R v Dries

[2020] NSWDC 872

District Court

New South Wales

Medium Neutral Citation:

R v Dries [2020] NSWDC 872

Hearing dates:

12 November 2020

Date of orders:

26 November 2020

Decision date:

26 November 2020

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Overall sentence imposed one of 10 years and 6 months with a non-parole period of 6 years and 6 months

Catchwords:

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

CRIME — Conveying offences —Tobacco —Intent to defraud Revenue

CRIME — Firearms offences — State offences — Use/Possess prohibited pistol/firearm

Legislation Cited:

Firearms Act 1996 (NSW) s 7(1)

Commonwealth Crimes Act 1999 (NSW) Part 1B s 16A

Commonwealth Criminal Code Act 1995 (Cth) s 307.11

Customs Act 1901 (Cth) s 233BABAB(2)

Crimes (Sentencing Procedure) Act 1996 (NSW) s 3A

Cases Cited:

Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29

GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22

PG v R [2017] NSWCCA 179

R v Pham [2015] HCA 39

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Bredan Paul Dries (Offender)

Representation:

Counsel:
Mr C Triscari (Crown)
D: Mr S Bucehn S.C. (Offender)

Solicitors:

File Number(s):

2017/193263

Publication restriction:

Nil

SENTENCE

Introduction

1. The offender Mr Dries is to be sentenced in relation to offences contained on two indictments. One indictment contains two offences under Commonwealth law and the other three offences under State law.

Commonwealth indictment

2. The Commonwealth indictment contains the following offences. That between 1 September 2016 and 28 June 2017 at Sydney he aided, abetted, counselled and procured the commission of the offence by Quoc Tran and Geoffrey Acosta against s 307.11 of the Commonwealth Criminal Code, namely that Quoc Tran and Geoffrey Acosta imported a substance, the substance being a border‑controlled precursor, namely 1,310 kilograms of ephedrine and the quantity imported being a commercial quantity applicable to that precursor. That is an offence under s 11.2(1) and s 307.11(1) of the Commonwealth Criminal Code. It has a maximum penalty of 25 years imprisonment.

3. The second offence on the Commonwealth indictment is an offence that between 1 September 2016 and 28 June 2017 at Sydney the offender conveyed tobacco properties, namely 1.5 million cigarettes knowing that the goods were imported with intent to defraud the Revenue. That is an offence under s 233BABAB(2) of the Customs Act and has a maximum penalty of ten years imprisonment. The offender acknowledges his guilt in relation to an offence which is on a schedule under s 16BA of the Commonwealth Crimes Act and asks that I take that offence into account when sentencing him on the count on the indictment brought under the Criminal Code. The offence on the schedule is an offence that between 1 September 2016 and 28 June 2017 at Sydney he dealt with money, namely $405,000 intending it to become an instrument of crime.

State indictment

4. The State indictment contains three counts of possess an unauthorised pistol under s 7(1) of the Firearms Act all of which occurred on 28 June 2017 at Kurrajong. They each relate to separate pistols being a Springfield self-loading pistol, that is count 1; a 1911 self-loading pistol, that is count 2, and a Colt snub‑nosed revolver pistol which is count 3. The maximum penalty for each of those offences is 14 years imprisonment and there is an applicable standard non‑parole period of four years imprisonment.

Form 1 offences

5. When sentencing the offender on count 1 on the State indictment he acknowledges his guilt and asks that I take into account an offence on a Form 1 being an offence that on 28 June 2017 at Kurrajong he possessed property, namely $140,000 in Australian currency in circumstances where there are reasonable grounds to suspect the property is the proceeds of crime

The Facts

6. The agreed facts are lengthy, some 23 pages; the following is taken from them.

Communications between the offender and undercover officers regarding importation of drugs

7. An undercover officer called Mark was a New South Wales police operative targeting two men from the New South Wales Riverina and from Canberra. The Canberra man was a Leigh Slater. Slater supplied methylamphetamine directly to officer Mark on three occasions but when the officer asked for larger quantities of the drug, Slater said he would connect him to people based in Sydney that would supply the drug.

8. On 27 August 2016 that undercover officer met Frank Arnold (an alias). Arnold sold him an encrypted BlackBerry device for $2,400. Slater put undercover officer Mark in contact with Arnold for the purpose of that transaction. During this meeting Arnold asked whether undercover officer Mark knew anybody who could assist with illegal importations. Undercover officer Mark indicated that he had a relevant contact. Arnold supplied prohibited drugs to undercover officer Mark on two occasions. During his discussions with the undercover officer Arnold indicated that he knew someone that might be interested in illegal importations.

9. On 9 September 2016 Arnold had BlackBerry communications with undercover officer Mark about introducing the offender Mr Dries to a person who could assist with the importation of illegal commodities through corrupt Australian Border Force or Customs officials. There was an agreement to meet at Nepean Village Shopping Centre. Undercover officer Mark brought another undercover officer called Nasser to the meeting at Nepean Shopping Village to meet Arnold and Mr Dries. During the course of the meeting Mr Dries and undercover officer Nasser discussed the capacity and prices for undercover officer Nasser to assist in the importation of drugs by organising clearance of air freight and sea freight cargo through the Australian Border Force Security and Monitoring Systems. The offender Mr Dries enquired if the imports were “100% guaranteed”. Arnold advised undercover officer Nasser he would be supplied an encrypted BlackBerry device to continue negotiations to import drugs into Australia.

10. Shortly thereafter Arnold met undercover officer Mark again at Penrith Panthers car park. Arnold gave the undercover officer an encrypted BlackBerry device to give to undercover officer Nasser. The BlackBerry device was subsequently given to that undercover officer. It became apparent that undercover officer Nasser had the BlackBerry device user name of Robotwolf and Mr Dries was communicating using the user name Shazza. The offender Mr Dries stated he had three contacts who wanted to facilitate the importation of border controlled drugs into Australia including 40 to 50 kilogram quantities by air freight.

11. On 9 September 2016 Mr Dries sent a number of messages to undercover officer Nasser in the following terms, “Sweet, we stick to sea and big lots. This will be a good thing bro as you hear we all laughing”. “Fryed, (a reference to the drug ice) 100% and seud,” which is a reference to pseudoephedrine. “In the three months, (meaning months), window can we do one or two shipments if it’s in different containers”. “Yer mad, done. I will send details tomorrow onces I sit down and work it out on numbers and places but it will be fried the first run bra”. Some of the text messages use a shorthand which requires some interpretation; the interpretation that I have provided is what is contained in the agreed facts.

12. On 12 September Mr Dries sent messages to undercover officer Nasser in the following terms, “Hey bro it will cum from China, how much notice do you need before it’s arriving, what’s last date it can get here before the door close for this run”. “It will be one shipment the first time to trail (meaning trial) to make sure, then we will do multi big ones, they don’t want heaps of people knowing bro”.

13. Over the course of the following days Mr Dries and undercover officer Nasser maintained regular contact through the use of BlackBerry devices regarding Mr Dries and the drug importation from China. Mr Dries requested details of the payment required to obtain the assistance of undercover officer Nasser in ensuring any imported drugs cleared Australian Border Force Security and Monitoring Systems. Undercover officer Nasser stated his fee would be either $100,000 cash and 15% of the imported drugs or no upfront cash payment and 20% of the imported drugs. Undercover officer Nasser advised Mr Dries he could provide the name of an importation company and broker to facilitate the clearance and delivery of the drugs upon payment of a $30,000 cash fee. The undercover officer indicated that Mr Dries’ contacts would be responsible for sourcing any international drug commodities, completion of all freight forwarding documentation from the originating country and shipping of the drugs to Australia. Mr Dries stated he would seek advice regarding the importation operation and advise undercover officer Nasser on the payment options for assisting and clearing the drugs through border security.

