R v Moradian
[2011] NSWDC 130
•13 July 2011
District Court
New South Wales
Medium Neutral Citation: R v Alen MORADIAN [2011] NSWDC 130 Hearing dates: 21 January 2011, 29 April 2011, 1 July 2011, 8 July 2011 and 13 July 2011 Decision date: 13 July 2011 Jurisdiction: Criminal Before: Judge Haesler SC Decision: Count 1 - Supply commercial quantity offence and Form 1. NPP 6 years with a balance of sentence of 3 years. Form 1 driving matters minimum and automatic disqualification periods of 2 years apply.
Count 2 - Import commercial quantity border controlled drug. NPP 9 years with a balance of sentence of 6 years 4 months.
Total sentence is 16 years 9 months with a NPP of 10 years 5 months.
Catchwords: CRIMINAL - Supply large commercial quantity of border controlled drug - Import commercial quantity of border controlled drug - Knowingly deal in the proceeds of crime - Driving matters - Assistance - Operation Schoale Legislation Cited: Crimes Act 1900 (NSW)
Criminal Code Act 1995 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Road Transport (Drivers Licensing) Act 1998 (NSW)Cases Cited: Nguyen and Pham [2010] NSWCCA 238
De La Rosa [2010] NSWCCA 194
Hili (2010) 85 ALJR 195Category: Sentence Parties: Regina
Alen MoradianRepresentation: Mr P Boulten SC (Offender)
Ms F Gray (Director of Public Prosecutions)
File Number(s): 2008/087392 Publication restriction: Non Publication Order as to identity or anything which may tend to identify the witness Mr T
SENTENCE
Alen Moradian, the offender, stands for sentence having pleaded guilty to between 1 October 2006 and 30 December 2006 importing more than the commercial quantity of the drug cocaine pursuant to s 307.1(1) of the Criminal Code Act 1995 (Cth) and supplying a large commercial quantity of the imported drug cocaine between 1 October 2006 and 25 July 2007 pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).
The charges result from a major New South Wales Police and Crime Commission investigation into cocaine importation, drug supply and illicit cash and firearm possession known as Operation Schoale.
For both Federal and State drug offences there are structural sentencing regimes with maximum penalties denoted by the quantity of drug imported or supplied. The maximum penalty for importing more than two kilograms of pure cocaine is life imprisonment and/or a substantial fine. The maximum penalty for supplying more than one kilogram of cocaine is life imprisonment and/or a substantial fine. There is also a standard non-parole period of fifteen years imprisonment. Those maximum penalties are an important indicator of the seriousness with which the Parliaments, on behalf of the community, view offences such as this.
The offender also asks that in relation to the supply count I take into account on a Form 1 an offence of knowingly deal in the proceeds of crime in the sum of $1,624,475.15 and nine offences pursuant to the Road Transport (Drivers Licensing) Act 1998 (NSW). The driver licensing offences involve four matters of drive while disqualified, two of learner not accompanied by a driver and three of unlicensed for the class of driving. I will take these matters into account.
Agreed facts or facts not in dispute
Marius Rusu and Zolten Mato were also cocaine importers. They are presently serving sentences of twenty-nine years nine months and thirty years three months respectively after being convicted after a jury trial of conspiring to import over two hundred kilograms of cocaine and related offences. Mr T, who worked for an international freight handling business, assisted them. His identity, by operation of law, cannot be revealed. The offender and his partner, who has yet to come to trial, heard of this operation. They hired a private inquiry agent to track Mr T down.
On 27 October 2006 the offender and his partner paid Mr T a visit at his home. The visit so concerned Mr T's wife that she called the police. The two men left before the police arrived leaving $500,000 with Mr T as "a gesture of goodwill". Further meetings took place during which an illicit business proposition was put whereby Mr T would facilitate the importation of cocaine by providing relevant forged documents and the services of the company he worked for. Mr T advised the offender and his partner that the maximum weight of any imported package should be one hundred kilograms, including legitimate goods shipped with it. He then received $3,500 for shipping costs and, later, $1 million in cash as a fee for his services. The offenders then organised for $1 million AUD to be sent to the United States in part payment for the shipment.
