R v Waters

[2024] NSWDC 587

District Court

New South Wales

Medium Neutral Citation:	R v Waters [2024] NSWDC 587
Hearing dates:	11 December 2024
Decision date:	11 December 2024
Jurisdiction:	Criminal
Before:	NOMAN SC DCJ
Decision:	Sentence of a term of 3 years and 2 months with a non-parole period of 1 year and 9 months to commence on 22 May 2023.
Catchwords:	SENTENCING – Commonwealth offence – aid and attempt to possess an unlawfully imported border-controlled drug – commercial quantity of methamphetamine – imprisonment – complicit
Legislation Cited:	ss 16A(1), and 16A(2) Crimes Act 1914 (Cth)
Category:	Sentence
Parties:	Rex; Aaron Waters
Representation:	Counsel: Crown: J Healy Defence: J Ghabrial
File Number(s):	2023/94186

JUDGMENT

1. On 16 August 2024 I sentenced Mohamad Naboulsi and Shadi Jamal for their involvement in an offence of attempting to possess an unlawfully imported border-controlled drug, namely a commercial quantity of methamphetamine. This offender, Aaron Waters, is a co-offender in the same offending. He pleaded guilty to a different offence of aiding and attempt to possess an unlawfully imported border-controlled drug, namely a commercial quantity of methamphetamine. All three offenders were complicit on only 22 March 2023.

2. The maximum penalty for the offence is imprisonment for life and/or 7500 penalty units.

3. The general sentencing principles that I must apply are contained in Part 1B of the Crimes Act, 1914 (Cth). In determining the sentence to be passed, I must impose a sentence that is of a severity appropriate in all the circumstances of the offence: s16A(1). I must also take into account the matters listed in s16A(2).

4. The nature and circumstances of the offence are set out in the agreed facts. I propose to refer to the facts in summary although the full document has been considered. I add that the offender has provided an account in his letter and relies upon a hearsay account told to the psychologist.

5. An industrial magnet weighing over 600kg was shipped from Mexico on 24 December 2022. ABF officers examined the magnet in mid-March 2023 and located the amphetamines. The drug involved was methamphetamine. The total weight was over 59kg with a purity of 80.3%. The pure amount at about 48kg is well above the 750g threshold for commercial quantity. I do not give undue significance to the weight. After replacing the drugs with an inert substance, the drugs were transported as intended by the import consignment documentation.

6. The principal as nominated in the facts was Daniel Vescio. He has entered a plea of guilty in the Local Court and sentence is pending. Naboulsi and Jamal were involved in collecting and transporting the drugs. Each was involved in attempting to access the drugs using an angle grinder. Jamal used a phone with an encrypted messaging application.

7. This offender was involved in being proximate to the truck driven by the co-offenders. He was observed parked near the truck in the area where the first attempt was undertaken to access the drugs. This observation was made at some time close to 11.15am. Vescio followed the truck to this location. The offender remained parked about 10-20m away and it is agreed he was not in a position to observe the co-offenders or their conduct. The three co-offenders left this area and drove in the truck with Vescio in a separate car. The offender was detected following the truck. The four offenders, in three separate vehicles, attended an industrial location owned by Vescio’s grandfather and commenced the second attempt to access the drugs. They arrived in this area soon after midday. The offender parked about 25m from the truck. Two minutes after the rear of the truck was opened the offender approached. Once the door was opened police could intercept the conversation. The facts specify it cannot be proved the offender was aware of the conversation and therefore it is not replicated. It is agreed that at this point the offender first observed the consignment. It is agreed the offender was aware of a substantial risk that the consignment contained a border-controlled drug at least once he was aware that the three others were attempting to access with the angle-grinder. The facts specifically indicate it was not known at what time the offender became aware of this substantial risk. Despite becoming aware of this risk, the offender aided the other offenders by keeping look-out. He stood within about 5m of the truck. There was only 4 minutes from the time the observation was made, until the arrival of police. Vescio smashed the phone he was using. He had a further three phones.

8. The guide to drug pricing is that the range at the time was between $130,000 and $195,000 per kilogram.

9. The offender’s phone was accessed and an encrypted application located. This could not be accessed. The phone used a VPN based in Pakistan.

10. The offender’s role and knowledge are to be gleaned from the facts. Conduct attributed to him involved no more than an hour. He was proximate to where the truck first stopped and followed it to the second location. The agreed facts confirm he followed the movement of the truck and he acted as lookout once the truck stopped. There is an indication he was not in a position to make observations until shortly before his arrest and it was at least at this time that he became aware of the risk. I will have regard to the weight of the drug although I appreciate the offender was unaware of the quantity. The facts do not detail that offender was to receive any benefit for his assistance.

