Standen v R

[2015] NSWCCA 211

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Standen v Regina [2015] NSWCCA 211

Hearing dates:

19 March 2015

Date of orders:

13 August 2015

Decision date:

13 August 2015

Before:

Bathurst CJ; Hoeben CJ at CL; McCallum J

Decision:

Refuse to grant the appellant leave to amend Ground 3 of the grounds of appeal.
Dismiss the appeal brought by the appellant against conviction.
Grant the appellant leave to appeal against his sentence on Count 2, but dismiss the appeal.

Catchwords:

CRIMINAL LAW – Appeal – conviction – evidence – admission – exclusion of prejudicial evidence under s 137 of the Evidence Act 1995 (NSW) – relevance - whether trial judge erred in admitting certain evidence

CRIMINAL LAW – Appeal – conviction – miscarriage of justice – whether miscarriage of justice arising from failure to properly direct jury as to elements of conspiracy

CRIMINAL LAW – conspiracy under ss 307.11 and 11.5 of the Criminal Code 1995 (Cth) – elements – whether jury must be directed that during the currency of the conspiracy, the accused and one other conspirator actually believed, at the same time, that another person intended to use the substance to manufacture a controlled drug

CRIMINAL LAW – Appeal – conviction – whether there was an error in failing to dismiss the jury following a note setting out concerns as to the length of the trial

CRIMINAL LAW – Appeal – conviction – miscarriage of justice – whether misdirection in summing up to jury – whether summing up unbalanced or unfair

CRIMINAL LAW – Appeal – sentencing – sentencing for multiple offences - cumulation, concurrence and totality - whether sentence manifestly excessive, unreasonable or plainly unjust

Legislation Cited:

Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Rules (NSW)
Criminal Code 1995 (Cth)
Evidence Act 1995 (NSW)
Jury Act 1977 (NSW)

Cases Cited:

Abdel-Hady (“SA”) v R [2011] NSWCCA 196
Agius v The Queen [2013] HCA 27; 248 CLR 601
Agius v R; Abibadra v R; Jandagi v R; Zerafa v R [2011] NSWCCA 119; 80 NSWLR 486
Cesan v DPP (Cth); Mas Rivadavia v DPP (Cth) [2007] NSWCCA 273; (2007) 230 FLR 185
Crofts v R (1996) 186 CLR 427
Festa v The Queen [2001] HCA 72; 208 CLR 593
Harriman v The Queen [1989] HCA 50; 167 CLR 590
Maric v R (1978) 20 ALR 513
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Patel v R [2012] HCA 29; 247 CLR 531
Papakosmas v R [1999] HCA 37; 196 CLR 297
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R (Commonwealth) v Mark William Standen [2011] NSWSC 1043
R (Commonwealth) v Mark William Standen [2011] NSWSC 1044
R (Commonwealth) v Mark William Standen [2011] NSWSC 1046
R (Commonwealth) v Mark William Standen [2011] NSWSC 1047
R v BD (1997) 94 A Crim R 131
R v Campbell [2008] NSWCCA 214; 73 NSWLR 272
R v Cornwell [2003] NSWSC 97; 57 NSWLR 82
R v Courtney-Smith (1990) 48 A Crim R 49
R v Standen [2011] NSWSC 1422
R v Zorad (1990) 19 NSWLR 91
Standen v Commonwealth Director of Public Prosecutions [2011] NSWCCA 187; 254 FLR 467
Wilson v R [1970] HCA 32; 123 CLR 334
The Queen v LK; The Queen v RK [2010] HCA 17; 241 CLR 177
Yousef Jidah v R [2014] NSWCCA 270

Category:

Principal judgment

Parties:

Mark William Standen (Appellant)
Crown (Respondent)

Representation:

Counsel:
GR James QC / GA Farmer SC / A Radojev (Appellant)
T Game SC / H Dhanji SC / S Buchen / J Roy (Respondent)

Solicitors:
Elliot Lawyers (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2009/8922

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2011] NSWSC 1422

Date of Decision:

8 December 2011

Before:

James J

File Number(s):

2009/8922

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Mark William Standen, was the Assistant Director, Investigations of the New South Wales Crime Commission (NSWCC). For a number of years prior to his arrest, he was involved in investigating drug trafficking and money laundering. Bakhos Jalalaty (Jalalaty) was an importer/exporter of foods. James Henry Kinch (Kinch) was a British citizen who had been arrested in Australia in 2003 for drug trafficking and money laundering offences. Kinch provided assistance to the NSWCC as an informer and the appellant was Kinch’s handler at the NSWCC.

In the Supreme Court, a jury found the appellant guilty of:

Conspiring with Jalalaty, Kinch and members of a Dutch criminal syndicate to import a commercial quantity of pseudoephedrine, intending to use or believing that another person intended to use the pseudoephedrine to manufacture a controlled drug, contrary to ss 307.11(1) and 11.5 of the Criminal Code 1995 (Cth);

Knowingly taking part in the supply of 300kgs of pseudoephedrine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW);

Conspiring with Jalalaty and Kinch to pervert the course of justice by agreeing that the appellant would use the knowledge and information obtained by him in his role with the NSWCC to avoid proceedings being instituted, or successfully prosecuted, with respect to the importation offence, contrary to s 42 of the Crimes Act 1914 (Cth).

The appellant was sentenced to 18 years imprisonment with a non-parole period of 12 years on the first count, 22 years imprisonment with a non-parole period of 16 years on the second count, 3 years 6 months imprisonment on the third count.

The Crown case was that Kinch’s role in the conspiracy was to liaise with the Dutch syndicate and provide funding for the operation. Jalalaty’s role was to deal with third parties to order and receive consignments from overseas and to store the pseudoephedrine. The appellant’s role was to use his law enforcement expertise and senior position to help Jalalaty and Kinch avoid detection and prosecution, to monitor Jalalaty and assist him and instruct him on what to say to investigators if questioned.

The evidence at trial revealed, inter alia, a large amount of communication between the parties during the relevant period, the appellant’s receipt of gifts and payments from Kinch, the appellant’s failure to report contact with Kinch to the NSWCC and the appellant’s knowledge that acetone would be stored at Jalalaty’s warehouse until it could be used. This occurred at a time when the appellant was in a strained financial position, had borrowed money from an associate and had failed to report this to the NSWCC. The evidence also revealed meetings between Jalalaty and Kinch in Bangkok and Jalalaty’s receipt of money from an associate of Kinch.

The appellant appealed against his conviction and sought leave to appeal against his sentence on the second count on the following grounds:

The trial judge erred in admitting:

NSWCC documents and testimony regarding these documents;

Evidence relating to the possession of acetone by Jalalaty;

Evidence relating to ‘MDMA’;

Evidence of ‘lies’ by the appellant.

There was a miscarriage of justice arising from the failure of the jury to be directed that a finding of guilt on Count 1 could only be made if the jury were satisfied that, during the currency of the conspiracy, the appellant and one other conspirator actually believed, at the same time, that another person intended to use the substance to manufacture a controlled drug.

The trial judge erred in failing to dismiss the jury on the 68th day of the trial, following a note setting out their concerns as to the length of the trial.

The trial judge’s summing-up was unbalanced and led to a miscarriage of justice.

The sentence imposed for Count 2 was manifestly excessive.

The Court (Bathurst CJ, Hoeben CJ at CL, McCallum J) held, dismissing the appeal:

Ground 1: Errors in admitting certain evidence

In order for evidence to be excluded under s 137 of the Evidence Act, unfair prejudice to the accused must be identified, evidence is not prejudicial merely because it tends to establish the Crown case: [333].

Papakosmas v R [1999] HCA 37; 196 CLR 297, R v BD (1997) 94 A Crim R 131, Festa v The Queen [2001] HCA 72; 208 CLR 593, applied

There was no error in admitting the NSWCC evidence as it was relevant and highly probative, demonstrating the impropriety of the appellant’s relationship with Kinch and his motive for engaging in the conspiracy: [331], [335].

Wilson v R [1970] HCA 32; 123 CLR 334, Harriman v The Queen [1989] HCA 50; 167 CLR 590, R v Cornwell [2003] NSWSC 97; 57 NSWLR 82, applied

Patel v R [2012] HCA 29; 247 CLR 531, distinguished

There was no error in admitting the evidence relating to acetone as it supported the inference that what was intended to be imported was a substance that could be used to manufacture a prohibited drug and that the appellant, Kinch and Jalalaty were involved: [361].

There was no error in admitting the evidence relating to MDMA as this evidence was relevant to the appellant’s involvement in the conspiracy and to Count 3 and was not unfairly prejudicial: [374]-[376].

There was no error in admitting evidence that the appellant did not tell RAMS about his loan and requested his associate not to tell the NSWCC, as this evidence was relevant to the appellant’s financial position and was evidence from which the jury could infer a corrupt relationship with Kinch: [386].

Ground 3: Failure to direct the jury as to the elements of a conspiracy

For the crime of conspiracy under ss 307.11(1) and 11.5 of the Criminal Code (Cth) to be made out, it is not necessary for the Crown to prove the precise date at which the accused and one other party entered into the agreement. It is necessary, however, for the Crown to prove that the accused and one other party participated in an agreement to commit the offence prescribed by s 307.11 in the period the subject of the indictment. The accused and that party must believe that another party intended to use the substance to manufacture a controlled drug and must hold the belief required by s 307.11(1)(b)(i) during the course of the conspiracy and at the same time. The trial judge’s directions adequately dealt with this matter: [417], [419], [422]-[425].

The Queen v LK; The Queen v RK [2010] HCA 17; 241 CLR 177, Agius v The Queen [2013] HCA 27; 248 CLR 601, Standen v Commonwealth Director of Public Prosecutions [2011] NSWCCA 187; 254 FLR 467, applied.

Ground 4: Failure to dismiss the jury on the 68th day of the trial

The trial judge did not err in failing to dismiss the jury on the 68th day of the trial as the trial judge did not know that the trial would last more than 3 months, the power to empanel additional jurors was not enlivened, the jury’s concerns did not point to any incapacity to discharge their functions as jurors and the trial judge was best placed to assess the fairness of continuing the trial: [435], [437]-[438].

Crofts v R (1996) 186 CLR 427, applied.

Cesan v DPP (Cth); Mas Rivadavia v DPP (Cth) [2007] NSWCCA 273, distinguished.

Ground 5: The summing-up was unbalanced

The trial judge’s summing-up was not unbalanced or unfair as the trial judge properly informed the jury that they were the judges of fact, that they should disregard his comments on facts if they did not agree with them and that any comments he made on the Crown’s or appellant’s submissions should not be taken as an endorsement of them: [450]-[451], [459].

Abdel-Hady (“SA”) v R [2011] NSWCCA 196, R v Courtney-Smith (1990) 48 A Crim R 49, R v Zorad (1990) 19 NSWLR 91, applied.

The Sentencing Appeal

When sentencing, an appropriate sentence must be formulated in respect of each offence. It is only when that has occurred that considerations of cumulation, concurrence and totality are taken into account to ensure that the overall sentence is within an appropriate range. Thus, it would be incorrect for the Court to take the sentence for the conspiracy to import offence and use it as a benchmark against which to measure the sentences for the other offences as that approach would have no regard to the maximum sentence: [511], [512], [515], [516].

Pearce v The Queen [1998] HCA 57; 194 CLR 610, Yousef Jidah v R [2014] NSWCCA 270, applied.

