R (Cth) v Cooper

[2020] NSWSC 515

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R (Cth) v Cooper [2020] NSWSC 515

Hearing dates:

01 May 2020

Date of orders:

08 May 2020

Decision date:

08 May 2020

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

The offender is sentenced to an aggregate term of imprisonment of 28 years with a non-parole period of 18 years, to date from 25 December 2016.

Catchwords:

CRIME – SENTENCE AFTER TRIAL – conspiracy to import a commercial quantity of a border controlled drug – verdicts of guilty to two counts at trial – very high level offending – agreement to import substantial quantities of cocaine – sophisticated plan for importations by sea – offender Australian agent for international source of drugs – parity with other conspirators – role of general deterrence

Legislation Cited:

Courts Suppression and Non-Publication Orders Act 2010 (NSW)

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Code (Cth)
Proceeds of Crime Act 2002 (Cth).

Cases Cited:

Chen v R [2002] NSWCCA 174; (2002) 130 A Crim R 300

De la Espriella-Velasco v The Queen (2006) 31 WAR 291; [2006] WASCA 31

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Melgar Sevilla v The Queen [2007] WASCA 116

R (Cth) v Li [2005] NSWCCA 154

R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1

R v Elfar & Golding [2017] QCA 170

R v Ismunandar; R v Siregar [2002] NSWCCA 477; (2002) 136 A Crim R 206

R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106

R v [Person A], [Person C] & Tobin [2018] NSWSC 1953

R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26

R v Suarez-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577

R v Tait and Bartley (1979) 46 FLR 386

Sukkar v The Queen (No 2) (2008) 178 A Crim R 433; [2008] WASCA 2

Teng v The Queen (2009) 22 VR 706; [2009] VSCA 148

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Thompson v R [2007] NSWCCA 83

Velez v R (Cth) [2015] NSWCCA 177

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

Regina (Crown)
Jonathon Cooper (Accused)

Representation:

Counsel:
H Barclay QC/Mr S Howell (Crown)
D Randle (Accused)

Solicitors:
Solicitor for Public Prosecutions (Cth) (Crown)
Anderson Boemi Lawyers (Accused)

File Number(s):

2016/387430

Publication restriction:

Judgment previously restricted pending finalisation of all co-accused trials and related appeals. Anonymised and/or redacted to excise any matters the subject of a non-publication order pursuant to s 7 of the Courts Suppression and Non-Publication Orders Act 2010 (NSW).

Judgment

1. HER HONOUR: On 5 August 2019 Jonathon Cooper (“the offender”) was arraigned before a jury panel upon an indictment containing three counts. After a trial lasting until 18 September 2019, he was found guilty by the jury of counts one and two of the indictment, each of which charged a conspiracy to import a commercial quantity of a border controlled drug. The jury was unable to agree upon a verdict with respect to the third count, a charge which has proceeded no further.

2. The offender now stands to be sentenced for the two offences contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth). These are offences which carry a maximum sentence of life imprisonment, or a fine set at 7500 penalty units or both. This is a yardstick by which the Court is guided in determining sentence. Having regard to the gravity of the offences, to which I shall return, and the offender’s personal culpability, I am satisfied that no sentence other than a custodial term is available.

The Facts of the Offences

3. The facts of the offender’s crimes fall to be determined by the Court, consistent with the verdicts of the jury.

4. In determining those facts, I have applied the differing standards of proof that apply to conclusions adverse to an offender, and those favourable to him: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].

5. [REDACTED]

6. The offender’s crimes relate to separate conspiracies entered into by him to import substantial amounts of cocaine into Australia. The first of the conspiracies, known as the “Saxon Progress Conspiracy”, was on foot from around 1 September 2015 to 31 March 2016, and involved a number of conspirators, including Person A and Person C, with the object of bringing 610 kilograms of cocaine into Australia from an international source. The second, known as the “Second Dalrymple (or Dalrymple II) Conspiracy”, was on foot between about 1 April 2016 and 25 December 2016, and involved an agreement to import 500 kilograms of cocaine.

7. In each instance, I am satisfied that the offender acted as the Australian agent of the international person or (more likely) syndicate responsible for dispatching the cargo of drugs to Australia. His role was to co-ordinate and oversee the incoming cargo, and those locally who were to collect the drugs at sea and land them on the east coast of New South Wales.

The Background to the Two Conspiracies

8. The two conspiracies brought together a number of individuals who were hoping to make substantial amounts of money from the importation and sale of border controlled drugs.

9. In 2015 an acquaintance of Person C, and co-conspirator, Richard Lipton, told Person C that he had contacts among people with access to fishing vessels, and there was a discussion as to how money might be made utilising the boats. On the basis that a person could be found with the means to send drugs by sea to Australia, it was decided that importing those drugs would be a highly profitable venture.

10. Whilst Mr Lipton was to raise the subject with his fishing vessel contacts, Person C was to locate a person who could supply the drugs for dispatch to Australia. He approached the offender with that purpose in mind. This approach, and the offender’s response to it, gave rise to the Saxon Progress conspiracy, and later led to the Dalrymple II conspiracy.

The Saxon Progress Conspiracy

11. This conspiracy is so named because a Tasmanian motor vessel, the Saxon Progress, was to be used to collect an incoming cargo of cocaine from another boat at sea, and thereafter transport it to Australian shores. Those involved with this conspiracy, other than the offender, were Person A, Person C, Joseph D’Agostino, Frank D’Agostino, Richard Lipton, John Tobin, James Collins, Stuart Ayrton, and various others.