14. About 10.45am on 15 September 2016 Mr Dries met with undercover officer Nasser in the southern car park of Penrith Panthers Club. Mr Dries informed the undercover officer that “the Asians” had previously imported salt which had been the subject of Australian Border Force examination and as such the group were concerned with getting drug shipments past security screening. Mr Dries also advised the group were involved in the legitimate importation of aquarium related products. Mr Dries forwarded messages from undercover officer Nasser to what is referred to in the agreed facts as the Asian Syndicate, essentially a reference to co-offenders Acosta and Tran, about the logistics of an importation including company name details and methods to hide imported drug commodities.

15. Between 16 September 2016 and 27 September 2016 Mr Dries and undercover officer Nasser maintained communication via covert BlackBerry devices.

16. Mr Dries after speaking with the co-offenders Acosta and Tran, informed undercover officer Nasser they would agree to supply the undercover officer with 20% of any quantity of imported drug as payment for assisting in breaching Australian Border Security Systems. Mr Dries further requested that the undercover officer provide an Australian based company name and broker for the operation. Undercover officer Nasser confirmed that would cost a further $30,000 in fees for providing those entities, being $15,000 for each contact. Mr Dries on 16 September 2016 agreed to the fee via BlackBerry stating “Yeah cool, $30K fine bro”.

Plan to import cigarettes as trial run

17. On 21 September 2016 Mr Dries forwarded covert BlackBerry messages stating the Asian associates wanted to import cigarettes as a trial run of the importation operation. Mr Dries messaged undercover officer Nasser that day in the following terms: “Asian side we sat down yesterday, we’re thinking of bringing a container of smokes to trial before bringing the good shit in to minimise the risk and build trust”.

18. On 24 September 2016 covert BlackBerry messages were forwarded from the user name Mr Empire to Mr Dries asking to purchase the Manchester brand cigarettes from the undercover officer Nasser commencing with 10 shippers being $100,000 of cigarettes. A price of $5 per cigarette packet was negotiated between Mr Dries and undercover officer Nasser being a total amount of $25,000 for the 10 shippers. Someone utilising the BlackBerry code name Mr Empire advised the group wanted to purchase all tobacco stocks purportedly held by the undercover officer, stating he would commit to moving the lot and was also involved in the importation operation. Further communications were monitored between those involved in the importation with BlackBerry code name entities Big A and 9 Dragons regarding organising the purchase of unlawfully imported Manchester cigarettes. There was requested a total amount of 300 shippers of unlawfully imported cigarettes, a total of three million, over three deliveries: 10 shippers, 140 shippers and 150 shippers for a total price of $750,000 at $5 per packet which was approximately 20% to 25% of the regular wholesale price for the cigarettes. Mr Dries informed the undercover officer he was travelling to China to check on the drug product for the importation after the completion of the cigarette transactions. Mr Dries in a direct BlackBerry message to the undercover officer said “Yeah bro, I will BB (a reference to BlackBerry) you soon as he BB’s me, we going to China then to make sure product is right when you back”.

19. About 6.15pm on 27 September 2016, undercover officer Nasser conveyed 10 shippers of Manchester brand cigarettes to a scheduled meeting location being the industrial estate at 76 Hume Highway, Lansvale. Upon arrival Mr Dries was at the location, in a black Range Rover SUV registered in the name of the father of the co-offender Mr Acosta. Mr Dries and undercover officer Nasser loaded the 10 shippers into the rear of the white courier van occupied by two Asian males which was subsequently driven from the location. Mr Dries handed the undercover officer Nasser what was expected to be $25,000 in cash but it was subsequently found to be $24,350.

20. On 28 October 2016 undercover officer Nasser sent a BlackBerry message to Mr Dries complaining that he was underpaid and Mr Dries responded “We’re recounting all the stacks (a reference to cash) and we’ll top up what was missing and we’ll also give the $30k for the shipment”.

21. About 9.20am on 29 September 2016 undercover officer Nasser drove a truck containing 140 shippers, 1.4 million cigarettes, of the Manchester brand to 76 Hume Highway, Lansvale for the second controlled supply of unlawfully imported cigarettes to Mr Dries. Mr Dries attended the location with the co‑offender Mr Acosta. The cigarettes were moved from the undercover’s truck into the rear of a rental truck by Mr Dries and Mr Acosta and another male called Tang. Tang drove the truck containing the cigarettes to another location. During the course of the controlled meeting undercover officer Nasser was paid $380,600 in cash secured in a black Adidas backpack. The cash comprised $350,000 as payment for the 140 shippers of Manchester brand cigarettes, $600 owed from the 27 September 2016 cigarette deal and $30,000 as a cash payment for the drug importation fees regarding undercover officer Nasser providing an Australian-based company and broker as agreed through the previous BlackBerry messages regarding the proposed drug importation.

22. Undercover Officer Nasser did not see who put the cash in his truck. Mr Dries advised him the money had been placed there while the undercover was unloading the boxes of cigarettes from the truck.

23. On 29 September 2016 Mr Dries sent a BlackBerry message to the undercover officer in the following terms, “I think it’s sued (a reference to pseudoephedrine) and bro if you want like I said I can turn it to fryed (a reference to ice) that’s the plan but up to you.”

24. In the afternoon of 5 October 2016 Mr Dries met with undercover operative Nasser at Frangos Chicken Restaurant in the industrial area at Penrith. During the course of the meeting Mr Dries continued discussions with the undercover officer regarding travelling to China to test the drug or precursor commodity quality, manufacture of the pseudoephedrine into the prohibited drug methylamphetamine, payment for the precursor commodity to Chinese suppliers, and details regarding the importation container and contents.

25. Between 7 October 2016 and 12 October 2016 the undercover officer Nasser continued to maintain covert BlackBerry communications with the offender Mr Dries and what is referred to in the agreed facts as the Asian Syndicate, regarding the supply of 150 shippers, 1.5 million unlawfully imported Manchester brand cigarettes, for the agreed price of $375,000 in cash.

26. About 7.50am on the morning of 12 October 2016 the undercover officer Nasser attended an industrial complex located at the intersection of Hume Highway and Knight Street, Lansvale as requested by Mr Dries, driving a truck containing the 150 shippers with Manchester brand cigarettes. Upon arrival the undercover parked his truck adjacent to a white Volvo pantech truck driven to the location by a man called Nguyen N Huynh. Mr Dries attended the location driving a white Toyota Landcruiser containing the co-offender Acosta. Also present at the location was the co-offender Quoc Tran. Mr Dries, Mr Acosta and Quoc Tran, assisted by Mr Huynh, unloaded the 150 shippers of Manchester brand cigarettes from the undercover officer Nasser’s truck into Mr Huynh’s truck. At the conclusion of the transfer of the cigarettes the co‑offender Quoc Tran handed $375,000 in cash to the undercover officer contained within a black enviro bag within a black Under Armour brand sports bag. The undercover officer inspected the money and shook hands with Quoc Tran. Shortly after Huynh drove his motor vehicle with the cigarettes away from the location.

Travel to China

27. On 21 October 2016 the co-offenders Acosta and Quoc Tran departed Sydney and flew to Vietnam prior to travelling to China on 27 October.

28. On 1 November 2016 this offender, Mr Dries, departed Sydney and flew to Hong Kong on a one-way ticket. On 2 November he travelled from Hong Kong via ferry to Macau in China.

