Regina v Robert Norman Drury
[2006] NSWDC 47
•3 June 2006
CITATION: Regina v Robert Norman Drury [2006] NSWDC 47 HEARING DATE(S): 10/5/06, 12/5/06
JUDGMENT DATE:
3 June 2006JUDGMENT OF: Finnane QC DCJ DECISION: I sentence him to imprisonment for a period of 18 years. That sentence commences on the 13th of November 2004 and ceases on the 12th of November 2022. The non-parole period commences on the 13th of November 2004 and ceases on the 12th of November 2015 on which day he is eligible for parole.; I recommend that he be classified as soon as possible to a prison where he is protected, but, if possible is given access to work, library facilities and other facilities that are afforded to those in the general gaol population. CATCHWORDS: methylenedioxymethaphetamine - "ecstasy" - methylendioxyethylamphetamine - "eve" - methylamphetamine - "ice" - large commercial quantity - high street value - plea of guilty - admissions - assistance to authorities - age of offender not a mitigating factor - health of offender - diabeties - starting point of sentence LEGISLATION CITED: Crimes Act 1914 s 21E
Customs Act 1901 s 233BCASES CITED: R v Robert Wayne Moore [2005] NSWCCA 212 PARTIES: Regina
Robert Norman DruryFILE NUMBER(S): 05/11/0627 COUNSEL: Crown: Mr I Bourke
Offender: Mr A HowenSOLICITORS: Crown: CTH DPP
Offender: Legal Aid Funded Representatives
SENTENCE
Introduction.
1 Robert Norman Drury appears before me for sentence on three serious offences, each of them having been committed against section 233 B of the Customs Act 1901, to wit, one charge of attempting to have in his possession 398.66 kg of pure MDMA, one charge of attempting to have in his possession 987 g of pure MDEA and one charge of attempting to have in his possession 237 g of pure methylamphetamine.
2 The drugs consisted of a combination of tablets and powder and their total bulk weight was 820.43 kg. The total number of tablets seized was 2,880,705, with a bulk weight of 702.75 kg and an estimated street value of $144,000,000. The total weight of the powder was 117.68 kg with an estimated street value of between $39,000,000 and $98,000,000. It has been estimated that the street value of the tablets and powder, when converted tablets is between $183,000,000 and $242,000,000. The estimated wholesale value of the tablets plus the powder when converted to tablets, is between $73,000,000 and $96,000,000. This estimated wholesale value is based upon a price per tablet of $20 for purchases in bulk amounts, typically amounts over a thousand tablets per purchase.
3 The offender was a principal in the operation in the sense that he was the Australian organiser of the importation of these drugs into Australia from Holland. It is doubtful that he had anything to do with the financing of the operation, but clearly, without him, the importation could not have occurred in the way that it did. The importation was in a large industrial stove and he was responsible for recruiting another man, in Australia as an assistant. This man is facing trial in June this year, and the offender has promised to give evidence against him. This amounts to his agreement to give evidence to someone who was of less importance in the criminal enterprise. He has also offered to give assistance to Dutch authorities and up to the present, has given them information, which has led to the arrest of a number of people in Holland. He has indicated a preparedness to give evidence at any trial of those persons. The Dutch authorities, whilst regarding his information as valuable, are guarded about the question of his ultimate use in trial proceedings. That has to be determined by an investigating judge.
4 Federal agent Constable has provided two statements, setting out the material which the offender is prepared to provide. He also is somewhat guarded as to whether the offender should be accepted totally.
5 As will be seen subsequently in these remarks, I have considerable doubts about the veracity of the offender. He has been a professional criminal involved in drug dealing for most of his adult life. He has been imprisoned in this country and in Thailand for major drug offences. He is an active associate of criminals, and was prepared to facilitate an importation of drugs, which would have to be regarded as massive. Nevertheless, he has pleaded guilty at trial and has indicated a willingness to assist both the Australian and Dutch authorities. I am constrained by authority to give him a significant discount on the sentence which I would otherwise impose.
6 If he had been convicted following a trial, in my opinion, the appropriate sentence would have been life imprisonment with a non-parole period of 25 years. Because he has pleaded guilty, has given assistance, and promises to give further assistance to the authorities, I should discount the sentence which would have been appropriate, following conviction at trial by 40%. He is now 55 years old.
7 The result of this, in my opinion, is a sentence of 18 years imprisonment, with a non-parole period of 11 years.
Facts.
8 The facts in this case are extremely complicated. The facts as supplied in a statement by Federal Agent Constable are:
- During the first week of march 2004, Jeroen GENBRUGGE (GENBRUGGE also known as JURI), born 3 November 1971, a Belgian national, approached the employees of Vanguard Logistics Pty Ltd, an international freight forwarding company located at unit 1 of 1801 Botany Road, BOTANY, New South Wales (NSW) and inquired about the importation of industrial equipment in to Australia from Europe.
