Director of Public Prosecutions v Hafner & Ors, CDirector of Public Prosecutions v Diallo

[2025] VCC 352

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-00566, CR-24-00201

CR-23-00985, CR-24-00199

CR-23-01556, CR-23-01205

DIRECTOR OF PUBLIC PROSECUTIONS (VIC)

and

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

(CR-23-01205)

v

DARREN HAFNER

SARAH BAINES

ABDUL DIALLO

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2024, 31 January 2025, 18 March 2025
DATE OF SENTENCE:	25 March 2025
CASE MAY BE CITED AS:	DPP v Hafner & Ors, CDPP v Diallo
MEDIUM NEUTRAL CITATION:	[2025] VCC 352

REASONS FOR SENTENCE

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Subject:Trial – sentencing, plea - sentencing

Catchwords:          Conspiring to traffick in drug of dependence - large commercial quantity - conspiracy to import commercial quantities of border controlled precursor - traffick in drug of dependence - possess drug of dependence - commit indictable offence whilst on bail

Legislation Cited: 

Cases Cited:

Sentence:Hafner         12 yrs 6 mths' imprisonment, non-parole period 8 yrs 4 mths
Baines:        11 yrs imprisonment, non-parole period 7 yrs
Diallo:          12 yrs 8 mths' imprisonment, non-parole period 8 yrs 8 mths

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APPEARANCES:	Counsel		Solicitors
For the Victorian DPP	Mr D. Brown		Office of Public Prosecutions (Vic)
For the CDPP (CR-23-01205)		Dr D. Gang		OffOffice of Public Prosecutions (Cth)
For Accused Hafner	Ms J. Kennedy		Leanne Warren and Associates
For Accused Baines	Mr R. Backwell		Sarah Pratt and Associates
For Accused Diallo	Mr N. Rolfe		Rolfe Criminal Law

HIS HONOUR:

1Abdul Diallo, Darren John Hafner and Sarah Elaine Baines, you have each been found guilty by jury verdict of an offence of conspiring to traffick in a large commercial quantity of methamphetamine.  The offence occurred on a single date, being 22 June of 2022.  However, there were many conversations which preceded that, going back to about the beginning of May of 2022, which involved all three of you and which provide evidence of the planning that went into the offending on 22 June of 2022.  The maximum penalty for that offence is imprisonment for life.

2You, Darren John Hafner, have also pleaded guilty to an offence of trafficking in heroin and an offence of possession of methamphetamine in a small quantity.  The maximum penalty for the offence of trafficking in a drug of dependence is 15 years and for possession of methamphetamine, imprisonment for five years.

3You, Abdul Diallo, have also pleaded guilty to a Federal offence of conspiring with others to import a border controlled precursor, namely pseudoephedrine, in commercial quantities.  That offending occurred between 30 January and 27 July 2022.  The maximum penalty for that offence is imprisonment for 25 years.

4You, Sarah Elaine Baines, have also pleaded guilty to two offences of trafficking in a drug of dependence in relation to charges on a separate indictment.  In Charge 1, the trafficking is said to have taken place between 19 January 2022 and 20 September 2022, in a drug of dependence, namely 1,4-butanediol, and in Charge 2, between 7 April 2022 and 20 September 2022, you have pleaded guilty to trafficking in methylamphetamine.  The maximum penalties for each of those two offences is imprisonment of 15 years. 

5In your case, Darren John Hafner, you have also pleaded guilty to an offence of breaching parole, for which the maximum penalty is imprisonment for three months.

6In your cases, Darren John Hafner and Sarah Elaine Baines, you have also admitted prior court appearances and convictions.  Mr Hafner, you have many different convictions over a very long period of time, resulting in a long sentence which you served up until not long before you were arrested on these matters.  In your case, Ms Baines, the offences did not involve drugs of dependence and resulted in non-conviction orders.  In your case, Mr Diallo, you have no prior criminal history.

7The prosecution tendered and relied upon a summary of prosecution opening for trial dated 15 September 2023, which sets out the relevant facts concerning the offence for which each of you were found guilty, being conspiring to traffick in a large commercial quantity of methylamphetamine, as well as to the other offences to which each of Mr Hafner and Ms Baines has pleaded guilty.  In relation to you, Mr Diallo, the Commonwealth Director of Public Prosecutions has provided a summary of prosecution opening for plea in relation to the Federal offence to which I have referred.

