Director of Public Prosecutions v Abo Abdo
[2024] VCC 1666
•25 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01707
CR-20-01709
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NASSER ABO ABDO LEONOR FAJARDO |
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JUDGE: | HIS HONOUR JUDGE O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 May, 18 July & 25 October 2024 | |
DATE OF SENTENCE: | 25 October 2024 | |
CASE MAY BE CITED AS: | DPP v Abo Abdo & Ors | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1666 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Conspiracy to import a total of 1,293.227 kg of pure methamphetamine and 15.794 kg of pure cocaine; Sentence Indication; Plea of guilty; Scale and sophistication of enterprise at highest level; Role of primary offender to act as a conduit between criminal organisations; Secondary offender providing administrative assistance and support; Whether allowance for abolition of emergency management days; Sentences substantially reduced by reason of pleas of guilty; Primacy of general deterrence in sentencing for serious drug offending.
Legislation Cited: Criminal Procedure Act 2009 (Vic); Criminal Code 1995 (Cth); Crimes
Amendment (Remissions of Sentences) Act 2021 (Cth); Crimes Act
1914 (Cth); Sentencing Act 1991 (Vic).
Cases Cited:Khalil & Valdes v Director of Public Prosecutions (Cth) [2022] VSCA 56; Worboyes v The Queen [2021] VSCA 169; R v Nguyen and Pham (2010) 205 A Crim R 106; DPP v Thomas & DPP v Wu [2016] 53 VR 546; 315 FLR 31; 262 A Crim R 198; VSCA 237; Tang v The Queen [2020] WASCA 194; DPP (Cth) v Wang [2019] 279 A Crim R 49; VSCA 250; R v Elfar & Golding [2017] QCA 170; R (Cth) v Yuan (2015) 252 A Crim R 422; [2015] NSWCCA 198; DPP (Cth) v Barbaro & Zirilli [2012] VSC 47; Tsang v DPP (Cth) (2011) 35 VR 240; (2011) 255 FLR 41; (2011) 219 A Crim R 304; [2011] VSCA 336; Geraghty v R [2023] NSWCCA 47; Mason (a pseudonym) v The King [2023] 376 FLR 98; VSCA 75; Elmir v R [2023] NSWCCA 260; Kuo v The Queen [2018] NSWCCA 270; Tran v The Queen [2021] VSCA 278; Tawfik & Saputra v The Queen (2021) 64 VR 561; [2021] VSCA 289.; DPP (Cth) v Brown (2017) 268 A Crim R 309; [2017] VSCA 162; R v Kassir [2020] NSWCCA 88; R v Schelvis & Hildebrand (2016) 263 A Crim R 1; [2016] QCA 294.
Sentence: Total effective sentence of 21 years’ imprisonment with non-parole period of 14 years (Nasser ABO ABDO)
Total effective sentence of 14 years’ imprisonment with non-parole period of 8 years and 6 months (Leonor FAJARDO)
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms K. Breckweg Ms S. Locke | Commonwealth Office of Public Prosecutions |
| For Offender Abo Abdo | Mr P. Tehan KC Mr G. Chisholm | James Dowsley & Associates |
| For Offender Fajardo | Mr L. Richter | Stary Norton Halphen |
HIS HONOUR:
1. Introduction
1Nasser Abo Abdo and Leonor Fajardo, on 9 February 2024 you both made applications pursuant to s 207 of the Criminal Procedure Act 2009 (Vic) for sentence indications. Those applications were granted and indications were given on 23 May 2024.
2You have both now each pleaded guilty to one charge of conspiring to import a commercial quantity of border controlled drugs, namely methamphetamine and cocaine, contrary to subsections 11.5(1) and 307.1(1) of the Criminal Code 1995 (Cth).
3You must now be sentenced for that offending.
2. Overview
4Between 18 October 2018 and 7 February 2019, both of you and a third party, Van Dung Le (known as Jay), conspired to import commercial quantities of methamphetamine and cocaine into Australia from the United States (‘US’) concealed within car audio capacitor banks. At the time you were both American citizens residing in Victoria in a de facto relationship. The main contact for the importation in the US was a Canadian man, Rolando Guajardo (known as Tio), and another person known as Carlos.
5Abo Abdo,[1] you arranged for the drugs to be imported into Australia in conjunction with your US contacts. In doing so you used your legitimate business history of importing and exporting containers of electric goods, including car audio capacitors, between the US and Australia to prevent the drug importation’s detection.
[1] For ease of reference I will refer to each of you by your surname alone.
6Fajardo, you assisted Abo Abdo with administrative aspects of the importation. Once the drugs had arrived in Australia it was anticipated that you, Abo Abdo, would be responsible for storing the drugs pending their sale to others. You were also to take possession of a quantity of the drugs as payment for your services.
7Le was the representative of a drug syndicate based in Sydney and agreed to assist the two of you in exchange for the opportunity to purchase the cocaine imported. He was to do so by renting a property where the drugs imported were to be stored and dismantled, renting the property where you both lived and planned the importation, providing you with encrypted communication devices, and generally assisting in facilitating the importation.
8In January 2019, three shipping containers were detected in a shipping consignment which was scheduled to leave California in January 2019, arriving in Melbourne in February. The containers were addressed to Robert Lienau (who was a representative of the US shipping company CSL Express Line), at a factory in Horne Street, Campbellfield which was leased by Abo Abdo. The containers purportedly contained “Audiobahn Pro-series 75 Car Audio Capacitor Banks”.
9Homeland Security Investigations (HSI) in the US intercepted the consignment and two of the three shipping containers were found to contain drugs concealed inside the car audio capacitor banks. 625.624 kilograms of pure methamphetamine was located in the second container. 667.603 kg of pure methamphetamine was located in the third container together with 15.794 kg of pure cocaine. Once intercepted, investigators removed the drugs and reloaded the containers to be shipped to Australia with authorities in Australia to then monitor the movement of the containers. However, police learned of your intention to depart Australia and travel to the Middle East and China on 9 February 2019. You were both arrested in Melbourne on 7 February 2019 before the consignment arrived in this country.
10The specifics of the role each of you played in this offending was summarised in a document prepared by the Crown – “Opening for the Purposes of Plea Hearing”. Much of what follows is based on that opening and extracts from the many covertly recorded conversations you had over the months October through to late December 2018.
11I will commence by describing the arrangements made leading to the importation and then summarise your conduct in the US where you made arrangements to load and send the containers to Australia whilst interacting with a US undercover law enforcement agent. Finally, I will set out the events leading to your arrests in Melbourne.
3. Events leading to the importation
12In February 2017, you both travelled to Australia to start a business importing car/home audio products from the US. You subsequently imported goods from the US on 11 occasions using business names such as “Alphasonik”, “Audiobahn”, “Birch Products”, and “BPI Australia”. Four of the importations were addressed to the Horne Street factory in Campbellfield. The contents of the consignments were listed as “car-capacitors”.
13From April 2018 until you were both arrested, you resided at a rental property on Donnybrook Road, Woodstock, which had been rented by Le. From October 2018 listening devices were installed at that property and your phones were lawfully intercepted. Those devices captured conversations discussing and planning the importation.
14In October 2018 both of you were heard discussing three containers that arrived in Australia on 17 October 2018 but had not yet been cleared by customs. You, Abo Abdo, said it was “genius” and “incredible” that the containers would be held up as it would create an import profile history for your business.
