Director of Public Prosecutions v Tolo & Sua
[2024] VCC 757
•22 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN LAZO (A PSEUDONYM) & |
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| JUDGE: | HIS HONOUR JUDGE MURPHY |
| WHEREHELD: | Melbourne |
| DATE OF HEARING: | 22 April 2024 |
| DATE OF SENTENCE: | 22 April 2024 |
| CASEMAYBECITEDAS: | CDPP v Lazo (a pseudonym) & Anor |
| MEDIUMNEUTRALCITATION: | [2024] VCC 757 |
REASONS FOR SENTENCE
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Catchwords: Sentence – Attempting to possess a border controlled substance – Complicity – aiding, abetting, counselling or procuring – Co-offending – Guilty Plea – Good prospects of rehabilitation – Limited criminal history – Weight to be given to the seriousness of offending in sentencing.
Legislation: Foreign Evidence Act 1994 (Cth); Crimes Act 1914 (Cth); Evidence Act 2008 (Vic).
Cases: Kane & Moon v The King [2023] VSCA 305; R v De Simoni [1981] HCA 31; El- Ghourani v R [2009] NSWCCA 140; Lieu v The Queen [2016] VSCA 277; Wong v The Queen [2001] HCA 64; The Queen v Pham [2015] HCA 39.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Ginsbourg with Ms N. Grunwald | CDPP |
ForAccusedLazo | Mr J. Connolly | Chris McLennan & Co |
| For Accused Green | Mr P. Smallwood | Kings Law Group |
HIS HONOUR:
1I am able to deal with this matter summarily due to the comprehensive submissions by the learned prosecutor and two defence counsel. And I am also mindful that a number of people, including the two accused - have travelled from Sydney for this sentencing hearing and no doubt want to get back there. I am proposing to sentence Tim Green[1] to 150 days' imprisonment Justin Lazo[2] to six months' imprisonment and declare time served. These are my reasons.
[1] A pseudonym.
[2] A pseudonym.
2This matter has somewhat of a history, but the two men are charged with aiding and abetting, counselling or procuring the commission of offence, namely, an attempt to possess a border-controlled drug reasonably suspected of having been unlawfully imported contrary to s11.1(1) and 307.10 of the Criminal Code.
3As far as Mr Green is concerned, the period 9 July until 13 July 2018 at Melbourne it is alleged, and he pleads, that he aided and abetted, and counselled and procured the commission of an offence by Mr Keels,[3] namely, attempted possession of a substance being a substance reasonably suspected of being unlawfully imported, the substance being a border-controlled drug, namely, cocaine. A similar charge involves Mr Lazo but the relevant period is between 9 July 2018 and 15 July 2018. So two days longer.
[3] A pseudonym.
4The circumstances of the offending are set out in the summary of prosecution opening, a 37-page document, which I have exhibited and which I incorporate by reference, and part of it was read or summarised by the learned prosecutor in the course of the plea opening this morning.
5Essentially these two accused men are pleading guilty to an offence that arises out of an interception of a proposed importation of drugs from Columbia to Australia which was intercepted by the Columbian authorities and part of that
interception involved a mobile telephone number ending in 036 that was used by the Australian connection. The matter was then the subject of a controlled delivery between the Columbian and US law enforcement authorities, which meant that the proposed cocaine shipment was substituted with other items, and then the information was provided from the Columbian end to the Australian end, to the undercover operatives of the AFP and elsewhere, that the shipment was about to be sent to Australia.
6And it was at that point that Mr Keels became involved. And he then procured the assistance of Mr Green and Mr Lazo to accept delivery of the drugs when they arrived in Australia and that is how the two men became involved.
7The original proceeding involved, the charge was attempting to possess the relevant drugs because there were no drugs, they had been substituted. The offence of attempting in these Commonwealth drug offences carries the same penalty as the offence of successful importation.