29. On 2 November 2016 the co-offender Mr Smith, an alias, flew from Sydney to Shanghai, China, to meet with Mr Dries, Acosta and Quoc Tran.

30. Smith flew to China to specifically assist in communicating between Chinese nationals involved in supplying the ephedrine, Smith being the only person from the group - Mr Dries, Acosta and Quoc Tran - capable of communicating in Mandarin.

31. On 2 November 2016 Mr Dries travelled in the company of Acosta and Quoc Tran in Macau, China. He was monitored at Macau Airport en route to Xiamen, China with Mr Acosta and Quoc Tran. The travel tickets for the flight from Macau, China to Xiamen were booked using Quoc Tran’s credit card through Expedia. The passenger details listed for the booking were recorded as Mr Dries, Quoc Tran and Geoffrey Acosta.

32. Mr Dries continued to communicate with undercover officer Nasser and update him on the progress of the importation operation whilst overseas. On 10 November 2016 he sent a message to the undercover officer in the following terms: “We almost sorted everything out. Hey, are you a hundred per cent this is going to work, hey, with no headaches or jail?”

33. On 13 November 2016 Smith travelled back to Sydney. Upon arrival his mobile device was reviewed and downloaded by Australian Border Force staff. Stored message communications and images were located consistent with Smith travelling with the group and being used to negotiate the ephedrine purchase in China.

34. On 15 November 2016 Mr Dries and Quoc Tran returned to Australia on the same Vietnam Airlines flight from Saigon, or Ho Chi Minh City. Once their flight had arrived at Sydney, New South Wales Police and Australian Border Force conducted a covert search of their suitcases. A white-coloured BlackBerry device was located in Mr Dries’s suitcase. Investigators located a black‑coloured BlackBerry device in Mr Quoc Tran’s suitcase. Once outside the terminal complex at Sydney Mr Dries and Mr Quoc Tran were met by an unknown associate who drove them from the location.

35. On 17 November 2016 Mr Acosta flew back to Sydney on a Vietnam Airlines flight from Ho Chi Minh City. He was met at the airport car park by Quoc Tran who drove Acosta from the location in a white Mercedes sedan. It was on this trip to China that the importation of more than a ton of ephedrine was discussed with the Chinese exporter. I note the agreed facts on some occasions refer to the substance to be imported as being ephedrine and on other occasions as pseudoephedrine. I understand that is how, in terms of the communications from those involved in the importation, the substance was described.

Continued communications between Mr Dries, co-offenders and undercover officer

36. On 18 November 2016 Mr Dries requested undercover officer Nasser attend a meeting. About 5.36pm the undercover officer attended a meeting at the Ettamogah Pub car park in Kellyville Ridge. Upon arrival Mr Dries was standing at the front of the establishment. During the course of the meeting he confirmed one ton of pseudoephedrine was to be exported to Australia from the Chinese port city of Xiamen. That was one of the ports that he and the others had visited when in China. Mr Dries indicated it could possibly be more than one ton. He offered to buy the undercover officer’s share of the imported drugs, being the 20% commodity payment from undercover officer Nasser, or alternatively manufacture the pseudoephedrine into methylamphetamine. Undercover officer Nasser told Mr Dries that he wanted to continue to think about what he would do with his portion. Mr Dries informed the undercover officer that whilst in China the pseudoephedrine had been inspected, however he and the Asian Syndicate had travelled together to purchase a better quality of pseudoephedrine product in another location. Mr Dries and the undercover officer maintained communications regarding the impending importation. Those communications also involved communications with the code names of other persons involved in the operation.

37. Mr Dries and the Asian Syndicate, being the co-offenders, continued preparations for the importation operation and communicated progress to the undercover officer using the BlackBerry network.

38. On 5 December 2016 Mr Dries sent BlackBerry messages to the undercover officer in the following terms: “Just waiting on the cover load stuff to arrive then sweet to go. Do you want your stuff done up?”, that is pseudoephedrine manufactured into methylamphetamine. The undercover officer responded, “We will but I think they just want to try a smaller amount to see how it goes first but we can discuss it all when I am back bro.” Mr Dries sent a further message says, “lol try to sum up what you mean, it will be better than any import lol bra.” The undercover officer responded on 12 December 2016, “No problems bro so they are shipping real soon?”, to which Mr Dries responded, “Yeah bra.”

39. On 15 December 2016 Mr Dries messaged the undercover officer, “We have the cover load I will send you the details soon.” Later that same day Mr Dries sent a BlackBerry message to undercover officer Nasser, “Hey bro can you ask the customs guy if we can have a sample of the commercial invoice and packing list from the export supplier company in China. Reason being is we don’t have their company details of the company seal.” The undercover officer was subsequently contacted by Mr Dries who requested a copy of the Australian-based company name to be utilised as the company importing the disguised drug commodity, for completion of freight-forwarding documentation in China.

40. Mr Dries and the undercover officer agreed to meet for the purpose of the undercover officer supplying the documents on a USB storage device and a hard copy of the documents on 22 December 2016. At about 11am that day Mr Dries met with the undercover officer in the Penrith area. The undercover officer supplied Mr Dries with a USB storage device containing company header and packing list documents with the Australian‑based importation company details to be used for the drug importation. The undercover officer also supplied a hard copy of the documents contained on the USB storage device and discussed the nature of the documents.

41. Somewhat ironically, during the course of the meeting Mr Dries again discussed his concerns about being caught conducting the importation operation and going to prison in connection with it. He questioned the undercover officer Nasser regarding his knowledge of undercover officer Mark and details about his employment and further discussed his disappointment and anger at Arnold not being available to assist with his activities. Shortly after that there were telephone communications between the co‑offender Mr Acosta and Mr Dries regarding Mr Acosta driving to Mr Dries’ residence for the purpose of collecting the USB storage device and hard copy documents. At 1.33pm Mr Acosta called Mr Dries and identified himself as Bendan’s mate Geoff when Mr Dries’s wife Amy answered the phone. Mr Acosta confirmed that Mr Dries was at home and not going anywhere. He told his wife that he was on his way. At about 4.52pm Mr Acosta was observed at Global Marine Imports handing Quoc Tran possession of the hard copy documents supplied to Mr Dries by the undercover officer. Mr Acosta and Quoc Tran discussed the specifics of the documents that were provided by the undercover officer, including company locations and details to be utilised on the drug importation freight-forwarding paperwork. Mr Acosta sent messages on a BlackBerry device regarding the documents, details of which were forwarded on to Mr Dries and subsequently onto the undercover officer. From those messages it became apparent that Acosta was using the BlackBerry device user name Uncle.8shortie.

42. In January 2017 Mr Dries requested a meeting with undercover officer Nasser so that he could provide the undercover with a copy of the freight‑forwarding and importation documentation prepared by the Asian Syndicate to be checked by the undercover officer prior to the pseudoephedrine being imported to Australia.

43. About 11am on 3 January 2017 Mr Dries met with the undercover officer in the Penrith area. He supplied the undercover officer with a Lexar brand USB thumb drive which had an electronic file containing five Word documents in English and Mandarin. The documents included a commercial invoice, a packing declaration and packing slip for the proposed importation of the pseudoephedrine and a cover load material by those involved in the importation. The packing documentation listed the total weight of the materials as 8.75 ton, including 1,000 kilograms of water membrane, being the substance to be replaced with pseudoephedrine to be imported by the importation group. Mr Dries also supplied a nine-page document in Mandarin marked “Test for Port”, being a photograph copy of a building material quality test report relating to what was said to be the cover load. During the course of the meeting Mr Dries confirmed the intended importation was for a minimum of one ton of pseudoephedrine. Mr Dries discussed logistics regarding manufacturing the 200 kilogram quantity of pseudoephedrine to be paid to the undercover officer into methylamphetamine. He stated that only smaller amounts of methylamphetamine should be manufactured at a time to ensure the market price of the drug was not affected by the large quantity of pseudoephedrine.