15On 24 October 2018 Le travelled from Sydney to the Woodstock property and met with you both. During that meeting the following was discussed:
(a) Le would provide Abo Abdo with a new encrypted device;
(b) Abo Abdo said there was a lot of “product” destined for Le;
(c) That according to Abo Abdo he had 15 containers on the water or already at port, and seven containers already in Melbourne that have cleared customs. He said that he had seven more that hit the water on Monday and four on the following Monday. Abo Abdo said the first three containers got through customs easily;
(d) He said “… The real product’s good and everything’s great. So, once I can get that phone, then I can communicate with Tio, Tio will communicate with you, boom and ready to roll”;
(e) Le said they were waiting for more “product” to come because “the quality of the product isn’t that great here at the moment”;
(f) Le was asked how they sell it on the streets in this country and he responded that they sell per gram and that it is probably $200 per gram, “but Coke is … $350”;
(g) Le asked Abo Abdo if he could give him and his partners an amount from the importation. Abo Abdo responded that he was not involved in the allocation of amounts, but that Guajardo said there is a nice allocation for Le and his partners;
(h) That according to Abo Abdo he had “2,000 coming that is uncooked, maybe 500 of the other stuff”;
(i) That the lease on the Pakenham property would be extended.
16The Pakenham property was to be used to deconstruct the car audio capacitor banks and extract the drugs once they were imported into Australia.
17On 25 October 2018 you, Abo Abdo, were recorded as telling Fajardo that “Jay” (Le) cannot wait to get his hands on the product and wants it now. You, Fajardo, responded “it’s almost here”. You, Abo Abdo, spoke of how generous Le had been and you, Fajardo, said he had to be because “they have to get their product which nobody else has in Australia”.
18On 26 October 2018 Abo Abdo, you were heard discussing “Audiobahn” badges which were to be placed on the consignment containing drugs to give the appearance that they contained car capacitors.
19On 27 and 28 October 2018 you both discussed the following:
(a) Not talking on the phone about “the business or money” and, if Guajardo asked her to, she must use the secure phone;
(b) How Le’s syndicate are the ones helping Abo Abdo to stay safe, because if he is safe, the merchandise is safe;
(c) Using Le to source a vehicle for them as they did not want to have anything connected in their name;
(d) Abo Abdo said it was $22 million in merchandise and he wanted to get it out quickly and did not want to wait three months with the merchandise under his name;
20On 30 October 2018 Le made arrangements to secure the rental of the Pakenham property for a further three months.
21On 3 November 2018 you were both recorded discussing encrypted messages that you had received, including the following matters:
(a) Abo Abdo told Fajardo that he was angry that no one was communicating with him, and that Le’s syndicate were asking when the product was coming and he did not know what to tell them;
(b) Le’s syndicate would need to contact “the captain” - who was the boss - to get instructions;
(c) Abo Abdo told Fajardo that he was done and did not want to be involved in the importation anymore, the deal was “fucked up”, and Carlos was not responding to him;
(d) The US syndicate members were “pussies”, he wasn’t going to communicate with any other clients, and was not going to speak to Le’s syndicate;
(e) Abo Abdo said he would go to Los Angeles (LA) for a few days and Fajardo could stay in Australia, he would have to do it with Guajardo;
(f) Abo Abdo said he would deal directly with Le - he would give it all to Le “delivered with the basket and everything” - he knew the process;
(g) Abo Abdo would put 1,800 pieces for them and either 200 or 500 pieces for himself;
(h) Abo Abdo was annoyed he had to fly to LA to speak to Carlos when Carlos doesn’t respond to him;
(i) He had spoken to Guajardo about the distribution of money - the buyers would pay cash or electronically transfer it.
22On 7 November 2018 you both discussed setting up a company and making it appear that you were running a real business.
23On 10 November 2018 you, Abo Abdo told Fajardo that if the cocaine has a stamp on it that determines the quality and origin. You referred to a text conversation you had had with Tio who told you he needed to speak to a senior member of Le’s syndicate – “the captain”. There was a discussion about the fact that the market was dry and that the price was approximately $100,000.
24Abo Abdo, you also said Le and his syndicate were helping you in Australia, that they followed protocol and were loyal. You then discussed avoiding law enforcement, renewing the Woodstock lease, not leaving stuff in the house, and how you were not the one involved in the selling.
25On 12 November 2018 both of you were heard discussing the following at the Woodstock property:
(a) Abo Abdo told Fajardo that if anything happened with police she would be implicated as it would be assumed she was involved and she needed to make a decision about what she wanted to do - there were a number of options;
(i)They could stay where they were;
(ii)They could find an apartment for Fajardo and they would stop communicating until Abo Abdo finished what he needed to do; or
(iii)Fajardo could return to the US;
(b) Abo Abdo said that what he was doing was big - it would take a month maybe longer and he was committed to doing it;
(c) Ado Abdo made enquiries about a shelf company to establish a corporation name that included an ABN number and an established history - he would be importing electronic goods. He had been advised of four business names he could acquire.
26On 13 November 2018 you both were heard discussing shipping containers. You, Abo Abdo, read a message to Fajardo that said they still needed to get in contact with the people for him to deliver it and the recipients will hand over a big sum of “paper”- $2.8 million. You, Fajardo, asked if the money would be delivered to Woodstock.
27On 14 November 2018 you were both heard discussing the following:
(a) If Abo Abdo found a way for it to get to Australia, he and Fajardo would get 160 of the 320 pieces and they would make $6 million; and
(b) Abo Abdo said they were already committed to that other “shit”, and they had been working on it for 10 months and it would be unfair to tell them to “fuck off”.
28On 15 November 2018 you, Abo Abdo, were heard to tell Fajardo at the Woodstock property “I go to Los Angeles or we go for… a few days… get those containers out and then… that’s it”.
29On 17 November 2018 you were both heard discussing the concealment of cash at the property.
30On 18 November 2018 you, Abo Abdo read a message from Tio to Fajardo that said the system they follow is very good and that “… the first – two - containers are ready… ”. You discussed sending a response to Carlos.
31On 23 November 2018 Le, along with an associate, Vu, visited the Woodstock property and provided an encrypted communication device to you both. Vu provided instructions as to its use. You, Abo Abdo, referred to being in touch with Guajardo and that things were on hold from his side at the moment. He said everything was good to go but they were being cautious. He said he did not know the reason for the delay but that his job was to “… Just get the stuff there and … [that they’ve] got everything on hold”.
32You also discussed the following:
(a) Abo Abdo told Le he would need to return to the US in the next 10 days for about 7 days to oversee the importation and they should have done it by then;
(b) Le spoke about the risks associated with being hands-on with a large quantity of product namely that the longer it’s held onto, the more likely wrong decisions will be made and there is a greater risk of detection by police. He referred to “2,000 kays” and “2,000 pieces”. He stated “Instead of sitting on … 2,000 kays and you know it’s… whereas 2,000 pieces… you know? That’s why we come and push our side to fix whatever the problem is and sort it out with the captain…”;[2]
(c) You discussed renewing the lease on the Woodstock property. Le said he would have to let the captain and the old man know as well because the Pakenham property had only two months remaining on the lease. Abo Abdo said the container of interest for Le should arrive in about 60 days and the reconstruction at Pakenham will take some time and “that’s where we plan to do it”;
(d) You discussed the need to extend the lease further and that Abo Abdo had purchased some security cameras from Bunnings;
(e) Abo Abdo said about 2,000 units would be coming to Australia;
(f) They discussed importing other merchandise like tents, electronic items and air-conditioners;
(g) Abo Abdo discussed money laundering through businesses and electronic cash transfers with Le. You also discussed percentage prices and processes. Abo Abdo said he would be looking to move a couple of million dollars at a time and Le stated that it would go through multiple businesses.