In December 2006 the package arrived in Australia as a shipment labelled "Concrete blades". It followed the same procedure adopted by Mr T, Mato and Rusu with their conspiracy. The package the subject of the shipment had a gross weight of three hundred and sixty-seven kilograms. After the package had cleared Customs Mr T took it to Homebush. The offender met him there and directed him to a townhouse at Newington. There the package was unpacked. The package contained: a pallet, packing material, a quantity of steel concrete-cutting saw blades, and a large quantity of cocaine in sealed plastic blocks with a rearing horse brand. Each block of cocaine weighed about one kilogram. The precise quantity of cocaine imported and its purity is in dispute.
Factual dispute
On 13 February 2007 police executed the search warrant in another unit in Newington occupied by a John Youkhana. He had also occupied the flat at Newington to which Mr T delivered the cocaine. The offender's partner rented both premises and had been seen at both premises. On execution of the warrant police found a packing carton with a label from Mr T's shipping company and fifty concrete-cutting saw blades, weighing ninety-six kilograms in total.
John Youkhana has been sentenced for supplying cocaine and firearms offences uncovered by Operation Schoale. He is presently serving a total sentence of nine years with a non-parole period of six years and nine months.
On 20 December 2006 Mr T purchased one of the blocks of cocaine taken from the larger package. He gave evidence at Mato and Rusu's court proceedings (Exhibit A10(i)-(iv)). He said he was unable to observe the whole unpacking process and thus could not say how much cocaine was actually imported. He said that the two offenders broke his rule about an absolutely one hundred kilogram limit.
Mr T described his role in the delivery and unpacking (Exhibit A10(ii)). In the transcript of 26 May 2010 he said he counted twenty-two to twenty-five blocks similar to the one he purchased being taken into the premises as the first load. He said he saw six to ten blocks included in a second load, and as I read the transcript of 26 May at page 50, a third load and a fourth load were taken into the unit before he left. The box was still being unpacked when he left. He said he saw nothing other than the box, packing, saw blades, pallet and the cocaine blocks.
On 27 May 2010 (Exhibit A1(iii)) Mr T reiterated that he had no idea how much cocaine was in the parcel but said he had estimated there were at least fifty blocks. He said the block he bought weighed about one kilogram. Pallets weigh up to twelve kilograms (Exhibit 9(x)).
Cocaine ranging in purity from sixty-one per cent to eighty-two per cent was seized from direct associates of the offender at the time the search warrants were executed. These associates include John Youkhana and Jason Johnson. Johnson is presently serving a total sentence of five years with a non-parole period of three years and nine months for supplying cocaine and firearms offences uncovered by Operation Schoale. It is reasonable to assume that some of this cocaine came from the December 2006 importation.
The Crown submit that all of the above evidence and evidence relating to the amount of cash money available to the offender and cocaine sold by him establishes that at least two hundred kilograms gross of cocaine was imported. Two hundred kilograms at sixty-one per cent purity would yield an amount of pure cocaine weighing over one hundred and twenty kilograms.
The offender's wife, Natasha Youkhana, is presently facing sentence for her role in matters uncovered in Operation Schoale. These offences include knowingly dealing in the proceeds of crime amounting to over $4 million, some of which was spent on their wedding and their home at Pennant Hills. Her sister, Tanya Youkhana, is also serving a two year sentence for assisting in the hiding of over $2.7 million during the relevant period. Although both women are clearly associated with the offender he is not to be punished for their offences.
The defence concedes that forty kilograms of pure cocaine was imported (Agreed Facts at [43]) but say that the Crown has not met its onus to prove it was more than that amount and certainly has not met its onus to prove that it was over one hundred and twenty kilograms.
