R v Acosta; R v Tran

[2020] NSWDC 662

District Court

New South Wales

Medium Neutral Citation:

R v Acosta; R v Tran [2020] NSWDC 662

Hearing dates:

12 June 2020

Date of orders:

2 July 2020

Decision date:

02 July 2020

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Tran – an overall sentence of 10 years and 7 months imprisonment with a non-parole period of 6 years

Acosta – an overall sentence of 11 years imprisonment with a non-parole period of 7 years

Catchwords:

CRIME — Drug offences — Commonwealth offences — Pre-traffic precursors

CRIME — Money laundering — Dealing with money suspected of being proceeds of crime

CRIME — Firearms offences — Unauthorised use/possession of firearm

Legislation Cited:

Criminal Code Act 1995 (Cth)

Customs Act 1901 (Cth)

Firearms Act 1996 (Cth)

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Xiao v R [2018] NSWCCA 4

R v Pham [2015] HCA 39

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Jeffrey Acosta (Offender)
Quoc Kiem Tran (Offender)

Representation:

Counsel:
Mr I Lloyd QC (Offender – Acosta)
Mr D Randle (Offender – Tran)

Solicitors:
Mr C Triscari (Crown)
Ms R Trinnie (Crown)
Mr M Hempsell (Offender – Acosta)
Mr A Ly (Offender – Tran)

File Number(s):

2017/00193419
2017/00193454

Publication restriction:

Nil

SENTENCE

Introduction

1. HIS HONOUR: The offender Jeffrey Acosta stands to be sentenced having pleaded guilty to the following offences.

Jeffrey Acosta’s Offences

Offence 1

2. That between the 20th of June 2016 and 30th of June 2017 at Sydney and other places, he imported a substance being a border controlled precursor, namely ephedrine in the amount of 1,310 kilograms being a commercial quantity.

3. That is an offence under s 307.11(1) of the Commonwealth’s Criminal Code Act (Criminal Code). The offence has a maximum penalty of 25 years imprisonment.

Offence 2

4. That between the 29th of September 2016 and the 12th of October 2016, at Lansvale, he conveyed tobacco products being 2,900,000 cigarettes, knowing that the goods were imported, with intent to defraud the revenue. That is an offence under s 233BABAD(2) of the Customs Act and has a maximum penalty of 10 years imprisonment.

Offence 3

5. That on the 28th of June 2017 at The Ponds, he possessed a pistol, namely a .38 calibre semi-automatic pistol, not being authorised to do so by a licence or a permit. That is an offence under s 7(1) of the Firearms Act and has a maximum penalty of 14 years imprisonment. There is an applicable standard non-parole period of four years imprisonment.

Offence 4

6. That on the 28th of June 2017 at The Ponds, he possessed a pistol, namely a .357 calibre revolver, not being authorised to do so by a licence or a permit. That too is an offence under s 7(1) of the Firearms Act.

Quoc Kiem Tran’s Offences

7. The offender Quoc Kiem Tran stands to be sentenced having pleaded guilty to the following offences.

Offence 1

8. An offence that between the 20th of June 2016 and the 30th of June 2017 at Sydney and other places, he imported the border controlled precursor, ephedrine. The quantity being 1,310 kilograms being a commercial quantity. I noted the maximum penalty for that offence when outlining Mr Acosta’s offence

Offence 2

9. That on the 12th of October 2016, at Lansvale, he conveyed tobacco products, namely 1.4 million cigarettes, knowing that the goods were imported, with intent to defraud the revenue. That is an offence under s 233BABAD(2) of the Customs Act and has a maximum penalty of 10 years imprisonment.

Offence 3

10. That on the 12th of October 2016 at Lansvale, he dealt with property, namely $375,000 in Australian currency, intending it to become an instrument of crime. That is an offence under s 400.4(1) of the Commonwealth’s Criminal Code and has a maximum penalty of 20 years imprisonment.

Offence 4

11. That on the 28th of June 2017 at Seven Hills and other places, dealt with property, namely $1,433,630 Australian dollars, in circumstances where there are reasonable grounds to suspect that the property is the proceeds of crime. That is an offence under s 193C(1) of the State Crimes Act and has a maximum penalty of five years imprisonment. There is no applicable standard non-parole period.

12. Although the offenders were arraigned before me on an indictment at the commencement of the sentence proceedings, I was informed by the Crown that was because of perceived inadequacies in the drafting of the charges on which they had each been committed. The Crown accepted that they should be considered as persons who had entered their guilty pleas in the Local Court.

The Facts

13. The facts on which the offenders are to be sentenced are agreed and the following is taken from those facts, which are lengthy. An Undercover Police Officer referred to as Mark in the agreed facts in 2016, targeted two men from the New South Wales Riverina and from Canberra, who supplied the Undercover Officer with methyl amphetamine.

14. When the Undercover Officer asked for larger quantities, one of the men said he would put the Undercover in touch with people in Sydney. On the 27th of August 2016, the Undercover Officer Mark, met with a person called Fagan, who sold him an encrypted Blackberry device.

15. Fagan asked the Undercover Officer if he knew anybody who could assist with illegal importations and the Undercover Officer indicated he had a relevant contact. On the 9th of September 2016, the person Fagan spoke with Undercover Officer Mark about introducing a co-accused, Breden Dries, to the person who could assist in the importation of illegal commodities.

16. A meeting then occurred between Undercover Officer Mark and another Undercover Officer called Nasser and Dries. At that meeting, the Undercover Nasser and Dries, conducted negotiations concerning the importation of drugs and the organisation of the clearance of cargos of air and sea freight. Dries at one point told the Undercover Officers that he had three contacts who wanted to facilitate the importation of border controlled drugs into Australia, including 40 to 50 kilograms by air freight.

