019, sending an email to Cargoport, purporting to be Ms Mason, attaching a receipt for the payment made regarding Synergy Consignment 6.
21On 5 April 2019, you Donovan Rodrigues hired a truck and attended Tasman Logistics in order to collect the consignment. You were unable to do so because the consignment had not been cleared. Intercepted communications revealed that, over the following days, Ms Mason and you Donovan Rodrigues, in consultation with you Stephen Mizzi, waited to see if the consignment would be cleared.
22However, on 5 April 2019, the consignment had been taken from Tasman Logistics to an Australian Border Force Examination Facility. It was examined by Border Force. It was found to contain methamphetamine and heroin concealed within speakers.
23Methamphetamine and heroin are each ‘border controlled drugs’. A commercial quantity of methamphetamine is 0.75 kilograms or more; a commercial quantity of heroin is 1.5 kilograms or more.
24The contents of the consignment were analysed. It was found to contain 1,596,123.5 grams (i.e.~1.6 tonnes) of methamphetamine with a purity of between 80.1 percent and 80.3 percent. It was also found to contain 37,184.6 grams (i.e. ~37kg) of heroin with a purity between 76.5 percent and 79.9 per cent.
25The total net weights of pure methamphetamine and heroin respectively were:
(a) methamphetamine—1,280,586.9 grams (about 1,280.6 kilograms); and
(b) heroin—29,450.1 grams (about 29.5 kilograms).
26The amount of methamphetamine in the consignment could generate 15,961,235 individual dosages. It is estimated that:
(a) the wholesale value (if sold per kilogram) was between $119,709,000 ($119.7 Million) and $191,534,400 ($191.5 Million), and
(b) the street level value (if sold per gram) was between $287,302,230 ($287.3 Million) and $638,449,400 ($638.4 Million).
27The amount of heroin in the consignment could generate 1,487,384 individual dosages. It is estimated that:
(a) the wholesale value (if sold per kilogram) was between $6,134,700 ($6.1 Million) and $7,250,100 ($7.3 Million), and
(b) the street level value (if sold per gram) was between $29,747,680 ($29.7 Million) and $59,495,360 ($59.4 Million).
28On 9 April 2019, the consignment (excluding the border controlled drugs) was repacked by the Australian Federal Police (AFP). A controlled operation was commenced, and the consignment was returned to Tasman Logistics and cleared. Cargoport advised Ms Mason that the consignment was available for collection.
29However, notwithstanding the earlier arrangements made to collect the consignment, including hiring the truck, and the fact that, on 9 April 2019, the DCorp invoice purportedly issued to Synergy in respect of Synergy Consignment 6 had been paid by way of a cash deposit of $8,689.57 into a bank account held by you Donovan Rodrigues, you and Ms Mason did not make any further attempt to collect the consignment from Tasman Logistics. Thereafter:
(a) after learning that the consignment had been held by the Australian Border Force, the three of you jointly decided to not collect it and to distance yourselves from the consignment;
(b) Ms Mason, in consultation with you both, sent emails to Cargoport, and the false Synergy email address operated by you Stephen Mizzi, and communicated with an undercover operative purporting to represent Tasman Logistics, in order to create the appearance of an innocent justification for the non-collection. You Donovan Rodrigues also sent one such email; and
(c) intercepted communications between Ms Mason and you Donovan Rodrigues revealed that you Stephen Mizzi were consulted in relation to your conduct in distancing yourselves from the consignment.
30On 7 June 2019, Ms Mason and you Donovan Rodrigues saw an AFP media release about the interception of the consignment. Your responses indicate that you both knew that the consignment with which you had dealt contained drugs. You Donovan Rodrigues referred to you Stephen Mizzi giving you and Ms Mason a ‘crap pay rise’, and Ms Mason said ‘that one was going to be more Donnie’, indicating an expectation of reward.
31On 13 June 2019, after receiving a call from police, Ms Mason and you Donovan Rodrigues discussed aspects of the false accounts you would give to avoid being charged and prosecuted, including inquiries to be made of you Stephen Mizzi as to what you could say.
