R v Nozhat (No 2)
[2019] ACTSC 81
•29 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Nozhat (No 2) |
Citation: | [2019] ACTSC 81 |
Hearing Dates: | 27 and 28 March 2019 |
DecisionDate: | 29 March 2019 |
Before: | Mossop J |
Decision: | See [150] |
Catchwords: | CRIMINAL LAW – Particular offences – drug offences – disputed facts hearing for the purposes of sentence – importation of a commercial quantity of border controlled drug – fault element required under section 307.1 Criminal Code (Cth) – recklessness – time at which respondent became reckless as to whether substance was a border controlled drug |
Legislation Cited: | Criminal Code (Cth), ss 5.4(1), 5.4(1)(b), 5.4(4), 11.1, 11.1(3), 300.6, 307.1 |
Cases Cited: | Brar v The Queen [2016] VSCA 281; 263 A Crim R 67 El-Haddad v R [2015] NSWCCA 10; 88 NSWLR 93 R v Tranter [2013] SASCFC 61; (2013) 116 SASR 452 |
Parties: | The Queen (Crown) Tamim Jamaal Nozhat (Offender) |
Representation: | Counsel P Bevilacqua (Crown) D Dalton SC with AJ Karim (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Sydney Criminal Law Specialists (Offender) | |
File Number: | SCC 27 of 2018 |
MOSSOP J:
Introduction
Tamim Nozhat has pleaded guilty to a single count alleging an attempt to breach s 307.1 of the Criminal Code (Cth). That section provides:
307.1 Importing and exporting commercial quantities of border controlled drugs or border controlled plants
(1)A person commits an offence if:
(a) the person imports or exports a substance; and
(b) the substance is a border controlled drug or border controlled plant; and
(c) the quantity imported or exported is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
The offence occurred between 28 April 2017 and 22 May 2017. 356kg of a substance containing methylenedioxymethamphetamine (MDMA) was imported into Australia in packages secreted within plastic buckets of a substance labelled as pool chlorine. The pure weight of MDMA within the substance was 279kg. The goods were intercepted by Australian Border Force and seized by the Australian Federal Police.
The Crown has accepted that the offender was reckless rather than having actual knowledge as to the contents of the consignment of goods being imported. For the purposes of sentencing the offender, the issue between the parties is at what point the offender was reckless that the substance was a border controlled drug. The Crown contends that he was reckless from 28 April 2017. The offender has admitted that he was reckless from 18 May 2017 but contends that he was not reckless before that date.
The parties had agreed the relevant facts to be put before the court for the purposes of determining whether the Crown has proved beyond reasonable doubt that the offender was reckless from 28 April 2017 or some date prior to 18 May 2017. The relevant evidence is:
(a)Exhibit 1, an Agreed Statement of Facts;
(b)Exhibit 2, a statement to police made by Andrew West on 20 December 2017; and
(c)Questions and answers 172 and 173 in a transcript of an interview between police and the offender conducted on 23 May 2017.
In these reasons Mr Nozhat is referred to by that name or as the offender.
Relevant legal principles
To “import” a substance includes;
(a)bringing the substance into Australia; and
(b)dealing with the substance in connection with its importation.
It is the second element which is relevant in the present case, “dealing with the substance in connection with its importation”. This limb of the definition refers to the process of importation. Because it refers to the process of importation and contains the word “in connection with” the definition can cover a range of conduct occurring both before and after the time a substance has been imported in the narrow sense: R v Tranter [2013] SASCFC 61; (2013) 116 SASR 452 at [12]-[13], El-Haddad v R [2015] NSWCCA 10; 88 NSWLR 93 at [109]-[110] and Brar v The Queen [2016] VSCA 281; 263 A Crim R 67 at [42]-[53].
A person is reckless as to the imported substance being a border controlled drug if:
(a)he is aware of a substantial risk that the substance is a border controlled drug; and
(b)having regard to the circumstances known to him, it is unjustifiable to take the risk: s 5.4(1).
Where recklessness is the fault element, proof of intention and knowledge also satisfies the fault element: s 5.4(4). That is not relevant in this case as what is alleged is recklessness without actual knowledge.
Where the charge is pursuant to s 11.1 of the Criminal Code, one of attempting to import a border controlled drug, recklessness remains the fault element in relation to the identity of the substance because s 300.6 of the Criminal Code exempts s 307.1 from the application of s 11.1(3).
The critical issue is when that recklessness first arose. The first limb of recklessness requires awareness of a substantial risk of the circumstance, in this case, that the substance was a border controlled drug. This involves an inquiry into the subjective awareness of the accused. In the absence of direct evidence such as an admission the question must be determined on circumstantial evidence. As a consequence, in order that the relevant state of mind be established beyond reasonable doubt, the circumstances must be such that, when taken together, they are inconsistent with any reasonable hypothesis that involves Mr Nozhat not being so aware.
In relation to the second limb necessary in order to establish recklessness, the finder of fact must determine whether it is unjustifiable to take a risk on the facts known to the accused: s 5.4(1)(b). However the accused does not need to have believed that it was unjustifiable to take the risk. The test is objective not subjective. Whether a risk is unjustifiable requires the finder of fact to make a moral or value judgment relating to the accused advertent disregard of risk: R v Saengsai-Or [2004] NSWCCA 108; 61 NSWLR 135 at [70]. The finder of fact must assess the likelihood of the risk eventuating, and determine whether the risk is one that should not have been taken: Lustig v R [2009] NSWCCA 143; 195 A Crim R 310 at [74].
As will become apparent, in this case it is the first limb of the definition of recklessness, the subjective state of awareness of Mr Nozhat that is of central importance in this case.
Agreed Statement of Facts
The Agreed Statement of Facts provides as follows.
Overview
The offender arranged to lease the property to which the consignment was addressed. The funds for the lease came from Masoud Omari.
The Offender transferred money to the exporter of the consignment. The funds for this transfer also came from Omari.
The offender communicated with, and paid for, the freight forwarder to arrange for the consignment to be cleared through customs. Again the funds for this process came from Omari.
