R v Calason

[2022] NSWDC 544

District Court

New South Wales

Medium Neutral Citation:

R v Calason [2022] NSWDC 544

Hearing dates:

16 September 2022

Date of orders:

28 October 2022

Decision date:

28 October 2022

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

(1) In respect of the offence to which the offender has pleaded guilty he is convicted.

(2) The offender is sentenced to a sentence of six years imprisonment with a non-parole period of four years.

(3) The non-parole period will commence on 7 June 2021 and expire on 6 June 2025.

(4) The balance of the sentence will expire on 6 June 2027.

Catchwords:

CRIME – sentencing – import marketable quantity of a border-controlled drug – sentencing considerations (s 16A(2)) – deterrence

Legislation Cited:

Crimes Act 1914 ss 16A(1), Part 1B, s 16A(2)

Criminal Code Act 1995 ss 11.1(1), 11.2A(1), 307.2(1)

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v The Queen (2013) 231 A Crim R

Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638

Hili v The Queen 2010) 242 CLR 52

Imbornone v R [2017] NSWCCA 144

Johnson v The Queen (2004) 78 ALJR 616

KR v R [2012] NSWCCA 32

Lloyd v R [2022] NSWCCA 18

NGO v R [2017] WASCA 3

R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49

R v Nguyen; R v Pham (2010) 205 A Crim R

R v Qutami [2001] NSWCCA 353

R v Sukkar [2011] NSWCCA 140

Soyke v R [2016] NSWCCA 112

Totaan v The Queen [2022] NSWCCA 75

Tyler v R; Chalmers v R (2007) 173 A Crim R 458

Wong v R (2001) 207 CLR 584

Xiao v R (2018) 96 NSWLR 1

Category:

Sentence

Parties:

Rex
Mr Hakan Calason

Representation:

Counsel:
Ms P. Mceniery (Crown)
Mr S. Buchen SC (Offender)

Solicitors:
Solicitor for Public Prosecutions (Cth) (Crown)
Blair Criminal Lawyers (Offender)

File Number(s):

2021/163982

Publication restriction:

Unrestricted

JUDGMENT

1. The offender appeared at the Sydney Central Local Court on 25 May 2022 and pleaded guilty to a charge of import marketable quantity of a border-controlled drug, 565.9 grams of Cocaine (joint commission) contrary to s 307.2(1) and s 11.2A(1) of the Criminal Code (Cth) (Sequence 4). The plea of guilty was adhered to at the sentence hearing on 16 September 2022.

2. The maximum penalty for the offence is 25 years or 5000 penalty units ($1,110,000), or both.

Commonwealth sentencing

3. Pursuant to s 16A (1) of the Crimes Act 1914, in determining the appropriate sentence to be passed in respect of any person for a federal offence, a court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.

4. The offender is to be sentenced pursuant to Part 1B of Crimes Act and, in particular, pursuant to the considerations listed at s 16A(2) of the Act, to the extent that they are relevant and known to the Court. That said, common law sentencing principles are also applicable to the sentencing for federal offences (Johnson v The Queen (2004) 78 ALJR 616 at [15]; Hili v The Queen (2010) 242 CLR 52 at [25]; Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 at [18]).

Section 16BA schedule

5. In addition to the charge the subject of Sequence 4, the offender requests that the Court take into account a further matter on a schedule pursuant to s 16BA of the Crimes Act, namely, attempting to import a marketable quantity of a border-controlled drug (joint commission), contrary to ss 307.2(1) and 11.1(1) with s 11.2A(1) of the Criminal Code (seq 5).

6. Both a representative of the Commonwealth Director of Public Prosecutions and Mr Calason have signed the s 16BA form, as have I, and that document remains in the registry file.

7. I certify that I have taken into account the additional offence, the subject of Sequence 5, attached to the Form, pursuant to s16BA of the Crimes Act.

8. In dealing with matters on the s 16BA Schedule, I will need to ensure that I apply the principles enunciated by the Court of Criminal Appeal in the Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 and Abbas, Bodiotis, Taleb and Amoun v The Queen (2013) 231 A Crim R, as have been applied to sentencing for Commonwealth offences in Soyke v R [2016] NSWCCA 112 at [67].

The plea of guilty

9. Pursuant to s 16A(2)(g) of the Crimes Act, in determining a sentence for a federal offender, I am required to consider a guilty plea, including the fact, the timing of the plea, and the degree to which these factors resulted in any benefit to the community.

The evidence

10. Admitted as Ex C1 on the sentence hearing was the Crown sentencing bundle, including a Notice of Committal, Court Attendance Notices, s16BA Schedule, Statement of Agreed Facts, Criminal History and Custodial History.

11. Admitted on behalf of the offender was the following:

1. Psychological report of Anita Duffy dated 16 August 2022 (O1)

2. Letter from Offender dated 9 September 2022 (O2)

3. Affidavit of Michael Blair deposed 12 September 2022 (O3)

4. Reference of Derya Calason dated 10 September 2022 (O4)

5. Reference of Anastasia Kontou dated 24 August 2022 (O5)

6. Reference of Hassan Abdallah dated 1 September 2022 (O6)

7. Reference of Atilla Unal dated 7 September 2022 (O7)

Agreed facts

Background to the offending

12. The offending was initially detected by the Australian Federal Police (AFP) because the offender was a user of an encrypted communications platform named ‘ANOM’, which was installed on his personal mobile phone.

