R v Omari
[2021] ACTSC 18
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Omari |
| Citation: | [2021] ACTSC 18 |
| Hearing Dates: | 19 May, 28 July, 10 November, and 16 December 2020 |
| Decision Date: | 5 February 2021 |
| Before: | Loukas-Karlsson J |
| Decision: | See [269] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – importation of commercial quantity of border-controlled drug – trafficking in drug other than cannabis – joint enterprise – parity – good prospects of rehabilitation – fulltime imprisonment only |
| appropriate sentence | |
| Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) Pt 4.4, ss 6, 7, 10 and 33 Crimes Act 1900 (ACT) s 114C Crimes Act 1914 (Cth) ss 16A, 19, 19AB, 19AC, and 19AJ Criminal Code 2002 (ACT) ss 44, 603 and 713 Criminal Code Act 1995 (Cth) ss 11.2A and 307 Prohibited Weapons Act 1996 (ACT) s 5 |
| Cases Cited: | AB v The Queen [2013] NSWCCA 273 Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288; 226 A Crim R 354 Bugmy v The Queen (1990) 169 CLR 525 Bui v The Queen [2015] ACTCA 5 Butters v The Queen [2010] NSWCCA 1 Cheung v The Queen [2001] HCA 67; 209 CLR 1 Deakin v The Queen (1984) 58 ALJR 367; 11 A Crim R 88 Delaney v The Queen [2013] NSWCCA 150; 230 A Crim R 581 Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 DPP (Cth) v El Karhani (1990) 21 NSWLR 370; 51 A Crim R 123 Duffy v The Queen [2009] NSWCCA 304 Edwin v The Queen [2014] ACTCA 47 El-Jalkh v The Queen [2011] NSWCCA 236 Filippou v The Queen [2015] HCA 29; 256 CLR 47 GAS v The Queen [2004] HCA 22; 217 CLR 198 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Greenwood v The Queen [2014] NSWCCA 64 Hili v The Queen [2010] HCA 45; 242 CLR 520 Imbornone v The Queen [2017] NSWCCA 144 Leach v The Queen [2007] HCA 3; 230 CLR 1 |
| Lowe v The Queen (1984) 154 CLR 606 | |
| Luong v DPP (Cth) [2013] VSCA 296; 46 VR 780 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mazzitelli v The Queen [2002] NSWCCA 436; 135 A Crim R 132 Mill v The Queen (1988) 166 CLR 59 Mun v The Queen [2015] NSWCCA 234 Nchouki v The Queen [2018] ACTCA 28; 13 ACTLR 168 Oh v The Queen [2010] NSWCCA 148 Parente v The Queen [2017] NSWCCA 284; 96 NSWLR 633 Parry v The Queen [2003] WASCA 222 Paxton v The Queen [2011] NSWCCA 242; 219 A Crim R 104 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Petterson v The Queen [2013] NSWCCA 133 Postiglione v The Queen (1997) 189 CLR 295 Power v The Queen (1974) 131 CLR 623 R v Campbell [2010] ACTCA 20 R v Chan [1999] NSWCCA 103 R v Colledge [2010] NSWCCA 302 R v Combey (Unreported, Victorian Court of Criminal Appeal, Starke, Anderson and Fullagar JJ, 5 February 1980) R v Considine [2013] NSWCCA 97 R v Corbett [2008] NSWCCA 42 R v DW [2012] NSWCCA 66; 221 A Crim R 63 R v Englisch [2009] VSCA 71 R v Fowler [2003] NSWCCA 321; 151 A Crim R 166 R v Giang [2001] NSWCCA 276 R v Girard [2004] NSWCCA 170 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v Harrison [2001] NSWCCA 79; 121 A Crim R 380 R v Hou [2017] ACTCA 14 R v Jabal [2020] ACTSC 230 R v Kostopolous; R v Smith; R v Trefilletti [2014] NSWDC 360 R v Kwon [2004] NSWCCA 456 R v Lattouf (unreported, NSW Court of Criminal Appeal, Mahoney ACJ, Sully J, and Adams AJ, 12 December 1996) R v Laurentiu (1992) 63 A Crim R 402 R v Le Cerf (1975) 13 SASR 237 R v Martin (1990) 47 A Crim R 168 R v McCallum [2020] ACTSC 15 R v McMurray [2011] QCA 319 R v Muanchukingkan (1990) 52 A Crim R 354 R v Ng [2012] WASCA 180 R v Ngerengere (No 3) [2016] ACTSC 299 R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 R v Nozhat (No 2) [2019] ACTSC 81 R v Opera [2009] QCA 184 R v Peel [1971] 1 NSWLR 247 R v Peter Michael Clark (Unreported, NSW Court of Criminal Appeal, 15 March 1990) R v Pham [2015] HCA 39; 256 CLR 550 R v Pogson [2012] NSWCCA 225; 82 NSWLR 60 R v Poulakis [2020] ACTSC 247 R v Pullen [2018] NSWCCA 264; 275 A Crim R 509 R v Radloff (1996) 88 A Crim R 26 R v Reading [1998] VSCA 37 R v Robertson [2000] NSWCCA 266 | |
| R v Rudd [2010] NSWCCA 71 | |
| R v Simon [2003] NSWCCA 147; 142 A Crim R 166 R v Smith [2016] NSWCCA 75 R v Tang, Dang and Quach [1998] 3 VR 508 R v To [2007] NSWCCA 200; 172 A Crim R 121 | |
| R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 | |
| R v Walsh [2002] VSCA 98; 131 A Crim R 299 R v Watson [2018] ACTSC 172 R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340 R v XX [2009] NSWCCA 115; 195 A Crim R 38 R v Yavuz (No 2) [2020] ACTSC 248 R v Yavuz [2015] ACTSC 329 R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587 | |
| R v O’Neill [1979] 2 NSWLR 582; 1 A Crim R 59 | |
| RCW v The Queen (No 2) [2014] NSWCCA 190; 244 A Crim R 541 Ryan v The Queen [2001] HCA 21; 206 CLR 267 Savvas v The Queen (1995) 183 CLR 1 Scott v The Queen [2020] NSWCCA 81 Siddiqi v The Queen (Commonwealth) [2015] NSWCCA 169 Stanford v The Queen [2007] NSWCCA 73 Taysavang v The Queen [2017] NSWCCA 146 The Queen v Olbrich [1999] HCA 54; 199 CLR 270 Thompson v The Queen [2018] ACTCA 2 Tu v The Queen [2011] NSWCCA 31; 205 A Crim R 566 Van Zwam v The Queen [2017] NSWCCA 127 Weininger v The Queen [2003] HCA 14; 212 CLR 629 Wong v The Queen [2001] HCA 64; 207 CLR 584 Zdravkovic v Queen [2016] ACTCA 53 | |
| Parties: | The Queen (Crown) Bilal Badr-Eddeen Omari (Offender) |
| Representation: | Counsel |
| D Renton and T Jones (Crown) | |
| A Karim (Offender) | |
| Solicitors | |
| Commonwealth Director of Public Prosecutions (Crown) | |
| Korn MacDougall Legal (Offender) | |
| File Numbers: | SCC 78 of 2019; SCC 121 of 2018; SCC 128 of 2018 |
| LOUKAS-KARLSSON J: | |
| Introduction |
1. On 16 March 2020, Bilal Badr-Eddeen Omari (the offender) pleaded guilty to the following offences:
(a)
An offence of jointly importing a substance, that substance being a border controlled drug, namely 3,4-methylenedioxymethamphetamine (MDMA), and the quantity imported being a commercial quantity, contrary to s 307.1(1) and by virtue of s 11.2A of the Criminal Code Act 1995 (Cth), between about 28 August 2017 and 6 December 2017. The maximum penalty for this offence is 7,500 penalty units, life imprisonment, or both.
(b)
An offence of trafficking in a controlled drug other than cannabis, namely cocaine, contrary to s 603(7) of the Criminal Code 2002 (ACT), on 5 December 2017. The maximum penalty for this offence is 1,000 penalty units, 10 years of imprisonment, or both.
2. The plea of guilty to the importation offence was entered on the basis that the offender entered into an agreement with the various co-offenders to import a marketable quantity and became reckless as to the possibility that the importation was a commercial quantity.
3. The following offences are also to be taken into account on a schedule in accordance with part 4.4 of the Crimes (Sentencing Act) 2005 (ACT) (Sentencing Act):
(a)
An offence of trafficking in a trafficable quantity of cannabis contrary to s 603(5) of the Criminal Code 2002 (ACT) on 8 September 2016. The maximum penalty is 1,000 penalty units, 10 years of imprisonment, or both.
(b)
An offence of attempting to pervert the course of justice contrary to s 713(1), and by virtue of s 44(1) of the Criminal Code 2002 (ACT), on 5 December 2017. The maximum penalty for this offence is 700 penalty units, 7 years of imprisonment, or both.
(c)
An offence of unauthorised possession of prohibited weapons contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) on 6 December 2017. The maximum penalty for this offence is 500 penalty units, 5 years of imprisonment, or both.
(d)
An offence of dealing with proceeds of crime contrary to s 114C of the Crimes Act 1900 (ACT) on 5 December 2017. This is a transferred summary charge; the maximum penalty is 200 penalty units, 2 years of imprisonment, or both.
Background to Proceedings
4. The proceedings in this matter have been protracted. The following summary highlights the relevant dates:
(a)
On 19 August 2019, the matter was set down for a six-week trial to commence on 2 March 2020. The trial did not proceed on that date due to a severance application by a co-offender, Mr Yavuz, and further due to plea discussions between prosecution and defence.
(b)
March 2020: The offender entered pleas of guilty on 16 March to a new indictment and the matter was set down for a two-day disputed fact hearing to proceed in late-March. The disputed fact hearing was subsequently vacated due to early COVID-19 restrictions.
(c)
May 2020: A one-day disputed fact hearing took place, although two days had been set aside. Following the disputed fact hearing, counsel for the offender requested an eight-week adjournment to prepare sentence material, as he was not in a position to proceed to sentence on that day.
(d) June 2020: The parties were informed of the Court’s factual findings in relation to the two principal areas of disputed facts, in order to assist the parties in the
process of preparing sentencing submissions.(e)
July 2020: Counsel for the offender requested a further eight-week adjournment for the purposes of the preparation of an ICO assessment report. Counsel indicated that relevant research was to be conducted into comparable cases in relation to the availability of an ICO. Counsel for the offender made yet further submissions in relation to disputed facts and the prosecution responded.
(f)
August 2020: Mr Jabal, one of the co-offenders, was sentenced: see R v Jabal [2020] ACTSC 230.
(g)
September 2020: Mr Yavuz and Mr Poulakis, the remaining co-offenders, were sentenced: see R v Yavuz (No 2) [2020] ACTSC 248 and R v Poulakis [2020] ACTSC 247.
(h)
November 2020: It was expected at this time by the Court and the prosecution that the matter would proceed to final sentencing submissions. Counsel for the offender made yet further submissions in relation to a number of the disputed facts and the inferences to be drawn from the evidence. As a matter of procedural fairness, to allow the prosecution an opportunity to respond to these further unanticipated submissions (T 95.32-39), I invited both parties to provide further submissions on the matters raised by counsel for the offender. In making their submissions, the prosecution submitted that it was necessary for the Court to listen to a number of the recorded calls in evidence, in particular in relation to tone. It was therefore appropriate for further submissions to be made in relation to the various recorded phone calls. This resulted in the matter returning to court once again in December 2020.
