R v Sawaya; R v Parkinson; R v Diamond

[2020] NSWDC 130

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Sawaya; R v Parkinson; R v Diamond [2020] NSWDC 130
Hearing dates:	27 February 2020
Date of orders:	17 March 2020
Decision date:	17 March 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Sawaya – sentence of imprisonment of 7 years 10 months with a non-parole period of 5 years Parkinson – sentence of imprisonment of 7 years with a non-parole period of 4 years 6 months Diamond – sentence of imprisonment of 4 years 6 months with a non-parole period of 2 years 6 months
Catchwords:	CRIME — Drug offences — Supply prohibited drug — Large commercial quantity SENTENCING — Relevant factors on sentence — Co-offenders SENTENCING — Relevant factors on sentence — Form 1 offences SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Objective seriousness SENTENCING — Relevant factors on sentence — Parole period SENTENCING — Sentencing procedure — Expert reports SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Act 1999 Customs Act 1901 Drug Misuse and Trafficking Act 1985
Cases Cited:	Attorney General’s application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 Markarian v R [2005] HCA 25 Muldrock v The Queen [2011] HCA 39 Qutami [2001] NSWCCA 353 R v Borkowski [2009] NSWCCA 102 R v Way (2004) 60 NSWLR 167 Tepania v R [2018] NSWCCA 247 The Queen v Olbrich [1999] HCA 54
Category:	Sentence
Parties:	Regina (Crown) Mark Sawaya (Offender) Robert Leslie Parkinson (Offender) Richard Anthony Diamond (Offender)
Representation:	Emma Blizard (Crown) Craig Smith SC (counsel) (Offender – Sawaya) Matthew Johnston SC (counsel) (Offender – Parkinson) Matthew Johnston SC (counsel) (Offender – Diamond)   Director of Public Prosecutions (NSW) (Crown) Senses Legal (Offender – Sawaya) McGirr Lawyers (Offender – Diamond) McGirr Lawyers (Offender – Parkinson)
File Number(s):	2017/00290733 (Sawaya); 2017/00330324 (Parkinson) & 2018/00148795 (Diamond)

REVISED JudgEment

INTRODUCTION

1. There are three offenders before me today for sentence after the presentation of the material on which the Crown relied and upon which the offenders each relied in proceedings that commenced before me in the District Court Sydney sitting at Darlinghurst.

2. The offenders are Mark Sawaya, Robert Leslie Parkinson and Richard Diamond.

MARK SAWAYA

The Plea of Guilty

3. Mark Sawaya pleaded guilty on 21 May 2019 after a trial was due to commence on 20 May 2019. All of the offenders had been committed for trial from the Local Court at Central.

4. The charge to which Sawaya pleaded guilty is expressed in the following terms, that he on 25 September 2017 at Queenscliff in the State of New South Wales did supply a prohibited drug, namely cocaine, in an amount which was not less than the large commercial quantity applicable for that prohibited drug.

5. The indictment specifies s 25(2) Drug Misuse and Trafficking Act 1985 and s 29 of the same Act and thus upon the matter proceeding to trial, if that had been the course taken, the Crown would have relied upon the deeming provision applicable as a consequence of the large commercial quantity in the possession of the offender.

6. By his plea of guilty he has admitted the element of supply and abandoned any defence that he might have otherwise wanted to raise, in terms that he had the prohibited drug for some purpose other than the purpose of supply. I would add, however, that the agreed statement of facts set forth a wealth of material upon which I would be surprised if any tribunal of fact did not come to the view that the drugs were in his possession for the purposes of supply.

The Maximum Penalty

7. The maximum penalty specified for this offence is imprisonment for life with a fine represented by 5,000 penalty units. There is a standard non-parole period for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999. The period specified is imprisonment for 15 years.

Form 1 Offences

8. The offender asks that I take into account additional offences. These are first, supply of a prohibited drug greater than the indictable quantity. The drug concerned was cocaine. The quantity was 83.1 grams. The offence is contrary to s 25(1) Drug Misuse and Trafficking Act. The maximum penalty specified is imprisonment for 15 years with a fine represented by 2,000 penalty units. This offence was on 19 July 2017.

9. The second offence he wishes to be taken into account is supply a prohibited drug greater than the indictable quantity, the weight 138.01 grams, the drug, cocaine, on 9 August 2017, again contrary to s 25(1) Drug Misuse and Trafficking Act. The same maximum penalty applies.

10. The third offence is supplying a prohibited drug in greater than the indictable quantity, 84 grams of cocaine, on 25 September 2017, again contrary to s 25(1) Drug Misuse and Trafficking Act. The same maximum penalty applies.

11. Finally, knowingly dealing with the proceeds of crime, the sum of $54,555.00 on 25 September 2017, contrary to s 193B (2) Crimes Act 1900 for which the maximum penalty is imprisonment for 15 years.

12. There is no standard non-parole period specified for any of the four offences that are to be taken into account on the Form 1.

13. The Form 1 I have is signed by the offender and on behalf of the Crown. The offender has confirmed that he wishes this Court to take into account these additional offences when sentence is determined upon the principal offence and admits that he is guilty of each of them.

ROBERT LESLIE PARKINSON

The Plea of Guilty

14. The offender, Parkinson, pleaded guilty on the same day. The indictment in his case alleges that he on 25 September 2017, at Queenscliff in the State of New South Wales, did supply a prohibited drug, namely cocaine, in an amount which was not less than the large commercial quantity applicable to that prohibited drug.

The Maximum Penalty

15. The offence is again contrary to s 25(2) Drug Misuse and Trafficking Act 1985 with the maximum penalty earlier specified. The indictment specifies s 29 of the same Act, the deeming provision. My comment made earlier in respect of the effect of the plea by the offender Sawaya applies equally here.

Form 1 Offence

16. There is one Form 1 offence he asks the Court to take into account. This is for a charge of supplying a prohibited drug greater than the indictable quantity, 138.01 grams of cocaine on 9 August 2017, contrary to s 25(1) Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is as I indicated earlier. This involved participation in the offending upon which Mr Sawaya engaged in the second additional offence he, Sawaya, asked the Court to take into account.

17. Parkinson confirmed that he wanted the additional offence taken into account and he confirmed that he is guilty of that offence.

Summary Offence

18. There is also in his case an offence before me pursuant to s 10 Drug Misuse and Trafficking Act 1985. That is an offence of possessing 2.2 grams of cocaine on 25 September 2017 at Queenscliff. He pleaded guilty to that offence before me. It is a summary offence that would have been dealt with in the Local Court but for these more serious matters. In light of the punishment that he faces for the other misconduct, as I indicated on the last occasion, it is appropriate that I convict him of this offence but apply s 10A Crimes (Sentencing Procedure) Act 1999 and I shall not impose any penalty. Thus for the offence of possess cocaine on 25 September 2017 Robert Leslie Parkinson is convicted but I impose no penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999.

RICHARD ANTHONY DIAMOND

19. Richard Anthony Diamond pleaded guilty on the same occasion. The offence specified in his indictment charges that he between 22 September 2017 and 25 September 2017 at Queenscliff in the State of New South Wales did knowingly take part in the supply of a prohibited drug, namely cocaine, in an amount which was not less than the large commercial quantity applicable to that prohibited drug. Again this is contrary to s 25(2) Drug Misuse and Trafficking Act 1985 and the Crown would have relied on s 29 of that Act, the deeming provision. The evidence though in my view would have established supply of this drug, but in any event the offender by his plea of guilty acknowledges his possession of the drug for the purposes of knowingly taking part in the supply and by pleading to the agreed of statement of facts as with the other two offenders acknowledges an active role in a step toward the provision of the drug to ultimate consumers. It is the case though that his role as charged and upon the agreed statement of facts before me is somewhat lesser than that of the other two offenders in this enterprise.

THE TIMING OF THE PLEAS OF GUILTY

20. The timing of the pleas of guilty requires an assessment of the utilitarian value of the decision made in each case. The Crown concedes that there was no Crown Prosecutor allocated to this trial on the day it was due to commence and no judge therefore was allocated to commence the hearing though that would not necessarily have prevented the trial from commencing either on the day appointed or a day shortly thereafter subject to the opportunity for a barrister to master the brief with sufficient knowledge to present the matter. That barrister would, no doubt, have faced the challenge of continuing preparation as the trial unfolded.

21. I was the list judge at Parramatta during 2019 and had there not been a plea of guilty, and had there been a judge available I would have allocated the matter for trial, and the Crown would have been required to deploy an advocate for the presentation of the matter.

22. I shall, however, allow in the case of Sawaya and Parkinson a discount approximating 12.5% for the utility of the pleas of guilty provided. The precise application of that figure results in odd days in at least two instances and I therefore have abandoned those to produce sentences expressed in years and months. I reached that decision with regard to Sawaya and Parkinson upon common law principles as expressed in various authorities including in the judgement of Howie J in R v Borkowski [2009] NSWCCA 102.

23. In the case of Diamond though there are different considerations. His plea of guilty on 21 May 2019 followed the introduction of provisions in the Crimes (Sentencing Procedure) Act briefly described as the EAGP provisions by force of which in s 25D(2)(c) the discount available to him is 5% which I have applied in his case. Once again there have been spare days resulting in the application of that discount which I have abandoned and thus the discount I have allowed him will be marginally greater than the 5%.

THE STANDARD NON-PAROLE PROVISIONS

24. It is appropriate that I comment upon the standard non-parole periods that are applicable in this case. As with the other two offenders the offence for which Diamond is prosecuted carries life imprisonment with a fine of 5,000 penalty units with a standard non-parole period of 15 years. He has no Form 1 offences.

25. The provisions introducing standard non-parole periods were the subject of the second reading speech by the Attorney General upon introduction of the legislation quoted in the decision of the Court of Criminal Appeal in R v Way (2004) 60 NSWLR 167 at para 49. As originally expressed the goals described by the Attorney were set forth in Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999. However these provisions were amended after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39.

26. The provisions now have the following effect. Section 54A (1) Crimes (Sentencing Procedure) Act 1999 provides that the standard non-parole period represents the non-parole period for an offence within the middle of the range of objective seriousness for offences included in the table to the provisions. Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence in the table taking into account only the objective factors affecting the relative seriousness of that offence. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account.

27. The Court must record its reasons for setting a non-parole period that is longer or shorter identifying each factor taken into account. That is required by force of s 54B (3).

28. The matters set out under s 21A of the Act are taken into account when relevant to the particular exercise of the sentencing discretion as aggravating or mitigating factors with the exception that where a factor listed under that provision as an aggravating factor is an essential element of the offence or is otherwise an integral characteristic of the offence before the Court it cannot be said to act in such a case as an aggravating factor: s 21A (2).

29. These provisions all remain relevant. As I noted the amendments were in response to the High Court decision in Muldrock v The Queen following which the objective seriousness of the offence is determined without reference to matters personal to the offender or class of offenders but wholly by reference to the nature of the offending. Moreover, the fixing of the non-parole period is but part of the task whereby the Court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences.

