R (Cth) v Ohanian

[2025] NSWDC 421

District Court

New South Wales

Medium Neutral Citation:

R (Cth) v Ohanian [2025] NSWDC 421

Hearing dates:

23 April 2025

Date of orders:

23 April 2025

Decision date:

23 April 2025

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See pars [67]-[69].

Catchwords:

CRIME – SENTENCE – Import of precursor pseudoephedrine in two consignments, pure amounts being 3.37 kg and 1.67 kg – Minor, unsuccessful role as receiver of goods to pass on to another – No knowledge of substance being imported, reckless – Prior good character – Financial hardship – Generalised anxiety disorder arising out of arrest – Genuine remorse – Good prospects of rehabilitation.

Legislation Cited:

Crimes Act1914 (Cth) s 17A

Criminal Code Act 1995 (Cth) s 307.11

Cases Cited:

GE v R [2019] NSWCCA 41

Matthews v R [2013] NSWCCA 187

McGregor v R [2024] NSWCCA 200

Nguyen v R [2020] NSWCCA 45

Phan v R [2013] NSWCCA 49

R (Cth) v Madgwick [2018] NSWCCA 268

R v Chandler [2010] QCA 21

Wright(a pseudonym) v R [2017] NSWCCA 289

XY v R [2013] VSCA 261

Zhouv DPP(Cth) [2021] VSCA 118

Texts Cited:

Nil.

Category:

Sentence

Parties:

Crown – R (Cth)
Offender – Samir Ohanian

Representation:

Counsel:
Crown – Ms Niagos, C.
Offender – Mr Hughes, T.

Solicitors:
Crown – Office of the Director of Public Prosecutions (Cth)
Offender – Macquarie Law Group

File Number(s):

2023/00302668

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Samir Ohanian stands for sentence as a result of pleading guilty to two charges, each contrary to s 307.11(1) of the Criminal Code Act 1995 of the Commonwealth of Australia (‘Criminal Code’). The first offence is referred to as Sequence 2 and the second offence is referred to as Sequence 4. Sequence 2 is in connection with a consignment which has been named “Consignment 1”, and Sequence 4 is in respect of a second consignment which has been named as “Consignment 2”. Sequence 2 is this:

“Between about 13 August 2023 and about 21 August 2023, Samir Ohanian imported a substance, the substance being a border-controlled precursor, namely pseudoephedrine, and the quantity imported being a commercial quantity.”

2. The minimum commercial quantity of pseudoephedrine is 1.2 kilograms. The amount imported in Consignment 1 was 3.37 kg which is about 2.82 times the commercial threshold. The amount involved in Consignment 2 was 1.67 kg of pure pseudoephedrine which is about 1.39 times the commercial threshold. For the two offences the offender was arrested on 22 September 2023 and given bail on the following day. He only spent one night in custody.

Agreed Facts

3. Exhibit A contains an agreed statement of facts. The first consignment arrived in Australia on 13 August 2023. The second consignment arrived in Australia on 10 September 2023. I shall from this point on refer not to Sequence 2 or Sequence 4 but merely to Consignment 1 or Consignment 2.

4. Consignment 1 was addressed to a consignee “Jason Marshall” at 13A Universal Street, Mortdale in this State. The person who lives at 13A Universal Street, Mortdale is in fact the offender. Consignment 2 was addressed to “Ricky Moore” at Unit 605/70 Pitt Street, Mortdale in this State. The person who lives at Unit 605/70 Pitt Street, Mortdale is not a person named Ricky Moore but is in fact the offender’s brother.

5. Messages from a phone seized from the offender at the time of his arrest on 22 September 2023, a phone registered to the offender, contained evidence that the offender arranged with his brother and Australia Post couriers to have each consignment delivered to each of the addresses before the 6 consignments were actually delivered.

6. Australian Border Force (‘ABF’) officers intercepted and x-rayed both consignments and discovered that each contained concealed pseudoephedrine. The consignments were sent from India and each contained Indian style dresses in which was concealed pseudoephedrine. For example, in respect of Consignment 2, the ABF removed the pseudoephedrine which was concealed in 18 plastic bags contained in the hemline of the dresses contained in the delivery. After removing the pseudoephedrine, the ABF officers reconstructed the package containing a substance which was not unlawful in the expectation that delivery would be taken by the addressee who could then be charged with attempting to obtain the illicit substance that had been removed by the ABF.