32Alicia Mason gave evidence at trial to the effect that she jointly imported the consignments, including Synergy Consignment 6, with you Stephen Mizzi and (except for the first consignment), you Donovan Rodrigues. Amongst other things, she gave the following unchallenged evidence:
(a) she recruited you Donovan Rodrigues before the second consignment. She told you that Stephen Mizzi had asked her to do some deliveries for him, and that she thought they were ‘shifty’. You asked her if they were drugs, and she said she did not think so. You agreed and told her to let you know when they came in and you would do the delivery;
(b) after you delivered Synergy Consignment 2, you told Ms Mason that the people who met you had checked the cargo using scanners before you were allowed to leave;
(c) when Ms Mason had a shipment, she would tell you that you had to be available to deliver it, and you would make yourself available to do it. You picked them up and delivered them to another address, which was given to Ms Mason by you Stephen Mizzi;
(d) Ms Mason and you Donovan Rodrigues had ‘very vague discussions’ about what you both thought might be in the consignments and that they could contain drugs. Between Synergy Consignments 4 and 5, you and Ms Mason had a conversation ‘thinking that it might be drugs’;
(e) after Synergy Consignment 5, Ms Mason realised that ECU were asking questions about the underbond movements, and she told you Stephen Mizzi that you could not keep importing the consignments. You told her that it was too late, Synergy Consignment 6 was on the water, and she needed to do it because ‘they know who you are, they know who your family is’. During that conversation, Ms Mason asked if there were drugs in the consignment, and you told her not to ask questions;
(f) Ms Mason told you Donovan Rodrigues when Synergy Consignment 6 ‘came in’. She asked you to pay the Cargoport invoice and send the remittance to Cargoport so they knew the charges had been paid;
(g) you Donovan Rodrigues and Ms Mason rented a truck to pick up the consignment. You told Ms Mason what truck you needed in order to pick up the consignment;
(h) before the consignment came back to Tasman Logistics, you and Ms Mason decided to leave it. She discussed with both of you what to do if questions were asked about the consignment, and you all agreed to say that Synergy had not contacted you; and
(i) Ms Mason met you Stephen Mizzi some time later at your office, to give the Ciphr phone back to you. You talked about another shipment that was going to come in. You gave her an envelope to hold which contained a SIM card and a driver licence.
33Both of you and Ms Mason were arrested on 4 December 2019. Search warrants were executed at various locations. A number of computers and telecommunications devices were located. So too were documentary records, including real identification documents pertaining to other people, including some which had been used to facilitate the importations.
34Analysis of bank accounts controlled by you Stephen Mizzi revealed the following:
(a) between 1 July 2016 and 30 June 2019, the largest source of funds into your personal bank account was 39 cash deposits, none over $10,000, totalling $210,702;
(b) during the same period, 60 cash deposits, none over $10,000, totalling $317,025, were made into a bank account held by your business and controlled by you; and
(c) a comparison with your personal and business tax returns showed that the difference between the declared income and the total income actually received was approximately the same as the cash deposits.
35The cash deposits made into your personal and business accounts were the proceeds of, or payment for, your role in the importations.
36On 4 December 2019, you Stephen Mizzi participated in a record of interview with police. You denied any involvement in the offending. Your account was false.
37You Stephen Mizzi gave evidence in your trial. While you admitted telling some lies to police in your record of interview, you again denied any involvement in the offending. By its verdict, the jury rejected your exculpatory account beyond reasonable doubt.
38On 4 December 2019, you Donovan Rodrigues participated in a record of interview with police. You made some admissions, including that you paid the Cargoport invoice relating to Synergy Consignment 6 on 4 April 2019, but gave a false account of your involvement in the importation of that consignment and the earlier consignments.
39Your account contained lies which were told to conceal the true nature of your involvement and knowledge of the consignments, and specifically Synergy Consignment 6.
40Your account also contained lies as to the source of the cash deposits made into your bank accounts following your delivery of Synergy Consignments 2, 3 and 4.
