Director of Public Prosecutions v Williams
[2023] VCC 717
•28 April 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Indictment No. F12824046.1
| DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) |
| V |
| DALE DAVID WILLIAMS |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 April 2023 | |
DATE OF SENTENCE: | 28 April 2023 | |
CASE MAY BE CITED AS: | DPP v Williams | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 717 | |
REASONS FOR SENTENCE
Subject:Attempt to possess commercial quality of a border controlled drug
Catchwords: Guilty plea – Very high utilitarian value – Importation of 18 boxes containing methamphetamine – substitution and controlled delivery – offender arranged collection of 9 boxes which would have contained 144.45 g of methamphetamine
Legislation Cited: Crimes Act1914 (Cth); Proceeds of Crime Act 2002 (Cth)
Cases Cited:R v Nguyen; R v Pham (2010) 205 A Crim R 106; Nguyen v R; Phommalysack v R (2011) 31 VR 673; Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; Suky Lieu v The Queen [2016] VSCA 277; Tyler Worboyes v The Queen [2021] VSCA 169; R v Doran [2005] VSCA 271; R v Biba [2021] VSC 327; Kumova v R (2012) 37 VR 538; Nathan Sinclair v The Queen [2022] VSCA 180; R v Lowe (1984) 154 CLR 606; R v Pham (2015) 256 CLR 550
Sentence:16 years’ imprisonment with fixed minimum non-parole period of 10 years and six months
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | S. Ginsbourg | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms R. Shann SC & Ms E. Clark | Fayman Lawyers |
HIS HONOUR:
1Dale Williams, you have pleaded guilty to the Federal offence of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, methamphetamine.
2You have also admitted the following Federal offences, namely:
(a) importing a commercial quantity of a border-controlled drug, methamphetamine;
(b) trafficking a commercial quantity of a border-controlled drug, methamphetamine and cocaine; and
(c) attempting to manufacture a marketable quantity of a controlled drug, methamphetamine.
3These additional offences are to be taken into account, pursuant to section 16BA of the Crimes Act1914 (Cth), in sentencing you.
Circumstances of offending
4The circumstances of your offending are set out in the Prosecution Opening dated 17 April 2023.[1]
[1] Exhibit A: Summary of Prosecution Opening dated 17 April 2023.
5Irkram Shahruddin, a Malaysian national, was involved in the importation of three shipments of methamphetamine into Australia, one in February 2020, a second in April 2020, and a third, in June 2020.
6He came to Australia in February 2020 and arranged for delivery of the shipments after they were cleared through Customs. He left Australia in March 2020.
7Law enforcement authorities did not intercept the first or second shipments. They did, however, intercept the third shipment.
8On 4 June 2020, the third shipment arrived at Melbourne from Malaysia. It contained 18 boxes which contained 289 kg of pure methamphetamine concealed in 1 kilogram tea packets.
9Federal police substituted rock salt for the methamphetamine and effected a controlled delivery of the shipment to its consignee.
10On 14 June 2020, Trent James collected nine of the boxes for you in his truck. But for the substitution of salt, the nine boxes would have contained 144.45 kilograms of methamphetamine.
11He transported the boxes to his factory where he unloaded them. From the factory he drove to your home. Next day, he returned to his factory, where he opened one of the boxes, removed one of the tea packets from it, checked its contents and found rock salt. Later on the same day, Shahruddin arranged for the boxes to be removed.
12On 29 September 2020 you exchanged messages with Boris Tukel, an alleged high-level drug trafficker, who was living in Turkey.
13You told him the third shipment was a “disaster”. You said your driver had picked up half of it “under surveillance” and taken it to a factory where he opened a kilogram packet and found rock salt.
14You said you had had “the contract” on the two previous “loads”, referring to the February and April shipments. You said the third, referring to the June shipment, was “through the same avenue so I took a share and got complacent cos first two runs were perfect”.
15You described yourself as not being “hands-on”. You said you sent your “… guys to do the packing and push out…”. You said, “I just direct traffic that’s it. So even though I’m pretty hot im (sic) very safe.”
16By your guilty plea, you admit, by engaging the driver to collect the nine boxes and to store them at his factory for you for distribution elsewhere, you attempted to obtain possession of 144.45 kilograms of methamphetamine which was contained in the nine boxes when they landed in Australia (attempt to possess a commercial quantity of a border control drug on 14 and 15 June 2020 (charge 1))[2].
[2]A commercial quantity of methamphetamine is 750 grams.
17The second shipment had arrived at Melbourne from Malaysia on 5 April 2020. It contained four boxes, each weighing approximately 20 kilograms.