The Crown accepts that all the funds for these payments made by the offender regarding these various transactions came from Omari and the offender was acting on Omari’s instructions at all times;
The Crown accepts the offender was reckless (not actual knowledge) as to the contents of the consignment containing a prohibited drug (MDMA) (including its quantity yet he is liable to it being the commercial amount given absolute liability applies in that regard).
Background - the interactions between Omari, Huckstepp and West in relation to Consignment 1
In late 2016 or early 2017, Masoud Omari told Daniel Huckstepp that he was planning to import a shipment containing drugs. Omari told Huckstepp that he would bring in a “dummy” shipment first and would then bring in the “real stuff” if the dummy shipment went well.
In January 2017, Omari and Andrew West attended “Nando’s” in Belconnen. West had a cocaine and gambling addiction and had borrowed money from Omari. At that point in time, West believed he owed Omari $30,000.
During their meeting, Omari told West that Omari was setting up a pool cleaning business. Omari told him he was registering a company, Future Pools with Simon Daly as a business partner.
A few days later, Omari showed West a picture of chlorine for sale on eBay on his tablet. Omari asked West to buy it for him using his eBay account. Omari assured him it was nothing illegal. The company where the chlorine was from was in Germany.
Omari gave West the cash to purchase the chlorine on eBay plus an additional $1,000. Omari further said his debt would be cleared if he did this. West deposited this money into his St George bank account. He then transferred this money to a bank account in Germany.
A day or so later, Omari picked up West and took him to Kippax Library in West Belconnen. Omari asked West to complete a Customs Safe Goods Declaration. West did so. Omari scanned this document at the library and told him that it was going to be sent back to the customs broker.
Later that day, Omari asked West for a copy of his driver’s licence so he could give it to Show Group Enterprises, a freight forwarding business. Omari instructed West to contact Show Group Enterprises to make sure that was all the information they needed.
West contacted Show Group Enterprises on his phone and they told him the chlorine would be delivered from Sydney to TNT in Hume, ACT. West said he would be unable to collect the consignment personally. Omari instructed West to confirm with TNT that West did not need to be present in order for the consignment to be collected. TNT said that was possible but the collector needs to produce an identification document. Omari kept West’s driver’s licence and said West would not need to pick up the chlorine.
Background - the offender’s involvement in arranging for a storage place of Consignment 1
Sometime before 21 February 2017, Joseph Maatouk listed a property for sale, namely xx/x Gladstone Street Fyshwick ACT 2609 (the Gladstone Street Warehouse). The unit was listed for sale at $165,000. Joseph Maatouk’s brother, Imad Maatouk, assisted his brother in liaising with persons interested in purchasing the Gladstone Street Warehouse.
On 21 February 2017, Imad Maatouk commenced discussing the possibility of the sale of the Gladstone Street Warehouse with Theo Dimarhos of JLL Real Estate Canberra. The conversations occurred via text messages and phone conversations.
On 28 February 2017, Dimarhos had a telephone conversation with Imad Maatouk. Dimarhos stated he knew of a person interested in purchasing the Gladstone Street Warehouse and would refer him to Imad Maatouk. The interested potential purchaser’s name was Alex Stefopulis.
On 2 March 2017, Imad Maatouk advised Dimarhos that Stefopulis was no longer interested in purchasing the Gladstone Street Warehouse.
On 8 March 2017, Dimarhos texted Imad Maatouk stating a person by the name of Ali Kaddour would contact him about the Gladstone Street Warehouse. He was told Kaddour was offering $160,000 for the property and would make an upfront payment of $60,000 if Imad Maatouk could offer vendor finance for the remaining $100,000.
On 9 March 2017 at 1:27pm, Imad Maatouk received the following text message:
Hi imad its ali. My cousin tamim said can you give him a call bout the warehouse and he will go from there thanks. Any dramas let me know thanks.
04xx xxx xx8
On 9 March 2017 at 3:43pm, the offender and Imad Maatouk commenced communications via text messages. The offender sent text messages on number 04xxxxxxx8. Optus records show telecommunications service 04xxxxxxx8 is subscribed to Tamim Nozhat at xx Rylstone Crescent Crace, ACT.
Between 9 March 2017 and 17 March 2017, Imad Maatouk communicated with the offender and Kaddour to arrange a meeting.
On 16 March 2017, a person purporting to be “Simon Daly” registered the business name “Future Pools ACT Pty Ltd” and a domain name, “futurepoolsact.com.au” with ASIC. Simon Daly is a fictitious person.
On 17 March 2017 at 12:30pm, Imad Maatouk, Joseph Maatouk and the offender attended the Gladstone Street Warehouse. To satisfy Imad Maatouk of his identity, the offender gave Imad Maatouk an ACT Drivers Licence in the name of Tamim Nozhat. The photo on the licence matched the person to whom Imad Maatouk was speaking with.
At this time, the offender handed Imad Maatouk $40,000 in Australian currency as a deposit for the purchase of the Gladstone Street Warehouse. The cash was in denominations of $50 and $100 and was wrapped in rubber bands. This amount fell short of the $60,000 that Imad Maatouk believed would be paid upfront as a deposit. Nevertheless, it was accepted and a receipt for the $40,000 was then signed by Joseph Maatouk, Imad Maatouk and the offender. It is accepted these funds did not come from the offender.
On 20 March 2017, the offender texted Imad Maatouk asking for keys to the Gladstone Street Warehouse. Imad Maatouk provided the offender instructions on how to collect the keys.
Between 21 March 2017 and 26 March 2017, the offender and Imad Maatouk engaged in discussions with a view of finalising a contract in relation to the Gladstone Street Warehouse.
On 29 March 2017, the offender texted Imad Maatouk stating that “we” are having to pull out of the contract due to financial difficulties.
Thereafter at first the offender but thereafter Kaddour contacted the vendor trying to have the deposit repaid taking out the vendor’s legal expenses.
Subsequent forensic analysis of a Black Acer Aspire laptop found in the offender’s home located at xx Rylstone Crescent Crace, specifically the computer nook in the upstairs of the house, revealed:
(a)An invoice from “Commercial Conveyancing Legal” issued to the offender for the preparation of a contract of purchase of the Gladstone Street Warehouse; and
(b)A Commercial Lease Agreement for Unit x of xx Gladstone Street Fyshwick where the offender is listed as the lessor.
