R v Maaz

[2024] NSWDC 179

District Court

New South Wales

Medium Neutral Citation:

R v Maaz [2024] NSWDC 179

Hearing dates:

3 May 2024

Date of orders:

17 May 2024

Decision date:

17 May 2024

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

Head sentence of 8 years imprisonment with a non-parole period of 5 years

Catchwords:

CRIME – Drug offences – Commonwealth offences – Attempt to possess commercial quantity of border-controlled drugs

SENTENCING – Contested facts – Knowledge – Exculpatory duress – Parity

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code (Cth)

Cases Cited:

Deakin v The Queen [1984] HCA 31

DPP (Cth) v De La Rosa [2010] NSWCCA 194

Dwayhi v R [2011] NSWCCA 67

Green v The Queen (2011) 244 CLR 462

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520

Lau v The Queen [2011] VSCA 324

Lowe v The Queen (1984) 154 CLR 606

Ngo v R [2017] WASCA 3

PG v R [2017] NSWCCA 179

Power v The Queen (1974) 131 CLR 623

R v Chandler; Chandler v R [2012] NSWCCA 135

R v Dyson [2023] NSWCCA 132

R v Kaldor (2004) 150 A Crim R 271

R v Lee [2007] NSWCCA 234

R v Morabito (1992) 62 A Crim R 82

R v Nguyen; R v Pham [2010] NSWCCA 238

Rae v R [2011] NSWCCA 211

Shortland v R [2013] NSWCCA 4

Totaan v R [2022] NSWCCA 75

Wong v The Queen (2001) 207 CLR 584

Category:

Sentence

Parties:

Rex (Crown)
Tony Maaz (Offender)

Representation:

Counsel:
Ms K Curry (Crown)
Mr G Stanton (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
McGirr & Associates (Offender)

File Number(s):

2020/349158

JUDGMENT

Introduction

1. Tony Maaz, the offender, is to be sentenced for the following offence:

Offence	Description	Maximum Penalty
Sections 11.1(1) and 307.5(1) of the Criminal Code (Cth)	Between about 16 April 2020 and about 20 May 2020, did attempt to possess a commercial quantity of a border-controlled drug, namely 3,4-Methylenedioxymethamphetamine (MDMA)	Imprisonment for life and/or 7,500 penalty units

2. The offender was found guilty following a trial before myself and a jury which concluded on 12 March 2024 when the jury returned a guilty verdict.

3. As can be seen from the description of the offence, the Crown's case was that between 16 April 2020 and 20 May 2020 the offender did attempt to possess a commercial quantity of border-controlled drugs.

Principal issues at trial

4. Before the jury, the objective facts tendered by the Crown were not challenged or put in issue by the offender. Those objective facts were only consistent with a guilty verdict.

5. Rather, the offender took issue with the ability of the Crown to prove beyond reasonable doubt that the offender’s conduct, the subject of the charged matter, was not vitiated by what is referred to in the cases as “exculpatory duress”. He gave evidence before the jury of a series of threats made to his and his mother’s lives which he said caused him to do what he did.

Uncontested facts consistent with the jury’s verdict

6. The Crown has prepared and tendered before me on the sentence hearing a 31-page document entitled “Statement of facts on sentence”.

7. That statement of facts is not only lengthy but extremely detailed.

8. Whilst those facts are not agreed, no submission was made by the offender that I should not make findings to their effect. I will shortly summarise the salient facts.

9. I find each of those facts beyond reasonable doubt, they are all consistent with the jury’s verdict of guilty.

10. Those facts boil down to the following simple propositions:

1. On 13 March 2020 a Doosan excavator machine arrived in Australia from the United Kingdom containing 346.2 kg of pure MDMA secreted within its boom shaft.

2. Police located the drugs on the excavator’s arrival into Australia and removed the drugs from the excavator and installed in the excavator a series of cameras, listening and tracking devices and then conducted a controlled delivery of the excavator to its designated destination, being an auctioneer house in Queensland.

3. The offender, who at the time conducted a apparently successful building business, then purchased the excavator and directed it be delivered to a building site controlled by him at Blacktown in Sydney.

4. Police tracked the excavator to Blacktown and observed and obtained vision and sound recordings of the offender and a Mr Raymond Lipovac who spent approximately three days (18, 19 and 20 May 2020) cutting into the arm of the excavator with a band saw, searching for drugs which they both anticipated were in the arm of the excavator.