When I examine all of the evidence I can comfortably find beyond reasonable doubt that well over 65 one-kilogram packets yielding more than forty kilograms of pure cocaine were imported. The real question is: How much more than forty kilograms of pure cocaine was imported?
In making my findings I rely on the admissions made in the Agreed Facts. I accept that Mr T saw four similar loads being taken into the Newington unit (the first of which contained over 20 one-kilogram blocks) and the fact that there was obviously more cocaine in the parcel to be unpacked when he left. I also have regard to the risk taken by the offender and his partner, a risk that could only be justified if a significant amount of cocaine was imported. I also note the material in the other exhibits about the money expended in preparing for the importation, including $1.5 million to Mr T and $1 million as part payment sent to the USA.
The ledgers found at the offender's home at Pennant Hills on 12 March 2007 indicated an association by him with thirty-seven blocks of cocaine (Exhibit A(viii)). Ms Gray, for the Director of Public Prosecutions, submits they could, on the evidence before me, only be associated with this shipment. As she sets out in her written submissions, if the kilogram packets were retailed at $190,000, two hundred kilograms would wholesale for about $38 million and forty to sixty kilograms would wholesale for "only" $7.5 to $11.4 million. She suggests the $38 million figure is more consistent with the amounts of money expended. She draws my attention to the wholesale price of cocaine in America (Exhibit E) and the vast sums of money available to the offender and his family between December 2006 and his arrest in July of 2007.
On the other hand Mr Boulten SC, for the offender, suggests that as "only" $1 million was sent to the US in part payment and $1.5 million was given to Mr T the lower figure is more indicative. He argues that this is the only evidence of payment and that the sums expended by, or found with, the offender or his family could have other sources, as undoubtedly any expenditures and money received before October 2006 did. A similar subtle argument is made in relation to the ledgers: I can only take them into account if satisfied they relate to this importation.
I must be careful not simply to guess at a quantity. I must make this decision to the required standard on what is supported by the evidence before me. I must caution myself that the witness, Mr T, may have had reasons to downplay his involvement and over-emphasise that of others. A sustained attack on his credibility was mounted in the Mato and Rusu proceedings.
I infer matters of aggravation only if they are the only rational inferences available. For example, I have considered the coincidence of the false order forms being for forty-seven saw blades and the fifty saw blades found at a unit associated with the offender's partner. This indicates that the likely amount of legitimate product weighed close to one hundred kilograms, leaving over two hundred kilograms unaccounted for in packaging or pallets and, thus, inferentially cocaine. There is no reliable evidence about how many saw blades were imported in this shipment.
Mr Boulten stresses that what is "likely" does not meet the high onus placed upon the Crown. I agree, although I remain highly suspicious there were up to two hundred blocks of cocaine imported I am unable to find beyond reasonable doubt that the shipment reached that extremely high amount.
After giving the benefit of the doubt to the offender the evidence before me establishes that more than 65, and up to at least 100, one-kilogram blocks of cocaine mixture were involved in the importation. I base this conclusion on the money expended and available to the offender and his direct associates, the cost of the shipment, the risks involved in over-loading the parcel, the ledgers and that what Mr T saw was only part of the shipment unloaded. This conclusion leads to an estimated pure weight of cocaine of sixty-one per cent (the most favourable figure for the offender) of a minimum of between forty to sixty kilograms of pure cocaine.
Even if the defence figure of forty kilograms of pure cocaine is taken as a minimum imported, this offence is one of considerable objective seriousness. The Agreed Facts at [40] note that the role of the offender is:
"...a middle level manager of the importation enterprise. His role is a significant one in which he facilitated the financial arrangements regarding the importation in addition to taking receipt and unpacking the shipment".
Care must be taken with labels such as "middle manager" but I accept this is an accurate summary of the offender's role, which is set out fully in the Agreed Facts summarised above.
Supply cocaine
The large commercial supply involves the initial sale to Mr T of the one-kilogram packet of cocaine on 20 December 2006 for the discounted price of $90,000 and information derived from drug ledgers showing supplies to a number of persons of between three to five of the one-kilogram blocks of cocaine. The usual wholesale price was $190,000 per kilogram.
