R v Xavier, R v Wilson

[2012] NSWDC 302

District Court

New South Wales

Medium Neutral Citation:	R v Xavier, R v Wilson [2012] NSWDC 302
Hearing dates:	14 October 2011, 17 February 2012
Decision date:	01 January 2012
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	WILSON: In respect of the offence of dealing in the proceeds of crime - sentenced to a term of imprisonment of 5 years commencing 20 March 2008 and expiring 19 March 2013. In respect of the offence of conspiracy to import a commercial quantity of a Border Controlled Drug, heroin - sentenced to a term of imprisonment of 20 years commencing 3 years after the commencement of the last imposed sentence. It will commence on 20 March 2011 and expire on 19 March 2031. The non‑parole period is 15 years, commencing on 20 March 2008 and will expire on 19 March 2023, on which date, subject to s 19AL of the Crimes Act 1914, you are to be released on parole. Accordingly, the total term of imprisonment of 23 years commences on 20 March 2008 and will expire on 19 March 2031. The non-parole period of 15 years expires on 19 March 2023, which is the date you will first be eligible to be released on parole. Should you on release breach the conditions of your parole you will be returned to imprisonment  XAVIER: In respect of the offence of dealing in the proceeds of crime you are sentenced to a term of imprisonment of 5 years commencing 3 May 2008 and expiring 2 May 2013. s16BA offence taken into account. In respect of the offence of conspiracy to import a commercial quantity of a Border Controlled Drug, heroin, you are sentenced to a term of imprisonment of 20 years commencing 3 years after the commencement of the last imposed sentence. It will commence on 3 May 2011 and expire on 2 May 2031. The non‑parole period is 15 years, commencing on 3 May 2008 and will expire on 2 May 2023, on which date, subject to s 19AL of the Crimes Act 1914, you are to be released on parole. Accordingly, the total term of imprisonment of 23 years commences on 3 May 2008 and will expire on 2 May 2031. The non-parole period of 15 years expires on 2 May 2023, which is the date you will first be eligible to be released on parole. Should you on release breach the conditions of your parole you will be returned to imprisonment
Catchwords:	CRIMINAL – sentence - conspire to import commercial quantity of border controlled drug, heroin - deal with money the proceeds of crime – joint police operation involving the NSW Police Force, the NSW Crime Commission, and the Australian Federal Police investigation of criminal activity of a syndicate involved in importing heroin into Australia from Indonesia - role of offenders – subjective matters
Legislation Cited:	Crimes Act (1914) Criminal Code Act 1995
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Deakin v The Queen [1984] HCA 31 Hili v The Queen; Jones v The Queen (2010) HCA 45 Power v The Queen [1974] HCA 26
Category:	Sentence
Parties:	Regina John Michael Wilson Jose Manuel Xavier
Representation:	Counsel: Mr R Sutherland SC Mr S Bouveng Mr Bernard Brassil Mr A Radojev   Solicitors: Ms J Petersen Ms S Sadiq
File Number(s):	Wilson: 2008/110792, 2009/32398, 2009/93667, 2009/100618; Xavier: 2008/30829

Judgment

1. HIS HONOUR: JOHN WILSON and JOSE XAVIER stood trial commencing with a jury on 7 April 2011 for an offence that they:

Between about 1 February 2008 and 21 March 2008 at Sydney, in the State of NSW and elsewhere, did conspire with each other and Gregory William Jones and David Wren and divers others, to import a substance, the substance being a border controlled drug, namely heroin, and the quantity being a commercial quantity.

2. The jury returned verdicts of guilty on 9 August 2011.

3. The offence is contrary to s 11.5 and s 307.1(1) of the Criminal Code 1995. The maximum penalty provided is imprisonment for life and/or a fine of $880,000.

4. Since the conclusion of the trial John WILSON has entered a plea of guilty to a further offence that he:

Between about 10 March 2008 and about 20 March 2008 at Sydney, in the State of NSW did deal with money the value of which was greater than $100,000 and that he believed to be the proceeds of crime.

5. The offence is contrary to s 400.4(1) of the Criminal Code 1995. The maximum penalty provided is imprisonment for 20 years and/or a fine of $132,000.

6. Since the conclusion of the trial Jose Xavier has entered a plea of guilty to a further offence that he:

Between about 1 June 2006 and about 28 February 2007 at Sydney, in the State of NSW did deal with money the value of which was greater than $100,000 and that he believed to be the proceeds of crime.

7. The offence is contrary to s 400.4(1) of the Criminal Code 1995. The maximum penalty provided is imprisonment for 20 years and/or a fine of $132,000.

8. When sentencing in respect of that offence the Court has been requested by Jose Xavier to take into account a further offence contrary to s 400.4(1) of the Criminal Code, pursuant to s 16BA of the Crimes Act 1914, that he:

Between about 10 March 2008 and about 11 March 2008 at Sydney, in the State of NSW did deal with money the value of which was greater than $100,000 and that he believed to be the proceeds of crime.

9. John Wilson and Jose Xavier appear today to be sentenced in respect of those offences.

10. The Crown in conducting the trial for conspiracy relied, inter alia, on evidence of the commission of the substantive offence of importation, which included evidence of the dealing in the proceeds of crime by John WILSON between 10 March and 20 March 2008 and by Jose XAVIER between 10 and 11 March 2008.

THE EVIDENCE

11. A joint police operation involving the New South Wales Police Force, the New South Wales Crime Commission, and the Australian Federal Police investigated the criminal activity of a syndicate involved in importing heroin into Australia from Indonesia in early 2008.

12. The investigation ultimately revealed an importation of approximately 28 kg of heroin into Australia secreted within items of furniture exported from Indonesia in a shipping container that was intercepted by the authorities in Sydney on 26 February 2008.

13. The shipping container had departed Indonesia on 2 February 2008 containing a consignment of 'wooden furniture'. The shipping manifest listed the consignee of this container as:

The Costless Group

2A Stonehouse Avenue,

Camden Park, South Australia, Australia.

14. The shipping manifest also listed the consignor as:

CV Citra Buana

JL Arya Mukti Timur VI/297

Semarang Jawa Tengah

Indonesia

15. During the period after the consignment was dispatched from Indonesia on 13 February 2008 and while it was on the high seas, a number of members of the syndicate were identified meeting in Sydney. Various conversations were monitored by listening device in hotel rooms and some telephone calls were intercepted.

16. A principal in the enterprise was identified as Jose Manuel Xavier, nicknamed "Oily", ("Xavier"). He is an Australian citizen and was then residing in Indonesia. He operated an Indonesian company called “Classic Furniture” (Muebele Clasik). Xavier was the organizer of the consignment of furniture with the concealed heroin sent by “CV Citra Buana” from Indonesia to Australia. He was also directly involved in earlier consignments of furniture from Indonesia to the same address in Adelaide in July 2007 and December 2007. References to those earlier consignments and substantial sums of money in recorded conversations indicate that at least one of those earlier consignments was likely to have contained heroin. It is appropriate to make clear that the offenders are to be sentenced for the offences now before the Court rather than any possible previous importation.

17. On 16 February 2008 Xavier arrived in Sydney on a flight from Thailand. A second member of the syndicate, John Wilson, also arrived in Sydney on the same date but on a different flight from Thailand. John Wilson is an Australian citizen, then ordinarily resident in The Netherlands, but who was also resident from time to time in Indonesia and also involved in the past in an Indonesian furniture business. He was, together with Xavier, a principal in the enterprise. While each was equally responsible for the enterprise, John Wilson was particularly concerned with the arrangements to receive the container of furniture into Australia, and the extraction of the individual items of furniture containing the heroin and their transfer to NSW where the heroin would be removed from the furniture and distributed.

18. David Wilson, the younger brother of John Wilson, flew to Sydney from Adelaide on 20 February 2008. David Wilson operated the company in Adelaide to which all three consignments of furniture from Indonesia were addressed, including the subject consignment that was at that time still en route.

19. This company operated from 2A Stonehouse Avenue, Camden Park, South Australia, a shop front and a small storehouse connected to a furniture shop called “Costless Furniture”. “The Costless Group” owned the business, a company established in mid 2006 by David Wilson and his brother, John Wilson, as directors and also shareholders.

20. On 21 February 2008 all three men, John and David Wilson and Jose Xavier, met in Room 1159 at the Star City Casino apartments in Sydney. Police who had installed listening device equipment inside the room monitored the conversations.

