R v Omsivapirahasham and Perinparasa

[2024] NSWDC 209

District Court

New South Wales

Medium Neutral Citation:

R v Omsivapirahasham and Perinparasa [2024] NSWDC 209

Hearing dates:

11/4/24, 22/4/24

Date of orders:

22/4/24

Decision date:

22 April 2024

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Re Perinparasa:

Seq 3 Conspire to import commercial qty border controlled precursor - Convicted and sentenced to a term of imprisonment for 6 years 7 months with a NPP of 3 years 9 months (11/11/21-10/8/25). A 25 percent discount has been taken into account.

Seq 2 is dismissed.

Re Omsivapirihasham:

Seq 3 Conspire to import commercial qty border controlled precursor - Convicted and sentenced to a term of imprisonment of 5 years 10 months with a NPP of 3 years 4 months (11/11/21-10/3/25). A 25 percent discount has been taken into account.

Catchwords:

Crime – Sentence – Commonwealth offences – Conspire to import a border-controlled precursor

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code 1995 (Cth)

Category:

Sentence

Parties:

Commonwealth DPP – Crown
Sriraj Omsivapirahasham – Offender
Mayuran Perinparasa - Offender

Representation:

Ms M Malaney for Crown
Mr S Buchen SC for Perinparasa
Mr A Cassels for Omsivapirahasham

File Number(s):

21/321227, 21/321169

remarks on sentence

1. In this matter, Mr Mayuran Perinparasa and Mr Sriraj Omsivapirahasham, are for sentence in relation to an offence to which they have each pleaded guilty, that being an offence under ss 11.5 and 307.11(1) of the Criminal Code 1995 (Cth). That, in summary, is an offence of conspiring with various others to import a substance, the substance being a border-controlled precursor, namely pseudoephedrine, and being a commercial quantity.

2. The maximum penalty for that offence is 25 years imprisonment. The maximum penalty is, of course, an important guidepost in the sentencing exercise to which I have had regard.

3. As I have said, each of the offenders has pleaded guilty, and I intend to allow a 25% discount on account of the utilitarian value of those pleas of guilty.

FACTS

4. The facts are agreed and in summary are as follows. Firstly, I will just indicate that, without intending any disrespect to either of the offenders, I will refer to them, given their fairly lengthy names, simply by the first letter of their surnames. So Mr Omsivapirahasham I will refer to as “Mr O”, and Mr Perinparasa as “Mr P”, just to make things a little bit shorter.

5. Between 22 May and 11 November 2021, these offenders were part of a conspiracy to import border-controlled precursors, namely pseudoephedrine, into Australia. The precursors were concealed in various items in an attempt to avoid detection. Mr P acted as a recipient for the consignments, and provided addresses, names and other details, and reported back to the senders via text message once the shipments were received. These messages frequently contained videos showing the consignments being unpacked to reveal the concealed pseudoephedrine. Mr O was present in a number of these videos where he can be seen deconstructing a consignment.

6. The two offenders were arrested on 11 November 2021 along with another person, Mr Logendran, outside a Parramatta newsagency after attempting to collect one of the consignments that had contained pseudoephedrine. Subsequent examinations of phones seized from Mr P and Mr O revealed evidence relating to a further 26 consignments which the agreed facts state are “alleged” to have been imported as part of the conspiracy. The agreed facts document includes annexure A which sets out agreed information in relation to all 27 consignments in chronological order.

7. However, the agreed facts contain more detailed information in relation to the consignments and commence with the consignment which was the subject of an attempted collection on 11 November 2021 when, as I have said, the two offenders and Mr Logendran were arrested. This consignment was, in fact, number 22 in the chronological order set out in annexure A. It arrived in Sydney from Nepal on 3 November 2021 and was addressed to a Kamal Ragunath at an address in Sorrell Street, North Parramatta. It was examined and found to contain nine bowls. An incision into one of these bowls revealed that a white crystal substance was concealed inside, and a subsequent examination revealed that the bowls contained a total of 4.77 kilograms of pure pseudoephedrine. Police removed the pseudoephedrine and replaced it with a harmless substance in preparation for a controlled delivery.

8. That delivery was scheduled to occur on the afternoon of 10 November 2021. On that afternoon, a silver Lexus was seen to attend the consignee address. Shortly after this, Mr P, Mr O and Mr Logendran were seen near the address. The delivery, however, that day was not successful. An updated delivery date of 11 November 2021 was scheduled by FedEx.

