Director of Public Prosecutions v Brar
[2015] VCC 1321
•18 September 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-14-01080
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KULBIR SINGH BRAR |
---
| JUDGE: | HIS HONOUR JUDGE MURPHY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 August, 1-4, 7-10 & 15 September 2015 |
| DATE OF SENTENCE: | 18 September 2015 |
| CASE MAY BE CITED AS: | DPP v Brar |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1321 |
REASONS FOR SENTENCE
---Subject: Sentencing
Catchwords: Drug importation – attempted importation of a precursor – very high value
Legislation Cited: Criminal Code, Crimes Act 1914
Cases Cited: R v Tranter No.2 [2014] SASCFC 66, Ngo (Unreported, New South Wales District Court, 10 November 2012), Phan (Unreported, New South Wales District Court, 3 July 2009), Jalacaty (Unreported, New South Wales District Court, 20 December 2010), Anagnosotopollo (Unreported, New South Wales District Court, 16 December 201)
Sentence:Total Effective Sentence – 11 years imprisonment – 8 years Non-Parole period.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Breckweg | D.P.P (Cth) |
| For the Accused | Mr T. Danos | Tony Danos Lawyers |
HIS HONOUR:
1Kulbir Singh Brar, you have been found guilty by a jury of one count of attempt to import a commercial quantity of a border-control precursor, contrary sub-s.11.1(1) and s.307.1 of the Criminal Code (Code) of the Commonwealth. Maximum penalty, 25 years' imprisonment or 5,000 penalty units or both.
Circumstances of the offence
2The circumstances of the offence were set out in the prosecution plea opening, Exhibit A, which essentially constituted a summary of the Crown opening and the evidence that was lead in the trial. I incorporate it by reference and elaborate it or synthesis it as follows.
3The charge was put that over the period of 24 July 2013 to 23 September 2013 you attempted to import a commercial quantity of a border controlled precursor. The case was put on the basis that you attempted to deal with a chemical substance in connection with its importation by a number of actions that were put, including collecting the substance from a freight-forwarder on 24 and 26 July 2013, transferring it to your warehouse packing it in your warehouse, selling some of it to Hai Trinh in Sydney in late July 2013; arranging and paying for the transportation of some of that substance to Sydney in early August 2013, storing the remainder of the substance pending another order, and agreeing to sell a second load of the substance to Hai Trinh in Sydney in September 2013. The jury must have also found that you imported the substance believing that another person intended to use some or all of it to manufacture a prohibited drug.
4The background to your involvement and what I am dealing with you is that a cargo ship arrived at the wharves in Melbourne on 29 June 2013 containing two 24 foot shipping containers, one containing 22 metric tonnes of basmati rice, and another 18 tonnes. You were the consignee, being your company M.S Brar Pty Ltd, 38-40 Garnsworthy Street, Springvale.
5The containers were cleared by Customs on 1 July and transferred to a freight-forwarder, Universal Logistics Solutions in Laverton. The containers were unloaded to be inspected by the Department of Agriculture, Fisheries and Forestry. Departmental officers conducted a routine examination of the containers and ascertained that there was a white substance mixed in some of the 25 kg bags of rice.
6This was found to be positive for ephedrine, and the consignment was then transported to a container examination facility where a controlled delivery was effected. That involved placing 16 tonnes of substitute rice into some 500 -odd bags of the original bags, and in some 200-odd of the substituted bags a couple of cups of sugar were placed in those bags. The outer bags were marked so that it was subsequently able to be identified which had sugar, which was to the substitute for the crystalline ephedrine.
7You were then advised that the shipment was able to collected. On 24 July you arranged transportation of 10 pallets of the substituted delivery to be delivered to your warehouse in Springvale, where you unloaded it and stored it. You returned to the freight-forwarder on the same day and collected a further five pallets and again transferred them to your warehouse. You then arranged on 16 July for someone else, to collect a further eight pallets and deliver it to your warehouse.
8You were advised on 26 July that the balance of the shipment had been condemned and destroyed. The police were engaged in telephone interceptions for your communications with the shipper, the consignor, Bansal in India and he asked you in one of those conversations whether "There was any of that bag" in the 16 tonnes that had been delivered.