8I incorporate each of those summaries into my reasons for sentence.  I am not going to read them again, but I will summarise them briefly.  In relation to the offence against all three of you of conspiring to traffick in a large commercial quantity of methamphetamine, on the evening of 22 June 2022, you, Ms Baines, attended at an APCO service station in Settlement Road, Thomastown, to facilitate the sale of one kilogram of methylamphetamine.

9You, Darren John Hafner, had arranged with Ms Baines for a third party to provide $165,000 in cash, for the purchase of that one kilogram of methylamphetamine.  You, Abdul Diallo, had arranged for an associate to attend the APCO service station with the one kilogram of methylamphetamine.  Your associate did attend the service station that evening and provided a sample of the methylamphetamine to you, Ms Baines.  But for unknown reasons, the transaction did not proceed.

10The prosecution case is that each of the three of you conspired together to facilitate the sale of one kilogram of methylamphetamine that evening.  It is further alleged that your attendance at the APCO service station, Sarah Baines, was pursuant to that agreement and that you were expecting the sale and purchase arrangement to take place.  But the only reason the conspiracy did not come to fruition was that the transaction was not completed on that date, because apparently one of the unknown parties was unwilling to proceed with the transaction.

11As I have indicated, the events of that particular night did not occur in isolation.  There was considerable evidence of communication between all three of you, concerning a prospective transaction of that nature, from about 1 May of 2022 through to the evening of 22 June of 2022.

12You were arrested, Ms Baines and your property in Southbank Boulevard was searched.  Three containers of liquid containing 1,4-butanediol were found in the apartment and three Ziploc bags containing methylamphetamine.  Other items seized included a mobile telephone.  Subsequent examination of that phone revealed that you had been trafficking in methylamphetamine from about 15 January of 2022, during the period set out in the charge relating to that offending and also trafficking in 1,4-butanediol from 19 January of 2022, or thereabouts.

13You, Mr Hafner, were arrested at 10.30 am on 22 September 2022 and a number of items were seized from your property, including cash and 30 grams of heroin, which is the subject of the charge of trafficking in a drug of dependence said to have occurred on that date, that being in excess of the traffickable quantity of the drug heroin.  You were also found to be in possession of .9 grams of methylamphetamine, which was the subject of the second charge on the second indictment of possession of a drug of dependence to which I have already referred and to which you pleaded guilty.

14In relation to the Federal offence to which you have pleaded guilty, Mr Diallo, it is alleged that between 30 January 2022 and 27 July 2022, you were involved in the execution of an agreement with two co-offenders to import commercial quantities of a border controlled precursor, namely pseudoephedrine, into Australia from Malaysia, Dubai and India via air cargo.  Pursuant to that agreement, you were involved in the importation of three separate consignments containing commercial quantities of pseudoephedrine.

15The three consignments were known by law enforcement agencies as the Leena consignment, which involved the importation of 5.624 kilograms of pure pseudoephedrine.  There was the Parthiban consignment of 3.224 kilograms of pure pseudoephedrine and the Smith consignment of 4.089 kilograms of pure pseudoephedrine.  The total of the three consignments is 12.937 kilograms of pure pseudoephedrine, which represents 10.8 times the applicable commercial quantity of 1.2 kilograms.

16You were an active participant in that conspiracy in relation to each of the three consignments and as the prosecution points out in their sentencing submissions, the offending was not spontaneous or isolated.  That might apply  equally to the offending involving the State offence of conspiring to traffick in a large commercial quantity of methamphetamine.  The Federal offending was well planned and extended over a period of six months and was for financial reward.  The seriousness of the offence is greater when committed for financial reward.  Protection of the community and specific deterrence are accordingly very important sentence objectives.

17Turning to matters personal to each of you, and I will deal first with you, Darren John Hafner: your counsel provided me with an outline of submissions in support of your plea in mitigation dated 9 August 2024.  It was submitted in relation to the offence of conspiring to traffick in a large commercial quantity of methamphetamine, that the offence falls towards or into the lower range of this type of offending.  I agree with that and I think there is no dispute about that.  Although it is pointed out by the prosecution that it is nevertheless a very serious offence, because it is to be distinguished from, for example, conspiring to traffick in a commercial quantity, as distinct from a large commercial quantity.  The seriousness of the offending is marked by the maximum penalty of life imprisonment.

