R v Razzaghipour; R v Rixon; R v Charbel

[2020] NSWDC 882

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Razzaghipour; R v Rixon; R v Charbel [2020] NSWDC 882

Hearing dates:

19 June; 2 and 3 September 2020

Date of orders:

17 September 2020

Decision date:

17 September 2020

Jurisdiction:

Criminal

Before:

P Taylor SC DCJ

Decision:

Alisina Razzaghipour is convicted of attempt to possess an unlawfully imported border controlled drug, namely cocaine, of a commercial quantity, namely 41.5434 kgs pure.

Alisina Razzaghipour is sentenced to a period of imprisonment of 9 years and 10 months to date from 25 July 2019, expiring 24 May 2029, with a non-parole period of 5 years and 10 months expiring 24 May 2025.

Christopher Rixon is convicted of attempt to possess an unlawfully imported border controlled drug, namely cocaine, of a commercial quantity, namely 41.5434 kgs pure.

Christopher Rixon is sentenced to a period of imprisonment of 8 years and 3 months to date from 25 July 2019, expiring 24 October 2027, with a non-parole period of 4 years and 11 months expiring 24 June 2024.

Maroun Charbel is convicted of aid and abet an attempt to possess an unlawfully imported border controlled drug, namely cocaine, of a commercial quantity, namely 41.5434 kgs pure.

Maroun Charbel is sentenced to a period of imprisonment of 6 years to date from 25 July 2019, expiring 24 July 2025, with a non-parole period of 3 years and 7 months expiring on 24 February 2023.

Catchwords:

CRIME – sentencing - drug offences - Commonwealth offences - possession of unlawfully imported border - controlled drug – attempt - aid and abet - commercial quantity - cocaine

Legislation Cited:

Crimes Act 1914 (Cth), s 16A, s 19AB

Criminal Code Act 1995 (Cth), s 11.2

Cases Cited:

Bae v R [2020] NSWCCA 35

Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191

Director of Public Prosecutions (Cth) v Said Khodor El Karhani (1990) 21 NSWLR 370; (1990) 97 ALR 373

El-Ghourani v The Queen (2009) 195 A Crim R 208; [2009] NSWCCA 140

Filippou v R (2015) 256 CLR 47; [2015] HCA 29

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Ma v R [2010] NSWCCA 320

McKinnon v R [2020] NSWCCA 106

Moodie v R [2020] NSWCCA 160

Okafor v R [2007] NSWCCA 147

Onuorah v R [2009] NSWCCA 238

R v Au (Unreported, District Court of New South Wales, 7 March 2008)

R v Chen & Others (2002) 130 A Crim R 300; [2002] NSWCCA 174

R v Ferrer-Esis (1991) 55 A Crim R 231

R v Girard, Andrew John, R v Girard, Tessa Maree [2004] NSWCCA 170

R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405

R v Leroy [1984] 2 NSWLR 441

R v Mostafa Dib [2020] NSWDC 145

R v Nguyen (2005) 157 A Crim R 80; [2005] NSWCCA 362

R v Niketic [2002] NSWCCA 425

R v Olbrich (1999) 199 CLR 270

R v Palu [2002] NSWCCA 381

R v Pang (1999) 105 A Crim R 474; [1999] NSWCCA 4

R v Qutami [2001] NSWCCA 353

R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355

R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522

R v Zeng [2008] NSWCCA 183

Regina v Kaldor [2004] NSWCCA 425

Regina v Michael Arthur Falls [2004] NSWCCA 335

Scott v R [2020] NSWCCA 81

Smith v R [2020] NSWCCA 181

Taumoepeau v R, Siaki v R [2020] NSWCCA 200

Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64

Xiao v R [2018] NSWCCA 4

Category:

Sentence

Parties:

Proceedings 2019/231623
Regina
Alisina Razzaghipour (Offender)

Proceedings 2019/231610
Regina
Christopher Rixon (Offender)

Proceedings 2019/231618
Regina
Maroun Charbel (Offender)

Representation:

Counsel:
Mr L Fernandez (Crown)
Mr A J Karim (16 June 2020) Mr A Williams (2 and 3 September 2020) (Alisina Razzaghipour)
Mr I Lloyd QC (Christopher Rixon)
Mr John Stratton SC (Maroun Charbel)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
John B. Hajje & Associates (Alisina Razzaghipour)
Andrew Scali Solicitors (Christopher Rixon)
Hardin Lawyers (Maroun Charbel)

File Number(s):

2019/231623; 2019/231610; 2019/231618

Publication restriction:

Information the subject of non-publication and suppression orders has been redacted from this version of the judgment on sentence.

Judgment on sentence

A. Introduction

1. Alisina Razzaghipour, Christopher Rixon and Maroun Charbel are to be sentenced for their conduct in connection with the importation of 55 kg of cocaine concealed in a large industrial plasma cutting machine. Mr Razzaghipour and Mr Rixon pleaded guilty to attempt to possess an unlawfully imported border controlled drug, namely cocaine, of a commercial quantity, namely 41.5434 kgs pure. Mr Charbel pleaded guilty to aid and abet that attempt to possess the cocaine. The offences carry a maximum penalty of life imprisonment.