12. After the initial discussions between Person C and Richard Lipton, Person C approached the offender, whom he knew through the security industry, to ask if he knew anyone with contacts able to secure cocaine internationally for importation to Australia (Tcpt, 7 August 2019, p 187). The offender did not immediately respond to the overture, telling Person C that he would get back to him. Later, the offender and Person C met in a café in western Sydney, where the offender told Person C that he did have a contact from whom a drug cargo could be secured. There was a general discussion about the logistics of using fishing vessels for an exchange of drugs at sea, and some discussion of a likely meeting point and the need for coordinates to be agreed (Tcpt, 7 August 2019, p 186–8). At some stage prior to 12 December 2015, the offender made it clear to Person C that the overseas interests he was acting for were not prepared to enter Australian waters to deliver the cargo to the Australian vessel (Tcpt, 7 August 2019, p 193).

13. The offender subsequently communicated with Person C over time as to the quantity of the cargo and the manner in which it would be packed for shipment; possible co-ordinates for the delivery of the cocaine at sea; and the origins of the delivery vessel. Person C passed all of this information on to Person A, whose responsibility it was to manage the vessel that would be used to collect the drugs.

14. Communication between the offender and Person C was generally by encrypted BlackBerry device, with the offender going by the user name of “Enough”.

15. The person with whom Richard Lipton had contact was Joesph D’Agostino. Lipton put Person C in contact with D’Agostino, and the two men met at a café in or near Surry Hills, at some stage around August 2015. They discussed the prospect of bringing drugs into Australia, making use of fishing vessels that D’Agostino said he had (Tcpt, 7 August 2019, p 182). They exchanged contact details, with communication subsequently made either in person, or through the use of encrypted BlackBerry devices.

16. Person A was brought into the plan by [REDACTED], the D’Agostino brothers, as Person A had access to ocean going vessels and crew through his role in the commercial fishing industry.

17. Joseph D’Agostino arranged for Person C to meet Person A, and the two men met at a park in Double Bay on 8 December 2015. With Joseph D’Agostino having failed to appear for sentence with respect to criminal charges then pending against him, and in hiding by the time of the meeting, liaising between the two men was managed by Frank D’Agostino, who was described in evidence by Person C as Joseph D’Agostino’s “eyes and ears” (Tcpt, 7 August 2019, p 189(49)).

18. At that meeting, there were discussions of the logistics of affecting a drug transfer at sea.

19. During subsequent discussions, Person C passed on to Frank D’Agostino and Person A information that he had been given by the offender as to the country of origin of the cocaine and the boat carrying the cargo – South America – and its departure date for the voyage towards Australia (Tcpt, 6 August 2019, p 198). He also relayed information from the offender as to the likely date of arrival at its destination (Tcpt, 8 August 2019, p 225, 230, 233).

20. Person C negotiated, confirmed, or sought to vary, possible co-ordinates for the rendezvous at sea of the vessel with the Australian boat, having received the relevant instructions from the offender (Tcpt, 8 August 2019, p 208–9, 211, 224, 228) (Tcpt, 20 August 2019, p 598). Having been told of it by the offender, he also advised co-conspirators of the nature of the packaging of the cocaine to facilitate the transfer of the cargo at sea (Tcpt, 8 August 2019, p 213, 229, 233–234), and about the means of communicating with the international vessel (Ex J, pp.50, 75). The offender told Person C that the incoming vessel would need to be resupplied for its onward voyage, and that information was also conveyed by Person C to other conspirators (Tcpt, 8 August 2019, p 239–240).

21. As to the quantity to be imported, initial discussions between the offender and Person C referred to an amount of between three hundred and five hundred kilograms of cocaine (Tcpt, 8 August 2019, p 218). Later discussions canvassed the possibility of the importation of one tonne of cocaine, with the offender telling Person C that the overseas interests wanted to ship that amount of drugs (Tcpt, 8 August 2019, p 223–4). Ultimately, the offender told Person C that the incoming cargo consisted of 610 kilograms of cocaine (Tcpt, 8 August 2019, p 241–2).

22. The plan for the drug cargo on arrival on Australian shores was for Person C to convey the cargo by road to the offender, who would dispose of the product or co-ordinate its disposal, paying the conspirators their respective shares of the profit (Tcpt, 8 August 2019, p 215–6, 224–5). The offender had told Person C “his group would pay twenty percent” to the coordinators of the Australian operations (Tcpt, 8 August 2019, p 165). There was some prospect that the D’Agostino brothers and Person A might take their share of the proceeds in drugs on its arrival, to prevent payment not being made to them (Tcpt, 8 August 2019, p 224).

23. Person A bore responsibility for finding a boat to meet the incoming vessel, and for providing crew and equipment for the boat. He secured the Saxon Progress for that purpose, and found crew to sail her. As the intermediary between the offender’s group and the D’Agostino group, Person C was to be aboard when the Saxon Progress met the foreign vessel. John Tobin, as representative of Joseph D’Agostino, was the final crew member of the Saxon Progress.