- Between 4 March 2004 and 11 November 2004, GENBRUGGE had several meetings and maintained frequent email and telephone contact with the employees of Vanguard Logistics Pty Ltd in relation to the importation of industrial machines and related customs clearance, costs, transportation and storage of the equipment.
- On 12 September 2004, Robert Norman DRURY (“DRURY”) born 1 October 1950 using the name Robert John Drury, born 1 September 1959, arrived in Sydney, Australia on board Singapore Airlines flight 231. Records obtained from the Department of Immigration ad Multicultural and Indigenous Affairs (“DIMIA”); indicate that DRURY was a frequent traveller to and from Australia.
- On 15 September 2004, DRURY, using the alias Robert HEWITT, contacted the office of H.T. Bawdens Industrial Real Estate, located at 28 Ross Street, PARRAMATTA and inquired about renting an industrial unit. DRURY left a contact number telecommunications service 0418468158 with H.T. Bawdens. This telecommunications service is subscribed to Robert HEWITT, 40 Nepean Street, CRANEBROOK, NSW, 2749 and was connected on 27 August 2002.
- On 17 September 2004, Matthew KEEPING from H.T. Bawdens Industrial Real Estate called DRURY on telecommunications service 0418468158, regarding an inspection of an industrial unit at Elizabeth Street, WETHERILL PARK. Later on the same day, DRURY met with Mr KEEPING and inspected the industrial storage unit located at unit 19 of 38-44 Elizabeth Street, WETHERILL PARK.
- On 20 September 2004, DRURY secured a two-year lease of the industrial unit at unit 19 of 38-44 Elizabeth Street, WETHERILL PARK, from H.T. Bawdens Industrial Real Estate. On 28 September 2004, Drury leased an apartment at 3501/1 Kings Cross Road, Rushcutters Bay, Sydney from 2 October 2004 to 25 December 2004. He paid a total of $7,910 cash in 2 instalments of $1,000 and $6910 for the lease.
- On 15 October 2004, a consignment, consisting of an Industrial Bakery Oven, arrived as air cargo aboard a Malaysian Airlines flight into SYDNEY from FRANKFURT, Germany. The consignment details were:
- Air Waybill: Item Description: Consignee:
Consignor:
House Bill details: Consignee:
232-79610580
Industrial Bakery Oven
Vanguard Logistics Services
1/1801 Botany Road
BOTANY, NSW
Airmaster Shipping GMBH
Kleiner Kornweg 32A
KELSTERBACH Germany De 65451
Mietec Industrial Pty Ltd
264-279 George Street,
SYDNEY, NSW
Consignor: Network Marketing IM-Export
Wroklow/Polen
FRANKFURT
9 GENBRUGGE advised the employees of Vanguard Logistics Pty Ltd that the recipient of the Industrial Bakery Oven was Robert HEWITT, with the contact number, telecommunications service 0418468158 and the delivery address as unit 19 of 38-44 Elizabeth Street, WETHERILL PARK, NSW, 2164.
10 On 17 October 2004, DRURY, using a visa account in the name Hewitt, paid $4,165.48 for the rental of a vehicle from Thrifty Car Rentals.
11 On 18 October 2004, DRURY contacted Vanguard Logistics Pty Ltd regarding the delivery of the Industrial Bakery Oven and was advised that the oven had arrived and was on a hold status with Customs.
12 On 19 October 2004, the Industrial Bakery Oven was examined by officers of the Australian Customs Service (ACS). On X-raying the consignment, ACS officers discovered a number of cardboard boxes secreted within the metal shell of the oven. One of the boxes removed from the oven by ACS Officers, contained a bag of tablets which was ion-scanned and gave a positive reading for 3, 4-methylenedioxymethamphetamine (MDMA).
13 Between 19 to 21 October 2004, members of the Australian Federal Police (AFP) Physical Evidence Team (PET) attended the ACS examination facility and conducted a forensic examination of the Industrial Bakery Oven. The examination revealed that the bakery oven contained a total of 62 boxes consisting of 6 boxes of powder and 56 boxes of tablets.
14 Samples of the powder and tablets from the boxes testing positive to MDMA, with a total gross weight of 820 kilograms, consisting of approximately 117 kilograms of MDMA powder and approximately 703 kilograms of tablets. PET members conducted a de-construction of the bakery oven and then re-constructed the oven replacing the narcotics with an inert substance. During the reconstruction of the bakery oven, PET members established that the oven was inoperative.
15 On 19 October 2004, DRURY made four telephone calls to telecommunications service 0415956920. This telecommunication service is subscribed to Zachariah O'BRIEN (O'BRIEN), 899 Swan Bay Road, NEW ITALY, NSW, 2472 and was connected on 19 July 2003.
16 On 19 October 2004, DRURY and O'BRIEN anticipating delivery of the oven at unit 19 of 38-44 Elizabeth Street, WETHERILL PARK, NSW, attended at that address. After several hours during which the oven did not arrive, DRURY made a telephone call to an associate in the Netherlands who informed him that the oven had been intercepted by Customs.