7. After his arrest by the police, the offender was taken to St George Police Station and made a number of admissions in a record of interview. He confirmed that he had knowledge of both the addresses of each consignment and agreed that he had collected and taken possession of Consignment 2 at the request of an unknown man who had offered him money to do so, the offender admitting that he had agreed to take collection of the consignment because he was in financial difficulty.

Consignment 1 (Sequence 2)

8. I turn now to the particular details of Consignment 1. In late July 2023, the offender approached a courier, Mr Pham, who was delivering a parcel at 13A Universal Street, Mortdale. Pham scanned the parcel and asked the offender to sign for the delivery. The offender asked Pham if he could exchange telephone numbers with him so that Pham could contact the offender when a parcel turned up. Mr Pham agreed to do so. On 13 August 2023 the offender sent a text message to Pham stating:

“Hi bro my second parcel should be here day or two…13A Universal Street Mortdale…thank you. Please text me when you come [so] I can meet you…Okay I spoke with Will as well but keep an eye on it for me please [,] my shout lunch”.

9. On the same day the offender sent a text message to a second courier, Silva, with reference to the same delivery in essence, sending him the same message as had been sent to Pham in order that he could make sure of the delivery to his home address.

10. On 13 August 2023, Consignment 1 arrived in Sydney from India. It was said to contain 11 Indian style dresses. They contained 4.23 kg of pseudoephedrine. On 16 August 2023, the offender sent a text message to Pham again requesting knowledge of when he received the package he was expecting. On 18 August 2023, the offender sent another message to Pham stating, “Hi my friend sorry package delayed few weeks or so”.

11. On 21 August 2023, the ABF investigators performed a deconstruction of Consignment 1 of traditional Indian style dresses. The first dress package was opened, and it was observed to contain six vertical hemlines concealed within which were 16 clear plastic packages of bags containing a white powder like substance. Presumptive testing showed that it was pseudoephedrine. The process was completed on all the packages. The total weight of the 11 ABF evidence bags contained 4.23 kg of pseudoephedrine. On 18 August 2023, and 11 September 2023, the ABF investigators conducted activities in the area of Mortdale Post Office in relation to Consignment 1. During this activity no one attended to collect the consignment.

Consignment 2 (Sequence 4)

12. The agreed facts then turn to Consignment 2. On 3 August 2023, the offender had a conversation by text message with his brother, George Ohanian. Essentially, the offender was asking his brother to use his residential address for the delivery of a package. Again, the offender’s brother appears to have agreed to that request. On 10 September 2023, Consignment 2 arrived in Australia, also from India. This one contained six Indian style dresses. Examination of the dresses indicated that they contained 2.13 kg of pseudoephedrine.

13. On 14 September 2023, the offender sent a text message to the courier, Silva, asking him whether he delivered to Pitt Street, Mortdale. Silva said that another driver delivered to Pitt Street, Mortdale. The offender then sent a further text message to Silva indicating that he would try to find who the actual driver was. He told Silva that he expected an urgent parcel to be delivered to his brother’s address, 70 Pitt Street, Mortdale, albeit he did not use his brother’s name but rather the bogus name of the addressee.

14. On 22 September 2023, about 8.30am, the offender sent a text message to Silva saying:

“Hi mate I have notifications package coming today. Do you know who does Pitt Street, Mortdale….is there a Joe does this Mortdale area…70 Pitt Street, Mortdale”.

15. On 22 September 2023, a half hour later than the earlier message, the offender sent another text message, this time to Pham. He again asked for the identity of the courier who delivered to Pitt Street, Mortdale. On that day ABF investigators conducted a managed delivery of the consignment addressed to 70 Pitt Street, Mortdale about 10.30am. An ABF investigator observed the offender sitting in a black-coloured Audi sedan parked outside 70 Pitt Street, Mortdale. That black Audi was registered to the offender. At 11.28am, the offender left the vehicle and approached an undercover operative (‘UCO’) delivery driver parked outside 70 Pitt Street, Mortdale. This exchange then took place:

“Offender: Do you have something for 70?

UCO: Yeah, what unit?

Offender: Unit 5.

UCO: Yeah, I do. Who’s it for?

Offender: Ricky-Moore.

UCO: Yeah, sure do, I’ll get it now”.

16. The offender then took possession of Consignment 2. The offender was then stopped by an ABF officer known as Copus and served with a seizure warrant seizing the consignment. The offender was cautioned and then arrested. He was then taken into custody. On his person at the time were two black Apple iPhones and an iPad in a case in his motor vehicle.

