Director of Public Prosecutions v Tawfik

[2018] VCC 1665

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02259
CR 17-02264

DIRECTOR OF PUBLIC PROSECUTIONS

v

YOUSSIF TAWFIK
BAMBANG SAPUTRA

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2018
DATE OF SENTENCE:	11 October 2018
CASE MAY BE CITED AS:	DPP v Tawfik
MEDIUM NEUTRAL CITATION:	[2018] VCC 1665

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Borg with Ms K. Breckweg (Plea) Mr A. Albore (Sentence)
For Accused Tawfik	Mr D. Sheales
For Accused Saputra	Mr R. van de Wiel QC

HIS HONOUR: 

1Youssif Tawfik and Bambang Saputra, you have both been convicted by a jury of one charge of conspiracy to import a commercial quantity of a border controlled drug.  This is an extremely serious criminal offence, the maximum penalty is life imprisonment. 

2In October 2016, the Kaiyo Maru 8, the (‘KM8’), left China and headed south.  In a rear compartment of the vessel were 187 kilograms blocks of cocaine.  The KM8 travelled past Indonesia and down the west coast of Australia, before turning east to cross the Great Australian Bight.  It arrived at its planned rendezvous point about 300 nautical miles southwest of Port Fairy.  The plan was to offload the cocaine to a group of people intending to meet the KM8 out at sea.

3You, Tawfik, were the coordinator of the group tasked to collect the cocaine from the KM8.  You communicated with the Chinese regarding your progress.  You planned the logistics of the various attempts to collect the cocaine. 

4You, Saputra, came to Victoria from Sydney as the representative of the criminal group ultimately importing the cocaine.  You liaised with Mr Tawfik about the final attempt to reach the KM8.  You communicated with the Sydney importers, relaying messages to Tawfik.  You had full knowledge of the cocaine being transported in the KM8. 

5A third man, one Moshey Youkhana, has also been convicted of conspiracy to import a commercial quantity of cocaine.  He was involved in the attempt to land the cocaine from the start of the conspiracy.  He was described by you, Tawfik, as a "soldier".  He coordinated crew members for each of the three failed attempts to reach the KM8.  He purchased boats, organised payments and was a crew member on each of the three attempts.  He is yet to be sentenced by this court. 

6Initially it was planned to use a boat named "Shark Cat" to land the cocaine.  That boat could not be ready for the task, so another vehicle was purchased to effect the retrieval.  The "Lucky Strike" was purchased for $185,000, with the finance concealed through the bank accounts of others.

7On 1 December 2016, the Lucky Strike was being transported to Port Fairy, when it fell off its trailer and was damaged.  Despite attempts to fix it with duct tape, it was then unsuitable for the intended task, so another vehicle was purchased. 

8You, Tawfik, arranged for the Chinese to be informed of the delay incurred and the KM8 began circling in its position awaiting for you to collect the cocaine. 

9On 3 December, the next vessel, the "Perceive", left Port Fairy and headed out towards the KM8.  After travelling south overnight, the vessel returned to Port Fairy because of rough weather. 

10On 6 December 2016, you, Saputra, arrived from Sydney and travelled to Port Fairy with Tawfik.  Your conversations were tape-recorded.  You discussed retrieving the cocaine from the KM8 and contemplated, at some stage, stealing some of the cocaine. 

11Early on 7 December, the vessel set out again for the KM8, but crashed on rocks in the harbour.  The vessel had to be abandoned.  The KM8 then sailed off towards South America, but was intercepted south of New Zealand by the Australian Navy and Federal Police.  The cocaine was seized.  The pure cocaine weight of 187 bricks, was 123.84 kilograms.  A commercial quantity is two kilograms.             

12You, Tawfik, were arrested on 18 January 2017 and you, Saputra, on 1 June.  You both made "no comment" records of interview.

13At your trial you both argued through your counsel, that you intended to import a precursor chemical and not a border controlled drug.  Neither of you gave evidence.

14You both admitted prior criminal histories.  You, Tawfik, have a significant history.  You have numerous traffic convictions for offences such as speeding and driving whilst disqualified and I think about ten.  At the age of 17 you were before the Children's Court on charges of intentionally causing serious injury, assault, perverting the course of justice, possession of cannabis, possessing a controlled weapon and possessing proceeds of crime.  You were sentenced to youth detention.  You were convicted of affray in 2009. 