17 On 20 October 2004, DRURY departed SYDNEY for Singapore aboard Singapore Airlines flight SQ222. DRURY was travelling on an Australian passport number L4590163, issued in the false details of Robert John DRURY, born 1 September 1959. DRURY's ticket was booked through a travel agency on 19 October 2004, as an urgent booking for a one-year open return fare. The contact number given by DRURY regarding this booking was telecommunications service 0418468158.
18 Between 23 October 2004 and 13 November 2004, having lawfully obtained warrants to do so, the AFP monitored many telephone calls between DRURY, O'BRIEN, GENBRUGGE and other parties.
19 On 2 November 2004, DRURY, while overseas called his girlfriend Jin HWANG on telecommunications service 0423726050. This telecommunications service is subscribed to Robert HEWITT, 4 Nepean Street, CRANEBROOK, NSW, 2749 and was connected on 13 September 2004. During the conversation DRURY told HWANG that he was in the Netherlands and that he had obtained a visa from an embassy there.
20 On Wednesday, 3 November 2004, DRURY while overseas called to O'BRIEN on telecommunications service 0415956920. The conversation included the following:
DRURY When are you planning on going down?
O'BRIEN We're gunna be down there on Thursday the eleventh
DRURY Yeah
O'BRIEN and we haven't booked when to come back yet because eh I figured there's a chance we'd probably meet up anyway so I was gunna leave that opened a bit
DRURY Well I'd want you down there on Tuesday and I'll see you Wednesday I'll see you Tuesday but eh I've got things to do on Wednesday it's up to you, if not I'm doing it anyway you know
O'BRIEN Hmm mm
DRURY Yeah
O'BRIEN Okay well that timings better
DRURY Yeah well it's up to you how are you gunna go down are you'se gunna fly down
O'BRIEN Yeah yeahDRURY All right all right I'll let you know more but that's I prefer to see you Tuesday
O'BRIEN Okay
DRURY and we'll be busy Wednesday so keep yourself available for Wednesday
O'BRIEN Yeah no worries
DRURY But definitely gotta be definitely gotta be in town on Tuesday but I'll talk with you again probably Friday, Friday or Saturday okay
O'BRIEN Okay mate well I'll um
DRURY Send send me an email if you have any questions 'cause I'm having difficulty getting you on these phones ZAC
O'BRIEN I know
21 On Sunday, 7 November 2004, DRURY while overseas called O'BRIEN on telecommunications service 0415956920. During the conversation DRURY and O'BRIEN discussed meeting up in SYDNEY on Tuesday, 9 November 2004.
22 About 11.45am on Monday, 8 November 2004, DRURY returned to SYDNEY aboard Singapore Airlines flight SQ231 from Singapore. DRURY was travelling on United Kingdom Passport 761084043, in the name of Robert John DRURY, born 1 September 1959. DRURY indicated on his incoming passenger card that he would reside at the Park Hotel in SYDNEY and his purpose for entry into Australia was to visit friends and relatives.
23 About 8.33pm on 8 November 2004, DRURY used telecommunications service 0405621458 to speak to O'BRIEN. This telecommunications service is subscribed in the false details of Miss Karen WATSON, 78 Wellington Street, WATERLOO, NSW, 2017 and was connected on 2 November 2002. The conversation concerned the two of them meeting up the following day and possibly making an "inspection”.
24 About 11.04am on Tuesday, 9 November 2004, DRURY had a telephone conversation with O'BRIEN who used telecommunications service 0432584988. This telecommunications service is subscribed in the false details of Jason CARTER of 222 Whyralah Road, LISMORE, NSW, 2478 and was connected 18 September 2004. During the conversation O'BRIEN advised DRURY that there were problems with his flight and that he would arrive in Sydney about 2.00pm that date. DRURY stated that he "couldn't wait and he would check 'the place' by himself".
25 About 11.11am that day, DRURY hired a silver coloured Hyundai Getz hatch back, Victorian registration TEP760 from Thrifty Car Rentals, located at King Street, Sydney NSW using NSW Driver’s License 700YG in the name of Robert HEWITT with the address details at 4Nepean Street, CRANEBROOK,NSW.
