R (Cth) v [Person A]; R (Cth) v [Person C]; R (Cth) v John Tobin

[2018] NSWSC 1953

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R (Cth) v [Person A]; R (Cth) v [Person C]; R (Cth) v John Tobin [2018] NSWSC 1953

Hearing dates:

3, 4, 6 December 2018

Date of orders:

14 December 2018

Decision date:

14 December 2018

Jurisdiction:

Common Law - Criminal

Before:

Wilson J

Decision:

Person A

For all offences (sequences 2, 7, and 8), pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW): the offender is sentenced to an aggregate term of 22 years and 6 months imprisonment. The non-parole period is 14 years to date from 25 December 2016, expiring on of 24 December 2030. The offender will be first eligible for parole on 24 December 2030. The balance of term is a period of 8 years and 6 months, expiring on 24 June 2039. The indicative sentence for each individual charge is as follows:

Sequence 7, conspiring to import commercial quantities of border controlled drugs: 10 years imprisonment

Sequence 8, conspiring to import commercial quantities of border controlled drugs: 12 years and 6 months imprisonment

Sequence 2, conspiring to import commercial quantities of border controlled drugs: 8 years imprisonment.

Sentencing discount applied to the aggregate sentence: 50% [REDACTED].

Person C

For the NSW offence of Supply Not Less than the Large Commercial Quantity of Prohibited Drug (sequence 4), and taking into account the offences on the Form 1 document: the offender is sentenced to 10 years imprisonment, to date from 25 December 2016 and expiring on 24 December 2026. The non-parole period is a term of imprisonment of 6 years and 6 months, expiring on 24 June 2023. The balance of term is 3 years and 6 months.

For all Commonwealth offences (sequences 2 and 10), pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW): the offender is sentenced to an aggregate term of 16 years imprisonment, to date from 25 December 2017 and expiring on 24 December 2033. The non-parole period is 10 years, expiring on 24 December 2027. The offender will be first eligible for parole on 24 December 2027. The balance of term is a period of 6 years, expiring on 24 December 2033.

The indicative sentence for each individual charge is as follows:

Sequence 2, conspiring to import commercial quantities of border controlled drugs: 6 years imprisonment.

Sequence 10, conspiring to import commercial quantities of border controlled drugs: 13 years imprisonment.

Sentencing discount applied to the aggregate sentence: 40% [REDACTED].

Taken as an overall sentence, inclusive of both sentences imposed, the total term is one of 17 years imprisonment. The earliest release date is 24 December 2027.

John Tobin

For all Commonwealth offences (sequences 2 and 4), pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW): the offender is sentenced to an aggregate term of 12 years imprisonment, to date from 25 December 2016 and expiring on 24 December 2028. The non-parole period is 8 years and 6 months imprisonment, expiring on 24 June 2025. The offender will be first eligible for parole on 24 June 2025. The balance of term is a period of 3 years and 6 months, expiring on 24 December 2028.

The indicative sentence for each individual charge is as follows:

Sequence 2, conspiring to import commercial quantities of border controlled drugs: 6 years and 1 month imprisonment.

Sequence 4, conspiring to import commercial quantities of border controlled drugs: 8 years and 11 months imprisonment.

Catchwords:

CRIME – conspiracy to import commercial quantity of border controlled drugs – multiple offenders – multiple counts – large scale importations planned

Legislation Cited:

Crimes Act 1914

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Code

Drugs (Misuse and Trafficking Act 1986 (NSW)

Cases Cited:

DPP v Beattie [2017] NSWCCA  301

Holyoak v The Queen (1995) 82 A Crim R 502

R v McLean[2001] NSWCCA 58; 121 A Crim 484

Category:

Sentence

Parties:

Regina (Cth)
[Person A] (First Accused)
[Person C] (Second Accused)
John Roland Boyd Tobin (Third Accused)

Representation:

Counsel:

Proceedings 2016/00387504
Mr P McGuire SC (Crown)
Mr P Lange and Mr D McMahon (First Accused)

Proceedings 2016/00387460
Mr P McGuire SC (Crown)
Mr T Anderson (Second Accused)

proceedings 2016/00387456
Mr P McGuire SC (Crown)
Mr I Wallach (Third Accused)

Solicitors:

Proceedings 2016/00387504
Solicitor for Commonwealth Prosecutions (Cth) (Crown)
Eliopoulos Lawyers (First Accused)

Proceedings 2016/00387460
Solicitor for Commonwealth Prosecutions (Cth) (Crown)
Archbold Legal (Second Accused)

Proceedings 2016/00387456
Solicitor for Commonwealth Prosecutions (Cth) (Crown)
Ford Criminal Lawyers (Third Accused)

File Number(s):

2016/00387504; 2016/00387460; 2016/00387456

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: Person A, Person C, and John Tobin each pleaded guilty in the Local Court to a number of charges of conspiracy to import a commercial quantity of a border controlled drug, contrary to ss 11.5(1) and 307.1(1) of the Commonwealth Criminal Code. That is an offence which carries a maximum penalty upon conviction of imprisonment for life, or a fine fixed at 7500 penalty units, or both.

2. Person A pleaded guilty to three such charges, being:

1. A conspiracy to import a commercial quantity of heroin and cocaine between about 14 August 2014 and 31 May 2015 (sequence 7);

2. A conspiracy to import a commercial quantity of cocaine between about 1 September 2015 and 25 December 2016 (sequence 8); and

3. A conspiracy to import a commercial quantity of cocaine between about 1 May 2016 and 5 November 2016 (sequence 2).

3. These offences encompass what have come to be known as the Fijiian Conspiracy, the Eclipse Conspiracy, the Saxon Progress Conspiracy, and the First and Second Dalrymple Conspiracies.

4. Person C entered pleas of guilty to two counts of conspiracy to import a commercial quantity of cocaine contrary to the Criminal Code, and one count of supplying a large commercial quantity of a prohibited drug, being cocaine. The latter offence is a contravention of s 25(2) of the Drugs (Misuse and Trafficking) Act 1986 (NSW) and carries a maximum sentence upon conviction of imprisonment for life, a fine fixed at 5000 penalty units, or both. A standard non-parole period of 15 years imprisonment is specified by the NSW Crimes (Sentencing Procedure) Act 1999.

5. The three charges relate to:

1. A conspiracy to import a commercial quantity of cocaine between about 1 September 2015 and 25 December 2016 (sequence 10);

2. A conspiracy to import a commercial quantity of cocaine between about 1 May 2016 and 5 November 2016 (sequence 2); and

3. An agreement to supply a large commercial quantity of cocaine between about 1 September 2015 and 25 December 2016 (sequence 4).

6. The charges encompass the Saxon Progress Conspiracy and the First and Second Dalrymple Conspiracies. The agreement to supply relates to some of the anticipated product of the conspiracies.

7. Person C has also admitted his guilt in relation to a further five offences, and asked the Court to take those offences into account when he is sentenced for the State offence of supply, pursuant to s 33 of the Crimes (Sentencing Procedure) Act. Those offences are all contrary to the State Drug (Misuse and Trafficking) Act, being three offences of possessing a precursor intended for use in the manufacture of a prohibited drug, contrary to s 24A(1)(a); possessing drug manufacturing apparatus, contrary to s 24A(1)(b); and possessing parts of a mechanical pill press, contrary to s 11B.

8. Mr Tobin entered pleas of guilty to two offences, being:

1. A conspiracy to import a commercial quantity of cocaine between about 1 September 2015 and 25 December 2016 (sequence 4); and

2. A conspiracy to import a commercial quantity of cocaine between about 1 May 2016 and 5 November 2016 (sequence 2).

9. These conspiracies encompass the Saxon Progress Conspiracy, and the First and Second Dalrymple Conspiracies.

10. Thus, Person A alone is to be sentenced with respect to his role in the Fijiian and Eclipse conspiracies. Only Person C is to be sentenced for the supply offence. All three offenders are to be sentenced for their respective roles in the Saxon Progress and First and Second Dalrymple conspiracies. The principle of parity applies to that extent.

11. The offenders were arrested on 25 December 2016 and each has been in custody since that date. They were charged as a consequence of a long running police investigation, designated Operation Okesi. The investigation involved extensive electronic and physical surveillance by police of the offenders and their encrypted communications, and the deployment of at least one undercover operative, over a period of more than 30 months. The investigation targeted the offenders and others who were engaged together in the planning and execution of a number of proposals to bring large amounts of border controlled drugs into Australia.

12. The facts of the crimes are set out in Ex. A.4, a lengthy statement with which each offender agrees. The following account of the facts is drawn from that document. It does not purport to refer to every detail of the offences, but is intended as a reasonably comprehensive summary of it.

Facts of the Offences

Person A (seq. 7): The Fiji and Eclipse Conspiracies

13. This offence, charged against Person A alone, encompasses the Fiji and Eclipse Conspiracies. The Fiji conspiracy occurred between about 14 August 2014 and 13 January 2015, and involved Person A, [REDACTED] Joseph D’Agostino and Frank D’Agostino, and two other [REDACTED] men, Benjamin Sara and Jose Garcia. The events related to the Eclipse Conspiracy commenced at the end of the Fiji conspiracy and continued for a number of months, between about 13 January 2015 and 31 May 2015. Other than Person A, Joseph D’Agostino and Frank D’Agostino were again involved, together [REDACTED] Michael Pirrello and Francesco Pirrello.

The Fiji Conspiracy

14. Person A became involved in the Fiji conspiracy when he was approached by [REDACTED] Joseph D’Agostino about a quantity of drugs that were arriving into Fiji and which would become available for importation into Australia. D’Agostino discussed with the offender Person A using his experience in the commercial fishing industry to arrange for the drugs to be collected in Fiji and brought back to Australia on an ocean-going vessel.

15. Person A met with both Joseph D’Agostino Frank D’Agostino on 14 August 2014 in Double Bay, where they discussed the need for caution in using mobile phones so as to avoid police surveillance, the possible use of floats on the side of a boat as a general method to conceal drugs once they had been collected (an idea later abandoned), fuel costs and crew wages, the possible quantity of drugs; and their respective share from the importation, being 20 per cent of the value of the importation shared between them. The offender queried whether the 20 per cent was based on the wholesale value or the street value of the drug, and they discussed how to ensure that they received payment.

16. The Australian point of contact for the drugs in Fiji was Mr Sara. He and Mr Garcia joined the meeting, and there was further discussion.

17. Later, the offender gave Frank D’Agostino a float for him to give to Mr Garcia to see if it would be suitable for concealing the drugs.

18. At some point Mr Sara confirmed that the drug to be imported was heroin in an amount of 28kg. Mr Garcia advised Joseph D’Agostino and Person A about the importation, as well as indicating that he could use Person A for a larger importation in the future.