8The original charge involved an allegation that the three men had attempted to possess a commercial quantity of the relevant drug, cocaine. The matter was the subject of considerable pre-trial argument and rulings in 2022. And then also a ruling in relation to evidence proposed to be led from an American member of Homeland Security and his file notes that were related to the 036 number. That material had been obtained under the Foreign Evidence Act.
9Defence counsel objected to that evidence. I gave a ruling on it. The matter was taken to the Court of Appeal on an interlocutory ruling late last year and the Court of Appeal ruled that (Kane & Moon v The King), because the relevant information was part of a law enforcement investigation, it was not the subject of an exception to the hearsay rule and the evidence was excluded.
10As emerged this morning, following that ruling late last year the solicitors or counsel for the two men offered a plea to the prosecution authorities to aiding and
abetting the attempt to possess a border controlled substance (cocaine) reasonably suspected of being unlawfully imported. That offer was originally rejected when it was made in March of 2023. The offer was later accepted earlier this year and the matter was listed for a plea hearing this morning.
11The maximum penalty for the relevant offence is two years imprisonment or 400 penalty units or both.
12The circumstances of the offending, as I said, were set out in the prosecution opening and Mr Ginsbourg, the learned Crown prosecutor. Essentially, the involvement of the two accused commences on 9 July when Mr Keels, the principal of the proposed importation, was in contact with the two men. In particular, he got in touch with Mr Green after it was indicated that a person who was to assist in coming to Melbourne to collect the relevant shipment was unavailable. Mr Green then stepped into the breach shall we say.
13The parties were using a number of mobile phones that were ultimately found in the possession of the three parties, including Mr Keels, after their arrests. They were also using an Alcatel phone that was used by both Mr Lazo and Mr Keels. The Alcatel phone was the one often using the 036 number.
14At all events the three men were communicating with an undercover AFP officer, who was given the name Agent 000. The officer was involved in discussing arrangements with them for them to come to Melbourne to collect the shipment. Those discussions commenced on 9 July 2018 and then continued ultimately up until the 15th when Mr Lazo and Mr Keels went to a motel near Tullamarine airport hoping to collect a suitcase containing a large amount of illegal drugs which, of course, had been substituted. And at that point both of them were arrested. Mr Lazo was outside waiting in the car. Mr Keels was the one that went into the room after arrangements had been made for him to get access to the room.
15On the 13th, which is a couple of days earlier, Mr Green had returned to Sydney.
So that is why the duration of offending involving Mr Green is two days less than that of Mr Lazo.
16As indicated in the prosecution opening, the prosecution are asking that the accused men be sentenced on the basis that under the principles of R v De Simoni they cannot be sentenced for a more serious offence and the prosecution are not alleging that the quantity of cocaine involved in the commission of this offence was a marketable quantity. A marketable quantity is, in fact, 2 grams of cocaine. But what the prosecution are saying is the accused men were both extensively involved in assisting Mr Keels to accept this proposed shipment of an unlawfully imported border-controlled drug.
17Included in the prosecution opening is all the various telephone exchanges between Mr Keels and Agent 000, as well as exchanges between Mr Keels and Mr Lazo and Mr Green as they discussed making arrangements and coming to Melbourne to pick up the drugs. This commenced [33] with communication with Mr Keels using a WeChat communication device - where Mr Keels says, 'My driver has just bailed out'. And then Mr Green, who was using the pseudonym ‘G’, said, 'No way'. Mr Keels then said to him, 'Yes, jump on a plane already'.
18Mr Green responded, 'Huh, what the fuck?'. It turns out later that day he, in fact, did jump on a plane and come to Melbourne and met with Mr Lazo and Mr Keels who were already in Melbourne. They arrived in Melbourne the day before and they were at a motel called the Bayview Motel and Mr Keels was wearing a grey suit. They then had arranged to speak to Agent 000, who was the person who was dealing with the matter from the AFP, and they went to the Intercontinental Hotel.