18It is certainly true that the quantity of methamphetamine involved was not much over the large commercial quantity threshold.  It involved an expectation of profit of some $5,000 from the transaction, which is relatively modest compared with many offences of a similar kind.  It was submitted, and correctly so, that that is a relevant factor in determining the degree of your culpability, the seriousness of the offending and ultimately the appropriate sentence.

19The offending did involve a breach of terms of parole that you were under at the time and it was drawn to my attention that I needed to consider the lengthy period of custody that you had been the subject of until shortly before this offending conduct, the risk being that you may become seriously institutionalised beyond that which may well have occurred to some extent, if not completely at the present time. 

20I was provided with other material which helped me understand your background and your current circumstances.  Amongst other items that I was provided with are a report from Jeffrey Cummins dated 31 July 2024, which became Exhibit H-2, a letter from Dr Jeremy Johnson by way of a character reference, Exhibit H-3, a letter from your older sister, which became Exhibit H-4.  I will say a little bit more about that in a minute.  A letter from T&P Developments dated 20 July 2024, which became Exhibit H-5.  A reference from Kerry Lissenden dated 6 June 2024 became Exhibit H-6.  A letter from Nicole Wilson by way of character reference dated 1 April 2024 became Exhibit H-7.  A number of certificates of achievement and completion of rehabilitative programs were collectively Exhibit H-8 and a letter from the Australian Community Support Organisation dated 18 March 2025 was Exhibit H-9.

21I have taken into account the contents of all of those.  I go back initially to the quite lengthy letter from your sister, because that seemed to me to provide a quite detailed account of your life and the difficulties that you have encountered: the effect of the death of your firstborn child upon you, your family and relationship histories, your descent into drug use and into crime and the ups and downs in what had become a life chequered by terms of imprisonment and crime and chaos.

22Nevertheless, there is a human being under all of that and your sister, two years older than you, has captured that quite well, in my respectful opinion.  She shows a side of you which really belies the kind of record that you have racked up.  It is quite sad, in many respects, to reflect upon the opportunities you have had and the ways in which you have failed to live up to your own expectations and aspirations.

23That picture of the human being behind the criminal façade is quite helpful.  I have no doubt that you bitterly regret having become involved in this offending conduct, the result being that you are now facing a substantial term of imprisonment and a bleak future.  All of that I need to take into account.

24As Mr Cummins points out in his report, under mental state examination you looked and sounded despondent and depressed.  You presented as being at least moderately depressed and mildly anxious.  At the time of his report in July of 2024, you told him that you had simply not come to terms with the fact that you had been found guilty of conspiracy to traffick a large commercial quantity of methamphetamine and you expressed concern that you may die whilst incarcerated.  It is not surprising in those circumstances that you should have a reactive depression.

25Mr Cummins noted that you appeared, in his opinion, to meet sufficient criteria to be diagnosed with borderline personality disorder and with a dependent personality style.  He noted that, at that time when he spoke to you, you were held in mainstream custody in Marngoneet Correctional Centre and that you were medicated in relation to a heart condition, diabetes and chronic mental health problems.

26He noted, as is apparent from the other material, that you have the support of your mother and your older sister, your sons, daughters and friends.  You had a difficult upbringing in many respects and that will no doubt have had some bearing upon what has transpired in later life.

27Turning to you, Mr Diallo, you have no prior convictions.  I was provided by your counsel with an outline of defence plea submissions dated 14 August 2024, which were supplemented by a further outline of defence plea submissions dated 30 January 2025.

28In addition, I was supplied with a report dated 15 August 2023 from Gina Cidoni, which became Exhibit D-3.  Exhibit D-4 was a report from Patrick Newton dated 16 January of 2025. 