19. Person A arranged for a man known as Person B to liaise with Benjamin Sara and travel to Fiji to collect the drugs. Unfortunately for the conspirators, Person B was an undercover police operative.

20. On 15 and 19 September 2014, the offender Person A met with Person B to discuss the plan for Person B to go to Fiji and bring the drugs back by boat. The offender provided updates to Person B as to the plan, including that it would be a trial of a smaller amount of drugs in preparation for a bigger importation; that a vessel was to be chartered near Fiji to collect the drugs under cover of doing scientific research; possible quantities, types, and sources for the drugs; and likely timing. The offender discussed methods of transferring the drugs at sea and bringing them back to shore, mooting the possibility of using Michael Pirrello and Francesco Pirrello who had a boat that they could use. The need to avoid the use of mobile phones to defeat surveillance was referred to. Arrangements for payment were also discussed, with the payment to be 10% of the value of the drug, to be shared equally by the offender Person A with Person B.

21. The offender Person A met with Garcia on 19 September 2014 and with Joseph D’Agostino and Benjamin Sara on 20 October 2014 to discuss the importation. After Mr Sara left, Joseph D’Agostino confirmed with Person A that the importation from Fiji was a trial which, if successful, would allow for a bigger importation on the next occasion. They were to meet with Garcia to provide an update in the next few days. Person A confirmed that he wanted Person B to be on the vessel that brought the drugs back from Fiji.

22. On 21 October 2014, there was a further meeting between Person A and Person B, with the offender providing an update on the planning, based on discussions he had had with Joseph D’Agostino, Garcia and Sara, including:

1. using another vessel to transfer the drugs to shore and possible co-ordinates where that transfer would take place;

2. the timeframe and cost for the charter for the vessel;

3. Person B’s role in going to Fiji to bring the drugs back on the charter vessel;

4. the possible quantities of heroin and pseudoephedrine (70kg and 20kg respectively), and the wholesale price of heroin;

5. possible methods of concealing the drugs when off-loaded;

6. a payment of about $1.5 million for the offender Person A and Person B from this importation; and

7. the first importation being a trial, with the next to be much larger.

23. Person A made enquiries with a boat broker about obtaining a vessel from Fiji that could do survey work in international waters. He later confirmed with the broker that a charter of the vessel ‘The Northern Odyssey’, a Fiji based research vessel, would cost $3,500 per day. This vessel was to be used to bring the drugs back to Australia.

24. On 22 October 2014, the offender Person A met with Joseph D’Agostino at a café in Sydney. The offender Person A was to talk to Person B about going to Fiji to check the product and bring it back. Person A referred to his concern that he would spend the rest of his life in gaol if caught.

25. After a short time, Garcia joined them at the café. He said the drugs would be ready to leave Fiji in mid-November 2014 at the earliest, a date Person A said he could be ready for. The men discussed the charter, the transfer of drugs, the quantity of drugs, Person A sending someone to Fiji to check the drugs, and bringing them back in aluminium scientific suitcases. The offender was said to be the only person needing to know how it would be done. Garcia confirmed he would get the contacts in Fiji ready.

26. Later that day, Person A again spoke with the boat broker to confirm the availability of “The Northern Odyssey” for charter in the last two weeks of November 2014. He told the broker that he would send someone over to become familiar with the boat and the crew and that he was looking to use it every 3-4 months. The offender then met Person B and confirmed that the Fiji importation was proceeding. He said he would organise a meeting with his mate who would watch it all (this being a reference to Mr Garcia). They then discussed the charter arrangements, an equal split in their payment, and a bigger importation that was going to be from near Japan.

27. Between 4 November 2014 and 3 December 2014, the offender and others continued with the organisation of the Fiji importation. Person A met with and called Person B on five occasions to provide updates on the planning. On these occasions they discussed,

1. the timing for Person B to travel to Fiji, and obtaining two Blackberry mobile phones for him;

2. the need for the container ship delivering the drugs to get past Customs in Fiji;

3. although Person A had not raised it with them, the possibility of Michael Pirrello and Francesco Pirrello being available with fishing boats to bring the drugs to shore if they arrived via the charter vessel;

4. the quantity of the drugs, being 100kg in total; and

5. a likely payment of between $800,000 and $1 million once the drugs came ashore.

28. There was discussion of the prospect of buying a boat if the importation was successful and using it for further importations.

29. In this period, the offender Person A continued to negotiate for the charter of the “Northern Odyssey” with the boat broker and he met with Joseph D’Agostino to discuss Person A flying to Fiji, the arrival of the drugs, the charter arrangements, and expenses.

30. On about 4 December 2014, Garcia warned the offender Person A that the Fiji importation was too great a risk for the amount of money, in circumstances where Garcia’s group wanted to use Person A for a separate drug importation involving a ton.

31. Person A conveyed Garcia’s warning to Person A, but said he would continue to help Person A with the charter boat arrangements for the Fiji Importation. He did not want Garcia to know he was still involved as, if the next importation succeeded, they would each receive $5 million. Joseph D’Agostino joined the meeting and was introduced by Person A to Person B. The men discussed Person B going to Fiji to check the product, when the container with the drugs would be released from Customs in Fiji, using Blackberry devices to communicate, and Garcia wanting to save Person A for another importation because he was a “cleanskin”.

32. On 8 December 2014, the offender Person A met with Person B during which Person A informed him of an earlier meeting he had had with Joseph D’Agostino and others. They discussed Person A arranging the charter of the vessel but he said he didn’t want to be too involved because of what he had told Garcia about not participating. Person A asked about money for expenses and the offender gave him $3,000 in cash, to cover the cost of a Blackberry to be obtained from Joseph D’Agostino and Benjamin Sara.

33. Final plans for the Fiji importation occurred between 8 and 13 December 2014. Person A had a further meeting with Joseph D’Agostino and Benjamin Sara, and also communicated via Blackberry with Sara about the importation and Sara’s contacts in Fiji.

34. Person A called an agent for the “Northern Odyssey” to obtain contact details of the person in Fiji responsible for chartering it, made arrangements directly with that person, passed on the contact details to Person A, and provided an update to [REDACTED] Joseph D’Agostino.

35. Person A travelled to Fiji as previously arranged and met the person responsible for the drugs, Ethan Kai. They thereafter used Blackberry devices to communicate about the importation. Kai told Person B that he had a person in Fijian Customs who would take delivery of the container when it arrived.

36. The offender Person A confirmed with Person A that the local agent for the “Northern Odyssey” was expecting Person A to be in contact in Fiji. Person A attended the “Northern Odyssey”, inspected the vessel and met its crew. He spoke with Person A by phone in which they discussed the “Northern Odyssey” taking at least 10 days to travel from Fiji to the coordinates in waters off Australia where the drugs would be transferred to another vessel.

28. On 19 December 2014, Kai told Person A via Blackberry that there may be an issue with the container holding the drugs and that he should return home. On 20 December 2014, Kai’s contact in Fijian Customs was arrested before he could take delivery of a container containing quad bikes and spare parts. Fijian authorities searched the container and found approximately 30kg of heroin concealed within the tyres of one of the quad bikes.

29. The seizure by Fijian authorities consisted of 80 blocks of compressed powder weighing 28.15kg, comprising heroin of between 57.3% and 67% purity, yielding a total pure weight of 18.73kg of heroin. In 2014-2015 in NSW, the median wholesale value of 28.15kg of cocaine was approximately $7.6 million and the median street value was approximately $21.1 million.

30. Between 20 December 2014 and 13 January 2015, there were Blackberry communications between some of the conspirators and Person A about the loss of the shipment. Person A met separately with Joseph D’Agostino and Person A to discuss the failed importation. He told Person A that he had heard that the importation was disrupted within Fijian Customs, and he had promised Garcia that he would cut ties with Joseph D’Agostino. Garcia’s next deal would involve a small freighter leaving in around February.

31. Undeterred by the failure of the Fijian importation, Person A told Person A that he wanted to buy a boat and use it for the next importation involving Garcia’s contacts, but would prefer to collect the drugs in international waters to limit the risk of detection.

The Eclipse Conspiracy

41. The Eclipse Conspiracy was hatched at this time, with relevant events occurring between about 13 January 2015 and 31 May 2015. The conspirators were Person A, [REDACTED] Joseph and Frank D’Agostino and [REDACTED] Michael and Francesco Pirrello. Mr Garcia had decided not to use Person A after the Fijian failure and was not involved.

42. As already noted, during the course of the Fijian conspiracy there had been occasional conversations between Person A and Mr Garcia about a future, larger, importation. On 21 October 2014, in a meeting with Person A to plan the Fijian importation, Person A spoke about another importation that Joseph D’Agostino had mentioned, of about 600kg of cocaine coming from Colombia on board a submarine, with the payment being about 20% of the value of the cargo, or $12 million, to share between the Australian participants.

43. Person A was to arrange the collection at sea, and a satellite phone was to be used to contact the Colombian vessel.

44. The offender Person A asked [REDACTED] Francesco Pirrello, a commercial fisherman, if he was interested in a job collecting drugs from Australian waters using his fishing vessel, the “Kaybeanna”. Francesco spoke to his brother and business partner Michael, and later confirmed that they were interested. He suggested a faster boat, such as one used by a friend of the brothers, the “Eclipse”.

45. Between 13 January 2015 and 22 April 2015, Person A met with Joseph D’Agostino to plan the Eclipse Conspiracy.

46. Joseph D’Agostino gave dates for the arrival of the Colombian submarine in mid-April 2015, and confirmed that the cargo would be 400kg of cocaine, packed in kilogram blocks, double wrapped in plastic to make them waterproof. Person A suggested possible co-ordinates off Sydney where their boat could meet the Colombian vessel, including a location about 200 miles off shore, in international waters, thus limiting the risk of surveillance by Australian authorities. They discussed the arrangements for the boat to collect the drugs and the need for a satellite phone to communicate with the submarine.

47. Person A made inquiries of a satellite phone retailer, asking about a device that would operate around Lord Howe Island and could be moved between boats. He told the D’Agostino brothers that he would buy the phone.

48. He also met with and spoke to Michael Pirrello and Francesco Pirrello, following which they confirmed their agreement to be involved in the importation. He and [REDACTED] Francesco discussed which boat to use and it was agreed that the “Eclipse” was preferable because it was fast and did not need additional crew. They also discussed the use of a satellite phone to contact the Colombian vessel.

49. Person A was again involved, with the offender Person A meeting with him on 13 separate occasions in this period to discuss the planning for the importation. The planning discussions included obtaining appropriate containers in which to store the drugs; using satellite telephones to communicate, buying another phone as necessary; how to transfer the drugs from the Colombian vessel and the role of Michael Pirrello and Francesco Pirrello; and the timing of the meeting with the Colombian vessel, with a likely departure date for it of about 27 or 28 April 2015. At one point the offender told Person A that he had been asked to store the drugs once onshore, but had refused.