44. A review of the documents on the USB showed they were a Mandarin and English updated version of documents previously supplied to Mr Dries by undercover officer Nasser on 22 December 2016. The updates included the addition of the details of a consignor, a consignee and the product details and weights to be imported. The documents were the subject of forensic examination and there were a number of fingerprints identified, including ten of Mr Smith’s. Following the meeting Mr Dries sought from the undercover officer clarification on what he would like done with the payment of his share of the importation.

Suspicions raised regarding undercover officers

45. At about 11.50am on 24 January 2017 Mr Dries met with the undercover officer. During the course of the meeting he raised concerns regarding the person Arnold not assisting him anymore. Mr Dries further discussed the process of delivery of the imported drug commodity upon its arrival in Sydney. About 12.50pm the meeting concluded.

46. On 30 January 2017 Mr Dries met with the person Arnold after repeated requests from Mr Dries to meet. He discussed with Arnold leaving what the agreed facts refer to as the criminal group. Mr Dries also discussed with Mr Arnold his concerns in relation to the two undercover officers. He demanded Arnold attempt to source further details regarding the background of undercover officer Mark to ensure he was not an undercover police officer and threatened to abandon the importation operation.

47. In February 2017 Mr Dries asked Arnold to confirm that Slater vouched for undercover officer Mark.

48. On 4 February 2017 Slater and Arnold met in the ACT.

49. On 23 February 2017 Mr Dries attended a meeting in the Penrith area with undercover officer Nasser in relation to replacing the BlackBerry device of another person said to be involved in the importation.

Issues with the exportation of the pseudoephedrine

50. In February and March 2017 Mr Dries contacted the undercover officer and advised there were issues with the exportation of the pseudoephedrine shipment. He advised the chemicals contained in the cover load were deemed as sensitive items and the Chinese parties involved in the exportation of the pseudoephedrine were concerned the container would be checked by Chinese authorities. Consequently Mr Dries advised the undercover officer he would forward the BlackBerry details of one of the drug importation group to sort out the issue, being a particular BlackBerry code name which is in the agreed facts. The undercover officer subsequently was advised the group would travel overseas and repack the container with a different cover load.

51. On 24 March 2017 Quoc Tran flew from Sydney to Vietnam. On 30 March 2017 Acosta left Sydney for Vietnam. They flew back respectively on 12 and 24 April 2017. The undercover officer was advised that the group had successfully purchased a new cover load for the importation whilst overseas.

52. Between 20 April and 24 April 2017 Quoc Tran made internet enquiries regarding sourcing large quantities of iodine. Iodine is a precursor for methylamphetamine and is used in a common method of manufacturing the drug.

53. At about 3pm on 15 June 2017 Tran and Acosta had a conversation about a logo Absolute Aquariums. Steps were taken to acquire that logo. At 9pm Acosta and Quoc Tran spoke about creating a fake identity for the purpose of executing the consignee company documentation and that was done.

54. Australian Border Force seizure of container, execution of police search warrants and arrest of Mr Dries

55. On 24 June 2017 Australian Border Force seized a particular container at a sea port in Sydney. The container was subsequently examined by Australian Federal Police staff. Documents were obtained in relation to it. The container was transferred to an Australian Border Force facility.

56. Forensically it was examined and it was found to contain 160 bags of coral and aquarium stones, 50 bags of ceramic rings, five cylinders with attached pump, 20 mattresses and 216 litre buckets of sea salt. There was forensic examination of the buckets of sea salt. The police identified that 120 buckets contained the border-controlled precursor ephedrine. The total quantity, including the packaging, was 1,424.4 kilograms. An analysis showed that it had a net weight of 1,310 kilograms and was 80% pure. The marketable quantity for ephedrine as a border-controlled precursor at the relevant time was 3.2 grams. The applicable commercial quantity was 1.2 kilograms.

57. On 25 June 2017 Acosta, Smith and Quoc Tran met at the Seven Hills office of Global Marine. During the course of that meeting an undercover officer forwarded encrypted BlackBerry messages to the code name 8Tails regarding organising the clearance of the ephedrine shipment and delivery on Friday 30 June 2017. There was an exchange of various messages over the next day or so.

58. On 27 June 2017 Acosta discussed the delivery address for the ephedrine shipment with Mr Tran.

59. On 28 June 2017 police executed a search warrant at 28 Powers Road being the address of Global Marine Imports, Seven Hills. They seized a fraudulent consignee company stamp used on the importation documents, “Common Seal” business stamps, copies of the fraudulent freight‑forwarding importation documents to be used in the importation, various BlackBerry devices and electronics and approximately $666,000 in cash. Police also executed a search warrant at the storage facility connected to Global Marine Imports, and seized 140 kilograms of iodine stored at the location, which is of course another precursor for the manufacturing of methylamphetamine.

60. The police also executed a search warrant at this offender’s Kurrajong address. They located a BlackBerry device and electronics, approximately $130,000 cash in Australian currency, a further $10,000 in cash was found in the kitchen cupboard and that $140,000 is the currency the subject of the offence on the Form 1 concerning the State indictment.

61. Police also found three pistols being a black Springfield 9 mm semi-automatic pistol, a 1911 45 calibre semi‑automatic pistol, a detective special 38 calibre sub-nose revolver and 45 calibre ammunition inside two sports bags on the property near the front yard. The two black bags were hidden adjacent to each other in bushes at the front gate of the property. The three firearms were analysed and confirmed to be pistols under the Firearms Act and they are the subject of the three counts on the State indictment. Mr Dries was arrested and declined to be interviewed.

62. The Crown case in respect of possession of those pistols is that the offender was in possession of them because he knew they were located on the premises he occupied. The Crown does not assert he was the owner of the pistols.

Objective seriousness of the offences

63. I turn then to my assessment of the objective seriousness of the offences. The offender is to be sentenced for both Commonwealth and State offences. When sentencing the offender for the Commonwealth offences I have had regard to the provisions contained in Part 1B and in particular s 16A of the Commonwealth Crimes Act. The offender is the fourth offender I have sentenced for being involved in the importation of ephedrine under the Commonwealth Criminal Code.

64. Here this offender is to be sentenced for an offence that he aided, abetted, counselled and procured the commission of the importation offence committed by two known co-offenders Mr Tran and Mr Acosta. Those two offenders, as did the offender Mr Smith, pleaded guilty to an offence whereby they were described as principals in the importation. It was said by the High Court in Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 that the offences of aiding and abetting and counselling and procuring involve the intentional participation in the crime by lending assistance or encouragement.

65. In GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 the High Court observed:

66. “It is not a universal principal that the culpability of an aider and abettor is less than that of a principal offender. A manipulative or dominant aider and bettor may be more culpable than the principal and even when aiders and abettors are less culpable the degree of difference will depend upon the circumstances of a particular case.”

67. In terms of my finding as to the role of the offender in the offence, I acknowledge that he has pleaded guilty to a charge that does not allege he was a principal in the importation. I also acknowledge that the material before me in these sentencing proceedings concerning the role of this offender and the other offenders is to some degree different from that which was before me in the sentencing proceedings concerning Mr Smith and the proceedings concerning Mr Tran and Mr Acosta. The practicalities of such a situation and how it may come to pass are explained in PG v R [2017] NSWCCA 179 by Basten JA when his Honour observed at para 23:

68. “Although each co-offender was sentenced by the same judge sentencing occurred on the basis of different statements of agreed facts and different evidence. It is by no means uncommon that where pleas are negotiated and the basis of the plea is agreed A will be sentenced on the basis that B was the principal and A played a lesser role whereas B will be sentenced on the basis that A was the principal and it was B that played the lesser role.”