24. The boat sailed from Triabunna in Tasmania on 10 March 2016, motoring towards the rendezvous point, but was recalled after about four days at sea, including a period when it put in to Sydney Harbour for supplies and to resolve communication problems. Having received some information about the incoming vessel, the offender advised Richard Lipton to recall the Saxon Progress. He sent a message to Person C via BlackBerry to the effect that it had been called off and to come home (Tcpt, 8 August 2019, p 249–250). Richard Lipton passed the information the offender gave him to the D’Agostinos, and Frank D’Agostino conveyed it to Person A on 14 March 2016. Person A recalled the boat.

25. Although not known to those aboard, or to Person A ashore, the yacht that was due to meet with the Saxon Progress at sea for the transfer of 610 kilograms of cocaine had been intercepted in Tahitian waters by French Naval authorities on 13 February 2016 and impounded, with its crew taken into custody. It was the offender who later informed Person C of the fate of the yacht and its crew.

26. The object of the conspiracy thus failed.

27. In the aftermath of the conspiracy’s failure, Person A, who had borne the bulk of the costs associated with the voyage of the Saxon Progress, sought compensation for his expenses, prior to any involvement of any other importation. Person C conveyed the request to the offender, who told Person C “it shouldn’t be a problem” (Tcpt, 8 August 2019, p 251(07)). On a number of occasions over coming months, the offender gave cash to Person C, who passed the monies on to Person A, to reimburse Person A for his expenditure (Tcpt, 8-9 August 2019, p 256–7; 263–4, 265–6, 274–5, 279, 316–7, 323–4, 347). The offender employed covert methods to pass cash to Person C, such as leaving the money in the tray of his parked utility for Person C to collect (Tcpt, 9 August 2019, p 317). As much as one hundred thousand dollars was paid by the offender to Person A via Person C over time (Tcpt, 8 August 2019, p 251), some of it in United States currency.

28. Later analysis of the cargo of cocaine that had been seized by the French authorities found that it consisted of about 610 kilogram of cocaine, with a purity of 73.9%. The pure weight of the drug was about 449 kilograms. The median wholesale value of the cargo at the time was about 129.5 million Australian dollars. Street value was considerably higher.

29. The commercial quantity specified for cocaine is 2 kilograms.

The Dalrymple II Conspiracy

30. The second of the conspiracies in which the offender was involved became known as the Dalrymple II Conspiracy, again, by reference to the name of the vessel to be used to meet an international boat at sea and take possession of a cargo of cocaine to be brought to Australia.

31. Discussions concerning this planned importation commenced within days of the return of the Saxon Progress to port. Those involved were the offender, Person A, Person C, John Tobin, Graeme Toa Toa, Reuben Dawe, Richard Lipton, Stuart Ayrton, and others.

32. The offender’s role was largely as it had been during the Saxon Progress conspiracy; that is, he represented the international interests responsible for shipping a quantity of cocaine to Australia by sea, and was responsible for liaising directly with Person C and in this instance, Person A, to coordinate the collection of the cargo at sea, and for its distribution once on Australian shores. He gave money to Person C during the planning stages to meet some of the expenses involved in the enterprise, and was to pay those involved once the cocaine had been received.

33. Only days after the failure of the Saxon Progress conspiracy became known, the offender gave Person C information concerning this second cargo of cocaine, information relayed by Person C to Person A (Ex M, p 22). Soon after, the offender was able to tell Person C that the vessel that would bring the cargo to Australia was a sailing boat originating in South America (Ex M, p 49). This information was also passed on by Person C to Person A.

34. The amount to be imported was half a tonne or 500 kilograms.

35. In the weeks leading up to 4 August 2016 the offender arranged to receive Farid Mhennaoui, one of the individuals located internationally who was involved in dispatching cocaine to Australia. The offender told Person C that his contacts wished to inspect the boat that was to be used to collect the cocaine at sea and land it in Australia, and that request was passed on to Person A (Tcpt, 9 August 2019, p 332). Mhennaoui came to be referred to as “The Inspector”.

36. As before, Person A bore responsibility for locating a suitable boat to meet the incoming vessel, and for providing its crew. There were, however, discussions between the offender and those behind him, and Person A, through Person C as intermediary, concerning the purchase of a boat to be used for the proposed and possible future importations. Particular vessels were identified and considered in this context (Tcpt, 12 August 2019, p 383, 385) (Tcpt, 26-27 August 2019, p 689, 703). Ultimately, Person A secured the motor vessel Dalrymple, purchasing it for use in this and another planned importation (not involving the offender), using funds secured elsewhere.

37. An inspection of a boat similar to the one likely to be used was ultimately arranged for 4 August 2016 at the Sydney Fish Market. On that day, the offender hired a car (Ex Y), despite having a vehicle of his own that he could have used, collected Mhennaoui from his hotel, and took him to the Fish Markets, where the two men met with Person C and Person A (Ex AF). Person A escorted the men to a commercial fishing boat moored at the Fish Market wharf, and Mhennaoui inspected the boat. He and the offender photographed the boat (Ex W).

38. In the offender’s hire car, there was a discussion between him, Mhennaoui, and Person A about the logistics of the transfer at sea, a conversation that was covertly recorded by police. In that discussion the offender was recorded discussing such matters in an apparently knowledgeable and authoritative way (Ex Q).

39. At the conclusion of the meeting the offender left in the hire car with Mhennaoui as his passenger, taking him to a city hotel. Much later that night, and alone, he returned the hire car to the company from which it had been leased.

