R v Nozhat (No 3)
[2019] ACTSC 160
•21 June 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Nozhat (No 3) |
Citation: | [2019] ACTSC 160 |
Hearing Date: | 22 May 2019 |
DecisionDate: | 21 June 2019 |
Before: | Mossop J |
Decision: | See [43] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – importation of a commercial quantity of a border controlled drug – fault element under s 307.1 of the Criminal Code (Cth) of recklessness – large quantity of drugs imported – offender had minor role in criminal enterprise – no criminal history – low risk of reoffending |
Legislation Cited: | Criminal Code Act 1995 (Cth), ss 11.1, 300.6(d), 307.1, 307.5 Criminal Code Regulations 2002 (Cth), Sch 4, Item 128 |
Cases Cited: | Davidson v The Queen [2009] NSWCCA 150; 75 NSWLR 150 Director of Public Prosecutions (Cth) v Brown [2017] VSCA 162 Tyler v The Queen [2007] NSWCCA; 173 A Crim R 458 |
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
The offender, Tamim Nozhat, pleaded guilty to a single count of attempting to import a commercial quantity of border controlled drugs contrary to s 307.1 of the Criminal Code1995 (Cth) (the Code) between 28 April and 22 May 2017. The maximum penalty for a contravention of s 307.1 is life imprisonment or 7500 penalty units or both. Section 11.1 of the Code provides that a person who attempts to commit an offence is punishable as if the offence had been committed. The fault elements for an attempt under s 11.1 of the Code are, in relation to s 307, modified by s 300.6(d) so that recklessness as to whether the substance was a border controlled drug is sufficient.
The offender’s guilty plea was based upon an Agreed Statement of Facts. The Crown’s case was that the offender played a role in assisting the principal, Masoud Omari, to attempt to import 279kg (pure) of 3,4-methylenedioxymethamphetamine (MDMA) into Australia from Germany, secreted in buckets of chlorine. A commercial quantity of MDMA for the purposes of the Code is 0.5kg: Criminal Code Regulations 2002 (Cth), Sch 4, Item 128. The estimated street value of the drugs was $139,548,000.
Notwithstanding the Agreed Statement of Facts, one issue remained in dispute, namely, the point at which the offender became reckless as to the fact that the substance that he attempted to import was a border controlled drug. The Crown asserted that the offender’s liability for the fault element of recklessness commenced when he signed the lease for a warehouse on 28 April 2017. The position of the offender was that he was not reckless until 2:42pm on 18 May 2017 when he received a phone call from a Shawn Marsh, a representative of the freight forwarder and customs broker, and Mr Marsh told him that there was a customs hold on the consignment of chlorine. That was a significant issue because there were a number of steps taken by the offender in the period from 28 April to 18 May 2017 which would have increased the objective seriousness of his involvement in the offence. Because of that, if the offender was to be sentenced on the basis of being reckless at the earlier time, then it was necessary for the Crown to establish that fact beyond reasonable doubt: R v Olbrich [1999] HCA 54; 199 CLR 270 at [27].
On 29 March 2019, I published my reasons for concluding that the Crown had only proved beyond reasonable doubt that the offender became reckless on 18 May 2017 at about 2:42pm when he was told by Mr Marsh that there was a customs hold on the shipment: R v Nozhat [2019] ACTSC 81.
The facts are set out in detail in my earlier reasons and provide the basis upon which the offender is to be sentenced. It is unnecessary to recite them in detail here, although it will be necessary to make some reference to them in order to assess the submissions of the parties.
Objective seriousness
Clearly, the attempted importation was of an extremely large amount of MDMA. It was in excess of 550 times the commercial quantity. However, that fact must not be allowed to obscure the following features of the objective seriousness of the offender’s conduct:
(a)While the offender’s plea of guilty recognises that he was reckless in relation to the existence of a commercial quantity of the drug (0.5kg), the circumstances were not such as to indicate that he was aware of a substantial risk of there being a quantity as large as that which was actually attempted to be imported.
(b)The actual conduct in which he engaged following the point at which he became reckless involved only the receipt of two telephone calls from Mr Marsh (the customs broker), during which the offender said very little other than, during the second of those conversations, confirming a delivery address. There were also some communications with Mr Omari, although it is not possible to make any finding about what those communications were other than that they were foreshadowed in the intercepted telephone call referred to in Nozhat at [92].