17. In communications between Dries and the Undercover Officers in September 2016, Dries indicated that the importation would come from China. That there would be one trial shipment and then larger ones. There were messages between Dries and the Undercover Officer Nasser over encrypted Blackberry devices, concerning the payment the Undercover Officer required, to facilitate border clearance of the drug and details concerning the name of the importation company and broker that was to be used.

18. The facts record that Dries and his importation group were responsible for sourcing the drug, completion of all trade forwarding documentation from the originating company and the shipping of the drugs to Australia. Dries informed the Undercover Officer that he would seek advice from his partners as to the payment options in order to facilitate border clearance of the drugs.

19. On the 15th of September 2016, Dries met with the Undercover Officer Nasser and advised him that the import group were concerned about getting drug shipments passed security screening. Dries also advised that the group were involved in the legitimate importation of aquarium related products and negotiated the logistics of an importation, including company name, details and methods to hide the drug.

20. During the period 16 and 27 September 2016, Dries and the Undercover Officer Nasser, discussed the fee for assisting in breaching Australian Border Security control and the Undercover Officer was requested to buy an Australian based company name and broker for use in the importation. On the 21st of September 2016, Dries forwarded to Undercover Officer Nasser, a Blackberry message indicating that the “Asian side”, wanted to import cigarettes as a trial run operation, “To minimise the risk and build trust”.

21. Undercover Officer Nasser advised Dries that he would charge $500,000 in cash to guarantee the safe importation of a container of unlawfully imported cigarettes and had a large quantity of imported Manchester cigarettes on hand in Australia. A tactical decision was made by the police to provide this information to Dries, to deter Dries from pursuing the tobacco importation.

22. On the 24th of September 2016, someone using the username “Mr Empire”, asked Dries to purchase all of the tobacco stocks purportedly held by Undercover Officer Nasser. Ultimately, three million unlawfully imported cigarettes were requested to be delivered in three deliveries for a total price of $750,000.

23. Dries informed Undercover Officer Nasser that he was travelling to China, to check on the drug product prior to importation, after the completion of the cigarette transactions and that his associates would also be travelling to China, to assist in the process. At about 6.15pm on the 27th of September 2016, Undercover Officer Nasser conveyed 10 shippers of Manchester brand cigarettes to a meeting at 76 Hume Highway, Lansvale. Upon arrival, Dries was present in a black Range Rover registered to the offender Mr Acosta’s father.

24. Dries and the Undercover Officer Nasser loaded the cigarettes into a white van occupied by two Asian males which were drove away. Dries paid Undercover Officer Nasser $24,350 in cash, which was short of the agreed price of $25,000. About 9.20am on the 29th of September 2016, Undercover Officer Nasser drove a truck containing 1.4 million cigarettes to 76 The Hume Highway, Lansvale.

25. Dries attended the location with the offender Acosta. The cigarettes were loaded into the rear of a rental truck by Dries, Mr Acosta and another male called Tang. Tang drove that truck away from the location. During the course of that meeting, Dries paid the Undercover Officer Nasser $380,600 in cash. That amount was in payment for the cigarettes and $30,000 was payment for providing an Australian based company and broker. Dries in Blackberry messages confirmed the intention to import the precursor pseudoephedrine.

26. Between the 7th and the 12th of October 2016, Undercover Officer Nasser maintained communication with Dries regarding the supply of unlawfully imported cigarettes. On the morning of the 12th of October 2016, Undercover Officer Nasser attended an industrial complex in Lansvale, as requested by Dries. Dries attended the location in a white Toyota Land Cruiser which contained Mr Acosta. The offender Mr Tran was also present.

27. Dries, Mr Acosta and Mr Tran and another man called Huynh, unloaded 150 shippers of Manchester brand cigarettes from the undercover officer’s truck and placed them into Huynh’s truck. The offender, Mr Tran handed the undercover officer $375,000 in cash and Huynh drove his truck away with the cigarettes. Those facts support the charges against Mr Tran, brought under the Customs Act and s 400.4(1) of the Commonwealth’s Criminal Code.

28. The facts concerning the conveyance of cigarettes between the 29th of September and the 12th of October 2016 support the charge brought against Mr Acosta, under the Customs Act.

29. On the 21st of October 2016, the offenders Mr Acosta and Mr Tran, flew from Sydney to Vietnam and travelled to China on the 25th of October 2016. On 1 November 2016, Dries flew from Sydney to Hong Kong on a one-way ticket. On the 2nd of November 2016, he travelled from Hong Kong by ferry to Macao in China.

30. On the 2nd of November 2016, the offender Smith, which is a pseudonym, flew from Sydney to Shanghai to meet with Dries, Mr Acosta and Mr Tran. Smith flew there to assist in communicating with Chinese nationals involved in supplying ephedrine as he spoke Mandarin. On the 2nd of November 2016, Dries travelled in the company of the offenders, Mr Acosta and Mr Tran, from Macao to Xiamen in China. Their air tickets were booked using Mr Tran’s credit card.

31. Dries continued to communicate with Undercover Officer Nasser to update him on the progress of the importation while he was overseas. On the 13th of November 2016, Smith flew back to Sydney. On the 15th of November 2016, Dries and Mr Tran returned to Australia on the same Vietnam Airlines flight from Ho Chi Minh City. On the 17th of November 2016, Mr Acosta flew back to Sydney from Ho Chi Minh City. He was met at Sydney Airport by Mr Acosta. It was on the trip to China just described that Dries, Mr Acosta, Mr Tran and Smith, organised the importation of 1,310 kilograms of ephedrine with a Chinese exporter.

32. On the afternoon of 18 November 2016, Undercover Officer Nasser met with Dries in a hotel car park at Kellyville Ridge. During that meeting, Dries confirmed that he had organised the importation from China, of one tonne of pseudoephedrine from Xiamen. Dries told the undercover officer that his importation group partners were no longer in China. That one had travelled back with him and the other had arrived back the previous day. The reference by Dries to his group of partners, I find beyond reasonable doubt, is a reference to the offenders Mr Acosta and Mr Tran.

