R v Ian Robert CHALMERS

[2007] NSWDC 105

CITATION:	R v Ian Robert CHALMERS [2007] NSWDC 105
HEARING DATE(S):	15/08/2006-28/08/2006 10/11/2006 02/02/2007 23/03/2007 04/05/2007
JUDGMENT DATE:	4 May 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraphs [38] & [39]
CATCHWORDS:	Criminal Law - Sentence - Conspiracy to import commercial quantity of cocaine - Knowingly take part in the supply of prohibited drug
PARTIES:	Crown Ian Robert Chalmers
FILE NUMBER(S):	06/11/0273; 06/11/0304
COUNSEL:	D.Staehli SC J Spencer
SOLICITORS:	Commonwealth DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: Ian Robert Chalmers appears for sentence today on two matters. The first and most important results from him being found guilty by a jury on one count of conspiring to import a commercial quantity of cocaine. The maximum penalty for that offence is life imprisonment.

2 He is also to be sentenced following his plea of guilty to an offence of knowingly taking part in the supply of 4.45 grams of ecstasy. The maximum penalty for that offence is fifteen years imprisonment.

3 I immediately note that the crown has suggested that an appropriate way for dealing with the State matter is by the imposition of a wholly concurrent sentence, given the gravity of the Commonwealth matter and the sentences imposed on the co-offenders in relation to the State matter.

4 As far as the more serious Commonwealth matter is concerned, the offender had a long-term friend by the name of Sean North. In October 2004 he was involved in the successful importation into Australia of a substantial quantity of cocaine. Emboldened by that success, Mr North and others decided to repeat the operation, this time bringing into Australia a larger quantity of cocaine, namely thirty kilograms. The offender was not involved in the October 2004 importation but was, as the jury verdict clearly shows, involved in the latter operation.

5 The method which the conspirators used in October 2004, and proposed to use in early 2005 was this - a courier or “walker” would travel from Australia to a South American location. There he would be given a suitcase containing the cocaine. When he returned to Australia he would check the bag in and travel on the same flight back to Sydney. Once he got to Sydney Kingsford Smith Airport, however, he would not clear customs. Instead he would transfer to an interline flight, which is a service whereby a passenger can travel domestically on an international flight.

6 In the case of the October 2004 importation, the courier travelled from Sydney to Brisbane. In the case of the later operation involving this offender, the courier was to travel from Sydney to Melbourne. This interline transfer would mean that the courier’s bags would have to be unloaded from one aircraft and transferred to another aircraft, both aircraft travelling as international flights.

7 The suitcase containing the drugs, however, would not be transferred to the second aircraft. Instead, baggage handlers who were involved in this criminal scheme would divert the suitcase with the drugs in it and remove it from the airport without it having to clear customs. This scheme obviated the need for the courier to have to walk through customs with a bag containing twenty or thirty kilograms of cocaine. The fact that the scheme involved corrupt baggage handlers became quite significant during the course of the trial.

8 The offender’s role was to obtain and pay for the courier’s tickets. It was he who booked the courier’s flights from Sydney to Buenos Aires and return. He also booked the interline flight taking the courier from Sydney to Melbourne. Intercepted telephone calls revealed the offender making those arrangements with a friend of his - Bob Nicholl, who was a travel agent in Wyong.

9 The accused was quite insistent that the tickets he booked had to include the flight from Sydney to Melbourne, and rejected without hesitation a suggestion from Mr Nicholl that an itinerary involving a direct flight from Auckland to Melbourne would be preferable. The offender of course rejected that suggestion because he knew the importance of the courier travelling through Kingsford Smith Airport, where he knew the corrupt baggage handlers were waiting.

10 The telephone calls intercepted by police also revealed the efforts that the offender went to in order to obtain the ticket itself. Once having got the ticket he gave it to Mr North, so it could in turn be supplied to Mr Tyler, the courier. The accused claimed that he had no knowledge of Mr North’s activities as a drug importer until very late in the piece, but that assertion was clearly contradicted by the contents of the telephone calls.

11 In particular, there was a telephone call made when Mr North was in South America, at a time when a great deal of publicity was being given to Shappelle Corby’s trial in Indonesia, and to the suggestion in that trial that there were corrupt baggage handlers at Sydney Airport. In the call between Mr North and the offender, the latter makes reference to “that bird in Indonesia” and says that ”they’ve traced it back to airport personnel”, which, despite the accused’s evidence in the witness box, can only be a reference to the corrupt baggage handlers. This was important because it revealed the accused’s knowledge of the precise plan for getting the cocaine into Australia.