This is therefore a case in which there are “conflicting and contradictory elements” which affect the assessment of the objective seriousness of offending and it would be wrong, in the circumstances, to place too much weight upon the weight of the border controlled drug now known to have been involved: R v Pham [2015] HCA 39; 256 CLR 550 at [36].
Because of the fact that the offence involves recklessness rather than actual knowledge, that the recklessness only arose close to the end of the series of events in which he was involved and because of the very limited conduct on the part of the offender from the point at which he became reckless, the objective seriousness of this offence is, notwithstanding the quantity of MDMA now known to have been involved, at the low end of objective seriousness for this very serious offence.
Subjective circumstances
The evidence concerning the subjective circumstances of the offender comes from a number of sources: a pre-sentence report, a letter from the offender’s mother, a letter from a chaplain at the Alexander Maconochie Centre (AMC), a letter from an education provider at the AMC, a letter from the offender himself, a character reference from an imam at a mosque attended by the offender and a psychological assessment by a forensic psychologist.
The offender is one of four children. His parents immigrated to Australia in 1993, fleeing war-torn Afghanistan. On the way to Australia, the family spent five years living in Pakistan in poverty. The offender and his younger brother were both born in Australia. The offender had a positive upbringing and his family remains close. His family remains supportive of him notwithstanding his current circumstances. His mother describes him as “a wonderful son”, “kind, thoughtful and incredibly giving of his time to others”.
The offender is single and has no children. He has completed Year 12 and was studying a degree in building and construction management. At the point where he was taken into custody he was close to the end of his degree.
From his early teens until 2015, he worked at Fyshwick fruit and vegetable markets. He and his brother would contribute all the money they earned to the family. In 2015, he commenced working in the construction industry. In 2016, he went into business along with two of his friends as a one-third shareholder in a construction company. He intends to return to work in the construction industry when he is released from custody. He reported having debts of approximately $120,000 as a result of his construction business.
He reported never using illicit substances and there is no evidence to the contrary. He has no physical health issues.
So far as his involvement in the attempted importation was concerned, he reported both the author of the pre-sentence report and to his mother that he had been approached by a trusted associate within the construction industry to help set up the administrative side of the alleged business. Mr Omari owned an electrical engineering company and the offender’s business would often get quotes from that company for houses that they were constructing. He described Mr Omari as “an incredibly charismatic and articulate person”. He was happy to assist because he felt that this may provide an opportunity to develop a greater network for his own company. He said that Mr Omari explained that “for tax purposes he did not wish to start the company in his name”. The offender was offered $2000 to set up the new company. He said he had no knowledge that the order for goods from the German company would contain anything other than pool supplies. He is reported by the author of the pre-sentence report as saying that he was assured by Mr Omari that the product was a specialised chlorine product. He said that he became concerned that unlawful activity may have occurred when the order was held up by customs. The author of the pre-sentence report indicated that the offender accepted full responsibility for his actions and was able to articulate a comprehensive understanding of the impact of this type of offending on the community. He said that he was ashamed to be associated with such an act. His mother recorded that he has “incredible guilt towards his family” in particular because of the financial burdens imposed upon the family as a result of his conduct.
He was assessed by the author of the pre-sentence report as being at a low risk of general reoffending.
A chaplain at the AMC who provided a reference for the offender has reported that he has become a valued member of the AMC Muslim community and has become a leader in the centre with both Muslim and non-Muslim detainees. He has supported and encouraged other detainees and sets a good example for them. She says that he works hard to make his area a peaceful place. She records that on an occasion when the imam was unable to attend Friday prayers he led the prayers instead and was accepted by the other detainees who are older than him and came from different cultural backgrounds and were of different classifications within the centre. She records that the offender is “a person of many gifts, who has worked hard during his time in the AMC to turn his life around”.
A letter from a trainer/assessor at an education provider within the AMC reports the offender’s completion of a number of programs in the education and training section. The letter notes that he often assists other detainees in a positive mentoring capacity.
A letter from the imam of the Spence mosque attests to his honesty and integrity and the assistance that he has given both to the mosque and to members of the Islamic community.
A psychological assessment prepared by forensic psychologist Leesa Morris discloses that the offender is of average intelligence, although he is somewhat below average in his reasoning skills. The report emphasises his desire to be perceived as competent and successful by his family and community. It identifies his trusting nature and that Mr Omari’s position may have clouded his ability to make judgments about Mr Omari’s behaviours. Ms Morris says: “He impresses as a thoughtful young man who is responsive to the needs of others and eager for approval. All characteristics that can make him vulnerable to a person in a position of real or perceived power.” He is assessed by her as being at a low risk of reoffending. I do not accept the evidence of Ms Morris insofar as it records a diagnosis of adjustment disorder with anxiety as the “reports” that “suggest” that he meets the criteria for that are not adequately explained by reference to the diagnostic criteria set out in the report.
