R (Cth) v Mohr

[2020] NSWSC 871

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R (Cth) v Mohr [2020] NSWSC 871

Hearing dates:

01 July 2020

Date of orders:

03 July 2020

Decision date:

03 July 2020

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

For the offence of conspiring to import a commercial quantity of a border controlled drug the offender is sentenced to a term of 32 years imprisonment, to date from 22 January 2019, expiring on 21 January 2051, with a non-parole period of 18 years, expiring on 21 January 2037.

Catchwords:

CRIME – SENTENCE AFTER TRIAL – conspiracy to import a commercial quantity of a border controlled drug – verdicts of guilty to one count at trial – highest order of offending – agreement to import substantial quantities of cocaine – sophisticated plan for importations by sea – offender Australian representative for international source of drugs – parity with other conspirators – role of general deterrence

Legislation Cited:

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

Crimes Act 1914 (Cth)

Criminal Code (Cth)

Cases Cited:

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

De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 197 FLR 125

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

Melgar Sevilla v The Queen [2007] WASCA 116

R v Li & Ors [2005] NSWCCA 154

R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152

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

R v Burrell [2000] NSWCCA 262; (2000) 114 A Crim R 207

R v Elfar & Golding [2017] QCA 170

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

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

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

R v Smith (1987) 44 SASR 587

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

R v Tait (1979) 46 FLR 386

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

Teng & Ors v The Queen [2009] VSCA 148

Thompson v R [2007] NSWCCA 83

Tyler v R; R v Chalmers [2007] NSWCCA 247; (2007)

173 A Crim R 458

Velez v R (Cth) [2015] NSWCCA 177

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

Category:

Principal judgment

Parties:

Regina (Crown)
Darren Mohr (Accused)

Representation:

Counsel:

M England/C McGorey (Crown)
G Brady SC (Accused)

Solicitors:

Solicitor for Public Prosecutions (Cth) (Crown)
McGirr Lawyers (Accused)

File Number(s):

2017/376756

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 6 March 2020, after a month long trial before this Court, Darren Mohr was found guilty by a jury of a single count of conspiring to import a commercial quantity of a border controlled drug, an offence contrary to s 307.1(1) and s 11.5(1) of the Criminal Code (Cth), which carries a maximum sentence of life imprisonment, or a fine, or both. He was convicted.

2. The offender appears today for sentence for his crime.

The Facts of the Crime

3. It is necessary to determine the facts of the offence, consistent with the verdict of the jury.

4. There is a significant contest between the Crown and the offender as to the facts that should be found by the Court. It is worth making some preliminary observations relevant to the resolution of that contest.

5. No more can be taken with certainty from the jury’s verdict than that its members accepted beyond reasonable doubt that the offender had agreed with one or more of the individuals named on the indictment as co-conspirators to import a commercial quantity of cocaine, that he intended to effect that agreement, and that some overt act was taken in furtherance of it.

6. Necessarily, the jury must have accepted the evidence of [REDACTED], and rejected the account of events given by the offender as one which was not reasonably possible.

7. Beyond those bare propositions, the facts established by the evidence are for the Court to determine, bearing in mind that conclusions adverse to the offender must be established on the evidence to the criminal standard, whilst matters favourable to him are to be established on the balance of probabilities.

8. [REDACTED]

9. [REDACTED]

10. [REDACTED]

11. In the period from about 1 May 2016 to about 5 November 2016 the offender was one of a number of persons who conspired to import a significant amount of cocaine into Australia by sea, being a quantity of 500 kilograms of the drug.

12. In the first half of May 2016 Joseph D’Agostino raised with Person A the prospect of him travelling to Thailand with Frank D’Agostino to meet with an individual named only as “Gutterball” to discuss an importation of drugs by sea. Person A was unwilling to go to Thailand. Subsequently, Joseph D’Agostino asked Person A to meet a friend of his, who was described as someone who “used to own a coffee shop in Bondi” (Tcpt, 10 February 2020, p 114(05)). A meeting was arranged, and Person A was taken by Frank D’Agostino to Steyne Park in Double Bay on 2 May 2016, where he met with the offender.

13. [REDACTED]

14. The offender asked Person A if he would be interested in doing “some work for them” (Tcpt, 10 February 2020, p 117(01). [REDACTED]. Person A responded that he would have to discuss it with Joseph D’Agostino, and the offender left the meeting, having told Person A that Person A would be contacted by his friend. The offender was, at that time, using a BlackBerry device and his user name was “White Stripe”, the name being an apparent reference to an area of whitening in his hair.

15. A couple of days after the meeting, Person A was contacted by Gutterball about the proposition. That communication, and all subsequent communication between the two men, was made using a BlackBerry device, via a “group chat” which included the offender. Gutterball made it clear in these early exchanges that he did not want Joseph D’Agostino involved in the arrangement.

16. On 18 May 2016, the offender travelled to Thailand. Although the evidence does not establish the precise purpose of the trip to Thailand, I am satisfied that it was, at least in part, connected with his dealings with Gutterball who [REDACTED] lived in that country at the time. Krissy Marsh gave evidence at trial that she travelled to Thailand with the offender in the early part of 2016; if she did accompany him on this journey, that does not preclude a conclusion that the offender transacted some business relevant to his discussions with Gutterball and Person A, even if in the broader context of a vacation.

17. Later in May, the offender provided Person A with possible locations for a transfer of drugs at sea. Initially, these proposed locations were on the west coast of Australia, but that later became the east coast.

