R (Cth) v D'Agostino

[2021] NSWSC 291

Supreme Court

New South Wales

Medium Neutral Citation:

R (Cth) v D’Agostino [2021] NSWSC 291

Hearing dates:

18 December 2020

Date of orders:

26 March 2021

Decision date:

26 March 2021

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

(1) Joseph D’Agostino is convicted of counts 1, 2, and 3 of the indictment presented against him at trial.

(2) He is sentenced to imprisonment for 30 years to date from 8 September 2018, expiring on 7 September 2048. The non-parole period is one of 20 years imprisonment, expiring on 7 September 2038.

Catchwords:

CRIME — conspiracies to import a commercial quantity of border controlled drugs — plea of guilty and conviction after trial — role of offender — level of seniority in conspiracies — parity with other offenders

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Evidence Act 1995 (NSW)

Cases Cited:

D’Agostino v R [2019] NSWCCA 259

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1

Imbornone v R [2017] NSWCCA 144

R (Cth) v Person A [2018] NSWSC 1953

R (Cth) v Person C [2018] NSWSC 1953

R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369

R v Robert Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1

R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 115 A Crim R 104

Xiao v R [2018] NSWCCA 4; (2018) 329 FLR 1

Category:

Sentence

Parties:

Regina (Cth) (Crown)
Joseph D’Agostino (Offender)

Representation:

Counsel:
P McGuire (Cth) (Crown)
S Stratton SC (Offender)

Solicitors:
Solicitor for Public Prosecutions (Cth) (Crown)
Mitchell and Co Lawyers (Offender)

File Number(s):

2017/10927

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) there is to be no publication of information concerning Person A, Person B or Person C that identifies or is likely to lead to the identification of the witnesses.

Judgment

1. HER HONOUR: Joseph D’Agostino stands to be sentenced for three offences charged on an indictment dated 10 October 2019 of conspiring to import a commercial quantity of a border controlled drug. Each is an offence contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth); such offences carry a maximum penalty of life imprisonment upon conviction.

2. The first of the three offences relates to a conspiracy which came to be known as the Fiji Conspiracy, the name deriving from the country from which it was intended to import heroin. The second and third conspiracies were named for the boats involved in the planned importations by sea, respectively, the Eclipse Conspiracy and the Saxon Progress Conspiracy. The offender pleaded guilty to count 1 of the indictment, the Fiji Conspiracy; he was found guilty by a jury of counts 2 and 3.

3. Even though count 1 proceeded as a plea of guilty entered by the offender, the facts of all three offences fall to be determined by the Court on the basis of evidence adduced at his trial for counts 2 and 3, since evidence relating to all three agreements was placed before the jury.

4. Part of that evidence was Exhibits A, B, and C, being agreed statements of fact, or admissions, concerning some of the relevant events. Ex. C is an admission concerning the dates upon which the offender was in custody with respect to unrelated District Court sentence proceedings. Exs. A and B concern objectively ascertainable events connected with the Fiji and Saxon Progress Conspiracies. The facts outlined therein go to establishing matters which the offender did not dispute occurred, whilst disputing his role in them, to some extent, or entirely.

5. The dispute between the Crown and the offender as to the facts to be found concerning the offender’s role in each of the conspiracies is substantial, with little agreement to be found on any aspect of the conspiracies the subject of the indictment. Even the facts of count 1 are in issue, with a concession from the offender (by his plea of guilty) as to the elements of count 1, but little else of significance.

The Facts Drawn from the Evidence

6. The set of events that led to the commission of these offences began with the offender’s financial problems. In 2013 the offender wanted to sell a penthouse he owned in a city apartment block. Person A expressed some interest in buying the property. [Redacted.] The prospective purchase brought them back into contact.

7. In the context of their renewed contact, the offender asked Person A to loan him a significant sum of money, and Person A withdrew $20,000 from his account - considerably less than the sum asked for - and gave it to [the offender]. The money was to be repaid within a few weeks, but was not returned. Instead, the offender sought further assistance, and Person A provided some other funds, as well as selling the offender a Mercedes motor vehicle, the purchase price of which was never paid.

8. Trying to gather funds to allow him to relocate to England, where his wife and children were, the offender suggested various potentially money making schemes to Person A, before raising with him the prospect of using Person A’s knowledge of and contacts in the deep sea fishing industry to import controlled drugs into Australia.

9. Desirous of recovering the loan monies he had advanced to the offender and experiencing some financial losses of his own connected with his fishing business, Person A agreed. Each man brought something to the agreement: the offender his knowledge of the illegal drug industry and contacts with persons who could supply substantial amount of drugs from overseas; Person A his access to and knowledge of ocean-going fishing vessels and his financial resources.

The Fiji Conspiracy

10. This conspiracy was on foot between about 14 August 2014 and 13 January 2015, and involved the offender, his brother Frank D’Agostino, Person A, Pepe Garcia, Benjamin Sara, and others.

11. On 7 August 2014, there was a meeting between the offender and co-offenders Frank D’Agostino, Person A, and Garcia at a club in Double Bay where the men had some initial discussions about the proposal.

12. There was another meeting on 14 August 2014 at the same Double Bay Club involving the offender, Person A, Frank D’Agostino, Garcia and Sara. The offender and Person A were careful about the use of mobile telephones, being sure not to take their phones to the meeting at the club, as an anti-surveillance tactic. Person A was concerned about the division of profits realised from the importation, and that was one subject discussed between he and the offender (Ex. N:18-20).

13. At the meeting of the co-offenders the offender introduced Person A to Benjamin Sara, who was in direct contact with individuals internationally who could supply heroin through Fiji. During the discussion the participants agreed upon a plan to use a fishing boat to collect illegal drugs from Fiji. The possibility of concealing the drugs in marine floats was raised. Subsequently, the offender met with Sara and other co-conspirators on a number of occasions to discuss the arrangements for the planned importation from Fiji.

14. The offender, his brother and Person A left the meeting of 14 August 2014 together and drove to the city. The conversation between them during the drive was recorded (Ex. N:28). Person A told the offender that the cost to him of the proposal would be about $300,000. The offender advised him to make his costs clear to co-conspirators and set a minimum return in exchange for his participation. He agreed with Person A that they would cover the expenses of the venture and split the profit. The offender suggested that they could hold back some of the product as a guarantee of cash payment.

15. Separately, Person A was in contact with an individual known to him as [Person B], who he engaged to assist him with the importation of the drug shipment from Fiji. Person B was in fact an undercover police operative (“UCO”).

16. There were further meetings involving the offender on 20 October 2014, 22 October 2014, 13 November 2014, 14 November 2014 and 1 December 2014, at which arrangements for the proposed Fiji importation were discussed. On 4 December 2014 Person A introduced the offender to Person B. The Fiji importation was discussed, and the offender arranged to obtain a BlackBerry communication device for the use of the UCO during the importation.

17. Person A did not wish to be overtly involved in the Fiji importation from that point, at the behest of Pepe Garcia. Person B was effectively Person A’s agent, thereafter, reporting to him after meetings he had with the offender and others, to update him on events.

18. On 5 December 2014, the offender met with Benjamin Sara and the UCO Person B (Ex. N338). The offender introduced Person B to Sara and the group discussed arrangements for the Fiji importation, including amounts of heroin to be imported (initially 100kg but later 28kg), the packaging for the drug, and the use of a “door”, or facilitator in Fiji. The offender referred to the “next job” as one involving the importation of 200kg of heroin, consistent with Person B’s understanding that the Fiji importation was something of a trial run, to ensure that the systems put in place were successful. Person B made clear to those present that he regarded himself as working for them during the importation or importations.