Criminal history
The offender has no criminal history.
Plea of guilty
The offender entered his plea of guilty on the second day of the trial. He then subsequently entered a plea of guilty to an amended indictment the next day. The plea of guilty occurred in the context of negotiations about the facts to be admitted. That was the subject of the disputed fact hearing at which the position contended for by the offender was ultimately accepted by the court. Notwithstanding the plea was a late one, it nevertheless avoided the need for a trial. The guilty plea reflects an acceptance of responsibility and, through the avoidance of a trial, the facilitation of the course of justice.
Time in custody
The offender has been in custody since 5 December 2017. The offender has therefore spent 563 days, or one year, six months and 16 days in custody prior to sentence (5 December 2017 – 20 June 2019).
Comparable cases
Counsel for the Crown provided a schedule of decisions of courts of appeal in relation to the offence of importing or attempting to possess a commercial quantity of a border controlled drug. Those cases were Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270; Director of Public Prosecutions (Cth) v Brown [2017] VSCA 162; R v Schelvis; R v Hildebrand [2016] QCA 294; 263 A Crim R 1; R v Yuan [2015] NSWCCA 198; 252 A Crim R 422; Luong v Director of Public Prosecutions (Cth); Nguyen v Director of Public Prosecutions (Cth) [2013] VSCA 296; 46 VR 780; Nguyen v The Queen [2012] VSCA 119; Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32; 31 VR 673; Pham v The Queen; Tang v R [2012] VSCA 101; Ma v R [2010] NSWCCA 320. These decisions disclose sentences for contraventions of s 307.1 or s 307.5 of the Code of between seven years and 21 years imprisonment.
The offender submitted that the case fell below the fourth category of case identified in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1. He submitted that of the cases referred to by the Crown, the most comparable was that of Minh Nguyen whose sentence was referred to in Luong. Minh Nguyen was sentenced upon three counts of attempting to possess a commercial quantity of an unlawfully imported border controlled drug contrary to s 307.5 of the Code. The quantity of drugs in question, in that case, was 29.1kg of cocaine, 21.8kg of methamphetamine and 6.3kg of MDMA. The sentence ultimately imposed, which did not incorporate any discount for a plea of guilty, was a sentence of three years upon each count and a recognizance release order made after approximately one year and five months.
In my view, the cases referred to in the table prepared by the Crown, whilst comparable in terms of the very significant quantity of drugs involved, are generally not comparable insofar as they relate to offenders whose involvement in the importation or possession was much greater than the offender in the present case. I accept the submission made on behalf of the offender that the case of Minh Nguyen is the most comparable.
It is necessary to say something more about the decision in Luong. The two offenders Minh Nguyen and Hung Luong were each charged with three counts of attempting to possess a commercial quantity of an unlawfully imported border controlled drug. There were three counts because each count related to a different drug. The drugs were cocaine, methamphetamine and MDMA. The total street value of the drugs imported was estimated at $98.5 million. The drugs were intended to be brought into Australia in a shipping container hidden in foot spas. United States Customs agents had in fact intercepted the shipment and substituted inert substances. The major organiser of the importation was Hung’s brother. Hung’s involvement with the attempt was substantial. He was involved in leasing the factory to which the drugs were to be delivered. He picked up another offender from the airport who had flown in from Canada, gave him $1000 and a SIM card and took him to the factory to which the drugs were to be delivered to have a look at it. He went to Bunnings to buy plastic which he then put up to cover the windows of the factory. He made telephone calls relating to payment arrangements for the charges relating to the container. He went to the customs brokers with another offender, giving an envelope to the other offender and asking him to go in and pay. He had involvement with known drug traffickers over the days prior to the date when the container that was meant to contain the drugs was opened. He had communications with various people involved in the operation shortly before the container arrived. He had keys to the factory on the date when the container was opened and directed others involved in the enterprise to change their SIM cards. He purchased tools from Bunnings used to open the foot spas, and his palm print was found on the bag of one of the tools found in the factory.