18. The offender returned from Thailand on 14 June 2016.

19. On 8 July 2016, Person A went to a hotel in Sydney expecting to meet [REDACTED] Frank D’Agostino. Instead, John Tobin, friend and representative of Joseph D’Agostino, was there. The two men then went to a nearby café to meet with the offender. When the offender arrived, he told Tobin in “a reasonably firm way” that he wanted to speak alone with Person A, and told Tobin to leave.

20. The offender told Person A that he was not prepared to deal with Joseph D’Agostino or anyone representing him, as D’Agostino was not trustworthy. He also asked Person A to work exclusively for “them”, being him and Gutterball, and said that they would pay D’Agostino and arrange a passport for him so that he could leave the country.

21. He said that “they” had been disappointed that Person A had not gone to Thailand, and asked if Person A would accompany him there. Person A refused. The men discussed co-ordinates for the transfer of drugs, with the offender telling Person A that the boat carrying the drugs was coming from South America to Fiji, and asking him to provide co-ordinates around that area with which he was comfortable.

22. The offender told Person A that either he or “one of their guys” (Tcpt, 11 February 2020, p 172(36)) would be on the Australian boat when it sailed to meet the South American vessel. The offender told Person A that the drugs were pre-sold and there would be no problem with payment. Despite that Person A said that, if he couldn’t be paid “upfront”, he would “hold the amount of product equal to [his group’s] share” until he was paid. The offender said that he “didn’t have a problem with that as long as [Person A] didn’t sell the product” (Tcpt, 11 February 2020, p 173(31)), as he and Gutterball did not want the market flooded. That agreement was made without reference to Gutterball.

23. Sometime after that meeting, when Person A was experiencing problems with his BlackBerry device, Gutterball said that, if there were problems with communication, he would have the offender get in touch with him. Person A, Gutterball, and the offender continued to exchange BlackBerry messages concerning possible co-ordinates for a transfer of drugs at sea.

24. On 23 August 2016, the offender made a reservation to fly to Santiago in Chile, travelling business class. He left the following day. At about that time Person A told Person C, in a conversation which was recorded, that Gutterball had told him that he was sending someone to Chile to organise the logistics, as the boat would be leaving soon. I am satisfied that the offender was the person sent by Gutterball to Chile, to oversight and advance the shipment of cocaine from there.

25. Gutterball informed Person A that the boat, a cargo ship, would leave for Fiji in September to do a legitimate delivery of scrap metal. As the vessel was tracked, on reaching the meeting point it would slow down but not stop, and drop a smaller boat over the side. That boat would transport the drugs to the waiting Australian boat, before returning to the container ship.

26. On the evening of 31 August 2016 the offender returned from Santiago, flying into Sydney. Although he was by then living in Queensland, he remained in Sydney, and met with Person A the following day in Steyne Park. That meeting was the subject of surveillance, and a video recording (without sound) was part of the evidence at trial.

27. [REDACTED] the offender told him that he had just returned from a trip to Chile, and had met “drug operators” and spent a couple of days in the jungle with them. He referred to them as “good operators and very serious people” (Tcpt, 12 February 2020, p 223(25)) who were so well connected with local authorities that the vessel carrying the drugs would have a Naval escort when it left port. The vessel was said to be smaller than a cargo ship, being a coastal trader.

28. The offender told Person A that he had spoken to the captain of the vessel, and been shown where the drugs would be stored, welded into a space under the floor of the wheelhouse. The area would be disguised by being painted with a special paint that, once dried, looked old. The cargo was to be wrapped in blocks of one kilogram, and baled in bales of 40 kilograms in weight. In the surveillance footage, the offender is recorded gesticulating with his hands and arms as if indicating a square or cube-like shape, and I am satisfied that the gestures were intended to aid in the description of the packaging of the drugs. Person A can be shown gesturing as [REDACTED] he described the operation of a Hi-Ab crane, which would lift the bales from the smaller boat onto the Australian boat.

29. The offender gave Person A details for direct communication with the Chilean vessel – UHF channel 7. He also advised him that he and Gutterball did not need a representative on the Australian boat.

30. [REDACTED] at around that time, the offender told him, at a meeting or via BlackBerry, that, once on shore, “two men in hi vis vests would be picking the drugs up” (Tcpt, 12 February 2020, p 226(24)).

31. After the meeting, Person A continued to communicate with Gutterball about arrangements for the importation.

32. On 7 September 2016, the offender, who had left Sydney for Queensland the day after he met Person A, returned. On 10 September 2016, he again met with Person A at Steyne Park, with the two men speaking together for a little less than half an hour. That same day, the offender again flew to Thailand.

33. Although there is evidence from both Krissy Marsh and Nathan Page of travelling with the offender to Thailand at about this time, I am satisfied, having regard to the events concerning the importation that were occurring at this time, that the offender transacted some business in furtherance of the conspiracy when in Thailand. What that business may have been cannot be known on the credible evidence. I do not accept the offender’s account of the trip, although I accept that part of it was for purposes other than to facilitate the importation of cocaine.

34. With Joseph D’Agostino having been arrested by police executing a bench warrant upon him, Person A became concerned that his BlackBerry may have been compromised in some way. Gutterball arranged for a new device to be provided to him, with an unknown individual delivering it to him in the car park of a fast food restaurant on 19 September 2016. The device had already programmed into it the contact details for the offender, whose user name was changed to “Bobby Dazzler” – a reference to the café he had owned; and those for Gutterball, whose user name became “Sin Risto”. Messages relevant to the planned importation were ordinarily sent as part of a “group chat”, of which the offender was a member, if not always an active participant.