21. David Wilson and Xavier, in the temporary absence of John Wilson, discussed the importation from Indonesia and in particular the poor quality of the furniture being shipped in the container. In summary, David Wilson was complaining about how little he had received for previous importations and that John Wilson had ignored his demands for greater reward for his participation and that he would not participate in receiving the container then already on the way in the absence of a significantly greater reward. He also complained about a lack of criminal professionalism and discussed ways to create the appearance of a legitimate importation business to better disguise the drug importations in the future. This would include importing Indonesian furniture of a saleable quality rather than what he had received before, which he referred to as good only for burning. He was concerned that his reward had not been commensurate with the risk of a lengthy period of imprisonment:

22. [Note: All conversations set out herein are in a summary format. They are not necessarily precise quotes and intervening conversation is frequently omitted to condense and convey the gist of the conversation.]

David Wilson: "What I said to John man, is, please listen. What I said to John before this container came - I don't give a fuck the very first container. I don't give a fuck how much you pay me I’m not interested … for you this is my price. The way I look at it, I’m not going away for a 100 fucken grand, I've got my boy [son] … I don't give a fuck if I’m poor for the next 20 to 30 years. You understand. That's how I look at it. Okay, If I go away for 15 years and youse pay me a 100 grand that’s not fucken nearly 5 grand a year mate."

…

Xavier: "Listen if you fucken want to work with us … interest …fucken covered… I’ve got every fucken avenue fucken covered, everybody is fucken covered … tomorrow … every … fucken miracle"

David Wilson: "I think up to now we have been very lucky …

…

… the first one’s gone. I got 55 thousand, I said to John I want my 250. I got 55 thousand. You know that … …

…

… the second one … the last one before yours. I said I want my fucken 2 hundred and 50. I don’t give a fuck right? I done it all. Jose I lose my son, fifteen fucking years …

…

Do you understand why I am so fucken agro …

…

I want my fucken 250 mate … "

Later:

David Wilson: "...you can't keep sending me shit, I can't sell, I can't sell … I wanna go to the auctions mate. I’m gunna fucking burn it … when I burn it people are gunna look. You understand the position …I need something to sell. Saleable. "

Xavier: "My gang is serious … Listen, fucking nothing like hit and miss. Fucken do it, do it properly. I made 3 fuck sorry 4,5 million dollars in the past. Now the thing is … my mate … getting fucking containers in the fucking … 2 or 3 … Have you fucken done it before.”

David Wilson: "Yes. You got to show it on paper"

23. Later that same evening, Xavier told David Wilson about his ‘coded’ telephone system by using pay phones.

Xavier: "I've known his …phone number …Its fucken coded …I've got my servant to cover my fucking ass. Since I have been here I have rung four fucking times on my coded system. You know where from? Fucking pay phones. That's how we, my mate and I suppose to ".

24. On 23 February 2008 John Wilson and Xavier discussed the anticipated arrival of the shipment:

John Wilson: "If that's the case and he tells us today I might slip down to Adelaide for a couple of days and come back on Wednesday

Xavier: "It arrives on Thursday. 25th Monday. 28th is Thurs. Friday we talk to the guy. See what he says today.

25. A few hours later Xavier answered a mobile phone and then handed it to John Wilson saying: "he doesn't leave till Monday … I'll chat to you tomorrow night"

26. On 24 February 2008 police intercepted Xavier’s telephone while he was having a conversation with Gregory Jones ("Jones"), an Australian citizen resident in Thailand. Jones was also a principal in respect of the enterprise but his role was to arrange for the receipt in NSW of the furniture by his associate, David Wren, and the removal from it of the heroin and distribution thereafter. He was also responsible for obtaining payment at various stages during the importation for the ongoing enterprise and the distribution of those funds to the participants.

27. Jones was at the time in Thailand, and the two men discussed what Xavier had been doing and also referred to the meeting with John and David Wilson. During this conversation Xavier complained that 'he' had done very little so far and was now going to leave. He then said that he wanted to meet with 'his' brother Dave. Later during the conversation Jones asked whether, "the brother has come up and seen you" to which Xavier replied that he had and that he was supposed to meet up with him that day. Jones then replied, "yeah, yeah so he's in the picture'" and Xavier replied, "yep, yep he is definitely but I still got to give him all the docs. I still gotta print out what um, Dave Smith's got off me yeah" [The documentation relevant to the importation and Customs to be supplied to David Wilson]. Later during the conversation Xavier and Jones discussed a person known as 'the Ant' [David Wren] and when he was expected to work. Xavier said that he would try and get an exact date "but it'll be there very soon. In the next few days." Jones then said that he would let 'the Ant' know when to ring 'brother' [David Wilson].

28. Later on 24 February 2008, John Wilson telephoned David Wilson and informed David Wilson that Xavier needed to have a chat with David Wilson on his own.

29. On 25 February 2008 Xavier told John Wilson that he "had to take cash back too". Xavier showed John Wilson a bag he had purchased and where to hide money in it. Xavier then told John Wilson, "Greg [Jones] is coming back on Thursday".

30. Later, David Wilson joined John Wilson and Xavier in Room 1159 Star City Casino. David indicated that he wanted to sort things out. John Wilson took David Wilson to task for going behind his back and talking to Xavier about the enterprise and in particular David’s complaint about the inadequacy of his reward.

John Wilson said to David Wilson: "You should not of asked him about anything to do with us. I'm letting you know we discussed this down in Adelaide and I told you what the going rates are and then you asked him the same thing...I brought you into this not him."

Xavier: "I didn't say to send it, they just told me get it out as quickly as possible …work well with the same team and do it properly"

31. Later that day, David Wilson returned to Adelaide.

32. Also on 25 February 2008 David Wren flew from Thailand to Australia and then to Tasmania to visit relatives. Wren is a United Kingdom citizen with Permanent Resident status in Australia.

33. On 26 February 2008, police and Customs in Sydney removed from the vessel the shipping container in which the furniture containing the heroin was located. A total of 69 individual blocks of heroin was hidden inside three chests of drawers. Each block weighed approximately 350 grams in size and was wrapped in black tape. The total weight of the heroin was approximately 28 kilograms. This was later analyzed and found to contain 9.098 kilograms of pure heroin (diacetylmorphine). A commercial quantity is 1.5 kilograms or more. In addition the substance was found to contain 2.659 kilograms of pure rnonoacetylmorphine, a metabolite of heroin. It should be noted that although the amount of pure monoacetylmorphine is in itself more than a commercial quantity of that Border Controlled Drug (1.5 kilograms or more) the indictment particularized only the heroin.

34. The heroin was substituted and, in due course, the container was conveyed overland to Adelaide to rejoin the balance of the shipboard containers intended for discharge in that port.

35. On 26 February 2008 Xavier had a telephone conversation with John Wilson. During the conversation Xavier asked when 'Dave' is going back and John Wilson replied that he had already gone. Xavier then said that he would try and give 'him' [David Wilson] a call tomorrow to "just touch base".

36. Later on 26 February 2008 Xavier departed Australia for Denpasar, Indonesia.

37. On 27 February 2008 Jones telephoned from Thailand and spoke with Wren on his mobile phone. Jones said that he would see Wren on Friday. Wren then asked, "You haven't heard anything yet?" and Jones replied, “No I'll just see you Friday".

38. Wren's role was to deal directly with the specific items of furniture in which the heroin had been secreted and facilitate its on supply. It was proposed that the overall consignment of furniture would be received by David Wilson's company in Adelaide and unpacked. Once the three items of furniture (chests of drawers) containing heroin were identified, they would be extracted from the consignment and dispatched by road transport from Adelaide to Wollongong. The transportation was to be organized by Wren, who had also organized a storage unit in Wollongong. His function was then to organize the distribution of the heroin at the direction of Jones.

39. On 28 February 2008 Jones flew from Thailand to Australia. In an intercepted telephone conversation between Jones and Xavier they discussed whether or not there was any work to be done by Wren at that stage. Jones asked Xavier, "Is there any work for The Ant yet?" to which Xavier replied, "not yet". Xavier then commented about picking up some "paperwork" and that he would get "that" sorted. Xavier then said, "It's supposed to be there tomorrow, I just checked" [“it" being a reference to the container consigned to the Costless Group.]

40. On this day, John Wilson also left Australia. He sent a text message to David Wilson telling him that he was leaving that day and would be back in a couple of weeks.

41. On 29 February 2008, Wren flew to Sydney from Tasmania. He subsequently traveled to Shellharbour (south of Wollongong) where he stayed with an old friend, Ronald Olds.