13. In October 2018, warrants were issued authorising the use of a data surveillance device in relation to the ANOM platform. These warrants revealed, inter alia, that the offender used an ANOM device with a unique user identifier of ‘twentymaking’, and the usernames “Fedex”, “Doorman”, and “Versace”.

14. There were five other ANOM devices with which the offender was communicating, including persons alleged by the Crown to be Ayhan Bilal Dogan (Dogan) and Yusuf Ayik (Ayik), and three other person whose identifications currently remain unknown. Each of these users have a unique user identifier and various usernames.

15. At the time the offences were committed the offender was employed by FedEx as a courier.

16. Between 26 March 2021 and 2 April 2021, messages were exchanged between the offender and Dogan in relation to an alleged importation of 4 kilograms of methamphetamine, and further planned importations of methamphetamine and heroin out of Thailand and Germany from one syndicate.

17. Between 8 April and 12 April 2021, further messages were exchanged between the offender and Dogan, in which Dogan expressed his intention to cease engaging with the syndicate involved in the attempted importations from Thailand and Germany. Dogan also indicated that he was working on arranging a consignment from the USA, to which the offender responded, indicating that he would focus on consignments from Los Angeles from 10 to 15 kilograms.

Consignment 1 – Sequence 5

18. Consignment 1 refers to the offending the subject of seq 5, namely the offence listed on the section 16BA schedule.

19. The planning and organisation of consignment 1 took place through an ANOM group chat named ‘Freds’, created by Dogan on 13 April 2021.

20. Messages exchanged between 15 April 2021 and 21 April 2021 revealed that the users of the Freds group chat had organised a consignment to be sent from the USA.

21. On 23 April 2021, a user named fewafraid, whose identity remains unknown, sent a message indicating that the USA consignment would be sent on 23 April 2021. Dogan responded with words to the effect of “sweet send all details on here too so @Doorman know what [he is] looking for”. Doorman was a username for the offender. The offender responded by sending a thumbs up emoji.

22. Between 25 April 2021 and 2 May 2021, messages were exchanged in relation to the arrival of the consignment, and arrangements for collection. Fewafraid sent messages about the consignment, including shipping details and tracking numbers.

23. On 1 May 2021, Dogan provided an update on the delivery route of the consignment, stating that it would arrive at Sydney International Airport, Mascot, NSW before being transported to FedEx Botany, where Dogan said the offender would obtain possession of it. On 2 May 2021, Dogan sent a message in group chat, specifically informing the offender to “keep an eye out [for the consignment] tomorrow”.

24. On 3 May 2021, while at his place of employment at FedEx Botany, the offender took possession of the consignment containing 1 kilogram of cocaine. Subsequent messages were exchanged via ANOM through which the offender confirmed receipt of the consignment and arranged the subsequent handover.

25. On this same day, the offender transferred physical possession of the consignment from himself to the user of ANOM handle ‘hersave’ in Soudan Street, Randwick, NSW. At this time, the offender was under covert AFP surveillance.

26. Images sent by Dogan to the offender of the package depicted the vacuum sealed drugs being concealed within a ‘Muscle Milk’ brand protein container.

27. Following the exchange, Dogan and the offender exchanged messages in relation to the offender’s ability to intercept future consignments. The offender noted operational changes in relation to the depot and deliveries, stating “wait for me I [will] let u know”. Dogan replied “OK sweet we will wait for you”, informing the offender that he would tell the overseas contacts sending the consignments to wait.

Consignment 2 – Sequence 4

28. On 3 May 2021, messages were exchanged between the offender and Dogan in the Freds group chat. The messages were in relation to arrangements for another consignment to be imported. Dogan sought further information about what was happening in the depot. The offender provided his availability and some information about new driving arrangements in the FedEx depot.

29. Between 6 May 2021 and 7 May 2021, the offender and Dogan discussed arrangements for another consignment to be imported. In response to the offender offering to find an address for the consignment, Dogan advised: “I’ll find the addresses moruk leave that to me… I just need to know the area… Where you will have full control of the driver…”. The offender advised that the best location would be Woollahra but also provided an additional five suburbs that were “within his delivery zone”. Dogan and the offender agreed on Watsons Bay as the suburb, to which Dogan responded, “OK done leave it [to] me”.

30. On 14 May 2021, Dogan sent a message to the Freds group chat, advising fewafraid to send consignment 2 on a Friday in order to assist the offender, who it was asserted would have “more control… as its more busy in there [the depot] and a lot easier for him to grab”.

31. On 23 May 2021, FedEx flight FX075 arrived at Sydney International airport from the USA, via New Zealand.

32. On 23 May 2021, the cargo of the flight was examined by ABF and the relevant consignment (consignment 2) was detected. The consignment was examined by the ABF and found to contain a white powdery substance that had been vacuum sealed and placed into a ‘Muscle Milk’ brand protein powder tub. Presumptive testing indicated the presence of cocaine.