(i) December 2020: Final submissions were made, and a number of calls were played in open court. The matter was set down for the sentencing of the offender on 28 January 2021, prior to the commencement of the law term. Prior to 28 January 2021, the matter was re-listed to 5 February to accommodate compulsory workplace training for court personnel on 28 January.
Crown Case Statement
5. The Crown Case Statement provides a summary of the background of the offences and the evidence relied upon by the prosecution in proving the charges. A number of matters, particularly in relation to the inferences that can be drawn from each piece of evidence, were disputed by the offender. These matters are dealt with below in
necessary detail under the heading ‘Disputed Facts’ from [41] to [125].
6. The Crown Case statement may be summarised as follows.
7. The importation offence relates to two consignments of MDMA that arrived in Australia in late 2017:
(a)
Consignment 1 arrived in Sydney from Germany on 3 November 2017 via air cargo. The consignment was located by police on 6 December 2017 and found to contain 452.8 grams of pure MDMA. This amounts to a marketable quantity of MDMA.
(b)
Consignment 2 arrived in Sydney from the United Kingdom on 30 November 2017 via air cargo. The consignment was intercepted by the Australian Border Force (ABF) on that day and was found to contain 1,771 grams of pure MDMA. This amounts to a commercial quantity of MDMA.
8. There were four co-offenders in the importation of Consignment 1: the offender, Mr Yavuz, Mr Poulakis, and Mr Jabal. The role of each offender in the agreement may be briefly summarised as follows:
(a) Mr Yavuz, who was in custody at the Alexander Maconochie Centre (AMC) throughout the period of the offending, directed the activities of the syndicate. (b) Mr Jabal provided the funding for the importation. (c) Mr Poulakis converted the money provided by Mr Jabal into Bitcoin and ordered the consignments from an unknown person via the internet. (d) The offender assisted Mr Poulakis, monitored the consignment, and attempted to arrange its collection. 9. The offender was an employee of the Australian National University (ANU) College of Business and Economics during the relevant period.
10. There was disagreement between prosecution and defence as to what date the offender became involved in the joint enterprise, and this issue is discussed below. The Crown Case Statement alleges that, between 28 August 2017 and 19 September 2017, Mr Yavuz, Mr Poulakis and the offender arranged for Mr Poulakis to obtain a sum of money from Mr Jabal for the purpose of importing Consignment 1. The evidence relied upon by the prosecution in this respect included the following:
(a) An intercepted telephone call on 28 August 2017 between Mr Jabal and the offender, in which the offender advised that Mr Yavuz wanted $50,000 from Mr Jabal. Mr Jabal explained that he could not pull the money out because it was invested in a property development in Weetangera. He then stated: “What’s he
want? Fifty grand or something?”. The offender responded: “Yeah”.(b) On the same day, Mr Yavuz’s mother transferred $4,000 into Mr Poulakis’ bank account with the reference “loan”.
(c) On 13 September 2017, Mr Jabal and Mr Poulakis visited Mr Yavuz at the AMC. The same day, Mr Yavuz called the offender and told him about the visit. The offender asked Mr Yavuz if he had asked Mr Jabal for something, to which Mr Yavuz stated: “he said he will see”.
(d)
Between 13 September and 15 September 2017, a number of phone calls between Mr Jabal and other persons were intercepted, during which Mr Jabal requested that these associates put money owed to him into his account.
(e)
Between 15 September and 19 September 2017, a number of calls between Mr Poulakis and Mr Yavuz were recorded, during which they discussed a task Mr Poulakis was meant to complete which relied upon him meeting with another person; Mr Yavuz expressed frustration about the time taken to complete the task.
(f)
On 18 September 2017, a call was recorded on that day between Mr Poulakis and Mr Yavuz, during which they discussed a phone number belonging to Mr Jabal. A further call was recorded between Mr Poulakis and Mr Jabal, during which they attempted to find a time to meet up.
(g)
On 19 September 2017, intercepted telephone calls between Mr Jabal and Mr Poulakis showed that they agreed to meet up in Dickson at 11am that day. CCTV footage reveals that they met outside the Subway restaurant in Dickson before driving together to another location. Further intercepted calls suggest that Mr Jabal then met with the offender approximately 30 minutes later.
11. Between 19 and 20 September 2017, Mr Poulakis purchased Bitcoin worth $18,000 via cash deposit using money provided by Mr Jabal.
12. On 24 September 2017, Mr Poulakis’ vehicle was damaged by another car and he
exchanged personal details with the driver. Mr Poulakis subsequently used the other
driver’s personal details to subscribe two phone services in her name.
13. Between 29 September and 18 October 2017, Mr Poulakis and the offender, directed by Mr Yavuz, arranged to purchase Consignment 1 via the internet from an unknown
individual known as ‘Sock’. All communication was between Mr Poulakis and Sock. The
prosecution pointed to the following evidence in this regard:
(a) During this period, a number of calls between Mr Poulakis and Mr Yavuz were recorded, during which they discussed a person known as ‘Sock’ and
arrangements for Sock’s ‘surgery’. Throughout the conversations, Mr Yavuz
expressed frustration about how long things were taking.
(b) On 4 October 2017, calls between the offender and Mr Poulakis were intercepted, during which the offender referred to “the computer you came and picked up the other day”. The offender advised Mr Poulakis to bring the
computer back so the offender could clear some data off it, and they arranged
to meet at the ANU that day.(c) On 9 October 2017, a call between Mr Yavuz and Mr Poulakis was recorded, during which Mr Yavuz said to Mr Poulakis: “Did – did Sock get the?” Mr Poulakis cut him off and stated: “Well, he’s got a – like, Goat’s got to do a couple
of things with it, but it doesn’t matter anyway ‘til he finishes work because the
other cunt’s asleep, so”. It was accepted that ‘Goat’ was a nickname used for
the offender. [1] On the same day, during an intercepted telephone call, the offender asked Mr Poulakis if he was okay to come past. Mr Poulakis agreed,
[1] It was accepted that the offender was referred to by the nicknames Goat, Frog and Billy by the various
and the offender stated: “Do you mind writing it down just so I can go quickly
cause I’m with someone”.(d) On 18 October 2017, Mr Yavuz asked Mr Poulakis if Sock had had his surgery, and Mr Poulakis stated: “I booked in to see him at – at ten his time, which is in
about 3 hours … So I’m going to see him then”. Three hours from the call was
10am in Germany.
14. On 19 October 2017, Consignment 1 was posted via air cargo from Germany. Its contents were described as paint. The consignment was addressed to Daniel Tompkins at the ANU and included one of the falsely subscribed telephone numbers as the contact number. At this time, Daniel Tompkins was not a student or staff member at the ANU.
15. Between 22 October and 12 November 2017, there were numerous intercepted phone calls and meetings between the offender, Mr Yavuz, and Mr Poulakis. On 3 November 2017, Consignment 1 arrived in Sydney. On 6 November 2017, delivery of Consignment 1 was attempted at the ANU and the consignment was incorrectly recorded as
“delivered”. The consignment was collected from the ANU by DHL in mid-November
and thereafter remained at a DHL facility in Fyshwick. Between 11 and 12 November 2017, calls between Mr Yavuz, Mr Poulakis and the offender were recorded, during which Mr Poulakis and Mr Yavuz expressed frustration that the offender was in Sydney and requested that he return to Canberra.
16. Between 13 and 14 November 2017, the prosecution alleged that Mr Yavuz, the offender and Mr Poulakis arranged for a further sum of money to be obtained from Mr Jabal for the purposes of importing Consignment 2. The offender disputed that he had any knowledge of the second Consignment; this issue will be dealt with below. On 14 November 2017, Mr Jabal provided money to Mr Poulakis, which was then used by Mr Poulakis to purchase Bitcoin, and which was subsequently used to purchase Consignment 2.
17. On 13 November 2017, Mr Poulakis and the offender arranged to meet at the ANU. That afternoon, using the falsely subscribed phone number listed on Consignment 1, numerous calls were made to the ANU College of Business and Economics, Australia Post, and DHL.
18. On 14 November 2017, the following events occurred:
(a)
At 3:34pm, a call between the offender and Mr Yavuz was recorded, during which the following exchange occurred:
Yavuz: Did – did you – any updates?
Omari: Nope.
Yavuz: Sick. That’s sick. That’s sick in the arse and that’s sick.
Omari: Yeah, well what do you want me to do? I – I tried to … but no updates.
So I tried all possible avenues … I don’t know who’s to blame. But anyway.
…
Yavuz: Very, very, very, very, very bad.
(b) At 5:17pm, a text message exchange between Mr Poulakis and the offender was recorded, in which Mr Poulakis advised he had something urgent and “extremely important” to show the offender. The offender agreed to meet Mr
Poulakis.
(c) At 6:11pm, a call was made from the falsely subscribed number to Australia Post. 19. Between 16 and 23 November 2017, Mr Poulakis used Bitcoin (purchased using money provided by Mr Jabal) to arrange the importation of Consignment 2 from Sock. On 24 November 2017, Consignment 2 was posted via air cargo from the United Kingdom to Australia. Its contents were described as camping pan sets and it was addressed to Michael Foster at the ANU. Michael Foster was not a student or staff member at the ANU at this time. The telephone number listed on the consignment was another telephone number (different to that used for Consignment 1) that had been falsely subscribed using the details from the motor vehicle accident with Mr Poulakis.
20. Between 24 and 30 November 2017, the following events occurred:
(a) A number of communications were recorded between Mr Yavuz, Mr Poulakis and the offender on 24 and 25 November 2017, in which Mr Yavuz instructed the offender to return to Canberra from Sydney. (b) At about 4:18pm on 28 November 2017, a call between Mr Yavuz and the offender was recorded, in which the offender asked Mr Yavuz if he should visit him the next day and Mr Yavuz suggested that he bring Mr Jabal and Mr Jabal’s
brother. Later in the conversation, the offender said he may have “very, very good news” for Mr Yavuz when he visited the next day. Mr Yavuz asked: “Who’s
it benefit?” The offender responded: “you and me”.
(c) At about 8:36pm on 28 November 2017, a telephone call between the offender and Mr Poulakis was intercepted, during which they agreed to meet at the offender’s house and go for a walk to the park. The offender asked if Mr Poulakis
knew anyone who would be interested in buying his block in Murrumbateman as he was going broke. Mr Poulakis told him not to worry because soon he
would be able to put “five storeys on there”.
(d) At about 7:20am on 29 November 2017, calls between the offender and Mr Poulakis were intercepted, during which the offender instructs Mr Poulakis to leave everything in the offender’s car, which he would leave unlocked at his
house.
(e) At about 1:30pm on 29 November 2017, a call was made from one of the falsely subscribed numbers to Australia Post from the vicinity of the ANU. During the call, the caller identified himself as Daniel Tompkins and enquired as to the status of Consignment 1. The caller was advised that the consignment had been delivered to Fyshwick. Approximately 25 minutes later, the offender called Mr Poulakis, during which Mr Poulakis asked: “Did you – did it get sorted out in the end or is it no good? Like you couldn’t get it?” The offender responded that he
had “a bit of news, good and bad”. They agreed to meet at the ANU. At about
4:05pm that day, a call between the offender and Mr Yavuz was intercepted;
the offender stated that he had received “some potentially good news today”.
21. On 30 November 2017, Consignment 2 arrived in Australia and was intercepted at Sydney Customs by the ABF. Upon examination, the consignment contained a brown crystalline substance concealed within a camping pot.