50. Various options were canvassed to avoid detection. Person A suggested a cover of a fishing trip and having fish on board; allowing [REDACTED] the “Kaybeanna” to be tracked as usual by the Australian Fisheries Management Authority (“the Fisheries Authority”) so that it would look like a normal trip; sending the boat’s usual crew on a course as an excuse for them to be off the boat; using another boat that was not tracked to collect the drugs from the Colombian vessel; transferring the drugs to the “Kaybeanna” at sea; handling the drugs under a large covered deck on the ”Kaybeanna”, where the handover would take place; being careful in the use of phones; only using Michael Pirrello and Francesco Pirrello and no other crew; and collecting the drugs at night.

51. The anticipated payment was a total share of $3 million which would equate to $1 million for the offender Person A, $1 million for Person A and $1 million for Michael Pirrello and Francesco Pirrello, with a separate share for Joseph D’Agostino. Person A wanted to be paid in product as he did not want to wait for cash.

52. On 25 April 2015, after acquiring a satellite phone for about $3,500, the offender Person A met with the D’Agostino brothers at a hotel in Haymarket. From there he telephoned [REDACTED] Francesco to confirm that the importation was proceeding. In this period, Joseph D’Agostino also provided Person A with the satellite phone number for the Colombian vessel.

53. Between 25 April 2015 and 10 May 2015, the offender Person A used the satellite phone he had purchased to contact the Colombian vessel, including 37 unsuccessful attempts; and a successful call on 27 April 2015, during which Person A, referring to himself as “Bill”, spoke to an unidentified male about the co-ordinates for the rendezvous and their transmission, and the arrival of the vessel within 17 to 25 days.

54. There was a further successful call on 5 May 2015 in which co-ordinates and arrival dates were again discussed.

55. Separately, Person A continued to take steps to arrange the collection of the drugs and provide updates on his communications with the Colombian vessel to other participants, including in meetings with Michael Pirrello and Francesco Pirrello, Joseph D’Agostino, and Person A. Person A also met the owner of the “Eclipse” to arrange to use the boat for a purported fishing survey.

56. On 21 May 2015, Person A met [REDACTED] Francesco in Ulladulla to discuss the importation. He confirmed that the quantity of drugs was 400kg, and that containers would be used to transfer the drugs from the Colombian vessel and store them on the “Eclipse”. The arrangement was for Michael Pirrello, possessed of a satellite phone with which to contact the Colombian vessel, to also be at sea on the “Kaybeanna” to help in case of bad weather. The meeting point would be outside the 200 nautical mile national economic zone, and the operation would take a day and a half.

57. On 25 May 2015, the offender Person A called [REDACTED] Michael about the timing of the importation. He then purchased a number of plastic 60 litre drums, with round screw lids, and spoke to the owner of the “Eclipse” about loading them onto the vessel, purportedly to store water samples from the survey.

58. On 26 May 2015, Person A met with Joseph D’Agostino and discussed the timing of the arrival of the Columbian vessel. On 27 May 2015, the offender called [REDACTED] Francesco to confirm that they would depart from Sydney in the following few days and to have the “Eclipse” available. Separately, the offender had decided to exclude Person A from the importation, so he told him the importation had been delayed by a few weeks due to mechanical issues on the Colombian ship.

59. On 28 May 2015, the offender Person A inspected the “Eclipse” and later met Michael Pirrello and Francesco Pirrello on board the “Kaybeanna” at the Sydney Fish Market. He telephoned [REDACTED] Joseph D’Agostino to ask if he had an update from the Colombian vessel, and made two unsuccessful attempts to contact it using the satellite phone. In the afternoon, he met both Joseph D’Agostino and Frank D’Agostino at a café in Pyrmont, and the satellite phone was used to call the Colombian ship, with the call diverting to voicemail.

60. Person A next confirmed with his nephews Michael Pirrello and Francesco Pirrello that the “Eclipse” would depart the following day. It was agreed that the offender Person A and [REDACTED] Michael would be on the “Eclipse” to try to locate the Colombian vessel and collect the drugs, with Francesco Pirrello on the “Kaybeanna” to assist in transporting the drugs back to shore, or in case of trouble. The offender Person A made a number of further attempts to contact the Colombian vessel using the satellite phone prior to departure, without success.

61. Francesco Pirrello took the “Kaybeanna” with three crew members out to sea that evening to fish, but it was ready to assist the “Eclipse” as required.

62. On the morning of 29 May 2015, the offender Person A met with [REDACTED] Joseph D’Agostino at a café in Pyrmont where they spoke about a number of matters connected with the “Eclipse” importation: bringing the drugs back to the Sydney Fish Market, covering the drugs with fish so that it looked normal; needing a ute to transport the drugs once they arrived; getting around security at the Sydney Fish Market, using a cover-story about the “Kaybeanna” also being at sea but having a mechanical issue necessitating its return; and making sure that Person A did not know what was going on. The offender and [REDACTED] Michael then made further arrangements for their departure, including loading the plastic drums onto the deck of the “Eclipse”.

63. That evening, the offender and Michael Pirrello departed from the Sydney Fish Market on board the “Eclipse” and travelled about 230 nautical miles off the coast. Francesco Pirrello was fishing on the “Kaybeanna” about 120 nautical miles away, and they made contact with each other at least twice during the voyage.

64. On 31 May 2015, after waiting at the agreed rendezvous point and being unable to make contact with the Colombian vessel, the offender Person A and Michael Pirrello returned to Sydney. The offender then used a mobile phone registered in a false name to try to contact [REDACTED] Joseph, without success.

65. The “Kaybeanna” also returned to Sydney.

66. On 1 June 2015, the offender made contact with Joseph D’Agostino and asked him to find out what had gone wrong. There was a further discussion at a meeting between the offender and the D’Agostino brothers on 6 June 2015. It was not known what happened to the Colombian vessel.

Person A (seq.2), Person C (seq. 2) and Tobin (seq. 2): The First Dalrymple Conspiracy

67. The next two charged offences, brought in common against all of the three offenders before the Court, encompass three conspiracies, being the Saxon Progress conspiracy and the First and Second Dalrymple conspiracies. There is a degree of temporal overlap in the charges as particularised.

68. The Saxon Progress conspiracy commenced around 1 September 2015, a few months after the failure of the object of the Eclipse conspiracy, and continued until 31 March 2016. The First Dalrymple conspiracy followed, with relevant events occurring between about 1 May 2016 and 5 November 2016. The Second Dalrymple conspiracy, which forms part of a charge taken together with the Saxon Progress conspiracy, commenced on 1 April 2016 after both the Saxon Progress and the First Dalrymple conspiracies had failed to meet their objects, ending in the arrest of the conspirators on Christmas Day 2016.

69. In an attempt to keep some comprehensible sequence relevant to the charges as particularised, I will turn now to the First Dalrymple conspiracy, even though, chronologically, it followed the Saxon Progress events.

70. The events concerning the First Dalrymple Conspiracy occurred between about 1 May 2016 and 5 November 2016, and involved each of the three offenders, together with [REDACTED] Peter Spero, and two other men, Darren Mohr and Graeme Toa Toa.

71. After the Saxon Progress conspiracy concluded without achieving its object Person A continued in discussions with Person C, who had been involved in the Saxon Progress events, about an importation involving another man who participated in the proposed Saxon Progress import, Jonathon Cooper.

72. Separately, Joseph D’Agostino was in discussion with Person A using Blackberry devices about other importations, including the possibility of an importation from Thailand, where the supplier would be a source known as “Gutterball”. Frank D’Agostino introduced Person A to Darren Mohr, who acted for Gutterball in Australia. Person A subsequently met Darren Mohr on a number of occasions, later communicating via Blackberry with him and Gutterball to plan the further importation, for 500kg of cocaine.

73. Steps in furtherance of the first Dalrymple conspiracy began on 2 May 2016, when Frank D’Agostino introduced the offender Person A to Darren Mohr at a park in Double Bay for an initial discussion about importing drugs on behalf of a Thailand based individual known as “Gutterball”. Person A and Person C had previously arranged that Person C would be in the area of the meeting with Darren Mohr, to check whether he knew Mohr. Person C did not recognise him, and did not join the meeting.

74. A few days later, Gutterball contacted Person A directly via Blackberry to further plan the importation.

75. Other steps were taken to advance the importation plans between 18 May 2016 and 31 August 2016. In that period, Darren Mohr flew to Thailand, returning on 25 June 2016 after about five weeks away. Person A continued to communicate with Gutterball via Blackberry about the importation, and met Darren Mohr when he returned from Thailand.

76. At that meeting, the offender Mr Tobin was initially present, as the representative of the D’Agostino brothers, but Mohr asked him to leave. Darren Mohr did not want Joseph D’Agostino or anyone acting for him to be involved.

77. In this mid-May to end-August 2016 period, the offenders Person A and Person C met on at least 9 occasions, to discuss the planning for the importation, including communications. Person A was able to pass on to, and discuss with, Person C information he had received from Gutterball and Darren Mohr on a number of aspects of the plan.

78. The discussions included a proposal that the shipment from Thailand would arrive on a cargo ship in about October 2016, with Gutterball sending someone to the place of origin of the drugs to confirm the logistics; with consideration given to the location of the off-shore rendezvous, possibly around New Caledonia, New Zealand or Vanuatu.

79. It was noted that the transfer of the drugs needed to occur on the cargo ship’s regular route as it slowed, but did not stop, as stopping could arouse suspicion, with a suitable boat to collect the drugs from the cargo ship. Blackberry devices were to be used for communications.

80. As to payment, which Darren Mohr had said would be in cash, the drugs having been pre-sold, Person A confirmed that he had told Mohr they would keep a portion until paid. There were also discussions as to compensation for previous failed imports.

81. Both Person A and Person C made internet searches to find suitable boats for use on an ongoing basis. They discussed the possibility of purchasing a boat from the United States to avoid the scrutiny of the Fisheries Authority.

82. After flying to Chile on 24 August 2016 to inspect the drugs, Darren Mohr returned to Sydney on 31 August 2016, and met Person A. The meeting occurred on 1 September 2016, in a park in Double Bay. Mohr explained the arrangements he had observed in Chile, including his discussions with the captain of the Chilean vessel, the ship being a cargo vessel that travelled a regular Pacific route; the participation of Chilean authorities who would see the ship departed Chile without incident; and arrangements for the packaging of the drugs in one kilogram “bricks”, wrapped in 40kg bags. The men arranged that, when the product was delivered to shore by Person A, it was to be collected from him. Person A would receive payment 30 days after delivery.