30. The Court must not embark upon an arithmetical or staged or tiered process of reasoning that must identify the full range of relevant matter bearing upon the question of the appropriate sentence and the process of intuitive synthesis discussed, for example, by McHugh J in Markarian v R [2005] HCA 25.

31. In the determination of sentence for offences for which there is specified a standard non-parole period, it and the maximum penalty are legislative guideposts for the sentencing Court along with other established sentencing practices and by reference to ss 3A, 5, 21A and 22 of the Act.

32. To these principles I add the remarks of Johnson J in Tepania v R [2018] NSWCCA 247. His Honour summarised the aforementioned provisions at paras 110 and 111 and then wrote 112:

“In sentencing for an offence (whether or not a standard non-parole period offence), a Court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always immaterial to the consideration of an appropriate sentence.”

33. [His Honour then cited various authorities including with regard to emotional stress and motive]

“113 The concept of ‘moral culpability’ was used by the sentencing judge in this case and in submissions to this Court. The term ‘moral culpability’ has been used (in a somewhat flexible way) as part of the general law of sentencing.”

34. [His Honour then referred to authorities where the term was to be found and the extent to which moral culpability might be diminished by particular factors against which one would consider an antecedent criminal history]

“114 In Muldrock v The Queen (at 140 [58]), it was observed that the applicant’s limited moral culpability may mean that retribution and denunciation did not require significant emphasis.”

35. I bring to bear all of the principles that I have sought to summarise and note that the Crown concedes that in all three instances the objective gravity is to be assessed below mid-range, whereas with more precision counsel for the offenders submitted that the objective gravity falls toward the lower end of the range.

36. I would agree with the submission made on behalf of the offender, Diamond, but with regard to Sawaya and Parkinson I am of a view that although the objective gravity in each case is below mid-range, it is nearer to mid-range than the lower end of the scale.

37. This is a matter of judgement in each case drawing together the relevant factors to which I have referred in the findings I have made in this case and which appear later in the judgement. Minds will often differ on this imprecise exercise but having considered the material tendered and the submissions made this is my view of the matter.

THE FORM 1 OFFENCES

38. With regard to the offences to be taken into account that Sawaya and Parkinson in each case have asked that I consider when I determine their sentence for the offence of supply of a large commercial of cocaine, they must be sentenced to a term of imprisonment that will provide appropriate punishment for the offence to which they have pleaded guilty but subject to the consideration that must be given to the offences on the Form 1 in each case to be taken into account.

39. I note that having availed of this arrangement the offenders have the benefit of not facing separate punishment for the additional offences. I have reviewed the principles enunciated in Attorney General’s application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518. The additional offences should impinge upon the sentence for the principal offences in which they are taken into account requiring an appropriate increase in the sentence that would otherwise be applied to the principal offences standing alone, thereby to reflect the need for greater weight to be given to the aspect of personal deterrence arising from the extent of the offender’s misconduct and the community’s entitlement to retribution for those offences: see para 42.

40. There will be greater impact upon Sawaya in light of the multiple serious offences on his Form 1.

PRE-SENTENCE CUSTODY

41. In the case of Richard Anthony Diamond he has spent two periods in custody prior to the determination of sentence. By agreement between the parties I shall commence his sentence on 23 April 2019 bringing into account his pre-sentence custody.

42. In the case of Richard Leslie Parkinson he was taken into custody on 25 September 2017 but has been in custody in respect of his prosecution from 1 November 2017. There was some confusion with regard to that in the written submissions provided on his behalf. At para 4 it is said that he was in custody in respect of this matter from his date of arrest on 25 September 2017. However at para 39 of that document this is corrected to 1 November 2017. The Crown asserts in the Crown sentence summary and the written submissions it has provided that the sentence should commence on 1 November 2017. His custodial record has him in custody from 1 November 2017 and not before. Accordingly the sentence shall commence on that date.

43. In the case of Sawaya he has been in custody since 25 September 2017 and his sentence shall commence on that date.

44. The facts are lengthy and relatively complex. Before I come to them I shall make reference to another offender connected with this offending upon which I am to determine sentence.

THE CO-OFFENDER

45. He appeared before Girdham SC DCJ. I have been provided with her judgement delivered on 16 November 2018. He was charged with supplying cocaine in amount no less than the commercial quantity prescribed for that drug. The maximum penalty specified for this offence contrary to s 25(2) Drug Misuse and Trafficking Act is 20 years imprisonment with a fine of $385,000 and a standard non-parole period of ten years.

45. The offender in that case was apprehended by the same strike force investigating the offenders presently before this Court. He pleaded guilty in the Local Court and was committed for sentence. He adhered to his plea of guilty and was therefore entitled to a discount for utility of 25%.

46. The total amount of drug supplied in the course of his offence was 417.4 grams in exchange for the sum of $113,900. There was in addition an agreement to supply 141.75 grams of cocaine for the sum of $38,000 but that was not concluded. He was thus dealt with on the basis of multiple transactions for the supply of 559.15 grams of cocaine in total for the sum of $151,900.

47. The sequence of conduct with which he was charged occurred between May 16, 2017 and August 9, 2017 on the various occasions that he met with the undercover operative with whom he had engaged. He was under surveillance at the same time as the interaction was taking place with the undercover officer. Each of the transactions is described in the judgement. Reliance was placed upon a part of the judgement from her Honour in which this offender, Barnes, was attributed with a representation that he was to - I’ll just withdraw that and go back to another point.

48. The reference to which I was alluding is at para 24 of the agreed statement of facts tendered against Sawaya where it is written that on 26 July 2017 at 10.40am Barnes messaged the UCO, “Hey, just got a message from The Driver and his wit his missis in hospital and can it be tomoz?”

49. The transaction to which that part of the facts makes reference is described in the judgement on p 2 as I understand it. It was part of the material upon which Mr Smith appearing for Sawaya urged a finding that his client was no more than a driver in a subordinate role in the hierarchy engaged upon the enterprise in which these offenders had participated. For reasons I shall come to I do not agree with that submission.

50. The matters of note in the judgement from Girdham SC DCJ included the transactions in each case, the quantity of drug provided, the amount of money that changed hands, the conduct of the transactions and the use of BlackBerry devices to allow covert communication.

51. The offender was arrested on 26 September 2017 at his address at Port Macquarie. He participated in an interview with police; he confirmed his ownership of the vehicle that he was using in the course of these various transactions. He had convictions in the Local Court of possessing prohibited drugs and for driving offences. In response, as I understand it, to a submission by the Crown that his record deprived him of leniency, her Honour rejected that notion.

52. She found a compelling subjective case and drew upon his regular use of marijuana and alcohol and cocaine which escalated after a relationship breakup and the development of a large drug debt and agreement to participate in the supply of the drug to reduce or discharge the debt. He was to receive $1,000 for each ounce he supplied which appears to have been distributed at a cost of $7,000 per ounce. His drug debt was estimated to be $20,000. He did not want to say who supplied the drug to him but he maintained according to Girdham SC DCJ that it was not his co-offenders, that is, as I understand it, these offenders before me.

53. He sold a BlackBerry device to the undercover officer for use to avoid interdiction.

54. He came from a strong and loving family. He was attributed with remorse and the Court found that his involvement was no greater than what he stated; he was described by the judge as a middle man, that he did not operate alone, and that he did not have ready access to drugs whenever the undercover officer sought them. His participation as a middle delivery driver involved demonstrated knowledge of the sale of drugs and the risk that the conduct proposed for him. There was no evidence of financial enrichment. She said there was some planning but the use of encrypted phones and SIM cards was nothing beyond what one would see in such a business as this.

55. The offending extended over three months and ultimately he was sentenced to imprisonment including a non-parole period of two years and two months from 26 September 2017 with a head sentence of three years and four months.

56. As was acknowledged by counsel appearing for these offenders the consideration of those proceedings does not enliven parity principles as such, but it is necessary to look at the prosecution of that offender to assess an appropriately proportionate sentence in each of the cases before me.

57. His role, that is Barnes, was from May 16, 2017 through to August 9, 2017. The surveillance described in the agreed statement of facts before me in respect of these offenders begins in July 2017. The agreed statement of facts for Sawaya is presented separately to an agreed statement of facts for Diamond and Parkinson. To be more precise the agreed statement of facts that I have for Sawaya includes in the heading the particulars of Parkinson and Diamond and there is reference to each of them in this document but the second document to which I am required to come when dealing with the facts relevant to the misconduct is confined generally to Parkinson and Diamond and their wrongdoing. It is going to take some little time to exhaust all of the relevant facts so that the respective roles can be understood in what I find to be a sophisticated enterprise upon which they engaged.

THE FACTS

59. The strike force that was set up to investigate the supply of prohibited drugs, specifically cocaine in Sydney’s Northern Beaches, was underway in the course of the investigation of Barnes. He was identified as a person supplying prohibited drugs to others including undercover officers and he was contacted on 9 June 2017 to arrange a meeting on 15 June 2017. That is about half way through the array of misconduct upon which he was presented.

60. The investigation revealed the existence of a Honda Jazz coloured silver with registration CTXXXX. This vehicle, it was confirmed, was used to facilitate the supply of cocaine and was for the most part left parked and unattended in Queenscliff Road, Queenscliff where it was accessed by Sawaya and Parkinson.

61. Sawaya had access to two other motor vehicles that he used. They were both silver Hyundai’s, I30s, one with a registration BTXXXX and the other registration DLXXXX. Parkinson drove a white Commodore, registration CSXXXX.

62. The surveillance undertaken by the task force included Barnes and these three offenders. There were officers recording manually what was observed including the activities of the individuals and the vehicles they were using. There were also audio and video recordings made and undercover officers were deployed.

SAWAYA’S FIRST FORM 1 OFFENCE

63. The first Form 1 in the case against Sawaya was on 19 July 2017. On the day before there was communication between the undercover officer and Barnes regarding the use of BlackBerry devices whereupon they arranged to meet at a McDonald’s store at Thornleigh the following morning. The undercover operative arranged to purchase three ounces of cocaine from Barnes for $7,800 each. Total was $25,400. The quality of the drug was represented as good and about 1.20pm on 18 July 2017 the surveillance on Barnes continued at his home address. He arrived home at 1.42pm and at 1.45pm Sawaya arrived in the Hyundai DLXXXX.

64. On 19 July 2017 at 8.49am the undercover operative pulled into the McDonald’s car park and saw Barnes’ work van. The undercover officer drove past the van and the van and Barnes followed. The undercover officer parked the vehicle and Barnes parked in front and signalled for her to enter his van. He signalled to her not to speak.

65. Whilst they were driving Barnes indicated to the officer that the three ounces of cocaine were in a backpack on the floor. She picked up the bag and took out three clear plastic bags containing white powder or rock. She counted out $23,400 and placed it into the backpack. The total of the prohibited substance was 83.1 grams of cocaine.

66. While this was occurring Sawaya entered the car park at McDonald’s in BTXXXX, the other Hyundai and parked. He entered the restaurant for a brief period before returning to the vehicle. He was captured on closed circuit TV doing so.