40. In the lead up to the planned importation the offender secured (on 19 September 2016) and supplied two encrypted BlackBerry devices for the use of Person C and Person A, they being devices that the offender considered had better security than those formerly used by co-conspirators (Tcpt, 14 August 2019, p 404–5; Ex AH; Ex Z). These devices were subsequently used for communication between the conspirators, and to arrange face-to-face meetings between the offender and Person C.

41. On 27 November 2016 the offender met Person C at Strathfield and provided an amount of cash money (about $5000) to him to be used for the purchase of thermal imaging devices, which were to provide the conspirators with night vision capability to facilitate the collection of the cocaine at sea (Ex. U, p.111ff; Tcpt, 15 August 2019, p 425–8).

42. The plan for the delivery of the shipment of cocaine involved the use of a rigid hulled inflatable boat (or “RHIB”). The RHIB was purchased for that purpose, and it was the offender who provided most of the purchase money, a sum of about $50,000 in total, paid over a number of individual payments during November 2016. The cash money was physically given by the offender to Person C, who passed it on to Person A. It was Person A who negotiated the purchase of the RHIB, and attended to securing necessary specifications for it from the boat supplier.

43. The offender continued to update Person C and Person A via BlackBerry communication of the progress of the international vessel, including its origins in the Dominican Republic (Tcpt, 12 August 2019, p 320), and providing information as to a delay on one occasion necessitated by repairs required to the incoming vessel (Ex U, p 43).

30. The plan agreed between the offender and his local associates was that, upon the drug cargo being landed onto Australian territory, Person C would deliver it to the offender or to an address to be supplied by the offender (Tcpt, 7 August 2019, p 164; Tcpt, 8 August 2019, p 216; Ex U, p 55). Although part of [REDACTED] evidence was that either the offender or [REDACTED] would provide him with the address, I prefer [REDACTED] evidence on that point (Tcpt, 20 August 2019, p 573), and accept that he had no involvement in the expected distribution of the drugs.

31. That is also consistent with [REDACTED], to the effect that it was the offender who would tell [REDACTED] where to take the drugs once they had arrived (at Tcpt, 7 August 2019, p 168), and with the content of recorded conversations [REDACTED] (Ex U, 5 November 2016, p 55; Tcpt, 15 August 2019, p 422–3). I have concluded to the necessary standard that it was the offender, as the local representative of the overseas owner of the product, who was to further its eventual distribution.

32. Once the drugs were transferred to the offender’s possession or in accordance with his direction, he was to be responsible for paying the conspirators. He told Person C that he would pay those involved once the cargo had arrived (Tcpt, 7 August 2019, p 169). Person C was to be paid directly by the offender for his role in the planned importation with an agreement reached as to a fee representing 20% of the value of the cargo to be paid to the local conspirators, including Person A’s group. There was some discussion amongst some of the conspirators about keeping a portion of the cargo against the possibility that payment would not be forthcoming, with Person C to sell the product on behalf of all in that event (Tcpt, 12 August 2019, p 295).

33. On 3 December 2016, with all land side preparations for the importations made, the Dalrymple sailed. On board were Person C, Stuart Ayrton, Graham Toa Toa, and John Tobin. After about two weeks at sea the rendezvous was made with the South American vessel at a point in the Pacific Ocean, and its cargo of 500 kilograms of cocaine was transferred to the Dalrymple, using the RHIB. The Dalrymple then began the return voyage towards Sydney.

34. On arriving off the eastern coast on Christmas Day 2016, the cocaine was transferred from the Dalrymple to the RHIB, which was then lowered into the water. Piloted by Person C, the RHIB travelled the short distance to landfall at Parsley Bay, north of Sydney, where Person A was waiting with a car and boat trailer. The RHIB, still loaded with its illicit cargo, was loaded onto the boat trailer, at which time Australian Federal Police officers descended upon it, arresting Person C and Person A, and seizing the cargo. The BlackBerry devices supplied by the offender were also located and seized.

35. The cargo comprised of about 501 kilograms of cocaine, with a purity of between 74.8% and 79%. The pure weight of the drug was about 388 kilograms. Its median wholesale value at that time was about 106.5 million Australian dollars. The street value was considerably higher.

36. Later on Christmas Day, police officers went to the offender’s apartment at Northmead where he was arrested. Scattered about in the lounge room of his apartment the officers saw cash in bundles and loose notes, which amounted to a sum of just over $100,000. The evidence of the offender’s legitimate income is incapable of explaining his possession of this amount of money, and I am satisfied that it was connected with the offender’s role in the Dalrymple II conspiracy.

37. Also found in the apartment were a number of encrypted BlackBerry devices, and mobile telephones, some with false subscriber details.

Objective Gravity

52. Each of these crimes represents criminality of a high order. The two schemes to import cocaine into Australia were sophisticated. Each involved an ambitious plan to import a very large amount of cocaine. Each involved a group of conspirators with specific roles to play: dispatch of the drugs from overseas; liaison between the international participants and those locally in Australia; coordination of the rendezvous point for the delivery and collection vessels; financing the local operation; management of the pick-up vessel and crew; skippering or crewing the vessels used to collect the drugs; transfer of the drugs from one vessel to another at sea; oversight, and conduct, of the delivery of the drugs on-shore; distribution of the product; and payment of the conspirators from the profits derived from distribution.

53. The planning and preparation in each instance was extensive and thorough. In each instance, it was only the intervention of law enforcement agencies, internationally or locally, that frustrated the object of the conspiracies being achieved.

