R v Bembo

[2019] VCC 1352

IN THE COUNTY COURT OF VICTORIA Revised (2^nd Revision)
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01262

THE QUEEN

v

WEDI NJEDKA BEMBO

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF TRIAL:	4 March – 15 April 2019
DATE OF PLEA:	24 July 2019
DATE OF SENTENCE:	23 August 2019
CASE MAY BE CITED AS:	R v Bembo
MEDIUM NEUTRAL CITATION:	[2019] VCC 1352

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Jury verdict; imported drugs delivery; attempt to possess commercial quantity of an unlawfully imported border controlled drug; large quantity (167 times commercial quantity) methlyamphetamine; role significant and at least part of time in control of others; prior criminal history; offence committed while on bail for two other drug importation related offences; totality principle; terrible childhood experiences

Legislation Cited:            Crimes Act 1914 (Cth) ss 16A(1), 16A(2), 17A, 19AD

Cases Cited:Nguyen v R; Phommalysack v R [2011] VSCA 32; Pham v R [2014] VSCA 204; Mill v R (1988) 166 CLR 59; R v Beck [2005] 11; Markovic v R; Pantelic v R [2010] VSCA 105; Azzopardi v R [2011] VSCA 372;

Sentence:19 years’ imprisonment; new single non-parole period 25 years’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Dickie	Commonwealth Department for Public Prosecutions
For the Accused	Mr A. Schwartz	Emma Turnbull Lawyers

HER HONOUR: 

1Wedi Ndjeka Bembo, you are to be sentenced on a charge of attempting to possess a commercial quantity of an illegally imported border controlled drug, namely methylamphetamine.  You were found guilty of this charge by a jury.

2The maximum penalty for this offence is imprisonment for life and or alternatively a fine of $1.35m or both.  Your sentence will not include a fine.  As you know to expect, your sentence will be a very substantial term of imprisonment.

3This charge arose from your participation in an attempted delivery in Melbourne after recent important into Australia of a large quantity of methylamphetamine concealed in logs of wood which had been imported in a container from Nigeria.

4To explain my reasons for your sentence, I am first going to summarise the relevant circumstances of this offence, and then your personal circumstances.  I will then turn to the application of relevant sentencing principles and my findings on them in your case.

5The charge for which you are to be sentenced is based on your participation between 27 April and 23 July 2016 in the attempted delivery and not the importation itself, nor the events preceding it.  However, to explain your role and how it was proven in the trial, I need to describe some of the background to the importation as well as the attempted delivery, and a previous importation and delivery of a container of logs in 2015. I have borne in mind that you stand to be sentenced only for your involvement from April 2016 up to and including 23 July 2016.

6The jury's verdict in finding you guilty on this charge means that the jury was satisfied beyond reasonable doubt that you were relevantly involved in the attempted delivery in Melbourne in July 2016, and that you intended that the logs would contain a substance, and were aware of a substantial risk that the substance was a border controlled drug.

7Your participation was in conjunction with Mr Joe Jackson, who pleaded guilty to a similar charge[1] when your joint trial first commenced last October. 

[1] Attempting to import a commercial quantity of a border controlled drug.

Another participant in relation to the delivery in Melbourne was Mr Sadiki Sibomana who admitted his physical participation in the delivery of the logs, but denied knowing or being aware of the risk of that there was a concealment in the logs or that it was drugs.  He was acquitted by the same jury which found you guilty.

8In June 2016, a container full of timber logs arrived in Sydney.  Authorities detected a concealment in some of the logs, and removed and tested the concealed substance.  It was found that there was a total of more than
161 kilograms of a crystalline substance concealed in 14 of the larger logs, which after analysis of its purity was estimated to contain approximately
125.6 kilograms of pure methylamphetamine.  The commercial quantity of that drug is 750 grams.

9Australian Federal Police then arranged a substitution for the drug substance and the container was released with surveillance and monitoring of its delivery.

10The named consignee of the shipment was a company named Evergreen Import and Export Pty Ltd (“Evergreen”). This was a genuine business but in fact had no connection with the shipment.  The original delivery address was in New South Wales, but the shipment was redirected, first in advance by email communication to an address of Evergreen in Central Avenue, Sunshine, Victoria, and then on 20 July 2016, the delivery truck was met by Mr Sibomana and redirected to a nearby storage premises in Sunshine. On the same day, the logs which were expected to contain the concealed drugs were moved to a bush area behind buildings on Anderson Road, Sunshine. 

11On the day of delivery, and the following three days, there was contact between you and others which the jury must have accepted related to arrangements for young men to be retained to cut open the logs.

12In late July, police posing as council workers took control of those logs before anyone actually tried to open them to remove the concealed substance.

13As I have said, you were one of three people charged with involvement in the arrangements for the delivery of this importation.  You were found guilty by a jury after a trial which lasted almost six weeks, and in which you gave evidence in your own defence.

14The Crown case against you was that you played the central role amongst the three men I have mentioned in relation to attempting to take delivery of the shipment of logs which was expected to contain a large quantity of concealed drugs.

15The charge against you was, as I have said, as to your participation between 27 April and 23 July 2016. The evidence considered by the jury also included (because I ruled it admissible) evidence of a shipment of timber in late 2015, which followed a very similar path and involved many similar contacts to those used for the consignment with which you were charged.  That earlier shipment is not the subject of this charge, but was before the jury as part of the background, and it was put by the prosecution as having been a trial run, or alternatively an attempt to build legitimacy for the consignment in mid-2016.

16The case against you relied totally on indirect evidence because you never had direct contact with the consignment of logs.  Your involvement was explored in detail during the six week trial, and I shall not repeat much of its detail, but do need to describe parts to assess your involvement and culpability.

17The first aspect was evidence that established that a freight facilitator in Sydney, Mr Veney was used initially in late 2015, and then for the shipment in mid-2016, to arrange clearance of the container of logs through customs and quarantine, and also to arrange trucking transfer to Melbourne.  Mr Veney never met in person anyone involved.  Contact with him was all by telephone and email.  For that, email addresses based on the Evergreen name were used, but also some information forwarded from that email address from another email address called “lekilekiyaya.”  The telephone contact was all by Mr Jackson for both shipments.  That was through Mr Jackson using a false name, calling himself Mr Cam or Mr Luu.  There was in fact named Mr Cam Luu, but it was not him who participated in the phone calls or arrangements for delivery of these timber shipments. Identification cards obtained by him were used to establish identity through Mr Veney with authorities.

18Your connection with these email addresses, and the Cam Luu identity, were based on evidence of:

·First, there were connections with some of those email addresses found in mobile phones used by you, and in a notebook on which your fingerprints were found. That notebook also included the name Cam Luu and an address which appeared for him on the RTA identification card supplied to Mr Veney being a false address created by Mr Luu, and on that very page, your fingerprint was found in that notebook.

·A flat in Carlton where police found the spiral notebook that I have just referred to, and some mobile phones containing relevant connections, was leased by Mr Jackson from the Director of Housing, although he did not live permanently in Melbourne, and also often stayed elsewhere when visiting Melbourne. The residential tenancy lease for that apartment was found in your home.

·As I have said, your fingerprints were found on several pages of the small spiral notebook, including the page with Mr Luu's name and false address. Your explanation for that possibility was, in my view, easily excluded.  You said you may have picked it up when wiping up spilt tea at the Carlton flat on one occasion, but that could not have explained your fingerprints being on internal pages.

·Another piece of evidence going to your connection with the emails that gave instructions to Mr Veney was that your mobile phone included the “lekilekiyaya” email address.  It was put that you had used the name “Leki”, although you did not agree to that.

·Abbreviations used included distinctively “kwn” for “known,” as also used in texts in your phone.