19There was a discussion with Mr Keels and Agent 000 which was taped by Agent 000, and there was discussion about bringing the paperwork, which again was code for money, and discussing about taking a couple of kilos to sell them down here to pay for the rest. Mr Lazo was not present at that discussion but he was in
the vicinity when that happened. After that Agent 000 had told Mr Keels he would not give them anything without any money and he was assured that Mr Keels had brought money down from Sydney.
20And then Mr Keels discussed how he had a transport company that was doing interstate runs and the truck was one of his connections up in Sydney. So there was discussions about Sydney connections. The prosecution accepts for the purpose of the plea that, in fact, Mr Keels and the aiders and abetters, the two accused men, were middle men between an unknown principal in Sydney named Bluey that they were dealing with to procure the drugs from Columbia in Melbourne and then get them to Sydney to somehow or other distribute to Bluey. That is set out in [53D] the prosecution opening.
21So that is an important factor as to the role of the three men, but in particular two men here, that they were, in fact, middle men themselves and it is not being asserted that they were principals in the attempted importation.
22So Mr Green got to Melbourne on Thursday the 12th and met up with the other two. He arrived at the Bayview Hotel when Mr Keels and Mr Lazo were present and they went to their rooms. They returned to the reception. Mr Keels then sent a message from the 036 number to Agent 000 seeking to catch up as soon as possible with him. He was using this Alcatel mobile phone. Later, the three of them left in a taxi. They returned a few hours later in the early morning of Friday the 13th and then there were further negotiations between Mr Keels and Agent 000 in order to arrange for the pick-up of the drugs.
23During that day Mr Lazo booked an additional night's accommodation so they could stay that night in Melbourne. There was discussions about the paperwork and at one stage Mr Keels says, 'We've got to drive back. We've got to drive to the coast to pick up the package?' And Agent 000 says, 'Yes, I'll go and get it, mate'. So there is discussion about that and the prosecution says that in the course of these discussions Agent 000 was to understand that Mr Keels had
$300,000 to pay the fee for collecting the cocaine. Together with his telephone conversation with Agent 000 the next day, it was to be inferred that Mr Keels believes that that was the fee for the transport of the drugs.
24At that point the men began searching the internet - and this has all come from data retrieved from Mr Green’s phone that was later seized. They were seeking to find photos or an image of a large sum of Australian currency that they could then transmit to Agent 000 to show them that they actually had the money to pay for the drugs at the time of the proposed handover. But they did not actually send a picture. They managed to get images of $400,000 apparently in cash, but they did not send these to Agent 000.
25They were still in the Bayview Hotel. Mr Green at that point was using the Alcatel mobile phone and there were messages between the 036 number and Agent 000 on the Alcatel number, including a message saying, 'Waiting for you, mate, for time and venue'. And the agent then replied saying that he wanted a picture of the paperwork. At that point surveillance shows that Mr Green is picking up the black Alcatel phone and examining it, putting it down. Mr Keels picks it up and examines it. And then there was another SMS sent to Agent 000 from the 036 service asking to give the sender a SID number - and they did not want to send anything over an open line. They wanted to use an encrypted number.
26At that point Mr Green was using the relevant mobile phone and ultimately when the police raided Mr Green's house later there was a cypher phone found under his fridge. The police do not know whether that was the one that was being used, but the point it is about goes to the sophistication of the conduct of the two accused, including the third man, Mr Keels, who has not been at this point put on trial. They were attempting to use an encrypted device for their exchanges with the people they thought were the principals which was the Agent 000.
27And, indeed, at 12.15 on that day, pm, Mr Green was telling Agent 000 that they were waiting for instructions on how to collect the cocaine and he would not send the requested picture over an ordinary communication and he wants the reference to a cypher ID number which are encrypted numbers. And then there was another call a short time later that did not connect. Agent 000 then called back and Mr Green is shown using the Alcatel phone, taking it from Mr Keels. So they were using this Alcatel phone between Mr Green and Mr Keels as they were communicating with Agent 000. And Mr Lazo was present when all this was happening and that is all set out at [55] and [56] of the prosecution opening.