33. Later that same day, the AFP examined the substance, which returned a further positive indication for cocaine, weighing approximately 1 kilogram. The AFP then seized the substance.

34. Subsequent forensic testing by the National Measurement Institute (NMI) confirmed that the substance was cocaine with a net weight of 991.2 grams and a purity of 57.1%, therefore comprising 565.9 grams of pure cocaine.

35. Later that same day, the AFP replaced the seized cocaine with an inert substance and returned the consignment to the FedEx delivery chain at FedEx Matraville.

36. On 24 May 2021, messages were exchanged in the Freds group chat on the ANOM application, through which the offender was informed by user fewafraid that the consignment could go to two addresses that he had provided the USA based members of the syndicate: one in Watsons Bay and one in North Bondi. The offender was asked to check for consignments to both of those addresses “just in case”.

37. In communications between 3:54am and 11:37am on 24 May 2021, in response to the offender asking for confirmation of the address of the consignment, fewafraid provided an address in Watsons Bay. The offender stated that he could not locate the consignment, and asked fewafraid to check again. Fewafraid advised the offender to check for a consignment addressed to the North Bondi address. The offender then sent a message to the effect of “nothing here boys I double check everything. We need right tracking number, and we know what’s happen after that”.

38. Call Associated Data (CAD) linked to the offender’s device showed that the offender was consistently in the vicinity of FedEx Botany on the mornings of 24 and 25 May 2021.

39. On the evening on 25 May 2021, the offender and Dogan exchanged messages, expressing their concern for the delay of the consignment, and agreeing that Dogan would see the offender on 26 May 2021 to discuss the consignment.

40. On 27 May 2021, since the substituted consignment 2 had not been collected, the consignment was seized by the AFP and removed from the delivery chain.

41. On 7 June 2021, the offender was placed under arrest whilst at his residence in Carlton NSW. Police executed a search warrant during which they located and seized a Google pixel device, being the ANOM device used by the offender. The offender has been bail refused since this date.

Deterrence

42. The fact that the offender was involved in a criminal group active in the import of prohibited drugs leads to the issue of the need for general deterrence. The presence of drugs in the community remains a significant problem, and the operation of a criminal syndicate such as the syndicate in which the offender was involved, perpetuates the ongoing issue with prohibited drugs in the community. In the circumstances, the sentence must reflect general deterrence from being involved in such activities, and individual deterrence relating to the offender.

43. The Crown contended that the principles of general deterrence and denunciation are the primary considerations in sentencing for drug importation and related offences, citing the plurality in Wong v R (2001) 207 CLR 584 at [64]. Gaudron, Gummow and Hayne JJ said the following:

“64. In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggest that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case… Our purpose in mentioning these matters is, however, not now to attempt an exhaustive statement of relevant factors, or to attempt some formulation of applicable principles. What is important for present purposes is that it is all of the matters mentioned, and others, including those mentioned in Pt 1B of the Commonwealth Crimes Act, which should be taken into account in formulating applicable principles."

44. Senior Counsel for the offender contended that the Crown's submission in this respect should be treated with caution given the rejection of such a submission in Totaan v The Queen (2022) 365 FLR 69; [2022] NSWCCA 75. Bell CJ (with whom Gleeson JA, Harrison, Adamson and Dhanji JJ agreed) rejected the proposition that the structure of s 16A of the Crimes Act established a hierarchy of sentencing considerations. This is the effect of the Crown's submission.

45. Whilst the plurality in Wong suggested that deterrence be given chief weight in a sentencing task, given the difficulty of detecting drug importation offences, these comments were qualified by noting that such observations were not in an attempt to formulate applicable principles, or to set out an exhaustive statement of the relevant factors in sentencing. As correctly observed, with respect, by the Court of Appeal in Totaan, s 16A(2) provides a non-exhaustive list of matters the Court is required to take into account in determining the appropriate sentence.

46. Deterrence (s 16A(2)(j)) is just one of the matters the Court must take into account. As the Court of Appeal observed, s 16A does not create a hierarchy of matters to be considered.

47. I do not accept the Crown's submission that the effect the plurality judgment in Wong was to create such a hierarchy. The High Court was emphasising the importance of deterrence in the sentencing process for drug importation matters. The sentence must reflect general deterrence from being involved in the importation of prohibited drugs as well as the individual deterrence relating to the offender. In determining the appropriate sentence, I have taken into account the particular importance of deterrence, consistent with the observations of the plurality in Wong.

Subjective circumstances

48. The offender is a 38-year-old divorced male with two sons aged 4 and 14. He was born and raised in Turkey before moving to Australia in 2006. The offender has a history of alcohol and drug dependency and reports some issues in relation to anger and mood.

Exhibit O1 – Report of Anita Duffy, Psychologist

49. The offender was interviewed and assessed by Anita Duffy on 26 July 2022. He described a dysfunctional childhood in Turkey where he would regularly witness his father hit his mother after returning home drunk and angry. He recalled feeling apprehensive when his father arrived home, and regularly tried to help his mother. The offender claims that poverty, domestic violence, physical abuse, and parental alcohol are childhood adversities which have shaped his development and continued to have an impact upon his behaviour. Ms Duffy submits that these childhood adversities have been found to cause difficulties in socio-emotional development, increasing likelihood of depression, anxiety, and development of substance use disorders.