22. On 5 December 2017, police executed a search warrant at the Hancock Building at the
ANU, which was the offender’s place of work. Police located items including three
mobile phones, one of which was an Apple iPhone. During the execution of the warrant, the offender stated he had received the Apple iPhone from Mr Poulakis the day before in exchange for a cash payment and that he did not know the telephone number or the password to open it. Subsequent checks revealed that the telephone number attached to the phone was the number listed on the first consignment with the details obtained from the driver in the motor vehicle accident.
23. Following the execution of the search warrant on 5 December 2017, the offender was arrested and taken into custody. He was granted bail in the Magistrates Court on the following day, 6 December 2017, and has remained on conditional bail since then.
24. On 6 December 2017, police observed that the Apple iPhone had received a text message from Australia Post at 12:03pm on 5 December 2017, referring to an enquiry relating to Consignment 1. It was subsequently determined that Consignment 1 was located at the DHL facility at Fyshwick.
25. On 7 December 2017, a search warrant was executed at the DHL facility in Fyshwick, and police located and seized Consignment 1. The consignment contained three Windsor & Newton acrylic paint 500mL bottles. The bottles contained a liquid that was inconsistent with acrylic paint. Forensic analysis revealed that the bottles contained a liquid comprising MDMA at a purity between 32 and 35 percent, amounting to 452.8 grams of pure MDMA.
Agreed Facts – Trafficking & Scheduled Offences
26. The facts in relation to Count 2, trafficking in cocaine, and the scheduled offences were agreed. The facts in relation to these offences may be summarised as follows.
Trafficking in Cannabis
27. On 8 September 2016, ANU security staff located a suspicious package, described as a black suitcase containing cannabis, which had been concealed behind a panel in the stairwell of the Copland Building. Police attended the ANU and seized the suitcase by consent.
28. Examination of the contents of the suitcase revealed 22 clip seal bags containing green vegetable matter. Forensic analysis determined the substance in the clip seal bags to be 10.133 kilograms of cannabis.
29. The clip seal bags were subsequently examined by fingerprint experts. The offender’s
fingerprints were located at two places on the bags.
Trafficking in Cocaine, Dealing with Proceeds of Crime, and Perverting the Course of
Justice
30. At about 8:30am on 5 December 2017, the offender was observed driving a white Jeep Grand Cherokee (the Jeep). Swipe card access log records show that the offender entered a secure ANU car park at 9:14am on that day.
31. At about 9:58am, also on 5 December 2017, police attended the Hancock building at the ANU and located the offender for the purposes of executing search warrants. During the execution of the warrant, the offender stated that he had not driven to work and had been dropped at work that morning by a member of his family. He refused to comment in relation to the Jeep keys that were located in his pocket.
32. At about 3:18pm on that day, police advised the offender that they were in possession of a search warrant in relation to the Jeep. At this time, the offender exercised his right to contact a friend or relative and called his girlfriend, Ms Brosnan. Approximately three minutes later, Ms Brosnan called Mr Jabal and stated that she was trying to get hold of
the offender’s brother because he had a spare key to the offender’s car, and that she
needed to get to the car right now. Mr Jabal stated that he had not been able to get in
touch with the offender’s brother all day.
33. Approximately two minutes later, Ms Brosnan once again called Mr Jabal and the call
was intercepted. She stated that the police were at the offender’s work and they would
be going to his car in the next 15-20 minutes. She stated that the offender wanted his
brother to get to the car first. Ms Brosnan stated: “Break it, Youssef. Something. Like,
he’s got everything in his car”. She further stated that the offender was at work, police
had his phone, and he was calling from a police phone. Mr Jabal replied: “Leave it with
me. I’ll work it out”. A further call was made two minutes later, during which Ms Brosnan
told Mr Jabal: “Yeah. Well, he just called me then. He said for you, he doesn’t care, he’ll
hold them off. Just break the window and get to his car and take um, just clean, clean
out whatever, he just needs to go to the fuckin’ cleaner.” She explained to Mr Jabal
where the car was located.
34. At around 3:27pm, two telephone calls were intercepted; the calls were group conversations between Ms Brosnan, Mr Jabal and the offender, during which the offender spoke Arabic. The calls were later translated. During the calls, the offender instructed Mr Jabal to smash his car window and remove a bag from the back seat of the car.
35. At about 3:45pm, police arrived at the car park on Kingsley Street. The car park was enclosed by wire fencing and only accessible by swipe access. As one officer approached the car park, he heard several loud bangs followed by a car alarm. The officer observed a man standing near the Jeep and reaching into the vehicle; the officer
recognised the man as Mr Jabal’s brother. Mr Jabal’s brother subsequently fled the car
park, and the officer lost sight of him.
36. At around 3:55pm, additional police arrived at the car park with swipe access passes. Police approached the Jeep and observed that the rear driver side window had been smashed. On the ground below the smashed window was a white plastic bag and broken glass fragments.
37. Police executed a search warrant on the Jeep. The following items were located in a white plastic bag underneath the smashed window:
(a) A plastic sandwich bag containing white powder, found to be 32.485 grams of cocaine. Forensic analysis identified Mr Jabal’s fingerprints and the offender’s
DNA on this sandwich bag.
(b) A plastic sandwich bag containing white powder, found to be inositol (a known cutting agent for cocaine). Forensic analysis identified the offender’s DNA on
this sandwich bag.
(c) A set of digital scales with white powder residue, found to be cocaine. Forensic analysis identified the offender’s DNA and fingerprints on the scales.
Forensic analysis identified Mr Jabal’s DNA on the white plastic bag. While police were
inspecting the white plastic bag, the offender suddenly ran towards the exit of the car
park. Police chased him and he was arrested a short distance away.39. The following items were located inside the Jeep:
(a)
$12,005 in Australian currency, comprising $9,005 in various notes in the centre console, and $3,000 in $50 notes in a bag.
(b) A clip seal bag containing white powder, found to be 0.634 grams of cocaine. (c) Five empty clip seal bags found to contain traces of cocaine. Forensic analysis identified the offender’s DNA on the clip seal bags.
(d) A jar labelled inositol. (e) A white plastic measuring cup containing a white residue, found to be cocaine. Forensic analysis identified the offender’s DNA on the cup.
(f) A licence in a false name with a photograph of Ms Brosnan.
Possess Prohibited Weapon
40. On 6 December 2017, police executed a search warrant at the ANU College of Business and Economics, identified to be an alternative work location of the offender.
During a search of the offender’s workstation, police located three extendable batons
in a cabinet behind the offender’s desk. Forensic analysis identified the offender’s DNA
on the batons. Also during the execution of the search warrant, police located a box of disposable gloves and a packet of glucose powder (a known cutting agent for cocaine).
Forensic analysis identified the offender’s DNA on the packet of glucose powder. These
items were located in a hidden cavity in a computer tower, in a locked room to which
the offender had keys.
Disputed Facts
41. At the disputed fact hearing in May 2020, counsel for the offender indicated that there were two principal areas of disagreement as between the parties:
(a) The date at which the offender became a party to the joint enterprise; and (b) The date at which the offender became reckless as to the possibility that the importation involved a commercial quantity. 42. Central to these issues was a general submission in relation to the inferences to be drawn from the evidence.
43. I provided the parties with my findings in relation to both of these disputed facts in June 2020 and I indicated then that my reasons would be included in the final judgment.
44. As the sentence proceedings progressed from July to November, however, it became increasingly apparent that there were numerous additional areas of disagreement as between the parties. Each of these issues are discussed below. Again, central to these issues were submissions from counsel for the offender in relation to the inferences that may be drawn from the evidence. The prosecution summarised the difference between the two parties as follows (T 27.27-33):
… if your Honour was to accept my friend’s proposition, he’s a very latecomer to the
enterprise and he does so in a vacuum without any awareness of the preceding events.
Alternatively, if you accept the Crown’s position, he was in it from the beginning and
developed a higher level of awareness of what was going on, and notwithstanding that higher
level of awareness continued to participate in the joint enterprise.45. While the factual dispute between the parties can be distinguished into specific issues, as set out below, the submission set out above summarises the crux of the difference between the positions of the prosecution and defence. I discuss in detail the various factual matters that form the gulf between the two positions.
46. In the final round of submissions produced in late-2020, the parties refined the areas of agreement and disagreement. The following table provides a summary of the findings of fact the prosecution says are available on the evidence, and the position of defence in respect of each issue.
| Prosecution Proposed Finding | Defence Position in Response |
| Prior to 18 July 2017, the offender | This was accepted by the defence; |
| communicated to Mr Jabal that Mr Yavuz | however, it was submitted that this should |
| wanted to recover $50,000 from money he | not aggravate the offender’s criminality. |
| had invested in a property development being undertaken in Weetangera. | |
| The offender was involved in the decision to | This was accepted in relation to |
| use a location within the ANU campus as | Consignment 1 only. |
| the delivery address for the consignment. | |
| The offender provided, through his | This was accepted in relation to |
| employment at the ANU, a delivery address | Consignment 1, with some qualification. |
| that was not readily attributable to any of the co-offenders. | |
| The offender provided, through his status as | This was accepted in relation to |
| an employee of the ANU, ostensibly | Consignment 1 only. |
| legitimate access to buildings on the ANU campus. | |
| Because of the offender’s ostensibly | This was accepted in relation to |
| legitimate access to buildings on the ANU | Consignment 1 only. |
| campus, he was given the critical task of collecting the consignments. | |
| The offender was a common link between | This was not agreed and is discussed below |
| Mr Poulakis and Mr Jabal and facilitated a | at [70]-[76]. |
| degree of communication and cooperation between them. | |
| The offender’s initial state of mind was that | This was not agreed and is discussed below |
| the importation involved a quantity of a | at [100]-[104]. |
| prohibited drug at the top of the scale for a marketable quantity. | |
| The offender was promptly informed of | This was not agreed and is discussed below |
| every significant milestone in the course of | at [117]-[119]. |
| the importation. | |
| The offender took a number of active steps | This was agreed. |
| to recover Consignment 1, including conducting surveillance and making a number of phone calls. | |
| The offender was aware of Consignment 2 | This was not agreed and is discussed below |
| from about 28 November 2017. | at [107]-[116]. |
| The offender had a significant financial | This was not agreed and is discussed below |
| interest in the importation that was well in | at [141]-[142] and [150]. |
| excess of the “couple of thousand dollars” | |
| he alleged in his letter to the Court. |
Disputed Facts: Relevant Legal Principles & Consideration
47. The significance of fact finding at sentence was discussed in The Queen v Olbrich [1999] HCA 54; 199 CLR 270 (Olbrich) at [1]:
Unless the legislature has limited the sentencing discretion, a judge passing sentence on an offender must decide not only what type of penalty will be exacted but also how large that penalty should be. Those decisions will be very much affected by the factual basis from which
the judge proceeds. In particular, the judge’s conclusions about what the offender did and
about the history and other personal circumstances of the offender will be very important.
48. Findings of fact about matters such as motive or the degree of an offender’s involvement have a necessarily significant effect on the assessment of an offender’s
moral culpability. There are cases involving either a plea of guilty, or a conviction
following a plea of not guilty, where the task of assessing an offender’s culpability is
more difficult than that of determining his or her guilt: Cheung v The Queen [2001] HCA
67; 209 CLR 1 at [8] (Cheung).