35. On 2 October 2016, the offender returned to Sydney from Thailand.

36. On 5 October 2016, the vessel bringing the cocaine towards Australia departed from port in Chile. The captain of the vessel, known as “Santiago”, was by that time in direct, if largely unsuccessful, contact with Person A. Its departure date meant that it would arrive at the agreed meeting point earlier than Person A had previously been advised by Gutterball, and he became concerned about not being able to meet the new timetable. He undertook a number of steps to ready the ship, the Dalrymple, and its crew for the voyage.

37. After six days in Sydney, the offender flew home to Queensland on 8 October 2016.

38. In the early days of October, Person A became very anxious that he would not have the Dalrymple at the meeting point in time. In what became a heated BlackBerry group chat exchange with Gutterball, he told him that he had insufficient time to ready the ship and get to the rendezvous point, and asked for $50,000 to help with the preparation of the Dalrymple. Gutterball questioned Person A for asking for money, and gave an instruction to the offender to “go down and have a look at the boat and report back” (Tcpt, 13 February 2020, p 311(22)). Gutterball told Person A that “if everything is on track I might be a bit more generous” (Tcpt, 13 February 2020, p 311(35)).

39. In this context, the offender initiated a private BlackBerry chat with Person A, separate to the group chat involving him, Person A, and Gutterball, in which he endeavoured to mediate, telling Person A that Gutterball was under a great deal of stress, and had spent four million dollars on the venture.

40. Later, Gutterball apologised, telling Person A that the offender would bring the money to him when he “comes down”.

41. On 13 October 2016, the offender flew to Sydney from Queensland and, although on his evidence to the jury, he claimed that the journey was undertaken to attend a wedding, I am satisfied that a principal reason for travelling to Sydney was to see the Dalrymple, now in port at the Sydney Fish Markets, and deliver the money to Person A that he had asked Gutterball to provide, on Gutterball’s behalf.

42. On arriving in Sydney the offender hired an Audi and drove directly to the Sydney Fish Markets, where he went to the wharf at which the Dalrymple was moored, and spoke with Person A. The offender was at the Fish Markets with Person A for about 45 minutes. His mobile telephone appears to have been “absent subscriber”, and likely switched off during that time to avoid detection.

43. Having arranged with Person A to meet him later in the day at Steyne Park, the offender went to the park at about 3.30pm, handing over a plastic bag containing a large sum of cash. From it, Person A was able to pay $13,000 for fuel for the Dalrymple, in cash, when he returned to the harbour.

44. Person A and the crew attended to readying the Dalrymple for what remained of the afternoon, but the skipper was not prepared to sail that night. Person A left the wharf after 9pm, but received a message from the offender soon after asking him to return.

45. The offender had driven to the wharf at about 9.30pm and boarded the Dalrymple. He raised John Tobin from the wheelhouse and the men spoke. Surveillance footage of the offender aboard shows him with his mobile telephone in his hand, before disembarking and returning to his rental car.

46. The offender and Person A met at the wharf soon after. [REDACTED]. The offender told Person A that he had been on board the Dalrymple and asked Person A what John Tobin and “a girl” were doing there. Person A lied, and said that neither would be on board for the voyage. [REDACTED]

47. The offender said that he expected the boat to leave as soon as possible. He asked who was “looking after” the crew (Tcpt, 14 February 2020, p 338(35)). Person A responded that Person D had that responsibility, and went aboard to fetch him. Person A took Person D out to the offender, who was standing near his car.

48. The offender asked Person D how he was going to control the crew. He said that the people he worked for were serious people and didn’t want to be mucked around. Although Person D said he could handle himself, the offender asked him if he was carrying a gun, or if he was “packing”. Person D said he was not. [REDACTED].

49. I do not accept the evidence the offender gave before the jury about this meeting [REDACTED]. [REDACTED]. I also accept that the offender told Person D that the people he worked for were highly organised, and serious.

50. After the offender left the wharf, Person A had the Dalrymple moved because he understood that the offender had wanted the boat to leave immediately, and thought that this subterfuge might prevent the offender from seeing it still moored in Sydney contrary to his direction, were he to return to the wharf.

51. The Dalymple in fact departed Sydney the following morning, 14 October 2016. The offender returned to Queensland on 15 October 2016.

52. Once at sea those of the crew who had been unaware of the real purpose of the voyage of the Dalrymple were told of it. The captain and two other crew were not prepared to continue, and the captain made to return to Sydney. Eventually, a compromise was reached such that the unwilling crew were put off at Norfolk Island, and the Dalrymple continued on to meet the Chilean vessel, with reduced crew.

53. In the period when it appeared that the voyage would be abandoned because of the problem with crew, Person A sought to disguise the delay by advising Gutterball and the offender in a BlackBerry group chat that the vessel was having problems with its fuel system, and had stopped. He said that the boat could not continue and would have to return to Sydney.

54. Another individual, going by the user name “Magico” and described by the offender as Gutterball’s partner and “enforcer”, entered the BlackBerry group chat at about this time, telling Person A that “showing up was not an option” (Tcpt, 14 February 2020, p 360(40)). [REDACTED].

55. The offender sought to assist Person A by making suggestions for the repair of the fuel systems, drawing upon his expertise with heavy vehicle mechanics. The problem was resolved when the unwilling crew were put off the Dalrymple on 18 October 2016. The Dalrymple continued on.

3. On 21 October 2016, the offender returned by air to Sydney. He met Person A that same day in Double Bay. They discussed the recent problems with the Dalrymple. When Person A asked about the procedure once the drugs were in local waters, the offender told him to wait to make those plans until the Dalrymple was on the return voyage. Person A later told Person C that he had given the offender a range of locations to choose from at which the drugs could be landed on shore.