9. On 11 November 2021, a proof of delivery card was placed into the mailbox at the consignee address. That card indicated that the consignment could be collected from a nearby newsagency. At about 3.20pm that day, the silver Lexus was seen to arrive at the consignee address and then to drive towards the Parramatta newsagency. Shortly after 4pm, the two offenders and Mr Logendran were seen to arrive at the Parramatta newsagency in the Lexus with Mr P driving and the other two as passengers. Mr O and Logendran got out of the Lexus, while Mr P parked nearby. Logendran then entered the newsagency while Mr O waited outside.

10. Upon entering the newsagency, Logendran presented his phone which contained details of the consignment and also provided a false driver’s licence with his own photo and with identification which matched the name and address on the consignment. Logendran then took delivery of the parcel and met up with Mr P and Mr O with Mr P waiting nearby in the Lexus. All three of them were then arrested.

11. Following arrest, Mr O provided the PIN code to his mobile phone. Police also seized two mobile phones used by Mr P, and on one of these police found a tracking number for this consignment as well as an image of Logendran which matched that on the false driver’s licence that he had used in collecting the consignment. A search warrant was executed at premises in Westmead where Mr O lived with Logendran. Police also found a Nokia phone belonging to Mr O on which there was a WhatsApp conversation with a person named “AM” in which the user of the phone sent to AM a photograph of Logendran on 23 October 2021. This photo matched the photo of Logendran which was on the false driver’s licence.

12. The examination of the two phones belonging to Mr P revealed numerous WhatsApp chats in which Mr P communicated with other persons about tracking details of various other consignments. Also exchanged with these persons were videos of consignments being deconstructed to reveal concealed packets of white crystal substances. These communications by Mr P occurred with persons using a number of identifiers which are set out in the facts, including the name Dingo and the name Singam, and some other identities characterised by either a number of letters or telephone numbers.

13. The agreed facts record that Mr P was involved in the importation of a further 26 consignments, 25 of which either contained or are “alleged” to have contained pseudoephedrine. The facts state that Mr O was involved in the importation of five of these consignments. The agreed facts then go on to describe the circumstances of these other consignments by reference to numerals 1 through to 27.

14. Consignment 1 arrived in Sydney on 11 July 2021 and was found to contain a number of metallic objects inside of which was pseudoephedrine with a purity of 81.9% amounting to a total pure weight of 2.58 kilograms. The consignment was addressed to Benjamin Butros at 7 Normac Road, Girraween. The facts note that on 22 May 2021, Mr P sent to one of his contacts on his phone a message which said, “Ben Butros name.” Also, on 6 June 2021, Mr P modified a document in the notes section of his phone, which referred to the Girraween address on this package.

15. Consignment 2 arrived on 30 July 2021 addressed to Benjamin Butros with an address of 21 Metella Road, Toongabbie. That was the residential address at the time of Mr P. The consignment was examined by investigators and found to contain numerous boxes of small kitchen appliances. When deconstructed, the items were found to contain pseudoephedrine which was 81.9% pure with a pure weight of 1.68 kilograms. Investigators found on one of the phones belonging to Mr P an SMS message to a contact named Singam which referred to the Metella Road address.

16. Consignment 3 arrived in Sydney on 13 August 2021 and was addressed to Benjamin Butros with an address of 115 Cornelia Road, Toongabbie. The package was examined. Inside some metal objects there was found to be pseudoephedrine which was 81.9% pure, amounting to a pure total weight of 2.33 kilograms. The pseudoephedrine was removed from the package, and it was returned to the mail stream for delivery. That is, the package was returned for delivery. Between 23 August and 6 September 2021, Mr P exchanged a number of messages with a contact in his phone named Dingo concerning the delivery of this consignment. On 9 September, Mr P sent Dingo two photos of the consignment, and on 13 September 2021 he sent to Dingo two photos showing the weight of the consignment as well as a video showing that the consignment did not contain pseudoephedrine.

17. Consignment 4 arrived in Sydney on 15 August 2021 and was addressed to Zaker Reiad of 219 Hill End Road, Doonside. An examination of a number of rolled-up items described as mattresses revealed pseudoephedrine of 81.9% purity with a total pure weight of 39.92 kilograms. On 7 September 2021, Mr P had received from the person Dingo the tracking details for this shipment. Also, on 8 and 9 September, the offender Mr P received messages from Dingo referring to the tracking number, and he also sent to another of his contacts a message with that same tracking number.

