Director of Public Prosecutions v Sell

[2018] VCC 1946

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02341

DIRECTOR OF PUBLIC PROSECUTIONS

v

NADINE SELL

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2018
DATE OF SENTENCE:	23 November 2018
CASE MAY BE CITED AS:	DPP v Sell
MEDIUM NEUTRAL CITATION:	[2018] VCC 1946

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Import marketable quantity of a border controlled drug.
Legislation Cited:  Crimes Act 1914 (Cth)

Cases Cited:DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, DPP (Cth) v Johie [2013] VSCA 308, R v Neto QCA [2016] 217, R v Mills (1998) 4 VR 235

Sentence:Total effective sentence is four years and three months’ imprisonment with a non-parole period of two years and six months’ imprisonment before being eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sim	Commonwealth Director of Public Prosecutions
For the Accused	Mr B. Nibbs	Valos Black Lawyers

HIS HONOUR: 

1Nadine Sell, 29 October 2018, you pleaded guilty to one charge of importing a marketable quantity of a border controlled drug.  This charge has a maximum penalty of 12 years' imprisonment. 

2The plea hearing for your case was adjourned to 21 November 2018, to allow time for the trial of a co-accused Patryk Narloch, to take place and to obtain a psychological report in respect of yourself. 

3You are a German national.  You were arrested for this offence at Tullamarine Airport on 19 July 2017.  You have been in custody since that day, at total of 492 days pre-sentence detention to the day of your plea hearing.

Circumstances of your offending

4On 19 July 2017, you were a 21-year-old German national.  The prosecution tendered a document dated 19 November 2018, entitled “Prosecution Summary for Plea Hearing” that was Exhibit “A”. 

5Your offending was detailed in that document as follows: 

6At about 4.15 am on Wednesday, 19 July 2017, you and Patryk Narloch arrived at Melbourne International Airport on Etihad Airlines flight number EY462 from Abu Dhabi.  You both had travelled on an earlier flight from Düsseldorf, Germany to Abu Dhabi, where you both boarded a flight to Melbourne.  Both you and Mr Narloch disembarked from flight EY462 upon its arrival at Melbourne International Airport. 

7Both you and Mr Narloch attended at the Australian Border Force (“ABF”) immigration control, presenting Incoming Passenger Card (“IPC”) that you had each completed and signed.  You and Mr Narloch then cleared immigration control. 

8You then proceeded to the baggage carousel to collect your baggage. 

9After collecting your suitcases, you have then been approached by an ABF officer, Ms Morrison, who asked you and Mr Narloch to accompany her to the ABF’s secondary baggage examination area.  ABF officer Morrison then directed Mr Narloch to go with a separate officer, Mr Martin, and Ms Morrison conducted a baggage examination of your suitcase.

10ABF officer Morrison escorted you to an examination bench and asked you to produce your IPC, which you had completed in pencil and Ms Morrison, asked you to complete it in pen, which you did.  On that form you declared you were not bringing into Australia various prohibited goods, including illicit drugs. 

11The ABF officer then asked you a series of questions about the IPC and your baggage. You provided answers including that you understood the questions on the IPC, that you had packed the bags yourself and everything in the bags belonged to you, and that you were not carrying more than $10,000 Australian dollars (“AUD”).

12The ABF officers then conducted a search of your luggage, including a black Samsonite suitcase.  Your baggage was swabbed for the purposes of an Ionscan test that returned a presumptive positive reading for cocaine.

13The examination of your bag was then moved to an ABF interview room.  The baggage examination was then audio and video recorded.  The examination of your baggage revealed that there were two concealed packages beneath the lining of the Samsonite suitcase.  After the presumptive Ionscan testing result indicating a positive result for cocaine in your suitcase, the ABF officers notified the Australian Federal Police (“AFP”).

14The AFP officers subsequently attended where the ABF officers were holding you.  Upon the police attendance, the ABF informed the AFP of what had occurred up until that time.  The ABF officers then transferred the items that had been seized from you to the police. At 9.32 am on
19 July 2017, you were arrested and interviewed by the AFP at Melbourne International Airport.

15A German interpreter assisted you during that interview.  At 9.40 am, the interview was suspended.  You were then transported to the Federal Police complex at Melbourne Airport.  The interview then recommenced at about 11 o'clock and you continued to be assisted by a German interpreter.

16During that interview you answered questions that were asked of you by the police. Some of the answers you gave during that interview including the following: 

(a) That you had previously been to Australia in April 2017, and had delivered a suitcase containing what you believed to be currency, on that occasion, 700,000 euros, which you had been told by “Hamad” was for the purposes of buying machines to save taxes.  That is how you became involved in this.  On that occasion the sniffer dogs went over the bag that you brought into Australia.