9Between 30 July and 11 August, there were a series of emails between you and an email address in Sydney in which the addressee ordered 15 tonnes of rice. You then discussed the order with the gentlemen in Sydney, and on 11 August, sent an invoice for the purchase of some rice, some 15 tonnes, at a price of $2.80 per kilo. Around the same time you were delivering rice, about 3 and a half tonnes to another purchaser (Mr Varghese) in Melbourne for $1 a kilo. You received some payments totalling $27,176 for the 15 tonnes of rice prior to receiving the actual order in late July 2015.
10On 4 August, the shipment was sent by you to Sydney with it arriving on 5 August. Between 4 and 8 August, police intercepted a number of phone conversations between you and a male named Stoner. These conversations were in relation to a mobile phone of yours that was not working and how you needed it as soon as possible. He advised that you would wipe the codes and that the handset would have to be replaced. There were then arrangements made for Stoner to arrive in Melbourne, to provide you with another BlackBerry. He also said it would cost $1,500, and you arranged to meet with Stoner at the Southern Cross Station in Melbourne CBD. The meeting went for about 45 minutes.
11You received a new BlackBerry from Stoner, just days after the consignment was delivered and then you started sending encrypted emails using the new BlackBerry with headings such as “invoice”, “order”, “warehouse” and “payment”. And you, fairly consistently sent encrypted emails on this phone until 22 September.
12On about 2.17pm on 13 September 2013, the AFP intercepted a phone call between you and your girlfriend Resham, during which you said you needed a needle, they had to create a hole and it was only possible with a needle. She explained the needle will fit, with then the plastic one afterwards and it will help pull faster. You then said "It will also, it will pull the rice also." This particular conversation was put as part of the overall circumstantial case by the prosecution as indicating that you had sought from Resham a needle in order to effectively test or possibly test bags of rice to see which ones contained the ephedrine or otherwise.
13Reshim gave evidence in the trial where she claimed that the conversation referred to obtaining needles from her place of work for use on a pup or two pups that you had at your house - the pup that suffered an injury - was to inject the pup. I found her evidence unconvincing, and if necessary to do so I find beyond reasonable doubt that this reference in the phone conversations that were intercepted was in fact a reference to obtaining needles from a hospital in order to test rice bags, and that the story about the use of needles for the pup, was in fact a “cock and bull” story. But it is unnecessary for me to ultimately decide that matter.
14The next matter in the saga is on 19 September, you activated a new SIM card and a telephone number in a false name, or a name, Carl Tan, not your own, with a Springvale address, and you used it to communicate with your uncle and a person using another mobile phone number. On 21 September, Mr Trinh placed another order for ten tonnes of 25 kg bags of rice, and you were told that someone would attend to discuss payment for the previous order, the previous 15 tonnes, and to check the rice. At about 9.30pm on 22 September a male attended the warehouse with you and he was present at the warehouse for about ten minutes, and you agreed to meet the next day.
15The police raided your home on 23 September and the warehouse, and located two 25 kg bags of rice from the controlled operation in the back storage room, both of them have been opened. One of them contained the rice and the sugar, and the other contained just substituted rice.
16When the police searched the warehouse on 23 July they located one of the 25 kg bags, the subject of the controlled operation, it had been unstitched at the top. There are also 25 pallets of rice in varying quantities. Each pallet containing five, ten and 25 kg bags, with some containing the substituted rice and 57 containing the substituted rice and sugar mixture.
17Analysis of the original shipment indicated that when it arrived from India it contained 218.6 kg of pure ephedrine concealed within the bags. A commercial quantity is 1.2 kg. So it is about a 180 times a commercial quantity. You participated in a record of interview on 23 September 2013, and told a number of lies to the police, stating that you had no knowledge of the ephedrine concealed within the rice consignment, but you are legitimate rice importing business, you sell rice to wholesalers, but you found Bansal, the supplier in India, online and continued to purchase rice from him and it was of high quality.