18You arranged for James to collect two of the boxes, one on 14 April 2020 and the second on 16 April 2020, for you.
19A third box was delivered to a Malaysian national, Jit Goh, in the Melbourne CBD, on 17 April 2020. It contained approximately 18 kilograms of methamphetamine of approximately 80 per cent purity concealed in one kilogram tea packets.
20It is to be inferred the other boxes, including the two collected for you, contained a similar payload.
21You admit, by arranging for the collection of two boxes from the second shipment for distribution, you were involved in the importation of a commercial quantity of a border-controlled drug, methamphetamine, which had been unlawfully imported into Australia (import a commercial quantity of a border control drug, methamphetamine, between 5 April 2020 and 11 April 2020 (item 1)).
22Between 27 September 2020 and 20 December 2020, you communicated with Tukel and another allegedly notorious drug smuggler, Erol Ramazanoglu, about the purchase and sale of “eye” and “tea”, code for methamphetamine, and “rack”, code for cocaine.
23You told Tukel your main methamphetamine supplier was from Malaysia. You said you were getting “280K” for the teas. When he asked you what volume you were moving you said, “not many mate at that price 7 a week another 4 or 5 at 278K”.
24On 28 September 2020 you agreed to purchase six kilograms of cocaine from Tukel for approximately $265,000 a kilogram. You agreed to pay half in cash within three days and the balance later. On 3 October 2020, Tukel confirmed he had received $820,000, the price of three kilograms of cocaine.
25You also exchanged messages with Ramazanoglu discussing the supply of kilogram and quarter ounce quantities of cocaine.
26You admit, between 27 September 2020 and 20 December 2020, you were buying and selling kilogram quantities of methamphetamine valued in hundreds of thousands of dollars, and you were dealing in cocaine in similar quantities and values (trafficking a commercial quantity of controlled drugs, methamphetamine and cocaine, between 27 September 2020 and 20 December 2020 (item 2)).
27You also admit you were attempting to manufacture methamphetamine between 28 September 2020 and 29 October 2020.
28On 28 September 2020 you told Tukel you were trying to make “eye” (methamphetamine) out of “two ton” of “BMK”, an abbreviation of benzyl methyl ketone, which is a known precursor drug for the manufacture of methamphetamine. You said you had “2 sudo cooks and one ketone cook” working for you to manufacture methamphetamine[3].
[3] “Sudo” is slang for pseudoephedrine which is another known precursor drug for methamphetamine manufacture.
29Over the following weeks, you messaged Tukel about your failed attempts to make methamphetamine and send him screenshots of information, which you had exchange with others, about the amphetamine manufacturing process (attempting to manufacture a marketable quality of a border controlled drug, methamphetamine, between 28 September 2020 and 29 October 2020 (item 3)).
Arrest and remand
30Police arrested you on 7 June 2021. You were charged with drug importation and trafficking offences and remanded in custody.
31Your offending was detected when you were identified as a user of An0m.141, an encrypted communications platform, which was accessible only through dedicated handsets distributed within organised crime communities.
32On 13 May 2022, at a committal mention, you reached “in principle” agreement with the prosecution about a proposed plea indictment.
33On 14 June 2022 you made an application for a sentencing indication.
34On 17 June 2022 I gave you a sentencing indication.
35And, on 28 July 2022 you entered your guilty plea.
An0m.141
36The prosecution case against you is based on police interception of your communications with Tukel and others, using An0n. 141.
37It has been described as a “Trojan horse” which the American FBI and Australian Federal Police used to covertly monitor the activities of criminals internationally between 2018 and 2021.
38Federal police used various authorisations to intercept the An0m communications and reportedly arrested and charged more than 300 persons and seized substantial quantities of drugs and weapons around Australia.
39I was told there are at least dozens of persons facing charges, who are contesting the lawfulness of the authorisations police used to obtain the An0m data; in South Australia, 15 or so, and, in Victoria, many more.
40The Victorian cases remain in the committal mention stream and it is anticipated the legal challenges to the admissibility of the An0m communications will take many years to finalise. Because it is an issue of such significance it is expected litigation will reach the High Court for final determination.
41And, because of the serious consequences of conviction, there is a strong incentive for defendants to pursue the admissibility arguments regardless of the time or cost.
Criminal record
42You have admitted a record of criminal convictions over a 20-year period.
43You do not have any serious drug-related convictions.
44However, you have been sentenced to several terms of imprisonment for violent offences.