In Olbrich at [24], the High Court reviewed the authorities in Australia in relation to the onus and standard of proof at sentence. It was stated at [25] that:
References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call
evidence about it. (We say “if necessary” because the calling of evidence would be required
only if the asserted fact was controverted or if the judge was not prepared to act on the
assertion.).A court may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt: Olbrich
at [27]–[28], Leach v The Queen [2007] HCA 3; 230 CLR 1 at [41], and Filippou v The
Queen [2015] HCA 29; 256 CLR 47 at [64], [66] (Filippou). The offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour: Filippou at [64], [66]; Olbrich at [27]-[28].
The court must do its best to find facts concerning the offending and the offender’s
moral culpability. In some cases it is not possible to ascertain everything that is relevant, especially where an offender chooses not to offer any evidence on the plea: Filippou at [70]. Framing the fact finding process by using terms such as the onus and standard of proof may give a misleading impression that all disputed issues of fact related to sentencing must be resolved for or against the offender: Weininger v The Queen [2003] HCA 14; 212 CLR 629 (Weininger) at [19]. Some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed: Weininger at [19]. It is sometimes not possible for the court to ascertain everything that is relevant. Where that occurs the court must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard: Filippou at [70]. The court is not bound to adopt the view of the facts most favourable to the offender: Filippou at [5], [70], [72]; Weininger at [20].
Each factual matter found at sentence need not fit into the extremes of aggravating and mitigating factors. In Weininger at [22], the High Court said:
Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of, and concerning, human behaviour. It is, therefore, to invite error to present
every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.
(Emphasis added).
53. As referred to above, in Filippou at [70], the High Court stated the following:
Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability. Even so, it is sometimes not possible for the judge to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on the plea. Where that occurs, the judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard. As was stated in Weininger v The Queen:
"The sentencing judge may not be able to make findings about all matters that may go to describe [the] circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt. Accordingly, in the particular facts of Olbrich, where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier."
That accords with the requirements in s 21A(1) of the Sentencing Act that facts be taken into account only in so far as they are "known to the court" according to the principles of proof laid down in Olbrich.
Fact Finding Following a Guilty Verdict
In Savvas v The Queen (1995) 183 CLR 1 at 8, Deane, Dawson, Toohey, Gaudron and
McHugh JJ referred to the “principle that a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verdict”. Fact finding
following a jury verdict is affected by the inscrutability of a jury verdict. In Cheung, the High Court (the joint judgment at [14]; Callinan J at [169]) cited the decision of R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587 with approval on the question of fact finding following a jury verdict.
Fact Finding following a Guilty Plea
A plea of guilty admits those matters which are the essence of the charge. It does not
admit the non-essential ingredients an offence: R v O’Neill [1979] 2 NSWLR 582; 1 A
Crim R 59 at 588 and Duffy v The Queen [2009] NSWCCA 304 at [21]. In GAS v The Queen [2004] HCA 22; 217 CLR 198 at [30], five members of the High Court said of fact finding following a plea of guilty:
In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar
table which was not contradicted). There may be significant limitations as to a judge’s
capacity to find potentially relevant facts in a given case.
56. I further note that in Fillipou at [66], the following was stated:
As Olbrich made clear, where an offender asserts a fact favourable to the offender and the Crown contests it or the court is not otherwise disposed to accept it, it is incumbent on the offender to establish the fact on the balance of probabilities. Properly understood, there is no inconsistency between those requirements and what was said in Cheung.
(Footnotes omitted).
57. The prosecution submitted the following in relation to the approach to be taken to disputed facts:
[4] The proper assessment of the Offender’s role within the joint commission requires consideration of the totality of his conduct in facilitating both consignments. The offender’s
activities in furtherance of both consignments is capable of rationally affecting the assessment of the probability of a fact in issue in this disputed fact hearing; namely, the
offender’s state of mind at various points in time and overall role in the joint commission.
[5] Evidence of the conduct of an accused, which is part of a series of connected events, is
admissible to prove the state of mind of the offender, provided it is relevant: R v O’Leary
(1946) 73 CLR 566; R v Adam [1999] NSWCCA 189; 106 A Crim R 510; and R v Player [2000] NSWCCA 123. This is particularly apposite in this case because of the high degree of temporal overlap between the steps taken in furtherance of the two consignments and the
similarity of the subject matter. The evidence of the whole of the offender’s conduct is
necessary because it enables the court to make an evaluation of his culpability with an
understanding of what occurred at each significant state of the sequence of events.[6] Further, it is appropriate to consider the acts and declarations of each offender, not as proof of the truth of any assertion or implied assertion of the participation of the other, but as facts from which the combination might be inferred and the participation in it by the offender: Ahern v The Queen (1988) 165 CLR 87 at [6]-[7].
Position of the Prosecution
58. At the outset of the disputed fact hearing, the prosecution outlined the prosecution’s position in relation to the offender’s role as follows (T 20.33-47):
The overarching premise in relation to the role of Mr Omari is that he was fundamentally to be the collector of the packages, but that he also stood ready to act if and when required in
furtherance of the joint enterprise. I’ll take your Honour through some of those examples
shortly, but in short measure, they relate to the communication with Mr Youssef Jabal and the provision of some computer assistance to Mr Poulakis shortly before Poulakis places the order, it would seem, with Sock.
In relation to much of what my learned friend has put to your Honour, we say, with the greatest of respect, there does seem to be an element of analysing facts in a vacuum and ignoring the circumstances that precede and postdate those individual circumstances.
The Date at Which the Offender Became Involved in the Enterprise
59. The prosecution submitted that the offender entered into the agreement in mid-July 2017, at the same time as the co-offenders. Counsel for the offender submitted that it cannot be established beyond a reasonable doubt that the offender was involved in the agreement until mid-November 2017.
60. Counsel for the offender’s general proposition was that the prosecution has not reached
the required threshold of establishing the facts beyond a reasonable doubt. The prosecution, in response, submitted that this was examining the facts in a vacuum and not taking into account the broader circumstances, as discussed above.
61. There were a number of key events referred to by both parties in relation to proof of the
commencement of the offender’s involvement in the importation.
26 July – Conversation between Offender, Mr Jabal and Mr Yavuz
62. In a recorded phone conversation on 26 July 2017, Mr Yavuz asks the offender for a
map of “the university”; it was accepted that he was referring to a map of the ANU.
The prosecution submitted: “Against the backdrop of planning that your Honour can find
the enterprise engaged in, it would be remarkable that they would organise the
packages to be sent to the ANU in false details without having first secured Mr Omari’s
participation in the enterprise with the role to be the collector” (T 34.37-40). It was
submitted that an inference is available that the offender was directly involved in the decision to use an address at the ANU as the delivery address, especially as he was using the ANU to store drugs and drug paraphernalia: Written Submissions dated 11 May 2020 at [9]. The prosecution further noted that, through his employment at the ANU, the offender provided access to restricted areas and a delivery address that was not readily attributable to any of the co-offenders.
64. Counsel for the offender submitted that this conversation does not demonstrate the
offender’s involvement; rather, it was submitted that, if the offender was actively
involved, Mr Yavuz would be relying on his knowledge of the ANU, rather than requesting the campus map. Counsel for the offender further submitted that this would be consistent with Mr Yavuz’ modus operandi in the past, referring to R v Yavuz [2015]
ACTSC 329 at [6]-[7], in which Mr Yavuz organised for consignments to be delivered to a number of postal boxes and addresses.
65. In reply, the prosecution submitted that this question around collection of the
consignments, rather than being consistent with Mr Yavuz’ modus operandi,
demonstrates the importance of the offender’s role: “Mr Yavuz is in prison. He is not
able to effect collection himself. He would need a trusted collector of these packages,
and Mr Omari is that trusted collector” (T 37.37-40).
13 September – Conversation between Mr Yavuz and the offender
66. In a recorded phone conversation between the offender and Mr Yavuz, the offender enquires as to whether Mr Yavuz has asked Mr Jabal yet (about providing the money).
Mr Yavuz responds: “he says he’ll see”. The offender then states: “yeah fuck, that
means no”.
67. The prosecution submitted that this conversation demonstrates the offender’s financial interest in the importation, due to his concern over Mr Jabal’s response. It was further
submitted that, throughout September, the offender demonstrated an interest in the
progress of the financing.68. Counsel for the offender, on the other hand, submitted that, when listening to the phone
conversation, there is no tone of concern or worry when the offender says: “yeah fuck,
that means no”. It was submitted that the offender was laughing as he made this
statement, and therefore no inference should be drawn as to his involvement.
69. Counsel for the offender further noted that, during the time the finance was being organised (18 and 19 September), there was no communication between the offender and Mr Poulakis, other than to request the phone number of Mr Jabal.
18 September 2017 – Provision of phone number of Mr Jabal
70. On 18 September 2017, recorded conversations between Mr Poulakis and Mr Yavuz indicate that Mr Poulakis was attempting to contact Mr Jabal, who was responsible for providing the funding for the importations. Mr Yavuz instructed Mr Poulakis to call the
offender to find out Mr Jabal’s phone number. The relevant portion of the phone
conversation is as follows:
YAVUZ: Just call – call the Goat right now. Call the Goat right now.
POULAKIS: The Goat? What for?
YAVUZ: Oh, maybe he’s got the number.
POULAKIS: Oh, you’re not going to give me the whole thing?
YAVUZ: I don’t know it.
71. A further recorded conversation later in the day indicates some reluctance on the part of Mr Poulakis to ask the offender for the number. The conversation concludes with Mr
Poulakis stating: “Yeah, fuck him. I’ll call him now”.
72. Following this conversation, Mr Poulakis immediately made a phone call to the offender; the conversation lasted 38 seconds. It was accepted that, during this call, the offender
provided Mr Jabal’s number to Mr Poulakis. Less than one minute after the call, Mr
Poulakis called Mr Jabal.
73. The prosecution submitted that an inference can be drawn that the offender acted as an intermediary between Mr Jabal and Mr Poulakis.
74. Counsel for the offender submitted that, had the offender been involved at this point in time, he would have been asked to contact Mr Jabal directly and would not have been asked to simply provide the number. Given the offender had the closer relationship with Mr Jabal, counsel for the offender submitted that it would be logical for the offender to be tasked with retrieving the money from Mr Jabal. It was submitted that these conversations therefore support the proposition that the offender was not involved in the importation as at September 2017. Counsel for the offender further submitted that,
if the offender had been involved at this point, Mr Poulakis wouldn’t have been
concerned about contacting him: Written Submissions dated 15 May 2020 at [47].
75. The prosecution submitted in response that, despite Mr Poulakis’ concern about the offender providing Mr Jabal’s number, there is no foundation for this concern, as, very
quickly after expressing the concern, the offender provides the number (T 23.30-36):
So there’s no reluctance, there’s no reticence. The concern expressed by Poulakis is just
concern on his part. But as my friend’s submission states, why would there be any issue in
providing it if he was already involved? Well, there wasn’t, and that’s demonstratively clear
from [48] of my friend’s submissions, where he concedes himself the number for Jabal was
provided in a short, sharp 38-second call. No debate, no argument, no longstanding
conversation; very quick, there it is.76. In this context, the prosecution submitted the following in relation to the overall role of
the offender: “He’s there as someone who is providing ongoing support; he’s someone
with whom both of the parties communicate and speak about. It’s not like he is simply recruited and ignored until he needs to be activated” (T 28.11). In my view, not much
turns on the provision of the phone number on 18 September 2017.