5. Because the drugs were not there, they failed to find them and, after making inquiries of people in the United Kingdom who assured them that the drugs should be there, gave up on the search.

6. The offender was eventually arrested on 9 December 2020 wherein he participated in a record of interview, where he denied any knowledge of any drugs or any attempt to obtain drugs and strongly asserted that he purchased the machine in good faith because he wanted and needed an excavator for use on his building site.

Contested facts consistent with the jury’s verdict

11. There are two issues in contest. Whilst they are separate, it seems to me that they are very much interrelated and the resolution of the first issue, if decided against the offender, will be determinative of the second issue.

12. The first issue is whether at the time he purchased the excavator and directed it be delivered to his building site, the offender was doing anything other than purchasing an excavator for use as an excavator without any knowledge or expectation that it contained drugs. The Crown case is that the real reason he purchased the excavator was to get access to the drugs that he expected were hidden in it. The second issue is whether, the jury having been satisfied that the Crown had disproved exculpatory duress in respect to the alleged threats by Mr Lipovac, there is still a role to play for “non-exculpatory duress” in considering an appropriate sentence.

13. In order to understand these two issues it is necessary to understand the evidence given by the offender at trial, which can be summarised as follows:

1. He needed a large excavator for use at his building site.

2. He asked various people, including Mr Lipovac, a plumber who he knew professionally, if they were aware of any suitable excavators that might be coming up for sale.

3. Mr Lipovac told him about the excavator and explained that it had been “owned” by a friend of his, who had used it in goldmining but it had recently been repossessed by a financier and was being sold at auction in Queensland by the financier.

4. The offender told Mr Lipovac that he was interested but had a budget limited to $150,000. Mr Lipovac told the offender that he might well need to pay more than that but that any amount over and above $150,000 would be reimbursed to him by his friend “the owner”.

5. The offender then went ahead and bid for the machine over the internet and in the process, at one point, “bid against himself.” In other words, having placed a bid at $280,000, and whilst awaiting for the auctioneer to get back to him with instructions, but having been told by the auctioneer that the bid would probably be accepted, he placed a further bid at a higher amount.

6. The total gross amount he eventually paid for the excavator, including expenses, was $288,000 in circumstances where there was uncontested valuation evidence that the market value of the machine was somewhere between $98,000 and $126,000.

7. The offender next says that when the machine was delivered to the site at Blacktown, Mr Lipovac told him that he needed to participate in Mr Lipovac's efforts to open up the machine to obtain what the offender assumed to be drugs, or else the offender would be shot by one or more of men who were apparently outside the building site and, worse still, his mother would also be shot and that there were men outside her premises ready to do just that.

8. The offender said that he believed these threats notwithstanding that he at no time saw one of these men and that thereafter his efforts in assisting Mr Lipovac to obtain the drugs was as a consequence of the duress caused by the threats which he believed were true. His denial of any criminal activity when arrested by the police was also a consequence of those threats, even though they apparently had ceased.

14. As I have said, the two factual issues for determination by me are interrelated. As was conceded by Mr Stanton, counsel for the offender, if I am satisfied beyond reasonable doubt by the Crown that at the time the offender was bidding for the machine he expected it to contain drugs, then it is impossible to accept his evidence of the various conversations he says he had with Mr Lipovac on site. This is because, essential to those conversations is an acceptance that, the first of those conversations was the very first time the offender had any inkling that there was anything untoward going on.

15. It is for the Crown to satisfy me beyond reasonable doubt as to the first issue and for the offender to persuade me on the balance of probabilities as to the second.

16. A decision either way on either or both factual issues will be equally consistent with the jury’s verdict. The jury may well have not been satisfied that the offender knew anything about the drugs until the machine was on site, yet still convicted and by the same token, the jury might have accepted everything the offender said going to the issue of duress but were not satisfied that his conduct was a reasonable response to those threats and thus convicted notwithstanding an acceptance of his essential evidence.

17. Dealing then with each issue:

When did the offender first know about the drugs

18. I am satisfied beyond reasonable doubt that the offender expected there to be drugs in the excavator at all times when he was negotiating for its purchase. This is the real reason he purchased the machine.

