R v Hunter

[2021] NSWDC 490

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Hunter [2021] NSWDC 490
Hearing dates:	2 June; 4 and 9 August 2021
Decision date:	17 September 2021
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 12 years 9 months with a non parole period of 8 years 3 months
Catchwords:	CRIME - SENTENCE - attempting to import a commercial quantity of a border controlled drug.
Legislation Cited:	Commonwealth Criminal Code: ss11.1(1) and 307.1(1)
Category:	Sentence
Parties:	Regina (Commonwealth Crown) Adam Phillip Hunter (Offender)
Representation:	Mr Van Treifeldt - later Mr Emmett (Commonwealth DPP) Mr Ginges (Counsel for the offender)
File Number(s):	2019/00218202
Publication restriction:	Nil

1. Adam Phillip Hunter, you appear for sentence in relation to one offence, namely attempting to import a commercial quantity of a border controlled drug.

2. This involves the combined operation of s11.1(1) and s307.1(1) of the Commonwealth Criminal Code.

3. The maximum penalty for that offence is life imprisonment.

4. The facts surrounding your offending conduct are, to some extent, contained in an agreed Statement of Facts which forms part of Exhibit A.

5. The “facts” in that document were added to by your sworn oral evidence: some of which is accepted by the Crown; and some of which is not. I shall deal with the areas of dispute during the course of these remarks. There was, therefore, a limited contested facts hearing within the sentence hearing. (The Court had not been forewarned of that contested facts issue: no doubt, it was responsible for the three hour estimate for the sentence hearing blowing out to two days. The Court is entitled to expect more reliable estimates being given to it by legal practitioners).

6. In resolving the factual disputes between the parties, I cannot make a finding adverse to your interests unless the relevant fact is proved beyond reasonable doubt. On the other hand, I can only make a finding favourable to you if it is established on the balance of probabilities.

7. At the outset, I pause to observe that the method by which the border controlled drugs was attempted to be imported was by way of concealed packages in an excavator which your business had “purchased” and which was shipped to Australia from South Africa. In this context, paragraph 2 of the agreed Statement of Facts states:

“At the time of purchase, HUNTER was at least reckless that the excavator contained a commercial quantity of border controlled drugs” (emphasis added).

“At least” admits of the possibility that you had actual knowledge. On the agreed facts, however, that couldn’t be established beyond reasonable doubt. As I shall reveal, as a result of your evidence, the Crown no longer contends for a “reckless” basis of criminal responsibility. Rather, as a result of your evidence, the Crown has, in my opinion, proved, beyond reasonable doubt, that you had actual knowledge that the excavator contained a significant quantity of a border controlled drug.

8. I shall now turn to the “facts” (both agreed and disputed).

9. As and from May 2012 until November 2018, you were the sole director and shareholder of a company that traded as Bungendore Landscape Supplies (“the business”). On 27 November 2018, Timothy Engstrom (who had previously been an employee of the business) also became a director of the company. 

10. Not only was Mr Engstrom a former employee of yours, he was also a good friend of yours.

11. By early 2019, both the business and you personally were experiencing very significant financial difficulties: in fact, your utilities bills were overdue; you had no funds left on your personal credit cards; and you were unable to meet even basic living expenses.

12. At some point, in about March or April 2019, a person described by you as a “regular client” of the business, and with whom you used to frequently have coffee in the small rural township of Bungendore (where the business was based) became aware of the difficult financial position that you were in. It was because of this method of socialising that the “regular client” became known in these proceedings as “coffee man”. His identity has not otherwise been revealed by you.

13. What is also not revealed is why coffee man (said to be a regular customer - but not said to be a close personal friend) felt confident in revealing to you the scheme to which I shall now refer. But I shall not speculate about that adversely to your interests.

14. Coffee man was (in some unexplained way) either a part of, or associated with, a criminal syndicate (“the syndicate”) that wished to import a significant amount of cocaine (which is a border controlled drug) from South Africa into Australia; and, through coffee man, you were recruited into that criminal scheme.

15. An arrangement was made between you and coffee man that, notwithstanding its serious financial difficulties, the business would transfer approximately $50,000.00 to a corporate entity in South Africa (in some unexplained way connected to the syndicate) for the purchase of a refurbished 20-tonne excavator; and that that entity would arrange for the excavator to be shipped from South Africa to Australia. (There is some vague and, therefore, unpersuasive evidence that such an excavator, in good working condition, could be worth “upwards of $130,000.00”). The excavator would contain concealed packages.