B. Agreed facts

2. The context of the offences is revealed by the Statement of Agreed Facts on Sentence.

3. On 12 June 2019 a shipping container carrying the crated plasma cutter arrived at the Container Examination Facility at Port Botany, New South Wales on board the Motor Vessel Bea Schulte from India.

4. Australia Border Force officers by x-ray found anomalies in the plasma cutter and when the top of it was cut open, 110 square blocks containing white powder of approximately 55 kgs in total, suspected to be cocaine, was found within the machine. The blocks were removed from the machine, and subsequent testing revealed a total calculated weight of pure cocaine of 41.5434 kgs, approximately 22 times the commercial quantity.

5. The plasma cutter was then reconstructed by the Australia Border Force officers and placed back in its original wooden crate.

6. An unknown person, using the pseudonym “Adam Morin”, arranged with the freight forwarder for the machine to be delivered to a storage company in Peakhurst. Payments were made for the delivery of the machine to Peakhurst, for the storage, and for collection and delivery from Peakhurst by a truck driver.

The offenders’ involvement with the plasma cutter

7. On the morning of 23 July 2019, Mr Razzaghipour, using a pseudonym, engaged in a number of text messages with an unidentified person called “el Chapo”. El Chapo’s text messages included:

“Yeah well the main thing is getting a grinder to chop it open”;

“Shouldn’t be to hard”;

“The machine I can give it to someone or sell”;

“Have you fixed up Chris?” (Chris is a reference to Mr Rixon);

“Doubt it’s being tracked it’s been sitting for 3weeks”.

Mr Razzaghipour texted, in an apparent reference to the place for delivery of the plasma cutter:

“OK…. I’ll see if I can get him to agree to like 10k… how long do you need the shed for?”;

“Please say 24 hours”.

El Chapo responded:

“How ever long it takes to unpack”

“Not long we need to cut it open with grinders the 51kg is inside”

“Just need to make sure it’s not someone that’s going to give you up”.

Mr Razzaghipour also texted:

“Chasing bank now too”;

and about 40 minutes later:

“Perfect. It’s available today. I’ll get Chris [i.e. Rixon] to run and supervise. So we can take the 120. Bring it and give it to Chris. I’ll get him to go there now. Will send you the address.”

Then el Chapo texted:

“Ok pay Chris 20k to chop it open”.

“Remember there’s 99% chance it’s not followed it’s all done properly. But make sure where ever it’s going is not going to have any luck back. Man I’m not sure if I want Chris anywhere near it while the property is still in his name and it’s 120k all up bro 100k + 20k to chop it.”

“Who’s place is it it’s not C’s is it”. (“C” is also a reference to Mr Rixon).

Mr Razzaghipour responded:

“Mate he needs to know when the machine will leave peakhurst so he is on top of it”.

“Once cut who’s taking it away also if it’s 2 tonnes it won’t fit on a truck it need a to be on a trailer”.

“That way it can remain on the trailer when being cut and easy to remove…”

El Chapo messaged:

“Of course it will fit on a truck”.

8. About this time, Mr Rixon organised the use of Mr Charbel’s acreage residence in Arcadia for the delivery of the machine. Mr Razzaghipour messaged el Chapo:

“Hes just organised a private property sitting on acreage”.

Mr Razzaghipour texted the Arcadia address.

El Chapo messaged:

“I need Chris to put his nose in a block and test it”.

Mr Razzaghipour replied:

“Ok”.

“He asked if we can chop the machine where it is right now”.

“No moving it then”.

“What type of machine btw”.

9. el Chapo texted:

“No it can’t be done there it’s a legit warehouse”.

“Laser cutting machine”.

“Remember man it’s one of those things nothing’s guaranteed. We being told it’s sweet but anything can happen. There was another part to the machine that was taken away and disposed of already no complications”.

“It’s been cleared from customs and been sitting in a warehouse over a month now that’s the info ok we’re big boys it’s our call it’s just one of those things ok Ali. Making an educated decision here that’s it’s sweet the people it’s coming from are solid.”

10. Mr Razzaghipour texted:

“Chris wants to know has someone checked the machine to see if there’s a tracker on it…”, and

el Chapo replied:

“No I don’t think it’s been checked it’s impossible from where it’s at it’s a legit warehouse”.

11. Later that evening, 23 July 2019 Mr Rixon and Mr Razzaghipour exchanged text messages, again using pseudonyms:

Rixon: “We still good for tomorrow”.

Razzaghipour: “Thursday… after 9am”.

Rixon: “That is fucked I can’t do it. And if I’m not there around isn’t any good neither”.

12. At 11.10am on Thursday, 25 July 2019 the truck driver collected the plasma cutter from Peakhurst.

13. During that morning, Mr Razzaghipour texted Mr Rixon if he wanted to “find a driver to drop off the stuff? Pays 25000… maybe Maroun [i.e. Charbel] may want to do it.” Rixon responded “None of us want to do the delivery”.

14. While the truck was en route el Chapo sent further text messages to Razzaghipour and Rixon:

“They have photos from when the machine was packed it should mirror our photos”.

“There’s 55kg in total”.

