R v Mostafa Dib

[2020] NSWDC 145

District Court

New South Wales

Medium Neutral Citation:	R v Mostafa Dib [2020] NSWDC 145
Hearing dates:	3 February 2020; 27 April 2020
Decision date:	27 April 2020
Jurisdiction:	Criminal
Before:	Yehia SC DCJ
Decision:	The offender is convicted. Taking into account a combined discount of 30%, I impose a sentence of imprisonment consisting of a non-parole period of 12 years imprisonment commencing on 8 August 2017 and expiring on 7 August 2029, with a balance of term of 6 years 2 months imprisonment, expiring on 7 October 2035.
Catchwords:	CRIME — Drug offences — Commonwealth offences — Conspiracy to import border-controlled drug — commercial quantity of MDMA — relevance of police undercover operation SENTENCING — relevance of COVID-19 pandemic to determination of appropriate sentence — onerous conditions in custody — institutionalisation.
Legislation Cited:	Crimes Act 1914 (Cth), ss 16B, 16E(1), 17A
Cases Cited:	Assafiri v R [2007] NSWCCA 159 Brown v R [2020] VSC 60 DPP (Cth) v Politopoulos [2020] VCC 338 DPP v Morey (a pseudonym) [2020] VCC 320 DPP v Tennison [2020] VCC 343 Hampton v R [2014] NSWCCA 131 Karpinski v R (2011) 32 VR 85 R v David (Court of Criminal Appeal (NSW), 20 April 1995, unrep) R v Niass (Court of Criminal Appeal (NSW), 6 Nov 1988, unrep) R v Renzalla [1997] 2 VR 88 R v Wai Lam Chan; R v Wai Kit Leung (District Court (NSW), 14 May 2019, unrep) Rakielbakhour v DPP [2020] NSWSC 323 Silvano v R (2008) 184 A Crim R 593 Tepania v R [2018] NSWCCA 247 Wong & Leung v The Queen (2001) 207 CLR 584
Texts Cited:	Communicable Diseases Network Australia, ‘CDNA Guidelines for the Prevention, Control and Public Health Management of COVID-19 Outbreaks in Correctional and Detention Facilities in Australia’ (Guideline, 31 March 2020) Corrective Services NSW, ‘CSNSW Response to COVID-19’ (25 March 2020)
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions Mostafa Dib
Representation:	Counsel: L Crowley QC with P McEniery (CDPP) S Buchen SC with G Lewer (Offender) Solicitors: A Payten (CDPP) R Parker (Offender)
File Number(s):	2017/00282598
Publication restriction:	A suppression order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) applies to paragraphs [186], [187] and [188] of this judgment. The order is made on the grounds specified in ss 8(1)(a), (c) and (e) of the Act. A further suppression order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) applies to portions of paragraphs [12], [15], [21] and [43] of this judgment. The order is made on the grounds specified in ss 8(1)(a) and (e) of the Act.

Judgment

1. Mostafa Dib, the offender, is one of a number of offenders to be sentenced by me in relation to criminal activity which came to light as a result of an investigation conducted by Australian Federal Police in 2016. The investigation of these criminal activities, known as Operation Veyda, involved extensive physical and electronic surveillance over a period of more than one year, which included telephone intercepts; listening, optical, tracking and data surveillance devices; and the deployment of an undercover operative known as ‘Zane’.

2. As a result of the operation, a number of individuals were charged with various offences. Some were involved in multiple offences arising from their participation in conspiracies to import illicit substances and/or substantive offences arising from such illegal activity.

3. This offender has pleaded guilty to one count of conspiring with others to import a commercial quantity of a border-controlled drug, namely, MDMA. The quantity of the drug the subject of the conspiracy is 594.43kg of pure MDMA. The offence is contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth) and carries a maximum penalty of life imprisonment.

4. There are a number of co-offenders. Ryan Watsford was sentenced by me on 28 November 2019 in relation to a number of offences, including his participation in this conspiracy. A number of other co-conspirators are yet to be sentenced. Moustafa Ibrahim’s sentence proceedings are listed on 28 April 2020. Mr Ahmad and Mr Fakhreddine’s proceedings are listed for sentence on 6 May 2020.

5. The principle of parity arises in respect of the sentence imposed on Ryan Watsford. I will address this in due course.

6. The offender pleaded guilty at Central Local Court on 18 December 2018 and was committed for sentence. It was a plea of guilty at the first opportunity. I am satisfied that a reduction in sentence by 25% is appropriate to reflect the utilitarian value of the plea. Had the matter proceeded to trial, it would have been very lengthy and would have required the undercover operative to give evidence.

7. In addition, I am satisfied that the offender facilitated the course of justice and is remorseful for his actions. I make this finding for the following reasons: I accept that following the plea of guilty he instructed his representatives to enter into complex negotiations in an effort to settle agreed facts; he cooperated with authorities; and did not oppose extradition.

Facts

8. The circumstances giving rise to the offence are set out in a 29-page Statement of Facts. I do not intend to reproduce the entire document in these sentencing remarks. Instead, I will proceed by summarising the pertinent facts. In the course of submissions, the parties identified a number of areas about which there is dispute. They include:

1. characterisation of the role of the offender in the conspiracy;

2. the duration of the conspiracy;

3. the relevance of uncharged acts;

4. the value attributed to the drugs; and

5. the offender’s motivation for participating in the conspiracy.

9. I will address each of these disputes and set out my findings in the course of summarising the facts upon which I sentence the offender.

10. In 2016, the Australian Federal Police commenced the investigation into the criminal activities of Ryan Watsford, Moustafa Ibrahim and their associates. Integral to this operation was the deployment of an undercover officer who was known as ‘Zane’.

11. The first co-conspirator to enter into communications with Zane was Ryan Watsford. Between June and August 2016, Watsford attended a number of meetings with Zane during which he sought advice on international money laundering methodologies and requested that Zane exchange unlawfully obtained foreign currency.

12. As this relationship progressed, in late 2016 Zane informed Watsford that he had access to a “door”. In this context, a “door” referred to a person or methodology able to facilitate the importation of goods into Australia without them being detected by Australian law enforcement. [Redacted].

13. Watsford introduced Zane to Moustafa Ibrahim on 10 November 2016 for the purpose of purchasing smuggled cigarettes from Zane. In November, there were discussions between the three men in respect of illegally smuggling tobacco. On 15 November 2016, Ibrahim and Watsford had a successful dealing with Zane in respect of the purchase of 200,000 packets of smuggled cigarettes for over $1 million.

14. This offender was not involved in the offences relating to smuggling tobacco into Australia. During these discussions on 14 November 2016, Zane referred to meeting Fares Derbas. Zane and Derbas appear to have discussed the possibility of bringing in other substances from overseas. Towards the end of that conversation, Ibrahim asked Zane whether he wanted Ibrahim to ask “them” if they could organise a container. Ibrahim told Zane: “I’ve got 50 litres in Lebanon and 50 kegs of coke in Lebanon … 50 litres of oil-raw oil. I’ve got 50 kegs sitting there ready to go.” The two men continued to discuss the fee for bringing substances into the country.

15. On 18 November 2016, Ibrahim, Watsford and Zane met. Zane explained that he was looking at using a [redacted] company from the region to disguise the substance.

16. In November 2016, Moustafa Ibrahim and Watsford introduced Zane to this offender and to a man named Jehad Jodeh. They initially discussed arrangements to import 2.1 tonnes of pseudoephedrine from Lebanon. Those discussions stalled due to problems in that country. The circumstances relating to these arrangements are set out in a document marked "Annexure A".

The uncharged acts

17. The offender is not charged with any offence arising from discussions about a planned importation of pseudoephedrine. In the circumstances, he objects to the evidence relating to these discussions on the basis of relevance. The offender submits that the presence of any additional uncharged conduct cannot be used to aggravate the charged conduct. The offender does not assert that he was an unwilling participant. It follows that there is no justification to admit the evidence.

18. The Crown relies upon the evidence of uncharged acts to rebut any assertion that this was an aberration or that the offender was not a willing participant. Secondly, the Crown relies upon the material as background to demonstrate the way in which the discussions evolved from using the “door” for smuggling tobacco to using the “door” to smuggle illicit substances, and ultimately to the proposal the subject of this conspiracy, the importation of MDMA.