33. During November to mid-December 2016, Dries continued to engage in communications with Undercover Officer Nasser, in relation to the importation. At one point, Dries contacted the undercover officer and requested a copy of his Australian-based company name, to be utilised as the company importing the drug for the completion of freight-forwarding documents in China. They agreed to meet on the 22nd of December 2016, for the documents to be supplied on a USB storage device, as well as in a hard copy.

34. On the 22nd of December 2016, the Undercover Officer Nasser met with Dries in the Penrith area. The undercover officer supplied Dries with a USB storage device, containing a company letterhead and packing lease documents, with the Australian-based importation company details, to be used for the drug importation. A hard copy of the documents was also supplied at the meeting.

35. On the afternoon of 22 December 2016, Mr Acosta attended the offices of Global Marine Imports. He was observed to hand to Mr Tran, possession of the hardcopy documents that Undercover Officer Nasser had earlier supplied to Dries. Mr Acosta and Mr Tran discussed the specifics of the documents that had been provided. Mr Acosta was observed to send messages on a Blackberry device regarding the document details which were forwarded on to Dries and subsequently on to Undercover Officer Nasser. Mr Acosta was using a codename “Uncle.80shorty”.

36. On 3 January 2017, Dries met with Undercover Officer Nasser and supplied him with a USB thumb drive containing a number of documents in English and Mandarin concerning the importation. The documentation listed the total weight of the materials as being 8.75 tonnes, including 1,000 kilograms of “water membrane”, being the substance to be replaced with pseudoephedrine which was to be the subject of the importation. I should note that frequently the facts refer to the drug pseudoephedrine. However, it was the drug ephedrine which was ultimately sought to be imported.

37. The documents were an updated version of the documents the undercover officer had previously supplied to Dries. On 24 January 2017, Dries met with Undercover Officer Nasser and the process of delivery of the drug upon its arrival in Sydney was discussed. On 23 February 2013, Dries attended a meeting in Penrith, with Undercover Officer Mark, concerning the provision of a Blackberry device to another person described as witness M, in the agreed facts.

38. Dries nominated the codename “Uncle.80” being the codename used by Mr Acosta, as someone to contact concerning the logistics of the importation, if Dries could not be contacted. In February and March 2017, Dries contacted Undercover Officer Nasser and advised of difficulties that were occurring in relation to the importation. Undercover Officer Nasser was advised that, “the group” would travel overseas and repack the container with a different cover load of materials.

39. On 24 March 2017, Mr Tran flew from Sydney to Vietnam. On the 30th of March 2017, Mr Acosta flew from Sydney to Vietnam. They flew back into Sydney on the 12th and 24th of August respectively. Undercover Officer Nasser was advised by a Blackberry message that the group had successfully purchased a new cover load for the importation whilst overseas. On the 19th of April 2017, Dries and Mr Tran met at Global Marine Imports and discussed the impending importation and the logistics of drug manufacture. Mr Tran counted bricks of money amounting to $970,000 from a blue backpack.

40. Between 20 and 24 April 2017, the offender Mr Tran made internet inquiries regarding sourcing large quantities of iodine. Mr Tran used his mobile phone to order two to three hundred kilograms of iodine, using his company name, Global Marine Imports, from a chemical company called Aqua Sonic. Iodine is used in the manufacture of methyl amphetamine.

41. On the afternoon of 15 June 2017, the offenders Mr Tran and Mr Acosta, discussed the logo, “Absolute Aquariums”. Mr Tran asked Mr Acosta to conduct an internet search for the logo and Mr Acosta confirmed that he had found it. Absolute Aquarium Product Pty Limited was the co-signing company that was used for the products contained on an Evergreen Shipping vessel which ultimately included the ephedrine that was imported.

42. On the evening of 15 June 2017, the offenders Mr Acosta and Mr Tran, discussed creating a fake identity, for the purpose of executing the consignee documentation. Mr Acosta spoke about having a fake passport created through a third party. A forged consignee note authorising the transfer of the imported goods to Bell Total Logistics Pty Limited, with the signature Phillip Bui, company director at Absolute Aquarium Pty Limited, was subsequently sent to Undercover Officer Nasser by email.

43. The note was addressed to Evergreen Shipping Agency (Australia) Pty Limited and contained a forged signature. Evergreen Shipping Agency was the company that ultimately brought the shipping container, containing the ephedrine from China. On the 16th of June 2017, Mr Tran inspected a photocopy of a fake licence in the name of Phillip Bui.

44. On the 24th of June 2017, the Australian Border Force seized a particular container at a sea port in Sydney. The container was identified as containing items consistent with the falsified documentation, being 160 bags of coral and aquarium stones, 50 bags of ceramic rings, five cylinders with attached pump, 20 mattresses containing smaller mattress pieces, 216 20 litre buckets of sea salt; 120 of the buckets upon examination, were found to contain the border controlled precursor, ephedrine.

45. The gross weight including the packaging was 1,424.4 kilograms. It had a nett weight of 1,310 kilograms and was 80 per cent pure. I note the applicable commercial quantity for ephedrine was 1.2 kilograms. On 25 June 2017, Mr Acosta, Smith and Mr Tran, met at the Seven Hills office of Global Marine Imports.

46. Undercover Officer Nasser, sent Blackberry messages to the codename, “888.Tails”, concerning the clearance of the shipping. Mr Tran was observed to receive those messages and discussed the delivery with Acosta and Smith. Mr Tran, Mr Acosta and Smith were observed to “hi-five” each other and Smith said, “Fuck, I’m going to be a rich man”.

47. On the 27th of June 2017, the offenders Mr Acosta, Mr Tran and another man, met and Mr Acosta discussed the delivery address for the ephedrine shipment with Mr Tran. The two discussed a mobile phone being used to Google the company name that was being used as the fake consignee. Mr Acosta communicated with Mr Tran to forward Blackberry messages to Undercover Officer Nasser, requesting the container be delivered to an alternate address, other than the one shown on the bill of lading.