Purity

17. In Consignment 1, the total purity able to be identified as pure pseudoephedrine, was 79.66% of the 4.23 kg which equates to 3.37 kg of pure pseudoephedrine. For Consignment 2, the total purity able to be identified as pure pseudoephedrine, was 78.40% of the original out of 2.13 kg which equates to 1.67 kg of pure pseudoephedrine. The total amount of pure pseudoephedrine in the two consignments was 5.04 kg out of the total of 6.36 kg.

Admissions

18. After his arrest, the offender was taken, as I said earlier, to St George Police Station where he participated in an electronically recorded interview with ABF Officer Ill. To the officer he made a number of admissions. He admitted that he resided at 13A Universal Street, Mortdale and had done so for about 26 months with his wife and his stepdaughter. He agreed that he had attended outside 70 Pitt Street, Mortdale on 22 September 2023 and admitted to collecting the delivery which we know as Consignment 2.

19. He stated that he had received a telephone call from an unknown number that morning, from an unknown male asking him to collect a parcel and that he wanted to do a “private job” for him which the offender agreed to do because he needed the money. The offender said that he would receive a payment of $1,000 for collecting a parcel. The offender also admitted that he had been in financial troubles and was “desperate for money”. He admitted that his brother was the resident at Unit 5/70 Pitt Street, Mortdale. The offender admitted that he did not know exactly what he was collecting or that the parcel contained pseudoephedrine.

20. The offender said as far as Consignment 1, that arrived in Sydney on 13 August 2023, was concerned, he conceded that it was addressed to an old address that he had but he denied collecting the consignment. However, by his pleas the offender has admitted his guilt in respect of each matter. As I said, the offender was arrested on 22 September 2023 but was given bail by the Local Court at Parramatta on 23 September 2023. Initially he was required to report daily to Riverwood Police Station but that was varied on 16 November 2023 to reporting thrice weekly, that is on Mondays, Wednesdays and Fridays.

Criminal History

21. The offender has a criminal history, but it relates purely to three charges or offences occurring on 24 March 1997, when the offender was 22 years old. At the time of these offences the offender was 48 years old. He is now 50 years old. The three offences were one of larceny of goods less than $2,000 in value and two counts of making a false instrument. For the larceny he was given a recognisance under s 558 of the Crimes Act 1900 for a period of 2 years, the sum of the recognisance was $200. A similar recognisance was required for the first count of making a false instrument. For the second count of making a false instrument he was given 100 hours community service. Those offences are extremely old and could be regarded as being spent. I accept that the offender appears before me as a man who I should treat as of prior good character.

Personal Circumstances

22. On 16 October 2023, after he had been arrested and granted bail, the offender attended upon Mr Chafic Awit, a registered psychologist. Exhibit 1 in these proceedings is a copy of Mr Awit’s report of 11 April 2025. At the time it was made, the offender had seen Mr Awit on 15 occasions. The report does not tell me by whom the offender was sent to see Mr Awit. After his initial attendance on 16 October 2023, the offender saw the psychologist four times, every three weeks prior to the end of 2023. He was then seen on eight occasions across 2024, and, since the beginning of this year, has seen Mr Awit on four occasions. The report indicates that the offender was to see Mr Awit each month after the time of the report.

23. My sources of history of the offender are largely drawn from Mr Awit’s report. The offender was born in Cairo in October 1974. He is the youngest of three brothers. He came to Australia with his family when he was three months old. The offender’s parents are now deceased. The offender denied any domestic violence between his parents and gave no history of any major arguments within the house outside of what would be expected in a normal marriage. The offender was close to both his parents in his developmental years.

24. There is nothing to suggest that he has any deprived background other than what I will now quote:

“Mr Ohanian reported the family financial situation as being a struggle with both parents on the pension and living week by week. His father had initially worked at Johnson & Johnson but stopped working when Mr Ohanian was commencing primary school. His middle brother was eight years the offender’s senior, whilst his eldest brother was 12 years his senior. Due to the large age gap between Mr Ohanian and his brothers he stated that he often felt left out of a lot of things. He reports a strained relationship with them growing up because of this age gap, but as they grew older, they all became closer. His elder brother has stage four cancer”.

25. The offender attended Mt Carmel Primary School at Waterloo. He then attended St Mary’s Cathedral School in Year 7, but he moved to Cleveland Street High School in Redfern in Year 8 and completed his high schooling at that high school in Year 12. The offender told Mr Awit that he was the victim of ongoing bullying during his primary school years. He told Mr Awit that he was constantly taunted and pushed around the school and often had his lunch money taken from him. He regarded his primary school years as unhappy. There was one event that occurred when he was 12 or 13 years old, but no damage was done to the offender as far as I can perceive other than it caused him fear at the time. He was then 12 or 13 years old.

