R v Maraivalu

[2021] NSWDC 237

District Court

New South Wales

Medium Neutral Citation:	R v Maraivalu [2021] NSWDC 237
Hearing dates:	30/3/21, 30/4/21
Date of orders:	30/4/21
Decision date:	30 April 2021
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Convicted and sentenced to imprisonment for 8 years 9 months with a NPP of 4 years 6 months (2/9/19-1/3/24).
Catchwords:	Crime – Sentence – Attempt to possess commercial quantity of methylamphetamine
Legislation Cited:	Commonwealth Crimes Act 1914
Category:	Sentence
Parties:	Commonwealth DPP – Crown Senitiki Maraivalu - Offender
Representation:	Ms New for Crown Ms Kluss for Offender
File Number(s):	2019/274388

sentence

FACTS

1. This case for sentence arises from the contents of a package which arrived in Australia from Laos in July 2019. The package was addressed to a Michael Tama at a café in Wetherill Park and was said to contain coffee. On 21 July 2019 the package was screened by Australian Border Force officers and as a result it was passed on to New South Wales Police.

2. Once the package was deconstructed it was found to contain 20 half-kilo bags labelled, "Dao Coffee beans". On further examination, each of the bags was found to contain a clear heat-sealed package of methamphetamine. In total, the gross weight of methamphetamine was 10.16 kilograms which ranged in purity from between about 77 and 80.5%. The pure weight of methamphetamine was calculated to be 7.17 kilograms.

3. Inquiries by police determined that the addressee, Mr Tama, and the café named on the package were not involved in the importation. Police prepared substitute bags containing an inert substance after which the package was reconstructed with the intention of detecting the persons associated with the importation and subsequently the package was delivered to an Australia Post office at Wetherill Park.

4. Before that, however, and in fact between 22 and 26 July 2019, six telephone calls had been made to the Australia Post customer service centre and each of those calls was recorded. The first three of the calls were made from a telephone number ending in 661, a number which around that time was being used by Edwin Joseph Hae. In those phone calls the caller identified himself as Michael Tama and provided details including the tracking number for the package.

5. Also, on 25 July 2019 a telephone number ending in 446 made a call to the Australia Post call centre. It was after this, and in fact on 13 July 2019 that police took the reconstructed package to the Australia Post branch at Wetherill Park. After that, police remained at the branch and monitored the CCTV footage with the intention of observing anyone who attended to collect the package.

6. At about 6.15 in the morning of that day, an SMS text message was sent from this offender to the number ending in 446, to which I have just referred. That number was recorded in the offender's mobile phone directory under the name, "Edd.ddee". The content of the SMS was simply a phone number ending in 614, which was in fact the offender's phone number.

7. About two minutes later, an outgoing telephone call of about two seconds duration was made from the offender's phone to the 446 number which, as I have just noted, was saved in the offender's phone as “Edd.ddee”. At about 1.09pm that day, Edwin Hae made contact via Facebook Messenger with a man named Duane Ulae. The name or handle used by Mr Hae on Facebook Messenger was, "Edi Gee".

8. A number of messages were exchanged between Mr Hae and Mr Ulae, in which Hae asked Ulae to drive him to Wetherill Park, offering to pay him $120 tomorrow for driving him. Hae explained in these messages that, "We're just going to Guildford first, then Wetherill Park, then back home", and said, "Pick me up from mine at, like, 3.15". At about 3.28pm that day, Ulae, who was driving a grey Ford Territory vehicle, picked up Mr Hae from outside his unit block.

9. Shortly after that, they picked up this offender from Guildford Railway Station. At about 4pm the vehicle arrived at an address in Guildford West, where the offender got out of the car and entered some premises before returning to the car about five minutes later. After this the vehicle containing Hae, Ulae and this offender drove to Wetherill Park and stopped about 200 metres from the post office.