29Exhibit D-5 was a letter dated 15 September 2023 on the letterhead of Modiobere Fulbe Victoria.  It is from Abdoulaye Diallo, dealing with your role with that organisation, which is to enable members of the Fula community to integrate into the wider Australian community with its diversity and inclusion. You were said to be a valuable member of the organisation, helping to set it up back in 2014, and displaying a community-orientated mindset, and you have spent many of the last few years leading and helping grow the community in Victoria, and also around Australia.

30Exhibit D-6 was a letter evidencing your employment at the Epworth Hospital.  Exhibit D-7 was a number of certificates of achievement in relation to courses and rehabilitative measures that you have engaged in during your time in custody.     

31Exhibit D-8 is a letter from Mohamed Kamara on the letterhead of Sierra Leone Muslim Association Victoria and that relates to your quite significant role and support of that organisation.  He describes you embodying great charisma, hard work, a strong passion for gemstones, respect and tolerance.  You have been a pivotal member of that community’s outreach programs and you had supported many children and families in that community by teaching them folk tales and Islamic readings and writings, being part of the organisation's homework club and being an active role model for children of the associated families.

32Exhibit D-9 is a letter from your wife concerning the current situation as it prevailed at 4 March 2025, when the letter was written, concerning the family visits to you whilst you have been in custody and noting the financial strain that she and the family are under as a result of your incarceration.  You have been married for a number of years and have five children, ranging from the age of 15 down to four, the two youngest being four-year-old twins.

33Exhibit D-10 is a letter from Centrelink concerning the family assistance to which your family is entitled.  Exhibit D-11 is a letter from the Bank of Queensland, concerning your mortgage obligations on the family home.  Exhibit D-12 is a urine screen collected on 19 December 2023, showing that you are negative for all illicit substances. 

34I have also been supplied with and have taken note of the sentencing remarks of Her Honour Judge Todd, who was responsible for sentencing each of your co-offenders in the Commonwealth conspiracy matter.

35It seems that your background, growing up as you did in Sierra Leone, was attended by considerable trauma.  Your father was murdered during the civil uprising when you were 17 years of age.  You were captured by rebel forces, where you were subjected to detention over the course of a period of two months and you gained your freedom eventually when the Guinean Army intervened, but you were placed in a refugee camp, where you remained from 1999 to 2003.  Then, at the age of 23, you arrived in Australia with two brothers.

36You currently hold both Australian and Sierra Leonean citizenship.  Your wife, who you met in Guinea, joined you in Australia in 2008.  Initially you settled in Sydney and then moved to Victoria in 2015.  In 2020, you and your wife and family moved to Melton South.  Your wife, family and community are your main supports.

37Despite your setbacks, you were able to achieve academic attainments after arriving in Australia and you have been in consistent employment over a number of years, holding positions in retail and more recently as a sterilisation technician in hospital, as well as being a security guard.  You were working part-time at the Epworth Hospital at the time of your arrest and also as a part-time delivery driver for Amazon.  You were working two jobs in order to help relieve the financial stress on your family unit.

38You have succumbed in more recent times to methamphetamine use and so far as the reports of Ms Cidoni and Mr Newton are concerned, I accept that Mr Newton has identified a basis for concluding that you will find a term of imprisonment more onerous and that limb 5 of Verdins is made out.

39It is submitted that I should find that there is a basis for concluding that limb 6 of Verdins is also made out because I should conclude that there is a serious risk of significant harm to your mental health, as a result of the mental disorders identified, arising from your incarceration.  It does not seem to me that the reports by Ms Cidoni or Mr Newton support that conclusion, although I am certainly satisfied that limb.5 of Verdins, namely, that you will find your time in custody more stressful as a result of your mental impairment, is made out.

40There is, of course, a risk that your mental impairments will deteriorate, but that is quite commonplace and the Verdins principles are relating to something that goes beyond that.  I am not satisfied, as I indicated, that any other Verdins principles apply.  I do not think that it is suggested that any others, other than Verdins 5 and 6, apply to this sentencing exercise.

41I am persuaded that Bugmy principles apply.  It seems to me clear that you had a very traumatic period whilst living in Sierra Leone and therefore that that is a consideration which I should take into account, and I do.

42Nevertheless, that has to be balanced against the fact that these are serious offences that you had opportunity, during the period in which the both the State and the Federal offences were committed, to consider, reconsider and reconsider again whether you should proceed with your involvement in that offending conduct.  Therefore, there is an element of individual deterrence that needs to be given proper value in determining an appropriate sentence.  In that sense, a degree of public protection is inherent in the sentencing considerations.