19. The offender referred to the issue of secure communications, suggesting that the use of encrypted BlackBerry devices was “the only way”. The offender told the others that the importation had to be completed “by Christmas”. The arrangement was for Person B to fly to Fiji, meet the contact whose details would be given to him by Sara, and arrange for the heroin to be shipped from Nandi to Australia, using a boat arranged by Person A, through the agency of Person B. When Person B suggested that he take an extra person with him to Fiji for security, the offender agreed. The offender assured Person B that once the heroin was landed in Australia, “we’ll have storage for it” (Ex. N366), saying “that’s all organised” (Ex. N369).

20. The offender told Person B that he was considering organising another importation from Indonesia, once the Fiji importation was completed. It was clear to Person B that the offender and his brother were “hard up”, and it was Person A who ultimately paid for the BlackBerry device.

21. There was another meeting between the offender, Sara and the UCO on 8 December 2014, at which time the UCO was provided with a BlackBerry device for use during the importation. The offender’s contact details and those of Sara had been programmed into the BlackBerry. The offender told Person B that the Fiji contact had arrived in Fiji and he described a mechanism by which Person B and the contact could safely recognise each other on meeting in Fiji, involving a banknote with a particular serial number. He said, “we do that a lot overseas” (Ex. N421).

22. Once a BlackBerry group was established much of the communication between the conspirators happened via encrypted messages. The offender’s username varied from time to time, being “Italian” and “ILoveProsties” initially. In a message of 8 December 2014, the offender told the UCO that Double Bay or Rose Bay may be suitable landing places for the incoming heroin, although concluding, “anywhere really” (Ex. N449).

23. There followed many messages amongst the conspirators about the arrangements for Fiji, particularly after Person B departed for Fiji, ostensibly via New Zealand, on 9 December 2014. The offender and Sara kept Person B updated with the expected arrival date of the shipment of heroin into Fiji, and the likely date of its clearance through Fiji Customs (e.g., Ex. N453). The offender regularly messaged the UCO in this time, seeking to give or receive updates, and endeavouring to speed the importation process.

24. On 12 December 2014 the UCO met with the Fijian contact, Ethan Kai in Fiji. Kai was also known as “Asterfight” and “Bula” in BlackBerry messages. The two men discussed arrangements for the heroin once it was released from Fiji Customs, with the cargo to be conveyed to Nandi, where Person B would arrange for its export aboard the vessel Northern Odyssey, which he was to charter for the purpose.

25. Also on that day, the offender was in communication with the UCO in Fiji concerning issues with the quality of a proposed co-shipment of pseudoephedrine, telling him “they” said it “did not test good” and he would “get it cheap […] off the boss” (Ex. N469). It is clear the offender was in direct contact with the international supplier of the drugs and able to negotiate price with that person. He assured Person B that the “next trip” would bring in 200kg. There were a number of messages in which the offender raised the possibility of future importations (e.g., Ex. N476).

26. The release of the shipment from Fiji Customs was delayed repeatedly. In this context, the offender assured Person B that the people they were dealing with internationally were a “very very good camp” (Ex. N482). As the delays continued, the offender was repeatedly in contact with the UCO about progress. When the UCO complained about the cost to him of the delay, the offender assured him that he would be compensated, telling Person B that he would mention it to the “boss” (Ex. N509). Ultimately it became clear, however, that the heroin had been seized by local authorities before it passed through Fijian Customs. The offender urged the UCO to delete his messages (Ex. N512).

27. On 19 December 2014, the offender sent messages to the UCO, in one of which he said:

“Sorry for fuck up mate but this bloke always said he pays upfront to get shit cleared […] All best mate see you soon. And sorry again I sure we can make it up to [?you] very soon” (Ex. N516).

28. He later said he had two “better camps” or international suppliers “ready to go” (Ex. N516), following that message with more messages suggesting other importations (e.g., Ex. N485; Ex. AC).

29. The UCO returned to Australia on 20 December 2014. That same day Kai was detained as he attempted to leave Fiji. A cargo of 28 kilograms of heroin was seized from its place of concealment in a shipment of quad bike tyres. The Fijian importer of the tyres was arrested.

30. The heroin seized in Fiji was, the offender told Person B during a meeting of 13 January 2015, “our stuff” (Ex. N568). Later analyses showed that the cargo consisted of 28.15kg of heroin, with a minimum purity of 57.3%. The pure weight of the drug was 18.728kg. Its median wholesale value at the time was about $7.6 million; the median street value was over $21.1 million.

31. The commercial quantity specified for heroin is 1.5kg. The quantity to be imported was many, many times greater than that.

32. The offender was in custody with respect to unrelated drug offences between 22 January 2015 and 18 February 2015. He was admitted to bail on the later date, pending sentence listed before the Parramatta District Court on 14 October 2015.

The Eclipse Conspiracy

33. This conspiracy was on foot between 13 January 2015 and 31 May 2015 and involved the offender, his brother Frank, Person A, and others. Despite the failure of the Fiji plan the agreement reached between the conspirators in this instance was more ambitious, and involved the importation of about 400 kilograms of cocaine from international waters, using a local fishing boat to collect the drugs at sea and bring them to Australia.

34. The origins of this plan were in the offender’s persistent suggestions towards the end of the Fiji Conspiracy that he had contacts other than Ben Sara and could set up another importation. The offender raised many “opportunities” with both Person A and the UCO for future lucrative importations, including discussing with Person A a pick-up at sea involving 400kg of “coke”, or cocaine. Initial discussions focused on possible points at sea where a local vessel could meet an international vessel and take delivery of the drugs. Whilst at an early stage the co-ordinates were relatively close to the Australian coastline, they later shifted to points outside the Australian Economic Zone. This importation became that agreed upon by the conspirators.

35. Person A explored [Redacted] the prospect of obtaining the use of a fishing boat, which he intended to use to collect the cocaine at sea. The offender was perceived by Person A at this time to be pushing him to quickly make arrangements for the importation. He thought the offender’s behaviour was erratic and was concerned about working for him. The offender told him that the cocaine was being brought towards Australia aboard a submarine and could be expected in early April 2015.

36. The offender discussed with Person A the use of a satellite phone for use at sea in making contact with the Colombian vessel. Person A was provided with the telephone number for the skipper of the submarine by the offender. On 5 March 2015 in a discussion with the UCO Person B, Person A told him that he had made a commitment to the offender to do the job for him and considered himself obligated to do so. He said that the drugs would be handed over to the offender at the boat ramp at which they were landed in Australia.

37. The offender met Person A on 9 March 2015, and later had lunch with him and Ben Sara at a Chinese restaurant, to discuss arrangements for “the Eclipse job”. Person A was later able to tell Person B that the job for the offender involved 400kg of “coke”, “kilo double wrapped” to make the blocks waterproof (T555).

38. On 20 March 2015 there was a further meeting between the offender and Person A.

39. Person A made arrangements to purchase a satellite phone and have it installed on the top of the cabin of the Eclipse, the vessel he intended to use to meet the submarine at sea.

40. The offender, his brother and Person A met on 30 March 2015 to discuss arrangements relating to the plans for the Eclipse. Person A was to provide the offender with the telephone number of the satellite phone he was buying as soon as he had it. At some point the offender told Person A that the submarine was due around the approximate meeting point, between 24 and 30 April 2015.

41. On 10 April 2015 the offender and his brother met Person A at Pyrmont to discuss arrangements for the approaching importation.

42. Sometime around 22 April 2015, the offender told Person A that he had been unable to contact the submarine. He wanted Person A to go to the meeting point at sea and wait for the arrival of the vessel. Person A was unwilling to sit out at sea without better information about the arrival of the submarine. They met, together with Frank D’Agostino, on 25 April 2015, at which time Person A showed the offender the satellite phone he had obtained for the forthcoming voyage. The offender advised Person A that the submarine was ready, and the rendezvous could take place. He instructed Person A to use the name “Bill” when speaking with the submarine crew by telephone.