18. Consignment 5 arrived on 21 August 2021 addressed to Kumar Vadiveel of 109 Cornelia Road, Toongabbie. Examination of its contents revealed some cotton dresses in which was concealed pseudoephedrine of 81.9% purity and with a total pure weight of 3.65 kilograms. Between 23 August and 20 September 2021, Mr P had exchanged a number of messages with Dingo which related to the tracking status and delivery of this consignment.

19. On 25 August 2021, consignment 6 arrived in Australia addressed to Maran Vadiveel of 4/6 Queens Road, Westmead. This consignment was not examined by authorities and so its precise contents are not known. The shipment however is linked to Mr P because on one of his phones there was found a note referring to the consignment address and consignment number, as well as messages from Dingo relating to this consignment. Also, on 13 September, Mr P sent a video and two photographs to Dingo showing that the consignment had been received. He also sent to Dingo four videos of the consignment being opened and the edge of one of the bowls inside showing a white substance that the statement of facts says is alleged to be pseudoephedrine. The videos show that it was Mr O who deconstructed this consignment as identified by his hand tattoos. Also, on 20 September 2021, Mr P sent photographs to Dingo showing a bowl cut in half revealing the concealed alleged pseudoephedrine.

20. Consignment 7 arrived on 28 August 2021 addressed to Maran Vadiveel of 4/6 Queens Road, Westmead. Those were the same details as consignment 6. It was not examined by authorities and so again its exact contents are not known. However, one of the phones belonging to Mr P contained reference to this consignment’s tracking details. Also, on 13 September, Mr P sent a video and photographs to Dingo showing that the consignment had been received. He also sent videos showing the package being opened to reveal a number of saris, inside which were concealments of a white substance which the statement of facts says is alleged to be pseudoephedrine. In at least one of the videos, Mr O could be seen, as identified by his hand tattoos, to be unpacking the consignment and removing the alleged pseudoephedrine. There were also two videos sent by Mr P which showed the alleged pseudoephedrine being weighed on scales with the numbers 4614 displayed.

21. Consignment 8 arrived on 28 August 2021 addressed to Chris Eric of 17 Union Street, Toongabbie. This consignment was not examined by investigators, and was released for delivery, and so its exact contents are not known. However, between 29 August and 12 September 2021, Mr P exchanged a number of messages with two of his contacts in his phone referring to the consignment’s details. The statement of facts does not refer to any photographs or videos relating to this consignment and so its contents are not known and are really a matter of speculation.

22. Consignment 9 arrived on 28 August 2021 addressed to Thomas Adde of 14 Pendle Way, Pendle Hill. It was not examined by investigators and so its exact contents are not known. However, between 30 and 31 August 2021, Mr P received a number of messages from a contact on his phone referring to the consignment details. Furthermore, on 31 August 2021, Mr P sent a photograph to one of his contacts of a clear plastic bag containing a white substance which the statement of facts says is alleged to be pseudoephedrine.

23. Consignment 10 arrived on 2 September 2021 addressed to Ethan Frank of 2/219 Hill End Road, Doonside. An examination of this package revealed various items, including religious icons, inside which were found pseudoephedrine that was 80% pure and with a total pure weight of 2.88 kilograms. Mr P was linked to this consignment by messages received on his phone from some person referring to the consignment details.

24. Consignment 11 arrived on 2 September 2021 addressed to Emanuvel of 1 Dumble Street, Seven Hills. This shipment was found to contain pseudoephedrine concealed inside some metal objects. The pseudoephedrine was 81.9% pure with a total pure weight of 2.62kg. One of the phones belonging to Mr P was found to contain messages from Dingo with a photo of this consignment and its label.

25. Consignment 12 arrived on 10 September 2021 addressed to Hanah Elachi of 27 Paul Street, Blacktown. It was found to contain some handbags in the straps of which was pseudoephedrine that was 81.9% pure with a total pure weight of 1.73 kilograms. A phone belonging to Mr P was found to contain messages referring to the consignment’s tracking number.

26. Consignment 13 arrived on 19 September 2021 addressed to Manthan Anthony of 109 Cornelia Road, Toongabbie. This consignment was not examined and so its precise contents are not known. Between 28 August and 27 September 2021, Mr P exchanged a number of messages with Dingo referring to this consignment. Also, on 29 September, Mr P sent to Dingo a photo showing that the consignment had been received. He also sent four videos showing the consignment being opened revealing a concealed white substance that is alleged in the statement of facts to be pseudoephedrine. The hands of Mr O could be seen in these videos, identified by his hand tattoos, opening the consignment and removing the alleged pseudoephedrine.