54. As already observed, the commercial quantity of cocaine specified by law is two kilograms. The conspiracies in which the offender was a participant had as their common objective the importation of quantities of the drug substantially in excess of that baseline.

55. Whilst the quantity of the drug involved is but one feature relevant to an assessment of the gravity of the crime, the amounts sought to be imported are not without significance. In each case it is an indicator of the assets available to the international syndicate for whom the offender was the Australian representative, of the scale and scope of each conspiracy, and of the highly developed nature of them. It is one feature which points to crimes of a most serious nature.

56. The offender stood in a position of seniority to others within each group of local conspirators. On the evidence, he was the sole Australian based representative of the syndicate of individuals responsible for dispatching the two cargos of cocaine to Australia.

57. It was the offender who was instrumental in the two conspiracies moving from speculative dreaming by Richard Lipton, Person C and Joseph D’Agostino, to reality, in that it was him who had knowledge of and contact with the international source of the cocaine intended in each instance to be imported. Whilst suppliers of cocaine other than the offender might have been discovered, it was the offender who made each of the charged conspiracies a reality.

58. His role was to act as an intermediary, or conduit of information and money, relaying the international syndicate’s position as to suitable meeting points for the handover of the drugs at sea and other practical matters, financing aspects of the plans with cash provided to him for that purpose, arranging for the receipt of the cargo once imported, and paying those involved in Australia.

59. The offender was clearly trusted with highly sensitive information, valuable drugs, and money. He was the person who escorted Farid Mhennaoui to the meeting with Person A at the Fish Markets; he conveyed all information about the incoming cargos to the local conspirators; and he acted as paymaster for the international syndicate, paying a large sum of money to Person A via Person C to compensate him for his Saxon Progress losses, and paying other significant sums to purchase equipment for the Dalrymple II venture. He was to take delivery of the cocaine from Person C or direct its delivery following both importations, and pay the conspirators for their involvement.

60. At the meeting at the Fish Market on 4 August 2016, the offender clearly had a role to play that greatly exceeded that of a driver or security officer. He contributed to the conversation between Mhennaoui and Person A in a meaningful and apparently knowledgeable way, and what he said seemed to be seriously received by the others.

61. He was no mere local lackey.

62. I have concluded that the offender was the sole representative of the international syndicate in Australia, responsible for liaising with the Australian conspirators and coordinating the collection of the cocaine cargos at sea, and for their ultimate receipt for profit on land. He met with Person C on a number of occasions in 2015 and 2016, and with Person A once, for this purpose; and regularly communicated with both to this end via an encrypted device, with Person C relative to both conspiracies, and with Person A for the second. He must have been in regular contact with the international syndicate, as he was able to keep Person C informed of matters such as the suitability of proposed coordinates for a rendezvous at sea; departure, route, and likely arrival date for the incoming vessel; and to negotiate payment of conspirators with Person C. Although the source of the funds is not established on the evidence, the offender paid over large amounts of cash to facilitate arrangements, which he must have been supplied for this purpose via an unknown means. Whilst there is insufficient evidence to establish to the requisite standard that the offender had complete autonomy with respect to the Australian operations, or any independent decision-making capacity, he was a high level functionary of the syndicate in whom considerable trust and authority reposed. Without him, neither conspiracy could have gone beyond wishful thinking, or continued once started.

63. In performing his role the offender was astute to minimise the risk that he would be detected. He used what [REDACTED] described as “cloak and dagger” methodology in undertaking his functions: using encrypted BlackBerry communication; meeting Person C in unlikely places such as suburban streets; and employing clandestine means by which to deliver money. He was able to sufficiently distance himself from the offending conduct in a way that, although his role was known to police at an early stage, he was not identified as the individual who fulfilled it until well into events connected with the second conspiracy, on 4 August 2016.

64. The motivation of the participants, including the offender, was wholly financial. Although there is no evidence to establish precisely how much money the offender expected to realize from his participation in the two schemes, the sums must have been very large indeed and likely netting him millions of dollars across the two conspiracies.

65. His overall involvement extended for a period of about fifteen months.

66. The object of each of these conspiracies was the importation of very significant quantities of cocaine, to the enrichment of the conspirators, and to the great detriment of the Australian community. They each represent very grave instances of the charged offence, and criminality of a high order. Although there is little to distinguish between the criminality of the two offences, count 1 is marginally more serious because it involved the offender in seeking out the international source of the cocaine. The relationship was in place for count 2, making that step unnecessary.

Criminal Antecedents

67. There are some entries recorded against the offender in a criminal record tendered on sentence, although nothing of particular relevance. The offender was dealt with in the Children’s Court jurisdiction in September 2007 for specially aggravated entry to a dwelling with intent to inflict grievous bodily harm, and two counts of malicious wounding. He was made subject to a bond with respect to each charge, after a successful appeal to the District Court against severity of sentence, suspended control orders having been imposed at first instance.

68. Otherwise, the offender has against him only convictions which post-date the matters before this Court, for offences discovered when police searched his apartment on 25 December 2016. On 14 March 2018, the offender was convicted of three counts of possessing ammunition without a permit, one count of possessing a pistol without authority, and one count of acquiring a firearm part without authority. The ammunition offences were all penalised by conviction alone; for the firearms offences the offender received gaol terms at first instance, later varied on appeal to the District Court to bonds pursuant to the former s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 3 years duration. Those bonds remain current until 11 June 2021.