41Between December 2020 and March 2021, while you Donovan Rodrigues were in custody and Ms Mason was on bail, you communicated with each other by telephone in breach of her bail. During the calls, you pressured Ms Mason to change those parts of her statement which inculpated you and encouraged her to give evidence which was different to that in her statement.
Nature and gravity of the offending
42The charge to which each of you have been found guilty by jury is inherently a very serious offence, which is reflected in the maximum penalty of life imprisonment.
43In the New South Wales decision of The Queen v Nguyen & Pham,[4] the Court of Criminal Appeal distilled from the authorities a number of propositions applicable to sentencing for drug importation offences. These propositions have been cited with approval by the Victorian Court of Appeal in Nguyen& Phommalysack v The Queen,[5] (Nguyen) where Maxwell P stated that the propositions substantially accord with the course of decisions in Victoria. Those propositions, which I have taken into account in assessing the gravity of your offending, are as follows:[6]
[4] (2010) 205 A Crim R 106 [72], (Johnson J, with whom MacFarland JA and R A Hulme J agreed).
[5] (2011) 31 VR 673 at [34].
[6] Propositions 12 and 13 are omitted as they concern offences related to attempted possession.
1.The criminality of an offender must 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.
2.Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court.
3.It is the criminality involved in the importation which must be identified. The fact that another person may be characterised as the ‘mastermind’ does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility.
4.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 has increased significance when the offender is aware of the amount of drugs imported.
5.Ordinarily, the amount of the drug involved in an importation is a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type. In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar.
6.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. (The fact that the offender needs money to pay off a debt does not necessarily affect culpability.)
7.The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.
8.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.
9.Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise the interests of general deterrence are not served.
10.The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given.
11.Where offenders are not young, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions.
44The quantity of drugs you both imported was substantial and valuable. Synergy Consignment 6 contained almost 1.6 tonnes of methamphetamine and just over 37 kilograms of heroin, in each case with a purity of approximately 80 percent. The methamphetamine was more than 1700 times the commercial quantity of methamphetamine while the heroin was more than 19 times the commercial quantity of heroin. Translated, in pure form you imported 1,280 kilograms of pure methamphetamine and 29.5 kilograms of pure heroin. While the street value of each drug combined at the time of investigation was estimated to be $697.8 million, what is perhaps more disturbing is the estimated individual doses that could be generated: almost 16 million doses of methamphetamine and almost 1.5 million doses of heroin. Plainly enough, the drugs that you imported had the potential of wreaking enormous harm on individuals, families and the wider community.
45Turning to the role each of you played in the importation.
Stephen Mizzi
46Stephen Mizzi, your offending relates to your conduct between 18 March 2019 and 4 April 2019. While by its verdict the jury has found that you were at least reckless that the substance in Synergy Consignment 6 was border controlled drugs, the prosecution submit that the Court can be satisfied that you in fact knew the substance was border controlled drugs. In support of this contention the prosecution points to the evidence that defines your role in the enterprise including:
(a) your role in the offending, much of which can be inferred from the conversations you had with Ms Mason;
(b) the fact that you received and conveyed documents that contained information as to the size and weight of the consignment;
(c) your efforts to conceal your involvement in the offending particularly after the consignment had been intercepted;
(d) your provision of shipping documentation and information to Ms Mason by covert means including the making or arranging payment of ECU’s fees, providing false remittent advice and falsely subscribing a mobile phone number;
(e) the fact that you were involved in the importation of seven consignments over two years using a similar methodology;
(f) your use of encrypted communications on Blackberry and Ciphr devices and the use of Virtual Private Networks;
(g) the fact that you were the link to the unknown criminal network where you obtained information in relation to the importations that was passed on to Ms Mason;
(h) that you recruited Ms Mason and ultimately threatened her in relation to Synergy Consignment 6 and that you spoke with Ms Mason in relation to proposed further importations; and
(i) your reward, which in relation to Synergy Consignment 6 is unknown, but can be inferred as noted at point 6 in Nguyen[7]. The prosecution submit that it must have been commensurate with the reward you had received from the previous consignments – on the evidence more than $500,000 by unexplained cash deposits over the period of the other importations.