48. Undercover Officer Nasser forwarded further Blackberry messages to “888.Tails” whilst the meeting was conducted, which were monitored, being received by Mr Tran. On the 28th of June 2017, police executed a search warrant at the Global Marine Imports at 11/38 Powers Road, Seven Hills. They seized from there a fraudulent consignee company stamp used on the documentation concerned with the importation, copies of the fraudulent freight forwarding documentation and “To do lists” concerning the importation.

13. Other items concerned with organising the importation, together with $666,000 in cash. On the same date, police executed a search warrant on the storage location for Global Marine Imports and located 140 kilograms of iodine which was stored at that location. Police also executed a search warrant of the offender Mr Tran’s home in Cabramatta and seized Blackberry devices and documentation diaries.

14. The diaries contained Blackberry codenames, company names and email addresses used in the importation. Police also seized $31,000 in cash. Police also executed a search warrant on the residence of Mr Tran’s girlfriend at 49 Codrington Street, Fairfield. Located in a hidden room, behind the main bedroom ensuite, was a sports bag containing $785,000 in cash. Mr Tran was arrested during the execution of the search warrants.

15. A search warrant was executed by the police at the offender Mr Acosta’s home in Rouse Hill. Police seized Blackberry devices from those premises. Further similar devices were seized from the premises of his relatives. Inside his relative’s premises at The Ponds was a safe which belonged to Mr Acosta. The safe was opened by a key provided by Mr Acosta’s father.

16. Police seized from the safe, two pistols, being a Sturmruger, .357 Magnum Revolver and a super automatic, .38 calibre semi-automatic pistol. The pistols were both in working order. Mr Acosta was arrested during the execution of the warrants. The finding of those two pistols in that safe, supports the possess unauthorised pistol offences to which he has pleaded guilty.

17. There was also tendered before me a statement dated 18 March 2020 by a Daniel Coghlan, a forensic chemist. He calculates in his statement that the total amount of the pure ephedrine imported was 1.048 tonnes. He also calculated the quantity of ephedrine could be used to make 786 kilograms of methyl amphetamine and 978 kilograms of methyl amphetamine hydrochloride, which is the most common form of methyl amphetamine found on the street, commonly referred to as Ice.

Objective Seriousness

54. I turn then to my assessment of the objective seriousness of the offences. The offenders are to be sentenced for both Commonwealth and State offences. When sentencing them for the Commonwealth offences, I have had regard to the provisions contained in part 1B and in particular s 16A of the Commonwealth Crimes Act. The offence of importing a commercial quantity of ephedrine is a very serious offence of its type. As I said when sentencing the co-offender Mr Smith, the offence committed by the two offenders is an offence which can be correctly classified as involving large scale drug importation.

55. Planning for the importation was extensive and was sophisticated. The role of an offender in the commission of an offence is always an important matter to have regard to when assessing the objective seriousness of an importation offence. Each offender was part of the early negotiations between Dries and the undercover officers, which ultimately led to the importation of ephedrine. They each took steps through the use of Blackberry devices to try to disguise their involvement in the offence.

56. They each travelled to China to organise the importation. They were involved in arranging to receive documentation associated with the importation and the fraudulent completion of that documentation. They gave instructions to Dries to be relayed to the undercover officers as to how delivery of the importation was to be effected. They were clearly extensively involved in the arrangement and management of the Australian end of the importation.

57. I am also satisfied beyond reasonable doubt that it was not the conduct of the police that in some way led to the offender’s involvement in this offence. I note in that regard in the initial stages of the criminal enterprise, they did not deal directly with the undercover officer and Dries had stated to the undercover officer, “He had three contacts who wanted to facilitate the importation of border controlled drugs into Australia”.

58. It is an overwhelming inference that the two offenders formed part of those three contacts. Given the nature of communications by Dries to the undercover officers, I am satisfied that these offenders would have involved themselves in the importation, irrespective of the role of the police. I consider that the involvement of these two offenders was above that of the co-offender Mr Smith, whom I have already sentenced.

59. I note when I sentenced Mr Smith, I described his role as being “Well below that of the co-accused Dries and below that of Tran and Acosta, although not terribly significantly below their role”. The Crown in its written submissions to some degree, challenged my description of there being a hierarchy of offenders as I described it in my sentencing remarks concerning Mr Smith.

60. It is important to acknowledge that it is not always possible to be precise in making findings about the apparent role of persons in large scale criminal enterprises such as the one I am dealing with here. I maintain that the offenders’ roles were above that of Mr Smith. They were involved in the enterprise for a longer period of time and the overwhelming inference is that they were significant persons in the planning and organisation of the importation.

61. Smith performed important functions in relation to the importation but I do not consider that he had the same level of management and involvement in the organisation of the importation as these two offenders. It may be that upon reflection, their roles in this enterprise were not less than that of the co-accused Dries, noting that I have not yet sentenced that person or heard submissions on his behalf.

62. The amount of drug imported is always a relevant but not a determinative factor when sentencing for drug importation offences. The commercial quantity of ephedrine was 1.2 kilograms. Slightly over a tonne, was the subject of the importation. That is an amount many times greater than the minimum amount to be a commercial quantity.

63. The amount of precursor was able to be used to produce large quantities of the drug methyl amphetamine if it had been a successful importation. This was clearly, a very large scale drug importation. I am satisfied beyond reasonable doubt that both offenders engaged in the offence for an expected significant financial gain. I am also satisfied beyond reasonable that they both knew that they were involving themselves in a very large scale importation of ephedrine and given Mr Tran’s purchase of a large quantity of iodine, intended to arrange for methyl amphetamine to be produced from it.

64. I consider that the importation offence committed by both offenders falls within the very upper end of the midrange of objective seriousness of such offending.