69. For present purposes, the offender is generally a person of former good character.

Subjective Case

70. The offender was born in September 1987 and is now aged 32 years. He was around 28 and 29 years of age at the time of the commission of these offences.

71. The offender did not give evidence on sentence and it is difficult to have any real sense of who he is; his background, circumstances, and overall character remain somewhat opaque. What is known is drawn from his evidence at trial as to personal matters, the evidence of two character witnesses called at trial, and from the documentary material in Exs SC1, SC2, SC3, and SC4.

72. The offender was born and raised in Sydney. Part of his childhood was spent on a small cattle farm on the outskirts of Sydney, where he developed an interest in firearms, as part of farming life. At one stage he held a licence to possess firearms. The offender was educated to Year 12 level and, having attained his Higher School Certificate, he went on to work in retail, before moving into security work in about 2008.

73. Mr Cooper undertook training courses to qualify him for such work with a private educational provider, receiving a Certificate II in Security Services. The offender commenced work as a security officer with a private firm. His employment involved crowd control at entertainment venues, staff protection, property security, and the like. Later, after further training and receipt of what was referred to in evidence as a “CAPI Certificate”, the offender worked in surveillance, debt collection and repossessions, and investigative work. In 2014, the offender established his own company, “Big C Security”, offering security services on his own behalf. In March 2016, he obtained a “Master License” in security, allowing him to offer a wider range of services within the security industry. He held contracts offering a counter-terrorism response service and undertook at least one maritime security job.

74. Although the offender gave evidence of a secondary business he established, selling encrypted devices as the sole Australian representative of an international firm selling the devices or contracts for their use; I have set aside that asserted business activity. The evidence was part of that advanced by the offender apparently to account for his known interactions with Person C, and the jury must have rejected it as not reasonably possible. In the absence of some independent evidence, such as an agency contract or business records to support his involvement in this work, I do not accept the offender’s evidence about that activity, even on balance. The offender had access to encrypted devices, but for more nefarious purposes than ordinary commerce.

75. The offender also gave evidence of some less admirable aspects of his work history, such as taking steps to avoid official scrutiny of cash transactions and, potentially, tax evasion, but I have set those matters aside as being either not established to the criminal standard, or broadly irrelevant to the present offending conduct, or both.

76. Natalie Kunovsky gave evidence at trial, and via affidavit on sentence (at Ex SC1) of her friendship with the offender, a friendship formed in the course of their respective employment in 2014 or 2015. Ms Kunovsky regards the offender as being very good at his job, and respectful in the execution of his duties. She found him to be a caring, loyal, and reliable friend. She is confident that he has a positive contribution to make to society.

77. In her affidavit of 30 April 2020, Ms Kunovsky said that the offender was estranged from his family and, following the death two months ago of his grandfather, with whom he had been close, he is without any family support. She referred to the breakdown of a relationship between the offender and a girlfriend in the latter part of 2016, and the offender in evidence made a reference to having been depressed in 2016, and the relationship ending against the background of his unhappiness. The cause or source of the depression is not known; although it appears to have been broadly contemporaneous with the offender’s participation in the two offences, there is no evidence that it was relevant to it.

78. Nothing more is known of the offender’s personal relationships.

79. David Millward employed the offender as a security officer for about six years from 2011 and found him to be reliable, honest, and “excellent” at his job.

80. Since entering custody, the offender has done what he can to improve himself, his education, and his qualifications. Exhibit SC2 evidences the offender’s successful completion of a number of courses in which he has participated, earning certificates or statements of attainment in Access to Vocational Pathways, the conduct of fitness appraisals, safe manual handling methods, the ability to follow work and safety procedures, hospitality workplace skills, and warehousing and stock management skills. Only the limited availability to remand prisoners of more challenging courses has prevented the offender from doing more. I accept that the offender is motivated to improve himself, and to use his time in custody in as worthwhile a manner as he can.

81. In custody, there is some evidence that the offender has contributed to the wellbeing of others. Exhibit SC4 is a letter from a fellow remand prisoner, Mr Younes, who was (as a matter of public record) in custody awaiting, and then standing, trial for murder. The offender was able to assist Mr Younes with reading and understanding the brief of evidence served upon him relevant to the charge, and also in providing support to him during the course of his trial. Mr Younes credits the offender with saving his life when he became suicidal, and in assisting him to avoid violence at the hands of other prisoners. This evidence establishes that the offender is capable of thinking of and supporting others, and it is consistent with Ms Kunovsky’s assessment of him as a caring friend.

82. There is no evidence to suggest that the offender is contrite, or remorseful for his crimes. He advanced a positive case at trial in which he gave an exculpatory account of aspects of the Crown case that pointed to his guilt, such as his meeting with other conspirators on 4 August 2016, and his provision of two BlackBerry devices to Person C in November 2016. The jury rejected that account as one which was not reasonably possible. Nothing in the offender’s evidence at trial is suggestive of remorse.

83. In consenting to orders made in this Court (differently constituted) in December 2019 for the forfeiture to the Commonwealth of the $100,275 in Australian currency seized from his apartment in December 2016, the offender has taken some action which, at least, can be regarded as an acknowledgement of the illegitimacy of the funds in his possession, and which facilitated the course of justice to a degree. Although the forfeiture order was likely to have been inevitable, the offender accepted that proposition, and saved court time in not opposing the order made pursuant to ss 48 and 49 of the Proceeds of Crime Act 2002 (Cth).