67. At 9.51am and thereafter following the meeting with the undercover operative Barnes entered the car park at McDonald’s. Sawaya was seen to wave in his direction. Barnes parked a few spots away from Sawaya’s vehicle. Sawaya walked over to Barnes and they shook hands and had a short conversation. They walked to the passenger side of the van away from the CCTV cameras for several minutes. The passenger door to the van was opened. Barnes rummaged for something and then closed the door and a short time later Sawaya walked back to his vehicle with his hands in his pockets. Sawaya walked back to the Hyundai BTXXXX and Barnes re-entered his van and drove away.

68. On the 24 July 2017 the UCO messaged Barnes to arrange for five ounces of cocaine for $7,600 each and they agreed to meet at the beach at 1pm on 26 July 2017. On that day at 10.40am Barnes messaged the UCO with a message to which I earlier referred saying that he’d just got a message from the driver who was with his wife in hospital asking him to delay the transaction until the following day. She cancelled the meeting and told Barnes that she had sorted something out.

69. On 26 July 2017 Sawaya and his wife were under surveillance by the task force from 6.45am to 2.48pm. He left an address at Porter Street, Ryde at 7.40am and went to Ryde Hospital. He and his wife were photographed inside the hospital which they left at 12.18pm.

SAWAYA’S SECOND FORM 1 OFFENCE

70. The second Form 1 offence, the supply of 138.01 grams of cocaine on 9 August 2017, is next discussed.

71. This occurred and throughout the period from the day before until 9 August 2017. The undercover operative and Barnes exchanged several messages using BlackBerry devices. The undercover operative and Barnes arranged to meet at the Thornleigh McDonald’s but the operative received a message from Barnes saying, “He wants to meet me at Warriewood now at 3.30. Is there no way u can come to Mona at 4.”

72. The surveillance of Sawaya commenced at 6.37am on 9 August 2017 and at the same time there was a team surveilling Barnes. At 2.48pm Sawaya drove the Hyundai, BTXXXX to Warriewood. He drove to McPherson Street and onto Boondah Road and Firetail Drive before parking back on McPherson Street outside of number XX. He then walked from XX McPherson Street and crossed Boondah Road and entered bushland on the eastern kerb until the police lost sight of him; he returned to his vehicle four minutes later.

73. Parkinson was residing at the time at XX/X Firetail Drive, Warriewood. Sawaya had visited him there in order to pick up five ounces of cocaine so that he could deliver it to Barnes for his provision to the undercover operative. No view could be taken of his conduct in attending those premises in the manner in which he did other than he was engaged on counter-surveillance to avoid detection.

74. In accordance with the aforementioned messaging from Barnes to the undercover operative, Sawaya at exactly 3.30pm entered Warriewood McDonald’s in his vehicle BTXXXX. He was captured on closed circuit TV doing so. Barnes at this time was driving a utility vehicle. This was already parked in the McDonald’s car park and was waiting on the kerb at the front of the restaurant. Sawaya pulled up to Barnes and Barnes entered Sawaya’s vehicle. Sawaya drove and exited the car park only to return a few minutes later. Barnes got out of Sawaya’s vehicle and returned to his own and drove away, as did Sawaya.

75. The undercover officer and Barnes exchanged several more messages and arranged to meet at Mona Vale at 6pm. The undercover officer and Barnes arranged for the supply of five ounces of cocaine at a cost of $7,600 per ounce. The officer parked near a small group of shops on Hilltop Parade at Avalon. At 6.05pm Barnes drove past in his work van and parked next to the officer’s car and gestured for the officer to enter his van. He then drove in and out of several streets. As this was undertaken the operative or officer opened a plastic bag from the floor and took out five clear vacuum sealed bags with white rock substance in each of them, all marked with an X. The officer counted out $38,000 and placed it into a plastic bag and put it in the centre console of the van. At 6.13pm Barnes drove back to the vicinity of the officer’s vehicle and she returned to it. The drugs were later tested and confirmed to be 138.01 grams of cocaine. The vacuum sealed plastic bags containing the cocaine were swabbed and DNA matching Parkinson was recovered. It is greater than 100 million times more likely to be that of Parkinson rather than if it originated from an unknown or unrelated individual.

The Interaction with the Honda Jazz CTXXXX

76. During the course of the investigation the police identified this vehicle as being involved and put it under surveillance. On 24 August 2017 from 12.30pm surveillance continued in the Manly area. At 1.21pm Sawaya was sighted in the Hyundai BTXXXX. He drove to Queenscliff Road at the intersection of Ridge Road arriving at 1.32pm. He left his vehicle. He went on foot to a closer vantage point to the vehicle CTXXXX parked in Queenscliff Road. At 1.40pm he was seen exiting that vehicle. As he walked away he locked it using a remote device. He re-entered the Hyundai and drove off.

77. At 12pm on 26 August 2017 surveillance commenced in the Manly area and at 12.30pm Sawaya was observed in the Hyundai BTXXXX heading east on Sydney Road toward Balgowlah. He was followed but lost. They continued surveillance at Queenscliff Road where the vehicle CTXXXX, the Honda Jazz, was parked. At 12.45pm Sawaya was observed walking north along Bridge Street. He walked to the Honda and entered the vehicle. At 12.49pm he exited the vehicle via the driver’s door, closed the door and locked the vehicle using a remote control.

78. He walked back. As he walked to the vehicle he stopped outside of XX Queenscliff Road and threw something into a bin outside of the premises. The police subsequently opened the bin and saw that it was full of bagged rubbish but there were also loose items, namely, a pair of black latex gloves. These were collected as an exhibit. They were conveyed for a forensic analysis and comparison with Sawaya’s DNA profile. A trace swab on the internal side of the fingertips to the gloves was taken and it was confirmed that Sawaya’s DNA was on the inside of the gloves.

79. At 7.30am on 29 August 2017 the police commenced surveillance in Queenscliff Road where the Honda was parked. The police were about 150 metres west of it. At 2.15pm they saw Sawaya drive up Bridge Road and park on Queenscliff Road in the Hyundai BTXXXX. He parked about 50 metres west of the Honda. He unlocked the Honda with a remote device, entered the driver’s door and remained in the vehicle for four minutes and then exited. He approached three garbage bins which were behind the vehicle. These were later searched and a pair of black latex gloves was located. These again were submitted for a forensic analysis and his DNA was found on the inside of them. He returned to the Hyundai and drove away.

80. At 12.50pm on 30 August 2017 there was surveillance of the Honda in Queenscliff Road near number XX. At 1.49pm Sawaya approached the vehicle and unlocked it remotely and entered the driver’s door. He remained in the vehicle for four minutes until 1.53pm. He then alighted and walked along Queenscliff Road to the Hyundai BTXXXX and drove away.

81. He was followed to Winbourne Road. There he exited his vehicle with a package in his hand. He was lost sight of and the police returned to Queenscliff Road. At 2.31pm Parkinson drove onto Queenscliff Road in his white Holden Commodore and parked outside of number 31 Queenscliff Road. He entered the Honda and drove it out of sight. The surveillance was terminated shortly after.

82. At 2.53pm police returned to Queenscliff and they observed that the vehicle was still not there, that is the Honda was still not there, but Parkinson’s Holden Commodore was still in its position. At 4pm police observed Parkinson driving the Honda in Queenscliff Road. He drove it and parked it directly behind the Holden Commodore. He then exited the Honda and entered his Commodore and drove away. He drove in the direction of Warriewood and was seen turning onto Firetail Drive where he lived.

83. At 6.45am on 5 September 2017 the police commenced surveillance of Sawaya’s workplace, a body and mechanical repair business as well as at Queenscliff Road where the Honda was parked outside of number XX. At 12.57pm Sawaya drove the Hyundai BTXXXX from work and arrived at Queenscliff Road at 1.42pm. He parked outside of number XX Queenscliff Road, exited his vehicle and entered the driver’s door of the Honda which was parked over the road. At 1.48pm he drove the Honda west on Pavilion Street and continued until police lost him. Three minutes later, 1.46pm (sic) he returned in the Honda and parked it outside of number XX Queenscliff Road and remained in the vehicle for about seven minutes. At 1.53pm he exited the Honda and re-entered the Hyundai and drove away.

84. At 1.40pm on 8 September 2017, surveillance was commenced of Sawaya. He drove Hyundai BTXXXX to Queenscliff Road to where the Honda was parked. At 1.50pm the vehicle was seen to be parked on Queenscliff Road at the intersection of Ridge Road. The police left the area. At 2.05pm the police returned and saw the Honda was no longer in its position but Parkinson’s Holden Commodore was parked about 50 metres away from where the Honda had been.

85. Parkinson is known to have driven to Nuco’s Smash Repairs. The vehicle, the Honda, remained at those premises, the business of the offender, Diamond. It was there until 3.35pm and then driven back to Queenscliff Road.

86. On 14 September 2017 Diamond had been and was the owner and operator of Nuco’s Smash Repairs at XX Winbourne Road, Brookvale. The business has since been sold. Opposite Nuco’s is a restaurant situated at number XX Winbourne Road. There was closed circuit television installed at those premises.

87. On 14 September 2017 surveillance was commenced from the restaurant. About 1.55pm Sawaya drove Hyundai BTXXXX east along Winbourne Road past the restaurant and continued on towards Harbord Road where the police lost sight. He turned around and about 1.57pm he drove back along Winbourne Road and stopped directly outside of Nuco’s. The police were about 15 to 20 metres away. At 1.58pm Sawaya exited his vehicle and walked down the driveway of the smash repair business. At 1.59pm he came back up the driveway with Diamond. They walked to the rear passenger side of the Hyundai where they spoke. They were captured in photographs so engaged. About 2pm they shook hands. Sawaya walked back to the vehicle and entered the driver’s seat and Diamond returned to the business.

88. On 19 September 2017 at 12.55pm police commenced surveillance at Queenscliff where the Honda was parked outside of XX Queenscliff Road. At this time Sawaya drove the Hyundai BTXXXX into Queenscliff Road and parked outside number XX, about 30 metres away.

89. At 1.05pm he was seen to drive away in the Hyundai. The police searched the garbage bins directly in front of the Honda where they found two black latex gloves on top of other rubbish. His DNA was found on the inside of the gloves.

90. At 2pm on 22 September 2017 the police commenced surveillance in Queenscliff Road where the Honda was parked about 10 to 15 metres east of the Greycliffe Street intersection. 2.05pm Sawaya drove onto Queenscliff Road in BTXXXX. He performed a U-turn and parked so that he was behind the Honda. At 2.07pm he entered the driver’s door. Police saw movement within the vehicle. He exited the vehicle at 2.10pm holding a black satchel in his left hand. He locked the Honda and walked back to the Hyundai and drove away. There are images of the offender Sawaya near to the Honda and carrying the black satchel.

76. CCTV footage was obtained from the front of the restaurant opposite Nuco’s Smash Repairs. The camera faces the front of the smash repair business. There are images depicting the premises. At 12.22pm Diamond is seen on the CCTV walking down the driveway towards the business. At 2:23:52pm Sawaya is seen walking down the driveway towards the business dressed in the same garments as seen earlier at 2.10pm. He was still holding the black bag. At 2:25:08pm, about two minutes later Sawaya walked back up the driveway from Nuco’s no longer holding the black bag.