4. On 23 October 2016, the offender returned to Queensland.

5. The Dalrymple reached the rendezvous point on 24 October 2016, and waited for the Chilean ship, but it did not appear. Neither radio nor satellite telephone contact could be made with it from the Dalrymple. Person A was in communication with Gutterball, but he could do no more than ask Person A to have the crew continue to try to contact the Chilean ship.

6. On 29 October 2016, Person A told the Dalrymple to return to Sydney. It arrived in Sydney on 5 November 2016, the crew empty-handed.

7. Subsequently, Person A exchanged group chat messages with Gutterball setting out his expenses, which amounted to over $400,000. He wanted to be compensated for his losses. The offender sent Person A private messages reassuring him that he “was dealing with the real deal”, and “would be looked after” by “his partner”, who was “very generous” (Tcpt, 18 February 2020, p 428). He later suggested that Person A put things aside for a short time, as Gutterball was “pretty stressed”.

8. On 17 November 2016 the offender, who had flown to Sydney from Queensland a fortnight previously, met Person C at Double Bay and handed him a shopping bag containing $40,000 in cash, to be passed on to Person A as partial compensation for his losses.

The Objective Gravity of the Crime

62. In sentencing the offender it is necessary, both at common law and in compliance with s 16A(1) of the Crimes Act 1914 (Cth), to make an assessment of the objective gravity of the offence. That involves having regard to the criminality of the conspiratorial agreement and the offender’s involvement and role in it: R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [72]; Tyler v R; R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458 at [78]–[85].

63. The conspiracy in which the offender was a participant represents criminality of a very high order. The plan to import cocaine into Australia was highly sophisticated, and had as its object the importation of 500 kilograms of cocaine – hundreds of times more than the commercial quantity of 2 kilograms specified for that drug – and which was valued at between about 106 and 150 million dollars.

64. Whilst the quantity of the drug involved is but one feature relevant to an assessment of the gravity of the crime, the amount intended to be imported is not without significance. It is an indicator of the assets available to the international syndicate (for whom, I am satisfied, the offender was the Australian representative), of the scale and scope of the conspiracy, and of its highly developed nature. The amount of cocaine from which the Australian conspirators sought to profit is one feature which points to a very serious crime. There are others.

65. The conspiracy involved a diverse group of conspirators with specific roles to play: financing the drugs to be imported, oversight of the international operation; 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; securing and modifying a vessel capable of undertaking the voyage; equipping the vessel; management of the pick-up vessel and crew; skippering or crewing the Dalrymple; arranging for communication; and planning for the transfer of the drugs at sea. Had the cargo been brought to Australian shores, oversight and conduct of the delivery of the drugs on-shore would have been necessary; together with distribution of the product; and payment of the conspirators from the profits derived from distribution.

66. The planning and preparation was extensive and thorough: it involved many individuals over an extended period of time, from May to November 2016. A great deal of work was done by the conspirators and many specific and often complicated acts were carried out by a number of individuals over that period. A significant amount of money was paid out towards the achievement of the object of the conspiracy, with Person A’s costs alone in the hundreds of thousands of dollars, and Gutterball’s investment in the millions of dollars.

67. This was highly organised criminal activity, involving numerous individuals, bringing together different skills and resources, in three countries, with the object of achieving a very grave crime, for the profit of the conspirators, and to the detriment of the community.

68. The conspiracy did not fail to achieve its end through any want of planning or action by the conspirators.

69. Within the group working to achieve the object of the conspiracy, I am satisfied that the offender had a very significant, and very important role, as the representative of Gutterball in Australia, trusted with the co-ordination and oversight of both the local and international operations, and with knowledge of all of the most senior members of the conspiracy, and the overall plan to bring about its object. Gutterball was at the apex of the conspiracy, with the offender as his trusted lieutenant. Of those conspirators about whom something is known, and excluding the enforcer “Magico” because of an absence of information about him, I have concluded beyond reasonable doubt that the offender was second in the structure of power and authority to Gutterball, and the most senior of the Australian conspirators.

70. It is true, as the offender argues, that Person A was very heavily involved in the implementation of the conspiracy, and took or directed almost all of the practical steps necessary to collect the drugs at sea and bring them to Australia. That does not, however, mandate a conclusion that Person A was senior to the offender. On the contrary, on the credible evidence, the offender was not only involved at an international level to bring about the importation, where Person A was not, he had the authority to direct Person A and the Australian operation, and considerable autonomy in performing that role.

71. It was the offender, as Gutterball’s representative who met with Person A in early May to determine his suitability for the importation, and offer him a role in bringing the drugs to Australia from a location at sea. Having met Person A on 2 May 2016 at Steyne Park, the offender invited him to work with him and Gutterball. Since the offer to Person A was made at the meeting, it was made without any prior approval from Gutterball. The offender was sufficiently trusted, and sufficiently senior, to offer what was arguably the most important role after the offender’s in the Australian operation to Person A, without Gutterball’s sanction.

72. The offender continued to meet or exchange Blackberry messages with Person A and Gutterball as necessary to further the conspiracy.

73. Significantly, he had sufficient authority to approve the proposal made by Person A that he would hold a portion of the cocaine until such time as he was paid for his involvement. The offender gave approval for that without first consulting Gutterball. That he had sufficient level to approve an arrangement of that nature, affecting as it did the integrity of the cargo, and touching upon the mechanism for payment of conspirators, bespeaks a high level of authority.

74. Very significantly, the offender travelled to Chile in August 2016 to meet with those who were responsible for packaging and shipping the cocaine, to review arrangements being taken there. He met with the “drug operators”, saw how the cocaine was to be packaged, inspected the vessel being used to transport the cargo, and was shown the measures being taken to secrete it on board the Chilean ship. Since this journey was undertaken shortly before the vessel sailed for Fiji and its rendezvous en route with the Dalrymple, it is reasonable to infer that the offender made the final inspection for the importer, Gutterball, prior to the cargo being shipped.