The sentence imposed for Count 2 was not manifestly excessive, unreasonable or plainly unjust given the maximum sentence for that offence, the trial judge’s assessment that the offence was above the middle of the range of objective seriousness for offences of its type, the fact that the elements and facts which went to make up the conspiracy to import offence and the supply offence were different and the fact that the trial judge specifically dealt with the actions of the appellant which were directly referable to supply: [501], [513].

R v Campbell [2008] NSWCCA 214; 73 NSWLR 272, Markarian v The Queen [2005] HCA 25; 228 CLR 357, considered.

Judgment

1. THE COURT: By an indictment presented on 16 November 2010, the appellant, Mark William Standen (the appellant), was charged with the following offences:

“1.   between 1 January 2006 and 2 June 2008 at Sydney in the State of New South Wales and elsewhere, did conspire with Bakhos Jalalaty, James Henry Kinch and divers others to import a substance, intending to use or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely pseudoephedrine, and the quantity imported being a commercial quantity.

Contrary to Sections 307.11(1) and 11.5 of the Criminal Code (Law Part Codes: 58481, 41450).

2.   between 1 January 2006 and 2 June 2008 at Sydney in the State of New South Wales and elsewhere, did knowingly take part in the supply of an amount of a prohibited drug, to wit 300kgs of pseudoephedrine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug.

Contrary to Section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (Law Part Code: 68401).

3.   between 1 January 2006 and 2 June 2008 at Sydney in the State of New South Wales and elsewhere did conspire with Bakhos Jalalaty and James Henry Kinch to pervert the course of justice in relation to the judicial power of the Commonwealth, by agreeing that Mark Standen would use his knowledge and information obtained by him in order to avoid proceedings being instituted or successfully prosecuted with respect to an offence of importing a substance in contravention of Commonwealth law.

(Contrary to Section 42 Crimes Act 1914 (Cth) (Law Part Code: 10877).”

2. After a lengthy trial before James J and a jury, the appellant was convicted on all counts. On Count 1, he was sentenced to 18 years imprisonment with a non-parole period of 12 years, commencing on 2 June 2008. On Count 2, he was sentenced to 22 years imprisonment with a non-parole period 16 years, commencing on 2 June 2008. On Count 3, he was sentenced to 3 years 6 months imprisonment, commencing on 2 June 2008.

3. The appellant has appealed against his conviction on all counts and has sought leave to appeal against his sentence on Count 2.

The Crown case

4. In its broadest outline, the Crown case can be summarised as follows. During the period covered by the indictment, the appellant was the Assistant Director, Investigations of the New South Wales Crime Commission (NSWCC). The only persons senior to him in the NSWCC were the Commissioner and the Director. He had a long history of working for law enforcement and investigative bodies, including the Australian Customs Service, the Australian Federal Police (AFP) and the Australian Crime Commission. He joined the NSWCC in 1996. For a number of years prior to his arrest, the appellant headed up one of two investigation teams at the NSWCC which investigated drug trafficking and money laundering.

5. The appellant’s alleged co-conspirator, Bakhos Jalalaty (Jalalaty), conducted an import/export food business. His wife (Ms Jalalaty) had worked with the appellant in the AFP and the appellant had met Jalalaty through her. The other named alleged co-conspirator, James Henry Kinch (Kinch), was a British citizen arrested in Australia in 2003 for drug trafficking and money laundering offences. After his arrest, Kinch commenced providing assistance to the NSWCC. The appellant and a NSW police officer, who was much junior to him, became the co-handlers of Kinch as an informer. The appellant introduced Kinch to Jalalaty. Kinch was not in Australia at any time during the period that the conspiracy was said to be on foot.

6. The Crown case concerned a conspiracy to import a large quantity of pseudoephedrine, in the order of 300 kgs, contained in shipments of rice, with the amount of money which could be derived from the importation at times referred to as $100,000 per kilogram. It should be noted that when the shipment of rice which was allegedly intended to contain the pseudoephedrine arrived in Australia, it did not contain any bags of pseudoephedrine.

7. Participants in the conspiracy were said to include the appellant, Jalalaty, Kinch and members of a criminal syndicate based in the Netherlands. It was alleged that Kinch had close connections with the syndicate, which was based around a Mr Ronald Haklander (Mr Haklander) (referred to as ‘Fat Ron’) (the Haklander syndicate). The syndicate had connections with persons in Pakistan who were believed to be able to secure large quantities of pseudoephedrine.

8. The Crown’s case was that the appellant formed a corrupt relationship with Kinch between the time of his arrest in 2003 and the commencement of the conspiracy. The admission of the evidence concerning this relationship is the subject of Ground 1 of the grounds of appeal. The Crown case was that during this time, the appellant commenced receiving corrupt payments from Kinch and the appellant regularly failed to report and document contact that he had with Kinch.

9. The Crown case was that the appellant was in a strained financial situation throughout the relevant period. He had incurred large credit card debts and had over-extended his finances by purchasing a property at Bateau Bay. The Crown case was that it could be inferred from this that he was expecting a financial windfall. This was allegedly consistent with communications between the appellant and Jalalaty about anticipated profits from the activities the subject of the charges.

10. The Crown case was that between 19 and 22 January 2006, Jalalaty met Kinch in Bangkok. Shortly thereafter, Jalalaty received approximately $1 million in cash from an associate of Kinch (referred to as the “Portuguese mate”), which was to be used to build-up Jalalaty’s business as a legitimate front for the illegal activities. The Crown case was that the appellant was aware of this payment. It was also the Crown case that the appellant was aware that before Kinch left Australia in 2004, he had access to over $1.5 million cash, the proceeds of drug dealing or related crime.

11. It was the Crown case that a substantial portion of these funds were invested by Jalalaty with a Mr Bruce Way (Mr Way), without the agreement of Kinch. The Crown case was that the appellant used his position and contacts to assist in attempting to recover that amount.

12. The Crown case was that the principal role played by Kinch in the conspiracy was to liaise with the Haklander syndicate. He was also to provide funding for the Australian limb of the operation. Jalalaty’s role was to deal directly with the syndicate members and their Pakistan associates in relation to the ordering and receiving of consignments shipped from overseas. He was also responsible for storing the pseudoephedrine contained in the shipment of rice. The Crown alleged that the pseudoephedrine was to be obtained from Jalalaty and then manufactured into a prohibited drug.

13. The Crown case was that the appellant had two major roles. The first was to use his law enforcement expertise and senior position to help his co-conspirators avoid detection. Second, on Jalalaty’s shortcomings becoming increasingly obvious, the appellant was instructed by Kinch to monitor Jalalaty and assist him in carrying out his role. At the request of Kinch, he also instructed Jalalaty on what to say to investigators in the event that he (Jalalaty) was questioned (the insurance policy).

The evidence at the trial

A The intercepted and surveillance material

14. The Crown placed considerable reliance on communications between the named alleged conspirators and others said to have been involved in the conspiracy. A large amount of lawfully intercepted material was tendered at the hearing. Although it is not necessary to record all of that material, to understand the case it is necessary to refer to some important aspects. This summary of the intercepted and surveillance material, as well as the summaries of the appellant’s and Jalalaty’s ERISPs, the documents obtained as a result of search warrants and the evidence of witnesses at trial, is largely drawn from the Part 1A Document provided by the Crown in the appeal. It was not contended by the appellant that the summary, at least to the extent that it is reproduced below, was incorrect.

15. The evidence relating to the intercepted material was led through Federal Agent Watt (Agent Watt). In his evidence, he explained the technique of covert email communications dominantly used by the conspirators. He explained that most of the email accounts held by the conspirators were not used to send emails. Rather, the login information for the accounts would be shared between the conspirators, who would then leave messages for each other in the form of saved draft emails. Draft emails would then typically be deleted or overwritten after being read. This enabled the conpirators to communicate without ever having to send emails or leave an email exchange. Agent Watt explained that while some of the conspirators’ emails were lawfully intercepted through telephone intercepts, others were intercepted by means of a device covertly installed on the appellant’s and Jalalaty’s computers, which took screenshots every ten seconds. The unsent draft email messages were captured in this way.

16. Agent Watt gave evidence that the AFP began investigating Jalalaty when he was sent a facsimile on 14 May 2007. The fax was from a fictitious company, MDL Food & Services India (MDL Food), which was understood to be a front for a Dutch drug syndicate already under joint investigation by Australian and Dutch authorities. It was sent from an internet café in Amsterdam which was used by the Haklander syndicate because it did not add a time or location stamp to outgoing faxes. The fax was purportly sent from Delhi India to introduce MDL Food as a “manufacturer and supplier of … food and beverages … all over India and Middle East”. It stated that MDL Food “would like to start business and co-operation with your company BJS Fine Foods in Australia”. The facsimile invited Jalalaty to visit MDL factories in Delhi and noted that MDL’s branch office was in the United Arab Emirates.

17. Kinch was known to the AFP by the time of the commencement of the investigation. On 24 May 2007, Dutch investigators photographed two known close associates of Kinch, Mr Haklander and a Mr Petrus Dekker (Mr Dekker), with Kinch in Amsterdam. On 29 June 2007, Kinch was also photographed with Mr Haklander, Mr Dekker, a Mr Leok Weerden (aka Rashid) and a Mr Tom Van Den Berg (Mr Van Den Berg) in Amsterdam.

18. Six email exchanges between the conspirators which pre-dated the investigation, during the period from 3 May 2006 to 18 May 2007, were recovered from the email account provider after the investigation commenced. They showed that: Jalalaty provided the appellant his bank account details “for the investment”; the appellant passed on news from Kinch to Jalalaty, including Kinch’s instruction that the appellant and Jalalaty should take $76,000 out of “existing funds if there is enough left” and split this amount; and Jalalaty asked the appellant what Kinch wanted him to do with “the drums”. They also referred to Jalalaty’s travels in Asia meeting “powerful and influential people” and various deals involving the appellant and Jalalaty, and in some cases implicitly Kinch, such as an order of “two containers of water” for $80,000, from which they would “make 20,000 dollars profit”. The emails also refer to an anticipated trip to Dubai in January or February 2007.

May 2007

19. In May 2007, Jalalaty was recorded discussing with the appellant: food imports arranged with his business partner, Julian Holmes, in Dubai, which he intended to sell to “IGA” and “Harris Farm”; tracking down the whereabouts and assets of Mr Way (whom the appellant and Jalalaty held responsible for losing or stealing their $580,000 investment) with the assistance of the appellant, Roger Rogerson and Mr Frank Wheeler (Mr Wheeler); and Jalalaty’s debt owed to a friend.

June 2007

20. Rashid and Mr Van Den Berg were recorded by Dutch police on 1 June 2007 discussing that “the faxes had been sent” and “the other would first like to have a … test sending”. It could be inferred that this related to the facsimile of 14 May 2007, referred to in par [16] above.

21. Telephone intercepts in that month also record continued attempts to trace the lost investment with Mr Way, with the assistance of the appellant and Mr Wheeler. In those communications, the appellant was recorded as saying that Mr Wheeler often referred matters to him at the NSWCC if it appeared that there had been a fraud that the appellant would want to investigate. The intercepts also showed that the appellant made checks at the NSWCC (using the AUSTRAC database) and confirmed to Jalalaty that money given to Mr Way had been transferred out of the country. On 15 June 2007, Mr Wheeler brought Mr Way to the NSWCC premises to meet with the appellant. The appellant told Jalalaty that Mr Way gave him the details of the people with whom he had invested the money and that recovery of the money from Mr Way himself was “hopeless”.