50. The offender and his ex-wife have two sons together. The offender separated from his now ex-wife in 2016, although they remained living under the one roof until his arrest. The offender contends that despite the separation in 2016, he felt obliged to remain at the home and fulfil his role as parent and financial provider. The offender and his ex-wife have since divorced.

51. The offender reported that at the time he was involved in the offences he needed funds to support himself, his cocaine habit, and also earn extra money to give his then wife to ensure she and the children had enough if he left her.

52. Throughout his time in custody, the offender has maintained contact with his ex-wife, children, and family by phone.

53. The offender worked part time from the age of 13 at a bakery, and on weekends sold water at a bazaar. He thereafter worked in a dental practice, making appointments and cleaning. After leaving school at 15, he worked for a company that imported clothes.

54. He met his ex-wife in Turkey while she was visiting from Australia. They married before arriving in Australia together in 2006. He and his wife lived in Bundaberg, where the offender worked with his father-in-law on his farm briefly before moving to Brisbane, and later to Sydney. He worked various jobs until he commenced working as a courier.

55. While working as a courier the offender sustained a work-related back injury. As result he was unable to work for a year, receiving worker’s compensation. Upon his return to the workforce following his injury, the offender commenced working with FedEx, where he remained employed for approximately four years, up until his arrest.

56. The offender recalls that it was around the time following his injury that he started using cannabis to alleviate physical pain, as well as emotional pain, including feelings of anger, frustration and depression. The offender found that the cannabis would help him sleep at night, focus, manage his pain and calmed him down generally.

49. The offender drank alcohol in Turkey and would drink to excess when he was with friends. Following his injury in Australia, his alcohol consumption increased, and he could drink a bottle of spirits every two days. He had a mid-range PCA charge in 2018 after a night out with friends.

50. The offender reports being first introduced to cocaine in around 2008 in Sydney, and that his use of the drug grew in the years prior to the offences.

51. The offender reports being reliant on the drug to improve his mood, and ameliorate anxiety and depression. The outcome of the Severity of Dependence Scale indicated that the offender’s patterns of cocaine use in the period surrounding the index offences satisfied psychological criteria for dependence related to compulsive and uncontrollable use, despite anxiety regarding the effects of use and desires to curtail or cease intake.

52. The offender’s levels of depression, anxiety and stress were above the average range, being at the moderate range. Further, the offender sat in the 96^th percentile on anger, which Ms Duffy observed was a strong indicator for the need for targeted treatment.

53. Ms Duffy concluded that the offender satisfied the diagnostic criteria for Stimulant Use Disorder (Cocaine) Moderate, in sustained remission in a controlled environment.

54. The offender expressed remorse and shame over his offences. He had completed an EQUIPS Addictions Program whilst in custody, and hoped to continue further rehabilitation courses.

55. The offender reported definitive motivation to cease drug use, and a very high confidence in being able to maintain abstinence.

56. In addition to expressing interest in engaging in further drug and alcohol treatment programs, the offender expressed interest in attending relationship counselling with his ex-wife, as well as attending counselling to identify and address issues related to his past adversities.

57. Ms Duffy considered the offender would benefit from a more intensive drug and alcohol treatment program (IDATP) which is conducted at John Morony CC and incorporates RUSH, a self-management program that provides skills in dealing with impulsivity, irritability, anger and mood swings. Further, Ms Duffy considered that a period of supervision and support while on parole would be necessary to ensure substance abstinence.

Exhibit O2 – Statement of the offender

66. A signed statement of the offender was tendered on the sentence (Ex O2). The statement is not sworn evidence and the offender has elected otherwise not to give oral evidence on oath as to the matters contained in the statement. In the circumstances the statement must be given little weight to the extent that the offender seeks to make exculpatory statements.

67. The offender expressed remorse for his actions and apologised for his “association and involvement with drugs”. The offender acknowledged that letting his position at FedEx be used to further serious crime was “deeply wrong”, accepting that he “deserves significant punishment”. The offender cited his prolonged cycles of extreme depression and stress as the cause for his alcohol and drug abuse, which had taken its toll on his mental health, moral judgment, relationships, and personal troubles. His time in prison had enabled him to educate himself on substance reliance and realises that the problems he has endured throughout life could never be resolved by using alcohol and drugs.

68. The offender has obtained employment within the prison system as the leading hand in the painting team, responsible for a range of tasks, including refurbishing and painting three pods. He has prioritised being proactive and present in programs the prison system offers, including the Remand Addiction and Narcotics Anonymous program, and prison religious services.

69. The offender recounts the significant number of lock ins (140 days) during the period of his incarceration, during which he experienced mental difficulty and restricted physical exercise and visitation. The experience of being in prison has made him determined to never return, stating he has no intention of reoffending. During his time in custody, the offender’s father has passed away, which has been difficult, and has had a profound impact on his “focus on life”.

Exhibit O3 – Affidavit of Michael Blair

70. Annexure MB1 documents the number of lock-ins during his period in incarceration which involve being locked in his cell for 24 hours of the day, no physical or AVL visits, no phone access, no access to buy-ups and no access to programs.