19. My reasons are as follows (the factual matters identified are each matters that I am satisfied of beyond reasonable doubt):

1. The market value of the excavator was $98,000 to $126,000.

2. When the excavator went “live” on the auctioneer’s sale platform, it had a starting price of $165,000. The offender knew this, yet despite this, his opening offer was $280,000 which was $115,000 more than the starting bid, $5000 more than the “hidden reserve price” of $275,000 and more than twice the excavator’s market value.

3. The offender, on his own evidence, made no inquiries as to the condition of the machine, did not himself arrange for someone on his behalf to inspect the machine and made no inquiries as to its market price.

4. As I have already said, having been told that he had probably made the winning bid at $280,000 the offender stated that he thought a counter‑offer had been made at $287,500 and he might as well just purchase at that higher price. The offender was not able to offer any sensible explanation as to why he offered that extra $8,000 in circumstances where, on his own evidence, he had been told that he could probably have the machine for $280,000.

5. The offender's explanation for why he was firstly so cavalier in the way he bid for the excavator despite his lack of inquiries, but also as to why he went over what, on his own evidence, was his budget of $150,000, was the extraordinary promise which he says was made to him by Mr Lipovac to the effect that if he went over $150,000 he would be reimbursed by the vendor of the machine for any amount over and above that. The proffered explanation for this by Mr Lipovac, which the offender said in his evidence he accepted, was that otherwise the owner would have to pay that amount of money to the financier.

6. To my mind this explanation was commercial nonsense and inherently implausible. It literally makes no sense. If the offender is to be believed then he accepted an oral guarantee from a person he had never met, whose name he did not know, in circumstances where the one thing he knew about that person was that they were currently insolvent because they were unable to pay a financier moneys pursuant to the finance contract. The promise was made to him not by this unidentified person but by Mr Lipovac who the offender had no way of knowing had any authority to make such a promise in any way that would be binding. All of this in circumstances where, on his own evidence, the offender was a successful and experienced businessman. His attempts to explain his conduct were, in my judgment, incoherent and again implausible. The best I could understand it was that the owner would be given an unspecified time to reimburse him whilst he would have to pay the financier now. I did not believe him nor do I think there is any possibility that his explanation was true.

20. Taking all those factors into account, and notwithstanding that the offender did actually purchase the excavator and did pay for it from his own money or moneys that he arranged to borrow and that he did have a need for an excavator on his building site, I accept the Crown submissions that all of those factors were deliberately designed so as to give the transaction a veneer of plausibility.

21. I am satisfied therefore that from as early as about 16 April 2020 the offender was engaged in the attempt to possess the drugs.

Non-exculpatory duress

22. As I have explained, it follows from the above that I do not accept (and in this regard, it is for the offender to satisfy me on the balance of probabilities) that there was any form of threat involved which had any causative effect on the conduct of the offender.

23. This is because, an acceptance that he already expected the excavator contained drugs prior to its delivery on site must mean that his entire evidence about the series of conversations with Mr Lipovac, where the threats were said to be made, simply cannot have occurred. The premise of the offender’s evidence was that the first he knew of any expectation that there were drugs in the excavator was the first of those conversations. I have rejected this premise.

24. For that reason alone, I would not be satisfied that there was any threat or coercion involved.

25. But leaving that to one side, I have heard hours of taped conversations between Mr Lipovac and the offender whilst they were trying to find the drugs in the excavator.

26. Those conversations are set out in detail in the facts contended for by the Crown. By reference to what they were saying to each other and the tone of voice of each of them, but in particular the offender, I am satisfied that he was not scared or operating under any threat, at any time.

27. Moreover, I have also heard many recordings of conversations he was having during the relevant period with friends and his partner. All of those are entirely inconsistent, both in language and tone, with him being under any sort of coercive threat. He went home and out to social events between visits to the site. He spent a lot of time arranging what was for dinner and other personal matters all of which was entirely inconsistent with him or his mother being threatened. Finally, I am satisfied that over the three relevant days the offender took no steps to check on the welfare of his mother, I did not believe his evidence before the jury to the contrary. This conclusion is consistent with the jury’s verdict. That lack of apparent concern is entirely inconsistent with him being under any threat as to his mother’s life.

Conclusion as to contested facts

28. I am satisfied beyond reasonable doubt that at all relevant times from about 16 April 2020 until 20 May 2020 the offender was involved in an attempt to possess the drugs. I am not satisfied at all, and indeed find positively against the offender, that he was coerced by Mr Lipovac into doing what he did.