[2] The Crown allege that the reference to 2,000 kays is a reference to the nearly 2,000 kgs of drugs intercepted in the US in January 2019.
33On 29 November 2018 you, Abo Abdo told Fajardo that Carlos was trying to corner you about the product and was “fucking him around”. You both discussed going overseas for about a week to figure it out. You, Abo Abdo said that you were going to send the product so it arrived before Christmas when the ports will be running behind and “it will slip right by undetected” whereas in January the ports will be less busy and will be more careful.
34On 1 December 2018, you Fajardo were heard speaking with Guajardo who stated that he wanted to get in touch with the “mechanic”, meaning Abo Abdo. You told him that the mechanic would call him in 10 minutes to tell him about the “engine”. The following day Abo Abdo told you, Fajardo that he was meeting up with Le and would be bringing some money. Abo Abdo, you asked if Fajardo wanted to come to the meeting. You, Abo Abdo met with Le on 5 December 2018 at the factory which you leased in Campbellfield.
35On 6 December 2018 you all met again, this time at the Woodstock property where you were recorded discussing drug samples. Fajardo gave Le $145,000 in cash to launder for them. You used a cash counting machine to count the $145,000 and provided this to Le. Le explained that he would run the cash he was given through various businesses in Sydney. He said Abo Abdo could then render false invoices and would receive payment by cheque or electronic funds transfer. Le said he was doing Abo Abdo a favour because “you’re providing me with the product that can make me the real money later on…”
3.1 Events in the United States
36On 23 December 2018, you both flew from Melbourne to the US. From the time of your arrival, Homeland Security Investigations (“HSI”) in LA monitored your movements under surveillance.
37On 29 December 2018 you, Abo Abdo, commenced arranging for three 40 foot containers to be shipped from LA to Melbourne through CSL, namely:
(a) Shipping container 1 – OOCU7171520
(b) Shipping container 2 – TGHU9712786
(c) Shipping container 3 – TCNU2381806
38Back in Australia, on 3 January 2019, Le made a booking request under the name Kevin Nguyen to rent the Pakenham property for 6 to 12 months. This request was to enable the use of the property by you, Abo Abdo to remove the drugs from the capacitors.
39Between 29 December 2018 and 3 January 2019 you, Abo Abdo spoke via WhatsApp with Alex Padini from CSL Freight Forwarders. You requested three 40 ft containers be delivered to a Harvard Street factory in LA and to then be sent to Australia as soon as possible. You requested the three containers be delivered between 7 and 8 January 2019 and that they be collected and taken to Long Beach by 9 January, to depart on 13 January.
40Between 3 and 4 January 2019 you, Abo Abdo were observed by US authorities as conducting anti-surveillance in a white Mercedes, attending the Harvard Street factory, and attending a meeting with Guajardo and another individual named Delarosaruiz. Bags were exchanged after which you and Guajardo returned to the Harvard Street factory. At around that time a truck attended the factory and dropped off numerous pallets of stock which both you and Guajardo unloaded with a forklift and unwrapped.
41Between 7 and 9 January 2019 undercover agent (UCA) 1474 from HSI made contact with you Abo Abdo. On 7 January 2019, arrangements were made for UCA1474 to drop off three empty shipping containers and then return to collect them between 7 and 8 January 2019. It was agreed that you would pay $480 per container and UCA1474 was to deliver the containers to the port at Long Beach for shipping.
42Subsequently, UCA1474 attended the Harvard Street factory, met with you, and dropped off Container 1 (OOCU7171520). Arrangements were then made by you for the UCA to attend the factory on 8 January to collect Container 1 and drop off Container 2 (TGHU9712786).
43On 8 January 2019, UCA1474 spoke on the phone to you and you asked him to attend the Harvard Street factory at 3:00pm to collect the first container and to drop off the second empty container. UCA1474 attended Harvard Street factory and you advised him that the container was all packed up. UCA collected Container 1 and dropped off Container 2.
44Arrangements were then made for the UCA to return closer to midnight on 9 January to collect Container 2 and drop off Container 3 (TCNU2381806). You, Abo Abdo said you would work through the night to pack the container. You gave the UCA $1,440 cash as payment for all three containers. You were also observed packing Container 2.
45In the meantime, Container 1 was taken by HSI investigators for examination. No drugs were located. The contents consisted mostly of second hand or faulty stereos and two ride-on lawn mowers.
46On 8 January 2019, you informed UCA1474 that Container 2 was ready to be collected and that you were ready for empty Container 3 to be dropped off.
47Shipping documents and packing lists were lodged with CSL Express Line for the three shipping containers. The sender was listed as a business named BPI Birch Products, 3309 Harvard Street. The shipping address was to 187 Calarco Drive, Derrimut VIC Australia. Containers 2 and 3 were listed as containing six pallets of “ACAP75 capacitors” (pallets 7 to 12 on the documents).
48Later that day UCA1474 attended the Harvard Street factory and met with you Abo Abdo in order to drop off empty Container 3 and collect Container 2. Arrangements were made for him to return at 9am the next day to collect Container 3. You were observed loading Container 3.
49Meanwhile UCA1474 conveyed Container 2 to HSI for examination. It was found to contain six pallets, each containing 35 boxes which were labelled “Audiobahn Pro-Series 75 Farad Car Audio Capacitor Banks”. Of the 210 boxes, each contained two capacitors – 420 capacitors in total. The capacitors had no electronics inside – instead each contained a vacuum-sealed bag containing 2 kg net of methamphetamine – a total of 840 kg.
50On 9 January 2019, you Abo Abdo spoke to the UCA by phone who told him that Container 3 was ready to be collected. Arrangements were then made for UCA1474 to attend the Harvard Street factory later that day. At the time that the UCA collected Container 3, you asked if he could get the container to the port on time to make the ship’s departure.
51The third container was taken to HSI for examination and was found to contain five pallets of 35 boxes and one pallet of 40 boxes labelled “Audiobahn Pro-Series 75 Farad Car Audio Capacitor Banks”. Each box contained two capacitors (a total of 430 capacitors). The majority of capacitors had no electronics inside but contained one package of methamphetamine. The remaining capacitors each contained two packages of heroin or cocaine.
52The total net weight of methamphetamine located in the container was 850 kg. The total net weight of cocaine located in the container was 25 kg of which 15.794 kg was pure cocaine. The total net weight of heroin located was 5 kg of which 3.73 kg was pure.
53On 11 January 2019, investigators removed the drugs from Containers 2 and 3 and the contents of the containers were repacked and returned to Long Beach for departure to Australia.
54On 13 January 2019 a Bill of Lading OX005329 was lodged by CSL Express Line for three shipping containers “OOCU7171520”(1), “TCNU2381806”(2) and “TGHU9712786”(3) to be shipped from Long Beach to Melbourne. The ship departed the US and was scheduled to arrive in Melbourne on 14 February 2019.