12 The crown case against the offender was a remarkably strong one. The accused had no satisfactory explanation, and at times no explanation at all, for many of the incriminating features of the intercepted telephone calls. The cross-examination by the crown prosecutor was particularly effective in demonstrating that the exculpatory version of events offered by the offender was, in the light of the contents of the telephone calls, fanciful.

13 It is to be remarked upon that even now the offender maintains his innocence. He is not to be punished for that, of course, but the absence of any remorse for what the offender has done is a striking feature of this case. There is no acceptance of his responsibility for his criminal activities, apart of course from the plea of guilty to the relatively minor state matter.

14 One of the factors which Mr Spencer relied on when addressing the jury was the absence of any evidence from the crown as to why it would be that a person like Mr Chalmers would get himself involved in the importation of a large quantity of cocaine. Given the accused’s relatively minor involvement in the overall operation, he could not have expected to obtain a great deal of money, or if he was to be paid in drugs, a terribly significant share of what was actually imported.

15 One of the issues that has been addressed today concerned the benefit, if any, that the offender was going to receive from his involvement in this criminal conspiracy. The evidence at trial tended to suggest that he owed some money to Mr North, and that one way of repaying it was for the offender to obtain the airline tickets. There is no evidence that the offender was going to get any benefit, but by the same token there was equally no evidence that the offender had no expectation of receiving a benefit once the scheme achieved its objectives.

16 The offender was a drug user at the time he committed these offences. It would not have at all been surprising if the offender did have an expectation of receiving money or drugs once the large quantity of cocaine was imported.

17 Fortunately for the Australian community, police were well aware of what was going on. They had the accused, North, Tyler and many others involved in the scheme, under surveillance. The importation was never going to succeed and Mr Tyler flew back to Australia empty-handed.

18 As I mentioned, the quantity of drugs that the conspirators hoped to import was around thirty kilograms. There is no evidence that the offender knew the precise quantity of drugs which were to be imported. The offender has been found guilty of involvement in a conspiracy involving a commercial quantity of cocaine, and so I am to sentence him on the basis that that involved the importation of more than two kilograms.

19 Clearly, the offender would have realized that the scheme involved the importation of a substantial quantity of drugs from overseas. One does not involve many co-conspirators in a scheme involving international flights from South America and corrupt baggage handlers only to import insignificant quantities of drugs.

20 I cannot say precisely what was in the offender’s mind as far as the quantity of drugs involved is concerned, but I can say, and say beyond reasonable doubt, that he well knew that a significant, substantial quantity of drugs was to be brought into the country.

21 The offender was born in 1964. His parents separated when he was about fifteen and his mother formed a new relationship. That relationship, as far as the offender was concerned, was not a happy one.

22 The offender completed both high school and then a Bachelor of Commerce degree before moving to London, where he worked in the finance area for a number of years. He was very successful at what he did. The references tendered to me today suggested that he was an effective stockbroker who performed his job very well. Evidence at trial made it obvious that the offender had been successful, insofar as he lived an enviable lifestyle.

23 The offender separated from his wife on a number of occasions before finally splitting up in 2002. It seems that leading up to and after that separation the offender became involved in drug use. The material suggests that he commenced using cocaine whilst in London, one of the reasons being no doubt, that he was earning so much money that he could afford to use drugs, and use them to excess.

24 The material also suggests that the offender has for a number of years suffered from bipolar disorder. On top of that, once his marriage ended he entered a period of depression. Those factors tend to suggest that when he was approached by North with the proposal that he involve himself in this criminal conspiracy, he was less able than others to respond rationally to that invitation.

25 The offender has no prior criminal convictions, and indeed there is material suggesting that he has done things in the past which are of benefit to various charities.

26 As far as his character is concerned, however, I do note, as I noted earlier, his complete absence of any acknowledgment of having involved himself in this criminal conspiracy. And I note, also, that it was not submitted on the offender’s behalf that he was a man of otherwise good character.

27 The crown today proposed to tender some material which, it suggested, would enable me to find beyond reasonable doubt that the offender had become involved in cocaine supplies. The crown wished to adduce that evidence to respond to any suggestion by Mr Spencer that these two matters for which I am to sentence the offender represent his only breaches of the law. When Mr Spencer indicated that he was not going to invite me to make that finding, the crown recognized the absence of a need to proceed with what it proposed.

28 I should at this stage make reference to the issue of parity. Mr Tyler, who was the proposed courier, received a substantial discount for assistance and a plea of guilty. He received a sentence of nine years. Mr Chandler, who went to South America with Mr Tyler, received a period of imprisonment of ten years. The co-offenders in the State offences got suspended sentences.