84. As to rehabilitation, although there is, in my opinion, a clear link between remorse and rehabilitation such that the absence of the former must cast some doubt upon the prospects of the latter being achieved, there is some evidence relevant to the offender’s future prospects beyond the absence of contrition. Whilst it is not possible to conclude that the offender would not again be tempted by the financial rewards that can be linked to drug crime, it can be concluded that he is motivated to better his legitimate employment prospects. The offender has undertaken a range of vocational courses over the last three or so years, and it is likely he will continue to undertake other educational or vocational programmes available to him in the prison system in the future. On that basis, I accept that the offender is willing to take steps to support a law abiding lifestyle upon his release.

70. He clearly has some business skills, and with a willingness to undertake more training and education, he has some positive prospects for his later life. Whether he will abjure future crime is something that only time will tell. One purpose of the sentence to be imposed today is to encourage him to do so.

71. The offender has expressed to Ms Kunovsky and Mr Younes his deeply held wish to have a family; that wish can only be realised if the offender remains crime free upon his eventual release from custody. I accept that his desire for a family life will be a support to him in achieving a law abiding lifestyle.

Accumulation / Concurrence

87. As I have already observed, the very great gravity of these crimes, the offender’s clear-eyed participation in them for financial benefit, and his senior role in each conspiracy, mandate custodial sentences and, bearing in mind the maximum penalty specified by the Federal Parliament for such offences, sentences of some significance. Consideration must be given to the principle of totality, and the degree of concurrence or accumulation to be applied.

88. Although there is a degree of commonality between the offender’s two crimes, the offences for which he is to be sentenced are separate crimes, and some degree of accumulation of sentence is necessary, to recognise the separate criminality of each.

89. The commonality is in the identity of the principal players, the roles undertaken by each, and the consistency of methodology; the difference is in the overt acts undertaken in support of each, the period of offending, and the separate objects of the respective conspiracies. Bearing in mind the principle of totality, I propose to allow a greater degree of concurrence than might ordinarily be dictated by the common features of the offending, and one which amounts to a considerable level of concurrency.

Other Considerations

Parity

90. The offender is one of a number of individuals who have now been convicted for their respective role in one or both of these conspiracies.

91. Person A, Person C, John Tobin, Frank D’Agostino, Joseph D’Agostino, James Collins, Stuart Ayrton, and Richard Lipton are all co-offenders with respect to the Saxon Progress conspiracy. Person A, Person C, John Tobin, Stuart Ayrton, Graeme Toa Toa, Reuben Dawe and Richard Lipton are co-offenders with respect to the Second Dalrymple conspiracy. It is necessary to consider the principle of parity, and have regard to the sentences imposed upon the co-offenders, to ensure consistency of outcome, insofar as the objective case against each conspirator, and that person’s subjective case, allows.

92. As both the Crown and the offender submit, those at what might be categorised as the lower end of the hierarchy of persons involved in the conspiracies, provide no useful comparison to the offender’s overall circumstances. It is of greater utility to look to the sentences imposed upon Person A and Person C in applying the parity principle. It was the offender, with Person A and Person C, who brought together the persons and things necessary to bring about the object of each conspiracy.

93. All of the features relevant to the determination of sentence imposed upon each man can be found in R v [Person A], [Person C] & Tobin [2018] NSWSC 1953 (Restricted). I do not intend to repeat those features here in anything other than a summary way.

94. The offender’s role was much more significant than that of Person C, the latter being a lesser functionary in comparison to the offender, who had direct access to the source of the drugs. In that sense, his role was also more important than that of Person A, who had no such access. Although Person A was a very important participant in each conspiracy, in that it was his access to ocean going vessels and ability to recruit crew that made the schemes possible, the offender is yet more important, because of his access to the source of the drugs. Person A’s capacities only became relevant once the offender had arranged with an international source for the drugs to be shipped to Australia.

95. The offender is to be distinguished from his more comparable co-offenders in that way, as being closer to the source of the drugs and with greater knowledge as to the movement of the cargos. The offender had the capacity, which Person A and Person C did not, to liaise with the international source of the cocaine - as distinct from the carriers - and co-ordinate its delivery at sea to Australian conspirators. Without him, the object of the two conspiracies could not have progressed in any meaningful way.

96. His subjective case is a further basis for distinction. The offender cannot, of course, claim any mitigation of sentence based upon [REDACTED], or acknowledgment of guilt by a plea.

97. Person A’s case included other matters which had some mitigating effect, including strong evidence of remorse and contrition, the onerous conditions which he faced in custody [REDACTED], his advanced age, and some adverse health issues; Person C also is considerably older than the offender, and affected by a number of health issues including a major depressive disorder. Although his motivation for involvement in these and other crimes was, like the offender’s, financial, he was, unlike the offender, in a position of severe hardship at the time. He also was remorseful and contrite. His experience of imprisonment, like Person A’s, will be more onerous than for most prisoners. Both men had good prospects of rehabilitation.

98. The offender’s subjective case differs in other regards. He stands for sentence for fewer offences than did either of his co-offenders, a feature lessening the utility of the comparison.

99. Although not as powerful a case as that presented by Person A, who could call on a lifetime of good character, and one in which he accrued no adverse criminal entries, the offender can claim some leniency on the basis of his generally good character, even acknowledging that good character is a feature given less weight in determining sentence in cases of this nature than for other types of offending. Mr Cooper has been fully employed since leaving school, and established his own small business, a business that appears to have been viable. That feature distinguishes his case from that of Person C, to a degree, as the latter had a history of other offending, including drug offending.