·You were seen at an internet café from which some of the emails had been sent at a time when Mr Jackson was in Sydney.

19Through this evidence, the jury could find that you were connected with the arrangements for the landing and release of the timber shipment, even though you were not making direct contact with the freight agent and it was Mr Jackson who did that albeit under a false name.

20I move now to other indirect evidence relied upon to prove your connection with this shipment I move to now. 

21There was evidence of your connections and movements and conversations with Mr Jackson and Mr Sibomana from the time of Mr Jackson's arrival in Melbourne on 18 July, being two days before the logs were to be delivered to Melbourne. This included you spending time with Mr Jackson, driving him around, being present at the internet café with him and Mr Sibomana and others, meeting with Mr Sibomana and Mr Jackson in the area where the delivery was to be expected on the day before it was due, and meeting with Mr Sibomana and Mr Jackson at the flat in Carlton on the night before the delivery.

22Next, there was surveillance, intercepted calls and SMS messages produced which showed you being in the vicinity of the delivery of the logs by truck on the morning of 20 July 2016, and in the vicinity of its diversion by Mr Sibomana to the nearby storage yard premises organised with Mr Gill. 

23Another piece of evidence, and one relied upon by the prosecution in its closing address as key evidence showing your involvement, was the surveillance showing you driving via the Central Avenue address to which the logs had first been delivered and where Mr Sibomana was waiting, at approximately midday that day, and him then following you in his car as you drove to the car park beside 53 Anderson Road. There you and Mr Sibomana met with Mr Jackson, and there was conversation with the three of you standing in the vicinity of the fence between that car park and its access to bushland.  That bushland was the land to which the logs were soon, that afternoon, shifted, albeit you were not present when the logs arrived there.

24The shifting of the logs was conducted by Mr Sibomana, with Mr Jackson arriving at one point to pay the tow truck driver.

25Next, there were intercepted conversations in which you could be found to have been directing the movements of Mr Sibomana, and at times of Mr Jackson, or at least discussing with Mr Jackson why he was not doing what you wanted.  There was reference in two of those to timber; there was reference in one of the calls to the cutting of timber or planks.

26Through the intercepted calls, you could also be found to have been directing through another person named Omar the organisation of “boys,” and the obtaining of items from Bunnings, and the prosecution alleges this was directing the preparation to have the logs cut open.

27Other evidence relied upon was that you used a number of different mobile phones and SIM cards, and your explanations for those were not convincing.  There were intercepted calls that revealed your awareness of the possibility of call interception or surveillance by police, and you directed Mr Sibomana a couple of days later about which phone to use and which not to reveal to police when reporting an alleged theft of his car to police.

28Over the course of the day of the delivery and the following days, you drove different cars during those crucial times, and although you gave explanations as to some of them, the prosecution put that there was no reasonable explanation about why the silver Territory was borrowed on the delivery day from a car wash where you sometimes worked, and it being a vehicle seen in close proximity to the delivery of the timber by the large truck and then later in the day.

29The evidence showed that Mr Jackson returned to Sydney on the night of
20 July, although still in touch with you by phone, including you telling him to dispose of his phone and get a new one, and then rebuking him for not answering your calls.  The prosecution argued it was inconceivable that there was no one with knowledge and an overall coordination role left in Melbourne to deal with the actual retrieval of the drugs from inside the logs, and that your calls to Omar and others confirmed that that coordination role was yours.

30In the few days after the delivery, intercepted calls by you reflected growing concerns consistent with the need to have the logs cut open without detection, and also contact with connections in Africa that could be found to relate to this consignment.

31You denied any involvement with this shipment of logs – indeed denied any knowledge that it was being delivered, and further denied knowing or being reckless as to the prospect that the delivery of logs would contain drugs. 
You gave sworn evidence to that effect, and further in your evidence gave your explanation for your presence on many of the relevant occasions, for the content of many of the intercepted conversations. Your explanations overall were largely that you were working for Mr Jackson in hiding and supervising the storage of cars which he was taking and holding as security for loans.

32By its verdict, the jury must have rejected that there was any reasonable possibility that your presence or the intercepted calls or SMS messages between you and other relevant people, had the explanations that you gave.  I am not in a position to know exactly which pieces of indirect evidence were relied upon by the jury in reaching its verdict, but I have outlined the overall evidence and will refer again shortly to my relevant findings on it.

33I turn now to your personal history.

34You are now aged 39.  You are married and have four children with your wife, aged between three and 14.  You apparently also have another child of about 14 years of age who lives in Sydney 

35You were born in the Congo, the eldest child of your parents, and have six younger siblings.  Growing up in the Congo, you witnessed atrocious events, that have been described as horrendously traumatic experiences, and you underwent grave hardship.  I accept that all of this would not only have disrupted your childhood and education, but must inevitably have impacted your emotional and psychological life since.

36Your father, who opposed the government at the time, was imprisoned for periods there, and you saw him return after such periods showing signs of the brutality he had undergone.  At some stage in your early or mid-teenage years, your father fled the Congo for political refuge.  Your mother also left about a year later, taking two of your siblings with her to South Africa where she apparently re-joined your father and another child, your youngest sibling, was born.

37Meanwhile, you were left in your mid-teens to fend and care for yourself and three younger siblings.  I am told that you had to scrounge to gain food for yourself and your siblings, and to support yourself and them.  I am also told that your eventual escape with your remaining siblings from the Congo included spending time in a refugee camp where you were abused, and involved long and dangerous travel, crossing national borders under dangerous conditions. This was facilitated by a friend of your father, who it emerged was a person who had been mentioned in the trial and is now living in Melbourne.

38There are differing accounts of your age when your father left, and whether you and your siblings were left completely homeless or at least initially living with a grandparent, or in church provided accommodation.  Details vary between what has been recounted through your counsel, what has been told to psychologists over a number of intervals when they have assessed you for criminal cases, and what is recounted in prior sentences by other judges of this court, presumably based on what they have been told. Notwithstanding these variations, I accept that your childhood involved very serious hardship and trauma of a nature that will inevitably have impacted on you ever since.  I will refer later to psychological evidence about that.

39Your father says that the separation was for three years.  By the time you were reunited with your mother in South Africa in your mid-teens, your father had left for Australia.  The family eventually joined him here when you were aged about 16.

40Notwithstanding the family being reunited here, you continued to feel resentment towards your father because you believed he had abandoned you and you showed your ongoing resentment towards him for that for many years.  He gave evidence before me to that effect, but said that you and he have established a better understanding and relationship over the last couple of years.  There were periods leading up to this offending, he specified 2014 and 2015, when he was not in contact with you at all, so could shed no light on your circumstances in that period.

41It may well be that your experiences led you to distrust other people, and quite possibly also left you numbed or without any empathy for the consequences of your actions towards others and the community generally, and that you developed an attitude of focusing on your own personal perceived needs, not only for survival, but to achieve what you wanted.

42When you arrived in Australia, you did not speak English and you struggled with the language and culture.  You were apparently sent to a school in Sunbury that required long hours of travel, and as the only African there, you felt isolated, ridiculed and bullied. You completed Year 12, but not very satisfactorily. 

43I am told that there was a falling out between you and your father, both as to your ongoing resentment of him abandoning you, and also disagreement about adherence to his firm and strict religious following.  This led, in about 1998, to you leaving Melbourne and moving to Canberra at about age 18, and there you repeated Year 12.  You passed it but did not go on to tertiary education.  You then moved to Sydney with a group of African friends and you have described yourself to Mr Watson-Munro as “becoming wild” there, unsupervised and uncontrolled.  Your father says you met some older African man and were lured to Sydney where you got into frauds.