The supply to Mr T can be regarded as almost entirely an incident of the importation. The second part of the supply remains a substantial continuation of the serious criminal activity involved in the importation, although it was clearly related to it, given what was imported was supplied.
There was also evidence that a substantial quantity of cash ($760,000), stored in garbage bags, was found in the possession of the accused's wife in a car outside their premises in Pennant Hills on 25 July 2007, the day the accused was arrested. It is relied upon to support the extent of the supply operation.
The Form 1
The Agreed Facts detail how the offender spent some of the profits derived from the importation and the supply charges: purchasing a car, an expensive motor cycle, sports equipment for his home, and staying in expensive hotels. The bulk of the matters dealt with in the Form 1 however relate to the money payable to Mr T for his role in the importation.
The proceeds of crime matter is indicative of the substantial rewards that attract people such as the offender to the illicit drug trade. The need to neutralise the incentive provided by these rewards is one rationale for the maximum penalties and severe sentences generally imposed for supply and importation offences. I am conscious that to use the Form 1 to increase the sentence for the supply offence would involve a significant degree of double-counting as this factor has already been taken into account in my assessment of the objective seriousness of both the supply offence and the importation offence. I also note that, had the matters been charged separately, there would have been total, or almost total, concurrence.
On 27 April 2004 the offender was disqualified from driving for three years. During the period March 2007 to June 2007, while he was under surveillance, the offender was seen to drive when he was not entitled to drive at all. He was charged with nine Road Transport (Drivers Licensing) Act 1998 (NSW) offences. These matters indicate the general disregard for society's laws but so too does the principal offence. Such matters, if dealt with separately in the Local Court, would, because of their number and nature, require custodial sentences.
When taking them into account on the Form 1 I must focus on the sentence for the principal offence but I can, and do, give greater weight to matters relating to personal deterrence and retribution when I formulate that principal sentence. They will also require orders for the offender's disqualification from driving for a substantial period, although that period will be subsumed by the sentences he must serve.
Assistance
After his arrest, the solicitor acting on the offender's behalf contacted the New South Wales Crime Commission and arranged for the surrender of a considerable number of firearms, parts of firearms and ammunition. The weapons surrendered include: a machine gun, submachine guns, a grenade launcher, a grenade, automatic rifles, pistols and a revolver. The details are set out in Exhibits A7, D and 5.
These surrenders took place in dribs and drabs between September 2010 and November 2010. A further series of surrenders took place in early 2011. The solicitor gave evidence that the surrenders took place after he had conferences with the offender at the gaol. These surrenders appear to have been directed by the offender, although the solicitor said in evidence that the offender's wife was also involved as she gave him photographs of some of the weapons. Unknown "Middle Eastern fellows" brought the weapons to the solicitor's office and arrangements were immediately made for their surrender.
The offender wishes his role in the surrenders to be acknowledged and used primarily for his benefit in reduction of his sentences but also for his wife, who faces sentence for serious offences discovered during Operation Schoale.
Section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) gives a court the power to impose a lesser penalty after having regard to the degree to which an offender has assisted in the prevention of other offences. This power is also available pursuant to the common law and is reflected in what is said in s 16 A(2)(h) Crimes Act 1914 (Cth) which provides that a court must take into account the degree to which a person has co-operated with law enforcement agencies in the investigation of the offence or other offences.
It is important to note that the offender did not speak to police at any stage. No information was provided to any authority about who had possession of the weapons before or after the arrest of the offender, nor was any information provided about any criminal activity in relation to how they were obtained, possessed or used. There was no direct assistance or co-operation in the investigation of these or other offences. There may be some indirect assistance if the weapons are traced to others via forensic investigation but, as I am presently advised, this is unlikely. No one, including the offender, should he have had anything to do with these firearms prior to his arrest, can be brought to justice.