15On 3 November 2010, you were before the Melbourne Magistrates' Court on charges of trafficking cannabis, receiving stolen goods, dealing with proceeds of crime, possessing methylamphetamine, possessing cannabis, possessing a controlled weapon, possession money being the proceeds of crime, possess heroin and possess ecstasy.  You were sentenced to a partially suspended term of imprisonment and a community corrections order.  In 2013 and 15, you were sentenced to further community corrections orders on driving offences. 

16You, Saputra, were convicted of traffic offences in 2009 and on 17 January 2011, were before the Melbourne Magistrates' Court on charges of deal with proceeds of crime and possess a drug of dependence.  You were fined $2,400. 

17Turning to your personal circumstances and dealing with you, Tawfik, first.  You are now 27 years of age, being born on 25 September 1991 in Melbourne.  Your personal history is set out in Exhibit T2, the psychological report of Matthew Staois.  You are the second of four children to parents of Egyptian background.  Your family struggle financially and domestic violence created pressure that saw you "gravitating towards negative peer influence and substance use". 

18You spent time in youth detention and prison.  You ceased substance use on your release from custody.  You moved out of home at the age of 19 and were in a four year relationship that terminated because of this offending.  You had a disrupted education, but finally completed Year 12 at RMIT TAFE.  You had a number of part-time jobs before opening a property development business with your brother.  You are assessed as low-average to average level intelligence by your reporting psychologist. 

19You made various assertions to your psychologist about the offending, in particular paragraph 7.3 of Exhibit T2 reads:

"Whilst discussing his current offending, Mr Tawfik expressed remorse and was able to appreciate the seriousness of his offending.  As time progressed, Mr Tawfik stated that he was able to recognise the seriousness of the matters in which he participated and despite his efforts to break contact with his co-offenders, was not able to due to pressure and reported threats of violence.  He attributed his actions to poor decision making, the influence of dominant older peers, who he initially believed had his best interests in mind.  Given his susceptibility to negative peer influences and limited consequential thinking skills, it is my opinion that
Mr Tawfik was not able to properly assess the potential negative ramifications of the situation that he had placed himself in.  He appeared to present as an individual who is likely to struggle in instances where assertiveness is required."

20I want to make it clear that I do not accept the accuracy of the assertions you made to the psychologist.  It is, in my view, self-serving hyperbole.  You demonstrated control, assertiveness and insight in the listening device telephone intercept material.  At p.564 of the tendered material, Exhibit H, you told Saputra:

"I've got to protect myself.  I was trying to keep out of it.  This whole thing, I've put my face to it, so if they went out, the investigators, I'm paying for petrol, my voice is on the phone calls, boat people we purchased and that's conspiracy.  You know what I mean."

21Later: 

"We gotta reset and regroup.  These cunts, they're normal people.  Moshey's not gonna get dodgy cunts.  It's a fucking perfect plan, bro."

22At p.568 you said:

"It's all perfect until we had an accident.  Everything after that was mother nature."

23There is no evidence of threats of violence, there is no evidence to support your assertions to the psychologist.  Indeed you and Saputra actually discussed ripping off the cocaine and making five to $10m each.  Later you both talk of stealing any blocks of cocaine, more than 184 expected by the Sydney syndicate.  You were motivated by greed.  You can be heard to organise the attempted importation confidently and with full knowledge of the risks you were running. 

24A bundle of references were tendered to the court on you plea, Exhibit T1.  You enjoy the support of your family.  You brother, Younis, describes you as a great role model and mentor.  He says you have studied whilst on bail and have been involved in volunteer work.  You are described as a devoted son, brother and friend.  Your brother, Yasin, describes you as a fantastic role model and uncle to his daughters.  He says in business you are reputed to be honest,
hard-working and reliable.  You are said to be responsible and caring.

25Your mother outlines her reliance upon your financial support and your caring, generous nature.  Your friend, Andree Phung, outlines your business and building skills and asserts that you have a good heart.  Bakri Shanino, from the Muslim Connection Program, outlines your involvement with that organisation and describes you as a pleasure to work with.  Your friend, Busra Kirmaci, describes you as an extremely caring person who assists others and who is devoted to his family.  Naile Cicekdag, describes you as an honourable individual, a valuable member of the community and good and respectable.  Tugba Cicekdag echoes those sentiments.