26 About 10.19pm that day, DRURY received a call from an unknown male overseas using telecommunications service 32474806840. The conversation included the following:
MALE Hello ROB how are you
DRURY How are you
MALE I'm fine eh so normally it will be during the day tomorrow but tomorrow morning I will have the exact hour so around eight o'clock nine o'clock AUSTRALIAN time I will call you with the exact hour
DRURY Probably tomorrow about eight o'clock and let me know what time
MALE Yes and eh can I give the number that you gave me to COLIN or not this time
DRURY Um up to you up to you
MALE Who will who will sign to release the goods
DRURY Um hang on mate JASON CARTER hello
MALE Yes
DRURY JASON J-A-S-O-N
MALE Say what
DRURY JAS-JASON J-A-S-O-N
MALE Yes yes yeah
DRURY CARTER C-A-R
MALE ROB ROB ROB can you eh can SMS it to me because it's too difficult
DRURY Okay all right and do you know what time you know what time tomorrow at all
MALE Tomorrow morning at nine o'clock AUSTRALIAN time I call to COLIN and he will tell me which your during the day time
DRURY But it'll be sometime tomorrow
MALE Sometime tomorrow under normal circumstances so he said to me no problem Wednesday we deliver but he did not know which hour maybe in a in eh around ten o'clock maybe around two o'clock but somewhere tomorrow but I will give you the
exact hour around nine o'clock tomorrow morning
DRURY All right mister all right and I send you a
MALE You gunna SMS the name
DRURY I'll SMS to you now
MALE Okay and can I give the telephone to COLIN or not
DRURY Um yes
MALE With your name
DRURY No no I'll send you the name now
27 About 10.28pm on the same day, DRURY sent a text SMS message to overseas telecommunications service 32474806840. The text message contained the details; Jason Carter 0432584988 regards bob.
28 On Wednesday, 10 November 2004, GENBRUGGE contacted the employees of Vanguard Logistics Pty Ltd and advised that the delivery address for the Industrial Bakery Oven was now unit 19 of 38-44 Elizabeth Street, WETHERILL PARK and the contact person for the delivery was Jason CARTER on telecommunications service 0432584988.
29 About 10.30am, on 10 November 2004, AFP surveillance observed a silver coloured Hyundai Getz hatch back, Victorian registration TEP760, with DRURY as driver and O'BRIEN as passenger, travel to unit 19 of 38-44 Elizabeth Street, WETHERILL PARK.
30 About 10.45am, on that day, AFP surveillance observed DRURY walked around the business complex at 38-44 Elizabeth Street, WETHERILL PARK and appeared to look around and pay particular attention to the vehicles in the car park.
31 Later on that day, AFP surveillance checked that the industrial unit at unit 19 of 38-44 Elizabeth Street, WETHERILL PARK was empty.
32 Later on that day, GENBRUGGE arranged with the employees of Vanguard Logistics Pty Ltd for delivery of the Industrial Bakery Oven on 11 November 2004 to unit 19 of 38-44 Elizabeth Street, WETHERILL PARK.
33 About 8.02pm on that day, GENBRUGGE, who was overseas, called DRURY on overseas telecommunications service 0422834746. The conversation included the following:
JURI Hello ROB it's JURI
DRURY Yes mate
JURI Eh the delivery will be as you requested between eleven and twelve because PETER just called me he said you have to be home eleven and twelve as we as we Agreed.
DRURY All right
JURI Okay
DRURY Yeah and it's gunna have a the facility will be able to pick it up
JURI Yeah I, I ordered a truck with the written on like you requested
DRURY Yeah all right as long as it comes with an arm that's okay.JURI Okay
DRURY All right MISTER
34 About 9.55am on Thursday, 11 November 2004, AFP surveillance observed a vehicle, Victorian registration TEP760, with DRURY as driver and O'BRIEN as passenger, travel to the warehouse complex at 38-44 Elizabeth Street, WETHERILL PARK.
35 About 10.04 am on that day, O'BRIEN unlocked the security door of the unit located at unit 19 of 38-44 Elizabeth Street, WETHERILL PARK and entered the premises.
36 AFP surveillance observed DRURY driving vehicle, Victorian registration TEP760 around the vicinity of the warehouse complex and appeared to look around and pay particular attention to the vehicles in the car park.
37 About 10.46am that day, a flatbed truck, NSW registration ZLD455, with the Industrial Bakery Oven arrived at unit 19 of 38-44 Elizabeth Street, WETHERILL PARK, and was met by O'BRIEN. Around this time, O'BRIEN spoke with DRURY on his mobile telephone to advise him of some difficulties encountered in transferring the industrial bakery oven from the back of the delivery truck, although it was eventually unloaded. At the time of this call, DRURY was in the vicinity of the warehouse but did not return to Unit 19.
38 Evidence obtained from the driver of truck registration ZLD455 indicates that O'BRIEN signed a delivery receipt for the delivery of the oven in the name Jason Carter.
39 About 11.45am that day, AFP surveillance observed O'BRIEN leave unit 19 of 38-44 Elizabeth Street, WETHERILL PARK and meet with DRURY at a nearby shop.
40 About 12.01pm that day, vehicle, Victorian registration TEP760 with DRURY as driver and O'BRIEN as passenger enter the warehouse complex at 38-44 Elizabeth Street, WETHERILL PARK and parked outside unit 19. A short time later on that day, DRURY and O'BRIEN entered the premises.