In contrast, Minh Nguyen’s only involvement was that he was asked by his wife to come and work for a day or two. He was not told about the nature of the consignment. His wife made arrangements with other offenders to organise a taxi and accommodation for Minh Nguyen. At about 8:18am on the morning when the container was opened, Minh Nguyen was told that it contained “chairs and others” and he only became aware of the drugs once the first foot spa was cut open. However, during the morning, he did assist the other offenders in unpacking the container until three Sydney drug dealers arrived at about 11:45am and, at about the same time, the Australian Federal Police.
The sentence imposed on Hung in relation to each of the charges was 10 years with the second and third counts being accumulated by two years and six months each, giving a total effective sentence of 15 years imprisonment. In the Court of Appeal both Luong and Nguyen appealed their convictions. Luong applied for leave to appeal against sentence but that leave was refused. There was no Crown or offender appeal against Nguyen’s sentence. Therefore, the decision of the Court of Appeal is not authority supporting the appropriateness of the sentence on Minh Nguyen. However, it does illustrate the scope for very different sentencing outcomes depending upon the degree of involvement in the offending conduct, notwithstanding the existence of commercial quantities of drugs well in excess of the threshold amount.
It is also useful to say something more about the authorities in group four identified in De La Rosa, the least serious of the four groups identified by McClellan CJ at CL. Of that group, his Honour said (at [214]-[215]):
The cases which I have included in the fourth group are Soewandi v The Queen [2002] WASCA 315, R v B [2004] WASCA 1, R v Labanon; Ex parte Commonwealth Director of Public Prosecutions [2006] QCA 529, Tyler v The Queen [[2007] NSWCCA 247; (2007) 173 A Crim R 458], R v Lake [2007] QCA 209; 174 A Crim R 491], R v Geerlings [[2007] QCA 209; 174 A Crim R 491] and Davidson v The Queen (2009) 75 NSWLR 150.
In this group the head sentences range from 6.25 years through to 8 years, while the non‑parole periods range from around 3 to 4.5 years. The cases are roughly split between those in which the offender has pleaded guilty and those in which they pleaded not guilty. Quantities of drugs range from 1kg to 30kg and offenders occupy roles variously described as instigators, overseers, collectors and couriers. Many offenders in this group had good antecedents and no prior convictions.
In relation to these cases, it is clear that the quantity of drugs imported was, in each case, very substantially less than the quantity involved in the present case. It is also important to note that each of these cases involved a greater degree of knowledge and involvement in the importation than existed in the present case.
Soewandi pleaded guilty to importing 1.2kg of methamphetamine into Australia strapped to his body. On appeal the sentence imposed was six years and three months with a non-parole period of three years and one month but that incorporated a total discount of approximately 50% on account of the plea of guilty and cooperation with authorities. The starting point was identified as being 13 years imprisonment. Obviously, the amount in question was substantially less than in the present case but there was very direct and knowing involvement in the importation.
The offender in R v “B” was involved with the importation of 6.9kg of ecstasy (pure weight 2.45kg). He was charged with aiding and abetting the importation. His role was to “shadow” and monitor the actual courier and report back by telephone to the organiser of the importation. “B” was described as a “relatively innocent, inadequate person who got led astray in Amsterdam” and thought he had “little alternative but to participate in a criminal enterprise”. The starting point was a sentence of nine years imprisonment with a non-parole period of four and a half years but, by reason of his admission of his involvement in the offence and guilty plea, this was reduced to seven years with a non‑parole period three and a half years. A Crown appeal against that sentence was dismissed.
In Tyler, the conspiracy was to import between 20 and 30kg of cocaine from South America on a passenger airline. Tyler’s role was to travel with a co-offender, Chandler, to South America, each carrying USD$50,000 and then return to Australia with the cocaine in his booked luggage which was to be shepherded through customs by corrupt baggage handlers. Chalmers played a very significant managerial role in the enterprise. In relation to Tyler, the sentence imposed was seven and a half years imprisonment with a non-parole period of four and a half years. That sentence incorporated a 25% discount for providing assistance to authorities, indicating a starting point of 10 years imprisonment. Clearly, the amount proposed to be imported was substantially less than the present case, but the offender had actual knowledge and his involvement was significantly greater than the present case.
