R v Elmir

Case •

[2022] NSWDC 317

•

11 March 2022

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Elmir [2022] NSWDC 317
Hearing dates: 28 October 2021; 27 January 2022
Date of orders: 11 March 2022
Decision date: 11 March 2022
Jurisdiction:Criminal
Before: Yehia SC DCJ
Decision:

The offender is convicted. I impose a term of imprisonment comprising of a non-parole period of 14 years’ imprisonment, commencing on 8 August 2017 and expiring on 7 August 2031, with an additional term of 10 years’ imprisonment. The total period is one of 24 years’ imprisonment.

Catchwords:

CRIME – conspiracy to import commercial quantity of MDMA – whether and the extent to which an undercover operation and the role of an undercover operative operate to reduce culpability – background of disadvantage and deprivation

Legislation Cited:

Criminal Code 1995 (Cth) ss 11.5(1) and 307.1(1)

Crimes Act 1914 (Cth) ss 16A(2) and 17A

Cases Cited:

Cam Huynh Giang v R [2017] NSWCCA 25

McKinnon v Regina [2020] NSWCCA 106

R v Elomar & ors [2010] NSWSC 10

R v Ibrahim, Moustafa [2020] NSWDC 254

Taha v R [2022] NSWCCA 46

Wong v The Queen; Leung v The Queen (2001) 207 CLR 584

Category:Principal judgment
Parties: S Elmir (Offender)
Commonwealth Director of Public Prosecutions (Crown)
Representation:

Counsel:
J Stratton SC with J Trevallion (Offender)
P McGuire SC with P McEniery (Crown)

Solicitors:
Archbold Gittani Lawyers (Offender)
Commonwealth Director of Public Prosecutions (Crown)
File Number(s): 2017/00252667
Publication restriction: A suppression order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) applies to paragraphs [130] - [142] and [149] of this judgment. The order is made on the grounds specified in s 8(1)(e) of the Act.

Judgment

  1. Steven Francis Fawaz Elmir, the offender, comes before me to be sentenced in respect of one federal offence. The offence is one of conspiring to import border-controlled drugs, namely, 3,4-methylenedioxymethamphetamine (“MDMA”), cocaine, and methamphetamine, between 22 March and 8 August 2017, the quantities being commercial quantities.

  2. The offence is contrary to ss 11.5(1) and 307.1(1) of the Criminal Code 1995 (Cth). The maximum penalty is life imprisonment. For reasons that will become apparent, the offence relates to what has been described in the Statement of Agreed Facts, and during the proceedings, as the “Syndicate Two Drug Transaction”.

  3. The single offence is a rolled-up offence covering the offender’s participation in two separate, but related, conspiracies. The offence is particularised as follows:

  1. between about 22 March and 5 July 2017, the offender conspired with Mustafa Ibrahim and others to import commercial quantities of MDMA and cocaine; and

  2. between 5 June and 8 August 2017, the offender conspired with Mustafa Ibrahim and others to import commercial quantities of MDMA, cocaine, and methamphetamine.

  1. The offender was committed for sentence on 9 December 2020. It was a plea of guilty at the earliest opportunity. The case against the offender was a strong prosecution case involving extensive surveillance, listening device material and telecommunication interception. Notwithstanding the strength of the Crown case, I am satisfied that the plea of guilty reflects a willingness on the part of the offender to facilitate the administration of justice. There is significant utilitarian value in the plea. The trial would have been a lengthy one involving the presentation of surveillance evidence.

  2. Had this matter proceeded to trial, it would have potentially required the undercover operative, Zane, to give evidence. A trial would have necessarily involved complex legal issues.

  3. I am satisfied that a reduction in sentence to reflect the utilitarian value of the plea is 25%.

  4. The police investigation into these and related criminal activities was extensive and resulted in the charging of a number of offenders. In respect of the particular offence for which this offender is to be sentenced, I dealt with a co-conspirator, Mustafa Ibrahim, for his role in the Syndicate Two Drug Transaction on 20 May 2020.

  5. Mr Ibrahim pleaded guilty and was sentenced in respect of offences which included the Syndicate One Drug Transaction; Syndicate Two Transaction; trafficking MDMA; and a number of offences of dealing in an instrument of crime which related to various tobacco transactions.

  6. His overall criminality was more significant than the present offender. An indicative sentence was recorded in respect of the Syndicate Two Drug Transaction of 22 years’ and 6 months’ imprisonment, following the application of 25% reduction to reflect the utilitarian value of the plea. That indicative sentence took into account a further offence contained on the s 16BA Schedule, which itself carried a maximum penalty of life imprisonment.

  7. Identifying the role of the present offender in the Syndicate Two Drug Transaction and applying the principle of parity are important aspects of the sentencing exercise.

  8. I am mindful that I must make findings on the Statement of Facts and other evidence adduced in these proceedings, putting aside material adduced in the proceedings of the co-conspirator. I have expressed the view on a previous occasion that it is unfortunate that sentencing proceedings relating to co-offenders are conducted separately. However, it is incumbent upon me to proceed on the material and submissions made in these proceedings.

Sentencing for Commonwealth Offences

  1. Sentencing for Commonwealth offences is governed by Part 1B of the Crimes Act 1914 (Cth) (“the Act”). I must impose a sentence of a severity appropriate in all the circumstances of the offence. In addition to any other matters, I must take into account matters listed in s 16A(2) of the Act that are relevant and known to the Court.

  2. I must not impose a sentence of imprisonment unless, having considered all other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case: s 17A of the Act. Given the objective gravity of the offence and the extent of the criminality involved, there is no question that the only appropriate penalty is one of full-time imprisonment of some length.

Facts

  1. The circumstances giving rise to the offence are set out in a 28-page Statement of Facts. I do not intend to re-produce the entirety of that document in these remarks on sentence. I have had regard to the full contents of that document, including all of the extracts of listening device and other surveillance material and the messages exchanged.