18That you were referring to infection in a call, on 29 July, which is the reference to the bag. That you distribute rice to customers in Melbourne and Sydney, that you checked the two bags at home, as there were complaints about the quality and you were told that some of it was no good at all. You had a customer called Hai Trinh in Sydney, and you had sent a load to him. You originally got the name of Mr Trinh from someone who came into your taxi. You said you were not sure if you used the BlackBerry at home, and you bought one from a person on the street and the other one was left in your taxi. And that when you intercepted phone calls regarding conversations with Stoner, they were relating to your Samsung Galaxy and the BlackBerry, and you also said that you sold rice to Mr Varghese cheaper because it was a lower quality.
19The Crown relied on a number of the lies in the first record of interview as part of their overall circumstantial case, going to your credibility. On 1 October, you participated in a further record of interview where you again denied that you had any knowledge of the ephedrine, that your uncle organised the importation, that you only provided the number of your new phone to you uncle and your uncle met Bansal in India; and your uncle had told you he had organised some customers for you in Sydney and that you had to follow their instructions. You have also been instructed to only use the BlackBerry to communicate with the Sydney people and you did not know who they are, and you thought they were avoiding tax, and that is why they were dealing the way they were. You conceded that you had sent emails on your BlackBerry.
20You have no prior convictions, you have been in detention for 717 days, excluding this day. Evidence was led on the trial that the estimated wholesale value of the ephedrine imported was between $9.576 million and $27.360 million. Evidence was also led that the 218.65 kg of pure ephedrine could reasonably manufacture 147.5 kg of methylamphetamine hydrochloride. Evidence was led that the potential wholesale of the crystal methylamphetamine that could be manufactured from 147.5 kg to methylamphetamine hydrochloride is between $41.3 and $48.675 million. There was also evidence that the potential street value of crystal methylamphetamine that could be manufactured from 147.5 kg of methylamphetamine hydrochloride is between $73.9796 million and $221.338 million.
21Your counsel disputed the street value estimates in relation to the overall plea, on the basis that they were contingent on a number of hypothetical events including whether or not the conversion of the ephedrine into methylamphetamine was successful, and then whether it could be sold, how it was sold as wholesale or retail, and so the values were hypothetical in that sense.
22I accept that the potential street value of the crystal methylamphetamine is very much hypothetical, but it is still, I am satisfied, in the orders of tens of millions of dollars that could have been ultimately manufactured and sold from the ephedrine that you were involved with.
The seriousness of the offence
23I am required to assess the objective seriousness of the offence and your moral culpability for it.
24The charge against you was a charge of attempted importation. Under the Code this carries the same maximum penalty as the substantive offence. You were only charged with an attempt because over the period that it is alleged that you became involved, commission of the substantive offence was impossible due to the fact that it was a controlled delivery.
25You are only to be sentenced for your conduct which was over the period 24 July 2013 to 23 September 2013. It was common ground that by the time you became involved, the shipment had been landed in Melbourne and was the subject of a controlled delivery. The Crown case against you was based on the extended definition of “import” that includes “dealing with a substance in connection with its importation”. The widening of the definition of the term "import" in the Code was designed to capture criminal conduct within Australia connected with an importation. The Crown particularised your conduct as dealing in connection with an importation in the plea opening as collecting the substance, I have already indicated, transferring the substance, unpacking it, selling some of it to Hai Trinh, arranging the payment and transportation, storing the remainder pending another order, and agreeing to sell a second order of the substance to Hai Trinh in Sydney. Your conduct was over that period and involved more that those particular matters that are referred to in the plea opening, and I will come back to that.
26Although the Crown relied on your dealing only over the period between 24 July and 23 September, I am satisfied that your involvement commenced before the 24 July. Your involvement prior to that date is only to be considered by way of context or background and I do not sentence you for it, and I was referred to the case of R v Tranter No.2 [2014] SASCFC 66.
27The fact, however, that you had received funds into your bank account from Fairfield, NSW prior to 22July before the shipment was released, and that you were in daily contact with the freight forwarders, once the cargo landed on the docks, indicates that your dealing from 24 July was well and truly premeditated, and thus this increases your moral culpability.
28In sentencing you in this matter it is necessary to characterise your role in the overall importation enterprise. I am satisfied that you were not the mastermind or kingpin. The shipment was arranged from India probably by a person known as Bansal, possibly by your uncle. This is clear from your communications with Bansal following the advice that 24 tonnes balance of the shipment had been condemned.