83. Separately, Person A liaised with Gutterball, providing him with his satellite phone number and learning that the drug to be imported was cocaine in a quantity of about 500kg. The rendezvous with the Chilean vessel was set for October.

84. On 2 September 2016, Person A provided an update to Person C as to what he had learned from Mohr and Gutterball about the importation. They also discussed using the “Saxon Progress” again given the imminent arrival of the international ship; and offering the owner of the “Saxon Progress” $1.5 million to use the boat for this and a planned subsequent importation for Jonathon Cooper. Communication with the vessel via satellite phone was discussed. The offenders considered the use of Peter Spero as their representative on the transfer boat, as he was trustworthy and had experience with boats and satellite and radio communications; and paying him a couple of hundred thousand dollars for his involvement.

85. Given the time constraints, Person A and Person C deferred plans to purchase a boat from the United States, and again sought to charter the “Saxon Progress”. On 7 September 2016, Person A met representatives of the ship, offering them $1.5 million for a charter over a four month period, giving the purpose of the charter as the collection of a package at sea. The offer was declined.

86. The following day Person A spoke with Stuart Ayrton, a boat broker, about purchasing the “Dalrymple”, a fishing boat moored in South Australia, for $275,000. He then contacted a man known to him through his fishing work, Murray Wright, to ask him to captain the “Dalrymple” on a voyage to Fiji. Mr Wright was to assemble a crew; the offender Person A planned to also place his representative on board. Person A arranged for a boat surveyor to inspect the “Dalrymple”, and engaged Mr Wright to make the vessel sea-worthy and bring it from Port Lincoln to Sydney. He took all necessary steps in the following days to finalise the purchase, and arrange for repairs and other work to it, including the installation of a satellite phone with capacity for use in areas surrounding Fiji and New Zealand. He also arranged to fly Mr Wright and his crew to South Australia so that they might sail the boat to Sydney.

87. In the period between 10 September 2016 and 1 October 2016 a number of steps were taken to finalise preparations for the importation, with Person A keeping Person C informed of plans, having at least six meetings with him in this period. Person A tested an existing satellite phone (that had been used in the Eclipse and Saxon Progress Conspiracies) to confirm that it was still working, and subsequently used it to contact a representative of the Chilean ship to discuss the impending rendezvous. GPS marks for the rendezvous point, at a location close to the Chilean vessel’s ordinary route, were provided by Person A to Gutterball.

67. The offenders Person A and Person C further discussed enlisting Peter Spero as their representative on board the boat, with Person A considering additionally placing the offender Tobin on the boat. The anticipated payment was the sum of $1 million paid by Gutterball, and 10% of the value of the importation overall. Person A expressed some concerns about securing payment, and enlisted Person C’s aid to keep part of the product. Person C said that he could sell their portion of the drugs if they were not paid (this being relevant to the supply charge against him). Profits were to be shared equally between them. The expectation was that a figure of $8 million would be made from the importation with Gutterball.

68. Arrangements were also made for a place to store the drugs on being landed. Person A said that he had thought about renting a house for a week or two to make everything look normal, and Person C provided him with a print out of rental properties on the Hawkesbury River that he had found. They discussed the use of a satellite phone, and Blackberry devices, with each monitoring an encrypted group chat involving Gutterball and Darren Mohr.

69. In the period between 2 October 2016 and 12 October 2016 further steps were taken to advance the conspiracy. Person C went to Brisbane to enlist [REDACTED] Peter in the plan, arranging for his travel to Sydney. Person A spoke with his Chilean contact as to the date of departure for the Chilean vessel, the date of the rendezvous at sea, and the radio frequency upon which to communicate.

70. Person A took urgent steps to ensure the “Dalrymple” was ready for the voyage, including finalising its purchase (using a loan) and repairs for it, and the delivery of a satellite phone to the ship. Once that was attended to, Mr Wright and his crew sailed on the vessel from Port Lincoln to Sydney.

71. The offender Person A remained in contact with Gutterball and Darren Mohr via Blackberry about the preparations for the departure of the “Dalrymple” from Sydney to meet the Chilean vessel. Gutterball ultimately provided about $45,000 for the fuelling of the “Dalrymple”, paid via Mohr to Person A. Gutterball’s costs overall were in the order of $4 million.

72. There were two meetings between the offenders Person A and Person C in this period, with the two discussing final arrangements for the voyage and taking steps to effect those arrangements. The agreement was for Mr Tobin and Peter Spero to be on board and Person A and Person C took steps respectively to achieve that, briefing the men as to their roles. “Clean” mobile phones were to be used to communicate after the “Dalrymple” returned to Sydney.

73. The four men met at a café to discuss the importation, including communicating with the Chilean ship using the satellite phone on board the “Dalrymple”, and by radio when it got closer. Mr Tobin and Peter Spero were to act as representatives for the offenders Person A and Person C, and it was their task to explain to Mr Wright the true purpose of the voyage once the “Dalrymple” was at sea. Further, they were to ensure one of the two was awake and on watch at all times; use the satellite phone to make regular contact with the Chilean vessel; provide the coordinates for the meeting point to the captain; and, prior to the rendezvous at sea, they were to take control of the “Dalrymple” from the crew; and, ensure the drugs were safely transferred onto the “Dalrymple” from the Chilean ship, using the larger vessel’s lifeboats to make the transfer.

74. On the morning of 13 October 2016, the “Dalrymple” arrived from Port Lincoln at the wharf at the Sydney Fish Markets. That day the offenders Person A, Person C, and Tobin, assisted by Peter Spero, helped Mr Wright and his crew ready the ship for its next voyage. Person A told the captain that the purpose of the voyage was to conduct a survey.

75. At about 1:45 pm that day Darren Mohr arrived at the wharf to inspect the “Dalrymple”. Person A introduced Mohr to Person C and gave him a tour of the boat. The offender Person A and Mohr then met separately in a café where they discussed the final preparations for the importation, and Mohr confirmed that he would provide cash later that day. This occurred in a park in Double Bay at around 3pm when Mohr gave the offender Person A a brown paper bag containing $45,000 in cash. Person A then arranged for fuel for the “Dalrymple”, returning to the wharf to assist Person C and Peter Spero and Mr Tobin make the boat ready.

76. The offender Person A gave Peter Spero the satellite phone number for the Chilean ship, along with an envelope containing the coordinates at which to meet him and Person C at sea after the “Dalrymple” had collected the drugs. A second envelope provided by him to Peter Spero contained payment for Mr Wright and the crew, to be paid during the voyage for its completion.

77. There was a momentary difficulty later that night when Darren Mohr came back to the wharf to express his concern at the presence of Mr Tobin on the boat, he having been previously the representative of the D’Agostino brothers. Person A assured Mohr that the offender Tobin would not be on the boat, although this was contrary to his intention.

78. He introduced him to Peter Spero, and Mohr quizzed Peter Spero as to how he would handle any problems on the boat. He told Peter Spero that the importation was being professionally run by serious people, and asked if he was carrying a gun. Peter Spero was not. There is no suggestion that any of the offenders were armed at any stage.

79. The “Dalrymple” sailed the following morning, 14 October 2016, at about 6:44am. Peter Spero and the offender Tobin were aboard, with the boat captained by Mr Wright and crewed by three hands, one of whom was Graeme Toa Toa.

80. During the voyage, the offender Person A communicated with Peter Spero to confirm he had made contact with the Chilean vessel, urging that either he or Mr Tobin should stay close to the satellite phone. Person A separately communicated with the captain about the progress of the voyage and the coordinates.

81. Between 14 October 2016 and 17 October 2016 the Chilean vessel called the “Dalrymple” and made brief contact with Peter Spero, managing to communicate only one or two words. Other calls diverted to voice mail. Person A in turn kept Darren Mohr and Gutterball up to date with the ship’s progress via Blackberry communications.

82. On 17 October 2016, at sea, Peter Spero told Mr Wright that the true purpose of the voyage was to collect drugs. Mr Wright was offered the amounts previously decided by Person A, being $200,000 for him, and $100,000 for his crew, but Mr Wright refused. Although the offer was increased to $400,000 and then to $800,000, the captain still refused to take part.

83. Mr Wright telephoned the offender Person A to complain about the deception over the purpose of the voyage, stating that the voyage could ruin careers. He said that he was turning the boat around. Person A, in a conversation with Peter Spero, described it as “a big problem”. When the crew were told of the purpose of the voyage, two of the three joined the captain in refusing to be involved, despite offers of substantial sums of money. Graeme Toa Toa was prepared to captain the boat and assist with the drug transfer for a bigger payment than initially offered to him, ultimately agreed as $500,000.

84. The offender Person A instructed Peter Spero that, if the Chilean vessel got in contact, to say that the “Dalrymple” was having engine problems. He told Gutterball and Darren Mohr that the “Dalrymple” was having fuel problems.

85. On 18 October 2016, at about 4am, Peter Spero received a telephone call from the Chilean ship. A heavily accented male voice confirmed the meeting date would be 26 or 27 October 2016 and indicated that he was aware that the “Dalrymple” was having difficulties. Peter Spero reported this contact to the offender Person A. They made arrangements for all of the crew except for Toa Toa to be dropped off at Lord Howe Island. Person A arranged accommodation and flights to Sydney for them. Peter Spero, the offender Tobin, and Toa Toa continued the voyage to meet the Chilean vessel.

86. Between 18 October 2016 and 28 October 2016, the offender Person A kept in contact with both Gutterball, from whom he received the times at which contact should be made with the Chilean vessel, and with the “Dalrymple”, providing to Peter Spero updated co-ordinates for the rendezvous. He met Darren Mohr on one occasion to brief him on the ship’s progress.

87. The “Dalrymple” arrived at the location of the rendezvous in this period but, despite waiting for three days, no contact with the larger ship was made. Person A instructed Peter Spero to call the Chilean vessel hourly, but this was unsuccessful. He assured Peter Spero that Gutterball had said the ship would soon arrive.

88. In Sydney in this period the offenders Person A and Person C met on three occasions to discuss the progress of the voyage, as well as Gutterball’s specifications for the packaging of the drugs in bags or eskies before being collected. Person C purchased 14 large duffle bags for $839 in cash to re-pack the drugs. Their cut from the importation was 10% of the product, or about $10 million. Darren Mohr was to receive 25kg of cocaine.

89. On 29 October 2016, the offender Person A was informed by Gutterball via Blackberry that the Chilean vessel had been intercepted by authorities about four or five days earlier near Tahiti and that the captain could not communicate. Person A called the “Dalrymple” and instructed Peter Spero to return to Sydney. He said that he would work out some compensation with Person C.

