R v Tolutau - [2020] NSWDC 369

District Court

New South Wales

Medium Neutral Citation: R v Tolutau [2020] NSWDC 369
Hearing dates: 11 June 2020
Date of orders: 19 June 2020
Decision date: 19 June 2020
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Sentence of imprisonment of 9 years with a non-parole period of 6 years

Catchwords:
CRIME — Drug offences — Commonwealth offences
CRIME — Drug offences — Commonwealth offences — Import/Export border-controlled prohibited plant or drug
SENTENCING — Federal offenders — Relevant considerations
SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law

Legislation Cited:
Crimes Act1914
Crimes (Sentencing Procedure)Act
Criminal Code 1995
Evidence Act1995

Cases Cited:
KlomfarvR [2019] NSWCCA 61
R v DW [2012] NSWCCA 66
RvOlbrich [1999] HCA 54
R v Qutami [2001] NWSCCA 353
Regina v Elfar [2003] NSWCCA 358

Category: Sentence
Parties: Regina (Crown)
Uinisitoni Sesili Tolutau (Offender)
Representation:
Ms H Sewell (Commonwealth DPP)
Mr T Edwards (Counsel for the Offender)
Ms V Sathanapally (Commonwealth DPP)
Ms J Fahd (Offender) (Just Defence Lawyers)

File Number(s): 2019/00073471

EX TEMPORE REVISED JUDGEMENT

Introduction

These are the sentence proceedings for Uinisitoni Sesili Tolutau. He is before the Court charged with an offence contrary to s 307.1(1) Criminal Code 1995 (Cth) the particulars of which are set forth in an amended court attendance notice included as document one in the Crown bundle. I shall quote from that document:

“Import commercial quantity of border controlled drug between 11.20am and 9.40pm on 06/03/2019 at Mascot, did import a substance, a substance being a border controlled drug, namely methamphetamine, and the quantity imported being a commercial quantity, contrary to subsection 307.1(1) of the Criminal Code (Cth).”

The Maximum Penalty

The maximum penalty to which the offender is exposed is imprisonment for life and a fine represented by 7,500 penalty units. There were no offences to be brought to account in the determination of sentence and there are no related matters that require my consideration.

The Plea of Guilty

He was committed for sentence on 6 November 2019 in the Central Local Court and has thereby facilitated the course of justice, a matter to be brought to account as required by s 16A(2)(g) Crimes Act 1914 (Cth).
Notwithstanding the submission by the Crown that this plea should be seen to be a recognition of the inevitable in the face of an overwhelming Crown case, I do propose to allow a discount for the utilitarian value of the plea and in accordance with authority in the Court of Criminal Appeal in this State which is to the effect that it is desirable to specifically quantify the discount; it shall be 25%.
The plea of guilty is to be taken into account in respect of more than utility of course. It is also a part of the evidence which the offender can rely upon to reveal his contrition and remorse which must be synthesised in the factual matrix that will inform a sentence to be imposed before the application of the discount is identified, bearing in mind that care must be taken not to double count the benefit he has derived from taking the course that he has in these proceedings.
The extent to which he has facilitated the processes is limited to his acknowledgment of guilt and the description of the participation offered to the Court by way of the psychologist’s report and his letter. There might have been exploited the opportunity to provide greater assistance in the circumstances of this case but he could not ever be compelled to do so and he does not suffer any burden by choosing the course that he has, not exposing the identities of others that were also involved in what is organised criminal activity.