71. Annexure MB2 documents the offender attending five remand addiction sessions during his period in custody.

72. Records from Corrective Services (Annexure MB3) confirm that the offender is well regarded as a model inmate. He has been described on numerous occasions as polite, proactive, reliable, and having a positive attitude and great work ethic. The comments confirm his employment in the painting and maintenance team, and his subsequent appointment to team leader, through which he has been praised for his leadership skills. The offender has also received praise in relation to his willingness to assist others, with reports that he has gone “out of his way” to help the Kitchen and Laundry run smoothly during weekends when he is not performing his “normal role”, as well as his willingness to work extra hours on a refurbishment project to meet the completion target. Various staff have left comments referring to the offender as an “asset”, claiming that they would not hesitate in recommending him for any employment.

73. Medical records (Annexure MB4) provide information in relation to treatment and progress of the aforementioned work-related injury, which is alleged to have occurred on 2 September 2015.

Exhibit O4 – Letter of Derya Calason

74. The offender further relies upon a letter provided by his wife, Derya Calason (Ex O4). The letter refers to the impact the arrest and the custody of the offender has had, and continues to have, on their children. Ms Calason states that their older son has been diagnosed with OCD and anxiety disorder since the offender’s arrest. She states that he has various difficulties, including thinking that if he doesn’t wear the same set of shoes, something bad will happen. Ms Calason recounts times where she would have to convince their son that the offender was still okay and alive after events where, due to Covid restrictions, they had not been able to speak with him for several weeks.

75. Ms Calason further referred to the offender as being a great father, who has been very present in their sons’ lives, as well as a hard worker and a supportive friend. She states that the offender has apologised for putting her and their children in this situation and for getting involved with drugs. He has told Ms Calason that since being in prison, he can see the damage drugs cause in the community. Ms Calason expressed concern for the offender’s mental health, citing limited contact due to Covid restrictions, and more recently the death of his father, as being particularly difficult for him.

76. Ms Calason further stated that despite their divorce, she intends to support him in every way that she can upon his eventual release.

Exhibit O5 – Letter of Anastasia Kontou

77. The offender relies on the letter provided by family friend, Anastasia Kontou (Ex O5), who first met the offender 10 years prior, whilst working as an educator at his son’s day care. She assisted the offender in teaching his son to communicate and speak. Ms Kontou observed the offender as “respectful, friendly, quiet and reserved” who “went to work, came home and made sure his children were always happy and healthy”.

78. Ms Kontou had read the facts in the offender’s case and considered that the behaviour the subject of the offending was out of character for the offender.

79. Ms Kontou explained that she had been best friends with the offender’s now ex-wife, Ms Calason, for approximately 12 years. She attends their family home almost daily to assist with the children. She has observed the impact the offender’s arrest has had on the children. She observed that the youngest son struggles to understand where his father is and displays challenging behaviour. Ms Kontou also cites the emotional and social difficulties that the fourteen-year-old son experiences, referencing his recent diagnosis with OCD and anxiety.

Exhibit O6 – Letter of Hassan Abdullah

80. The offender further relies on the letter provided by gym owner, Hassan Abdullah (Ex O6). The offender joined his cross fit gym six years ago and they had known each other since then. Mr Abdullah read the facts and understood the seriousness of the offences. He stated that he, as well as the fitness community, were shocked to learn of the offender’s offending.

81. The offender would attend the gym every day after work, which was the offender’s stress outlet. The offender and his family would regularly attend the gym’s community fitness and social events and considered the offender a valuable member of that community. Mr Abdallah described the offender to be a “hardworking, loving husband and father to his children” as well as a “caring person”. The offender would be the first to volunteer to assist him around the gym with renovation or cleaning duties.

82. The offender had expressed shame surrounding his actions, and his eagerness to make things right again for himself, his family and the community.

Exhibit O7 – Letter of Atilla Unal

83. The offender also relies upon a letter provided by family friend, Atilla Unal (Ex O7). Ms Unal has known the offender for approximately fifteen years, after working with his wife at Harvey Norman and becoming friends. She states that they would socialise regularly, observing that the offender is a “devoted partner and father to his two sons” who is “kind and generous”. She further describes the offender as someone who has been “a great friend over the past 15 years”.

84. Ms Unal explained that she was sent a copy of the agreed facts and understood the seriousness of the offending. She further recalled her and her family being in shock from learning about the offender’s arrest. Ms Unal stated that she believed the offending to be out of character for the offender.

85. Ms Unal further acknowledged that the offender’s eldest son is suffering from mental health issues, expressing further concern about the additional difficulties that the offender’s incarceration, especially during the pandemic, has had on the offender’s immediate family. Ms Unal and her family will continue to communicate with, and support, the offender upon his return to society.

86. Exhibits O4, O5, O6 and O7 are unsworn documents, and as the authors have not given evidence on oath, they remain untested.

Submissions

Crown’s submissions

87. The Crown contends that the principles of general deterrence and denunciation are the primary considerations in the sentencing for drug importation and related offences (citing Wong v R (2001) 207 CLR 584 per Gaudron, Gummow and Hayne JJ at [64]).