26. Mr Awit recorded this employment history:

“Mr Ohanian was first employed at the age of 19 working at a supermarket called Clancy’s, where he worked for two years. He then worked for Interforwarding Freight and Customs, dealing with shipments going to the airport, where he worked for two and a half years. Mr Ohanian then was employed alongside his brother until 2016 in their own food service company (Sales repping and delivery) for Munchies Food Distributors.

In 2016 this business went bankrupt, which led Mr Ohanian to a number of stressors and the start of his financial difficulties. Payments outweighed the profit for a long period, and the constant worrying of not meeting his financial obligations often led Mr Ohanian to struggle with sleep, concentration and at times his mood. Mr Ohanian tried to salvage what he could and opened up a café from 2016-2018. He reports that this was a hasty and desperate move. This business only further drove him into debt and he describes a financial loss of approximately $122,000 due to this.

Mr Ohanian reports his mood and anxiety further worsening at this stage. His sleep went from being poor a few days a week to struggling nearly every day of the week. He struggled to see a future from where he was, and reports losing interest in things he used to be interested in. He further recalls his stomach often feeling like it was in a knot, and his mind was constantly thinking, with a majority of these thoughts being worrying thoughts of financial doom.

Mr Ohanian then found a role with Blue Seafood Distributors, where he remained until 2020 when the COVID-19 Pandemic reached Australian shores. Desperate for work, Mr Ohanian was able to source a casual role with another food service (EWH Food Service) between 2020 and 2021. He reports that every day was a struggle at this point. Mr Ohanian then found employment with Socrates from 2021 - October 2023. He lost his role due to his arrest for the current offences. From February 2024 to the present day Mr Ohanian has been working for Elia Bathrooms.”

Like most psychologists Mr Awit took an alcohol and drug history but it is of no concern in the current case.

27. The offender has been married three times. He was first married in 2000, and that marriage lasted until 2010. He and his first wife have two sons, and Mr Awit gives their ages as 19 and 16 years. According to the history given to Mr Awit the first marriage ended due to both parties falling out of love and having very little connection with each other. They were civil about their divorce and shared custody of their sons. The offender reported having a good relationship with each of his sons up until the time of his arrest. He married in 2016 for a second time, clearly shortly after his first divorce. The second marriage lasted only two and a half years and ended around the time that his business failed. There were no children of that marriage.

28. The offender told Mr Awit that in 2018 he lost his café, he lost his business, he lost his house, and he lost his marriage. He commenced to borrow money from people he knew to try to make ends meet and to support his children. His parents had died, and they could no longer offer him any support. The offender did not wish to put too much pressure on his brothers to assist him as they had their own lives to live. The offender told Mr Awit that he had never recovered financially from that time until the present day and he still is struggling to make ends meet. His arrest obviously interfered with his relationship with his two sons. He now only sees them every second weekend due to having to work to make ends meet and he finds that lack of contact with his sons distressing.

29. The history recorded by Mr Awit continues thus:

“Mr Ohanian reported that he never sought psychological intervention prior to his arrest, despite struggling with his mood and anxiety for at least six to eight years prior. He stated that he kept putting this off for a number of reasons, which included, always working and chasing his money, cultural perceptions about people who sought psychological intervention, and the ongoing belief that somehow, he could turn his life around at some point. Mr Ohanian reports that he finally turned to intervention when he felt he had hit rock bottom soon after his arrest. The strain in his relationship with his sons from the point was also a prompting factor, as this led to his mood further worsening.

Mr Ohanian reports that he still owes a number of people money. This is something that continually weighs on his mind. He reports living from week to week in relation to his earnings and is ashamed of himself that he has reached 50 and has no house nor stable growth.”

30. The report of Mr Awit does not reflect accurately on the offender’s third relationship. In evidence is a letter from his third wife, Honey Laine Ohanian; it is dated 18 March 2025 and is Exhibit 6. The letter includes this:

“I write this reference in support of my husband with full knowledge that he has entered pleas of guilty in relation to two sequences of importing a border-controlled precursor (pseudoephedrine). Despite this I offer Samir my full support as he appears before the Court.