43. On 27 April 2015, Person A received a telephone call from an individual he understood to be the skipper of the submarine. The originating number of the call displayed the country code for Colombia. The caller told Person A the vessel would arrive between 17 and 25 days after the call. He asked Person A for new co-ordinates for the meeting point. It was arranged that Person A would provide the new co-ordinates to his “friend”, meaning the offender, for the offender to transmit to the Colombians using a form of secure encryption, “PGP” or “Pretty Good Privacy” that, unlike the offender, Person A did not have access to. Person A subsequently passed on the new co-ordinates to the offender for him to provide to the Colombians.

44. On 1 May 2015 Person A and the offender met to discuss arrangements. Subsequently, Person A tried repeatedly to get in contact with the Colombian telephone number the offender had previously provided to him but was unable to do so. On 5 May 2015 he managed to speak to the Colombian skipper, telling him that he had passed on the new co-ordinates to his friend. The skipper confirmed that he had received them and had passed them on to those on the Colombian side of the operation who needed them.

33. Person A’s plan for the collection of the drugs at sea was to use large water tight plastic drums (purchased by him from a hardware store) which were floated to the submarine on a rope line, packed with cocaine by the crew of that vessel, and then drawn back to the Eclipse. The drugs would be left in the drums until off-loaded in Australia and handed over to the offender.

34. On 26 May 2015 the offender and Person A met in Pyrmont. The drums were delivered to the wharf for loading on to the Eclipse the following day. On 28 May 2015 Person A called the offender and asked if it was “okay to go fishing”, a coded means of seeking approval to depart to meet the submarine. Departure the following day was approved. The offender and Person A arranged to meet for breakfast the next morning, with the offender directing Person A to “bring it”, likely a reference to the satellite phone.

35. They met in the afternoon of that day in Pyrmont, together with Frank D’Agostino. Person A brought the satellite phone and showed the offender that he could not make contact with the Colombians (Ex. Q). The offender took the handset and listened to the unconnected call. Despite the lack of contact with the submarine Person A asked the offender if he could “go fishing” and was told “yep” by him. The offender suggested that the Colombians could not communicate because the vessel was not “up”, meaning it had not come up above the surface of the water.

36. On the morning of 29 May 2015, the offender and Person A again met at a café in Pyrmont. The offender had obtained two Virgin SIM cards for “burner” or throw away mobile phones and gave one of them to Person A to use to communicate with him when in range of the coast. The burner was programmed with the telephone number that the offender was using at the time (he having a number of falsely subscribed accounts over time).

37. The offender was still unable to confirm that the submarine would be at the rendezvous point but undertook to get the information for Person A that day. The Eclipse was ready to sail and Person A wanted only the offender’s permission to commence the voyage. He received that approval later that day.

38. The Eclipse left its berth at the Sydney Fish Market at 9.44pm on 29 May 2015 with Person A aboard. The plan was to sail for the meeting point in the open ocean, collect the cocaine from the submarine using the drums and a line, and return to Sydney. During the voyage out Person A tried on numerous occasions to contact the submarine but was unable to do so.

39. The Eclipse arrived at what Person A thought was the rendezvous point the following day but there was no sign of the submarine. Person A could not reach the other vessel by satellite telephone. He also tried repeatedly to reach the offender but was unable to do so. After six hours at the meeting point Person A abandoned the venture and the Eclipse sailed for Sydney.

40. The vessel moored at the Sydney Fish Markets shortly after 3pm on 31 May 2015. Although the arrangement between the offender and Person A was that someone would be at the wharf to meet the Eclipse with a ute, there was no sign of the offender or a ute sent by him. Person A was angry and tried to telephone the offender. He could not reach him, leaving messages for him at his home and via text message.

41. When Person A had not had any contact from the offender by 1 June 2015, he went to the Downing Centre Court complex in Sydney where he was aware the offender was due to appear in court. Although he saw the offender, he could not speak with him, and had an angry exchange with Frank D’Agostino instead. Person A eventually spoke to the offender on the telephone later that night. They had a number of meetings subsequently about the failed venture, including a meeting of 6 June 2015, with Person A eventually told, by Sara or the offender, that the submarine had run low on provisions and one crew member had almost died. It had not arrived at the meeting point.

42. On 27 June 2016 the offender met with Person A, raising with him the prospect of other possible importations. They met again on 2 July and 8 July 2015 to discuss that possibility.

43. At some point months after the failed voyage Person A discussed receiving compensation from the offender for the expenses of the Eclipse Conspiracy, probably in a BlackBerry exchange after the offender had “gone on the run”, having failed to appear before the District Court for sentence with respect to drug offences on 14 October 2015. At some point, Ben Sara gave Person A $10,000 in cash at a meeting at a Sydney office building. The offender was also at the meeting and Person A gave the package containing the money to the offender as soon as Sara left. The offender told Person A he was desperate for money and had to pay his legal expenses.

44. The commercial quantity specified for cocaine is 2kg, with the proposed shipment representing many times that quantity.

Saxon Progress Conspiracy

57. The Saxon Progress Conspiracy was on foot between about 1 September 2015 and 31 March 2016, and involved the offender, his brother Frank, Person A, Person C, Jonathon Cooper, Richard Lipton, John Tobin, Stuart Ayrton, James Collins and others. The agreement reached between the conspirators was to import 610kg of cocaine.

58. During the course of the earlier conspiracies the offender had assured Person B and Person A that he had contacts other than Benjamin Sara through whom an importation of drugs could be arranged.

59. On 13 May 2015 the offender met with Richard Lipton at Bondi Junction. He met with Lipton again, this time in company with his brother Frank, on 21 August 2015.

60. At some point in the context of discussing “new jobs” with Person A after the failure of the Eclipse conspiracy, the offender asked Person A to meet Lipton. Lipton ultimately became involved in the Saxon Progress conspiracy; becoming, with Person C and Jonathon Cooper, the conduit to the international supplier of the cargo of cocaine that was to be imported under this conspiratorial agreement. Person A attended a meeting with Lipton and the offender in a park at some point at this early stage, at the offender’s request.

61. The offender had encouraged Person A to obtain a BlackBerry device to facilitate communications between them and Person A had obtained a device through Frank D’Agostino at the offender’s behest. Person A gave Frank D’Agostino the money for the purchase at around this time, and Frank D’Agostino subsequently provided him with a device already programmed with contact details for the offender. Person A’s details had also been entered into the device, by which he was assigned the username of “Captain”.

62. On 31 August 2015 Person A received a message from the offender via the BlackBerry seeking to arrange a meeting. There were further messages about the meeting between Person A and the offender on 2 September 2015. The meeting took place at the Harlequin Hotel on 4 September 2015.

63. Whilst Person A could not recall the discussion at that meeting, it occurred in the overall context of the offender raising “new jobs” for the importation of illicit drugs with Person A and led Person A to make contact with James Collins the following day, 5 September 2015. During that telephone discussion Person A raised a “confidential matter” with Collins, concerning which he floated the prospect of chartering the Saxon Progress, a vessel of which Collins was the skipper. The offender had told Person A that a boat would be needed, leading to the contact with Collins.

64. On 12 September 2015 the offender exchanged BlackBerry messages with Person A setting up a meeting between them. They met the following morning in Pyrmont. On 18 September 2015 the offender again met with Person A, at a café in Pyrmont. Discussions centred around the importation of drugs.

65. The offender was also in contact with Richard Lipton during this time, for the same purpose.

66. On 14 October 2015 the offender failed to appear before the Parramatta District Court where he was due to be sentenced for a number of State offences relating to the supply of prohibited drugs. A warrant issued for his apprehension and, from that point until his arrest almost a year later, the offender was at large, and referred to by his co-conspirators as being “on the run”.

67. On 5 December 2015 Frank D’Agostino, who I am satisfied was acting as the offender’s agent and conduit of information to and from him, took Person A to a Double Bay park to meet with Person C, an associate of Richard Lipton.