4 October 2017 – Coffee with Mr Poulakis
77. On 4 October 2017, Mr Poulakis and Mr Jabal visited Mr Yavuz at the AMC. Mr Poulakis spoke to the offender on the phone and they agreed to meet for a coffee straight after the visit. Mr Poulakis and the offender ultimately arranged to meet in a carpark at the ANU campus later that morning.
78. The prosecution submitted that there are two inferences available based on the timing and location of this meeting:
(a) firstly, that Mr Poulakis was updating the offender on recent developments and what had been discussed during the meeting at the AMC; and (b) secondly, that Mr Poulakis and the offender were conducting preliminary surveillance of the ANU campus: Written Submissions dated 11 May 2020 at [13]. 79. Counsel for the offender submitted the following in response (Written Submissions dated 15 May 2020 at [63]):
If one proceeds with the view that the above inferences drawn by the Crown are rational inferences, then as a matter of logic, there must be a concession that the meeting may also have been innocent and one where two parties met for coffee as stipulated in the phone conversation, or a more likely inference that Poulakis, who was heavily invested in the importation was in the process of endearing himself to Omari so that the ANU address could be used for the future importations.
9 October – IT assistance
80. On 9 October 2017, in a recorded phone conversation between Mr Yavuz and Mr Poulakis, Mr Poulakis indicated a need for assistance from the offender. It was accepted by both parties that Mr Poulakis was seeking assistance with information technology so as to take steps in furtherance of an importation: see Defence Written Submissions dated 15 May 2020 at [67].
81. The prosecution submitted that, on the evidence, an inference can be drawn that the offender provided IT support to Mr Poulakis to assist in the purchase of Bitcoin and the
communication with Sock. It was the prosecution’s submission that this goes to the
offender’s role as more than a mere collector.82. Counsel for the offender submitted that, while there is evidence that would raise
suspicions, the evidence is not sufficient to demonstrate the offender’s involvement, at
this point, beyond a reasonable doubt (T 15.40). It was submitted that the absence of evidence as to what particular assistance was required and whether it was ultimately provided meant that the conversation between Mr Poulakis and Mr Yavuz lacked probative value: Written Submissions dated 15 May 2020 at [68].
83. Counsel for the offender reiterated the submission that mailing to various addresses falls within the known modus operandi of Mr Yavuz.
11-12 November – Communication between the offender, Mr Poulakis and Mr Yavuz
84. On 11 November, intercepted and recorded conversations demonstrate that Mr Yavuz and Mr Poulakis become incredibly frustrated with the offender, who was in Sydney and therefore unable to collect the consignment from the ANU. On 12 November, the offender returned to Canberra and made attempts to collect the consignment.
85. Counsel for the offender accepted that, at this point, the offender’s involvement is clear
(T 17.20). It was accepted that the offender is involved in the enterprise from mid- November, and that he took active steps to attempt to collect Consignment 1 between 12 November and 5 December 2017. The prosecution submitted the following in response (T 23.38-46):
The difficulty that my friend faces with trying to establish the November dates as the pivotal
point in time when Mr Omari’s criminality lies and is founded overlooks everything that he
does leading up to that point in time. It overlooks his dealings with Mr Jabal. It overlooks the meetings between the parties leading up to that point in time. It overlooks the telephone conversations preceding that date and it overlooks the assistance that Mr Omari provides to Mr Poulakis in relation to the computer material in October immediately preceding the conversations where my friend concedes Poulakis has done the deal with Sock and the order has been made.
Conclusion
86. In my view, it is not established beyond reasonable doubt that the offender was involved in the joint enterprise as at the July 2017 date (as submitted by the prosecution).
Nevertheless, by late September 2017, the offender’s involvement is established, on
the evidence, beyond reasonable doubt. I do not accept, on the evidence, the submission that it cannot be established beyond reasonable doubt until mid-November 2017. Consignment 1 is dispatched in October with the ANU address. This was after the offender met with Mr Poulakis for coffee at the ANU on 4 October and provided IT assistance to Mr Poulakis on 9 October. In accordance with my previously noted factual
finding, I am therefore satisfied that by late-September 2017, the offender’s involvement
is established on the evidence beyond reasonable doubt.
The Date at Which the Offender Became Reckless as to the Commercial Quantity
87. Counsel for the offender submitted that the offender became reckless as to the possibility that the joint commission involved the importation of a commercial quantity from 28 November 2017. The prosecution, on the other hand, submitted that the offender became reckless from 28 August 2017.
88. There were a number of key events referred to by the parties in support of these submissions.
28 August – Conversation between Mr Jabal and the offender
89. A call between Mr Jabal and the offender on 28 August 2017 was recorded. During the
call, Mr Jabal stated: “what does he want? Fifty grand or something?”, in relation to a
request from Mr Yavuz. The offender responded in the affirmative.
90. The prosecution submitted that the two inferences to be drawn from this:
(a)
firstly, that the offender was aware that the money is for the purpose of importing prohibited drugs; and
(b)
secondly that the offender was aware of the approximate quantity of those drugs.
91. Counsel for the offender submitted that the conversation was “not inconsistent with general conversation” (T 8.6-7). It was submitted that, had the offender been involved
at this point, he would have encouraged Mr Jabal to provide the money, and he did not
do so.
18 September – Recorded conversation between Mr Yavuz and Mr Poulakis
92. On 18 September 2017, a recorded conversation between Mr Poulakis and Mr Yavuz involves a discussion regarding the phone number of Mr Jabal. Mr Poulakis needed to get in contact with Mr Jabal and did not have his phone number; Mr Yavuz could not remember the phone number and suggested that Mr Poulakis call the offender. Mr Poulakis asked why the offender should be called.
93. The prosecution submitted that the question of why the offender should be called was
not a broad, rhetorical question. The answer “to get the number” provides context for
why the offender should be called in this particular circumstance.
94. Counsel for the offender submitted that the question of why the offender should be
called “would be an incredible response in circumstances where the Crown are
asserting that Mr Omari’s involvement was as early as 28 August” (T 9.30-35).
95. Counsel for the offender also noted that the offender was repeatedly told that Mr Jabal
couldn’t access and couldn’t hand over the $50,000. It was submitted, therefore, that
the offender could not be on notice that the sum was available to be used for the
importation.
28 November – Recorded conversation between Mr Poulakis and the offender
96. During a recorded conversation between Mr Poulakis and the offender on 28 November 2017, the offender expressed concern about his finances and asked Mr Poulakis if he
knew of anyone who was interested in purchasing the offender’s block at
Murrumbateman. Mr Poulakis advised him not to worry and responded: “soon you’ll be able to build five storeys”.
The prosecution submitted that, while probably hyperbolic, this was “a clear reference”
to the profit that Mr Poulakis, and by extension the offender, expected to realise when
the second consignment arrived: Written Submissions dated 11 May 2020 at [32].98. Counsel for the offender accepted that, at this point, the evidence establishes that the offender was reckless as to the possibility of the importation being a commercial quantity of a prohibited drug. It was not accepted that this recklessness extended to actual knowledge of Consignment 2.
Conclusion
99. It was accepted by the offender, and in my view is established beyond a reasonable doubt, on the evidence, that the offender was reckless as to the possibility that the joint enterprise involved the importation of a commercial quantity as at 28 November 2017. I do not accept that an inference can be drawn from the conversation of 28 August 2017 to establish recklessness at that point. There is not, in my view, sufficient evidence to conclude that matter in a manner adverse to the offender at that time.
A ‘Substantial Quantity’ of Drugs
Counsel for the offender submitted that, given that recklessness is relied upon, it “would
not be appropriate to aggravate his level of criminality by anything over and above the
bare liability for the commercial amount of .50 kilograms”: at [22], citing Wong v The
Queen [2001] HCA 64; 207 CLR 584 (Wong) at [68]-[69] and Olbrich at [27].
101. Counsel for the offender accepted, however, that the agreement was to import a
“substantial” amount (T 40.18-21).
102. The prosecution submitted the following in response:
(a) People do not go to the trouble and risk of importing quantities of drugs “as small as the very bottom threshold of a marketable quantity of drugs” (T 33.2-5).
(b) The offender communicated to Mr Jabal the request for $50,000 and this amount of money points to an amount of drugs that is above the bottom of the threshold for a marketable quantity (T 33-34).
It was ultimately accepted that the notion of a ‘substantial quantity’ of drugs is unhelpful,
and contrary to the quantities as described in the legislation (T 110.6-7).
104. In relation to the inference that the offender’s initial state of mind was that the
importation involved a quantity of prohibited drugs that was above the bottom of the threshold and closer the top of the scale of a marketable quantity, I accept the submissions of the prosecution. The submissions accord with my view of the evidence, which is consistent with my earlier factual findings that, although the offender was aware of the amount of money, it was not proven to the requisite standard that he was involved at that earlier point.
The Offender’s Knowledge of Sock
105. Counsel for the offender submitted that “the Crown cannot form any direct association
between Sock and Omari or [prove] that Omari in some way had knowledge of Sock,
or that he had communicated with Sock”: Written Submissions dated 15 May 2020 at
[60]. This was accepted by the prosecution (T 53.21-24).
106. I therefore note that no finding can be made in relation to the offender having knowledge of Sock. I proceed to sentence on the basis that the offender did not know the identity of Sock and had no communication with Sock.
The Offender’s Knowledge of Consignment 2
107. Counsel for the offender submitted that it cannot be established to the requisite standard that the offender was aware of the second consignment. One of the key factors in this submission was the fact that the brief of evidence did not establish that
the offender had any knowledge of ‘Sock’ and was not involved in communications with
Sock. That the evidence did not establish a connection between the offender and Sock was conceded by the prosecution (T 53.21-24). The prosecution maintained, however, that the evidence did establish that the offender had knowledge of the second consignment.
108. There were two recorded phone calls that both the prosecution and defence referred to in relation to this issue. It was common ground that the second consignment was posted via air cargo on 24 November 2017 from the United Kingdom.
28 November – Conversations between the offender, Mr Poulakis and Mr Yavuz
109. In a recorded conversation between the offender and Mr Yavuz on 28 November 2017, the following exchange took place:
OMARI: I might – I might have some good news for you when I see you tomorrow.
YAVUZ: Oh, yeah.
OMARI: Yeah.
YAVUZ: How good?
OMARI: Very, very good.
YAVUZ: Who’s it benefit?
OMARI: Oh, very good. You and me.
YAVUZ: (Laughing) Um, oh, how long are you in Sydney for?
OMARI: I said I’m driving to the airport now.
YAVUZ: Oh, and you – what? To come back to Canberra?
OMARI: Yeah.
110. Later, on the same day, a phone call between the offender and Mr Poulakis was recorded, during which the offender expressed concern about his financial situation. He stated he wished to sell his property in Murrumbateman and Mr Poulakis responded:
“Soon you’ll be able to put fucking five storeys on there, don’t worry”.
111. The prosecution submitted that both conversations provide strong evidence that the offender was communicating with Mr Yavuz and Mr Poulakis in relation to Consignment
2. While it was accepted that there was “probably a degree of hyperbole” in relation to the five storeys, it was submitted by the prosecution that this comment was “a clear
reference to the profit that Mr Poulakis and the offender expected to realise when the
second consignment arrived” (T 56.26-28).
112. Counsel for the offender submitted that this assertion was incorrect for three reasons (Written Submissions dated 15 May 2020 at [96]-[98]):
First, if that reasoning is correct, then Omari must have had knowledge about the dispatching
of the second importation. In those circumstances, why would he use the words “I might have
some good news for you” when speaking to Yavuz. Is it not more logical to assert that if he
knew about the dispatch of the second importation, he would have used the words “I have
good news” as opposed to “I might have some good news”, given that consignment 2 had
been dispatched 4 days earlier on 24 November 2017. The conversation with Yavuz is more consistent with the very fact that Omari was returning to Canberra from Sydney and would have had the opportunity to check his place of employment to determine if consignment 1 had arrived at its assigned address.