43That said, in relation to the Federal offence, you have pleaded guilty and it seems to me that absence of prior convictions and other factors combine to assess your prospects of rehabilitation as reasonable to good.  That is also to be taken into account in your favour.

44I need also to consider parity of sentencing in relation to the Commonwealth conspiracy matter, that is, between the sentences passed upon your co-offenders in that matter.  I have given careful consideration to that.  I note that the sentence for your co-accused Thasthahir was in relation to the same offending, a sentence of six years and nine months, with a non-parole period of four years and five months.  He pleaded guilty to the same offence in relation to each of the three consignments that you have admitted participation in.  However, in his case he had a relevant prior criminal history, but the Bugmy principles do not apply in his case.

45In relation to the other offender Kromah, although he was involved in only two out of the three consignments, he was on parole at the time of the offending for relevant criminal offences and he received a significantly greater sentence of imprisonment of eight years and six months in relation to his offending. 

46Turning to you, Ms Baines, your counsel provided me with an outline of plea submissions dated 28 January 2025, which is Exhibit B-1.  I also received a report dated 11 September 2024 from Gina Cidoni, psychologist, which is Exhibit B-2, a letter from Better Health Network dated 12 February 2024, which is Exhibit B-3, a letter from your mother dated 28 January 2025, Exhibit B-4, which highlights many of your good qualities.

47Exhibit B-5 is a letter on the letterhead of Vision Facility Services concerning your role as a proprietor of your cleaning business and the work that you undertook on behalf of that organisation, commending you on exceptional dedication and professionalism in your role as a cleaner servicing Community Care Chemists.  It is said that your attention to detail and commitment to excellence have not only earned praise from their clients, but also resulted in an expansion of their contracted hours with them. 

48Exhibit B-6 is a letter and a summary of the letter from you.  More recently, I have been supplied with a typed version of that.  It is dated 6 February 2025 and whilst I generally do not encourage letters of that kind, I take note of its contents.

49Exhibit B-7 is a letter from Banyule Community Health identifying the link between your offending and your gambling behaviour and indicating that you had attended eight therapeutic counselling appointments, beginning on 30 September 2024.  Exhibit B-8 is a series of certificates of achievement from Western Health addressing your drug issues, your depression and anxiety and relapse prevention.

50Exhibit B-9 is a letter from Joseph John Boroje expressing his 'heartfelt support' for you and indicating that he is the founder of Scrap 4 Kids, a charity dedicated to supporting youth impacted by crime, and saying:

'I have had the privilege of knowing Sarah for over a decade.'

He goes on to note that your life journey has been marked by significant adversity, working tirelessly on the family farm, and speaks of your resilience and your positive attitude, despite your incarceration pending today's hearing. 

51Your counsel summarises the matters relevant to sentence succinctly.  You were born and raised in Altona.  You have an older and a younger sister.  You finished Year 12 at school and completed an advanced diploma in business management at Box Hill TAFE.  You worked in retail as a distributor and as a cleaner and you run your own business.  In particular, at the time of your arrest, you were involved in running your own cleaning business.  You apparently started using illicit drugs at age 22, methamphetamine being your drug of choice, as well as GHB.  It is your first time in custody.  You have undertaken drug courses and you worked in drug courses and you worked in horticulture.  You have become a personal care attendant to a prisoner who has mobility issues and has lost her sight.  You have had no incidents since you have been in custody.  You are a representative on the health advisory group committee.  You are prescribed medication to help you sleep and you have had visits from family and friends.  It is pointed out that you have a limited criminal history and I think I have already indicated that your court appearances did not result in any conviction being recorded.

52It is submitted that you have reasonable prospects for rehabilitation, particularly if you can address your substance abuse issues.  It is accepted that your offending is serious and that the only disposition open to the court is a term of imprisonment, to be served immediately. 

53I have to consider carefully the interaction, in your case Mr Diallo, between the Commonwealth sentencing regime and the State sentencing regime.    