Background - the delivery of Consignment 1
On 20 March 2017, a consignment arrived in Sydney by air from Hamburg, Germany (Consignment 1). The consignment bore the following details:
Consignor:
Dimitri Carparts & Motors
Rahlstedter Str. xxx
22143 Hamburg Germany
Consignee:
Future Pools Pty Ltd
Unit xx/x Gladstone St
Fyshwick ACT 2609 Australia
Description: Pool Cleaner – 538 kilograms
On 2 May 2017, TNT attempted to deliver Consignment 1 to the Gladstone Street Warehouse. However, no one was present to accept delivery. Consequently, TNT conveyed Consignment 1 to a TNT depot for storage.
On 3 May 2017, Omari and Huckstepp attended the front desk of TNT Freight Logistic Service located at 71 Sheppard Street Hume. Omari said to a TNT staff member at the front desk, Kushan De Silva, that he had a pallet to collect. De Silva asked if it was something to do with chlorine and Omari responded, “yes that is it’. Consignment 1 was loaded onto a trailer used by Omari and Huckstepp.
De Silva then required Omari to sign a “proof of delivery” receipt. Omari wrote down a name that appeared to resemble “Masoud Amari” but when De Silva asked for proof of identification, Omari replied, “you don’t want ID bro”. Omari then told Huckstepp to sign for it which he did. Huckstepp produced his driver’s licence to De Silva. Consignment 1 was then taken away by Omari and Huckstepp. The consignment was left at a worksite in Red Hill. It has not been recovered.
The contents of Consignment 1 are unknown.
The Crown allege the importation of Consignment 1 was designed to be a practice importation in preparation for the subject importation (Consignment 2).
Count 1 - importation of Consignment 2
On 9 April 2017, the business name “Wholesale Pool Supplies” was registered by the offender with the Australian Securities and Investments Commission (ASIC).
On 11 April 2017, the offender contacted Raine and Horne Real Estate in Canberra via telephone looking to rent an industrial property. The offender stated that he required a space that could fit a forklift and the property was required immediately. The budget for the property was $25,000 per annum. The email used to make the enquiry was [email protected] from Wholesale Pool Supplies.
On 28 April 2017, the offender signed a one year lease for property xx/x Lyell Street, Fyshwick, ACT (the Lyell Street Warehouse). The total cost for the lease of the unit was $25,000 plus GST.
Also on 28 April 2017, the offender transferred $2,750 to Raine and Horne Real Estate from a St George Bank Account xxxxxx/xxxxxxxxx held solely in his name (the offender’s St George Bank Account). This payment was for the initial deposit required for the Lyell Street Warehouse.
On 1 May 2017, the offender registered an account on eBay with the username “wholesalepoolsuppliesaus”. The account was registered in his name, with the company name Wholesale Pool Supplies. He provided his own telephone number and the email address [email protected].
On 3 May 2017, the offender transferred $16,000 from the offender’s St George Bank Account to Raine and Horne Real Estate.
On 5 May 2017, the offender transferred $8,750 from the offender’s St George Bank Account to Raine and Horne Real Estate. These three payments totalled $27,500.
On 9 or 10 May 2017, the offender met with Mr James Parkyn, a representative of Raine and Horne Real Estate and collected the keys to the Lyell Street Warehouse from him.
On 8 and 9 May 2017, bank records from the offender’s St George Bank Account shows he remitted $25,000 and $4,650 to unknown recipients with the description, “Internet Overseas TT”. The offender incurred bank fees for the international telegraphic transfers.
On 9 May 2017, the offender called Show Group Enterprises (Freight Forwarder & Customs Broker) on his mobile number of 04xxxxxx8.
The offender stated that he was from “Wholesale Pool Supplies” and was enquiring about Consignment 2 with Master Airway Bill 17637893030. The description of Consignment 2 represented it to contain pool chlorine.
On 11 May 2017, the offender provided a ‘Letter of Authority’ to Show Group Enterprises authorising a customs broker to raise a customs entry on the consignee’s behalf. The email address provided by the offender was [email protected]. The offender had a number of telephone conversations with Mr Shawn Marsh of Show Group Enterprises to facilitate the necessary paperwork being prepared to release Consignment 2.
On 16 May 2017, the offender transferred $633.95 to Show Group Enterprises to pay for the import duty and tax. This money was paid via bank transfer from the offender’s St George Bank Account. The cost of the freight from Germany was $5400.00.
The arrival of Consignment 2 in Australia
On 17 May 2017, Australian Border Force (ABF) members intercepted airfreight consignment bearing International Express Master Airway Bill 17637893030, being Consignment 2, after it arrived from Hamburg, Germany bearing the following details:
Consignor:
Dimitridis Carparts & Motors
Rahlstedter Str. xxx
22143 Hamburg/Germany
Consignee:
Wholesale Pool Supplies
Mr Tamil Nozhat
Unit xx/x Lyell Street, 2609
Fyshwick, ACT, Australia
Described as: Pool Cleaner
Consignment 2 consisted of 8 cardboard boxes that contained 144 buckets labelled ‘Bio Line Chlore Rapide Snel Chloor’. ABF examined one of the buckets and found that beneath the powdered chlorine was a vacuum sealed bag. The substance within the vacuum sealed bag was an off white crystalline substance. Presumptive testing of the substance indicated a positive reaction to MDMA.
Forensic testing has confirmed the gross weight of the MDMA that was concealed in Consignment 2 was 356 kilograms. The pure weight of MDMA was 279.096 kilograms. MDMA is a border-controlled drug. A commercial quantity of MDMA is prescribed as 0.5kg pursuant to Schedule 4 of the Criminal Code Regulations (Cth).
The street value of this quantity of MDMA around the time of the importation is was about $139,548,000 (calculated at a price of $500 per gram). The wholesale value of this quantity of MDMA is about $12,280,224 (calculated at a price of $44,000 per kilogram).
The offender did not have any licences or permits to import a border-controlled drug.
On 17 May 2017, the AFP seized Consignment 2 from ABF.
Telephone calls with Shaun Marsh of Show Group Enterprises
On 18 May 2017 at 2:42pm, Marsh contacted the offender in relation to the consignment. The conversation was as follows:
TN: Hello
SM: G’day Shawn at Show Freight, how are ya?