The Facts

The facts upon which sentence is to be determined are as follow. The offender was apprehended in the course of an investigation given the name “Operation Berdi” which was targeting his activities and those of his co‑offender Paul Silao.
About 10.46am on 6 March 2019 Air Canada flight AC33 arrived at Sydney Kingsford Smith Airport. About 10.54am the offender as a baggage handler for DMATA, an airport services provider operating at the airport, attended the belt loader parked at the rear of the aircraft, driving a tow tug with a trailer. He began to unload baggage from the aircraft onto the trailer and shortly afterwards in the course if this activity took possession of a red backpack and a green backpack which he then placed in the passenger side foot well of the tow tug.
He then drove away from that point with the two backpacks in the tow tug leaving the trailer behind. He entered an area which was not a place that he would go to in the course of his duties.
About 11.15am he arrived at the Jetstar Sydney Kingsford Smith Airport domestic terminal in the tow tug and removed both backpacks from the passenger side foot well and placed them onto the Jetstar baggage carousel number 6. He then returned to the tow tug and left that terminal to return to the international terminal.
About 11.15am his co‑offender Silao attended the arrival hall at Sydney Kingsford Smith Airport domestic terminal number 2 and took possession of both backpacks from the Jetstar baggage carousel number 6. These he placed onto a baggage trolley and then attempted to leave the domestic terminal but was intercepted and arrested by members of the Australian Federal Police, with the two backpacks in his possession.
Inside of the backpacks was approximately 35 kilograms of white crystallised substance later confirmed to be methamphetamine. Scientific analysis of the substance established that the purity of the methamphetamine was between 79.7% and 80% and based upon that analysis the pure weight of the drug was calculated to be 28.57 kilograms, a not insubstantial amount in the circumstances. It is that pure quantity which is to be brought to current account for the purposes of the determination of the sentence.
Before 6 March 2019 there was what I would describe as a practice run. The Crown has provided the particulars of this event. One might be suspicious that this was an earlier occasion when the same exercise was performed with the same goal but I could not be satisfied beyond reasonable doubt that it was so. The Crown does not present the information upon that basis but for the more limited purpose of establishing that there was a practice run upon which the offender engaged on 11 February 2019.
Air Canada flight AC33 for that date arrived from Vancouver at the Sydney Kingsford Smith Airport about 10am. About 10.09am the offender attended the DMATA belt loader and parked at the rear of the aircraft in a tow tug. He collected a black coloured bag from the rear of the aircraft. Between 10am and 10.53am closed circuit television captured the offender driving a tow tug from the international terminal to the domestic terminal area with the black bag in the foot well.
About 11.08am closed circuit television captured the offender handing the black bag to a person with the name Shivmeel Dass, an employee of Jetstar, who immediately placed the bag onto the Jetstar baggage carousel number 6 for passenger collection. Shortly after a closed circuit television captured an individual known as William Leota who picked up the black bag. He is Silao’s cousin.
On 28 February 2019 a flight booking on Virgin Flight VA27 was made with Virgin Airlines in Silao’s name, the original flight booking. This flight was scheduled to depart from Melbourne at 9am on 4 March 2019 for travel to Sydney. On 2 March 2019 the original flight booking was re‑scheduled so that Silao would depart Melbourne at 9am on 5 March 2019 to travel to Sydney.
On the evening of 3 March 2019 the offender was rostered to cover a shift at Sydney Kingsford Airport International commencing at 3am on 4 March 2019. On 4 March 2019 he did not attend to the shift but on the evening of that day, 4 March 2019, he was rostered to cover a shift commencing at 3am on 5 March 2019. On 4 March 2019 Silao’s flight booking was re‑scheduled again. His new flight was scheduled to depart Melbourne at 9am on 6 March 2019. On 5 March 2019 the offender did not attend his shift. On the evening of 5 March 2019 arrangements were made for the offender to cover a shift commencing at 3am on 6 March 2019.
Thereafter the facts of the offence of 6 March 2019 which I earlier summarised are described in greater detail.
He commenced his shift for DMATA and was allocated as a runner. About 9am Silao departed Melbourne on Virgin Flight VA27 and travelled to Sydney. About 10.46am the Canada Flight AC33 arrived from Vancouver. About 10.54am the offender attended the DMATA belt loader at the rear of the Canadian aircraft with a tow tug and an attached trailer. Shortly after he met with DMATA employee Edward Baker at the belt loader and together they began to unload items from the Canadian aircraft onto the trailer attached to the tow tug. There are images included in the summary of facts depicting this activity.
About 10.56am the offender and Baker jointly took hold of a red backpack and checked the tag attached to the bag. About 10.57am the offender took possession of the red backpack and placed it in the passenger side foot well of the tow tug. A short time later they took possession of a green backpack and the offender then placed it on top of the red backpack in the passenger side foot well of the tow tug.
About 10.57am the offender entered the driver’s seat of the tow tug and left the Canadian aircraft with the backpacks and proceeded to the domestic terminal. The trailer that had been attached was left behind. As part of the offender’s responsibilities as baggage handler and runner he was required to move cargo and luggage from international flights to Customs clearance at Sydney Kingsford Smith Airport international for processing prior to passengers collecting their items. The direct movement of luggage from the Sydney Kingsford Smith Airport international terminal to the Sydney Kingsford Smith Airport domestic terminal does not form part of DMATA’s contracted scope of works with the airport. A separate service provider employed by the domestic airport is contracted to collect the items from international Customs clearance to convey them to the domestic baggage carousels.
About 11.15am the offender arrived at Jetstar Sydney Kingsford Smith Airport domestic terminal 2 in a tow tug and removed the backpacks, placed them onto the Jetstar baggage carousel numbered 6 and then returned to the tow tug and returned to the international airport. Shortly afterward Silao claimed the backpacks from the baggage carousel. There are images and these activities included at that page of the agreed facts. The backpacks were placed onto a baggage trolley by Silao. He then attempted to leave the airport and as I noted earlier he was intercepted and arrested and the drugs as described were found and analysed with the results I announced.
Located on Silao at the time of his arrest were the following: a Samsung mobile phone, an Optus mobile phone, a black coloured Samsung encrypted ciphr mobile telephone with an M2M Solutions sim card, a passport in his name, and a wallet with no contents.
About 11.30am the offender attempted to leave the international airport but was unable to do so because his aviation identity security card had been revoked. I understand the implication to be that steps were taken to de‑activate it remotely so he could not use it.
About 11.33am the offender left the air side of Sydney Kingsford Smith Airport with another DMATA employee, Matthew McGrath, who used his aviation identity security card to leave the air side of the airport. About 11.35am, the offender was arrested by the Australian Federal Police. Located in his possession were an Optus mobile phone, an Apple mobile phone, a black coloured Samsung encrypted ciphr mobile telephone with an M2M Solutions sim card, an Air Canada “rush” baggage tag number VO418, a JQ506 baggage tag in the name of “LEOTA 4 December 2018” and car keys for a Range Rover. He was given the opportunity to be interviewed but declined.
The Crown submitted to me that it is appropriate to find that the first delivery of one backpack should be found to have been a practice run. This finding was opposed on behalf of the offender. There was discussion as to the basis upon which I could come to that conclusion and I agreed with the proposition that I could not find that it was a practice run as part of the enterprise upon which the offender was engaged unless I was satisfied beyond reasonable doubt that that was the case.
This finding, which I make in those terms, includes the consideration of principles for which s 98 Evidence Act1995 provides. I am of the view that the evidence of these two events is admissible to prove that the offender engaged upon the first delivery as he did, having regard to the similarities of the two events and the circumstances in which they occurred.
I am satisfied that by way of the agreed statement of facts, which has been embraced by the offender, the Crown gave appropriate notice of its intention to assert this proposition, and I am satisfied that the direct evidence upon which the Crown relies for the inference proposed has significant probative value. I am also satisfied upon consideration of s 101 Evidence Act that the probative value of this evidence substantially outweighs the prejudicial effect that it obviously has upon the offender.
The facts established by the direct evidence, the basic facts from which I find this inevitable inference to arise, is that both flights AC33 were from the same location in Canada, the circumstances of the use of the tow tug by the offender were all about identical, the placement of the backpacks in each case was the same, I also bring to account the change of shifts summarised to accommodate the arrival of Silao at a time when the offender was on duty, and I see the comparison to be drawn between the phones accessed by each of Silao and the offender including the encrypted phone with the M2M application on each.