65. In terms of the offender Mr Acosta’s role in his offence of conveying 2,900,000 cigarettes, knowing that the goods were imported with intent to defraud the revenue, the offence occurred over a 13 day period and involved two deliveries of a large quantity of cigarettes. The offence is an offence of conveying the cigarettes but no doubt that was done for an anticipated financial gain. The amount of cigarettes was clearly significant, as were the amounts of money paid for them. The genesis of this offence appears to have been a desire on the part of those involved in the importation of the ephedrine offence to do a “test run”, involving cigarettes through Customs.

66. I would assess the objective seriousness of the offender Mr Acosta’s offence concerning the conveyance of the cigarettes as being below the midrange of objective seriousness but not at the bottom of the range.

67. In terms of the two possess pistol offences, I note that they were both in working order. No ammunition was found with the pistols and they were found in a locked safe in residential premises and not in a public place, where children might obtain access to them.

68. I cannot find beyond a reasonable doubt that they were possessed for a criminal purpose, despite the offender’s involvement in a serious criminal enterprise at the time of the possession of them. The unauthorised possession of a pistol is always a serious offence. I consider the objective seriousness of these two offences as towards the bottom of the range of objective seriousness but not at the very bottom of the range.

69. In relation to the offender Mr Tran’s offence of conveying 1.4 million cigarettes knowing that the goods were imported with intent to defraud the revenue, I repeat what I said in relation to Mr Acosta’s similar offence. I note that Mr Tran’s offence was committed on a single day and involved more than a million cigarettes, less than the number involved in the offence committed by Mr Acosta.

70. I consider that Mr Tran’s offence involving the conveyance of cigarettes is below the midrange level of objective seriousness but not at the bottom of the range.

71. In relation to Mr Tran’s offence under s 400.4(1) of the Commonwealth’s Criminal Code, namely dealing with $375,000 intending to become an instrument of crime. I note the money was used in order to purchase the cigarettes, the subject of the conveyance offence. I note that it was more than three times the minimum amount that is required to engage the section. The offence itself is not concerned with the source of the money. I assess the objective seriousness of the offence as being well below a notional midrange offence.

72. In relation to Mr Tran’s offence under s 193C(1) of the New South Wales Crimes Act, of dealing with $1,443,630 in circumstances where there are reasonable grounds to suspect that the property is the proceeds of crime, I note there is no evidence as to the source of the funds that make up that amount.

73. Clearly it was not derived from the importation. The evidence as to the offender’s parlous financial state tendered in support of his subjective case, means that none of that money came from any type of legitimate activity; $785,000 of the money was found inside a sports bag, in the hidden room at residential premises. The total amount of money the subject of the charge is more than ten times the minimum amount which engages the offence creating section.

74. His possession of such a large amount of cash occurred at a time when he involved himself in serious criminal activity. I consider the objective seriousness of this offence to be a little below a notional midrange offence for the type of offence involved.

Jeffery Acosta’s Subjective Case

75. I turn then to the offenders’ subjective cases. I will firstly deal with the subjective case for the offender Mr Acosta. A number of documents, including a report dated 30 January 2020 by Megan Godbee, a forensic psychologist was tendered on the offender’s behalf but he did not give evidence at the sentence proceedings. I have had regard to that fact in determining what weight to give to the documentary subjective material.

76. The offender Mr Acosta’s date of birth is the 16th of February 1982 so he is currently 38 years of age. The only matter on his criminal history is that he was fined in 2011 for driving while his licence was suspended. There are a number of testimonials from family members and friends, attesting to his prior good character, before me.

77. His lack of a criminal history and his prior general good character entitles him to some leniency here. I note however, it is said by the higher courts that a lack of criminal history and good character is of less relevance in relation to sentencing for importation offences, especially when a person travels overseas to facilitate the importation. This is because a person with limited or no criminal record is less likely to attract the attention of law enforcement authorities.

78. In terms of his family background, the offender Mr Acosta described to the psychologist being brought up by very loving parents in Western Sydney. There was no family violence within the home and his parents both worked to provide for their family. The offender left home at 24 and commenced to live with his then wife. They have a daughter who is now 15 years old and the offender considers that he has a close relationship with his daughter.

79. In 2015, the offender began a relationship with another woman in Vietnam and they have a three year old daughter. Once his wife in Australia found out about the relationship with the woman in Vietnam, his marriage ended. The offender has, according to the documentary material, regular contact with his female partner in Vietnam and their daughter.

80. Upon his release from custody, he is able to live with a brother and his family. In terms of his education and employment history, the offender Mr Acosta told the psychologist that in the early years of his schooling, he achieved above-average grades. His behaviour at school it appears, deteriorated as he grew older and he was asked to leave school in Year 9, after a fight with another student. He eventually completed schooling in Year 11 and did not achieve his Higher School Certificate.

81. He had some sporadic employment from the age of 15 before finding in his twenties, a job at a call centre where he became a Team Leader. He then worked in Recruitment for the Australian Defence Force in Melbourne for two years, before he and his wife returned to Sydney. He continued to work in Recruitment for organisations such as Centrelink and the Salvation Army.

82. He then found a job as a fish wholesaler in his late 20s. After losing that job, he travelled to the Philippines to establish his own fish export business. The offender conducted that business, which he told the psychologist was not successful until he was arrested. According to what he told the psychologist, it was in the context of that business that he met his co-offenders.

83. In terms of his substance use, the offender Mr Acosta told the psychologist that he was a “binge drinker”. He also told the psychologist that he began using cannabis nearly every day from the age of 14 and 16 years of age. He apparently has only used the drug as an adult and on a few occasions. He used ecstasy in his late teens and stated he had tried methyl amphetamine on two occasions and is scared of the drug.