29. Rather, and whilst there is no direct evidence of this, I infer that the offender was engaging in this criminal enterprise with Mr Lipovac for financial reward.

Commonwealth sentencing principles

30. I am required, in sentencing the offender, to have regard to the matters set out in Part 1B of the Crimes Act 1914 (Cth) (“the Act”) and, more specifically, to the matters set out in s16A which provides a list of non-exhaustive factors that the Court should take into account when sentencing a federal offender.

31. The governing principle under s16A(1) is the imposition of a sentence which is of a “severity appropriate in all the circumstances of the offence”. The Court must take into account the matters listed in s 16A(2) in so far as they are relevant and known to the Court. The Crown submits that the following matters are relevant and known. The offender has not pointed to any other relevant matter.

Maximum penalty

32. The maximum penalty for an offence against ss 11.1(1) and 307.5(1) is life imprisonment.

33. The maximum penalty serves as a yardstick and a basis for the comparison between the case before the court and the worst case. The maximum penalty of life imprisonment for the offence in this case indicates that it is objectively very serious.

34. I must have regard to that maximum penalty and determine the degree by which an offender’s conduct contravenes the legislative object of suppressing the illicit traffic of prohibited drugs. In Ngo v R [2017] WASCA 3, the Western Australian Court of Appeal referred to the impact of drugs on the community as explaining the seriousness of importation and possession offences, at [63]:

[T]he “victim” of the offence was the Australian community generally. The illicit drug trade is a scourge. It inflicts very significant damage on the people who consume the drugs. Also, the deleterious effects of illicit drug consumption extend to the families, friends and associates of the consumers and society generally.

35. The offender’s conduct in committing this offence constituted a substantial breach of the legislative intent to restrain the illicit possession of unlawfully imported border-controlled drugs.

Principles of sentencing for drug offences

36. General deterrence and denunciation are the primary consideration in sentencing for drug supply, possession and importation offences. Such considerations will generally outweigh subjective circumstances, particularly in the determination of the total sentence, and stern punishment will be warranted in every case.

37. In R v Nguyen; R v Pham [2010] NSWCCA 238 at [72], Johnson J (with whom MacFarlan JA and RA Hume J agreed) stated the relevant principles that apply to sentencing for drug importation and related offences. They are well-known. I will not set out those principles in full but will refer to the most salient of those principles as they relate to the offender below.

Application of relevant sentencing principles to the present case

Nature and circumstances of the offence: s 16A(2)(a)

38. A critical consideration on sentencing is to determine what the offender did. Premeditation and planning have been recognised as relevant factors in weighing the seriousness of an offence: R v Morabito (1992) 62 A Crim R 82 at [86]. Where such factors are present, they allow the court to treat the conduct as a more serious example of the offence that would otherwise be the case.

39. On the facts, I have found the offender's role in the enterprise was to secure possession of the excavator upon its arrival into Australia for the purpose of removing the border-controlled drugs contained within it and to assist in removing the drugs. How he came to be involved beyond that is not known, but I am satisfied beyond reasonable doubt that he must have known about the importation at some stage prior to the excavator’s arrival in Australia. When he purchased the excavator at auction he had an expectation that he would receive a financial benefit as a result, he must have been (by inference) communicating with someone (whether it be Mr Lipovac or someone else) with knowledge of the importation and must have also been provided with information by someone as to which excavator to bid on, the price to bid and the price that would ultimately secure the purchase.

38. It may well be that the offender had a genuine use for the excavator at some stage but this appearance of a legitimate need for the machine was, I find, to provide a veneer of legitimacy to his attempt to possess the drugs.

39. There was considerable evidence and debate before the jury as to the significance of a visit to Bunnings on 18 May 2020 and whether the intent of the offender in going to Bunnings that day and being part of a purchase of an angle grinder was related to the drugs. I found all of that evidence a little bit unclear and put it to one side.

40. The offender admits that between 18 and 20 May 2020 that he repeatedly cut into the arm of the excavator in an attempt to locate the drugs, in doing so he had reviewed a diagram with instructions as to where the drugs could be expected to be.