44You have admitted a prior criminal record which reflects a criminal history starting in 2000.  You were dealt with between the years 2000 and 2010 before courts in Victoria, New South Wales, the ACT, South Australia and Western Australia, mainly for offences of dishonesty.  After receiving a good behaviour bond for your first offence in 2000, your sentences ranged from fines to adjournments with therapeutic conditions, to suspended sentences and then, in 2009, you were sentenced in New South Wales to a term of imprisonment of
18 months, with a non-parole period reduced on appeal to five months. 
That must have been served starting from late 2009 or early 2010.

45You had apparently committed other fraud offences in Victoria in 2009. 
I am told those involved misuse of credit cards.  You were not charged with those matters until early 2013, and the charges did not come to court until 2014, when you pleaded guilty in the County Court at Mildura. His Honour
Judge M. Bourke sentenced you to a total effective sentence of two years' imprisonment, wholly suspended for two years.  You were also ordered to pay $25,000 compensation.

46Those are all of what are strictly to be regarded as your prior criminal history before the offending for which I sentence you.  However, you have since faced courts for other offending which had in fact occurred before the commencement of the current offence in April 2016, and which offences themselves and sentences are highly relevant to my considerations for the sentence I am to impose.

47At the time you committed the offending for which I sentence you, you were on bail for two other instances of major drug importation related offending.  Indeed, barely a week after the delivery of the logs, the subject of the current charge, your first trial started in the County Court before Her Honour
Judge Cannon, on a charge of conspiracy to import a commercial quantity of methylamphetamine, which had occurred between 13 May and 26 June 2014.  This involved plans and arrangements for four kilograms of methylamphetamine to be brought to Australia from China by two men as couriers carrying it in their suitcases.  The couriers did not return to Australia.

48As that offending started less than four months after Judge Bourke had imposed his sentence on you for the much earlier fraud, that drug offence breached the suspended sentence that had been imposed, so when Judge Cannon sentenced you on 24 March 2017, she also dealt with your breach of suspended sentence. The two year suspended sentence was restored and a non-parole period of 12 months fixed.  That was a State sentence and served first.  For the conspiracy to import charge, Her Honour sentenced you to 13 years' imprisonment, with a non-parole period of 10 years, both commencing at the expiry of the State non-parole period, thereby making it cumulative on one year of the restored State sentence.  That Federal sentence commenced on
24 March 2018. There was a declaration of pre-sentence detention at the time. Ever since, you have been serving that sentence so no further pre-sentence detention has accrued.

49By the time you were sentenced by Judge Bourke, you had also engaged in drug related offending involving an importation of furniture from Pakistan by post, which contained a commercial quantity (3.76 kilograms) of heroin. 
You were charged in respect of this in October 2014, and stood trial in this court in September 2017 on a charge of attempting to possess a commercial quantity of heroin.  You were found guilty by a jury on that charge, and on 8 December 2017, you were sentenced by Her Honour Judge Hogan to 14 years' imprisonment, commencing 10 years after the commencement of the sentence imposed by Judge Cannon for conspiracy to import drugs.  Judge Hogan set a new single non-parole period of 16 years to supersede that imposed by Judge Cannon, so it commenced on 24 March 2018. 

50Your prior criminal history does you no credit and reflects that you were prepared over about a decade to engage in offences of dishonesty of different types in different states.  The sentence imposed by Judge Bourke, although later than that, was in respect of offending in 2009.  By then, you were married with at least two children, but clearly were not prepared to reform your ways to build a responsible family life.  I say that because of the convictions for these subsequent drug importation offences.

51Even more concerning is the history of your move into offending relating to importation of illegal drugs in significant quantities.  I shall not repeat the details of either of those two importation related charges, but note that each involved different other people, one a younger brother of yours to collect a parcel, and in the conspiracy case, a Mr Kamara. In each of those cases, the drugs were from different countries, and were being conveyed in different ways, that being different from the circumstances with which I am dealing. They both showed obvious planning and both involved significant commercial quantities of the drugs involved.  However, neither approached the magnitude of the quantity or value of drugs imported in the consignment that was the subject of the charge for which I am to sentence you.

52I am told that while residing in Sydney, you engaged in some employment, working for some two years as a process worker, then as a driver for
Cadbury Schweppes for about six months.  You also had employment apparently on a part time basis at various construction sites as a labourer.

53In 2004, you must have returned to the Congo, as that is when and where I am told you met and married your wife.  You returned to Australia, leaving her in South Africa until a visa was available.  Your first child was born whilst she was still in South Africa and you were in Melbourne.  She was able to join you with that baby in 2005.

54In Melbourne, you recommenced employment with Cadbury Schweppes as a delivery courier, and I am told remained employed for about three and a half to four years at that.  You also had employment at times with an uncle as a labourer for a construction business he operated.  I am told that you were employed on a part time casual basis there for three to four years, although payment was not always regular.  However, you were clearly back in New South Wales from late December 2009 for your court case and then to serve a term of imprisonment. 

55I am also told that your mother ran a clothing shop about which the jury was told in your evidence, and that you worked there as a manager, running it for some time.  Your wife apparently also became employed part time in that business from about 2006 or 2007 and she ultimately took over the business in 2009.  However, it came under financial pressure and ceased to operate about 2012 or 2013.

56In late June 2014, you were arrested and charged for the conspiracy to import heroin, and remanded in custody.  While in custody for that charge, you were charged for the drug offending of December 2013, that being the matter that subsequently came before Judge Hogan.  You were remanded in custody from June 2014 until April 2015, when on 24 April, you were granted bail in this court.  This was on the grounds of the imminent death of your mother.  Your mother unfortunately passed away soon after that, in May 2015.

57You remained on bail until the trial that was to commence before Judge Cannon in late July 2016.  It was while you were on bail over this period, some
15 months, that you engaged in the offending for which you have now been found guilty and fall to be sentenced by me. I note that you were on bail throughout the arrangements for both the 2015 and 2016 consignments.    

58The offending for which I sentence you occurred between 27 April and 23 July 2016.  On 27 July, that is four days after your involvement in this offending is alleged to have ceased, a jury was empanelled for the trial before Judge Cannon. While that trial was running, on 5 August, you were arrested on the current matter, and remanded and I assume bail was revoked on the other two drug related charges.  You have been in custody ever since, that is since 5 August 2016.

59I have read two affidavits[2] in relation to the arrangements in custody and your time and circumstances whilst you have been there.  The first affidavit was made on 17 October 2017, presumably for the purposes of Judge Hogan's sentencing of you, and a more recent one, made 3 July 2019, sets out your history since. Imprisonment is a highly regulated, disciplined and restricted environment, and I have little doubt that you have found the rules and confines difficult to accept. You appear to have learnt the processes, and have been cooperative throughout, whilst still making your wishes or preferences known.  I accept that the prospect of remaining in the prison system under the very long sentences you are currently serving has been depressing and worrying for you, and has taken and will continue to take a lot of time for adjustment.

[2] Affidavits of Brendan Francis Money, made 17 October 2017 and 3 July 2019.

60There are regular review committee meetings held with you, and particular meetings after incidents that have involved you.  For a considerable time, you did paid prison work as a hairdresser.  You have spent most of your time as a protection prisoner, the conditions of which are described as varying between the different prisons, but the latest affidavit explains that being a protection prisoner does not exclude you altogether from work or programs, does enable large portions of a day out of your cell, and contact with other prisoners, although probably smaller numbers of them.

61You were transferred for an extended period last year to Barwon Prison, but then transferred to Port Phillip Prison in November last year where you have remained.  The latest affidavit says that you are likely to be placed at Barwon Prison again due to categorisation and that is no reflection on your security or any misbehaviour by you. You are a special category prisoner because of the length of your sentence.  The sentence calculation administration last calculated your non-parole period to end on 5 October 2032 and the end of your sentence to be 5 October 2040.