19. I admit the evidence in respect of the uncharged acts for the limited purpose of providing background to the present offence. In November, the discussions related to the importation of precursor chemicals from Lebanon and evolved over the following months to discussions relating to the importation of MDMA from the Netherlands. That material demonstrates that the offender was a willing and enthusiastic participant in the current conspiracy. To be clear, I have not used the evidence relating to uncharged acts as an aggravating factor in determining the objective seriousness of the offence for which I have to sentence him.

20. On 18 November 2016, when this offender was first introduced to Zane, a meeting took place during which the offender, Ibrahim and Zane walked away from Watsford and Jodeh to have a private conversation about importing illicit substances from overseas.

21. During that conversation, the offender asked Zane a number of questions, including about what would happen once the illicit substance arrived in Australia and how the substance was to be packed. [Redacted].

22. Zane told the offender that, as long as he had the overseas contacts, importations could take place. The offender indicated that it was easy for him and that he did have the overseas contacts. During the meeting, he used a Blackberry device to communicate with an unknown person/s. Towards the end of the meeting, he leaned over to speak to Zane and asked him whether he packed it himself. He also showed Zane a message that was sent to him on his Blackberry device which stated: “does he pack it himself?” I am satisfied that, on that occasion, the offender was relaying a query asked by an unknown person.

23. On 22 November 2016, Ibrahim and Watsford had another successful dealing with Zane in respect of the purchase of 100,000 packets of smuggled cigarettes. This offender was not involved in that illegal activity.

24. On 27 November 2016, Ibrahim confirmed that the offender was trustworthy. He also confirmed that the offender was keen to import using Zane’s “door” and that Ibrahim would provide him with Zane’s Blackberry handle so that they could communicate directly. Ibrahim asked Zane to keep him informed if he decided to do business with the offender.

25. Between 25 February and 2 March 2017, following the stalled discussions about the importation of pseudoephedrine, the offender and Zane turned their discussions to importing large amounts of MDMA and cocaine from the Netherlands.

Duration of the conspiracy

26. Although the offender had been introduced to Zane in November 2016 and there had been discussions about the possibility of importing pseudoephedrine, the offender is not charged with any offence relating to those discussions. I am satisfied that the conspiracy to import MDMA from the Netherlands commenced on about 25 February 2017 and continued to August 2017. I therefore proceed to sentence the offender on the basis that the duration of the conspiracy to import MDMA was about six months.

27. The evidence establishes that there were essentially two groups involved in this conspiracy. The Australian group included Zane, Ibrahim and Watsford. The overseas group consisted of Arif and his associates, Ahmad and Fakhreddine. The offender forwarded to Zane Blackberry messages which contained chains of communication that Arif had sent to Fakhreddine, which were forwarded to Ahmad and then forwarded to him. The messages contained information from Arif about the respective prices of cocaine and MDMA. The initial price quoted for a kilogram of MDMA was €4000. Arif also communicated that a deposit would be required to start cooking the MDMA.

28. Thereafter, the offender communicated with Zane, enquiring as to how much MDMA he wanted and reassuring Zane that he would push for the lowest amount in respect of the deposit required. Zane initially indicated that he was looking to purchase between 100kg and 150kg of MDMA. There were also discussions about picking up a sample of the substance from the Netherlands.

29. On 27 February, Zane and the offender exchanged messages during which the offender stated: “Bro 150 kg rake (cocaine) and 150 kg MDMA just waiting to work out what percentage my mate is gonna get…”. That message made reference to both Ibrahim and Watsford receiving a cut.

30. On 2 March 2017, the offender, Zane and Watsford met. During that meeting, it was confirmed that there were still delays regarding the importation from Lebanon and the offender confirmed that he wanted to progress the importation from the Netherlands, including volunteering to go with Zane to pick up the sample if that would make him more comfortable. Later that evening, the offender and Zane exchanged Blackberry messages about the quantity of MDMA that Zane would purchase and the cut that each would get. The offender tried to negotiate 30kg of MDMA out of the 150kg that Zane would purchase, or, alternatively, 40kg if Zane purchased 180kg of MDMA. Zane explained that he needed a full 150kg. The total quantity of MDMA being discussed at that stage was 180kg of MDMA. These Blackberry messages are set out at pages 7 and 8 of the Statement of Facts.

31. On 13 March 2017, the offender forwarded to Zane a Blackberry message chain in which Arif told Fakhreddine, who forwarded the message onto Ahmad, that the sample was ready and was “86% direct from kitchen”.

32. On 14 March, a number of meetings and communications took place. At 11:03AM, Ibrahim, Watsford and Jodeh attended a cafe at Rose Bay, at which time Jodeh gave Ibrahim a bag containing $25,000 cash on behalf of the offender, a contribution to the costs of the operation.

33. The money was then passed on to Zane at a subsequent meeting that morning. Ibrahim told Zane that the offender was not going to accompany him to the Netherlands because of concerns over increased law enforcement scrutiny. Ibrahim complained that they were not getting a bigger commission for the importation given they were doing more work and all the running around.

34. During this conversation, Zane and Ibrahim discussed plans for a future importation and making more money from it. Ibrahim told Zane that the offender was talking about how much money they would make from the "next one". Ibrahim proposed to form his own connections overseas in order to maximise their profit and charge a commission.

35. At 1:24PM on 14 March, Ibrahim sent a message to Zane telling him that he would be seeing the offender and asked Zane what he wanted to tell the offender. Zane responded at 1:33PM telling Ibrahim that he requested the details of the packaging for the cover load, the size, whether they would be delivered at the same time, where it would be collected from, and who Zane was meeting.

36. At 3:30PM on the same day, Zane met Ibrahim at the Fish Market. Ibrahim told Zane that the offender had advised that the suppliers wanted the money to be exchanged here rather than overseas, and had discussed Zane leaving the money with Ibrahim to hold. Once Zane was happy, Ibrahim would hand over the money. The offender then arrived at the meeting and discussed the importation with Zane and Ibrahim.

37. He explained that his overseas contacts would not be packaging the substance. The men agreed that this was the better course so as to avoid the risk of the overseas contacts “piggy backing the container”.

38. They discussed how the money handover would take place in Sydney once Zane was happy with the product. At that meeting, the offender confirmed that the load would be 200kg of MDMA. 180kg was for Zane (which included 30kg for the offender, Ibrahim and Watsford). They discussed the cost of the MDMA and Ibrahim told the offender: “if he can get more, let me know … Cause if we’re gonna do it, fuck it, might as well put more on”.

39. The offender responded: “yeah I may as well may as well, they’re gonna put more too. I’ll throw it on with you too man”. The offender then showed Zane a message sent from Ahmad confirming that the 1kg sample was ready for collection.

40. Between 18 and 22 March 2017, the offender exchanged Blackberry messages with Zane and Ibrahim about when and where they would meet the syndicate’s contacts in the Netherlands to collect the sample of MDMA. The offender then forwarded to Zane a Blackberry message chain originating from Arif via Fakhreddine and Ahmad which had the precise time and date for the meeting.

41. On 22 March, Zane, Ibrahim and another undercover operative purporting to be Zane’s uncle met in Amsterdam. They attended a meeting with two unknown persons and collected the 1kg sample of MDMA. Zane and Ibrahim discussed a separate proposed tobacco importation they were planning. They discussed the fact that Zane would need the money for the importation from Ibrahim but it could be paid by Ibrahim providing the money on behalf of Zane for his share of the MDMA.

42. On the same day, Ibrahim suggested that they offer Zane’s “door” service to another associate, Stephen Elmir, a person who could source drugs from all over the world, and charge him 20% of the total amounts to be imported. Ibrahim provided Elmir’s Blackberry handle to Zane for that purpose. This offender had no involvement in the offending relating to Elmir.

43. Between 23 March and 4 April 2017, the offender, Zane and Ibrahim exchanged Blackberry messages in which the offender asked Zane whether he was satisfied with the sample. The offender also asked Zane to make sure all the paperwork and cover load was ready and asked what else needed to be done overseas. The three men discussed, in Blackberry messages, how the drugs would be packed [redacted].