10. At about 4.15 that afternoon, Hae walked towards and then passed the post office before sitting at a bus stop. He was using his telephone from time to time. Between about 4.17 and 4.27pm the offender was on the phone to Mr Hae. During this period and, in fact, at about 4.21pm, the offender entered the post office. At the time he had a white ear bud headphone in his left ear.

11. He approached the parcel pick-up window in the post office where he handed to a staff member a proof of age card and two documents. One of the documents was a collection authorisation dated 25 July 2019 which purported to authorise the offender as agent for “Michael Tama”.

12. The other document, which was dated 24 July 2019, purported to be an authority signed by Michael Tama authorising the offender to pick up the parcel on his behalf. That document included the tracking number for the package. Forensic evidence was later recovered from each of these documents, showing that they had previously been handled by Mr Hae. After the package was handed to the offender he exited the post office at about 4.27pm.

13. About two minutes later, at 4.29pm, the offender and Hae had a telephone conversation of about 23 seconds duration and they then returned to the Ford Territory vehicle where the offender placed the package into the boot area. After this, the vehicle containing Ulae, Hae and the offender drove to an address in Guildford where they arrived at about 4.50pm, upon which the offender took the package into the premises.

14. At about 5pm the three men exited those same premises and walked to the Ford Territory vehicle which Ulae drove with Mr Hae in the front passenger seat and the offender in the back seat. Police stopped the vehicle and all three men were placed under arrest. The offender and Hae were each found to be in possession of a mobile phone and an Australian passport.

15. Inside the Ford Territory vehicle, police found the Australia Post collection authorisation showing the offender as the agent for Michael Tama, as well as a letter dated 24 July 2019 purportedly authorising the offender to collect the package. A search by police of the offender's residence at Guildford located the package which had not been opened.

16. The offender voluntarily participated in an interview with police in which he told them, in summary, the following: that a few months ago he had run into Michael Tama who was an old friend and that he saw Tama again last week when Tama asked him if he could pick up a package as he was going away for work. He said that he was given a letter and told to pick up the package on Wednesday or Thursday.

17. The offender said that Edward, which presumably is Edwin or Edi Hae, is the brother of his de facto partner and that it was while he was walking home that he saw Hae and Ulae and it was then that he asked for a lift to the post office. He also told police that his brother in law, that is Mr Hae, was on the phone, presumably while the offender was in post office, and that he did not know why Hae had walked to the post office before he did.

18. He denied contacting anyone while picking up the parcel but said that after collecting it, he had placed the package on the rear seat of the vehicle and they had gone to his home. He told police that this was the first time he had collected mail for Michael Tama and thought it was odd that he would ask him to collect a parcel.

19. The offender told police that he did not know anything about the package but he was going to keep it until Michael Tama called him as he claimed not to have Michael's number. The offender also agreed that the telephone number ending in 614, to which I referred earlier, was in fact his own number. Edwin Hae was also arrested and charged and I am informed is due to face trial later this year.

20. When spoken to by police, Mr Ulae said that he had driven the offender and Mr Hae to the post office and stayed in the car while they went in and came out with a box. Ulae told police that he had received a message from his mate, Edi Hae, asking if he could drive Hae to pick something up but that Hae did not explain what was going on other than saying it was important and urgent.

21. He told police that after picking up the box from the post office and getting back into the car, the offender and Hae were laughing and cheering like they had won lotto or something. He said also that he did not know the offender and that he was taking directions from Hae. I note that Mr Ulae was subsequently released and has not been charged with any offence.

22. Those, in summary, are the agreed facts, rearranged somewhat in form but not as to substance, upon which the offender is to be sentenced.

23. The offender, of course, was charged and is now for sentence on an offence of attempting to possess a border controlled drug, namely methamphetamine, being not less than the commercial quantity. The maximum penalty for that offence is one of life imprisonment. The maximum penalty, of course, is a guidepost in the sentencing exercise to which I have had regard.