90. In the period 29 October 2016 to 3 November 2016, the offenders Person A and Person C met on three occasions. They discussed the interception of the Chilean vessel and the absence of news articles about it, expressing concern as to whether the Chileans had been able to get rid of their communication devices. Person A said that questions would be asked when the “Dalrymple” returned, and decided to say that the boat had been doing seismic research. He was in contact with the “Dalrymple” about its return voyage to Sydney.

91. Person A said that, as they had done the job asked of them by Gutterball, they would require compensation of $400,000 after taking off the $45,000 paid by Mohr for fuel.

92. On 5 November 2016 the “Dalrymple” arrived at the wharf at the Sydney Fish Market. The offenders Person A and Person C were at the dock to meet the boat. Person A told the offender Tobin and Peter Spero and Toa Toa that he would pay compensation. The offender Person C drove Peter Spero to the airport where he boarded a flight to Brisbane. Person C later transferred a few thousand dollars to him, money he received from the offender Person A.

93. On 11 November 2016, the offenders Person A and Person C met to discuss getting the “Dalrymple” ready for the next importation involving Jonathon Cooper. Person A said he had arranged for Stuart Ayrton to work on the boat. He asked the offender Person C to meet Darren Mohr to collect cash as part of their compensation, as he would not be in Sydney. This meeting, arranged by the offender Person A, took place on 17 November 2016 in Double Bay. Person C was given $40,000 in cash. He handed this money to Person A at a meeting at the Sydney Fish Market on 23 November 2016.

Person A (seq. 8), Person C (seq. 10) and Tobin (seq. 4): The Saxon Progress and Second Dalrymple Conspiracies

115. This is the other of the charges involving Person A, Person C, and Mr Tobin as co-offenders, and encompasses a conspiracy to import drugs using a vessel known as the “Saxon Progress”, and a further conspiracy to import drugs that relates to the second voyage of the “Dalrymple”. As has already been noted, the “Saxon Progress” voyage pre-dated the first voyage of the “Dalrymple”, whilst the conspiracy with which it has been joined, the second “Dalrymple”, was the last of the plans to import border controlled drugs prior to the intervention of the authorities.

The Saxon Progress Conspiracy

116. The events concerning the “Saxon Progress” conspiracy occurred between about 1 September 2015 and 31 March 2016 and, other than the three offenders, involved the D’Agostino brothers, Jonathon Cooper, Richard Lipton, James Collins, and Stuart Ayrton. This was chronologically the first of the voyages in which the offenders Person C and Tobin were involved; it was the third for the offender Person A.

117. The “Saxon Progress” conspiracy began about three months after the “Eclipse” conspiracy ended.

118. After the Eclipse voyage, the offender Person A had continued to discuss with Joseph D’Agostino the possibility of further attempts to import drugs, suggesting a larger boat after his experience at sea on the “Eclipse”. After Joseph D’Agostino went into hiding after failing to appear for sentence for a commercial quantity supply offence, he had his brother Frank provide the offender Person A with a Blackberry device so that they could continue direct communications about the proposed importation.

119. The offender Person A subsequently made initial contact with James Collins, the captain of a Tasmanian based vessel known as the “Saxon Progress”, with a view to using it for a future importation. He told Collins that he had a confidential proposal for a charter which Collins should not mention to anyone.

120. Separately, Joseph D’Agostino told an associate with a criminal past, Richard Lipton, about the potential for drugs to be imported into Australia using fishing vessels. Lipton in turn conveyed this information to an associate of his, the offender Person C, asking if he knew anyone who could secure drugs internationally. The offender Person C spoke with Jonathon Cooper, an associate from the security industry, who said he had contacts overseas who could send drugs to be collected at sea.

121. Jonathon Cooper made arrangements for an importation of 610kg of cocaine on a vessel out of Panama, to be collected by an Australian vessel at sea. The offender Person A was to provide the Australian ship.

122. On 5 December 2015, Frank D’Agostino introduced the offenders Person A and Person C to each other at a meeting at a park in Double Bay. Person A said that he could provide a boat to collect drugs at sea, whilst Person C said that his contacts could provide the drugs to be collected from an international ship. They discussed possible coordinates for a meeting for the transfer of what the offender Person C said was likely to be a shipment of cocaine, on either a cargo vessel or a yacht from South America.

123. The offender Person C subsequently met with Joseph D’Agostino and Lipton to confirm his involvement. Steps were taken to facilitate communication by use of Blackberry devices.

124. Between 10 December 2015 and 9 March 2016, there were at least 13 meetings between the offenders Person A and Person C, and Frank D’Agostino separately and jointly, to plan the importation. A number of subjects relevant to the importation were discussed.

125. The offender Person C remained in contact with Jonathon Cooper. The offender Person C provided updates of the progress of the ship to his co-conspirators at these meetings, ultimately confirming that, after some delays, the ship would arrive at the rendevouz point agreed between the offenders Person A and Person C on 15 March 2016. There was a discussion of the requirement of the international vessel for refuelling, in an amount of about 2,000 litres of fuel to be supplied to it.

126. There was discussion as to the quantity of drugs to be brought into the country. Initially, there was discussion of a ton, then 300kg plus a ton across two vessels. Eventually, Person C told Person A and Joseph D’Agostino that 610 kg of drugs would be brought in on one boat. Person C said that the drugs would be packaged in 20kg sealed, waterproof boxes.

127. They discussed using an inflatable boat to transfer the drugs from the international vessel, storing the drugs in bins on the boat depending on the size of the packages. The offender Person C said that his experience was of cubes of approximately 50 cm.

128. The offender Person A was able to confirm that he had a charter boat available in Tasmania. His plan was to make arrangements for the offender Person C to fly to Tasmania to join the boat, with the flight reservation made in a false name, (although it was ultimately Mr Lipton who made these arrangements). The offender Person A provided ongoing updates about the charter arrangements.

129. The discussions ranged over payment for the importation, with Frank D’Agostino initially discussing payment of $1 million each with the offender Person C. Later, in discussions with Jonathon Cooper, Person C confirmed that the group would be paid 20% of the value of the drugs, which would be shared between the D’Agostino brothers, Richard Lipton, and the offenders Person A and Person C.

130. Another subject of discussion was how best to avoid the scrutiny of authorities. The offender Person A suggested that the advised purpose of the voyage should be survey work, as a fishing expedition would attract the presence on board of an observer from the Fisheries Authority. He later confirmed with Collins that fishing equipment would need to be removed from the boat to that end.

131. The best means of communicating between the vessels was considered. The offender Person C thought Wi-Fi enabled Blackberries to communicate from the boat to the international vessel, disabling any GPS units was best, although he observed that the overseas contacts also wanted radio communications between the vessels on agreed frequencies in case the Blackberries failed. The offender Person A confirmed that he would have a satellite phone with Wi-Fi on the boat and would also provide radio frequencies to use, but care was needed, as these would be traceable. It was the offender Person A who later provided a number of suggested frequencies to the offender Person C to pass on to Jonathon Cooper.

132. The offender Person A outlined his plan to transfer the drugs to shore after the collection of the cargo from the international ship, being to sail close to shore before transferring the drugs to a second local boat to land. He and the offender Person C discussed security at different wharves, containers in which to carry the drugs, and the composition of the cargo, being 25 kilogram bales containing 1kilogram blocks.

133. Once on shore the offender Person C said that he would be responsible for delivering the drugs to Cooper (relevant to the supply charge), less the amount retained by Person A and Joseph D’Agostino as payment. Person A later suggested that he would provide vehicles for transport so that he could change the drop-off point at short notice if needed, although this option was not ultimately pursued.

134. The conspirators agreed to meet weekly for updates. With Joseph D’Agostino in hiding, he and his brother were in contact via Lipton and the offender Person C.

135. In that same period between December 2015 and March 2016, the offender Person A made further arrangements to charter the “Saxon Progress” with Jonathon Collins and the boat’s owner, including flying to Hobart on two occasions to meet with Collins there. Collins was offered $1 million to assist in the importation as captain. Later, when Collins could not go to sea due to a medical condition, they agreed to each pay Stuart Ayrton $50,000 to take his place.

136. The offender Person A called Ayrton to ask if he would be interested in being the skipper or engineer on the “Saxon Progress”, saying he would fly him to Sydney to discuss the job in person. He discussed preparing the “Saxon Progress” with Ayrton and later Ayrton was brought to Sydney by Person A, who paid for the flights. In Sydney, the offender Person A told Ayrton they would be meeting another boat at sea and his payment would be $100,000.

137. The offender Person A arranged for a satellite phone for use on the “Saxon Progress” to be linked to the Blackberry used by the offender Person C via wi-fi. He kept Joseph D’Agostino informed throughout by using a Blackberry device.

116. The offender Person C was also taking steps to further the object of the conspiracy in this period, meeting with various co-conspirators for updates, including as to the progress of the international vessel, information he received from Jonathon Cooper. He arranged communication devices for the use of the conspirators, and facilitated contact between them.

117. The offender Tobin was introduced into the conspiracy, with Joseph D’Agostino telling Person A that Mr Tobin was to be on the boat as his representative. Person A was introduced to Mr Tobin by Frank D’Agostino, and it was agreed that Mr Tobin would be on the boat, follow the drugs back to shore, and take his and the D’Agostino brothers’ share, if they were to be paid with a portion of the drugs.

118. Unbeknownst to the conspirators, on 14 February 2016 the South American ship that was to bring the drugs, a Panamanian flagged yacht named the “Vague a L’ame”, was intercepted by the French Navy near French Polynesia. A search of the vessel located approximately 610kg of cocaine (consistent with what Jonathon Cooper had said the amount of drugs would be). The drugs seized from the ‘Vague A L’ame’ were forensically examined by the Australian Federal Police (“AFP”). There were 610 blocks of powder, contained within 46 bales, comprising 610kg of cocaine with a minimum purity of 73.9%, or 449.24kg of pure cocaine. In 2015-2016 in NSW, the median wholesale value of 610kg of cocaine was approximately $129.5 million and the median street value was approximately $182.8 million.

119. The seizure of the ship and its cargo was subsequently reported in local Tahitian media but was not discovered by the Australian participants until a later date. Arrangements thus continued for the voyage of the “Saxon Progress”.

120. On 8 March 2016, the offender Person A flew to Hobart to supervise final preparations for the “Saxon Progress”, with Collins and Ayrton. Person A provided Ayrton with the coordinates at which to meet the international ship, and told him that they would need to provide it with fuel and other supplies. Person A confirmed that the offender Person C also had the coordinates and would take over once they located the yacht.

121. Separately, the offender Person C hired a van in preparation for transport of the drugs to Jonathon Cooper once the “Saxon Progress” returned to port; he then used a one-way ticket in a different name provided by Lipton to fly to Hobart.