75. On returning to Sydney the offender met with Person A the very next day to convey all of the necessary information to him derived from his Chilean journey to allow Person A to ready the Dalrymple and crew to collect the cocaine.

76. The offender also travelled to Thailand at least partly for the purposes of the conspiracy. It is reasonable to infer that the offender met or otherwise communicated with Gutterball concerning the proposed importation when in Thailand.

77. When conflict about the speed with which it was necessary to ready the Dalrymple to sail jeopardised the arrangements, it was the offender who played a role in calming the argument, urging Person A to understand the stress that Gutterball was subject to.

78. He travelled from Queensland to Sydney on 13 October 2016 to check on the progress in readying the Dalrymple for its voyage and, once that had been confirmed, paid Person A the $50,000 Person A had asked of Gutterball, to pay for fuel and other supplies.

79. On the evening of 13 October 2016 the offender returned to the Dalrymple, directing Person A to both sail immediately, and to do so without Tobin and the female crew member on board. He also spoke with Person D, to ascertain his capacity to manage the crew.

80. When he was later told the Dalrymple was experiencing mechanical problems, he offered information to assist in getting the vessel underway again.

81. After the failure of the venture, it was the offender who reassured Person A that he would be looked after, and conveyed $40,000 to Person C to be passed on to Person A.

82. The sole motivation for the offender’s participation in this conspiracy was the acquisition of a very substantial amount of money. Person A understood that the offender was to be paid in cocaine, at a weight of 25 kilograms, and with a value of at least five million dollars. Whether it was precisely that amount or not probably matters little; I am satisfied that the offender expected to receive an amount in the millions of dollars for his role in this crime.

83. This was offending of the highest order in which, of the known conspirators, the offender was second only to Gutterball. His participation was critical to the success of the venture.

The Evidence on Sentence

The Crown Case

84. Trial exhibits B, 7, and 8 were relied upon by the Crown.

85. The offender’s criminal record forms part of the Crown’s evidence, but it contains only two entries for minor offences of no present relevance. His custodial history establishes that the offender went into custody on 27 December 2012 and remained on remand until 12 December 2018. On that date he was admitted to bail. He was returned to custody on 6 March 2020, having been found guilty of the offence. He has thus spent one year, three months, and 12 days on remand with respect to this matter.

86. When on bail, the offender was subjected to conditions of bail that amounted to house arrest, between 22 December 2017 and 15 August 2019 (MFI S4), a period of a little less than one year and eight months. I accept that confinement at home subject to stringent bail conditions represents an infringement of the offender’s liberty, and it is a feature that will be taken into account on sentence, with some allowance in commencement date reflecting that aspect of the matter.

The Offender’s Case on Sentence

87. The offender did not give evidence on sentence. He relied upon information concerning his medical and psychological situation; testimonials from friends and family; material produced by Corrective Services NSW (“CSNSW”); and a letter to the Court which he wrote himself. The Crown did not object to any of this material, although strong issue was taken with the weight to be attributed to much of the documentary record.

88. The offender was aged 42 years at the time of these events. He is now aged 46 years old.

89. A volume of medical and clinical material was tendered, which establishes that the defendant has suffered with a significant condition from birth that has required a number of surgical procedures to be performed, for both clinical and cosmetic benefit. I accept that the condition is a devastating one, and one which would have had a profound psychological impact upon the defendant and his sense of self. Although some of the medical reports purport to offer opinions beyond the apparent expertise of the author, I accept on balance that the defendant’s medical situation would have compromised his sense of self, and made him subject to depression.

90. Ms Rima Nasr, a clinical and forensic psychologist, saw the offender on 27 May 2020 and prepared a report dated 28 May 2020, for the purpose of the sentence proceedings.

91. Because of the present public health restrictions on access to prisons and prisoners Ms Nasr interviewed the offender for two hours and 40 minutes through an audio-visual link. That mechanism did not permit the administration of psychometric testing.

92. Ms Nasr described the offender as “respectful, polite, cooperative and forthcoming with information”. She noted that:

“He appeared to endorse numerous psychological symptoms, with the potential for negative impression management for the purpose of seeking protection in custody. Otherwise, his account was consistent and there was no defensiveness or hostility observed. Mr Mohr did not demonstrate any signs of significant mood disturbance or clinical psychopathology during interview”.

93. Ms Nasr took a personal history from the offender. He reported to Ms Nasr that he was born in Sydney, describing a “mixed upbringing”. He believed his parents worked hard to provide “financial and accommodation stability” for him and his older sister. However, the offender considered that:

“he lived in an area where his peers were more financially privileged and he often aspired to having luxuries he was not afforded. Such perceived disadvantage played a role in his adulthood quest for financial and social status”.

94. Despite some perceived problems with his parents, the offender reported sharing a close bond with them and his older sister, and regards his family as his primary source of support. He reported no history of family mental health concerns, criminality, or illicit substance use.

95. The offender reported a “smooth” education, claiming to have performed at an average level academically at school, making friends easily. He denied any behavioural problems during his school years. The offender left school in year 10, and completed a four year apprenticeship in heavy vehicle mechanics, as well as obtaining truck repair qualifications. He worked in this industry for 11 years. He reported stable full-time employment over the course of his adulthood, although not always in heavy vehicle maintenance. He has worked in positions including as a security guard, mechanic, car salesman, and owner of a car yard. Recently, he owned a café in Sydney’s eastern suburbs, selling it in 2016 as a result of stress.