24. The offender was committed for trial on 12 June 2020, at that stage maintaining a plea of not guilty and was arraigned on a joint indictment with Edwin Hae on 26 June 2020 when a trial date in July 2021 was set. However, in early September 2020 he advised the Crown of an intention to plead guilty and on 26 November 20 20 he did, in fact, plead guilty to the current offence. He is, as the Crown accepts, entitled, therefore, to a discount on account of that plea of guilty, the quantity of which I will address later in these remarks.

OBJECTIVE SERIOUSNESS   

25. The objective seriousness of this offence is marked, firstly, by the maximum penalty which, being life imprisonment, sits at the top of the range of criminal offences. As I said, that maximum is, of course, a guide or yardstick in the sentencing exercise that I must perform.

26. Drug offences have been treated very seriously by the Courts for many years and it has been said that involvement in illegal drug trafficking at any level will in most cases require very significant penalties. This applies even where a person is low in the hierarchy, as this offender is, because without people like him, who are prepared to carry out important tasks, drug trafficking could not take place.

27. In determining the objective seriousness of the offence and the overall sentencing outcome, I must apply the provisions of Pt 1B of the Commonwealth Crimes Act 1914, and in particular s 16A of that Act. I have already set out the nature and circumstances of the offence in describing the facts. As to the offender's role in the offence, clearly his was a limited role where he was tasked with the risky job of actually collecting the package from the post office and taking it to his home.

28. In collecting the package, he was, however, clearly aware, given that he had been given false documentation which purported to authorise him to collect the package on behalf of the supposed addressee, that he was participating in a criminal enterprise. There is no doubt that the overall enterprise was an organised one in the sense that someone had arranged for the package of concealed drugs to be sent to Australia, someone had arranged for the preparation of the false documents and, presumably, someone had paid for or was going to pay for the drugs which would have been of considerable value.

29. However, it is important that the offender be sentenced only for what he actually did. In this regard, I am limited by the facts placed before me which does not permit me to determine all of the actions carried out by every person associated with the offence, including those of the offender. However, I am satisfied beyond reasonable doubt of the following things:

1. That the offender was an associate of Edwin or Edi Hae who was, in fact the brother of the offender's de facto partner;

2. That inquiries were made with Australia Post by another person, which I assume was Mr Hae, over several days before the delivery by means of a phone number associated with Mr Hae;

3. That on 30 July 2019 there was telephone contact between the offender and Mr Hae which related to arrangements to collect the package;

4. That on the afternoon of that day the offender was collected from Guildford Railway Station in a car and with a driver arranged by Mr Hae after which they drove to Wetherill Park;

5. That while the offender entered the post office Mr Hae acted in a countersurveillance role, effectively as a lookout for police interest;

6. That while in the post office the offender was in phone communication with Mr Hae, this being part of the countersurveillance in which they were both involved;

7. That inside the post office the offender handed over the two false documents with the intention that they would be accepted as an authority by the named consignee for him to collect the package;

8. That after this the offender communicated again by phone with Mr Hae after which they both returned to the vehicle in which they had arrived, where the offender placed the package into the boot;

9. That the men then drove to the offender’s home, where the offender removed the package from the boot and carried it into his home, accompanied by the other two men.

10. That the three men then left the premises about ten minutes later and were arrested, while the package remained unopened in the offender’s premises.

30. Based on these matters, I am satisfied that the offender performed a limited but important role in acting as the authorised agent to collect the package, in taking delivery of it, and in taking it for storage at his home. While I am satisfied that the offender knew that the documents he presented to the post office staff member were false, I am not satisfied beyond reasonable doubt that he was responsible for preparing those documents. It seems to me more likely that Mr Hae was responsible, and I note that the facts indicate that the documents were linked to Mr Hae by some forensic evidence.

31. While I am not able to determine the entirety of the offender’s role, what he did involved something more than being a mere courier. He had clearly had discussions with Mr Hae before going to the post office. He clearly knew that he was falsely representing himself as the agent for Mr Tama in order to receive the package. And he was also entrusted to store the package at his house, at least temporarily. While there is no suggestion that the offender was a principal or organiser in the offence, his role was an essential one.