68. Person C had previously met with the offender who had told him about Person A and his access to ocean going fishing vessels. They discussed using Person A’s knowledge and contacts to import cocaine. It was the offender who established the link between Person C and Person A, with the men meeting at his behest. The offender communicated with Person C generally via BlackBerry, having provided Person C with his contact information.

69. At the meeting between Person A and Person C, Person A confirmed that he could supply a boat and crew to meet an incoming vessel on the open ocean. Person C confirmed that he had contacts who could dispatch a cargo of drugs towards Australia for that purpose. Person C said the drugs would likely be cocaine, from South America, conveyed by either a cargo vessel or a yacht. There was a discussion of possible co-ordinates for a rendezvous point.

70. Person A and Frank D’Agostino left the meeting together. Their conversation as they drove to Sydney was recorded. D’Agostino told Person A that he would see the offender later that day “to tell him how it went”, I am satisfied inferentially, to report on the meeting and progress made.

71. Person A communicated with the offender via BlackBerry after that first meeting to arrange payment. The agreement was that Person A would be paid by the offender following the importation.

72. Later, the offender met with Person C and Lipton to discuss arrangements. The offender provided his BlackBerry contact details to them. As Person C did not at that stage have a BlackBerry, the offender gave him the details of a BlackBerry agent from whom he could obtain a device.

73. On 10 December 2015 Person A and Frank D’Agostino went to Double Bay to meet with Person C, who acted for Lipton. D’Agostino told Person A that the offender had said that, whatever “they” said, Person A should “say yes”. Person A was instructed not to talk about money.

74. There followed a series of meetings at various Double Bay locations between Person A, Person C, and Frank D’Agostino, who acted for the offender. At these meetings the detail of the planned importation was discussed, including the country of origin of the cargo, being South America, prospective rendezvous locations, methods of communications including the use of multiple frequencies, the packaging in which the drug cargo would arrive, the estimated departure date of the South American vessel, and the port at which the drugs would be landed on arrival in Australia.

75. Person A was separately providing the offender with suitable co-ordinates for the meeting point. At a meeting on 17 December 2015 Person C said new co-ordinates were required and gave Person A a document listing possible points for the meeting of the two vessels at sea (Ex. W). Prior to a meeting of 20 December 2015 Frank D’Agostino told Person A that “Joe” [the offender] had said that, whatever Person C said [about co-ordinates for the vessels to meet] Person A should agree, and then “Joe will work it out”. Frank D’Agostino reported that the offender was talking to the same people, meaning Person C and Lipton. The offender was reported by his brother to be “antsy” at this time.

76. Person A continued his discussions with Collins during this period to secure the charter of the Saxon Progress and the assembly of crew for its voyage, meeting with him in Tasmania to discuss arrangements in person, obviating the use of a phone.

77. On 30 January 2016 Person C advised Frank D’Agostino and Person A that the South American vessel, which was a yacht, had departed, and was expected to arrive in the vicinity of the meeting point in early March. Person A continued with arrangements about the charter of the Saxon Progress, on 17 February 2016 securing Stuart Ayrton as skipper of the vessel, James Collins having been taken ill.

78. Person A’s agreement with the offender was to bring in a cargo of about 600kg of cocaine using the Saxon Progress. Initially the offender was to receive 20% of the profits derived from the importation; Person A was to receive 5%. He understood Person C and Lipton would receive a similar percentage. The offender told Person A that the wholesale price of cocaine was between $150,000 and $200,000 per kilogram. Person A wanted a guarantee of payment from the offender, who assured him via BlackBerry communication that if “they” paid, he would hand over the drugs, but if “they” didn’t pay, the offender would keep the drugs and arrange for their sale, thus ensuring Person A would be paid for his involvement.

79. Person A continued with arrangements for the charter and fit out of the Saxon Progress, and for crew to be employed. He gave out an account of requiring the vessel for research work, necessitating the removal of fishing gear from it. The stated purpose of the voyage had the advantage of defeating the scrutiny of the Australian Fishing Management Authority. Person A bore all expenses for the fit out of the Saxon Progress and supplies for the crew.

80. Meetings between Person A, Person C and Frank D’Agostino continued through February 2016 and into March. Discussed at the meetings was the packaging of cocaine, in bales amounting to “610”, or 610kg; the need to supply the incoming vessel with fuel; and the likely meeting date at sea.

81. The conspirators agreed that Person A would arrange for crew, other than Person C, who would be on board, and John Tobin, who was to be on board as the representative of the offender and his brother, to protect their interests. Tobin was a long-term close friend of the offender and was trusted by him. Person A was introduced to Tobin by Frank D’Agostino prior to the voyage. The arrangement between Person A and the offender was for Tobin to take his own share of the drugs once the cargo was landed, and the D’Agostino brothers’ share, if payment was to be made by a percentage of the cargo.

82. On 8 and 9 March 2016 Person A, Person C, and Tobin each travelled to Tasmania, to board the Saxon Progress, moored at Triabunna. Person A gave the co-ordinates for the meeting point to Ayrton; Person C was also in possession of the information. The vessel departed soon after and sailed north. Tobin was on board as the offender’s representative, to protect his and Frank D’Agostino’s interests, whilst performing general duties as a crew member.

83. Person A maintained communications with Frank D’Agostino,

84. The Saxon Progress was obliged to put in at Sydney on 14 March 2016 as there were problems with wi-fi communications. Person A used the opportunity to provide further supplies for the boat and crew, which he delivered by water-taxi. Although the communications problem was not resolved, the Saxon Progress continued its voyage, sailing in the direction of Norfolk Island, in the general vicinity of which the rendezvous with the incoming yacht was to be made.

85. That same day, 14 March 2016, Frank D’Agostino telephoned Person A and told him to “tell them to come back”. He said to tell the crew of the Saxon Progress, “just don’t go where you were supposed to go”. Frank D’Agostino had received this information from the offender, who had in turn received it through Lipton and Cooper.

86. The yacht that the Saxon Progress was to meet was the Vague A L’Ame, which had sailed for the rendezvous point carrying 610kg of cocaine. Although the Australian conspirators did not know it at the time, the yacht was boarded by the French Navy in French Polynesian waters on 14 February 2016. The cargo of about 610kg of cocaine was seized and the crew, a Mexican national and two nationals of Colombia, were arrested.

87. On later analysis the cocaine removed from the yacht was found to have a minimum purity of 73.9%, representing 449.24kg of pure cocaine. The value of the cargo at the time was about $129.5 million dollars wholesale, and $182.8 million dollars on the street.

88. A quantity of 610kg of cocaine represents over 300 times the commercial quantity.

89. On 15 March 2016 Person A and Frank D’Agostino met to discuss the failed operation. D’Agostino reported that the offender was “devastated” by the failure of the scheme, as he wanted to leave Australia.

90. There were later discussions between conspirators about compensation, with some monies later being paid to Person A from Cooper via Person C.

The Arrest of the Offender

91. On 8 September 2016 Detective Senior Constables Grimes and Zadravec went to the Manly Lodge at Manly, acting on information that the offender may have been residing there. They spoke to the offender as he emerged from the premises, asking his name. The offender gave them his friend John Tobin’s name, and provided the officers with Tobin’s Medicare card as proof of identity.

92. He was arrested in relation to the NSW Bench Warrant that had issued for his apprehension the previous October. A BlackBerry device, encrypted and locked, was found in his possession.

93. He has been in custody since that date in relation to the State drug offences. He was charged subsequently in relation to these matters.

Role and Gravity

94. As has been said by every court that has sentenced those conspirators who have been convicted for their respective roles in these offences, each conspiracy is a very serious example of an offence of conspiracy to import a commercial quantity of a border controlled drug.