77. The facts contain a series of images reflected in the narrative provided proximate to them. This provides that at 4:18:12pm Parkinson arrived at Nuco’s in his Holden Commodore and pulled into the driveway. At 4:18:50pm he exited the vehicle and went down the driveway where he remained at the smash repair business for about four minutes. At 4:22:09pm he walked back to his Commodore and entered his vehicle. Diamond was seen to come out from the business at 4:22:23pm, crouch down to look at the vehicle whilst Parkinson was reversing back to the street. At 4.23:20pm Parkinson reversed and drove away. He drove directly to Queenscliff Road to pick up the Honda. About 14 minutes later the Honda was seen to be driven along Winbourne Road and it pulled into Nuco’s driveway. That was at 4:37:35pm. At 4:38:31pm Parkinson exited the front driver’s seat of the Honda and walked down the driveway carrying a light coloured bag. At 4:43:10pm Parkinson returned to the Honda carrying a black bag similar to that which Sawaya took from the Honda earlier in the day. Parkinson leaned over to put the bag either on the rear or front offside seat. He then closed the door and walked back into the smash repair business.

78. At 5:49:06pm the lights to the Honda flashed indicating that the doors were unlocked and 13 seconds later Parkinson entered the driver’s seat. Parkinson sat there for about two minutes before exiting the vehicle and walking back down towards the smash repair business. At 5.51pm Parkinson walked back to the Honda with Diamond who walked Parkinson to the car, and closed the door after he had occupied the driver’s seat. Parkinson reversed the Honda and headed east on Winbourne Road at 5:51:41pm. CCTV footage from the Coles Express Service Station on the corner of Harbord Road and Winbourne Road was obtained depicting Parkinson filling the Honda at about 5.53pm.

79. Police also obtained the swipe card records and CCTV footage from Parkinson’s residence. There are CCTV cameras in the car park, lift and hallways. The building is an apartment block. On 22 September 2018 Parkinson is seen to leave his residence in the morning at 5.48am carrying a yellow esky bag around his shoulder. There is an image depicting him so. A minute later he entered the car park at his building and exited in the white Commodore.

80. There is an image of that occurring and there is also an image of him exiting the service station after he had purchased petrol. He was carrying the same yellow esky bag with which he left his unit at 5.48am that morning. He was seen filling the Honda and exiting the service station at 5.53pm.

81. In the meantime the police recommenced their surveillance at Queenscliff Road. At 7.35pm on 22 September 2017 the Honda was not parked in its usual position but in its place was Parkinson’s Holden Commodore. At 9.52am on 23 September 2017 Parkinson left his unit carrying a scrunched up Aldi brand bag and took it to the Honda. An identical Aldi branded bag was later found in the secret compartment, or one of them I should say, of the Honda filled with bags of cocaine.

82. On 23 September 2017 while the police were conducting surveillance in Queenscliff Road they noted that at 10.14am the Honda was not in the area but at 1pm it had returned to its usual spot. Parkinson returned the Honda to its usual spot and departed the area in his Commodore.

SAWAYA’S THIRD AND FOURTH FORM 1 OFFENCES AND HIS ARREST

98. The next Form 1 offence concerning Sawaya is the supply of 84 grams of cocaine found in his possession when he was arrested on 25 September 2017 and $54,555 found in his possession following upon his arrest.

99. On 22 September the police applied for and were granted a covert search warrant for the Honda Jazz. That was executed on 25 September 2017 at 2.56am at Queenscliff Road, Queenscliff. Inside the glove box of the car there was a box of black disposable latex gloves and a first aid bandage. In the centre console in front of the gear shift there was a clear water bottle with brown liquid, a torn scrunched piece of paper. On the front passenger’s foot well there was a white plastic bag. Beneath the front passenger seat there was a cardboard box containing a grey plastic bag and two clear resealable bags which were marked with permanent marker and then in the rear foot well there was a crushed V8 beer can.

100. While the police were searching they looked through the join between the rear seats and saw an Aldi branded plastic bag. They were unable to lift the rear seat in any way to access the bag. They could not see beneath the seats because there was a carpeted panel across the front. The police officers who executed the search warrant were unable to gain access to that area of the Honda Jazz which was later discovered to be a secret compartment. There were no items removed from the vehicle during the search warrant execution.

101. Before I return to the discussion of the facts I will deal with an error that I made in the course of the morning and I am grateful for the Crown for bringing it to my attention I might add.

102. I said in the course of the morning when dealing with the pleas of guilty that the offender Diamond was entitled to a discount of 5% for the plea of guilty which I had mistakenly believed was entered on the day after the trial was due to commence. I note that the Crown Sentence Summary accords that the plea of guilty was entered on 21 May 2019 in accordance with an offer from the defence made on 6 May 2019 and I had been working off that, but it appears that I had been informed that the plea was entered at an earlier point such that the earlier comment that s 25B(2)(c) Crimes (Sentencing Procedure) Act informed the discount to which the offender was entitled. The Crown corrects me to say that the plea was 14 days before the - at least the plea was indicated 14 days before the date upon which it was entered in which case he is entitled to a discount of 10% and I have brought that to bear and recalculated. He, as I indicated earlier, is governed by the provisions referred to as the EAGP provisions whereas the other two offenders were governed by Common Law principles to which I referred and I am satisfied that the discount I have identified for each of them is the appropriate one.

103. Returning now to the facts, I had reached the point where the agreed facts describe the arrest of the offender Mark Sawaya and the second search of the Honda Jazz.

104. After the first covert search was performed the vehicle was left locked and surveillance resumed at 6am on 25 September 2017.

105. About 12.39pm Sawaya drove the Hyundai BTXXXX to Queenscliff Road and parked about 15 metres away from the Honda. He thereupon entered that vehicle. At 12.44pm he exited the vehicle and was approached by police who identified themselves and told him that he was under arrest. He had items in his hand which were placed on the roof. There was a set of car keys, and black rubber gloves. These were seized as an exhibit.

106. When asked if he had anything on him he admitted having vacuum sealed packages of cocaine and a phone but said that he did not know whose phone it was. He said he did not know how much cocaine he had on him. The police located two clear plastic vacuum sealed packages with white substance inside his pockets. These were marked “CM” in black marker. A BlackBerry mobile phone was found in his shorts. Police told him that they would be searching the car and he stated there was nothing else in the car of which he knew. As I understand it the two--

107. Might just clarify with you Mr Crown? The two plastic bags of cocaine found in his possession at that time was the subject of the third supply prohibited drug charge on the Form 1, that’s correct?

108. LAWRENCE: That’s correct.

109. HIS HONOUR: The police again searched this motor vehicle and were able to force open the rear seats revealing the hidden compartment containing numerous different bags each in turn containing numerous vacuum sealed packages with a white substance.

110. Hidden in the compartment there was a cool bag, colour blue, containing two clear vacuum sealed “FoodSaver” brand bags which contained compressed white powder. These were both marked with a permanent marker. There was one green, purple and white Deliveroo branded bag containing 15 clear vacuum sealed “FoodSaver” brand bags with an amount of compressed white powder, all marked with CM in red permanent marker. There was one red Liquorland bag containing six clear vacuum sealed “FoodSaver” bags with compressed white powder all marked with S in black marker.

111. There was a black Digital branded bag with 17 clear vacuum sealed “FoodSaver” brand bags with compressed powder. All were marked with S in black marker. There was a loose clear vacuum sealed “FoodSaver” brand bag with an amount of compressed white powder that was found on the floor of the motor vehicle. There was an Aldi brand plastic bag containing 18 clear vacuum sealed “FoodSaver” brand bags.

112. They each had an amount of compressed white power and were all marked with LP in black marker. There was a Hairhouse Warehouse brand bag with 11 clear vacuum sealed “FoodSaver” bags containing an amount of compressed white power. All were marked with PR in black marker.

113. In addition there were the two clear vacuum sealed “FoodSaver” brand bags containing an amount of compressed white powder found on Sawaya. These were seized.

114. All of these items were given exhibit numbers. In total there were 72 clear vacuum sealed ““FoodSaver”” brand bags containing an amount of compressed white powder. Each of the drug exhibits was conveyed to Forensic and Analytic Science Services for testing. The total amount was 2,406.1 grams of cocaine.

115. As I understand it the 72 bags of cocaine include those that were seized after being found on Sawaya and so the - I have just quickly calculated Mr Crown the total of the individual quantities. They come to 72. The submissions as I recall them refer to the 72 being the total found in the car. I might just get you to check that while I am continuing through the balance of the document.

116. Each of these was confirmed to contain cocaine and the total weight is 2,406.1 grams according to these facts. The offender was arrested and his DNA, as I said, was available for comparison in due course.

117. Parkinson’s DNA was located on the blue cool bag, the black Digital brand bag and the Hairhouse Warehouse brand bag. Diamond’s DNA was located on the fabric handle of the black Digital brand bag, on the zipper handle and his fingerprints were located on the clear ““FoodSaver”” branded bag which had 167.4 grams of cocaine. That was inside the red Liquorland bag found in the vehicle.

118. Diamond’s DNA was also located on 24 of the clear vacuum sealed ““FoodSaver”” bags. These are then summarised.

119. In the black Digital bag containing 17 ““FoodSaver”” vacuum sealed bags with a combined total of 476.2 grams of cocaine, each were swabbed and compared against Diamond’s DNA profile. It was found on ten of the 17 bags.

120. The Deliveroo bag contained 15 clear ““FoodSaver”” vacuum sealed bags. These had a total of 630.1 grams of cocaine; each was swabbed and Diamond’s DNA profile was located on nine of the 15 bags.

121. The red Liquorland bag contained six clear ““FoodSaver”” vacuum bags with a total weight of 167.4 grams combined of cocaine. Each of the bags was swabbed and Diamond’s DNA was located on two of the six bags.

122. Upon Sawaya’s arrest two clear ““FoodSaver”” vacuum sealed bags filled with cocaine in a total weight of 84 grams was located in his pants. Diamond’s DNA was located on both of those bags.

123. The search of the vehicle on the first occasion involved the use of an expert panel beater employed by the police. He had been involved in the execution of the covert search warrant earlier. He had familiarised himself with the layout and makeup of a Honda Jazz of the same model as the vehicle that was the subject of this investigation. The vehicle in its original form had what are classed as magic seats with the capability of being pulled forward, and folded down to lay completely flat. This function is normally activated by a lever in the vehicle. The expert noticed that the rear flooring of the vehicle was a lot smaller than what he had seen in the course of his own enquiries examining that model car.

124. He attempted to activate the magic seat function but was unable to do so. He also noted that the floor space had been blocked off with a large piece of timber with matching carpet used to conceal the modification that prevented the magic seat function from being utilised. He slid his hand down between the rear seats and could feel a bag in his hands. He used a torch and could see that it was an Aldi plastic bag. He was unable to gain access so he exited the vehicle without disturbing any of the objects inside and the search warrant ceased. This description applies to the first attempt of searching the vehicle covertly.