11. The offender also provided additional detail in his letter and to the psychologist. There are minor differences between each. These accounts refer to when it was that the offender first became aware of the relevant substantial risk.

12. His account in his letter to the court is that his knowledge was obtained during the course of his involvement only once the truck stopped. He said he was helping Vescio and he had assumed it involved unloading a truck. Once he made observations, he advanced he saw the magnet and not what it contained. His involvement therefore entailed no forethought and was of limited duration.

13. In detailing the offending to the psychologist, he set out he became involved after Vescio asked him to ‘hang out’ and then on the day he was asked to follow a truck. The offender could not articulate to the psychologist what he thought at the time. He said he wanted to have something to do and ‘[he] didn’t really think about it too much”. He said he had not asked too many questions on the day. He stated he wanted to be with his friend, so he followed a truck.

14. The Crown submitted the accounts sourced from the offender should be treated with caution as they were not sworn evidence or tested evidence. The encrypted application and the overseas based VPN on the offender’s phone are of some concern and not consistent with what would be expected of a pool cleaner. However, the offender’s role and knowledge are to be determined based upon a scrutiny of what he did and when he did it. I do not use this evidence against the offender.

15. I am hesitant to accept his account that he was following the truck with no suspicion or no knowledge. On the facts, Vescio was not in the offender’s car and during the hour or so they were not physically together. Vescio was aware that the drugs were to be extracted. He was involved with the other co-offenders to collect and extract the drugs. The offender’s account advances that he was travelling distances with the truck and with Vescio, all three of whom were planning to extract the drugs, and yet he had no knowledge and was not involved. This scenario provided for him to unwittingly observe what was occurring. This would entail Vescio taking an unnecessary risk, if the offender was not performing any meaningful role. On his account, melded with the agreed facts, he was not required to assist at the first stop, and he was not asked to assist at the second stop. He was not asked to assist with the extraction at either location. This suggests he was not needed by Vescio and yet he was specifically asked to be present. He also remained apart from Vescio for about an hour, despite his indication he wanted to spend time with him.

16. This account is inherently implausible. I am required to be satisfied of mitigating factors on the balance of probabilities. I disregard the offender’s accounts.

17. I do not accept his version as to his awareness of impropriety forming only moments before his arrest. I am satisfied beyond reasonable doubt that his awareness was evolving from when he was first asked to follow the truck. I am satisfied beyond reasonable doubt that he was acting as a look-out from at least the time outside the first stop. However, I do accept his awareness of the substantial risk of involvement in drugs was confirmed not long before his arrest.

18. The offender’s role and knowledge are to be determined based upon a scrutiny of what he did and when he did it. Having regard to the offender’s role, the duration of involvement, the type, quantity and purity of the drug, although the offence he participated in was serious, I assess his role as of limited importance.

19. The offender entered a plea of guilty in the Local Court. The plea was entered 17 months after charging. This is a lengthy period. However, as the plea was entered in the Local Court the plea is to be regarded as an early plea with a utilitarian benefit. The circumstances allow for the plea to be recognised by a reduction in the sentence of 25%. The plea was entered in the face of what may be regarded as a strong Crown case, with the offender observed trailing the truck and then being located with three co-offenders with the angle grinder and the substituted drugs.

20. Given other material in the subjective material, I determine the plea reflects more than only the recognition of the inevitable. This evidence and the circumstances of the plea reflect remorse and not a mere willingness to facilitate the course of justice. The offender has expressed remorse in his letter to the court. The expression recorded by the psychologist denotes concern about his family rather than the impact from his offending. I am nonetheless satisfied that the offender is remorseful and accepting of responsibility.

21. The offender is now aged 32. The co-offenders were both aged 23 and rehabilitation assumed a greater role for them.

22. The offender has limited criminal antecedents. His first offence was for possessing drugs in 2018. There was no conviction recorded. In 2020 he received a term of imprisonment for supplying more than the commercial quantity of a prohibited drug, supplying an indictable quantity of a prohibited drug and recklessly dealing with the proceeds of crime. He received an aggregate sentence of 3 years and 6 months imprisonment with a non-parole period of 1 year and 9 months. He was released to ‘reintegration’ on 27 January 2022. This reflects a period of only 14 months custody. His criminal history does not entitle him to leniency. I observe in his favour there are no institutional misconduct offences.

23. The offender committed the index offence 14 months after his release to parole. It is submitted on behalf of the offender that the breach of parole is not a matter the court should be concerned about given the manner in which the offence occurred. Although I accept it was not a planned breach, it does not detract from the principle that a breach of conditional liberty reflects an abuse of the freedom granted to an offender. Parole was revoked and he served the balance of parole from 22 March 2023 until 26 April 2024.