100. Each of Person A and Person C received aggregate sentences for a greater number of offences than those faced by the offender. Whilst the indicative terms given for the relevant offences are of some assistance in determining the sentences to be imposed upon the offender, they can be no more than a general reference point. Sentencing is not a mathematical exercise where points can be awarded or subtracted to account for the existence or absence of particular features; it is far more complicated than that. I have given careful attention to the sentences imposed upon Person A and Person C in determining the sentences to be imposed upon Mr Cooper, but there are marked differences in the respective cases which limit the usefulness of the exercise.

Section 16A of the Crimes Act 1914 (Cth)

101. These being federal offences, the Court must take into consideration those matters in Part 1B of the Commonwealth Crimes Act relevant to sentencing. Section 16A provides a list of matters to which the Court must have regard when passing sentence for federal offences, the majority of which I have already addressed.

102. A fundamental requirement imposed by s 16A(1) is that the sentence imposed upon the offender is one “that is of a severity appropriate in all the circumstances of the offence”. That is to be determined having regard to all of those matters in s 16A(2) which apply.

103. Section 16A(2)(j) and (ja) require the Court, in common with the common law, to have regard to both specific and general deterrence.

104. Deterrence has been held by the High Court and by courts of criminal appeal in all states to be a significant feature in the determination of the sentences to be imposed for drug crimes such as those committed by the offender, because of the difficulty of detecting such offences, and the social consequences that follow: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [64]; R v Nguyen; R v Pham [2010] NSWCCA 238 at [72].

105. Not only must the sentence imposed be one which will deter the offender from the commission of further such offences, it must:

“demonstrate to others tempted to engage in lawlessness on a vast scale that the punishment to be imposed will be calculated to protect society from the attack made upon it. … The extent to which a sentence recedes from the maximum in cases of this kind is limited by the necessity to impose sentences of unequivocal severity as the most efficient means available to the courts to enforce the relevant prohibition” (R v Tait and Bartley (1979) 46 FLR 386 at 399).

106. That principle has been given effect in each of the cases to which the Court was referred for assistance with the relevant sentencing principles applicable to drug offending of a similar nature. The relevant authorities are: R v Suarez-Mejia [2002] WASCA 187; Chen & Ors v R [2002] NSWCCA 174; (2002) 130 A Crim R 300; R v Ismunandar; R v Siregar [2002] NSWCCA 477; (2002) 136 A Crim R 206; R v Bartle & Ors [2003] NSWCCA 329; (2003) 181 FLR 1; R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26; R (Cth) v Li & Ors [2005] NSWCCA 154; de la Espriella-Velasco v The Queen [2006] WASCA 31; Thompson v R [2007] NSWCCA 83; Melgar Sevilla v The Queen [2007] WASCA 116; Sukkar v The Queen (No 2) [2008] WASCA 2; Teng & Ors v The Queen [2009] VSCA 148; Velez v R (Cth) [2015] NSWCCA 177; R v Elfar & Golding [2017] QCA 170. I have had regard to each of those cases in the way referred to in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [18].

107. The generally positive, if very much guarded, finding I have made with respect to the offender’s future prospects mitigates to some extent the need for the sentence to have a strongly deterrent effect upon him, although without obviating it entirely. The need for the sentence to deter others by showing would-be offenders what lies in store for drug offenders of this ilk remains, and must be given “chief weight”.

108. For an island nation the surveillance and protection by the authorities of the entirety of the oceanic border is impossible; the imposition of severe sentences upon those who seek to breach the nation’s integrity by the importation of illicit drugs, to the detriment of society, must play an important role in the protection of the border.

109. The final matter to be considered in the determination of sentence is one to which I have already referred in another context, that being the offender’s consent to forfeiture orders made against him in relation to the cash seized from his apartment on 25 December 2016, evidencing a willingness to facilitate the course of justice in that regard: Ex SC3.

110. Section 320 of the Proceeds of Crime Act provides that a court passing sentence for an indictable offence such as those before this Court may have regard to any cooperation given by the offender in resolving an action under the Act (s 320(a)); and must have regard to a forfeiture order that forfeits property which is not the proceeds of the offence (s 320(c)).

111. I have had regard to the forfeiture order made against the offender although, since it relates to property that I am satisfied beyond reasonable doubt was connected with, if not the proceeds of, the commission of these offences; I do not consider it as having any mitigating effect on sentence beyond that which I have already concluded it evidences.

Sentence

112. The offender was formally convicted of each of the offences of conspiring to import a commercial quantity of a border controlled drug on 18 September 2019.

113. The most straightforward approach to his sentence for those crimes is to impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), encompassing both. Had I imposed sentences individually for those offences, they would have been as follows:

1. For count 1, a sentence of 26 years imprisonment with a non-parole period of 16 years;

2. For count 2, 24 years imprisonment with a non-parole period of 15 years.

114. The offender is sentenced to an aggregate term of imprisonment of 28 years, with a non-parole period of 18 years. The sentence will date from 25 December 2016. The offender will be eligible for release to parole on 24 December 2034. The total term of imprisonment will expire on 24 December 2044.

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Amendments

07 November 2024 - Typographical amendment to coversheet.

Decision last updated: 07 November 2024