44. During some of these exchanges, the offender forwarded Zane’s questions to Arif via Fakhreddine and Ahmad. Arif explained that the product could be packed whichever way Zane wanted. Arif also told Zane that if he wanted larger amounts he could facilitate that. These communications from Arif were sent through a number of individuals, including the offender, who forwarded them on to Zane. The offender told Zane that he should tell him how he wanted the product packed and that the offender would then convey those instructions to his associates. The offender provided updates to Zane, as conveyed to him by the syndicate, about the quantities of the drugs, which fluctuated over time.

45. The offender and Zane discussed how the drugs and money would be exchanged and they agreed that Ibrahim would hold the money in Australia on the day of delivery. Zane would check the drugs and, once satisfied, he would message Ibrahim who would then hand over the money.

46. Between 3 and 4 April, the offender, Ibrahim and Zane exchanged numerous tense Blackberry messages about a possible deposit that Arif’s syndicate now wanted with an increase in the cost of the MDMA from €4000 to €4500 per kilogram. During the exchange, Ibrahim accidentally sent the offender a message meant for Zane about the drugs being cheaper with Elmir then with the offender. Ibrahim said that Elmir was a better contact.

26. It appears that receiving this accidental communication prompted the offender to communicate to Zane the following message: “I’m going now to see them. You will get 4000”. This message was intended to reassure Zane that he would get the product at the initial price of €4000 per kilogram.

27. At 8:50 on 4 April, the offender forwarded a Blackberry chain originating from Fakhreddine via Ahmad confirming that no deposit was needed. The offender also confirmed the price of the MDMA would be €4000 per kilogram.

28. Between 6 and 12 April, a number of discussions and communications took place in respect of the importation. Among these arrangements, the offender liaised via Blackberry between Zane on the one hand and Arif (via Ahmad and Fakhreddine) on the other regarding the exchange rate and total price for the importation. Arif stated that the price was €4500 per kilogram plus a 10% transfer fee. The offender confirmed that he and Ahmad were covering the extra €500 per kilogram sought by Arif and that Zane would only pay the initially quoted price of €4000 per kilogram. The $350,000 door fee would be split, with Ibrahim paying $100,000, Zane paying $125,000 and Dib and Ahmad splitting the remaining $125,000.

29. Ibrahim and Zane exchanged Blackberry messages during which Ibrahim confirmed that he would have $1.8 million ready for the purchase of the smuggled cigarettes but withhold $1,120,000 to be paid to the offender (for the importation of MDMA) and also $240,000 to be paid to Elmir for a separate transaction relating to 50kg of cocaine. This offender was not involved in the cocaine transaction.

30. Between 12 April and 3 May 2017, the offender continued to liaise via Blackberry with Zane on the one hand and Arif (through Ahmad and Fakhreddine) on the other, about the logistics of the importation, confirming with them that the MDMA should be packed in 25kg heat-sealed bags and that Zane would be in the Netherlands on about 20 May 2017.

31. On 14 May 2017, the offender advised Zane and Ibrahim in a group Blackberry message that he had sourced someone to purchase 50kg of MDMA which was needed for Arif’s syndicate to put on an extra 350kg of MDMA. The new load was to contain 800kg of MDMA and 50kg of cocaine.

32. The offender continued to liaise with each group about the logistics of the handover. Arif confirmed that 800kg was available and that the money was required on 21 May.

33. There were, however, last-minute changes to the proposed handover day because Arif was concerned about doing the handover on a Sunday in the Netherlands.

34. These last-minute disruptions appear to have motivated Ibrahim to send a message to Zane on the afternoon of 20 May 2017 informing him that he no longer wished to be involved in the drug importation but only the tobacco importations and that Watsford would take over. That change of heart was short-lived. About one hour, later Ibrahim sent a further Blackberry message to Zane in which he apologised for his earlier message, explaining that he just “freaked out for a moment” and that he still wanted to be involved in the importation and confirmed he would take care of the cash handover the following day.

35. Later that evening, the offender and Zane exchanged Blackberry messages in which they expressed frustration at the changes proposed to the handover. The offender then forwarded a number of Blackberry message chains in which Arif confirmed that the handover would take place on Sunday 21 May. It was confirmed that, while the 800kg of MDMA was ready, there would be no cocaine.

36. However on 21 May, the day the handover of the drugs was supposed to occur, Arif’s syndicate decided not to proceed because they believed that it would not be safe given increased law enforcement. Between 23 and 25 May 2017, the offender forwarded to Zane and Ibrahim a chain of Blackberry messages between Arif and Fakhreddine discussing the details of the handover which was now to take place on 26 May 2017.

37. About an hour before the handover time on 26 May, the offender, Ahmad and Fakhreddine met in Punchbowl. Shortly after, they met Ibrahim and proceeded to his nephew’s place in Dover Heights.

38. Meanwhile, in the Netherlands, Zane and the undercover operative purporting to be his uncle attended the meeting address provided by a person named Saki. They collected 34 plane boxes containing MDMA. Zane sent a Blackberry message to Ibrahim advising that he was unloading the product and was happy for Ibrahim to hand over the money. Ibrahim then handed over $1,120,000 cash to the offender and Ahmad. Ahmad counted the money and they then took the money to Fakhreddine’s car, driving away.

39. On 26 May, following the exchange of the MDMA and the money, the shipment of MDMA was seized by the Netherlands police. On 7 June 2017, Ibrahim and Zane discussed how the drugs would be collected once they arrived in Australia. On 9 June the offender sent a drug share breakdown. The following is the breakdown of each person’s interest in the importation:

RECIPIENT	AMOUNT (KG)
Ibrahim	30 (3.75%) + 20 door fee (2.5%)
Unknown Person	50 (6.25%)
Dib/Ahmad	74 (9.25%) to be shared between them.
Arif/ Fakhreddine	456 (57%) this is not meant to indicate that these 2 individuals were to share the 456 kg equally.
Zane	150 (18.75%) + 20 door fee (2.5%)
Total	800 kg of impure MDMA

61. On 15 June, Ibrahim and Zane met in Rose Bay. They discussed the progress of the importation and potential future importations with Elmir, Arif and other associates. That evening, Ibrahim introduced Zane via Blackberry to Arif for the purpose of continuing discussions about possible future importations. It appears that on that date Ibrahim had put Zane and Arif in direct contact, doing away with the need for middlemen.

62. Zane and Arif arranged to meet in person in Dubai. Zane also arranged to meet Saki in person.

63. On 20 June 2017, he met with Saki in Dubai and they discussed possible future importations. On 21 June, Zane met with Saki and Arif. They discussed a number of matters including the delay in organising the importation given the “number of middlemen involved”. Arif confirmed that he would give Zane the details of exactly how the delivery should be completed once the drugs arrived in Australia.

64. On 4 July 2017, Ibrahim and Arif communicated directly via Blackberry messages. On 20 July 2017, the offender forwarded a Blackberry chain of messages between Fakhreddine and Ahmad setting out the revised breakdown.

65. In late July, arrangements were discussed about meeting in Dubai.

66. On 4 August 2017, Ibrahim sent a Blackberry message to Zane asking when the drugs were due to land in Australia. On 6 August, Zane sent a Blackberry message to Ibrahim advising that he was delayed in arriving in Dubai but would be there the next day. He also advised that he was organising a yacht for all of them.

67. On 7 August 2017, Zane picked up the offender, Ibrahim, Elmir, and another man, taking them to the Dubai Marina. Upon their return from their yachting trip, the men were arrested by members of the Dubai Police Force.

68. Between 8 August and 17 September, the offender was held in the custody of the authorities in the United Arab Emirates. The Australian Consulate was advised of his arrest on the same day, however, local police said they had no record of his arrest. No consular staff or legal practitioners were given access to the offender until 13 August, six days after his arrest, despite attempts to do so. The offender was thereafter visited by consular staff and medical practitioners. He reported that he had been tortured including:

1. Being tasered by police approximately 10 times when he was initially arrested even though he was cooperative and was restrained. The injury sustained from the tasering was shown to consular officers when they attended upon the offender on 21 August;

2. His right shoulder had “popped out” as a result of mistreatment and rough handling by the Dubai authorities, resulting in pain and numbness in his hands; and

3. The offender was also denied legal assistance during his interviews and was required to sign a document in Arabic which he did not understand and was not given a copy of.