125. After the arrest the police officer was able to closely analyse and search the vehicle. He traced wiring and a switch for the secret compartment through to the front of the vehicle. The wiring went down from the ignition power source to a switch on the air conditioner vent and then to a second switch on the hand brake console being the traction control button. When all sequences were complete, that is when the air conditioning vent was open, the hand brake pulled upwards, the traction control on and the ignition switch on, the secret compartment would be unlocked. This reflects a measure of sophistication I might say.

126. The compartment and other modifications to the vehicle were extensively installed and could have no other purpose I find than to conceal its existence. The timber had been fibre glassed into place to ensure that it did not fall apart or fail. The actuator was mounted to perform efficiently along with the carpet to conceal the compartment. The seats had been taken apart and customised to ensure the operation of the secret compartment.

127. The opinion offered by the expert police officer is that the modifications were manufactured for the purpose of creating the secret compartment within the vehicle without being readily identifiable. The rear seat modification comprised of a number of detailed components and would have taken a person with sound knowledge in the automotive industry to manufacture.

128. The prior owner of the Honda confirmed the identity of the purchaser of the vehicle from him on 26 July 2017. He confirmed that the modifications described were not present in the vehicle at the time he sold the vehicle. The name given as the purchaser is not further explained in this document but it is not a name of any of the offenders before me.

129. The Hyundai BTXXXX was searched on 26 September 2017. The same expert examined this vehicle and found a similar setup in it to that found in the Honda Jazz. Thus in this Hyundai when all of the air conditioning vents were in the closed position and a button on the remote which was attached to the car keys was pressed the panel below the passenger side airbag would move forward on a pair of electrical arms revealing a secret compartment in place of the passenger side airbag.

130. Inside of that compartment was a black plastic bag containing $49,850 in Australian currency as well as two A4 pieces of paper which were the certificates of registration in another name. This vehicle was examined forensically and Sawaya’s DNA was located on the steering wheel as well as a V bottle and a Mount Franklin water bottle in the vehicle. DNA and fingerprints from Sawaya were also located on the plastic bag which contained the money. His fingerprints were located on both pieces of A4 paper which were inside the plastic bag with the money.

131. His residence was searched. He was living with his wife at an address in Ryde. A search warrant was granted and executed there. A drug detection dog was utilised in the search and it made numerous indications throughout the premises for the presence of prohibited drugs. Although this is in the agreed statement of facts I would not place a great deal of weight on the positive indication by a drug detection dog for the purpose of determining sentence, although the indications were consistent with the conduct upon which the offender had engaged.

132. There were a set of scales located, $4,705 in currency, and an electronic money counter. This was swabbed and compared with Sawaya’s DNA profile. A trace swab from the power cord to the money counting machine recovered a mixture of DNA of which the major contributor was Sawaya and is 100 billion times more likely to originate from Sawaya than another person.

133. Parkinson’s residence was searched. He was, as I indicated, living in Warriewood. He was arrested on 25 September 2017. The agreed facts specify 2018 but this must be an error.

134. Police found in these premises an RF emitter, a ““FoodSaver”” brand vacuum sealing machine, an empty “FoodSaver” branded box, a bag containing white powdery substance, 2.2 grams, this was the cocaine the subject of the possession charge that I have already dealt with. There were digital scales, a taser, an empty “FoodSaver” branded heat-seal bag, an RF scanner/jammer with instructions, a homemade weapon which is not further described, a Sharpie permanent marker, a roll of unused “FoodSaver” branded heat seal bags and two mobile phones, one an iPhone and one a BlackBerry. They were on the offender.

135. A second search warrant was executed at Parkinson’s residence on 1 November 2017. On this occasion the clothing worn during the surveillance was seized as well as the yellow esky bag depicted in the image to which I earlier referred.

136. Diamond’s residence was searched on 11 May 2018. This was the smash repair business in Winbourne Road, Brookvale. He was cautioned and arrested for the supply of cocaine, being the drug located in the Honda Jazz to which I earlier referred. He said that he worked at the smash repair business with his wife and they did not have any other staff members. He said that some friends come to the premises for a beer or to give him a hand to lift heavy items.

137. The only item of interest that was located was a container with a small clear resealable plastic bag which had a moist crystallized substance inside it. This was sent for analysis. His two mobile phones were seized, one of them an Apple iPhone. The serial and IMEI numbers are specified in the agreed statement.

138. He participated in an electronically recorded interview. The responses are summarised at p 28 of this document. When asked whether he knew a person of the name of Mark Sawaya, he replied that he did not although he might have booked his car in or had a quote done. When asked if he knew anyone of the name Robert Parkinson he said that he thought he did a bit of work on his front bumper bar. He could not remember what that was but that Parkinson had a Commodore and the work was done in the workshop. He said it was possibly on 22 September 2017 when the police asked him about CCTV footage. He could not recall ever doing any work on the vehicle CTXXXX, the Honda Jazz.

139. I might say here that I am very suspicious of this denial of this work. It would appear he had the premises and the capacity to perform the work required to create these compartments in the vehicles but upon the material before me I could not conclude that fact beyond reasonable doubt and therefore I proceed upon the basis that his role was limited to the packaging of the drugs which in due course were stored in the Honda Jazz.

98. He was unable to recall, when the allegation was put, that Parkinson had brought the Honda Jazz to the premises on 8 September 2017. It was also put that the vehicle was taken there on 22 September 2017 but he again said he could not recall. He could not recall Parkinson bringing any vehicle other than the Holden Commodore.

99. When told of his fingerprint found on the “FoodSaver” bag containing cocaine in the red Liquorland bag, he said he could not recall handling “FoodSaver” bags. He confirmed that he did not use vacuum sealed bags at work as stated in the search warrant. He said that he does not have and has never had a heat sealing machine at his work or his home. He does not make a comment when told that his fingerprint is found on the bag containing cocaine.

100. With regard to his fingerprint being found on an envelope in the centre console of the Honda Jazz he said he had no recollection of it. He said it is possible that someone could have picked up an envelope off his desk or anything like that, “you, know”.

101. Police asked him about 14 September 2017 when Sawaya was parked in the driveway. He said that Sawaya could have come down for a quote or something but the name didn’t ring a bell. Police asked Diamond about 22 September 2017 when Sawaya was captured going to the vehicle with a black bag. He said he had no recollection of Sawaya or the bag.

102. The police spoke of 22 September 2017 when Diamond was seen walking up to the Honda Jazz and looking at the front of the vehicle with Parkinson. He said that he might have been doing a quote on some scratches or something along those lines. In relation to Parkinson he said he recognised the name because he has repaired some vehicles from Outdoor Cleaning and met Parkinson through that and he had also worked on the Commodore. These representations to the police in the course of that interview were clearly false. Of the items seized many were fingerprinted or swabbed for DNA.

103. A summary of the results for Sawaya are set forth in a table. These include the product of the examination of the Honda Jazz, the product of the examination of Hyundai BTXXXX and the search warrant of his residence.

104. There is further table of results from such examinations made in respect of Parkinson. These include items in the Honda Jazz and in Mark Sawaya’s residence.

105. There is a table setting forth the product of swabs analysis where Diamond’s DNA profile or fingerprints were located in the Honda Jazz. There were six locations in his case.

106. As I said the statement of facts for Sawaya is not entirely the same as the statement of facts prepared for Parkinson and Diamond although much of what I have read from has been replicated in that second document.

107. Before I go to that I might turn to the Crown. Mr Crown has there been a resolution of that question regarding the 72 plastic bags?

108. LAWRENCE: --70 in the hidden compartment and two on the--

109. HIS HONOUR: 70 in the vehicle and two on his person. But the total amount - does that affect the total amount then because you’ve got a global 2.4 plus kilos as I understood it drawing upon the 72 bags but it will have to something less to accommodate the 84 grams in the two bags found on his person.

110. LAWRENCE: I was trying to find further details, in fact your Honour, as well but unfortunately it doesn’t list all of the weights throughout it. I’ll have--

111. HIS HONOUR: It’s a minor discrepancy but it’s one that I need to know.

112. LAWRENCE: Certainly your Honour.

113. HIS HONOUR: And I should deal with it on the basis of there being something - because he’s answering a charge by way of the Form 1 for the 84 grams in addition to the principal offence which has the total amount.

114. LAWRENCE: Yes. Greater amount yes.

ROBERT PARKINSON AND RICHARD DIAMOND

157. HIS HONOUR: Turning to the facts for Mr Parkinson and Mr Diamond whose names appear at the top of this document, the document was required I would agree because of the less expansive range of charges that are before in respect of these two offenders.

158. First with regard to Parkinson there is the large commercial quantity supply upon which sentence is to be imposed and there is the supply of 138.01 grams which is on the Form 1.

159. With regard to Diamond there is knowingly taking part in the supply of a prohibited drug. His conduct is at a lower level reflected in the form of the charge upon which he was presented.

160. This document provides also a summary of the creation of the strike force and the participants in the enterprise that was under investigation, events on 9 August 2017 to which I earlier referred are replicated in this document including the images of the vehicles seen in the course of the surveillance, and for events on 24 August 2017 and 26 August 2017 and with regard to the interaction between the players and the Honda Jazz, and for events on 29 August 2017 and 30 August 2017 and on 5 September 2017, 8 September 2017 and 14 September 2017, and 19 September 201.

161. With regard to the offending by Diamond though, the events of 22 September 2017 are replicated but for a paragraph 98 in this document, which represents that at the premises at XX Winbourne Avenue, Brookvale where Diamond conducted his smash repair business, when the Honda Jazz was at those premises taken there by Parkinson who was surveilled at 5:51:41pm, Parkinson and Diamond loaded the vehicle with cocaine which Diamond knew was more than a kilogram.

162. The summary of facts then continues in the same terms as it appears in the earlier document.

163. With regard to 23 September 2017 - the discussion there is a replication of the earlier document and so too with the description of events surrounding the search of the Honda Jazz, the arrest of Mark Sawaya, the search of the Honda Jazz on the second occasion, the search of Sawaya’s residence, the search of Parkinson’s residence and then in relation to the search of Diamond’s residence this part of the document is a replication of what was contained in the earlier document save for the addition of para 154 and following where there is reference to Diamond’s mobile phones being seized on which there was a photograph included in this summary of facts depicting Sawaya on the right hand side of the background marked with a red circle. The image was captured on 16 July 2016 at 2.31pm.

164. Also contained on the phone was a photograph depicting a motor vehicle CAXXXX, registered in Sawaya’s name. This again is marked with a red circle. The vehicle is in the background on the image included in the facts. This image was taken on 20 January 2017 at 2.41pm. The content of the interview in which Diamond participated is replicated, with the results of the forensic analysis.

THE OFFENDER SAWAYA

165. There is a Sentence Assessment Report provided in respect of him. This informs me that he has the support of his parents, his brother and his wife. His parents are offering accommodation when he is released. His parents are pro-social and do not condone his lifestyle or his activities. His father was afflicted with a stroke in 2011 and as a consequence is in need of a high level of care, at the moment provided by his father’s wife, the offender’s mother.