84. The offender Mr Acosta told the psychologist he was introduced to cocaine in his early 30s and that by the age of 35, he was using “a ball” a day. He conceded that his cocaine use contributed to his business failing. His use of cocaine continued until he was arrested. Mr Acosta detailed to the psychologist his problems with gambling, which commenced when he was 18 and there were occasions when he spent $10,000 a day. The offender also told the psychologist that his co-offenders are close friends who also use cocaine.

85. In terms of his psychological and psychiatric history, the offender Mr Acosta did not report any mental health difficulties prior to being assaulted in custody in 2017. The psychologist considered that the offender endorsed a post-traumatic stress response to that assault. He described feeling consistently sad and fearful and shameful that he is in protective custody.

86. There is evidence before me of the offender suffering a significant assault while in custody, involving in effect, an extortion attempt. The assault on the face of it appears to have been organised by persons outside of the custodial environment. No doubt this will cause the offender additional anxiety while serving his sentence and I have had some regard to that in determining the sentence to impose.

87. The psychologist considered that the offender did not present as inherently anti-social. The psychologist also considered that the offender would also benefit from engaging in a drug, alcohol and gambling rehabilitation program, to assist him identifying triggers for his addictions and to learn to better manage them.

88. In terms of his attitude to the offence, the offender Mr Acosta told the psychologist that he met his co-offenders while running his export business. He also told the psychologist that he justified his behaviour at the time by telling himself that ephedrine “wasn’t a drug” and he needed the money due to his financial difficulties.

89. He conceded that upon seeing “Ice affected” people in custody, he felt guilty for playing a part in the process, which leads to the manufacture of that drug. It is difficult to accept, given his age, that he had no understanding of the impact prohibited drugs are having in our community, prior to entering custody.

90. While in custody, the offender Mr Acosta has completed the Salvation Army’s Positive Lifestyle Program, the RUSH Program and a number of TAFE courses. Given his lack of a criminal record and good character, family support and his apparent commencement of rehabilitation in custody, I consider he has excellent prospects of rehabilitation and is not likely to reoffend.

91. I also consider that the offender has shown genuine remorse, both through the early plea of guilty and his statements to friends and family concerning his offending.

Quoc Kiem Tran’s Subjective case

92. I turn now to the subjective case for the offender Mr Tran. Mr Tran’s date of birth is the 22nd of June 1982 so he has recently turned 38 years of age. He has no criminal record and I note from the testimonials also tendered on his behalf that he was a person of prior general good character.

93. The lack of criminal record and his prior general good character entitles him to some leniency on sentence. However, as I remarked in relation to the offender Mr Acosta, the fact a person is of good character is of less weight when they involve themselves in an importation offence which involves them travelling internationally, for the reason I mentioned earlier.

94. The offender Mr Tran did not give evidence during the sentence proceedings. An affidavit from his ex-wife, Linda Tran was read on sentence and the Crown did not require her for cross-examination. Other documentation including a report dated 20 May 2020 from Dr Olav Nielssen, a psychiatrist, was tendered on the offender’s behalf. The following was taken from the documentation that was tendered on Mr Tran’s behalf.

95. In terms of his family background, the offender told Dr Nielssen that he was born in Vietnam and had some vague memories of coming to Australia when he was four and a half years of age. He has three siblings, one whom was born in Vietnam and the other two were born in Australia.

96. The offender Mr Tran married in 2005 and he and his wife have a son and a daughter. He and his wife divorced about two years ago. His wife has the care of his two children, she having commenced a new relationship. His ex-wife described the offender as a good father and provided for his family, up until relatively shortly prior to his arrest, when his level of indebtedness significantly increased.

97. His ex-wife also describes in her affidavit the effect of the offender’s arrest and incarceration upon her and the couple’s children. Their teenage son has found dealing with his father’s absence particularly difficult. As is often the case, it is the family of an offender who really suffer when an offender is incarcerated.

98. I have had some regard to the difficulties the family has experienced in that regard, in the general mix of factors that I have taken into account in arriving at the appropriate sentences.

99. In terms of Mr Tran’s education and employment history, he reported no learning or conduct problems at school but did not perform as well as he had hoped in his final year. He had attended Canley Vale High School, then studied an accounting diploma at TAFE and then completed degrees in economics and accounting at the University of Western Sydney.

100. He held a variety of jobs after leaving school and eventually opened his own aquarium business with his brother-in-law. While in custody he has enrolled in an Open University degree concerning construction. In terms of his substance use, the offender Mr Tran provided to Dr Nielssen a very limited history of using illicit substances and said he drank very little alcohol.

92. He told Dr Nielssen that he commenced gambling when he was 18, stopped when he was 25 but resumed in 2014. He said he was aware of the addictive nature of gambling and had a poker machine in his office, “because he wanted to hear the music”, referring as I understood it, to the jackpot music that a poker machine plays when a win occurs.

93. Dr Nielssen diagnosed Mr Tran as suffering from a gambling disorder. The offender’s ex-wife annexed to her affidavit, documentation setting out the level of indebtedness that had been accrued by the offender. Dr Nielssen considered that the offender Mr Tran did not have any symptoms of psychosis and no obvious signs of neurological disorder.

94. He was considered to be of normal intelligence. Mr Tran told Dr Nielssen that he experienced depression and anxiety in prison, noting that there had been no contact visits during the pandemic. Dr Nielssen did not consider him to be pervasively depressed, however.

95. In terms of Mr Tran’s attitude to the offence, the offender told Dr Nielssen at the time of the offences, his business was not going well, he was under a lot of financial pressure. He told Dr Nielssen he was embarrassed about the offences. The offender Mr Tran also provided to the Court a letter of apology in which he sets out that he now understands the serious, destructive impact prohibited drugs are having on our community, having spent three years in custody.

96. His letter indicates that he takes full responsibility for his actions and that he was motivated by his financial indebtedness and his gambling addiction. In his letter he speaks of the work he has done while in custody and there are documents from within the prison system which I will shortly discuss which highlight the positive approach the offender has taken to his incarceration. The offender’s ex-wife also deposed the expressions of remorse by the offender Mr Tran.

