R v Ranjbarian

[2021] NSWDC 660

District Court

New South Wales

Medium Neutral Citation:

R v Ranjbarian [2021] NSWDC 660

Hearing dates:

8/3/21, 9/3/21, 17/6/21, 1/7/21, 20/8/21, 3/9/21, 15/9/21

Date of orders:

15/9/21

Decision date:

15 September 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Re Count 2 State offence – I impose a fixed term of imprisonment of 2 years (1/10/19-30/9/21). The two matters on the Form 1 are taken into account. I have applied a discount of 5 percent for the plea of guilty.

Re Count 1 Commonwealth offence – I impose a total term of imprisonment of 8 years(1/7/20-30/6/28) with a NPP of 4 years 6 months (1/7/20-31/12/24). The matter on the s16BA certificate is taken into account. I have applied a discount of 10 percent for the plea of guilty and other matters.

Therefore the total effective sentence is 8 years 9 months with NPP 5 years 3 months.

Catchwords:

Crime – Sentence - Import commercial quantity of methamphetamine - Knowingly take part in supply of methamphetamine – Commonwealth and State offences – Late plea

Legislation Cited:

Commonwealth Criminal Code 1995

Crimes Act 1914

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Doudar v R [2021] NSWCCA 37

Gore v R [2010] NSWCCA 330

Mbele v R [2021] NSWCCA 182

Moody v R [2020] NSWCCA 160

Muldrock v The Queen (2011) 244 CLR 120

Category:

Sentence

Parties:

Commonwealth DPP – Crown
Hamid Ranjbarian - Offender

Representation:

Mr G Craddock for Crown
Mr G Stanton for Offender

File Number(s):

2019/57591

sentence

1. Hamid Ranjbarian is for sentence in relation to two offences:

2. Count 1 being an offence of conspiring between 19 July 2018 and 20 February 2019 to import a commercial quantity of a border controlled drug, namely methamphetamine, that being an offence under s 307.1(1) and s 11.5(1) of the Commonwealth Criminal Code 1995 and which carries a maximum penalty of life imprisonment. In sentencing him for that offence he asks that I take into account a further conspiracy offence on a s 16BA schedule, the maximum penalty for that offence, had it been dealt with, also being life imprisonment.

3. The second count on which Mr Ranjbarian is to be sentenced is a State offence of knowingly take part in supply of 200 grams of methamphetamine on 30 January 2019. That is an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985 which carries a potential maximum penalty of 15 years imprisonment. In sentencing him for that offence he asks that I take into account two other offences of knowingly take part in supply, which are on a Form 1 document.

4. The maximum penalties to which I have made reference are, of course, important guideposts in the sentencing exercise.

5. Mr Ranjbarian entered pleas of guilty at a very late stage, namely the day after his trial was due to commence. It is agreed that in relation to the State matter he is entitled to a discount of 5%. In relation to the Commonwealth matter there is no specified quantum of discount in the legislation, however it seems to me appropriate to allow a discount of 5% on account of the utilitarian value of that plea. I also intend to allow an additional 5% on the Commonwealth matter based on the actions of the offender in engaging with his lawyers and amending transcripts of various telephone intercepts and listening device recordings which were in the Farsi language. As acknowledged by the Crown, this facilitated the Crown’s preparation of the trial and therefore had not only utilitarian value but also is an indicator, in my view, of the offender’s willingness to facilitate the course of justice.

FACTS

6. The agreed facts before the Court describe the two separate conspiracies and three activities amounting to drug supplies. The first conspiracy, which is the one on which the offender is to be sentenced, took place between 19 July 2018 and 20 February 2019. Between those dates the offender and Saeed Bakhtiyari conspired with each other and “Witness A” to import a commercial quantity of methamphetamine which was to be hidden in coconuts to be brought from Thailand in bi-monthly shipments. The participants in this conspiracy were this offender, as well as Saeed Bakhtiyari and the person known as Witness A. However, after conducting a dry run import of coconuts containing no drugs, this plan was abandoned and an alternate plan was hatched to import methamphetamine in dishwashing tablets from Turkey. This second conspiracy is the matter on the s 16BA schedule.

7. The knowingly take part in supply offence for which Mr Ranjbarian is to be sentenced involved 200 grams of methamphetamine which was supplied on 30 January 2019 to Witness A by this offender after Mr Bakhtiyari had passed the methamphetamine to him.

8. The two knowingly take part in supply offences on the Form 1 document involve earlier supplies of methamphetamine to Witness A carried out by this offender and Mr Bakhtiyari in December 2018.

9. In more detail, the offences before the Court came about in the following manner.

10. In 2014, Witness A became friends with Ranjbarian and subsequently they worked together in a painting business. Later, however, Witness A became displeased with Mr Ranjbarian and in June 2018 he approached New South Wales Police offering information about Ranjbarian’s involvement in the importation of drugs. As a result, police commenced a controlled operation in which they used Witness A and employed electronic surveillance which included intercepting telephone calls.

11. I turn then to the facts of the conspiracy offence in count 1.

12. On 19 July 2018, Witness A met with this offender and asked him about “getting rich”, to which the offender replied that he had not seen Saeed Bakhtiyari yet. While Witness A suggested that they leave Bakhtiyari out of it Ranjbarian said, “We don’t have anyone in Iran”, after which the two men discussed possible prices and other options. Later in the conversation Witness A pushed Ranjbarian to contact Bakhtiyari about working with him. Further on in this conversation, Witness A implored the offender to contact Bakhtiyari about working with him and asked if the offender would also be involved. To this, the offender replied, “I have nothing to do. I’m aside.” Later in the conversation the offender also said, “Yeah but I’m saying if you go ahead fearless, you’ll be okay.”