27. Consignment 14 arrived on 22 September 2021 addressed to Jiju Joseph of 3/43 Northumberland Road, Auburn. It was found to contain kitchenware in which there was pseudoephedrine 81.9% pure with a total pure weight of 7.45 kilograms. A phone belonging to Mr P was found to contain a message with a photograph of the tracking number for this consignment.

28. Consignment 15 arrived on 26 September 2021 addressed to Subramani Kanan of 27 Paul Street, Blacktown. It was found to contain pseudoephedrine with a purity of 81.9% and a total pure weight of 1.15 kilograms. The pseudoephedrine was concealed inside some metal bollards. Details relating to this consignment were found on a phone belonging to Mr P which had been sent to him by one of his contacts.

29. Consignment 16 arrived on 3 October 2021 addressed to Maran Vadiveel of 93 Girraween Road, Girraween. The package was not examined and so its exact contents are not known. However, a phone belonging to Mr P was found to contain messages between himself and one of his contacts referring to the consignment tracking number and its delivery status. Also, on 13 October 2021, Mr P sent a photo confirming receipt of this consignment and also a number of videos showing the package being opened to reveal some saris inside of which the statement of facts says it is alleged there was pseudoephedrine. The videos show, by reference to his hand tattoos, the hands of Mr O removing the alleged pseudoephedrine from the saris.

30. Consignment 17 arrived on 23 October 2021 addressed to Ragnunath Saravana of 9 Bennett Road, South Granville. This consignment was not examined and so its exact contents are not known. The phone belonging to Mr P however contained messages making reference to the consignment details and its arrival. One of the messages which Mr P received contained the tracking number followed by the characters “-5” which is alleged in the statement of facts to refer to a quantity of five kilograms of concealed pseudoephedrine. Also, the statement of facts refers to two photographs sent by Mr P confirming receipt of the shipment and also a video of the consignment being opened and a message stating, “5 ok”.

31. Consignment 18 arrived on 24 October 2021 addressed to Kamal Ragunath of 18/26 Sorrell Street, North Parramatta. This package was not examined. However, the statement of facts refers to this package being alleged to contain pseudoephedrine. The statement of facts also refers to a message found on Mr P’s phone which referred to the tracking number and the numbers “5-500”. It is alleged in the facts that this is a reference to the shipment containing 5.5 kilograms of pseudoephedrine. A phone belonging to Mr P was found to contain messages referring to this shipment. This shipment was released for delivery, but on 27 October 2021 it was not able to be delivered and a proof of delivery card was placed into the letterbox of the address indicating that it could be collected from Parramatta newsagency.

32. On that same date, Mr P drove the silver Lexus to an address in Westmead where he met with Mr O and Mr Logendran, after which he then drove them to the consignee address where the proof of delivery card was collected from the letterbox. Shortly after 3pm, the three men arrived near the Parramatta newsagency. Logendran entered the agency, presented the delivery card and a false driver’s licence in the name of the consignee but with Logendran’s photograph, and collected the consignment, after which he left with the two offenders. Later that day, Mr P sent a photograph of the consignment to a contact stored in his phone as well as a video showing the hands of Mr O removing the contents of the consignment. Shortly after this, Mr P received a message from the contact in his phone which stated “weight” and then the word “plz??” to which he replied, “ok 5.5”.

33. Consignment 19 arrived on 27 October 2021 addressed to Maran Vadiveel of 93 Girraween Road, Girraween. It was not examined and so the precise contents are not known. The package was released for delivery. A phone belonging to Mr P was found to contain messages which referred to the address and other details for this consignment. One of the messages received on Mr P’s phone referred to the tracking number and then had the characters “-5”. The statement of facts states that it is alleged that this indicates a weight of 5 kilograms of pseudoephedrine. On 29 October 2021, Mr P sent a photograph of the consignment confirming its receipt and a video of the contents being removed. The agreed facts however do not elaborate as to what the photograph and video reveal.