69. The 34 boxes Zane collected contained a gross weight of 797.08kg. The purity of the MDMA seized ranged between 71% and 71.1%. In terms of pure weight, the offender and Ahmad were each to receive between 26.17kg and 28.79kg. The average pure weight of the overall load was 594.43kg.

70. In 2017 in New South Wales, the wholesale value of impure MDMA was between $34,000 and $44,000 per kilogram; that is, a total value of between $29,491,960 and just over $35 million. The street value of the 797.08kg of impure MDMA was between approximately $79.7 million and $398.5 million based on the price of $100–$500 per gram. The average purity of MDMA seized in New South Wales in 2017 was 52%.

Value attributed to the drug

71. Mr Buchen SC, on behalf of the offender, submits that the street value of the drug is not relevant because there is no evidence that the offender was going to engage in street dealing as opposed to dealing on a wholesale basis. I am urged to find that the wholesale value was $40,000 per kilogram, although it is conceded that the difference in position does not necessarily bear on the assessment of seriousness and the offender’s culpability in a meaningful way.

72. The Crown submits that the street value has indirect relevance because it demonstrates the very substantial value of the drugs had they been sold at street level, although the Crown concedes that there is no evidence that the offender himself was going to be involved in street-level dealing.

73. I proceed to sentence the offender on the basis that his share of the impure MDMA was in the order of 37kg worth about $40,000 per kilogram, namely, a total wholesale value of $1,476,000. In terms of pure weight, he was to receive between 26.17kg and 28.79kg of the MDMA.

74. Proceeding on the basis that the offender’s share was a quantity of impure MDMA in the order of 37kg, he stood to gain some 4.6% of the total importation. On the material before me, the offender and Ahmad were to receive the smallest percentage of the product. Arif and Fakhreddine were to receive 57% of the product, although I am not satisfied that Fakhreddine stood to gain an equal share. I cannot come to any finding on the evidence in these proceedings as to Mr Fakhreddine’s share. Zane was to receive 21.25% of the product and Ibrahim 6.25%. An unknown person was to receive a further 6.25%.

Objective Seriousness

75. The maximum penalty of life imprisonment serves as a yardstick and indicates that this is an objectively very serious offence. I am required to consider factors such as the conspiratorial agreement, the overt acts in furtherance of the conspiracy and the role of the offender. In assessing the objective seriousness of the conspiracy, I am required to assess the nature and scope of the conspiracy and determine the level of its criminality. I must also consider the offender’s role and physical acts which are relevant to the assessment of his criminality, although not the starting point for such an offence.

76. The quantity of MDMA the subject of the conspiracy was very substantial. Although not a chief or determinative factor, the weight of the drug remains a relevant factor to which I must have regard in determining the seriousness of the offence: Wong & Leung v The Queen (2001) 207 CLR 584.

77. The value of the drug is also a relevant factor. In this case, the offender’s share was approximately 37kg of impure MDMA at a wholesale value of approximately $1,476,000. True it is he had invested a sum of money to facilitate the operation; however, he stood to obtain a significant financial benefit which is an aggravating factor.

Motivation

78. While it is not disputed that he participated in the conspiracy for financial reward, there is an issue as to the use to which the offender was to put his profits.

79. In sentencing for an offence (whether or not a standard non-parole period offence), a court is to make an assessment of the objective gravity of the offence, applying general law principles so that all factors which bear upon the seriousness of the offence are taken into account. Such factors include motive: Tepania v R [2018] NSWCCA 247 at [112].

80. The offender’s evidence, as contained in his affidavit, asserts that he participated in the conspiracy with a view to obtaining a financial benefit. He was motivated primarily by a desire to pay off debts to his family members, money that they had expended on his legal fees over the years.

81. Having consulted with his solicitor, the offender was informed that his family had spent approximately $797,000 for his legal proceedings over the years leading up to his release in February 2016. In order to properly understand the extent of that expenditure, it is necessary to set out briefly the history of his legal proceedings.

82. The affidavit of Ruth Parker, solicitor, sets out that chronology. She has represented the offender since 2008 when he was seeking parole having been sentenced to terms of imprisonment for manslaughter and drug supply committed when he was a juvenile. The offender was arrested for the murders of Anita Vrzina and Edward Lee and the wounding of Ahmad Banat in November 2000. He pleaded guilty to the manslaughter of Edward Lee and was sentenced, in February 2003, to 10 years imprisonment with a non-parole period of 5 years imprisonment.

83. In September 2003, he stood trial for the murder of Anita Vrzina. He always maintained his innocence in respect of that allegation. The trial aborted on 19 September 2003. On 20 September 2003, a second trial commenced but was also aborted due to prejudicial reporting.

84. In February 2004, the offender was sentenced to a term of 6 years imprisonment with a non-parole period of 4 years imprisonment for drug-related offences. In July 2004, the third proposed trial for the murder charge was vacated on the Crown’s application. The fourth proposed trial was vacated in February 2005, once again on the Crown’s application. In May 2006, the manslaughter non-parole period expired. The offender’s application for parole in February 2008 was refused.

85. In March 2008, the third murder trial was fixed to begin in October 2008. In the meantime, further parole hearings were conducted in April and July 2008. On each occasion, parole was refused.

86. In October 2008, the murder prosecution was “no billed” and the offender immediately renewed his application for parole. On 29 January 2009, his application for parole was refused. On 11 March 2009, a further hearing of the Parole Authority was convened. It appears that information was received from New South Wales Police, the content of which was not disclosed to the offender. Parole was once again refused on that occasion. The decision of the Parole Authority on that occasion was quashed and the matter referred back to the Authority to be dealt with according to law.

87. On 24 July 2009, parole was granted and, on 14 August 2009, the offender was released on parole. The parole period expired on 26 May 2011. In December 2011, proceedings were once again commenced against him for the murder of Anita Vrzina. It appears that these proceedings were commenced by way of an ex officio indictment. This was the fourth time that he had been indicted in respect of that matter. The murder trial commenced in June 2012. The offender was found guilty in July 2012 and entered into custody on 9 July 2012.

88. He lodged an appeal which was heard in September 2015. On 15 February 2016 the appeal was upheld and verdict of acquittal entered. He was released from custody.

89. The offender’s family paid his legal fees for all of these matters. Ms Parker had been engaged to act on behalf of the offender since 2008. Having reviewed all of the archived files and the trust statements associated with them, she estimates that the offender’s family has paid some $797,000 in legal fees with respect to the proceedings relating to the allegation of murder, including the appeal proceedings, and his parole proceedings. In addition to these costs, the family have paid directly for expert reports. This figure does not include the legal fees paid with respect to the aborted murdered trials and other unrelated proceedings.

90. Neither the offender nor Ms Parker were required for cross-examination. I accept that the offender’s family paid the legal expenses as set out in Ms Parker’s affidavit. Although the offender’s parents never asked him to repay the money, he was acutely aware that his father, who was approaching retirement and should have had savings and paid his house off, was encumbered with a large mortgage having assisted his son with his legal fees. He was also aware that his brothers had contributed to those payments from business earnings and re-mortgaging their properties.

91. The Crown submits that, when I have regard to paragraph 11 of Annexure A, I would be satisfied that the offender was motivated, at least in part, to obtain a financial benefit from the MDMA importation to enable him to reinvest for the purpose of pursuing the stalled pseudoephedrine importation from Lebanon.

92. I have some difficulty accepting that submission. In his affidavit, the offender stated: “while I did it for the money, it wasn’t so that I could get rich, I did it to pay off my family’s debts given what my family had done for me”. He was there speaking of the debts incurred by his family paying his legal fees over the years. The extent of legal fees is supported by the evidence of his solicitor, Ms Parker.

93. Neither the offender nor Ms Parker were challenged in respect of this evidence. They were available for cross-examination. They were not cross-examined. There is, in my view, a distinction between being motivated to obtain a financial gain to repay family members for debts incurred by them in an effort to assist the offender by paying his legal fees in respect of serious legal proceedings, and a desire to obtain a monetary benefit so as to reinvest in further serious illegal activity, such as the importation of precursors.