Samir and I have been married since 8 August 2020. Throughout our relationship Samir has proved to be a caring, loving, reliable and genuinely kind man who is always putting me and the children first in everything that he does. Samir is not a perfect person, but he is someone who genuinely has a good heart.

Samir is a devoted father to his two sons and a wonderful stepfather to my daughter, who he treats as if she were his own, he provides her with unconditional love, guidance and stability. The bond that they share is something I admire, despite them not being biologically related. I truly believe that Samir’s presence in her life is a blessing.

Samir is a dedicated family man always making sure that our household runs smoothly and he’s always there to support us emotionally and physically. He is a pillar of the home and we all lean on him when we need support and guidance. One of the qualities that I admire about Samir are his good intentions as he genuinely enjoys helping people, whether it's family, friends, neighbours or even strangers. If someone needs a hand he is there without hesitation and without the expectation of anything in return.

I was very shocked and taken aback when I found out about Samir’s involvement in relation to these offences as to say the least, this is out of character for Samir.

Samir and I have had a number of deep and meaningful conversations in relation to his offending behaviour. I understand that Samir has involved himself in this as our family was struggling financially. Samir has explained to me his fears and how he worried that the financial struggles could continue to get worse over time and his past experience with his ex-wife, how struggling financially made him feel like less of a man. I understand where he is coming from, and I keep telling him that I wish he would have just spoken to me about the problem rather than go and involve himself in something like this.

Samir is genuinely remorseful for his actions and has taken the situation very seriously. Samir has spent a lot of time reflecting on the mistakes he has made and is determined to make positive changes in his life. Our family stands by him and believe this experience has given him valuable insight and a motivation to stay on the right path.

I respectfully ask this honourable Court to consider this letter when determining the outcome of this case. Despite this mistake, Samir remains a good man with a kind heart. I hope the Court can extend its leniency on this occasion.”

31. I quoted that at considerable length because it does tell me something about the man who stands for sentence before me by a woman who clearly knows him extremely well and to whom he has been married for almost five years now and knows him one would expect somewhat intimately. One would expect that a man with a wife who supports him in such fashion would ameliorate some of the miseries that the offender may have brought with him to his third marriage.

32. In his letter to me of 9 April 2025, which is Exhibit 2, the offender speaks lovingly of his wife and one would think that his current marriage would have alleviated some of the problems that he thought he was experiencing prior to that marriage.

33. There are a number of other personal references before me from others but one in particular ought be noted. This is from Mr Peter Socrates, a reference bearing date 29 March 2025, which is Exhibit 5. Mr Socrates is the principal of Socrates Distributors which runs out of Brookvale. Mr Socrates appears to have dismissed the offender from his employment when he found out that the offender had committed these crimes. Nevertheless, he has provided a reference which says much about the offender’s general character and reliability. The reference contains this:

“I have known Mr Ohanian in a professional capacity for 18 months as he has been employed as an Area Manager. During his time with the company, Samir has consistently demonstrated a high level of professionalism, reliability and commitment to excellence. Samir’s role requires him to manage key client accounts and driving sales performance within his designated region. Samir has constantly achieved the goals set out and continues to exceed our expectations in a professional capacity. Samir’s ability to build and maintain strong relationships with both clients and colleagues has made him an invaluable and respected member of our team.

I was extremely surprised and deeply concerned when I was made aware of the charges currently before the Court. I was extremely surprised as I truly believe that Samir is a man of honesty and integrity. Samir is entrusted to handle client accounts and company resources, and has not once abused that trust. There has never been any concern or question raised in relation to Samir’s conduct or ethical obligations.

The behaviour that Samir has exhibited is truly out of character, based on my experience working with him. I have always known him to be a respectful, considerate and respectful person. I have spoken to Samir about the offences and I believe that he is genuinely remorseful for his actions. I understand at the time he was suffering financially and made the foolish choice that has put him in this position.”

34. I wholly accept that the offender was short of money. He was borrowing from friends and then borrowing from friends of friends. He made the foolish mistake of agreeing to do something for a friend of a friend for a reward of $1,000, probably per consignment, of taking possession of two consignments. He ought to have realised that what he was doing was going to lead him into grave difficulty and appears to have realised that by providing false names for the consignee of each consignment and his brother’s address for the second consignment, albeit he provided his own address for Consignment 1.

35. He has put himself in harm’s way. This often happens, not only with precursor drugs but also with illegal drugs. The person most likely to take delivery of them is the person most likely to be arrested and charged by the police. That is the only way that they may find out who the effective organiser of an importation might be, albeit that it is only the middlemen who get caught.