45On 17 December 2002, in this Court, you were sentenced to five years’ imprisonment, with a non-parole period of three years, for a charge of intentionally cause serious injury and three charges of intentionally cause injury.
46On 6 June 2003, in this Court, you were sentenced to three years and six months’ imprisonment for charges of intentionally cause injury, attempted armed robbery and robbery.
47And on 14 July 2016, in this Court, you were sentenced to 12 months’ imprisonment and a 30-month Community Correction Order for armed robbery.
Personal circumstances
48You were born on 28 October 1982. You are now aged 40 years.
49You are the oldest of four children. You grew up in Frankston and your home life was happy until your mother developed a drinking problem.[4]
[4] See reference of your sister, Leaha Williams (Exhibit 5).
50She changed and became emotionally abusive. In response, your father often was absent, moving between your family home and his mother’s home.[5]
[5] Ibid.
51As a result of the dysfunction, you became angry and frustrated and often went missing from your family.[6]
[6] Ibid.
52Around 2001 your mother moved to Perth with your three sisters, to live with her parents. Your father went to live with his mother. You moved with him.[7]
[7] See reference of your father, David Williams (Exhibit 10).
53Soon after, your father went to Perth to attempt a reconciliation with your mother, leaving you in Melbourne.[8]
[8] Ibid.
54In Perth he was hospitalised following a mental breakdown.[9]
[9] Ibid.
55Your uncle confirmed your teenage years were difficult, particularly when your parents left you behind.[10]
[10] See reference of your uncle, Steven Mackie (Exhibit 6).
56In the 20 years which followed you had little contact with your family.[11] You saw them once in 2006, when you visited them after your youngest sister had tried to take her life, and, a second time in 2017, when they came to Melbourne after your paternal grandmother was diagnosed with terminal cancer.
[11] See references of your sisters, Leaha Williams (Exhibit 5) and Rachel (Exhibit 9).
57A long-time friend,[12] who was a single parent, wrote you have been very helpful to her and also her son, especially after he developed epilepsy following a serious assault.
[12] Jaclyn Klooster. Her reference is Exhibit 8.
58Your partner has been with you since 2019. She knows you to be “extremely kind-hearted, friendly, warm and gentle”.[13] She wrote she is committed to your relationship and will stick by you.
[13] Reference of Keisha Lampi (Exhibit 7).
59Your sisters[14] have reconnected with you. They describe you as being less angry now and more interested in family. They will support you, with your partner, into the future.
[14] Exhibit 5: Character Reference of Leaha Williams (sister); Exhibit 9: Character Reference of Rachel Williams (sister).
60In recent times, you have had some health misadventures.
61In November 2020 you were hospitalised for four days for treatment of a serious kidney laceration following a fall.[15]
[15] Exhibit 4: Discharge Summary from Alfred Hospital dated 7 June 2022.
62In December 2020, you were hospitalised for surgical repair of a hernia.[16]
[16] Exhibit 2: Discharge Summary from Holmesglen Private Hospital dated 8 June 2022.
63And in January 2021, while on holiday in Queensland, you suffered a pelvic fracture following fall from a two metre-high fence. You were admitted to Gold Coast Hospital where you had surgery to reduce the fracture. You were readmitted a month later with complications.[17]
[17] Exhibit 3: Discharge Summary from Gold Coast University Hospital dated 8 June 2022.
64In prison you have had several medical transfers, including an emergency hospital attendance when you had chest pain after you had tested positive to COVID-19.[18]
[18] Exhibit 11: Department of Justice Sentence Management Division Letter dated 10 June 2022.
65Because of the medical transfers you were required to quarantine for 42 days in total.[19]
[19] Ibid.
66During your remand detention, the prison has gone into lock down for 75 days. Forty-six days relate to prevention and tracking of COVID-19 exposures.[20]
[20] Ibid.
67You have trusted work as a kitchen billet, which is indicative of good behaviour, and frequent Zoom and telephone contacts with your family.
68On 14 April 2023, the Commissioner of the Australian Federal Police applied for a restraining order in relation to cash totalling $22,455, two watches valued at $28,000, and crypto currency valued at $13,594.01, seized from you.
69You have consented to the restraint and forfeiture of the seized property.
Defence submissions
70Your counsel, Ms Shann SC, with Ms Clark, in comprehensive submissions[21], acknowledged the very serious nature of your offending.
[21] Exhibit 1: Submissions dated 7 June 2022; and Exhibit 12: Submissions dated 17 April 2023.
71They characterised the methods, which the Australian Federal Police used to obtain the An0m data, which supports proof of the case against you, as “broad, complex and novel”.