3.2 Further events in Melbourne and arrests
55On 21 January 2019 the Pakenham property was booked under the name Kevin Nguyen of Mount Pritchard NSW, for 184 nights from 28 February 2019 to 31 August 2019 at a cost of $30,944. As I have explained that property was going to be used to deconstruct the capacitors and remove the drugs after the shipment arrived.
56On 23 January 2019 you both returned to Melbourne, having departed the US on 21 January 2019.
57On 7 February 2019 police executed a search warrant at the Woodstock property and seized 98 gm of methamphetamine, $245,000 cash concealed in the roof space of the property, $105,000 cash concealed inside a wardrobe, a cash counting machine, a black encrypted Samsung device in the living area, and a handwritten note next to the device which stated “Sushi.123456” being the password/pin for the device. One message thread on the Samsung device between “Tequila” (Abo Abdo) and “Big Cuz” (Le) referred to Le sending $10,000 to you, Abo Abdo, every day.
58Also located by investigators were notebooks, ledgers, and a backpack containing documents, notes, and a diary belonging to you, Fajardo, which contained a calendar and notes in your handwriting. It included the following entries: 7 January 2019, “Started loading 1st container”, 8 January 2019, “Started loading 2nd and 3rd container” which appeared to have a line crossed through it followed by “1st container”.
59A Samsung Galaxy Note 8 notebook was seized and revealed correspondence between you both and Padini from CSL Express, which referred to consignments under the business names Birch Products, BPI Australia, Audiobahn and Alphasonik. There were also images of wrapped pallets labelled “Birch Products” with recipient “BPI Australia C/O Cargo Line”, and audio capacitors.
60Finally, two pallets containing multiple capacitors were found in an outside shed.
61At the time of the search you Abo Abdo advised police of the pin code for most of your devices and stated that there may be $120,000 in a backpack at the Woodstock property.
4. The value of the drugs
62The Summary of Prosecution Opening sets out the estimated value of the drugs in the following terms:
4.1 Cocaine
6323,158.7 g of cocaine would have been realistically on-sold for the following prices:
(a) If sold in kilogram quantities (approx. 23.2 kg) – $3,712,000 - $4,640,000.
(b) If sold in ounce quantities (approx. 827 oz) – $5,375,500 - $6,616,000.
(c) If sold in gram quantities (approx. 23,158 g) – $6,947,400 - $9,263,200.
4.2 Methylamphetamine
641,637,989 g of methylamphetamine, with an average purity of 78.95% would have been on-sold for the following prices:
(a) If sold in kilogram quantities (approx. 1,638 kg) – $131,040,000 - $212,940,000.
(b) If sold in ounce quantities (approx. 58,500 oz) – $175,500,000 - $292,500,000.
(c) If sold in gram quantities (approx. 1,637,989 g) – $327,597,000- $655,195,600.
(d) If sold in point quantities (approx. 16,379,897 pt) – $491,396,910 - $818,994,850.
5. The nature of the offence
65The maximum penalty for the offence of conspiracy to import a commercial quantity of border-controlled drugs is life imprisonment. Whilst the prosecution disavowed the imposition of life sentences in this instance, it is still difficult to overstate the seriousness of this offending.
66This conspiracy involved the importation of a total of 1,293.227 kg of pure methamphetamine and 15.794 kg of pure cocaine concealed in two of three shipping containers. The pure methamphetamine represents over 1,724 times the applicable commercial quantity threshold of 750 gm. The pure cocaine represents approximately 7.9 times the applicable commercial quantity threshold of 2 kg.
67The value of the drugs is difficult to comprehend. It runs into hundreds of millions of dollars. The potential profits for those involved in the enterprise were staggering. The scale of the social damage such a quantity of drugs would cause, is immense.
68As I will explain, it is possible to point to some cases which are more serious than this case, but not many. The fact is this offending sits comfortably amongst the most serious drug offending to be prosecuted in this country.
6. Sentencing principles
69The Crimes Act 1914 (Cth) directs that the sentence to be imposed must be of a severity appropriate in all the circumstances of the offence.[3]
[3] s 16A(1).
70The principles relating to the sentencing of offenders who commit offences involving a commercial quantity of border-controlled drugs are well-established:
(a) The difficulty in detecting importation offences and the great social consequences that follow dictate that general deterrence must be emphasised above other sentencing purposes and that stern punishment will be warranted in almost every case;
(b) The sentence to be imposed should signal to would be drug importers that the potential financial rewards will be neutralised by the risk of severe punishment;
(c) Previous good character and other subjective personal factors will generally be given less weight in mitigation of sentence;
(d) An offender’s level of culpability will be determined by reference to their role and involvement in the enterprise, the sophistication of that enterprise, the quantity of drugs involved and the potential profit to be gained from the enterprise;
(e) Given that drug syndicates rely on people ready, willing, and able to undertake their respective roles “Involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served”;[4]
(f) In cases of conspiracy the court should take into account the duration, geographical spread, the number of people involved and the effectiveness of the conspiracy;
(g) Although the weight and or quantity of the drugs imported is not determinative of sentence, it is a very important sentencing consideration, all the more so if the offender is aware of the quantity of drugs involved;
(h) 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.[5]
[4] R v Nguyen and Pham (2010) 205 A Crim R 106, [72].
[5] Ibid per Johnson J (with whom MacFarlan JA and Hulme JJ agreed). DPP v Thomas & DPP v Wu [2016] 53 VR 546; 315 FLR 31; 262 A Crim R 198; VSCA 237, [192- 193] per Redlich, Santamaria and McLeish JJA.
7. The role of Abo Abdo
71The prosecution contend, and I accept, that you played a key role in this enterprise by acting as a conduit between the organisers of the importation in North America and criminal organisations in Australia to facilitate the importation of the drugs through an otherwise legitimate business.
72The role you played included the following features:
(a) You dealt with Le in arranging to rent both the Pakenham and the Woodstock properties. You arranged to obtain the encrypted communication devices. You discussed with him matters such as unpacking the drugs and their current prices in the Australian market. You also facilitated contact between Le and Guajardo;
(b) In your discussions with Fajardo, you revealed details such as when the drugs were going to arrive, who was likely to buy the product, where the drugs would be stored and unpacked, the fact that the market was dry, that you both could make up to $5 million, and methods of avoiding detection by authorities;
(c) You prepared shipping documents for the consignments and contrived an import profile history for the business to give it an impression of legitimacy;
(d) You travelled to the US in December 2018 where you arranged for the three containers to be shipped, had them delivered to a factory where you packed each of the three containers, including placing the drugs into those containers, as well as paying the UCA $1,440 in cash.
8. The role of Fajardo
73In respect of you, Fajardo, the prosecution contend, and I also accept, that as the de facto partner of Abo Abdo you knew he was involved in the importation of drugs. Just as you provided administrative assistance and advice to him with respect to his legitimate business, so too did you provide such assistance and advice with respect to his illegal enterprise.
74Although you may not have known the amounts involved, you knew that it was significant. I accept however, on the basis of the material before me, that you did not exercise any independent role in the enterprise and your personal and financial interest appears to have been derivative.