16. There is a dispute as to your actual knowledge of what was to be contained in those concealed packages in the excavator (which, in fact, was cocaine). But, even on your version in your sworn evidence, you admit that, although you didn’t specifically ask what was to be concealed in the excavator when you agreed to participate in this scheme, you suspected that the contents of the excavator would be some type of (illegal) drug.

17. You also said in your evidence: that, although you suspected the concealed contents of the excavator would be illegal drugs, it “didn’t cross your mind” as to the level of risk you were taking in getting involved; nor were you “remotely curious” about the quantity or “remotely interested” as to the sort of illegal drug you were going to assist to be imported into Australia. These various statements by you, in my view, are inherently implausible. In fact, I am satisfied, beyond reasonable doubt, looking at the totality of the evidence that, at the time you made the payment of $50,000.00 to the South African corporation, you were aware that a significant amount of a border controlled drug was to be imported into Australia by means of the excavator. I am not, however, satisfied to that standard that you knew that border controlled drug was to be cocaine.

18. On 16 May 2019, Mr Engstrom’s bank approved a personal loan to him in an amount of approximately $30,000.00 which was paid into his account. That bank had been informed that the purpose of the loan was for home renovations. However, that is not how the borrowed monies were applied. On the same day, Mr Engstrom transferred the $30,000.00 from his bank account into the business’s bank account. In your oral evidence you said that that money from Mr Engstrom was not a loan by him to the business but was a negotiated buy-in price for his share of the business. You provided no explanation as to why that money for that purpose was being paid into the business on 16 May 2019 when Mr Engstrom had become a director and shareholder almost six months earlier (27 November 2018) and in circumstances where you and the business were in such serious financial difficulties. At the very least, I regard this aspect of your evidence with considerable scepticism and circumspection.

19. There was no express assertion by you that Mr Engstrom knew that the monies he paid into the business as a “negotiated buy-in price” would be used as part of the payment for the excavator. At some point, it is implicit that Mr Engstrom did become aware that the business had purchased the excavator – but you said that, until 11 July 2019 (and in circumstances to which I shall later refer), he had no knowledge that it contained concealed packages.

20. Two payments were made by the business to the South African corporation on 16 and 24 May 2019 of respectively $25,700.00 and $23,647.00. You say you knew nothing about this corporation (or those behind it) other than it / they were in some way known to, or associated with, coffee man; and you had no security for the transferred monies.

21. The payment of that money to that corporation in these circumstances was submitted by your counsel to be an indicator of your naivety. Another way in which the payment could be looked at is that the only rational inference is that you trusted these undoubted criminals to keep their end of the bargain and not just keep the business’s money for their own purposes because you knew more about them than you were prepared to admit. At the very least, looked at in isolation, I initially regarded this aspect of your evidence with considerable scepticism and circumspection. However, by having regard to the totality of your evidence, I find it to be implausible – and I, therefore, draw the inference to which I have just referred.

22. However, the South African corporation did keep its end of the bargain and the excavator (with its illegal cargo) was shipped to Australia. You arranged for that shipment by engaging a freight forwarding company.

23. After the excavator had been sent, but before its arrival in Australia, you said that coffee man gave you a mobile phone which had an encrypted application (Cipher) through which text messages could pass between you and the syndicate (wherever the members thereof may have been located). You were in frequent communication with the freight forwarding company regarding the progress of the excavator through the quarantine process.

24. Once the excavator arrived in Australia and cleared customs, the arrangement you had with the syndicate was that it was to be delivered to the business at Bungendore.

25. Upon the excavator’s arrival at those premises, it was to be “dry hired out” by you (i.e. to be hired out by you without a driver or operator – in other words, it would leave your possession and control) to persons associated with the syndicate.

26. Whilst the excavator was in their possession, they would remove the hidden border controlled drugs; repair the excavator; and return it to you.

27. Your counsel submits that this arrangement is another indicator of your naivety. Again, another way in which the arrangement could be looked at is that the only rational inference is that it is a further indicator of the trust that you placed in these criminals to keep their end of the bargain and not just keep the drugs but also the excavator. At the very least, looked at in isolation, I initially regarded this aspect of your evidence with considerable scepticism and circumspection. However, by having regard to the totality of your evidence, I find it to be implausible – and I, therefore, draw the inference to which I have just referred.

28. You were then to prepare an invoice for $50,000.00 to these persons which was to be later paid to the business by the syndicate (thereby reimbursing you for the purchase price) and you would keep the excavator. You (and no doubt the syndicate) wanted the arrangement to “… look like a legitimate business transaction”. But to be a legitimate business transaction, the invoice would need to record the name and address of the person to whom the invoice was being delivered. You were not asked any questions as to how this was to be done.