88. The Crown refers to the relevant principles applicable to sentencing of serious drug offenders for importation and possession offences set out in R v Nguyen; R v Pham (2010) 205 A Crim R at [72] per Johnson J (with whom Macfarlan JA and RA Hulme J agreed)

89. The Crown submits that the only appropriate sentence in this case is one of a term of imprisonment with the imposition of a non-parole period. The Crown makes this submission based on the alleged role of the offender as a critical facilitator, the exploitation of his employment, the amount of cocaine, the applicable maximum penalty, and sentences imposed for like offending.

90. The Crown submits that the offender is to be sentenced on the basis that he jointly committed the offence with Dogan and unknown others pursuant to s 11.2A of the Criminal Code. As such, the Crown, citing Tyler v R; Chalmers v R (2007) 173 A Crim R 458 at [85], submits that while the physical acts of the offender are important, the nature and extent of the agreement which the offender entered must also be considered in assessing the objective seriousness of the offence.

91. The Crown contends that the offender was a central and trusted participant in the importation by the criminal syndicate brought together by Dogan. By virtue of his position as a FedEx delivery driver, with knowledge of FedEx’s delivery systems, valid access to FedEx consignments distributed from the Botany depot, he played a crucial role in planning and executing the streamlined importation of Consignment 2.

92. The Crown submits that the offender’s conduct involved a significant degree of sophistication and deception, and that the offender did not merely act on instructions from members of the syndicate, but also played an active, autonomous role. Accordingly, the Crown submits that the offender’s moral culpability was similar to that of Dogan’s and of fewafraid.

93. The Crown contends that financial reward is the obvious motivation for the offender’s involvement.

94. The nature and quantity of drug imported is relevant and, in the present case, was approximately 280 times the minimum marketable quantity.

95. In relation to the relevant matters set out at s 16A of the Crimes Act, the Crown submits the following:

1. It was through no positive act of the Syndicate that the drugs were not successfully imported. The consequences to the community if such an amount of cocaine had been imported without detection would have been significant (s 16A(2)(e)).

2. The offender’s plea (s 16A(2)(g)), whilst at the earliest opportunity, was in the face of a strong Crown case, and was, to an extent, a recognition of the inevitable.

3. The offender’s conduct was not an isolated incident, and the offender from as early as March 2021 had been displaying a preparedness to engage in the importation. Steps taken for rehabilitation should be considered but not elevated beyond the need for general deterrence and denunciation (s 16A(2)(j) and (2)(n)).

4. That involvement at any level in a drug related offence must attract a significant sentence, otherwise the paramount interests of general deterrence will not be served (s 16A(2)(ja) and (2)(k)). The Crown again relies upon general deterrence being a paramount consideration as noted above.

5. The offender has no relevant criminal history (s 16A(2)(m)). Generally, an offender of prior good character may be entitled to expect a less severe sentence, however, the status deserves little weight due to the seriousness of the offending.

6. In the absence of oral evidence caution should be exercised by the Court before accepting any hearsay material contained in any psychological report and limited weight should be given to any evidence, except those parts conceded by the Crown.

7. There is currently no evidence that the Crown is aware of which would indicate there would be any hardship to the offender’s family to warrant consideration as a mitigating factor in this matter (s 16A(2)(p)).

96. In further oral submissions regarding subjective features, the Crown contended the evidence did not displace the common sense inference the offence was committed for financial gain. There was no evidence that any mental condition from which the offender suffered contributed to the offending. This was not a case where general deterrence should be given less weight. Any mental health condition from which the offender suffered did not justify a more lenient sentence. The Crown further emphasised the matters contained in the written submissions including the fact that the offender was aware of the amount imported (being a commercial quantity) and the matters identified by the High Court in Wong.

Offender’s submissions

97. The offender contends that the quantity of cocaine involved in this case is approximately 28% into the marketable quantity range which, it is submitted, is substantially less than the upper limit for marketable quantities. It is contended that the matter indicates a lower-order offence of the relevant kind.

98. The offender contends that when sentencing for a crime involving joint commission liability, the basis of criminal responsibility should be distinguished in relation to an offender’s culpability, citing R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [161]. In relation to this principle, the offender further cites R v Sukkar [2011] NSWCCA 140 at [36] and KR v R [2012] NSWCCA 32 at [19] – [22], stating in doing so, the Court is required to attend to the culpability of the offender, having regard to his particular conduct and his role in the offence. The offender disputed the Crown’s contention that the offence of conspiracy is more serious than of an individual was acting alone, citing the NSW Court of Criminal Appeal in Xiao v R (2018) 96 NSWLR 1 at [48].

99. The offender disputed the Crown’s contention that the offender played a “senior organisational role”, similar to co-offenders such as Dogan, and instead, submits that his role was a subordinate and risk-laden role, largely confined to the collection of the consignment from his work, at FedEx, and its subsequent delivery to another person. As such, it is contended that the offender was not engaged in significant planning or organisation in relation to the import, as he did not instigate or initiate the offence, did not organise, source, or finance the importation, and did not recruit or direct subordinates. Further, it is contended that the evidence does not establish that the offender was to share in the anticipated profits to any significant extent. He was essentially performing a subordinate role.