41. I find that the offender was an essential and trusted participant in a sophisticated and well-planned criminal venture directed at taking possession of a significant quantity of unlawfully imported border-controlled drugs. His role cannot be described as menial or limited. As far as where he stands on the totem pole of a hierarchy of people involved in this drug enterprise, he is not a “Mr Big” but is also by no means a low-level dealer. He was quite clearly a significant part of the criminal operation. His actions were premeditated and planned to a significant degree. I find beyond reasonable doubt that he knew of the nature of the substance imported or at the very least, was reckless to the extreme, as to the nature of the substance. Put simply, he expected the substance to be illegal drugs, which again is an important factor going to the sentencing exercise: see Lau v The Queen [2011] VSCA 324.

42. As is explained by the High Court in Wong v The Queen (2001) 207 CLR 584, the weight of the drugs does remain a relevant factor to which the court must have regard in determining the seriousness of the offence.

43. In this case the gross weight of MDMA was 448.4 kilograms with a pure weight of 346.2 kilograms. A commercial quantity of MDMA is 500 grams. The pure amount of the drug was therefore substantially more than the commercial threshold. Whilst the offender may not have known the specifics, he must have known that the amount of drugs he was seeking to possess was significant.

44. As to the offender’s motivation, I infer that it was for financial reward. There is no other rational explanation: R v Kaldor (2004) 150 A Crim R 271 at [104]; R v Lee [2007] NSWCCA 234 at [32]. Not only is this inference the only common‑sense one available, it is also clear from what the offender said, as recorded by the listening devices, that he most certainly was expecting significant financial reward from the MDMA which, as a matter of objective fact, had an estimated average wholesale value of $13,100,000 in Australia.

Objective seriousness

47. Taking into account all of the above matters, I have come to the conclusion that it is appropriate for me to accept the Crown’s submission that the objective seriousness of the offending is high. To summarise, the conduct of the offender involved a deliberate and continued course of conduct to take possession of the drugs, financial reward being his only motivation. There must have been a significant degree of planning and knowledge that the excavator contained a substantial quantity of drugs and the offender was involved to such an extent that he was having direct contact and obtaining direct instructions from the original suppliers of the drugs in the United Kingdom.

Degree of contrition: s 16A(2)(f)

48. The offender has, as is his right, maintained his plea of not guilty. He gave evidence before me and the jury where he sought to explain away his conduct. I do not accept that evidence. In short he has not shown any contrition or remorse for his offence to date, and in the report of the clinical psychologist Mr Borenstein, he continues to express his innocence.

Degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences: s 16A(2)(h)

49. There has been no such cooperation.

General deterrence: s16A(2)(ja)

50. The principles of general deterrence and denunciation are fundamental and important considerations when sentencing an offender for a drug related offence. Those factors will often outweigh subjective circumstances, particularly in the determination of the total sentence, and stern punishment is warranted in almost every case.

51. The sentence imposed on the offender must be of such a severity that it will act to deter others from engaging in illicit drug activities of this nature. The sentence must signal to would-be drug traffickers that the potential significant financial rewards to be gained from such activities are at least neutralised, but in reality are outweighed, by the risk of severe punishment.

52. Involvement at any level in drug importation/possession-related offences, but more so at the level involved here, must attract a significant sentence otherwise the interests of general deterrence will not be served.

Need for adequate punishment: s 16A(2)(k)

53. Section 16A(2)(k) emphasises the primary obligation of the Court to “impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence” and to “ensure the person is adequately punished for the offence”.

54. In respect of the offender, a substantial period of imprisonment to be served by way of full-time custody, with a substantial non-parole period, is the only appropriate sentence in all of the circumstances.

Character, antecedents, age, means and physical and mental conditions: s 16A(2)(m)

55. The offender was born in 1987. He has a limited criminal record which consists of two drink driving offences in 2019 and 2023, which are not relevant to the present offending. Generally speaking, an offender who has past convictions will receive a heavier sentence than an offender who has led an otherwise “blameless life”. Notwithstanding this fact, it is a well-established principle that for offences of this nature, prior good character is generally of less weight as a mitigating factor. I accept he is otherwise of good character and has the support of a number of respectable people who think very highly of him. I give this weight.

56. As part of his subjective case, the offender relies upon a report of Mr Borenstein, clinical psychologist, dated 19 April 2024. Mr Borenstein opines that the offender meets the criteria for Post Traumatic Stress Disorder and therefore, given this condition, a custodial sentence is more onerous to the offender. The Crown accepts this is a factor the Court would have regard to in accordance with the principles expressed in DPP (Cth) v De La Rosa [2010] NSWCCA 194 in relation to the fact a custodial sentence may weigh more heavily on an offender due to his mental condition.