13. On 1 August 2018, Witness A and the offender met again and Witness A pressed the offender to follow up with Bakhtiyari about working together on a drug import. The offender cautioned Witness A that Bakhtiyari said the process was not easy and “You know they are careful and won’t do anything until it’s the right time.” The offender also said, “I let you know when it is the right time.”

14. On 7 August 2018, the two men spoke by phone when the offender said he had spoken to Bakhtiyari who had confirmed that the importation would go ahead. In this conversation the offender told Witness A that Bakhtiyari would need details of “the company” from Witness A.

15. On 22 August 2018, Witness A and the offender met again when Ranjbarian reported on his discussions with Bakhtiyari. In that conversation the offender advised that Bakhtiyari had said the importation needed to be done at the right time, and that prices had recently gone up from about 30 million to 100 million or more per kilo. I note that it is agreed that this a reference to Iranian currency, and not Australian dollars. Later in that conversation, the offender and Witness A discussed a possible future importation and the risks involved, and that Witness A would be paid 20,000 or 30,000 Australian dollars a month, but that if Witness A was caught Bakhtiyari would say “Well you’ve been paid for it.” The offender went on to say, “That’s why I’d say let’s make a proper move, something that is not dangerous...if tomorrow you get in trouble it’d be as if I’m in trouble...sitting at home laughing and you’d be in there...it can’t be like that can be?”

16. The offender also spoke with Witness A about a new method of importation which would not be detected and in which he could involve Witness A. The offender also said in this conversation,

“But now there’s something that I can get you involved. See he keeps trying to tempt me to get involved but I’ve stuffed up the citizenship! Well it might take time but I shouldn’t be worried. It can take up to 17 months I still have another four months to wait. So I’m waiting for this to be finished and I’d be rest assured and then do whatever shit I want to do. There’s something that I can get you involved and it’s not 20,000 dollars, 30,000 dollars thing - it’s big. You’d get 20,000, 30,000 dollars monthly you know what I mean.”

17. Later the conversation continued as follows.

Offender:

“Well it has a story...but let me think about it let me seek advice from Saeed...but you should not talk about this to anyone. No-one can think of it. We’ve found a way that doesn’t come to anyone’s mind. There’s no way for it to be caught.”

Witness A:

“Get me in the game as well give me a share too then.”

Offender:

“Let me think about it let me talk to Saeed about it it’s not like it would take two or three months it take off tomorrow.”

Witness A:

“Is that how tight it is.”

Offender:

All the planning has been done everything is ready it just needs my okay.”

Witness A:

“Talk to him please.”

Offender:

“I’ll talk to him tomorrow.”

18. On 23 August 2018 the offender and Bakhtiyari spoke by telephone and the offender asked about “the story with Witness A” that they had spoken about and was told by Bakhtiyari that the matter had been sorted and that 100% it was going to happen.

19. Between 19 July and 10 September 2018, Witness A spoke to the offender a number of times, pressuring him to contact Bakhtiyari.

20. On 10 September 2018 the offender met with Witness A and they had another discussion of the proposed importation method. In that conversation the offender gave Witness A instructions from Bakhtiyari that he should set up a company and made reference to “it” being either dog food or coconut, that Bakhtiyari would confirm today. The offender also told Witness A that the plan was to use the coconut plan in which liquid would be removed from coconuts to be packed into seven containers and that once Witness A had provided the company details they would email a company in Thailand and that Bakhtiyari had said that this was a “lifetime work” but that the plan must be kept secret. In this call the offender told Witness A that the plan was nothing to do with him (that is, the offender) and that he was not “in it”, saying, “It has nothing to do with me. Basically I’m not in it dude. It’s up to you. Give it a good thought.” To this Witness A replied, “No I’m okay.”, with the offender continuing by saying, “You can’t pull out halfway through you know that. These people are spending money on you. You can’t pull out halfway through. You should consider the percentage of the risk.” Witness A replied, “I know it’s my call bro.” In this call the offender reiterated that although he was helping Witness A, he played no role and had told Bakhtiyari “I don’t want a percentage”. The call ended however with the offender agreeing to meet with Witness A the next day and to bring his computer so that they could set up the proposed company. The next day, the offender called Witness A and asked him to send his tax file number so that the offender could register a business and that he might also need his ABN.

21. On 12 September the offender told Witness A in a meeting that he now had a business name “Tropic Fruit” with an email address which Witness A would need for the planned import. He also told Witness A that he would provide the password so that Witness A could “do the correspondences”. The offender also told Witness A that he would help if Witness A got stuck but nothing more and that “from here on I have no meddling/role”. The offender also told Witness A that Bakhtiyari had decided that the first one or two imports would be “dry runs” of coconuts without any drugs to see if the consignments would be checked by authorities. The offender and Witness A also discussed how much would be imported, with the offender saying it would be a lot, for example 10 kilograms in seven containers. In this meeting, Ranjbarian told Witness A that he had made one payment in relation to the business name registration and that an email would arrive indicating that Witness A needed to make another payment. The offender reiterated however that while he would help Witness A if he got stuck or did not understand, but that “from here on I have no meddling/role”.

22. On 15 September 2018 the offender met with Witness A and advised him to deposit money supplied by Bakhtiyari into a bank account for the “Tropic Fruit” business, and that he should also visit fruit shops offering to supply coconuts “as if you’re importing fruits”. The offender again told Witness A that he could expect to be paid $30,000 by Bakhtiyari for each import, which would occur every two months. The offender also told Witness A that he had told Bakhtiyari that he - that is the offender - was not involved, and that Bakhtiyari would deal directly with Witness A in future but that Ranjbarian would show Witness A where to go and what to do, how to write for the first time but “from there he learn and go ahead”.