100. It is further contended that the importation involved an unremarkable postal collection, which did not allow for the offender to physically distance himself from the consignment, and as such, emphasises that the purported sophistication of the offence is not to be overstated. It is submitted therefore that the offence committed by the offender was one of moderate seriousness when compared with other offences of its kind.

101. In relation to deterrence, the offender concedes that the deterrent effect and the need for adequate punishment will impact the sentence determination (ss 16A(2)(ja) and (k)). However, the offender cites Totaan at [78], [98] – [100] in noting that s 16A does not fetter the sentencing discretion by creating any hierarchy of matters to be considered, so as to result in one or more factors being described as pre-eminent. In this respect the offender disputed the Crown’s interpretation of the High Court judgment in Wong to the extent it was contended that principles of deterrence and denunciation in drug importation offences should be given greater emphasis than other matters identified in s 16A(2).

102. The offender referred to the relevant principles to be applied in respect to the scheduled offence. Whilst conceding that the matter on the schedule involved additional criminality, consideration needed to be given to any overlap or commonalty in the offending relating to the two consignments.

103. In relation to the relevant matters set out at s 16A of the Crimes Act, the offender submits the following:

1. The offender was entitled to a discount of no less than 25% having regard to the timing and utilitarian value of the plea (s 16A(2)(g)). The offender disputed the Crown’s contention that the plea was in the face of a strong Crown case and acceptance of the inevitable, noting the significant challenge to the admissibility of the Anom evidence being jointly brought by numerous defendants in committal proceedings. This is a matter not disputed by the Crown.

2. The offender has no criminal record (s 16A(2)(m)) and is thereby deserving of leniency on this account. I accept that submission.

3. The offender has shown contrition for his offending (s 16A(2)(f)) demonstrated through his evidence and early plea.

4. The offender has engaged in positive steps towards his rehabilitation (s 16A(2)(n)) demonstrated through his completion of the Remand Addiction program, recognition of his need for further counselling, positive contributions in remand custody and support of family and friends.

1. With reference to recommendations made in the psychological report of Ms Duffy, the offender would benefit from additional intensive drug and drug and alcohol treatment and psychological counselling upon his release.

104. In addition to those matters, the offender contends that due to circumstances of “locked down” conditions and his father’s death while in remand custody, the offender has experienced a more onerous period in remand custody than would otherwise be the case.

105. In oral submissions Senior Counsel for the offender conceded that the inference as to financial motive had not been displaced, although the subjective circumstances suggested that his offending was not driven purely by greed.

106. The offender did not contend that his mental condition entitled him to any leniency, although the Court was entitled to take into account this condition in support of a submission that it was these circumstances which meant he was, to an extent, compromised. Further it was evidence that he was presently seeking to address these issues. The offender disputed the suggestion that he was ‘the door’. His role involved a high degree of risk and played a subordinate role in the importation.

Consideration

107. The offender clearly used his position as a FedEx courier to assist in the importation. The offender was able to play this intermediary role as a result of the duties he performed in his employment. It must be acknowledged that the information the offender provided, in relation to potential delivery addresses, and operations in the depot, did facilitate planning by others in the syndicate.

108. Contrary to the Crown’s contentions, I do not consider the offender to have played a senior organisational role in the syndicate. The agreed facts do not contain evidence that the offender was engaged in significant planning or organisation, or had direct contact with the exporters. To the contrary, the facts demonstrate that the offender generally took directions or instructions from others in the syndicate, including Dogan and fewafraid. Further, the offender did not recruit any person, and was not tasked with directing subordinates.

109. The offender observes that the quantity of the importation was approximately 28% into the marketable quantity range. Whilst the Crown notes that the quantity was approximately 280 times the minimum marketable quantity, I accept the offender's submission that it is still towards the lower order of importation offences of this kind. This however does not detract from the fact that it remained a significant quantity of pure cocaine.

110. I do not accept the Crown's submission that the offence of joint commission is more serious than if the individual is acting alone, given the judgment of the Court of Criminal Appeal in Xiao at [148].

111. In considering the relevant matters in s 16A(2), reference has already been made to the nature and circumstances of the offence, and the offender's role in the importation (s 16A(2)(a)). I have taken into account the potential for any injury, loss or damage resulting from the offence (s 16A(2)(e)). As has been consistently observed by the Courts, in respect of sentencing for drug-related matters, there are significant consequences from the importation of drugs into the community. As much was observed by the plurality in Wong by reference to the “great social consequences" that follow from the commission of such an offence. As noted by the Crown, in NGO v R [2017] WASCA 3, the Western Australian Court of Appeal observed that the illicit drug trade is a “scourge" inflicting significant damage on those who consume the drugs.

112. I accept the offender has shown some contrition (s 16A(2)(f)), reflected in the history provided to the psychologist, his statement, and a number of other statements. In this respect, given the offender did not give evidence, I am left to reach my decision upon representations attributed to him by others, through testimonial letters and a psychological report, which were not under oath or affirmation, and which have not been tested by cross-examination. This is in addition to the offender’s own unsworn statement referred to above.