42. On Saturday 1 March 2008 the vessel 'Warringa' arrived in Adelaide. The container consigned to 'The Costless Group', the substitution having been effected by the authorities in Sydney and then transported by road to Adelaide, was then reintegrated into the discharged containers from the vessel 'Warringa'. The vessel 'Warringa' had been scheduled to arrive on Friday 29 February 2008 but had been delayed.

43. Over the following several days various conversations and SMS messages were monitored between different members of the syndicate.

44. On Monday 3 March 2008, Jones had a telephone conversation with Xavier, who was then in Indonesia. During this conversation Xavier said that "bro has everything he needs" and that "it" should be there and "that it got there last Friday or Saturday". Xavier went on to say that he had not actually spoken to "Bro" but that he had sent text messages to him. Jones then said that he would get the ‘Ant’ to do something. Xavier replied that it would probably take 'him'' two to three days to arrange [Referring to David Wilson having what he needs to collect the container, which had arrived on Friday 29 February 2008 or Saturday 1 March 2008, and “him” being a reference to Wren, and that Wren will be responsible for moving the goods to Sydney, which may take two to three days].

31. On Tuesday 4 March 2008, a series of SMS messages between David Wilson and Xavier were intercepted.

David Wilson: "Quarantine paper not done need reply".

Xavier: "Ok but not really what that is. Normally only packing dec".

David Wilson: "also fumigation cert".

46. There were further SMS messages intercepted relating to Xavier faxing documentation to David Wilson.

47. On Wednesday 5 March 2008, Wren had a telephone conversation with David Wilson discussing the imminent return to Australia of Xavier. During this conversation David Wilson said that he was "just ah …hanging around for it... not ready". Wren then replied, "Aah right … okay … yeah no I just thought I'd ring and check because um …I think that John's mate Oily is coming out tomorrow so we (indecipherable)".

48. Later in the conversation David Wilson said, "No I reckon two or three" and Wren said that he would call back in a day or two. David Wilson then said, "Yeah leave it for about four days I reckon".

49. On Thursday 6 March 2008, Xavier arrived in Sydney aboard a Garuda flight from Indonesia.

50. On Friday 7 March 2008, Jones had a telephone conversation with Wren. During the conversation Wren told Jones that he had just dropped his car off at the hire place in Wollongong and was currently at the transport place that he used 'last time'. Wren explained to Jones that he was doing the paperwork and putting them on standby.

51. A subsequent intercepted telephone call between David Wilson and a transport company called 'Pack and Send' revealed that Wren had made a booking for the transportation of the furniture from David Wilson in Adelaide to himself in Wollongong.

52. On 8 March 2008 John Wilson arrived back in Australia and checked into the Novotel Hotel at Darling Harbour.

53. On 10 March 2008 a meeting was held between Xavier, John Wilson and Jones in the Cafe at the Novotel Hotel in which the details of prices and costings relating to the purchase, importation and sale of the heroin imported in the 'Costless Group' container were discussed as well as their respective share of the proceeds. They made references to payments that had been made to David Wilson for his participation in the importation.

Xavier: So what have we got?

Jones: Well we’ve got that, this is comin' in, right and this is what - this is what we were supposed to - this is what we’re supposed to get each, right?

Xavier: Yeah.

Jones: So that'll be plus 15 and 15 and 15. This is an extra 45 right? So there's 15...

J Wilson: I still don't know if that is gonna be enough, that's why I'm looking again.

Xavier: You worked out this and this is profit, this is no, no, no…

Jones: That's all expenses, mate

J Wilson: No, I know but I worked it out to be different, that's what I was saying yeah. Is this [indistinct]

Jones: This is the figures that we wrote down...

Xavier This is what we worked out.

Jones: That's what we got coming in, so that figure is right …that's the deductions… That's the gross, that's the profit. The only difference is there's 45 on top of that, okay? … Now the deductions are 500 or something thousand, see? The reason I 'm getting that is because I get 801 - 705 is what we all get, okay? …705 is what we all get, the reason he's getting 914 is because he paid … [indistinct overtalk]

Xavier: He paid [indistinct] did he?

J Wilson: That's right.

Jones: I'm getting 810 because I paid 90 to Ron … I paid six, and then I give Dave another six …And then I give Dave another six. So I've actually got another six, I've got another six to go on that, right? …Right, which is what I sent Dave, not the six I give him here, another six Western Union.

54. Xavier and John Wilson are then observed in Room 840 at the Novotel Hotel counting large quantities of Australian currency and discussing money matters.

Xavier: …where does the 80 thousand that we gave Dave go to …

J Wilson: 8 of the 670 that we received, 8 of that I took …8 of the 670, plus 50 that you left me plus 20 that we left out.

Xavier: 550 in actual fad …divided by 2… is 275 each… in euros …still short, we're still fucking short.

J Wilson: That's what you give to Dave …we’ve only received 90

Xavier: We paid Dave $80,000 … all expenses have been divided and paid … but out of this money we gave Dave 80 thousand …We should be receiving this less 80 thousand.

J Wilson: I'm only working on the profits.

55. Xavier was then observed to remove large bundles of cash from the table. Xavier showed John Wilson a compartment in his suitcase where the money he was proposing to carry out of the country was going to be hidden. Xavier also handed John Wilson a bundle of cash.

J Wilson: What's that five or ten?

Xavier: … I might be 20 grand short today

J Wilson: You can get it tomorrow … Why did you put your phone in there … I thought you were giving me the bag …it's got carbon papers in there.

56. They then placed the bundles of money in a plastic bag and went to the Western Union Money Exchange situated in Roslyn Street, Darlinghurst, where the Australian currency was exchanged for large denominations of foreign currency. From the intercepted discussions, it appears that between AUD 60,000 and AUD 80,000 was exchanged on this date.

57. Later that same day, 10 March 2008, Xavier departed Australia bound for Denpasar, Indonesia, and it is believed that he had concealed in his luggage the foreign currency that he and John Wilson had obtained earlier that day.

58. [This is the additional matter that is to be taken into account by way of the schedule pursuant to s 16BA of the Crimes Act 1914 when sentencing Jose Xavier for the Dealing in the Proceeds of Crime offence between 1 June 2006 and 28 February 2007. Jose Xavier has accepted that the offence involved an amount of AUD 100,000 or more as it is particularized on the Schedule that the offender asks the Court to take into account.]

59. Later, also on 10 March 2008, Wren had a telephone conversation with David Wilson. Wren asked, "…have you heard anything!" David Wilson replied, "No, no probably 4, 5 days yet still".

60. On 11 March 2008 Jones and Wren in a telephone conversation discussed the identity and description of the three pieces of furniture in which the drugs had been secreted.

Jones: "… you getting sick of it here yet?"

Wren: "Oh fucking oath I am ...

I rang him on Friday … no Monday and he said … no another four or five days. I said I will ring ya in a couple"

Jones: "Yeah, yeah. Well, the other his – his - his bra’s (brother) goin’ down there tomorrow "

Wren: "Right"

Jones: " So um and it’s – it’s three - three side boards yeah?"

Wren: "Three side boards …Alright. Good one …Alright. Good one yeah, cause I’ve, I’ve already gone into the transport one … and sort of made the arrangements so as soon as I ring ‘em, well they can get on with it, ya know"

Jones: "Yeah"

Wren: "Do. You don’t know, oh well they’d be six foot by about two foot

Jones: "… at about waist height or something yeah…

61. The conversation then continued regarding contacting someone.

62. On Tuesday 11 March 2008, Jones attended Room 840 of the Novotel Hotel where he had a conversation with John Wilson. While Jones was present, John Wilson telephoned Xavier, who was back in Indonesia. During this conversation the following exchange occurred:

John Wilson: “… did you explain to brother about which one? "

Jones [in background]: "I know. I know. I can tell you."

Xavier: "…I told our mate and it's quite recognizable … Its three the same, but just with that one marked one, two, three … so he knows, he knows it … and he’ll pass it on to the little guy."

John Wilson: "Yeah, ok, alright then don’t rush. I’ll at least confirm ’cause I'll pop down and see him tomorrow”.

63. During the same meeting, John Wilson and Jones counted out money believed to total approximately $500,000 and then left the hotel room.

64. John Wilson was then observed to walk to the Western Union money exchange situated in Roslyn Street, Darlinghurst, and leave a bag at that location to be exchanged into larger denominations of foreign currency for the purpose of later taking it out of the country in the same manner as Xavier had done.