23. On 19 September 2018 Bakhtiyari met with Witness A and gave him details of the coconut importation plan during which he told Witness A to instruct the offender to order a 20 foot container, being for 1,000 to 1,050 boxes of coconuts. Bakhtiyari also told Witness A that the price for the coconuts had been agreed and that Witness A should open a bank account in the name of “Tropic Fruit” and deposit $10,000 into the account, which funds Bakhtiyari gave to Witness A in this meeting. Also in this meeting, Bakhtiyari advised Witness A that the company that does the shipping belongs to his mate, and confirmed that the first one would be empty and that he had told Amir - that is the offender - that it was going to cost $20,000; that while he could put five or ten into the shipment he was not going to do that, but would let the shipment (presumably with no drugs) come so that they could find any pitfalls and whether the shipment is cleared or not. Bakhtiyari also explained that he had found a guy who would sell the coconuts once imported into Australia and that he would then get Witness A to deposit funds from the sale into the Tropic Fruit account which would provide an air of legitimacy to the business. During the conversation, Bakhtiyari told Witness A that if no-one discovered the drugs then it would be a “lifetime work” and that his contact was decent and that if he can fit 100 grams into “1,000 boxes of nine” there would be almost 1 kilogram in each box and that ten boxes would mean 10 kilograms and that the drugs would be a liquid inside the coconuts which would not show on x-ray. Bakhtiyari reassured Witness A that if successful they would hopefully make ”dreamy money”.

24. On 21 September 2018, Witness A called the offender and asked how to open the bank account, to which the offender said it should be a business account and that Witness A should deposit the $10,000 in two deposits of $5,000, so as to avoid questions. However, later that day he told Witness A to deposit the entire $10,000 and if asked questions he should say that he had borrowed the money. On that same day the offender assisted Witness A to send an email from “[email protected]” with a purchase order for 1,000 boxes of young coconuts to a supplier in Thailand. Also on this date, Bakhtiyari confirmed with the offender and Witness A that the order had been placed and the offender told Witness A to deposit the money into the “Tropic Fruit” bank account and Bakhtiyari said he would give the money to the offender that evening for delivery to Witness A.

25. On 23 September 2018, Ranjbarian and Witness A spoke about documentation from the coconut supplier, and the offender told Witness A that he should deposit $5,000 into the Tropic Fruit account which Bakhtiyari would provide and that Witness A should also transfer $14,095 to the coconut supplier.

26. The next day, the offender met with Witness A and gave him $4,100 cash which had been supplied by Bakhtiyari, and instructed him to deposit it to the Tropic Fruit account. That same day, Witness A received a call from Thailand questioning the delivery address for the coconuts. Witness A was told by the offender to tell the supplier that the goods would be taken to a warehouse after being imported.

27. On 25 September 2018, Witness A asked this offender to help him to transfer the payment for the coconuts to the company in Thailand as Witness A did not have a laptop. Although there were difficulties with the transfer, receipt was ultimately confirmed on 24 October.

28. On 26 September 2018 the offender, Bakhtiyari and Witness A discussed storage options for the coconuts and Witness A suggested they hire a Kennards storage unit. The conversation between the three men included the following exchange:

Bakhtiyari:

“Yeah let’s receive the first one”.

Offender:

“Receive the first one and see what happens. We don’t want to get a place and then it doesn’t happen.”

Bakhtiyari:

“He told me yesterday that receipt hasn’t arrived. I said you are making the mistake.”

The Offender:

“I sent it! I didn’t send you the receipt but I did send the money...Witness A learn these as you are going to do these next time it’s not going to be me:”

Witness A:

“You be beneficiary bro.”

Offender:

“I’m not beneficiary mate.”

29. The next day, 27 September 2018, Bakhtiyari instructed this offender to obtain a storage facility, preferably one with refrigeration, and after this the offender made enquiries with storage companies. Bakhtiyari expressed concern that Witness A had given a home address for the delivery saying, ”He’s fucked me up by saying find a storage, because it would raise doubts. The Customs would ask how come so many coconuts are being shipped to a house. We should get a storage.”

30. Later that day the offender, Bakhtiyari and Witness A discussed at length what to do with the coconuts but did not settle on any particular solution.

31. Between 23 October and 20 November 2018 Ranjbarian - that is, this offender - and Witness A called logistics companies about dealing with the shipment of coconuts, using Witness A’s name when making enquiries.

32. On 24 October 2018, the offender asked Witness A to sign a form for the freight company “Mondiale” and email it to Mondiale. The offender told Witness A that he had asked Mondiale to deliver the coconuts to the underground car park at the home address of the Offender and Witness A. They also spoke again about hiring a storage unit, but the offender said, “Let’s give them away for free” and also spoke of plans to work for Uber and build his house.

33. On 29 October 2018, Mondiale referred the offender to Paccon Logistics to assist with Customs clearance of the coconuts. The offender called Paccon that day, identifying himself as Hamid from AAA Painting, and saying that he had a friend who was importing coconuts. On that same day, the three men met again, when the offender advised that the coconuts had arrived and he had arranged a meeting with Paccon Logistics for the next day.

34. On 30 October 2018 the offender and Witness A attended the logistics company and on the way there the offender said to Witness A, “Tell him he either clear it or I slap him in his face. The first one always gets in trouble. Till you get the hang of it, you find your people. The second one comes easy then.”

35. On 31 October, a 20 foot container with 890 boxes of fresh coconuts arrived at Port Botany. An examination of the shipment by Australian Border Force confirmed that no drugs were in the shipment.

36. On 9 November 2018 the offender was told by Paccon Logistics about a problem with part of the documentation and that if it was not corrected a quarantine inspection would be more likely. In response, the offender provided an amended certificate the following week.

29. On 16 November 2018 the offender was told by Paccon Logistics that a delivery address was required for the coconut shipment and on 19 November 2018 the offender told Witness A of problems that still existed with the documentation and that he had emailed the coconut supply company many times but it still remained an issue. The offender told Witness A that “It should be fixed this week because we’re keep paying money”, to which Witness A said, “Okay I’ll come to see you in person and we’ll talk about it in detail:”

30. On 23 November 2018 Witness A told the offender that he had received the amended phytosanitary paperwork, and the offender told Witness A to take it to the logistics company immediately.