75Your role in the enterprise included the following features:
(a) You travelled to the US with Abo Abdo where he packed the containers for shipment to Australia. You were aware of the purpose of the trip;
(b) You had, on various occasions, discussions with Abo Abdo that enhanced your knowledge of the enterprise involving matters to which I have already referred such as who was going to buy the product, where the imported drugs were to be stored and unpacked in Australia, the fact that the market was dry, that you could make up to $5 million, and methods of avoiding detection by authorities;
(c) You also prepared the shipping and related documentation for the containers and recorded details of the progress of the importations in your diary;
76Having set out the objective circumstances of the offending, the general sentencing principles to be applied, and the role of each of you, I need now to turn to your subjective circumstances.
9. Abo Abdo Personal Circumstances
77Nasser Abo Abdo, you were born in November 1966 and are now 57 years of age. You have no previous convictions in this country or overseas.
78You grew up in southern California with your parents, four brothers, and three sisters. Your father originally came from Palestine to Brazil in the late 1950’s where he worked as a sesame seed farmer. He there met and married your Brazilian mother. Soon afterwards, your parents migrated to Orange County in California where your father opened a clothing and electronics business.
79Your father passed away in 1991. Your mother continues to reside in California. All of your siblings live in the US. All are working as professionals and none have any criminal history.
80You completed your high schooling in Santa Ana when you were 17 years of age. Whilst still a student you started your own electronics business and after finishing school opened a business in Santa Ana selling car and home audio equipment. The business was successful and after three years you had expanded the business into three shops. You sold it when you were 20 years of age and made a significant amount of money.
81You then travelled to Taiwan where you sourced manufacturers of items such as car subwoofers, speakers, amplifiers and the like, and arranged to import them into the US. You then started two companies known as Audiobahn and Precision Audio for that purpose. You later purchased another established electronics business known as Alphasonik.
82According to your counsel, over a period of 15 or so years you were able to build the businesses into an enterprise with a sales turnover of $80-$85 million with 140 employees and selling products all around the world including Australia. You estimate your own net worth at that time was in the order of $40 million.
83After some time, you started doing business with a large electronics chain store in the US known as “Circuit City” which quickly became your business’s key customer. I was told that when the global financial crisis hit in 2008, Circuit City went into bankruptcy and the knock-on effect to your business was catastrophic. Although your business was able to pay its debts and its employees, you filed for personal bankruptcy.
84By 2011 you had resurrected your business to some extent under the banner of Audiobahn. However, an acrimonious dispute with business partners ended in the breakup of that business. You say you were able to keep part of the business going in the US at a modest level under the trademark Alphasonik.
85You were first married in 1990. There were two biological children of that relationship and two adopted children. Your biological daughter was born in July 1992. She trained as a schoolteacher and you speak with her every three to four days. Your biological son was born in June 1994. He trained as a pharmacist however since you have been in custody, he has taken steps to take over your electronics business. You also remain in contact with your two adopted children. Your marriage broke down in 2000.
86Fajardo used to work as an accountant at Audiobahn. You began a relationship with her in around 2005. You have been together since.
87As to how you came to be involved in the offending, you instructed counsel that you met two men who were interested in purchasing much of your leftover stock. Over time a business relationship developed where these customers would make relatively large purchases. They asked whether you would be interested in shipping capacitors to Australia and warehousing and selling them. They agreed to pay you to travel to Australia for that purpose.
88You instructed that you initially believed the business was legitimate, and indeed you did have a legitimate business connection to Australia, but over time you came to understand that these people were representatives of a notorious drug syndicate. You say you were pressured to agree to ship the drugs and that they impliedly threatened you and your family if you did not cooperate. You say your brother was seriously assaulted in circumstances where it was made plain that the assault was a warning to you.
89In oral submissions Counsel recognised, that in spite of these instructions there was no evidence that you acted under pressure in Australia and that you appear to have been a trusted confidante of the representatives of the syndicate. Indeed, as Ms Breckweg pointed out, there was much to suggest from the listening device material that you embraced the offending, such that at times you appeared enthusiastic about it. Moreover, you stood to make a profit measured in the millions.
90It was accepted that your role was, as I have described it above, that of a conduit between the two drug syndicates. The description of you in the recorded conversations as the “mechanic” appears to have been apt. You were not a member of either of the syndicates involved, but it was acknowledged you played an extensive role in organising and facilitating the importation.
91In support of your plea, 13 personal references – one from a close friend and the balance from various nephews, nieces, children, brothers, and sisters - were relied on in support of your plea. The impact of your absence has been significant. It is clear that you come from a close-knit extended family in which you played a central role.
92At times over the years, you took on substantial responsibilities for younger siblings, nieces, and nephews who would otherwise have floundered and for which they are clearly grateful. You are clearly missed. I will take into account what I infer is the hardship that flows to you because of the separation from your family in the US and the very limited contact you can have with them. Psychological assessment suggests that you suffer from Post Traumatic Stress Disorder, Major Depressive Disorder and Generalised Anxiety Disorder. Those conditions have made, and will continue to make, navigating prison life challenging.
93I will also take into account the work that you have done in prison to better yourself and indeed others. I was informed that from about 2015 you had developed some problems with alcohol, drugs and gambling. In custody you have completed four rehabilitative courses directed to preventing relapse into drug and alcohol abuse and have undertaken two and a half years of therapeutic counselling to address problematic gambling and general mental health.
94A report from Jacinta Crealy, social worker, confirms that you have made some significant positive changes since coming into custody. Your mental health has improved and you have taken on a leadership role for Islamic prisoners.
95With the approval of the prison, you began delivering Koranic teachings in late 2019. You now lead prayers twice daily on weekdays and were awarded a certificate of appreciation by the Islamic Council of Victoria for your contribution in assisting prisoners of Islamic faith. You have also successfully completed the Peer Educator Training Program which equips you to provide health and social guidance to other prisoners.
96Finally, you have obtained numerous vocational qualifications in areas such as kitchen operations, cleaning, business, digital media and particularly in horticulture. I consider that these achievements, when taken together, suggest that you have very good prospects for rehabilitation.
10. Fajardo personal circumstances
97You, Leonor Fajardo were born in March 1972 and are now 52 years of age. You were born in Michoacan state, Mexico and are the eldest of five children. Your family struggled financially. Your father initially worked in a poorly paid government job whilst your mother washed clothes to supplement the family’s income. Your family life was described as “rough but ultimately supportive”.
98When you were still a young child, your father crossed over the border into California in order to earn more money for the family.
99At the age of nine you and all of your family moved to the US and settled in Pico Rivera, LA. You completed your secondary schooling to Year 12 whilst both of your parents supported the family by working in factories.
100After high school you started studying interior design but after a year or so were forced to cease those studies in order to work and support your family. You then started working at McDonald’s where your mother also worked. In 1991 you married, and there are two daughters of that relationship born in 1992 and 1994. For a time, you were unable to work because you developed a medical condition from which you suffered a number of seizures. The nature of that condition was unclear. You divorced your first husband in 1997.
101Once recovered from your illness, you began administrative and secretarial work and ultimately gained employment with Alphasonik where you met Abo Abdo. It was only after some years that you formed a relationship with him.
102Mr Richter put your role in this offending as “a personal administrative assistant to a conduit between two organisations”.[6] Your partner was not a member of a cartel or syndicate and was not a drug entrepreneur in his own right. You had met and formed a genuine relationship long before the enterprise commenced. Much of what you did aligned with your role as his life partner and the nature of your practical assistance in the enterprise was essentially clerical, although that assistance was knowingly provided.