The surrender of such a large number of illicitly held firearms and the removal of firearms of this type from the hands of criminals must significantly reduce the risk that they would have been involved in, and used, to commit future crimes. Sergeant Agius, when cross-examined, accepted that at this level the surrender had a substantive and substantial value. This conclusion is supported by what is set out in the reports of Professor Alpers (Exhibit 5). As Exhibit 8 indicates, the Commissioner of Police has stressed that it is the responsibility of all good citizens to "dob in" those who have such firearms and to take advantage of periodic amnesties to surrender them. The offender therefore seeks to have his good citizenship rewarded by a reduction in penalty. A good citizen however would simply "dob in" those with dangerous weapons for the community's benefit and not seek to manipulate a direct reduction in penalty, but this is perhaps asking too much of an offender facing a long sentence who seeks to gain, legitimately, an advantage that the law allows.
There remains a nagging suspicion that, given the amount of secreted money and weapons uncovered during Operation Schoale, the firearms were in the offender's possession prior to his arrest, but that is not a matter I can take into account against the offender as it cannot be established beyond reasonable doubt. However, if he was not in control or possession of them after his arrest the only inference available is that someone else surrendered them on his behalf and the offender chose not to assist police in any further investigation of the serious crime involved in that possession. Again, that is not a matter I can take into account against the offender.
That said, there would have been no surrender had the offender not found himself in need of something to offer to secure a reduction of his sentence. The surrender of a large cache of very dangerous weapons on behalf of the offender remains very useful to the community and deserves appropriate reward, no matter that the offender's motivation was clearly self-interest. The question is: How is the offender to benefit when his role was to arrange for his solicitor to receive a large number of what were potentially very dangerous illicit firearms?
Most of the matters set out in s 23(2) of the Crimes (Sentencing) Procedure Act 1999 (NSW) do not apply here or can be answered negatively in respect of the offender. The assistance was limited as the authorities know nothing about who obtained or had possession of the weapons. There is nothing to indicate the surrender shows any contrition by the offender, in fact the surrender has been orchestrated to ensure that no criminal liability can attach to him. The surrender was not timely, coming first in 2010.
There is no evidence the offender or his family are at any risk because of the assistance he has given. There is no evidence that surrender will mean his time in custody will be served in harsher conditions than those experienced by all prisoners. He may fear that others who know of the surrender may suspect they have been exposed by his actions and want retribution. He may fear the mere fact that he has helped authorities might cause some in gaol to treat him adversely. However, as he has chosen not to speak to police, the risk to himself and others must be assessed as very low.
Initially and provisionally I ordered that the information in relation to the firearms be subject to non-publication orders. In the circumstances I can see no need for such an order in the future. I revoke those orders. The evidence previously the subject of those orders and the material placed in sealed envelopes is now generally available. Such is the number and nature of the weapons that it is in the public interest that there be some recognition, in stark terms, of the benefit to the community by this voluntary surrender. This is not to condone either the crimes committed by the offender or the crimes involved in the possession of the weapons prior to their surrender.
In the circumstances I am prepared to reduce each sentence and the effective total penalty by five per cent to accommodate and reward the assistance given. That is much lower than the figures put to me on the offender's behalf. I must however have regard to the requirement that the lesser penalties that result not be unreasonably disproportionate to the crime committed: s 23(3) Crimes (Sentencing) Procedure Act 1999 (NSW). The reduction in penalty I have allowed is a real and substantial one. Each sentence has been reduced and more than fourteen months has been taken off the total sentence with a corresponding reduction in the time that must be served prior to eligibility for parole.
The offender
The offender was born in Iraq in 1974 and came to Australia as a young man in 1980 (Exhibit 2). His mother gave evidence that the offender and his sister have written letters to me. I have had the benefit of reports and evidence from Mr Watson-Munro, psychologist (Exhibits 1 and 1(a)). In addition, the Crown tendered excerpts from the offender's Justice Health file (Exhibit C) and a report prepared in relation to earlier proceedings of Dr Roberts (Exhibit B17).