95. The Fiji conspiracy involved a significantly lesser quantity of a border controlled drug than did the Eclipse and Saxon Progress conspiracies, being 28kg of heroin as opposed to 400kg and 610kg of cocaine respectively, but the planning and agreed mechanism for importation in each was both complex, and sophisticated. The conspiracies extended over about 18 months, with many meetings of and communications between conspirators devoted to making and finalising arrangements for the agreed importations. Counter-surveillance measures were routinely taken by those involved. The steps taken by individual conspirators to advance each agreement were numerous and multi-faceted, and involved the outlay of substantial resources, both in terms of monies spent and time and effort expended. None were successful, but that is a feature that does not diminish the gravity of the crimes. Each constitutes criminality, which was both at a very high level, and persistent.

96. The offender’s role was pivotal. If any one person can be identified as having originated these conspiracies, it is the offender. It was the offender who had the knowledge of the world of illicit drugs that Person A so singularly lacked. It was the offender who conceived of the scheme to exploit Person A’s legitimate business knowledge for nefarious purposes. It was the offender who had the knowledge and means by which to make contact with others in the drug milieu who could dispatch a drug cargo towards the Australian border for collection and importation. Had the offender never approached Person A with his illicit proposals, I am entirely satisfied that these schemes to import heroin and cocaine would never have evolved.

97. In relation to the Fiji conspiracy the offender initiated the plan to secure a cargo of heroin in Fiji and bring it to Australia by sea, as what was described as “a trial run”, necessarily with the intention of carrying out further importations thereafter. He made contact with persons internationally, who were represented in Fiji by Kai, and agreed on a plan to collect the cargo of 28kg of heroin and return it to Australia, where he intended to take delivery of it. He had the means to store the drug. It is clear from the BlackBerry exchanges received by the UCO Person B that the offender was in contact with the international supplier and was able to negotiate product and price with that person or persons, or others: for example, Ex. N529; Ex. AO; Ex. N536; Ex. N539; Ex. N540; Ex. N543).

94. The offender involved his brother and Person A, exploiting Person A’s greater wealth and resources to effect a plan that he could not have achieved without him. He linked Person A and Frank D’Agostino with Benjamin Sara, the local contact for the international supplier, thus bringing together the requisite knowledge and expertise to import heroin. During the currency of the conspiracy, and particularly during the period when Person B was in Fiji ostensibly seeking to collect the heroin, the offender was in communication with Australian, Fijian, and international participants, including the “top business man” (Ex. N566), to co-ordinate events and relay information from each to the other.

95. Whilst Person A took more active steps and outlaid more resources than the offender, his capacity to do so was the very reason the offender involved Person A in his plans. I accept the evidence given by Person A to the effect that he worked for the offender and took direction from him. The offender was at the apex of this conspiracy locally.

96. He devised this scheme in the expectation of receiving a very substantial amount of money following the importation of the heroin and, importantly, he expected to have tested a successful system to implement for future, even larger, more profitable, importations.

97. The offender’s role in the Eclipse conspiracy was at the same high level. It was he who conceived of and initiated the plan to import a border controlled drug, suggesting this next scheme to Person A after the failure of the first. The offender had the contacts in Colombia to arrange for the drug to be shipped to a meeting point at sea off the Australian coast, and used an encrypted BlackBerry to communicate with the Colombian supplier, including information as to the co-ordinates of the meeting point at sea, and the likely date of the arrival of the incoming vessel. Subsequently, the offender met regularly with Person A to discuss arrangements, and provided a SIM card to him to facilitate communication between them. It was he who gave approval for Person A’s departure. The offender was responsible for providing a ute to meet the Eclipse and its cargo on arrival in Sydney, to take possession of the drugs. Person A’s unfeigned anger at the offender’s failure to meet the boat, caught in recordings made at the time, is clear evidence of that.

98. After the scheme failed, it was the offender who sought and obtained information from the international supplier as to the cause of the failure of the submarine to arrive at the meeting.

99. Again, although Person A was by far the more active conspirator, the offender had involved him because of the resources Person A could command. The offender stood above Person A in the hierarchy of the conspiratorial agreement.

100. The offender’s role in the Saxon Progress conspiracy was critical, but not in this instance directorial, almost certainly because he was in hiding from authorities for much of the time.

101. He was still able to initiate the scheme by making contact with Richard Lipton, involving him and, through Lipton, Person C, to locate another source of drugs internationally. The offender brought together those persons who individually had the contacts and knowledge to make the proposal an achievable reality, linking Person A with Lipton and Person C, and through those men, the wider resources and networks each had access to.

102. Via BlackBerry device and through the agency of his brother, the offender remained fully apprised of the progress of the scheme, and placed his trusted representative on board the Saxon Progress to ensure that he and his brother received their agreed share of either the drugs, to be sold for profit, or a cash payment.

103. In each instance the offender’s sole motivation for initiating and participating in these schemes was profit. The evidence at trial was that the offender anticipated receiving at least 10% of the wholesale value of each cargo, paid in cash or taken in kind, giving him the potential to achieve profit in the millions of dollars. The high profit the offender expected to receive reflected the seniority of his position in relation to each conspiracy.

104. Although the offender asserted in a letter to the Court, not supported by evidence on oath, that he was not motivated by greed, it is difficult to accept that proposition. The funds necessary to leave Australia for an individual without a passport are impossible to know, but it is most unlikely that the sorts of amounts that the offender stood to make from these crimes would be necessary for that purpose. I conclude that, whilst part of the offender’s motivation was undoubtedly to flee the country, facing as he did sentence for serious drug crimes, and with his family in the United Kingdom, a significant motivation was the desire for substantial profits.

105. Although no drug was in fact imported and no profit realised, that was only through the diligence of law enforcement agencies in Australia and internationally. The resources expended in detecting, monitoring, and investigating these schemes was very considerable indeed. That of itself represents a loss to the Australian community. The loss would have been all the greater however, had these pernicious and insidious drugs arrived in Australia, to the destruction of users, and damage to the wider community.

106. In reaching these conclusions I have had regard to the offender’s submissions about his lesser role in these events, but am not able to accept them. They are contradicted by the credible evidence given on oath, which I accept.

Criminal History

111. The offender has a criminal history in two states, Victoria and New South Wales. His Victorian history is of no significance, containing a non-conviction entry for an offence of state false name from May 1996, dealt with by way of a fine. His NSW history is of direct relevance, containing as it does a number of convictions for serious drug offences as well as other crimes.

112. The offender’s NSW history began in 1984 when he was made subject to a recognisance pursuant to the (now repealed) s 556A of the Crimes Act 1900 (NSW) for an offence of public mischief. Two years later he was convicted and fined for stealing, being convicted and fined for a similar offence in 1988. There was then a gap in offending in NSW, with the offender not appearing before a court until August 1999, when he was placed on a s 556A recognisance for an offence of common assault. In November 2006 he was convicted and fined for possessing a prohibited weapon.

113. There followed another gap in the criminal history until August 2011, when the offender was charged with a series of serious supply offences. These are the matters which were outstanding at the time of the present offending, with the offender variously at conditional liberty on bail or, from 14 October 2015 until his arrest on 8 September 2016, at large and wanted by warrant of apprehension.

114. Sentence was imposed on 29 November 2016 for offences of knowingly deal with the proceeds of crime (2 counts), supplying a prohibited drug, and supplying a prohibited drug in an amount not less than the commercial quantity (2 counts). The offender received terms of imprisonment for each offence, with an overall sentence of 8 years and 9 months imposed. The sentence commenced on 29 July 2016 and expires on 28 April 2025. The offender will be eligible for release to parole on 28 July 2021.

115. An appeal by the offender against the sentence imposed to the Court of Criminal Appeal was dismissed on 31 October 2019, during the currency of the trial for these matters: D’Agostino v R [2019] NSWCCA 259.

116. The convictions for those offences have relevance to these proceedings in a number of ways: the offender was either at conditional liberty or at large for the period of the present offending, a matter of aggravation; specific deterrence has a greater role to play in the sentence to be imposed, since the offender is a repeat serious drug offender; and the principle of totality, already relevant because of the number of offences for sentence, has greater resonance by virtue of the existing term of imprisonment. The first two elements point to a longer sentence than might otherwise be the case; the last will operate to ameliorate it.