[6] Amended Outline of Submissions for Sentence Indication (Leonor Fajardo), 4 December 2023 [30].
103It was submitted that you had no specific knowledge of the quantity involved, albeit that it was accepted that you knew it must have been significant. It was submitted that the method and level of sophistication was consistent with what might be employed in an enterprise involving something in the order of 50 to 100 kg. It was submitted that it cannot be safely inferred that you could have had knowledge of more than an amount of that order.
104Like Abo Abdo, you have no previous convictions recorded in this country or overseas.
105For the purposes of this hearing eight personal references from your mother, sisters, brothers, and friends were provided. They consistently paint a picture of a close supportive family, all living in the US, who very much miss you. In the time that you have been on remand your father passed away and three grandchildren have been born. You have missed many other family milestones. Your mother’s health is precarious. I am satisfied that you feel your separation from your family acutely.
106That said, you have clearly endeavoured to try and make the time that you must spend in custody constructive. You are employed in the prison café, act as a prison representative for the section in which you are housed and have completed a large number of vocational courses in fields such as cleaning, kitchen operations, and business.
107A letter from Associate Professor Marietta Martinovic from RMIT University also confirms your participation in two programs that, it was submitted, demonstrate a genuinely positive approach. The first, the “Inside Out Prison Exchange Program” involves studying a university subject “Comparative Criminal Justice Systems” with fellow inmates and university students. For that subject, you were assessed on the basis of your written work and group participation. You achieved a high distinction.
108The second program is known as “Change on the Inside Think Tank” and is directed to devising strategies to assist inmates improve their quality of life within the prison and after release. You have participated in this program for over 18 months with other inmates and university students. You have clearly made a substantial contribution to the program. Dr Martinovic speaks very highly of Fajardo’s dedication, work ethic, and achievement.
109Finally, over the last four or more years you have been involved with the Somebody’s Daughter Theatre Company both in their productions and art workshops. In a letter describing your participation, Ms Lisa Calwell describes you as a highly valued member of the group who has contributed “…a most extraordinary collection of artworks”.
110Like Abo Abdo, your positive contribution to prison life suggests very good prospects for rehabilitation.
11. Procedural history
111As I have indicated, you were both arrested on 7 February 2019. There was a contested committal over five days in December 2020. After you were both committed for trial there was a significant delay caused by the pandemic.
112In February 2022 his Honour Judge McInerney heard various pre-trial applications over a period of eight days. A ruling delivered in March 2022, was then the subject of an interlocutory appeal that was determined on 7 April 2022. To protect the integrity of any future trial, pseudonyms were used - Khalil & Valdes v Director of Public Prosecutions (Cth).[7]
[7] [2022] VSCA 56.
113There were further delays occasioned by pre-trial applications and administrative delays. The sentence indication application was heard on 9 February 2024. The indication was given on 23 May 2024.
12. Other matters in mitigation
114It was submitted that both your pleas of guilty would entitle each of you to the Worboyes[8] discount in the event this case did not proceed to trial and did not therefore contribute to the backlog of pending trials at it then was.
[8] Worboyes v The Queen [2021] VSCA 169.
115Whilst it might be suggested this submission takes a rather broad view of the principle to be taken from Worboyes, the fact is that the need for a trial has been avoided. Taking a practical approach, it seems to me appropriate to accord you, Abo Abdo the benefit of the reduction. That same reduction must also flow to you, Fajardo.
116It was accepted by all parties that had the trial proceeded it would have been lengthy, complex and logistically difficult. The saving to the criminal justice system in time and expense has therefore been considerable. It follows that the utilitarian benefit of the plea of guilty will provide a further basis for reduction of the sentence that would otherwise have been imposed.
117The plea of guilty is also indicative of a willingness to facilitate the course of justice, and remorse. However, the timing of the plea of guilty, given this matter’s procedural history, could not be said to be anything approaching early.[9]
[9] Crimes Act 1914 (Cth) s 16A(2)(g)(ii) & (iii).
118I note that for both of you, your time in custody coincided with the entirety of the pandemic. Each of you have been subject to the very restrictive prison regime which was introduced to manage Covid-19. Those restrictions were harsh, they extended for a period in the order of two years in all and you both incurred their full brunt. That additional burden will be taken into account in your favour.
119It was also pointed out that as a result of the introduction of the Crimes Amendment (Remissions of Sentences) Act 2021 (Cth) which repealed s 19AA of the Crimes Act 1914, state allocated emergency management days were abolished for Federal offenders. It followed that you both would miss out on what would otherwise have been some reasonable reduction in your sentences. It was argued you both endured the same privations as your state counterparts but were deprived of the compensation afforded to state offenders.
120I should indicate that whilst I accept there is the disparity identified and that that may engender a sense of grievance in you both, it was plainly the intention of the Commonwealth Parliament in enacting the Crimes Amendment (Remissions of Sentences) Act 2021 that those remissions not be granted.[10] In my view, it would not be consistent with Parliament’s intention to make some allowance in mitigation for the abolition of emergency management days for you both and I cannot do so.
[10] See for example the second reading speech from the then Minister for Families and Social Servies, Senator Ruston, on 25 August 2021.
121An additional basis for mitigation put on behalf of both of you related to the delay that has attended the resolution of this case. You have both been in custody since 7 February 2019. I accept that the two limbs of delay that potentially mitigate a sentence are operative here. I appreciate that a good deal of that delay related to you agitating pre-trial applications and other matters but that is not to detract from the natural anxiety engendered by a lack of finality. That anxiety, I accept, has been punitive.
122As to the second limb, it is apparent that you both have applied yourselves as constructively as you can whilst on remand. In so doing you have proved yourselves to be model prisoners. In each case I have found that your prospects for rehabilitation appear to be very good. It follows that the delay attending this case will mitigate the sentence both because of its punitive effect and the use you have sought to make of that delay in enhancing your prospects for rehabilitation.
123Although good character attracts less weight because of the need to emphasise general deterrence in drug importation cases as serious as this, it nevertheless remains a matter that must be taken into account,[11] and I will do so.
[11] See s 16A(2)(m).
124Finally, the personal circumstances of each of you set out above make it plain that the effect of your incarceration in Australia on your respective families in the US has been, and is continuing to be, felt acutely. I will also take that matter into consideration.[12]
[12] See s 16A(2)(p).
13. Abo Abdo comparative sentences
125Having set out the personal circumstances of you both and the matters that you generally rely on in mitigation, I need now to turn to such assistance as might be gleaned from comparative cases.
126As I have suggested, there do not appear to be many intermediate appellate sentences which involve quantities of the magnitude involved here. The authorities the parties referred to, with some exceptions, generally involved lower quantities and the extent to which they provide any sort of yardstick as to an appropriate sentencing range was limited.
Tang v The Queen[13]
[13] [2020] WASCA 194.
127In that case 182 kg of methamphetamine, 145.6 kg pure (194 times the commercial quantity threshold) were landed on the West Australian coast by a tender launched from a fishing vessel. The drugs were collected by members of the syndicate and driven to Perth for storage and distribution. The offender had arrived in Australia for the purpose of being involved in the importation and was part of the shore party that attended the beach to receive the drugs. He was 41 years of age, had no prior convictions, and pleaded guilty. He was sentenced to 23 years’ imprisonment with a non-parole period of 15 years.