97. Documentation from Corrective Services indicate that since his incarceration, Mr Tran has conducted English classes for other inmates of Vietnamese descent. He is also described as an “asset to facility and maintenance and is a core worker” but he is always willing to learn and help. He has been employed in the plumbing section of facility maintenance. He is also described in the documentation as a “model inmate”. He is considered to be a vital part of the plumbing section of facility maintenance within the gaol.

98. The offender Mr Tran has in my view, excellent prospects of rehabilitation, given his prior good character, his family support and the constructive way he has conducted himself in custody. He is unlikely to reoffend in my opinion. I consider that he has shown genuine remorse through his plea of guilty, his conduct in prison and his expression of remorse to others.

Imposition of Sentence

108. Both offenders essentially entered pleas of guilty in the Local Court and I will allow them a 25 per cent discount for the utilitarian value of the pleas of guilty. That discount applies to both the State and Commonwealth sentences, see Xiao v R [2018] NSWCCA 4. I have found that both offenders are genuinely remorseful. I have found that both offenders have excellent prospects of rehabilitation and are unlikely to reoffend.

109. I am sentencing both offenders during the Covid-19 pandemic. As far as I am aware, fortunately the disease has not entered the New South Wales prison population. I understand there have been no contact visits for prisoners since about March this year and it is unknown when such visits will resume. I have had some regard to those factors when imposing sentence on the two offenders.

110. In terms of the applicable non-parole period for the State offences, I do not consider that there is a basis of finding special circumstances. Both offenders have clearly commenced their rehabilitation while in custody and are on their way to becoming fully rehabilitated. I also note they will serve a significant overall sentence which will contain a lengthy non-parole period.

111. Both offenders have been in custody since 28 June 2017 and their sentences will be backdated to that date, to take account of the period of pre-sentence custody.

112. Given the number of offences each offender is to be sentenced for, it is necessary to consider the issue of accumulation and concurrency, in determining the overall sentences to be imposed on these two offenders. I will use the aggregate sentencing provisions when sentencing in relation to the Commonwealth sentences. The aggregate sentencing provisions are available to be used when dealing with a number of Commonwealth offences, see R v Pham [2015] HCA 39 at para 21.

113. In relation to Mr Acosta, I consider that the conveyance of cigarettes offence was to a significant degree, a step in the import of ephedrine offence, given it came about as those involved in the importation, saw the need to try an initial test run with cigarettes. I consider that in those circumstances, there should be little accumulation of the sentence for that offence, with the sentence to be imposed on the importation offence.

114. The two possess pistols offences are discrete and separate acts of criminality, from that involved in the importation offence and there should be a degree of accumulation of the sentences imposed on the importation and conveyance of cigarettes offences. As the two pistols were somewhat similar and found in the same location, I propose to make the sentence for those two offences fully concurrent.

115. In relation to Mr Tran, I consider that his offence involving the conveyance of cigarettes, was also to a significant degree, a step in the importation of ephedrine offence, for the same reason I stated in relation to Mr Acosta. Similarly, given the offence under s 400.4(1) of the Commonwealth’s Criminal Code, involved payment for those cigarettes, I consider that action should also be seen as part of a significant step in the importation offence and the sentence for that offence should primarily be concurrent with the sentence imposed on the importation offence.

116. I do not consider the offence under s 193C(1) of the State Crimes Act, can be seen as, to a significant degree, encompassed by the commission of the importation offence. I am of the opinion that the sentence imposed for that offence should be partially accumulative upon the sentences imposed in relation to the Commonwealth offences.

117. In determining the degree of concurrency and accumulation, I have had regard to the need to ensure that I do not impose what might be thought to be a crushing sentence. I turn then to the issue of parity in relation to the sentence I imposed on Mr Smith. In considering the objective seriousness of the importation offence, I have already referred to my opinion as to the respective role of Mr Smith, compared to these two offenders, noting it is always difficult to be precise as to what the role of each offender, in a large scale criminal enterprise, such as the one I am considering here.

118. The only common offence with Mr Smith is the importation of ephedrine offence. In terms of Mr Smith’s subjective case, I found that he was viewed by Corrective Services as a pleasant and helpful inmate and was always willing to assist with inmate related general duties. I found with some hesitation, that there was genuine evidence of remorse. I found he had reasonable prospects of rehabilitation.

119. While Mr Smith had no formal criminal record when sentenced, one of the offences I sentenced him for was in relation to an offence of knowingly take part in the manufacture of a large commercial quantity of pseudoephedrine, which occurred in 2012, some years before the importation offence. I consider that Mr Smith’s subjective case was not as compelling as those of these two offenders, especially given his involvement in the 2012 offence.

120. I have considered the differences in the subjective cases and roles of these offenders to that of Mr Smith, when imposing the sentence on the importation offence. I note when sentencing Mr Smith, I indicated that prior to the application of the appropriate discount, the sentence would have been one of 12 years imprisonment.

121. In so far as the State offences are concerned, I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender’s conduct, recognising the harm done to the community and rehabilitation to the offender.

122. In relation to the Commonwealth offences, I have had regard to the objects of sentencing contained in the principles set out in part 1B of the Commonwealth’s Crimes Act.

123. As I said when sentencing the co-offender Mr Smith, general deterrence must always feature whenever sentencing for the large scale importation of precursor drugs that could be used to manufacture extremely large quantities of prohibited drugs, for distribution into the Australian illicit drug consumer market. Such drugs are causing untold damage to our community and in particular to our young people, bringing death and destruction to families and family units. Those who seek to gain financially from such offences, must expect to receive very significant sentences. The sentences must be such that they deter not only these two offenders, but others in the community who might be tempted to engage in such large scale criminal activity.