The Pleas Entered

117. The offender entered a plea of guilty to count 1, the Fiji conspiracy, before the jury panel on the first day of trial. That willingness to facilitate the course of justice, together with his cooperation in settling agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW), obviating the need to call extensive evidence to prove the matters conceded therein, will be taken into account when sentence is determined. Further, the offender is entitled to a quantified discount on sentence to reflect the utilitarian value of the plea, in accordance with Xiao v R [2018] NSWCCA 4; (2018) 329 FLR 1, R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 115 A Crim R 104, and R v Robert Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1.

118. The utilitarian value of the plea was, however, limited. The agreement as to the facts of the Fiji conspiracy in Ex. A says nothing about the offender’s role in the conspiracy, or the overt acts for which he was personally responsible. Evidence establishing those matters was adduced at trial. In those circumstances, and noting the lateness of the plea, I propose to allow a reduction in the sentence that would otherwise be imposed of 5%, rounding down in the offender’s favour.

Subjective Case

119. The offender did not give evidence on sentence. He submitted a handwritten letter in which he said that his motivation for his involvement in the Fiji conspiracy was not greed, but rather to secure sufficient funds to join his children and former wife in the United Kingdom.

120. He said that, at the time, his mental health was impaired, and he was “drinking alcohol and snorting drugs”. He was not taking prescribed medication consistently, and was focused on getting on a boat for Britain. The offender described his actions with respect to the Fiji conspiracy as “crazy”.

121. The offender has not seen his two children for seven years and that is a source of great sadness and stress to him. He referred to his children, now about 11 and 17 years of age, as having been deeply affected by his absence from their lives, and suffering as a consequence, as has his wider family. The offender said his children live in severe poverty in England.

122. The offender described trying to study in custody and working in an animal training programme for the ultimate benefit of traumatised soldiers, by providing trained companion dogs to those in need. These occupations are commendable.

123. In his letter, he asked for leniency and for an order, I regret, which this Court has no power to make, that his body should be taken to England for burial should he die in custody, so that he will be at rest near his children.

124. A report dated 30 November 2020 from Dr Richard Furst, forensic psychiatrist, is also in evidence.

125. Dr Furst assessed the offender on 28 October 2020, and considered other psychiatric reports, the Crown Case statement, and the offender’s criminal history. The doctor took a history from the offender, noting that he is a 61-year-old man, born in Sydney of Italian parents. He is one of five children and was placed in a slow learner’s class throughout most of primary school and into high school.

126. He left school at the age of 15 and worked at a fast food chain restaurant, and then at the Fire Brigade for three years before returning to work at the fast food chain.

127. He told Dr Furst that he experienced traumatic events while working for the Fire Brigade, including being the victim of a sexual assault and attending the Luna Park Ghost Train fire, and was emotionally upset and frequently depressed throughout his mid-twenties. The offender was prone to anxiety and apparent panic attacks and had difficulty sleeping. Previously, the offender worked as a house painter but at the time of the offences he was not employed, being in receipt of a Disability Support Pension, from around 2014 or 2015.

128. During his 40s and 50s the offender lived between Australia and England. He has two children of his relationship with Ms Dobson, a boy now aged 17 and a girl, now 11 years old. The children are living in England with their mother. The offender has not seen his children since around 2014. His son has been hospitalised on two occasions due to alcohol/drug consumption and his daughter is reportedly bullied at school.

129. The offender reported using large amounts of cocaine on a regular basis during his mid-40s, as well as heroin because “it relaxed [him]”. He would also drink between ten to fifteen beers per day.

130. He was treated by various psychiatrists for severe depression and a suspected bipolar disorder and reported some liver impairment, likely due to alcohol abuse. He also has a history of asthma, hypertension, gastroesophageal reflux disease, and Macular damage in his right eye. The offender was treated by Dr Andrew McPherson as recently as 2015, who noted that the offender’s history of depression developed around 2004 and he was treated with anti-depressant medications until around 2010 or 2011. It was also reported that the offender had hypomanic symptoms, occurring every 2-4 weeks and lasting half a day where he would feel “irritable, angry, elevated in mood, excited, overactive and impulsive”.

131. Dr McPherson reported in August 2014 that the offender was very unwell, with marked depression, tearfulness, auditory hallucinations and very little speech or eye contact. His symptoms were consistent with bipolar affective disorder and Dr McPherson recommended hospitalisation, but the offender refused. Instead, medication to treat bipolar affective disorder was prescribed.

132. The offender continued taking medication for his bipolar affective disorder throughout 2016 and 2017. In February 2017 Dr Sue Morgans assessed the offender and indicated that his mood remained stable. In April 2017, the offender’s gallbladder was removed.

133. In 2020, the offender was assessed by numerous health professionals who noted a host of issues the offender was experiencing, including: variable appetite, insomnia, auditory hallucinations, reduced memory and concentration, stress, anxiety, ‘pseudohallucinations’, and ‘residual PTSD’ or post-traumatic stress disorder.

134. The offender has been psychiatrically assessed since entering custody and has been prescribed with medications to assist with his depression and anxiety.

135. Dr Furst observed no indication of severe depression or psychosis during his assessment on 28 October 2020. However, the offender was depressed and anxious, particularly about his circumstances and the welfare of his son.

136. Dr Furst diagnosed the offender as having Bipolar Affective Disorder, type II; PTSD; and Substance Use Disorder, before and at the time of his offending. He reported having had significant debts, apparently owing a co-offender $600,000 and was noted to have asked for another loan from another co-offender of $70,000 in 2013 or 2014, [likely Person A]. Dr Furst opined that it was reasonable to assume the offender was suffering financial hardship at this time.

137. Whilst the impacts of the disorders from which he suffered contributed in a general way to the offender’s financial hardship at the time of the commission of these offences, Dr Furst did not suggest that the offender’s mental condition had any causal or contributory role in his participation in these crimes. His medical and psychiatric state is relevant as part of the offender’s overall circumstances, without attracting the ameliorating effect referred to at [177] of Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1. The exception is hardship in custody: I accept that the offender is likely to find incarceration more onerous than would a prisoner without depression, anxiety, and a bi-polar disorder.

138. I accept that the distance from his children and his inability to see them personally will also have an impact on the offender’s depression and anxiety, and make his incarceration more difficult to bear.

139. Dr Furst recommends the offender continues to receive psychiatric care into the future. He opined that the presence of bipolar disorder, coupled with incarceration, places the offender at a much higher risk of suicide than the average person in the community.

140. Much of the balance of the offender’s case consisted of testimonials from family members.

141. The offender’s youngest brother, Antonio D’Agostino, regards the offender as a caring and loving person, and notes that he has a considerable amount of support from family and friends. Mr D’Agostino referred to the offender’s troubles at school, issues with mental health and how, as the oldest male child, he assisted his parents and siblings with family matters, particularly as his parents had limited English language skills. The offender’s parents have been greatly affected by the offender’s arrest.

142. Mr D’Agostino reports that the offender is a very loving father who regards his children as “the most important thing that ever happened to him”. He is concerned for the children, particularly his son, who has been hospitalised twice due to alcohol related issues, Mr D’Agostino believes due to “the demons [the offender’s son] faces growing up and living without a father”.

143. It is Antonio D’Agostino’s opinion that the offender’s crimes occurred against a background of financial problems faced by Frank D’Agostino, which put extra pressure on the offender. He believes that the offender is now remorseful and accepts that his actions were wrong.

144. The offender’s 28-year-old niece, Kaila D’Agostino, is the daughter of Frank D’Agostino. She reports a close relationship with the offender, who is her godfather. She described him as gentle, loving and kind, and a loving father who worries deeply about his children, whose circumstances are reported to be of concern.