29While the communications as they emerged at the trial were focussed on the customs issue, this is with Bansal, they were being made in a context where 15 tonnes of the substituted rice had already been shipped to the Vietnamese gentlemen in Sydney.
30In terms of your role, your counsel conceded that it was not unimportant. The Crown prosecutor submitted that your role was important as you were the intermediary or the facilitator between the Indian exporter and the ultimate recipients of the precursor in Sydney. I accept the Crown characterisation of your conduct and do not accept that you could be seen as being something of a conduit who was used by other unknown offenders.
31It is always difficult to understand the whole of the criminal enterprise. Here from the time of your involvement on 24 July until the police raided on 23 September you were a central player in moving the illegal precursor from the freight forwarder to your warehouse, and to the ultimate destination in Sydney. The depth of your involvement can be seen from the evidence that you were enquiring on virtually a daily basis from when the cargo landed in Melbourne until it was ultimately cleared.
32Next you were in communication with Mr Bansal at the Indian end of the operation. You were also in email and telephone communication with the Sydney ultimate recipients, and on two occasions someone travelled from Sydney, Stoner, to provide you with a BlackBerry to facilitate any encrypted communications. You also met with an individual from Sydney at your warehouse the day before the police raided your premises. All of these matters indicate that I must regard your involvement in the importation over the period of the charge as substantial.
33Importantly and most significantly, your dealing with the prohibited precursor was under cover of your rice importing business. Your warehouse and business structure, including invoices that you sent to Mr Trinh and selling to other customers, gave the importation enterprise a veneer of legitimacy.
34An issue here is when you became aware that the rice contained a prohibited precursor. The jury must be taken to have accepted that at some time during your dealings you believed that the shipment contained a prohibited precursor. I am satisfied that this must have been at least from early August when you effected the 15 tonne sale to Sydney. This was a large sale, and you sold it at $2.80 a kg, when you had been selling other rice to a local wholesaler at $1 per kilo. Further from around 8 August you commenced to use a BlackBerry communication device. That is not normal business practice.
35Your continued involvement from early August, including chasing up outstanding money, and arranging for a further shipment, which had not occurred before the police raid, as well as your involvement that can be inferred from the various encrypted and other communications, indicates that you had an active role in dealing with the importation right up until the raid and thus leads to a finding that you were fully involved.
36The variety and scope of your individual activities in dealing with the shipment over the period of the charge indicates that your moral culpability must be regarded as high.
37It was put on your behalf that you could not have known the quantity of precursor involved and there was no evidence to indicate that. I accept that, however, but as submitted by the prosecution, the sheer size of the rice shipment and the fact that the Sydney individuals immediately purchased the bulk of the rice that had been delivered to your premises, and then made a subsequent order must have indicated to you that this was no ordinary two container loads of rice.
38In seeking to lessen your moral culpability your counsel referred to the fact that you were not to receive substantial funds from your activity. I accept that you are not to be treated as a stakeholder in the enterprise. Counsel conceded that you had to be paid for the rice and indeed substantial sums had been deposited into your bank account before the shipment was actually released by Customs. On the other hand the profit margin that you received on the rice was arguably not very great.
39Overall in considering the seriousness of the offence the sheer quantum of the precursor is very relevant. This was something like 180 times a commercial quantity. Further, the evidence at the trial indicated it was not difficult for the precursor to be transformed into the dangerous drug through various methods, with a street value as I have indicated, potentially up to $220 million. While the figure is hypothetical, I sentence you on the basis that the precursor itself was worth many millions of dollars and the ultimate product would have been significant and yielded tens of millions of dollars.
40While your financial reward for your involvement was not great and you are not the principal of the enterprise, you played a major role over the period of the charge such that you should be sentenced on the basis that your role was somewhere between that of a courier and a principal. You were a substantial intermediary figure - a key figure in moving the precursor from the docks to the proposed manufacturer in Sydney.
Matters in Mitigation
41I turn now to matters put in mitigation on your behalf. The first matter that your counsel put was that you are a person with no prior convictions in either Australia or in India. There was evidence to that effect from the informant and in addition you called at the trial a number of character witnesses to indicate your good character both in India, and your good character and reputation since you arrived in Australia and worked in the taxi industry.