The Offender

The offender was 32 years of age at the time of the offence, living with his wife and three children in the inner western suburbs of Sydney. He is in Australia as an American citizen by the authority of a visa issued upon the relationship he has with his wife. This is described as a partner visa. He has no record of any prior convictions in Australia. He will later this year reach his 34th birthday, born in 1986.
His explanation for his participation in this misconduct comes by way of the representations attributed to him by a psychologist. He did not give evidence but he provided a very comprehensive letter expressing his contrition and remorse and explaining why he engaged upon this misbehaviour.
Evidence was called from his wife and I have other supporting documents from members of his family. Although one must be circumspect when considering representations attributed to an offender who chooses not to enter the witness box to offer the facts upon which he would rely under oath or affirmation in the face of cross‑examination to assess veracity as discussed by Smart AJ for example in Qutami [2001] NWSCCA 353[1] , upon the breadth of the material tendered and the consistency in the representations there found from the offender and those who speak on his behalf, I am satisfied that I can accept as reliable and truthful the attributions to him in the report and what he has provided by way of his document.
1. See also Regina v Elfar [2003] NSWCCA 358
The psychologist provided the report on 3 June 2020. Mr Bradley‑Jones is a psychologist from whom I have received reports on a number of occasions in my judicial life. He is generally in my assessment objective and balanced, performing the function expected of him to assist the Court and not write as an advocate on behalf of the offender for whom he has been called upon to offer an opinion. The offender admitted to the psychologist the offending and represented the police fact sheet as a relatively accurate summary of the offence. The report includes the following:

“Mr Tolutau reported that an individual had approached him at his home and asked if he wanted to make some money by completing a ‘job’ for him. At the time Mr Tolutau was experiencing financial difficulty and accepted to complete the job for the individual in exchange for $10,000.”

He is also attributed with the following:

“I am truly, honestly and deeply sorry to the community, my wife and my kids. I feel really bad for what I have done. What I have done has had a direct impact upon my children, especially my eldest son. The past 12 months has been terrible, and I realise how stupid I was and never thought of the seriousness of what I was doing.”