34. Consignment 20 arrived and was examined on about 31 October 2021. It was addressed to Kamal Ragunath of 18/26 Sorrell Street, North Parramatta. Inside it was found to contain a ceiling fan, inside of which there was concealed pseudoephedrine with a purity of 81.9% and with a total of 4.14 kilograms of pure pseudoephedrine. A phone belonging to Mr P was found to contain messages referring to the tracking details for this shipment.

4. Consignment 21 arrived on 3 November 2021 addressed to Anthony Thashan of 38-40 Harold Street, North Parramatta. An examination revealed that the shipment contained a number of bowls, but when these were deconstructed they were found to contain pseudoephedrine at a purity of 81.9% with a total pure weight of 3.37kg. A phone belonging to Mr P was found to contain messages from Dingo asking for addresses and a response by Mr P sometime before the consignment arrived which provided the name and address details that were later found on this consignment. The phone also contained references to the tracking number for this package.

5. Consignment 22 I have already described because that was the consignment in respect of which the two offenders were arrested on 11 November 2021.

6. Consignment 23 arrived on 4 November 2021 addressed to David Anthony of 21/21-23 Railway Parade, Westmead. It was not examined by investigators and so its contents are not known with any certainty. However, the agreed facts state that this was “a dummy run” consignment sent from Delhi which did not contain any precursor materials. The name and address details had, however, been supplied by Mr P to the person using the name Dingo, and Mr P sent photographs to Dingo of the contents of the consignment, which were children’s mats with images of musical instruments on them. When the three offenders were arrested on 11 November 2021, children’s mats consistent with these items were found in the boot of the silver Lexus.

7. Consignment 24 arrived on the same day as the previous one, namely 4 November 2021, and contained the same consignee name and address. This consignment was not examined and so its contents are not known. The agreed facts do not allege that this consignment contained any precursor.

8. Consignment 25 also arrived that same day. It was addressed to a residence in O’Reilly Street, Parramatta. Tracking information and consignee details matching this shipment were found on a phone belonging to Mr P. The shipment was examined and found to contain photo frames in which there was pseudoephedrine concealed which was 81.9% pure and with a total pure weight of 4.46 kilograms.

9. Consignment 26 arrived on 6 November 2021. It was addressed to James Ethan of 5 Newton Road, Wetherill Park. A reference to those details was later found on a phone belonging to Mr P. The consignment was released and not examined and so its contents are not known. However, the statement of facts refers to a message received by Mr P in relation to this shipment which contained the characters “5.500”. It is alleged in the statement of facts that this refers to 5.5 kilograms of pseudoephedrine.

10. The last consignment, number 27, also arrived on 6 November 2021. It was addressed to Mason Levi of 25A Davis Road, Wetherill Park. Those details were also found on a phone belonging to the offender Mr P. The shipment was not examined and so its contents are not known. However, it is alleged in the agreed facts that a message received by Mr P referring to this consignment and containing the characters “5.500” indicates that this consignment contained 5.5 kilograms of pseudoephedrine.

11. Those in summary are the agreed facts to the extent that they are agreed.

s.16A(2) FACTORS

Mr P

43. Given that this is a Commonwealth offence, it is necessary for me to address the terms of s 16A(2) of the Crimes Act 1914 (Cth) which sets out a number of matters that need to be considered when sentencing for Commonwealth offences, including, of course, the need for adequate punishment.

44. Commencing with the nature and circumstances of the offence. As I observed in the course of the sentence hearing in these matters, there were aspects of the agreed facts document which were problematic. The problem arose because although each document is entitled “agreed statement of facts”, the facts were actually not the subject of complete agreement because with respect to the consignments which were not examined by authorities the statement of facts said that it was “alleged” that these or most of these contained pseudoephedrine. After noting this issue, I provided time to the parties to confer and attempt to reach some agreed position.

45. I was then informed that the agreed position was as follows.

46. Firstly, in relation to Mr P, that the quantity of imported pseudoephedrine with which he was directly involved was at least 82.73 kilograms pure weight. Furthermore, that Mr P was directly involved in the importation of an amount exceeding that quantity, but that it is not possible to determine the exact amount.

47. Secondly, in relation to Mr O, that the quantity of imported pseudoephedrine with which he was directly involved was at least 4.77 kilograms. Furthermore, that Mr O was involved in the importation of an amount exceeding that 4.77 kilograms, but that it is not possible to determine the exact amount.

48. The quantity of substance involved in any drug related offence is, of course, an important factor in assessing objective seriousness. However, it is not the most important or dominant factor, and it is necessary to examine all of the circumstances and especially the role of the particular offender to the extent that that role can be determined on the available evidence.