28And the Agent 000 was on the phone to Mr Green and wanting to make sure that he has been speaking to the same person and Mr Green said, 'Yes, it's the same guys'. And 000 wants to speak to Hugh[4] who was the name of Mr Keels. And then there was also discussion that Mr Green, and indeed Mr Keels, were having trouble accessing the money to pay for the transaction.
[4] A pseudonym.
29And that is set out in a paragraph that had been intercepted where they were saying:
“I understand that and it’s frustrating for both parties and … like, we’re - we’re stuck in the middle with you and we’re - it feels like everyone’s trying to make both of us jump through these hoops to get things over the line. So we’re just fighting … and we’re just whatever has been asked of us we’re tryin’ to, you know, and I thought - thought to myself, listen [Hugh] give me the phone and I’ll I’ll speak to the old mate and, um … we’ll just go from there, you know what I mean?”.
30So that is the basis on which the prosecution accepts that, in fact, the three people in Melbourne were, in fact, operating as an intermediary for another unknown person in Sydney or somewhere else and also in communication with people overseas. And that is set out at [70] where the prosecution says that Mr Green in his discussions with Agent 000 meant him to understand that the accused men were concerned about sending the requested pictures using ordinary communications due to the risk of interception by law enforcement. And there is
also reference to overseas contacts, with references to persons involved in the importation of cocaine supplied by the Columbian syndicate into Australia.
31The prosecution further says, together with the SMSs, similar statements during the phone call that he knew that he, Mr Keels and Mr Lazo were in Melbourne to collect the cocaine and he believed that Agent 000 was a representative of the Columbian supplier. Then at that point Mr Green rejoined Keels and Lazo at the Bayview Hotel. They are in the hotel for the next hour or so and there are various messages being sent between Agent 000 and to the 036 number with the cypher ID.
32And then discussions about sending photos of the paperwork to convince the Agent 000 they were ready to engage in the exchange. That then continued with further exchanges and again the mobile phone is being handed between the three of them which showed a shared understanding of the circumstances. And then later, around 1.30pm that day, Mr Green booked a flight to go back to Sydney and he went back to Sydney at 8.30 pm that day. So that is the end of the date of the 13th July, the charge period as far as Mr Green is concerned.
33So thereafter the allegation by the prosecution, which is not disputed by Mr Lazo by his plea, that he was the only person who was aiding and abetting, counselling and procuring the actions of Mr Keels. And that continued for the next day the 14th and then through to the 15th July which was when the final exchange took place at a motel near Tullamarine.
34So on the 14th there was this discussion about an agreement with Agent 000 to collect the cocaine without needing to provide the money, because they obviously had not procured the money. Various telephone calls were made from the 036 service to Agent 000. They did not connect. And then the 036 call, which is the handset that the prosecution says was being used by Mr Keels and/or Mr Lazo,
they requested a meeting point. And there were messages sent over the cypher phone to the AFP cypher phone saying, at [74]:
'Hey Bro, when can we meet today? Okay, Brother. Please trust me. The way we are getting your money is by selling the product. We need to work together here. We are making it so difficult - youse are making it so difficult, but, please, if we can organise something here and make it happen today. Please, I've got buyers waiting to buy the product. If we can get somewhere. Wherever you guys want to meet, but it has to be safe. Bring 1 kilo first and I'll meet you and I'll get my buyer to come and see us with the money. We do the exchange, take the money, count it. The next day - next hour you'll get your full pay. Please work with me. My boss overseas is pissed off at me. Just please work with me.'
35So that is Mr Keels, assisted by Mr Lazo, trying to nail down the exchange with Agent 000 and they were doing this from the Bayview Hotel. And the prosecution says it can be inferred that they were reporting to another person. This is the other person who was going to provide the money or take the drugs. So they checked out of the motel at 12.15pm and went to another motel and then there was reference to providing two keys, which the prosecution says refer to two quantities of the cocaine.