(b) You were required to constantly provide your location details to the persons known as Hamad and David in Germany, who you had been dealing with. 

(c) You were instructed to delete the WhatsApp messages after you were sending and receiving them. 

(d) Hamad had tried to call you on the morning of your arrest. 

(e) The instructions you were given about providing the suitcase upon arriving to Melbourne. 

(f) That you had not met Narloch, the person you were travelling with, until you attended at his house in Germany on the day of your flight from Germany. The suitcase for both you and Mr Narloch were provided to you at Mr Narloch's house shortly before you needed to depart the house to go to Düsseldorf Airport and you set out the process of obtaining the plane tickets at the airport.

(g) You were paid 1,500 euros to deliver the suitcase to an unknown person in Melbourne and that you had received that money. 

(h) That you had possession of your suitcase at all times from it being given to you at Mr Narloch's house, to it being checked in at the Düsseldorf Airport.

(i) That you were going to stay at the Metropole Hotel in Fitzroy, which had been booked for you for six nights when you came to Australia. 

(j) That you did not know the suitcase contained cocaine or any drugs and did not expect there to be any drugs in the suitcase, as the sniffer dogs, referred to earlier, had sniffed the suitcase when you travelled to Melbourne in April and the dogs did not react on that occasion.

(k) You were aware about one or two weeks before you flew to Melbourne, in July 2017 that someone else had been arrested by police for having cannabis in their baggage.

(l) Despite believing your suitcase had 700 euros concealed in it, you answered no to the question on the IPC, as to whether or not you were bringing in more than $10,000 AUD into Australia. 

(m) That you had told Hamad that if anything suspicious did occur, you should just say that you bought the suitcases in a flea market and nothing much would happen.

(n) Hammad told you there would be someone looking at you for the duration of your flight. 

17Items in the possession of yourself were initially seized by the ABF officers and then transferred to the AFP on that same day that you arrived at Melbourne Airport.  Karina Craig, an AFP crime scene investigator, deconstructed the suitcase that you had.

18Mr Little-John, who was the informant in this case was present during the examination of your case.  The two packages concealed with the suitcase contained white powder.  The total gross weight of the powder in the two packages in your suitcase was 994 grams.  A presumptive and pre-analytical test conducted on traces of the white powder indicated that powder had the presence of cocaine.  The sample of the powder was taken and sent to the National Measurement Institute for full analysis.

19A chemist analysed the powder and found that it contained 79.7 per cent cocaine.  The total pure weight of cocaine found in the two packages, which were concealed in your suitcase, was a total of 792.2 grams of cocaine.  A marketable quantity of cocaine is not less than 2 grams. 

20Your iPhone 7 was also seized.  It was forensically examined and an examination of your phone revealed messages using a WhatsApp messaging service.  The first set of messages related to discussions travelling to Melbourne in late April 2017.

21The second set of messages was that you had contacted Narloch the day before your flight to Melbourne in July 2017, and you were saying that you were flying tomorrow.  There was discussion between both you and Mr Narloch about the arrangements for the following day being the day of travel.  During the WhatsApp messaging between yourself and Mr Narloch, you said that you were concerned that it would be discovered that you had flown to Australia before and that if it was discovered, you would not be allowed to travel.

22A further WhatsApp conversation between yourself and an individual referred to as “Tobi”, on 3 July 2018, revealed the following: 

(1) You were aware that a man had been arrested because he had grass on him and now states that now "Only a boy and a girl are allowed to travel together". 

(2) You gave instructions to Tobi about only travelling to the same country once every six months. 

(3) You explained to Tobi that a suitcase will be provided to him and that he will have to buy a new one in Australia.

(4) That Tobi threatened to take information to the police.  When he did threaten, you replied, "We'll find you and you will disappear".

23The quantity of drug you imported into Australia was approximately 40 per cent of a minimum commercial quantity and 396 times the minimum marketable quantity of cocaine.  You were paid 1,500 euros to deliver the suitcase.  Others paid for your flights and accommodation in Melbourne.

Your personal circumstances

24At the time of the offence you were 21 years old.  You are now 22.  You were born in Germany and lived there until your arrest here in Australia on
19 July 2017. 

25You are the only child of Andreas and Marian Sell.  Your father works in the import-export electronic business in Germany.  Your mother works as an accountant.  Neither of them have visited you since your incarceration in Australia.  You have reported a dysfunctional family relationship between yourself and each parent.  Your father is alcoholic on your description and away from home a lot on work matters.