62Over the years of being sentenced by various courts, you have on occasions been examined by psychologists.  Ms Maria Cassar provided a report in January 2014 having treated you over three sessions from October 2013 to January 2014 on referral for depression and anxiety.  The report of Ms Cassar, which I take to have been prepared for the case then shortly to go before Judge Bourke, sets out your history including the atrocious experiences of your childhood in Africa, your troubles at school in Australia, and how you came to criminal involvement after that.

63On her history, you had turned your life around in the four and a half to five years before you attended her, marrying with three young children, supportive of your wife as your wife was undergoing nursing training.  She understood that you had refrained from criminal activities for over four years, and that you regretted the period during which you had been offending, attributing it to being under the influence of people whom you feared to disobey, and it being as a result of your alienation in the Australian white community.

64She diagnosed depression and Post-Traumatic Stress Disorder.  She found you to be cooperative, thoughtful but anxious, and a person holding your pain close to your chest, but during counselling sessions, you had expressed deep remorse for your crimes and demonstrated an insight indicative of significant thought shift marked by maturity and lifestyle changes.  You were facing court for crimes committed nearly four and a half years earlier, having been incarcerated for earlier similar offences, and she felt you had learnt from your experiences in maximum security in New South Wales.

65Ms Cassar pointed to the hardship of your experiences in Africa, and was of the opinion that your psychological symptoms derived from Post-Traumatic Stress Disorder and depression, and had impacted your judgment, which in turn had led to your offending in the past. On the tests she administered, the DASS Self-Rating Inventory, she assessed you at that stage as experiencing extremely severe depression and anxiety, and severe stress, and said that you were experiencing sleep disturbances, deep sadness, digestive difficulties and anxiety attacks. She concluded that you still suffered from Post-Traumatic Stress Disorder with comorbid depression and anxiety, and you had also been diagnosed with adjustment disorder.

66Ms Cassar believed you were experiencing increased anxiety about the then imminent court case.  She noted you had maintained a strong, loving family relationship. Her opinion was that you were committed to ongoing psychological support and management, had made life changes over the previous five years and that you were no longer at risk of reoffending.

67Sadly, it now appears that barely a month earlier than her report, that is in December 2013, you had committed the offending of which you were later found guilty by a jury before Her Honour Judge Hogan.

68I interpolate here, that I am aware that there is still an appeal pending about that conviction which has not been decided, but on the record, you stand convicted at the moment of that offending.

69Mr Tim Watson-Munro, consultant forensic psychologist, had assessed and reported on you for court appearances in December 2009 and April 2013, and saw you again in June of this year for this case.  He also gave oral evidence before me.  All of his reports had been in anticipation of court cases, and he had not treated you, although in his April 2013 report, it was said you had expressed willingness to engage in treatment with him and he recommended ongoing treatment for you, however, that did not eventuate.

70In December 2009, he took a history of your complex background, noting at a clinical level symptoms which he confirmed through psychological testing, which indicated a high degree of unresolved emotional distress. 
He noted your then prior criminal history, and that you were facing sentence before what I take to have been the New South Wales court in relation to a serious financial offence. You expressed remorse to him for your behaviour.  His diagnosis was of an adjustment disorder with a high degree of unresolved psychological distress.  Your anxiety had been aggravated by your incarceration at that stage, and your concerns for your family, your wife and what were then two young children, who were entirely dependent on you as the sole breadwinner in the family. He thought it clear your symptoms and in particular your longstanding insecurities, had impacted upon your judgment at a significant level, which had led to your offending.  He considered you required treatment including one to one psychotherapy.

71In April 2013, he reassessed you apparently in respect of a bail variation application.  He was impressed with your significant change of attitude since he had last seen you.  He noted no subsequent convictions.  He understood you had been working consistently, typically he had it recorded attending the Congo three or four times a year for up to two to four months at a time, while your wife and then three children were in Australia as were your siblings.

72He interviewed you again in June this year for the current hearing.  His report reflects knowledge of only one of your two drug importation related convictions and sentences, but in the end, that does not alter the relevance of his evidence in my view. He did not perform testing again, but noted that your incarceration was having a telling impact on your mood state.  You described considerable stress from financial problems before the offending, from debt incurred after borrowing to support the business being run by your wife but which had to close, he had recorded, in about 2013. He said in his oral evidence that you do not cope well with stress, which he considers a result of your earlier experiences and the resultant psychological impact, and that poor judgment is a likely consequence.  He discussed the impact of facing such a long sentence which he understood at that stage to be 13 years with 10 years before parole.

73In oral evidence, Mr Watson-Munro confirmed his view that you suffer an adjustment disorder, but did not disagree with Ms Cassar's diagnosis of
Post-Traumatic Stress Disorder.  A consequence of this condition, he said, is that a person can become emotionally numb, a process further compounded by long-term imprisonment, so you have to come to grips with thoughts of a wasted life. He expected you to undergo fluid moods, some days more depressed, and he said a buoyant mood one day does not mean that you could not be deeply depressed another, including having suicidal thoughts.  He considers that you have shown yourself to have poor judgment for many years, that you tend to be impulsive and you have been a slow learner so far as continuous involvement in the justice system is concerned.

74His view is that you are not objective in the way you see your environment, and have a subjective approach to solving problems and exercising judgment. 
He agreed with the proposition that you are resourceful, based on your survival of terrible circumstances.  He believed that your current main stressor is your prospect of long-term incarceration.  He said anyone facing a crushing sentence would be riddled with despair, and you have lowered capacity to cope with stress based on your anxiety disorder and Post-Traumatic Stress Disorder feelings.  He noted that you do not seem to have had therapy dealing with your depression, and still recommended that you do so.

75I have read references provided to me.  There were references from two reverends who are friends of your father.  One has known your family since 1999, and describes you as having been drawn by youthful exuberance into waywardness, but having since developed into a responsible person, and that you have recognised the need for family cohesion and are now much closer to your father than before.  He believes that your new attitude has drawn you into having a positive influence on your fellow inmates through The Ministry of the Gospel. He says a huge sign of transformation is that you now openly and honestly admit your previous (what he calls) waywardness.  He asks for leniency to allow you to return to your wife, children and normal life.

76The second reference is from the pastor of your particular church.  It purports to affirm your progressive development in godly character and your commitment to be a law abiding citizen of this nation.  He supports you being given a second chance to contribute to this society.

77I have taken into account both references and the views of their writers but neither of these references reflects the reality of either your past criminal history nor the sentences that you are currently serving, nor the offending for which I sentence you.

78I heard oral evidence from Mr Peter Skopilanos, who is part of a prison fellowship who visits the prison once a week and speaks with prisoners to give comfort and support.  He acknowledges no training in doing that, but I accept that he is firmly committed to Trying to give such comfort and support.

79He has been visiting you weekly and says he has seen a change in you, and that you have become one of the leaders of a church group within your unit, and become a role model within that unit.  From discussion with you, he says you feel very responsible for your family, including siblings as well as your wife and children.  He says you were originally down and putting on a brave face, that you have the ability to capture an audience, and currently you are using that ability to guide younger men entering the unit, apparently including a brother of yours of whom you are very protective.

80Your father also wrote a substantial and detailed letter and gave oral evidence.  I will not repeat all of its content.  He explains much more about your personal and family history and your interactions with him.  He blames Mr Jackson for your involvement in this operation.  He says that until you met Mr Jackson in early 2013, you had no previous drug connections.  That may well be his view, but it is simply not borne out by the objective information before me as to the previous two drug importations of which you have been convicted of involvement, and which involved other people and not Mr Jackson.