22. Around this time, members of the Haklander syndicate arranged a shipment of two boxes of sample food products from Dubai, purporting to be from MDL Food, to BJ’s Fine Foods. A fax purporting to be from MDL Food sent from the Amsterdam internet café was received at Jalalaty’s home on 19 June 2007. The fax referred to the consignment and MDL’s ability to ship goods in large shipping containers and advised that MDL’s representative in Dubai, Daniel Cloutier (Mr Cloutier), would be in contact with Jalalaty to finalise documents. Agent Watt gave evidence that Mr Cloutier was an alias for the Haklander syndicate member, Jan Plas (Mr Plas).

23. On 16 June, Jalalaty arranged for $145,000 to be sent to Kinch to provide a partial refund for the money which Kinch had advanced to him. The following day, Jalalaty arranged to meet an unknown male connected to Kinch (the Portuguese mate). He called his wife at the time and told her that he needed a further $360,000 to get Kinch “off his back”. On the same day, he called the appellant and told him that he had to pay Kinch $500,000 and that he was trying to “scrounge” together everything he could to meet his debts.

24. On the same day, Jalalaty was surveilled going into the Bondi Junction Westfield shopping centre and exiting an hour later with an unknown man who was alleged by the Crown to be the Portuguese mate. Jalalaty showed the man a box and its contents in the boot of his car. Agent Watt said that the box resembled one of the several boxes sent by the Haklander syndicate, which had been inspected by authorities before being sent on to Jalalaty.

25. Agent Watt gave evidence that on 20 June 2007, Mr Cloutier/Mr Plas called Jalalaty from Dubai, saying that he had information that the samples had been received and confirmed this with Jalalaty. The intercepted conversation showed that Jalalaty asked if coconut could be shipped in 25 pound bags and advised that coconut milk required a nutritional information panel to get through Customs. On 22 June, Jalalaty viewed a draft email message drafted by Kinch which said, “have any news on the salts … that is very important … as i am under pressure to make a decision if i want liquids or powdered products its more work but personaly i prefer the milk what are your thoughts”. Jalalaty responded in a draft email the same day saying “It doesn’t matter which products you send … I only told you that I had a market for the Coconut Milk and for the shredded coconut as they are big sellers. The salts can be sold but in smaller volumes”.

26. Later that day, Jalalaty rang the appellant and told him that he had emails overnight and had sent another email to the appellant. On the following day, Jalalaty read another draft email message from Kinch in which Kinch assured Jalalaty that he would have his first delivery in a matter of weeks and said that he wanted to “push the c/milk as the main line”.

27. In the meantime, on 25 June 2007, Mr Way emailed Mr Wheeler referring to an agreement made at the meeting with “Mr Stanton, Assistant Commissioner of the NSW Crimes Commission … held across the road [from the Commission] in a coffee shop”. The email also referred to Mr Wheeler’s insistence that Mr Way personally reimburse the Jalalatys. On 25 June, this email was forwarded by Mr Wheeler to the appellant and the appellant and Jalalaty discussed it later that day. In the discussion, Jalalaty wanted confirmation that what Mr Wheeler was doing was legal.

28. On 26 June 2007, a Haklander syndicate member, Rashid, pretending to be from Dubai, called Jalalaty to let him know that he was trying to send faxes through to him (Jalalaty). A fax dated 25 June 2007, purporting to be from MDL Food, was then sent from a Dubai coffee shop and received by Jalalaty. It referred to a shipment of coconut milk and powder and further samples of goods which would be ready for shipment in two to three weeks. The fax referred to Mr Cloutier as their representative.

29. On 28 June 2007, Jalalaty received instructions by telephone from an unknown woman to transfer $5,000 into the appellant’s bank account.

30. On the afternoon of 29 June 2007, Kinch was observed meeting Rashid, Mr Van Den Berg, Mr Haklander and Mr Dekker in Amsterdam.

31. Agent Watt gave evidence that throughout June, the appellant and Jalalaty agreed to meet in person on at least nine different occasions and they were observed meeting near the NSWCC on 13 and 19 June 2007.

July 2007

32. The appellant, Jalalaty and Kinch remained in email contact throughout this month.

33. On 1 July 2007, Kinch told Jalalaty that he had met a sales manager who was “happy to go on”, but warned Jalalaty not to mention “in any way, shape or form anything to do with your ex mrs job or maurice’’s business as this would finish the whole thing”. The reference to “your ex mrs” was said to be to Ms Jalalaty, who had previously been an AFP officer, while “maurice” referred to the appellant.

34. In early July 2007, Jalalaty told the appellant that he had some receipts of money transfers to the appellant.

August 2007

35. There were frequent communications between Kinch and Jalalaty in August 2007, using a number of different aliases and discussing various products and investment opportunities which Kinch had investigated and passed on to Jalalaty. On 6 August 2007, Jalalaty emailed Kinch, “I am seeing my girlfriend today as I miss her and havent seen her for a while. Her parents are very strict so we have to be very sneaky about seeing each other”. The following day, the appellant and Jalalaty spoke on the phone and agreed to meet that afternoon for the first time since July.

36. On 15 August 2007, the appellant called Mr Wheeler and advised him not to send a letter to the directors of the company in which Jalalaty’s money had been invested, which purported to summon them to a hearing before the appellant at the NSWCC, because that was not how it worked.

37. On 16 August 2007, Kinch asked Jalalaty to give the appellant some receipts to “give to Jojo”, which was an alias for Kinch. Later that day, Kinch complained to the appellant that he (Kinch) had told Jalalaty that the appellant could have (within reason) whatever he needed and did not understand why the appellant had to get him (Kinch) to tell Jalalaty and why they had to explain everything to Jalalaty.

38. On 17 August, a conversation between the appellant and Jalalaty was recorded in Jalalaty’s car. They discussed possible jam importation and the sugar content of jam.

39. Around 25 August, Jalalaty was recorded checking various bank account balances and had approximately $451,530 in one account and $240,090 in another. The appellant was also recorded accessing his online banking service, which showed debts of $86,932.23 and $26,150.47. He was recorded making a payment of $5,000 to “AW & GA Newton” on 21 August 2007. Anthony Newton (Mr Newton) was subordinate to the appellant at the NSWCC and gave evidence at the trial that he had mortgaged his house to lend the appellant $200,000.

40. On 28 August 2007, Dutch surveillance observed Kinch meeting with Rashid, Mr Haklander and Mr Dekker in Amsterdam. On 29 August, Jalalaty read a message from Kinch which said “I had a meeting with the sales manager today, he explained about the new rules concerning import licences etc, anyway all is in order and they will send you mail tomorrow and the products will be with you soon”. Jalalaty responded with an acknowledgement signed “Bruce sales and Marketing Manager”.

September 2007

41. On 5 September 2007, Jalalaty received a fax dated 30 August 2007 addressed to BJ’s Fine Foods, purporting to be from “Elegant Hosiery (Pvt.) Ltd” in Lahore, Pakistan. It advised him that Elegant Hosiery had been nominated by MDL Food to supply the export of “Pakistani Basmati Rise” to Australia. It also said that the three to four week delay was caused by Australian Customs checking the “company, factory, goods and container” at the point of departure and advised that all necessary documents would be forwarded to Jalalaty in time for collection.

42. On 6 September 2007, Jalalaty advised Kinch that he had received nine pages of documentation regarding the first shipment. The same day, Kinch emailed the appellant about “a bit of gossip” that “ron bullit and dirk are both in the hospital in Belgium,, arms and money problems”. He also appeared to pass on new email account details. The next communication between Kinch and the appellant, according to Agent Watt, was saved to this new email account.

43. On 9 September 2007, Jalalaty received a fax from Elegant Hosiery setting out “the final details of the shipment”. On 10 September 2007, Jalalaty told the appellant that he had ordered a container of rice, had the bill of lading and that “all my documentation and eh my warehouse is good it’s all clean and the pallets are all there ready to unload”.

44. The appellant and Jalalaty met on 15 September 2007 at a café in Wahroonga. Their conversation was recorded by a listening device. In the course of that conversation, Jalalaty said to the appellant, “how long would it take for someone to say what the fuck’n what’s Elegant Hosiery doing selling rice is that silly”. The appellant replied, “all sorts of companies do all sorts of stuff”. Jalalaty then complained that the price for the rice was above market price, but he did not pay anything “that makes it uh $6 a bag”. Jalalaty went on to say that “I’ve got everything they never sent me a sample of rice but you don’t need to and and Pakistani rice is known as the best rice in the world that’s not a problem but the price is not right but it’s close to it all documentation is all spot on and it’s already been checked by AQIS [Australian Quarantine & Inspection Service] Australian AQIS over there”. Jalalaty said that there was 17 tonnes of rice. He said that he did not order it but that it could be sold. The appellant asked where it was and Jalalaty replied, “it arrives here on the 10th of October”. The appellant said, “you don’t even know what it is you don’t know if it’s rice or it’s not rice” and Jalalaty responded, “no it’s already been checked by Australian customs”. The appellant said that Jalalaty should keep it at his (Jalalaty’s) warehouse.

45. Later in the conversation, the appellant asked “so you’re thinking this is just rice” and Jalalaty replied, “I don’t know I think it is because he is just testing the water”. The appellant also said that once it arrives, “you just don’t know what you’ve got either” and Jalalaty replied, “now that I know it’s coming I’ve already spoken to enough people as soon as it arrives hey listen your rice is here”. There was then a discussion about customs in Australia, Jalalaty saying, “what they’re worried about they’re not worried about drugs they’re worried … about things getting in like with rice little weevils”. The appellant told Jalalaty that Customs still examine incoming goods and Jalalaty asked what Customs looked for. The appellant replied, “Customs look for wrongly described goods um undervalued goods umm prohibited goods of any sort including drugs like anything prohibited wrong description of goods”. A conversation to the following effect then occurred:

“Jalalaty: well when it arrives it’s all be the same it could be anywhere I don’t think it’s in the first container cause he said to me let me know if there’s any let me know if there’s any …

Appellant: but you haven’t had to actually pay for that rice they are not expecting you to pay for it … we haven’t really … but on paper it looks like it is already paid for … so you say yeah I had the money sent to me from Dubai … they’d look for the money leaving here wouldn’t they and there’s no evidence of the money leaving here.

…

Jalalaty: I know for sure I can sell them for five dollars a kilo

Appellant: so you pick up seventeen thousand bucks for nothing … even if there’s nothing in it.

…

Jalalaty: (indistinct) came in couldn’t have been checked down the other end otherwise they would have picked it up

Appellant: wouldn’t matter under the new system they wouldn’t make it

Jalalaty: that’s why I don’t think the first container will be anything I think it’s just rice

Appellant: yeah unless they have a way of getting to it after it’s been quarantined

…

Appellant: mm I just can’t wait for the bloody get the slate clean … I’ll get the slate clean just get and then get just a little bit ahead of the action … slate clean’s the most important thing

Jalalaty: well that should be this one

Appellant: and then get a little bit ahead of the action so I’m not chasing the eight ball all the time.”

46. Subsequently, the appellant made the following remarks:

“I did a job once a couple of years ago where all this stuff came in through the big the plastic orange drums … an olive importer out near the airport and … he had a warehouse full … all the drums were the same colour but … when you put them together you go oh yeah oh yeah didn’t notice that … and they were all these drums lying on his warehouse floor they said that one that one that one that one that one that one that one couple of Islanders right load all those up yep thank you the rest are yours.”

47. The appellant told Jalalaty that the olive importer got away with it because he said that he did not know anything and co-operated with the police. Jalalaty said that that was what he would do. The appellant responded, “the only thing you’ve got to have clear in your head is how it started how did you first get in touch with these people”. The appellant then set out a detailed account of how Jalalaty could say he came to know the exporters and that if anything was found, he should say, “they shouldn’t have sent” it and “I’ll help ya hang the bastards”.