15. At 1.25pm the truck arrived at Mr Charbel’s residential address in Arcadia. Mr Charbel and Mr Rixon were present at the time of delivery and observed the truck entering the property and proceed up the driveway. About seven minutes later, Mr Razzaghipour arrived in a silver ute. The offenders watched as the truck driver prepared and used the crane attached to the truck to unload the crate containing the machine and place it in the carport on Mr Charbel’s property.

16. Thereafter, from 2.05pm to 2.55pm Charbel, Razzaghipour and Rixon used various hand and power tools to access the machine and its internal chambers by means of drilling, grinding, sawing and banging. During the process, Razzaghipour was communicating and receiving instructions from the unidentified el Chapo on a mobile phone in the presence of Rixon and Charbel. At about 2.40pm, Razzaghipour, speaking about a text message, was recorded saying, apparently to Rixon and Charbel:

“He’s going, did we have a driver, should I get one? I said get one. He says we can get two cars to follow the driver. It’s an easy twenty-five K. Your fella says he doesn’t want to approach you organise it, yeah?”

17. Shortly thereafter, Charbel, Razzaghipour and Rixon discovered nothing in the compartment of the plasma cutter they had accessed. Razzaghipour relayed the message to el Chapo, texting:

“Bro nothing ……”

18. El Chapo responded:

“It’s in 3 of the 6 compartments”.

19. Razzaghipour told Rixon and Charbel:

“He says it’s in three of the six compartments so we might be looking at an empty one…We might’ve just got an empty compartment. He said it’s in three out of the six”.

Rixon advised:

“Get a photo of each. Send him a photo of that”.

20. Razzaghipour, Rixon and Charbel were successful in accessing at least three of the six compartments of the plasma cutter. When the blocks of cocaine could not be located, Razzaghipour suggested that they assemble the machine “all back together” and put it in storage for a few days. Charbel and Rixon agreed and the three offenders began to reassemble the plasma cutter.

21. Razzaghipour, Rixon and Charbel heard buzzing noises from a device inside the machine. They suspected it was a surveillance device and removed it. Razzaghipour texted el Chapo “And its buzzing…” El Chapo responded to Razzaghipour and Rixon:

“It’s buzzing? Wtf”.

“They said then can tell it hasn’t been touched from the plastic wrapping”.

“What the fuck is that? A tracker”.

“Drive it somewhere”.

Razzaghipour: “Yes”.

“Just working it out”.

El Chapo: “Fuck”.

Razzaghipour: “If we survive this bro… lol”.

“Fuck! A Magnet was holding it to the machine”.

El Chapo: “Man be very careful maybe just drop everything and go”.

“If it’s a tracker get out of there come back later”.

22. At about the same time, Razzaghipour is heard to say, “Hey, do you think I should take that, get in the car and just drive like to the middle of nowhere and just throw it? Rixon?”

Rixon says: “Yeah, just hand on, I need the keys”,

and subsequently (of el Chapo) “What did he say?”

Razzaghipour: “He said drive it somewhere and get rid of it…”

Rixon said: “I’m about to drive down the road and hide it somewhere”.

And Razzaghipour repeated his earlier suggestion saying, “I say we just put it back together.”

23. At about 3pm, police approached the property as Mr Rixon was departing in his vehicle. The three offenders were arrested. They were each cautioned and offered an opportunity to participate in a police interview. Mr Razzaghipour declined.

24. Mr Rixon and Mr Charbel each consented to a record of interview. Both denied any knowledge of the cocaine. Mr Charbel said:

“I’ve got no idea what you guys are talking about at all. This is the first, what you guys have told me today. I’ve got no idea. I’ve done nothing wrong at all.”

Mr Rixon said he knew nothing of the drugs until the arrest.

25. Mr Charbel recounted that his friend, Chris Rixon, “in the last couple of days” said to him, “I’ve got a machine I need to fix up at your place ‘cause I need to open – open it up and work on it”. Mr Rixon attributed the machine to Mr Razzaghipour.

26. To the extent that Mr Rixon’s and Mr Charbel’s answers conflict with their guilty pleas and the Statement of Agreed Facts, they are wrong, and allow the inference, which I would draw, that they lied about those matters when they must have known the truth; such matters as their knowledge about the cocaine, being wholly innocent, and the extent and purpose of their activities with the machine.

27. The police executed a search warrant of the Arcadia property where they located the dismantled, partially reassembled plasma cutter, a number of power tools, including drills, drill bits, electric screwdrivers, circular saws, pliers, screwdrivers, transaction receipts dated 6 February 2019 relating to the purchase of tools, a radio frequency tracer which can be used to locate surveillance devices, various mobile phones and encrypted telecommunication handsets, including Mr Razzaghipour’s Samsung cipher phone which contained images apparently of drugs, Mr Razzaghipour’s Australian passport from the car being driven by Mr Rixon when the police arrived, cash of $1,000 AUD and $3,467 USD in a drawer in Mr Charbel’s bedroom, and a set of digital scales.