36. I accept however that the offender is remorseful at least because he realises that he has jeopardised his relationship with his current wife and her daughter, his relationship with his sons, and his relationships with right thinking people in society, as well as those who might like to employ him, but might be concerned that he has involved himself with criminal activity.

37. One of the issues raised was whether the offender’s psychological problems attested to by Mr Awit were somehow causative. The diagnoses made by Mr Awit are multiple. I have often expressed the view that the diagnosis of multiple psychiatric illnesses depends on looking at classifications. Multiple classifications can arise because of the way psychiatric illnesses are categorised, but generally no one has three or four different psychiatric illnesses, merely one.

38. The diagnoses offered by Mr Awit are a generalised anxiety disorder, a major depressive disorder, an episode of a major depressive disorder, as well as symptoms consistent with depression, anxiety and stress. The diagnosis of a major depressive disorder is the diagnosis of a chemical imbalance in the brain which may cause episodes of depression from time to time. Some episodes of depression may be triggered by an external stimulus but some episodes will just arise without such a stimulus.

39. I accept however, that there is a generalised anxiety disorder arising from at least the offender’s arrest. He appeared to be able to live without psychiatric intervention at all the material times until he was arrested and charged with the current offences. That appears to be the matter that triggered things off rather than what happened beforehand triggering off the crime. However, once triggered off, it certainly needed treatment, and the offender is undergoing that treatment.

40. My finding arises from the fact that no one has put any evidence before me as to what the offender’s psychiatric condition was at any time prior to the offence. If the offender was suffering episodes of depression beforehand, one might expect his general practitioner’s records to be tendered or the like. That has not been done. However, I certainly am persuaded that the current psychiatric illness was triggered by his involvement with these offences and that itself will be a major deterrent to carrying out any further criminal offending, because he will realise that it had put him into grave difficulty, not only with the law, not only with his family, but also with his mental health.

Comparative Cases

41. The maximum penalty for each of these offences is imprisonment for 25 years and/or 5,000 penalty units or both. 5,000 penalty units is an extremely high fine, one which would send the offender into bankruptcy.

42. There has been much discussion about comparable cases. In the Crown’s submissions, reference is made to four authorities. The first is Zhou v DPP(Cth) [2021] VSCA 118 (‘Zhou’). That involved the importation of the precursor ephedrine being 3.343 kg of that drug, just over 1.7 times the commercial quantity. The appellant in that case had been sentenced to imprisonment for 5 years with a non-parole period of 2 years and 6 months. An application for leave to appeal was refused.

43. The second authority was Phan v R [2013] NSWCCA 49 (‘Phan’), which involved the importation of 23 kg of pseudoephedrine. The offender in that case was sentenced to 12 years imprisonment with a non-parole period of 8 years. His appeal to the Court of Criminal Appeal was dismissed.

44. The next case was XY v R [2013] VSCA 261 (‘XY’). That involved the importation of 3.1 kg of pseudoephedrine. At first instance the offender had been sentenced to 8 years imprisonment with a non-parole period of 6 years. On appeal leave was granted and the offender was resentenced to 6 years imprisonment with a non-parole period of 4 years.

45. The fourth authority referred to me by the Crown was R v Chandler [2010] QCA 21 (‘Chandler’). That involved the importation of a commercial quantity of a border controlled precursor. The amount in question was between 2.799 kg and 2.988 kg of pseudoephedrine. The offender was sentenced to 5 years imprisonment with a non-parole period of 3 years. The appeal was dismissed.

46. Exhibit 9, tendered by Mr Hughes for the offender, is a table of cases prepared by the Public Defenders Office of New South Wales as a guide to importing precursor drugs of a commercial quantity, an offence contrary to s 307.11 of the Criminal Code. That provides me with 26 cases. The first of those was Chandler to which I have already referred. The facts of each case are very different. As a guide I have not considered those where the amount in question was, for example, 300 kilograms or more. In most of the cases the amount in question was much smaller than that.

47. The fifth case referred to in Exhibit 7 is Phan which is the second case referred to me by the Crown. The 23rd case is Zhou which is the first case referred to me by the Crown. XY, which is the third case referred to me by the Crown, is in fact, the eighth in this list of 26 cases contained in Exhibit 7.