Second, the conversation with Poulakis on the same day takes place on or about 4 hours
after Omari had spoken to Yavuz. It’s difficult to determine why this is evidence that Omari
had knowledge in respect of the second consignment or that he was reporting to Yavuz that
the second consignment had been dispatched.Third, Omari cannot in anyway be linked to the second importation other than the fact its address is the same as consignment 1.
113. In oral submissions, counsel for the offender submitted that it is “quite clear” that this
conversation relates to Consignment 1 (T 63.8-9), given that the following day the
offender makes phone calls enquiring after the status of Consignment 1.114. In relation to the submission that the offender says, “I might have good news”, as
compared to, “I have good news”, the prosecution submitted that one must not overlook
the fact that these are monitored phone calls with somebody who is in prison, and that steps would have been taken to distance themselves from the criminal activities and to not speak openly (T 24.18-29).
115. In respect of the “five storeys” conversation, the prosecution submitted the following (T
64. 18-26): Why is it that Mr Poulakis for the first time is talking in such terms about likely profit with Mr Omari? Why is that? The first consignment has been in Canberra now for some considerable period of time. But for the first time Mr Poulakis is talking about really significant sums of
money and profit – and that’s what he’s talking about when he talks about the five storeys,
putting them on there. And it just happens the coincide with four days after the second consignment, a really profitable one, a potentially profitable one is set. That is why your
Honour would be satisfied … [the conversation relates to] the second consignment.
Conclusion
116. In my view, this evidence falls into the category of evidence discussed in Fillipou at [70]. I am unpersuaded to the view argued for which is favourable to the offender, though, at the same time, the prosecution has not proven the contrary beyond reasonable doubt, that is, actual and specific knowledge of the dispatch of Consignment 2. Nevertheless, it ought be noted in this context that the second consignment was addressed to the ANU and the offender has pleaded guilty to importing a commercial quantity. In my view, not much turns on this somewhat arid debate.
Whether the Offender was Informed of Milestones
117. The prosecution submitted that, on the evidence, an inference was available that the offender was informed of the significant milestones in the importation, and this is relevant to his level of involvement in the offence. While this was disputed by the
offender, it was conceded that “there is no doubt that there is evidence that he has been
updated” (T 51.45-46).
118. Counsel for the offender maintained that it is not correct to suggest that the offender
was “updated in respect of every significant, material milestone”, as that would be
contrary to the factual findings that he was reckless as to the commercial quantity, and
that his involvement in the offending took place over a shorter period (T 52).119. It was ultimately agreed between the parties that the offender was informed of some significant milestones but was not informed of everything (T 54-55).
The Relationship between the Co-Offenders, Motivation & Duress
120. Counsel for the offender submitted that “there was not only a lack of motivation and
unwillingness to get involved in the commission of the offence, but there was a lack of
urgency from [the offender]” (T 84.33-35). In this respect, counsel noted that the
consignment arrived at the ANU on or about 3 November 2017; however, as at 12 November, the offender was in Sydney and receiving communications from Mr Yavuz
and Mr Poulakis to “get your priorities right” and return to Canberra to collect the
consignment.
121. Counsel for the offender submitted that the offender’s apparent lack of motivation in
relation to the collection of the consignment supports the offender’s assertion (in his
letter of remorse) that he did not expect to receive a significant financial benefit from
the venture (T 88).122. Counsel for the offender submitted that the telephone intercepts and communications
between the co-offenders show that the offender “was pressured and that there was an
element of duress” (T 84.37-41).123. In response, the prosecution submitted that the co-offenders were friends; the tone of the recorded conversations was jovial; and there was no element of duress or pressure (T 117).
124. It was ultimately accepted by the offender that there was no coercion or duress, but there was a level of frustration from the co-offenders, who placed a degree of pressure on the offender. It was additionally accepted that the co-offenders were friends (T 118).
125. I accept that there were varying levels of motivation as between the co-offenders, as
demonstrated by the offender’s extended stay in Sydney following the arrival of
Consignment 1. I additionally accept that the co-offenders were frustrated with the offender and indicated that he needed to get his priorities right and return to Canberra to collect the consignment. This does not, however, amount to duress, and the offender was clearly a willing and active participant in the importation.
Relevant Sentencing Principles
126. Different statutory regimes apply to the sentencing of the offender, as he has pleaded guilty to both Commonwealth offences and Territory offences.
127. The principles of sentencing for Commonwealth offences are contained in Part 1B of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act). Section 16A(1) states that a
sentence must be of a “severity appropriate in all the circumstances of the offence”. A
non-exhaustive list of factors to be taken into account are contained in s 16A(2).
128. Sentencing for the Territory offences is determined in accordance with the Sentencing Act.
Objective Seriousness
Relevant Legal Principles
129. The sentence imposed must reflect the degree to which the offender’s conduct
transgresses the legislative intent to suppress the illicit traffic in prohibited drugs: R v To [2007] NSWCCA 200; 172 A Crim R 121 at [12], Parry v The Queen [2003] WASCA 222 at [39], R v Peel [1971] 1 NSWLR 247 at 262 and Tu v The Queen [2011] NSWCCA 31; 205 A Crim R 566 at [52].
130. In Bui v The Queen [2015] ACTCA 5 at [41] (Bui), the ACT Court of Appeal noted the following principles relevant to the sentencing of drug traffickers:
(a) The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: MacDonnell (2002) 128 A Crim R 44 at 50; [33].
(b) While, as decided in Wong v The Queen at 609; [67]-[70], the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects: R v Bezan (2004) 147 A Crim R 430 at 438; [34].
(c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly (2002) 133 A Crim R 26 at 30; [20]: R v Day (1998) 100 A Crim R 275 at 277.
131. Similar sentencing considerations apply in relation to the Commonwealth offence of importing a commercial quantity of a border-controlled drug: R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at [72] (Nguyen & Pham) and Wong.
The Offender’s Role – Importation Offence
132. An offender’s role and level of criminality are important components in determining the
sentence to be imposed together with the weight of the drugs involved.
133. It was common ground between parties that, in relation to the importation offence, the offender was at a lower level of the hierarchy in the enterprise than Mr Poulakis or Mr Yavuz.
134. I note that an offender’s role is not to be determined by the use of short hand labels,
but rather by assessing, to the extent the evidence allows, what the offender’s actual
involvement was: Paxton v The Queen [2011] NSWCCA 242; 219 A Crim R 104 at [135] applying Olbrich at [14]. General descriptions of types of participation must not obscure the assessment of what the offender did. Labels can sometimes obfuscate more than they illuminate.
135. The prosecution submitted that the fact that the offender performed a more limited role does not necessarily entitle him to any degree of leniency, citing R v Muanchukingkan (1990) 52 A Crim R 354 at 356 and R v Laurentiu (1992) 63 A Crim R 402 (Laurentiu).
136. The prosecution further submitted that persons who participate in the illicit drug trade, at any level, should expect, and receive, heavy penalties: R v Opera [2009] QCA 184 at [14], R v Le Cerf (1975) 13 SASR 237 at 239, and Laurentiu at 417.
137. The prosecution accepted that the offender played a more limited role than that of Mr
Poulakis and Mr Yavuz; however, it was submitted that the offender’s role was
important and involved him being entrusted with significant responsibility. In this respect, the prosecution pointed to the fact that the offender at times was required to
communicate between Mr Yavuz and Mr Jabal and to the importance of the offender’s
access to the ANU and role as the collector (see, generally, T 35).
138. In relation to the offender’s role in the importation, counsel for the offender submitted
various factors, including the following, are relevant to determining the objective
seriousness of the offending (Written Submissions at [21]):
(a) The “foundational offence” was an agreement to import a marketable quantity, rather than a commercial quantity.
(b) The offender’s conduct was reckless. (c)
The proven duration of the reckless conduct was short and did not extend beyond seven days.
(d) The offender’s participation involved the greatest risk of detection. (e)
There is no evidence that the offender had any communication with or knowledge of Sock, who arranged the shipping of the consignments.
(f) The offender “lacked a significant role” in that he was not an investor; he did not provide finance; and there was no evidence that he was involved in organising
the shipment.(g)
It was accepted by the offender that the motivation for the offending was financial gain, though the extent of the financial gain remained a matter of dispute.
(h) The offender was following the instructions of Mr Yavuz and Mr Poulakis. (i) The offender’s role lacked sophistication and any planning involved cannot be
said to be in excess of that inherent in offences of this type.
139. In general terms, I accept the submissions specifically outlined above. In this context, I relevantly further note that the prosecution accepted the offender was at a lower level of the hierarchy as compared to Mr Yavuz and Mr Poulakis: Prosecution Written Submissions on Sentence at [15].
223. Bare sentencing statistics provide limited assistance: Pham. Statistics do not provide information about why sentences were fixed as they were in each case: Hili. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied
mechanically … given that the factors that must be taken into account are incommensurable,
and … in many respects, inconsistent.
224. Having regard to comparable cases serves two purposes: it provides guidance as to the identification and application of relevant sentencing principles and, upon analysis, may yield discernible sentencing practices and possibly a range of sentences against which to examine a proposed sentence: Pham at [29], citing Hili at [49].
225. In relation to the importation offence, I was referred to the following appellate cases by the prosecution:
(a)
R v Englisch [2009] VSCA 71: The offender was charged with one count of aiding and abetting the importation of a commercial quantity of a border- controlled drug, namely 555.48 grams of MDMA. The offender pleaded guilty and had previously been convicted for importing a commercial quantity of drugs in similar circumstances. The offending commenced 20 days after the expiry of the recognisance order for the previous offence, which was an aggravating feature on sentence. The offender came to Australia in 1992 and developed his own company where he worked as a painter until he sustained a work injury where he experienced financial loss and became severely depressed. The offender was sentenced to seven and a half years of imprisonment, with a non- parole period of five years. An appeal by the offender against the sentence was dismissed.
(b)
El-Jalkh v The Queen [2011] NSWCCA 236: The offender was charged with one count of conspiring to import a commercial quantity of a border-controlled drug, namely 4.321 kilograms of MDMA. The offender was 61 years of age and had prior good character. He suffered from major depression, had numerous medical conditions, and was supporting elderly parents. The offender was a principal in the conspiracy, but not the director of the enterprise. Nevertheless, he was willing to go to great lengths to effect the importation, including travelling to both Lebanon and Europe. The offender was sentenced to 10 years of imprisonment, with a non-parole period of 5 years and 3 months. An appeal against the sentence was allowed due to the sentencing judge miscalculating the date of the sentence; however, the same penalty was imposed. The accused was originally convicted of the offence, but had the conviction quashed on appeal and a new trial ordered. The accused pleaded guilty to the charge prior to the retrial.