  2. Before I summarise the facts, I will deal with an objection that was made at the commencement of the proceedings in respect to portions of the Statement of Facts.

  3. Mr Stratton SC, on behalf of the offender, objected to portions of the document that were highlighted in green. This essentially contained passages in which the offender indicated that he could obtain drugs either by airfreight or otherwise from a number of countries including China, Greece, Malaysia and elsewhere.

  4. The submission is that this material is irrelevant and prejudicial, and is based on statements said to have been made by the offender at a time when he believed he was speaking to another drug importer and had an interest in exaggerating his access to other sources of drugs. In essence, that his representations in this regard were an attempt by him to paint himself as having more access and influence over multiple syndicates around the world, then he in fact had.

  5. The Crown submits that those passages are relevant on any one or more of the following bases:

  1. the nature and scope of the conspiratorial agreement to source drugs from overseas and to import them into Australia;

  2. the nature of the relationship between the offender, Ibrahim and Zane;

  3. to give context to the true nature of the enterprise and the offender’s roles within it;

  4. to counter any submissions in mitigation which are inconsistent with the evidence; for example, the offending was an isolated incident;

  5. the offender’s financial motivations;

  6. prospect of rehabilitation; and

  7. the need for specific deterrence.

  1. During the course of the proceedings, I indicated that I would exclude paragraph 18(a) of the Statement of Facts. That paragraph relates to a conversation between Ibrahim and Zane about this offender’s ability to source drugs from around the world. He was not present and did not participate in that conversation. Those representations do not assist me in assessing any of the grounds relied upon by the Crown. Indeed, it is open to infer that Ibrahim was simply making these representations in an effort to persuade Zane to deal with this offender instead of Mostafa Dib, being the person who sourced the drugs, or assisted in doing so, in respect of the Syndicate One Drug Transaction.

  2. In respect of the other portions of material to which objection is taken, I admit the material, but on the limited basis that the representations rebut any suggestion that the present offence was an aberration or isolated incident, and as evidencing a willingness on the part of the offender to be involved in serious drug-related activity from which he could make substantial profit. It is material relevant to prospects of rehabilitation and the weight to be afforded specific deterrence.

  3. I am not persuaded that the material should be admitted as relevant to the nature and scope of the conspiratorial agreements that are the subject of the present offence, namely, transactions related to the Dutch syndicate. Nor is the material of assistance in respect of determining the nature of the relationship between the offender, Ibrahim and Zane, or the context of the enterprise and the offender’s role within it.

  4. It is open to find that the representations made by the offender that he could obtain drugs from a number of different countries, were made in an effort to ingratiate himself with Zane and exaggerate his capabilities and contacts.

  5. I am comfortably of the view that the balance of the Statement of Facts is sufficient to inform a proper assessment of the nature and scope of the conspiratorial agreement the subject of the offence and the offender’s role within it.

  6. For completion, I add that a similar point was raised in the sentencing proceedings relating to Ibrahim. I did not take into account uncharged conduct as increasing the objective seriousness of the offences to which that offender had pleaded guilty. Instead, I took the material into account as rebutting any submission that the offender’s conduct was an aberration or constituted an isolated incident. No such submission was made in that case. Mr Stratton SC does not make such a submission in the present case.

  7. I turn now to summarise the facts.

  8. In March 2016, the Australian Federal Police (“AFP”) commenced an investigation into the criminal activities of Ryan Watsford and his associates. During November 2016, the investigation expanded to include Mustafa Ibrahim.

  9. From November 2016, the AFP identified criminal activities being committed by multiple domestic and international criminal syndicates, including dealing in smuggled tobacco products; dealing in the proceeds from the further sale and distribution of smuggled tobacco products; trafficking of MDMA; smuggling tobacco products; and plans to import commercial quantities of border controlled drugs into Australia.

  10. The investigation, known as Operation Veyda, involved extensive physical and electronic surveillance over a period of more than one year, which included lawful interception of telecommunication services used by the syndicate; lawful use of listening, optical, tracking and data surveillance devices; deployment of surveillance operatives; and the deployment of an undercover officer, “Zane”.

  11. The syndicate members communicated with each other using encrypted text based mobile telecommunication devices known as Blackberries, which are secure from police interception.

  12. During the investigation, Zane gradually built a relationship with Watsford. Thereafter, Mustafa Ibrahim was introduced to Zane by Watsford. Following this introduction, Watsford and Ibrahim built a relationship with Zane through the successful sale and distribution of smuggled cigarettes they purchased from Zane, provided and facilitated through Zane. It is not alleged that this offender was involved in these smuggled cigarette transactions.

  13. In 2016, Zane informed Watsford that he had access to a “door”. In this context, a “door” is a person or methodology that is able to facilitate the importation of goods into Australia without them being detected by Australian law enforcement.

  14. In November 2016, Ibrahim and Watsford also introduced Zane to Mostafa Dib, and they commenced arrangements to import large quantities of illicit substances (referred to as the “Syndicate One Drug Transaction”). It is not alleged that this offender was involved in these arrangements.

  15. While the arrangements were being made for the Syndicate One Transaction, Ibrahim introduced Zane to this offender, an Australian citizen living in Dubai who Ibrahim represented as being a person who could source drugs. Ibrahim suggested to Zane that they offer of the services of Zane’s “door” to the offender and his associates, the Dutch syndicate, for a 20% fee of the total amounts to be imported. Ibrahim facilitated the introduction of Zane and the offender online over encrypted Blackberry communications in March 2017 and then in person in Dubai in May 2017.

  16. The offence for sentence is a “rolled up” offence with two conspiracies:

Summary of the First Conspiracy

  1. In April 2017, Zane raised with Ibrahim the prospect of purchasing MDMA from the offender’s associates, the Dutch syndicate. Zane and Ibrahim each decided to purchase 50kg of MDMA. Zane’s payment for 50kg of MDMA was handed over by Ibrahim with his own payment for his 50kg of MDMA to a third party, acting on behalf of this offender.