65. On 12 March 2008, the ‘Costless Group’ container was collected from the docks in Adelaide and transported to 2A Stonehouse Avenue, Camden Park in Adelaide. The container was set down behind the Costless Group shop. David Wilson was observed to be present when the container was delivered and was observed to unpack the container with three other males. All of the contents of the container were moved into the storehouse area of the premises.

66. On 12 March 2008 John Wilson called David Wilson to tell him that he would not be down to see him until the next day. David Wilson said: "that's fine.... I got a....a container comin' in a chap sent me, so I'm gunna be busy probably for the next … "

67. Shortly thereafter, Jones rang Wren and told him, "that's there today …it's arriving today."

68. At about 4 pm on 12 March 2008 John Wilson was observed leaving the Money Exchange in Darlinghust. He was carrying a red bag that appeared to contain money. He then took a taxi back to Darling Harbour where he met up with Jones.

69. Later that evening, on 12 March 2008, a conversation was intercepted between Jones and John Wilson in Room 840 of the Novotel Hotel, Darling Harbour. During this lengthy conversation Jones and John Wilson discussed payments to syndicate members and a discrepancy in the amount owed to Xavier. Included in that conversation, Jones mentions 60 going to David Wilson and 20 going to John Wilson. Jones also discusses John Wilson getting 750 and himself getting 800. Jones also discussed paying 'little Dave' (Wren) 75 grand. They also discuss that there was a dispute last time.

70. During the same conversation Jones also discussed getting 300 together for "Oily" (Xavier) and discussed the 300 being taken out of Australia by another person who would get 20 for taking it out. These discussions refer to amounts of money to be paid for roles performed in relation to the importation of the heroin in the container.

John Wilson: “I want another 80 to pay him off …This 80 for Dave and 20 for you... the 80’s for the Indian.” [A person of Indian descent with whom they dealt at the Roslyn Street Money Exchange.]

71. On 13 March 2008 John Wilson telephoned David Wilson and asked him to book him accommodation near the Adelaide airport as his flight left at 8.10 pm. David Wilson arranged to pick him up. John Wilson later sent David Wilson a text message confirming that he was on the flight and arriving at 10.30 pm.

72. That night, after John Wilson arrived in Adelaide, he and David Wilson attended at the Costless premises. An authorized listening device secreted in the furniture containing the heroin substitute recorded the following conversation:

D. Wilson: How many? There was three yeah? Three? Three?

J. Wilson: Three What?

D. Wilson: Three packages. Yeah.

…

[Conversation omitted]

…

J. Wilson: …They’ve got bricks inside…”

[A reference to the 69 blocks of heroin.]

73. While Xavier and Jones had been recorded in the past complaining about John Wilson not having identified to David Wilson the relevant items of furniture, there was in fact no need for anyone to do so. All of the documentation necessary to effect importation made no reference to the three chests of drawers. To identify the relevant items it was only necessary to check off the furniture against the invoice or declaration, as the container was unpacked. This was no doubt to allow David Wilson some degree of plausible deniability should the heroin have been detected on importation.

74. On 17 March 2008 an agent for ‘Pack and Send’ Wollongong collected four items of furniture from David Wilson in Adelaide. Three of the items of furniture were the chests of drawers containing the heroin substitute. The other piece of furniture was a small table.

75. The four items of furniture were then delivered to a “Pack and Send” depot in Adelaide and subsequently transported to the Wollongong depot of 'Pack and Send', arriving on 19 March 2008.

76. While the items were in transit, a call was intercepted on 18 March 2008 between Wren and ‘Pack and Send’ Wollongong. Wren was advised that the items he had arranged to be transported would arrive by 11.00 am on Wednesday 19 March 2008.

77. A short time later another call was intercepted between Wren and Avis Rentals in Wollongong where Wren booked a van for hire to be collected on the morning of 19 March 2008.

78. On Wednesday 19 March 2008, Wren collected a Toyota van from Avis rentals Wollongong that he then used to collect the four items of furniture.

79. Wren then drove to premises known as “Wollongong Mini Storage” where he waited for another male to arrive before they then unloaded the furniture and placed it into a secure storage shed at the facility.

80. Later on 19 March 2008 a telephone conversation between Jones and Wren was intercepted. After pleasantries, the following was said:

Wren: "Hello mate how are ya?"

Jones: "Not bad, you?"'

Wren: "Pretty good... unemployed. "

Jones: "That's it nothing tampered with? "

Wren: "No I checked it out mate and it didn’t look like it …I'd say everything is a okay … what's the plans?"

81. Jones and Wren then discussed other things and talked about meeting up in Sydney the following day for lunch.

82. Shortly thereafter, John Wilson contacted Jones about his return from Adelaide: "I'm on the 1.15 plane from here …there's half hour difference between here and Sydney. See you in a bit"

83. Then later: John Wilson advised Jones: "I'm just at the airport, I'm heading to the hotel … staying at Rydges World Square, Sydney…388 Pitt Street". They arranged to meet at the Hotel in approximately 30 minutes.

84. On the following day, 20 March 2008, Wren and Jones met in a park in Stanmore with a suspected heroin supplier, Adam Horne. Police believe the meeting related to arrangements for Horne to receive some of the heroin consignment. Later that afternoon Horne telephoned Wren from a public phone to arrange a further meeting. However, shortly after this call the police arrested the various syndicate members in Sydney, Wollongong and Adelaide.

85. Wren was driving a vehicle containing approximately $30,000 in cash. An additional $26,000 in cash was located in the room in which he was staying at the home of Ronald Olds, together with keys to the storage unit at Wollongong Mini Storage. Also located was a Flight Centre travel itinerary that showed that Wren was due to depart for Bangkok on 23 March 2008.

86. Also on 20 March 2008 Jones and John Wilson were arrested in a room occupied by John Wilson at Rydges Hotel, World Square, Sydney. Located in the room was currency from various countries:

• EUR 321,230 AUD $7,300

• SGD11,000 (Singapore dollars)

• CHF 6,000 (Swiss francs)

• IDR 2,347,000 (Indonesian Rupiah)

• THB18,070 (Thai Baht)

87. These currencies total approximately AUD $556,044 on the then current exchange rates.

88. John Wilson stated that all the money belonged to him. A large suitcase with his nametag which had false compartments and carbon paper inserted around the frame was also located. The carbon paper, as had been explained by John Wilson to David Wilson, was to disguise money from being detected by airport x-ray machines.

89. [This is the money that relates to the offence of Dealing in the Proceeds of Crime contrary to s 400.4(1) of the Criminal Code 1995 between 10 and 20 March 2008.]

90. A search of the premises where Jones had been residing in Sydney located a further AUD $435,040.

91. On 20 March 2008, David Wilson was arrested in Adelaide and subsequently extradited to Sydney. A search of the Costless premises in Adelaide located cash totaling AUD $10,000 as well as paperwork relating to the importation. David Wilson, unrepresented, stood trial with Jose Xavier and John Wilson on the same indictment. The jury was unable to reach a unanimous verdict in respect of David Wilson.

92. On 20 March 2008 Greg Jones and David Wren were arrested. They subsequently entered pleas of guilty to offences related to the enterprise.

93. On 25 March 2008 Jose Xavier was arrested in Indonesia by the Indonesian Police on unrelated matters and subsequently returned voluntarily to Australia on 3 May 2008 to face charges in respect of the heroin importation.

Value of the Heroin

94. The evidence was that 28 kilograms of heroin of the purity seized in this matter would have a wholesale value of AUD $7 to $8.12 million when sold in 700-gram deals, a common bulk weight when sold wholesale.

Additional Facts Relevant only to Jose Xavier and in respect of the Offence of Dealing in the Proceeds of Crime between about 1 June 2006 and about 28 February 2007.

95. During the period between about 1 June 2006 and about 28 February 2007, Fiona Jang, a Foreign Exchange dealer operating Currency International in Pitt Street, Sydney, converted approximately AUD 500,000 to large denominations of Euro for a customer she referred to as “Joe” and subsequently identified as Jose Xavier.

96. “Joe” subsequently introduced Ms Jang to Greg Jones in about June or July 2006. Over the following year, Ms Jang estimates that she converted approximately AUD $400,000 for Jones into Euro over approximately 7 occasions. The “Facts” contains a schedule of dates and amounts that shows that during the period on a total of five occasions in various amounts that she converted a total of AUD $550,000 for Xavier, and on 7 to 10 occasions a total of AUD $528,800 for Jones.