32. There is no evidence of what benefit he was to receive for his part, but I am satisfied that he carried out his role with the expectation that he would receive some type of financial gain. His plea of guilty clearly acknowledges that he was at least reckless as to there being a prohibited drug in the package, and I note that the plea of guilty was accepted on the basis of recklessness. This was a single episode of offending, and it did not involve a course of conduct.

33. As the drugs were intercepted by police, there was no harm to any particular victim, although the potential for harm was large, given the quantity of methamphetamine involved, and the harm that it causes, as witnessed regularly in cases that come before this Court. In saying this, I am not suggesting that the quantity of drugs is the most important matter, but it is nonetheless of significant relevance. In this matter, as the Crown concedes, the offender did not know the precise quantity of drug.

34. Given the limited period of time in which the offender was involved, the fact that his plea of guilty is based on recklessness and not actual knowledge, and balancing this against the significant quantity of pure methamphetamine, being nearly ten times the commercial quantity of 750 grams, as well as other matters I have referred to, I assess the objective seriousness as being towards the lower range, but not in the lowest range for this type of offence.

35. In sentencing for offences of this kind, as has been made clear for many years, deterrence of this offender and of others must be given significant weight.

SUBJECTIVE MATTERS

36. I turn then to consider the offender’s subjective case. The offender’s background and circumstances have been placed before the Court by means of a psychological report and some character references. He is now 31 years old and was born in Australia of Fijian background. He is an only child, and his parents separated, apparently, when he was about three. His mother moved to the USA while he remained with his father in Australia. His mother died when he was only 12, and the psychological report suggests that this, and his inability to attend her funeral in Fiji, remains an ongoing cause of distress to the offender.

37. The offender describes his father as having been an alcoholic, and that there was a lot of fighting and some domestic violence between his father and stepmother, when the offender was growing up. The offender has been in two major relationships and has four children to the first. But it seems he has had little contact with those children in recent times, which he regrets and wants to correct on his release.

38. He is currently in a de facto relationship of about six years standing, which was, before his arrest, under some strain due to the offender’s excessive alcohol use. The offender has a reasonably consistent work history, mostly as a labourer and forklift driver. However, since being in custody, he has worked as a barber, and hopes to train in this area of work on his release, and open his own business. He told the psychologist that he has never taken drugs, and accepts that his actions in attempting to obtain possession of the methamphetamine could have caused significant harm on the streets.

39. The psychologist expressed the opinion in his report that at the time of the offence, the offender was affected by a major depressive disorder, a generalised anxiety disorder, and an alcohol use disorder, and that there was a causal connection between these and the offence, in the sense that they impacted on his functioning, behaviour and decision making. However, objection was taken to the content of these opinions, based on the fact that the psychologist was not available for cross-examination, and that the offender gave no evidence himself.

40. Ultimately, counsel for the offender appropriately conceded that the offender did not rely on any causal link between the offending and any suggested psychological condition. Nor was it suggested that any psychological condition was such as to reduce the offender’s moral culpability, which in my view, must be regarded as at least moderate. Rather, the contents of the psychological report were relied upon as part of the offender’s general circumstances.

41. I note further, however, that the offender scored in the normal range for depression, anxiety and stress, when asked to rate his present mood state as at March 2021. The report notes that since ceasing alcohol use in prison, he feels better about himself and has a clearer vision about wanting to improve his life and that of his family upon his release.

42. This does not, therefore, appear to be a case where a custodial term will impact on the offender more adversely than it would a person with ongoing psychological conditions of a serious nature. Nonetheless, these recent positive changes in the offender’s attitudes are a matter that I have taken into account in his favour when assessing his prospects of rehabilitation. He is supported by references from his partner of six years, a school teacher friend, and by his former employer, who all describe him in positive terms, stating that the offence is out of character.