31. On 27 November 2018 the shipment of coconuts was cleared by Customs after appropriate documentation had been lodged. After this, the offender and Witness A called or visited numerous cold storage facilities and on 28 November, Witness A booked a Kennards mini warehouse at Guildford.

32. On 2 December 2018 the offender passed on $3,000 in cash which Bakhtiyari had provided. The offender passed this money on to Witness A so that he could pay the logistics company, and on 4 December told Witness A not to give out the offender’s phone number in connection with the coconuts. The offender also told Witness A to deposit the money by noon, and reiterated that he had nothing to do with it and did not want the money or responsibility saying, “I taught you how to do it”.

33. On 4 December 2018, the coconuts were delivered to the Kennards storage facility at Guildford. After delivery of the coconuts, the offender told Witness A to unload them and bring four boxes to him. The two men had a conversation which included the following:

Offender:

”Saeed said if three, four kilo comes, ideally, I want to make 20...or 30...on each kilo - I should give part of it to Witness A a part of it is going to be costs, nothing remains.”

Witness A:

”20...profit?”

Offender:

“...on every kilo. Each kilo 20,000. No...every kilo...100 (thousand dollars profit?). Now that the market is down he’s dealing every kilo for 80. Mate I got 100 gr for nine...a kilo is 80, 85.”

Witness A:

“How much does he buy it? 30...”

Offender:

“...what?”

Witness A:

“The rock there.”

Offender:

“30...from Thailand. I don’t know. I don’t know how much he buys it.”

Witness:

“At max he pays around 30.”

42. Also on 4 December 2018, the offender told Witness A to sell the coconuts, and that he had found buyers for them.

43. After Witness A had been to the storage facility, he and the offender spoke about the shipment, with the offender seeking to confirm that it had not been opened for inspection, Witness A confirmed that nothing had been touched, and that he thought they went through “the machine”.

44. By 24 December 2018, the coconuts had rotted. On that day, Witness A and the offender spoke about when the next shipment would be coming and the offender suggested that they needed to empty the storage unit and get a refrigerated one ready for the next shipment.

45. The amount outlaid from the Tropic Fruit account for the coconut import was approximately $20,205, with another $4,000 being spent in disposing of the rotting coconuts.

46. On 9 February 2019, the three men spoke again. On this occasion Bakhtiyari confirmed that any further coconut imports would be abandoned. Those are the facts of the count 1 conspiracy matter.

47. I turn then to the facts relating to the “dishwashing tablets conspiracy” which is the matter on the s 16BA schedule.

48. On 4 January 2019, the offender asked Witness A for his new address and they spoke about meeting up.

49. On 8 January 2019, Witness A came to the offender’s home where the offender told him of a new plan to import methamphetamine saying that Bakhtiyari had set it up and wanted the offender and Witness A involved in it. A conversation took place between the offender and Witness A, which included the following:

Offender:-“...Washing machine, paint that sort of things, he said he gave it ... to someone else. Apparently he has had a dispute with the guy and he said Amir we brought in an empty cargo...I mean it’s all sorted out! Now they want to put 2 kilograms in it and send it over. I said to him “So Witness A would do it and I gave you a call then.”

Witness A:-“Yeah, yeah.”

Offender:-“He said Witness A should set up a company. I said “No way, what company?” “It’s just a sample coming by air”. He said “I’d say fifteen to that guy”. I said “You said thirty to Witness A”. He said “But this is a little, nothing would be left in the end”. He said “Thirty was for the future coconuts programme in large quantity”. I said “Play with it”.

Witness A:-“So it’s going to be here next week?”

Offender:-“Yeah, next week.”

Witness A:-“So it’s on the way?”

Offender:-“Yeah, it is.”

50. On 15 January 2019, the offender told Witness A how he had deleted information about fruits and stuff from his phone. That “he”, which I assume is a reference to Mr Bakhtiyari, “called me 2, 3 times a day at least” and that Witness A should say nothing over the phone to him and that “they might be on my phone and not yours, do you know what I mean? They find you through me”.

51. On 21 January 2019, Witness A and the offender met at the storage facility to discuss disposal of the spoiled coconuts, and during this conversation, the offender told Witness A that they should retain the facility for the expected new delivery. A conversation took place as follows:

Witness A:-“Uncaught thief is a king. If you’re not caught they can’t do shit.”

Offender:-“That’s why I don’t get involved in these things. I say ‘No’ I don’t want it. I don’t want the money of it either. You know what I mean. Lest one is being watched and tomorrow it gets fucked! I’m not lucky!”

52. The next day, 22 January 2019, Witness A and the offender spoke by telephone, and Witness A referred to an email he apparently had received from “Calgon” and while the offender said he did not know, he advised Witness A that there should be an invoice attached.

53. On 25 January, the offender told Witness A that he should have received an invoice from an Iranian in Turkey for “Finish” brand dishwashing tablets. During this conversation, the offender told Witness A that the shipment was arriving next week and that it was a few boxes with a small cargo with the majority of the boxes being empty. The offender said, however, that Witness A’s share in the profits would be $20,000.

54. On 30 January, the offender and Witness A spoke again about the dishwasher tablet import when the offender told Witness A to leave the delivery untouched in his car park for a couple of days.

55. During this conversation, Witness A asked when Saeed, that is Bakhtiyari, would come to talk about “money and stuff” to which the offender replied that they should wait till the shipment arrived and that then they would tell him and get the money off him.

56. On 31 January, the offender told Witness A to keep checking his emails as the shipment was expected in 2 days with the conversation also including the following:-

57. Offender:-“Keep checking your email every day. It arrives the day after tomorrow. Keep the five (thousand dollars) into your account. When it’s arrive I’ll get another $500 from him...You’re going to be rich in a couple of days?”