122. On 9 March 2016, the offender ordered and paid for additional fuel for the “Saxon Progress” and then picked up the offenders Person C and Tobin from a hotel near Hobart. They went to a local supermarket to buy supplies, and then meet Collins.

123. Between 10 March 2016 and 14 March 2016, and still unaware of the seizure of the “Vague a L’ame”, the offenders Person C and Tobin, together with Stuart Ayrton, departed from Hobart on board the “Saxon Progress”. The offender approached the owner of the “Eclipse” to again charter the boat, which he wanted to use to transfer the drugs from the “Saxon Progress” to shore.

124. Whilst at sea, difficulties with communications were discovered, and discussions between the ship and the offender Person A were had via text messages and satellite phone about how best to resolve them. Person A sought to obtain necessary equipment to that end, on the basis that the “Saxon Progress” would dock in Sydney for repairs. There were also discussions about moving the meeting point outside the Norfolk Island economic zone.

125. The offender Person A kept Frank D’Agostino informed of the problems and developments. They also discussed their expected payment from the importation.

126. At sea, Person C spoke to Stuart Ayrton to confirm that the purpose of the trip was to meet a boat at sea and pick up gear to bring back to shore.

127. The offender Person A communicated with Ayrton about alternatives if the communication issues were not resolved. When the “Saxon Progress” moored briefly in Sydney Harbour, Person A delivered equipment to resolve the communications problem to the boat by water taxi. The problem was not, however, corrected, and it was agreed the “Saxon Progress” would sail for the previously confirmed meeting point and attempt to contact the international vessel when closer, via satellite phone or short wave radio.

128. In this period, the offender Tobin assisted with general duties on board the “Saxon Progress” and acted as the representative of Joseph D’Agostino, ensuring that the importation went as planned and the D’Agostino brothers received their share of any payment, either in drugs or cash.

129. Between 14 March 2016 and 31 March 2016, the voyage initially continued, with Stuart Ayrton on board ship confirming to the offender Person A on shore that the “Saxon Progress” was again on its way and expected to meet the international ship in about three days. Thereafter, Jonathon Cooper learned that the vessel had been intercepted by the French Navy. This information was relayed to the offender Person A through Richard Lipton and then the D’Agostino brothers. Using a public telephone, Frank D’Agostino told the offender Person A to bring the Saxon Progress back as soon as possible.

130. The offender Person A immediately called Stuart Ayrton and told him that everything had been called off and the boat should return to Tasmania. Person A also spoke with the offender Person C to confirm that the importation was not going ahead. This was discussed between him and the offender Tobin.

131. The offender Person A subsequently spoke again with Stuart Ayrton and confirmed that the “Saxon Progress” was returning. He asked Ayrton to pass on his number to Person C without the knowledge of Mr Tobin, intending to communicate with the offender Person C without the involvement of the D’Agostino brothers.

132. The conspirators later had various separate discussions about the failed importation, and compensation for the offender Person A for expenses. The offender Person C communicated with Jonathon Cooper via Blackberry about the latter; Cooper told Person C that he would meet him in a few days to pay cash in compensation for the failed import.

133. The offender Person A later paid about $5,000 to Stuart Ayrton, and told him about the seizure of the yacht by the French Navy. Separately Person A arranged for about $45,000 to be paid to the owners of the “Saxon Progress” for the charter.

134. The offenders Person A and Person C agreed to meet independently of the D’Agostino brothers, and exchanged Blackberry contact details.

135. Undeterred by this setback, Person C discussed with Cooper new potential routes and coordinates for a further importation. He and the offender Person A discussed with Frank D’Agostino this further importation using Jonathon Cooper’s overseas contacts, and the anticipated payment for it, being 10% of the value of the cargo for Person A, and 10% going to the offender Person C, the D’Agostino brothers (and, through them, the offender Tobin), and Richard Lipton.

136. On 11 April 2016, the offenders Person A and Person C met in Berry, NSW, where Person C gave Person A the first instalment of compensation from Jonathon Cooper, being US$18,000 in cash. They discussed further importations, aiming to collect about half a ton of drugs.

The Second Dalrymple Conspiracy, and the arrest of the offenders

159. The events concerning the Second Dalrymple Conspiracy occurred between about 1 April 2016 and 25 December 2016, overlapping with the end of the First Dalrymple Conspiracy, although involving a different group of conspirators, being the offenders Person A, Person C and Tobin, together with Jonathon Cooper, Richard Lipton, Stuart Ayrton, Graeme Toa Toa and Reuben Dawe.

160. Between about 1 April 2016 and 29 August 2016, the offenders Person A and Person C communicated via Blackberry devices and had at least 11 meetings in which they discussed the mistakes of the yacht involved in the Saxon Progress Conspiracy and what could be done differently; and the need to be paid for the expenses of the Saxon Progress prior to undertaking a further importation. There were discussions concerning the vessel to be used in the next import and its size, with consideration given to asking Jonathon Cooper’s syndicate to fund the purchase of a specific vessel in Miami, Florida, for $3 million.

161. As matters progressed, the two discussed updates on the location of the incoming international ship and how long it would take to arrive off Australian waters. They discussed the crew to be on board the vessel used to meet the international ship and take possession of the drugs, and the importance of not nominating boat or crew until a few weeks before the voyage in case of checks made by the Fisheries Authority. The route of the international ship and the rendezvous with the local boat was a further subject of discussion and planning, with Person C as a conduit between Jonathon Cooper and the offender Person A in deciding possible locations.

162. The quantity of drugs to be collected from the international ship was discussed as being about 700kg, with the offender Person C confirming that Jonathon Cooper would pay 20% of the drug value, estimated at $3 - $4 million per 100kg. Plans and suggestions were made for different methods of concealing and transferring the drugs, such as putting the substance in the water with a satellite tracker.

163. The offender Person C told the offender Person A that his contacts could provide a money laundering service for Person A, at a cost of 10% of the sum.

164. The men discussed the possibility of importing one or two tons, once a year, with the potential profit of continuing to work with Cooper’s group put at $80 million. They also discussed another importation involving a Greek group that Joseph D’Agostino had suggested to Joseph Person A, a group on the West Coast known to him through the involvement of the offender Tobin.

165. During at least six of the meetings between the offenders Person A and Person C, Person C passed on payment he had obtained from Cooper to Person A for Person A’s expenses from the previous “Saxon Progress” importation and costs for the present importation. The funds amounted to about $120,000. Person C kept the D’Agostino brothers and Richard Lipton informed of the compensation he had paid to Person A on Cooper’s behalf.

166. Between about 30 April 2016 and 24 September 2016, Person C had at least 13 meetings with Richard Lipton in which they discussed:

1. liability for the failed Saxon Progress Conspiracy and who would pay Person A’s costs;

2. updates on the location and timing of the incoming boat, which Person C received from Cooper;

3. updates on Cooper and a representative of the international syndicate inspecting the local boat;

4. their share of the profits, including confirmation that the D’Agostino brothers would be paid despite no longer being directly involved in the planning for the importation; and

5. the need to be cautious and use different methods of secure communications.

167. The offender Person C discussed with Lipton providing him a portion of the drugs after they had arrived, for him to sell. Person C was aware that the offender Person A needed him and Lipton to distribute his share of the drugs. The offender Person C was confident of moving a few kilograms but needed Lipton’s assistance to sell the full share of the payment in a short time frame. They discussed other potential drug supply opportunities, wholesale and retail prices of cocaine in the market, and when to organise buyers for the drugs they would sell.

168. The offender Person C discussed with Richard Lipton that, should payment for the importation be in drugs rather than cash, Lipton would sell the shares of the offenders Person A and Person C, at least 50kg of cocaine, through his contacts. (This is all relevant to the supply charge.)

169. Person C also told Lipton that he was storing material for making drugs for another person and was interested in Lipton selling it for him. He mentioned a broken pill-press, 15 litres of hydroiodic acid and 10 litres of hypophosphorous acid, the chemicals being precursors used to manufacture methamphetamines. He was asked by Lipton to provide a list of the material. (This is relevant to the charges against Person C on the Form 1 document.)

170. Jonathon Cooper had arranged with the offender Person C for an overseas representative of the drug syndicate to meet him and Person A to inspect the vessel they were to use for the transfer. A meeting between them, Cooper, and the syndicate member, Farid Mhennaoui, was arranged for 4 August 2016 at the Sydney Fish Market.

171. At the meeting the offender Person C introduced Jonathon Cooper to the offender Person A; Farid Mhennaoui introduced himself as “Carlos”. The group spoke in a café and then, having not at this time purchased the “Dalrymple”, Person A showed them his nephews’ boat, the “Kaybeanna”.

172. Afterwards, during a car trip, Cooper, Mhennaoui, and the offender Person A discussed future plans: the areas that Person A could operate in, timeframes for organising a vessel, and using a wood-chip business Person A was interested in as a cover for future importations. Person A later passed on to Person C, who had not been present, the details of the discussion.

173. At the request of Joseph D’Agostino the offender Person A introduced him to Cooper and Mhennaoui, as well as representatives of the Greek group that were interested in a separate importation involving Joseph D’Agostino and Mr Tobin (which did not ultimately proceed).

174. On 5 August 2016, the offender Person C confirmed via Blackberry with Cooper that Mhennaoui (referred to as “the inspector”) was happy to proceed with the importation. Person C also met with Lipton and later Person A.

175. A vessel had now to be found to be used in the importation, resulting eventually in the acquisition of the Dalrymple, already considered in the context of the First Dalrymple conspiracy. Between 5 August 2016 and 30 August 2016, the offenders Person A and Person C took various steps to purchase a large twin hulled ocean going vessel, the “Rogue”, berthed in Miami, and having a 7000 mile range and space under the hulls in which to conceal drugs, which Person A considered suitable for their purposes. The purchase price was about A$3 million. Person A gave Person C a folder of information about the “Rogue” to pass on to Cooper, in the hope his syndicate would fund the purchase. Cooper indicated that his group was interested but he needed the approval of others.

176. In the meantime, Person A had a number of telephone conversations with a boat broker about purchasing the “Rogue”, indicating that he would organise inspection and survey reports. He spoke to Stuart Ayrton about travelling to the United States to inspect the ship. The planned purchase was, however, deferred, as Cooper’s syndicate was only prepared to fund it after the current importation succeeded.

177. Around early September 2016 Joseph D’Agostino was arrested on the outstanding warrant and remanded in custody. Following that, Jonathon Cooper provided new Blackberry devices to Person C for him and Person A to use to communicate about the importation. The Blackberries operated as part of a closed chat group that involved the three Australian based men, and two overseas representatives of the syndicate.

178. The offenders Person A and Person C expected to be paid about $16 million for the importation with Cooper.

179. In early September 2016, the Dalrymple was purchased by the offender Person A, and it was used in the first of the like named conspiracies.