72They submitted you are entitled to an “exceptional” sentencing discount for you guilty plea because:
(a) firstly, you have given up the opportunity to test an arguable defence in circumstances where the lawfulness of police authorisations to obtain An0m data remains unproven;
(b) secondly, it relieves an overburdened system of the need to hear your committal and trial; and
(c) thirdly, it would send a signal to the large number of other accused, who face very serious charges based on An0m messaging, a guilty plea will attract a demonstrable sentencing benefit.
73They submitted, in the circumstances the utilitarian value of your plea is “unique and extreme”.
74They acknowledged, because your role was “high-level” and the quantity of drugs you attempted to possess was substantial, an exceptional sentence would nonetheless be a lengthy one.
75They submitted the following factors should further mitigate your sentence:
(a) the early timing of your plea;
(b) your abusive and deprived childhood;
(c) the additional hardship of your time in a remand custody; and
(d) your cooperation in resolving the proceeds of crime proceedings brought against you.
76They also submitted, considering you have:
(a) no drug trafficking history; and
(b) strong family support;
I should have some confidence in your prospects of rehabilitation.
77While acknowledging your sentence must be lengthy, they submitted, considering the exceptional utilitarian value your plea and your personal circumstances, I should fix a longer than usual parole period.
Prosecution submissions
78Mr Ginsbourg, who appeared for the Crown, submitted,[22] considering:
(a) firstly, the substantial quantity of methamphetamine you attempted to possess;
(b) secondly, the large profit you would have expected from its sale; and
(c) thirdly, your high-level role which included recruiting people to do you work for you;
your offending is a grave example of a serious offence.
[22] Exhibit B: Prosecution Sentencing Submissions dated 14 June 2022.
79He submitted, your additional criminality, namely that you were involved in the importation of an earlier consignment of methamphetamine and, over a two-to-three-month period you directed the sale and manufacture of drugs in significant quantities, is relevant to deterrence and punishment.
80He accepted your guilty plea has very high utilitarian value and was made at the earliest practicable opportunity.
81He accepted you had a disadvantaged childhood which, in his submission, while not moderating your moral culpability, is a relevant personal circumstance.
82He also accepted prison has been harder for you and all prisoners during the public-health pandemic.
83He helpfully referred me to a number of intermediate appellate authorities concerning commercial quantity-controlled drug importation cases as comparators.[23]
[23] Exhibit C: Comparative Sentencing Schedule.
Consideration
84The maximum penalty of life imprisonment for the offence of attempting to obtain possession of a commercial quantity of an unlawfully imported border-controlled drug demonstrates the seriousness of your offending.
85The sentencing principles for large-scale Federal drug importation and trafficking are well-established:[24]
(a) An offender’s role and involvement in the enterprise, the sophistication of the enterprise in the amount of drugs involved are relevant to the assessment of the seriousness of offending.
(b) Because of the difficulty in detecting the offending and the great harm stemming from the distribution of illicit drugs in the community, significant weight must be attached to the principle of general deterrence.
(c) For involvement at any level and offender should expect a significant sentence of imprisonment.
(d) As a matter of common sense, it should be inferred, unless there is evidence to the contrary, the person who is importing and trafficking drugs is doing so for profit.
(e) And, prior good character and personal circumstances are generally to be given less weight as a mitigating factor.
[24] R v Nguyen; R v Pham (2010) 205 A Crim R 106, [72] (NSWCCA); applied in Nguyen v R; Phommalysack v R (2011) 31 VR 673.
86Considering:
(a) firstly, the substantial size and scope of the offending – you were involved in an attempt to possess 144.45 kilograms of unlawfully imported methamphetamine, which is 192 times the statutory commercial quantity;
(b) secondly, your key role – persons higher in the chain trusted you to collect the boxes and check their contents before they were distributed elsewhere; and, to do that, you removed yourself from the transaction and recruited a driver to:
(i)collect the boxes and take them to a factory; and
(ii)at the factory to open one of the boxes and check its contents, for you; and
(a) thirdly, the considerable financial return you would have hoped for as a stakeholder, albeit “small”, in the highly valuable methamphetamine shipment;
your criminality is high.