113. Caution is required when assessing out-of-court representations for the purpose of determining sentence, as was noted by Smart AJ in R v Qutami [2001] NSWCCA 353. His Honour's observations in this respect were the subject of further consideration by Wilson J in Imbornone v R [2017] NSWCCA 144. Her Honour discussed the care required, with reference to Qutami amongst other authorities. Beginning at paragraph [57], her Honour summarised the statements that are derived from the authorities to which she referred and once more reminded sentencing courts of the caution one must bring to bear when dealing with factual matters drawing upon representations that are not affirmed or unsworn and remain untested.

114. In Lloyd v R [2022] NSWCCA 18 McCallum JA (with whom Hammill and Cavanagh JJ agreed) noted that the observations of Smart AJ in Qutami are sometimes mistaken for principle, and that the weight and cogency of such evidence is a matter for the individual assessment of the sentencing judge. Her Honour observed at [47] that there is no principle of law that requires a sentencing judge to exercise “very considerable caution" before relying on the contents of an expert report absent evidence from the offender. In this respect her Honour acknowledged that the court is not the only forum in which a reliable medical history can be obtained.

115. The offender pleaded guilty at the earliest opportunity (s 16A(2)(g)) and is entitled to a discount reflecting the utilitarian value of the plea. Notwithstanding the further submission by the Crown that, to an extent, the offender’s plea should be seen to be a “recognition of the inevitable” in the face of a strong Crown case, I propose to allow a discount on the basis of the utilitarian value of the plea.

116. The Crown does not dispute the affidavit evidence of the offender's solicitor Michael Blair (affirmed 12 September 2022) that approximately 50 accused are challenging the admissibility of the ANOM phone records at committal. In the circumstances, I do not accept the Crown's submission that the plea merely reflected a recognition of the inevitable. Rather, the plea, entered at the earliest available opportunity, is consistent with the offender’s expression of genuine remorse and contrition.

117. The early guilty plea has avoided the need for what was likely to have been a lengthy trial and accordingly has been of benefit to the community. In accordance with Xiao at [280], it is desirable, in the interests of transparency, to quantify the discount, as such, the discount I will allow is 25%.

118. As previously noted, deterrence is a relevant factor (s 16A(2)(j)), and it is also necessary to ensure that the offender is adequately punished for the offence (s 16A(2)(k)). The sentence imposed must be of a severity that is appropriate given the circumstances of the offence, in this case an offence relating to drug importation.

119. It is apparent that the offender was raised in difficult circumstances including poverty, domestic violence, and physical abuse (s 16A(2)(m)). The offender suffers from depression, anxiety and stress, and it is apparent he resorted to the use of drugs to attempt to ameliorate these conditions. The offender has now recognised these issues and is taking steps to address them. Whilst these issues are not considered in the context of justifying any leniency in passing an appropriate sentence, they are still matters relevant to the sentencing process.

120. I have also taken into account that the offender has suffered considerable hardship whilst in custody given the Covid lockdowns resulting in periods of isolation. This has also had an impact on the offender’s ability to maintain relationships with his immediate family. I have also taken into account the impact of the offender’s arrest and incarceration on the relationship with his immediate family.

121. I have also taken into account the offender’s activities whilst incarcerated recorded at MB-3 of the affidavit of Michael Blair. Those records confirm that the offender has enthusiastically involved himself in various activities. The records note that the offender has demonstrated a great work ethic, positive attitude, as well as a polite and well-mannered demeanour. It was also observed that the offender’s leadership with other inmate workers was a credit to himself. He constantly carried out work to a high standard with minimal supervision. He had gone out of his way to help during the difficult Covid conditions. It was observed that the offender “would be an asset to any other correctional facility". These remarks are consistent with an apparent change in attitude and approach to life following his arrest and incarceration.

122. In the circumstances the offender has good prospects of rehabilitation, which has effectively started whilst in custody.

123. I also take into account the fact that the offender has no criminal record in considering the appropriate sentence (s 16A(2)(m)).

124. In determining an appropriate sentence, I have had regard to the various comparative cases forming Annexure B to the Crown’s submissions. The cases provide a range of sentences reflecting the relative involvement of the offenders, the amount of drug involved and discounts reflecting a plea of guilty.

125. In respect of the offence of import a marketable quantity of a border control drug and, taking into account the offence of attempt to import marketable quantity of a border control drug pursuant to s 16BA of the Crimes Act, I have determined the appropriate starting point is eight years from which is deducted 25% for the utilitarian value of the guilty plea, resulting in a total sentence of six years. I find that an appropriate non parole period is 4 years.

126. The offender was arrested on 7 June 2021 and has remained in custody since that date and accordingly the sentence is to be backdated commencing from the date of his arrest.

127. I note the offender’s submissions that the offender would benefit from assistance and support on his release on parole. In those circumstances, I recommend that the psychological report of Anita Duffy, dated 16 August 2022 be provided to those dealing with the offender’s parole for consideration at the time of his release on parole.

Orders

1. In respect of the offence to which the offender has pleaded guilty he is convicted.

2. The offender is sentenced to a sentence of six years imprisonment with a non-parole period of four years.

3. The non-parole period will commence on 7 June 2021 and expire on 6 June 2025.

4. The balance of the sentence will expire on 6 June 2027.

**********

Decision last updated: 09 November 2022