26Your mother was verbally and physically abusive towards you in your formative years.  The most significant child-adult relationship you enjoyed were with your maternal grandparents.  Your grandmother died when you were eight.  Your grandfather passed away when you were 15.  In summary, you have grown up lonely and alone.  You reported to Ms Lechner, clinical psychologist, that you spent "A lot of time alone in your room".  Ms Lechner, in her report dated
16 November 2018, which was Exhibit “2”, states that due to your upbringing and strained relationships with both parents, you have few friends and seek approval and acceptance from your intimate partner.

27You have completed the equivalent of Year 12 education.  You were studying a degree in media and event management before embarking on your ill-fated trip to Australia.  Ms Lechner assesses you as having at least average intelligence.  You were in a relationship with a “Samantha” at the time you offended.  Prior to offending, you had incurred debts in the range of $5,000 (it may have been euros) on living expenses and gifts to your partner. You could not obtain financial help from your parents to pay that debt.

28You engaged in this offending for a sum of 1,500 euro, again, in order to reduce your debt.  I note you spent some of that euro money on a purchase of a ring in Abu Dhabi on your way to Australia.  You have been in custody on remand, awaiting the finalisation of this prosecution.  The language and customs are different from your country.  You have no visitors.  Your gaol time has been difficult and will continue to be so.  You have engaged in courses and counselling to improve your symptoms for depression.

29You know that at the completion of your sentence in Australia, you will be deported to Germany.  There is uncertainty about what will be required of you from the authorities in Germany when you return home.  You were young, emotionally immature and naïve about the ways of the world when you left Germany.  When you return to Germany that will not be the case. 

Sentencing Considerations

30The most significant consideration when sentencing a federal offender such as yourself is s.17A of the Crimes Act, which provides as follows: 

“… a court shall not pass a sentence of imprisonment on any person unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case”. 

31A term of imprisonment is the only appropriate sentence for your offence. Section 16A of the Crimes Act sets out a non-exhaustive list of factors a court must take into account and take into consideration when sentencing a federal offender such as yourself.

32There are many factors I must take into account when sentencing you, which are set out in the Act.  These factors include:

(a) The nature and circumstances of your offence.

(b) If your offence forms part of a course of conduct.

(c) Any injury, loss or damage resulting from the offence.

(d) The degree to which a person has shown contrition for the offence.  In your case, remorse has been set out in Ms Lechner's report and it is confirmed by your plea of guilty. 

(e) That you have pleaded guilty to the offence.

(f) That the deterrent effect of any sentence or order under consideration may have on a person. That is specific deterrence to you.

(g) The deterrent effect of any sentence or order under consideration may have on other persons, that is the general deterrence factor. 

(h) The need to ensure you are adequately punished for your offending. 

(i) Your character, antecedence, age, means, physical and mental condition.

(j) The prospects of your rehabilitation.

(k) The probable effect that any sentence or order under consideration will have on your family.

33As I have said before, you have pleaded guilty to this charge.  Your plea of guilty was indicated at a relatively late stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect this community.

34Your plea also is a clear indication and acknowledgement by you that you accepted responsibility for your criminal behaviour on this occasion.  Your plea also recognises that you are willing to facilitate the course of justice in this community and I accept that your plea to this charge indicates and demonstrates remorse on your part.  Your plea of guilty in this case is of particular significance due to the number of witnesses and the complexity of the evidence that would necessarily have been needed to call in a trial.

35I accept your plea is indicative of your remorse for this offence.  At the time of the offending, you were 21 years old.  I regard you as a young offender.  It is a principle of sentencing law in this country that when a young offender such as yourself is to be sentenced, the sentencing disposition should be tailored, taking into account all other sentencing considerations to promote your rehabilitation.  This approach serves both the interests of the individual offender and the community as a whole.

36In the case of Mills (1998) 4 VR 235, three propositions of sentencing were set out and I will read them out:

"i. Youth of an offender, particularly a first offender should be a primary consideration for a sentencing court where the matter properly arises. 

ii. In the case of a youthful offender, rehabilitation is usually far more important than general deterrence.  This is because punishment may in fact lead to further offending.  Thus, for example, individualised treatment focusing on the rehabilitation is to be preferred (The court noted that rehabilitation benefits the community as well as the offender). 

iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effects of his past criminality.  The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified".

37In your case your relative youth is a consideration that justifies a shorter term of imprisonment than would otherwise have been imposed on a person of more mature years and experience of life. 

38You have no prior convictions either here on in your home country, Germany.  You are educated and have shown a proven capacity to learn.  I regard your prospects of rehabilitation as good.  You show some insight into the effect of your offending as set out in your letter to this court, which was Exhibit “3”.  I accept your time on remand, some 16 months, has been a period where you have grown up.