81Your father talks of your devotion to your family, and of what he regards as your intelligence, and other aspects of your character and behaviour which he seeks to support.  

82Those are the factual circumstances of the offending and of your personal circumstances.  I now turn to the sentencing principles which relate to your case.

83Under s.16A(1) of the Crimes Act (Cth) the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.
Under s.16A(2), the court must take into account a number of matters, if relevant in the particular case, and I now turn to those that are relevant in your case. In doing this, I shall not specify subparagraphs or case citations, but will footnote those in the revised transcript of these reasons.

84First I must take into account the nature and circumstances of the offence.[3] 

[3] Section 16A(2)(a).

In doing this, I must address both the objective seriousness and the level of criminality of your role in this offence. 

85The maximum sentence for this charge is life imprisonment, which is an indication of the objective seriousness of offences of this nature.  That is the most severe sentence for any crime in Australia.  The reasons for this include the widespread harm done within the community by the distribution and use of such drugs, the difficulty of detection of this type of offence, and the large sums of money to be made by those cynical enough and greedy enough to make a business from such trade.

86In the context of state offences of trafficking drugs, the devastating impact on the community as well as individuals is also frequently noted to reflect the serious and need for stern punishment.

87The fact that the drugs in this case were intercepted and replaced by authorities does not decrease the seriousness.  Indeed, the maximum penalty is the same for an attempt as the actual offence of possession, and the intention of you and Mr Jackson was to take delivery of the consignment expecting it to contain the drugs which it originally did contain.

88The quantity of drugs is highly relevant,[4] although not the sole determinant of seriousness.  In this case, it was very large indeed.  The threshold for a commercial quantity of this drug is 750 grams, so the pure net amount of approximately 125.5 kilograms was over 167 times the commercial quantity, and that reflects very high objective seriousness. The prospective value was between $12 million to $19 million if sold in bulk, and between $40 million to $80 million if sold on the street.  Clearly both the quantity and potential value indicate that huge profit was likely from this shipment had it not been detected.

[4]Nguyen v R; Phommalysack v R [2011] VSCA 32.

89The arrangements for the importation were relatively sophisticated with the use of names and addresses of a real company, that is Evergreen, and a real person, Mr Cam Luu, but with altered contact details, the changing of delivery addresses from New South Wales to Victoria and then the setting up of the warehouse storage with Mr Gill of Timberland and the use of multiple SIM cards and phone numbers and internet cafés to try to guard against calls and messages being traced. Further, the fact of the preceding container of logs being sent in September 2015 also reflects considerable planning, and preparedness to spend time and expense on an extra container shipment many months earlier.

90Whilst not the largest ever importation into Australia of drugs, nor the most sophisticated, objectively this was a very serious instance of this offence.

91As to your role and culpability or criminality, the prosecution alleges that you were the principal offender in relation to at least the stage of the drug supply which was the subject of this charge. During the plea hearing, the prosecution suggested that it was possible there was no so-called “Mr Big” beyond that.

92Your counsel argues that that was not established on the evidence beyond reasonable doubt, and that I should regard you as no more important and no more in control of these events than Mr Jackson.

93I have set out a summary of evidence as to your involvement, which I will not repeat.  I find that you had a significant role and exercised degrees of control at least from 20 July onwards over others involved.  In the end however, I am not able to be satisfied beyond reasonable doubt that you were in sole overall control of the operation such that you were in total control of Mr Jackson's significant role. However, I note that you rebuked him at times, and in the days after the actual delivery, you first told him to dispose of phones and then rebuked him for not answering when you had been ringing on those phone numbers.  In my view, you were in control of the ongoing operation, after Mr Jackson returned to Sydney on the night of 20 July, at least until the drugs would have been removed from the logs.  I note in this regard your continuing contact with and directions to make arrangements through Omar and some others.

94I have considered whether the intercepted calls between you and people overseas in the last few days between the delivery of the logs and your arrest, shed light on your level of control or your place in the so-called hierarchy of the organisation.  In the end, I cannot be satisfied that those calls do shed light on your role, because some could be interpreted as you being in control whereas others could be interpreted as you being afraid of others or the implications of the delivery going wrong.

95Further, I cannot be satisfied that you were involved in the arrangements that would have been made at the African end for the shipment to leave Nigeria, and therefore for the concealment of the drugs initially in the logs.

96There is no evidence on which I could form a view let along make a finding beyond reasonable doubt of what amount of money, share of profits or other gain you stood to make from your involvement.  While not conceding your involvement, your counsel says that you were under financial pressure at the time, indeed over several years leading up to the time of this operation with no steady employment and a family to support.  I have mentioned that you told
Mr Watson-Munro of borrowing and ultimately losing a lot of money to do with trying to prop up the shop that had been taken over by your wife from your mother.

97It is usually to be inferred that involvement in this type of offending is for monetary gain, unless there is firm evidence to contradict that.  I see no firm evidence to contradict it.  I therefore sentence you on the basis that you engaged in this operation for monetary gain, and for gain of a substantial amount to warrant the risk you were taking, especially being on bail at the time in respect of other drug importations.

98The prosecution submitted that it is very likely that you knew the quantity expected to be concealed in the logs, given your role.  I cannot be satisfied of that beyond reasonable doubt, however, I am satisfied that you must have known that there was a very substantial quantity, not just a commercial quantity being 750 grams.  I reach that conclusion because of the size and number of logs, and the arrangement whereby all of the larger sized logs, 14 of which contained the concealed packages of drugs, were moved to the bush area for the extraction of the concealed content, whereas some of the smaller ones were left at Mr Gill's yard supposedly to be removed soon afterwards.

99Your culpability is a little less than if I were satisfied that you actually knew the quantity, especially where in fact there was such a very large quantity, but I am satisfied that you expected a very substantial quantity commensurate with such a large container load of logs, and therefore an amount of drugs of high value, to be contained in this delivery.

100Taking all of these considerations into account, I assess your culpability as high, lasting over some two to three months at least, but not as the overall organiser, instigator or potential ultimate profit maker of what was clearly a very substantial drug importation operation.

101I sentence you on the basis that you were of a level of control and knowledge at least as great as Mr Jackson, and more in control than him once the logs were relocated to the bush area of Anderson Road on 20 July 2016.

102I move to the next consideration under s.16A(2) which is to take into account your character, age, means and health.[5]  I have already outlined the factual basis of these circumstances.  You were aged 36 at the time of the offending and are now 39.  You are married with four children, all still young, and apparently have another child aged 14.  I have very little information about your means, except that you are said to have been under financial pressure at the time and leading up to this offending.  You apparently suffer from high blood pressure controlled with medication.  I accept you also suffer psychological conditions of depression and anxiety, whether a separate adjustment disorder or as symptoms of a longstanding Post-Traumatic Stress Disorder.

[5] Section 16A(2)(m)

103I take into account that your mood disorder is likely to make your experience of imprisonment more burdensome, but that is also in the context, in your case, of the evidence of Mr Watson-Munro that any person facing such a long term of imprisonment, as you already are and continue to be, is likely to suffer a similar experience.

104In relation to your character, I have mentioned the references of two reverends who are friends of your father, and said that neither of those references reflects the reality of your past criminal history, the other sentences you are currently serving, nor the offending for which I sentence you.

105Mr Skopilanos’ evidence supports that you are now using your personal qualities to help others in the prison system.  If doing that and the religious support he brings to you, assists you with coping with long-term imprisonment, hopefully it will give you a feeling of purpose.

106Your father's assessment of your character I have taken into account. 
I have already expressed that I accept his descriptions of the reasons for your feelings of resentment towards him, and that he feels you and he have established a better relationship since you have been in prison.