54I have been helpfully provided with an outline of prosecution plea submissions by Dr Gang, which helps me navigate the Commonwealth sentencing provisions, so far as they apply to the offence to which you pleaded guilty, identifying comparative sentences and submitting that no other sentence, other than a term of imprisonment of a length requiring a non-parole period, is appropriate for the Federal offending.  There is no dispute about that.

55At paragraph 10 in the outline of prosecution plea submissions, Dr Gang sets out references to your role in the offending and submits, at paragraph 11, that the offending was not spontaneous or isolated, it was well planned and extended for six months and was for financial reward.  In paragraphs 13 to 15, Dr Gang deals with the question of parity of sentencing as between your co-offenders Thasthahir and Kromah.  Doing the best I can to marry all of those sentencing considerations, I proceed to sentence.

56MS KENNEDY:  Sorry, Your Honour, I have to raise an issue in regards to
Mr Hafner ‑ ‑ ‑

57HIS HONOUR:  Yes, please do.

58MS KENNEDY:  ‑ ‑ ‑ and I believe it is what he was waving about.

59HIS HONOUR:  Do you want to have a quiet word with him whilst I am not in court, or ‑ ‑ ‑

60MS KENNEDY:  I am pretty sure it is in regards to the breach of parole that you referred to.  He was not in breach of parole at the time of this offending.

61HIS HONOUR:  Sorry, I think I have misspoken there.  There was another related summary offence ‑ ‑ ‑

62MS KENNEDY:  There were some ‑ ‑ ‑

63HIS HONOUR:  ‑ ‑ ‑ and that is, I have a note of it here somewhere.  Where is it?

64MS KENNEDY:  I would just ask Mr Hafner to indicate, that is what you were waving about, is it not?

65HIS HONOUR:  I do not know whether he can hear you.  Can you hear us, Mr Hafner?

66OFFENDER HAFNER:  I can hear you.

67MS KENNEDY:  Yes.

68HIS HONOUR:  It is – yes, okay, thank you very much.  Yes, it is the related offence of committing an indictable offence whilst on bail, correct?

69MS KENNEDY:  Correct.  Was not – it was not a breach of parole.

70HIS HONOUR:  No.

71MS KENNEDY:  That is right.  They were not – he had finished his parole.

72HIS HONOUR:  That is right.

73MS KENNEDY:  Yes.

74HIS HONOUR:  I misspoke.

75MS KENNEDY:  Thank you, Your Honour.  I just wanted to clarify that for his sake.

76HIS HONOUR:  Yes and I think he has heard me.

77MS KENNEDY:  Yes, thank you, Your Honour.

78HIS HONOUR:  It is an offence which carries a maximum term of imprisonment of three months ‑ ‑ ‑

79MS KENNEDY:  Yes, it was not the parole, it was the ‑ ‑ ‑

80HIS HONOUR:  ‑ ‑ ‑ but it is something that I have to obviously pronounce sentence upon.

81MS KENNEDY:  Yes Your Honour, thank you.

82HIS HONOUR:  All right, thank you.

83MR BROWN:  Your Honour, in relation to that, I have got a note from my instructor and I think it accords with what was in my court book, that as per the notice of related summary offences, these charges, being commit an indictable offence on bail and contravene a conduct condition of bail, were all withdrawn at the plea hearing on 14 August.

84HIS HONOUR:  Ah.

85MR BROWN:  I do not know whether that accords with what your associate has recorded or ‑ ‑ ‑

86MS KENNEDY:  Yes, sorry, yes.  You are dealing with Mr Hafner for just three charges.

87HIS HONOUR:  Well, this is the time to get this sorted out.

88MR BROWN:  Yes, yes, yes.

89MS KENNEDY:  You are dealing with him for just three charges.  The conspiracy, that he was found guilty at trial.

90HIS HONOUR:  And the ‑ ‑ ‑

91MS KENNEDY:  And the traffick and possess methamphetamine charges, that he entered a plea of guilty to prior to trial.

92HIS HONOUR:  Well, look, it would never have made any difference to the overall sentence, I can assure you.

93MS KENNEDY:  No, no, no.

94HIS HONOUR:  So it is really a formality ‑ ‑ ‑

95MS KENNEDY:  Yes.  There were summary matters that went back to the Magistrates' Court and there were matters withdrawn.