  2. The drug commodities and amounts evolved throughout March to May 2017 and, ultimately, on 22 May 2017, Zane collected approximately 500kg of MDMA and 20kg of cocaine in the Netherlands. The pure weight of MDMA was 392.95kg. The pure weight of cocaine is 15.77kg. This offender was to receive 80kg of MDMA (being 20% of the 320kg imported by the Dutch syndicate). The Dutch syndicate members were to receive 240kg of MDMA and 16kg of cocaine. Ibrahim and Zane were each to receive the 50kg purchased and an extra 30kg of MDMA and 2kg of cocaine as the “door” fee.

  3. On 10 and 15 May 2017, Zane, Ibrahim and the offender met in Dubai. Zane and the offender had lengthy discussions about future importations that would be arranged through the “door” service offered by Zane.

Summary of the Second Conspiracy

  1. After Zane’s collection of the first load on 22 May 2017, the offender and Zane commenced preparations for the next load. At various times, Zane kept Ibrahim informed of the arrangements and negotiations which were undertaken with the offender.

  2. The offender and Zane met in June 2017 to discuss the second load. The drug commodities and amounts were negotiated between the offender and Zane throughout May, June and July 2017 and, ultimately, on 18 July 2017, in the Netherlands, Zane’s representative collected approximately 498kg of MDMA, 116kg of cocaine and 15kg of methamphetamine (gross) from unknown members of the Dutch syndicate. The pure weights were 344.6kg of MDMA, 91.87kg of cocaine, and 12.04kg of methamphetamine. Twenty percent of each drug was to be shared equally between Ibrahim and Zane, with the balance for the offender and the Dutch syndicate members.

  3. It is unclear from the Statement of Facts as to the precise amount that was to go to the offender. It is reasonable to infer that he was to receive 20% in the same way that he did in the first conspiracy.

  4. The following matters are agreed:

  1. the earliest date of this offender’s involvement in the offending was from about 22 March 2017, and the overall duration of his involvement was about 4 ½ months;

  2. the offender did not control the “door”;

  3. there is insufficient evidence to establish beyond reasonable doubt that this offender personally produced or supplied the drugs from the point of manufacture;

  4. there is insufficient evidence to establish beyond reasonable doubt that the offender was to receive the full share of the drugs allocated to him and his associates in the second transaction. As indicated above, it is reasonable to infer that his share was to be 20%, consistent with his share of the first transaction.

  1. This is simply a summary of the facts upon which I sentence the offender. I repeat, I have had regard to the full contents of the Statement of Facts and may refer to other portions of it when I address particular issues that have been raised during the course of the sentencing proceedings.

Role

  1. The role played by the offender in the Syndicate Two Drug Transaction is integral to an assessment of his criminality and the proportionate sentence that must be imposed.

  2. It is submitted on behalf of the offender that his role is similar to the role played by Ibrahim. Both could be described as “middlemen” or “facilitators”. Neither this offender nor Ibrahim sourced the drugs, but rather arranged for other people to either source the drugs. Each was to receive a commission for that importation.

  3. In written submissions, Mr Stratton SC submits that Ibrahim had a relationship with the offender of influence and power. The evidence relied upon in support of that contention is that Ibrahim told Zane that the offender would “do anything for me like… His father, loves me. I used to look after him in jail, make sure he’s all right. You know what I mean?”

  4. Ibrahim was in custody with the offender’s father and for a period when the offender was in custody. It may well be that Ibrahim looked out for the offender and his father while they were both incarcerated. However, I am not persuaded even on a balance of probabilities that this evidence establishes that Ibrahim had a relationship of influence and power with the offender.

  5. Having read the entirety of the Statement of Facts, it is clear that this offender was at all times autonomous and acting out of a desire to make money. The evidence far from establishes a relationship of influence and power.

  6. Mr Stratton SC points to a number of further factors in support of the contention that the role played by this offender is similar to the role of Ibrahim. The offender did not produce or supply the drugs from the point of manufacture. There is no evidence that the offender was to be involved with the distribution or sale of the drugs once they reached Australia. A distinguishing factor in favour of this offender is that his overall involvement was for about 4 ½ months, a period less significant than that in the case of Ibrahim.

  7. The Crown submits that the offender’s degree of culpability should be regarded as “significantly higher” than Ibrahim’s, having regard to a number of factors that include the following:

  1. his crucial role in sourcing large amounts of drugs for both the first and second transactions;

  2. his ongoing communications with the drug supplies throughout the planning of the transactions and leading up to and on the days of the handovers;

  3. his degree of responsibility for the planning of all aspects of the drug transactions, including the amount and type of drugs that could be obtained, the commission to be of paid to Zane and Ibrahim, how the importation would be financed, the packaging of the drugs, and the arrangements for the collection of the drugs;

  4. in relation to the second transaction, his communications with Zane in which the negotiations and arrangements for collection were discussed and planned which Ibrahim was not involved in;

  5. the financial gains he was to make from both drug transactions.

  1. During the course of the proceedings, one of the matters relied upon on behalf of the offender as pointing to the similarity of roles was what was initially relied upon as the similar commission to be obtained by both offenders in respect of the first conspiracy.

  1. It was later clarified, and accepted on behalf of the offender, that Ibrahim had purchased 50kg of MDMA and that his commission, by way of a “door” fee, was 30kg of MDMA and 2kg of cocaine. This offender’s commission in respect of the first conspiracy, was 80kg of MDMA. In answer to that submission, Mr Stratton SC submits that the fact that 50kg of the drug was an additional amount arranged to be imported by Ibrahim, rather than part of his commission, does not reduce Ibrahim’s culpability, either absolutely or relative to the offenders. If anything, the fact that he was both an intended actual purchaser as well is an agent increases his culpability. He was able to elevate his involvement in the enterprise by investing directly in it.