39You understand the connection between actions and consequences much more sharply now than you did before you got on the plane in Düsseldorf on 17 July 2017.  You have spent your time on remand in a positive manner.  You have engaged in education courses, personal development courses and, most significantly, the Marrmak Psychological Service sessions on a weekly basis since May of this year.  That is Exhibit “4” on the plea. This psychological treatment concentrates on the mental health issues relevant to you. 

40You have been assessed by Carla Lechner, clinical psychologist for the purpose of this plea hearing.  She prepared a report dated 16 November 2018.  That was Exhibit “2”.  Ms Lechner opines that you meet the criteria for Complex Development Trauma, Major Depressive Disorder and Alcohol Use Disorder.  You have no drug abuse problems in your past.  Your main problem has been with the abuse of alcohol.

41You have been abstinent for the period of your incarceration and have returned negative results to drug screening tests in prison.  I accept that your condition of Major Depressive Disorder, in the extreme range, will make your time in custody more burdensome than for a person of normal mental health.  Further, I also accept that any time you have and will spend in custody will be more difficult for you because you are in a foreign country and consequently you have no visits from friends or family whilst you are incarcerated.  I take these two factors in combined into consideration when fixing a just sentence for you. It is expected that you will be deported immediately once your sentence of imprisonment is completed. 

42In sentencing you I have to have regard to the current sentencing practices.  This is but one factor I am required to take into account and your case is different from every other case as they are from one another.  In order to obtain a national sentencing consistency, I have regard to the decisions of the intermediate appellate courts in all states and territories in Australia. 

43The use of comparable cases is to assess a “yard stick” to illustrate the range of sentences but not define sentences with any mathematical precision. The learned prosecutor handed to me, two cases for my assistance; DPP v Johie [2013] VSCA 308 and R v Neto QCA [2016] 217. 

44The relevant factors to take into account when assessing the seriousness of the charge and your offending here are as follows: 

(1) The amount of the drug of cocaine is nearly 400 times the marketable quantity but is 40 per cent of the commercial quantity. 

(2) The benefit that you were to obtain was one payment of 1,500 euro. 

(3) Your role is that of a courier.

(4) You were motivated by using the money to pay off debts. 

(5) You have pleaded guilty. 

(6) You have made admissions to the police about your offending and they were very open admissions. 

(7) Your 'recklessness' was relevant to the importing of cocaine as distinct from your intention to bring undeclared cash into Australia. 

(8) You are young.

45I assess your offending as being in the range of, what has been described as, group three for importing a marketable quantity of a prohibited drug. This is set out in the case of DPP Commonwealth v De La Rosa (2010) 79 NSWLR 1. The sentencing principles of general deterrence, specific deterrence and denunciation of your offending dictate that a term of imprisonment is the only just sentence.

46Would you stand please?

47On Charge 1, you are convicted and sentenced to four years and three months' imprisonment.  The sentence is to commence on this day, 23 November 2018.  I fix a non-parole period of two years and six months' imprisonment. 

48I declare that you have served 494 days pre-sentence detention in respect to that sentence.  Pursuant to s.6AAA, but for your plea of guilty, I would have sentenced you to six years' imprisonment with a non-parole period of four years.  And I have signed the forfeiture order to which you have consented.

49Ms sell, what the sentence is, is if you have been speaking to those that you currently live with.  The top sentence is four years and three months and you are eligible for parole after serving two and a half years, two years and six months and you have already served 494 days of that time.  That is the sentence.  What I want to say to you Ms Sell is that when you are released from prison here in Australia and taken home to Germany, do not let this terrible event define the rest of your life.

50You go back to Germany.  You go back to your studies and make the most of your life.  You have got a good future.  Look forward to it.  Thank you.  Thanks Madam Interpreter.  Is that form of the sentence appropriate, Mr Prosecutor?

51MR SIM:  It is, Your Honour, yes.

52HIS HONOUR:  Sometimes I mess these up ‑ ‑ ‑

53MR SIM:  No.  No. ­

54HIS HONOUR:  ‑ ‑ ‑ with Commonwealth matters.  Yes.  Thanks.  Is everything all right, Madam Interpreter?

55INTERPRETER:  It's all right, yes.

56HIS HONOUR:  Thanks.  If you could remove the prisoner.  Mr Sim, I'm going to hand down this folder ‑ ‑ ‑

57MR SIM:  Thank you, Your Honour.

58HIS HONOUR:  ‑ ‑ ‑ which has some contents for the - your instructors.

59MR SIM:  Thank you.

60HIS HONOUR:  Thanks for your assistance, Mr Sim, Mr Nibbs.

61MR NIBBS:  As Your Honour pleases.

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