41 About 12.17pm on the same day, AFP surveillance observed vehicle, Victorian registration TEP760, with DRURY as driver and O'BRIEN as front passenger, exit the vicinity of warehouse complex at 38-44 Elizabeth Street, WETHERILL PARK and returned to the city where DRURY and O'BRIEN parted company.
42 About 12.54pm on 11 November 2004, an unknown male overseas called DRURY on overseas telecommunications service 0422834746. The conversation included the following:
O'BRIEN Hello BOB'S phone
MALE Eh, can I speak to BOB please
O'BRIEN He's driving hang on a second
MALE Yeah
DRURY Hello
MALE Hello is everything all right
DRURY Everythings fine
MALE Is eh everything in place yes
DRURY Pardon
MALE Just so eh I can go to sleep today yes
DRURY You can go to sleep
MALE Okay thank you very much ROB I hear from you later right
DRURY Um yeah can you ring my blonde friend and or send him a text message
MALE Eh I will do that I will do that okay
DRURY All right thank you
MALE Thank you bye
43 About 3.31pm on 11 November 2004, DRURY received on telecommunications service 0423726050 an overseas call from his girlfriend Jin HWANG. The conversation included the following:
HWANG Yeah what happened
DRURY Everything okay
HWANG Oh really
DRURY Mm
HWANG Oh oh my GOD thank GOD
DRURY Mm
HWANG Oh thank you very much thank you
DRURY Yes I'm just leaving the cemetery now
HWANG Yeah you didn't go see your mum and dad in the morning
DRURY I didn't have time this morning
HWANG Right so everythings fine
DRURY Yeah
HWANG It's in thereDRURY It's in there +
HWANG Oh oh my is it big
DRURY Yeah it's very big
44 About 5.00pm, on 11 November 2004, DRURY received a call from O'BRIEN on telecommunications service 0432584988. The conversation included the following:
O'BRIEN Hey BOBBY dude
DRURY Yes mate
O'BRIEN How are ya
DRURY All right
O'BRIEN Bloody traffic I tell ya what anyway
DRURY Mm
O'BRIEN Um I was wondering do you wanna go out there around eleven o'clock tomorrow
DRURY Possibly just let us know let see us tomorrow 'cause I wanna talk to some people but I'll explain when I see you all right
O'BRIEN Yeah all right
DRURY All right
O'BRIEN Well okay 'cause I'll take JEN shopping nine o'clock first thing in the morning
DRURY Yeah don't rush mate don't rush.
O'BRIEN All right
DRURY 'Cause you know we can do it you know do it Saturday
O'BRIEN Okay
DRURY We'll do it Saturday
O'BRIEN All right
45 About 6.10pm, on Friday, 12 November 2004, DRURY called O'BRIEN on telecommunications service 0432584988. The conversation included the following:
DRURY So I'm going back over there um what time will I see you tomorrow
O'BRIEN Eh early whenever you want
DRURY Just give us a ring later because I wanna make a move
O'BRIEN Yeah
DRURY But um we've gotta go and buy equipment and stuff
O'BRIEN Yeah that's rightDRURY And I haven't had a chance I haven't had a chance to talk to HARRY and no one open before nine o'clock
O'BRIEN Well I know what to get
DRURY I know but they won't open before nine o'clock
O'BRIEN Um BUNNINGS will if we can find a BUNNINGS they'll be open at six
DRURY I know where I know where BUNNINGS is
O'BRIEN They're open about six am
DRURY Do they
O'BRIEN Yeah
DRURY All right we'll leave home about eight o'clock well
O'BRIEN All right then well if I don't speak to you later on I'll I'll eh I'll be at your place at around eight
DRURY Eight eight thirty okay talk to you then
46 About 6.15am, on Saturday, 13 November 2004, DRURY received a call from O'BRIEN on telecommunications service 0432584988 and said that he "was down the road and would be at DRURY's in a couple of minutes".
47 About 8.36am that day, AFP surveillance observed vehicle Victorian registration TEP760, with DRURY as driver and O'BRIEN as passenger, travel from Kings Cross Road, DARLINGHURST to Bunning's Warehouse, located at Corner of Burke and Gardeners Roads MASCOT. DRURY and O'BRIEN then purchased power tools, a ladder and other hardware from Bunning's Warehouse.
48 About 11.02am that day, vehicle, Victorian registration TEP760 with DRURY as the driver and O'BRIEN as passenger, arrived at, and entered, unit 19 of 38-44 Elizabeth Street, WETHERILL PARK.
49 Between about 11.30am and 2.00pm that day, the sounds of grinding, cutting and hammering noises were heard from within the industrial unit located at unit 19 of 38-44 Elizabeth Street, WETHERILL PARK.
50 About 2.45pm that day, DRURY and O'BRIEN departed the industrial unit located at 19 of 38-42 Elizabeth Street, WETHERILL PARK in vehicle Victorian registration TEP760, when they were approached by AFP officers and arrested.