Lake and Geerlings involved a conspiracy to import a commercial quantity of cocaine into Australia from Papua New Guinea via islands in the Torres Strait. Although large amounts of money were paid to residents of those islands, the plan never came to fruition. Lake was sentenced to seven years in prison and with a non-parole period of three and a half years. Geerlings was sentenced to eight years imprisonment with a non-parole period of four years. Both had hoped to obtain 5kg of cocaine for around $60,000 and that they could make an ongoing business of importation. Each had expended a considerable deal of energy in trying to achieve the goal of importation and had believed that success was imminent on several occasions. They were sentenced on the basis that each of their roles in reaching the agreement and their attempts to achieve the object were roughly the same. Leave to appeal against sentence was refused. Once again, although the amount in question was intended to be significantly less than in the present case, the offenders clearly had knowledge of the purpose of the conspiracy and their actions in pursuit of their agreement was substantially greater than the offender in the present case.
Davidson involved the importation through the postal system of a drug which could be readily converted into 4-hydroxybutanoic acid, commonly known as GHB. The drug imported was itself a border controlled drug. A total of 30.5kg was imported. Clearly, as the importer, the offender played a greater role than the offender in the present case. The sentence imposed was four sentences of six years each with an aggregate sentence of eight years. An appeal against sentence was dismissed.
Labanon stands out amongst these authorities as the only one involving recklessness as opposed to actual knowledge of the presence or involvement of border controlled drugs. In that case, a sailor on a ship of the United States Navy had carried packages, which had been stored in a radar dome on the ship, from the ship to the land, thereby importing them. He did so at the request of a former officer. The former officer had not told him what was in the packages. They were gift wrapped. The email request that he bring them was made in a way which suggested an attempt to avoid communication over the internet which might have been intercepted. He had been told not to tell others he was meeting the former officer to hand over the packages. The offender had placed clothing over the packages to conceal them when leaving the ship and misled other sailors about his intention to meet with the former officer. He had not expected payment for doing so but in fact received $10,000. The packages in fact contained 7.314kg of methamphetamine.
A Crown appeal against sentence was allowed and a sentence of eight years imprisonment with a non-parole period of four years was imposed. McMurdo P, with whom the other judges agreed, said (at [18]):
No reasonable member of a modern Western society like the USA or Australia could fail to be aware of the dangers of carrying sealed packages for others, especially in the suspicious circumstances here. Certainly [the offender], as a petty officer on a US warship, must be taken to have been well aware of the risks in doing what he did for his superior, [the former officer]. He was a mature man and did not have the mitigating benefit of a plea of guilty or co-operation with the administration of justice.
Thus, although this was a case of recklessness rather than actual knowledge, it was one in which the offender was clearly central to the importation and where there must have been an awareness of a very significant risk throughout that what was involved was the importation of border controlled drugs.
Consideration
General propositions applicable in relation to sentencing of drug importation offences are usefully summarised by Johnston J in R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at [72]. For the reasons that I have given earlier, notwithstanding the very large quantity of drugs attempted to be imported, the offending in the present case is at the low end of objective seriousness for what is a very serious offence. The personal circumstances of the offender mean that there is a low risk of reoffending. The principal sentencing consideration must be general deterrence.
Having regard to the maximum penalty identified by the legislature, notwithstanding that the objective gravity of the offence in the present case is at the lower end of the range, the seriousness of the offence is such that no sentence other than a sentence of imprisonment is appropriate.
While the decision referred to in Luong relating to Minh Nguyen is a sentencing decision which bears the greatest actual similarity to the present case, it is not a decision of an intermediate Court of Appeal. None of the decisions to which I was referred involve the unusual combination of a very large quantity attempted to be imported yet an offender whose conduct involved only recklessness as to the commercial quantity of drugs and who had only very minor involvement in the offending from the point where he became reckless. However, the fourth group of cases referred to in De La Rosa do reflect starting points which indicate that the decision in relation to Minh Nguyen was clearly at the lenient end of the spectrum.
In my view, the appropriate starting point is a sentence of four years imprisonment reduced to 43 months on account of the plea of guilty. Having regard to the personal circumstances of the offender, most particularly his age, good prospects of rehabilitation and low likelihood of reoffending, it is appropriate that the non-parole period be a relatively short one. His non-parole period will be just over 50% of the head sentence, namely, a period of 22 months imprisonment.
Orders
The orders of the Court are:
1.The offender is convicted and sentenced to imprisonment for a period of 43 months from 5 December 2017 until 4 July 2021.
2.The non-parole period is 22 months from 5 December 2017 until 4 October 2019.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 7 February 2020 |
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Amendments
7 February 2020 Replace “R v Nozhat (No 2)” with “R v Nozhat (No 3)” Case Title
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