  2. I am not persuaded by that argument. Clearly, Ibrahim’s involvement included investing directly in the enterprise by arranging for the purchase of 50kg of the drug in addition to his commission. However, the reward for his involvement in the first conspiracy was 30kg of MDMA and 2kg of cocaine. That reward should be contrasted with the reward or benefit that accrued to this offender, namely, a commission by way of 80kg of MDMA. I am satisfied that the significantly higher commission, in this offender’s case, is one factor militating against a finding that his role was the same as that of Ibrahim. However, it is not the only or primary factor.

  3. In my remarks on sentence in the sentencing proceedings of Ibrahim – R v Ibrahim, Moustafa [2020] NSWDC 254, I found that in respect of each conspiracy, Ibrahim was a trusted and willing participant who engaged in the criminality expecting significant financial reward. I was not satisfied that Ibrahim’s role could be properly characterised as the principal. Instead, I found that Zane was the principal in the Sydney-based syndicate and that this offender was the principal in the overseas-based syndicate.

  4. That finding was made on the facts and other material, including submissions that were before me in the case of Ibrahim. I must determine the role of this offender on the facts, material and submissions before me in the present proceedings.

  5. Mr Ibrahim’s overall criminality was more significant in that he was involved in a number of different criminal enterprises involving both large quantities of border controlled drugs and a number of offences of dealing in an instrument of crime. His involvement in the criminal enterprises extended for a longer generation than that of the present offender.

  6. However, when I am comparing the role of this offender to that of Mr Ibrahim, I do so by reference to the circumstances relating to the Syndicate Two Drug Transaction only. In respect of that offence, I am satisfied that the present offender’s role was more significant than Ibrahim, although I am not persuaded that his degree of culpability should be regarded as “significantly higher”. It was certainly higher.

  7. I make that finding for the following combined reasons:

  8. Although Ibrahim and Zane were dealing with Dib in respect of the Syndicate One Drug Transaction and therefore had access to large quantities of prohibited drugs through another source, the dealings with Dib were not without difficulties and both men were seeking an alternative source of drugs. Without this offender, the transactions constituting the Syndicate Two Drug Transaction would not have taken place. In that regard, this offender had a crucial role in ensuring that large amounts of drugs were transacted;

  9. This offender had ongoing communications with the Dutch syndicate throughout the planning of the transactions and leading up to and on the days of the hand-overs;

  10. This offender was heavily involved in the decision-making process that was required for the planning of all aspects of the drug transactions, including the amount and type of drugs that could be obtained, the commissions to be paid, how the importation was to be financed, the packaging of the drugs, and the arrangements for the collection of the drugs;

  11. In respect of the second transaction, this offender had a significantly higher role to play than that of Ibrahim. Although Ibrahim was responsible for some of the overt acts, he was essentially simply being apprised of the progress through Zane.

  12. To be clear, I am not satisfied that this offender was at the apex of the Dutch syndicate. He was not a principal in that sense. He was not a member of the Dutch syndicate, but was highly trusted by the Dutch syndicate, as is evidenced by the autonomy he demonstrated in organising and planning the logistics and arrangements relating to the importations.

  13. He was the lynchpin in the transactions with the Dutch-based syndicate, which constitute the rolled-up offence. He not only brokered the transactions between the Sydney-based syndicate and the Dutch-based syndicate, but he continued to engage with the parties and participate in a substantial way in each phase of each transaction. He was a highly trusted participant with autonomy and decision-making responsibilities crucial to essential matters such as pricing and logistics.

  14. He was more than simply a facilitator. He engaged in the activity for substantial reward expecting to receive significant quantities of drugs as payment for the crucial an essential role he played. His commission for the first transaction was 80kg of MDMA. His commission for the second transaction was somewhere in the order of 20% of the drugs imported. The motivation was clearly greed.

Objective Seriousness

  1. The objective seriousness of this offence is a high. It is properly characterised as objectively very serious. The assessment of criminality includes consideration of the offender’s particular act/s in furtherance of the conspiracy. However, that assessment goes well beyond the mere recognition of the offender’s actions and role in the enterprise. In R v Elomar & ors [2010] NSWSC 10, Whealy J said at [15]:

“The primary aspect of the assessment of individual criminality is well understood to be on a broader basis. The gravamen of the offence - the essential feature - is the agreement to participate in organised criminal activity. The sentence must reflect the organisational nature of the conspiracy rather than by confining the sentencing discretion to the identification of the role of an offender with specific reference to the physical acts that he undertook. It is necessary, as a consequence, to examine the nature and scope of the conspiracy and to assess…. the level of criminality exhibited by the conspiracy itself”.

  1. The offence consists of a rolled-up offence covering the offender’s participation in two separate, but related, conspiracies. This was a course of criminal conduct engaged in by the offender over a period of nearly 5 months. Each conspiracy was planned separately, and, in each case, the offender’s role was central and crucial.

  2. The weight of the border controlled drugs in respect of each conspiracy was substantial. The value of the drugs was also substantial. The evidence does not establish that the offender was to engage in street level dealing. However, the wholesale value of the drugs was very high, attracting significant potential profit. I bear in mind that the weight of the drug is not the chief or determinative factor in assessing the objective seriousness of the offence, although it remains a relevant factor: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584.

  3. The particulars of the offending evidence a high degree of criminality. Each conspiratorial agreement involved planning and organisation. The offender played a pivotal role in that planning. Although sophisticated, I am not persuaded that the degree of sophistication exceeds that inherent in offences of this type, namely, an agreement to import substantial quantities of water control drugs. I repeat, that having regard to the quantity and the value of the drugs, the nature of the conspiratorial agreement, and the methodology used, I am satisfied that the offence is properly characterised as objectively very serious.