166. He completed his high school years at year 12. He had stable employment until about six months before the offending. He was employed for 17 years in his uncle’s car dealership, rose to the position of manager but this business was to be sold to make way for the WestConnex development. In anticipation of that occurring the offender left that position and was unable to earn at the same level and this, it is said, contributed to his decision to involve himself in this misconduct.

167. He is attributed with a history of recreational drug use and his involvement with pro-criminal peers which reinforced his pro-criminal attitude. He is attributed with representations in the heading “Attitude” or the section headed “Attitudes” that he was only a driver. I do not accept that proposition. I shall come to the careful submissions made on his behalf by Mr Smith and address them when I come to that part of this judgement but I make clear that I do not accept that he was a mere driver acting at the behest of others.

168. He maintained that he became involved with his co-offenders because of his use of cocaine and to support his addiction and therefore began driving for them. He was stuck in the cycle of addiction and did not think about the possible consequences of his offending behaviour. The difficulty with that proposition is that I am satisfied that he engaged on careful counter-surveillance in the course of these events and made use of secret compartments which had been devised with a significant measure of sophistication. That could indicate nothing else but an appreciation of the consequences of his offending behaviour and what would happen if the police caught up with him.

169. He said that his arrest and incarceration has allowed him the opportunity to reflect on the detrimental impact that drug use has had on his life and the changes he wants to make. There is a history of substance use discussed. He attributed financial pressure that led him to using 2 to 4 grams of cocaine every two days. He is currently drug-free in custody. He indicated that due to his lack of full-time employment, escalation in drug-use and gambling, he could not sustain his lifestyle and meet his financial commitments without engaging in the supply of cocaine. That does not in my view of the matter go far in mitigating his misconduct.

170. He is assessed at a low to medium risk of reoffending. He has no relevant criminal history. He has come to significant criminal activity relatively late in life. He was born in 1982 and will this year turn 38 years of age. His only record is for driving whilst his licence was suspended, negligent driving and low range PCA. I put it entirely to one said as of no relevance to the assessment of sentence in this case.

171. He underwent drug and alcohol screening upon his admission to the custodial setting. This seems to be a document prepared upon his report in answer to enquiries made of him. He confirmed that his most frequent drug is cocaine used a week before his incarceration, used at the rate of 1 gram and used two to three days per weeks. Cannabis he used daily up to a week before with an average of 0.5 to 1 gram. There was no other drug use acknowledged in this process and there were no concerns expressed by the offender.

172. A great deal of material was tendered on his behalf. A report was provided by psychiatrist, Dr Olav Nielssen, written on 14 February 2020. The consultation was initially by telephone and then by way of good quality audio visual link. Not the ideal circumstance in which to make such an assessment but I am familiar with Dr Nielssen and the work that he performs to assist the Court in these matters and had there been any deficiency in the opportunity given to him to assess the offender I am sure he would have brought it to attention. There is nothing to indicate any such problems in his report.

173. He has recorded the offender’s representations that the offences stemmed from financial stress arising from a series of illnesses among his family, his escalation in his own use of cocaine, the loss of his job because of the acquisition of his uncle’s car yard and his inability to earn at the same level thereafter. There is reference to the stroke suffered by his father in 2011, thus there is a five year period between that and when his decision was made to leave his employment. I do not mean by that to suggest that he made the choice. The circumstances that were presented to him were such, I would expect that he had little choice but to make alternative arrangements.

174. When his father suffered a stroke he was in need of 24 hour care. His mother became the father’s full-time carer. The offender took over the mortgage. He could manage this when working. In 2014 his younger brother was found to have a form of cancer which required extensive treatment. It appears to have metastasised into his liver and spine. He was away from his work for about ten months while managed with chemotherapy. All of this added to the family’s financial burden.

175. He said that during the months he was not working regularly, his substance use increased. He was drinking, then turned to cocaine and that spiralled quickly. He said he had always dabbled in cocaine but it was never an issue until a few months before his arrest.

176. The next paragraph I will quote because it is relevant to what I will say later in this judgement. This appears at p 2.

“He said that he was able to source cocaine through connections made in the course of casual use, and understood he came to the attention of the police through the investigation of his associates. He said that he had some friends who lived on the Northern Beaches but it was not his usual area, and he barely knew his co-accused Robert Parkinson and Richard Diamond, who had the same drug supplier.

He said, ‘I would take orders and carry out what I was supposed to do....The only people I met were my co-accused....I would go where they told me to go and meet who they told me to meet.’

He said that the money did not belong to him, apart from around $4,700 at home, and he had the $49,000 in his possession because he had not delivered it. He said that he received some cash and cocaine for his role in the offences.”

177. There is discussion about his criminal history to which I have referred. Psychiatric history was analysed. There was no indication of psychiatric difficulties. He spoke of transient perceptual disturbances and persecutory beliefs after heavier drug use and then there is reference to him having had some misperception of danger which he described as severe paranoia such that he moved out of an apartment - I am not quite sure how that fits in with his domestic circumstances including life with his wife to which there is other reference.

178. He spoke of being anxious and depressed after his incarceration, his difficulty with sleeping. I would accept that he would have those difficulties. This is his only time in a custodial setting and he no doubt would find difficult experiencing the aftermath of the use of cocaine at whatever level it might have been. He has unsuccessfully sought to enrol in courses. There are limitations because of his status as a remand prisoner. There were no symptoms of a schizophrenia-like psychosis. He spoke of periods of elevated mood but no symptoms consistent with mania. His substance use is discussed including heavier drinking before his arrest associated with increased use of cocaine.

179. He reported poker machine gambling associated with his use of cocaine. There is no quantification though of any loss that he incurred in that activity or the extent to which he was putting money into poker machines. There is no real assessment made of the cost of the cocaine he was using apart from what he might have been able to access in the most general of terms in the supply that he had for these offences.

180. He is the eldest of the three siblings born to his parents who are from the north coast of Lebanon. The family have come to Australia and made their life here. There was a trip back to their homeland at one point but because of difficulty in that region they returned with some haste apparently to resume their life in Australia. There is nothing in the material before me from his formative years as described that could explain his decision to get involved in such serious criminal misconduct. He has had a good life by all accounts as a sportsman, with friends, with travel to Lebanon, Bali, Thailand and to the United States where he went for his honeymoon.

181. His wife was interviewed. She was arrested in relation to some drugs found in her possession and she was ordered to serve a sentence by way of an Intensive Corrections Order. She said that they were both using it. He was using more than she was. She is attributed with recognition of the wrongfulness involved in what she was doing. She attributed the offender with depression, remorse and a disappointment in himself.

182. Dr Nielsen diagnosed a substance use disorder in remission, a gambling disorder in remission, an anxiety disorder in remission. He draws the diagnosis of a substance use disorder from the history provided by the offender. He refers to the participation in this misconduct to fund his own drug use and to address his financial difficulties, the particulars of which are not before me. His diagnosis upon the gambling disorder is made upon his account of uncontrolled poker machine gambling while affected by cocaine. It is not further described or particularised.

183. The diagnosis of anxiety disorder was made upon his account of prominent symptoms. He is assessed with a good prospect of rehabilitation.

184. There is a document from his father’s general practitioner confirming the stroke, its sequelae and his need for physical support provided by his wife. There is a document from the general practitioner speaking of the offender’s mother and the challenges she faces now with the responsibility for her husband’s care without the assistance of the offender.

185. There is a document from a psychologist who has been providing counselling to the offender’s wife. She attended with symptoms of grief and loss, depression and anxiety after his arrest. She has had sleep difficulties and symptoms of panic and anxiety and she has moved back to live with her parents pending the determination of these proceedings and the sentence the offender must serve.

186. From the Royal Prince Alfred Hospital I have documents speaking to the cancer afflicting the offender’s brother describing the surgery that he was required to undergo. There is a character reference provided by his uncle. This tells me that the offender decided to leave the business in 2017 upon news that the business would be closed due to the compulsory acquisition by the government. As indicated he probably had little choice but to take that decision. Unsurprisingly his uncle speaks well of him. Clearly this is a close and supportive family and he describes the offender’s attitude towards his family and the assistance he has given to his grandmother, for example, when she was required to attend medical appointments and the assistance given to his mother in the full-time care of his impaired father.

187. The stress of his incarceration is noted and I would accept that there is a burden as a consequence of the offender not being available to make the contribution that he had been making in care and management of his father, but the circumstances are not so exceptional as to allow him to avoid incarceration as a consequence of this serious criminal misconduct. However, it is part of the matrix of special circumstances which I will bring to account when determining the ratio between the custodial component and the parole period.

188. There is a reference from a friend of 20 years, again speaking well of him and confirming the history of medical emergencies that have afflicted his family. There is a series of case notes, and note reports from Corrective Services confirming his efforts to gain assistance whilst in custody and his representations to the Community Corrections Officer who it appears prepared his Sentence Assessment Report ultimately.

189. This material includes contact with the offender’s mother to verify the information that was provided of the family circumstances. There are two inmate misconduct reports of little moment and I put them to one side.

190. There is a document provided by the offender outlining all of the circumstances that he would want me to consider including the financial burden, his resort to drugs apparently to cope with the stress of his life, the difficulty with his father’s management and the diagnosis of cancer made in respect of his brother. He writes that the only way he could cope he found was to turn to alcohol and shortly after cocaine because it helped him forget the issues that he was dealing with. Of course he was dealing with management issues. It was his brother and his father and his mother who had the immediate consequence of what had befallen them.

218. His education was quite dislocated in the assessment of this author. He is said to have had long-standing symptoms of depression, anxiety and low self-esteem that ultimately contributed to his drift into the pattern of self-medication with illicit drugs and his introduction to cocaine in his late 20s.

219. He represented that he had a debt of $20,000 to his supplier.

220. Psychometric testing was administered. This was a self-reporting questionnaire. He is attributed with a complex clinical and developmental history, criteria for the substance use disorder, and the confluence of issues which it is said no doubt, impacted upon his judgement further compromised by the significant debt owed to others.

221. There are aspects of the report I find helpful but I prefer what I have read from those who have had a long-standing and direct contact with the offender. I accept that he has had challenges in his formative years. I accept that his mother might not appreciate the significance of the impact upon him of the events in their lives when he was growing from his very young age into his childhood years and teenage years, but even so it does seem to me that this offender is a young man who had challenges that have stayed with him through life and yet he was able to form meaningful and positive friendships and a close relationship with his current partner, winning the support of her parents as reflected in the document they provided.

222. Lifestyle choices, perhaps, led him into the night life of which I heard and read in some of the material tendered in his case, and the attraction of alcohol and cocaine was too strong for him to resist, but it would seem that he has turned the corner and his rehabilitation is albeit complete.

223. But as with Mr Sawaya there are other considerations that need to be brought to bear when determining sentence for such serious criminal misconduct.

224. The Crown submissions with regard to this offender resonate with what was said in respect of the other offender, Sawaya. The same comments are made with regard to his misconduct. He is in a different position, of course, to the offender Sawaya because he has but one offence on the Form 1 to be brought to account corresponding to the offence on 9 August 2017 on the Form 1 for Sawaya. Thus his Form 1 will have a less significant impact upon the sentence for the principal offence.