(c)
Siddiqi v The Queen (Commonwealth) [2015] NSWCCA 169 (Siddiqi): The offender was found guilty following a trial of one count of jointly importing a marketable quantity of a border-controlled drug, namely 1.48 kilograms of cocaine. The offender actively recruited innocent agents to accept parcels containing cocaine through the post at their homes; he was found to play a key role, although was only expecting to receive a modest financial reward. The offender was 23 years of age and came to Australia from Afghanistan as a child. He had a difficult upbringing as a result of having to grow up in a new country and had been diagnosed with a major depressive disorder. The Court was cautious about his rehabilitation prospects and a significant prior matter in the
Children’s Court was taken into account. The offender was sentenced to seven
years and six months of imprisonment, with a non-parole period of three years and nine months. Leave to appeal against the sentence was granted to the offender, but the appeal was dismissed. The Court of Criminal Appeal found that the sentencing Judge had erred in taking into account juvenile offending; however, it was found that an inappropriately low sentence imposed on a co-
offender cannot dictate a reduction in an offender’s sentence where that
sentence is not manifestly excessive.
(d)
R v Ng [2012] WASCA 180: The offender was found guilty at trial of two counts of attempting to possess a marketable quantity of a border-controlled drug, namely 227.1 grams of methamphetamine in relation to count 1 and 383.8 grams of methamphetamine in relation to count 2. The offender was 35 years of age and born in Malaysia. He obtained a Bachelor of Science but was unable to obtain work commensurate to his qualifications due to his proficiency in English. The offender worked as a factory hand, had a gambling addiction and had used recreational drugs for around two years prior to the offending. He carefully monitored the progress of both parcels, which formed part of a very significant drug enterprise. He was trusted by persons at a high level in the drug distribution chain and had two previous convictions for taking possession of imported methamphetamine. The evidence established that the offender was a low to mid-level dealer, and the offences were committed whilst on bail for previous charges. The offender failed to cooperate with law enforcement agencies and demonstrated no insight into his offending. He was sentenced to three years of imprisonment for count 1, and three years and six months for count 2. The sentence for count 2 was reduced by four months and two weeks to account for time spent in custody between arrest and conviction on previous offending. The sentences were concurrent, but cumulative on a previously imposed sentence. A Crown appeal against sentence was upheld and the offender was re-sentenced to 10 years for count 1 and 10 years and 2 months for count 2. The sentences were concurrent, but partly cumulative on the previously imposed sentence. Following the appeal, the total effective sentence for the offender (including the previous sentence) was 13 years, 7 months and 2 weeks of imprisonment, with a single non-parole period of 8 years and 6
months’ imprisonment.
226. In relation to the trafficking offence, I was referred to the following ACT cases by the prosecution:
(a)
Nchouki v The Queen [2018] ACTCA 28; 13 ACTLR 168: The offender was charged with three counts of trafficking in a controlled drug and two counts of possessing a prohibited weapon. The trafficking offences related, respectively, to 137.96 grams of cocaine, 19.23 grams of MDMA, and 57.28 grams of methylamphetamine. The offender pleaded not guilty and had a limited criminal history. The offender was 37 years of age at the time of sentence. He had positive character references and longstanding methylamphetamine and cocaine addictions. The offender participated in rehabilitation programs, did not offend in the three years following the offences, and ceased association with an Outlaw Motorcycle Gang prior to sentencing. The offender was sentence to 2 years of imprisonment for the cocaine trafficking; 6 months of imprisonment for the MDMA trafficking; 18 months of imprisonment for the methylamphetamine trafficking; and 4 months each for the possess prohibited weapon offences. The total sentence was 3 years of imprisonment with a non-parole period of 20 months. An appeal against the sentence by the offender was dismissed.
(b)
R v Hou [2017] ACTCA 14: The offender was charged with manufacturing a controlled drug for selling; possessing a large commercial quantity of a controlled precursor, namely nitromethane; and trafficking in a controlled drug other than cannabis, namely MDMA. The offender had no criminal history and pleaded guilty to the offences. The offender had leased an industrial space with the intention of setting up a clandestine laboratory for the manufacture of MDMA. When apprehended, the offender was in the course of distilling an MDMA precursor. He was found with 32.1 litres of nitromethane and 71.223 grams of MDMA. The offender was considered a person of good character and was motivated by financial gain. The offender was sentenced to 1 year and 10 months of imprisonment for the manufacturing charge; 3 years of imprisonment for the possession of a precursor charge; and 3 months of imprisonment for the trafficking charge. The total sentence was four years of imprisonment with a non-parole period of two years. In a Crown appeal against the sentence, the Court of Appeal found that, although lenient, the sentences were not manifestly inadequate.
(c)
R v Harrington [2016] ACTCA 10; 11 ACTLR 215: The offender was charged with attempting to possess a marketable quantity of cocaine and trafficking in cocaine. The attempted possession offence related to 258.5 grams of cocaine, and the trafficking offence related to 24.91 grams of cocaine. The offender entered a plea of guilty and had a limited criminal history. The offender was 62 years of age at the time of sentence. He had strong family and community ties and a strong employment record. He had been diagnosed with cancer and was assessed as a person of good character with a low risk of reoffending. The offender was sentenced to four years and six months of imprisonment for the attempted possession offence. He was sentenced to 10 months of imprisonment for the trafficking offence. Following a successful Crown appeal,
the offender was re-sentenced to seven years’ imprisonment for the attempted possession offence, and one year and six months’ imprisonment for the
trafficking offence. The total sentence was 8 years of imprisonment, with a non-
parole period of 4 years and 6 months’ imprisonment.
(d) R v Watson [2018] ACTSC 172: The offender was sentenced for two counts of trafficking in a trafficable quantity of cannabis; three counts of being knowingly concerned in trafficking of a controlled drug, namely MDMA, methylamphetamine and THC; one count of trafficking in a controlled drug, namely LSD; two counts of possessing a drug of dependence, namely amphetamine and cocaine; and one count of possessing a prohibited substance, namely MDMA. The quantities of the drug were not referred to in the judgment; however, the street value of the drugs seized was $48,000 in 2015, with the cannabis accounting for nearly $32,000 of that amount. The offender pleaded guilty and had a criminal history with prior relevant offences. The circumstances of the knowingly concerned charges were that the offender’s
partner was selling various drugs from her house. For the knowingly concerned offences, the offender was sentenced to four months of imprisonment for the MDMA; six months of imprisonment for the methylamphetamine; and six months of imprisonment for the THC. The overall sentence was structured in such a way that the offences were characterised into two groups: 2015 offences and 2017 offences. For the 2015 offences, the offender was sentenced to approximately eight and a half months of imprisonment, which had already been served on remand. For the 2017 offences, the offender was sentenced to 15 months of imprisonment, which she was ordered to serve by way of ICO.
227. In July 2020, I was further referred to the following cases by counsel for the offender:
(a) DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 (De La Rosa). (b) Luong & Anor v DPP (Cth) [2013] VSCA 296; 46 VR 780. (c) R v Nozhat (No 2) [2019] ACTSC 81. 228. In November 2020, counsel for the offender provided summaries of a number of additional relevant cases. These were provided in the context of the submissions on the appropriateness of an ICO and are summarised above at [213].
229. In relation to the comparable cases provided by the prosecution, counsel for the
offender submitted they “provide no assistance in terms of range” as they “are so
different and disparate that any weight attached to them … may lead the Court into
error”: Written Submissions Part 2 at [48]. In this respect, counsel noted the
foundational principle that the sentencing discretion is individual and must be exercised by a sentencing judge in respect of the individual offender and the circumstances of the particular offending: De La Rosa at [304] and Hili at [54].
230. Counsel accepted that viewing cases “in an overall and broad way” can provide a
measure of the types of sentences passed in similar circumstances, citing R v Smith
[2016] NSWCCA 75 at [73].231. I take into account the comparable cases in accordance with the relevant principles discussed in Pham and Hili, referred to above at [224]-[226].
| Parity | |
| 232. | The Court of Appeal in Thompson v The Queen [2018] ACTCA 2 at [24] stated the following: |
[J]ust as equal justice requires that like offenders should be treated alike, relevant differences
should also be acknowledged: Postiglione v The Queen (1997) 189 CLR 295, 301–2
(Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino v The
Queen [2015] ACTCA 22 at [26]–[27] and Le Clair v The Queen [2017] ACTCA 19 at [48].
233. The principles in relation to parity in sentencing co-offenders are well known. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [32], Lowe v The Queen (1984) 154 CLR 606, and Petterson v The Queen [2013] NSWCCA 133 at [43].
234. There are three co-offenders in this matter: Mr Jabal, Mr Yavuz, and Mr Poulakis. It was
accepted by both prosecution and counsel for the offender that Mr Poulakis’ and Mr Yavuz’ involvement in the importation was more significant than that of the offender or
Mr Jabal. The co-offenders received sentences as follows:
(a) Mr Jabal was sentenced for being knowingly concerned in the trafficking of a controlled drug other than cannabis, namely cocaine. He was convicted and sentenced to 12 months’ imprisonment to be served by way of ICO.
(b) Mr Poulakis was sentenced to five years and nine months’ imprisonment for the offence of importing a commercial quantity of a border-controlled drug. He was
additionally sentenced to nine months’ imprisonment for an offence of trafficking
in a controlled drug other than cannabis. The total term of imprisonment was six years, and Mr Poulakis will be eligible for parole after serving three years. Two additional offences were taken into account on sentence, in relation to possessing a firearm and structuring financial transactions.
(c) Mr Yavuz was sentenced to a term of eight years and six months’ imprisonment for the offence of importing a commercial quantity of a border-controlled drug. He will be eligible for parole after serving five years and one month. Mr Yavuz was in custody for a previous conviction for importing border-controlled drugs at the time this offence was committed.
235. The prosecution submitted, and I accept, that various factors may give rise to some differences between the sentences imposed on the offender and his co-offenders, including the following (Written Submissions dated 26 October 2020 at [9]):
(a)
It was accepted by both parties that the offender was at a lower level in the enterprise as compared to Mr Yavuz and Mr Poulakis; nevertheless, he was a willing participant and played an active and critical role in the importation.
(b)
With regard to subjective features, there are a number of similarities between the offender and Mr Poulakis, including: the offending was motivated by financial gain; both have a limited criminal record of a different nature to the present offending; both experienced a good upbringing and family background; both have a history of employment success and current gainful employment; and both have good prospects of rehabilitation.
(c) The trafficking count reflects the offender’s involvement in a “small but nonetheless active” drug supply operation. Mr Jabal, who was sentenced for
being knowingly concerned in the trafficking, received an ICO; the offender’s
culpability must be higher than that of Mr Jabal.
(d) The offender has accepted guilt for a number of scheduled offences which are connected to his ongoing drug-related activities. Particularly in regard to the pervert the course of justice offence, the offender was the instigator and the intended beneficiary of the activity. 236. Counsel for the offender submitted that what materially distinguishes the offender from the co-offenders is that he entered into an agreement to import a marketable quantity as opposed to a commercial quantity: Written Submissions Part 2 at [5]. Further submissions were made in relation to objective matters concerning the offender as compared to Mr Poulakis and Mr Yavuz.
237. It is relevant to note here that the principle of parity is not a principle that can be used by the prosecution to argue, either at first instance or on appeal, that the offender must receive a higher sentence because of the sentence imposed on his co-offenders: R v Radloff (1996) 88 A Crim R 26 at 31-31 and Delaney v The Queen [2013] NSWCCA 150; 230 A Crim R 581 at [68]-[69].
238. In sentencing the offender, I take into account the principles of parity in accordance with the authorities outlined above at [232]-[233] and recognise the more minimal role played by the offender in the joint enterprise, as compared to the co-offenders Mr Yavuz and Mr Poulakis. I take into account the different objective matters and subjective factors, having sentenced all co-offenders.