57. Aside from providing a general history, the report of Mr Borenstein does not in any way assist the offender on sentence in terms of moral culpability and/or addressing the offender’s attitude to his own offending. Nor does it assist on the important question of rehabilitation.

Rehabilitation: s 16A(2)(n)

58. The Court need not be satisfied beyond reasonable doubt that an offender will in fact re-offend in the future. It is sufficient, for the purpose of considering the protection of the community, if a risk of re-offending is established by the Crown.

59. The offender’s complete lack of contrition must be a factor when considering matters of specific deterrence and prospects of rehabilitation. The best I can say in favour of the offender is that his prospects of rehabilitation are guarded.

The probable effect on any of the person’s family or dependants: s 16A(2)(p)

60. Hardship to an offender’s family is a relevant factor that must be taken into account as part of the Court’s consideration of the matters listed in s16A(2) of the Act. This subsection was previously interpreted as requiring that the hardship be “exceptional” before it could be considered. The recent decision of Bell CJ (with whom Gleeson JA, Harrison J, Adamson J and Dhanji J agreed) in Totaan v R [2022] NSWCCA 75 determined that this interpretation was not correct. Thus, the law in New South Wales is that s 16A(2)(p) should be applied according to its terms.

61. I should consider any hardship to the offender’s family or dependants as part of the instinctive synthesis, even if it can be said that the hardship is not in itself exceptional. That said, as with all of the listed factors in s16A(2), the weight to be given to this consideration is a discretionary matter which will turn on the facts of the case. The overriding principle remains that the Court must impose a sentence of a severity appropriate in all the circumstances of the offence.

62. The offender relies upon the report of Mr Borenstein and a letter from Dr Alilel‑Jaam dated 13 March 2024 regarding the health of his mother. The Crown accepts the Court would take into account the degree of hardship that may be occasioned to the offender’s mother as a result of his incarceration.

63. I am satisfied that the offender’s mother who many years ago came to this country with her husband, who is now deceased, is reasonably elderly and frail, speaks little English and has a very limited ability to manage her own affairs without the assistance of the offender.

64. I heard detailed evidence as to the mother’s predicament on the application for detention and have, as I expressed then, a considerable degree of sympathy for her. She, of course, has not committed any crime yet as a direct consequence of the inevitable period of imprisonment which I must impose on the offender, she will suffer significantly.

65. I take her predicament into account and give it significant weight in the sentencing exercise.

Parity

66. The essential starting point or purpose of the principle of parity in sentencing, as stated by the High Court in Lowe v The Queen (1984) 154 CLR 606 and Green v The Queen (2011) 244 CLR 462, is that it applies to the sentencing of co-offenders whose culpability for the offence and whose antecedents are comparable: Bell J in Green at [105]. In Lowe, Gibbs CJ said at [3]:

It is obviously desirable that people who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as age, background, previous criminal history, the general character of the offender and the part he played in the commission of the offence have to be taken into account.

67. The Court of Criminal Appeal (Sweeney J, Button and Hamill JJ agreeing) in R v Dyson [2023] NSWCCA 132 recently summarised the principles to be applied in respect of a sentencing exercise where co-offenders are sentenced by different judges on the basis of different facts or evidence. The principles were collated at [54] as follows:

1. The Crown has a duty to inform a sentencing court of the sentence imposed on any co-offender and provide the sentencing court with the factual material and subjective circumstances before that court and the sentencing judgment of the court which sentenced the co-offender, so that the Crown and offender’s legal representatives can make submissions about the parity principle to assist the sentencing Court: Shortland v R [2013] NSWCCA 4 per Johnson J, Hoeben JA and Button J agreeing.

2. Where co-offenders are sentenced separately there may be differences in the “substratum of facts” upon which the different sentencing judges act and the impressions formed by them with respect to the relative roles and levels of responsibility: Dwayhi v R [2011] NSWCCA 67 at [38] and there may be different evidence and submissions leading to different conclusions being expressed by sentencing judges about the criminal conduct of people involved in the same criminal enterprise: Rae v R [2011] NSWCCA 211 per Johnson J at [54] and [56].