96. The offender claimed that his work commitments had impacted upon his “relationships and social functioning”, although Ms Nasr noted that “he lived an exorbitant lifestyle which also contributed to his personal stressors at that time”. The offender told Ms Nasr that he intends to work in the heavy vehicle industry in the future, and she thought that:

“his history indicates that he has the capacity to establish and maintain stable employment, a positive prognostic factor in terms of community reintegration”.

97. The offender told Ms Nasr that a lifelong medical issue had played a role in “his identity formation and sense of masculinity”. The offender described himself as “outwardly confident although internally quite insecure and lacking self-esteem”.

98. The offender has an extensive medical history, having undergone numerous surgical procedures to address his medical complication, causing him significant distress and trauma. Consequently, his:

“emotional wellbeing rapidly deteriorated, as too did his capacity to regulate his emotions or manage the damage to his self-esteem” and self image.

99. He reported suffering from nightmares and heightened anxiety, partly connected to the management of his health condition in a custodial environment. He suffers from back problems, and also reported being medicated with Endep, a tricyclic antidepressant, prescribed for sleep onset difficulties.

100. The offender has a problematic history of substance abuse of cocaine. He was first introduced to illicit substance use when he was 18 years of age, commencing in the context of socialising with peers and then as “part of an entrenched subculture of perceived wealth and status”. Ms Nasr noted that the offender’s adulthood has been coloured with periods of binging on cocaine and amphetamine. The offender reported abusing cocaine in order to improve his confidence, impress women, and disconnect from uncomfortable feelings.

101. He reported that most of his adult social interactions have been with antisocial peers. Ms Nasr noted that the offender has:

“a long history of involvement with antisocial peers, many of whom reinforced self-important attitudes, with a preoccupation with success, power, money and social admiration”.

102. Of the present offence, the offender reported that he had:

“spent time travelling to Thailand, working with encrypted phones when he came to meet individuals who introduced him to the illegitimate activities related to the offending”.

103. Ms Nasr reported that the offender endorsed “narcissistic traits that related to and were part of his motivations for offending.” She noted that he described:

“a desire for power, prestige and authority, which also aided in masking his internal experiences of inadequacy. He described being somewhat disconnected from considering the larger implications of his offending at the time, but rather took the opportunity to make money illegally irrespective of the implications”.

104. The offender acknowledged his behaviour was wrong, expressing regret and some insight into the consequences of illicit drugs in the community.

105. The offender reported a history of depression and anxiety associated with his medical experiences, insecurities and relationship difficulties. He described three major depressive episodes. Ms Nasr described his symptoms as relating to a Persistent Depressive Disorder [Dysthymia] with anxious distress and a Persistent Major Depressive Disorder. The offender endorsed feelings of “worthlessness, hopelessness, diminished confidence, self-worth and a fundamental insecurity” about some aspects of his life. Ms Nasr noted that:

“while at times he attempted to overcompensate such insecurities by utilising performance enhancing drugs and appearing ego driven, focusing on success, money, power and appearing important to others, internally Mr Mohr has struggled with a fragile sense of self”.

106. He described antisocial, manipulative and narcissistic personality traits, and “endorsed a pervasive pattern of disregard for and violation of the rights of others, engaging in deceit, impulsivity, reckless behaviour”.

107. The offender reported receiving psychiatric intervention at the age of 28 years, and was prescribed with Zoloft, an antidepressant, which he took for six months, although ceasing its use without supervision. He had some counselling in 2018, but not consistently.

108. In custody, the offender described a state of heightened anxiety, due in part to his medical issues and concern about management of them in a custodial environment. Ms Nasr noted that the offender is “plagued by hyper vigilance and general anxiety”. The offender reported working in custody and having some contact with inmates which has improved his circumstances somewhat.

106. She observed that the offender’s:

“desire for financial privilege, social status, acceptance and masking internal insecurities and physical inadequacies, further contribut[ed] to his motivations to acquire financial gain and status through illegitimate means such as the offending behaviour”.

110. Ms Nasr concluded that the offender is likely to be able to work towards “improved accountability and rehabilitation”.

111. Testimonials were provided to the Court on the offender’s behalf by his parents, and sister, and two close friends. All spoke highly of him.

112. Mr and Mrs Mohr provided a brief overview of their son’s background from childhood to adulthood, observing that he was raised to have strong values of friendship and caring for others. He worked hard to complete his apprenticeship in automotive engineering with Mercedes Benz and did so well that he was highly regarded as an employee and sought out in that capacity by employers. He was viewed as a person of “honesty, integrity and punctuality”, and became successful as a consequence. Mr and Mrs Mohr noted that the offender is a caring man who has supported friends and charities generously.

113. When living with his parents subject to bail, the offender repeatedly expressed “how stupid he was to become involved in criminal activity” and that he was remorseful for the impact of his actions on “his family, friends and society”.

114. Ms Hahn described the “very close bond” she shares with her brother; he has always supported her and put his family first. She regards his medical condition as something that has affected him profoundly, and with which “he has struggled” during his life. She thought that this “resulted in him experiencing periods of depression, low self-esteem and a lack of confidence throughout his adolescent and adult years”, which resulted in relationship breakdowns and “poor decision making and life choices”.

115. Ms Hahn notes how the offender “used things of materialistic value to promote status, to fit in, to be accepted and to appear normal” as a means to overcome his insecurities, and anxieties.

116. Ms Hahn states that, during her weekly Skype calls with the offender, he speaks of “the remorse he feels for the disappointment and shame” he has caused their family. She believes him to have taken “ownership of his actions” with positive plans for the future, in which he hopes to make amends for his conduct.