225. He, too, is said by the Crown to be above the level of Barnes comparable with Sawaya. I would find that to be so. Both had access to the Honda Jazz used as the warehouse for these drugs. Both were involved with moving the vehicle from time to time. He, too, must suffer a sentence that does not require close comparison with that which was imposed upon Barnes.

226. His plea was also indicated on 6 May 2019 and ultimately entered on 21 May 2019. The distinctions between Barnes and this offender resonate with what was said and the comparison made with the offender Sawaya.

227. Mr Johnston of Senior Counsel provided written submissions. There was an error, as I said, in these identifying his period in custody as commencing on 25 September 2017 but I have already addressed that. Mr Johnston’s submissions provide some detail of his participation in these crimes. It is noted that his observations continued from 24 August 2017 through to his arrest on 25 September 2017.

228. He had less access, it is submitted, to the motor vehicle and the submissions summarise the occasions when he engaged upon activity including the loading of the vehicle with the cocaine ultimately found in the hidden compartment.

229. The submissions attribute to him an assisting role for the benefit of Sawaya. There is no evidence of financial enrichment. He is said to be an intermediary in the process of supply at the lower end of the range below mid-range to a significant extent. A discount of 10% is advanced; I indicated 12.5% to be appropriate.

230. Objective factors are summarised including his lack of antecedents, his presentence custody, his motivation in being involved in these crimes and his rehabilitation.

231. Mr Johnston spoke to those written submissions.

232. He reiterated his assessment of the discount that was applicable. He pointed to the limited number of offences on his Form 1. He conceded there is no direct evidence of the precise scope of this enterprise. It was submitted that there is no evidence that the money was to go back to him. There was no money found at his home. No evidence of enrichment.

233. He suggested there were different roles between Parkinson and Sawaya. There is no inference available that he had a supervising role and care was required when assessing his participation. The question of planning was discussed which is said not to be attributable to this offender.

234. There is a question, it is said, and of whether any measure of planning is to be visited upon him. His offending is at the low end of the range. He discussed parity with regard to Barnes but he in this assessment used the term “proportionality” as more appropriate, and conceded the point that s 5 Crimes (Sentencing Procedure) Act had been crossed but urged a finding in support of good prospects of rehabilitation and contrition and remorse which I am prepared to accept.

RICHARD DIAMOND

259. Mr Diamond has no relevant antecedents on his record. He is an older man born in 1966 which I think makes him 54 years of age this year. He has one item on his record from 1997, of driving dangerously. That is of no moment in the determination of this matter and I put it to one side.

260. A Sentencing Assessment Report was not immediately available for this offender and between the hearing date and today I ordered one to be provided. It is largely uncontroversial except that under the heading “Attitudes” he is attributed with having denied having knowledge of the drug supply and does not take any responsibility for his offending behaviour. That clearly is a mistake and it perhaps is explained by the nature of the charge upon which he has been presented of being knowingly concerned in the supply of this prohibited drug more than the large commercial quantity, rather than actual supply which is faced by the other offenders.

261. It is opined to me that there might have been some confusion in the mind of the author of the report. One way or another it could not be said that at this late stage the offender is denying knowledge of the drug supply and does not take any responsibility for his offending behaviour. His attitude reflected in the ERISP to which I earlier referred has been displaced by his plea of guilty and his acknowledgment of his wrong-doing.

262. He is in a somewhat different category to the other two offenders. Although I am very suspicious that he might have had some role to play in the modification of the motor vehicles I agree with the submission that is made on behalf of the offender by Mr Johnston SC that there is no evidence that he had any knowledge of the existence of the secret compartment in the motor vehicle and that I could not conclude that he was in any way instrumental in its creation. That must be so.

263. It is said that parity should be considered in this case qua Barnes but again he said it is not so much a matter of parity but a question of “proportionality” bearing in mind his limited role according to the evidence that is available.

264. Indeed Mr Johnston submitted that Mr Diamond’s role is significantly below that of Mr Barnes. On one view that might well be so. However there were differences in the activities to which Barnes pleaded guilty, the quantity of the drug concerned was significantly less, and although the misconduct upon which Diamond engaged is more confined the role could not be said to be insignificant to the extent that he should be placed at some position below the level of conduct upon which Barnes had engaged.

265. I accept in his case contrition and remorse. I accept that he has strong prospects of rehabilitation. Indeed I accept that he has been rehabilitated. Indeed he comes before the Court late in life upon such serious criminal misconduct.

266. He has the strong support of his family. His motivation for being involved in these crimes is his grave economic imperilment consequence of perhaps his age and ongoing sequelae from injuries that he has suffered leaving him unable to continue in his work as a smash repairer.

267. The Sentence Assessment Report addresses the financial instability issues, the sale of the business, the information from the rheumatologist indicating the health issues impacting upon his back, pelvis, hands and knee joints and his inability to work.

268. His decision to engage in this behaviour was clearly unwise and exposes him to incarceration which he is now experiencing late in life and for the first time leaving his family surviving without him.

269. The Crown’s written submissions in this case identify the basis of the plea as his participation with Parkinson in loading the vehicle, with that he knew was more than 1 kilogram of cocaine, although without actual knowledge of the precise amount. The Crown concedes that this falls well below middle range of objective seriousness. He had various contacts with Parkinson and Sawaya and made his business premises available for storage for part of the time and loading of the drugs into the vehicle in which where they warehoused until interdicted by the police. The extent of his involvement is reflected in the various physical exhibits, fingerprints and DNA harvested in the course of the investigation.

270. The Crown argues in this case that his participation was in an enterprise with planning that extended to attract application of s 21A(2)(n) Crimes (Sentencing Procedure) Act 1999. It also points to the sophistication surrounding the hidden compartment in the Honda Jazz. I note that the Crown’s submissions dwell upon the nature of the compartment. The submission made by Mr Johnston that there’s no evidence that he had knowledge of the existence of the secret compartment I would qualify, upon reflection, to the absence of direct knowledge, but in light of the plea of guilty to the offence and the conduct admitted it would beggar belief in my view not to conclude that he had some knowledge of the compartment into which the drugs were secreted. It does not, of course, follow that I am satisfied that he was the person responsible for the construction of that facility.

271. I have noted the written submissions by counsel limiting his participation confining it to participation in and allowing the packaging of the drugs at his work premises on 22 September 2017 in return for a modest financial reward.

272. A distinction is sought to be drawn between financial need and financial gain. He might have been motivated by his perception of financial need, but one way or another, significance of that factor is limited. Other options could have been explored including the disposal of his business which no doubt he had some emotional attachment to because he and his wife had been so engaged for some time.

273. The material tendered in his case includes a letter written by the offender acknowledging his wrong doing and which I find to be an appropriate expression of remorse and reflecting his rehabilitation. I have a document from his daughter who speaks well of him. He has provided a fine example for her according to what she writes and she is supporting him throughout this unfortunate experience.

274. I have a character reference provided by Mr Thompson who speaks of his qualities as a family man and a role model father for his daughters and the support he has given to his wife. He has been in touch with him since he has been incarcerated, attributes him with remorse and recognition of his wrong doing, and provides further material in support of the rehabilitation.

275. A Mr Wilson provides a reference of the offender’s characteristics and qualities appreciated over 40 years they have been known to each other. The offender came to live with Mr Wilson’s family when his mother passed away at the age of 16. He was seen as another son in that family. He speaks also of his relationship with his wife and the surprise at finding that he was involved in criminal misconduct such as this.

276. Mr Riley writes of the qualities and characteristics of the offender and the assistance given to him when he was headed down the wrong path, that assistance given by the offender by way of accommodation and employment. He has had contact since Mr Diamond has gone into gaol and has seen positive features in those exchanges.

277. I have a reference from a Mr Gillis who speaks in the same way. There is a report from Professor David Kandiah, Rheumatologist. He writes,

“1. Severe degenerative disc disease - symptoms had been controlled with low doses of Lyrica and Baclofen. Flared after severe injury to lower spine and pelvis after fall.

2. Multiple fractures of pelvis needing surgical repair. Has limited prolonged weight bearing because of pain. Very new problem of pain and inflammatory features at MCP joints of hands and knees likely osteoarthritis with the possible secondary crystal arthropathy or unusual features of skin thickening in hands possibly related to autoimmune disease or repetitive trauma with secondary fibrosis. Has developed Raynaud’s phenomenon in fingers.”

278. Apart from these subjective matters that speak well of the offender, his physical ailments provide further strong grounds for a finding of special circumstances.

279. There is also a report from Mr Watson-Munro, psychologist which follows the usual form that he tends to adopt in his reports.

280. His social history is quite significant including the murder of his father at the age of 54 in 1989 though he had not had contact with him for in excess of 20 years before that time. Death of his mother is discussed. She passed away from breast cancer and hence the occasion when he went to live with the other family discussed in the earlier reference.

281. This report provides a history of his education and development, some family dispute involving an inheritance which is touched upon, his complex developmental history characterised by early loss as discussed together with geographic dislocation and ongoing insecurity arising from numerous episodes of betrayal, emotional and physical abuse within the family constellation.

282. I am not so persuaded about that part of the report in light of the very positive material contained in the other documents. Thus I look upon that report with a measure of circumspection which leaves me unable to adopt all of its content but I am comfortable with finding support of the offender in the positive references written by those who have known and cared for him throughout his life as I have discussed.

283. I accept that he was a person of good character and though with challenges in his formative years was able to build his life, provide for his wife and two daughters until physical ailments led him to economic peril and the need to dispose of his business. The decision he made to participate in this activity is regrettable and he unfortunately now must pay the price.

FINDINGS

284. The trafficking in prohibited drugs upon which these offenders engaged is properly described as organised criminal activity. The prohibited drug trafficked was cocaine and in schedule 1 Drug Misuse and Trafficking Act 1985 the trafficable quantity specified for this drug is 3 grams, the small quantity 1 gram, the indictable quantity 5 grams, the commercial quantity 250 grams and the large commercial quantity 1 kilogram.

285. The provisions in the Act creating the offences of supply prohibited drug in its various forms specify the maximum punishment available to the Courts depending upon the quantity of the drug the subject of the charge. In this case the maximum penalty is imprisonment for life with a standard non-parole period specified at 15 years.

286. The cases were presented in essence upon the basis of reckless advertence with regard to the quantity of the cocaine recovered by the police from the Honda Jazz used to warehouse the product. In the cases of Sawaya and Parkinson it is upon the basis that there was significant risk or a real chance that there was more than over 1 kilogram secreted in the hidden compartment in the Honda vehicle. In the case of Diamond it is on the basis that he knew that there was more than 1 kilogram packaged for secretion in the vehicle. In each case the Crown concedes that it cannot prove beyond reasonable doubt that the offender knew that there was in the 72 plastic satchels 2,406.01 grams of cocaine, more than twice the large commercial quantity specified for this drug.