TN: Sorry who’s that?
SM: Shawn from Show Freight
TN: Oh yeah how are you, good mate how are you?
SM: [ind] it’s about your shipment, I’m okay Um I’m just sorry take so long to get back to you, um my boys are got, they are telling me some sort of Customs hold on it, so um I’ve left some phone calls with people there at Customs that I know to find out what’s going on with it
TN: Yep
SM: Just bear, just bear with me and I will give you a call back, hopefully this afternoon
TN: No warries mate cheers
SM: Okie dokie, cheers
TN: Cheers
SM: Bye
On 19 May 2017 at 9:38am, Marsh again called the offender. The conversation was as follows:
TN: Hello
SM: Yeah G’day Tamil?
TN: Yeah mate how are ya??
SM: It’s Shawn from Show freight how are ya
TN: Yeah good
SM: Um just following up, just letting you know that I have been trying to get a hold of Customs I don’t know what’s going on
TN: Yep
SM: Um It’s been a while, I don’t understand what the situation is, Um I have been doing this for a long time and its like things slow down sometimes and they you know they could take a couple of days, this is dragging out,
TN: Yep
SM: Um its very, very strange, Is there anything, its just pool cleaner this shit isn’t it?
TN: Yeah, yeah
SM: Yeah okie doke, that’s really strange, Um all I can do is just sort of keep waiting um obviously its Friday now, I’m not going to be able whatever they do clear it and get it down to you today
TN: Yep
SM: Ah I just thought I will let you know that
TN: No worries
SM: That all cool, I, it’s, it’s, it’s weirdness, oh well let them work out what’s going on
TN: No worries thanks mate
SM: Okie doke bye
TN: Bye
On 22 May 2017 at 2:12pm, Marsh again called the offender. The conversation was as follows:
TN: Hello
SM: Hello Shawn from Show Freight
TN: Hey mate how are ya?
SM: Good how are you?
TN: Yeah good mate good
SM: Um Customs have just rung me and they said they had had a backlog, but they reckon they are going to clear this tomorrow
TN: Alright
SM: I just wanted to confirm where you wanted it delivered to, should be able to get it down to you on Wednesday apparently
TN: Yeah, yeah, um, ah just to the um four B Lyell street
SM: What is it sorry?
TN: Sorry mate hang on a second, I’ll just ah
SM: You right running around I can hear [laugh]
TN: Yeah, yeah,
SM: You got to get some fitness into ya
TN: Yeah, um yeah four b dash nine
SM: Four B dash nine
TN: Lyell
SM: L, L, its two L’s isn’t it Lyell
TN: L Y E double L
SM: Y A ah Y E double L ok
TN: Yeah street, ah Fyshwick
SM: No probs, okie doke, once they um, once they clear it I will give you a hoi and just let you know how it is coming down
TN: No worries cheers mate
SM: Cheers bye
TN: Bye
Execution of search warrants
On 23 May 2017, AFP executed Section 3E Crimes Act 1914 search warrants at following addresses:
(a)xx Rylstone Crescent, Crace, ACT (the offender’s home);
(b)xx/x Lyell in Fyshwick, ACT (warehouse for Consignment 2);
(c)Unit xx/x Gladstone Street, Fyshwick, ACT (warehouse for Consignment 1);
(d)xx/xx Wollongong Street Fyshwick ACT.
The offender was present at the commencement of the search warrant at xx Rylstone Crescent, Crace, ACT.
During the search of the offender’s premises at xx Rylstone Crescent, Crace, ACT, AFP Officers located and seized the following items:
(a)St George bank Receipt for a cash deposit $24,000 into account name Tamim Jamaal Nozhat located under the front passenger seat of a 2009 Red Mazda 3 Sedan with ACT registration xxxxxx parked in front of xx Rylstone Crescent Crace ACT;
(b)1 x black Acer Aspire computer tower found in the upstairs floor of xx Rylstone Crescent Crace ACT;
(c)3 x St George bank Receipt bank cash deposit slips totalling $26,600 into account name Tamim Jamaal Nozhat found in the rear seat of a silver Isuzu utility ACT registration xxxxxx parked in front of xx Rylstone Crescent Crace ACT;
(d)ASIC business documents relating to Wholesale Pool Supplies and business name holder details Tamim Jamaal Nozhat found in the rear passenger seat of the 2009 Red Madza 3 Sedan with ACT registration xxxxxx.
During the execution of the search warrant of the Lyell Street Warehouse, a large black and red coloured forklift was found inside the warehouse.
During the execution of the search warrant at xx Rylstone Crescent, Crace, the offender participated in a record of conversation. During that record of conversation, the offender stated:
(a)He knows what MDMA is.
(b)He purchased 360kg of chlorine from Germany on about 17 May 2017 from eBay. He was the only person involved in the purchase. He did not recall how much money he paid for the chlorine. He paid for it through the business account that “we” set up.
(c)He started a company called “Wholesale Pool Supplies” a couple of months ago. He is the only person involved in that company.
After the execution of the search warrant of xx Rylstone Crescent Crace, the offender was offered a chance to participate in a record of interview. The offender agreed and was then conveyed to the Belconnen Police Station. The offender was cautioned and provided with his Part 1C rights. During the record of interview, the offender stated the following:
(a)He has an equal third share in Fusion Homes with Sam Haragli and Abdul Waris Khalid;
(b)Haragli was like a “mentor” to the offender;
(c)The offender recently finished studying a 4 year Building and Construction Management course;
(d)In the past, the offender had been doing a lot of cash jobs around Canberra but had not been employed full time until the Fusion Homes business was started;
(e)The offender was not sure if the company had made a profit and had not submitted tax returns;
(f)The offender answered “um no” to the question “…do you have whatsapp on your phone?” and immediately thereafter answered “um no” to the question “Okay. Do you have any other messaging Apps on that phone?” (Questions 161 and 162);
(g)The offender also answered in answer to questions 172 and 173 of the record of interview dated 23 May 2017;
(h)The offender owned the 2009 Red Madza 3 Sedan with ACT registration xxxxxx;
(i)No one in his family was involved in the pool supplies business; and
(j)Tamim Nozhat’s phone was examined on 23 May 2017. There was no evidence of the application Wickr and WhatsApp on his phone (they had been deleted).