  4. I bear in mind that there was never any risk that these large quantities of drugs would be disseminated into the community, given that, from the outset, this was a police undercover operation, and it was Zane who introduced the concept of the “door”.

  5. However, the fact that the drugs were not disseminated into the community is not a mitigating factor. The offender intended for substantial quantities of drugs to reach Australia and be disseminated into the community, and it was through no act of his that no such risk arose. The dissemination of drugs into the community constitutes a significant aggravating factor. However, the absence of an aggravating factor does not thereby constitute a mitigating factor. The fact that the drugs were not actually disseminated into the community as a result of the police operation is not a factor that reduces the moral culpability of the offender: Cam Huynh Giang v R [2017] NSWCCA 25.

Zane’s Role

  1. An aspect of the objective gravity of the offence, that is said to require discrete consideration, is the role played by Zane. Mr Stratton SC points to Zane consistently “talking up” the amount of drugs to be imported.

  2. In support of that contention, Mr Stratton points to a message sent by Zane to Ibrahim on 24 March 2017, which included: “did you tell him we already have a container already paid for coming out of Holland? Because if you didn’t, realistically 50 to 100 and isn’t worth the door. Let’s not fuck around while we have the door let’s go bigger”. Later, on the same day, he messaged Ibrahim: “I’ll tell him minimum 250 to make it worthwhile”.

  3. The offender messaged Ibrahim saying: “but I prefer to go 50 or 100 the next time 500 plus. Is it see freight or air?” Zane replied: “Bro, has to be minimum 250 to make it worth my while. And can I buy back into it?” Later, Zane messaged: “it’s just not worth it for the door if it’s anything less than 250. But hopefully if we buy and we will get up there but if not just be prepared it will be 250”.

  4. On 6 April 2017, Zane said to Ibrahim: “but tell [Elmir] minimum 250…. I messaged him but he didn’t reply, so I don’t know”. On 26 April 2017, there was an exchange of messages between Zane and the offender when Zane asked: “still looking at 250 rack [cocaine]?” The offender replied: “yeah, we can do rack but it’s the same line. I’d really like to go small first-time like 50”. This message was forwarded to Ibrahim complaining that 50kg was a lot of work for little return.

  5. I agree that these communications reflect an eagerness on the part of the Zane to ensure the importation of a large quantity of drugs in circumstances where the offender initially wanted to proceed with a smaller quantity.

  6. However, I am not persuaded that this demonstrates a reluctance on the part of the offender to engage in the importation of substantial quantities of prohibited drugs. Rather, it demonstrates the offender’s intention to proceed cautiously on the first run – as a test run. That intention is reflected in the communication by the offender on 24 March 2017, when he told Zane that he usually likes going small the first time because it was a “new line” [untested door] for his overseas associates.

  7. Indeed, on 24 March 2017, the offender told Ibrahim that his associates were able to import 500kg if they wanted to do a “massive amount”: [20(d)]. On 29 March 2017, in communications with Zane, the offender stated in relation to the Neville and importation that: “we might even do more than 250, let me know what you and Ibrahim planned to buy in so we can start getting it sorted”: [23 (a)]

  8. On 19 April 2017, the offender messaged Zane saying: “speaking to Dutch crew, you’se putting 100 and me 100 you’se mind if they put 300 so 500 all up- works out better for you’se eat more of the door”: [33 (a)].

  9. I am satisfied that, at all times, the offender was willing to engage in the importation of substantial quantities of various drugs. His representations that they start small related to a cautious approach in respect of the first importation so as to test the door. He was aware that the Dutch syndicate could source large quantities of drugs, and he was willing to engage in the importation of large quantities of drugs for substantial profit.

Subjective Case

  1. The offender’s subjective case is before me by way of a number of documents, including a psychological report prepared by Dr Kerri Eagle, Forensic Psychiatrist, which sets out the offender’s surrounding circumstances in great detail.

Family History and Early Childhood

  1. The offender is presently 35 years of age and was born in Canterbury, Sydney. He is the second eldest of 5 children born to his parent’s union and is of Aboriginal and Lebanese heritage. The offender recalls experiencing a turbulent childhood characterised by deprivation and disadvantage.

  2. In her letter to the Court, the offender’s mother confirms that she and her children were exposed to repeated domestic violence at the hands of the offender’s father. Since Kindergarten, the offender was subject to physical altercations with his father when he regularly intervened during arguments between his parents.

  3. The offender’s father was frequently incarcerated during the offender’s childhood. The offender states that his father was “always partying” and had a “drug problem”. He recalls being exposed to his father’s pro-criminal peers at a young age. In particular, the offender‘s father had always taught him “if anyone hits you, hit em back”. The offender states that he internalised this mentality and often resorted to violence himself.

  4. In 2005, the offender’s father was incarcerated for a long period on drug charges. His mother suffered from mental health illnesses as a result of her own trauma and drug addiction. In 2007, the offender’s mother left the family home. The offender assumed a parenting role at a young age. He was responsible for caring for his younger siblings over the next few years without guidance and support from his family.

  5. During this time, the offender became close with his older cousin who helped him raise his siblings. Tragically, the offender’s cousin overdosed, resulting in a persistent vegetative state. I note the offender was the one who located his cousin unconscious after his overdose. The offender struggled to cope with this loss and began abusing drugs and alcohol. He stated that he felt “angry at the world” and began to display violent outbursts. On one occasion, the offender and his mates drove to Cronulla and “bashed” people coming back from the riots. He was subsequently convicted and incarcerated as a result of his involvement

  6. The offender has recently re-connected with his mother, who remains committed to supporting Mr Elmir in custody and when he is released into the community. In particular, he shares a close and positive relationship with his younger sister, who describes him as a “loving brother” that shouldered the household responsibilities after their parents left.