29. This arrangement was submitted by your counsel to be another indicator of your naivety. Again, another way in which the arrangement could be looked at is that the only rational inference is that it is yet another indicator of the significant trust that you placed in these unknown criminals. At the very least, looked at in isolation, I initially regarded this aspect of your evidence with considerable scepticism and circumspection. However, by having regard to the totality of your evidence, I find it to be implausible – and I, therefore, draw the inference to which I have just referred.

30. However, things did not go according to that “plan”.

31. The excavator (which arrived on 20 June 2021) was not in a clean state and customs would not clear it until it was cleaned.

32. Steps were then taken for a company associated with customs to clean the excavator; and on 10 July 2019, the business received an invoice from that cleaning company in the sum of approximately $10,000.00 for cleaning the excavator.

33. I pause to observe, slightly out of chronological order, that (as a result of text messages on the Cipher app) $9,000.00 was paid by a person associated with the syndicate to you in Queanbeyan in cash, which amount was paid into the business’s account on 12 July 2019, after which those funds were transferred to pay the invoice of the cleaning company. Who this person was, and the precise circumstances in which the payment was made to you, was not further revealed in the evidence.

34. Returning to the chronology, the excavator was delivered from Port Kembla to the business’s premises at Bungendore on 11 July 2019. You arranged for that delivery to take place.

35. On delivery, far from being fully restored and in full working order, the excavator was found to be unusable because of mechanical and electrical issues. It, therefore, could not go offsite to those associated with the syndicate for the removal of the drugs.

36. The arrangement that you had with the syndicate then changed through a further series of encrypted messages. Initially, the syndicate suggested sending its people to your business premises to cut into the excavator and remove the packages. You did not agree to that arrangement; rather, you suggested that you would undertake that process.

37. In the course of these encrypted messages on 11 July 2019, you were provided with specific information as to where precisely within the excavator the concealed packages were located; and you say that only then did you come to appreciate the quantity of the packages and the nature of their contents (i.e. cocaine). In this regard, I have already found that you were aware that, at the time of the payment of $50,000.00 in May 2019, a significant quantity of a border controlled drug was to be imported. On 11 July 2019, and as result of these encrypted messages, you came to have a greater appreciation about the quantity involved – if you didn’t previously have such an appreciation.

38. For an extra $50,000.00, you agreed to cut into the excavator and remove the contents. Once removed, associates of the syndicate would attend the premises and take the drugs away and the business would later receive the agreed additional $50,000.00.

39. Your counsel has submitted that this arrangement is yet a further example of your naivety. Another way in which the arrangement could be looked at is that the only rational inference is that it is yet another indicator of the very significant trust that you placed in these unknown criminals – and which they must have placed in you. At the very least, looked at in isolation, I initially regarded this aspect of your evidence with considerable scepticism and circumspection. However, by having regard to the totality of your evidence, I find it to be implausible – and I, therefore, draw the inference to which I have just referred.

40. You were insistent that, up until 11 July 2019, Mr Engstrom did not know of the concealed packages in the excavator. This is, in my opinion, not consistent with the intercepted telephone conversations between you and him on 26 June 2019 and 3 July 2019.

41. You also said that, once he became aware of the existence of the concealed packages on 11 July 2019, Mr Engstrom made no enquiry as to the contents - or the quantity - of them. This is as implausible as you not making such enquiries. I am satisfied, beyond reasonable doubt, that this evidence was deliberately untrue.

42. You also said you couldn’t recall if you told your good friend that you knew (or suspected) the packages contained illegal drugs. This is also implausible (especially as you do say that, at around this time, you can recall telling at least one other man - who was not as good a friend as Mr Engstrom - of the fact that cocaine was concealed in the excavator – as I shall soon reveal). In fact, not only do I regard this piece of your evidence to be implausible, I am satisfied, beyond reasonable doubt, that it was also deliberately untrue.

43. At this point in the narrative, some chronological specificity is required.

44. The excavator was delivered to the premises of the business at 11:00am on 11 July 2019. An electrician had done sufficient repairs to get the excavator off the delivery truck by 1:30pm – but further substantive mechanical and electrical works were still required.

45. At 5:40pm on 11 July 2019, you had a conversation with a friend of yours (Mr Regan) who was a welder. It was your then intention that Mr Regan would be engaged to cut into the excavator so that the concealed packages could be removed. You arranged to meet Mr Regan the next day at 6:30am in Queanbeyan.