107While I accept that you may well believe as he expresses that you are devoted to your family, your behaviour as disclosed in this case does not objectively bear that out, or not to the extent that is described by your father. I say that even before your prior criminal history is taken into account. You have a wife and young children – the youngest born during the period of this offending, as I understood the evidence.  However, you were prepared to engage in this enterprise and risk your future with that family. Other aspects of the evidence which do not bear repeating here, reflect to me that your concept of devotion to your family is not as the reference writers might have me believe.  I accept that you do feel deeply troubled by what is now to be a very long term separation from the lives of your children as they grow up, and of course from your wife.

108As to your character, also very significant is that you had a considerable criminal history before this offending, including having served time in prison.  This past reflects poorly on your general character, although the prior convictions did not include drug offences nor indeed other offending as serious as this.  I do note that as related through Ms Cassar and Mr Watson-Munro on his earlier assessments of you, you were said to have very significantly reformed your life for a period of years, but unfortunately it turns out that by the time those opinions were given, you were becoming engaged in and moving onto the serious involvement in drug importation situations.

109You were at the time of this offending on bail for charges relating to two previous drug importations, although you had not, at that stage, been found guilty of either, you have since been convicted after a trial on each.[6] That you used your time on bail to become involved in this attempt to possess yet another illegally imported large quantity of drugs is an aggravating factor, and also a circumstance making specific deterrence[7] a relevant sentencing purpose in your case.

[6] One still subject to appeal.

[7] Section 16A(2)(j)

110Turning to the next consideration, there can be no doubt that the nature and seriousness of this offence requires general deterrence[8] to be the principal sentencing purpose, together with considerable weight given to adequate punishment[9] and community denunciation. General deterrence is to send a message to other people tempted to engage in offending of this nature, that it will attract stern punishment.

[8] Section 16A(2)(ja)

[9] Section 16A(2)(k)

111I take into account that you stood trial on this charge rather than plead guilty. 

[10] Section 16A(2)(g)

[11] Section 16A(2)(f)

It was your legal right to do that, and your sentence will not be increased as a result, but you do not receive the benefit of a lower sentence to which you would have been entitled had you pleaded guilty.[10]  Further, there is nothing to indicate any contrition shown by you[11] to be taken into account because you still deny any involvement in this offence.

112Your co-offender, Mr Jackson, did receive the benefit of a reduction of sentence due to the plea of guilty, even though he did not plead guilty until the trial starting last October.  He also showed contrition for his involvement, entitling him to some leniency for that as well.

113At your age, rehabilitation[12] is not usually a significant sentencing purpose, and in light of the long sentences that you are already serving, I regard it as having little role to play.

[12] Section 16A(2)(n)

114Although the sentence undoubtedly will have implications for your family, there is no evidence of any exceptional hardship that would warrant particular and exceptional leniency or moderation of your sentence.[13]  I do accept that knowing it is inevitable that your children will all grow up without your presence in their daily lives is likely to be a source of long-term concern for you.  I accept that it is currently causing you great anxiety.  I take into account that such concern increases the overall burden of imprisonment for you.

[13]Markovic v R; Pantelic v R [2010] VSCA 105.

115I also take into account that the principle of totality has significance in your case.  That principle is that where an offender is to serve multiple sentences, then the judge imposing sentence should ensure that the total sentence remains “just and appropriate” for the whole of the offending.[14]  It has also been described as “a just measure of the total criminality.”[15]  It applies to both the fixing of the head sentence and the non-parole period.  It is also associated with the principle often stated of avoiding what might be considered a crushing sentence.  It has been noted that crushing sentence is not often defined[16] and must inevitably depend on the particular circumstances of the offender involved.  It has been described as generally conceived of as a sentence that is imposed in such a way that it would provoke a feeling of helplessness in the offender if and when he is released, or as connoting the destruction of any reasonable expectation of useful life after release.

[14]Mill v R (1988) 166 CLR 59, at [66]

[15]Azzopardi v R [2011] VSCA 372, per Redlich JA at 61 See Redlich

[16]R v Beck [2005] VSCA 11, per Nettle JA at [19]

116In applying these principles in this case, I take into account that your drug importation related offending involved three separate episodes of importation, and trying to accept delivery of a commercial quantity of drugs over a period of some two and a half years.  Each offence was not only separate, but different in its arrangements, and was committed with different people and the separate seriousness of each must be reflected in the total sentence.  The total criminal offending, as has been said, must be taken into account, including willingness to get involved in three such separate but serious operations.

117In practical terms, although you committed this offence while on bail for two other offences of a similar nature, the fact that you were convicted of those other matters in the meantime means that you have been in custody since your arrest for the current offence on 5 August 2016, and that time forms only a small proportion of the sentence imposed by Judge Cannon, with the one imposed by Judge Hogan not to commence until nine years from now.

118Although you had not been found guilty of either of the other two drug cases, I regard as particularly serious that you chose to engage in this enterprise involving a large importation of drugs, even larger than those other two had been, and that it occurred while you were on bail for both of those offences. This means that significant punishment must be imposed beyond what you are already serving.

119However, I accept that some concurrency is required to alleviate at least to a moderate degree the crushing prospect of how long you are ultimately to serve in prison for the totality of these offences.

120In considering totality, I have also had regard to the fact that the total period you will spend in prison includes the extra year you had to serve which was the period of the restored State suspended sentence for fraud, that had originally been imposed by Judge Bourke and restored by Judge Cannon.  That was one year of imprisonment before the first Federal sentence even started.

121Finally, I have had had regard to current sentencing practice for offences of this type.  In doing so, I must take into account Australia-wide practice[17] to apply consistency in sentencing on Commonwealth offences, of which this is one.  There are a range of cases I have considered to which I was referred by the prosecution in relation to Mr Jackson and to you.  I shall attach a short synopsis of those I have considered to my sentencing reasons, but not read those out individually at this stage.

[17]Pham v R [2014] VSCA 204

122I have taken into account that no two cases are ever identical, but there are features that make the circumstances of your offending in this case more or less serious or require more or less penalty.

123You already know from the sentences imposed on you by Judges Cannon and Hogan, and indeed the sentence I imposed on Mr Jackson, that the sentences for offending of this nature are very substantial. 

124In comparing your sentence with that which I imposed on Mr Jackson, he is a considerably older man than you, with a criminal history that I regard as negligible compared with yours and much more remote from the timing of the offending in this matter.  He had no subsequent offending and no involvement in other drug offences. While I sentenced him on the basis that he was a trusted right-hand man to you but not in control of this operation, that has not made much difference to my view of your role in relation to this case.  I have already said that I am sentencing you as of approximately the same level of criminality as him, although having more control than any he still had after he returned to Sydney.

125The greatest difficulty for you when I come to consider issues of parity with Mr Jackson, is that although relatively late, he pleaded guilty and received the significant benefit that attaches to having pleaded guilty and shown contrition in acknowledging his involvement. 

126Under s.17A(1) of the Crimes Act, a court must not impose a sentence of imprisonment unless, having considered all other available sentences, the court is satisfied that no other sentence is appropriate in all the circumstances of the case.  As was conceded by your counsel, there can be no question that in this case, no sentence other than imprisonment is appropriate.

127As I find that, I will be directing, pursuant to s.17A(2)(b), that these reasons be entered in court records.