C. Fact finding and sentencing considerations

28. Facts and inferences upon which the Court is to sentence an offender, beyond that which is established by the plea of guilty, or contained in the Statement of Agreed Facts on Sentence must be proven: those in favour of the offender on the balance of probabilities, those contrary to the interest of the offender must be proved beyond reasonable doubt. [1] Facts that are not so proven are recognised as remaining uncertain and neither weigh in favour of or against the offender, and the Court is not bound to adopt the view of the facts most favourable to the offender. [2]

    1. R v Olbrich (1999) 199 CLR 270 at [27].

    2. Cf Filippou v R (2015) 256 CLR 47; [2015] HCA 29 at [5], [70].

29. Section 16A of the Crimes Act 1914 (Cth) provides that the Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. It is not disputed that a significant period of imprisonment is appropriate: the seriousness of the offences is manifest by the maximum penalty of life imprisonment. Subsection (2) lists the matters that must be taken into account.

(a) The nature and circumstances of the offence: s 16A(2)(a)

30. Attempting to possess imported drugs may, or might not, be less serious than importing drugs depending on the circumstances. [3] Similarly, someone who aids and abets an offence, may, depending on the conduct have less culpability than those who commit the offence.

    3. R v Ferrer-Esis (1991) 55 A Crim R 231 at 239.

31. The role of each offender and the activities undertaken by each offender in performing that role is a significant consideration. [4] So also is the degree of involvement in the overall drug smuggling enterprise. [5] Here around 10 million dollars’ worth of cocaine was imported into Australia, hidden in a large specialised industrial machine. Collectively the three offenders’ roles were to find or provide a suitable location for the receipt of the machine and drugs, unpack the machine, use power tools to extract the drugs secreted within it, thereby taking possession of the drugs to enable them to be collected.

    4. R v Nguyen (2005) 157 A Crim R 80 at 91 [49]; [2005] NSWCCA 362.

    5. El-Ghourani v The Queen (2009) 195 A Crim R 208 at [33]-[37]; [2009] NSWCCA 140.

32. When an offender seeks to be sentenced on the basis of being low in the hierarchy of a drug enterprise, the offender must establish that fact as a mitigating factor on the balance of probabilities. [6]

    6. R v Olbrich (1999) 199 CLR 270 at 280-282.

33. Here the whole of the consignment of cocaine was to be entrusted to Razzaghipour and Rixon. Mr Razzaghipour was communicating with and making arrangements with an unknown person about the cocaine, Mr Rixon was responsible to cut up the machine to extract the cocaine, and Mr Charbel provided the premises to enable that to be done, and assisted in extracting the drugs. All three offenders were together during the attempted extraction process and while Mr Razzaghipour was simultaneously messaging the unknown person “el Chapo” as already indicated.

34. The receipt of the machine and the extraction of the drugs from the machine was an important role in the importation process. Once that role had been fulfilled, the particular drugs would no longer be connected with the machine, the shipment, the importation.

35. An inference is available, and I was satisfied, that the sum of $120,000 was to be paid to the offenders for the extraction of the cocaine. A significant sum, but relatively modest compared to the value of the drugs. I take into account that there is no evidence that any of the offenders were involved in the importation itself, nor in the delivery or distribution, save for the extraction of the cocaine from the machine as indicated.

36. Each of the three offenders knew when the truck with the machine was going to arrive. Charbel and Rixon were present at the time, Razzaghipour shortly afterwards. Inferentially each knew where the drugs were to be found, and how the machine was to be cut open to retrieve them. I infer that Mr Charbel, because he says he provided tools, [7] and Mr Rixon, because his role involved this, supplied tools to cut open the machine. As these activities, and Mr Razzaghipour’s communications, including recounting the effect of messages he received, were done in the presence of each other, and because of the nature of the information in the texts and the conversations, I conclude that each offender was aware of the process taking place and the messages then being given and received. Mr Razzaghipour received the messages on his encrypted handset, a feature that indicates planning and sophistication; Mr Rixon also received some messages from el Chapo and Razzaghipour, and directed the sending of a photograph of the empty compartments. The parties discussed and independently decided their involvement in the extraction, the location of the activities, and their fee. All were or became aware of the significance of the tracer and the possibility of a surveillance device.

    7. Record of interview, 25/7/19, Q&A195, 221-222.

30. The evidence of the communications compel the inference that Mr Rixon and Mr Razzaghipour were aware of the incoming drug shipment from before 23 July 2019, and on that day Mr Charbel agreed to his property being used for the machine delivery. There is no evidence of any later revelation to Mr Charbel about the drugs contained in the machine. I conclude that sometime in the period from 23 July 2019 until the collection of the machine from Peakhurst, he was informed of the expected contents of the machine. Otherwise, the plan would have been thwarted if he subsequently refused to be involved when the presence of drugs became apparent to him.

31. Mr Razzaghipour was not merely a recipient of messages. He contributed intelligence to the operation – the method of selecting the address for delivery, the engagement of Chris Rixon to supervise extraction and the method of payment. He was aware of the substantial quantity of drugs for some days before the delivery and he knew that the machine had been in a legitimate warehouse for three weeks. He with Rixon raised questions about the operation, whether the drugs could be extracted at the warehouse thereby removing the need for transport to Arcadia, and whether the absence of a tracer had been checked. His receipt of messages about the collection of the cocaine shows him to be instructing el Chapo to get a driver and that the offenders were not going to do that, showing that there was some independence in his role. That he was responsible for paying Rixon and that he received the instructions for the three offenders indicates that his role was somewhat more elevated than Rixon’s. So also does the evidence that Mr Rixon was to receive only $20,000 of the $120,000 “all up”.