It will be apparent as I proceed through the balance of the material tendered in his case that this offender’s behaviour and its consequences extends not only to the punishment that he has earned for engaging upon this serious criminal behaviour but ripples beyond him impacting upon his family and extended family, all of whom have suffered punishment as a consequence of his decision to engage with these individuals who would bring this poison into the country to wreak the havoc that it does. It is never less than tragic to see what families suffer in these circumstances but as the authorities make clear their burden must be exceptional before it can impact upon the sentence to be imposed in reduction of it. That said it is appropriate to bring to account what must be impacting upon the offender through the difficulties he has created for his family as part of the punishment that he suffers whilst remaining in custody to serve the sentence which will be imposed.
There is nothing in his background to explain why he would be tempted to embark upon this behaviour other than for financial gain to improve what he perceived to be financial difficulties. They of course have been exacerbated immeasurably by reason of his present circumstances with his wife now re‑employed in another area as a consequence of his crime, earning much less but hoping to improve her position through study and to take an opportunity if it presents to work as a midwife.
His mother and father provided for him through his formative years. His father was said to be “old school” and less affectionate than his mother, but his mother and father had a loving relationship and clearly have provided for the offender and his siblings throughout their lives before they became adults and took responsibility for their own sustenance. His father employed the offender for a time after he left school completing Year 11 in the United States of America.
He had a happy childhood. He was active. He played sport including basketball, gridiron and rugby union. From the age of 12 he worked with his father who was a carpet and flooring installer. Thereafter he has been engaged in what he said was low paying work in construction, container unloading, contract labouring and baggage handling, all leading him to struggle financially throughout his adult life. His relationship with his wife is described. It is a happy marriage and she has been supportive and continues to be so.
He began using alcohol at the age of 15 and he progressed to the misuse of cannabis from the age of 16 and 17 but there is no other history of drug use. There is no prior mental history. He spoke of experiencing anxiety about 2017 over his financial difficulties and his need to provide for his family. He spoke of the financial difficulties experienced in the years prior to his offending and his emotional stress at the passing of his mother in‑law. It was in that context that he was offered what was not an insubstantial amount of money to take part in this enterprise.
His mental state was assessed using testing instruments, the particulars of which appear at the back of the report. I do not need to go through and analyse those parts of the report in any detail in light of the summary provided at 3.2. Significant aspects include the proposition that his “run of the mill existence” might be fraught with discontent and suffering, with diffuse fears, mental distractibility and fatigue, and anxiety, which ought not to be surprising according to the psychologist. It is said he was plagued by doubts, expecting the worst and repeating the undoing of opportunities to better his circumstances. He seems to create life stressors and promote the worries and anguish that he experiences. There is an intense conflict between his desire to withdraw from personal relationships and his fear of independence and a growing sense of unworthiness and despondency. I understand that to be unrelated to his relationship with his wife and family but to be an emotion in other contexts.

He would like to depend upon his friends and family but has learnt to anticipate disillusionment and discouragement from the relationships. He has a deflated sense of self‑worth and his expectations of personal failure and social humiliation limit any effort that he might make to become autonomous or to overcome his depressive feelings. He might experience anxiety and dejection dispersed occasionally with petulant, erratic, passive‑aggressive acts and criticism of others for their lack of support. This continues with reference to suspiciousness regarding motives of others and his tendency to misconstrue innocuous events as signifying duplicity and conspiratorial intent. He has hyper‑alertness to ward off anticipated deception and malice from others. The report continues:

“This may be a reflection of the custodial environment he is currently housed. ..., he maintains a fixed level of preparedness, an alert vigilance against the possibility of attack. He exhibits edgy tension, abrasive irritability, and an ever present defensive stance from which he can spring into action at the slightest offence. His state of rigid control never seems to abate and he rarely relaxes or lets down his guard.”

In paragraph 25 the following is written:

“Mr Tolutau believes that he has been betrayed or forsaken by persons whose support he had hoped to gain. His previously repressed resentments have slipped through once‑adequate controls, breaking through as irrational expressions of suspicion.”

These findings are the product of the testing instruments and their results which might involve a measure of self‑reporting in response to questions put to the offender as they are administered. It is difficult to ascertain from where these attributes are sourced within his personal life in circumstances where he has had a loving family throughout his formative years into adulthood and circumstances where he has a committed wife who in my assessment clearly loves him and to whom I understand he is also committed with love in circumstances in which they have three children growing into their critical stages of teenage years.
One might find support for them in the fact that he has been in gaol for a significant period of time.

Pre-sentence custody

In that respect I should note that upon arrest he was confined and has not been at large since the date of arrest was 6 March 2019. I have his custodial record before me but I would expect that would record a day or two later after the processing through the police custody.
The sentence I am going to impose today commences on that day.