The background material indicates a loving family with problems between the offender and his father developing in his teenage years. The offender left home and finished school before his HSC. He has had an intermittent work history. There was an acrimonious marriage break-up but he now has contact with the son of that relationship. That contact is obviously marred by his present custody.
The offender has been in his present relationship with his second wife, Ms Natasha Youkhana, since 2005. They married in 2007. By all accounts, it is a loving and supportive relationship that, in the ordinary course, would be blessed with children: something the offender's present sentence may inhibit.
The offender has suffered injuries from three serious motor vehicle accidents. The Justice Health records show some continuing problems.
Mr Watson-Munro makes a number of claims, including significant substance abuse problems, some suicidal ideation, post-traumatic stress and ongoing psychological problems. He raises the possibility of subtle organic brain injury. None of these conclusions are supported by any sworn evidence from the offender and, in fact, they are contra-indicated by the Justice Health reports and what was said by Dr Roberts in 2003. No problems, other than alcohol abuse, are noted in the Corrective Services or Justice Health records, nor was anything about them contained in the evidence or material received from the offender or his family until the second letter from the offender tendered on 2 July 2011 (Exhibit 4). Again, that second letter was not supported by sworn evidence.
While I am prepared to accept the offender has had problems with alcohol abuse in the past and may have used the cocaine he sold, there is nothing to indicate that drug or alcohol abuse played any role in his offending, nor has it caused any significant problems during his time in custody. Mr Watson-Munro's conclusion merits consideration but his opinions rely on what he was told by the offender and his family. There is no sworn evidence which could allow me to find to the requisite standard that the offender has any thought disorder, nor is there anything to indicate that the sentence should be mitigated because of any recognised mental illness or disability.
I accept that a long period of remand where a person such as the offender faces a significant sentence would cause anyone in that position to feel anxious and depressed. This is an unfortunate incident of a criminal justice system that requires significant penalties to be imposed for offences such as these.
The offender has a criminal record. It in no way operates to increase the sentence. It does however mean that the leniency often given to first offenders cannot be extended here.
These offences occurred after the offender had been granted bail but failed to appear in this Court in 2004 to prosecute an appeal. A Bench Warrant issued. Whilst his conviction was ultimately quashed, his flaunting of the Court's Order and the conditional liberty given to him by the Court is a matter aggravating the sentences I must impose.
All the material before me indicates that during the period of his offending the offender sought to live outside the law, enjoying the substantial material profits and rewards available to those high up in the illicit drug trade. His motive was greed. He showed no insight into the problems that his trade caused the community, nor did he appear to pay any attention to the risks imprisonment and disgrace his conduct would bring to him or his family, particularly his wife and his sister.
The offender has now been in custody since 25 July 2007. His letters to me indicate that the salutary lessons harsh imprisonment and loss of liberty teaches are now being learnt. He expresses a desire to start afresh. This is confirmed by his gaol reports which indicate he is helpful, polite, courteous and compliant and having sound plans for his future (Exhibit 7). In his letter he says that he recognises the impact of his actions on his wife and his wife's family and that he was stupid and selfish. Although not the subject of sworn evidence I am prepared to accept what he said, particularly in his first letter. This letter, his co-operation, evidenced by his guilty plea and his behaviour in custody, reflect a sensible, realistic and practical approach to his present predicament. He is, it appears, at long last taking into account the consequences of his actions.
I accept that, at this level, he has demonstrated some remorse, although there is nothing to indicate he has any real understanding of the impact his crimes had on the general community. I accept that when he serves his sentence, his age and the impact of imprisonment on him and his family will provide sufficient incentive for him to lead a responsible and law-abiding life. He will, however, need assistance to adjust to normal community living and the longer he is supervised in the community the better his chances of success will be.
Assessing criminality - the importation
I must have regard to the maximum penalty that applies to importation of more than two kilograms of pure cocaine. I must assess the criminality of the offender by reference to the nature of the enterprise and his role in it, as proved or agreed. This assessment includes my finding about the size of the importation and the offender's awareness of that size. Here, a very high commercial quantity of the drug with a correspondingly high street value was imported.