32. But Mr Rixon also was a joint recipient with Mr Razzaghipour of several text messages, whether or not he read them at the time, indicating his level in the hierarchy was not much below Razzaghipour. Mr Rixon questioned the need for movement of the machine to Arcadia, and the presence of a tracker. His presence at Charbel’s property at the time of delivery was apparently “essential”. He was also aware of the weight of the drugs from 23 July, gave direction to Razzaghipour about sending photographs of the empty compartments and was supervisor of extracting the drugs from the machine. He directed that he would dispose of the buzzing device, and may have been in the process of doing that when the police arrived. He was tasked to find a driver for collection from Arcadia and independently decided he would not be the driver. All these matters show that he was at a level which involved some decision-making in the operation.

33. Mr Charbel provided his property for the delivery of the plasma cutter and the extraction of the cocaine. The substantial metalworking involved in the extraction meant that not any property would do; it needed to be large to enable the truck to attend, and deliver the crated machine, to dismantle the crate and cut open the machine, and to do so in relative privacy without attracting attention. The machine, partly cut open or dismantled, was going to remain at his property for at least several hours, if not days, and he was trusted as someone who would not “give you up”, as el Chapo stated. Mr Charbel actively participated in the extraction process of cutting open or dismantling of the machine and in its reassembly, and he independently decided not to be involved in the delivery notwithstanding the $25,000 on offer. Whilst I accept that he may not have been aware of all the details known to Razzaghipour and Rixon, his role was important and significant.

34. Mr Charbel was not charged with attempt to possess, only with aiding and abetting the attempted possession, but the circumstance that the possession was intended to occur on his property, with his knowledge and involvement, diminishes the significance of the different charge. As an accessory, he is taken under the Criminal Code Act 1995 (Cth) [8] to have committed the substantive offence committed by Razzaghipour and Rixon, and his offence bears the same maximum penalty. In my view, his assistance in providing his property for the activities of the offenders, and his physical assistance in those activities, with knowledge of the seriousness of the crime, demonstrates significant culpability even though his role in the operation was below that of Razzaghipour and Rixon.

    8. S 11.2(1).

35. The magnitude of the drugs, 22 times the commercial quantity with a value in 1 kg lots of approximately $10 million, is relevant to the seriousness of the crime but more important is the offender’s knowledge of the quantity of the drugs. Knowledge of the amount of the drug involved will increase the significance of the weight of the drug. [9] Razzaghipour and Rixon were informed by el Chapo of the quantity of the drugs. Further, as the drugs were in some, but not all, of the separate compartments in the plasma cutter, Rixon, who supervised the attempted extraction, would need to know the quantity of drugs to know whether he had collected all of the cocaine.

    9. Ma v R [2010] NSWCCA 320 at [59], Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at 607-8 [64]; [2001] HCA 64.

36. There is no direct evidence that Mr Charbel knew of the exact quantity of cocaine. But he knew that the drugs were contained in a large piece of specialised industrial equipment, said to weigh 2 tonnes, which could only be accessed by two or three men equipped with power tools, including cutting the metal of the machine. These matters persuade me that he must have known in the course of extraction that the amount of the drugs was well in excess of 2 kgs. That he was told during the process of extraction that the drugs were in three of the six compartments in the large benchtop of the machine confirms that he understood that a substantial quantity was involved.

37. The presence of a motive of profiting from illegal conduct increases the objective gravity of the offending. [10] The Court should infer the profit motive from involvement in the illegal importation of drugs in the absence of contrary evidence. [11] The circumstance that the cocaine did not find its way into the marketplace reduces but slightly the objective seriousness of the offending, there being no injury, loss or damage resulting from the offending,[12] reducing as it may the extent that retribution needs to be reflected in the sentence. [13]

    10. Ma v R [2010] NSWCCA 320 at [60].

    11. Regina v Kaldor [2004] NSWCCA 425 at [104].

    12. See Crimes Act 1914 (Cth), s 16A(2)(e).

    13. See Regina v Michael Arthur Falls [2004] NSWCCA 335 at [19]; Crimes Act 1914 (Cth), s 16A(2)(e).

38. The text messages show that $120,000 was available for the offenders, including $20,000 to Rixon for extracting the drugs and at least $10,000 was to be offered to Charbel for providing his property for the delivery and extraction. Mr Razzaghipour told his psychiatrist that he was to receive “in the order of $30,000” for his involvement. [14] That $25,000 was also available for delivery of the drugs indicates the quantity of money available for various tasks. Whether, and to what extent, Charbel was to receive more than $10,000 for providing his property, or for assisting in extracting the drugs, or Rixon received more than $20,000 for his organising of the use of Charbel’s premises, or being present to receive the consignment at Charbel’s property, or for his advice and input into the operation as I have described earlier, or Razzaghipour was to receive more than $30,000 from the “120k all up”, remain matters of uncertainty. There was no evidence or suggestion that any of the offenders had some financial share of the value of the cocaine, or any profits that might result, apart from these payments. Yet the offenders were to receive a significant amount of money for the limited, but important, components of providing an isolated location for the process and for extracting the cocaine from the plasma cutter and taking possession of it prior to a further delivery of it to an unknown location.