The Offender’s Letter

The offender provided a letter extending over four pages, in close type with a small font. He expresses his shame and embarrassment in having to write the letter and his devastation coming before the Court to be sentenced for his offence. He writes of his birth in Oahu in Hawaii, being third of six children with four sisters and a younger brother. He was raised in a strict religious household, taught to respect elders, put his faith in God, respect the law and support his family. He was a good student, a good sportsman. He had lots of friends. He was part of a close‑knit church community in Hawaii. His life was good. He worked with his mum and dad on weekdays after school and weekends and school holidays in their carpeting and flooring business.
When 13 their family moved to Denver, Colorado because his father wanted to study for the ministry. That was not available to his father in Hawaii. There was some disruption to their stability and comfortable life but they adapted quickly. He completed up to Year 11 at high school in Denver again he pursued sports and continued to work with the family business.
When he had left school he continued in the family business. He found that physically exhausting working 12 hour days laying carpet and carrying rolls of flooring and underlay into homes. At this stage of life I could find that this would be an accurate description of the carpet layer’s lot having seen people engaged on this work at various homes that I have had. It is hard work.
He and his family joined the local church and integrated into the Tongan community. He met Pauline his wife at a church event. They clearly fell in love and his affection for her is obvious in this document he has written. Their relationship evolved. She became a flight attendant. She had international responsibilities between Sydney and Los Angeles and that enabled them to see other each week. They married in 2012 in Colorado and they came to Australia where he was granted a visitor’s visa.
He received a bridging visa, pending the issue of his partner visa. He was thus allowed to work. He worked for Street’s Ice Cream while she continued to fly between Sydney and Los Angeles in her work as a flight attendant. He won his position at DMATA at Sydney Kingsford Smith Airport on the air side. He writes of the shifts. He writes of the birth of his children who at the time of the letter were six, four and two. Pauline took maternity leave after each birth.
In 2016 he was guilty of infidelity. I do not rehearse this part of the document but he may be assured that I have read it and understand the impact that his behaviour must have had for his wife who, regardless, has stood by him and forgiven him and restored their marriage. He has become very close to his wife’s family. He writes of the tragedy suffered by his mother in‑law and her surrender to cancer. This led to his wife’s depression and withdrawal, and her inability to care for her children. It is hardly surprising for someone who loses a mother to whom she was close.
He asserts that he has tried to embrace his time in custody since arrest. He has not won a job but has spent time trying to better himself, eating healthily, and training. An added burden that I must bring to account is that as a result of the COVID‑19 crisis visits to Correctional Centres have been cancelled and he does not see his children or his wife or any other family members. There is good reason for these arrangements. The risk of infection from this disease is well‑known now; indeed the conduct of trials in this Court was stopped until this week, and even though we have been able to resume trials there are special arrangements in place to ensure social distancing. I am also aware of the steps taken by Corrective Services to protect staff and inmates from risk of infection and I am aware that the arrangements have been successful in keeping the disease from those environments.
I do not overlook however that should there be infection notwithstanding the significant steps taken to prevent it occurring it will be very difficult to manage the environment and there is a risk to all inmates because of the closeness of the living arrangements that are in place. Thus I bring that to account together with the denial of access to his family as part of the punishment that he is suffering.
He expresses his disgust, embarrassment and shame and regret for having engaged in this conduct. He hates what he has done to his wife and his children. He recognises that he has failed in his obligation to protect his wife and children leaving them to cope on their own in the community with his wife working day and night having to provide sufficient means to sustain herself and her children.
I accept he has contrition and remorse and even though the case he had to face was overwhelming, it does not mean that he should be denied the finding of contrition and remorse if it is available. I am satisfied that his course taken in the face of the inevitable was nonetheless informed by his recognition of his wrongdoing and his regret for it.

The Offender’s Support

His wife Pauline provided an affidavit which provides me with information regarding their life and circumstances, information regarding their children and the challenge that she faces having to explain to her children why access to their father is not available to them, and why he is where he is and where he is going to be for some little time yet. She writes regarding the passing of her mother and the impact upon her, the impact of the virus COVID‑19, and her present economic circumstances.
She was earning between $1,000 and $1,200 per week after tax as a flight attendant and she gave evidence before me that she also received a cash travel allowance when away from home. Her commitments include rent, utilities, telephone, car repayments, children’s expenses, credit card debt and food, and other general expenses, all within the range of what one might expect in day to day living in what is an expensive city.
She also has a debt to her family of $30,000 for the costs of these proceedings. The work that she now does she told me is as a “pick and pack” person which does not provide the same level of income that she once earned in the more glamorous role that she was performing. I have brought to account that in the assessment of her circumstances she could not continue in the airline industry as a result at least to some extent of the fact that her husband became a drug importer as an employee at Sydney Airport.
She is having difficulty coping with his incarceration in the circumstances described and she refers to his likely deportation from this country to the United States once he serves the custodial component of his sentence. That would seem to me to be inevitable. He is in that unique position that he has dual citizenship as I understand it, and there will not be an official at the airport or at the border to prevent his entry into that country, which is the outcome for others who are in his same position but not citizens of the United States. That is not a matter that I bring to account however. It is not relevant to the determination of sentence. It is a consequence of his wrongdoing but not one that informs the sentencing exercise.
There is an affidavit provided by the offender’s sister in‑law Meleana Tongaomevai. This corresponds to what has been said regarding the offender with regard to his background, contrition and remorse, and the impact of the offence and his custodial circumstances. I have an affidavit from Antonio Tolutau the offender’s father. He provides in detail the circumstances of the family and their life together, the impact of the arrest and the consequences and the burden that all are facing as a result. There is a reference from Paul Kelemeni the lay church leader and staff parish relations committee chairperson for the Tonga fellowship in Aurora, Colorado. He writes, aware of what has befallen the offender speaking on his behalf of qualities that he has described.