26Ramzi Elsayed from the Islamic Council of Victoria, outlines your connection to your mosque.  You have attended religious guidance classes and volunteered for a range of community activities.  He said you have matured and demonstrated contrition for your past.  You are said to be trustworthy and honest. 

27Your completion of your Certificate IV Building and Construction course was also tendered.  I take those references and materials into account in sentencing you. 

28Turning to you, Saputra, you are now 31 years of age, being born on 5 August 1987 in Central Java.  You are married, have a six month old child and are a permanent resident of Australia.  You are not a citizen and are likely to be deported at the conclusion of your prison sentence.  And I will return to that subsequently.

29You were raised by your grandparents in Indonesia.  You came to Australia at age ten.  You were an average student, completing Year 12 level.  Your work history is set out in Exhibit S2 on your plea.  You have enjoyed effectively
full-time employment since July 2003 in the food and beverage industry, as a store manager in mailrooms, as a courier, as a truck driver, and as a café/restaurant manager. 

30Your four references were tendered as Exhibit S1 on your plea.  Your wife, Diem, describes you as kind-hearted, thoughtful and humble.  Until remand, you were the manager of an Indonesian restaurant/café in Sydney, working happily and hard.  You have assisted your father-in-law in his transport business.  She has known you for 12 years.  Since you married, you have struggled to have children and your son, Jacob, was the product of IVF.  She pleads for a future with you and believes you to be innocent. 

31Your father-in-law, Van Tran, confirms your involvement with his business and describes you as a trustworthy and hardworking employee.  You have helped him overcome psychological issues.  Your aunt's husband, Robert Bland, attested to your devotion to your family and your personal worth.  Your brother, Muhammed, states that you are a caring and compassionate person.  He outlines your involvement with his restaurant business and concludes that your offending is totally out of character for you. 

32I also take into account the extra stress you will endure because of the risk that you will be deported at the conclusion of your sentence.  You will find your time in custody more onerous as a result.  In addition, you will be in prison in Victoria, whilst your wife, child and other friends and family reside in Sydney.  This will make it difficult for them to visit you and increase your isolation in prison.

33Turning to your respective roles in the offending, it is significant to note that you have both been convicted of the same serious offence of conspiracy to import a commercial quantity of a border controlled drug.  It was the entering into the criminal agreement to import that quantity of cocaine that is the offence.  You both played different but important roles in the proposed crime.

34You, Tawfik, were intimately involved in the organising, planning and implementing of the proposed importation of cocaine.  I accept that you are not the ultimate importer, but were the leader of those tasked to import the drugs.  Your role was critical and long-lasting.

35You, Saputra, were involved for only a short period of time.  You were the eyes of the Sydney importers and represented that syndicate in Victoria at the attempted collection of the cocaine.  You were in Port Fairy to ascertain what had gone wrong in the past and to oversee the collection of the drugs.  You had clear knowledge of the size of the shipment of cocaine and its value.  You were paid or to be paid for your involvement.  Your counsel suggested $10,000, but the actual figure is unclear on the evidence.  At one stage you and Tawfik discussed making five to $10m each.  It is clear you were both motivated by greed.

36I have already sentenced two of the Chinese crew for the offence of attempting to import a commercial quantity of a border controlled drug.  They pleaded guilty and undertook to assist the prosecution in your trial.  They accordingly received substantial sentence reductions.  One man was the captain of the ship and the other the protector of the interest behind the Chinese providers of the cocaine.  The 6AAA statements for those persons were 28 and 29 years' of imprisonment respectively. 

37Your offence of conspiracy to import a commercial quantity of a border controlled drug was a high level example of that offence.  As Mr Sheales for you, Tawfik, conceded, a very serious example of a very serious offence.  Parliament has mandated, as I said, a maximum penalty of life imprisonment for this offence and you have conspired to import approximately 61 times a commercial quantity.

38As I said in sentencing Wang and Zheng, there have been larger attempted importations.  Neither of you were the principal suppliers or backers of the enterprise.  Your roles were significant and important and there comes a times when the quantity of drugs becomes so large that there comes little point in the fact that the quantity could have been greater. 