On Tuesday 5th December 2017, the offender was arrested at a construction site in Lawson, ACT. The offender was then conveyed to ACT Regional Watch House where he was charged and remanded to appear before the ACT Magistrates Court on 6 December.
Other information - the offender’s finances
The offender has a share in the business Fusion Homes and Designs Pty Ltd (Fusion Homes) and is a director of that company. Fusion Homes commenced trading in June 2016. Khalid and the offender were paid a wage of approximately $500 per week which is deposited into their personal accounts.
Between June 2016 and July 2017, the offender has earnt approximately $17,000 whilst employed by Fusion Homes. The offender has not withdrawn any money from the company apart from the weekly amount of $500.
Between 28 April 2017 and 9 May 2017, a total of $62,500 in cash was deposited into the offender’s personal St George bank account number xxxxxxxxx.
The offender’s taxable income for financial year 2015 was $30,200.
The offender’s taxable income for financial year 2016 was $6,188.
Haragli had never heard of the offender talk about being involved in a pool company or importations.
Other information - the contents of the offender’s mobile telephone
Examination of Lawfully Intercepted Information from Warrants A10898/00/00 and A10898/01/00, being data and telephone interception obtained from the offender’s mobile telephone number 04xxxxxxx8, revealed the following:
(a) conversations via eBay between Wholesale Pool Supplies, an eBay user account in the offender’s name, and dimiwowstef regarding, “Aquafive Chlor Pool Cleaner BluLine”;
(b) searches for chlorine including prices on 18 May 2017 between 3.10-3.18pm;
(c) Wickr and Whatsapp messaging notifications between 18-22 May 2017; and
(d) ASIC information regarding company searches.
Examination of the Lawfully Intercepted Information revealed that, on 26 May 2017, the offender’s mobile telephone number 04xxxxxxx8 began to be used in a different mobile phone.
The lawful interception of the offender’s mobile telephone number 04xxxxxxx8 commenced on 18 May 2017.
Other information - relationship between the offender and Omari
The offender and Masoud Omari were family friends. Omari went to school with the offender’s older brother. Omari’s date of birth is xx xx xxxx.
A mobile phone used by Omari was seized on 23 January 2017. It contained telephone calls, telephone messages and chats between Tamim Nozhat and Masoud Omari between 20 June 2016 and 5 January 2017. Police have no evidence that these communications related to unlawful conduct.
Omari had an electrical company called EDS that provided electrical services to the construction industry.
Omari had ordered and designed signage stating “FUTURE POOLS ACT [email protected]”.
On 20 May 2017, the offender was contacted by Omari. Lawfully Intercepted Information in respect of telecommunications service 04xxxxxxx8, being the offender’s mobile number, revealed the following conversation:
TN: Hello
MO: Yo
TN: How are you?
MO: What are you doing?
TN: Na Nothing, just at home
MO: Where?
TN: Just at home
MO: Ah I tried messaging ya
TN: Hey
MO: I tried messaging ya
TN: My phone, my phone froze this morning so I had to reboot it
MO: Ah well try to get onto me
TN: No worries
MO: Alright bye
TN: Alright see you mate
A mobile phone used by the offender contained a contact named “masood omari” associated with Omari’s phone number.
Other information - commercial value of chlorine
The business “Kleenco Australia” in Punchbowl, NSW, sells liquid and powdered chlorine. Kleenco imports its powdered chlorine from the USA. Kleenco imports chlorine at a price of $4.28 per kilogram, including delivery. Kleenco would purchase 720 kilograms of chlorine for $3081.60. Kleenco would sell that quantity retail for $5756.40.
The business “Cool Pools” in Belconnen, ACT, sells liquid and powdered chlorine. Cool Pools purchases and sells different varieties of powdered chlorine in buckets from one kilogram to 10 kilograms. Cool Pools purchases “Swim Clear” chlorine in 10 kilogram buckets for $58.10 (being $5.81 per kilogram) and sells the buckets for $226 (being $22.60 per kilogram).
The business Bunnings, which has a store in Fyshwick, ACT, sells liquid and powdered chlorine. Bunnings sells powdered chlorine in buckets of two, four and 10 kilograms. Bunnings purchases a 10 kilogram bucket for $30.34 (being $3.03 per kilogram) and sells that bucket for $39.95 (being $3.99 per kilogram). Bunnings would purchase 720 kilograms of chlorine for $2,184.48 and would sell that amount for $2,876.40 (if sold in 10 kilogram quantities).
Masood Omari
Omari has not been prosecuted for this offence. He is believed to be overseas.
Custodial history
The offender has been in custody bail refused referable solely to this matter since 5 December 2017.
Statement of Andrew West
The statement of Andrew West relates to the dealings between Mr Omari and Mr West which related to the first consignment. The statement was made on 20 December 2017. The relevant parts of the statement may be summarised as follows.
He lived in the Canberra area all his life. He went to Canberra High School which is in Macquarie. He started in 2004. He was in the same year as Mr Omari. They were friends but not that close outside school.
In 2007 he moved to Hawker College. He believes that Mr Omari went to the same school.
He graduated from Hawker College in 2009 and became an employee of the Bendigo bank in Canberra. He lost contact with Mr Omari. He then went on to work for St George bank.
About a year and half prior to the statement he got into a lot of debt because he had a substance abuse issue. A friend suggested going to Mr Omari to borrow money. He contacted Mr Omari via the Wickr app and the two were in continued contact since then.
He started gambling online as well as using illicit substances. He was borrowing a lot of money from Mr Omari. Mr Omari was supplying him with cocaine “on tick”.
Before he knew it, he was in debt to Omari for $30,000. Although he disagreed with Omari over the amount, Omari told him that he had worked it out and that is what he owed.
In January 2017 he quit his job at the bank. Soon after resigning Omari contacted him and they met at Nando’s in Belconnen. Omari said that he was setting up a pool cleaning business. That was the first time he recalled Omari talking about pool cleaning.