36'And the three of us' - Mr Keels refers to 'three of us' which referred to the three, Keels, Lazo and Green. And it is accepted at [20] – [79], it can be inferred that each of them was exercising some decision-making power in relation to the collection of the cocaine and they want to use it as a representation under s87 of the Evidence Act as it was made by Mr Keels in furtherance of the common purpose.
37So then Mr Keels and Mr Lazo went to the Bella Hotel Apartments in Southbank and they stayed the night. Mr Lazo booked the rooms for them. And there was a call between Mr Green and Mr Lazo that night on the 660 number which is a number that Mr Green was using for his phone. The next day there was an arrangement made to collect the proposed shipment. Instructions for Mr Keels to take possession of a bag that he believed to contain cocaine. And they went out to a
motel where Agent 000 has said that, 'We've got a room there, the Best Western Motel in Ardlie Street, Attwood which is near the airport'.
38And it was confirmed by the 036 number and in due course about 12.12pm Mr Keels and Mr Lazo turned up in the red Hyundai Accent vehicle that had been rented a couple of days previously in the name of Mr Green, with Mr Green being the only driver, but Mr Lazo not having a licence, was driving it anyway. Mr Lazo was in the car, they both went into the motel to try and get access to the room. Mr Keels was observed entering and exiting the Hyundai.
39Agent 000 called 036 and Mr Lazo was answering the call and he said, 'We're just walking in now'. That suggests they were both walking into the room to get the room key where they had been told it was concealed. And Mr Lazo said, 'I'm in the car but Hugh has walked in', and left the phone there. And so Agent 000 was talking to Mr Lazo while he went to Mr Keels at the room and told him where to find the key and Mr Lazo said to Mr Keels, 'Have you got it?' 'Yes, we found it' - and tells Agent 000 that.
40And at that point Mr Lazo goes back to the car. Mr Keels gets into the room using the now located swipe card. And at that point the police engaged in what I think is called resolution and they proceeded to arrest Mr Keels in the reception when he was talking on his mobile phone. He had the key to the room. They had a concealed device in there. Mr Keels had gone into the room, opened up the bag, then closed it, and at that point he was about to exit the room, he was only there for about a minute, and as soon as he exited the room Mr Keels was arrested.
41He told the police his name was Hugh, which is the name that he had been using in his discussions with the Agent 000. And Mr Lazo was arrested in the red Hyundai outside to which he had the keys.
42Mr Green between that afternoon and the next morning using his 660 phone he made five calls to Mr Lazo and seven calls to Mr Keels, obviously trying to find out what was going on, but, of course, the police had the phones. Later that day or the next day, there were calls made to the 036 from a Columbian telecommunication service. The prosecution submit that they were likely made by the Columbian contact.
43So Mr Keels and Mr Lazo were then in custody. The police searched the car and found a black, Samsung mobile phone, and also the cypher phone. And they went back to the hotel, the Bella Hotel Apartment, and found a suit that Mr Keels had been wearing in his meetings on the 12th, as well as other clothing that he had been observed with. They also found his Galaxy G5 mobile phone that had also been used and Mr Lazo's black Apple iPhone.
44And they also raided Mr Keels' house in Sydney a couple of days later and they found a box for an Alcatel mobile phone with an empty SIM card holder which was for the 036 number. So that links the Alcatel phone to the 036 number and also to Mr Keels.
45And then on 15 August Mr Green was arrested at his home and found in possession of a black Apple iPhone. And then under the fridge two mobile phones were found, including a Galaxy S8 which had a SIM card for the 660 which had been used in some of the communications that had been intercepted, as well as a mobile phone believed to be a cypher device.