94. I am unable to find to the requisite standard that the offender was motivated by a desire to obtain money so that he could reinvest in further importations of border-controlled drugs or precursors. I proceed to sentence him on the basis that he participated in the conspiracy for financial reward primarily to repay his family members for expenses incurred by them as a result of meeting his legal fees over the years. That that was his motivation does not excuse his conduct. It remains an aggravating factor that he participated in the offence for financial reward. However, the weight to be given to that aggravating factor is less than if he had been motivated by a desire to profit so as to reinvest in further illegal importations.

The nature and scope of the conspiracy and the offender’s role

95. Clearly the conspiratorial agreement between the offender and his co-conspirators was to import a very substantial quantity of border controlled drugs into Australia. The conspiracy ultimately resulted in Zane, with the agreement of the offender and co-conspirators, collecting 797kg of impure MDMA in the Netherlands.

Zane’s role – the police undercover operation

96. I am satisfied that Zane was instrumental in the planned importation from its inception. He performed a key role. He introduced the door. He travelled overseas to collect the sample and the consignment itself. There was never any prospect or risk that the drugs would be imported into Australia or disseminated into the community. The offender urges me to take this into account, although concedes that it does not reduce the objective seriousness of the offence in a substantial way.

97. The Crown submits that this factor carries little weight in assessing objective seriousness. Zane did not encourage or manipulate the offender and co-conspirators. At all times, the offender was a willing and enthusiastic participant in the conspiracy.

96. The weight to be given to the fact that the drugs were not disseminated into the community will vary from case to case. Here, a primary consideration remains that the offender intended that the drugs reach Australia to be disseminated into the community and it was no act of the offender that resulted in this not happening.

97. I take into account Zane’s pivotal role in determining that there was no risk that the drugs would be disseminated into the community. Although the scope of the conspiracy involved an agreement to import a very substantial quantity of MDMA, had these drugs actually reached Australian shores and been disseminated into the community, the risk of harm would have been significant.

98. I am not persuaded that Zane actively encouraged or manipulated the offender or the co-conspirators. At all times, the offender was a willing and enthusiastic participant. It was through no act of the offender's that there was no risk the border-controlled drug would be disseminated into the community. However, in this case, having regard to the very substantial quantity of the subject importation, I am not persuaded that the offence was more serious than a substantive offence because it involved the conspiracy.

99. The offender was part of a professional criminal syndicate with international links. The illegal activity involved planning and organisation, although I am unable to find that the degree of sophistication was more than that inherent in offences of this type, namely, agreements to import substantial quantities of border-controlled drugs.

100. Having regard to the quantity and value of the drug, the nature of the conspiratorial agreement and the methodology used, I am satisfied that the offence is properly characterised as objectively very serious.

101. I turn now to consider the offender’s specific acts and his role in the conspiracy. There is no dispute between the parties as to the offender’s overt acts in furtherance of the conspiracy. The dispute lies in the characterisation of his role. The Crown submits that I would find the offender was a trusted organiser, integral to the formation and development of the conspiracy and trusted with all of the vital information concerning the importation. The Crown further submits that the offender exercised a decision-making role throughout the conspiracy and was a “lynchpin” in the extensive communications and negotiations between members of the syndicate. He was also substantially personally invested in the enterprise and stood to receive a large cut of the drugs to be imported. The Crown submits that the offending should be regarded as objectively very serious.

102. Mr Buchen SC concedes that the offender played a relatively important role in the conspiracy, however, submits that the Crown has overstated matters in arriving at the conclusion that the offending was objectively very serious.

103. The offender is said to have passed messages back and forth between the main groups but could not be said to have played an important or substantial decision-making role. The level of trust placed in the offender had its limits. He was not indispensable. Instead, I am urged to find that the offender was a relatively important intermediary or communication conduit rather than a lynchpin, instrumental or integral to the formation and development of the conspiracy.

104. In assessing the offender’s role, it is necessary to set out, in summary form, the offender’s overt acts in furtherance of the conspiracy:

1. the offender initially suggested the Netherlands as a potential source of illicit drugs and made enquiries with Ahmad about commodities and prices. It was he who had the connection, at least initially, with Arif’s syndicate;

2. he initially facilitated the chain of communication from Arif via Fakhreddine and Ahmad to Zane which continued throughout the duration of the conspiracy. Those communications included negotiations regarding commodities, prices, samples and method and logistics of importation;

3. he contributed a $25,000 deposit for the costs associated with the door. I am satisfied (having regard to his unchallenged evidence as set out in his affidavit) that he borrowed this money from another and was obliged to pay the money back from his share of the profits;

4. he agreed to contribute a further $100,000 for the costs associated with the door (splitting that cost with Ahmad);

5. he also agreed to contribute a further $126,000, split with Ahmad, to cover the extra €500 per kilo as required by Arif when the price for the MDMA increased;

6. during the failed handover on 21 May, he liaised between Zane and Arif to ensure that the handover was not derailed; and

7. the offender facilitated the successful handover of the drugs in the Netherlands by forwarding Blackberry messages between the co-conspirators and (together with Ahmad) collected the $1,120,000 cash from Ibrahim.

Findings

107. The structure of this enterprise was not a pyramid structure with one pinnacle. Instead, there were two groups of criminal organisation that, as the Crown put it, came together to collaboratively undertake and perform a particular enterprise, namely the importation of a substantial quantity of MDMA. One group, based in Australia, comprised of at least Zane, Ibrahim and Watsford, wanted to import MDMA. I may refer to this group as the Sydney-based group.

108. The other group, comprised at least of Arif, Ahmad and Fakhreddine, had the overseas connections and contacts capable of sourcing the drugs. I may refer to this group as the Netherlands-based group.

109. This offender was engaged to bring these two groups together for the purpose of facilitating the conspiracy.

110. I am not persuaded that the offender’s role was limited to being a conduit through which communications between the two main groups passed. To simply describe him as an intermediary or middleman does not properly reflect the extent of his criminality.

111. True it is that he passed communications and Blackberry messages between the two groups to facilitate the progress of the importation. However, his role was not so limited. It extended to investing money and/or being prepared to invest money to facilitate the importation. He was also to obtain a share of the product. While the percentage of the total product that he stood to gain was relatively low (under 5% of the total product), it was a considerable amount of MDMA with a wholesale value of over $1 million.

112. From the first meeting at the cafe on 18 November 2016, this offender, together with Zane and Ibrahim, privately discussed importing illicit substances. By contrast, Watsford and Jodeh were left out of these discussions during that meeting.

113. Furthermore, he involved himself in some of the negotiations, including by assuring Zane that he would push for the lowest deposit. On 14 May 2017, the offender advised Zane and Ibrahim that he had sourced someone to purchase 50kg of MDMA which was required for Arif’s syndicate to put on an extra 350kg of MDMA as part of the importation. That he did so showed some initiative and autonomy.

114. The tasks he undertook were not menial tasks or acts performed simply following the direction of others. The offender’s role was not limited to simply being a conduit or intermediary.

115. That said, I am not persuaded that the offender was a high level organiser or “lynchpin” in the enterprise. Although he had some autonomy, as evidenced by seeking out someone to purchase the 50kg of MDMA that was needed for Arif’s syndicate to put on a further substantial quantity of MDMA, the ultimate decision-making was left to those higher up in the hierarchy of the respective syndicates.

116. Although, on occasion, he did respond directly to queries made by one or other group, for the most part, he passed on communications from one group to the other including requests for information. While his role was crucial in maintaining contact between the groups and facilitating the arrangements for the importation, he did not make the decisions in respect of the amount of drugs that could be sourced, the way in which they would be packaged or the way in which the drugs would be imported into Australia.

117. The offender had no control over the door or any information about the door other than that provided by Zane. I cannot be satisfied beyond reasonable doubt that the offender had a substantial decision-making role. For instance, the methodology utilised was largely settled between Zane and Arif.

118. Furthermore, while the offender played a crucial role in connecting the two groups, I am not satisfied beyond reasonable doubt that he was indispensable, particularly as the conspiracy progressed. That this is so is evidenced by the fact that Zane travelled to the Netherlands with Ibrahim to collect the sample. This offender’s presence was not required. Zane also travelled to the Netherlands to check the product. He was able to deal directly with Arif and/or his associates.