Mr Omari then spoke to him about registering Future Pools of a business name. He recalled the name Simon Daly being a business partner in the registration of the company. Mr Omari told him that Simon Daly was a friend from the south side and that he was away or something like that.
A couple of days after this Omari came to West’s house in Crace. He showed him a picture of chlorine for sale on a tablet computer. The chlorine was for sale on eBay. Mr Omari asked if Mr West would transfer the monies for the purchase of the chlorine from Mr West’s account in order to purchase it from Germany.
Mr West asked why Mr Omari wasn’t doing it and he told him that he could not make transfers from his bank account for some reason. Omari assured him “over and over” that it wasn’t something illegal and as a result Mr West agreed to pay for the chlorine. Mr Omari handed him a piece of paper which had the account details and the name of the company to send the money to. The company was in Germany.
The following day Mr West met Mr Omari out the front of the gym in Belconnen. Although he cannot recall the exact amount of cash that was handed to him, he believes that it was about $1000 over what he had to transfer to Germany to pay for the chlorine. Omari told him that if he did this for him he would not owe him any more money. Mr West said that although “it sounds crazy” he thought he was bringing over some chlorine and that there were no drugs involved.
Mr West then drove to the Belconnen St George bank branch and deposited money into his bank account. He did this through the automatic teller machine. Shortly after depositing the cash into his account he sent it to Germany, thinking that was the end of his involvement with chlorine or the pool company.
A day or so later, Mr Omari picked him up and drove to Kippax library. Mr Omari told him that he would have to sign the “Customs Safe Goods Declaration”. He filled in the document in his own handwriting and signed it. This was done in the library so as to get access to a scanner and to send the document back to the customs broker. Later that day, Mr Omari contacted him and asked for a copy of his licence so that he could send it to Show Group Enterprises. Mr West sent a photo of his license in a text message. Mr Omari then told him to contact Show Group Enterprises to make sure that they had all the information that they needed. Mr West did so and was told that the chlorine would be delivered from Sydney to the TNT depot in Hume.
Mr West told Mr Omari that he would not be able to collect the chlorine from TNT. Mr Omari then asked him to call TNT to confirm that Mr West did not have to be there in person to collect the chlorine. Mr West did so and was told that TNT did not have an issue with it so long as the person collecting the consignment had identification. After that Mr Omari was okay with him not collecting the chlorine.
The same day Mr Omari messaged him and asked him to go to his mother’s house. When sitting in the car outside the front of the house, Mr Omari told him that he needed his licence. “Again [Mr Omari] kept assuring me that there was nothing illegal. He kept saying stuff like “would I do that to you”. He was constantly reassuring me that there was nothing illegal”. Mr Omari told him that he needed to have his licence along with the customs form to pick up the chlorine. Mr West gave Mr Omari his New South Wales driver’s licence.
After handing over his licence, he had no further involvement with the chlorine. At no stage was he made aware that there were drugs located in the chlorine. He never purchased anything else on behalf of Mr Omari. He was not aware of, and did not have any involvement with the later consignment which contained MDMA.
In relation to the offender he said: “I have also been asked about Tamim Nozhat who was charged in relation to the 350kg of MDMA. I can say that I do not know Nozhat and would not know him if I ran into him in the street”.
He had no experience with chlorine or the pool cleaning industry and had never met Simon Daly.
Statements to police
The conversation between the offender and police occurred on 23 May 2017 during the course of the execution of a search warrant at his house in Crace. Questions and answers 172 and 173 provide:
Q 172.… Now, when you talk to other people, what other mediums do you use? So, what other applications on your phone do you use to talk to your friends?
A Just phone. Phone calls.
Q 173.What about texting? Like, I say, Wicker but are there any other applications that you used to talk to your friends on your phone?
A Just, um, phone calls and, um, just the normal message.
These questions and answers appear shortly after the questions and answers referred to at [77(f)] above.
At what time is recklessness established?
The Crown submitted that the facts set out above established beyond reasonable doubt that Mr Nozhat was reckless as to the imported substance being a border controlled drug on and from 28 April 2017 when he signed the lease for the Lyell Street warehouse. Counsel for Mr Nozhat contends that Mr Nozhat has not been shown to be reckless prior to the point at which he admits recklessness, namely 2:42pm on 18 May 2017 when he had the telephone discussion with Mr Marsh from the freight forwarding company and was told that there was a customs hold on the consignment of chlorine.
Having regard to the fact that the establishment of recklessness at an earlier stage will increase the objective seriousness of Mr Nozhat’s offending conduct, the Crown is obliged to establish that fact beyond reasonable doubt. The critical issue is whether the Crown has proven the state of awareness required by the first limb of the definition of recklessness. The Crown seeks to have that finding made on the basis of an aggregation of circumstances disclosed in the facts referred to above. As pointed out earlier in these reasons, if the subjective state of awareness necessary to constitute recklessness is to be established beyond reasonable doubt then the aggregation of circumstances must be such that there is no reasonable hypothesis consistent with Mr Nozhat not being reckless.
Counsel for the Crown emphasised the following aspects of the evidence:
(a)the offender’s background in association with Mr Omari;
(b)the involvement in the purchase of the warehouse that was to take delivery of consignment one;
(c)the dealings in substantial quantities of cash;
(d)the offender’s complete lack of involvement in the pool chlorine business;
(e)the non-disclosure to his “mentor” Mr Haragli of the pool chlorine business;
(f)the sheer value of the consignment;
(g)the secretive communications between Mr Nozhat and Mr Omari; and
(h)the absence of any reaction to news that Consignment 2 was delayed.
Relationship: Counsel for the Crown emphasised that Mr Nozhat and Mr Omari were family friends, that a mobile phone used by Mr Omari contained telephone calls, telephone messages and chats between Mr Nozhat and Mr Omari between 20 June 2016 and 5 January 2017 and that a mobile phone used by Mr Nozhat contained a contact named “massood omari” associated with Mr Omari’s phone number.
Counsel for Mr Nozhat emphasised the age difference between the two men, Mr Omari being 25 and Mr Nozhat being 22 years old. He also emphasised the absence of evidence of any greater involvement between the two, such as existed between Mr West and Mr Omari.