48. Agent Watt gave evidence that in 2002, the appellant was involved in the NSWCC investigation of the olive importer with the orange drums.

49. Jalalaty and the appellant then discussed their financial difficulties. In the course of that conversation, the appellant made the following remarks:

“they just gotta send me money they could put the money in through the businesses and just send me the money and the thing is they bought me out of the house they bought my share the share of the house is worth a couple of hundred thousand dollars.”

“I just want two hundred thousand”

And subsequently:

“Yeah two thousand a weeks ok we’ll do that its easy look a piece of cake but I need about a two grand a month buffer.”

And later in the conversation:

“I took out a bigger ah I’ve created this bigger mortgage I’ve had umm I’ve had to get the deposit off that (indistinct) cash advance on credit cards I’ve done all those things that’s the trouble once you do that so like I’ve got I’ve got like I’m running four credit cards at their maximum I’m just doing this I’m paying off use it paying off use it that’s how I’m keeping my head above water by doing this yeah

Subsequently, the following exchange occurred:

“Appellant: depends what they buy and what they sell it for they’d probably make … at least umm allowing to pay for all costs they’d probably make from a hundred to a hundred and twenty a kilo.

Jalalaty: so if they bring in a hundred kilos it makes twelve million profit and he goes half with (indistinct) biggest mule and we go we go thirds that is that’s what he said to me the first job (indistinct) make one each.”

The evidence established that pseudoephedrine had an estimated wholesale value of $40,000 per kilogram.

50. Later in the conversation, Mr Jalalaty asked about using internet cafés and the appellant replied:

“Yeah we’ve followed people into internet cafés if they’re doing really dodgy stuff and when they’re gone we go and take the we go and approach the owner and we’d take the we take the box from the internet café download it.”

Mr Jalalaty is recorded as laughing and the appellant went on to say “because if you delete stuff it’s still there but if you type over the top of it you know”.

51. On 17 September, Jalalaty confirmed some of the shipping details with Kinch via email and asked if it all sounded right to him. Later that day, Rashid called Jalalaty to ask if the second shipment could be sent. Jalalaty said yes and asked if it was rice and Rashid said that yes, the second would be just rice, but the third and fourth might have different goods, as agreed. Jalalaty said that he would have to discount the rice to sell it and Rashid said, “this is the special rice you know what … with the vegetables and everything in it”.

52. On 23 September 2007, the appellant asked Jalalaty for $9,000 to cover some of his expenses. The amount of $9,000 was deposited by cheque into the appellant’s account on 27 September 2007.

53. From about this time on, there were a series of conversations between Jalalaty and persons from Pakistan and between Jalalaty and Kinch concerning difficulties in getting the bill of lading in respect of the rice shipment. It is unnecessary to set out those conversations in detail.

54. On 27 September 2007, Ms Jalalaty told Jalalaty that she had received a fax from Pakistan requesting US $6,231 immediately. On the same day, Jalalaty told her that the $9,000 for the appellant “comes off the purchase price of the rice”. Jalalaty also received a further fax purporting to be from Elegant Hosiery confirming the first shipment and forecasting shipping dates for the second, to contain “Pakistani Basmati Rise”.

55. On 28 September, Jalalaty told the appellant about the further request for money from Elegant Hosiery. The appellant told Jalalaty that the investment of $580,000 that Jalalaty had lost with Mr Way appeared to be a common form of scam and the appellant would contact his “FBI mate” to look into Jalalaty’s case.

56. On the same day, Jalalaty made inquiries with the shipping company about the status of the first shipment and organising a Customs agent. On the following day, Ms Jalalaty transferred the Australian dollar equivalent of $6,300 to Elegant Hosiery in Pakistan.

October 2007

57. In early October 2007, Kinch told Jalalaty to “check the seals on the container to see if they are correct” once the shipment arrived. Agent Watt gave evidence that if the seal number on the received container did not match the seal number according to the bill of lading, it would indicate that Customs or the Australian Quarantine & Inspection Service (AQIS) had broken the seal to examine the contents.

58. On 3 October 2007, Rashid was told that his container had arrived in Sydney Harbour “so please arrange the document and send there”. The person speaking to Rashid told him that he still had the bill of lading and Rashid would have to pay $8,700 to get it.

59. The first rice shipment arrived in Australia on 4 October 2007, but there was a significant problem with the money transferred to Elegant Hosiery. As a result, the bill of lading was not posted to Jalalaty at the time of shipment and the majority of communications with Kinch in October concerned Jalalaty’s attempt to take possession of the shipment. During October, Jalalaty received a number of faxes from Elegant Hosiery and MDL Food. He was also in frequent contact with “Raza from Pakistan” and “Rashid from Dubai”. After more than two weeks of back and forth between Raza and Jalalaty trying to settle the problem with the money transfer, Raza told Jalalaty on 15 October, “this is a problem from eh Netherland Netherland side”.

60. On 17 October, Rashid told Jalalaty that the problems were caused by their “Commissioner” in Pakistan (apparently a reference to Elegant Hosiery). Rashid told Jalalaty to pay the amount asked for by Elegant Hosiery, less the amount he had already transferred directly to Elegant Hosiery. On 19 October 2007, Rashid confirmed to Jalalaty that the Elegant Hosiery contact was “Razak”, but that he had been keeping the money and they would not use him again.

61. On 22 October 2007, Jalalaty received a call from Raza who told him to transfer a further US $58,000 to Elegant Hosiery. On 24 October, Ms Jalalaty transferred $30,587 to Razbeek of Global Bizz in Pakistan, pursuant to instructions in a fax from MDL Food of 20 October 2007.

62. Kinch sought frequent email updates on the status of the shipment from Jalalaty.

63. On 15 October, the appellant wrote Kinch a message stating that he was hearing stories in Australia about “poms and others who live in Spain and Portugal” (Agent Watt gave evidence that Kinch spoke with an English accent and had lived in Portugal) and a number of other persons “who do business here”. He said that people were “hearing things they shouldn’t” and wanted to know if Kinch could assist. Kinch replied that he would try to help and he gave the appellant detailed information on what he knew about the people that the appellant had named, but said that he did not move in those circles anymore. He warned the appellant that one of the men mentioned “has contacts in redfern plus feds”. A few days later, the appellant wrote to Kinch saying that he was “looking forward to a time when none of this matters and we can meet and talk like normal people, without strings attached and people monitoring every move”.

64. On 22 October 2007, the appellant was observed meeting Jalalaty at a café near the NSWCC. Part of the conversation was recorded. The appellant complained about his dire financial situation and they seemed to discuss an offer that someone had made to Jalalaty to help transfer $3 million out of America and into Australia, on which he would receive a one third commission. The appellant suggested that it sounded like a “Nigerian scam”, too good to be true and Jalalaty should consult Mr Wheeler, who had met the person making the offer.

65. When Kinch learned, on 24 October 2007, that the bill of lading had still not been provided, he wrote to Jalalaty saying, “I’m really tired of these children, i will be seeing there mom later and depending on what is said I will decide whether to bother with them”. The reference to “their mom” was presumably a reference to those controlling the Haklander syndicate.

66. On 25 October 2007, a conversation between the appellant and Jalalaty in Jalalaty’s vehicle was recorded. Jalalaty told the appellant about all of the difficulties he had been having with the first shipment and the confusion between Rashid, “the factory” (Elegant Hosiery) and Kinch. The appellant said that he could speak to Kinch, but that Jalalaty told him that it was now “all good” and all he wanted to know was whether the container had “been tampered with”.

67. On 30 October 2007, Jalalaty advised Kinch that the container had arrived and would be checked by “quarantine not Customs”.

November 2007

68. The shipment was received on 7 November 2007, after being fumigated a second time. Jalalaty expressed concern to Rashid that the fumigation process involved every item being removed from the crate and Kinch emailed Jalalaty asking if any of the packets were opened during the inspection. Jalalaty reported back that the inspection was triggered by loose grains of rice not having been cleaned before the container was sealed. Kinch told him to go ahead and sell all of the contents of the container. Kinch said that he had spoken to “Rash mom” and would tell her about the “cleaning rota”.

69. Jalalaty’s communications with Raza and Rashid continued throughout November concerning outstanding and missing payments relating to the second shipment, without resolution. On 4 November 2007, Kinch complained to the appellant about Jalalaty, describing him as “a complete walter mitty”. The appellant replied, apologising for “Mr Bean”, saying that he had “me fooled well and truly”. On 12 November 2007, Kinch asked the appellant to keep an eye on Jalalaty and the appellant replied that while Jalalaty was an asset, because he knew buyers for the bigger shops, they should keep “her [Jalalaty] very secret to avoid pressure from other growers, suppliers, vendors etc”.

70. On 13 November 2007, Kinch told the appellant that Jalalaty kept “name dropping and having weird conversations with” the supplier and factory who “do not know anything about anything”. He also told the appellant that he was planning a meeting with Jalalaty “where I saw her here with you” and that he was working hard to get the projects back on track.

71. Each of Jalalaty and Kinch were in Dubai between 13 to 15 November 2007. On 21 November, Jalalaty was recorded as saying to an unknown person, something to the effect of “When they import the drug right it comes in a form and then they pour the acid over it and the product cleans it and crystallises it and it uses hundreds of litres of it that’s what he told me”. At the trial, Counsel for the appellant did not accept that the words “when they import the drug” could be heard on the recording. Jalalaty then telephoned a Mr Michael Moraleda and discussed acetone that Jalalaty was selling. Jalalaty said that he was not concerned with price and said, “I just want it out of there because somebody finds it there how would I explain myself”. The following day, Jalalaty told the appellant that he had a guy sourcing product for him in Dubai named Mike Von Hohenberg (Mike).

72. On 23 November, the appellant and Jalalaty were recorded near the NSWCC discussing the first shipment and the Customs and AQIS process. Jalalaty said, “did you know I was seeing my mate over there”. The appellant responded, “I did know you’d gone he said um I dunno about ten days ago … I expect to be seeing Myrtle [Jalalaty] in a few days”. Jalalaty then said that he was talking to another guy called Rashid and “I was hoping we could catch up … with Rashid”. Jalalaty then told the appellant that he met Kinch and his “Portuguese mate the baldy guy” at the Emirates Mall in Dubai. He said that the Portuguese mate raised the question of the money and said “I know I’ve already spoken to ah Maurice [the appellant] and he said if there’s anything we can do he said we’ve got people in all the places”. The appellant responded, “they’ll do some serious debt collecting”.

73. In the conversation, Jalalaty and the appellant discussed the fumigation of the first shipment. Jalalaty said that he had gotten to know the chief quarantine officer very well and he had showed him how they slashed some of the bags to look for weevils. He said that he asked the quarantine officer if he could guarantee that his next container would be checked because he wanted a good product. He said that he told the quarantine officer that there was another shipment before Christmas. Jalalaty said that he would organise it and there would be 60 bags in it, amounting to 300 kilos. The appellant said “right down the back of the container … hopefully”.

74. Jalalaty also told the appellant of a conversation he had had with Rashid where he (Jalalaty) said that he had “other products happening” and said that he asked Rashid, “how do I know when it’s coming in and how much it’s going to be” and Rachid said “first will probably be sixty bags of five kilo”. He said that Rachid asked him how many bags there were in a container and Jalalaty responded “about four and a half thousand”. Jalalaty and the appellant then discussed the amount of money that could be made from 60 bags of 5 kgs at $100,000 a kilo. There was also discussion about the possibility of detection.