69. I am to impose sentence on the current offender based on the statement of facts that is before me on his sentencing irrespective of what was before me in the earlier sentencing proceedings. I was conscious of this issue when I said in the remarks on sentence for Mr Acosta and Mr Tran, when making observations about the roles played by the offenders in the importation, at para 60 and 6l:

70. “It is important to acknowledge that it is not always possible to be precise in making findings about the apparent role of persons in large scale criminal enterprises such as the one I am dealing with here. I maintain that the offenders’ roles were above that of Mr Smith. They were involved in the enterprise for a longer period of time and the overwhelming inference is that they were significant persons in the planning and organisation of the importation. Smith performed important functions in relation to the importation but I do not consider that he had the same level of management and involvement in the organisation of the importation as these two offenders. It may be that upon reflection their roles in this enterprise were not less than that of the co-accused Dries, noting that I have not yet sentenced that person or heard submissions on his behalf.”

71. Turning then to my assessment of the objective seriousness of the offender’s offences. In relation to the offence of aiding and abetting, counselling and procuring the importation offence of Mr Acosta and Mr Tran, as I said when I sentenced the co-offenders, the quantity of the precursor the subject of the charge is a relevant but not determinative matter. Here the relevant quantity is the pure quantity of ephedrine the subject of the charge. The pure quantity imported was 1.048 tonne of ephedrine, a little over a tonne. The applicable commercial quantity for that substance is 1.2 kilograms so the quantity of drug was many times the minimum amount stipulated to be the commercial quantity for that substance.

72. There is no doubt the offender aided and abetted an offence which can correctly be classified as involving large scale drug importation. Planning for the importation was extensive and sophisticated. Bearing in mind the vagaries of the pricing of precursors such as ephedrine in the illegal drug market, based on the evidence before me, the likely value of the substance was in the vicinity of around 30 million dollars. There is no doubt in my mind from the terms of the messages generated by the offender and from his overall involvement in the importation, including his trip to China, that he was aware of the large scale nature of the importation that he involved himself in.

73. The role of an offender in an offence is always an important consideration when sentencing for offences involving the importation of precursors relating to the manufacture of illegal drugs. As I noted earlier, it is often difficult to have any precision when making findings about the nature of the role of an offender in such a significant criminal enterprise.

74. On the basis of the material before me in the sentencing proceedings concerning this offender, Mr Dries, he was involved in assisting the principals in the importation offence from 9 September 2016 to March 2017 a period of approximately six months. That is a significant period of time. The agreed facts before me here record his last involvement in assisting in the importation was in March 2017, however the ephedrine was not intercepted by the authorities until 24 June 2017.

75. The offender’s role in assisting the principals in the importation was a significant one. He attended a number of meetings with the undercover officers who represented that they could facilitate the clearance of the precursor through Customs for a fee. He communicated information from the principals to the undercover officers and from the undercover officers to the principals in relation to the importation. He used BlackBerry devices to engage in communications in an attempt to avoid detection. The offender at one stage offered to convert the undercover officer’s fee into the drug “ice” if he wished for that to occur.

63. The offender travelled to China in his own words “to make sure product is right”. He was in China for approximately 14 days and he met up with his co‑offenders there. There is no doubt that was to put in place appropriate arrangements in relation to the importation. While in China he kept the undercover officer informed of progress in those arrangements. The offender returned to Sydney in the company of one of the principals, Tran. Upon his return to Australia he met with one of the undercover officers and confirmed that at least a tonne of the substance would be imported and offered to buy the undercover officer’s share which was to be his fee for his involvement. He also requested and obtained from the undercover officer, for use by the principals, documents to be used in facilitating the movement of the precursor through Customs. Once he had returned from China he kept the undercover officers informed of developments in the importation.

64. Despite what is contained in some of the reports that are before me in the offender’s subjective case, I am satisfied beyond reasonable doubt that he involved himself in the importation for financial gain although I am not able to quantify what his expected gain was to be. His offering at various times to buy the undercover officer’s share of the importation and to convert it into the drug methylamphetamine, together with his significant role in the importation, all support a finding that he engaged in the offence for an expected financial gain.

65. The offender’s role was clearly a significant one in terms of the assistance he provided to the principals. He performed a number of important tasks over an approximate six month period. He was clearly a trusted assistant of the principals. Given his significant role and the amount of precursor imported, I consider his offence falls within a notional midrange offence of such offending and towards the upper end of the midrange.

66. In terms of the Commonwealth tobacco offence, that offence was incidental to the importation offence in that the tobacco was intended to be a test run for the importation. In my opinion, there is significant overlap between the tobacco offence and the importation offence. There is no suggestion in the agreed facts that the offender received the cigarettes or any funds from their ultimate sale. I consider that the objective seriousness of this offence is well below a notional midrange offence for this type of conduct. The offence on the Schedule under 16BA of the Crimes Act which is to be taken into account when sentencing on the importation offence involved a substantial sum of money, namely $405,000. That offence relates to the provision of funds to the undercover officer essentially in payment for the cigarettes. There is significant overlap between the criminality involved in that offence and in that involved in the commission of the two offences on the Commonwealth indictment. The presence of that offence on the Schedule has a modest impact upon the sentence to be imposed on the importation offence.

67. In terms of each of the Firearm’s Act offences on the State indictment, I note the Crown’s concession that the offender did not own the firearms; the inference is that he was keeping them for another person. The offender must have realised that there was a real risk that the owner of the firearms had him possess them because the owner’s possession was illegal. There is no evidence that the possession of the firearms was in some way linked to the Commonwealth offences.

68. Each firearm was in working order and was not kept safely as at the time of the possession. The firearms were not loaded however there was present ammunition for the firearm the subject of count 2 on the State indictment, which in my opinion elevates the objective seriousness of that offence. There is nothing to suggest that the possession was for a lengthy period of time. I consider that each of the Firearms Act offences is below the midrange of objective seriousness of such offences but not at the bottom of the range.

69. The offence on the Form 1 in relation to the state indictment is to be taken into account when sentencing the offender on count 1 on that indictment. The sum of money is not insignificant being $140,000, although it is not much above the amount required to incur liability under the offence creating provision. I also note that there is no fault element required to be proved in relation to that offence except knowledge of the possession of the currency. The presence of that offence on the Form 1 has a modest impact on the sentence to be imposed on that account.

The Offender’s Subjective case

Sentence Assessment Report and psych reports

83. Turning then to the offender’s subjective case there are before me the following: A Sentencing Assessment Report, a report dated 7 November 2020 by Sam Borenstein a clinical psychologist, documents obtained from Corrective Services and Justice Health and various testimonials. An affidavit from the offender’s wife was also read during the sentence proceedings. The offender did not give evidence during the sentence proceedings. I have had regard to that fact in assessing what weight to give to some of his assertions made to the authors of the documents that are before me and the weight to be given to his letter of apology that was also tendered before me. That is particularly so in relation to the explanations he has given as to the circumstances of the offences and as to his motivation for engaging in them.