97. Police became aware of the activity, and investigators conducting surveillance observed the following on 21 November 2006:

98. About 9.20 am, Jones entered the ‘Boulangerie Francis Patisserie’ on Union Street, Pyrmont, where he met with Adam Horne (a suspected drug dealer) and another male, McGann. When Jones entered the café he was not carrying anything with him.

99. About 10 am Jones, Horne and McGann left the café and walked along Union Street. Horne was then carrying a black coloured ‘Myer’ plastic bag containing unknown items and Jones was carrying a ‘David Jones’ plastic bag that contained a number of items about the size of two shoeboxes.

100. Shortly after leaving the café Jones attended the Star city Apartments where he met with Jose Xavier in Room 753. Video and audio surveillance had been placed in the room. They discussed the supply by Horne of prohibited drugs on behalf of Jones and the proceeds of sale being provided to Jones. They then discussed arrangements to convert the money to Euros at the currency exchange owned by Fiona Jang. Jones emptied the ‘David Jones’ bag onto a coffee table. It had contained three separate plastic bags.

101. Relevant conversation between Xavier and Jones was as follows:

• Jones said, “Listen mate, they reckon the gear was no good. Apparently the fucking stock was no good”, and Horne said, “We just had to take less for it.”

• They continued discussing the prohibited drugs and Jones indicated that Horne had offered to give him money, saying, “If you give us two hours, we will have your money for you too …we had to sell it cheaper but we have a bloke that just pays straight away for it.”

• Jones also said that Horne had offered to give him “270” [AUD 270,000] and that they had arranged to meet “on the 22nd” [22 December 2006]. Jones was booked to fly Thai Airways to Bangkok on 21 November 2006 and return on 22 December 2006.

• Jones informed Xavier of the price discussed with Horne as to how much the prohibited drugs could be sold for, being “130 to 150”. [A wholesale price of AUD $130,000 to $150,000 per 350 gram block of heroin.]

• They discussed Xavier visiting Fiona Jang. “You had better go and see her today. You never know, she might be able to do it all. She keeps her money in euros because she waits for us all the time.” Before leaving the room and as Jones picked up each of the three bags from the coffee table, Jones said, “But you should try and get it to her as quick as you can. I don’t know what he said. I think there are 2 with 100 and the other one has 70. But it will all be there.” [AUD $270,000 supplied to Jones by Horne.]

102. At 3:45 pm Xavier attended Fiona Jang’s business, Currency International. Video and audio surveillance devices had previously been installed in the premises. Xavier was recorded passing over large bundles of Australian $50 notes to Jang. The estimate from the footage was approximately AUD $250,000. Jang then handed Xavier a smaller bundle of foreign currency.

103. About 10 minutes after Xavier left Currency International, Jang telephoned American Express and asked for Euro 60,000 in Euro 500 notes. The conversion significantly reduced the bulk and the risk of detection when leaving Australia.

104. Jose Xavier subsequently departed from Australia for Indonesia on 23 November 2006.

The Roles of John Wilson & Jose Xavier in the Conspiracy to Import

105. John WILSON – The Court finds that John Wilson was a principal and primary organizer of the importation and involved throughout the conduct of the enterprise. In performing that role he did the following things:

• Used his knowledge/expertise of the furniture manufacturing/import/export trade between Indonesia and Australia to provide a medium for the import;

• Exchanged large quantities of Australian currency, the proceeds of the conspiracy, into large denomination Euro notes and other foreign currencies at a money exchange in Roslyn Street, Darlinghurst, for the purpose of removing the money from Australia without declaration or detection;

• Travelled twice to Australia from abroad during the offence period to facilitate the object of the conspiracy, by meeting with Xavier, Jones and David Wilson;

• Recruited his brother David Wilson to be the importer/recipient of the furniture and discussed his brother’s remuneration for that participation;

• Met with David Wilson and facilitated a meeting between David Wilson and Jose Xavier to discuss payment for accepting the consignment;

• Telephoned his brother David Wilson to inform him that Xavier required a private conversation with David Wilson to ensure that David Wilson continued his participation in the enterprise;

• Transported currency out of Australia to Indonesia to pay for the drug imported and to remove his profits;

• Financing (along with Xavier) the importation, including payments to other members of the syndicate such as Wren $75,000 and David Wilson $80,000;

• Expected and did receive profits in excess of $750,000;

• Ensured through liaison with David Wilson, Jones and Xavier that David Wilson knew which pieces of furniture contained the drugs;

• Travelled to Adelaide to meet with David Wilson to ensure correct identification of the chests of drawers/chiffoniers;

• Reported back to Xavier that the drugs had been safely handed over to David Wren.

106. While there are others, Jose Xavier and Greg Jones, who can also be regarded as principal and primary organizers, they were each of equal authority and seniority in the enterprise hierarchy. That is, there was no one higher in the hierarchy than John Wilson, although the individual roles varied according to talents and contacts.

107. It has been submitted by Mr. Brassil, counsel for John Wilson, that:

“…John Wilson had a lesser role than all of the other conspirators, including David Wilson, because all was in place for the importation of the container prior to John Wilson being appraised of the fact of the shipment and that he was not involved in either the export of same from Indonesia or its importation into Australia, both of which were arranged before he became aware of the matter. There is no clear role for John Wilson to have played in the importation, after he became aware of it and it is not clear that there was any intention to share the profits of the importation with him. The sentencing should reflect his late entry into the conspiracy (as found by the verdict) and his minor role in this importation.”

108. The basis on which this is submitted is set out in Mr. Brassil’s “Submissions on Sentence” under the heading “The Conspiracy to Import Heroin”.

109. The shipment of the container and contents may have left Indonesia earlier than anticipated by some of the principals but that does not justify a conclusion that John Wilson was not from the outset always a party to the conspiracy. The submission is rejected without hesitation as lacking any substance and being inconsistent with the evidence.

110. Jose XAVIER - The Court finds that Jose Xavier was a principal and primary organizer of the importation and involved throughout the conduct of the enterprise. In performing that role he did the following things:

• Used his knowledge and expertise of furniture manufacturing, and the import/export trade between Indonesia and Australia to provide a medium for the import;

• Exchanged large quantities of Australian currency, the proceeds of the conspiracy, into large denomination Euro notes and other foreign currencies at a money exchange in Roslyn Street, Darlinghurst, for the purpose of removing the money from Australia without declaration or detection;

• Facilitated the importation between Indonesia with John Wilson, with acceptance of the import by David Wilson, and the distribution of the drugs by Greg Jones and David Wren;

• Met with David Wilson in Sydney, having paid for him to travel to Sydney from Adelaide to secure his ongoing cooperation, provide details of the importation and to agree on remuneration for his role;

• Provided all the Customs and Quarantine documents to David Wilson to facilitate the importation;

• Removed without declaration large denomination Euro banknotes from Australia to Indonesia, partly as payment for the heroin and partly as profit;

• Profited in the sum of at least AUD $750,000 for his role in the importation;

• Provided the information to Greg Jones, John Wilson and David Wilson as to the identification of the three chests of drawers/chiffoniers that contained the heroin.

111. While there are others, John Wilson and Greg Jones, who can also be regarded as principal and primary organizers, they were each of equal authority and seniority in the enterprise hierarchy. That is, there was no one higher in the hierarchy than Jose Xavier, although the individual roles varied according to talents and contacts.

A Factual Dispute as to the Basis of the Plea of Guilty by John Wilson to the Offence of Dealing in the Proceeds of Crime

112. The relevant facts relating to this offence have already been referred to in these Reasons on Sentence. In short, the Crown case is that when John Wilson and Greg Jones were arrested on 20 March 2008 in John Wilson’s room at Rydges Hotel, World Square, John Wilson was found in possession of a total of AUD $556,044 in a variety of currencies. Only $7,300 was in AUD.

113. The Crown case is that these monies had, at least in part, been the subject of discussion on 10 March 2008 at a Novotel café between Xavier, Jones and John Wilson relating to costs and distribution of proceeds from the importation. Later that day in Room 702 at the Star City Casino Hotel large quantities of Australian currency were counted and discussed and each took possession of some of the money. John Wilson and Jose Xavier then attended the Western Union Money Exchange in Roslyn Street, Darlinghurst to convert money to foreign currencies. Xavier departed Australia that day.