145. Ms D’Agostino gives her opinion of the offender’s cognitive decline, although I note that she does not appear to have any qualifications in medicine or psychology, and her statements in this regard are contradicted to some extent by Ex. S2. Ms D’Agostino says that her uncle is anxious about COVID-19 due to his asthma. The offender has found it very difficult not having visitors during this time.

146. Ms D’Agostino reports that the offender has expressed remorse to her about his crime and failure to appear. He is upset, having seen the impacts of drugs on people in prison, that he has contributed to this. He also feels guilty over the impact of his incarceration on his family. She reports that the offender wishes to be in England, living near his children, contributing positively to the community and being a good role model to his children.

147. The offender’s father, Vincenzo D’Agostino, speaks highly of the offender, stating that he is a “generous… soft hearted” and a “good man” who has made mistakes but wants to make up for them. Mr D’Agostino provided an account of the offender’s early employment, and the changes he observed in his son after the trauma the offender witnessed when working as a firefighter. Mr D’Agostino reports that his son loves his children very much and was always there for them. The offender calls his parents daily, becoming distressed when discussing his children.

148. Mr D’Agostino believes that the offender’s mental state was poor prior to arrest, declining further following his incarceration.

149. The offender has apologised to his family many times for the stress and sadness his arrest has caused. Mr D’Agostino reports that his son knows he has done the wrong thing and is sorry for how his actions have impacted upon his children and others.

150. Ms Karen Singleton is the maternal grandmother of the offender’s children. She reports that her daughter works tirelessly, sometimes three jobs at a time, to provide for her children as there is no other financial support. She notes that the offender deteriorated from being a wonderful father and a positive man to a heavy drinker and an excessive gambler. Ms Singleton says that she hopes the offender can recover which will have a positive impact on his children who have been “full of worry for their father for the past 9 years”.

119. Whilst the offender’s family members have expressed some concern about the possibility of the offender being exposed to the COVID-19 virus in custody, the risk of contracting the disease appears to be very low. To date, there has been no instance of a prisoner contracting the virus in custody, and it seems that the measures taken by the authorities have been completely successful in protecting the prison population. Further, with a vaccine now progressively available, and incidences of infection in the community presently at zero, the prospects for the future seem reasonably positive.

120. Exhibit S2, entries from the Offender Information Management System maintained by Corrective Services NSW (“CSNSW”), provides some independent evidence of the offender’s present circumstances. Notes from April to August 2020 record that the offender is a well behaved and polite inmate who is regarded as a reliable worker. He has worked in the kitchen at Macquarie Correctional Centre and was well thought of in that capacity.

121. The offender has expressed considerable concern to CSNSW staff for his children in the UK and sends money from his earnings to them regularly. He has been advised to request Family Video facilities to speak with them.

122. As to his health the notes record the offender to appear “fit” and “healthy”, with no evidence of memory deficits. This is somewhat in contrast to the picture painted by the offender’s family. I regard the notes as likely to be more reliable overall.

Remorse and Rehabilitation

155. The plea entered to count 1 says little about remorse in my conclusion. As the evidence led at trial demonstrated, the Crown was readily able to establish both its case against the offender, and the part he played in the conspiracy; the offender’s plea acknowledges that. In the absence of sworn evidence or some better indicator of remorse, it is difficult to conclude with confidence that the offender is remorseful, other than for his arrest and impending imprisonment. His letter to the Court asserts remorse and an understanding of the damage done by drugs in the community, although those untested assertions are to be approached with some caution: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369; Imbornone v R [2017] NSWCCA 144. That is particularly so since the offender’s criminal record establishes that his lifestyle has, over some years and at least to some extent, been supported by drug offending.

156. I am prepared to accept however, that the plea to count 1 is some indication of contrition, and that, having seen drug addicted persons in custody, the offender now has some understanding of the harm that would have been done had the objects of the conspiracies been successful. He has expressed his contrition to family members. That feature will be taken into account in imposing sentence.

157. The offender did not and has not acknowledged his role with respect to counts 2 and 3.

158. As to his prospects for the future, Dr Furst has opined that the offender poses a median risk of re-offending. His age should mitigate that further to a degree, as will his family support.

Parity

159. A number of other offenders have already been dealt with by the courts for their respective roles in these offences. Indeed, it appears that the offender, who repeatedly sought adjournments of these sentence proceedings to finalise evidence of his personal circumstances, is the last to be dealt with. Parity is a matter to which the Court must have regard, and the principle must be applied insofar as it is possible to do so.

160. This Court imposed sentence on four of the co-offenders, and remarks on sentence in relation to all co-conspirators have been provided, including for those offender’s most recently dealt with, Richard Lipton and the offender’s brother Frank. I have carefully examined or re-examined each of the relevant judgments.

161. One difficulty in giving full application to the parity principle is that the offender stands alone charged with the specific offences to which he pleaded, or was found, guilty. No other participant in the relevant conspiracies has been sentenced for precisely this combination of offences.

162. Person A was sentenced on 14 December 2018 in this Court for 3 counts of conspiracy to import a commercial quantity of a border controlled drug to an aggregate term of 22 years and 6 months imprisonment, with a non-parole period (“NPP”) of 14 years: R (Cth) v Person A [2018] NSWSC 1953. By those three counts, his role in five separate conspiracies was dealt with, including the Fiji, Eclipse, and Saxon Progress conspiracies, but also two further conspiracies to import cocaine aboard a vessel known as the Dalrymple.

163. Person A was found to have played “a high level, critical role, using his knowledge of fishing vessels, sailing, and departure from and entry to Australian ports, to facilitate the crimes”. He was regarded as “at the apex” with the D’Agostino brothers of the Fiji conspiracy and the Eclipse conspiracy, and as having a role of “very considerable significance” with respect to the Saxon Progress conspiracy.

164. His subjective case was a very strong one. He pleaded guilty at an early stage to all charges. He was a man with no criminal history prior to becoming involved in these matters and had worked productively all his life in the fishing industry, building a successful international business from nothing. [Redacted]

165. Person C was sentenced on the same day as Person A for his involvement in the Saxon Progress conspiracy, and the two later Dalrymple conspiracies, encompassed by two counts of conspiracy to import a commercial quantity of a border controlled drug; together with a State supply offence (to which a Form 1 document attached). He was imprisoned for an aggregate term of 16 years with a NPP of 9 years and 6 months for the Commonwealth offences. His overall term of imprisonment with the State offence was one of 17 years with a NPP of 11 years: R (Cth) v Person C [2018] NSWSC 1953.

166. Person C had also pleaded guilty at an early stage [Redacted] He was remorseful.

167. John Tobin was also sentenced on 14 December 2018, for two counts of conspiracy to import a commercial quantity of a border controlled drug relevant to his role in three conspiracies, the Saxon Progress conspiracy, and the two Dalrymple conspiracies: R (Cth) v Tobin [2018] NSWSC 1953. He had pleaded guilty prior to committal, receiving a reduction on sentence of 25% to reflect his early pleas. An aggregate term of 12 years imprisonment with a NPP of 8 years 6 months was imposed. Tobin was little more than a functionary involved in these offences at the offender’s request, and acting solely on his instructions. His criminality is not comparable to that of the offender.

168. Benjamin Sara was sentenced on 29 October 2019 by Hunt DCJ in the District Court with respect to one count of conspiracy to import a commercial quantity of a border controlled drug, reflecting his role in the Fiji conspiracy. The sentencing judge described Sara’s role as that of a “middle-man” and regarded his subjective case as a very powerful one. Although his plea was not entered at the earliest opportunity, he was given the benefit of a discount on sentence of 25%. A sentence of 7 years 6 months imprisonment with a NPP of 5 years was imposed. A Crown appeal against the asserted inadequacy of sentence was later dismissed: R v Sara [2020] NSWCCA 119.