42Two more witnesses testified to similar effect on this plea and 12 testimonials to similar effect were tendered on the plea. I accept that you are a person of prior good character. This is a factor relevant to your prospects of rehabilitation which I regard as reasonable. I cannot regard them as higher than that given that you continue to deny your offending.
43I turn now to more detail as to your personal circumstances. Some of the details are set out in a medical report from Ms Pamela Matthews, forensic psychologist, dated 16 June 2014. You are now aged 33 and born in India in the Punjab Province. You came from a rural area where your father was a dairy farmer. You had an older brother who died in childhood and have a younger brother and sister. Your grandfather died in 2009, your grandmother is still alive as are both your parents. Your sister recently married in India. You told Ms Matthews that you were a subject of sexual abuse by a male cousin during your childhood. You achieved Year 12 equivalent at school but were not a good student and following school you began a computer course but did not complete the course but rather came to Australia in 2006. You undertook studies in Melbourne in horticulture at Chisholm TAFE and completed that qualification in 2009. You also commenced working in the taxi industry as well as working at a car wash. At the trial evidence was led from the manager of a taxi depot, in support of your character evidence. It is clear you have been a valuable contributor to that particular depot and to members of the wider community in your area. At one stage you returned to India but then came back to Australia in 2011 and lived in Springvale. You were on a bridging visa. You returned to taxi driving on night shift. In 2012 you established a business seeking to import rice and in late 2012 and early 2013 you were successful in importing some rice and you distributed it to friends and retail outlets.
44On the trial evidence was led as discussions between yourself and your Resham. As I have indicated she gave evidence in the trial. Despite being in custody you have since married Resham, who works in the health care sector.
45I have referred to the report of Ms Matthews. She saw you in June 2014 for the purpose of an unsuccessful bail application. In that report she indicates that you are suffering, or were suffering from post-dramatic stress disorder and presenting at that stage with chronic and acute symptomatology. Your condition, she opined, arose out of your dysfunctional childhood and as a result of an assault inflicted on you in the MRC. She indicated that you needed to be provided with psychological intervention and support. She was also of the view that the symptoms were unlikely to abate without support.
46Your counsel did not rely on any Verdins considerations. He indicated however that he relied on the report of Ms Matthews as indicating your current psychological condition which was likely to continue.
47I have had regard to that report and give it some weight. You are likely to be isolated in prison and you have indicated that you were the subject of an assault in prison, and I am satisfied that prison will weigh more heavily on you than a person who has ties in the Australian community.
48I have also take into account that you have been in custody for 717 days on remand. During that time you have been in police cells and in a number of different prisons, including a period of two weeks in a management unit. I have given this period on remand weight in your favour.
Sentencing considerations
49General deterrence is a very important consideration in sentencing for this type of offence. First the rewards involved in the venture were very great, potentially very great. The difficulty of detection is great. The importation was perpetrated under cover of your legitimate business. The damage that would be inflicted on the community by the ultimate product would have been very great. Sentences of the courts upon those involved anywhere in the drug hierarchy, including a precursor chemical, must send a signal that the risks outweigh the rewards. These principles must apply to any of those involved in any role in the importation of a precursor to the actual illicit drugs.
50In sentencing you I have sought to give effect to the comments of Maxwell P in Nguyen.
51Denunciation is also important sentencing consideration. The sheer magnitude of the illegal substance here and its value when detected calls for a sanction that denounces your conduct and your involvement in the importation.
52I must also consider the matters set out in s.16A of the Crimes Act (Cth). I must also apply the principle that imprisonment is to be a sanction of last resort. Your counsel Mr Danos did not submit that a sentence other than imprisonment was an appropriate sanction.
53I have considered the matters set out in s.16A. The principal matters to be considered are the nature and circumstances of the offence, which I have discussed previously. Under paragraph (f) I am satisfied you have not shown any contrition for your offending. Under paragraph (h) I am satisfied that you have not cooperated in relation to the offending. You told a number of lies in both records of interview and refused to provide the pin code for your BlackBerry device. I have taken into account however in your favour that you made a number of admissions in the trial which was run in an economical fashion by your counsel.