49. Furthermore, while the offenders are to be sentenced in relation to an offence of conspiracy to import rather than the substantive offence of importing, that does not mean that a conspiracy offence is to be treated as less serious than the substantive offence. Indeed, many conspiracies may involve greater seriousness than a substantive offence by reason of the fact that a number of persons acting together may be able to achieve what a single person cannot. Much will depend on the circumstances, including the nature, scope and complexity of the conspiracy, and the offender’s role in it.

50. This particular conspiracy took place over a period of nearly six months, although admittedly Mr O’s part in it was for a lesser period than that. It involved at least four participants with at least one of them being located overseas. It was also a conspiracy which was not merely aspirational but one which resulted in a number of successful importations. The Crown submitted that the conspiracy was complex, lengthy and organised. While I accept that the conspiracy was carried out over a considerable period of time and was organised, it does not strike me as having been overly complex or to have been any more organised than most plans to import contraband.

51. The Crown also submitted in relation to each offender’s role that it was premeditated, sophisticated, coordinated, diversified and clandestine. This submission about the offenders’ roles, however, needs to be analysed by reference to what each offender did.

52. In Mr P’s case, his role involved direct contact with a person or persons outside Australia who arranged for the pseudoephedrine to be sourced, packed and posted. It involved him supplying names and addresses to be used as the consignee, and in many instances it involved him reporting back to persons overseas to confirm receipt of the consignment by sending photographs or videos; a matter which suggests that the person or persons overseas did not place unlimited trust in Mr P. His actions included involvement in all 27 consignments, in relation to which 14 were confirmed by analysis to contain pseudoephedrine with a pure weight of just over 82 kilograms. That quantity exceeded the commercial quantity by many multiples, although of course there is no upper limit to the commercial quantity, and some importations can involve hundreds or thousands of kilograms.

53. I am satisfied also that Mr P had actual knowledge of the approximate amounts of precursor that were being imported, although not as to their level of purity. While there was no direct evidence as to what Mr P did with the pseudoephedrine once it was received, I am satisfied that he passed it on to others who either intended to manufacture a prohibited drug or intended to provide it to others for that purpose. I am not, however, satisfied that Mr P was involved in any drug manufacturing process. While I am satisfied that Mr P engaged in the conspiracy for some sort of monetary benefit, I am not able to determine exactly what that benefit was, and I am not satisfied that he was a “principal” or that he expected to share directly in the profits arising out of the conspiracy. In my view, his role was a centrally important one among the Australian-based participants.

54. The Crown submitted that Mr P’s offence falls above the notional mid-range of objective seriousness, while counsel for Mr P argued that it fell below the mid-range. Having had regard to all of the circumstances and also my view, which is explained below, that the offender’s moral culpability is reduced to some degree, I consider that the offence falls around the notional mid-range.

Mr O

55. Turning then to Mr O’s case. As was agreed, his role in the conspiracy involved direct involvement in the importation of a quantity in excess of 4.77 kilograms pure, although exactly how much I am unable to say. I am also satisfied that Mr O’s involvement in the conspiracy involved actual knowledge that the importation involved a border-controlled precursor. His role included involvement with five other importations, although it is not possible to determine the actual quantity of pseudoephedrine that was contained in these, nor can I be satisfied that he knew the actual quantity of precursor that was involved or its purity.

56. What is known is that Mr O’s role included assisting Mr P in unpacking consignments and extended to his attendance along with Mr P and Mr Logendran at the Parramatta newsagency in relation to the collection of two of the packages, one of which was confirmed to contain 4.77 kilograms of pure pseudoephedrine. Also, the home address and mobile phone number of Mr O was used in relation to two of the consignments, although admittedly there is no certainty as to whether these two contained pseudoephedrine. While I am satisfied that Mr O engaged in the conspiracy for some sort of financial benefit, I am unable to quantify that benefit. But I am not satisfied that he was to be involved in any drug manufacture or that he expected to share directly in any profits. While his involvement continued over a period of some weeks, based on all the circumstances, I find that he occupied a relatively low level in any hierarchy.

57. I would describe his offence as being comfortably below the notional mid-range, although not towards the low range of objective seriousness. In reaching this conclusion, I have also taken into account my findings as to the reduction in the offender’s moral culpability by reason of his background, a matter which is discussed later in these reasons.