46. At 6:00pm on 11 July 2019, you and Mr Engstrom had a face to face meeting at the business’s premises. The agreed statement of facts (at [54]) states that “the pair [i.e. you and Mr Engstrom] discussed their plan of how they were to cut into the excavator and remove the cocaine” (emphasis added).

47. I regard this as an admission by you that, by that stage at the very latest, Mr Engstrom knew of the existence of the concealed packages and what they contained.

48. If there be any doubt about this, I need only note that later in the same paragraph, it is recorded that you and Mr Engstrom discussed a contingency plan “if it all turns to shit” – words attributed to Mr Engstrom.

49. In the context of this discussion, you said on oath (at T44) that even at that stage – and notwithstanding the contents of [54] of the agreed statement of facts – Mr Engstrom didn’t ask (and you couldn’t recall telling him) what was in the packages. You were then asked this question at T45:9:

“Q: What would you say to the suggestion that Mr Engstrom must have known [what was in the packages] because that’s the only way the expression “if it all turns to shit” makes sense?

A: I would say you’re pretty right there, your Honour.”

50. You went on to repeat your assertion that you had not told Mr Engstrom at a much earlier stage what was really in the packages (T45:41). I regard this aspect of your evidence with considerable scepticism and circumspection.

51. Returning to the narrative, at 6:30am on 12 July 2019, you met Mr Regan in Queanbeyan as arranged and offered him $10,000.00 to cut some windows into the boom of the excavator and to weld it back together. Although the facts do not say so, it is likely that Mr Regan would (at least) have had suspicions why he was being asked to do such work and for such a price. He told you he would get back to you at a later time as to whether he would take the job: later that day he let you know he didn’t want it.

52. Between 11:10am and 12:30pm on 13 July 2019, Mr Engstrom had a series of conversations with you and his brother concerning the acquisition of scaffolding which would be used in the cutting process the next day, 14 July 2019.

53. At around 3:00pm on 13 July 2019, you approached another acquaintance of yours, Mr Ahosivi. You asked him if he could help Mr Engstrom cut into the excavator. You expressly told Mr Ahosivi that there was cocaine in that excavator and you offered him $10,000.00 to do that work. It would seem that Mr Ahosivi asked for time to consider your offer.

54. At 9:00pm on 13 July 2019, Mr Regan went to your house – apparently for social purposes. Whilst he was there, and before you had had a response from Mr Ahosivi, you offered him $30,000.00 in cash to weld the hydraulic arm of the excavator only. Mr Regan again declined to be involved.

50. At around 9:27am on 14 July 2019, you received a message from Mr Ahosivi who also declined to become involved.

51. And so it was that, a few minutes later, you and Mr Engstrom began setting up the scaffolding next to the hydraulic arm of the excavator and Mr Engstrom used an angle grinder to effect the cutting of the hydraulic arm.

52. This work seems to have been concluded at about noon and at that time you began removing packages from the cavity of the hydraulic arm and placing them in plastic tubs. Mr Engstrom was present as you were unloading the packages.

53. However, the unloading process did not get very far because, a few minutes later, the police arrived at the business’s premises.

54. It would seem that much of the operation had been under police surveillance for some time. There was, in fact, no cocaine to be unpacked from the excavator because, when it arrived in Australia, the Australian Border Force, Customs and the Australian Federal Police were waiting for it. They found, within the excavator, 384 plastic wrapped 1kg blocks concealed in the hollow cavities of the excavator’s hydraulic arm. The minimum net weight of the compressed and semi-compressed cocaine was 332.1kg.

55. Subsequent analysis showed that samples of the contents contained cocaine with a minimum purity of 83.1 per cent, and the minimum total pure weight was 276.1kg. The police “deconstructed” the 384 blocks of cocaine and replaced the drugs with an inert substance.

56. The parties have chosen not to inform the Court of the value of the cocaine. But it is not reasonably open to question and is generally common knowledge that such a quantity of that drug with that purity would be worth a very considerable amount of money.

57. Before turning to the specific areas of dispute, it is necessary for me to say something further about your evidence. I have already indicated that, on important matters, I regard your evidence as variously implausible, to be regarded with considerable scepticism and circumspection, or deliberately dishonest. On those matters, I regret to say that I do not accept your evidence, yet alone accept it on the balance of probabilities.

58. The first specific issue in dispute was whether you had actual knowledge of the nature and quantity of the concealed packages before 11 July 2019 (i.e. in mid-May 2019 when you made the two payments and purchased the excavator).

59. In a sense, the first aspect of this dispute is not of great practical significance because you have admitted that, from the beginning, you suspected that the concealed packages contained border controlled drugs.