54Under paragraph (j) of s.16A I do regard a need for specific deterrence as relevant consideration, even though you have no prior convictions. I do this given your plea of not guilty. Under paragraph (k), adequate punishment is a very important consideration given the sheer magnitude of this attempted importation and your role in it.
55I have taken into account your character, antecedents, age and mental and physical condition. You are entitled to some weight for your good character but as it been stated in a number of occasions in relation to drug offending, prior good character does not carry substantial weight. I have assessed your prospects of rehabilitation as reasonable.
56I note that you have become married since you entered custody and no doubt your sentence will have an impact on your wife. I do not give this any significant weight given that she must be taken to have married you in circumstances where you are facing this serious charge.
Comparable cases
57Your counsel tended an extract from some Commonwealth sentencing statistics (Exhibit Three), indicating the range of sentences that have been imposed for this type of offending. He noted that the head sentence for importing a border controlled precursor in a commercial quantity and the middle range was between 53 and 96 months for the principal offence.
58The learned Crown prosecutor tendered two tables of sentences to provide possible yardsticks. The first was a series of cases of attempt to import a border controlled precursor and the second was a series of cases involving actual importations. There was a difficulty in considering comparable cases as the facts are never similar and some involved pleas of guilty which result in a discount, often not quantified. In a case of Ngo, 10 November 2012, which involved an attempted importation of approximately 50 per cent the size of this attempted importation on a plea of guilty in the NSW District Court, a sentence of seven years was imposed.
59In another case Phan, on 3 July 2009 (NSWDC), on a plea of guilty to importing a precursor where the amount was 19 times the commercial quantity and the offender was described as a principal, the sentence of 11 years was imposed.
60Another case of some possible relevance is Jalacaty 20 December 2010 (NSWSC). That was case which was a charge of conspiracy to import a precursor in more than a commercial quantity and the relevant prisoner had a lesser role in the overall conspiracy but was the person whose business received the container containing the secreted pseudoephedrine. The conspiracy was over a two-year period and the amount sought to be imported was 60 times a commercial quantity. On a plea of guilty the sentence was ten years imprisonment and a discount of 40 per cent was given for assistance to the authorities.
61In another case, Anagnosotopollo 16 December 2010 (NSWDC), the amount imported was 98 times a commercial quantity and the offender was described as having an intermediate role and pleaded guilty, and the head sentence was 11 years. A discount for the plea of guilty was 35 per cent.
62As I have indicated the various sentences in the tables and indeed the broad statistics provided by Mr Danos provided at best only a yardstick. The maximum penalty is an important indicator of the seriousness of the offence and the quantum of the precursor involved, as well is its value and your role are important considerations in an assessment of the overall gravity and where this offending should be in the scale of comparable cases. On any view, my assessment of the scale of this enterprise and your role in it, calls for a sentence at the upper end of the range.
63I am required to fix a non-parole period. The median non-parole period according to Exhibit 3 which is the tables submitted by Mr Danos is around 60 per cent of the head sentence. Those statistics include both pleas of guilty and not guilty. As I have indicated I regard your prospect of rehabilitation as reasonable but you have pleaded not guilty and therefore your prospects are not as good in my assessment as a person who has admitted his involvement and taken responsibility for it. I have set a non-parole of being the period that you are required to serve before being eligible to be released in the community to serve the balance of your sentence, having regard to what I regard as an appropriate matter of deterrence.
64I have determined that no other alternative is available other than a sentence of imprisonment. I have taken into account all the submissions made on your behalf by your counsel. Could you please stand.
Sentence
65I sentence you to a term of imprisonment of 11 years on the count. That sentence is to commence this day. I direct that you serve a minimum term of eight years before being eligible for parole. I declare that you have served 717 days pre-sentence detention, excluding this day.
66I must explain the sentence. I have sentenced you to 11 years' imprisonment. After eighty years you will be eligible for parole, if the authorities are prepared to consider it, and I have declared you have already served 717 days of that sentence.
67Are there any other matters Madam Prosecutor?
68MS BRECKWEG: No, Your Honour.
69HIS HONOUR: Mr Danos?
70MR DANOS: No, Your Honour.
71HIS HONOUR: I thank counsel for their assistance in the trial and adjourn sine die.
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