117. Both Ms Marsh and Mr Page regard the offender as a kind and caring man who is compassionate and generous and well thought of by others.

118. Ms Marsh speaks to the offender almost daily and says that he often reflects on the mistakes he has made and the sadness he feels in his current position. He realises the impact of his actions on others. Ms Marsh believes that once released, the offender will work “to make something of himself once more”, as “he has always had a strong work ethic”.

119. Mr Page recalled how, when his wife died and he “gave up on life”, the offender moved from New South Wales to Queensland to support him. He credits the offender’s actions with saving his life. Mr Page visits his friend, and has heard him refer to how idiotic he was to get “involved in something that was over his head and that if he had his time over this would not have happened”. He feels strongly that he has let his family and friends down. Mr Page believes that the offender’s remorse and depression can be readily detected in his voice and behaviour, and that the offender will never again become involved in any criminal activity.

120. In his letter to the Court, the offender reflected on the events that had led to his incarceration, and the remorse he feels for his actions. He now acknowledges his role in the conspiracy, and apologised to the Court and community, noting the shame that his actions have brought to his family name and family members.

121. He said that, since going into custody, he has witnessed the effect of drugs and the impact drugs have on people’s lives. In particular, he said that he has “seen families ruined, health destruction, violence and the immense burden drugs financially bring on the Australian people”.

122. The offender said he has always worked very hard, but has lost all that he earned through that hard work because of his actions. In custody his time has not been wasted, as he has worked, done a great deal of reading, and consulted with psychologists to better himself mentally. He stated that he hopes that through his mistakes he “can teach and help others to not make the same mistakes”. On release from custody he wishes to become a productive member of society again, and do what he can “to repair the damage” he has done to his “family and the community”.

123. CSNSW file notes confirm that the defendant has worked in custody, and is regarded as excellent in his work as a sweeper. He is polite and respectful to prisoners and staff, and has expressed his willingness to participate in any programme that might aid in his rehabilitation.

Consideration

124. This being a federal offence, the Court must take into consideration those matters in Part 1B of the Commonwealth Crimes Act relevant to sentencing.

125. Section 17A of the Act prohibits the imposition of a custodial sentence for a federal offence unless, having considered all other available sentences, the court is satisfied that no other sentence is appropriate in all of the circumstances.

126. The gravity of this crime is such that I am satisfied that only a custodial sentence is available.

127. This is an extremely serious offence that Mr Mohr entered into for no better reason than the lure of money, and the prestige and lifestyle that money could buy him.

128. It is argued on his behalf that his participation in these events can be linked to the insecurities of personality borne of his medical condition, and in that way that his condition is of causal significance. Although his condition is likely to have relevance in that it has contributed to his overall personality structure, I do not accept that it is at the heart of the commission of this crime, or that it was a feature material to his decision to assist Gutterball in bringing about a large importation of cocaine into Australia.

129. That decision is explained by the offender’s desire for a life of luxury and ease that seems to have manifested as early as childhood when, despite having been materially well provided for by his family, he felt that he should have had more. As an adult moving in social circles where the display of wealth coupled with casual drug use were seen as positive lifestyle traits, the offender’s desire for the sort of economic status that his legitimate employment could not bring him saw him enter into this conspiracy.

130. That choice was probably further informed by his own use of cocaine from early adulthood, in circumstances where it was viewed as a “party drug” and part of the social scene in which he moved.

131. The offender’s health and associated psychological condition is a relevant feature to the determination of the sentence to be imposed upon him, but not as one that can fully explain his role in this crime. Its relevance is insofar as it will impact upon the conditions he faces in custody which, I accept, will be more onerous for him.

Parity

132. A number of other conspirators have been sentenced by the courts, and copies of the relevant sentencing remarks were before the Court.

133. It is necessary to consider the principle of parity, and have regard to the sentences imposed upon the co-conspirators, to ensure consistency of outcome, insofar as the objective case against each conspirator, and that person’s subjective case, allows.

134. The sentences imposed upon crew members, or those with a lesser role than the offender, such as Graeme Toa Toa or John Tobin, provide no useful comparison to the offender’s overall circumstances. The offender contends that his sentence should broadly approximate that imposed upon Person D (for a different offence), a term of 8 years imprisonment prior to any reductions on sentence allowed to Person D, because the offender’s role was on a par with that of Person D. I do not accept that submission.

135. Person D was involved in the conspiracy for the period of the voyage of the Dalrymple, and a day or so beforehand. He was introduced to it because, [REDACTED] he could be trusted by Person A, and because his experience in mining meant that he had some knowledge of the operation of radio equipment. The anticipated payment for his work was in the order of $100,000. He had no autonomy over any aspect of the conspiracy, no authority over any other conspirator and, even when he took on a role of mediating between Person A and the dissenting crew, everything he did was on direct instruction from Person A. His role bears no comparison whatsoever to that of the offender.

136. The offender also submits that his role in the conspiracy was less than that of either Person A or Person C, and thus his sentence should also be lower than the sentences imposed upon them, absent the discounts on sentence afforded them. I have already recorded my conclusion that the offender’s role was senior to that of either of those men; subject to personal considerations that would ordinarily mean that the sentence imposed upon him should be one of greater severity.

137. Person A played a significant role in the conspiracy, and the sentence that would have been imposed upon him prior to discounts provides some guidance, necessarily limited by his lesser authority, his subjective case including powerful evidence of contrition and remorse, and the operation of the totality principle, which had a downwards impact upon individual sentences indicated for the offences to which he pleaded guilty. However, there are material differences in the objective gravity of the role played by each man in the conspiracy.