114. On the following day, 11 March 2008, Jones attended John Wilson’s room at the Novotel Hotel to deliver an additional AUD $500,000 that they then counted. John Wilson then attended the Western Union Money Exchange and left a bag, containing money to be converted into foreign currencies.

115. On 12 March 2008, John Wilson attended the Western Union Money Exchange to collect the converted currencies before returning to Darling Harbour. Later that day, Jones and John Wilson met in Wilson’s room at the Novotel and had a lengthy conversation in which they discussed payments to syndicate members and a discrepancy in the amount owed to Xavier.

116. The Crown case is that the monies located in possession of John Wilson were part of the proceeds of the criminal enterprise to import heroin.

117. Mr. Brassil in his “Submissions on Sentence” on behalf of John Wilson submits that:

“There is no evidence that the monies found in the possession of John Wilson at the time of his arrest (“the monies”) were the proceeds of sale of Heroin or any other Border Controlled Drug. John Wilson pleads guilty to the single money count but does so without any agreement or admission that the monies arose from the sale of Border controlled drugs. The plea of Guilty of John Wilson is an admission that he obtained those monies by selling cigarettes and collecting the proceeds of sale in Australia. He was aware that Commonwealth Excise duties and any relevant State taxes had not been paid on the cigarettes. Further, he failed to declare the monies for the purpose of income taxes, if such were applicable.

There is no evidence to contradict the Defence assertion that the monies were the proceeds of the sale of tobacco and cigarettes imported into Australia. …

It is submitted that the sentencing of John Wilson for his plea of guilty on the money count should be conducted on the basis that he has cheated the Commonwealth Revenue by his dealing in money.”

118. John Wilson gave evidence in the trial but not on sentence. Jose Xavier also gave evidence in the trial. In summary, the defence case for John Wilson was that he was not aware of or involved in the importation of the heroin and that everything in the Crown case was explained by his involvement in the sale of Indonesian manufactured cigarettes and tobacco. His evidence was as follows:

• He sold Indonesian cigarettes and tobacco in a partnership with Jose Xavier and Greg Jones to buyers in the British Isles and in Australia.

• Business in Indonesia is done by introduction through an intermediary, called an “Agent”. He and Jose Xavier gave evidence of the use of agents in the “system” of purchasing tobacco products in Indonesia.

• Legitimate cigarettes are produced in Indonesia under brands that are owned by Indonesian companies. “Combat” is one such brand. There is a “Combat” factory that was located in a nearby town and evidence was given of a purchase of a container of Combat cigarettes. The container of cigarettes was said to have been seized by the Indonesian authorities and was said to be full of “Combat” brand cigarettes.

• Counterfeit cigarettes packaged to appear to be internationally famous brands such as “Marlboro”, “Benson & Hedges” and “Drum” are also produced.

• His evidence was that he sold quantities of genuine and counterfeit branded cigarettes and tobacco.

• The sales to the British Isles were with a Bernard O’Toole. Evidence of those transactions is said to be in telephone and SMS intercepts which were not part of the Crown case, but were tendered in John Wilson’s case.

• Both John Wilson & Jose Xavier gave evidence of a problem that arose when the Indonesian authorities seized the container of cigarettes. The buyers had paid a deposit and were, according to the evidence from John Wilson, Jose Xavier and from the telephone intercepts, upset and concerned about obtaining a refund of the deposit. The SMS that bore the words “The Irish are screaming” was said to support this.

• Sales in Australia involved three parties, John Wilson, Jose Xavier and Greg Jones. The partners contributed agreed sums to the purchase of the bulk tobacco products.

• The arrangement was that the container loads were sold to Greg Jones in Indonesia, who was thereafter responsible for the export to Australia.

• After sale of the tobacco products in Indonesia, he had no further contact with the tobacco products.

• The cigarettes were delivered to Australia to persons connected to Greg Jones who then sold them on the black-market in Australia.

• The arrangement between them was that John Wilson and Jose Xavier would come to Australia for an accounting of the proceeds of the sale and a division of those proceeds after deduction of expenses.

• The defence case was that a division of the proceeds of sale took place after the import into Australia at Sydney of three containers of cigarettes and tobacco. Further, that the proceeds of the sale of the cigarettes and tobacco product were in the process of being finalized at the time of his arrest.

• The container of cigarettes seized by the Indonesian authorities was to be released on payment of $30,000 and then sent to Adelaide to be sold onto the Australian market.

• However, John Wilson was informed in mid-February, 2008 that there had been some kind of “mix-up” and that a container of furniture had been sent direct to David Wilson in Adelaide. Jose Xavier in Sydney on 16, 17 or 18 February 2008 informed him that Greg Jones had sent the container.

• This explained all of the conduct alleged by the Crown to be related to the importation, including all of the conversations recorded and the money.

• In particular, in respect of the substantial sum of money found in his possession on 20 March 2008, that although he had converted AUD into various foreign currencies it was his intention to deposit it into a safety deposit box at an Australian bank that he would have acquired the following day if he had not been arrested. He did not intend to take it out of Australia in the carbon paper lined suitcase but intended to leave it in Australia to pay for his future wedding in Australia to his fiancée. [At this time he apparently had a legally married wife of many years standing in the UK from whom he had not been divorced. In addition he had married an Indonesian woman in an Islamic religious ceremony not recognized by the Indonesian Government and he had also not been divorced from her.]

119. Unsurprisingly, the jury clearly rejected the defence case in the light of what was not simply a strong prosecution case but an overwhelming one. In addition the offender in evidence was a very unimpressive witness and his evidence was totally unbelievable.

120. Although he had no obligation to prove anything the only evidence of dealing in tobacco and cigarettes came from him and Jose Xavier and from passing references in intercepted calls between him and persons said to be importing cigarettes and/or tobacco to the United Kingdom. The reference in the UK calls to cigarettes and/or tobacco may have been genuine or may have been code for other products, but it is irrelevant to this matter whether they were or not.

121. Consistent with the jury verdict the Court finds beyond reasonable doubt that the monies were part of the proceeds of the importation.

Seriousness of the Offence of Conspiracy in respect of both Offenders

122. Each was a principal and primary organizer in a conspiracy to import 28.3 kilograms of heroin. There was no one more senior or higher in the hierarchy than them.

123. The importation was a very sophisticated one and one that in the way they organized it afforded them maximum protection. In the absence of the authorities having advance knowledge of the importation, there was a high risk that the heroin secreted in a small number of pieces of furniture, being only a small part of a container of furniture would not have been detected by Customs. In the absence of telephone intercepts, listening devices, video recordings and physical surveillance commencing prior to the arrival of the container it is highly unlikely that the participation in the importation by John Wilson, Jose Xavier, Greg Jones or David Wren would have been discovered even if the heroin were detected by Customs on entry. Should the import be discovered on Customs investigation of the container, the participant most at risk was David Wilson. Even he was provided with a reasonable level of plausible deniability.

124. There is no evidence that either was aware of the quality of the substance. Fortunately for them on sentence, the heroin was not of high quality and the pure heroin (diacetylmorphine) content was 9.098 kilograms. It is the pure heroin content that is relevant to the assessment of seriousness, although weight is not the sole determinant but one of the factors that must be taken into account. Under s 314.4 of the Code a commercial quantity of pure heroin is 1.5 kilograms. The amount imported was six (6) times the commercial quantity threshold.

125. Heroin of that quality in that quantity had a wholesale value of AUD $7 to $8.2 million.

126. Each of the accused committed the offence for substantial financial gain. Each was to receive at least AUD $750,000 in profit for their respective roles in the conspiracy.

127. Considering those matters in combination this is a very serious example of such an offence.

128. Drug importation offences are very difficult to detect and involve such high rewards for successful participants that general deterrence requires the imposition of a sentence of such significant severity as to deter like-minded potential offenders.

129. In respect of each offender there is a high degree of moral culpability.

Seriousness of the Offences of Dealing in the Proceeds of Crime

130. John Wilson – The amount was AUD $556,044 and the Court has found that it was part of the offender’s share of the profits obtained from his participation in the conspiracy to import heroin. In those circumstances the offence must be regarded as a serious example of such an offence, with a high degree of moral culpability.

131. Jose Xavier – Between 1 June 2006 and 28 February 2007 Xavier personally changed AUD $550,000 into various foreign currencies. It is clear from the recorded conversations between him and Greg Jones on 21 November 2006 that he knew that the funds were the result of the sale of prohibited drugs distributed by Jones and in respect of which it can be inferred that Xavier was receiving payments. He otherwise assisted Jones in converting a similar sum to foreign currencies through Ms Jang over the same period by first introducing Jones to her for that purpose. Xavier is at least responsible for dealing in the proceeds of crime to the amount converted by him, that is, AUD $550,000. In those circumstances the offence must be regarded as a serious example of such an offence, with a high degree of moral culpability.