[7] Ibid.
47Considering the matters above and having heard the whole of the evidence, I am satisfied beyond reasonable doubt that you Stephen Mizzi knew the substance in Synergy Consignment 6 contained a large quantity of border controlled drugs.
48The prosecution submit that on the evidence you were the most senior known participant in the importation and at the top of the hierarchy as between the three co-offenders, which I accept. Further, that you were the link to the criminal enterprise from which you received instructions that you passed on to Ms Mason. In all the circumstances in my view your moral culpability can only be assessed as very high.
Donovan Rodrigues
49Donovan Rodrigues, your offending relates to your conduct on 4 April 2019 as particularised in the indictment. By its verdict the jury has found that you were at least reckless that the substance in Synergy Consignment 6 was border controlled drugs. The prosecution concedes that the there is no evidence that you knew the precise type or amount of drugs in the consignment. That said, in order to establish that you were well aware of the substantial risk that the consignment contained drugs, the prosecution point to the conversations you had with Ms Mason, the circumstances of your involvement in delivering the previous consignments and the steps you and Ms Mason took after becoming aware of the interception of Synergy Consignment 6.
50It is plain that by its verdict, having heard and considered the whole of the evidence, the jury were satisfied that you were aware of a ‘real or significant chance’[8] that a substance was concealed within the consignment, and that you must have been aware of a ‘substantial risk’ that the substance imported was border controlled drugs.
[8] Smith v The Queen (2017) 259 CLR 291.
51Turning to your role, Mr Rattray who appeared on your behalf, submitted that your conduct should be limited to the two particulars in the indictment and therefore should be viewed as ‘trivial’ and at the ‘lowest conceivable end of the offence’. As such he takes issue with the prosecution contention that your guilt arose in the context of your participation over several years, in an ongoing agreement with Stephen Mizzi and Ms Mason, to import consignments that you knew at the very least from Synergy Consignment 2 onwards, contained something illegal or ‘shifty’, as evidenced from your ongoing conversations with Ms Mason around the time of the second consignment. By way of example, in Ms Mason’s evidence, when being questioned about conversations she had with you as to the content of the consignments the evidence is as follows:
Did you and Mr Rodrigues have any other discussions about the
consignments?---We had very vague discussions sometimes
about what we may think that might be in the containers.So what do you recall of those conversations?---That it could
contain drugs.And did you express that belief to Mr Rodrigues, that it might
contain drugs?---Yes, but it's - yes, we spoke about that,
that it could contain drugs, but we never knew or never knew exactly, it's just what we were thinking.52More particularly, the prosecution submit that your role and culpability must be assessed against the backdrop of the agreement including:
(a) that you had collected five previous consignments and attempted to collect Synergy Consignment 6;
(b) that you had delivered Synergy Consignments 2, 3, 4 and 5 to unknown locations;
(c) that after the second, third and fourth Synergy consignments, large cash deposits were made into your personal bank account;[9] and
(d) that you delivered several consignments to unknown locations and observed the precautions taken by the syndicate to avoid detection, including scanning the delivery.
[9] This evidence was subject to a pre-trial ruling, DPP(Cth) v Mizzi and Rodrigues (Ruling No 1), 20 February 2024.
53As to any reward, as noted above in relation to your co-offender Stephen Mizzi, it is able to be inferred that you were motivated by financial gain. Of the false DCorp invoices issued, three were paid into accounts controlled by you totalling $20,146 – Synergy Consignments 4 and 6 and the CPL consignment. As to Synergy Consignments 2, 3 and 4, additional cash deposits (above the invoiced amounts) totalling $112,750 were made into your bank accounts and I am satisfied that these deposits were related to your involvement in the identified earlier consignments.
54In a recorded conversation on 7 June 2019, after seeing the AFP media release, you and Ms Mason made comments suggesting that further reward was expected in relation to Synergy Consignment 6. You said ‘I think Stephen’s given us a crap pay rise’. Ms Mason later says ‘…I would have loved that money. That would have solved everything, yeah?’ and ‘that one was going to be more Donnie.’