DPP (Cth) v Wang[14]
[14] [2019] 279 A Crim R 49; VSCA 250.
128Wang was the master of a ship used to transport 123.84 kg of pure cocaine (62 times the commercial quantity threshold) from China. He was an essential part of the importation and knew of the quantity of drugs being imported. He pleaded guilty at an early stage and provided and undertaking to give evidence against co-accused. He was initially sentenced to 13 years and 10 months with a non-parole period of 9 years. However, he only partly honoured the undertaking to give evidence and on a Director’s appeal the sentence was increased to 16 years and 6 months with a non-parole period of 10 year and 9 months.
R v Elfar & Golding [15]
[15] R v Elfar & Golding [2017] QCA 170.
129Both offenders were convicted after trial of importing 400 kg cocaine, 283 kg pure (140 times the commercial quantity threshold). They had sailed a boat out into the Coral Sea where they received the cocaine and transported it back to Queensland. Each had minor criminal convictions, had played pivotal roles in the offending and had shown no remorse. Elfar was sentenced to 30 years imprisonment with a non-parole period of 20 years. Golding was sentenced to 30 years imprisonment with a non-parole period of 18 years.
DPP (Cth) v Yuan[16]
[16] (2015) 252 A Crim R 422; [2015] NSWCCA 198.
130Yuan, over a period of 3 to 4 months organised the receipt, storage and passage of a container of furniture from China which contained 68.845 kg of methamphetamine, 55 kg pure, (73 times the commercial quantity threshold). He was convicted after trial. He was described as having the role of a supervisor or executor of the enterprise. He was 28 years of age and had no prior convictions. He was sentenced to 10 years with a non-parole period of 6 years at first instance but on appeal by the Crown re-sentenced to 15 years imprisonment with a non-parole period of 10 years.
DPP (Cth) v Barbaro & Zirilli[17]
[17] [2012] VSC 47.
131This offending involved the importation of 4.4 tonnes of MDMA of which 1.4 tonnes was pure (approximately 2,900 times the commercial quantity threshold). Barbaro was the principal of a large drug trafficking enterprise his role was to possess, transport, store, prepare and distribute the drugs. Zirilli was essentially Barbaro’s “right-hand man and trusted lieutenant” and was active in possessing, transporting and preparing to distribute the drugs. Both men pleaded guilty. Barbaro was sentenced to life imprisonment with a non-parole period of 30 years. Zirilli was sentenced to 26 years’ imprisonment with a non-parole period of 18 years.
Tsang v DPP (Cth)[18]
[18] (2011) 35 VR 240; (2011) 255 FLR 41; (2011) 219 A Crim R 304; [2011] VSCA 336.
132Tsang pleaded not guilty to the importation of 1.29 million ecstasy tablets amounting to 74.1 kg pure of MDMA which at that time was 148 times the commercial quantity threshold. He had come to this country for the express purpose of committing the offence and had no prior convictions. He was sentenced to life imprisonment with a non-parole period of 27 years at first instance and on appeal was resentenced to 29 years imprisonment with a non-parole period of 19 years.
Geraghty v R[19]
[19] [2023] NSWCCA 47.
133Geraghty pleaded not guilty to conspiracy to import 1.42 tonnes of cocaine, the pure weight of which was 1.11 tonnes (550 times the commercial quantity threshold). After a four month trial with four co-accused he was found guilty and sentenced to life imprisonment with a non-parole period of 25 years. The offender had previously been sentenced for three charges of being knowingly concerned in the importation of cocaine for which he was sentenced to 25 years’ imprisonment with a non-parole period of 15 years and 6 months.
134The conspiracy involved three concerted attempts to import cocaine which had been sourced overseas and transported to international waters near Australia on a “mothership” which would be met by a yacht sailed by co-conspirators to which the drugs would be transferred. That yacht was to then rendezvous with a motorboat onto which the drugs would be off-loaded and the motorboat would return to the New South Wales coast. The third attempt succeeded to the point where the yacht was intercepted by law enforcement authorities off the coast of New South Wales and the drugs seized. Geraghty’s role in the conspiracy was described as “paramount” in that he oversaw the steps undertaken by each of the co-conspirators. His role in recruiting others reflected what was said to be his dominant role within the conspiracy.
Mason (a pseudonym) v The King[20]
[20] [2023] 376 FLR 98; VSCA 75.
135Mason pleaded guilty to the importation of 1.2 tonnes of methylamphetamine at 80% purity and just under 30 kg of heroin at between 76-80% purity. Although the importation related to a single consignment of household items, the offender had been involved in six earlier consignments which were relevant to show the method used to import the drugs. Mason had worked in transport logistics including performing duties related to the importation of goods in the completion of the necessary paperwork. She used her existing (otherwise legitimate) business to communicate and facilitate the importation.
136She made two statements to investigators admitting to her role in the importation and implicating her co-offenders. She gave an undertaking to give evidence against them - the evidence was considered to be of high value, truthful, independently corroborated and placed her at great risk. The sentencing judge indicated that “but for” the undertaking and the plea of guilty he would have imposed a sentence of 29 years. Eleven years was then deducted from the sentence for future cooperation and seven years was deducted from the head sentence for the early plea of guilty. The total effective sentence imposed was therefore 11 years with a non-parole period of 7 years. On appeal a contention that the sentence was manifestly excessive was held to be not reasonably arguable.
Elmir v R[21]
[21] [2023] NSWCCA 260.
137Elmir pleaded guilty to conspiracy to import commercial quantities of MDMA, cocaine and methamphetamine. The conspiracy involved two separate enterprises. The first conspiracy involved the importation of 500 kg of MDMA (392.95 kg pure) and 20 kg of cocaine (15.77 kg pure). The second conspiracy involved 498 kg of MDMA (344.6 kg pure), 116 kg of cocaine (91.87 kg pure) and 15 kg of methamphetamine (12.04 kg pure). He was found to have played a pivotal role in both enterprises.
138At first instance he was sentenced to 24 years’ imprisonment with a non-parole period of 14 years. A 25% discount was applied because of the offender’s plea of guilty. On appeal the sentence imposed was adjusted to 20 years with a non-parole period of 12 years due to disparity with a co-offender. The offender had spent 2 years and 3 months in custody in Dubai, pending extradition to Australia.
Kuo v The Queen[22]
[22] [2018] NSWCCA 270.
139Kuo and two others pleaded guilty to attempting to possess a commercial quantity (142 kg pure) of methylamphetamine (approximately 180 times the commercial quantity threshold). He was one of three “trusted operatives of the ultimate syndicate” involved in a large criminal enterprise and played and essential role in the importation but was not a principal. The discount for the plea of guilty was assessed as modest - at 10 to15% - taking into account its utilitarian value and the fact that it was late. Kuo had come to Australia to commit the offence. He was 21 at the time of the offending and had no previous convictions. Sentence of 12 years with a non-parole period of 7 years.
Tran v The Queen[23]
[23] [2021] VSCA 278.
140Tran pleaded guilty to one charge of attempting to import 229.6 kg of pure methylamphetamine (316.13 times the commercial quantity threshold) hidden in two shipping containers. Tran was the trusted organiser of part of the enterprise. He was said to have played a pivotal role and his participation was critical to its success. He was 25 at the time of the offending and had no prior convictions. On the basis of disparity with a less culpable co-offender Tran’s original sentence of 23 years 6 months with a non-parole period of 15 years 6 months was altered to 18 years with a non-parole period of 12 years.