75. There was then a discussion about who would pick up the next shipment and Jalalaty said that it would be done by “my Portuguese mate”. Jalalaty said that he would come and pick up 30 bags and then return them and he (Jalalaty) would destroy them. The appellant asked if, when he took the bags away, the bags were marked with something that could be linked to Jalalaty’s shipment. Jalalaty said, “they’re inside the rice bags he takes”. Jalalaty explained that then the people took their products out, gave them back the empty bags, and he destroyed them. The appellant said that it was not good that people knew that it came in rice. Jalalaty then said that he could have the Portuguese guy do it in his (Jalalaty’s) factory, “take them out take out the leave the bags there that would be better”. The appellant said “that’s what I’m saying what he [the Portuguese mate] could do when you’re not there … is he should only take the inner bags he shouldn’t take rice bags so people can say oh I recognise that rice bag … as soon as they link it to rice bags they start checking on rice”.

76. On 28 November 2007, the appellant was asked by an administrative manager at the NSWCC whether Kinch was still an active informer. He initially said yes and then changed his mind and said that his status had changed to inactive.

December 2007

77. In this month, Jalalaty began communicating with Mike who was identified by Agent Watt as Mr Von Hohenberg, a member of the Haklander syndicate.

78. On 5 December 2007, Jalalaty complained to Rashid that he had now paid US $60,000 for products worth US $17,000 and this did not look good to his accounts people. Rashid responded, “Mike is in Dubai and will contact you”. On the same day, Jalalaty told Kinch that he had received an email from Mike and sought confirmation as to whether he could discuss pricing with him and whether Rashid was still around. Kinch replied that he could discuss pricing with Mike but that they should “just stick to a few things … i am waiting for news from ras mom”.

79. On 5 December 2007, a conversation between Jalalaty and Ms Jalalaty was recorded in which she asked how long the relationship with Kinch was going to continue. Jalalaty responded, “well talking after a white Christmas once we get the first one through then we’ll decide. I spoke to my little mate he said you tell me when to stop. He said to me ah and I said I’ll do as you (indistinct) said”. Ms Jalalaty replied, “I just wanted … to know that was all but I would’ve thought that as seeing how the last one was rice if they’ll get it in the next one”. Jalalaty replied, “yeah but this one’s gotta come in I’ve got to un I’ve gotta open every single box … find the three hundred bags no sixty bags put it back in there sell em (indistinct) bags of rice go through the whole (indistinct) container (indistinct) tonnes you couldn’t notice if you (indistinct)”.

80. On the next day, Ms Jalalaty, in the context of a discussion about payment for freight and fumigation, asked Jalalaty “is that one that I paid for the other day is that less” and Jalalaty replied, “na that’s the next one that the one that’s … the one we want when that comes through hopefully we’ll be debt free .. we will be debt free from those people”.

81. On 12 December 2007, Kinch told Jalalaty “we have everything in place for the new contacts so lets get this headache one over”. The same day, the appellant and Jalalaty were surveilled having a conversation near the NSWCC. The conversation was recorded. In the conversation, the appellant said that Jalalaty was paying too high a price for rice and Jalalaty agreed that it was 30% above market rate. Jalalaty said that he needed to make sure that if an accountant asked why he paid $13 for rice, when he only sold it for $5, he was going to say that he was “trying to buy market share”. Jalalaty said that he was “documenting everything just like you [the appellant] told me”. He said that on Kinch’s instructions, he would only use public internet sites to check Hotmail. Jalalaty said that he had not heard from Kinch (referred to as “B52”) for a whole week. The appellant said that Kinch had told him that he was trying to get some “Christmas presents done early to avoid the last minute rush”. Jalalaty responded that he had met the “Portuguese bloke” who was going to be there when the stuff arrived, “which is all fine”. He said, “that doesn’t bother me all good if they send me one container of milk powder that’s all my money gone cause that milk powder is one hundred grand”. Jalalaty said that he had already paid for the next container.

82. On 19 December 2007, Jalalaty was recorded on a number of calls to Mike. Jalalaty told Mike that he had already paid US $60,000 to the people from MDL Food. They discussed the price at which Jalalaty could sell rice in Australia and Jalalaty told Mike that the price did not matter because he worked on commission. Mike stressed to Jalalaty that he must only speak to him and refuse to deal directly with the factory. On the same day, Jalalaty asked Kinch if he should travel to Germany to meet Mike. Kinch told him not to make any travel plans.

January 2008

83. On 5 January 2008, Mike rang Jalalaty to discuss their business. He asked Jalalaty to come and meet him in Germany. Jalalaty emailed Kinch on that day to ask if he should go to Germany. On 7 January, Kinch wrote back and told Jalalaty to stay put “as i am waiting for rashes mom to give me some news .. if rash is not ready i will sack them and we can move forward with mike”. On 10 January 2008, the appellant and Jalalaty were recorded having a conversation near the NSWCC. There was a discussion concerning Elegant Hosiery and the first shipment. They also discussed the difficulties with payment in relation to the first shipment and whether Jalalaty should go to Germany. In that context, Jalalaty said “(indistinct) said to me hey look listen I’ve spoken to Rashid’s mum and looks like were back on track”. Thereafter, the following conversation took place:

“Appellant: so Rashid’s back in it

Jalalaty: Rashid’s (indistinct) so they’re trying to and the and the container is in the dry dock and the dry dock means its loaded and waiting then

Appellant: that should be that’s just rice

Jalalaty: yeah but and the the no he said to me the next will be a live one whatever that means I want it to be live I don’t want anymore

Appellant: not alive with weasels weevils

Jalalaty: no soon the live one will come he’s not stupid”.

84. Subsequently in the conversation, the appellant asked Jalalaty if he was doing what Kinch had told him to, in regard to only going to internet cafés, and Jalalaty replied that Kinch was using another email address.

85. The appellant asked whether Ms Jalalaty knew of the existence of Mike and Jalalaty replied, no. He also said that while she knew Kinch, she did not know that “he lends us the money”.

86. Subsequently, Jalalaty said that the way Kinch was going, “if we get the shipment through but within six to eight weeks you’ll [the appellant] never ever have money problems ever again you wouldn’t be able to spend the interest on the money”. The appellant replied, “look I don’t do anything silly I don’t do anything ridiculous I don’t spend anything ridiculous I have a good time”. Jalalaty said that Kinch suggested putting the money with him (Jalalaty) in the National Bank of Dubai and Kinch could guarantee 20% a year.

84. On 24 January 2008, Kinch was observed by Dutch investigators meeting with Rashid (Mr Weerdon), Mr Van Den Berg, Mr Haklander and Mr Dekker in the Netherlands. The next day, Jalalaty received a message, which had been sent earlier by Kinch, saying, “i have not had a chance to catch up with the girls” but have arranged “to have dinner with their mom tonight”.

February 2008

88. On 14 February 2008, Rashid sent a fax to a Mr Nawaz in Pakistan, headed “Bashma International Rice Cooperation”, which included a list of things which had been agreed. It was in the following terms:

“Then goods check of 300 and test certificate like sample certificate is sent.

Then 300 to rice factory. When the goods have left by ship (from Pakistan) agent gets another $14,000 US dollars;

Manufacturer adds 200 himself. After receipt customer gets $3,000 USD a piece;

These 200 are also tested with test certificate.

Supplier ensures total of 18,000 kg rice. Price is around $0.62 cent. Total of $11,160 USD. The packaging is organised.

… [sets out the number of each bag volume]

The bags of 15kg are 34 inclusive.

Manufacturing date 21 January and 27 January for the 15kg (34)

Costs shipment FOB to customer. Address follows.

Shipment within ten days from today.

…

Customer details and address follow this weekend

We need:   1. Test certificate of all goods

2. Invoice to customer

3. Packing list to customer

4. Samples of three types of packaging (5, 15 and 25)

5. Photos of goods and container

6. container number

7. shipment date and transporter and shipment itinerary

8. all goods must be disinfected

9. arrival date with customer

We must ensure that the goods are sent off next week and that we receive the documents.”

89. On 25 February 2008, Jalalaty received a fax from Mr Cloutier, attaching a draft email addressed to BJ’s Fine Foods, which stated that the agreed shipment which had been “scheduled earlier 2 months ago is now ready for departing. The new factory will send you the Bill of lading and original documents as soon as … the shipment has departed”. It noted that the payment had already been received.

90. On 27 February 2008, Jalalaty and Ms Jalalaty discussed their dire financial situation and Ms Jalalaty said, “the reality of the situation is that we’ve only gotta ride out probably another month until the the container arrives”. Ms Jalalaty said that Jalalaty could not keep giving money to “the little fella” (a term previously used to describe the appellant).

91. On that day, Rashid advised Jalalaty that the shipment was in process. The following day, Jalalaty informed Kinch of this and said that he would have the documents within five days of the shipment leaving. Kinch replied “I see the girls tonight xx OK”.

March 2008

92. On 2 March 2008, Kinch wrote Jalalaty a message stating “i was with all the children’s parents a few days ago and a few of them where upset with your behaviour they showed me your mails etc, you did it again , you contacted the vietnamese company direct … i have managed to keep things on track for the moment but please stop and think before doing silly things.” The following day, Kinch complained to the appellant, “i do not understand mirtyle [Jalalaty] … she has done the same things as last time”.

93. On 7 March 2008, the appellant sent Jalalaty a text message that said, “nothing has changed from that list I showed you so the pressure is still on at my end … I have to survive that long. If you can work some magic it will repay itself soon enough”. On 9 March 2008, the appellant emailed Kinch advising that he found himself “needing 14.5 soonish”, which Jalalaty could not accommodate, and asking Kinch to transfer it to Jalalaty. Kinch agreed and asked if Jalalaty could be trusted to give it to the appellant. The appellant reassured him. Kinch asked the appellant to send him Jalalaty’s account details.

94. On 10 March 2008, Rashid informed Jalalaty that he was waiting for the bill of lading.

95. On 11 March 2008, the appellant and Jalalaty were surveilled meeting near the NSWCC. They discussed the risk of the container being searched by Customs. The appellant informed Jalalaty that “they only search suspect ones … otherwise they just all go through by the … tens of thousands”. The appellant also discussed his increasingly difficult financial situation. They discussed the money that the appellant had requested from Kinch and the appellant said, “I’ve got no way of getting it I need an account to send it to and it can’t be mine but I mean so can I give him yours … and that’ll take the pressure off”. Jalalaty agreed. The appellant said that he had asked Kinch for far less than he needed, but that if the situation was not resolved within a few months, he would have to go back and be honest with Kinch about the extent of his situation.

96. Agent Watt gave evidence that later that day, Jalalaty sent the appellant his account details.

97. On 11 March 2008, Jalalaty wrote to Kinch saying that “Maurice [the appellant] has extended himself so much and borrowed more than he can handle. … He is living beyond his means. I am selling stock for people to help him pay his debts”.

98. On 22 March 2008, a fax headed “M/S Malik Sons” of Pakistan, describing the contents of a 20 foot container of white rice, was sent to Rashid’s home in the Netherlands from Pakistan. On 26 March 2008, Kinch wrote to Jalalaty telling him that he “saw the paper for rash’s project, you [Jalalaty] should have or will receive the papers … you will receive the product in approx. 3 weeks … i have passed on the number for Maurice’s predicament and you will receive a call very soon”.