96HIS HONOUR:  ‑ ‑ ‑ but if the formality is that those sentences were – sorry, those charges were withdrawn, then of course, that is the end of the matter.

97MS KENNEDY:  Correct, thank you, Your Honour.

98HIS HONOUR:  Yes.

99MR BROWN:  Yes and they were probably withdrawn because it would have been concurrent in any event.

100HIS HONOUR:  Well, I can assure you it would have been.

101MR BROWN:  Yes.

102HIS HONOUR:  So, there we are.  Thank you.  We can get rid of that.  So, Darren John Hafner, in relation to Indictment C2215699.1A, on the charge of conspiring to traffick in a large commercial quantity of methylamphetamine, you are convicted and sentenced to imprisonment for 11 years and six months.

103On Indictment N12061649, on Charge 1 of trafficking in heroin, you are convicted and sentenced to imprisonment for two years.  On Charge 2 of possessing methamphetamine, you are convicted and sentenced to imprisonment for three months.

104I order that one year of the sentence of two years for the offence of trafficking in heroin be cumulative upon the sentence of 11 years and six months, the subject of Charge 1 on the first indictment to which I referred, making a total effective sentence of 12 years and six months and I fix a non-parole period of eight years and four months.

105Well, my associate is usually fairly accurate in these things and she says he pleaded guilty to a related summary offence of committing an indictable offence whilst on bail.

106MR BROWN:  Well, if it is on the court record, Your Honour, perhaps it can be convicted and discharged?

107HIS HONOUR:  Then he is convicted and discharged.  Thank you.

108DR GANG:  My apologies, Your Honour.  While counsel are getting on their feet, I just have one clarification, which is probably neither here nor there.  In relation to Mr Kromah's sentence, in terms of Commonwealth co-accused, the maximum penalty that Her Honour Judge Todd considered was life sentence, when actually the maximum penalty is 25 years.  This matter was raised also in relation to Mr Thasthahir, the other co-accused and I thought it is proper to raise it now.  The plea submissions for Mr Diallo correctly state the maximum penalty for Mr Diallo for the same charge, which is 25 years.

109HIS HONOUR:  Twenty-five years.

110DR GANG:  Yes.

111HIS HONOUR:  Yes.  So, what is the net effect of what you are telling me?

112DR GANG:  The net effect probably in terms of Mr Diallo's sentence will be minimal to none.  It is just that the error was detected in relation to Mr Kromah's sentence.

113HIS HONOUR:  Right.

114DR GANG:  It was raised before Her Honour Judge Todd, when Her Honour heard pleas for Mr Thasthahir and so, it is probably right that I raise it in front of Your Honour ‑ ‑ ‑

115HIS HONOUR:  I see, all right.

116DR GANG:  ‑ ‑ ‑ in relation to Mr Diallo.

117HIS HONOUR:  So we do not know what sentence, if anything, might have been appropriate to Mr Kromah ‑ ‑ ‑

118DR GANG:  Had ‑ ‑ ‑

119HIS HONOUR:  ‑ ‑ ‑ had Her Honour been aware of the mistake at the time, is that what you are saying?

120DR GANG:  Yes Your Honour and the net effect of that, or the net effect of that on Mr Diallo's sentence.

121HIS HONOUR:  Yes.  However, I can be confident that Her Honour was given the correct facts when she sentenced Mr Thasthahir?

122DR GANG:  Thasthahir, yes ‑ ‑ ‑

123HIS HONOUR:  Yes.

124DR GANG:  ‑ ‑ ‑ and Her Honour was corrected about that life sentence versus 25 years, when it came to Mr Thasthahir.

125HIS HONOUR:  Yes and he was sentenced to six years and nine months, I think, was he not?

126DR GANG:  Yes, non-parole period of four years and five months.

127HIS HONOUR:  Yes, thank you.  Dealing next with you, Mr Diallo, for the State offence of conspiring to traffick in a large commercial quantity of methamphetamine, you are convicted and sentenced to imprisonment for
10 years, noting as I do that you have no prior convictions, and for that offence I would set a non-parole period of six years and eight months.