The offender played a senior role (characterised as middle level management) in an enterprise that was well planned and of some sophistication. His role was critical to its success. He took a degree of risk, with an expectation of large reward. His motive was personal profit and greed.
I note what occurred in the sentencing of Mato and Rusu (Frearson SC DCJ, unreported DCNSW 3 September 2010). Although no question of direct parity arises, there is a need to consider proportionality with the sentence. Those matters involved multiple importations totalling over two hundred kilograms of cocaine and they went to trial. Judge Frearson characterised their roles as "principals in a sophisticated conspiracy". Here, there was a relatively sophisticated single importation using the same methods as those used by Mato and Rusu but there was a plea of guilty, some measure of co-operation and the Crown have agreed the offender was a middle manager.
So far as is relevant, I must have regard to the pattern of sentencing for life offences. The Court of Criminal Appeal has reasonably set out the relevant principles for assessing the objective seriousness of importation offences and referred to a number of cases to assist judges in the exercise of their sentencing discretion: Nguyen and Pham [2010] NSWCCA 238 at [72] and DPP v De La Rosa [2010] NSWCCA 194. The summaries in De La Rosa are very helpful but I must look to the facts as agreed or found here rather than simply make an attempt to compartmentalise this offender's crime.
In determining what sentence is to be imposed I must have regard to what is set out in s 16A of the Crimes Act 1914 (Cth). Significant weight must also be given to principles relating to general deterrence, although that term is not used in s 16A. Those principles recognise that, given the difficulty of detecting offences such as this and the great social consequences that are attendant on the illicit drug trade, a court is compelled to attempt to neutralise the potential rewards by the risk of certain and severe punishment.
Assessing criminality - the supply offence
I must have regard to the maximum penalty that applies to the supply of more than one kilogram of cocaine. Following any large scale illicit drug importation there is an expectation the drug imported will be supplied, however, here, the offender chose to increase his profits by acting as a wholesaler of the drug. This crime extended the course of criminal conduct by a period of six months. It was a serious example of its type involving large quantities sold for considerable reward. I find it falls squarely in the middle range of objective seriousness for offence of its type.
There are however reasons for departure from the standard non-parole period of fifteen years, although I am still required to have regard to that period as one of the guides to the exercise of my sentencing discretion. The reasons for departure include: the utilitarian value of the plea of guilty, the assistance given, and a finding that special circumstances require at least three years supervision in the community to allow the offender to adjust to normal and lawful life in the community. This is his first gaol sentence and the adjustment on release will not be easy. It is in no-one's interest that he returns to a life of crime.
The supply shared a critical element with the importation as the same cocaine was involved. The overlap in criminality involved means most of the objects of sentencing apply equally to this offence and the importation. Given the way I have structured the sentence the non-parole period for the supply offence has been subsumed by the non-parole period for the Commonwealth offence. I am however obliged to fix separate sentences for each offence and consider relevant New South Wales sentencing principles when fixing the sentence for this offence.
Sentences of appropriate severity
The guilty pleas were entered in the Local Court. They were not early. Although timeliness is a significant factor when making an assessment of utilitarian value it is not the only measure. The Crown concede, fairly, that despite an initial delay there was a considerable degree of co-operation involved in resolving outstanding issues and that much expense and time was ultimately saved. They submit that the guilty plea should attract a twenty-five per cent reduction in the otherwise appropriate penalty as they have considerable utilitarian value and the offender has, by those guilty pleas, assisted the course of justice. I agree.
I accept the offender's time in custody has, and will, deter him from future crimes and that there is no longer a need to protect the community from the offender. He must however be held to account for his crimes, which must be denounced and harm done recognised.
Sentences, however, are not just about an offender. The Court must, particularly in matters such as this, attempt, by the harshness of the sentence, to dissuade the offender and others from seeking the financial rewards available from the illicit drug trade.