The Sentence of Paul Silao

The co‑offender Paul Silao was sentenced on 13 February 2020 by his Honour, Judge Norrish QC. A commendable course taken by his Honour is to announce at the beginning of the judgement, the sentence that was to be imposed so that the offender and his family were not burdened with having to listen to what was required of the sentencing judge to rehearse all of the material relevant to the determination of sentence before coming to the announcement of the punishment to be imposed.
I believe that is a commendable course and it is one that I have taken in the past in some cases, but when I am faced with a more complex matter such as this, against the risk that I may have not appreciated all that had been said against and on behalf of the offender, I prefer not to announce the sentence at the beginning but to take the opportunity consistent with what the former Chief Justice of the Supreme Court, Spigelman CJ, once said that it is sensible for a sentencing judge to determine what the sentence perhaps ought to be but to further reflect upon it with regard to the relevant material to ensure that is not a sentence above what should be imposed. I intend to take that course in this case.
His Honour Judge Norrish noted in the judgement that I have been provided that Mr Silao was subject to direction, that he was following instructions, that he was clearly open to detection, that there was no breach of trust or abuse of his position in taking possession of the drugs unlike the baggage handler, which must be a reference to this offender, and that, as his Honour wrote, the honesty of baggage handlers is of course a very significant matter for purposes of security and also for the purposes of ensuring that property is not illegally imported into Australia and is not distributed to others.
He then added that he could not conclude that the offender knew the precise character of the drug that was taken possession of by him or that he had precise knowledge of the quantity although he clearly had some. Photographs were taken some days before and by his brief association with the backpacks, he had a clear understanding of the dimensions of the items that he took up at the airport. He could not conclude that Silao was aware of the bags having come from Canada or from some other place overseas but could be satisfied beyond reasonable doubt that he understood the bags had been conveyed to Sydney by air transport. That of course was consistent with the role that Silao played in recovering the bags from a baggage carousel in a domestic terminal.
He had prior convictions and was in breach of conditional liberty and therefore was before the Court as a person not of prior good character but he was relatively young at the age of 23. This led to his Honour imposing a sentence of a non‑parole period of four years three months, with an overall head sentence of six years and nine months.
He was charged with an offence of possessing a substance reasonably suspected of having been lawfully imported, the quantity being a commercial quantity contrary to subs 307.8(1) Criminal Code (Cth). Although a different charge it did carry the same maximum penalty as faced by this offender.

The Offender’s Wife

I shall come to the written submissions in a moment but before I do so I will note that the offender’s wife gave evidence before me and was not cross‑examined; thus her evidence must be accepted as unchallenged. Moreover it is entirely consistent with all of the other material I have before me upon those matters that she traversed. She confirmed the truthfulness of her affidavit. She gave details of her employment as a flight attendant and income, the circumstances that pertain at the moment with the need to provide child care so that she can work, and the need to impose upon her family for the care of two of her children. One of the affidavits from her sister refers to the added burden to her family in their modest circumstances where they have to provide accommodation for two of the offender’s children.
She knew nothing of this event until after he was arrested. She said there were no trappings of wealth. They had lived in modest circumstances and followed a modest lifestyle. They were working toward achieving sufficient funds to ultimately purchase their own home.
Whatever the financial difficulties were they are not particularised in sufficient detail before me to find that they were more burdensome than one might expect. It is clear that to improve their financial circumstances and I find accordingly, that the offender embarked upon this crime surrendering to the temptation that was offered to him.

Submissions

Submissions were made thoroughly by his counsel Mr Edwards. I accept his contrition and remorse. I would not accept the proposition that the first run was not a practice run; I find there is no other inference that should be drawn from the direct evidence that sits before me. I accept the burden upon his family and I note that it was conceded that the burden was not sufficiently exceptional to of itself require mitigation of penalty. I was asked to consider imposing a sentence comparable to the sentence proposed by Judge Norrish.
It was pointed out that Silao had travelled from Sydney to commit his offence. He was burdened by an antecedent criminal history. Of course, that does not increase the proportionate sentence or the objective gravity of the offending upon which he engaged but informs the extent to which leniency might have reduced the sentence otherwise imposed and the aspect of personal deterrence and prospects of rehabilitation. His Honour, Judge Norrish, found some prospect for rehabilitation. This offender I agree has good prospects of rehabilitation. Comparable cases were brought to my attention. I shall refer to some of them in due course. I was reminded that there are no trappings of wealth and it was suggested to me that this case before me was less predominant than would be the assessment in the absence of the co‑offender; that is to say as I understood the submission, the role of the offender in conjunction with his co‑offender has a diminishing impact upon the assessment of the seriousness of his misconduct.
The comparable cases involved multiple offenders who had travelled vast distances to import the drugs they brought into this country.
The Crown in her oral submissions spoke to the breach of his responsibilities and his trust. This could not have occurred without his participation. His role was integral, dependent upon his knowledge of systems and his access to the international air side, and the domestic air side of the terminal. He abused the responsibility that was entrusted to him.
General deterrence has a significant role to play in this case. The $10,000 offered to him reflects the importance of his role and as I noted this is not an insubstantial amount of money. The Crown’s submission is that this is more serious misconduct than that of the co‑offender.