April 2008

99. On 1 April, a meeting took place between Jalalaty and the appellant in Jalalaty’s car, which was recorded. Jalalaty referred to an email from Kinch saying, “it says ok you’ve already paid them so therefore they’re giving you stock which you already own so and they told you that they they they’ve got a customer for you but they haven’t told you who the customer is it’s all the stuff that you’ve told me in the past”. The appellant replied, “he [presumably Kinch] doesn’t tell me anything about all that cause you know I I I I think he wants me to be like a million miles away”. It appears from the conversation that Jalalaty handed the appellant some money and there was a discussion about whether it could be put into the bank account in one hit. The appellant said that “no one will notice the bank won’t care but if it goes bad just day well was strapped you um helped me out”. Jalalaty informed the appellant that Rashid had said to him, “I’m just waiting on your on your bill of lading”. He said, “It will be there in three weeks … but rash was meant to send me the bills of lading that gives you the ship number container number you trace it on … the website … and then you’re right”.

100. Later on that day, Jalalaty wrote to Kinch, “I met her today and delivery has been made”. That night, the appellant wrote to Kinch, signing off, “Thanks for your good wishes. Your extra hugs were greatly appreciated”. Agent Watt gave evidence that an amount of $9,450 was deposited into the appellant’s account on 1 April 2008.

101. On 8 April 2008, Rashid rang Jalalaty and told him that the originals were being sent by UPS courier and he would refax him copies. Jalalaty then wrote to Kinch, “Spoke to Rash today Documents on their way with UPS shipment”.

102. A faxed letter from MDL Food, attaching a certificate of origin for the rice and copy of the bill of lading was received by Jalalaty on 5 April 2008. The letter was signed “Rashid Abdar”.

103. The appellant and Jalalaty met near the NSWCC on 9 April 2008. There was discussion about the possibility of detection. The appellant said, “we just locked up two blokes this morning”. Jalalaty said, “are there’s a lot they’re catching a lot there’s a lot coming through isn’t there … if they’re checking every single container … but they can’t … they physically can’t can they”. The appellant said that it takes 80 seconds to put a container through an x-ray machine, “but a lot of fucking around to get it there”. Towards the conclusion of the conversation, the following exchange took place:

“Jalalaty: (indistinct) see it’s only a few days away so (indistinct)

Appellant: (indistinct) get us get us (indistinct) rice so I can (indistinct) some rice

Jalalaty: forty kilo bag … you you if anything like if anything was to happen you you’ll hear

Appellant: (indistinct) see

Jalalaty: if I was being watched right now would you know ah you wouldn’t know

Appellant: already (indistinct)

Jalalaty: exactly

Appellant: don’t watch ordinary business men bringing in just food stuffs

Jalalaty: that’s right you have to have (indistinct)

Appellant: (indistinct) might be a bid dodgy and then half are not.”

104. On 11 April, the appellant and Jalalaty discussed a new credit card that Jalalaty had just applied for which would allow him to borrow $100,000 at 2.9% interest “for 12 months”. He suggested that the appellant could make use of it to take “the pressure off you for twelve months” as he would only have to “come up with twelve hundred a month. The appellant replied, “hopefully we don’t have pressure for twelve months”.

105. On 16 April 2008, Jalalaty again texted Rashid seeking an update on the original documents. On 17 April 2008, Jalalaty wrote to Kinch stating, “My people here have checked the number that Rash gave us and the package is supposed to be here on the 24th. I have been asking for the originals but no luck as yet If the package arrives and the paperwork is not here,then the thing will sit around attracting unwanted attention”. On 19 April 2008, Jalalaty told Kinch, “It is now confirmed. The shipment will arrive on Friday. rash says the documents have been sent”. On 22 April, Jalalaty texted Rashid, “Shipment now ariving in 2 days please i need docs urgently”.

106. On 24 April 2008, Rashid received a fax at his home from a Pakistani number, containing a covering letter from MDL Food to BJ’s Fine Foods, which advised that the “original documents including Bill of Lading are forwarded to you by courier”. The fax also included copies of the bill of lading, a certificate of origin for the rice, an M/S Malik Sons packing list, a fumigation certificate and included a statement that “I HAVE nothing more 2 Send you”.

107. On 25 April 2008, Jalalaty told Kinch that the ship was “already here and my customs clearance people are waiting on me”. On 28 April 2008, Jalalaty received an “Arrival notice / Tax Invoice” from MISC Agencies (Australia) Pty Ltd (MISC), i.e. Customs, advising that the consignment of 537 bags of rice from M/S Malik Sons had arrived for BJ’s Fine Foods and setting out freight charges.

108. On 29 April 2008, Jalalaty texted Rashid, “We just opened the envelope and there are no originals but a demand to pay for wat i dont know wat the hell is going on can u please ring me”. The note (referred to as a “ransom note”) was recovered during a search of Jalalaty’s home. It said:

“Hello man

I am Sending the Photo Copy of the Documents, Because 4 the originals B/L I must Pay the MONEY to those People who c]Cleared the matter for me. Now I m bound to them if you need the original then Your side should Pay me what I axactly must Pay for these People. So Please donot delay the MONEY, So that I must Pay to get the originals.

Tanx

NOTE:- if I donot get the MONEY quickly. I Can face big problem. So please take my request seriously and finish the Problem as soon as Possible.”

109. Thereafter, there were a series of messages passing between Kinch, Jalalaty, Rashid and other members of the Haklander syndicate, endeavouring to facilitate the obtaining of the original bill of lading and the consequent release of the shipment. It is unnecessary to set these out in any detail.

110. On 30 April, Jalalaty and the appellant met near the NSWCC. The appellant told Jalalaty that Kinch was in Dubai and Jalalaty asked if Kinch told him about “the fuck up we’ve had with this container it arrived last Thursday”. The appellant said that he would ring a Customs supervisor that day and ask about a report, “I’m writing like a summary and … if you don’t hear from me everything’s fine I’ll just send … you a blank message”.

111. The appellant then called a Customs analyst, Mr Gavin Whalebone (Mr Whalebone), and told him that he was “doing reference review for the Commission” in relation to the “Delgety Reference” and asked whether Customs had any evidence, “be it anecdotal or actual of um an increase in the brown powder”. After the call, the appellant sent a blank text message to Jalalaty. In his evidence, Mr Giorgiutti, the solicitor for the NSWCC, explained that the “Dalgety Reference” involved the supply of “brown heroin” from Afghanistan. He said that there was no reason why the Dalgety Reference required updating by the appellant at that time.

May 2008

112. Contact between the various parties increased in May 2008. The appellant remained in contact with Kinch via the draft saved email system. The conversations, which particularly involved Jalalaty, Kinch, members of the Haklander syndicate and various persons in Pakistan, were primarily directed at obtaining the bill of lading. In that context, on 5 May 2008, Jalalaty received a call from MISC (Customs) advising him that they had received an email from Karachi telling MISC to export the container back to them. In a phone call, Rashid told Jalalaty that the persons making the demand were blackmailing them and they needed to go around them.

113. Jalalaty and the appellant met on 9 May 2008. Jalalaty told the appellant that Kinch had said that he was going to “have to step in and sort this matter out” and that he (Jalalaty) had replied, “yes meanwhile my arse is getting grilled the container’s sitting there with my name on it ah what do we do” and he said “speak to maurice [the appellant] and so far as far as far as he knows it it’s ok”. Jalalaty asked, “if someone was looking at it looking at me you would have known by now” and said, “my last email to my customs agent I said if this container wasn’t paid for then I should send the bastard back”.

114. On 12 May 2008, the appellant called Mr Whalebone to ask who he should ring with “some shit on information about some cargo”. Mr Whalebone told him to call Steve Mercer (Mr Mercer). The appellant then contacted Mr Mercer and told him, “I just got got a bit of info I thought I’d pass to ya all quiet in the western front is it”. Mr Mercer told him that it was and the appellant then told Mr Mercer, “he has heard very reliably that um a group of dutch guys have got a shipment of um of crystal MDMA … it’s in a consignment of of bath salts from china”. Mr Mercer told the appellant that he would do some checks and see what he could find out.

115. The appellant and Jalalaty had a further meeting on 13 May 2008. Jalalaty updated the appellant on the status of the container, the original bill of lading had still not arrived. The appellant said that it was “bad” and “if there’s some somebody with bad blood they’d make a phone call” and the storage company would likely think it was strange that it had not been collected. Jalalaty said that he thought Kinch should just “pay”. He suggested that they (he and the appellant) could find someone in Customs and give them “a hundred grant to get it out for me two hundred grand five hundred grand”. The appellant said, “then you’ve got to involve people … that’s where they come unstuck those people always get found out”. The appellant also said that it would be suspicious if the container was sent back and that the industry would be suspicious about two people fighting over one container of rice.

116. On 19 to 20 May 2008 Jalalaty sent and received a number of emails and made and received a number of calls regarding the shipment and tracking down of the bill of lading. Kinch faxed Jalalaty a copy of the documents that his associates had obtained on or about 20 May 2008. On 21 May 2008, Jalalaty confirmed with MISC in Sydney that he could bring the originals directly to them, pay the necessary charges and have the container released. On that day, the appellant and Jalalaty met near the NSWCC. Jalalaty updated the appellant regarding the situation with the container and the bill of lading. He told the appellant that he could not bring himself to ask Kinch for more money when he was in Dubai and they discussed the appellant’s dire financial circumstances. The appellant and Jalalaty discussed the ways in which they could be detected and the ways in which to move money into Dubai. In the course of the conversation, Jalalaty said, “but the thing is it’s not a finished product twenty … twenty-three”. The appellant said, “ah no so these are like chemicals and things like um crystal” and Jalalaty said, “yeah looks like rice”. Jalalaty also said, “the product itself won’t do anything to anyone like you opened it won’t do anything when you mix it with something else then it becomes something else”. The appellant said, “they’re making something whatever we don’t know”.

117. Jalalaty again described how the product would be removed from the rice bags in his warehouse and collected by his Portuguese mate. The appellant asked if they would “take it all in one go”. There was a further discussion of how the container might be screened. The appellant also cautioned Jalalaty against the use of “helpers” because “helpers is when you go wrong”.

118. Later that day, the appellant wrote to Kinch saying, “She’s [Jalalaty] painful. Met her today”. Kinch replied the following day saying, “I have at last fixed the problem”.

119. Jalalaty was booked into a slot for collecting his container and having a “tailgate” inspection at 1.00pm on 23 May 2008. On that day, he obtained the original bill of lading and took it to MISC in Sydney. At 3.30pm on that day, the appellant called Customs analyst, Mr Whalebone, but as he was on annual leave in Saigon, they only spoke briefly. The appellant then called Customs Intelligence looking for Mr Mercer, but was unable to reach him.

120. On the evening of 23 May 2008, Jalalaty wrote to Kinch saying that they had a 1.00pm timeslot but that there was a queue of trucks “a mile long” and “At 4.30pm there was only 2 trucks allowed to stay and the rest were told to come back Monday. Ours was left there incurring no more costs and we will be processed first or second on monday. … Today has been the longest day of life”.

121. Between 23 and 25 May 2008, the AFP examined the container and found no border controlled precursors.

122. The appellant and Jalalaty met at 8.44am on 24 May 2008 in Wahroonga. At the meeting, the appellant told Jalalaty about attempting to contact Mr Whalebone. On 26 May 2008, Jalalaty and Ms Jalalaty were recorded in conversation. Jalalaty told Ms Jalalaty that they were doing “a full unpack” and he was not sure if that meant he should play dumb or that they knew something, “which means … the container’s for B52 [Kinch]”. Jalalaty said, “there’s forty bags in there so I just need to be about two hundred mile ahead of them”. Jalalaty told Ms Jalalaty that the appellant had heard nothing. On the same day, the appellant rang Jalalaty, who told the appellant that he was having a terrible day because “i’m expecting a shipment through customs and they’re they’re fucking me around and my agent said that they’re un un loading everything”. Five minutes later, the appellant called Mr Mercer, the Customs liaison officer, to ask if he had anything “on that profiling stuff”. Mr Mercer told him that he had nothing.