180. With preparations at this stage continuing for both voyages, between 8 October 2016 and 3 December 2016, the offenders Person A and Person C had a number of meetings to finalise preparations for the ship for the second voyage, involving Jonathon Cooper’s group.

181. The international ship, a sailing vessel, was expected to arrive in 35-45 days. Crew for the local ship was to include Stuart Ayrton and Graeme Toa Toa, and the offenders discussed payments to them. The offender Person A later met with the offender Tobin, and confirmed that Tobin would be on the boat as a representative of the D’Agostino brothers, as they had originally introduced Person A to Person C and would thus receive a cut of the money made.

182. The offender Person A thought Cooper might fund the purchase of a rigid hulled inflatable boat at a cost of about $50,000 to be used for the transfer at sea of up to half a ton of drugs, and then for conveying the drugs to shore. Tests of such a boat would be necessary to ensure it had enough speed and power for the work. Other equipment would also be necessary, including maps and a plotter, a four-wheel drive vehicle to transport the drugs, and night-vision equipment, which Cooper insisted was to be on board the transfer vessel.

183. The offender Person A hired a house on the Hawkesbury River that had a private boat ramp for the use of the conspirators. He used his credit card, something he told Person C he had wanted to avoid.

184. On 5 November 2016 and again on 19 November 2016, the offender Person C met with Richard Lipton and told him that he and Mr Tobin would be on board the local ship. He said that he would deliver the separate portion which was his and Person A’s payment to Lipton about two weeks later, for Lipton to sell (this being relevant to the supply charge).

185. Person C complained about doing everything, including being involved in the planning, picking up items in preparation for the trip, going out to sea to collect the drugs, and then also being responsible for transporting them to Cooper.

186. On 20 November 2016, the offender Person C visited the “Dalrymple” at the Sydney Fish Market, where he met the offender Tobin. They spoke in a café about the importation. Mr Tobin wanted to know what his share would be for participating in the importation, and was told by Person C that he would receive either 10kg of cocaine or the equivalent in cash, depending on how payment was received. Mr Tobin agreed to that. They discussed the failure of the plan for the “Saxon Progress”, for which Tobin had not been paid.

187. The plan to purchase an inflatable boat was progressing, with Cooper agreeing to provide $50,000, which he gave to Person C, who passed it on to Person A. On 25 October 2016, Person A made enquiries with a boat store about purchasing an inflatable boat, and gave the information he received to the offender Person C. Person C inspected the boat the following day and confirmed to Person A that it was suitable. Person C ordered the inflatable boat and paid a deposit of $10,000 using some of the money that Cooper had provided through him to Person A.

188. The offender Person C later transferred the remainder of the purchase price over a number of days, in bank deposits of less than $10,000, to avoid the requirement for identification. He had a tow-bar fitted to his utility to transport the inflatable boat and dropped off tyres at the “Dalrymple” to be used as supports for the boat, as well as obtaining other items in preparation for the voyage, including 12 more duffle bags to hold the drugs, for which he provided receipts to Person A.

189. Between 6 November 2016 and 2 December 2016, the three offenders, together with Graeme Toa Toa and Stuart Ayrton, attended to the final preparations for the voyage. Person A arranged for Mr Dawe to travel to Sydney to work for him. He spoke on multiple occasions with Toa Toa and Ayrton to arrange for them to prepare the “Dalrymple” for departure, and agreed to pay Toa Toa $1 million to be the captain on the voyage. Separately, he agreed to pay Ayrton $1.5 million to be in overall charge of the boat. The offender Person C attended the “Dalrymple” where she was docked at Sydney Fish Market on a number of occasions to pay Ayrton and Toa Toa cash wages for their work on the boat, on Person A’s behalf. Separately, Person A made a further payment of $5,000 to Ayrton for his role in the preparations. The offender Tobin was also in contact with Toa Toa on behalf of the offenders Person A and Person C about payments.

363. The quantity involved in the supply is substantial: 610kg from the Saxon Progress, 10% of the cargo from the First Dalrymple conspiracy, and about 50 kg from the Second, in circumstances where the large commercial quantity of cocaine pursuant to Schedule 1 of the Drug (Misuse and Trafficking) Act is 1 kilogram.

364. The only feature of this offence that brings it below an offence at the top of the range is the fact that the offender went no further than agreeing to supply the drug, without in fact supplying it. Whilst an agreement to supply is caught by the broad definition of supply set out in s 3 of that Act, it is less objectively grave than an actual supply of the same amount. However, it must be noted that the only thing that prevented the offender from doing that which he had agreed to do was the intervention of authorities.

365. Overall, the offender’s culpability is high, although falling short of that of Person A for those offences charged in common, in that Person A had a more significant managerial and oversight role than did Person C. Whilst I accept that the offender’s deep depression and sense of despair prior to entering the conspiracies did have an adverse impact on his capacity to exercise sound judgment, and thus has some mitigating impact on his criminality, the extended nature of these conspiracies dictates that the level of mitigation cannot be great. These were not impulsive decisions quickly made and quickly carried out; the offender was involved in these events over a period of about 15 months. Depression cannot explain his continuing willingness over that extended period to involve himself in serious crime, and the increased role he played over time. That is attributable to a desire for financial gain.

John Tobin

380. Of the three offenders the gravity of the crimes committed by John Tobin is the lowest. Mr Tobin was involved in three of the conspiracies, reflected by two offences.

381. The offence charged as sequence 2 reflects the First Dalrymple conspiracy.

382. This offender, like Person A and Person C, involved himself in an agreement with his co-conspirators to import a large quantity of cocaine. Whilst the offender may not have been aware of the precise amount of cocaine involved, being an expected 500kg shipment, I have concluded that he was aware that a large quantity of drugs was involved. He could not have failed to notice the use of expensive equipment such as a large ocean-going vessel and sophisticated communications devices. That, together with the number of people involved, was a clear indication that this was a significant importation; the offender must have known that in a general sense, and agreed to participate on that basis.

383. Knowing that, he stood ready to meet with Person A and Person C on behalf of Joseph D’Agostino; he assisted with the preparations to ready the Dalrymple for sail; he went aboard for the voyage to meet the international vessel, to protect the interests of Joseph D’Agostino, and render any assistance needed during the voyage; and, with Peter Spero, he negotiated with the crew after the illegal purpose of the voyage was made known to them. Thereafter, the offender facilitated attempts on board the Dalrymple to contact the international vessel, and he kept Person A updated as to events.

384. He agreed to be involved because of an expectation of receiving payment, in either cash or cocaine. The evidence does not disclose the extent of the payment promised to or expected by Mr Tobin. I am satisfied that it would have been a relatively significant amount in either money or drugs, but a substantially lower payment than Person A, Person C, or the D’Agostino brothers anticipated receiving.

385. Whilst he had no role in the overall planning and management of the intended importation, and did not act independently of the D’Agostino brothers, the offender was their trusted representative on board the Dalrymple, with sufficient authority to take necessary steps, such as negotiating with the unwilling crew, to effect the object of the conspiracy. His role was necessary to the furtherance of the conspiracy, if at a much lower level than either Person A or Person C.

386. The offence charged as sequence 4 comprehends the Saxon Progress and the Second Dalrymple conspiracy.

387. The offender was a participant in the Saxon Progress agreement with his co-offenders and others to import some 610kg of cocaine via transfer on the open ocean. As representative of the D’Agostino brothers, the offender assisted in readying the ship for departure, and acted on board as crew as required. His overall role was to ensure that the interests of the D’Agostinos were protected.

388. Unlike his co-offenders, the offender was not as knowledgeable about the details of the shipment, although I have concluded that he was aware that a large scale importation was involved. He knew through his involvement in it of the sophisticated nature of the importation, utilising as it did numerous individuals, a large and expensive ocean going vessel, and complex communications system. All of those features pointed to a significant importation and the offender could not have been as ignorant of that as he claimed in his evidence to the Court.

389. With that knowledge the offender was to ensure that the interests of the D’Agostino brothers were protected during the importation, by retaining on their behalf an amount of the drugs if necessary.

390. The Second Dalrymple conspiracy involved the offender’s agreement to participate in acts intended to achieve the object of the conspiracy, being to import a large amount of cocaine. Again, although the offender said in oral evidence he was not aware of the quantity of drugs involved (being 500kg) I am satisfied to the requisite standard that he understood that the importation was for a large amount of cocaine. It would be impossible for him to protect the interests of the D’Agostino brothers if he had no idea of the amount of drugs involved.

391. The offender assisted with readying the Dalrymple for embarkation; gave such assistance as necessary on board the boat during its voyage; and aided with the physical transfer of the drugs onto the Dalrymple at sea. He was again to protect the interests of the D’Agostino brothers, including by retaining a share of the drugs as payment on their behalf if necessary.

392. He materially contributed to the conspiracy, albeit in a role where he had no authority over the events, and no capacity to act independently, rather, acting at the behest of others.

393. Whilst his initial impulse to participate may have rested in part on his strong friendship with Joseph D’Agostino, and his loyalty to him, I do not accept that that impulse was born of “blind loyalty” as the offender asserted in his evidence before the Court. The offender had not seen Joseph D’Agostino for some years prior to these events. It is very unlikely that he would take the considerable risks involved in importing drugs into Australia out of mere loyalty to a man he had not seen in many years. It is far more likely that the offender, as a heavy user of cocaine who was already involved in the trade in illicit drugs in Queensland, saw the proposed importations as an opportunity to gain not insignificant amounts of money, or drugs, or both.

394. Joseph D’Agostino was in custody at the time of the last of the relevant events and could not have profited directly from the Second Dalrymple importation. The offender continued to participate nevertheless. His motivation was principally the desire for drugs and money.

395. Nevertheless, the offender’s culpability is much lower than that of Person A and Person C, and came about at least in part because of his own addiction. Although drug addiction cannot mitigate crime (other than in rare circumstances that do not apply here), it does give some context to the offender’s participation in these events.

Consequences

396. The damage inflicted upon the community, had the drugs intended to be imported into the country in fact reached and been distributed upon our shores, would have been dramatic. The courts daily see the consequences for individuals and families of illicit drugs: descent into criminality is typical; the fracturing of relationships common; and adverse impact upon health and well-being universal, with death not uncommon. The community as a whole suffers greatly. Illegal drugs are frequently referred to as a scourge on the community, and the description is deserved.

397. All of the offenders were prepared to involve themselves in schemes that, ultimately, would have contributed to this damage, Person C additionally by agreeing to take an active role in the distribution of the drugs.

398. Fortunately, the authorities were alive to the offender’s crimes, and there was no realistic possibility that these drugs would ever be distributed, but that positive feature is not attributable to the offenders. These were schemes of high criminality and great moral turpitude.