Witness A:-“Get thirty?”

Offender:-“Twenty, five of it is going to be for me?...Out of twenty, five is mine didn’t you say?”

Witness A:-“You’d get twenty five?”

Offender:-Twenty. “You said “Out twenty, five is yours” didn’t you?”

Witness A:-“Out of twenty, five for you? Three for you.”

Offender:-“Three for me.”

Witness A:-“You’re happy?”

58. In this conversation, Witness A told the offender that he would rent the storage unit the next day in preparation.

59. On that same day, 31 January however, Australian Border Force officers intercepted air cargo matching a UPS tracking number coming from Turkey. On examination of the shipment, no anomalies were found.

60. On 2 February 2019, Witness A rented a storage unit at Kennards Guildford, and on 8 February 2019, the offender called UPS and was informed that the shipment had been delivered at the side of Witness A’s house. After arriving home and taking a photograph of the 25 boxes, Witness A sent the photo to the offender and on 9 February, the offender, Witness A and Bakhtiyari attended the storage unit and saw the boxes which by then had apparently been moved there.

61. On 14 February 2019, the offender and Bakhtiyari attended the storage unit and spent some hours examining the shipment, which they discovered did not contain any drugs. The two men discussed between them what might have happened and agreed that they needed to question Witness A. After this, the offender called Witness A, sounding angry, and asked to meet. The offender told him that someone had stolen the drugs and that Bakhtiyari was blaming them, that is Witness A and Ranjbarian, for it.

62. On 15 February 2019, the offender, Witness A and Bakhtiyari met at the storage unit and discussed the missing drugs. The offender suggested calling the delivery company UPS to see whether they had anything to do with it. The offender and Witness A spoke to the manager at the storage premises, seeking records of who might have had access to the unit and were told that a police report was required in order to access this information or any CCTV.

63. On 18 February 2019, Bakhtiyari and Witness A lodged a false complaint at Merrylands Police Station about a break-in at the storage unit and returned to Kennards Storage with the report number.

64. On 20 February 2019, the offender and Bakhtiyari were arrested. At the offender’s home, police found a laptop computer which contained the following: An image of an ASIC registration for business name Tropic Fruit; a record of an email from the [email protected] email address forwarded to a Gmail address associated with Witness A; a purchase order from NC Coconuts created by the offender; a receipt for an international monetary transfer from Tropic Fruit to an account in Thailand on 5 October 2018; a number of emails from a company in Thailand forwarded from the Tropic [email protected] email address to a Gmail address associated with Witness A; a receipt for payment from an ANZ company account in the name Tropic Fruit to Paccon Logistics on 9 November 2018; a quarantine document sent from Paccon Logistics; and a record of Google searches for the words “Calgon Plus Tablet” for 21 January 2019. On 26 February 2019, police executed a search warrant at the storage unit, and the Calgon tablets were seized.

65. Those are the facts in relation to the second conspiracy which is to be dealt with on the S 16BA schedule.

66. I turn then to the facts of count 2 which is the State knowingly take part in supply offence.

67. On 30 January 2019, Witness A called the offender and asked for a supply of “protein powder” which it is agreed was a reference to methamphetamine in the form of ice. In this conversation, the two men spoke about three or four “big buckets of 100 grams”. At about 5.10pm that day, Witness A called the offender again and asked “Should I come and get that matter?” to which the offender replied “Come, come” and asked whether he wanted “amino” as well or just “the proteins”. When asked how many he could supply, the offender said “I’ll give you what I have”.

68. At about 5.30pm that day, the two men met at the offender’s house and the offender handed Witness A a paper bag containing 2 clip seal bags which had been supplied to him by Bakhtiyari. The two bags were found to contain a total of 200 grams of methamphetamine with an average purity of about 79%. The next day, Witness A gave $18,000 in cash to the offender, to be paid to Bakhtiyari for having supplied the 200 grams of methamphetamine.

69. I turn then to the facts of the first matter on the Form 1 document which is an offence of knowingly take part in the supply of methamphetamine between 1 and 4 December 2018. The facts are these.

70. On 16 October 2018, Witness A met with the offender and told him that he wanted some “load”, which was code for methamphetamine. Witness A pressed the offender to call Bakhtiyari and to “ask for 50”. In other words, 50 grams. The offender replied, “No-one gives 50, they only give 100” and initially refused to be involved, but later relented after repeated prodding by Witness A and said he would call Bakhtiyari and arrange it. The offender then called Bakhtiyari and the two men referred to a stated price of “nine for 100”. In other words $9,000 for 100 grams.

71. On 29 October 2018 the offender, Witness A and Bakhtiyari met and Witness A asked Bakhtiyari if he had any “load” to which Bakhtiyari replied “No problem”.

72. Sometime later, on 2 December 2018, Witness A met with the offender and asked “What happened to the stone?”, in other words the methamphetamine, and the offender replied “Oh that. He said nine for one hundred. Then he said not to sell under ten, 10.5”. To this, Witness A responded “I’m out of cash mate. I want to make some money”. The offender replied “He says no-one has. He says no-one has a load. Everyone is after a load”. Witness A said “Tell him to bring”.

73. On 3 December 2018, Bakhtiyari attended the offender’s residence and a few minutes later the offender called Witness A saying “The story is okay, come and take it tomorrow”.

74. On 4 December 2018, Bakhtiyari called the offender around 9.45pm and a few minutes later Bakhtiyari drove his BMW into the underground car park, presumably at the offender’s residence. At this time, the offender and Witness A were present when Witness A was handed a tissue box which contained a clip seal bag which contained 88 grams of methamphetamine with a purity of around 78.5%.

75. On 7 December 2018, the offender called Witness A, and Witness A said that he had “fiduciary” for him, referring to the agreed sale price of $9,000. Later that day, Witness A attended the offender’s residence and paid him the $9,000 to be given to Bakhtiyari.