84. The offender’s date of birth is 18 March 1983 so he is currently 37 years of age and was 33 to 34 years of age as at the time of the offending. The offender has very little by way of a criminal history. In 2013 he was sentenced to a 12 month non-conviction good behaviour bond for an offence of common assault and that is the only matter on his criminal history. His lack of a significant criminal history entitles him to some leniency here. I note however it is said by the higher Courts that lack of a criminal history is of less relevance in relation to sentencing for importation offences especially when a person travels overseas to facilitate the importation. This is because a person with a limited or no criminal history is less likely to attract the attention of law enforcement authorities.

Family background

85. In terms of his family background, the Sentencing Assessment Report records the offender acknowledges his historical relationships with pro criminal friends and associates. The Sentencing Assessment Report states that upon his ultimate release from custody the offender will reside with his family on his father’s property.

86. In terms of his early childhood, the offender told the psychologist he was cared for and fed and that his mother suffered severe chronic depression. He told the psychologist there was no history of trauma, abuse or domestic violence. His wife’s affidavit describes the offender’s current family situation in more detail. They met when they were school students and had been in a relationship for some 24 years. They have three children aged 18, 14 and 5. His wife is employed as a learning support officer at a public school. The offender’s wife also describes the impact the offender’s imprisonment has had on her and on the three children. As is so often the case, it is the family of an offender who suffer most when an offender is imprisoned.

87. It is clear from the offender’s wife’s affidavit and the testimonials that are before me that the offender still enjoys the support of his family and some friends. The offender’s wife’s affidavit sets out that the offender left school when he was 15 and commenced an apprenticeship in shop fitting which he completed in 2001.

Education and employment history

88. The wife’s affidavit also sets out the variety of employment that the offender has engaged in over the years. According to the Sentencing Assessment Report, his main source of income was his dog breeding business and that he intends to maintain that business upon his release from custody. The offender’s wife’s affidavit confirms that was the offender’s employment as at the date of his arrest. The offender does have an offer of employment with Pipe Management Australia according to the testimonial from Mr Taupau who is the New South Wales Operations Manager at that organisation.

Substance use

89. The Sentencing Assessment Report records that the offender reported daily use of cocaine during the commission of the offences and that he attributed his problematic substance abuse to the stress associated with his involvement in the offences. The offender’s wife in her affidavit states in 2017, prior to the offender’s arrest, the offender had been behaving in an uncharacteristic way in that he was aggressive, paranoid, stressed and it had become apparent to her that he was using prohibited drugs. The psychologist recalls the offender telling him that by the time he was 18 he was a fairly regular binge drinker and that at that age he commenced using MDMA, ecstasy, cocaine and very occasionally cannabis. He told the psychologist that he used cocaine more regularly as his depression worsened.

Psychological/psychiatric history

90. There is a document before me from a general practitioner to the effect that the offender had suffered anxiety and depression prior to his entry into custody. The offender’s wife in her affidavit states that the offender has always suffered anxiety and depression and first started taking medication, for those conditions in 2011.

91. When assessed by the psychologist, the psychologist considered that the offender’s mood was moderately depressed and his affect was flat and restricted. The psychologist considered there was no indication of a serious psychiatric disorder and the offender presented as being cognitively intact. Psychometric testing by the psychologist confirmed severe symptoms of depressed mood and of anxiety. The psychologist diagnosed the offender as suffering from major depression with co-morbid symptoms of anxiety and panic, as well as a substance use disorder and alcohol use disorder as a form of self-medication against recurrent symptoms of depression, anxiety and panic.

Response to supervision

92. There is considerable evidence before me as to the offender’s conduct since entering custody in 2017. Subpoenaed material from the Corrective Services’ files concerning the offender records that when assessed on 5 July 2017 it was considered that he presented as being in a stable mental state and reported a stable mood. At that point in time it was recorded that he had no current issues regarding his adjustment to custody and that he had reported no sleep or mood issues or issues with other inmates, although it was noted the offender had reported a history of mental health issues. In 2018 the records from Corrective Services report that he had been requesting to see a doctor due to his anxiety and his inability to sleep. In July 2018 his Corrective Services file indicates that he was not permitted to attend his mother’s funeral.

93. In late 2019 the Corrective Services files record that the offender was employed in facility maintenance and that he was respectful towards officers and gets along well with other inmates. In June 2019 the Corrective Services files record that the offender had been the subject of a number of threats from other inmates which had led to the offender suffering anxiety and difficulty sleeping. The Corrective Services records record that on the morning of 14 December 2019 the offender was instrumental in saving the life of another inmate who had attempted to hang himself in the relevant wing showers.

94. The report notes that the offender had been performing duties as the wing sweeper when he heard noises from the shower block and as he entered he saw the inmate concerned hanging from the ceiling. With the help of another sweeper the alarm was raised and this offender took the weight of the hanging inmate and began removing him from the makeshift noose. The report also records that the offender assisted staff at the prison concerned to get the inmate down safely. The Corrective Services records record that since that incident the offender has complained of having problems sleeping and of anxiety.

95. In February and March this year the Corrective Services records record the offender requesting treatment for nightmares and lack of sleep as a consequence of what he saw when he saved the life of the inmate who attempted to take his own life. In a report in the Corrective Services records dated 24 April 2020 it is noted that the offender performs his wing role as sweeper satisfactorily and had built a positive rapport with officers. There is also a report dated 27 April 2020 in the Corrective Services records which notes that when the offender was performing his wing sweeper duties that day he came across another inmate having a fit and quickly alerted officers to the situation and a medical response was called. The offender was noted to have shown a good sense of awareness and calm to help the situation. Also while in custody the offender has engaged in and completed a number of programs and courses, those courses have included a remand Addictions course and Healthy Work and Safety Procedures.

Attitude to the offence

96. In terms of his attitude to the offences, according to a sentencing assessment report the offender minimised his actions by attributing blame to his co-offenders. He is recorded as indicating to the author of the sentencing assessment report that “his involvement in the offences was dictated by his associates” and characterised his role as one of “exchanging information” between persons involved in the importation. He also told the author of that report that his main motivation to commit the offence was to initially assist a friend financially. In relation to the possess unauthorised pistol offences, he maintained to the author of the sentencing assessment report that “he had no knowledge as to why the weapons were found on his property”. The Sentencing Assessment Report records that the offender appeared to take some responsibility for his offences and was ashamed of his actions. He expressed remorse for his behaviour although according to that report, it was predominantly in the context of letting his family down. The sentencing assessment report records that “without being challenged” he did not express concern regarding the ongoing impact drug importations have on individuals or the wider community.

97. According to what is recorded in the psychological report, in terms of his involvement in the offences, he was “just trying to help someone, a friend”. In terms of his entry into the offences the offender is recorded as telling the psychologist that he had entered into the offending behaviour to assist his friend and the co-offenders. He told the psychologist there had been “a drug deal that went bad” and that he felt responsible as he had introduced the people concerned. The psychologist records the offender telling him that he did not know exactly what had happened, that drugs were taken and no money was paid and he felt responsible because he had introduced the parties. He is recorded as telling the psychologist that “he entered into a business venture and he intended to compensate the botched drug deal. Mr Dries states he entered into the offending behaviours out of fear”. In terms of the unauthorised pistol offences the psychologist records the offender telling him that “I got this message that someone was going to drop something off, I thought it was money and when he arrived he told me it was guns, he left it at the gate”.

98. As the offender did not give evidence on sentence and the Crown was not able to test his assertions as to why he engaged in the offences and his assertions as to his limited role I am not prepared to act on those assertions. In particular, as I observed in my analysis of the objective seriousness of the importation offence and his role in it, his assertions about his role and motivation for involving himself in that offence are not consistent with what I consider his role to be. In his letter of apology the offender apologises for his offences and to a limited degree appears to acknowledge the potential harm that those offences involved for the community.