Consideration

I am required to consider the provisions in the Crimes Act 1914 (Cth). Part 1B of the Act sets out the matters that I must bring to account. The factors are non‑exhaustive when determining sentence for a federal offender. Section 16A(1) requires a sentence of severity appropriate to all the circumstances of the offence taking into account in synthesis the various matters listed in s 16A(2) so far as they are relevant and known to the Court.
With regard to the circumstances of the offence, I would like to make the following observations. This was organised criminal activity. Though the offender performed a subordinate role for a fixed sum that was anticipated, it remains that this was an enterprise appropriately described as organised crime. When assessing the seriousness of the offence, the factors to be included are the quantity of the drug, the conduct upon which the offender engaged, and the nature and extent of the enterprise. It is noted though that the quantity of the drug is not of itself determinative.
This enterprise included at the very least participants in Canada responsible for the placement of the drug into the aircraft, then this offender was responsible for removing the drug from the aircraft, to a location where he was not expected to be in the course of his duties where it was by pre‑arrangement to be collected by his co‑offender, thereafter to be distributed under whatever arrangements were in place to be exploited had the importation been successful.
The drug trade in this and other democracies impacts financially in two respects. There is first the loss to the legitimate economy of the funds used by the people using these drugs to buy them from the supplies. Then in addition to that there is the loss to the legitimate economy of the funds necessary for the investigation of serious drug crime, a prosecution of those engaged upon it and the management of those convicted of their participation in custody.
In the High Court of Australia the plurality in R v Olbrich [1999] HCA 54 at para [19] and following, wrote upon the distinction between couriers and principals the following:

“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 drugs, 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 the useful shorthand description though 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 bearing 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.

There are of course, as they 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 properly involved in the organisation. And that, in turn, might assist in identifying the nature of that offence 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 purpose such as his own use.

Whether others have stood to gain from the respondent’s conduct, it 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 useful enquiry, it was one that could not be pursued in this matter because there was no evidence about it.”

It does seem to me that these paras [19] to]21] in that judgement reflect the decision required in this Court requiring the offender to be sentenced for his role in his intermediary task of getting the drugs from the aircraft to the carousel in the domestic terminal for further delivery by those who would then make such use of the drug as they would intend, for which he was to be paid $10,000 in return for his integral role involving his breach of responsibility and trust, and the opportunity his position gave him to provide this service.
The seriousness of this misconduct is reflected in the maximum penalty provided by the parliament but of course that is reserved for a worst case example, and although this quantity of drug is significant, there are far worse cases that might be brought before a court for the determination of sentence.
The Crown when dealing with the role of the offender reminded me of what was recently said in the Court of Criminal Appeal in Klomfar v R [2019] NSWCCA 61 at paras 40 and 41. The Court observed that those who act as couriers perform an essential role in the process of organised drug trafficking which would collapse without their assistance.
He must be seen to be at or the lower end of the hierarchical structure whatever it might have been, the precise nature of which cannot be determined on the material before me, but as I said his role was integral, put by the Crown in terms of crucial and involving a measure of trust in him by those who were running the enterprise.
I am reminded by the Crown of the events proceeding 6 March 2019 and the conduct on 6 March 2019. I have already rehearsed those when dealing with the facts. All of this of course does point to his significant role. I have also noted the encrypted phone held by both he and his co‑offender. There was a measure of pre‑meditation and planning in this enterprise clearly over the period of time of the events described to 6 March 2019, the day of the offence.
I agree that this is not a case where it could be said that he had a menial role. I agree that what is said about this being a breach of trust. I note what was said about the quantity of the drug and that this was motivated by financial reward. I agree with the submission made that this falls about middle range. I would suggest that it probably falls near to middle range perhaps below it but not far from it.
General deterrence has a significant role to play I accept. I have already said I accept his contrition and remorse and applied that to my assessment of sentence together with the plea of guilty. There is a need for punishment. I have had regard to his character, antecedents, age, and his physical and mental health conditions. There is no physical or significant mental impairment identified by the psychologist in the report.
His lack of criminal antecedents is not unusual in a case such as this, the Crown submits, and indeed the opportunity that provided for him to have his employment no doubt contributed to the benefit that could be derived drawing upon him to take his role; but he is entitled to have his past brought to account to his credit in my view.
I have already commented on the application of Qutami ibid. I do not agree that there are limited prospects of rehabilitation. I am satisfied that his prospects for rehabilitation are good. I have had regard to what is likely and what is happening to his family as a result of his incarceration and the shame that his behaviour has brought.
The Crown has made submissions in terms of parity advancing the proposition that his culpability should be regarded as higher than Pau Silao in the circumstances. I agree with that. I note what is said about visa cancellation and deportation and I am reminded of comparable sentences and the need to have regard to current sentencing practices. In that respect I have samples provided by both the Crown and the defender and I have considered each of those. I do not propose to refer to each of those judgements. Each case in due course will turn upon its own facts but they are provided to ensure a measure of consistency with the sentencing practices adopted across the Commonwealth of Australia in the various courts called upon to deal with such behaviour.
The written submissions provided on behalf of the offender include reference to the facts and circumstances upon which I have already touched. The assessment of objective seriousness it is said should be placed below that asserted by the Crown. I am reminded of the weight and possible street value of the drug of which I have no evidence, for which there are many factors to be brought to account. There are submissions made with regard to the conduct being a single occasion of criminal activity and the extent of injury, loss or damage resulting from the offence. There is a submission made quite often drawing upon a decision in DW [2012] NSWCCA 66 which has recently been the subject of further comment at least as late as 2017. It was said that the extent of retribution should be reflected in the fact that there was interdiction of these drugs.
I would observe though that the interdiction of the drugs or that the drugs did not find their way into the community was only as a consequence of the interdiction of them by the police officers engaged on the investigation. Had they not been engaged on this operation the conduct of the offender would have been instrumental in releasing this poison into the community.
It is conceded that he must go to gaol. It is conceded that his conduct was vital to the enterprise but toward the lower end of the syndicate. I have already made observations about that. It is submitted that I would find a lower sentence to that imposed on Mr Silao. I do not agree with that submission. I accept the causative nature of this particular case.
I find that there is need for a longer period on parole for this offender and the correspondingly reduced period in custody. I note there must be no option but a sentence of imprisonment before I take that draconian step. The sentence will be one of more than three years and therefore he will be made subject to a non‑parole period. I do not believe there is any further material to be brought to account.