    14. Exhibit 1RA at p 5.

39. I accept that each offender’s contribution was significant, important, to be rewarded, and demonstrates a high level of criminality and culpability. Against this I must balance that the involvement comprised about a couple of days, the action involving the extraction process comprised only a few hours, and the period of possession of the extracted cocaine was to be less still and appears to have been intended to be only a very short period before it was collected.

40. As to their ultimate level in the hierarchy, that is difficult to determine, in part because it is unclear at what level el Chapo was, even if he was clearly superior to Razzaghipour. Some of his comments indicate that he was subordinate to others such as “We being told its sweet”. I accept the submission that the offenders were exposed and at risk by the extraction process at Mr Charbel’s residence where they were present, a matter that would indicate a lower level role. Because of this, and because of the limited period of their knowledge and the lesser period of their involvement in the extraction, I accept that the offenders were each below the middle level in the hierarchy, Mr Razzaghipour not so much, Mr Rixon more so, and Mr Charbel towards a lower level of involvement. Yet with the quantity of the drugs, the knowledge of Mr Razzaghipour and Mr Rixon of that quantity, and Mr Charbel’s knowledge that the quantity was substantial, and the significant sums of money they were to receive, this remains a serious example of the attempt to take possession of a commercial quantity of an illegally imported border controlled substance.

D. Guilty plea and contrition: s 16A(2)(f) and (g)

48. I accept, as both the Crown and the offenders submit, that each offender is entitled to a discount of 25% for the utilitarian value of the early plea of guilty in saving the community the costs of a trial. [15] The Court must also take into account the degree to which the offenders have shown contrition for the offence. [16] I have read the letters to the Court from each of the offenders and references from friends and family concerning their remorse. I take them into consideration. Those in favour of Mr Razzaghipour by his son and daughter and former business partner; those in favour of Mr Rixon by his sister, friend and colleague. Mr Charbel’s submissions were supported by several friends, the local priest and a chaplain. I accept that Mr Charbel has come to this misadventure a little later than the other offenders, and may be a person easily led, but the seriousness of involvement in this offence cannot be excused by mere gullibility, [17] particularly when innocence was falsely maintained after the arrest.

    15. Xiao v R [2018] NSWCCA 4 at [278].

    16. Crimes Act 1914 (Cth), s 16A(2)(f).

    17. See Exhibit 1C, reference by Peter Glover, 8/5/20.

49. The value of the offenders’ statements and testimonial evidence is somewhat diminished by their untested hearsay quality. [18] Similarly, Mr Rixon’s and Mr Charbel’s willingness to engage in a record of interview is not persuasive evidence of remorse where their answers were in several respects untruthful. On the other hand, the references manifest an expression of remorse to persons close to them, which is a matter supporting their genuineness. I accept remorse and contrition is manifest by the plea, and the offenders’ statements and references are to be taken into account as a matter in the offender’s favour. It does not attract any separate arithmetic sentencing discount. [19]

    18. See R v Qutami [2001] NSWCCA 353 at [58]-[59], R v Palu [2002] NSWCCA 381 at [40], R v Niketic [2002] NSWCCA 425 at [4].

    19. Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191 at [62], Bae v R [2020] NSWCCA 35 at [54]-[56].

E. Character, age, antecedents and background of the offenders: s 16A(2)(m)

50. Mr Razzaghipour was 45 years old at the date of the offence and has no criminal history. Mr Rixon was 48 years old at the date of the offence, and Mr Charbel 49 years old, neither has any recent criminal history or any serious or drug related offences. I take into account what I regard, apart from this offence, as the good character of each of the offenders[20] even if it is of reduced significance in cases such as this. [21] This is not a case where evidence suggests that any of the offenders were selected to participate by reason of their good character or lack of criminal history. [22]

    20. Cf Okafor v R [2007] NSWCCA 147 at [47], Onuorah v R [2009] NSWCCA 238 at [49].

    21. See R v Au (Unreported, District Court of New South Wales, 7 March 2008) at p 10.

    22. R v Leroy [1984] 2 NSWLR 441 at pp 446-447.

51. I accept that each of the offenders has reasonable to good prospects of rehabilitation, and after their period of imprisonment, that they are unlikely to reoffend. Each of the offenders has over many years made a positive contribution to the community. But in differing ways, each of them has lost his way, becoming involved with drug consumption, having marriage break ups, estranged from their children and taking illicit drugs and mental illness medications, and ultimately becoming involved in this most serious offence connected with drug importation.

52. Mr Razzaghipour has a strong history of employment in the financial sector. He has had financial problems that are not entirely unrelated to escalating drug problems, which whilst they offer no excuse may provide some explanation for his egregious conduct here. A psychiatrist’s report offers a diagnosis of a substance use disorder (cocaine dependence).