14. Consideration Abo Abdo
141One purpose in comparing these authorities is to see what may be gleaned as to current sentencing practice and possibly a range of sentences against which any proposed sentence can be examined. As I have indicated, the extent to which the authorities referred to assist in that regard is quite limited.
142That said, the decisions of Mason, Barbaro, Geraghty, Elfar & Golding and Elmir have features which are relevantly similar or instructively different. That is so, if for no other reason than they involve very large quantities in circumstances where some offenders had relevant prior convictions, some pleaded guilty and others were sentenced after trial.
143A second purpose is to identify relevant sentencing principles in cases of this kind. I have already summarised many of the relevant principles at paragraph [70] above.
144Applying those principles to your offending, Abo Abdo, it is plain that the need to emphasise general deterrence must be paramount. The quantity of the drugs, their value, the potential profits, the social damage resulting from their distribution in the community and the international dimensions of the conspiracy among other things compel that emphasis.
145Whilst your role was not that of principal, you were nevertheless a driving force without which there could not have been an importation. You stood to make millions of dollars from this enterprise and your moral culpability is of the highest order.
146You are to be given credit for the work you appear to have done in prison which suggests you have very good prospects for rehabilitation. Those personal matters will mitigate sentence but must remain subsidiary given the objective gravity of the offending.
147That said, the delay in the resolution of these proceedings and your plea of guilty will substantially reduce your sentence and that of yours, Fajardo.
15. Consideration Fajardo
148Although, I have described your role, Fajardo as “derivative” as the de-facto partner of Abo Abdo, you also nevertheless bear a high degree of moral culpability. Whilst it is not alleged you knew the extent of the quantity involved, through your discussions with Abo Abdo, you must have realised that a very substantial quantity of drugs was being imported and still chose to involve yourself in that undertaking.
149Mr Richter, on your behalf Fajardo, relied on three further comparative authorities that he submitted were of particular relevance to your position:
Tawfik & Saputra v The Queen[24]
[24] (2021) 64 VR 561; [2021] VSCA 289.
150Both accused pleaded not guilty to conspiracy to import a commercial quantity of cocaine being 123 kg pure (61.5 times the commercial quantity threshold). At first instance Tawfik was sentenced to 25 years with a non-parole period of 16 years and 9 months. Saputra was sentenced to 18 years with a non-parole period of 12 years. On appeal Tawfik’s sentence was reduced primarily by reference to the range of sentences imposed in not dissimilar cases such as DPP (Cth) v Brown,[25] to 20 years with a non-parole period of 14 years. Saputra’s sentence was reduced to maintain parity to 14 years with a non-parole period of 9 years.
[25] (2017) 268 A Crim R 309; [2017] VSCA 162.
151Tawfik was the leader of the landing crew charged with the task of offloading the shipment at sea, whilst Saputra represented the Sydney syndicate for whom the drugs were intended. Each had relatively minor prior convictions. It was submitted that Fajardo’s involvement was comparatively less than these two offenders.
R v Kassir[26]
[26] [2020] NSWCCA 88.
152Kassir pleaded guilty to aiding and abetting the importation of a commercial quantity of methylamphetamine comprising 209 kg, 166 kg pure (approximately 221 times the threshold for commercial quantity). He was sentenced to 8 years’ imprisonment with a non-parole period of 5 years and 6 months at first instance. There had been six previous consignments imported, however the contents of those consignments were unknown. The offender was an employee of the customs broker who facilitated the importation. On a Director’s appeal, the sentence imposed was held to be manifestly inadequate and a sentence of 10 years with a non-parole period of 6 years and 6 months was substituted. It was submitted that Fajardo’s role was on par with this offender in that they both provided “administrative assistance” to the principals.
R v Schelvis & R v Hildebrand[27]
[27] (2016) 263 A Crim R 1; [2016] QCA 294.
153Each offender was sentenced after trial for conspiracy to import 104 kg of pure liquid MDMA. Schelvis was extensively involved – she was the actual importer and was sentenced to 21 years with a non-parole period of 14 years. Hilderbrand’s role was more limited and had a lesser appreciation of the quantity involved. He was sentenced to 14 years with a non-parole period of 9 years. These sentences were upheld on appeal. It was submitted Fajardo’s role was not dissimilar to Hilderbrand’s although lesser because his role stemmed from his intimate relationship with the principal.
154Mr Richter’s essential point in referencing these authorities was that:
“…it cannot be demonstrated that she understood the full scale of this planned importation. That is to say, the level of sophistication employed in this case is regularly deployed for importations of, say, 50-100 kgs of comparable border-controlled drugs. The quantity of drugs that the court might safely infer that she was aware of is therefore the full order of magnitude less than the actuality, knowledge in which cannot be attributed to her.”[28]
[28] Amended Outline of Submissions for Sentence Indication (Leonor Fajardo), 4 December 2023, [29].
155In essence, it was submitted that the sentence imposed on Fajardo should fall beneath those imposed on Saputra and Hildebrand having regard to her more limited role and knowledge.
156In response, the prosecution point to the much greater size of this importation and suggest that Fajardo’s understanding of the quantity involved must have been greater than was the case in the authorities referred to. She was privy to extensive discussions about prices, the state of the market and the millions in profit to be made. Her diary entries also suggest a greater degree of knowledge.
157In considering these submissions I have formed the view that there can be no question that you Fajardo should be dealt with on the basis you appreciated that a very large consignment of drugs was to be imported in more than one shipping container and that you, through the actions of Abo Abdo, stood to share in millions of dollars.
158Given the state of the evidence, I accept you cannot be sentenced on the basis that you knew the quantity was as great as it was. However, I consider that it can be safely inferred that you must have known that the quantity was at least in the hundreds of kilograms.
159Like Abo Abdo, you are to be given credit for your progress in prison which have enhanced your very good prospects for rehabilitation. But also like Abo Abdo, although such personal matters will mitigate, they must remain subsidiary given the extremely serious nature of this offending.
16. Conclusion and sentence
160As I have said, it is difficult to overstate the gravity of this offending. The sophistication and scale of this enterprise place it comfortably at the highest level of drug offending. In consequence, the sentence to be imposed must signal to would be drug importers that the potential profits from such enterprises will be neutralised by the risk of severe punishment.
161Taking all relevant matters into account I would sentence as follows:
162Abo Abdo, you will be convicted and sentenced to a term of imprisonment of 21 years with a non-parole period of 14 years.
163Fajardo, you will be convicted and sentenced to a term of imprisonment of 14 years with a non-parole period of 8 years and 6 months.
164I will declare pursuant to s 18 of the Sentencing Act 1991 (Vic) that you have each already served 2087 days of that sentence by way of presentence detention and I will cause that declaration to be noted in the records of the court.
165Pursuant to s 6 AAA the Sentencing Act 1991 (Vic) I will further declare that in the case of you Abo Abdo but for your plea of guilty you would have been sentenced to a term of imprisonment of 30 years with a non-parole period of 22 years.
166In the case of you Fajardo, I will declare that but for your plea of guilty, you would have been sentenced to a term of imprisonment of 21 years with a non-parole period of 16 years. I will also cause those declarations to be noted in the records of the court.
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