132. In addition the Court is asked to take into account when sentencing for that offence a further offence in March 2008 of dealing in the proceeds of crime that is accepted by the offender as being in an amount of more than AUD $100,000. It is clear that this was part of his share of the profit obtained from his participation in the conspiracy to import heroin. In those circumstances the offence must be regarded as a serious example of such an offence, with a high degree of moral culpability.

Subjective Matters – John Wilson

133. The material available to the Court is limited.

134. John Wilson gave evidence in the trial but not on sentence.

135. Before the Court on sentence is a Probation and Parole Report of 13 October 2011 by Shannan Mulligan, an Affidavit of 19 November 2011 from Ms Elly Prasetyowati, the Indonesian “wife” of the offender, and his criminal history.

136. The offender was 54 years of age at the time of the offences and is now 58 years of age. He is the eldest of six children. His parents immigrated to Australia approximately 20 years ago. He emigrated subsequently and holds Australian and UK citizenship. His primary residence for the last 16 years is said to be Indonesia.

137. He first married in the UK and there are three children from that marriage aged 17, 16 and 15. He remains married to his first wife but has had no contact with the family for approximately 15 years. In 1990 he married his Indonesian “wife” in an Islamic religious ceremony that is not recognized by the Indonesian Civil authorities. He has one child of that marriage who is now 17 years of age and with whom he maintains contact. The pre-sentence report refers to a further defacto relationship in Indonesia of eight years standing to which he intends to return.

138. Ms Prasetyowati indicates that the offender’s absence and lack of financial support has had an adverse emotional and academic impact on his daughter, Nicole Wilson. Such impacts are to be expected and are not abnormal or exceptional.

133. He completed basic secondary schooling in the UK prior to a three-year Business Studies program. More recently he is said to have been self-employed, most recently in a furniture import/export business in Indonesia.

134. He has been in custody since his arrest on 20 March 2008 and only in respect of these matters. He has acquired no institutional conduct charges and has been employed in custody as a general hand, librarian and cleaner.

135. He is reported to have no drug or alcohol issues although he has a teenage history of cannabis use and recreational use of cocaine prior to remand. Surveillance recordings made during the investigation evidenced the cocaine use.

136. He has a permanent hearing impairment that necessitated the use of a hearing loop throughout the trial and is currently awaiting provision of a hearing aid.

137. He was diagnosed in early adulthood as having Bi-Polar Disorder and has had admissions to psychiatric facilities in the UK and Indonesia. He currently receives appropriate medication through Justice Health. There is no evidence before the Court to suggest that this condition has any relevance to the commission of the offences.

138. There is no evidence to suggest, nor reason to believe, that these conditions will adversely impact on his custody or that Justice Health cannot adequately deal with them during any period of imprisonment. The trial was lengthy and apart from needing to use a hearing loop his conditions did not adversely impact on the trial.

139. Hardship to the family or dependants of an offender being sentenced should only reduce the sentence being imposed in circumstances where they are extreme and go beyond the sort of hardship that occurs when an offender is imprisoned in the ordinary course. There is no evidence to establish that the personal circumstances of the offender or his family are exceptional such as to render a custodial sentence inappropriate, if a custodial sentence is otherwise appropriate. A custodial sentence would of necessity impact on the family but such an impact would not be outside the range of the impact to be normally expected.

140. The offender has a criminal history that commenced as a juvenile at the age of 9 in the UK. The conviction record indicates offences at least from 1962 to 1979. The offences include three Possession of Controlled Drug offences in 1978 - 1979. Fines were imposed in respect of two, and one was dealt with by imprisonment for 6 months, suspended for 1 year. In addition, there are a significant number of offences in the nature of Theft or Break, Enter and Steal, the bulk being as a juvenile. As a juvenile offender he was in care for approximately five years from the age of 10. As an adult in 1973 he was sentenced to imprisonment for 2 years for Burglary and Theft, and in 1976 he received two concurrent sentences of imprisonment for 6 months in respect of two offences of Burglary and Theft and Going Equipped for Burglary. His only record in Australia is for a single occasion in 1997 of driving with excess blood alcohol and failing to produce an interstate licence.

141. The offender certainly cannot be said to have a blemish-free history but taking into account that the bulk of his past offending was as a juvenile and that approximately thirty years have passed since his last major offence, the Court is of the opinion that his past offending can have no significant impact on sentence, other than being noted that he is not entitled to the leniency of a first time offender.

Remorse, Contrition and Rehabilitation

148. The offender pleaded guilty to the Proceeds of Crime offence, although the plea came only after the guilty verdict for the conspiracy, that is, the plea was very belated. It does not evidence remorse or contrition but merely acknowledges the strength of the Crown case. However, the Court is of the view that it is appropriate to provide a discount for facilitating the course of justice in the order of 10%.

149. The conspiracy offence was defended. The Pre-Sentence report contains the following relevant statement:

“Mr Wilson commented that he was ‘flabbergasted’ at his arrest and subsequent conviction on this matter. He adamantly denies any responsibility for, or involvement in, the offences.”

150. There is no evidence of remorse or contrition and it is unlikely that there is a genuine prospect of rehabilitation or any indication that the offender is unlikely to re-offend in the face of such a blatant denial in the circumstances of an overwhelming prosecution case.

151. The offender’s comment is only explicable if it was made to preserve the status quo and the possibility of an appeal leading to a retrial.

Subjective Matters – Jose Xavier

152. The material available to the Court is limited.

153. Jose Xavier gave evidence in the trial but not on sentence.

154. Before the Court on sentence is a Probation and Parole Report of 12 October 2011 by Lorraine Austin, an undated letter from Ms Christine and Silvia Xavier, the sisters of the offender, and his criminal history.

155. The offender was 53 years of age at the time of the conspiracy offence and is now 57 years of age. He was born in Hong Kong and is the youngest of four children. His mother died in 2008 and his father is in a semi-care situation in Sydney. He came to Australia in 1970 with his parents. He married at an early age and has a daughter aged 21 residing in Australia and with whom he has an amicable relationship and regular contact. His marriage failed prior to his relocating to Indonesia in approximately 1995, where he has since remarried. There is a son aged 12 years from the second marriage.

156. He completed his education in Sydney, leaving in year 12 prior to sitting the Higher School Certificate. After leaving school he became employed in the furniture business and had a business on the Central Coast that failed after 14 months. He had been involved in Indonesia in furniture export for 16 years before his arrest. He claims that when his Indonesian furniture business was at its peak in 1998 to 2001 he employed over 700 people. His wife owns a resort in Jepara, Java, which provides her with financial support in his absence. He is concerned for any hardship he has created for his wife and child but “his concern did not extend to the persons and their families that would have been the consumers of these drugs.”

157. Prior to arrest, he had a problem with binge drinking that was creating problems in the family. He is a gambler, but although he gambles in large amounts it is always within his means. For three years before arrest he was using cocaine and cannabis for “relaxation purposes”.

158. He admitted his guilt and participation in the offence with John Wilson and Greg Jones, and that he had received AUD $700,000 to the Probation and Parole officer preparing the Pre-Sentence Report. He has been working in Reception at Parklea Correctional Centre and is very highly regarded for “his commitment to work and his polite, easy manner”.

159. His family has indicated their ongoing support.

160. His only criminal history is of two offences of stealing (s 501 of the Crimes Act 1900) in 1977. He received a fine in respect of one and a s 556A bond in respect of the other at Manly Petty Sessions. In 1989 he was dealt with at Castlereagh St Local Court for Mid Range PCA and Unlicensed Driver by fine and disqualification. Those matters can have no adverse bearing on sentence.

Assistance

161. Jose Xavier offered after trial to provide assistance. The sentence proceedings were, in part, delayed to provide him the opportunity to provide that assistance.

162. FA Simpson has provided an assessment of his assistance to the Court. Xavier provided “an outline of the methodology used in the importation”. He was vague as to providing specific information about people involved and relevant times and dates. He declined to provide a statement citing safety fears. The assistance has not led to any arrests, identification or seizure of drugs or any other illegal goods, nor the recovery of any proceeds of crime. He identified no persons not already known to police.