123. On 27 May 2008, the appellant and Jalalaty arranged to meet near the NSWCC. Jalalaty asked the appellant, “why would they unload the whole container … unless they knew something”. The appellant referred to his conversations with Mr Mercer and said, “we haven’t heard anything that’s the point I spoke to the guy who was getting onto a plane to Brisbane yesterday afternoon I said how’s biz he said all quiet I said we all need something he said yeah I know like dead quiet he said ah we got five hundred five hundred and one pills of this coming we got that thing there we got that like he didn’t say a word”. Jalalaty asked whether he could be lying and the appellant replied, “wouldn’t need to unless they already knew the connection but that’s very pretty unlikely”. He said that that would give them “too much credit they’re never that good”. Subsequently, the appellant said that in the time that the shipment was delayed, they would have to open all the bags, find what they were looking for, test it and replace it with something else to deliver. He said it would have taken a lot longer and in any event, “they rarely run it live” like that. Jalalaty asked the appellant, “if you were in trouble would someone let you know” and the appellant said, “some people would yeah”. The appellant instructed Jalalaty that when the container was taken to his (Jalalaty’s) place, he should behave absolutely normally, “but don’t talk near the container … just … ring that bloke that wanted to buy the rice”. He also said, “you can start ringing a few people and say look are you still interested in rice we’ve got”.

479. His Honour set out his conclusion in relation to these communications in the Remarks on Sentence:

“[145]   The evidence I have referred to constitutes additional facts of the supply offence and shows how deeply the appellant was involved in the criminal venture and the importance of his role in the venture.”

Subjective matters

483. In the Remarks on Sentence, his Honour reviewed the appellant’s subjective case. No challenge has been made to any of these findings. The appellant was born in 1957. He was married in 1984. There were four children of the union, three adults and a daughter aged nearly 10 at the time of the sentence hearing. An important matter in his personal life was the long standing alcoholism of his wife, who had been admitted to hospital on a number of occasions as an involuntary patient. The youngest child at the time of sentence had been placed in foster care and was suffering from behavioural problems.

484. Because of his background and the fear of violence from other prisoners, he was held in a Special Purpose Prison. His cell was small and his exercise opportunities and ability to mix with other prisoners were extremely limited.

485. Dr Westmore expressed the opinion that the appellant’s family situation and the relationship with his wife “is more likely than not to have caused him to become distressed, maybe depressed at times, but I can’t find any direct relationship between that and the offending behaviour”. Dr Westmore noted that the appellant did not acknowledge any wrongdoing.

486. By reference to s16A(2) Crimes Act1914 (Cth) and s21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) his Honour took into account aggravating and mitigating features of the appellant’s offending. His Honour found there was no contrition. Although the appellant had not admitted guilt, his Honour found that there were good prospects of rehabilitation and that it was most unlikely that he would re-offend. His Honour took into account the effect that any sentence would have on the members of the appellant’s family and in particular, his youngest child. His Honour regarded general deterrence and denunciation as important considerations.

Sentencing

487. In relation to the sentencing exercise generally, in the Remarks on Sentence, his Honour said:

“[26]   I am conscious that I am sentencing for three offences, and not a single offence. However, it was common ground at the sentence hearing that there was substantial, indeed complete or virtually complete overlap, of the facts of the three offences. I will return to the subject of the degree to which the facts of the three offences are co-extensive, when I determine what sentences I should impose for the individual offences and consider questions of totality and of concurrency and cumulation of the sentences for the individual offences.”

488. In relation to the sentences to be imposed, his Honour said:

“[188]   The prisoner is to be sentenced for three offences. The conduct of the prisoner constituting the three offences almost completely overlaps. All of the conduct in the conspiracy to import offence is conduct in the supply offence. There is some additional conduct in the supply offence which is not included in the conspiracy to import offence. All of the conduct in the conspiracy to pervert the course of justice offence, with one negligible exception, is conduct in the supply offence.

[189]   A sentencing judge sentencing for more than one offence, where the conduct in the offences overlaps, is required to avoid double punishment, that is punishing the offender more than once for the same conduct.

…

[191]   At the sentence hearing it was common ground between counsel for the Crown and counsel for the prisoner that I should fix an appropriate sentence for each offence, as if it was the only offence for which the prisoner was being sentenced, and I should seek to avoid double punishment by making the sentences wholly or largely concurrent. I was referred to New South Wales Court of Criminal Appeal authorities sanctioning the setting of fully concurrent sentences, where the sentence for each offence comprehends and reflects the criminality in the other offence or offences.

[192]   Although counsel for the prisoner did not dissent from the approach to the sentencing of the prisoner which I have just outlined, he submitted that the conspiracy to import offence should be regarded as the principal offence and that in sentencing the prisoner for the supply offence which carries a higher maximum sentence, I should be constrained by the maximum sentence for the conspiracy to import offence of 25 years.

[193]    I do not consider that I should accept this submission. The maximum sentence for the supply offence is the maximum sentence which the New South Wales legislature has fixed for an offence of that type and the range of possible sentences for the offence should be regarded as extending up to imprisonment for life. I note that no submission was made by counsel for the Crown that a life sentence would be appropriate in the present case.” (ROS [188] –[193])

489. His Honour reviewed the salient features of the offending:

“[194]   Each of the three offences had the same features aggravating their objective seriousness, including the long period of time over which the offence was committed, the acts which the prisoner performed in committing the offence and the rank which I have found that the prisoner had in the criminal group. Even in the case of the supply offence, where the prisoner's offence was to knowingly take part in an attempt by Jalalaty, the prisoner was not subordinate to Jalalaty.

[195] The criminal enterprise in which the prisoner participated was to bring into Australia and obtain possession of a quantity of pseudoephedrine vastly greater than the commercial quantity for pseudoephedrine set by the Commonwealth Criminal Code and also vastly greater than the large commercial quantity for pseudoephedrine set by the New South Wales Drug Misuse and Trafficking Act. I have found that the prisoner was aware of what the substance was which was going to be imported and how much of it was going to be imported. The anticipated profit from the criminal enterprise was many million of dollars and the recorded conversations between the prisoner and Jalalaty indicate that each anticipated a very large remuneration.

[196]   It is true that no pseudoephedrine was ultimately imported or taken possession of. Why no pseudoephedrine was included in the container of rice can, on the available evidence, only be a matter of speculation and it is unnecessary to attempt to make any finding for the purpose of sentencing the prisoner. That no loss or damage was actually caused is a relevant factor in sentencing the prisoner for both the Commonwealth offences and the State offence.

[197]   A matter seriously aggravating the prisoner's criminality was his misuse of knowledge and contacts he had acquired in his career as a law enforcement officer and the abuse of his position with the New South Wales Crime Commission. As an Assistant Director Investigations with the New South Wales Crime Commission one of his duties was to investigate drug trafficking, that is criminal conduct of the very sort in which he engaged.

[198]   The prisoner's motive was clearly financial gain for himself. It was submitted on his behalf that remarks made by him in the recorded conversations showed that he sought money, not for the purchase of luxury items, but to clear himself of his debts. It was also submitted that some of his debts …

[199]   ... The amount of money which the prisoner anticipated receiving as his remuneration went far beyond the amount required to pay off his debts.”

490. His Honour set out his conclusions on sentence as follows:

“[201]   I find that the objective seriousness of the supply offence was above the middle of the range of objective seriousness for offences of its type.

…

[204]   In sentencing the prisoner the purposes of sentencing of general deterrence and denunciation are particularly important. I accept that there is little need for specific deterrence.

[205]   I propose to make all the sentences I impose commence from the same date 2 June 2008, being the date on which the prisoner was arrested and from which he has remained in custody. The sentence for the conspiracy to pervert the course of justice offence will be totally subsumed in the sentences for the other two offences. The sentence for the conspiracy to import offence will be subsumed in the sentence for the supply offence. The sentence for the supply offence, which includes some additional conduct and has a higher maximum sentence, will be longer than the sentence for the conspiracy to import offence. … As regards the sentence for the State offence, it was submitted that I should find special circumstances in the onerousness of the prisoner's conditions of custody. I have already allowed for this factor in determining the head sentence. I am prepared to make a slight further allowance for it in determining the non-parole period.”

The appellant’s submissions

491. The appellant submitted that his Honour erred in finding, at [188] of the Remarks on Sentence, that there was additional conduct in the supply offence which was not included in the conspiracy to import offence. The appellant submitted that the evidence to which his Honour referred was in fact relied upon by the Crown as evidence in support of the conclusion that the appellant was a party to the conspiracy to import. The appellant submitted that that evidence was not, therefore, evidence of additional criminality, or evidence that required additional punishment and certainly not evidence which justified an additional 4 years imprisonment.

492. The appellant submitted that as was noted by his Honour in his Remarks on Sentence, each of the three offences had the same aggravating features. He submitted that each of the offences had the same object in mind, i.e. the bringing into Australia and subsequent possession of a commercial quantity of pseudoephedrine. He submitted that the principles set out in Pearce v The Queen [1998] HCA 57; 194 CLR 610 were not followed and that he was as a result punished twice for the same conduct.

493. In the alternative, the appellant submitted that the overlap of facts giving rise to the three offences was so great that even if there were conduct specifically relating to the supply offence, which was not also encompassed by the import offence, that conduct was not such as to justify the significant difference in severity in the sentences imposed for those offences. It did not justify a difference of 4 years in the head sentence and 4 years in the non-parole period.

494. By way of elaboration, the appellant submitted that when his Honour imposed a sentence of imprisonment with a non-parole period of 12 years and a balance of term of 6 years in respect of the conspiracy to import offence, he was setting a benchmark to which the sentences for the other offences needed to conform. He submitted that when one had regard to the almost total overlap between the facts giving rise to the import offence and those giving rise to the supply offence, the difference between the sentences was not justified. He submitted that the sentences should have been either totally concurrent or that for the supply offence should have been only slightly greater than that for the conspiracy to import offence. He submitted that the moral culpability for each offence was the same because each offence had the same aggravating features. The appellant submitted that all of the conduct in the conspiracy to pervert the course of justice defence, with one negligible exception, was conduct in the supply offence and the conspiracy to import offence.

495. The appellant submitted that there was no real difference between the culpability associated with the supply offence and that associated with the conspiracy to import offence. In oral submissions, it was put in this way:

“The elements in count 3 were plainly contained in both counts 1 and 2 because that was the role he was supposed to perform to make him involved in counts 1 and 2 even more importantly in count 2 than count 1 so that a wholly concurrent sentence would have been entirely appropriate provided that one doesn’t also add into the principal sentence a culpability component.

What our submission really is here is that that’s what happened, it’s had a double banking effect just as in Pearce. We say that that can be clearly seen when your Honour looks to the culpability of the further facts of the supply offence and how they directly bore on the conspiracy offence.”

496. In essence, the appellant submitted that to the extent that there was any difference in the factual basis giving rise to the conspiracy to import offence and that giving rise to the supply offence, it did not justify the difference in the sentences imposed for each.

Consideration

497. As was conceded by the appellant, the elements which go to make up the conspiracy to import offence and the supply offence are different: Standen Abuse of Process Judgment.