60. On this question, as I have already indicated, I am satisfied, beyond reasonable doubt, that as at May 2019 you had actual knowledge that the concealed packages contained some type of border controlled drug. It is the only rational inference in the circumstances.

61. And, although I am not satisfied, beyond reasonable doubt, that, as at May 2019, you knew the approximate quantity of the border controlled drug, I am satisfied, beyond reasonable doubt, that you had actual knowledge that the amount of the drugs would be significant. It is again the only rational inference in the circumstances.

62. The second issue concerns your role in the enterprise. In some cases, a hierarchical analysis is helpful or appropriate. But not in this case. I have already noted your close involvement in the entire importation process. Although the Crown concedes (and I accept): that you were not the “mastermind of the operation”; and that, after the drugs had been secured into the possession of the syndicate, you would have had no further role in distributing the drugs into the community - nevertheless, you played a significant and key role in the operation.

63. The third issue concerns the motivation for your offending. There is no doubt that it was for financial reward.

64. The dispute between you and the Crown was whether that financial reward was:

1. limited to the ultimate possession of the excavator, including the repayment of $50,000.00 being the initial “purchase price” – as contended for by you;

                     or

2. in addition to (a), some further significant financial reward was to be paid to you – as the Crown contended for.

70. The resolution of this dispute would have been easier if there had been evidence that the ongoing functional integrity / utility of the excavator would have been substantially compromised by the scope of the cutting open and subsequent re-welding of the excavator. However, no such evidence was led by the Crown (which had the relevant onus of proof).

71. However, even without that evidence, I am not satisfied, on the balance of probabilities, that you engaged in this highly risky criminal conduct, with its widely understood risks of substantial imprisonment, for simply a sight unseen refurbished excavator. Rather, I am satisfied that the only rational inference in the circumstances is that you engaged in this enterprise in the expectation of receiving a substantial financial benefit – although I am unable to assess more specifically what you expected that substantial financial benefit would be.

72. The scope of offending captured by the offence of attempting to import a commercial quantity of a border controlled drug is very wide. By having regard to all of the considerations I have referred to, in terms of its objective seriousness for an offence of its kind, your offending is a mid-range offence.

73. You were 33 years old at the time of this offending. You are now 35 years old.

74. You have no prior convictions and are, therefore, entitled to the leniency which, in appropriate circumstances, can be extended to a first offender.

75. You have no personal issues with illicit drugs, alcohol or gambling.

76. You have no mental or physical health issues.

77. You’ve come from a good family. You were raised in a loving home. You have your own family – a wife and four young children (two of whom are from an earlier relationship).

78. You have been a hard-working man all your adult life.

79. You were held in high-esteem by many in your local community – that is, until this offending. But even with the offending, a significant amount of references were advanced on your behalf and you continue to have the strong support of your family and your close friends.

80. You have expressed remorse both in the witness box and to others. At face value, the expressions of remorse were powerful. However, the full effect and benefit of those expressions of remorse are considerably offset by the concerns that I have regarding various aspects of your evidence which, as I have already said more than once, were implausible, to be approached with circumspection, or were not true.

81. In these circumstances, I am not satisfied, on the balance of probabilities, that your expressions of remorse are genuine – although I have no doubt that you are sorry at the position you find yourself in.

82. I have also concluded that your prospects of rehabilitation are guarded. For that reason, specific deterrence is fully engaged – and general deterrence, which is the dominant and fundamental sentencing consideration for offences of this kind, is also fully engaged. 

83. You entered a plea of guilty at an early stage, but that was in the face of a strong Crown case. Ordinarily, I would have given you a 25 per cent discount for the utilitarian value of your plea. However, because of the manner in which the sentence hearing was conducted, the discount will be 20 per cent.

84. No sentence other than a term of full-time imprisonment is appropriate.

85. You have been in custody since you were arrested on 14 July 2019 and the sentence will be backdated to that date.

86. Adam Phillip Hunter, for the offence of attempting to import a commercial quantity of a border controlled drug, you are convicted.

87. Except for your plea of guilty, I would have sentenced you to a term of imprisonment of 16 years. After the discount of 20 per cent, the term of imprisonment is 12 years 9 months.

88. I fix a non-parole period of 8 years 3 months to date from 14 July 2019 and which will expire on 13 October 2027.

89. I fix a balance of 4 years 6 months to date from 14 October 2027 and which will expire on 13 April 2032.

Amendments

03 February 2023 - Pseudonym for co-offender no longer required following his conviction after trial.

Decision last updated: 03 February 2023