36. It is positive that he has these supports, and that his employer is prepared to re-employ him on his release. Each of these people speak of the regret that the offender has expressed for his offence, and his acceptance that he has made a serious mistake.

37. A Sentencing Assessment Report placed before the Court confirms some of the offender’s background and his engagement with employment opportunities since being in custody. However, it notes that the offender tended to minimise his involvement in the offence and attributed most of the blame to a friend he said he was assisting. I assume that is a reference to Mr Hae. He told the author of the Sentencing Assessment Report that alcohol had impaired his decision-making, and that he wished to address his alcohol use in the future. He did, however, express some regret for his offence, and an understanding of its potential impact on the community.

38. The report assesses him as being a medium-low risk of re-offence, an assessment that I accept. While the psychological report notes that the offender fully accepted responsibility for his offence, the weight that I can give to this is tempered by his comments to a different effect in the Sentencing Assessment Report, and also by the fact that there is no evidence on oath from the offender.

39. On balance, I find that the offender has expressed some limited remorse. He has a limited criminal history, and no prior history for drug offences. In regard to this and the medium-low risk assessment in the Sentencing Assessment Report, I think his prospects of rehabilitation are reasonable, but will largely depend on whether he can maintain control of his use of alcohol and remain focused on work and family. As already noted, the offender indicated an intention to plead guilty a few months after being committed for trial, but a considerable time - about ten months - before his scheduled trial date.

40. This plea of guilty can be taken into account in either or both of two ways. Firstly, for its utilitarian value, and I do accept that the plea of guilty was of some utilitarian value, and I intend to allow a discount of 15% on this account. Secondly, the plea of guilty can be taken into account in a subjective sense, as indicating a willingness to facilitate the course of justice and as going to show remorse. It seems to me that the plea of guilty is, to some degree, an indicator of these sorts of considerations, because while the Crown case was reasonably strong, in my opinion, a guilty verdict would not necessarily have been inevitable if the matter had proceeded as a defended trial with Mr Hae.

41. I therefore take the plea of guilty into account in this subjective sense, although I have tempered the weight I attach to it against the fact that I have already allowed a 15% discount on account of the utility of the plea of guilty. It is, after all, necessary that, while appropriate pleas of guilty are to be encouraged and rewarded, sentencing discounts should not result in sentences that fail to acknowledge the seriousness of the offence in question.

DETERMINATION

49. I am satisfied that the only appropriate penalty in this matter is one of full-time imprisonment, and no argument to the contrary has been put to me. In determining the sentence, I have had regard to a number of decisions of the Court of Criminal Appeal, including those on a schedule of cases provided by the Crown, as well as cases cited on the offender’s behalf. I have also had regard to sentencing statistics for this type of offence, kept by the Judicial Commission, although subject, of course, to the limitation that must be attached to such statistics.

50. As this is a Commonwealth sentence, there is no requirement for the non-parole period to be of any particular ratio to the head sentence. In setting the non-parole period, however, I have done so in accordance with my assessment of the minimum period that is required in order to meet the requirements of sentencing, in particular, adequate punishment and deterrence, but also having regard to the need to encourage rehabilitation. I have also had regard to this being the offender’s first period in custody, and the importance of his being subject to parole supervision for a considerable period of time upon his release.

51. The sentence I impose is one of full-time custody, and it is as follows. I impose a head sentence of eight years, nine months’ imprisonment. I impose a non-parole period of four years, six months. Each of those will date from 2 September 2019. The head sentence, therefore, will expire on 1 June 2028. The non-parole period will expire on 1 March 2024.

52. Mr Maraivalu, just to explain that, the sentence I have imposed is a full term of eight years, nine months, but a non-parole period of four years, six months. You will be eligible for release on parole on 1 March 2024, but that will be a decision taken by the parole board and will depend upon how you have performed in custody, and other matters. All right? But you will be eligible from that date, 1 March 2024. But after your release to parole, you will be still subject to parole until the head sentence expires on 1 June 2028.

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Decision last updated: 08 June 2021