498. In the Standen Abuse of Process Judgment, Hodgson JA (with whom Adams and Hall JJ agreed), made the following observations which are relevant to the issues raised by the appellant.

“[26]   Also, I am not satisfied that, if the applicant is found guilty of both counts, all the relevant criminality would necessarily be captured by Count 1. It is true that the social evil sought to be combated by laws relating to the importation of drugs or precursors is that the drugs will be distributed in Australia; but in my opinion that does not mean that engagement in distribution cannot involve criminality additional to that involved in the importation.

[27]   In the present case, the evidence to be relied on by the Crown suggests a single agreement; but it also suggests that this agreement involved assistance by the applicant not only in bringing it about that the substance be imported into Australia, with the intention that it be thereafter supplied, but also in bringing it about that thereafter the substance would actually be supplied within Australia. It may well be that acts of the applicant referable to the latter could be considered as being in furtherance of the conspiracy to import, and in that character could be evidence of the conspiracy to import and also, at least to some extent, capable of being taken into account in sentencing for that conspiracy. However, in my opinion, they are more directly in furtherance of that aspect of the agreement referable to supply within Australia, and even if they might be taken into account in sentencing for the conspiracy to import, they would be more directly relevant in sentencing for the supply.

[28]   In my opinion, this is not a case like Nahlous in which one can say that one offence is the principal offence and the other is merely incidental or subsidiary. There is substantive criminality associated both with importation and with steps taken after importation, and it does not seem to me that either is purely incidental or subsidiary to the other.

[29] The New South Wales Parliament has prescribed that life imprisonment is the appropriate maximum penalty for the offence in Count 2; and in my opinion it is not appropriate that this Court should find that it is oppressive for the prosecution to seek to give effect to this prescription of the New South Wales Parliament. There being no direct inconsistency with the Commonwealth legislation, the courts are required to give full effect to the State legislation: see Criminal Code s 300.4, R v El Helou [2010] NSWCCA 111. If the applicant is convicted on both counts, it will be a difficult sentencing exercise, applying the principles in Pearce; but this does not make the inclusion of both counts an abuse of process.”

499. Those observations by Hodgson JA are relevant to the appellant’s first submission to the effect that the facts which gave rise to the import offence were the same as those which gave rise to the supply offence. As a matter of semantics, that may be so, in that it is implicit that once an illegal substance has been brought into Australia there will be an attempt to supply it within Australia. As Hodgson JA appreciated (at [27]) while such an approach is open, the preferable approach is to look at the object that the particular actions were seeking to achieve, i.e. whether the actions were directly referable to supply within Australia, rather than importation.

500. In his Remarks on Sentence, his Honour specifically dealt with those actions of the appellant which were directly referable to supply and which occurred after delivery of the container to Jalalaty’s premises at Blacktown. He did this because of what was said in R v Campbell [2008] NSWCCA 214; 73 NSWLR 272. There, Spigelman CJ (with whom Weinberg AJA and Simpson J agreed) held that the word “imports” used in s 307.11 of the Criminal Code refers to the physical arrival of border controlled drugs and precursors in Australia from abroad when those drugs are delivered to a point which results in the goods remaining in Australia.

501. The matters identified by his Honour were those which had occurred after the delivery of the container on 28 May and included conversations which had occurred before the delivery of the container, but related to what should happen after it had been delivered.

502. Those conversations raised important issues. The conversation of 23 November 2007 between Jalalaty and the appellant had the appellant providing advice as to precautions to be taken concerning the bags and their possible link to Jalalaty (see pars [72]-[75] above). In a conversation of 21 May 2008 between Jalalaty and the appellant, he cautioned Jalalaty against the use of “helpers” (see par [116] above). On 28 May, Kinch sent a coded email to Jalalaty saying that it was nice to hear that “the children” were home and that they should be put in bed “until Dr Maurice says that they are fully recovered” (see par [126] above). This and other communications showed the importance which Kinch gave to the advice of the appellant.

503. In a conversation of 29 May 2008, the appellant passed on an instruction from Kinch not to unload the container. He advised Jalalaty that they should continue to communicate about purported legitimate business plans to provide an innocent explanation for the high level of contact between them. The appellant and Jalalaty discussed what false but plausible explanations they should give for the amounts of money which Jalalaty had been giving the appellant (see par [126] above).

504. On 31 May 2008, Kinch sent an email to the appellant congratulating him for keeping an eye on Jalalaty and encouraging him to continue with the project (see par [128] above). On 31 May, Kinch advised Jalalaty of the arrests of members of the Dutch syndicate and advised him to ask the appellant whether the drug should be moved (see par [128] above). On 1 June 2008, Kinch sent an email to the appellant asking him to assist Jalalaty in his so far unsuccessful attempts to find drugs among the rice (see par [130] above).

505. His Honour concluded that that additional material, in relation to the supply offence, showed how deeply the appellant was involved in the criminal venture and the importance of his role.

506. Accordingly, it is not correct to say that there were no additional facts relating to the supply offence which did not also relate to the import offence. This part of the ground of appeal has not been made out.

507. The appellant’s alternative argument depends upon an incorrect approach to Pearce. It is true that in Pearce, the majority (McHugh, Hayne and Callinan JJ) said at [40]:

“[40]   To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.”

508. That statement by the majority was made not as a stand alone proposition but as part of general guidance as to what approach should be followed in circumstances where an offender is convicted of offences which contain common elements.

509. The majority’s conclusion was:

“[42]   It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by "excessive subtleties and refinements". It should be approached as a matter of common sense, not as a matter of semantics.

…

[45]   To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

[46]   Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.

[47]   Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.”

510. What that means is that an appropriate sentence has to be formulated in respect of each offence. It is only when that has occurred that considerations of cumulation, concurrence and totality are taken into account to ensure that the overall sentence is within an appropriate range.

511. What one does not do (which was implicit in the appellant’s submissions) is to take the sentence for the conspiracy to import offence (simply because that was the sentence first imposed) and to use it as some kind of benchmark against which to measure the sentences imposed for the other offences. Apart from being contrary to the statement of principle in Pearce, such an approach has no regard to the maximum sentence available for each offence.

512. By way of illustration, if there were no conspiracy to import offence and no sentence for that offence, it could not be said looking at the supply offence on its own that the sentence imposed for it was “manifestly excessive”. When one took into account the maximum sentence for that offence, and the matters to which his Honour referred at [197] and [198], and his Honour’s overall assessment that the supply offence was above the middle of the range of objective seriousness for offences of its type, it could not be said that the sentence imposed for it was “unreasonable or plainly unjust”: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25].

513. That being so, it is difficult to see how the fact that the appellant was sentenced for the conspiracy to import offence at the same time would provide a basis for why the sentence for the supply offence should be regarded as manifestly excessive. What was required in the sentencing process was an independent analysis of the elements of each offending in order to arrive at an appropriate sentence for each and to then make adjustments for concurrence, cumulation and totality. This is precisely what his Honour did.

514. This Court has followed his Honour’s approach in similar situations. The decision in Yousef Jidah v R [2014] NSWCCA 270 is an example. While the facts were not identical, the approach to sentencing for a drug supply count and a drug possession count, where there was a considerable factual overlap was the same. Relevantly, the Court (Bathurst CJ; Fullerton and Davies JJ) said:

“[75]   Ultimately, the gravamen of the criminality the subject of the supply count was the role the appellant performed as a supplier of a large commercial quantity of a prohibited drug to which a life sentence attaches to and to which a standard non-parole period of 15 years applies. In our view, his Honour's assessment of the criminality inherent in that conduct was neither appropriately, nor necessarily, diluted by the fact that the appellant also attempted to take possession of the same consignment of pseudoephedrine with the intent specific to the offence under s 24A of the DMT Act.”

515. By reference to basic sentencing principles, it is not correct to approach this sentencing exercise by artificially seeking to separate out the conduct that was solely referable to the supply offence and to argue that an additional 4 years in sentence was excessive for such conduct. His Honour was performing quite a different exercise with respect to the supply count and each of the other counts and the exercise which he was performing was in accordance with the guidance provided by Pearce. His Honour imposed an appropriate sentence for each offence and then adjusted the overall sentence to take into account totality.

516. His Honour was conscious of the difficulty of the sentencing exercise and in particular of the need to avoid punishing the appellant twice for the same offending. It was for this reason that his Honour was at pains to identify factual elements which related only to the supply offence. It is not without significance that his Honour identified the supply offence (and not the conspiracy to import offence) as the principal offence. The correct approach to the sentences was to start with the supply offence and to then take into account the sentences imposed for the other offences. When carrying out that exercise, the difference in the maximum penalties was of importance. The difference in the sentences reflected both the additional conduct in the supply offence and the fact that the sentence was determined against a higher maximum penalty.

517. It follows that there was no contravention of the guidance provided in Pearce.

518. This ground of appeal has not been made out.

Orders

519. The following orders should be made:

1. Refuse to grant the appellant leave to amend Ground 3 of the grounds of appeal.

2. Dismiss the appeal brought by the appellant against conviction.

3. Grant the appellant leave to appeal against his sentence on Count 2, but dismiss the appeal.

**********

Schedule

Schedule of NSW Crime Commission documents

Document Number

Description

1

Introduction to the Commission Document

3

Employment agreement October 1997

5

Employment agreement August 2006

5A

Secrecy Undertaking

10

AFP overseas liaison communication

11

Email from Mr Standen to Anchor team 6.11.02

15

Kinch facts sheet

16

Confidential minutes of the Gymea Team meeting dated 17.3.03

18

CC Information Report dated 21.3.03 following questioning of Kinch under summons

22

Emails etc concerning negotiations with DPP: only 5.5.03 and 21.5.03 emails

23

Mr Standen's report on Kinch dated 23.5.03

25

Informant 704 Hogan human source file

Including folder of documents located in the accused's office (Pages 7-33)

35

Email from Sutherland to Anchor 20.11.03 @ 0949

36

Letter to DPP 28.11.03 under hand of Mr Standen

43

Consent orders between NSWCC & Kinch 17.3.04

46A

Information report for 23.12.04

49

Email dated 21.6.05

53

Email from Henness to MS / Anchor 1.9.05 @ 1026

58

Email from Henness to MS /Anchor 13.10.05 @ 1726

61

Email from Mr Standen to Anchor 18.11.05 @ 1326

64

Email from Mr Standen to Maurizi 10.1.06 @ 0912

65A

Investigation plan dated 6.2.06

66

Email from Mr Standen to Anchor 6.2.06 @ 1018

67

Email from Mr Standen to Anchor 17.2.06 @ 0948

68

Email from Mr Standen to Anchor 20.2.06 @ 1802

71

Email from Mr Standen to Maurizi 1.3.06 @ 1306

74

Undated document commencing "On Christmas eve 2001..." with "ANGE1164" in the document footer

74A

Information report dated 21.8.07

74B

Information report dated 6.11.07

74D

Operational progress report dated 28.8.06 to 11.9.06

74F

Operational progress report dated 11.9.06 to 9.10.06

75

Notebook entries taken by Mr Standen in relation to Kinch

78

Informer management policy May 2006

79

File Note taken by Commissioner Bradley on 28.3.07

83

Email from Commissioner Bradley to G3 team dated 7 August 2007

84

Updated Informer Management Policy August 2007

85

Email from Commissioner Bradley to G3 team dated 6 Nov 2007

94

Statement of financial interests Aug 2007

104A

Summary of telephone contact between Mr Standen and Kinch

**********

Decision last updated: 13 August 2015