58. While the offending, more so that of Mr P, involved a course of conduct that is frequently, if not almost invariably, an aspect of most conspiracies, and it is not a matter that I regard as aggravating the seriousness of the offending to any substantial degree.

59. Paragraphs (d) and (e) of s 16A(2) refer to the personal circumstances of any victim and any injury, loss or damage arising from an offence. There is no directly identifiable victim of the offences. In relation to the pseudoephedrine that was intercepted, it cannot be said that this resulted in any identifiable loss or damage. In relation to the consignments which were not intercepted, it is likely that some of these contained pseudoephedrine that made its way into the community, perhaps by being used to manufacture a prohibited drug such as methamphetamine. It is likely therefore that the Australian community has been harmed in this way. However, given the various unknowns, this is not a matter to which I attach any great weight.

60. Turning to questions of contrition. Mr P has provided a letter in which he expresses his shame and regret, which is consistent with the version he gave to psychiatrist Dr Nielssen. Also, I consider that his excellent conduct in custody and his efforts to better himself by completing a number of training courses, along with his plea of guilty, provides further support for my conclusion that there is genuine contrition in his case. Mr O has provided a letter in which he apologises for his actions and says that he deserves to be in prison. Also, there is material which shows that since being in custody Mr O has been a very reliable inmate who is highly valued by correctives staff and who has completed a number of training courses. This material, together with his plea of guilty, satisfies me that he has shown genuine contrition.

61. Each of the offenders pleaded guilty at the earliest opportunity, and I intend to allow a 25% discount for the utilitarian value of those pleas.

62. Both general and specific deterrence are ordinarily matters of great relevance to any sentencing exercise, particularly those involving drug related offences, as they are in this case. In my view, the importance of specific deterrence of each of these offenders is, however, reduced to some extent by reason of my conclusion, which I will express in a few moments, that they each have at least reasonable prospects of rehabilitation and a relatively low risk of reoffending. I remain of the view, however, that general deterrence is important in these cases, as it usually is in most drug related offending.

SUBJECTIVE MATTERS

Mr P

63. Turning then to the background, character, age, antecedents and so forth of each of the offenders, commencing with Mr P. Mr P is now 30 years of age, and he has no prior criminal history. His background has been placed before the Court in part by means of the report of psychiatrist Dr Nielssen. He was born in Sri Lanka where his childhood was severely affected by the civil war. This included having his schooling disrupted by being displaced several times. It also included him being exposed to numerous traumatic events and at times near starvation before his escape with 104 people on an overcrowded boat on a journey where there was insufficient food and water and fears of dying at sea.

64. He told Dr Nielssen that his physical health in recent times has been generally good and that he has not had problems with drugs or alcohol. Dr Nielssen has assessed the offender as suffering Post-Traumatic Stress Disorder. The doctor also says that Mr P’s shared trauma likely contributed to his willingness to become involved in the offending so as to assist in supporting his family. I accept that this was likely at least part of the offender’s motivation for committing the offence and that this provides some context to his offending, but it is not a matter which mitigates that offending.

65. I note that the offender Mr P’s history of a traumatic background is supported by the affidavit from his brother. I accept that Mr P’s traumatic background is a matter that reduces his moral culpability to a material degree. I have taken this into account in relation to my assessment of the objective seriousness of his offence, as it is a matter which made him more prone to engage in ill-advised and risky ventures such as this. I have also taken his background into account in forming my view about his prospects of rehabilitation.

Mr O

66. Turning then to Mr O. He is now 28 years of age, and he has no prior criminal history. He arrived in Australia in 2013 on a refugee visa and is currently on a bridging visa. He has no history of drug or alcohol problems or of diagnosed problems with his physical or mental health. The offender Mr O told the psychologist that his childhood was “okay”, but that his family had some association with the Tamil Tigers and that two of his uncles were shot and killed, one of them being shot in front of the offender when Mr O was only about 11 years of age. According to this part of the history provided by the offender, which was not challenged, he arrived in Australia as a refugee via the Cocos Islands when he was only 17 after travelling from Sri Lanka by boat and eventually made his way to Sydney.

67. Since then, he has worked in a variety of manual labour type jobs and continued to send money to his parents in Sri Lanka. He told the psychologist that leading up to and during the offending period he struggled with anxiety and depressed mood, which affected his sleep, motivation and other aspects of his life. He claimed in his history to the psychologist that he engaged in the offending because he needed money to assist his mother who lives in Sri Lanka and needed neurological surgery. The Crown contested this part of the history which was not supported by evidence on oath from Mr O or any independent source.