163. The Court notes that the methodology of the importation was obvious on the evidence in the trial and that the offender was well placed to be able to provide significant evidence in respect of the participation of David Wilson, in respect of whom the jury was unable to agree, and who is yet to be subject to a further trial.

164. While it was felt that he was not deliberately trying to mislead and was genuine in his attempt to provide information, which may have been unclear due to the lapse in time, his assistance was assessed as being of “very low value”.

165. In those circumstances the Court is of the opinion that it is inappropriate to provide any discount for assistance to the offender.

Remorse, Contrition and Rehabilitation

166. The offender pleaded guilty to the Dealing in the Proceeds of Crime offence, although the plea came only after the guilty verdict for the conspiracy, that is, the plea was very belated. It does not evidence remorse or contrition but merely acknowledges the strength of the Crown case. However, the Court is of the view that it is appropriate to provide a discount for facilitating the course of justice in the order of 10%.

167. The conspiracy offence was defended. The Pre-Sentence report contains the following relevant statement:

“The offender admitted to his actions and has resigned himself to remaining in custody for some time. Mr Xavier expressed concern for his wife and child still residing in Indonesia and the hardship he has imposed on them however his concern did not extend to the persons and their families that would have been the consumers of these drugs.”

168. An acknowledgement of guilt after a verdict of guilty together with assistance, even though of “very low value”, may be a sign that there is some prospect of rehabilitation but it cannot be said in the light of the absence of concern for those affected by the use of heroin that there is any genuine indication of remorse or contrition.

Sentences Imposed on Other Offenders

169. Walmsley SC DCJ sentenced Gregory JONES on 23 April 2010 for an offence of attempting to import a commercial quantity of heroin, the subject of this matter, being contrary to s 11.1(1) and 307.5(1) and an offence of dealing in the proceeds of crime being greater than $100,000 contrary to s 400.4(1) of the Criminal CodeAct 1995. Taken into consideration on sentencing for the s 400.4(1) matter was a further offence contrary to s 400.4(1).

170. The same maximum penalty applied as relates to each of these offenders in respect of the conspiracy to import, and dealing in the proceeds of crime being greater than $100,000.

171. There was a further offence of dealing in the proceeds of crime being greater than $10,000 contrary to s 400.7 of the Code, which has a maximum penalty of five years imprisonment and/or a fine of up to $33,000.

172. Jones was sentenced as follows:

• Dealing in the proceeds of crime greater than $100,000 taking into account the additional offence - 3 years imprisonment commencing 20 March 2008 and expiring 19 March 2011.

• Dealing in the proceeds of crime greater than $10,000 – 1 year commencing 20 December 2010 and expiring 19 December 2011.

• Attempt to possess a commercial quantity of heroin – 14 years imprisonment commencing 20 March 2011 with a non-parole period of 7 years commencing 20 March 2011 and expiring 19 March 2018.

• The accumulated result of the sentences is a total period of imprisonment of 17 years with an effective non-parole period of 10 years.

173. His Honour had concluded that Jones was “at the top of the group” and had a highly significant role. As it was an early plea a discount of 25% was provided for the facilitation of justice and “some contrition” was found, as well as there being a reasonable prospect of rehabilitation as a result of his age and the length of the sentence to be imposed.

174. It is noted that taking account of the 25% discount allowed for the facilitation of justice and no other features favorable to Mr Jones that the starting point for the term of imprisonment was approximately 18 years and 7 months.

175. Walmsley SC DCJ also sentenced David WREN on 2 October 2010 for an offence of attempting to import a commercial quantity of heroin, the subject of this matter, being contrary to s 11.2 and 307.5(1) and an offence of dealing in the proceeds of crime being greater than $10,000 ($30,000) contrary to s 400.6(1) of the Criminal Code Act 1995. Taken into consideration on sentencing for the s 400.6(1) matter was a further offence contrary to s 400.6(1) in respect of an amount of $26,000.

176. The Court is cognizant of the sentences imposed on David Wren but does not propose to set them out herein as the role of this offender, essentially found to be a “gopher”, and his circumstances means that the sentences imposed are of little comparative relevance or assistance.

Sentences

177. In this matter and in relation to each offender and offence it is clear that there is no alternative to a period of full time imprisonment.

178. In sentencing each offender, the sentences must reflect the objective seriousness of the offences, and the Court must fix sentences that will ensure that the time the offender must spend in custody reflects all of the circumstances of the offences including the objective seriousness of the offence and the need for specific deterrence and general deterrence, and meet the fundamental purpose of punishment, the protection of society.

179. The sentences imposed must be of such a severity that they will act to deter others minded to engage in such conduct, and signal to them that the potential financial rewards will be neutralized by the risk of severe punishment.

180. In respect of each offender the Court has separately considered the sentence to be imposed and in doing so had regard to s 16A of the Crimes Act 1914.

181. While there are differences in the objective and subjective matters relating to each offender the Court, after considerable reflection, has determined that there are no substantial differences that in the weighing up of them in the instinctive synthesis of determining appropriate sentences warrant the imposition of different sentences.

182. Considering the related nature of the offences and taking into account the principle of totality the Court will provide for a period of concurrence in the sentences for the individual offender.

183. In determining the relationship between the non-parole period and the total term, the Court has had regard to the decision of Hili v The Queen and Jones v The Queen (2010) HCA 45 in which the High Court made it clear that a sentencing judge should in Commonwealth matters determine the minimum term to be served in accordance with Part 1B of the Crimes Act (1914) together with the application of the principles identified in Power v The Queen, Deakin v R and Bugmy v The Queen, the Court making it clear that it was not appropriate to begin from some assumed starting point previously referred to as the “norm” of a non-parole period between sixty and sixty‑six per cent. The non-parole period in respect of each offender has been established on the basis of the principles referred to, and on the basis that it is the minimum time, considering the objective seriousness of the offence and the role of the offender, that the offender should spend in custody in respect of this matter rather than simply adopting what has previously been referred to as the “norm” range.

184. Each of the offenders is convicted in respect of the conspiracy to import a commercial quantity of a Border Controlled Drug, heroin. Each of the offenders is convicted in respect of the offence of dealing in the proceeds of crime the value of which was greater than $100,000. When sentencing Jose Xavier for the offence of dealing in the proceeds of crime the Court has taken into account the further offence of dealing in the proceeds of crime the value of which was greater than $100,000 pursuant to s 16BA of the Crimes Act 1914.

Mr WILSON please stand.

185. In respect of the offence of dealing in the proceeds of crime you are sentenced to a term of imprisonment of 5 years commencing 20 March 2008 and expiring 19 March 2013.

186. In respect of the offence of conspiracy to import a commercial quantity of a Border Controlled Drug, heroin, you are sentenced to a term of imprisonment of 20 years commencing 3 years after the commencement of the last imposed sentence. It will commence on 20 March 2011 and expire on 19 March 2031.

187. The non‑parole period is 15 years, commencing on 20 March 2008 and will expire on 19 March 2023, on which date, subject to s 19AL of the Crimes Act 1914, you are to be released on parole.

188. Accordingly, the total term of imprisonment of 23 years commences on 20 March 2008 and will expire on 19 March 2031. The non-parole period of 15 years expires on 19 March 2023, which is the date you will first be eligible to be released on parole. Should you on release breach the conditions of your parole you will be returned to imprisonment

Please take a seat.

Mr XAVIER please stand.

189. In respect of the offence of dealing in the proceeds of crime you are sentenced to a term of imprisonment of 5 years commencing 3 May 2008 and expiring 2 May 2013.

190. In respect of the offence of conspiracy to import a commercial quantity of a Border Controlled Drug, heroin, you are sentenced to a term of imprisonment of 20 years commencing 3 years after the commencement of the last imposed sentence. It will commence on 3 May 2011 and expire on 2 May 2031.

191. The non‑parole period is 15 years, commencing on 3 May 2008 and will expire on 2 May 2023, on which date, subject to s 19AL of the Crimes Act 1914, you are to be released on parole.

192. Accordingly, the total term of imprisonment of 23 years commences on 3 May 2008 and will expire on 2 May 2031. The non-parole period of 15 years expires on 2 May 2023, which is the date you will first be eligible to be released on parole. Should you on release breach the conditions of your parole you will be returned to imprisonment

Please take a seat. Mr Crown, counsel, are there any matters?

CROWN: Nothing arising, your Honour, no.

RADOJEV: Nothing, thank you, your Honour.

BRASSIL: Nothing, thank you, your Honour.

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Decision last updated: 06 March 2019