The Sentence

I shall specify the sentence of imprisonment; allowing the discount which I have identified it shall be one of 9 years including a non‑parole period of 6 years commencing on 6 March 2019; the non‑parole period shall expire on 5 March 2025 and the head sentence shall expire on 5 March 2028.
Thus the offender is convicted of the offence. I impose a non‑parole period of imprisonment to commence on 6 March 2019 of 6 years to expire on 5 March 2025 after which he shall eligible for parole of 9 years to expire on 5 March 2028.
I said that he needs a longer period on parole with a corresponding reduction in the custodial component and I am aware that there is a range of discretions available to the Court with regard to that. The State offences of course the ratio specified in s 44 Crimes (Sentencing Procedure) Act is one of 75% and 25% and traditionally the separation [for Federal sentences] has been specified within the range I have identified in this case. I adopted these periods to reflect the findings I have made to ensure adequate punishment by way of a custodial component and to provide a three year period during which if he remains in this country he will have the opportunity to pursue all that is available to him for his re‑integration back into society. I am obliged to explain the sentence to him. I will do so.
Mr Tolutau can you see and hear me?
OFFENDER: Yes your Honour.
HIS HONOUR: The sentence I have imposed is one of 9 years including a non‑parole period of 6 years. On the sentence as it stands you will eligible for your parole on 5 March 2025 and the parole will be for a period of 3 years. Do you understand that?
OFFENDER: Yes your Honour.
HIS HONOUR: Any questions I will leave you to pursue with your solicitor. I will leave the exhibits on the file for such use as the parties might require and I take it my judgement will be required by the Crown as part of their holdings and I will order that it be prepared and I will attend to that as soon as it is made available to me. Are there any other orders required Madam Crown?
SATHANAPALLY: No your Honour.
HIS HONOUR: For the offender?
FAHD: No your Honour.
HIS HONOUR: All right thank you. I shall adjourn.

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Endnote

Decision last updated: 17 July 2020

Medium Neutral Citation:	R v Tolutau [2020] NSWDC 369
Hearing dates:	11 June 2020
Date of orders:	19 June 2020
Decision date:	19 June 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Sentence of imprisonment of 9 years with a non-parole period of 6 years
Catchwords:	CRIME — Drug offences — Commonwealth offences CRIME — Drug offences — Commonwealth offences — Import/Export border-controlled prohibited plant or drug SENTENCING — Federal offenders — Relevant considerations SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law
Legislation Cited:	Crimes Act1914 Crimes (Sentencing Procedure)Act Criminal Code 1995 Evidence Act1995
Cases Cited:	KlomfarvR [2019] NSWCCA 61 R v DW [2012] NSWCCA 66 RvOlbrich [1999] HCA 54 R v Qutami [2001] NWSCCA 353 Regina v Elfar [2003] NSWCCA 358
Category:	Sentence
Parties:	Regina (Crown) Uinisitoni Sesili Tolutau (Offender)
Representation:	Ms H Sewell (Commonwealth DPP) Mr T Edwards (Counsel for the Offender) Ms V Sathanapally (Commonwealth DPP) Ms J Fahd (Offender) (Just Defence Lawyers)
File Number(s):	2019/00073471