  7. The offender and his wife met in high school and have been married since 2013. They share two daughters together, who are aged 9 years old and 6 years old respectively. He is described as a “loving” and “caring” father towards his children and family. The offender’s wife and daughters remain a constant support for the offender.

  8. In 2016, the offender re-located his family to Dubai following the murder of his brother-in-law. One of his brothers in law was kidnapped and another was murdered. He feared for his family’s safety and tried to re-establish himself in Dubai. The offender and his family continued to reside in Dubai prior to his initial detention and arrest for the present offence.

  9. It was during his time in Dubai that he met and became involved with the members of the Dutch syndicate.

Employment and Education

  1. The offender is not aware of any developmental delay in respect of his education. The offender attended Revesby Primary School and recalled being behind when he started Kindergarten. From an early age, the offender was involved in fights and expelled from school. He attended secondary school until Year 10, when he was asked to leave following several altercations. The offender stated that he was “academically lazy” and failed to apply himself. Shortly after leaving school, the offender started a carpentry apprenticeship, which he pursued for the next three years. He failed to complete this apprenticeship and commenced his qualifications in personal training instead.

  2. Prior to re-locating to Dubai, the offender owned and managed a successful gym in Sydney. He has been described by professional athletes that trained at his gym as a “hard-working” and “dedicated” man. His wife currently owns the business and manages the gym with the assistance of the offender’s extended family. Whilst in custody, the offender retained the position of a sweeper for approximately 12 months. He remains committed to re-gaining employment following his release from custody.

Drug and Alcohol Addiction

  1. The offender reported exposure to drug use at a young age. He was 15 years old when he first tried MDMA, and first consumed alcohol when he was 14 years old. He reported becoming addicted to anabolic steroids after his father injected him with steroids when he was 17 years old. From then on, the offender became a recreational cocaine user in Sydney at nightclubs and drank copious amounts of alcohol on the weekends. Following his re-location to Dubai, the offender’s cocaine and alcohol use increased dramatically. He states that he was using cocaine daily and other recreational drug, including MDMA, ecstasy and GBH.

  2. The offender regularly often mixed Valium and cognac in order to help him sleep and to stifle his reaction to the cocaine. He states that he “went off the rails” after witnessing his cousin’s death and losing both his parents. He said he used drugs as a means to “party the memories away”.

  3. Dr Eagle diagnosed the offender with Substance Use Disorder in remission in a controlled environment. She opines that the offender used alcohol as a maladaptive coping mechanism. Dr Eagle states that the offender’s rampant use of illicit substances and alcohol have likely contributed to emotional difficulties, impaired judgment, and his offending behaviour. The offender remains sober in custody and is committed to leading a drug-free lifestyle.

Mental Illnesses

  1. Dr Eagle opines that the offender has a number of psychological vulnerabilities arising from his adverse childhood experiences, including low self-esteem, a fragmented sense of self, maladaptive coping skills, cognitive distortions and emotional dysregulation. The offender had no contact with mental health services at a young age, which further compounded his trauma and emotional dysregulation. The offender stated that he did not “cope” well when something goes wrong and tended to “spiral out of control”.

  2. In particular, Dr Eagle opines that the offender displays traits and behaviours consistent with Anti-Social Personality Disorder, severe Mood Disorder, and Psychotic Illness. The offender’s anti-social behaviour and psychological vulnerabilities have arisen as a result of the deprivation he experienced as a child, during which his primary role model was a serious offender, was violent towards the offender, and encouraged anti-social behaviour. The offender was also exposed to traumatic experiences, such as the overdose of his cousin, during his early adulthood, further exacerbating his psychological vulnerabilities.

  3. Dr Eagle further opines that the offender’s cycle of antisocial behaviour, substance abuse and trauma has contributed to Mr Elmir’s serious offending behaviours that have, in turn, resulted in further trauma through harsh detention conditions and prolonged incarceration.

  4. I am not persuaded that the offender’s mental health issues are causally connected to the offending conduct such as to reduce his moral culpability. He engaged in serious criminal conduct which involved planning and organisation for a period of some months, motivated by a desire to make substantial amounts of money.

  1. While his mental health issues are relevant to his overall subjective case, his prospects of rehabilitation and the any need for assistance and treatment upon his release, they do not operate in this case to reduce his moral culpability.

Extra-Curial Punishment

  1. The offender was arrested in Dubai, on 7 August 2017. During the first four days of his arrest, he was beaten and tortured. His genitals were tasered. He was assaulted by officers who demanded that he sign a document which was written in Arabic.

  2. It appears that, at least part of the reason, he was detained for a period of two years and three months, before his extradition, was a result of an outstanding civil debt. He was threatened that unless he paid the money, he would be held in custody indefinitely.

  3. He retained solicitors in Dubai to help him with the civil matter in about December 2017. During his detention, he was served with documents written in Arabic. He could not read them. The offender reports that the conditions in custody in Dubai were extremely difficult. The conditions in both the police cells and in gaol included no contact visits, no yard time, and no exposure to sunlight. The lights were on in his cell 24 hours a day, seven days a week.

  4. Ms Gittani, the offender’s solicitor, has sworn an affidavit in which she sets out her contact with the offender whilst he was held in Dubai. On about 11 August 2017, she received a call from the offender telling her that he was being held in the police cells and described to her the torture he had endured.

  5. He was able to call his solicitor directly on occasion and provided her with updates. He reported that he had no knowledge of the civil claim and had not been provided with any documentation regarding the debt owed. He also advised that he had retained a local solicitor to act for him and to enquire about the civil matter in an attempt to resolve it and remove any impediment to his extradition. The offender also complained about the inhumane conditions he was subjected to in detention.