128Under s.19AD(2) of the Crimes Act, as there is already a non-parole period set for other Federal sentences, I must decide whether to confirm it, set a new single non-parole period, or cancel the existing one and not set any parole period.  I have already referred to the nature of the offending, the existing non-parole period of 16 years, and your past offending.  This further serious offending for which I sentence you calls for a longer non-parole period than the current 16 years, to reflect the matters I have already mentioned of it being a further serious offence committed when you were on bail for the other two similar offences, and in light of your total criminal history. However, I do not consider that your overall criminality calls for cancellation altogether of any non-parole period, and indeed the Crown did not suggest that it should.

129I am now prepared to impose sentence. 

130Wedi Ndjeka Bembo, on the charge of attempting to possess a commercial quantity of a border controlled drug, you are convicted and sentenced to 19 years' imprisonment.  Ten years of that is to be cumulative on the Commonwealth sentences you are already serving,  so the commencement date will be, on my calculation, 24 March [2038] 2033[18] – that is [10] 5[19] years after the commencement of Judge Hogan's sentence, which as I understand it commences on 24 March 2028.

[18] Amended to 24 March 2033, to correct an error in calculation – see Addendum to Sentencing Reasons

[19] This change follows from correction of commencement date.

131Pursuant to s.19AD(2)(e), I set a new single non-parole period of 25 years in respect of all Federal sentences you are to serve or complete. Pursuant to s.19AD(3) that period will supersede the existing non-parole period set by Judge Hogan, so it commenced on 24 March 2018.

132On my calculations, that will mean that it will be 23 March 2043 before you will be eligible for parole, a little over 23 and a half years from now.[20]  The new head sentence will be 34 years also commencing 24 March 2018.  So some 31 and a half years from now.  There is no pre-sentence detention to be declared.

[20] In revising this sentence, it has been realised that pre-sentence detention declared reckoned served by Judge Cannon means that over 5 months less than estimated remains.

133I formally direct pursuant to s.17A(2)(b) that these reasons be entered in court records.

134Are there any further orders needed?

135MR DICKIE:  No, Your Honour.

136HER HONOUR:  All right.  I will be adjourning the court.  Mr Schwartz, do you wish to talk to your client here or will you visit him downstairs?

137MR SCHWARTZ:  No, I will see him downstairs, Your Honour.

138HER HONOUR:  Yes.

139MR SCHWARTZ:  Is it possible to obtain a copy of the reasons for sentence at some stage and make it available to the defence?

140HER HONOUR:  Certainly it will be, but I have been reading from combination notes of which I have got a substantial portion.

141MR SCHWARTZ:  Yes.

142HER HONOUR:  The sentence will be transcribed.

143MR SCHWARTZ:  Yes.

144HER HONOUR:  The unrevised version will be sent to my chambers.  I am actually on leave next week but I will be coming in and I intend, as soon as it arrives, to deal with it and make sure it is revised and does not wait for my return from leave – but it will inevitably be well over a week from now before the revised sentence is available.

145There is a recording that is made and I was going to raise - I have been asked as all judges are in respect of all of these sentences now, whether the oral delivery, the oral version, can be placed on the media portal.  It is an audio portal to allow reporting by authorised media agencies or reporters.

146So what I am saying is there is an oral version.  I intended to allow that. 
The only question in my mind was whether there is any need to anonymise names but as I understand it, your client has an appeal still pending in relation to the matter of Judge Hogan.  He obviously will consider what to do about the conviction and sentence I have just imposed and I am not trying to foreshorten that.  But I do not see at this stage that the publication of his name on a media portal, which will mean media might publish it, is likely to jeopardise his legal position in any respect.  The Court of Appeal knows the names.

147MR SCHWARTZ:  Yes.  It is not so much the Court of Appeal but ‑ ‑ ‑ 

148HER HONOUR:  No but you want the sentence reasonably promptly. 
I understand that.

149MR SCHWARTZ:  Yes.  I need to communicate the sentence to those instructing me who do not take the time to be here.

150HER HONOUR:  Yes.

151MR SCHWARTZ:  And for reasons which I am not going to now. However, it is essential that they understand precisely what was said by Your Honour in order to determine his future in relation to this particular matter.

152HER HONOUR:  Well I cannot guarantee that without the revised transcript being available.

153MR SCHWARTZ:  No.

154HER HONOUR:  I will deal with it despite being on leave next week but it is often the best part of a week.  Today is a Friday.

155MR SCHWARTZ:  Yes.

156HER HONOUR:  The reality is it often does not - the unrevised version - I may be wrong, it may be available Monday.  It will not be available today almost certainly.

157MR SCHWARTZ:  No.

158HER HONOUR:  I intend to come into the court building more than once next week.  So when I have seen it, I will work on revisions.  It is not to change the impact, it is to correct matters, as you know, sometimes are misheard or the grammar is not too felicitous, and to insert the footnotes.

159MR SCHWARTZ:  What I am asking Your Honour is an opportunity to view it as soon as Your Honour determines that this is it, namely until such time you are satisfied.

160HER HONOUR:  As it is revised.  It will be emailed to you as soon as it is revised.

161MR SCHWARTZ:  I am indebted, Your Honour.

162HER HONOUR:  All right, if that is what - yes.  I thought you needed earlier access.

163MR SCHWARTZ:  No, no.

164HER HONOUR:  It will be emailed to you and of course to the prosecution as soon as it is revised.

165MR SCHWARTZ:  Yes.

166HER HONOUR:  I am hoping not too much more than a week away, but I cannot guarantee that because I have got to get it.  I have got to revise it and then the revisions have to be confirmed.

167MR SCHWARTZ:  Can I just ask Your Honour then, in relation to the present sentence as you have finally determined it.

168HER HONOUR:  Yes.

169MR SCHWARTZ:  As to the non-parole period based on a consideration of all matters.

170HER HONOUR:  Yes.

171MR SCHWARTZ:  As expressed by Your Honour in the course of your ultimate sentencing statements, I understand that the non-parole period is set to expire on 23 March 43, is my understanding correct?

172HER HONOUR:  Well I do not set its expiry date because there can be matters that interfere with that. 

173MR SCHWARTZ:  All right.

174HER HONOUR:  Sorry.

175MR SCHWARTZ:  First eligible.

176HER HONOUR:  Yes, but I said that to explain to your client what I calculated it was as things stand at the moment.  But you would be aware that over, especially very extended periods of time as that, there can be administrative deductions for a variety of matters that might come into play over the coming years.  It is 25 years.  Its commencement is 24 March 2018.

177MR SCHWARTZ:  Yes.

178HER HONOUR:  And on my arithmetic that it would mean 23 March 2043.

179MR SCHWARTZ:  23 March 43.

180HER HONOUR:  But I do not fix its finishing date.  I fix its duration and it supersedes what has already commenced on 24 March 2018.

181MR SCHWARTZ:  The reason why I have asked you this, Your Honour, is that my client needs to understand as he sits here at the moment.

182HER HONOUR:  Yes.

183MR SCHWARTZ:  Subject to whatever may be decided, what his sentence is as at this particular moment.

184HER HONOUR:  That is the only reason I mentioned my calculations, to explain that although of course you will need to talk about it to him also.  The reason I said what I calculated the expiry to be was to give him that overview.

185MR SCHWARTZ:  Yes.

186HER HONOUR:  For my sentence and indeed the non-parole period, I fix the duration and the commencement date and what may come to pass in terms of whether that is reduced at all by remissions is ‑ ‑ ‑

187MR SCHWARTZ:  Over which Your Honour has no control of.

188HER HONOUR:  Absolutely not and absolutely no ability to predict what might happen in what is undoubtedly a very long time to come.

189MR SCHWARTZ:  It is indeed.  Thank you, Your Honour.

190HER HONOUR:  All right.  I will therefore then adjourn the court.

191MR SCHWARTZ:  Can I ask that my client remain in court for a moment or so if that is possible?

192HER HONOUR:  For a moment or so, yes.