76. I turn then to the facts of the second matter on the Form 1, namely, an offence of knowingly take part in supply of methamphetamine between 10 and 14 December 2018.

77. On 10 December 2018, Witness A called the offender asking if he could obtain more “story”, being code for methamphetamine. The offender said he would call Bakhtiyari and would call Witness A back once he had an update.

78. On 11 and 12 December 2018, Witness A called the offender, asking for updates about the proposed supply but the offender said he had yet to hear from Bakhtiyari. On 12 December 2018, the offender called Bakhtiyari seeking the supply of “the proteins you got us the other occasion” to which Bakhtiyari replied “No problem”.

79. On 14 December 2018, the offender received a call from Bakhtiyari and they met at the offender’s home, when Bakhtiyari provided the drug to be sold to Witness A. At about 8.30 that night, the offender called Witness A and invited him to come and collect the drugs. At around 9.40 that night, the offender supplied the drugs to Witness A in the underground car park of the offender’s and Witness A’s residence. The drugs were in a clip seal bag which contained approximately 50 grams of methamphetamine although with a purity of only 1%.

80. On 17 December 2018, Witness A met the offender and paid him $5,400 in cash to be given to Bakhtiyari for the supply of these drugs. Those are the factual matters upon which the sentence proceedings have been conducted.

OBJECTIVE SERIOUSNESS

81. It is necessary, of course, that in sentencing the offender I make an assessment of the objective seriousness of the offences before the Court. That is, the offences in counts 1 and 2, in particular. The objective seriousness of the offences is marked firstly by the significant maximum penalties that apply, which are, of course, an important guidepost in the sentencing exercise.

82. Furthermore, the Courts of this country have said for many decades that persons who involve themselves in drug offences at any level, including trying to import drugs, or to supply drugs, must expect to receive serious punishment. Deterrence, both personal and general, are very important considerations in sentencing for such offences.

83. However, in determining the objective seriousness, and in sentencing for such offences, it is important to have regard to the offender’s role and to assess what he actually did. In assessing objective seriousness, I must have regard only to the nature of the offending and not to matters personal to the offender: Muldrock v The Queen (2011) 244 CLR 120.

84. I turn then to consider the objective seriousness of the count 1 coconut conspiracy. In assessing the objective seriousness, and in setting the sentence for that Commonwealth Criminal Code count, I am required to have regard to s 16A of the Crimes Act 1914. Subsection (1) of that section requires that I impose a sentence of a severity that is appropriate in all the circumstance of the case, which is a statement essentially of the obvious.

85. There are various other matters that I must take into account which are set out in s 16A(2), some of which go to the objective seriousness of the offending and some of which relate to subjective matters. Section 16A(2)(a) requires that I have regard to the nature and circumstances of the offence. Clearly, the conspiracy must be treated as a serious offence, given that the plan to import was not a “one off” but a plan to conduct “bi-monthly” shipments.

86. Also, the offender played an active role in the conspiracy. In my opinion, it would be an under-statement of the offender’s role to accept the offender’s submission that he was little more than a “reluctant conduit or messenger” between Bakhtiyari and Witness A. At the initial stages, he acted as a go-between or intermediary between Bakhtiyari and Witness A. However, after this he counselled Witness A about the need for caution and that he would tell Witness A when it was “the right time” and later, about the need for a company to be set up, and as to the profits that Witness A could expect if the conspiracy was successful. He also, at a later stage, informed Witness A about the method to be used, which had been discussed with Bakhtiyari, involving liquid methamphetamine inside coconuts. That method was a relatively sophisticated one, designed to disguise the proposed drugs and shield them from detection. It is also relevant that part of the conspiracy, namely the “dummy run”, was successfully executed.

87. The offender also re-assured Witness A that he was available to help if Witness A “got stuck” with anything, and gave Witness A instructions about money to be deposited and the way in which this should be done. In addition to his involvement as an intermediary, the offender also acted directly, for example, in making enquiries with Logistics and storage companies, and in visiting storage facilities with Witness A. Also, the offender, after the arrival of the coconuts, told Witness A to unload them and to bring four boxes to him and also instructed Witness A about emptying the storage in preparation for “the next one”.

88. Furthermore, the quantity of drugs proposed to be imported, while never precisely specified, was obviously of some magnitude, given the discussion as to the profits that might be expected to flow to Witness A.

89. In my assessment, the offender performed an intermediate management type role in the coconut conspiracy which was, however, a lesser role than that performed by Mr Bakhtiyari. The offender’s role was one in which he co-ordinated and liaised between Witness A and Bakhtiyari but also gave instructions of his own initiative.

90. While there are numerous parts of the agreed facts where the offender said things like “I have nothing to do. I’m aside” and “I have no role” and “I am not beneficiary mate”, I do not accept that the offender was not expecting some benefit from the proposed import. My reasons are as follows.

91. Firstly, there are the references in the agreed facts to Bakhtiyari and the offender discussing the plans in a collective sense with reference to “let’s” and “we” and “us”.

81. Secondly, perhaps more importantly, it is simply not believable that the offender would involve himself in such a “risky business” without the expectation that he would receive some benefit. In my view, the various denials in the facts by the offender of any expectation of benefit were disingenuous, and were more in the nature of him maintaining that if anything went wrong, then he, and Witness A, should say that the offender was not involved in any way. In my view, no other inference is available especially in the absence of evidence on oath, and it is just not credible given the various things that the offender did, that he did not expect some benefit, although the exact nature and extent of that benefit is not something that I can determine.

82. As the Court knows, and as the expert certificate of Detective Kalache confirms, the market for methamphetamine is such that the importations, had they been achieved, had the potential to reap great profits. As I have said, in my opinion his role was an intermediate manager type role in the conspiracy from which he expected some benefit.