  6. As time passed, Ms Gittani observed that the offender became withdrawn in his telephone calls. She observed a sense of hopelessness in his demeanour on the phone. He was receiving conflicting information from his to buy based lawyers and the Dubai prosecutor. As a result of the stress, he developed alopecia. On 22 October 2018, Ms Gittani, having travelled to Dubai, booked a visit to see the offender at the police station. She was not allowed entry. On the following day, she was able to see her client. She observed the cells which were approximately 3m x 4m, with no windows.

  7. When the offender was brought into the common room from his cell, he appeared very thin and extremely pale, tired and withdrawn. He advised that he was still confused about the civil proceedings and that the lawyers he had engaged locally had not assisted him in any meaningful way, although they had demanded payment for their services.

  8. The Crown pointed out, during the course of submissions, that the evidence establishes the offender was tortured for the first four days of his custody in Dubai, but that I would not infer from that that he was tortured throughout the period he was held in custody in Dubai.

  9. I accept that the physical torture took place over the first four days he was detained in Dubai. However, thereafter, he was held in deplorable conditions which included overcrowding, no exercise, and no sunlight. Furthermore, even though he received some general information about an outstanding debt and civil proceedings, he was not served with any papers in language that he could understand. He was left in a state of complete uncertainty as to the nature of those proceedings and is detention.

  10. During these two years and three-month period that he was held in custody in Dubai, I accept that he was held in a state of uncertainty that caused him to physically deteriorate and also caused mental anguish.

  11. The offender’s mental and physical wellbeing significantly deteriorated during his detention in Dubai. Dr Eagle diagnosed the offender with Post-Traumatic Stress Disorder (‘PTSD’) arising from his experiences when incarcerated in Dubai. The offender describes suffering from ongoing nightmares, sleep disturbance, intrusive distressing memories, and hyper vigilance. He has significantly withdrawn from his children and family, and avoids activities in prison that might remind him or trigger distressing memories. Dr Eagles notes that the offender displays negative cognitive distortions, and is reluctant to trust others.

  12. Dr Eagle also opines that he developed physical and mental health conditions as a result of his treatment including post-traumatic stress disorder and alopecia. The post-traumatic stress disorder symptoms arising from his experience during incarceration in Dubai is said to likely be exacerbated in any correctional setting.

  13. In determining what sentence to impose, I have taken into account extra-curial punishment as a mitigating factor.

Delay

  1. Delay is a separate, but related, topic. The period of two years and three months in which he was held in Dubai was not the fault of the Australian prosecutors. The Australian authorities were advised that because the offender was subject to legal proceedings in the UAE that related to a civil debt, he could not be surrendered pending resolution of those proceedings.

  2. I am not of the view that it was the fault of the accused that extradition was delayed. The Crown submits that the offender had the option of paying off the civil debt so that he could be extradited to Australia. I am not persuaded by that argument, given that the offender did make attempts to resolve the civil proceedings by engaging a local law firm, but appears to have received very little assistance. He was held in detention in a foreign country. He was not able to read documents that were presented to him in Arabic. He was being held in conditions that were inhumane. No doubt he would have been eager to resolve the civil proceedings if he could so as to ensure his extradition.

  3. The offender was arrested on 7 August 2017. He arrived in Australia, following extradition, on 21 November 2019. He comes to be sentenced in March 2021. Delay by itself is not necessarily a mitigating factor. Each case depends on its own circumstances. The Crown accepts that there has been a delay of over four years between the commission of the offences and the resolution of the proceedings. I reject the Crown’s submission that there is nothing to indicate that the delay was not attributable to the conduct of the offender for the reasons set out above.

  4. I am satisfied that during the period that he was held in detention in Dubai, he was subject to significant stress and anxiety, not only due to conditions in which he was held, but because of the state of uncertainty he experienced.

  5. I have taken into account the state of uncertainty experienced by the offender in determining the issue of extra-curial punishment. I, therefore, exercise caution in the weight to be afforded delay as a further mitigating factor.

Prospects of Rehabilitation

  1. In his letter to the Court, the offender expresses deep regret and shame for his involvement in the supply of drugs. He expresses significant insight into the harm caused by drugs disseminated in the community. In particular, the offender acknowledges the role illicit substances have had on his offending behaviour, and on the ongoing trauma suffered by his family.

  2. I bear in mind that the offender has not given sworn evidence in the proceedings and has not been cross-examined: R v Lai [2021] NSWCCA 217 at [79]-[80].

  3. In determining whether the offender is remorseful, I have also had regard to his plea of guilty, the offender’s statements to Dr Eagle, his mother and his sister. I am prepared to find that the offender, having had the opportunity to reflect on his serious criminal conduct, is remorseful for his actions and acknowledges the significant harm that drugs can inflict on individuals and the community more generally.

  4. Mr Elmir has some criminogenic risk factors that are relevant to his prospects of rehabilitation. These include an antisocial personality pattern; pro-criminal attitudes, values, beliefs and rationalisations; antisocial associates and social support for crime; substance abuse; inappropriate family and marital relationships; and poor school performance.

  5. On the other hand, he has a supportive wife and two children that provide motivation for his rehabilitation goals. He has demonstrated the ability to sustain skilled work, for instance, as a carpenter. He has identified future prosocial recreational activities and goals, including fitness and sporting activities. He is motivated to overcome his psychological difficulties and his daughters appear to drive that motivation.

  6. Overall, if Mr Elmir is able to engage in a recommended rehabilitation plan by Dr Eagle, his prospects for rehabilitation are said to be optimistic, and his risk of reoffending in those circumstances would be low.

  7. Given that he will be serving a lengthy term of imprisonment, it is difficult to predict with any precision his prospects of rehabilitation. At present, although he has a supportive wife and two children that he is motivated to support and reconnect with, he engaged in very serious criminal conduct over some months for financial reward.

  8. Furthermore, the offender has a criminal record which includes offences of assault occasioning actual bodily harm in company, affray and possession of an unregistered firearm. I do note, however, that he has no prior convictions for serious drug related offences and although his record does not entitle him to the leniency of a first-time offender, or a person with a relatively minor record, it is not aggravating.