68. On balance, while I accept this history, which provides some context to the offending, it is not a matter which mitigates the offending. I accept, however, that there is no evidence that the offender received or expected to receive any large financial benefits. I am of the view that the offender Mr O’s background is such that it reduces his moral culpability to a material degree by rendering him more susceptible to making bad decisions, such as his choice to be involved in this offence. I have also taken into account his reduced moral culpability in my assessment of his prospects of rehabilitation, a matter to which I now turn firstly in relation to Mr P.

69. Mr P has shown himself to be a very reliable worker whilst in custody. He also maintains the support of his brother who was present in court during the sentence hearing. The Sentencing Assessment Report notes that he is a low risk of reoffending. He has expressed remorse in his letter to the Court, and in my view he has reasonable prospects of rehabilitation and a relatively low risk of reoffending. In relation to Mr O, the psychologist suggests that there is nothing in this offender’s history to predict antisocial or criminogenic tendencies. Like Mr P, he has expressed remorse and has been a productive inmate whilst in custody. I think he has reasonable prospects of rehabilitation and is a relatively low risk of reoffending.

70. Neither of the offenders are Australian citizens and so there is a risk that they will be deported given the seriousness of their offending and the penalty of imprisonment that must be imposed. Given their claims to refugee status, however, it cannot be taken as a certainty that they will in fact be deported at the end of the sentences. However, it was agreed during the sentence hearing that the possibility of deportation is not a matter to which I should have regard, either in terms of mitigation of the penalty or as affecting the structure of the sentences: see R v Shrestha (1991) 173 CLR 48.

THE PANDEMIC

71. In relation to both offenders, I have taken into account that their time in custody has coincided with aspects of the COVID pandemic. In Mr P’s case, specific records were tendered, which set out a considerable number of days of lockdown during 2021 and 2022 in his custodial environment. I accept that the pandemic has in the case of both offenders rendered their time in custody to date more onerous by reason of lockdowns and other restrictions, and I have taken this into account.

72. I also accept that both offenders’ backgrounds of significant trauma, which in the case of Mr P has left him with PTSD, are matters which continue to affect them in a psychological way and that this has and will continue to make this - their first time in custody with the stress and trauma that this frequently involves - more difficult.

73. Another matter that I have taken into account is the sentence imposed by Townsden DCJ on Mr Logendran. He was sentenced after a 25% discount for a plea of guilty to a head term of five years seven months with a non-parole period of three years. However, that was in relation to an offence of attempting to import a border controlled precursor, being the 4.77 pure kilograms of pseudoephedrine that he collected from the newsagency on 11 November 2021. He was also sentenced on the agreed basis that he was no more than reckless as to the contents of the consignment, and his Honour found that his offence was towards the lower end of objective seriousness.

71. By contrast, Mr P and Mr O have been found to have had actual knowledge, and I have found that the objective seriousness of their offences is of a higher level. Mr Logendran had a somewhat similar subjective case to each of the offenders now before the Court. I have had regard to the sentence imposed on Mr Logendran for parity purposes, but I remain conscious of the differences between his case and the matters now before the Court. I, of course, do not regard the sentence imposed on Logendran as binding on me, and I do not approach it on the basis that it involves a starting point or benchmark from which there must necessarily be an increment in the cases of these two offenders.

DETERMINATION

75. I am satisfied for the purposes of s 17A of the Crimes Act 1914 (Cth) that no penalty other than full-time imprisonment is appropriate in each case. In determining the sentences in each case, I have had regard to various cases to which my attention was drawn by the parties, as well as to statistics kept by the Judicial Commission of New South Wales.

76. Mr Perinparasa, if you could stand, and I will just announce the sentence. In your case, I impose a head sentence of six years seven months. I impose a non-parole period of three years nine months. Each of those will date from 11 November 2021. The head sentence therefore will expire on 10 June 2028. The non-parole period will expire on 10 August 2025.

77. If Mr Omsivapirahasham could stand, and I will inform him of the sentence that I impose, which is as follows. I impose a head sentence of five years ten months. I impose a non-parole period of three years four months. Each of those will date from 11 November 2021. The head sentence therefore will expire on 10 September 2027. The non-parole period will expire on 10 March 2025.

**********

Decision last updated: 06 June 2024