124. General deterrence also has a role to play in relation to sentencing for the unauthorised possession of pistol offences committed by Mr Acosta. The unlawful possession of firearms in our community must be firmly discouraged every time someone is sentenced for such an offence. The unlawful possession of firearms is a threat to community safety and it is clear from the maximum penalty and standard non-parole period provided for by the Parliament, that such offences are serious offences.

125. In relation to Mr Tran’s State money laundering offence, again, principles of general deterrence have a role to play here.

126. The maximum penalties and in relation to the possess pistol offences, the standard non-parole period, have been taken account as a legislative guidepost. I have departed from the standard non-parole period because of my assessment of the objective seriousness of these two offences and the offender Mr Acosta’s compelling subjective case.

127. Mr Acosta, you are convicted of the offences to which you have pleaded guilty. In relation to the two offences of unauthorised possession of a pistol, the starting point for the sentence prior to the application for the plea of guilty, is four years imprisonment. After the application of the discount to those two sentences, there is a sentence on each count of three years imprisonment.

128. I impose a sentence on each of those counts consisting of a non-parole period of two years and three months, with a balance of term of nine months. Resulting in a three-year sentence. For the reasons I gave earlier, I consider that it is appropriate to make each sentence fully concurrent.

129. The sentences for the two State offences commence on 28 June 2017 and expire on 27 June 2020. The non-parole period for the two State offences expired on 23 September 2019.

130. As I said earlier, I will utilise the aggregate sentencing provisions when imposing sentence on the Commonwealth offences. In relation to the Commonwealth sentences, you will hear me first announce what I call the indicative sentences. You will then hear me announce an aggregate sentence, which is the sentence and the non-parole period that you will serve in relation to the Commonwealth offences. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence, I will tell you the date it starts from, the date it ends and the date you will be first eligible for parole.

131. In relation to the Commonwealth offences concerning Mr Acosta, the appropriate starting point for the sentence for the importation of ephedrine offence, prior to the application of the discount for the plea of guilty, is 13 years imprisonment. After application of the discount, there is an indicative sentence of nine years and nine months imprisonment.

132. In relation to the offence of conveyance of cigarettes, knowing that they had been imported, with intent to defraud the revenue, prior to the application for the discount of the plea of guilty, I consider the appropriate starting point is one of 18 months imprisonment. After application of the discount for the plea of guilty, there is an indicative sentence of one year and one month imprisonment.

133. In relation to the Commonwealth offences, I impose an aggregate sentence of 10 years imprisonment, with an aggregate non-parole period of six years imprisonment. The aggregate sentence for the Commonwealth offences commences on 28 June 2018. That sentence will expire on 27 June 2028 and the non-parole period will expire on 27 June 2024.

134. There is therefore an overall sentence of 11 years imprisonment, with an overall non-parole period of seven years imprisonment. The earliest date that you are eligible for release to parole is 27 June 2024. Whether you are in fact released to parole that day is a matter for the Commonwealth Attorney-General, who will no doubt take account of your behaviour in determining whether or not you are released that day or on some later date.

135. Mr Tran, you are convicted of the offences to which you have pleaded guilty. Dealing firstly with the State offence of dealing with property where there are reasonable grounds to suspect that the property is the proceeds of crime, an offence under s 193C(1) of the Crimes Act, I consider an appropriate sentence prior to the application of the discount for the plea of guilty, to be one of two years imprisonment.

136. After application of the 25 per cent discount for the plea of guilty, there is a total sentence of 18 months imprisonment. I impose a sentence consisting of a non-parole period of one year and one month and a balance of term of five months. That sentence commences on 28 June 2017 and expired on 27 December 2018. The non-parole period expired on 27 July 2018.

137. Again, I will utilise the aggregate sentencing provisions when imposing sentences for the Commonwealth offences. In relation to the indicative sentences for the Commonwealth offences, in relation to the Commonwealth importation of ephedrine offence, I consider an appropriate sentence prior to the discount for the plea of guilty to be one of 13 years imprisonment.

138. After the application for the 25 per cent discount, there is an indicative sentence of nine years and nine months imprisonment. In relation to the offence of conveying 1.4 million cigarettes, knowing that they were imported with the intent to defraud the revenue, an appropriate starting point for that sentence, prior to the discount for the plea of guilty, is one of 18 months imprisonment. After applying the 25 per cent discount for the plea of guilty, there is an indicative of one year and one month imprisonment.

139. In relation to the offence of dealing with $375,000 intending it to become an instrument of crime, an appropriate starting point before the discount for the plea of guilty, is a sentence of 12 months imprisonment. After application of the discount, there is an indicative sentence of nine months’ imprisonment.

140. In relation to all of the Commonwealth offences, I impose an aggregate sentence of 10 years imprisonment, with a non-parole period of six years imprisonment.

141. That sentence commences on 28 January 2018. The sentence expires on 27 January 2028 and the non-parole period expires on 27 January 2024. There is an overall total sentence in relation to Mr Tran of 10 years and seven months imprisonment, with an overall non-parole period of six years and seven months imprisonment.

142. The earliest date Mr Tran is eligible to be released to parole is the date of expiry of the non-parole period which is 27 January 2024. Whether you are in fact released to parole on that day is a matter for the Commonwealth Attorney-General, who will no doubt take account of your behaviour in prison, in determining whether you are released then or on another date.

143. So in relation to Mr Acosta, it is an overall sentence of 11 years and an overall non-parole period of seven years imprisonment. In relation to Mr Tran, it is an overall sentence of 10 years, seven months imprisonment, with an overall non-parole period of six years and seven months.

Orders

1. In relation to Quoc Kiem Tran, an overall sentence of 10 years and 7 months imprisonment with a non-parole period of 6 years and 7 months imprisonment is imposed.

2. In relation to Jeffrey Acosta, an overall sentence of 11 years imprisonment with a non-parole period of 7 years imprisonment is imposed.

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Decision last updated: 02 November 2020