46Mr Lazo gave a ‘no comment’ record of interview. Mr Green when he was interviewed admitted that he had been in Melbourne, but claims that he really did not know what Mr Lazo and Mr Keels were up to. So he sort of denied any involvement or any knowledge as to what they were down in Melbourne for. He was trying them doing something stupid by sending a photo over a normal phone. That was the
explanation for using a cypher phone. He said, “I knew it's got something to do with money like that. It's got to do with either drugs or something”.
47But if he believed it was real he would have turned away. So when he returned to Sydney he said he did not have any contact with Mr Keels and Mr Lazo about what they were doing in Melbourne which was, of course, a lie.
48So that is the prosecution case against the two men. The prosecution puts that this was aiding and abetting of a serious offence. It was put by the learned prosecutor in his closing submissions that the two accused must have known that this was a serious commercial operation because they both came to Melbourne. Mr Lazo was waiting when Mr Keels was having his meetings with Agent 000. They were discussing amongst each other using the interchangeable use of the Alcatel. They were involved in booking accommodation for the three of them. There was multiple communications between the three of them over the period they were all in Melbourne.
49Now, it was emphasised by all counsel that I must focus on the role of the two men and they must not be sentenced for a more serious offence. The restrictions on a judge in those circumstances have been discussed in a number of cases, including De Simoni and another case brought to my attention in the prosecution submissions El-Ghourani. In El-Ghourani, which was a drug case that was dealt with in the New South Wales Court of Criminal Appeal [2009]. In that case considerably more than a marketable quantity was imported but the charge was only for possession. Such, the learned judge was seeking to ensure that the sentence was only for possession. In relation to the act of possession, it was said that [33]:
'An act of possession can be attended by a wide range of moral culpability. The circumstances in which a person charged with a possession offence came into possession of the offending matter, and what it was that the person intended to do with that matter, can all be relevant to determining the degree of moral culpability attached to the act of possession itself.'
50And it goes on:
'In my opinion, Her Honour made permissible use of the applicant’s involvement in the overall transaction. Indeed, he himself gave evidence to the effect that he was involved in a drug smuggling syndicate. The issue Her Honour had to resolve was the degree of his involvement. In assessing the evidence in this respect, Her Honour did not lose the focus on the particular charge, namely that of attempt to possess.'
51So I have got to ensure that I do not lose focus on the particular charge which is the attempt to possess an illegally imported drug, rather than attempting to possess a commercial quantity of that drug. And that also was emphasised as to the role of the weight of the drug in sentencing and that is addressed in the another case in the Court of Appeal. The principles I am dealing with for sentencing offenders involving drug offences are set out in [41] of Lieu which says:
'The determination of the seriousness of the offending is informed by a range of factors, including the role of the offender, the position of the offender in the drug trafficking or importing hierarchy, the nature and extent of the offender's involvement in the enterprise, the sophistication of the enterprise, the amount of drugs involved, or intended to be involved, in the enterprise. In describing the role of the offender in the hierarchy, it is important that any shorthand labels attaching to the role does not obscure the nature and extent of the actions and involvement of the offender.'
52And then it goes over to 43:
'It is well recognised that in cases such as this significant weight is attached to the principles of general deterrence. The difficulty of detecting importation offences, and the great and far reaching social consequences stemming from the proliferation of illicit drugs in the community, are factors which support the importance of the concept of general deterrence in sentencing for such factors. In particular, it is recognised, in light of the very large profits that motivate importation and trafficking offences, it is important that sentences imposed by the courts must signal to traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment. On the other hand, the previous good character and personal circumstances of an offender in drug trafficking or importation offences are generally attributed less weight as a mitigating factor.'
53And that case cites the case of Wong in which the plurality said [69]:
'It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved. Often enough information about the kind and size of
reward given or promised to the offender for involvement in the importation will be seen as important in fixing a sentence and distinguishing between offenders.'