Plea of guilty

399. Each offender entered a plea of guilty in the Local Court to the offences charged against him.

400. With respect to the State offence charged against Person C, it is appropriate that the sentence to be imposed upon him is reduced upon the sentence that would otherwise have been imposed. The quantification of the discount will be considered when I turn to the issue of assistance to the authorities.

401. With respect to the Commonwealth offences against all three offenders, the Crown does not dispute and the Court accepts that, notwithstanding the overwhelming nature of the case against the offenders, the pleas entered by the offenders demonstrate contrition, acceptance of responsibility, and a willingness to facilitate the course of justice. The overall value of the pleas to the justice system, inhering in them being those features I have just mentioned, should be acknowledged by a discount on the sentences that would otherwise have been imposed. [REDACTED].

402. For Mr Tobin, the discount on the sentence that would otherwise have been imposed should be in the order of 25%.

[REDACTED]

403. [REDACTED].

404. [REDACTED].

405. [REDACTED].

406. [REDACTED].

407. [REDACTED].

408. [REDACTED].

409. [REDACTED].

410. [REDACTED].

411. [REDACTED].

412. [REDACTED].

413. [REDACTED].

414. [REDACTED].

Antecedents – Good character

415. Person A is a person of former good character. To a not insignificant extent, his good character made him attractive as a co-conspirator, since his activities were less likely to arouse suspicion, and he was less likely to be under surveillance by reason of it. That feature of the matter detracts from the mitigating effect of good character to some extent, although it does not extinguish it altogether. Person A is entitled to call in aid to some extent his long years of honest participation in society.

416. Person C has one relevant conviction, although the time that has passed since that offending reduces its significance greatly. The Court would have been able to conclude that the lapse of over a decade since that time demonstrated Person C’s capacity to lead a law abiding life, but for the evidence that establishes that he had operated (in a small way) as a supplier of prohibited drugs in at least some of those years.

417. His criminal record, but more particularly, his acknowledged recent supply activity is such as to deny him the degree of leniency that would otherwise have been allowed.

418. Mr Tobin has a criminal history of sporadic episodes of criminality separated by periods when he has not been before the courts. On his own admission however, much of his adult life has been tainted by illicit drug use, and thus ongoing criminality. There is as a consequence no basis to extend him leniency in that regard. The Queensland matters are of more direct relevance: they contribute to a conclusion that the offender had a continuing attitude of disobedience to drug prohibition laws, giving greater prominence to issues of specific deterrence.

Age and Health

419. Person A is now aged 65 years of age. Person C is aged 58 years. Mr Tobin is aged 59 years.

420. As older offenders facing sentence for offences which carry life imprisonment as a maximum penalty, the sentences imposed upon each may mean that each spends a significant part or even most, of the years left to them in prison. At an early stage of his offending, Person A, not without some foundation, speculated that, were he to be caught, he would spend the rest of his life in prison. Had it not been for the assistance he provided, and his early plea, that would have been a likely outcome.

421. Age, as has been observed, however, is not a licence to commit crime: R v Holyoak(1995) 82 A Crim R 502 at 507. Whilst the age of the offenders needs to be taken into account, this cannot give rise to an expectation that the elderly can offend with relative impunity: R v McLean[2001] NSWCCA 58; 121 A Crim 484 at 492 [44]. The sentence imposed must remain one that is commensurate with the seriousness of the criminality involved, and is one that accords with the general moral sense of the community: R v McLean at 492 [45]. Those principles must be applied, however, in circumstances where the respective ages of the offenders mean that even relatively moderate sentences (relative to the grave criminality of the crimes) would in effect represent life sentences. Some moderation is necessary.

422. However, it is appropriate to have regard to the fact that, as older men in a prison environment, the offenders are all more likely to experience health issues than younger men, and all will find a prison environment more onerous as time passes, and strength declines. All will be increasingly vulnerable in prison.

423. Additionally, each of the offenders has health concerns. Person A suffers with diabetes and psoriasis, and has a history of back injury. He has recently experienced gastric and dental issues, and these recent complications together with issues as to his vision remain untreated.

424. Person C requires both knees to be replaced, a procedure which has not been undertaken in the almost two years he has been in custody. His condition was sufficiently serious to lead him to give up full-time work, and I accept it is a disabling condition to an extent, and painful.

425. Mr Tobin is dealing with the long term adverse impact of childhood trauma.

426. All three offenders have depression.

427. Ill-health will have an adverse impact for each in their experience of a custodial environment. Although Justice Health must be assumed and expected to provide proper medical care for each offender, I accept that necessary treatment may sometimes be slower in delivery than would be the case for a person in the community.

428. To this extent for each of Person A, Person C and Mr Tobin, sentence must be mitigated.

Deterrence

429. General deterrence must feature in the sentences to be imposed on each offender. It is a very significant feature, because of the serious social harm done to the community by offences of importing drugs, and supplying drugs, together with the difficulty of detecting and preventing importations. Sentences imposed must act as a deterrent to others who might, like the offenders, be tempted by the money to be made from crimes like these.

430. Specific deterrence is also a consideration, but one of limited significance in the case of each offender.

Prospects for the future

431. Person A is formerly of good character; he has a solid work history, and supportive family. I accept that he will never again involve himself in crime.

432. His prospects for the future are good.

433. Person C’s prior criminal conduct is limited. He too has a strong employment history and is a qualified tradesman. His sisters and son are supportive. I accept that his experiences over the last two years are such that he would, as he said in evidence, run the other way if asked to participate in drug crime again.

434. His prospects are also good for the future.

435. Whilst Mr Tobin’s circumstances are such that the Court must be rather more guarded as to his future prospects, because of his long standing drug addiction, overall I accept that he has learned a lesson from his incarceration over the last two years. Particularly given that it is likely he will have limited or no access to drugs for some time to come, and is thus likely to lose the immediacy of cravings for drugs, I have concluded that his prospects for the future are reasonable.

436. Age must have some bearing on my conclusion with respect to each man: advancing age is likely to significantly reduce the chances that any of these men will be involved in crime in the future.

Contrition and Remorse

437. Each of the offenders has given evidence of their remorse for their crimes and, as I have already observed, their pleas are some evidence of contrition.

438. Whilst it is likely to be the consequences of having been detected in their crimes that most contributes to feelings of regret, I accept that each is remorseful for his crimes. [REDACTED]. Each expressed considerable shame for their behaviour, and great regret for the impact it has had on their respective families.

Accumulation and Course of Conduct

439. Although these crimes occurred in an overall sense as part of a course of conduct insofar as each offender participated, and there must be a degree of concurrence as a consequence, I do not accept that complete concurrence is appropriate. The importation offences were separate crimes, involving separate conspirators, albeit with a degree of overlap, separate plans, separate acts, and some gaps in time between the offending conduct.

440. Whilst it related to the products of the conspiracies, and was confined to supplying the drugs to a co-conspirator, the supply offence against Person C (taking into account as it does the Form 1 offences) involves separate criminality, the essence of which was the offender’s willingness to take steps to further the distribution of these drugs into the community. That too requires a degree of accumulation of sentence.

441. The principle of totality must operate in the circumstances of this matter to both reduce the sentences that would otherwise apply to the individual offences, and to increase the level of concurrency, to avoid a wholly crushing sentence, and render meaningless the discounts applied in recognition of the pleas of guilty and assistance to authorities.

Parity

442. I have considered the differing roles of the offenders and their differing criminality. The parity principle is relevant to the sentences to be imposed with respect to the offences common to all three, and I have taken it into account.

The Sentences to be Imposed

443. The offenders are convicted of the offences charged against each.

444. Bearing in mind that there are multiple offences to be dealt with, and applying the decision of the NSW Court of Criminal Appeal in DPP v Beattie [2017] NSWCCA  301 at [141]–[146], I have decided to impose aggregate sentences with respect to the Commonwealth offences.

Person A

445. For all offences (sequences 2, 7, and 8), pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW): the offender is sentenced to an aggregate term of 22 years and 6 months imprisonment. The non-parole period is 14 years to date from 25 December 2016, expiring on of 24 December 2030. The offender will be first eligible for parole on 24 December 2030. The balance of term is a period of 8 years and 6 months, expiring on 24 June 2039. The indicative sentence for each individual charge is as follows:

446. Sequence 7, conspiring to import commercial quantities of border controlled drugs: 10 years imprisonment

447. Sequence 8, conspiring to import commercial quantities of border controlled drugs: 12 years and 6 months imprisonment

448. Sequence 2, conspiring to import commercial quantities of border controlled drugs: 8 years imprisonment.

449. Sentencing discount applied to the aggregate sentence: 50% [REDACTED].

450. [REDACTED].

Person C

451. For the NSW offence of Supply Not Less than the Large Commercial Quantity of Prohibited Drug (sequence 4), and taking into account the offences on the Form 1 document: the offender is sentenced to 10 years imprisonment, to date from 25 December 2016 and expiring on 24 December 2026. The non-parole period is a term of imprisonment of 6 years and 6 months, expiring on 24 June 2023. The balance of term is 3 years and 6 months.

451. For all Commonwealth offences (sequences 2 and 10), pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW): the offender is sentenced to an aggregate term of 16 years imprisonment, to date from 25 December 2017 and expiring on 24 December 2033. The non-parole period is 10 years, expiring on 24 December 2027. The offender will be first eligible for parole on 24 December 2027. The balance of term is a period of 6 years, expiring on 24 December 2033.

452. The indicative sentence for each individual charge is as follows:

453. Sequence 2, conspiring to import commercial quantities of border controlled drugs: 6 years imprisonment.

454. Sequence 10, conspiring to import commercial quantities of border controlled drugs: 13 years imprisonment.

455. Sentencing discount applied to the aggregate sentence: 40% [REDACTED].

456. Taken as an overall sentence, inclusive of both sentences imposed, the total term is one of 17 years imprisonment. The earliest release date is 24 December 2027.

John Tobin

458. For all Commonwealth offences (sequences 2 and 4), pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW): the offender is sentenced to an aggregate term of 12 years imprisonment, to date from 25 December 2016 and expiring on 24 December 2028. The non-parole period is 8 years and 6 months imprisonment, expiring on 24 June 2025. The offender will be first eligible for parole on 24 June 2025. The balance of term is a period of 3 years and 6 months, expiring on 24 December 2028.

459. The indicative sentence for each individual charge is as follows:

460. Sequence 2, conspiring to import commercial quantities of border controlled drugs: 6 years and 1 month imprisonment.

461. Sequence 4, conspiring to import commercial quantities of border controlled drugs: 8 years and 11 months imprisonment.

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Amendments

07 November 2024 - Typographical amendment to coversheet.

Decision last updated: 07 November 2024