83. Having regard to all of these matters, I assess the objective seriousness of this offence as somewhat below the mid-range but not approaching the low-range.

84. In the Crown submissions, reference was made to s 16A(2)(e) of the Crimes Act 1914 which requires that I take into account any injury, loss or damage arising from the offence. In this regard, no actual drugs were imported into the community. Although the Crown submitted that there is harm by reason of the expenditure by governments on policing, sentencing and incarceration and other matters arising from drug importations, these are not matters to which I attach significant weight. They are largely inherent in the significant maximum penalties that are prescribed.

85. In determining the sentence for the Commonwealth matter, I have also taken into account the important factors of the need for personal and general deterrence, and the need to ensure that the offender is adequately punished. I have also taken into account the dish tablets conspiracy which is itself a serious matter, especially given that it was intended to involve an actual importation of drugs, rather than a dummy run.

86. It was also argued by the Crown under s 16A(2)(c) that the conspiracy offence in count 1 effectively formed part of a course of conduct, given the other offences before the Court. While I have considered this submission, it would in my opinion amount to double counting to treat this as an aggravating factor in sentencing, given that the sentence I will impose for the count 1 conspiracy offence will take into account the matter on the s 16BA schedule and given that I will be imposing a separate penalty for the count 2 State offence which will take into account the matters on the Form 1.

87. Having said all that, the fact that there are multiple offences before the Court is a matter that I have not overlooked in determining the sentence for the two substantive offences in the sense that they cannot be regarded as isolated lapses in otherwise law-abiding conduct.

88. I turn then to consider the objective seriousness of count 2, that being the State “knowingly take part in supply” offence. The objective seriousness of this offence is also considerable, as noted by the maximum penalty that applies. The offence involved 200 grams of methamphetamine which is approaching the commercial quantity of 250 grams. It was also, at around 79%, of high purity. As to the offender’s role, he appears to have acted as a “go between” in the supply of the drugs from Witness A which were sourced from Bakhtiyari and he then acted as a conduit for passing the payment of $18,000 back to Bakhtiyari. His role was therefore below that performed by Mr Bakhtiyari. While there is no direct evidence of the offender receiving any direct benefit, I am satisfied that he did not involve himself in the supply for charitable purposes, and that he must have received or expected to receive, some benefit although I am not able to quantify it. I assess the objective seriousness of this offence as being somewhat below the mid-range but again, not approaching the low-range.

89. It was also argued that the State offence is aggravated by a number of matters. Firstly, that the “knowingly take part in supply” offence, that is the count 2 offence, and the Form 1 matters, were committed “in company”. In that regard, the Crown pointed to s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999. I have considered this argument, however, I do not accept it. The words “in company” in 21A(2)(e) are aimed at a situation where the presence of another offender operates to increase a threat of violence or intimidation: Gore v R [2010] NSWCCA 330 at para 101. In my view, it has no relevance to the facts of this case.

90. Secondly, the Crown submitted that the State offence and the Form 1 matters are aggravated because they involve planned and organised criminal activity. That might be so to a degree, however, that is commonly an inherent element of drug supply, and I am not satisfied that there was any degree of planning or organising in this matter that went beyond that inherent in most drug supplies.

91. As I noted earlier, it was also argued by the Crown that the State supply offences effectively formed part of a course of conduct. While I have considered this submission, it would in my opinion amount to double-counting to treat this as an aggravating factor in sentencing, given that the sentences I will impose for the count 2 State offence will take into account the matters on the form 1.

92. Having said that, and as I have earlier effectively stated, the fact that there is more than one supply offence before the Court means that the offence in count 2 cannot be regarded as an isolated lapse in otherwise law-abiding conduct.

93. Thirdly, the Crown referred to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 and argued that the harm from the supply offences was substantial. While I accept that there was the potential for the supply of drugs to end up in the community and cause significant harm, this did not occur because the drugs were supplied to Witness A, who was co-operating with police. I do not, therefore, consider that this aggravating feature is made out.

94. Fourthly, it was argued that the New South Wales offences were committed without regard to public safety and for financial gain. I accept that this is true, however, disregard for public safety is in my opinion a matter that can be said to be present in virtually every drug supply offence. Somewhat similarly, a motive of financial gain is an inherent aspect of almost all drug offences. In these circumstances, I do not accept the Crown argument that these matters aggravate the offences.

SUBJECTIVE MATTERS

106. I turn then to subjective matters relating to this particular offender and his background. The offender is now 40 years of age and he has no prior criminal history. He was born in Iran and grew up in a poorer area of Tehran. He was largely raised by his father, as his mother left home when he was a baby. He married his wife in Iran in 2006 and they have two children, one born in Iran and the other born in Australia. The offender left Iran and escaped to Indonesia where his wife and child joined him. Sometime after this, they boarded a boat in Java, however, the boat sank and many people on board drowned.

107. A quantity of documentary material has been placed before the Court about this event. The offender’s wife, Ms Rajabali has provided an affidavit in which she confirms this event, and says that after the boat capsized, the offender was able to break a hole in the boat through which they escaped and that the offender, effectively, saved her and their daughter from drowning, and then swam in the water for many hours with the child on his shoulder before they were all rescued. She confirms that she saw many people drown. After this, she says they were taken back to Indonesia, where they spent about a year and a half before being accepted into Australia as refugees.

108. It was in June 2013 that they arrived by air in Australia. The offender’s wife says that as a result of the boat capsize incident, she has been plagued with ongoing depression and other issues. This incident, and the offender’s actions in rescuing his daughter from the capsized vessel, are also referred to in a Sydney Morning Herald article of November 2011 which was admitted into evidence.