55While the exact reward that you were to receive from your involvement in Synergy Consignment 6 is uncertain, having considered the circumstantial evidence led at trial, including the cash deposits made into your accounts in close proximity to your delivery of Synergy Consignment 2, 3 and 4, I am satisfied your reward was to be more than the amount you received in relation the false invoices.
Hierarchy
56As to the hierarchy of offending between the two of you and Ms Mason, the prosecution submits that the role you Stephen Mizzi played, was above that of Ms Mason which is plain on an analysis of the whole of the evidence and your specific role as I have detailed above. As to you Donovan Rodrigues, based on the evidence and the particulars of the indictment, your role is much more discrete as particularised and somewhat lower than that of Ms Mason. What is common between the three of you, is that you all imported the same amount of border controlled drugs.
Personal circumstances
Stephen Mizzi
57You were born in 1982, and you are currently 42.
58You were born in Footscray and raised in Deer Park. You are the middle brother in a sibship of three boys. Both of your parents were born in Malta and immigrated to Australia prior to the birth of your older brother. They remain married.
59You grew up in a stable and supportive family environment and enjoy the continued support of your parents and siblings. Your mother remained at home during your childhood and had a significant role in caring for you and your siblings before obtaining a position as a medical receptionist when you were in secondary school. Your father worked long hours as a Chief Financial Officer in various multinational companies.
60Your family did well financially, and you recall that many school holidays and weekends would be spent at the beach in Torquay. You also travelled overseas with your family. You were encouraged by your parents to socialise and participated in many sports, reporting that there were no particular restrictions placed on what you were able to do.
61Your parent’s relationship was very positive and you do not recall them having any significant arguments. You would attend weekly mass with your family and undertook the traditional rites of the Catholic Church. You were close with your brothers growing up however you have become more distant with your older brother since he relocated to the United Kingdom.
62You had a positive schooling experience and completed year 12 at Salesian College reporting you related well to your teachers and peers. You subsequently completed a Bachelor of Computer Science in 2002 and gained employment in the information technology sector through a biomedical company. At the age of 26 you went on to establish and run your own business in the information technology sector where you focused primarily on corporate clients.
63Tendered on the plea was a psychological report prepared by consultant psychologist Warren Simmons dated 8 October 2022, in which you report that despite sleep disturbances, your mental health has been stable throughout your life. Mr Simmons further details that you do not suffer from any significant psychiatric disturbance nor show evidence of any significant antisocial personality. Your personal relationships reflect this stability as you have been in three significant long term relationships. You were engaged to your last partner however you are no longer together. You detail that the cause of this breakdown was due to incompatibility rather than any significant dysfunction or interpersonal conflict.
64You were introduced to alcohol in high school and you drank occasionally on the weekends in social settings with friends. However, your consumption increased upon completing university. You submit that by the age of 21 you were consuming around one third of a bottle of whisky every night which escalated to a full bottle over the next 15 years. You were consequently given a ‘withdrawal pack’ containing Valium to avoid withdrawal complications when initially placed into custody.
65Your drug use followed your alcohol consumption and you commenced snorting cocaine in your late twenties, increasing to daily use. Your drug use reached its pinnacle between the ages of 35 and 37 where you report having between two or three lines a night. You acknowledge that at this time you were also drinking too much resulting in poor liver function and hypertension. Both of these conditions have improved since you have been in custody.
66Character evidence was relied on at trial attesting to your good nature, which was then formally tendered on the plea. A collection of friends a family, each of whom have known you for a considerable amount of time gave evidence at your trial, referencing you as a person of good character, one who is loyal and trustworthy. You have remained in contact which each of these witnesses throughout your period in custody.
67Your sister in law, whom you have known for approximately 30 years, further speaks to your character and reputation, detailing your integrity and hard working nature. She noted your commitment and loyalty to your friends and family. Additionally, she detailed the relationship you have with her children, your niece and nephew, stating she could rely on you to babysit or help with school drop offs. Moreover, she described the father figure relationship you had with your ex-partners daughter, continuing the relationship even after your relationship with her mother had ended. It is clear from these references that your family remains supportive of you.