287. Cases presented in proceedings for the determination of sentence for the supply of prohibited drugs invariably include reference to the sentencing Court’s obligation when assessing the objective gravity of the offence to synthesise the various factors that will inform that assessment.

288. These include the quantity of the drug, the activities in which the offender is shown to have engaged in his or her role and to the extent that it is possible to ascertain it, the nature and extent of the enterprise in which the offender was engaged. Thus though the quantity of the drug is an important factor it is not determinative of the assessment but must be considered with the other relevant factors to be found in the evidence before the Court.

289. My comment resonates with the judgement of the plurality in The Queen v Olbrich [1999] HCA 54 at para 19 and following beneath the heading, “The distinction between couriers and principals”. This case concerned and importation of prohibited drugs. The judgement at para 19 is worth quoting:

“Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act 1901. One may be charged with importing the drugs, others may be charged with conspiracy to import prohibited imports, or being knowingly concerned in the importation of such imports.

If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another.

In that context, a distinction between ‘couriers’ and ‘principals’ may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms.

But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced.

Characterising the offender as a ‘courier’ or a ‘principal’ must not obscure the assessment of what the offender did.

20. There are, of course, cases in which only one offender is prosecuted but it is clear that the importation is part of a business venture that is organised hierarchically.

In such a case a distinction between courier and principal might be useful to indicate where an offender fitted into the hierarchy of the organisation. And that, in turn, might assist in identifying the nature of that offender’s criminality. But there is no evidence, one way or the other, to suggest that this was such a case.

There was nothing before the primary judge which revealed that the respondent was part of any business venture of that kind. All that was known was that the respondent asserted that he was to be paid $15,000 for importing the heroin. That is, the respondent asserted that the importation of such a large quantity of heroin was for his financial gain rather than for some other purpose such as his own use.

21. Whether others stood to gain from the respondent’s conduct does not, it seems to us, affect what sentence should have been passed on him. That depended on what he had done and who he was, not on what others may have hoped to gain from his activity. But even if this were thought to be a useful enquiry, it was one that could not be pursued in this matter because there was no evidence about it.”

290. It is more often than not argued, as has been in these cases, that an offender’s role is to be assessed to fall at the lower end of the range of the misconduct contemplated by the provision under which the prosecution is brought particularly when offender might be assessed to have been at the end of a series of transactions leading to the ultimate consumer of the product at which point the quantity in each transaction is most often relatively small.

291. At this level individual suppliers would be found to be at the lower end of the scale of objective seriousness for the offence of supply prohibited drug but in cases where there are multiple transactions alleged to have occurred over time the seriousness of the misconduct could be greater. If the supply is of a larger quantity of the drug or if with greater purity such that the purchaser could in turn reduce the potency and increase the bulk for on-supply the seriousness of the misconduct would be greater.

292. If the conduct is placed further back in the supply chain it is often the case that the misconduct is seen to be at a more serious level, the assessment of which will be informed by the quantities and purity of the drug in the transaction and the extent to which, without interdiction, it would be available to further marketers and their clients and whether there is capacity for further on-sale.

293. As with any enterprise, illicit or otherwise, the sourcing and distribution of product until it reaches the end consumer involves complex and detailed commercial activity and thus logistics and economics are foundational considerations if the enterprise is to succeed. Organised criminal activity delivering prohibited drugs to its ultimate market carries with it the additional need for clandestine and covert activity to defeat the efforts of law enforcement agencies deployed to the interdiction of the substances and the detection and prosecution of the participants.

294. In the present case there is ample evidence of the steps taken to mask the offender’s activities and their purposes. I take notice that cocaine is not a drug that emanates in this country. It is made from the dried leaves of the coca plant native to South America. This does not gainsay the possibility that it could be produced here from dried leaves from plants grown in Australia or from dried leaves brought into Australia but my experience in the criminal justice system informs me that cocaine is a product imported illicitly into this country.

295. I will take notice also that upon an hierarchically analysis of the drug trade, in the case of cocaine there must be those who cultivate the plants or at least harvest the leaves from them for the manufacture of cocaine and that from that point the powdered product is exported for distribution to what has become a world market.

296. For success in this country there must be a relationship between the importer into this country and the distributor or the distributor’s agent overseas and before that between the distributor and the manufacturer of the drug and the producer of the leaf.

297. In Australia the importer must have a relationship with others who distribute it further through the supply chain down to the ultimate consumer. Thus the wealth of those countries is diminished by a significant market in which ultimate consumers pay for the drug they are supplied and as one passes up the chain to the levels above the funds thus sourced concentrate into the rewards sought by those involved earlier in the distribution and before them the manufacturers and primary producers.

298. At the same time in their efforts to protect from the deleterious effects of the drug by reason of which it is included in schedule 1 to the Act the law enforcement agencies and Courts of the country expend a significant portion of the wealth of the nation in interdiction, investigation, prosecution and punishment.

299. It appears to me that when dealing with the position an offender might occupy in the supply of prohibited drugs, the approach taken has been according to a perceived or notional hierarchical structure in which there are offenders engaged in senior management roles, lesser management roles and executive functions leading to the ultimate transactions.

300. Bearing in mind what I have read from the decision in The Queen v Olbrich ibid I question whether this is valid. It is, at least, possible that these offenders or one or more of them was engaged upon this enterprise conducting a sophisticated supply of prohibited drugs with a source of the product for which they would be obliged to pay then to be sold on for profit calculated to provide an adequate return bearing in mind their investment in resources for the conduct of the enterprise and to meet the risks of detection.

301. As I quoted earlier from the report of Dr Nielsen, he wrote at p 2,

“He said that he was able to source cocaine though connections made in the course of casual use, and understood he came to the attention of police through the investigation of his associates.”

302. That passage alone is consistent with the characterisation I have sought to describe. The remainder of the passage earlier quoted is more consistent with a hierarchical structure. I do not find that the subsequent passage quoted before is credible in light of the surveillance described in the agreed statement of facts and the array of physical evidence that was discovered.

303. Rather than conducting themselves in the employ of another or others within an hierarchical structure there is, in my assessment, the equally probable inference available that they were engaged together in their own enterprise with a source of the product for the ultimate consumer. As with so many cases these offenders have chosen not to give evidence leaving the Court to reach findings as to their respective roles from objective facts, from what was said to police at the time of arrest and interview, or upon untested representations for the authors of various reports speaking to their subjective circumstances and their participation in this misconduct.

304. I note that only Diamond participated in an interview with police but his responses summarised in the agreed statement of facts could not have been truthful.

305. Submissions made on behalf of each of them were in terms that they had subordinate roles in whatever structure they joined and the pursuit of funds from this activity.

306. However, the conduct upon which Sawaya and Parkinson were detected involved unrestricted access to the Honda motor vehicle as a warehouse for the drugs from which they were brought for supply including when provided to Barnes for an undercover officer, the use of BlackBerry devices to meet the risk of interception of their communications, counter surveillance strategies employed through the periods of surveillance undertaken, and the modification of the Honda motor vehicle and a Hyundai to provide secret compartments in which in the case of the Honda drugs were secreted and in the Hyundai motor vehicle where the money was found secreted, those items stored there until needed.

307. I also find that the relevant to this assessment is the sophisticated use of the vehicle controls which unless placed in a particular configuration would not permit access to these compartments. These considerations together with the physical evidence described lead me to the view that however one might see the offenders’ roles, whether as agents or employees within an hierarchical organisation, or engaged in their own business with a source of product from which they derived profit when supplied in the market, Sawaya and Parkinson were no mere drivers operating solely at the behest of others.

308. In either case I am satisfied drawing together all of the direct evidence that is before me by way of the documents tendered that their roles were of greater significance than has been submitted, their demonstrated organisation and planning and execution of the roles extending marginally to a level that would require a finding that has aggravated the offending with access of drugs for supply and control of the funds derived.

309. Drawing all of the facts available from the direct evidence before me in combination I am satisfied that is the only rational conclusion to draw in this case. It is significant to note that the transactions involving Barnes were eight in number including one offer to supply that was not concluded. These transactions were on May 16 and 26, June 21 and 27, July 5 and 19, between July 21 and August 7 and on August 9, all in 2017. Two of these were offences in which Sawaya was charged on July 19, 2017 when surveillance provided evidence of his contact with Barnes before the supply of 83.1 grams and after the transaction (this is a Form 1 offence), and on August 9, 2017 in the supply of 138.01 grams to the undercover officer after the drugs were sourced from Parkinson who provided them to Sawaya when he went to Parkinson’s home using what must have been counter-surveillance measures.

310. He in turn delivered the drugs to Barnes who provided them to the undercover officer who paid $38,000. This is also a Form 1 offence for both of these offenders. The surveillance of these offenders according to the agreed statement of facts was from July 18, 2017 until September 25, 2017 when the arrests began.

311. There is no material before me to suggest that the surveillance detected any other person to whom anyone or other of these offenders might have been answerable. I note that in his sentence proceedings before Judge Girdham, Barnes attributed his participation to others whom he would not name but excluded these offenders. I do not bring that to account in the findings that I have made in respect of this misconduct.

312. I find that the objective seriousness of the offending upon which Sawaya and Parkinson engaged is below mid-range but not toward the low end of the range as specified in the submissions made on their behalf.

THE SENTENCES

313. I turn now to the imposition of sentence. In each case I have found special circumstances for the reasons I have articulated when I was dealing with the subjective cases.

314. In the case of Mark Sawaya I convict him of the offence of supply the large commercial quantity of the prohibited drug cocaine. I impose a sentence including a non-parole period of 5 years commencing on 25 September 2017 and expiring on 24 September 2022. I specify a further period of imprisonment to commence at the expiration of the non-parole period to expire on 24 July 2025.

315. The overall sentence, therefore, is one of 7 years and 10 months including the non-parole period of 5 years. I find special circumstances. I have applied a discount of 12.5% discarding days that resulted upon the application of that to the starting point. I have taken into account the four offences on the Form 1 and I will certify that document to confirm that I have done so.

316. In the case of Robert Leslie Parkinson he is convicted of the offence of supply the large commercial quantity of cocaine. I take into account the additional offence on the Form 1. I impose a sentence including the non-parole period of 4 years and 6 months commencing on 1 November 2017 and expiring on 30 April 2022. I impose a further period of imprisonment to expire on 31 October 2024. The sentence therefore is one of 7 years including the non-parole period of 4 years and 6 months. I will repeat the dates, 1 November 2017 to 30 April 2022 to 31 October 2024. I will certify the Form 1 confirming that I have taken the additional offence into account.

317. In the case of Richard Anthony Diamond he is convicted of the offence of being knowingly concerned in the supply of the large commercial quantity of the prohibited, cocaine. I impose a non-parole period of imprisonment of 2 years and 6 months commencing on 23 April 2019 expiring on 22 October 2021. I impose a period of imprisonment to commence at the expiration of the non-parole period to expire on 22 October 2023. The overall sentence is one of 4 and 6 month’s imprisonment including a non-parole period of 2 years and 6 months.

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Amendments

08 May 2020 - Para 293 correct typographical error in first sentence

Decision last updated: 08 May 2020