Director of Public Prosecutions v Fariq Aqbal Omar

[2019] VCC 530

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01973

DIRECTOR OF PUBLIC PROSECUTIONS

v

FARIQ AQBAL OMAR

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	9 April 2019
DATE OF SENTENCE:	12 April 2019
CASE MAY BE CITED AS:	DPP v Fariq Aqbal Omar
MEDIUM NEUTRAL CITATION:	[2019] VCC 530

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty to importing commercial quantity of a border-controlled drug, heroin – flight attendant  for Malaysian Airlines – payment of $500 to be received at Melbourne – remorseful -  34 years old – wife and young children live in Malaysia  - hardship for family is considerable but not exceptional  – isolated in prison-  poor English
Legislation Cited:  S. 16 A Commonwealth Crimes Act
Cases Cited:Cappis v R [2015] NSWCCA 138, R v Agboti [2014] QCA 280 at [47] DPP (cth) v Masange, DPP (Cth) v Kachunga [2017] VSCA 204De La Rosa [2010] 79 NSWLR 1 ,
Sentence: 5 years 6 months, non-parole period 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. O. Go	Office of Public Prosecutions
For the Accused	Mr. M. Kozlowski	Unite Legal

HER HONOUR:

1Fariq Aqbal Omar, you have pleaded guilty to one charge of importing a commercial quantity of a border-controlled drug, namely heroin

The Offending.

2At the time of the offending, you were employed as a member of the Malaysian Airlines cabin crew.  On 13 May 2018, you arrived in Melbourne on a flight from Kuala Lumpur in possession of ten wrapped blocks containing 2659.9 grams of pure heroin. 

3The prosecution opening, Exhibit A, sets out the details of the observations made of you and captured on CCTV as you walked through the airport after leaving the plane.  The following is a summary of what occurred. 

4You were seen initially wearing your Malaysian Airlines uniform, and rectangular bulges were visible in the front pockets of your trousers and in your vest.  At Customs, you presented a signed crew declaration form marked with the word, "No" in answer to all questions, including, and I quote: "Are you bringing into Australia goods that may be prohibited or subject to restrictions such as medicines, steroids, illegal pornography, firearms, weapons or illicit drugs?"  You cleared Customs and were then seen on CCTV entering a public bathroom in the airport with your suitcase. 

5Several minutes later, you were seen leaving the bathroom, no longer wearing your vest and the rectangular bulges in your pockets were no longer visible.  You then left the terminal and boarded a bus with the other Malaysian Airlines crew members. 

6Australian Border Force officers then approached the bus and asked the crew to return with their bags to the bag examination area.

7While waiting in that area, you were captured on CCTV turning towards the wall and taking brown-coloured blocks from your suitcase and putting them into your jacket pockets. 

8Australian Border Force officers then approached you, cautioned you and asked you what was in your pockets.  You said, "Not sure, but I think it is drugs."  You said it was given to you by a friend in Malaysia to give to someone in Melbourne.  You were taken to an interview room where you voluntarily removed ten rectangular blocks from your pockets. 

9You were interviewed and said that you had been contacted two weeks earlier by two men in Malaysia, one of whom you knew to be a former employee of the airline, and the other was that man's friend.  They gave you packages which they said contained tobacco and asked you to take them to Melbourne and give them to somebody there.  That person would collect the packages from your hotel room.

10You were instructed to take the items out of your bags and have them in your pockets while going through Customs.  You were to receive payment of $50 per block, a total of $500.  You told the police you thought the packages contained tobacco, or shisha, and you did not know they contained heroin.  You were remanded in custody and have remained there since. 

Personal background and circumstances

11You are a married man, aged 34, the father of two boys aged 7 and 4.  Your background is that you grew up in the State of Johar Bahru in Malaysia, where you completed secondary school, followed by a marketing degree at college. 

12You obtained employment with Malaysian Airlines as a flight attendant, training on the job and employed full time from 2009.  You were frequently commended for your performance and for your contribution to the airline, and letters were tendered confirming that.

13When you were charged with this offence, your employment was terminated, and when you are released from custody after serving your sentence you will have to create a new career.  Your plan includes the possibility of working in the food industry or driving taxis. 

14You have been married to your wife, Qaisarah for eight years.  She and the children live in Malaysia and she gave evidence of how life has changed for the family in your absence for almost a year.  As she and you both worked fulltime before your arrest, the family was doing moderately well, financially. 

15Your wife works as an administrative assistant for the Royal Malaysian Police Force, and in addition, she has taken on casual work as a housekeeper to augment her income, which is approximately between a quarter and a half of your previous salary. 