24. I am assisted by the judgment on sentence for his earlier offending. This detailed the serious offending and the offender’s subjective case. There was no disadvantage and what was indicated is the offender received a supportive homelife and displayed a work ethic after leaving school. It was said he commenced using cocaine at 25. I observe he now advances he commenced at 22. This reflects some unreliability but is of no significance. It indicates he was using drugs for longer. He was a drug user at the time of that offending and that was used in part to explain his involvement. Prior to sentence he had completed a rehabilitation program through Odyssey House. He was no longer using drugs when he committed the index offence. He suffered mental health issues that were treated prior to the index offending. I observe the sentencing judge did not accept the offender’s account of why he was involved, said to be to repay a debt. I appreciate he advanced this same account again to the current psychologist. I do not need to explore the matter however, I endorse the previous scepticism in accepting that account.

25. The offender is supported by his letter, letters from his mother and uncle and a report of Clara Fritchley, psychologist. Members of his family attended court to demonstrate that continuing support.

26. There is very little that need be recited from the psychologist’s report. Earlier issues have no continued currency.

27. I also have material supporting his obtaining of further qualifications whilst in custody. The offender is employed in custody and has successfully engaged in available education programs.

28. Additionally, material from his earlier sentence is tendered. This details his historical drug and mental health issues that informed his earlier offending and resultant sentence.

29. His mother and uncle continue to offer support. Both wrote of the offender’s positive qualities and attributes.

30. There is nothing in the evidence that warrants lessening his moral culpability.

31. I particularly note the importance of general deterrence and denunciation and the importance of reducing the level of access to illicit drugs due to the enormous damage inflicted by them upon society. I appreciate these drugs were not disseminated into the community. The submissions on behalf of the offender are that the circumstances of involvement operate to limit the role of general deterrence. I do not accept that.

32. The offender reoffended soon after release from serving a drug related sentence. The circumstances of his involvement in the index offence do not speak of relapse. It was short-lived poor judgement. I anticipate this arrest will serve to inform the exercise of judgement in the future and it will be better exercised. The offender wrote of his endeavour to better exercise judgement. However, there is still a continuing role for personal deterrence. I consider the offender to fall in the low risk of reoffending. He has placed himself in a position whereby rehabilitation has commenced. He has in place employment and accommodation upon release. I accept these are beneficial factors, although both employment and accommodation were available at the time of offending. I note the psychologist’s recommendation that he continue treatment to assist there to be no further relapses. Dr Gallate has indicated his preparedness to reengage in treatment with the offender.

33. The issue of parity arises. I am required to consider the sentences imposed on the two co-offenders. Each was charged with an attempt in contrast to this offender being charged with aiding an attempt. The same maximum penalty is provided. The objective seriousness of those offenders was greater, but not significantly so, than for this offender. The subjective cases differ. This offender is older and has more serious antecedents including for drug supply. The co-offenders were not subject to conditional liberty. The offender’s involvement was not informed by drug addiction or mental health issues.

34. I have reviewed the comparable cases schedule, the statistics and the attached case details. Both parties provided assistance on comparative cases. I have reviewed those cases. These involve offending of different objective seriousness and different subjective cases. I have reviewed these cases for the assistance gained.

35. I am required to impose a sentence that reflects the seriousness of the offending measured against the guidance provided by the maximum penalty and allowing for the amelioration as appropriate for relevant subjective factors. I am guided also by sentencing authority on the application of principle and comparative cases.

36. The offender has been on remand since balance of parole expired in late April 2024. This is a period during which he had more limited access to programs than if he had been classified. I take this into consideration in determining an appropriate sentence.

37. It is submitted on behalf of the offender that he should receive a non-custodial sentence or a sentence of less than 3 years and be released immediately. I do not accede to these submissions.

38. I am required to determine a commencement date for sentence. Although the offender was arrested on 22 March 2023 he was breached on his parole and re-entered custody to serve the balance of his parole. It is relevant that it was this offending that caused the breach. I factored this breach into my sentencing consideration and am mindful to not doubly punish. I am required to apply totality and the appropriateness of some concurrency when determining the start date. I propose to commence sentence on 22 May 2023.

39. The offender is convicted.

40. The sentence imposed is a term of 3 years and 2 months with a non-parole period of 1 year and 9 months to commence on 22 May 2023. Eligibility for release to parole arises on 21 February 2025 and the term will expire on 21 July 2026.

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Decision last updated: 12 December 2024