54And then there is also reference to the case of Pham in the prosecution submission where it says [45]:
'It is well settled that the quantity of the drug is not the controlling factor when it comes to the assessment of the seriousness of an importation offence or other drug offence. The quantity imported or trafficked will usually be relevant to assessment of the seriousness of the offence. In some cases it will be the most significant consideration and in other cases it may be of little moment.'
55So in sentencing for this case I have to have regard to s16A of the Crimes Act (Cth). I have to consider parsimony. General deterrence is a very important consideration. The personal circumstances of the offender are less relevant. Considering the overall seriousness I accept that the two accused are not to be sentenced for the more serious offence. The context of the offending overall is relevant. As submitted the negotiations between Mr Keels, Mr Lazo and Mr Green with the Agent 000 had the flavour of a commercial enterprise and that included reference to overseas contacts.
56This is consistent with Mr Keels being a middle man and the two accused assisting him. The culpability of both accused is high because of the length they went to in their involvement in this attempt to possess an illegally imported drug. They came down to Melbourne. They were using a cypher phone. There was references to overseas contacts in [56] of the opening. They were seeking to procure photos of currency to provide to the undercover operative. The overall conduct by the two of you accused was a determined effort to assist the Australian principal, Mr Keels, to obtain possession of the imported drug on behalf of an unknown principal or person involved further up in the hierarchy.
57I turn now to whether there should be any differences in the role or culpability of the two accused men. Over the common period of the offending, which is the period 9 to 13 July 2018, there was no significant difference in their role. Each
were seen using the Alcatel device. They played similar roles. Although Mr Lazo was in the vicinity of the meeting with Agent 000 it does not appear that Mr Green was there. They were travelling together. They were in a sense in joint accommodation. So I do not see any difference in roles while Mr Green was in Victoria.
58Once Mr Green returned to Sydney Mr Lazo was the sole aider and abetter and played a significant continuing role in arranging to collect the shipment at the motel subsequently on the 15th. He booked the room overnight for them to stay at Southbank. He attended when Mr Keels sought to collect the package. I do not accept the submission of the prosecution that he was seen to be muscle, but he was present and so he as aiding and abetting Mr Keels in going out there to the motel to collect the goods, arranging and liaising with the Agent 000 at the time. He may also have entered the motel in order to work out where the keys were or how to access the room.
59So he continued to play a role in that period up until he was arrested. So that is why I propose to sentence Mr Lazo to a slightly longer period of imprisonment than Mr Green.
60I turn now to the personal circumstances of each of the accused men. I will only refer to them very briefly because they have been set out in fully comprehensive plea submissions by both of their counsel - Mr Lewis for Mr Green and Mr Connolly for Mr Lazo. Both of them have prior convictions but I give little weight to the prior convictions. The important thing is that both have pleaded guilty. It was an early plea because of the offer that was made earlier in the piece that was not ultimately accepted. I also accept on behalf of both men that there is remorse and the plea is significant because it would have been a very significant trial.
61They facilitated the course of justice and the period of delay is an important factor in this matter. It has been hanging over their heads for a considerable period. As
far as Mr Lazo is concerned he has had a very considerable period in custody. And Mr Green has 150 days as he was brought down from Sydney and before he was given bail. And for the first time he has been in prison so that would have had a very salutary effect on Mr Green‘s 150 days’ imprisonment on remand. So I take that into account. And, as I discussed with both counsel, a period on remand is more onerous in a sense than a determined sentence. So he has had that hanging over his head.
62He has come down today from Sydney with comprehensive family support from his partner and from other family members, and the submissions indicate that he is in the workforce, has children, he is supporting children, and he has got support from his local church. So he has put this behind him and the delay is a factor in sentencing - that he wants to move on with his life. He has learnt his lesson and I accept that he has learnt his lesson and, therefore, I regard his prospects as very good.
63I also regard the prospects of Mr Lazo as very good for his rehabilitation.