Donovan Rodrigues
68You were born in 1981 and are now 43 years old.
69You are the oldest child of a sibship of three. Your parents immigrated to Australia from India in the late 1970’s. You have been supported by your family throughout the entirety of these proceedings.
70Following school, you undertook a mechanics apprenticeship. Since finishing school, you have maintained consistent work including as a mechanic for five years and then working as an employee at your father’s company DCorp Pty Ltd. You later became the sole director of the company.
71When you were remanded in December 2019, you endured onerous conditions whilst in custody, including being held in near total isolation which I will detail further below. Upon your release on bail in May 2023, you returned to full time work at DCorp, supervised by your father. Following the trial, you were remanded on 16 May 2024 and report that your conditions in custody have improved.
72A letter from your father, Dudley Rodrigues, was tendered on the plea and details the devastation and disruption this offending has caused your family. Your father notes that since the offending, the health of both your parents has declined and that they are no longer in a position to work for the family business. It is acknowledged that your parents were in attendance throughout the trial, and despite the impact the offending has had on their lives, remain supportive of you.
73Character evidence was relied on at trial attesting to your good nature, which was then formally tendered on the plea. The character evidence details your hardworking and trustworthy nature.
Sentencing considerations
74As Charges 1 and 2 are Commonwealth charges, I am required to sentence each of you in accordance with Part 1B of the Crimes Act1914 (Cth) (Crimes Act). Pursuant to s 16A(1) of the Crimes Act, the overarching principle is that any sentence I impose must be of ‘a severity appropriate in all the circumstances of the offence’. As part of that process, I must take into account the non-exhaustive list of matters pursuant to s 16A(2) of the Crimes Act that are relevant and known to the court.
75Turning first to matters in mitigation.
Procedural history and delay
76The offending concluded in April 2019. You were each arrested on 4 December 2019. Ms Mason made her respective statements on 18 May 2020 and 3 September 2020.
77In early 2023, pre-trial argument commenced before a different judge in this court. Following arguments in relation to prosecution disclosure, the matter was adjourned in order for further materials to be disclosed and provided to defence. As a result of the delay, bail was granted to you Stephen Mizzi on 24 May 2023 and to you Donovan Rodrigues on 25 May 2023. Some further delay was caused as a result of you Stephen Mizzi changing your barrister during the pre-trial period. Following pre-trial argument and the pre-recording of Ms Mason’s evidence, a jury was empanelled on 4 March 2024. The trial ran for some 11 weeks; the jury returning verdicts of guilty on 16 May 2024. A plea date was set however further delays followed as a result of funding issues in relation to you Stephen Mizzi. The plea was ultimately conducted on 10 October 2024, with time being granted to you Stephen Mizzi to file further submissions following the hearing. Ultimately, no further submissions were filed.
78On any view the delay has been lengthy and, apart from a change of counsel and funding concerns in relation to you Stephen Mizzi, the delay is not attributable to either of you. I take this delay into account in the sentencing discretion as this is a serious matter that has been hanging over your heads for a considerable period of time causing great uncertainty and anxiety to you both.[10]
[10] R v Nikodjevic [2004] VSCA 222, [22].
Hardship on remand
79A large proportion of the time you both have spent on remand was subject to Covid restrictions resulting in periods of lockdown and isolation, and limitations to support services and programs. I take these matters into account.
80Further, in relation to you Donovan Rodrigues, for reasons that have not been explained, from March 2021 until your release on bail on 25 May 2023 you were kept and transported under harsh conditions. During this time, you were held in a management unit in isolation and when transported to court, you were subject to handcuffs and leg chains. I take these matters into account.
Prospects of rehabilitation
81You both come before the court with no prior criminal history. You also both enjoy the ongoing support of your respective families. While in cases such as this good character is of less weight,[11] on the evidence it appears that the prospects of rehabilitation in relation to each of you can be assessed as at least very good.