51 A search of vehicle, Victorian registration TEP760, located three of the boxes from the Industrial Bakery Oven within the boot of that vehicle. One of the boxes, which was opened, contained the substituted tablets. In the vehicle police also located various documents in the name Jason CARTER.
52 A search of unit 19 of 38-44 Elizabeth Street, WETHERILL PARK, revealed the Industrial Bakery Oven had been cut open and a drill, angle grinder and other tools were on the floor next to the oven. The majority of the boxes had been removed from the oven, some having been stored in the upstairs office area of the premises.
53 O'BRIEN participated in a taped record of interview in which he outlined his involvement in the matter and his adoption of the false Jason CARTER identity.
54 DRURY informed AFP officers that his legal name is Robert John HEWITT but declined to participate in a taped record of interview at that time.
55 On 30 November 2005 and 6 December 2005, Drury participated in non-recorded interviews with AFP officers. On 6 December 2005, he made a written statement. In that statement as well as confirming many of the facts that the AFP had already ascertained as a result of their investigations, he also made the following admissions:
(a) In the first half of 2004, he became involved with plans of associates in the Netherlands to import 4 million tablets of MDMA into Australia in a large piece of machinery. He did so because he was in debt to those people and his participation would clear that debt.
(b) His role was to rent a warehouse in Sydney for delivery, storage and unpacking of the MDMA once it arrived. He was not required to distribute the tablets as someone would come from overseas to do that. He was required to find a person to assist this person to distribute the tablets.
(c) He was also required to get somebody else to accept delivery of the machinery and he decided to use Zachariah O'BRIEN, a person he had met while serving time in Parklea prison.
(d) While still in the Netherlands, some time in the second half of 2004, he contacted O'BRIEN and said he had some work for him. He did not explain the nature of the work but said that he would be in Sydney shortly and they could discuss it.
(e) He arrived in Sydney in late August, early September 2004, he contacted O'BRIEN again and arranged to meet him in Sydney. O'BRIEN, who was living in Lismore at the time, flew down to Sydney shortly after.
(f) He met O"BRIEN at the Bar Cleveland in Surry Hills and gave him money for airfare and his accommodation costs. He told O'BRIEN about the MDMA importation and what the job involved and O"BRIEN said that he would be happy to do it. He told O.BRIEN he would be paid $70,000 for his role. They agreed that O'BRIEN would use the alias of Jason Carter, a name that O'BRIEN had used before.
(g) In mid - October 2004, he was advised by his associates in the Netherlands that the MDMA had arrived in Australia hidden in an industrial oven. He contacted O'BRIEN and told him to travel to Sydney from Lismore.
(h) A day after O"BRIEN had travelled to Sydney, he picked him up in a rental car and they drove out to the Wetherill Park warehouse. He gave O"BRIEN the keys to unit 19, dropped him off and told him to ring him when the oven had been delivered.
After 5 hours the oven had not arrived and he received a telephone call from his associates overseas indicating that the oven had been seized by Customs. He picked up O'BRIEN from the warehouse and told him the job was off. He gave O'BRIEN $2,000 for his trouble.
(j) The following day (20 October 2004), he left Australia for the Netherlands.
(k) About 12 days after that his associates in Amsterdam informed him that the oven had cleared Customs and he was to return to Australia and arrange for delivery and unpacking of the oven on 10 November 2004. He was instructed to offer more money to O'BRIEN for his help.
(l) Before returning to Australia, he contacted O'BRIEN to see if he was still interested in doing the job. O'BRIEN was and indicated that he still had the keys that DRURY had given him on the last occasion.
(m) Upon his return to Australia (8 November 2004) met O'BRIEN the following day and indicated to him that if he assisted one of the Dutch guys to make 3 deliveries of the MDMA he would get an extra $20,000 for each delivery. O'BRIEN agreed to do that.
(n) On Wednesday, 10 November 2004, after he had picked up O'BRIEN and they were on the way to the warehouse to take delivery of the oven, he received a call from one of his associates in the Netherlands who informed him that there was a problem with delivery and that the oven would be delivered the following day.
(o) On Thursday, 11 November 2004, while O'BRIEN was taking delivery of the oven at Wetherill Park he parked the car in the vicinity of the warehouse and conducted surveillance for police.
(p) On Saturday, 13 November 2004, when attempting to retrieve the MDMA from the oven at the warehouse in Wetherill Park, he saw wires that were attached to the oven and suspected that they had been put there by the police.
(q) While retrieving the MDMA from the oven he and O'BRIEN opened one of the boxes and saw pink coloured tablets inside.
(r) When retrieving the boxes from the oven they stacked them according to a code indicated by coloured tape on the boxes. He knew from his discussions with his associates in the Netherlands that the boxes were going to 4 different groups and were colour-coded accordingly.
56 The quantity and estimated value of narcotics involved:
The pure quantity of MDMA is 398.66 kilograms
The pure quantity of MDEA is 987 grams
The pure quantity of Methylamphetamine is 237 grams
57 The drugs seized consisted of a combination of tablets and powder. The total bulk weight of all drugs combined is 820.43 kilograms.