In my view, the evidence about the extent of the relationship between the two men is limited. There is no evidence for example of a pre-existing drug-related association between the two. Nor is there any evidence that the relationship between the two men was a close one. The age difference is consistent with Mr Omari being dominant in the relationship.
Involvement in lease for Consignment 1: counsel for the Crown submitted that Mr Nozhat was involved in arranging a storage place for Consignment 1 and that the dealings in relation to the lease were unusual enough that they would be significant in giving rise to an awareness of a substantial risk by the time of the lease on 28 April 2017 that a border controlled drug was to be imported.
The facts do not disclose any involvement on the part of Mr Nozhat in relation to the purchase of the Gladstone Street warehouse prior to 9 March 2017. He was involved in the negotiation of the purchase of the premises. His identity was disclosed to Imad Maatouk. He handed over $40,000 in cash as the deposit on the sale. This money was provided to him by Omari.
There is evidence that a conveyancing business was engaged in relation to the purchase contract and that a commercial lease agreement showing Mr Nozhat as the lessor was also prepared. There is also evidence that Mr Omari had ordered signage for the business.
There is no evidence as to what Mr Nozhat was told by Mr Omari about this transaction. The unusual feature is clearly payment of large sums of money as a deposit using cash. In my view, it is significant that this was done openly in Mr Nozhat’s name, that signage has been ordered and that there was some legal work done in relation to a commercial arrangement involving the lease of the premises by Mr Nozhat to someone else although such a potential transaction was unexplained by the evidence.
There is no evidence that Mr Nozhat was told about Consignment 1 or that he otherwise participated in arrangement of Consignment 1 in a way which would give him knowledge of the purpose of the purchase of the warehouse or the arrangements made for the purchase of chlorine as part of Consignment 1. There is no evidence of any conversation such as occurred between Mr Omari and Mr Huckstepp. There is evidence that there was no contact between Mr West and Mr Nozhat as Mr West’s evidence was that he did not know Mr Nozhat.
Dealings in cash: I have referred above to the significance of the payment of the deposit of $40,000 in cash. The other dealings in cash involve the payment by Mr Omari to Mr Nozhat of $62,500 between 28 April 2017 on 9 May 2017 and the transfer out of money for the purposes of the lease, the overseas payments and import duty and tax totalling $57,783.95.
Counsel for the accused submitted that there was a commercial plausibility so far as the payments proposed were concerned. That arose because the initial agreement to purchase the Gladstone Street warehouse involved a deposit of $60,000. Only $40,000 in cash was provided. The deal then did not proceed as Mr Nozhat explained that “we” were having financial difficulties. The Lyell Street warehouse was then secured by a lease rather than a purchase at a lesser price: $25,000 per annum paid upfront. Those facts were sufficient to indicate that there was at least a plausible internal logic about the transactions to secure a warehouse which is less indicative of Mr Nozhat being aware that the purpose for which those facilities was secured was the importation of a border controlled drug.
The provision by Mr Omari of substantial quantities of cash for the purposes of the lease and the overseas transfers were clearly matters which might be considered to be suspicious. The overseas transfers in particular are consistent with there being some illegal or fraudulent purpose. However, there is no evidence as to what Mr Nozhat was told about these transfers. There is no evidence as to what Mr Nozhat was told about the reasons why Mr Omari was unwilling to carry out the transactions in his own name.
Lack of involvement in the pool chlorine business: The evidence establishes that Mr Nozhat had no relevant background in any business relating to pool chlorine. That is certainly a factor consistent with him being aware of the risk that the pool chlorine was simply a façade for the illegal importation of something. On the other hand it may have left him without knowledge that would permit him to see through any falsehoods he was told about the importation or what was required for the conduct of such a business.
In assessing the significance of this factor it must also be borne in mind that Mr Nozhat was a young man. He was younger than Mr Omari. He has not been shown to be a man of business or worldly experience. It is a regrettable fact of human life that young people, due to their naïveté, are more able to be deceived about the true nature of business activities than older people with a more realistic view of human nature.
The non-disclosure to his “mentor” Mr Haragli of the pool chlorine business: Mr Haragli had never heard the offender talk about being involved in a pool company or importations. This fact is certainly consistent with the activity being one which Mr Nozhat sought to keep secret from Mr Haragli because he realised that it was a front for illegal activity.
However the evidence about the relationship with Mr Haragli was minimal. It is not possible from the evidence to make a nuanced judgment as to how close the relationship with Mr Haragli was and whether or not in light of that relationship recent involvement in a new enterprise would be something which would necessarily be expected to be discussed.
The sheer value of the consignment: Counsel for the Crown submitted that having regard to the sheer value of the consignment it was inconceivable that there would not have been discussions about the nature of the material to be imported. Counsel for Mr Nozhat submitted that this was an approach that was inconsistent with the agreed facts in which the Crown accepted that Mr Nozhat did not have actual knowledge of the contents of the consignment.
I accept the submission for Mr Nozhat that to find that, because of the value of the consignment, the nature of the substance imported would have been discussed between Mr Omari and Mr Nozhat would be a matter which would lead to actual knowledge and hence not consistent with the agreed facts. However the very significant value of the consignment might be a matter which could be argued would lead to a disclosure of facts which gave rise to an awareness of a substantial risk, short of knowledge, that what was being imported was a border controlled drug.
In any event, it is not apparent to me that the very significant value of the consignment was, of itself, a fact which lead to more rather than less disclosure of the nature of the consignment by Mr Omari to Mr Nozhat. It appears to me to be at least equally likely that Mr Omari would take steps to strictly limit the persons who were given information indicating that what was being imported was a border controlled drug or the quantity of it. The wider the extent of disclosure of such information the more likely that such information would be passed on to either the authorities or persons who may have an extra-legal interest in such an importation or its proceeds.
Secretive communications: Counsel for the Crown pointed to the conversation on 20 May 2017 indicative of an intention to communicate over an encrypted messaging app rather than on the telephone. He also pointed to the answers to questions 161, 162, 172 and 173 in the interview with police (see [77] and [118] above). He submitted that the evidence given to police was false. Counsel for the accused contended that the answers were not in fact false at the time, they were given because Mr Nozhat did not in fact have those apps on his phone at the time of the interview as they had been deleted. In any event, he submits that this evidence and any evidence of the use of these apps postdates the 18 May 2017 conversation which Mr Nozhat admits led to him being aware of a substantial risk that what was being imported was a border controlled drug and hence the evidence is of little significance to the present issue.