3. While there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different offences of different seriousness: Shortland at [122], to determine whether parity principles apply between an offender being sentenced and a co-offender previously sentenced, the latter sentencing judge must consider the facts of the offences and the charge brought against the offender for sentence and the co-offender, and the finding made by the previous sentencing judge about the co-offender, but should not go behind the findings by the previous sentencing court to assess whether and to what extent they were available: R v Chandler; Chandler v R [2012] NSWCCA 135.

4. Where pleas are negotiated and agreed on different bases for co‑offenders, there will usually be no mechanism by which a sentencing judge can resolve contradictory propositions about the roles of the co‑offenders. The urge for equal justice may seem to be frustrated by factual inconsistencies. But sentencing occurs on the basis of the evidence before the sentencing judge: PG v R [2017] NSWCCA 179 per Basten JA at [23-24]. Button J and N Adams J agreeing on this point.

5. An offender is to be sentenced only on the basis of facts tendered against him. The sentencing judge should not have regard to anything said about his role in another statement of facts tendered against another offender. Otherwise an offender is being sentenced on the basis of material which was not tendered against him. Where two offenders come to be sentenced by the same judge or by different sentencing courts, on separate agreed statements of facts which contain material differences the comparison, for parity purposes, is between what the agreed facts for one offender show was his culpability and the culpability of the co-offender as shown by the agreed facts for the co-offender’s sentence. It is erroneous to compare the role of an offender as disclosed in his agreed facts and the role of the co-offender described in those same facts, because the co-offender was not sentenced on those facts. He was sentenced on the basis of the facts tendered in his sentencing proceedings: Rosenberg v R [2022] NSWCCA 295 per Beech Jones CJ at CL at [9-10], Meagher JA and Garling J agreeing.

68. In 2022, Mr Lipovac pleaded guilty and was sentenced by Scotting DCJ to six years imprisonment in relation to the ss 11.1(1) and 307.5(1) offence (commencing 9 December 2021 and expiring 8 December 2027). Mr Lipovac was also sentenced in relation to an offence of dealing in proceeds of crime greater than $100,000 contrary to s 400.4(1) of the Code, with a deal with property suspected to be proceeds of crime greater than $100,000 attaching on a s 16BA Schedule. For those offences, Mr Lipovac was sentenced to three years imprisonment commencing 9 December 2020 and expiring 8 December 2023. Ultimately, a single non-parole period was set of 4 years commencing 9 December 2020 and concluding 8 December 2024.

69. The factual basis upon which Mr Lipovac was sentenced is set out at [9] to [50] of the remarks on sentence by Scotting DCJ, published in R v Lipovac [2022] NSWDC 649. There are very significant differences between the facts upon which Mr Lipovac was sentenced and the evidence that formed part of the case against the offender at trial. Scotting DCJ noted for example at [49]:

There is a plethora of evidence as to Mr Maaz’s involvement in the lead up to the offence and no evidence of the offender having any involvement at all before 18 February 2020. I am not satisfied that this evidence demonstrates that the offender had a line of communication with the UK arm of the syndicate in May 2020.

70. Scotting DCJ outlined the material tendered on behalf of Mr Lipovac at [51] and summarised his subjective case at [52] onwards. His Honour made significant findings in relation to Mr Lipovac’s subjective case, including that he had no criminal record, was of prior good character, unlikely to re-offend, there was a causal connection between his mental health and offending conduct such that his moral culpability was reduced, he suffers from rheumatoid arthritis and was significantly disabled by it which made his incarceration more difficult. His Honour found Mr Lipovac had excellent prospect of rehabilitation and had demonstrated that he was committed to rehabilitating himself. His Honour had regard to the conditions of custody due to the Covid pandemic and the fact Mr Lipovac had been assaulted in custody. His Honour was satisfied that Mr Lipovac became involved in the offending partly as a result of non‑exculpatory duress to clear his brother’s debt with the OMCG and to protect his family. All these factors are far removed from the offender’s subjective case.

71. In terms of Mr Lipovac’s role, His Honour made findings that it was limited to the attempts to cut into the excavator over the three-day period and that there was no evidence of any involvement prior to this time. At [89], His Honour summarised Mr Lipovac’s role and stated, “it is fair to say that the bulk of his involvement was as a labourer”. At [90,] His Honour went on to state:

On all of the evidence, I am satisfied that the offender played a relatively minor but essential role as a labourer in the attempt to possess the drugs. His involvement in the scheme of the operation was well below that of Mr Maaz. What he told Dr Ram is consistent with the objective evidence that the offender became involved at the request of unknown others to undertake a particular task, being to assist Mr Maaz to cut open the boom and remove the drugs. This conclusion is supported by the tenor of the recorded conversations between the offender and Mr Maaz.