58 The total number of tablets was 2,880,705 weighing 702.75 kilograms. The estimated street value of the tablets, sold as MDMA (ecstasy) tablets, is approximately $144,035,250 based on average price of $50 a tablet as at November 2004.
59 The total weight of the powder is 117.68 kilograms. When converted to MDMA (ecstasy) tablets, and depending upon whether the tablets contain 3 gram or 2 gram of MDMA powder, the estimated street value would be between $39,226,950 and $98,067,500 as at November 2004.
60 Therefore the estimated street value of the tablets plus the powder when converted to tablets is between $183,262,200 and $242,102,750.
61 The estimated wholesale value of the tablets plus the powder when converted to tablets is between $73,304,880 and $96,841,100. The wholesale value is based upon a reduced price per tablet ($20) for purchasing such tablets in bulk amounts, typically amounts over 1000 tablets per purchase.”
The Cases presented on Sentence.
62 The offender agreed that the facts in this statement were true. Clearly, these facts set out in considerable detail the part played by the offender, and by others in a very serious criminal conspiracy to import huge quantities of amphetamines into Australia. The offender gave evidence over two days, and his counsel tendered on his behalf a letter from his de facto wife, a report from Professor Andrew Lloyd, which establishes that the offender has hepatitis C and is being treated in the hepatitis clinic at Long Bay gaol and a report from John Jacmon, a registered psychologist.
63 Other important material was tendered by the Crown. This included a letter of assistance provided by the Federal police, two statements from federal agent Constable, a statement of the offender, dated the eighth of December 2005, an undertaking to cooperate pursuant to section 21E of the Crimes Act 1914, and some material provided by Dutch police authorities.
64 In his statement of the sixth of December 2005, the offender claimed that he became involved in the importation of these drugs to satisfy a debt he owed to associates in Holland. In the psychologist's report, there is an account of his meeting a man called Danny. In Holland, and agreeing to mind for Danny an envelope, which contained €250,000. According to what he told the psychologist, someone stole this envelope and Danny became very distraught. The offender offered to pay about €120,000. He had in a bank account in Singapore, but Danny, after some days, told him that he could only discharge this debt by agreeing to take drugs to Australia.
65 The Crown challenged this claim by the offender as being one that lacked credibility. During the course of cross-examination, the offender conceded that Danny was a criminal, just as he, the offender was a criminal. The Crown put to me that this claim should not be accepted. I agree. I find it completely beyond the realms of possibility that a criminal, who did not know the offender would entrust him with the custody of €250,000 for no particular reason and that some mysterious burglar would make off with this money.
66 It may well be that he owed a debt of some kind to the Dutch drug syndicate, but his actions, as they are revealed in the statement of facts and in his own statement, establish, in my opinion, that he became involved in the drug importing arrangement for reasons of profit to him. He sought to maintain to the psychologist and to me that he was fearful for the safety of his de facto wife and himself. And that this was a motivating factor in his becoming involved. I do not accept this at all. On his own admission, he came to Australia, involve himself in making complex arrangements to receive delivery of the oven containing the drugs, and to arrange for an Australian accomplice to assist him in the enterprise and to provide further assistance as a distributor to other persons to be nominated by him. He made frequent phone calls to the Netherlands, and at one point returned to the Netherlands to receive further instructions. Having got these instructions, he then returned to Australia and continued to pursue the goal of getting access to the oven and the drugs contained in it. It is quite clear that he sent his de facto wife, first to the Singapore and then to Korea, her country of birth. If fear was a motivating factor, he had merely to tell the Federal police when he arrived in Australia what was going on and seek their protection.
67 Since being arrested, he has decided that his best course is to cooperate with the authorities, to inform on his associates and to plead guilty. All of this exposes him to risk, but it is a risk which he is prepared to take because he wishes to get the smallest possible sentence.
68 The Dutch authorities have indicated that he has passed valuable information on to them, upon which they have acted, but they nevertheless have some reservations about what he says. In my opinion, they have good reason to act cautiously and sceptically when dealing with the offender. In my opinion, he cannot be accepted at all when he claims to be involved in this operation to work off a debt incurred in the circumstances claimed by him.
69 The Crown has submitted that I should conclude the offender was a principal in the operation. His counsel has submitted that I should regard him as having a limited role. It was submitted to me by Mr Howen, counsel for the offender, that he merely passed on instructions to his associate in Australia, Mr O'Brien and did what he was told by people in the Netherlands. In my opinion, that submission cannot be accepted. It is my view that he came to Australia voluntarily, acted consciously and deliberately, returned to Holland and returned to Australia. The facts as he has given them himself, lead me to the belief that he was a willing associate of persons in Holland and co-operated with them in organising a scheme to import drugs into Australia. It is clear that for many years, he has been an active drug criminal and his activities during the time he was involved in this operation are entirely consistent with his previous criminal activities.