16She is continuing to pay the mortgage on the home you used to share, but she has temporarily moved into her parents home in order for her mother to be able to mind four year old Danish while she is at work.  She explained that Danish had previously been in day care, but she had to terminate this when he was abused by his carer and came home with bruises. 

17Your wife's mother has poor health, suffering from heart failure and is often short of breath, but the family cannot afford the required oxygen treatment so she manages instead with an asthma pump.  Your wife's father has opened a shop to bring in an income. 

18Danish suffers from an eye problem associated with a blocked tear duct for which surgery was unsuccessful two years ago, and may have to be repeated if the symptoms recur. 

19In addition to the letters of commendation, many character references from friends and family members have been tendered, describing you as a kind and helpful, family-focussed man who has never been known to offend in any way.  Indeed, you have no prior convictions in your home country or in Australia where you have visited some 53 times in the course of your work.  You have no problems with substance abuse of any kind.

Sentencing considerations

(i) Gravity of the offending

20The seriousness of the charge of importing a border-controlled drug is readily apparent from the maximum penalty of life imprisonment.  Your involvement was as a courier with no other involvement or knowledge of the syndicate behind the importation.  Those who approached you with the request to convey the drugs, knew your occupation and exploited the opportunity that offered, as indeed, you did as well.  No flight or travel arrangements needed to be made as you were flying to Melbourne anyway. 

21Your motive was the same as is usual in such cases, the expectation of financial gain, although in this case, a very small gain.  It seems that the payment of AUD$500 was the equivalent of 1500 ringgit, the Malaysian currency, which I understand equates to an amount which would cover expenses for about two weeks. 

22In your case, it would pay for the equivalent of your house mortgage for a month and a half.  This can only be described as a very small financial gain and it is hard to comprehend how the enterprise with its high risk of being caught, would have appealed to you. 

23It was clumsily executed and entirely lacking in sophistication and the prospect of exposure was very high.  No real explanation for your involvement was offered in your police interview, nor as part of the plea, other than complying with the request by a former employee of the airline.

24From your behaviour at the airport in attempting to conceal the packages, the inference can easily be drawn that you knew you were importing contraband.  The prosecution's submission was that it is open on the evidence for the further inference to be drawn that you knew the substance was heroin or some other illicit drug rather than merely tobacco. 

25The arrangements made by the two men who gave you the packages for you to conceal the packages as instructed for the flight, and for the arrival in Melbourne, to be followed by a person meeting you at your hotel to take the packages from you, had all the hallmarks of a drug importation by a courier.  The enterprise was such, that even being told the packages contained tobacco, you would have known that they contained drugs, rather than being reckless as to the contents. 

26I am satisfied to the requisite standard that you knew the packages contained illicit drugs, although not necessarily heroin. 

27Taking on the role of a courier, whilst an employee of an airline, makes this offending more serious.  You had been to Australia many times before and would have been very familiar with the restrictions that apply to bringing items into the country.  You filled in a Customs form that day, stating that you were not bringing in any of the restricted or prohibited items, including illicit drugs. 

28The prosecution summary states that you were given the packages a week before your departure, that you told the police that the plan had been put to you a week earlier, and the packages were given to you the day before you travelled, which seems more likely.  In any event, the difference is of little importance, except to say that the plan and its execution was of very short duration. 

29The weight of the ten packages at 2659 grams is 1.77 times the threshold for a commercial quantity which is 1500 grams.  By any measure, that is a very large amount.  If sold at a wholesale level, it would be valued at a sum between $600,000 and $1.3m.  If sold at street level, it would be valued at a sum between $3,191,880 and $5,319,800. 

30While the quantity of the drug is not the only consideration in assessing the gravity of the offending, it must be said that the potential for harm in the community being wrought by the sale of the heroin imported in this case, would be extensive and the danger which can be caused to the community in this way, is accepted as being a matter to be taken into account in sentencing. 

31For this reason, the principle of general deterrence in cases such as this is an important sentencing factor, in addition to the fact that it is usually a difficult crime to detect.  I shall return later in these remarks to the issue of general deterrence, save to say at this point that your role as a courier is regarded as crucial to the distribution of illicit drugs, and in order to deter others the sentence must be significant, subject to the circumstances of the particular offender.

Mitigating Factors

32The fact that you have pleaded guilty to the charge means that you are entitled to a discount on your sentence for having facilitated the progress of the case and the criminal justice system itself. 

33Of course, the plea was entered in the context of a strong prosecution case but the utility of the plea must nonetheless be taken into account and given full weight.  The plea is also to be regarded as an indication of remorse, even in the absence of any other expressions of remorse. 

34The letter you have written to the court contains your apology, and you refer to having taken responsibility as soon as you were arrested and questioned by the police. 