Absence of reaction: Counsel for the Crown referred to the terms of the conversations recorded on 18 and 19 May 2017 and emphasised that Mr Nozhat showed no reaction to the information being provided to him. Counsel for the Crown submitted that was consistent with Mr Nozhat being careful to disclose as little as possible to Mr Marsh during the course of those conversations and not being surprised on being told that there was a delay or being asked whether there was anything other than pool cleaner in the consignment. It is therefore consistent with the Crown case that Mr Nozhat had been aware of at least a substantial risk that what he was involved with was the importation of a border controlled drug. However the weight that can be given to that in the circumstances is limited having regard to the absence of other information that would permit an assessment of whether or not this reflected a calculated approach of minimal disclosure, whether it simply reflected Mr Nozhat’s natural manner of communication or whether it was otherwise explicable as a result of what Mr Nozhat had been told by Mr Omari.
Consideration and conclusion
Although I have above separately examined the particular matters emphasised by the Crown, in assessing whether the Crown has established its circumstantial case that Mr Nozhat was reckless I have considered and weighed all the circumstances in deciding whether there is available an inference consistent with innocence reasonably open on the evidence. It is the united forced of all those circumstances put together which must be considered: R v Hillier [2007] HCA 13; 228 CLR 618 at [46] and [48].
I am not satisfied beyond reasonable doubt that as at 28 April 2017 Mr Nozhat was aware of a substantial risk that the substance being imported was a border controlled drug. At that point the evidence of his involvement only relates to the securing of premises. The nature of the relationship between the parties was not such as to provide significant circumstantial support for the proposition that Mr Nozhat was aware of a substantial risk that what was going on involved unlawful activity, particularly, the importation of a border controlled drug. The position contrasts, for example, with the position in relation to Mr West who had a pre-existing drug-related debt to Mr Omari and was being asked to do acts in exchange for the extinguishment of that debt.
The use of cash in the transaction relating to the Gladstone Street warehouse and the provision of cash for the purposes of the lease of the Lyell Street warehouse are both matters which are out of the ordinary. However those circumstances considered against the background of what occurred previously and relationship between Mr Omari and Mr Nozhat, leave open the reasonable hypothesis that Mr Nozhat was kept in the dark about the ultimate purpose of the securing of those premises and unaware that the securing of those premises formed a small part of a larger scheme to import border controlled drugs. For the reasons given above the nondisclosure to Mr Haragli and the value of the consignment ultimately imported are not circumstances which change that conclusion.
Because of the limitations on the agreed facts and the additional material, looking at the united force of the circumstances put forward by the Crown, I cannot be satisfied on reasonable doubt that Mr Nozhat was aware of a substantial risk that the actions that he had taken were for the purposes of the importation of border controlled drugs.
It is then necessary to examine the situation after 28 April 2017. That involves the period during which:
(a)payment of rent in advance was made from Mr Nozhat’s bank account to the real estate agent;
(b)the Internet transfers of $29,650 were made from his bank account; and
(c)he enquired about the progress of the consignment from the freight forwarder and customs broker, provided a letter of authority to the broker and paid for import duty and tax.
It is at this point that it is clear that Mr Nozhat was aware of the importation something purportedly for the purposes of a business identified as “Wholesale Pool Supplies”. There is no evidence as to what he was told by Mr Omari about the reasons for establishing the Wholesale Pool Supplies business or the renting of premises. The circumstances taken collectively leave open at least a reasonable possibility that Mr Nozhat was aware that there was a significant risk of some unlawfulness being involved in the importation which he was asked by Mr Omari to pursue. However I cannot be satisfied beyond reasonable doubt that the circumstances taken as a whole prove that he was at this stage aware of a substantial risk that what was being imported was a border controlled drug. Whether he was aware of that substantial risk would be significantly influenced by what he was told by Mr Omari and there is no evidence of that. He may have been told some plausible but false story about the nature of the chlorine product being imported. Alternatively, he may have been told that some unlawful item other than border controlled drugs was being imported. Alternatively, there being no evidence that he was aware of the “dummy run” involving Consignment 1, he may have been told that this import was a dummy run and told some plausible falsehood for the reasons for the overseas payments. The complexion of the circumstances would be significantly changed if there was evidence of his awareness of Mr Omari’s involvement with drugs which would provide a background against which the circumstances of which he was aware could be judged. However on the agreed facts there is no such background evidence to give a particular complexion to the circumstances.
Shortly after the conversation with Mr Marsh, the making of enquiries about chlorine and the prices of chlorine is consistent with Mr Nozhat’s claim that it was at this point that he became aware of the substantial risk that what was involved was the importation of a border controlled drug and not chlorine, as is the use of the Wickr and WhatsApp messaging services in the period from 18 to 22 May 2017. I recognise that the searches for chlorine including its price are also consistent with Mr Nozhat attempting to shore up a false story about the importation of chlorine but that consistency leaves open the reasonable possibility that the searches were done in the circumstances asserted by Mr Nozhat.
My conclusion is that the evidence before me is not sufficient to establish beyond reasonable doubt that prior to 18 May 2017 Mr Nozhat was aware of the substantial risk that what was to be or had been imported was a border controlled drug. The circumstances are such that there must be a serious suspicion that he had such an awareness but upon the facts that have been put into evidence I cannot be satisfied of that beyond reasonable doubt. I find therefore that he became reckless at the point of the conversation with Mr Marsh on 18 May 2017.
I have previously made procedural directions in relation to the sentencing hearing.
| I certify that the preceding one hundred and fifty one [151] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 7 February 2020 |
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Amendments
| 1 April 2019 | Insert “Sydney” before “Criminal Law Specialists” | Solicitors (Offender) |
| 1 April 2019 | Replace “2019” with “2018” | File Number |
| 1 April 2019 | Replace “AM” with “am” | Paragraph: [70] |
| 7 February 2020 | Replace “R v Nozhat” with “R v Nozhat (No 2)” | Case Title |
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