The future and risk of re-offending

99. The sentencing assessment report records that he has not incurred any institutional infringements while in custody. That report assesses him as having a medium to low risk of reoffending. The psychologist considered that if the offender received treatment for his major depression, anxiety and panic disorder, then it was likely to significantly reduce the likelihood of him reoffending.

Imposition of sentence

100. The offender entered his pleas of guilty in relation to the Commonwealth offences after arraignment in this court but before the setting of the trial date. In relation to the State offences the guilty pleas were entered after a trial date had been fixed but some two months prior to the trial. In these circumstances I propose to allow the offender a 15% discount of his sentences on both the State and Commonwealth offences for the utilitarian value of the pleas. I consider that there is limited evidence of remorse here.

101. The evidence before me is such that I consider that the offender has sought to downplay to some degree his role in the offences, in particular in the importation offence. There is some remorse in relation to the importation offence although the primary component of the offender’s remorse appears to be because of the impact on his family and himself. There has been no direct expression of remorse in relation to the firearms offences.

102. I consider that the offender has excellent prospects for rehabilitation despite his limited overall remorse. The material from Corrective Services that is before me demonstrates that the offender has been a model and exemplary inmate since his incarceration. That, together with his lack of a significant criminal record and his family support leads to a finding that he has excellent prospects for rehabilitation.

103. The evidence before me satisfies me that due to his mental health issues which to a significant degree have been brought on and exacerbated by his gaol experience, in particular the circumstances in which he came to save the life of another inmate, mean that his time in custody is more arduous than it is for inmates who do not suffer such issues. I also note that this will be his first time serving a custodial sentence. I have also had some limited regard to the fact that since mid-March this year there have been no in-person prison visits due to the Covid-19 pandemic although I note that situation is expected to change this week. For all those reasons, in terms of fixing a non-parole period for the State offences I propose to make a finding of special circumstances. I am satisfied on the evidence as I say the offender has excellent prospects of rehabilitation and has commenced his rehabilitation although it is not yet complete. His prospects of rehabilitation will be assisted if he has a longer period on parole.

104. The offender has been in custody solely in relation to these offences since 28 June 2017 and his sentence will be backdated to that date to take account of his time in custody.

Accumulation and concurrency

105. Given the number of offences that the offender is to be sentenced for it is necessary to consider the issues of accumulation and concurrency in determining the overall sentence to be imposed. I will use the aggregate sentencing provisions when imposing sentence. I note that they are available to be used when sentencing for Commonwealth offences, see R v Pham [2015] HCA 39 at [21]. There should be limited accumulation in relation to the two Commonwealth offences as the criminality involved in the Customs Act offence was to a significant degree encompassed in the importation offence. There should be a reasonable level of accumulation of the State and Commonwealth sentences as discrete criminality is involved in their commission, there being no evidence linking the possession of the firearms to the Commonwealth offences. Given the possession of three separate firearms which are the subject of separate charges one of which was more serious than the other by virtue of the possession of ammunition for the pistol, I consider there should be limited accumulation of the State sentences upon each other.

Issue of parity

106. Dealing then with the parity issue, as I mentioned earlier, this offender is the fourth person that I have sentenced in relation to the importation offence. An issue of parity does arise here, in particular in relation to that offence. In considering the sentence I imposed on Smith, the only common offence with the current offender is the offence concerning the importation. Smith pleaded guilty to an offence which was not one of aiding, abetting, counselling or procuring but of importation simpliciter. I do not consider that difference in the charge is of any significance in considering the question of parity. The more important issue is that of role.

107. I described Smith’s role as an important one in assuring the success of the importation. He commenced his involvement in around October 2016, some time after this offender, but appears to have ceased his role only upon arrest. In my sentencing judgment concerning him, I assessed Smith’s role as being well below that of this offender and below that of co-offenders Acosta and Tran. On the basis, however, of the material before me and having heard from this offender’s counsel and noting differences in the facts that are before me, I now consider that this offender’s role while different to that of Smith, should be seen as having been on the same level as that of that offender, but clearly less than the principals Acosta and Tran.

108. In terms of Smith’s subjective case he was of a similar age to this offender; he did not have a criminal history although I sentenced him for serious drug offending which occurred prior to the commission of the importation offence. He, too, suffered from depression, anxiety and poly substance use disorder; he too had been well behaved while in prison. I consider he had reasonable prospects of rehabilitation. Smith had pleaded guilty in the Local Court and received a 25% discount of his sentence for the utilitarian value of the plea. He also received a further significant reduction of his sentence for his assistance to authorities. He received overall a 45% discount of his sentence. I ultimately found there was some genuine remorse. The starting point for the sentence of Smith on the importation offence prior to the application of any discount was 12 years imprisonment.

109. In relation to the co-offender Acosta, he was sentenced for the following Commonwealth offences: importation of a commercial quantity of ephedrine, conveying 2.9 million cigarettes noting that they were imported with intent to defraud the Revenue. He was sentenced for the following State offences: two offences of unauthorised possession of a pistol. When I sentenced Acosta and Tran I described both of their roles as being above Smith’s and that their roles may not have been below this offender’s, noting that was how I had described them when I sentenced Smith. On the basis of the material before me on this sentencing, I am satisfied that the role of Acosta and Tran was that of the principal organisers of the importation from the Australian end, that their role was above that of Smith and this offender. I described their roles when I sentenced them as being within the very upper end of the mid-range of objective seriousness for such offending. I still regard that description as appropriate.

110. In terms of Acosta’s cigarette offence, I noted that the amount of cigarettes was a significant one as was the amount paid for them and assessed the offence as being below the mid-range of objective seriousness but not at the bottom of the range. I note that this offender Mr Dries’ offence involved about 1.4 million less cigarettes. I consider that his involvement in that particular offence to be less than that of Acosta’s, noting that because of the connection between that offence and the importation offence, the fact that Acosta was the principal in the importation offence, has an impact upon his level of criminality in the tobacco offence.

111. In relation to Mr Acosta’s pistol offences, I noted both pistols were in working order, that they were found in a locked safe in residential premises and no ammunition was found with them. I also found I could not be satisfied his possession of those pistols was linked to the importation offence. I described those offences as being towards the bottom of the range of objective seriousness for such offending but not at the bottom of the range. I imposed fully concurrent sentences in relation to the firearm offences.

112. In terms of Mr Acosta’s subjective case, he was a similar age to the offender and had essentially no criminal record. He had no mental health issues prior to being assaulted in prison. I found he had genuine remorse and excellent prospects of rehabilitation. He received a 25% discount for his plea of guilty and I declined to find special circumstances when setting the non‑parole period for the State offences. Prior to the application of a discount for the plea of guilty the starting point for Mr Acosta’s sentences were: on the importation offence 13 years imprisonment, on the cigarette offence 18 months. I accumulated the Commonwealth sentences by three months. Prior to the application of the discount for the plea of guilty the starting point for the sentences on the unauthorised pistol offences was four years imprisonment. I accumulated the aggregate State sentence by a factor of a year.

113. I sentenced Mr Tran for the following Commonwealth offences: the importation of a commercial quantity of ephedrine, conveying 1.4 million cigarettes knowing they were imported with intent to defraud the Revenue, an offence of dealing with $375,000 intending it to become an instrument of crime, those funds being the funds paid for the cigarettes. Mr Tran was also sentenced for a State offence that he dealt with $1,433,630 in circumstances where there are reasonable grounds to suspect that the property is the proceeds of crime. The cash the subject of that offence was found at the premises of Global Marine Imports and its storage location. I described Mr Tran’s role in the importation offence in the same way that I described Acosta’s, as I did his involvement in the conveying tobacco products offence, noting that the number of cigarettes was considerably less than in Mr Acosta’s offence, being close to the amount concerned in this offender’s offence. I assessed the Commonwealth instrument of crime offence as being well below a notional mid-range offence. In relation to the State offence I noted the sizeable amount was not derived from the importation and that given the evidence that was before me as to Mr Tran’s parlous financial position the money could not have been derived from a lawful source.