169. Sara was lower in the hierarchy of the Fiji conspiracy than the offender.

170. Jose (or Pepe) Garcia was not dealt with for a conspiracy offence. Rather, he was sentenced for a number of unrelated offences, asking the sentencing judge to take into account on a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth) an offence of associating with others (the offender and Person A) knowing they were engaged in a conspiracy to import a commercial quantity of a border controlled drug. Judge Arnott SC in the District Court imposed an overall sentence of 16 years and 6 months imprisonment, with an overall NPP of 11 years. The connection between Garcia’s sentence and the offender’s situation is so tenuous as to have almost no relevance in terms of parity. He was not sentenced for any offence connected with these events, in that the relevant offence – being one of a different nature to the charges against the offender – was taken into account against another crime.

171. Jonathon Cooper was sentenced on 8 May 2020 for two counts of conspiracy to import a commercial quantity of a border controlled drug, one of which related to the Saxon Progress conspiracy, with the other connected to the second voyage of the Dalrymple, having been found guilty at trial: R (Cth) v Cooper [2020] NSWSC 515. He received an aggregate sentence of 28 years with a NPP of 18 years imprisonment. A Notice of Intention to Seek Leave to Appeal against that sentence to the Court of Criminal Appeal is current.

172. Cooper was found to have been the sole Australian representative of the international supplier of the cocaine that the Saxon Progress was due to collect, acting as an intermediary between that person or persons and the local conspirators, through Person C. He was trusted by the international supplier with information and money. He had no relevant criminal record.

173. Stuart Ayrton was sentenced by Norrish QC DCJ in the District Court on 6 March 2020 for one count of conspiracy to import a commercial quantity of a border controlled drug to a term of 9 years 7 months imprisonment, with a NPP of 5 years 9 months.

174. James Collins was dealt with on 22 February 2019 by Maiden SC DCJ in the District Court for one count of aiding and abetting an attempt to import a commercial quantity of a border controlled drug, relevant to the Saxon Progress conspiracy. A term of 6 years imprisonment with a NPP of 3 years was imposed. He had pleaded guilty, and his Honour concluded that, because of the throat cancer from which Mr Collins suffered, his time in custody would be more onerous than it would otherwise have been. His role in the Saxon Progress conspiracy was limited. It amounted to the facilitation of the charter of the vessel, equipping it for what was ostensibly a “research” voyage, and dealing with the Fishing Authority, knowing the true purpose of the voyage. He was a man of former good character, who accepted Person A’s approach from greed.

175. Richard Lipton and Frank D’Agostino were sentence by Hunt DCJ on 29 January 2021, after the evidence and submissions in these proceedings had been taken and the matter adjourned for sentence. At the offender’s request, leave was granted to provide the remarks on sentence from the District Court sentence proceedings, with sentencing of the offender postponed for that reason.

176. Richard Lipton pleaded guilty after arraignment to a single count of conspiracy to import a commercial quantity of a border controlled drug which encompassed his role in the Saxon Progress conspiracy, and in the Second Dalrymple conspiracy. He was sentenced to a term of 11 years imprisonment with a NPP of 7 years and 3 months. That sentence reflected a discount of 15% to recognise the plea of guilty. The sentencing judge concluded that Lipton was a trusted facilitator without any authority to make executive decisions.

177. Frank D’Agostino was also sentenced with respect to one count of conspiracy to import a commercial quantity of a border controlled drug that comprehended his role in both the Fiji and Saxon Progress conspiracies. A further such offence was taken into account on a s 16BA schedule, that count reflecting Frank D’Agostino’s role in the Eclipse conspiracy. With a discount on sentence of 12.5% allowed in recognition of the late plea (2 weeks before trial), the sentence imposed was one of 10 years and 6 months imprisonment with a NPP of 6 years and 3 months. The sentencing judge found that Frank D’Agostino was his brother’s trusted lieutenant, but had no executive role. Frank D’Agostino could call upon his good character, and evidence of a gambling addiction that had led to significant financial difficulties, prompting his involvement in these crimes, with the expectation of financial reward.

178. Of all of those dealt with for these conspiracies, Person A is the closest to the offender in terms of the seniority of his role, albeit one that was lesser than that of the offender with respect to counts 1 and 2, and despite Person A’s greater participation in overt acts in furtherance of each of the conspiracies. With respect to count 3, whilst the offender’s role was significant, it was less so than for the earlier offences. He was not himself in contact with international suppliers, being more of a facilitator for the offence, by connecting those with the means to bring the planned importation into effect, including those with the means to reach international suppliers. Even against Person A, however, there can be no direct comparison, because of the differences in the particulars of the charges presented against each.

179. The offender’s importance to the planned Saxon Progress conspiracy was greater than that of his brother who, I am satisfied, acted as the offender’s agent or, as Judge Hunt described it, his trusted lieutenant.

180. The parity principle informs these proceedings, without any sentence imposed upon any co-offender dictating that to be imposed upon the offender, or even providing a direct comparison. The offender stands to be sentenced as a principal player, at the very top of the hierarchy in terms of his role in counts 1 and 2 and, with respect to count 3, as an important facilitator whose role in connecting relevant persons to each other was critical to the conspiracy getting underway at all.

Deterrence

181. The principle of general deterrence has a very significant role to play in determining the sentence that is to be imposed upon the offender, to send a message which is both clear and strong that those who endeavour to breach the nation’s borders by importing controlled substances, to the peril of the community, will be harshly dealt with.

182. As earlier noted, specific deterrence is important, having regard to the offender’s drug offending history. Its application is, however, muted to a degree, having regard to the offender’s age, and likely age when released from custody.

Totality

183. I have referred already to the principle of totality, which operates with respect to both the individual offences, and the existing sentence the offender is serving.

184. An aggregate sentence determined on the basis that some relatively significant level of concurrence is appropriate between the three offences for sentence is an appropriate way to comprehend and apply the principle. There is some commonality between the three offences, with systems developed for the Fiji conspiracy employed to some extent in the subsequent conspiracies, and a degree of concurrence of the notional sentences will take that into account.

185. There is no commonality at all between the State drug offences and the present crimes, other than that the offender likely drew on knowledge gained by his involvement in the earlier drug offending in developing the plans for the respective importations. The fact that the offender was on conditional liberty or at large with respect to those matters at the time of the present offending also points to a need for some accumulation of penalty.

186. Ultimately however, the principle of totality will operate in the offender’s favour, requiring a considerable level of concurrence. The offender was remanded in custody for these matters on 20 June 2019. His sentence for the State matters commenced on 29 July 2016, which allowed for some periods on remand prior to the offender’s failure to appear. An appropriate date from which to commence the sentence to be imposed upon the offender today, allowing for some proper concurrence of sentences, is 8 September 2018, two years after the offender’s arrest for the State matters.

Sentence

187. An aggregate sentence will be imposed upon the offender. I have taken into account all of the facts and circumstances that I have outlined, including the offender’s age, and had regard to the schedule of authorities provided by the Crown.

188. The maximum penalty provided for these crimes is life imprisonment, and I have had regard to that as an important statutory guidepost. The offender is to be sentenced as an initiator and principal with respect to counts 1 and 2, and an initiator and important facilitator with respect to count 3. His offending is very serious, and only a custodial sentence can be imposed. Section 16A(1) of the Crimes Act requires that the sentence imposed is one that “is of a severity appropriate in all the circumstances of the offence”, having regard to the applicable matters in s 16A(2).

189. Had individual sentences been imposed for these offences, they would have been as follows:

1. Count 1 (the Fiji conspiracy): 20 years and 10 months

2. Count 2: (the Eclipse conspiracy): 25 years

3. Count 3: (the Saxon Progress conspiracy): 18 years

orders

190. The following orders are made:

1. Joseph D’Agostino is convicted of counts 1, 2, and 3 of the indictment presented against him at trial.

2. He is sentenced to imprisonment for 30 years to date from 8 September 2018, expiring on 7 September 2048. The non-parole period is one of 20 years imprisonment, expiring on 7 September 2038.

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Decision last updated: 14 December 2021