48. The sixth case in Exhibit 7 is Matthews v R [2013] NSWCCA 187 (‘Matthews’). There the amount of pseudoephedrine was 2.47 kg. The sentence imposed was a head sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months. However, the liability of the offender in Matthews for the crime was much higher. He travelled to Thailand and purchased pseudoephedrine tablets and sought to import them secreted in a water heater. He was the organiser or principal of the operation. His offending was in breach of parole and an order in respect of child sex offences.

49. In XY, referred to me by both sides, the head sentence was 8 years with a 6 year non-parole period but on appeal the sentence was reduced to 6 years with 4 years non-parole. However, the offender in that case was more criminally responsible for the activity than is the current offender for these offences. In that case pseudoephedrine in cold and flu tablets was concealed in steel bowls and electronic equipment. The offender was arrested while waiting to take delivery of that property. He had an active role in managing the importation. He engaged suppliers in China, solicited the importation, made payments, arranged collection, and arranged to sell and deliver the precursor. It was a commercial operation conducted in a businesslike manner for financial reward.

50. One of the cases referred to in Exhibit 7 concerned offending by a customs officer, which made his offending much more serious.

51. In fact, there is a second case involving a customs officer. The amount involved was 90.1 kg and his offending also involved bribery. The total offending obtained an aggregate sentence of 9 years with a 6 year non-parole period.

52. Wright(a pseudonym) v R [2017] NSWCCA 289 involved a conspiracy to import a commercial quantity of pseudoephedrine. The amount was 6.2 kg. The sentence imposed was 6 years and 6 months with a non-parole period of 4 years. That case involved the importation of drugs impregnated in tea sent from Iran. There were in fact six consignments sent to the home of the co-offender, all but one of which were intercepted by the police. The offender had travelled to Iran to source and pay for the drug and make arrangements for its delivery back in Australia. That is obviously much more serious offending.

53. Another of the cases is called R (Cth) v Madgwick [2018] NSWCCA 268. The offender in that case was sentenced to 5 years and 9 months with a non-parole period of 2 years and 11 months. The Crown appealed and the Court of Criminal Appeal increased the head sentence to 6 years and 10 months and fixed a non-parole period of 3 years and 5 months. The offender in that case was a distributor for a chemical company. The drugs were imported in substituted containers. The offender had unpacked the containers and inspected bottles containing pseudoephedrine. He unsuccessfully attempted to convert what he thought was pseudoephedrine liquid into dried substances. He had extensive dealings with the organisers and had travelled to Thailand. He left Thailand one day before the shipment of the container from Thailand to Australia, met with organisers, and used his business consignee of container and contact person for shipping company, paid customs fees and the like. Again, much more serious offending.

54. Other cases in the list are GE v R [2019] NSWCCA 41 which involved the importation of 8.33 kg of pseudoephedrine. On appeal, the sentence was reduced to 6 years and 4 months with a non-parole period of 3 years and 6 months. Again, this was a more serious case. Drugs had been imported in a container from Malaysia. The container was intercepted by the ABF. The offender then took delivery. He organised the delivery, tracked the consignment, falsely presented himself to a delivery driver, signed a consignment note in a false name, and took possession. He acted for financial gain. It was noted that he played a significant role in the importation.

55. Another case is Nguyen v R [2020] NSWCCA 45. That involved the importation of 3.99 kg of pure pseudoephedrine. On appeal, the sentence was reduced from 7 years with a non-parole period of 3 years and 7 months to 6 years with a non-parole period of 3 years. The offender had a prior conviction for importing heroin. The offender in that case was a female who flew into Australia from Vietnam carrying drugs concealed in the sides of a cardboard box containing food stuffs and in commercially packaged food. She was seeking modest financial gain. She was low in the hierarchy and was not aware of the amount of drug she was carrying.

56. In Zhou, the authority referred to me by the Crown, the importation involved 3.343 kilograms of ephedrine. The sentence passed was for 5 years with a non-parole period of 2 years and 6 months. An application for leave to appeal was refused. In that case the ephedrine was concealed in men’s belts. The offender asked a friend to take delivery of a parcel. When the parcel was held up in customs, the offender told the friend to deny knowledge of the parcel. The offender believed, or was aware, that the parcel contained the precursor drug at the time of importation. The offender displayed knowledge of the ephedrine several days later. That offender’s role was important. The offender used an innocent intermediary to add to the seriousness of the offender’s personal criminal activity.