53. Mr Rixon has given substantial service to [redacted]. I take into account Mr Rixon’s marriage breakdown and the fracture of his relationship with his children as part of the general mix of subjective considerations. I do not accept that Mr Rixon’s motive should be regarded as having some altruistic component of “assisting a friend” as submitted, since his friend, presumably Mr Razzaghipour, has hardly been assisted by being a co-offender in a very serious criminal offence. I take into account Mr Rixon’s psychological condition. The psychiatrist’s diagnosis of him having a depressive illness, post-traumatic stress disorder and a past substance use disorder [23] was not challenged by the Crown.

    23. Exhibit 1RI, Dr Olav Nielssen, 31/8/20 at p 8.

54. Mr Charbel had his own hairdressing business. He suffers back pain from a historical motor vehicle injury after which he self-medicated. More recently, about four years ago, his brother died and he separated from his wife. His drug usage involved increasing marijuana, cocaine and prescription sedatives and antidepressant medication. He had part-time custody of his four children, and a divorce settlement brought added financial pressures. At the time of the offence, he was the carer for his elderly mother. Now he has no engagement with his children, is unable to care for his mother, and continues to suffer from depression and a generalised anxiety disorder.

55. The conditions suffered by the offenders, particularly Mr Rixon and Mr Charbel will operate as an additional hardship in prison.

F. Effect on offender’s family: s 16A(2)(p)

56. I take into account the adverse impact on the families of the offenders that the conviction and imprisonment will inevitably bring. In this regard, none of the offenders are an exceptional case warranting a specific reduction on this account. Yet it is a subjective feature of each offender that should be considered even if it is a common characteristic that serious offences and the consequent imprisonment operate as a hardship on innocent members of the offenders’ families. [24]

    24. See R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522, R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405, R v Girard, Andrew John, R v Girard, Tessa Maree [2004] NSWCCA 170 at [21].

G. Parity

57. The parity principle in sentencing is an aspect of consistency in the law and equality before it. It mandates that like cases be treated alike and different cases differently. [25] Whilst it indicates the utility of consideration of the principles and treatment in other like cases, principally it requires that to the extent the co-offenders’ conduct is similar, they should be treated alike, and any subjective or objective differences should also be recognised in the sentence. Evidently each was involved in similar conduct, but there are differences, particularly in their roles and place in the hierarchy that I have identified.

    25. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28].

H. Specific deterrence: s 16A(2)(j)

58. The effect of a sentence that deters offenders from reoffending is an important part of the sentence process. Specific deterrence might be thought to be less relevant in the case of a momentary or impulsive lapse, but this is not the case here where the offenders choose to participate in the impending crime, did not withdraw from the decision over a period of days, and acted out the crime when the occasion for action arose. Mr Razzaghipour and Mr Rixon, and to a lesser extent, Mr Charbel, were involved in planning decisions about where, when and how the drugs were to be extracted. Each offender had the opportunity to deliberate about involvement in the crime before participating in it. A sentence should be sufficient to work as a deterrent against any repeated future involvement in such an offence. That none of the offenders have a history of offending and have exemplary Corrective Services records tends to militate against specific deterrence being given undue weight.

I. General deterrence: s 16A(2)(ja)

59. The deterrent effect on the general population, and in particular those of a mind to involve themselves in serious drug offences, is another significant feature of a sentence for this type of offence. [26] It cannot be supposed that all crimes of this nature are detected. The cost and difficulty of detecting crimes involving illicit drugs, and the gravely adverse social consequences, are reasons why severe punishment is almost invariably required. [27]

    26. Director of Public Prosecutions (Cth) v Said Khodor El Karhani (1990) 21 NSWLR 370 at 377; (1990) 97 ALR 373 at 380.

    27. R v Chen & Others (2002) 130 A Crim R 300 at 382-3 at [286]; [2002] NSWCCA 174, R v Stanbouli (2003) 141 A Crim R 531 at 552-553 at [114]; [2003] NSWCCA 355, R v Pang (1999) 105 A Crim R 474 at 476; [1999] NSWCCA 4.

J. Commencement

60. Each offender has been in custody since arrest on 25 July 2019, and each sentence of imprisonment and minimum term to be served should commence on that date. None of the offenders or the Crown advocated a course other than the setting of a single non-parole period in respect of each co-offender. [28]

    28. S 19AB Crimes Act 1914 (Cth): A single non-parole period should be fixed for all sentences exceeding three years, save where the nature and circumstances of the offence and the offenders’ antecedents satisfy the Court that a fixed non-parole period is inappropriate.

K. Covid-19

61. The evidence on sentence included affidavits from Jeremy Tucker in each case. Mr Tucker is the Director of NSW Corrective Services Strategy and Executive Services. Principally Mr Tucker’s evidence establishes that there are no confirmed cases of Covid-19 among NSW Corrective Services, correctional centre staff or inmates at prisons as at 30 August 2020. A number of measures have been instituted to minimise transmission. These measures include the wearing of facial masks by staff dealing directly with inmates, temperature testing of all inmates before and after any inmate transport, isolation of all new inmates for 14 days and enhanced cleaning and hygiene routines.