  9. In all of the circumstances, and as best as I can predict at present, I find that the offender has some prospects of rehabilitation, given that he will have a further lengthy period in custody to reflect upon his criminal conduct and to engage in suitable programs.

  10. The offender has participated in two incidents in custody that involved group violence. Correctional facilities are notoriously violent places. I accept, however, that the offender’s involvement in these incidents is a matter relevant to my assessment of his prospects. But that is not the whole picture. He has also demonstrated a willingness to participate in meaningful activity whilst in custody. He was working as a sweeper for over 12 months and was considered by Corrective Services staff to be polite and courteous. It is also noted that he helps new inmates with the daily routine and reading and writing of letters.

Purposes of Sentencing

  1. In sentencing for drug importation and related offences, general deterrence, denunciation and the protection of the community are weighty considerations. Condign punishment must be meted out to those who engage in conspiracies to import substantial quantities of border control drugs into this country.

  2. Specific deterrence is also an important consideration. Notwithstanding the fact that this is the first time the offender has engaged in drug-related activity of this type, his involvement in the offence extended over a period of months during which he performed a significant role in accomplishing the purpose of the enterprise for substantial financial reward.

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Penalty

  1. The proper approach to sentencing involves the weighing of all relevant factors in order to reach a conclusion that a particular penalty should be imposed. The Court should avoid taking a mathematical approach as this would depart from the principal because it does not take into account that there are many conflicting and contradictory elements which bear upon sentencing an offender: Markarian v The Queen (2005) 228 CLR 357.

  2. Clearly, having regard to the nature and scope of the offence, the only appropriate penalty is one full-time imprisonment of some length. I am mindful in setting the non-parole period that there is no starting point or judicially determined norm as a percentage of the head sentence for the period of imprisonment that a federal offender should serve in custody before release to parole. It is wrong to begin from some assumed starting point and then seek to identify special circumstances. Sections 16A(1) and 16A(2) make it plain that all of the circumstances must be taken into account in setting the non-parole, just as they must be taken into account in imposing the total term of imprisonment.

COVID-19

  1. I take into account that as a result of the COVID-19 pandemic, prisoners are subject to more onerous conditions in custody. Those conditions include more regular lockdowns; the absence of contact visits with family and friends; limited number of AVL visits; and a reduction in the capacity to engage in educational and other rehabilitation programs. I have taken into account these onerous conditions: McKinnon v Regina [2020] NSWCCA 106 at [32]; Taha v R [2022] NSWCCA 46.

Parity

  1. As indicated above, when I sentenced Mr Ibrahim, I recorded an indicative sentence of 22 years’ and 6 months’ imprisonment for his role in the Syndicate Two Drug Transaction. I now turn to apply the principle of parity.

  2. The indicative sentence recorded in Mr Ibrahim’s case followed in application of 25% discount for the utilitarian value of the plea. The same discount applies in the present case.

  3. For the reasons set out above, I have determined that the role of this offender in that offence was more significant than that of Mr Ibrahim. This is a distinguishing factor operating against the offender.

  4. However, there are a number of distinguishing factors that operate in his favour, and which I have taken into account in applying the parity principle. Those distinguishing factors are as follows:

  1. In recording the indicative sentence in Mr Ibrahim’s case, I took into account an offence recorded on a s 16BA schedule, which was a serious offence of aiding and abetting the commission of an offence, namely, the trafficking of a commercial quantity of MDMA, itself attracting a maximum penalty of life imprisonment. That is not the case here;

  2. I am satisfied that this offender’s subjective case is more compelling. He experienced a childhood marred by deprivation and disadvantage and his mental health issues, although not causally connected to the offending conduct, require ongoing treatment upon his release;

  3. Mr Ibrahim’s criminal record was far worse than this offender’s criminal history. It includes convictions for the possession of unauthorised firearm; the possession and supply of prohibited drugs; and manslaughter. Since 2002, until the time he was sentenced by me, Mr Ibrahim had spent approximately 14 years of his life in prison; and

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  1. For these reasons, although I am satisfied that this offender’s role in the offence was more significant than that of Ibrahim, there will be little difference in the sentence I impose given the distinguishing factors that favour this offender.

Comparative Cases

  1. Annexed to the Crown’s written submissions is a schedule of sentences imposed for offences contrary to ss 11.5(1) and 307.1(1) of the Criminal Code. The cases are not comparative in the sense that they are factually similar in all respects to the current offence. Nor are they similar in all respects in respect of the subjective circumstances.

  2. I bear in mind that to ensure national sentencing consistency ,regard must be had to sentencing practices across Australia and decisions of intermediate appellate courts in other states and territories. The schedule of cases contains 11 cases. The total sentences range from life imprisonment to 15 years’ imprisonment. There are differences in respect of the quantity of border controlled drugs involved; roles; relevant discounts; and subjective cases.

Determination

  1. Accordingly, the offender is convicted. Taking into account a reduction in sentence by 25% to reflect the utilitarian value of the plea, I impose a term of imprisonment comprising of a non-parole period of 14 years’ imprisonment, commencing on 8 August 2017 and expiring on 7 August 2031, with an additional term of 10 years’ imprisonment. The total period is one of 24 years’ imprisonment. The starting point prior to the application of the discount is one of 32 years’ imprisonment.

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Decision last updated: 12 October 2023

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Most Recent Citation
Elmir v R [2023] NSWCCA 260
Cases Citing This Decision

2

R v Knight [2023] NSWSC 321
Elmir v R [2023] NSWCCA 260
Cases Cited

8

Statutory Material Cited

2

Giang v R [2017] NSWCCA 25
McKinnon v R [2020] NSWCCA 106
R v Elomar [2010] NSWSC 10