138. Person A was responsible for all aspects locally of the voyage to collect the cargo at sea. He acquired the boat to be used, equipped it and arranged for its crew, and had significant input into the location of the rendezvous point. He had virtually complete autonomy in all matters connected with the Dalrymple and the role it was to play. He had no involvement at all with the international aspects of the scheme; he had no knowledge of or autonomy in the arrangements for the preparation and dispatch of the drugs; and no knowledge of the overall structure of the syndicate responsible for the drugs. He had no knowledge of or role in the receipt of the cargo in Australia. Although very significant, his role was confined to the collection of the cargo at sea, and delivery to Australian shores.

139. The offender by contrast, was involved in and knowledgeable of these things, something established most clearly by the evidence of his trip to Chile. This was a trip precipitately taken, of short duration, and coinciding precisely with the lead up to the departure of the cargo from Chile, and Gutterball’s advice to Person A that he was sending someone to Chile to check on the operation there. The offender’s evidence at trial, that of his friend Mr Morse, or Exs 7 and 8, did nothing to dispel that conclusion.

140. The offender’s role in the international supervision of the operation to export cocaine from Chile and import it to Australia elevates his position to one that goes well beyond a simple intermediary in Australia between Gutterball and Person A.

141. The sentence imposed upon Person A is of some utility as a general reference point, but to compare the offender and Person A is to compare unlike cases. That is even more so the case with Person C. The principle of parity has some operation here, but it is limited.

Section 16A

142. Section 16A provides a list of matters to which the Court must have regard when passing sentence for federal offences, many of which I have already addressed. Others are considered below.

Remorse

143. The evidence adduced by the offender touched upon the question of remorse. In his letter, the letters of friends and family, and in the psychological report, there were references to the remorse the offender now feels. It is submitted on his behalf that the Court should accept those expressions of remorse as genuine.

144. I accept that the offender greatly regrets the position in which he finds himself, and greatly regrets the distress that his actions have caused his family and friends. I am not able to accept that his regret amounts to true remorse for the crime he committed.

145. There is force in the Crown’s submission that the Court should view the offender’s untested assertions in this regard with caution, particularly in circumstances where he has frequently lied, and done so with considerable creativity. His evidence to the jury was an extensive fiction intended to avoid the consequences of a crime that he had acknowledged, at least to his parents in the years leading up to the trial, that he had committed.

146. When now faced with the prospect of a lengthy sentence, it is reasonable to consider the possibility that the offender’s expressions of contrition are not as heartfelt as he might intend them to appear. There is a difference in my view between accepting that one has acted wrongly to one’s detriment and the detriment of family, and being deeply regretful of that; and accepting full responsibility for a wrong done.

147. I accept that the offender regrets his actions, even if principally because of the consequences to him. It may be that the beginnings of insight are to be found in that regret.

Health

148. The offender suffers from a lifelong medical condition that continues to be a source of anxiety, and which may require attention in the future. Although there is a degree of inconsistency between the material tendered with respect to this subject, with some notes and reports recording the success of corrective procedures, and some referring to lasting adverse consequences, I accept that the condition is a significant one, and it will continue to trouble the offender, possibly in a clinical sense, and very likely in a psychological sense.

149. On the basis of his health condition, and despite the reliance of expert opinion on the offender’s self-report, I also accept that the offender has in the past, and is likely in the future, to experience depression.

150. Although, applying the principles in R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152, wherein the Court of Criminal Appeal said that ill health cannot be allowed to become a licence to commit crime (at [135]), the offender’s medical condition will have an impact upon the everyday conditions of custody for him, making imprisonment a greater burden on him than upon prisoners without that condition. To that extent, it can mitigate punishment: R v Smith (1987) 44 SASR 587 at 589; R v Burrell [2000] NSWCCA 262; (2000) 114 A Crim R 207.

Future Prospects

151. Despite the circumspection with which I view the offender’s claims of contrition, I do accept that his prospects for the future are reasonably positive. He has a solid work history and qualifications that will be of use to him and potentially to future employers. His experience of imprisonment is likely to impress upon him the importance of earning his income through legitimate means, rather than by seeking what he may have perceived as a faster and more glamorous road to riches.

152. I also have regard to his conduct in custody to date, which seems to have been exemplary.

Deterrence

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

154. Deterrence has been held by the High Court and by courts of criminal appeal in all states to be a most significant feature in the determination of the sentences to be imposed for drug crimes such as that 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; (2010) 205 A Crim R 106, at [72].

155. 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 (1979) 46 FLR 386 at 399.

156. 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; (2002) 131 A Crim R 577; Chen & Ors v R [2002] NSWCCA 174; (2002) 130 A Crim R 300; R v Ismunandar; R v Siregar [2002] NSWCCA 477; 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 v Li & Ors [2005] NSWCCA 154; De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 197 FLR 125; Thompson v R [2007] NSWCCA 83; Melgar Sevilla v The Queen [2007] WASCA 116; Sukkar v The Queen (No 2) [2008] WASCA 2; 178 A Crim R 433; 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 at [18].

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

Sentence

158. 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.

159. The sentence that I have determined will achieve that end is as follows.

160. For the offence of conspiring to import a commercial quantity of a border controlled drug the offender is sentenced to a term of 32 years imprisonment, to date from 22 January 2019, expiring on 21 January 2051, with a non-parole period of 18 years, expiring on 21 January 2037.

161. I make an order that the sensitive evidence tendered on sentence is to be placed in a sealed envelope, not to be opened other than by order of a judge of this or a superior Court.

*********

Amendments

07 November 2024 - Typographical amendment to coversheet.

Decision last updated: 07 November 2024