128In respect of the Federal offence for which Mr Thasthahir was sentenced to six years and nine months, noting as I do that he had a relevant prior conviction, although no Bugmy issues, you are convicted and sentenced to imprisonment for six years for that offence, I fix a non-parole period of two years, which is designed to provide a foundation for the order that I now make as to when the Federal sentence commences.  I am required to state that and I state that the sentence commences immediately after the end of the non-parole period for the State charge, the non-parole period being six years and eight months.

129Therefore, the total effective sentence, taking into account both the State and the Federal charge, would be 12 years and eight months and the non-parole period would be eight years and eight months.

130I always ask the Federal prosecutor whether I have interpreted s19 correctly and the other sections that are necessary to consider.  I think I have, but I will give you the opportunity of telling me I am wrong, Dr Gang, if you think I am.

131DR GANG:  Yes Your Honour.  I was following along.

132HIS HONOUR:  Yes.

133DR GANG:  So just to – just to confirm, State non-parole period, six years and eight months ‑ ‑ ‑

134HIS HONOUR:  Yes.

135DR GANG:  ‑ ‑ ‑ plus an additional six years ‑ ‑ ‑

136HIS HONOUR:  Yes.

137DR GANG:  ‑ ‑ ‑ makes 12 and eight ‑ ‑ ‑

138HIS HONOUR:  Yes.

139DR GANG:  ‑ ‑ ‑ and that is the total effective sentence?

140HIS HONOUR:  That is the total effective sentence ‑ ‑ ‑

141DR GANG:  In practice, the whole non-parole period is six years and eight months, plus two years, makes eight years, with eight?

142HIS HONOUR:  Correct.

143DR GANG:  That is that whole non-parole period for practical purposes?

144HIS HONOUR:  Yes.

145DR GANG:  And then one declaration of presentence detention can be made in relation to all those sentences?

146HIS HONOUR:  Yes.  Now, I think I failed to mention Mr Hafner's presentence detention?

147MS KENNEDY:  Yes you did, Your Honour.

148HIS HONOUR:  And it is 915 days?

149MS KENNEDY:  Correct, Your Honour.

150HIS HONOUR:  We are agreed on that?

151MS KENNEDY:  Yes.

152HIS HONOUR:  In your case, Mr Hafner, I declare 915 days presentence detention as time to be reckoned as served on the sentence that I have imposed upon you and in your case, Mr Diallo, I declare 972 days as being the presentence detention applicable to the sentences that I have imposed upon you and to be deducted administratively from the time that you will actually have to serve.

153Moving on to you, Ms Baines, I treat you as having no relevant prior criminal convictions like Mr Diallo. So far as your sentencing is concerned and in relation to Indictment C2215699.1B, where you were convicted by a jury, I make it clear to you, as I should make it clear to both Mr Hafner and Diallo, that I am not able to give you any credit for a plea of guilty obviously, although I am not punishing you extra for the fact that you chose to go to trial by jury, rather than pleading guilty to those offences.  I cannot give you a discount for sentences for pleading guilty either and therefore in respect of Charge 1 on that indictment of conspiring to traffick in a large commercial quantity of methamphetamine, you are convicted and sentenced to imprisonment for 10 years.

154On Indictment N12050615, on the charge of trafficking in 1,4-butanediol, you are convicted and sentenced to imprisonment for one year.  On Charge 2 of trafficking in methamphetamine over a period of some months, you are convicted and sentenced to imprisonment for two years and six months.

155I order that one year of the sentence on Charge 2 on that second indictment be served cumulatively upon the sentence of 10 years on the first indictment, making a total effective sentence of imprisonment for 11 years.  I fix a non-parole period of seven years.  I declare 230 days presentence detention as time to be reckoned as served on the sentences that I have imposed.

156In your case, forfeiture and disposal orders are made in conformity with the drafts I have already signed.  Mr Hafner, forfeiture and disposal orders in relation to you that I have omitted to mention are also signed.  Are there any other matters, counsel?

157MS KENNEDY:  No, Your Honour.

158MR BACKWELL:  No, Your Honour.

159MR BROWN:  No, Your Honour.

160DR GANG:  No, Your Honour.

161MR ROLFE:  No, Your Honour.

162HIS HONOUR:  Thank you.  Thank you all for your assistance.

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