109. Somewhat consistently with what Ms Rajabali describes, psychiatrist Dr Olav Nielssen has diagnosed the offender as suffering Post-Traumatic Stress Disorder as a result of his account of persistent intrusive anxiety producing memories and dreams about the boat incident. Dr Nielssen also has diagnosed a depressive illness or adjustment disorder in the offender arising from his arrest and imprisonment, although this is partly in remission.

110. As is described by the offender’s wife, and in the account given to Dr Nielssen, the offender had made a real success of his life before his arrest. He apparently built up a very successful painting business in which, for a time, he worked with Witness A. He also featured in a short documentary about his successful life after arriving in Australia as a refugee.

111. Character references tendered by the offender attest to his very hardworking nature and dedication to his family. This material and his lack of prior convictions indicate that he is otherwise a person of good character. However, good character is not necessarily a matter that amounts to significant mitigation in matters involving drug importation and supply.

REMORSE

112. The character references also refer to his expressing great remorse for his offences and, in particular, for the adverse consequences on his family. Although the offender did not give evidence, he has provided a letter to the Court in which he expresses remorse and says that he made a mistake in getting himself involved in these offences. He claims that he has learned from his mistake and apologises for the damage he has done and says there is no excuse for his actions.

113. While there is no evidence on oath from the offender, I accept that the material put forward does demonstrate some level of remorse and contrition, although the weight that I attach to this is reduced, given that the offender gave no evidence on oath.

PROSPECTS OF REHABILITATION

114. It is to the offender’s credit and augers well for his prospects of rehabilitation that during his period in custody from February 2019 to January 2021, he was an exemplary prisoner, and a respected leader and role model to others, especially with regard to his efforts in co-ordinating painting and other works inside the corrective facility.

115. Having regard to all of these matters and the fact that the offender has no previous criminal history, the offender’s prospects of rehabilitation in my view might be described as guarded but reasonable.

IMPACTS OF COVID PANDEMIC

116. On Friday 3 September 2021, when I intended initially to hand down sentence in this matter, an application was made by counsel for the offender, which was not opposed by the Crown, that the proceedings be adjourned to permit the parties to provide further information and submissions about the potential impact of the recent outbreak of Covid-19 in some New South Wales prisons. Subsequently, I received additional submissions and evidentiary material, including the report of Dr Ellis of 29 August 2021, all of which I have considered. I have taken into account comments made in a number of recent decisions about the relevance of Covid-19 in sentencing, including Moody v R [2020] NSWCCA 160; Doudar v R [2021] NSWCCA 37; and Mbele v R [2021] NSWCCA 182.

117. There is no evidence that this offender has any heightened physical susceptibility to the Covid-19 disease, however, I accept that the recent outbreak in some prisons is likely to add to the stress of his incarceration, especially in light of his mental health concerns, especially his Post-Traumatic Stress Disorder which, in itself, I accept will make custody more onerous for the offender.

118. I also accept that the current pandemic and the recent outbreak of the Delta strain in some prisons is likely to have a practical, negative impact by reason of continuing restrictions in contact with family, limitations in accessing medical and counselling services, restrictions in accessing work and education and possible additional lockdowns in prison.

119. I have therefore taken into account that the offender’s imprisonment for some unknown time into the future is likely to be more difficult than it would have been prior to the pandemic, and in particular, prior to the recent outbreak of the Delta strain in some New South Wales prisons.

DETERMINATION

120. I convict the offender of both offences. I am satisfied in relation to each offence that no penalty other than full-time imprisonment is appropriate. As I am imposing a sentence for both a State and a Commonwealth offence, I must set a term for each offence.

121. In doing so, I will take into account the matter on the s 16BA schedule and the Form 1 which must have the effect of increasing the sentences to some degree so as to reflect the need for deterrence and the community’s entitlement to retribution.

122. In determining the penalty for the Commonwealth offence, I have had regard to the relevant matters set out in Part 1B of the Crimes Act 1914. In determining the State sentence, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

123. For the count 2 State offence of knowingly take part in supply and taking into account the two matters on the Form 1 document, I impose a fixed term of imprisonment of 2 years. I decline to set a non-parole period. The fixed term is intended to reflect the non-parole period that I would have set for that offence if I was dealing with it separately. That period has been arrived at after a starting point of 3 years 4 months after applying a discount of 5% to a starting point of 3 years 6 months. It has also been arrived at after making a finding of special circumstances based on this being the offender’s first time in custody. The reason that I decline to set a non-parole period is that any period of parole will be subsumed within the term of imprisonment that I will impose for the Commonwealth count 1 offence.

124. For the count 1 Commonwealth offence, taking into account the matter on the s 16BA schedule, I impose a head sentence of 8 years imprisonment and a non-parole period of 4 years 6 months. The head sentence has been arrived at based on a starting point of 9 years and then applying a discount of approximately 10% on account of the plea of guilty and the co-operation so as to arrive at a head sentence of 8 years.

TOTALITY AND CONCURRENCY   

125. Given that I am imposing a sentence for two offences, I have given consideration to the question of whether, and to what extent, the sentences should be cumulative or concurrent. It seems to me that there is a need for some accumulation given that they involve separate instances of criminality. However, I have had regard to totality principles and the importance of avoiding a sentence which might crush any prospects of rehabilitation.

BACKDATING

126. The offender was in custody between 20 February 2019 and 22 January 2021 and has returned to custody from 3 September 2021 where he remains. Taking into account these 715 days, I intend to commence the State sentence on 1 October 2019. That term of imprisonment will therefore expire on 30 September 2021.

127. The Commonwealth sentence will commence on 1 July 2020. In other words, 9 months after the commencement of the State sentence. The head sentence for that Commonwealth matter will expire on 30 June 2028. The non-parole period will expire on 31 December 2024.

128. The total effective sentence therefore is a head sentence of 8 years 9 months and a non-parole period of 5 years 3 months. As I have said, the offender will be eligible for consideration of release to parole on 31 December 2024.

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Decision last updated: 07 December 2021