114. In terms of Mr Tran’s subjective case, he was of a similar age to this offender and had no criminal record and there was evidence that he suffered from a gambling disorder. I found he had genuine remorse, excellent prospects for rehabilitation and was unlikely to reoffend. Prior to the discount for the plea of guilty there was a starting point in relation to the State offence of two years imprisonment, the starting point for the importation was 13 years imprisonment, the starting point for the cigarette offence was 18 months imprisonment, the starting point for the instrument of crime offence was one of 12 months imprisonment. I accumulated the Commonwealth offence by a factor of seven months on the State sentence.

115. I have had regard to the differences in the role of this offender with that of Tran, Acosta and Smith in relation to the offences that they have in common. This offender’s role is less than that of Acosta and Tran and in my opinion similar to that of Smith. Their subjective cases are somewhat similar although I propose to give some specific recognition to this offender’s conduct in gaol and saving another inmate’s life. That is conduct which if there is an opportunity to do so, the Court should, as a matter of public policy, encourage in my opinion. I therefore propose to reduce the starting point for the importation offence prior to the application for the discount for the plea of guilty by one year in order to give specific recognition to the offender’s conduct in that regard.

Commonwealth offences

116. In relation to the Commonwealth offences, I have had regard to the objects of sentencing and the principles set out in Part 1B of the Commonwealth Crimes Act. As I said when sentencing the co-offenders, general deterrence must always feature whenever sentencing for the large scale importation of precursor drugs that can be used to manufacture extremely large quantities of prohibited drugs for distribution into the Australian illicit drug consumer market. Such drugs are causing untold damage to our community and in particular to our young people, bringing death and destruction to families. Those who seek to gain financially from such offences must expect to receive significant sentences. The sentence must be such that it not only deters this offender but others in the community who might be tempted to engage in such large scale criminal activity.

State offences

117. Insofar as the State offences are concerned, I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. General deterrence has a role to play in sentencing for the unauthorised possess pistol offences. The unlawful possession of firearms in our community must be firmly discouraged every time someone is sentenced for such an offence. The unlawful possession of firearms is a threat to community safety and it is clear from the maximum penalty and the standard non-parole period provided by the parliament that such offences are serious offences. The maximum penalties in relation to the Commonwealth offences have been taken into account as legislative guideposts. The maximum penalty and the standard non-parole period in relation to the Firearms Act offences have been taken into account as legislative guideposts.

118. In terms of the three State offences, the starting point for the offences prior to the application of the discount for the plea of guilty are: count 1, having regard to the offence on the form 1, four years and two months; count 2, four years and two months; count 3, four years. In relation to the Commonwealth offences, the starting point prior to the application of the discount for the plea of guilty is as follows: the aid, abet, counsel or procure the importation offence, having regard to the offence on the schedule, the starting point is 11 years imprisonment; the starting point for the convey tobacco products offence prior to the discount for the plea of guilty is 14 months imprisonment.

The sentence

119. I will now record the indicative sentences and where there is an applicable standard non-parole period, an indicative non-parole period. In determining the indicative sentences and fixing the aggregate sentences I have had regard to all of the objective and subjective factors I referred to earlier.

120. The sentences you will hear me first announce Mr Dries are what are called indicative sentences. You will then hear me announce an aggregate sentence which is the sentence and non-parole period that you will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence I will tell you the date it starts from, the date it ends and the date when you are first eligible for parole.

121. The indicative sentences and indicative non-parole periods for the State offences are as follows: on count 1, an indicative sentence of three years and six months with an indicative non-parole period of two years and four months; on count 2, an indicative sentence of three years and six months with an indicative non-parole period of two years and four months; on count 3, an indicative sentence of three years and four months with an indicative non‑parole period of two years and two months. In relation to the State offences, I impose an aggregate sentence of four years imprisonment with an aggregate non-parole period of two years and eight months. That aggregate State sentence commences on 28 June 2017. The State sentence expires on 27 June 2021. The State aggregate non-parole period expired on 27 February 2020.

122. The indicative sentence for the Commonwealth importation offence is nine years and four months imprisonment. The indicative sentence for the convey tobacco products is one of 11 months imprisonment. The aggregate Commonwealth sentence is one of nine years and six months which commences on 27 June 2018 and expires on 26 December 2027. There is an aggregate Commonwealth non-parole period of five years and six months which expires on 26 December 2023.

123. There is therefore an overall sentence of 10 years and six months with an overall non-parole period of six years and six months. It commences on 27 June 2017 and expires on 26 December 2027. The overall non-parole period expires on 26 December 2023. The earliest date Mr Dries is eligible to be released to parole is the date of the expiry of the non-parole period which is 26 December 2023. Whether you are in fact released to parole that day is a matter for the Commonwealth Attorney General who will no doubt take account of your behaviour in prison in determining whether you are released then or on another date.

124. I dare say your lawyers will be in contact Mr Dries to explain that in more detail but the effect of it is you have received an overall sentence of 10 years and six months with an overall non-parole period of six years and six months. It means you are first eligible for parole on 26 December 2023.

Orders

1. The offender is convicted of the offences to which he pleaded guilty.

2. Indicative sentences with regard to the State offences:

1. Taking into account a 15% discount for an early guilty plea and the offence on the Form 1, record an indicative sentence of 3 years and 6 months and an indicative non-parole period of 2 years and 4 months for the offence of possess unauthorised pistol, the subject of count 1

2. Taking into account a 15% discount for an early guilty plea, record an indicative sentence of 3 years and 6 months and an indicative non-parole period of 2 years and 4 months for the offence of possess unauthorised pistol, the subject of count 2

3. Taking into account a 15% discount for an early guilty plea, record an indicative sentence of 3 years and 4 months and an indicative non-parole period of 2 years and 2 months for the offence of possess unauthorised pistol, the subject of count 3

3. Indicative sentences with regard to the Commonwealth offences:

1. Taking into account a 15% discount for an early guilty plea, and the offence on the Schedule, record an indicative sentence of 9 years and 4 months imprisonment for the offence of import commercial quantity border controlled precursor, the subject of count 1

2. Taking into account a 15% discount for an early guilty plea, record an indicative sentence of 11 months imprisonment for the offence of convey tobacco properties knowing that the goods were imported with intent to defraud Revenue, the subject of count 2

4. Aggregate sentence with regard to State offences:

1. Impose an aggregate sentence of 4 years imprisonment and an aggregate non-parole period of 2 years and 8 months. The aggregate sentence commences on 28 June 2017 and expires on 27 June 2021. The non-parole period expires on 27 February 2020.

5. Aggregate sentence with regard to Commonwealth offences:

1. Impose an aggregate sentence of 9 years and 6 months and an aggregate non-parole period of 5 years and 6 months. The aggregate sentence commences on 27 June 2018 and expires on 26 December 2027. The non-parole period expires on 26 December 2023

6. Overall sentence:

1. Impose an overall sentence of 10 years and 6 months imprisonment with an overall non-parole period of 6 years and 6 months. The overall sentence commences on 27 June 2017 and expires on 26 December 2027. The overall non-parole period expired on 26 December 2023.

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Decision last updated: 18 March 2021