62. Another particular measure is that in person social visits have been suspended, none are currently permitted or occurring, and there are no immediate plans to resume in person social visits. In the result, inmates have no in person social visits. Mr Tucker deposed that:

“To mitigate disruption to family relationships caused by the suspension of visits, correctional centres have taken action to increase access to telephone calls. Work has also progressed to make AVL technology more available for family visits.”[29]

29. Affidavit of Jeremy Tucker, 1/9/20, Annexure A at [26].

63. Yet as more than 50,000 visits each quarter ordinarily occur, and there have been 90,000 video visits, I infer in the Covid period of March to August 2020 inclusive, and because of the difficulty of coping fully with the unforeseen circumstances of the viral disease, there is a likelihood that contact has decreased. To the extent that offenders have been able to access an audio-visual link visit, I accept that it is of diminished quality and value compared to an in person visit.

64. In addition to social visits, visits from legal counsel have “dramatically reduced” and that “Except for exceptional circumstances all face to face visits to prisons by Legal have been suspended.”[30]

    30. Affidavit of Jeremy Tucker, 1/9/20, Annexure A at [28].

65. In my view, the changed circumstances that effectively prevent any in person social contact with family visitors and legal advisors is an additional hardship arising from the sentence of imprisonment and operates as a mitigating influence on the term of the sentence imposed. [31]

    31. R v Mostafa Dib [2020] NSWDC 145 at [154]-[173].

66. Nevertheless, this factor should not be overstated or extrapolated given the fluid nature of the distancing restrictions and the current cautious confidence in NSW as to control of the pandemic and the concomitant gradual relaxation of emergency restrictions on social movement. [32]

    32. Moodie v R [2020] NSWCCA 160 at [144], Scott v R [2020] NSWCCA 81, McKinnon v R [2020] NSWCCA 106 at [32], Smith v R [2020] NSWCCA 181 at [82]-[82].

L. [Redacted]

67. [Redacted]

M. Comparative sentences

68. I have been referred to and considered a number of asserted comparative sentences supplied by the Crown and for each of the offenders. Each has some features of similarity and difference.

69. Mr Charbel’s counsel put particular weight on R v Zeng [2008] NSWCCA 183, where a larger multiple of a commercial quantity of drugs was involved. Mr Zeng apparently unwittingly picked up, transported and allowed the consignment to be stored in his garage, only became aware of the drugs once the unpacking commenced, and was offered $10,000 for his role. After a plea of not guilty and a conviction at trial, he received a 10-year sentence with a 6-year non-parole period.

70. Queen’s Counsel for Mr Rixon referred to Taumoepeau v R, Siaki v R [2020] NSWCCA 200, which involved a similar quantity of cocaine secreted in an individual machine.

71. I was favoured with summaries and analyses of the various cases, both by the Crown and by the various counsel. I have considered the sentences, features and principles of those decisions, and the matters that seem to me to be of significance to the offenders here have been identified in this judgment.

72. I also take into account that this is the first period of imprisonment for each offender, a matter that supports a lower non-parole period.

73. Taking all these matters into account, I am of the view that ignoring the discount, Mr Razzaghipour’s conduct warrants a head sentence of 14 years, that after a 30% discount I allow, he should be sentenced to a period of imprisonment of 9 years and 10 months, with a non-parole period of 5 years and 10 months.

74. I would, without allowing the discount, sentence Mr Rixon to a period of imprisonment of 11 years. With the 25% discount allowed for his early guilty plea, he should be sentenced to a period of imprisonment of 8 years and 3 months, with a non-parole period of 4 years and 11 months.

75. On the same basis, Mr Charbel’s head sentence without deductions should be 8 years’ imprisonment, and with the 25% discount he should be sentenced to a period of imprisonment of 6 years, with a non-parole period of 3 years and 7 months.

N. Orders

1. Alisina Razzaghipour, you are convicted of attempt to possess an unlawfully imported border controlled drug, namely cocaine, of a commercial quantity, namely 41.5434 kgs pure, and sentenced to a period of imprisonment of 9 years and 10 months to date from 25 July 2019, expiring 24 May 2029, with a minimum term or non-parole period of 5 years and 10 months expiring 24 May 2025.

2. Christopher Rixon, you are convicted of attempt to possess an unlawfully imported border controlled drug, namely cocaine, of a commercial quantity, namely 41.5434 kgs pure, and sentenced to a period of imprisonment of 8 years and 3 months to date from 25 July 2019, expiring 24 October 2027, with a non-parole period of 4 years and 11 months expiring 24 June 2024.

3. Maroun Charbel, you are convicted of aid and abet an attempt to possess an unlawfully imported border controlled drug, namely cocaine, of a commercial quantity, namely 41.5434 kgs pure, and sentenced to a period of imprisonment of 6 years to date from 25 July 2019, expiring 24 July 2025, with a non-parole period of 3 years and 7 months expiring on 24 February 2023.

4. Exhibits to be returned following expiration of the appeal period.

5. Confirm the existing non-publication and suppression order made 3 September 2020.

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Endnotes

Amendments

26 May 2021 - Representation on cover page - counsel for the Crown added and solicitors for the Crown amended.

Decision last updated: 26 May 2021