87In sentencing you, you have asked the court to take into account other offences whereby you admit:
(a) your involvement in an earlier, similar importation of a commercial quantity of methamphetamine in April 2020, when you engaged the driver whom you used again in June to collect two boxes which would have each contained 18 kilograms of high-purity methamphetamine;[25]
(b) your role in organised commercial trafficking, which involved alleged repeated dealings in controlled drugs, methamphetamine and cocaine, between 27 September and 3 December 2020 in kilogram quantities valued in hundreds of thousands of dollars; and
(c) your attempt to manufacture methamphetamine in a marketable quantity between 28 September 2020 and 29 October 2020, by obtaining precursor chemicals and engaging “cooks” to try to manufacture it for you.
[25] A commercial quantity of methamphetamine is 750 grams pure.
88While you fall to be sentenced only for the charge to which you have pleaded guilty, the other matters, which indicate you were involved in a course of conduct over two to three months in the illicit drug trade on a commercial scale, are to be taken into account by giving greater weight to the need for personal deterrence and punishment in the sentence I impose.[26]
[26] Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146, [39], [42].
89There are a number of factors which I will take into account to moderate your sentence.
90Firstly, I am satisfied you are entitled to a very substantial sentencing discount for your guilty plea and its early timing.
91It has very high utilitarian value:
(a) for the avoidance of a long and complex trial[27] ; and
(b) Worboyes[28] considerations.
[27] Suky Lieu v The Queen [2016] VSCA 277.
[28] Tyler Worboyes v The Queen [2021] VSCA 169
92As well, considering you have abandoned the chance of an acquittal, I accept your guilty plea and your acceptance of the prosecution case against you are evidence of remorse.
93Moreover, considering, without the An0m messages the prosecution would not be able to prove charge on the indictment or the other offences you have admitted, you are also entitled to a demonstrable sentencing discount to encourage others to take a similar course.[29]
[29] R v Doran [2005] VSCA 271.
94You are also entitled to some moderation of your sentence for the additional pandemic related hardship of quarantine, lockdowns and reduced programs and visits in prison,[30] and for your cooperation in resolving the forfeiture proceedings taken against you.[31]
[30] R v Biba [2021] VSC 327, [38]–[39] (per Beale J).
[31] Proceeds of Crime Act 2002 (Cth) s 320(a).
95While your personal factors carry less weight for offending of this type, I have nonetheless taken your disadvantaged childhood into account.
96While your significant criminal history and admitted large-scale drug importation and trafficking offending indicate I must be guarded about your prospects of reformation, your remorse, your strong network of family support, and good behaviour in prison are positive signs for your rehabilitation.
97To mitigate punishment in favour of your rehabilitation through conditional freedom, I will fix a shorter non-parole than I otherwise would have done.[32]
[32] See Kumova v R (2012) 37 VR 538; see also Nathan Sinclair v The Queen [2022] VSCA 180, [39]
98Parity is also a relevant sentencing consideration.
99Trent James was your driver. On 29 September 2022 I sentenced him to 13 years’ imprisonment on the charge of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, that is, the methamphetamine which had been removed from the June 2020 consignment of nine boxes he transported for you.
100Considering your greater role, your offending is objectively more serious than his.
101The utilitarian value of his plea was high; yours is very high.
102While I will impose a longer sentence upon you, I have sought to avoid any unjustified disparity between the two of you.[33]
[33] R v Lowe (1984) 154 CLR 606.
103I have used a number of intermediate appellate decisions as a guide in the identification and application of the relevant sentencing principles and, making appropriate adjustment for the differences in the circumstances of the offending and the offender, I have used them as a yardstick against which to measure your sentence.[34]
[34] R v Pham (2015) 256 CLR 550, [26].
104Ordinarily, the seriousness of your offending would warrant a sentence much higher than the one I will impose. However, the very high utilitarian value of your guilty plea is out of the ordinary.
105As a Federal offender you fall to be sentenced under Part 1B of the CrimesAct 1914 (Cth).
106Accordingly, I must impose a sentence that is of appropriate severity in all circumstances.[35]
[35] Crimes Act 1914 (Cth) s 16A(1)
107I must not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate in your case.[36]
[36] Ibid s 17A.
108In determining your sentence, I have taken into account the non-exhaustive list of factors listed in section 16A(2) of the Crimes Act 1914 (Cth), as far as they are relevant and known to the court.
109Mr Williams, by the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
110On the charge of attempting to obtain possession of a commercial quantity of an unlawfully imported border-controlled drug you are convicted and sentenced to 16 years’ imprisonment which is to commence today.
111I fix a minimum non-parole period of 10 years and six months.
112I declare you have served 690 days of your sentence by way of pre-sentence detention.
113While there is some artificiality to the process, I declare but for your plea of guilty, I would have sentenced you to 22 years’ imprisonment and fixed a non-parole period of 17 years.
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