35You participated in that interview and answered all questions, but did not accept that you knew or even should have known that the packages contained illicit drugs. 

36Remorse is pertinent to prospects for rehabilitation, and your prospects can be considered to be good, with the need for specific deterrence very much reduced. 

37Your actions have resulted in a very significant fall for you, from that of a man of undoubted character leading a fairly comfortable life with a good job of many years standing, regarded well professionally and socially, and with an established family life. 

38Previous good character is not to be accorded great weight in these cases, because it is nearly always a prerequisite for the offence, and is outweighed by the gravity of the crime.

39However, it is relevant to the question of rehabilitation and to some extent, it should be considered in the mix of factors that contribute to an assessment of appropriate punishment. 

40You will be serving your sentence, isolated from your family and with quite poor English and with few other prisoners who speak your language.  Your wife visited you in May last year and has been here for your plea hearing and sentencing, but loans had to be raised to pay for those visits, and she said in evidence that any further visits are unlikely.  Your children have not been told about your imprisonment and they believe that you are away working and will return soon.

41You will have to live with the isolation from them but also with your knowledge of the heartache and anguish this causes for your wife and of course, for the children.

42The hardship that the family is experiencing and will continue to suffer, is considerable, but does not amount to exceptional circumstances as your counsel suggested it might.  I take it into account as contributing very considerably to the burden that imprisonment will place upon you.  Of course, this is something you should have considered before you agreed to the importation, but nonetheless, I give it due weight[1].

[1] I was referred to the decision in Cappis v R [2015] NSWCCA 138 where this issue was discussed.

43I was referred to several cases from which a pattern in sentencing can be discerned, including decisions of appeal courts, as well as decisions at first instance.  Such a pattern was held in the case of R v Agboti[2] to provide a yardstick against which to examine a proposed sentence. 

[2] [2014] QCA 280 at [47]

44In the case of DPP (Cth) v Masange, DPP (Cth) v Kachunga[3], the Court expressed the need for caution in using categories of sentencing characteristics in determining an applicable range for a sentence. 

[3] [2017] VSCA 204

45Such categories had been produced in a table in the case of De La Rosa[4] and subsequently, in Nguyen v R, Phommalysackv R[5], the President noted that McClellan CJ in preparing that table, had not “ . . .purported to lay down quantitative sentencing guidelines” [6]. The end result is that each case has to be considered in respect of its' own particular characteristics.

[4] (2010) 79 NSWLR 1

[5] (2011) 31 VR 673, 683-4-[36]-[37]

[6] loc cit

46In this case, balanced against the gravity of the offending are the compelling mitigating circumstances to which I have referred. 

47General deterrence is the principle of greatest importance, particularly where the quantity of drugs was high, as in this case.  There is a much reduced need for specific deterrence to be the focus of the sentence as well, because of your previous good character and likelihood of successful rehabilitation. 

48Would you stand please, Mr Omar. 

49In this case, I have concluded that, having regard to the gravity of the offending, and the relevant matters I must take into account pursuant to s.16A of the Commonwealth Crimes Act, an appropriate sentence is a term of imprisonment of five years and six months. 

50I order that you serve a minimum period of three years before being eligible for parole.  I declare that you have been in custody for 333 days which is to be reckoned as already served, and I shall cause that to be noted on the court record. 

51If you had pleaded not guilty, I would have sentenced you to seven years imprisonment with a non-parole period of five years.  Is that calculation correct, Ms Go?

52MS GO:  Your Honour, my calculation for the pre-sentence detention was 333 days.

53HER HONOUR:  333, all right.  Do you agree with that?

54MR KOZLOWSKI:  I do, Your Honour, yes.

55HER HONOUR:  Are there any other matters that I have neglected or omitted?

56MS GO:  Your Honour, just needs to explain the sentence to the offender, pursuant to s.16F, with the service would be - if a parole order is made - the period of service - there is a period of service in the community called the parole period, at the complete the service of the sentence, that that parole order can be amended or revoked, that if that order is made, it will be subject to conditions and that, of the consequences that may follow if a person fails to comply with those conditions without reasonable excuse. 

57HER HONOUR:  Mr Kozlowski, will you be seeing your client in the cells afterwards?

58MR KOZLOWSKI:  I will, and I will again explain those matters to him Your Honour.

59HER HONOUR:  Could you please explain that condition to him, that breach of parole can of course result in him having to serve the whole sentence.

60MR KOZLOWSKI:  Yes.

61HER HONOUR:  And that the particular idiosyncrasy of the Commonwealth Sentencing Act in regard to the alteration of a parole order.

62MR KOZLOWSKI:  Yes, Your Honour, we'd do that as a matter of course, but of course, Your Honour.

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