72. There are clearly significant differences in the substratum of objective facts between the offender and Mr Lipovac. There are also significant differences in their subjective cases which would explain any differences between the ultimate sentences imposed and provide a reason to depart from the sentence imposed on Mr Lipovac.

73. I have heard very different evidence than was placed before Scotting DCJ.

74. I have come to a very different conclusion as to the involvement of both the offender and Mr Lipovac in this crime. I am satisfied beyond reasonable doubt that as between each other, they were very much equal in their status within the criminal operation. True it is that they were perhaps performing different tasks and Mr Lipovac was the person charged with holding the money, but I am not satisfied that Mr Lipovac’s role in the operation was well below that of Mr Maaz. I think that they were of an equal level and in any event, both Mr Maaz and Mr Lipovac on the evidence before me most certainly had direct communication with those involved in the importation of the drugs at the United Kingdom end.

75. Moreover, Mr Lipovac pleaded guilty, was entitled and received a significant statutory discount and did express contrition and remorse which was taken into account in his favour by Scotting DCJ when His Honour came to the conclusion in relation to the s 307.5(1) offence that the appropriate penalty was a term of imprisonment of six years with an overall (taking into account the proceeds of crime offence) minimum time in custody of four years.

76. On the findings I have made and taking into account the lack of any contrition, remorse or guilty plea, it is inevitable that I must impose a significantly higher penalty on the offender than that.

Consistency in sentencing

77. I have taken into account a series of comparable cases provided to me by the Crown.

78. It is important that consistency in Commonwealth sentences be achieved across the nation, as explained in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520. However, that does not require close numerical comparison.

Resolution

79. It is important to not lose sight of the fact that the maximum penalty provided for by the legislation is life imprisonment. This serves as a guidepost to an appropriate penalty but is also a significant reminder of the seriousness with which the community, through Parliament, treats this type of offending. I have concluded that the objective seriousness of the offender’s conduct is towards the higher end of the range and, for reasons which I have explained, his moral culpability is high because he has committed a serious criminal offence for no other reason than financial reward. He has shown no contrition or remorse, his prospects of rehabilitation and thus re-offending must be guarded. I have taken into account and given significant weight to the effect that any term of imprisonment which I impose will have on his mother, which will be significant, and I have also given significant weight to the fact that this is his first relevant conviction and he is otherwise of good character.

79. Having regard to all of those matters, the significant quantity of the drug possessed, the offender’s role, the significant importance of general deterrence, it is obvious that a substantial period of full-time imprisonment is the only penalty appropriate to the criminality involved and I have determined that eight years imprisonment is appropriate.

Time in custody

81. The offender was in custody between 9 December 2020 and 23 December 2020 prior to being granted bail. Following the verdict of the jury I revoked his bail on 14 March 2024 and he has been in custody since that date. As of today (17 May 2024) the offender will have spent 78 days in custody solely referable to the present matter.

82. It is appropriate that the sentence be backdated so as to take into account this prior time in custody: s 16E of the Act. Accordingly, I will backdate the sentence so as to commence 78 days ago, being 29 February 2024.

Minimum non-parole period

83. There is no need for a finding of “special circumstances” to warrant a ratio outside that which is ordinarily prescribed: Hili and Jones; Power v The Queen (1974) 131 CLR 623; Deakin v The Queen [1984] HCA 31. However, the matters relevant to a finding of special circumstances under the State legislation are relevant. I take into account the fact that this is the offender’s first time in custody, the psychological trauma which is explained in Mr Borenstein’s report, which I think will make the offender’s time in custody more onerous than for others, and the impact on his mother.

84. For those reasons I propose to adjust the minimum non-parole period to five years.

Orders

85. The offender is sentenced to a term of imprisonment of eight years to commence on 29 February 2024 and to expire on 28 February 2032.

86. There will be a minimum non-parole period of five years, again to commence on 29 February 2024, meaning the offender will first be eligible for parole on 28 February 2029.

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Decision last updated: 20 May 2024