39Mr Sheales submitted that my analysis in this regard was erroneous.  He further submitted that the finding of the earlier appellate courts in similar cases demonstrated a range of sentences significantly lower than those imposed on Wang and Zheng.

40Clearly, in my view, the quantity involved in this case would see life sentences imposed on those behind the importation, the ultimate organisers in Sydney. 

41I have read all of the authorities referred to by all counsel.  The principles set out by the New South Wales Court of Appeal in R v Nguyen and Pham [2010]
205 A Crim R 106 and endorsed in Nguyen & Anor v R [2011] 31 VR 673, give this court guidance in these cases. I have had regard to the range of sentences for various categories of importation set out in those authorities and clearly this was a Group 1 category offence.

42General deterrence is the principal and paramount sentencing consideration in both your cases. However, I have had regard to all matters mandated by s.16(a) of the Crimes Act Commonwealth in arriving at a proper sentence for each of you. 

43The cases referred to by Mr Sheales also provide me with assistance.  Clearly though, each case depends on its own unique circumstances.  The maximum penalty is important.  The High Court in Dalgleish has recently affirmed the importance of a sentencing court paying due regard to the maximum penalty when sentencing for an offence.  Ultimately I am required to synthesise your roles in the offending, the quantity of drugs involved and take into account your personal circumstances and mitigatory features for each of you. 

44Mr Sheales submitted that Dalgleish had no part to play in this case, as the authorities he referred to have always, he submitted, had the maximum penalty as a significant sentencing factor.  He relied extensively on the case of Brown [2017] VSCA 162. He submitted that the sentences imposed in Brown should establish the sentencing range or the sentencing limit for this offence and not the case of Elfar & Golding [2017] QCA 170.

45I understand this submission but reject it.  Both cases are simply examples of sentences imposed by appellate courts in this country.  Neither case establishes sentencing limits for this offending.  The Director's submissions as to sentence in paragraph 81 of Brown do not bind or limit this court. 

46I am of the view that your role, Tawfik, is markedly more significant than that of Saputra.  That said, both your roles were important.  Your prior criminal history is more extensive, Tawfik, although I do note that you have not offended, save for this offending, since 2010.  In cases of this nature, prior criminal history is less relevant, given the enormous quantity of drugs involved.  I am of the view that your roles were slightly less significant than that of Wang and Zheng. 

47Your conspiracy failed because of your inability to implement your plans.  You boxed every step you took.  Had you succeeded, drugs worth more than $50m would have reached Australia.  Every sentence involves the exercise of judicial discretion and the synthesis of the factors I have referred to previously. 

48As the Court of Appeal in this State has said often, there is clearly no correct sentence.  There clearly should be consistency in sentence, but comparable cases are simply to provide guidance as to the identification of relevant sentencing principles and the establishment of a possible range of sentences for similar offending. 

49Mr Sheales submitted 20 years, with a non-parole period of 15 represented the upper end of the range of available sentences.  Mr van de Wiel, for you, Saputra, submitted that you did not merit a sentence of double figures.  For the reasons I have stated, I reject both those submissions. 

50Would you both stand up please.

51The sentence of the court are, on the charge of conspiracy to import a commercial quantity of a border controlled drug, you are both convicted. 

52You, Tawfik, are sentenced to be imprisoned for 25 years.  I order that you serve 16 years and nine months of that sentence before being eligible for parole. I declare that 232 days, not including today, as already being served by way of pre-sentence detention.

53You, Saputra, are sentenced to be imprisoned for 18 years.  I order that you serve 12 years before being eligible for parole.  I declare that 113 days of that sentence have already been served by way of pre-sentence detention.

54Are there any other orders required?

55MR ALBORE:  Just one final matter with respect to forfeiture, Your Honour. 

56HIS HONOUR:  What are we forfeiting? 

57MR ALBORE:  Just the Lucky Strike vessel and trailer and the Ford F250 vehicle.  

58HIS HONOUR:  I will make that order.

59MR ALBORE:  The Crown just seeks Mr Tawfik's consent to the order. 

60MR SHEALES:  We are not consenting to it, we're not opposing it.  The court can make the order.    

61HIS HONOUR:  No, they are not, but I am going to make the order regardless.

62MR ALBORE:  If Your Honour pleases. 

63HIS HONOUR:  All right.  Would you remove the prisoners please.