29 I should emphasize that the law in relation to parity in sentencing is a law which only works one way, that is to the benefit of an offender. I have to ensure that the offender does not have a justifiable sense of grievance when he compares the sentence imposed upon him with the sentences imposed on others. The crown cannot claim it has a justifiable sense of grievance if there is disparity in sentencing. Instead, the crown is able to rely on the sentences imposed on Tyler and Chandler as sentences indicating the appropriate tariff for such conduct.

30 The crown has made its position clear, when I assess the sentence to be imposed on this offender after comparing the sentence imposed on Tyler and Chandler. It makes some calculations involving Tyler’s assistance to the authorities, and says that I should impose a sentence in the order of fifteen years upon this offender.

31 So differently do I view the position, that I have anxiously considered and reconsidered my approach. The crown’s submission is that the offender played a role at least equal to and perhaps even more important than the courier - Tyler - and the man who went to South America with him. I just cannot see that that is the case.

32 It is a very important factor to be borne in mind that people are to be sentenced for what they do. In this case the offender’s involvement was relatively limited. It was he who obtained the ticket for the courier. He did not travel overseas in the expectation that he would return with a substantial quantity of drugs in a suitcase. He did not get involved deeply with other co-conspirators. The only person he spoke to, I repeat, was North. He did not perform a role that required any particular gall or bravado.

33 It is a fundamental rule in sentencing that the sentence must reflect the objective gravity of an offender’s conduct. I am satisfied that the offender’s conduct placed him at a significantly lower level than that of others who have been sentenced for their part in this conspiracy.

34 That is, of course, not to say that the offender’s conduct is minor or undeserving of substantial punishment. It clearly is a most serious criminal activity to become involved in a conspiracy to import a large quantity of drugs. Any involvement in that conspiracy is serious and deserving of significant punishment.

35 The offender has assisted the authorities. I will say little about it, beyond noting that not much came of the offender’s assistance. In those circumstances, I will discount the sentence I would otherwise have imposed by approximately ten per cent. It may be that the assistance is one of the reasons that it is likely that the offender will spend further time on protection. He went into protection upon his arrest after it was suggested to him. It may be that his notoriety was one of the reasons, if not the reason, that it was suggested to him that it would be appropriate that he serve his sentence on protection. However, it is no longer the law that I should assume that everyone serving a sentence on protection does his time harder than those serving their time in the general prison population. The conditions of the offender’s protection are only made known to me by way of a hearsay statement in a report, and of course those conditions may change.

36 In deciding the appropriate sentence, however, I will bear in mind that there is a risk that the offender will serve part or indeed all of his sentence on protection, and there is a risk that those conditions of custody will be harsher than would have been the case if the offender had served his sentence in the general prison population.

37 There is a very important need to impose a sentence on the offender which contains a substantial component of general deterrence. The amount of money which can be made through the sale and distribution and importation of drugs is enormous. This conspiracy, of which I heard evidence, shows how relatively easy it was for a large number of people to decide to do something seriously criminal. I know about the men who were referred to in the evidence in the trial, and I know that there were other corrupt baggage handlers in on the scheme as well. The size of the conspiracy itself indicates the ease with which members of the community decide to involve themselves in an activity that all right-thinking members of the community regard as gravely criminal. And no doubt it is the profits to be made through drug importation and sale which is what persuades such large numbers of people to do that. For that reason, when people are detected, people such as the offender, and convicted of such offences, significant and indeed even harsh sentences of imprisonment are required.

38 For those reasons these are the sentences I will impose. For the offence of knowingly taking part in the supply of a prohibited drug, namely ecstasy, that is the state offence, the offender is sentenced to a fixed term of imprisonment for one year. That will commence on 21 July 2006. It is agreed that that is the appropriate date on which to commence the sentence, to reflect a short period of custody before the appellant was granted bail. It is a fixed term because of the sentence I will now impose on the commonwealth matter.

39 For the offence of conspiring to import a commercial quantity of cocaine, the offender is sentenced to imprisonment for five and a half years. I set a non-parole period of three and a half years. That is also to commence on 21 July 2006 and expire on 20 January 2010.

40 Mr Chalmers I am required to explain the sentence to you. What I have done is backdate your sentence to 21 July 2006, which is thirty-eight days before you actually went into custody following the jury’s verdict, because you had earlier spent thirty-eight days in custody. You are therefore to spend a further period in custody totalling three and a half years which will expire on 20 January 2010. You are eligible to be released to parole on that date. If you are released to parole you will continue serving your sentence in the community. If you fail to comply with the conditions of parole, you can be returned to custody and required to serve the balance of your sentence, which will all expire on 20 January 2012.

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