193MR SCHWARTZ:  I am indebted.

194HER HONOUR:  He has been here for a long while.  I did consider a break but I thought that would just prolong the stress of hearing it.  If Mr Bembo could be kept here for a few minutes to talk with Mr Schwartz, although I assume you will go downstairs and talk more fully with him there.

195MR SCHWARTZ:  Yes, Your Honour.

196HER HONOUR:  All right.  I will, as I say, as soon as those reasons are revised, they will be forwarded to both sides.

197MR SCHWARTZ:  I am indebted, Your Honour, thank you.

198HER HONOUR:  Thank you.  Please adjourn the court.

‑ ‑ ‑

Addendum to sentence of Wedi Njedka BEMBO

1.After the date this sentence was imposed, an error was discovered and brought to the Judge’s attention.  The error was in the calculation of the commencement date for the term of 19 years imprisonment.  It would have created a longer overall total sentence than what had been intended. 

2.At a mention on 25 September 2019, pursuant to s 412 of the Criminal Procedure Act 2009 (Vic) the sentencing order made on 23 August 2019 was corrected by amending the commencement date of the term of imprisonment of 19 years to 24 March 2033 (instead of 24 March 2038).

3.There was no change to the commencement date of the non-parole period, which remained 25 years commencing 24 March 2018.  The reason for no change to the non-parole period’s commencement date was that it is a new single non-parole period that superseded previous federal non-parole periods set for Mr Bembo, the first of which commenced on 24 March 2018.

SCHEDULE:

Summary of Cases considered for current sentencing practice

1In Brown[21], the offender had been found guilty after a trial in relation to involvement with two separate shipments of drugs, the first of some 4.5 times a commercial quantity and the second 60 times a commercial quantity.  The Court of Appeal found original sentences manifestly inadequate, and resentenced him to 11 years' imprisonment on the first importation and 16 on the second, the total effective sentence being 20 years' imprisonment with a non-parole period of 15 years.  The offender was found to have played an essential and managerial role at the Australian end of the operation, including travelling to Mexico between shipments to discuss the next one, and it was found he was motivated solely by greed and not addiction or financial distress. 

[21]DPP v Brown [2017] VSCA 162

Your charge involves double the quantity of the drug making it objectively considerably more serious.    I do not find that you were motivated solely by greed, and am unable to make a finding as to the extent you were to gain, although I find your motive was substantial financial gain. 

2In Jaafar[22] the offender had pleaded guilty early to conspiracy with others to import a commercial quantity of cocaine, the amount being 61 times a commercial quantity.  That was in a sophisticated concealment.  The NSW Court of Appeal reduced the head sentence for parity reasons to 17 and a half years, maintaining the non-parole period of 11 years despite calling it particularly generous.  In that case the offender had the longest involvement amongst the co-offenders, was found to not be subject to anybody else's direction although his involvement was to a degree below that of two co-offenders.    He was found to have known the quantity to be imported of the drug, and that feature was confirmed to be regarded as increasing the seriousness of the offence. 

[22]Jaafar v R [2017] NSWCCA 223

In comparison, you did not plead guilty, but I am not able to find that you knew the quantity expected to be concealed in the delivery. The actual quantity in your case makes yours objectively more serious than in Jaafar's case.

3In Blango[23], of three charges to which the offender pleaded guilty, the one of them closest in similarity to yours was of attempting to possess a commercial quantity of methylamphetamine because the authorities prevented an intended importation.  The offender had attempted to possess 33 consignments that were to arrive in close proximity to each other on different days.  The total of 55.76 kilograms was 74 times the commercial quantity.  A sentence of 15 years' imprisonment for that charge was not overturned.

[23]Blango v The Queen [2018] VSCA 210

The fact of multiple consignments, albeit each of smaller quantities increased the objective seriousness of Mr Blango's offending, but the quantity in your case was much higher than his total. He had a considerable criminal record which although including more violence was not totally unlike yours.  He was in his early 30s.  He had pleaded guilty and this was a rolled up charge.   His situation was not aggravated by being on bail for similar offending at the time. 

4In Alvarez[24],  the Qld Court of Appeal found severe, but not outside a proper exercise of sentencing discretion, a sentence of 22 years' imprisonment with a non-parole period of 14 years and eight months, for conspiracy to import, and trafficking a commercial quantity of cocaine.  The total amount was 35 times the commercial quantity for that drug.     That offender was a young man in his early 20s who was involved for more than a two year period, having conspired with others to import and also traffic a commercial quantity of cocaine.  He had pleaded guilty, but disputed some facts requiring evidence to be called.  

[24]Alvarez v The Queen [2018] QCA 162

In comparison, the quantity of the drug in your case was much greater, you are older, and did not accept responsibility by pleading guilty, but his period of involvement was longer, and although he pleaded guilty the utilitarian value of that was not as great because of the disputed facts requiring the hearing of evidence and determination by the judge.

5In Yuan,[25] over a period of three to four months the offender had organised importation of a container with 68.8 kilograms of pure methylamphetamine, a little over half the amount in the present case.  That offender was characterised as having a pivotal role in that importation.  He stood trial and there was no evidence of remorse. He had no prior convictions.  The original sentence of 10 years’ imprisonment with a non-parole period of 6 years was found manifestly inadequate, and increased by the majority of judges in the NSW Court of Appeal to 15 years with a non-parole period of ten years, although the dissenting judge indicated 13 years with a non-parole period of eight and a half.

[25]R (Cth) v Yuan [2015] NSWCCA 198; (2015) 252 A Crim R 422

In comparison, the amount in your case was almost double, and that offender had no prior convictions and was not on bail as you were for similar offending.

6In Elfar and Golding[26], three co-offenders who stood trial each received head sentences of 30 years imprisonment, with non-parole periods of 20,18 and 16 years respectively as upheld by the Qld Court of Appeal.  The non-parole periods distinguished their respective roles and degree of criminality, and also had regard to some co-operation during the trial by one (Sanders – who did not appeal his sentence).  None of the offenders had relevant or recent criminal history, and all were over 40 years old.  The motivation of all was purely financial.  They with others had been involved in an importation of 400 kg of material that contained 283Kg pure cocaine – 140 times the commercial quantity for that drug.  Elfar and Golding sailed a yacht to meet another vessel, transferred the drugs on-board and then returned to shore and delivered some 45 kg to others.

[26]R v Elfar & Golding [2017] QCA 170

Elfar received the highest non-parole period, having been found to have been in control of the yacht, and in touch with the other ship from before it left South America with the drugs more than three months earlier.  Golding was in telephone communication for short periods during the month preceding the delivery with the man who met them onshore to collect the 45 kg.   This was an elaborate operation, involving a very large quantity of drugs, and involved costly investigation including surveillance aircraft.  The roles of the main protagonists in that importation were of somewhat higher criminality than I assess your role, but none was on bail for similar offending at the time as you were.  None of them had as difficult a childhood as you had had.

7I have also considered the summaries of other cases brought to my attention in Mr Jackson’s sentencing - Schelvis & Hildebrand,[27] Velez,[28] Peng,[29] Thi Kim Phung Nguyen,[30]Pham & Tang,[31] Nguyen & Phommalysack.[32]

[27]R v Schelvis & Hildebrand [2016] QCA 294; (2016) 263 A Crim R 1

[28]Velez v R (Cth) [2015] NSWCCA 177

[29]DPP v Peng [2014] VSCA 128

[30]Thi Kim Phung Nguyen v The Queen [2012] VSCA 119

[31]Pham v The Queen; Tang v The Queen [2012] VSCA 101

[32]Nguyen v R; Phommalysack v R (2011) 31 VR 673; [2011] VSCA 32