Additional Offences
239. The offender has requested that, under Part 4.4 of the Sentencing Act, the offences referred to above at [3] be taken into account for the purposes of sentencing in relation to the importation and trafficking offences.
240. A number of relevant principles in relation to consideration of additional offences were enunciated by the Court of Appeal in R v Campbell [2010] ACTCA 20 at [46]-[50] (Campbell), including:
(a) The Court is required to ask the offender whether they wish the Court to take into account the additional offences, the answer to which much be clear and unequivocal: at [43], Sentencing Act s 57(1). (b) Any penalty imposed for the offence cannot exceed the maximum penalty even if additional offences are taken into account: at [46], Sentencing Act s 57(1). (c) In taking additional offences into account, greater weight is given to considerations of personal deterrence and community retribution, and in taking them into account they will no doubt be considered in the assessment of the offender’s character and prospects of rehabilitation: at [47], [50].
(d)
It is not necessary for a court to indicate precisely what effect the taking into account the additional offences has, and while there may be occasions when it is appropriate for a judge to refer to the effect, it is not obligatory to do so: at [49]-[50].
(e) “Taking offences into account” means to do so in the same manner as other matters that are taken into account on sentence. It will generally have the result
of increasing, or changing the nature of, the sentence to be imposed: at [50].(f) The offender is not to be sentenced for the additional sentences: at [50]. 241. I take into account, in determining the appropriate sentence, the additional offences referred to above at [3]. I also have regard to the principles outlined in Campbell as to how the offences are to be taken into account.
Impact of COVID-19 on Sentencing
242. Counsel for the offender submitted that the suspension of social visits at the AMC due to COVID-19 would make any period of imprisonment imposed on the offender more onerous, citing Scott v The Queen [2020] NSWCCA 81 at [166]. I note that, since the sentence hearing, limited social visits recommenced at the AMC from 9 September 2020. These visits are restricted to immediate family and partners only, and each detainee is allowed one adult visitor and one child visitor. No physical contact is permitted between visitors and detainees. While the availability of restricted social visits may lessen, to a limited extent, the social consequences of COVID-19, social visits remain constrained, and may well be suspended again, depending on the progress of COVID-19. There is, therefore, additional hardship attached to imprisonment due to the COVID-19 pandemic. I take this into account as a relevant factor on sentence.
| Delay | |
| 243. | It was accepted that the demonstrated progress towards rehabilitation during the intervening period should be given considerable significance on the relevant authorities, and I do so. I also take into account the uncertainty and anxiety experienced during the relevant period (T 5/2/21 2-3). |
Statutory & Other Relevant Considerations
244. In relation to the Territory offence, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. In relation to the Commonwealth offence, the court is required to take into account matters under s 16A(2) of the Commonwealth Crimes Act that are known and relevant. I have referred to the relevant matters above.
245. In relation to the Territory offence, the court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, rehabilitation, and recognition of harm to the victim, being the community, are important sentencing considerations. In relation to the Commonwealth offence, these matters are relevant under s 16A(2) of the Commonwealth Crimes Act.
246. The prosecution submitted, and I accept, the following in relation to general deterrence in the context of drug trafficking (Written Submissions at [13]):
General deterrence is an important consideration for offending of this type. Principles of general deterrence and denunciation are prime considerations when sentencing for drug trafficking offences, be they domestic or international as in the present case. These considerations will generally outweigh subjective circumstances, particularly in the determination of a total sentence, and stern punishment will be warranted in almost every case. This is because of the difficulty in detecting offending conduct and the enormous social consequences that flow from the trafficking of drugs within Australia.
(Citations omitted).
247. It is clear that general deterrence is an important consideration for offending of this type: R v Combey (Unreported, Victorian Court of Criminal Appeal, Starke, Anderson and Fullagar JJ, 5 February 1980), Wong, DPP (Cth) v El Karhani (1990) 21 NSWLR 370; 51 A Crim R 123, R v Tang, Dang and Quach [1998] 3 VR 508, and Mazzitelli v The Queen [2002] NSWCCA 436; 135 A Crim R 132 at [71].
248. The prosecution further submitted that the range of drug offences presently before the
Court indicate that the offender’s conduct was not an aberration or in isolation, and,
therefore, there is also a need for specific deterrence. In relation to specific deterrence, counsel for the offender submitted that it should be given less weight, due to the offender having limited criminal history, showing contrition, and being assessed as having a low risk of reoffending: at [50].
249. Specific deterrence is not irrelevant and remains relevant. Nevertheless, I accept that the weight is significantly reduced, taking into account the factors identified by counsel.
I note that the prosecution accepted that the offender’s “prospects for rehabilitation are
good” (T 58.28-29).
250. Under s 16A(2)(e), a relevant sentencing consideration for Commonwealth offences is any injury, loss or damage resulting from the offences. Counsel for the offender submitted that there is no evidence of any loss or damage. Counsel for the offender noted that, where the dissemination of drugs into the community has been foiled by the efforts of investigators, the mitigating effect on sentence has led to a divergence of opinion, referring to R v DW [2012] NSWCCA 66; 221 A Crim R 63 at [117], AB v The Queen [2013] NSWCCA 273 at [92], and Taysavang v The Queen [2017] NSWCCA 146 at [49]-[52]. Counsel for the offender submitted the following:
Without seeking any substantial mitigation of the objective gravity of the offending due to lack of dissemination of drugs, the offender submits the extent of retribution that needs to be reflected by the sentence would be tempered by this fact, at the very least, because the actual consequences of criminality are a significant marker of the extent to which retribution should be reflected in a sentence: Falls v R [2004] NSWCCA 335 at [19].
I take the defence submission into account. Nevertheless, it is not a matter of significant weight in this case on my view of the authorities.
251. Section 16A(2)(p) provides that hardship to others is a relevant sentencing consideration. The general principle in this regard is that hardship to family and dependents is an unavoidable consequence of a custodial sentence and is not a mitigating consideration, unless such hardship is highly exceptional: R v Edwards
(1996) 90 A Crim R 510 at [515]. Counsel for the offender accepted that the offender’s
case does not fall into the exceptional category; however, it was submitted that the fact that members of family will be impacted if he is incarcerated is a relevant factor that can be taken into account, citing R v Girard [2004] NSWCCA 170 at [21]. I accept this submission.
252. Counsel for the offender noted that the offender has been subject to “strict” conditional
bail since December 2017. Counsel submitted, citing R v Fowler [2003] NSWCCA 321; 151 A Crim R 166 at [242], that bail conditions are matters relevant to the determination of the proper sentence to be imposed: at [75]-[76]. I take this into account.
253. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
254. Counsel for the offender submitted that the offender experienced extra-curial punishment through loss of his employment: at [73]. Counsel cited McHugh J in Ryan at [54] in this regard. I note that the offender resigned from his job at the ANU following his arrest, and subsequently was successful in gaining ongoing employment in Sydney. I take this into account, though the significance is necessarily somewhat limited on the facts of this case: see R v Rudd [2010] NSWCCA 71 at [35], Stanford v The Queen [2007] NSWCCA 73 at [83], R v Martin (1990) 47 A Crim R 168 at 174-7, R v Kwon [2004] NSWCCA 456 at [13]-[14], and Greenwood v The Queen [2014] NSWCCA 64 at [35].
255. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, Mill v The Queen (1988) 166 CLR 59 at 63, Pearce v The Queen [1998] HCA 57; 194 CLR 610 and R v XX [2009] NSWCCA 115; 195 A Crim R 38.
256. The prosecution submitted, and I accept, that the different nature of the offending requires an element of cumulation to both properly reflect the aggregate criminality of the offender.
Recognizance Release Order
257. The Court may not impose a single non-parole period or recognizance release order in respect of both Commonwealth and ACT terms of imprisonment: Commonwealth Crimes Act s 19AJ.
258. In relation to Commonwealth offences, the Court must fix a single recognizance release order if a sentence of imprisonment exceeding six months but not exceeding three years is imposed: Commonwealth Crimes Act ss 19AC(1)(b) and 19AC(3). Where the sentence of imprisonment imposed exceeds three years, the court must fix a single non-parole period: s 19AB(1).
259. There is “no judicially determined norm or starting point (whether expressed as a
percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on a recognisance
release order”: Hili at [13]. The minimum term that be served should be determined by
reference to Pt 1B of the Commonwealth Crimes Act and the principles in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367; 11 A Crim R 88, and Bugmy v The Queen (1990) 169 CLR 525: Hili at [44]. These cases require an assessment of the minimum time that justice requires the person to serve having regard to all the circumstances of the offence.
260. In accordance with s 19(3) of the Commonwealth Crimes Act, where an offender is sentenced to a term of imprisonment for Commonwealth and Territory offences, the Court is required to direct when the Commonwealth sentence commences, but so that:
(a) No federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and (b) If a non-parole period applies in respect of a Territory sentence, the first federal sentence to commence after the end of that non-parole period commences immediately after the end of that period. 261. As has been noted in Edwin v The Queen [2014] ACTCA 47 at [11], when sentencing
in the context of both Commonwealth and Territory offences, “a sentencing judge must
accommodate the two distinct regimes”. Necessarily, the structure of the sentences
imposed must accord with these two regimes. It is therefore appropriate to commence with the Territory offence and accumulate the Commonwealth offence upon this sentence in order to encompass the entire criminality associated with both the Territory and Commonwealth offences.
Sentence
262. In coming to a sentence by way of instinctive synthesis, I have taken into account all of the matters discussed above, including the objective seriousness of the offences, the subjective matters, and parity.
263. As discussed earlier in this judgment, an ICO as propounded for by counsel for the offender is too lenient in relation to the objective seriousness of the offences. I accept the prosecution submission in that regard. Nevertheless, I do not accept the prosecution submission that only a sentence of imprisonment with a non-parole period is appropriate. In the process of instinctive synthesis, I find that a recognizance release order after an overall 15-month term of full-time imprisonment is appropriate.
264. Of course it is never particularly edifying for a court to sentence a person to full-time imprisonment after a significant period of time during which meaningful rehabilitation has occurred. The law, nevertheless, in this case, compels that result.
265. The appropriate sentence for jointly importing a commercial quantity of a border- controlled drug is three years and three months of imprisonment, reduced to two years and nine months on account of the plea of guilty.
266. The appropriate sentence for trafficking in a controlled drug other than cannabis is one year and six months of imprisonment, reduced to one year and three months on account of the plea of guilty.
267. The sentence will be backdated to commence on 3 February 2021 to account for the two days spent in custody in December 2017.
268. The offender will be released from full-time custody on a recognizance release order after serving 15 months of the sentence.
Orders
269. I make the following orders:
(a)
In respect of the ACT offence of trafficking in a controlled drug other than cannabis (CC 2017/13376), the offender is sentenced to a term of one year and three months of imprisonment, commencing on 3 February 2021 and ending on 2 May 2022.
(b)
In respect of the Commonwealth offence of jointly importing a commercial quantity of a border-controlled drug (CC 2018/13832), the offender is sentenced to a term of two years and nine months of imprisonment, commencing on 3 May 2021 and ending on 2 February 2024.
(c)
In respect of the Commonwealth offence, I set a recognizance release order commencing on 2 May 2022 with a recognizance in the sum of $1000 for a period of two years, to conclude on 2 May 2024, with the condition that:
(i)
The offender accepts the supervision of ACT Corrective Services and obey all reasonable directions of officers of that service or their delegates.
I certify that the preceding two hundred and sixty- nine [269] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson.
Associate:
Date:
co-offenders.
0
8
0