57. There is no case which one could actually call comparable.

Consideration

58. I intend to impose an aggregate sentence. I do so with the knowledge that on 3 April last, the High Court of Australia granted special leave to appeal to that Court from the decision of the NSW Court of Criminal Appeal in McGregor v R [2024] NSWCCA 200. In that case, the Court of Criminal Appeal, by which I am bound, held that an aggregate sentence made pursuant to New South Wales law could be imposed for offences against the law of the Commonwealth. I have read the decision of the Court of Criminal Appeal in that regard and believe it to be highly persuasive as well as being, obviously, binding upon me.

59. The amount of pseudoephedrine combined in each of these importations was relatively small. None of the pseudoephedrine imported made its way into the community. The offender’s role was minor and unsuccessful. It was minor because he merely agreed to act as the receiver of the goods in order to convey them to the person who may have been responsible for the importation for the promise of a reward of $1,000, I assume, per importation. He did not know what the substances were that were being imported. He was reckless because he must have known that there was something unusual going on when he gave false names for addressees and gave one address as his own and another that of his brother. However, that offending is relatively minor in the grand scheme of what can be involved in importing prohibited precursor drugs.

60. Pseudoephedrine, of course, is essential for the manufacture of what the Commonwealth law calls methamphetamine, which the State laws call methylamphetamine, and the form of each drug is usually in the crystalline form commonly known as “ice”.

61. In respect of each of the counts, I intend to impose the same penalty. In my view, the starting point should be a term of imprisonment of 3 years and 4 months. I reduce that by 25% because of the utilitarian value of the plea. Indeed, such is conceded by the Crown in [36] of the Crown’s submissions which are MFI 1. That produces a head sentence of 2 years and 6 months for each of Count 1 and Count 2. I am, as I said, intending to impose an aggregate sentence. Doing the best I can, I reach an aggregate sentence of 3 years imprisonment.

62. The Crown submits that pursuant to s 17A of the Crimes Act1914 (Cth) that the only appropriate sentence is a full-time custodial sentence with either a release on recognisance, or a release on parole, depending upon the extent of the term of imprisonment. The offender, through his counsel, urges upon me the imposition of an Intensive Corrections Order (‘ICO’). I have looked at all the alleged comparable cases closely and in my view, this is at the very bottom of the range of the considered cases. I have determined that in the special circumstances of this case, it is appropriate to impose an ICO.

58. In evidence is a Sentencing Assessment Report made on 25 February 2025 by Ms Nina Rizk. It ought be obvious that, from what I have already said, that she assessed the risk of reoffending as being low. That means the prospects of rehabilitation are extremely good, two sides of the one coin.

59. The report says that if the Court makes a supervised order, Community Corrections will monitor the offender for any indicators of increased risk. The offender will be required to advise of any change to his address or contact details and any significant changes in his circumstances. Community Corrections will receive an automatic notification if he has contact with the NSW Police Force or enters any NSW Correctional Centre. He will not be required to participate in face to face reporting with a Community Corrections officer. However, if an automatic notification or any other information indicates that the risk of offending has increased, Community Corrections will review the current matter and may change its attitude to face to face reporting.

60. The offender has been certified as being suitable to undertake community service work and that is an appropriate matter to bear in mind. I also note that Mr Awit recommends treatment, and I believe it would be appropriate to require the offender to comply with Mr Awit’s treatment plan which is set out in [31] of Mr Awit’s report.

61. Now I have not made any orders yet, but does anyone want any further reasons?

HUGHES: No, your Honour, thank you.

NIAGOS: No, your Honour.

HIS HONOUR: I have asked the representatives of parties if any further reasons are required. I am told that none is so required.

Sentence

67. Samir Ohanian, on the charge that between about 13 August 2023 and 21 August 2023 at Sydney in this State you imported a substance, the substance being a border-controlled precursor, namely pseudoephedrine, and the quantity imported being a commercial quantity are convicted.

68. In respect of the offence that between about 2 August 2023 and 15 September 2023 at Sydney in this State you imported a substance, the substance being a border controlled precursor, namely pseudoephedrine, and the quantity being a commercial quantity, you are convicted.

69. I sentence you to imprisonment for a term of 3 years commencing today, 23 April 2025, to be served by way of intensive correction in the community. Terms of the order are:

1. You must not commit any offence.

2. You must submit to supervision by a Community Corrections officer.

3. You must complete community service work for 500 hours.

You must participate in the treatment program as recommended by Mr Chafic Awit in his report of 11 April 2025 which is Exhibit 1 at [31] of that report and any other program directed by Community Corrections. You are to report to the Community Corrections office at Bankstown within 7 days.

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Decision last updated: 21 October 2025