[11] Nguyen& Phommalysack v The Queen (2011) 31 VR 673 at [34], proposition 10.
Other sentencing considerations
82As is well established, in cases of large drug importations, general deterrence is the paramount sentencing consideration. At the time of the interception, the methamphetamine you imported amounted to one of the largest importations of methamphetamine in Australia. The amount of heroin was also substantial. Offending such as yours is difficult to detect and the great social consequences that flow from the commission of such offending is significant.[12] As noted in Nguyen at propositions 8 and 9, the sentence to be imposed must signal to would be drug traffickers that the involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served.
[12] Wong v The Queen (2001) 207 CLR 584, [64] (Gaudron, Gummow and Hayne JJ).
Comparative cases
83The prosecution provided a table of comparative cases which I have taken into account. Ultimately Mr Ihle KC who appeared with Mr Keks on behalf of the Commonwealth Director of Public Prosecutions, submitted that the best comparator is the sentence of Ms Mason which was upheld following appellate review.[13] Ms Mason pleaded guilty and gave evidence at the trial pursuant to her undertaking. As such, while she falls in the middle of the hierarchy, her sentence was also subject to significant discounts together with other mitigating factors that are absent in relation to each of you.
[13] Alicia Mason (a pseudonym) [2023] VSCA 75.
84Of the table of cases provided by the prosecution it was submitted that the quantity of drugs imported is greater than any of the cited cases. Of those cases in terms of quantity, the closest is Thompson v R,[14] where the offender imported 1.11 tonnes of pure Cocaine. The Crown case at trial was that the offender participated in a single conspiracy which involved three separate attempts to import a border controlled drug into Australia. The first two attempts failed. On the third attempt, the offender and a co-conspirator, departed New Zealand on a yacht owned by the offender. They rendezvoused with a ‘mothership’ in international waters from which cocaine was transferred on board. Thompson was described as a ‘principle’ and was sentenced to life imprisonment with a non parole period of 22 years. His appeal against conviction and sentence was dismissed.
[14] [2023] NSWCCA 244.
85In Geraghty v R[15] the offender was a co-offender of Thompson and was also found guilty at trial. Geraghty was considered to be higher in the hierarchy than Thompson. His role was described as ‘paramount’ as he recruited the other co-conspirators and oversaw their roles in the operation. Geraghty had prior convictions for importing drugs. He was sentenced to life imprisonment with a non parole period of 25 years.
[15] [2023] NSWCCA 47.
86As noted, I have read and considered all of the comparative cases provided, however each case must turn on its own facts. As was observed in Lieu v The Queen:[16]
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so‑called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge.
[16] [2016] VSCA 277, [46] (Beach and Kaye JJA, with whom Redlich JA agreed)
Sentence
87Mr Mizzi, would you please stand.
88Stephen Mizzi, on Charge 1, importing a commercial quantity of border controlled drugs, you are convicted and sentenced to 32 years imprisonment. I direct that you serve 21 years before becoming eligible for parole.
89I declare that 1484 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
90Mr Rodrigues, would you please stand.
91Donovan Rodrigues, on Charge 2, importing a commercial quantity of border controlled drugs, you are convicted and sentenced to 21 years imprisonment. I direct that you serve 14 years before becoming eligible for parole.
92I declare that 1485 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
93Pursuant to s 16F of the Crimes Act, I am required to explain the purpose of fixing a non-parole period. The total effective sentence in relation to you Stephen Mizzi is 32 years imprisonment and in relation to you Donovan Rodrigues, 21 years imprisonment. I have directed that you Stephen Mizzi serve a minimum period of 21 years imprisonment before becoming eligible for parole, and you Donovan Rodrigues 14 years imprisonment before becoming eligible for parole. Accordingly, you will be required to serve a minimum period of imprisonment of not less than 21 years in relation to you Stephen Mizzi and 14 years in relation to you Donovan Rodrigues, and thereafter if you are released on parole, the balance of your sentence will be served in the community subject to the conditions of your parole. 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.
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