64There was an explanation given for why he got involved in this offending. He was depressed at the time. There had been problems accessing his daughter. It seems that they are in the past and, indeed, personal explanations as to why people get into offending and personal circumstances, as I indicated, carry less weight in relation to drug offending because general deterrence is the primary sentencing consideration.
65The sentence of the Court, as indicated in that case that I just referred to, a lesson has got to be - a signal has got to be sent to the community that any involvement in any part of the chain from source, whether it be Columbia or anywhere else, to street dealing, offenders can expect serious and heavy sentences from the courts in order to deter both them and to take away the premium, because drugs are worth money and so the enterprise is not got going to be worth the risk.
66As far as Mr Lazo is concerned, he has got a few more prior convictions than Mr Green. He has had one short period of periodic detention, nearly 15 years ago, but apart from that relatively minor offending. So neither of you come before the court as first offenders, but minimal relevant prior convictions.
67Mr Lazo’s personal circumstances are set out in the comprehensive plea submission, by Mr Connolly. I incorporate them by reference just as I do in relation to Mr Green. He comes from a tough upbringing in Samoa. Eventually via New Zealand he came to Australia and in Australia he has been successful apart from this particular event, and he has also provided some references to indicate that he is involved in a business. I note also a reference from a person that has worked in a business that he was involved in employing 10 people. So he is contributing to the community up there in Western Sydney.
68There is a reference from a personal friend saying that he is a role model in his community with his younger relatives and children. He says he has shown exceptional fortitude and resilience following the charges. So given the period that he was in custody that says a lot for him, because it would have been separated from his family in Melbourne for that period of time - that would have been very significant. 863 days pre-sentence detention.
69But he has put it in a sense behind him since he was released on bail and that is confirmed in the references that are before me, particularly Exhibits 7 and 8. So I commend him for moving on after that period of remand and contributing to society. He has got a strong family bond as I indicated. He is in the workforce. He is employing other people so he is entitled to full credit for that.
70So could you both stand. The illegal importation of drugs is a blight on our society. You have both pleaded guilty to assisting Mr Keels, aiding and abetting him to attempt to take possession of an unlawfully imported border-controlled drug over a period back in 2018. The sentence of the court has got to send a signal that
anyone involved in any part of the chain from source to user can expect heavy sentences. The delay in your case and the acceptance by the police that - by the prosecution that you were aiding and abetting and you were not the principals of the offending, and indeed were middle men between someone else further up the chain here in Australia, puts your offending at a lower level.
71But, notwithstanding this, it is still serious offending and you really were both over that narrow period seriously involved in assisting the principal, Mr Keels, and so your conduct has got to be utterly denounced. Weighing against that, of course, is the delay and the fact that you have both used the period of delay to rehabilitate yourselves and with no relevant prior convictions.
72So having regard to all those matters, including the matters in s16A of the Crimes Act (Cth), and taking into account all the submissions made on your behalf, Mr Lazo, you are sentenced to six months' imprisonment and I declare that you have served six months' imprisonment. You, Mr Green, are sentenced to 150 days imprisonment and I declare that you have served 150 days.
73I declare that had you, Mr Lazo, not pleaded guilty, I would have imposed a total effective sentence of eight months' imprisonment and, you, Mr Green, I would have imposed a sentence of 200 days' imprisonment.
74Mr Ginsbourg, any other matters?
75MR GINSBOURG: There's no other orders sought, Your Honour.
76HIS HONOUR: Mr Smallwood?
77MR SMALLWOOD: No, Your Honour.
78HIS HONOUR: Mr Connolly?
79MR CONNOLLY: No thank you, Your Honour.
80HIS HONOUR: I want to thank both counsel - all counsel, including Mr Ginsbourg's junior, Ms Grunwald for their assistance in this matter, and I want to thank the people who have come down to support Mr Lazo and Mr Green today. There's been a lot of legal submissions on this matter, complicated legal issues were involved, and one trip to the Court of Appeal. And so as far as these two gentlemen are concerned it's now concluded and I'm going to adjourn the court.
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