119. As early as 22 March 2017, Ibrahim suggested to Zane another associate, Steven Elmir, as a person who could source drugs from all over the world and provided Zane with Elmir’s Blackberry handle.

120. When things became tense in early April 2017, Ibrahim suggested that Elmir was a better contact than this offender. Following the failed handover on 21 May, Ibrahim sent a Blackberry message to Zane stating: “fuck them off once and for all. Let’s stick with Elmir. He can get what you want. Bro, these blokes are a headache”. I am satisfied Ibrahim was referring to this offender and Arif’s syndicate.

121. I am conscious of the fact that I am conducting separate sentence proceedings in respect of the co-conspirators. Ideally, the co-conspirators should have been dealt with together on a common set of facts. Instead, the material in each proceeding may differ, at least to some extent, resulting in different findings. On the material before me in these sentence proceedings I am satisfied of the following:

1. the persons who were the “lynchpins” were Zane in the Sydney-based group and Arif in the Netherlands-based group. Without Zane’s “door”, the product could not be brought into Australia. Without Arif’s contacts, there would be no product.

2. Ibrahim played a significant role in the Sydney-based group, second to Zane. I am not persuaded that this offender’s role was equal to that of Ibrahim. Although each man performed crucial physical acts in furtherance of the conspiracy and both were trusted participants, I am not satisfied that this offender held the same decision-making role as Ibrahim did. Ibrahim’s actions included (although were not limited to) introducing the offender to Zane; advising and re-assuring Zane; being involved in the negotiations; suggesting an alternative source (Steven Elmir); attending the Netherlands with Zane to pick up the sample of MDMA; and being trusted to hold on to the cash payment for the MDMA. In addition, while the offender appears to have been willing to go along with the suggestion that the amount be increased, it was Mr Ibrahim who, on 14 March 2017, said to the offender: “if you can get more, let me know … ’Cos if we are gonna do it, fuck it, might as well put more on”.

3. This offender did play a crucial role in connecting the two groups for the purposes of facilitating the importation of a very substantial quantity of MDMA into Australia. As indicated above, his role was not limited to simply being a conduit or intermediary following instructions. However, he was not a high level organiser exercising a crucial decision-making role. The important decisions relating to the progress and facilitation of the conspiracy were left to those more senior in each group. He was a trusted participant who not only facilitated communication between the two groups, but also participated in the negotiations on occasion, invested money to facilitate the operation and stood to gain a not insignificant quantity of the product.

4. Ahmad and Fakhreddine played more subordinate roles. They were associates of Arif and appeared to provide a buffer (at least initially) between Arif and the Sydney-based group. Ahmad stood to gain an equal amount of the product as this offender. I am unable to determine how much product Fakhreddine stood to gain. I am satisfied that this offender’s involvement was more extensive than either of these men.

5. Mr Watsford played the least serious role for reasons I will come to when I address the principle of parity.

122. In determining the appropriate penalty, I have taken into account that, in sentencing for conspiracy to import commercial quantities of border-controlled drugs, principles of general deterrence and denunciation are important and essential considerations. Condign punishment must be meted out to those who are willing to engage in activities with the intention of importing substantial quantities of illegal drugs into this country. That conduct will be denounced and punished by significant terms of imprisonment.

123. I have also taken into account specific deterrence as an important consideration in this case. The offender has a criminal record that includes convictions for serious offences. The offender pleaded guilty to an offence of manslaughter and a separate offence of drug supply and was sentenced to significant periods of imprisonment.

124. True it is that he committed these offences as a child. However, in my view, his record disentitles him from the leniency that would be afforded a first-time offender or a person with a relatively minor record. This is particularly so having regard to the prior conviction in 2004 for supplying a prohibited drug. The seriousness of that offence is reflected in the lengthy term of imprisonment imposed upon the offender, a sentence of 6 years with a non-parole period of 4 years imprisonment.

Subjective Circumstances

125. The offender is the child of Lebanese immigrants. His family came to Australia as refugees during the Lebanese Civil War. He is one of five male children, a younger brother having died at the age of 3 when struck by a car. The driver fled the scene and was never found. The impact of his brother’s death on the family was devastating.

126. His parents are devout Muslims. Upon migrating to Australia, his father worked long hours to provide for the family and his mother dedicated herself to raising her children. As a teenager, he was exposed to his eldest brother’s friends, many of whom are now in prison serving long sentences for murder. Many of his brother’s friends were involved in violent offences and drug trafficking.

127. At the age of 15, the offender killed Edward Lee. He saw one of his brothers involved in a physical altercation with others. He ran into the house, took possession of a knife, and came back outside, stabbing Edward Lee.

128. This incident constituted the offence of manslaughter to which he pleaded guilty and for which he ultimately received a sentence of 10 years imprisonment with a non-parole period of 5 years.

129. He was subsequently charged with the murder of Anita Vrzina. As set out earlier, these proceedings were prolonged, culminating in a wrongful conviction which was overturned on appeal.

130. I accept that the time he served in prison for the murder of Anita Vrzina, prior to the successful appeal, was onerous. I accept that he experienced not only anguish at being wrongly convicted but also hostility from other inmates because he had been convicted of killing a Muslim woman. Some of his time spent in custody was spent in Extreme High Security. Although he was allowed to see his parents, he was not allowed to see his brothers or cousins because of concerns held by the authorities in respect of their activities and backgrounds.

131. Following his release to parole on 15 February 2016, the offender commenced using MDMA regularly. At the time he engaged in this conspiracy, he was using MDMA. The drug helped him feel more comfortable in social situations, having been removed from normal social situations for many years. MDMA also gave him a false sense of confidence and bravado.

132. The offender found it difficult to adjust to life in the community. After his release, he spent time with Ibrahim socially. Ibrahim knew that the offender was close with the Ahmad family and that he knew Fakhreddine. His inability to readjust to life in the community, his drug use and the fact that he associated with a negative peer group provided the preconditions to so quickly engage in criminal activity following his release.

133. Dr Allnutt sets out the offender’s background and his experience of custody in a psychiatric report dated 2 February 2020. Dr Allnutt notes that the offender manifested a fluctuating depressed mood, fluctuating quality of sleep, intermittent nightmares and reduced motivation. The constellation of symptoms is said to be consistent with a trauma- and stressor-related condition, namely, a chronic adjustment disorder with depressed and anxious mood.

134. The offender described being persistently preoccupied with the injustice of his incarceration for an offence that he did not commit. That is a reference to the time that he spent in custody in respect of the murder charge, before he was acquitted. Dr Allnutt’s impression is that the depressive symptoms have been relatively persistent and continued through the period of the present offending.

135. I am not satisfied that there is a nexus between his mental health issues and the commission of this offence such as to reduce his moral culpability. His mental health issues are relevant to his subjective case. No doubt the penalty I will impose, comprising, as it must, of a further lengthy period in custody, will add to his depressed mood and anxiety. He will require an extended period once released to assist him in readjusting to life in the community and in particular to provide him with treatment and supervision in respect of his mental health issues.

136. The offender is 37 years old. He has spent the most part of his adult years in custody. He was incarcerated in adult custody between December 2000 and August 2009. He spent a further period in adult custody between July 2012 and February 2016. The offender was taken back into custody as a result of this offence on 8 August 2017. Out of a total 19 years of adulthood, he has spent approximately 15½ years in prison. I am satisfied that if not already institutionalised, he will be by the time he is eligible for release to parole.

Taking uncredited past custody into account on sentence

137. A significant portion of the offender’s time in custody relates to periods where he was denied parole or during which he was bail-refused in respect of the charge of murder of which he was ultimately acquitted.

138. The periods of uncredited custody include a period of about 18 months between 26 February 2008 and 14 August 2009, when the offender was refused parole on other matters solely as a result of being charged with murder.

139. He was in custody between 9 July 2012 and 15 February 2016 (a period of 3 years 7 months) in respect of the murder conviction, before he was released as a result of the successful appeal to the Court of Criminal Appeal.