70 In my opinion, he was a principal in the operation and should be sentenced on that basis. I cannot conclude from the evidence available to me that he funded the purchase of the drugs or any part of the operation, but he clearly was an important figure in the organisation of the importation into Australia.
Subjective factors.
71 The letter from his de facto wife, supports his claim that there is a genuine loving relationship between them. He has given evidence that he frequently rings her, but that she is prevented from coming to Australia, because the authorities here will not permit her to land in Australia. His imprisonment without the comfort of visits from her will certainly be harder to bear than if she were able to see him. However, his two brothers do visit him, and so he is not left entirely lonely.
72 He has had significant health problems in the past, and his hepatitis C could well cause him to have quite severe problems in the future. He is a thin, rather depressed looking man. The psychologist found that he suffered from depression. In the past he has been a drug abuser, but there is no evidence that is a continuing problem.
73 Once he agreed to assist the authorities, he was moved into protection within the prison system. The prison authorities consider that they are able to house him adequately outside the special purposes prison. It is not possible for me to be certain, what prison or prisons will be his home. It is clear enough to me from my own knowledge of the prison system that he will not be housed with the general prison population in a large prison, but I cannot predict that he will necessarily be kept in circumstances of rigorous confinement.
74 He is 55 years old, and it cannot be predicted, what his lifespan will be. By pleading guilty and agreeing to give evidence in the forthcoming proceedings against O'Brien, and in court proceedings in Holland, if that is necessary, he has given evidence in a tangible way of some contrition. During the course of evidence, he has expressed remorse. I must take remorse and contrition into account, just as I must take into account his stated willingness to give evidence and further assistance to the authorities.
Sentencing considerations.
75 The offender involved himself willingly, in the importation of a vast amount of drugs into this country. The maximum sentence for this offence is life imprisonment. The Crown has put to me that but for his plea of guilty and his assistance to the authorities, that would be an appropriate sentence. Mr Howen has put to me that at the age of 55 years, a life sentence would be 20 years and that I should approach sentencing, taking into account his age and the reality of the likely length of his life.
76 In a case such as this, if there were a conviction following a trial, with no evidence of remorse or contrition, the principles of deterrence, general and individual, would in my opinion outweigh other sentencing considerations. General deterrence, in particular, would require, in my opinion, the imposition of a life sentence to make it plain that those involving themselves in such a vast criminal enterprise must expect to receive a sentence of that type. In coming to that determination, I disregard the factor of his age. It is clear that life sentences result in different terms being served by different offenders, but imposition of inappropriate sentences to reflect age considerations is not acceptable (See R v Wayne Robert Moore [2005] NSWCCA 212 at paras 27-29 per Latham J)
77 Mr Howen submitted with some force that those who were the financiers and main figures in this type of importing operation could reasonably expect to get a life sentence, but that his client should not have that visited upon him, because his role was a lesser one. I have considered that submission, but as I indicated earlier, in my opinion, the evidence does not permit me to come to a conclusion other than that he was a principal.
78 In this case, he has given evidence of contrition and remorse and clearly, his plea of guilty and offer of assistance, entitles him to a considerable discount on sentence. In addition, the subjective factors to which I have referred, entitle him to a shorter non parole period than I might impose if those factors were not there.
79 In my opinion, the factors which I have mentioned entitle me to impose less than a life sentence and I have come to the conclusion that a sentence of 30 years imprisonment is the appropriate starting point for his sentence. In my opinion, the fixing of any lesser starting point would result in a sentence that is manifestly inadequate.
80 However, that sentence should be discounted by 40%. The discount of 40% takes into account his plea of guilty, shortly before trial and the assistance which he has offered and will give in the future. A discount of 40% would see a head sentence being imposed of 18 years imprisonment.
81 Having regard to the subjective factors which I have already mentioned, I have decided that his non parole period should be 11 years. I am required to specify what discount I have allowed for a future assistance. I have come to the conclusion that the reduction in sentence for future assistance should be 20%, i.e. six years. Thus, if he does not give the assistance which he has promised to give in the future, in my opinion, his head sentence should be increased by six years, and his non parole period increased accordingly.
82 The law allows me to impose a fine on him as well, but I do not propose to do this since there is no satisfactory evidence that he has any means that could be used to satisfy such a fine. The offender has been in custody since the 13th of November 2004. The sentence will commence from that day.
I therefore sentence the offender as follows.
83 I sentence him to imprisonment for a period of 18 years. That sentence commences on the 13th of November 2004 and ceases on the 12th of November 2022. The non-parole period commences on the 13th of November 2004 and ceases on the 12th of November 2015 on which day he is eligible for parole.
84 I recommend that he be classified as soon as possible to a prison where he is protected, but, if possible is given access to work, library facilities and other facilities that are afforded to those in the general gaol population.
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