I have regard to the maximum penalties, which for both offences is life imprisonment. For the Crimes Act 1900 (NSW) offence I note the standard non-parole period, the matters on the Form 1 and my finding of special circumstances. In particular I look to the nature and circumstances of the offences. There must be some accumulation to reflect that course of conduct, which includes both importation and sale.
The purposes of sentencing apply equally to both offences. It would be wrong to punish the offender twice for elements of matters that are common to both. I must however fix an appropriate sentence and non-parole period for each offence and then consider questions of accumulation and concurrence, as well, of course, as questions of totality.
The factors relevant to the fixing of the term of the sentence are the same as those for the fixing of the non-parole period but the weight given to them may differ. The individual and total non-parole periods must reflect the minimum period in all the circumstances of the offence the offender must spend in custody before being eligible for release. The total non-parole period must also maintain the benefits given in each sentence for the early plea and assistance.
Here, given my findings that rehabilitation is possible, I am not disposed to fix a total non-parole period which, by its length, would induce a feeling of hopelessness and deny any hope of a useful life to the offender after release. I accept that there is some contrition and, perhaps, some belated insight. The subjective matters allow some moderation of the sentences and the non-parole periods. They allow me to have some confidence, if only because the offender is a practical man, that a lengthy parole period (some of which must be supervised) will not be wasted on him and can operate to progress his rehabilitation.
Long sentences have a compounding effect: severity is not simply a product of length, severity increases at a greater rate the longer the sentence lasts. The Courts and the community should never undervalue the impact of a day in gaol, let alone a period of many years.
I regard the importation offence as the most serious of the two offences. Accordingly, I have structured the total sentence taking into account the relevant statutory provisions and sentencing principles for Commonwealth offences: see Hili v The Queen (2010) 85 ALJR 195.
"What then is an adequate punishment or what severity of sentence is appropriate to all the circumstances of the offence?", to use the terms from s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and s 16A(1) of the Crimes Act 1914 (Cth).
Had it not been for the utilitarian value of the guilty pleas and the assistance given I would have imposed sentences of thirteen years imprisonment for the supply offence and twenty-two years for the importation, with a total sentence of twenty-four years. As sentencing should not be a strictly mathematical exercise, there have been some modest adjustments to percentages and dates to the offender's advantage. Could you please stand Mr Moradian.
Sentence
Alen Moradian, in relation to the offence of supplying not less than a large commercial quantity of cocaine you are convicted. Taking into account the matters on the Form 1, I sentence you to a non-parole period of six years, to commence on 25 July 2007 and expire on 24 July 2013. There will be a parole period of three years, to commence on 25 July 2013 and expire on 24 July 2016, a total sentence of nine years.
In relation to the import commercial quantity of border control drugs (cocaine), you are convicted. You are sentenced to a term of imprisonment of fifteen years and four months. Your sentence is to commence on 25 December 2008. I fix a non-parole period of nine years, to expire on 24 December 2017 on which date, subject to s 19AL Crimes Act 1914 (Cth), you are to be released to parole to serve a parole period of six years and four months.
Because driving matters are dealt with on the Form 1, I must make orders for your disqualification. As you were disqualified from driving for three years on 27 April 2004, the 25A matters are "subsequent offences". The minimum and automatic disqualification periods of two years thus apply for those four matters. The disqualifications should date from 25 July 2007. As to whether they become cumulative or concurrent is a matter for the RTA.
I must explain this sentence to you. I have fixed separate sentences for the supply and importation of nine years and fifteen years four months respectively. I have accumulated the importation sentence by a period of one year and five months and adjusted the non-parole period for the importation offence to take account of that accumulation and to preserve the effect of the penalty reductions for your plea and your assistance. I have imposed a total sentence of sixteen years and nine months of which ten years and five months must be served in prison. Subject to s 19AL of the Crimes Act 1914 (Cth) you will be released to parole on 24 December 2017.
Decision last updated: 19 September 2011
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