140. A separate discrete period of 6 months was spent in juvenile custody between March and August 2004 in respect of charges of which he was later acquitted.

141. In written submissions filed on behalf of the offender, a period of 4 years 1 month and 21 days is calculated as the period in custody which has never been credited to any sentence. On my calculation, the approximate time of uncredited custody is in the order of 5½ years. Be that as it may, the offender urges me to take this into account directly either by backdating the sentence to be served or by reducing the length of the sentence.

142. The Victorian cases of R v Renzalla [1997] 2 VR 88 and Karpinski v R (2011) 32 VR 85 have found that there is a residual common law discretion to credit such time. However, notwithstanding that this is a federal offence, those authorities do not represent the law in this State.

137. The clear position in New South Wales is that, where an offender is sentenced in relation to one matter, time spent in custody referable exclusively to an unrelated offence which has been successfully appealed is not to be taken into account as a form of credit: R v Niass (Court of Criminal Appeal (NSW), 6 Nov 1988, unrep); R v David (Court of Criminal Appeal (NSW), 20 April 1995, unrep).

138. In R v Niass, Lee CJ at CL said (at 2):

“…There is good reason to keep intact the division between the functioning of the Court dealing with a particular offender in respect of the offence in which he comes before the court and taking into account the period spent in custody in respect of that offence, and the function which the State has undertaken on occasions to recompense persons who, when the justice system has miscarried, may seek solatium”.

145. In Hampton v R [2014] NSWCCA 131, the Court of Criminal Appeal unanimously upheld the decision in R v Niass, stating at [27]–[34]:

“The decision of this Court in R v Niass appears to stand in the way of that submission. That decision makes it clear that where what is sought to be done is to invite a sentencing court to take into account, as a relevant matter, a period in custody for an unrelated matter leading to acquittal or discharge, that factor is not, in and of itself, relevant to the sentencing exercise.

[…]

Decisions of courts in other States concerning the commencement date of sentences appear to depend upon local statutory provisions, and the approach of Judges in those jurisdictions operating within their own statutory frameworks. To the extent that Ground 2 invites this Court to adopt the reasoning and apply decisions in other States … particular care is needed.”

146. The principle of totality requires that, where the Court sentences an offender for more than one offence, or sentences an offender serving an existing sentence, the aggregate or overall sentence must be just and appropriate to the totality of the offending behaviour. The Crimes (Sentencing Procedure) Act 1999 (NSW) provides that the Court must take into account any time the offender has spent in custody in relation to the offence.

147. Section 16B of the Crimes Act 1914 (Cth) gives statutory expression to the principle where an offender is sentenced for Commonwealth offences. As the offender acknowledges in written submissions, s 16E(1) of the Crimes Act 1914 (Cth) provides that the law of a State or Territory relating to the commencement of sentences and of non-parole periods applies to a person who is sentenced in that jurisdiction for a federal offence in the same way as it applies to a person who is sentenced for a State or Territory offence.

148. Courts exercising the sentencing discretion under s 16E(1) should adopt practices already established in respect of sentencing for State matters: Assafiri v R [2007] NSWCCA 159 at [11].

149. In light of the New South Wales authorities, it is difficult to see how I can take into account the prior uncredited custody served by the offender by either backdating the commencement date or in applying the principle of totality. Appreciating that there is a difference of approach between jurisdictions (a matter which may attract the attention of the appellate courts), I proceed to sentence the offender in accordance with principles enunciated by New South Wales courts.

150. I take into account the significant period of uncredited custody as part of the offender’s subjective case. In particular, I take it into account in respect of the issue of institutionalisation. This issue bears upon an assessment of the minimum time that justice requires the offender spend in custody.

151. The second way in which I take the uncredited time served in custody into account is in respect of the offender’s subjective experience of custody. Dr Allnutt noted that the offender was preoccupied with the injustice of past incarceration for an offence he did not commit. Dr Allnutt also diagnoses ongoing residual depressive symptoms and a persistent depressive disorder.

152. The stress resulting from this preoccupation is elevated having regard to the current restrictions in custody as a result of the COVID-19 pandemic and the concern the offender has for the welfare of his elderly parents (matters more fully set out below).

153. His previous periods of incarceration have included limited association with other offenders and curtailed visits. His evidence in respect of his prison experience is not challenged. I am satisfied that periods of his incarceration have been onerous. There is no reason to conclude that these conditions will not continue in the future, particularly in respect of curtailed visits.

COVID-19 Pandemic

154. On 21 April 2020, I received a further affidavit of Ms Ruth Parker and supplementary submissions on behalf of the offender. This additional material primarily addresses the COVID-19 pandemic. The offender’s sentence proceedings on 2 February 2020 were conducted in blissful ignorance of what was to come. Since that time, the world has been confronted with a pandemic that has resulted in indiscriminate suffering and, in some cases, death.

155. The evidence of Ms Parker is that her client has been impacted severely by the changed circumstances in custody as a result of COVID-19 and outlines the concern he holds for the welfare of his elderly parents.

156. On 20 March 2020, the Department of Corrective Services made the decision to suspend all face-to-face family/social visits until further notice. Face-to-face legal visits have also been suspended. These extreme measures have been put in place to reduce the risk of infection in prisons.

157. Fortunately, there has only been one confirmed case of COVID-19 detected in prison. That case relates to a health worker rather than an inmate. Prior to the pandemic, the only visits allowed to this offender were from his elderly parents. They are now unable to visit him. Steps taken by Corrective Services to facilitate Skype calls by iPad between inmates and family members are of little benefit to this offender as neither of his parents is computer literate. The offender has been advised that, because his parents were the only two visitors approved by the authorities, no-one else can be present during a Skype call. In these circumstances, any contact with his parents will necessarily be by way of telephone call only for an indeterminate period.

158. The offender has expressed concern for his family, particularly his parents in light of their age and vulnerability.

159. In addition, the offender reports that conditions in custody are more restrictive under the regime imposed in reaction to the pandemic. The offender reported experiencing increased “lock-ins” which result in more time spent in his cell. He is not able to attend the outdoor oval and is unable to access study or courses. Dental care has been significantly curtailed, as has non-urgent medical care.

160. These restrictions have increased unrest and anxiety among prisoners. On 9 April 2020, the offender became aware of another inmate setting fire to his cell because he wanted to come out of it. The incident escalated, resulting in that inmate being dragged out of his cell.

161. Corrective Services maintains that there has been no change in procedures or practices resulting in increased “lock-ins”. I accept the operational procedures and policies applicable across all correctional centres have not been amended so as to increase the time that prisoners remain locked in their cells.

162. The offender’s reported experience of increased “lock-ins” does not accord with the operational procedures of Corrective Services. However, I am prepared to find that, from time to time, local circumstances and issues at particular gaols and particular pods may impact upon those procedures and practices. In any case, having regard to the material placed before me from Corrective Services, I proceed on the basis that the official position is that prisoners are not subject to increased “lock-ins” as a result of COVID-19.

163. The Communicable Diseases Network Australia, endorsed by the Australian Health Protection Principal Committee, has released the CDNA Guidelines for the Prevention, Control and Public Health Management of COVID-19 Outbreaks in Correctional and Detention Facilities in Australia (dated 31 March 2020) which state: “Correctional and detention facilities are higher risk environments for outbreaks because of difficulties practicing social distancing in these facilities, where inmates are often located in close proximity”.

164. The offender has not observed the introduction of any additional personal protective equipment in the prison and it would appear that hand sanitisers are not permitted for inmates. These factors have increased the offender’s anxiety that the virus will enter and spread through the prison and the significant health consequences that this may pose. In addition, his concern for his elderly parents has also contributed to an increase in his stress and anxiety.

165. The Crown filed submissions in reply dated 22 April 2020 and relies upon documents headed ‘CSNSW Response to COVID-19’, dated 25 March 2020 (Exhibit D).

166. The Crown submits that Corrective Services NSW has put in place a number of temporary measures including suspending all social visits to inmates to reduce the risk of infection. There is no doubt that Corrective Services has put into place these extreme measures to protect the welfare of inmates and staff – however, the motivation of Corrective Services is not to the point. The point is whether the suspension of face-to-face visits operates to make conditions in custody more onerous. It is unclear at present how long these measures will be in place.

167. I accept that any impact upon the offender must be viewed in light of the lengthy term of imprisonment that he faces. However, these measures will be in place for a period which is currently unknown.

168. The conditions of custody are relevant to the subjective experience of the offender and in determining the appropriate non-parole period to be imposed. The extent to which factors relating to COVID-19 may be taken into account, if at all, is a matter to be resolved on the particular facts and circumstances of the individual case: Brown v R [2020] VSC 60 at [48].

169. In DPP (Cth) v Politopoulos [2020] VCC 338, while the current crisis in relation to the COVID-19 pandemic was not sufficient reason to warrant immediate release from custody or outweigh all other sentencing factors, the Court accepted that it did cause the offender added concern and this was taken into account in moderating the sentence.

170. In DPP v Tennison [2020] VCC 343, the current COVID-19 pandemic was taken into account for two reasons. Firstly, there had been a suspension of face-to-face visits. Secondly, the offender had reduced opportunity for work and meaningful occupation in custody. These factors were taken into account as adding to the offender’s stress while in custody.

171. In DPP v Morey (a pseudonym) [2020] VCC 320, the Court took into account the suspension of family visits and the concern experienced by the offender for the welfare of his family as playing some part in mitigating the sentence.

172. I am satisfied on the evidence before me that the COVID-19 pandemic has made conditions in custody more onerous for the offender because the measures implemented to control outbreaks have increased the offender’s level of stress. True it is that there is no evidence that the offender is in a vulnerable category. However, the authoritative position is that gaols and other places of detention are more susceptible to the rapid spread of the novel coronavirus: Rakielbakhour v DPP [2020] NSWSC 323 at [14]. Notwithstanding the efficient and sustained efforts on the part of Corrective Services, the risks are real and likely to engender anxiety in the offender.

173. Importantly, I accept that the offender’s level of anxiety has increased as a result of the concern that he has for his elderly parents and the suspension of face-to-face visits. Having regard to his parents' age and computer illiteracy, it is unlikely that he will be able to avail himself of any initiatives by Corrective Services to facilitate face-to-face visits electronically.

174. To that extent, I have taken into account the current situation relating to COVID-19 as adding (at least for a time) to the onerous conditions the offender experiences in custody. However, the primary reason that his time in custody is more onerous is the very limited contact that he is allowed to have with family members. Putting aside the pandemic, his visitors are essentially limited to his parents in light of the concern held by the authorities about the offender’s brothers and cousins. He will be serving many years in prison without face-to-face contact with those family members.

Extra-curial punishment

175. Upon his arrest in August 2017, the offender was detained in Dubai for some five weeks. He was tortured on a number of occasions, including by being tasered about 10 times. I have taken into account extra-curial punishment in fixing the appropriate sentence: Silvano v R (2008) 184 A Crim R 593.

Prospects of rehabilitation and specific deterrence

176. I am guarded about the offender’s prospects of rehabilitation. He has a history of prior offending including at least two serious offences for which he was sentenced to lengthy terms of imprisonment. He committed this offence about one year after being released from custody. Specific deterrence is a relevant consideration in determining the appropriate penalty.

177. That the offender must serve a lengthy period in custody, having regard to the objective gravity of the offence, is clear. But his inevitable institutionalisation and isolation in custody, having regard to restricted family visits generally, are factors that are, in themselves, less conducive to rehabilitation. In any event, in light of the length of the sentence required, it is difficult to predict the offender’s prospects upon release.

Parity

178. I sentenced Mr Watsford by way of an aggregate sentence in November 2019. For the offence of conspiracy to import a commercial quantity of MDMA, the indicative sentence was a starting point of 16 years imprisonment.

179. The principle of parity operates to avoid an offender having a justifiable sense of grievance, however, there are a number of distinguishing features that favour Mr Watsford. In light of these distinguishing features, I am satisfied that the starting point of the sentence in this case should be significantly higher than the starting point of 16 years.

180. Although the offender and Watsford were to contribute the same door fee and made the same investment in the criminal enterprise, Watsford did not stand to gain a percentage of the product. He was not included in the breakdown of each person’s interest in the importation.

181. Furthermore, the role of this offender was more extensive and more serious than that of Watsford. In sentencing Mr Watsford, I was satisfied that, while he was consulted about the arrangements and facilitated Zane’s meeting with the offender, any conflict during the planning stages of the importation was resolved by Moustafa Ibrahim.

182. Although Watsford facilitated discussions by passing Blackberry messages, I was satisfied that at all times he was acting under the direction of Mr Ibrahim. I am not satisfied that this offender was acting under the direction of Mr Ibrahim.

183. Importantly, Watsford’s involvement diminished over the course of the conspiracy, while this offender continued to play an important role. Following 14 March 2017, Watsford’s involvement had significantly diminished.

184. Subjectively, Watsford came before the Court with no prior criminal history, a person of prior good character. That cannot be said of this offender.

185. Having regard to these distinguishing factors, I am satisfied that the starting point of the sentence to be imposed upon this offender should be significantly higher than the starting point of 16 years. That said, the principle of parity continues to have some application and in determining the appropriate starting point in this case I have had regard to that principle.

[Redacted]

186. [Redacted]

187. [Redacted]

188. [Redacted]

Only Appropriate Penalty One of Full-Time Imprisonment

189. Clearly, the only appropriate penalty in all the circumstances is one of full-time imprisonment: s 17A Crimes Act 1914 (Cth). In fixing the non-parole period, I must fix the minimum time that justice requires must be served having regard to all the circumstances of the offence. As indicated above, I am satisfied that the offender will benefit from a significant period on parole so that he can be provided with assistance to readjust to life in the community after a very lengthy period of institutionalisation. Furthermore, he will require an extended period on parole to receive treatment in respect of his mental health issues.

Comparative Cases

190. To ensure national sentencing consistency, regard must be had to sentencing practices across Australia. Comparable cases may serve two purposes: firstly, to provide guidance as to the identification and application of relevant sentencing principles; secondly, they may yield discernible sentencing practices and possibly a range of sentences against which to examine a proposed sentence.

191. The Crown relies upon a schedule of relevant cases (Annexure B) which sets out a number of sentences imposed for drug-related offences involving large drug consignments. The sentences range from life imprisonment with various non-parole periods, to 15 years imprisonment with a non-parole period of 9 years.

192. The offender provided a further case for reference, namely, a sentencing judgment of the New South Wales District Court, R v Wai Lam Chan; R v Wai Kit Leung (District Court (NSW), 14 May 2019, unrep).

193. The offenders in that case pleaded guilty to an offence of jointly attempting to possess a commercial quantity of MDMA. The quantity involved was a pure weight of 367.93kg, less than the subject quantity in the present case.

194. Mr Chan was sentenced to a term of imprisonment of 11 years with a non-parole period of 6½ years after the application of a 25% discount. Mr Leung was sentenced to a term of imprisonment of 14 years with a non-parole period of 8½ years after the application of a 25% discount.

195. However, the assistance provided by this case is limited. Mr Chan was found to have filled a “menial role” and “his performance of that role showed a lack of sophistication”. The sentencing Judge determined that Mr Leung played a more senior role. It is unclear to me from the remarks on sentence whether her Honour found that he fulfilled a middle-management role or acted as a courier. In any case, I am not persuaded that the criminality involved in the present case is comparable to the criminality involved in the cases of Mr Chan and Mr Leung. A more severe penalty is warranted in this case.

196. While I have had regard to the cases for the purpose of identifying and applying relevant sentencing principles, they do not fulfil the second purpose of identifying a discernible sentencing range.

Determination

197. The offender is convicted.

198. Taking into account a combined discount of 30%, I impose a sentence of imprisonment consisting of a non-parole period of 12 years imprisonment commencing on 8 August 2017 and expiring on 7 August 2029, with a balance of term of 6 years 2 months imprisonment, expiring on 7 October 2035. The total term is 18 years 2 months imprisonment. The starting point before the application of the 30% reduction in sentence is 26 years imprisonment.

199. The offender is eligible for consideration for release on parole at the expiration of the non-parole period subject to the guidance and supervision of Community Corrections for as long as they deem necessary.

**********

Decision last updated: 01 May 2020