The Queen v Nasser

[2019] VCC 696

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02455

THE QUEEN

v

TONY NASSER

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2019 and 18 March 2019
DATE OF SENTENCE:	16 May 2019
CASE MAY BE CITED AS:	The Queen v Nasser
MEDIUM NEUTRAL CITATION:	[2019] VCC 696

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Attempt to import commercial quantity of border controlled drugs; 198.3 kilograms cocaine; 80.1 kilograms methamphetamine; Early plea of guilty; Past and future co-operation with authorities.

Legislation Cited:                  Crimes Act 1914 (Cth).

Cases Cited:Haamid v The Queen [2018] VSCA 330.

Sentence:Total Effective Sentence – 12 years 6 months imprisonment with non-parole period of 8 years 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J Dickie	Office of Public Prosecutions (Cth)
For the Accused	Mr T Wallwork	Pica Criminal Lawyers

HIS HONOUR:

1. Tony Nasser, you have pleaded guilty to one charge that in both Victoria and New South Wales, between 3 November 2016 and 20 January 2017 you attempted to import border controlled drugs, namely methamphetamine and cocaine in a commercial quantity.

2. The drugs the subject of these charges were hidden inside a magnetic separator, a type of conveyor machine, in a container that arrived in Melbourne by ship from South Africa on 5 December 2016. Inside the container were six pieces of industrial machinery including that separator.

3. On 14 and 15 December 2016, officers from the Australian Border Force examined the shipment and discovered the drugs. Hidden inside the separator in a cavity with granulised charcoal were 254 blocks of compressed powder, weighing approximately 254 kg. There was also 101 bags of crystalline substance, weighing about 104 kg. The powder was found to be cocaine with the purity of between 73.1% and 83.1% or about 198.3 kg pure in total. The crystalline substance was methamphetamine, the purity of which varied between 47.2% and 80.3%, or about 80.1 kg pure.

4. The prescribed commercial quantity for cocaine is two kilograms. Accordingly the amount of cocaine sought to be imported, being 198.3 kg pure, was 99.1 times that prescribed commercial quantity.

5. The prescribed commercial quantity for methamphetamine is 750 g. Accordingly, the amount of methamphetamine sought to be imported, 80.1 kg, was 106.8 times the prescribed commercial quantity.

Value

6. The value of these drugs and the potential profits to be made from their sale was extraordinary. The Crown relied on expert evidence to show that the combined wholesale value of the methamphetamine and cocaine was in the order of 53.9 to 74.3 million dollars. If that value was to be extrapolated to sales at street level the potential profits reached over 100 million dollars.

Summary of Role

7. By your plea you acknowledge that you were aware that the container contained a border controlled drug or drugs. For your role in this importation you were to receive approximately $250,000. Importantly from your perspective, it was not suggested that you were to be at all involved in the distribution of the drugs, or to share in the profits of that distribution.

8. On 12 July 2016 you registered a company named MNZ Relocations. You were nominated as Director of the company and its business address was stipulated as your residential address at the time.

9. Hard Rock Coal Mining was named as the consignee of the shipment. Hard Rock was not aware of the container or its contents. You and your company MNZ were named as the party to be notified of the shipment and as the contact for the consignee. The consignor was identified as a South African company, Leat Corporation, based at 85 Anderson Street in Johannesburg.

10. Your role in this attempted importation involved arranging the processing and movement of the shipment through customs. You liaised with others including Imad Al Qatrani and Shalesh Narayan as to the clearance of the shipment and its initial movements within Australia.

11. You arranged for the separator to be stored in Melbourne whilst the other items in the container were sent to Sydney, apparently as a test run. Thereafter you arranged for the transport of the separator to Sydney, where it was to be accessed by the principals to this enterprise.

Chronology of Events

12. Mr Dickie, who appeared on behalf of the Commonwealth Director of Public Prosecutions, tendered a Summary of Prosecution Opening and Chronology on the Plea. That summary sets out in detail the steps you and the others involved in this enterprise took to effect the importation.

13. You also made a statement to police on 28 February 2019, which the prosecution accepts adds information to the narrative that was previously unknown to investigators. By reference to those two documents, I will explain in some greater detail the role that you played in this offence.

14. You met Al Qatrani through your work with a company that arranged relocation and removals. Sometime during 2016 you agreed to assist him in his importation of a shipment from South Africa. At that stage you appear to have been unclear as to what was involved. You say you acted as a middleman between Al Qatrani and a freight company known as World Wide Freight. You essentially engaged World Wide to help you with Custom’s clearance for Al Qatrani’s shipment. You undertook to look after the other paper work and logistics. Leading up to November 2016 you corresponded by email with a contact in South Africa as to the requisite documentation.

15. On about 4 November 2016 a representative of World Wide told you that the shipment “didn’t look right” and that they did not want to be involved anymore. You were told that you would need to organise Customs clearance.

16. Shortly afterwards you spoke with Al Qatrani who told you to organise all of the logistics including the cartage, storage and unloading of the shipment for which you were to be paid $250,000. Although your statement suggests you were merely suspicious at this stage, it is clear having regard to your plea, that you accept that by this stage you were aware that the shipment involved drugs.

17. You contacted a licensed Customs broker, Braywin Logistics in Tullamarine, obtaining a quote for cartage, Customs clearance and delivery of a commercial shipment. You told Braywin that mining machinery was being imported. You provided them with false documentation which you had created, purporting to assert that Hard Rock Coal Mining was prepared to buy the machinery.

18. You engaged Braywin and ultimately paid them $12,645.37. Al Qatrani paid you $13,500 through a mutual friend, to meet that cost. You took $1000 of that money and electronically transferred it to your sports betting account, the rest was provided to Braywin.

19. Once you were advised that the container had cleared customs you arranged with Sean Faucett of Sean’s Removals to have the container delivered to a warehouse in Oakleigh South. That service cost you $1100.

20. On 21 December 2016 the six items of machinery were unloaded from the container into a different container at the warehouse. Eventually you arranged for the separator to be removed from that container and set aside so that the other items could be sent to Sydney in the one container as a test run to ensure the items were not closely inspected. You then arranged with a rail freight company to transport that container, leaving Melbourne on 30 December 2016.

21. In making these arrangements you made enquiries of Sean Faucett whether any of the crates had been opened or if the container had still been sealed up. You said you would not mind finding out, because the container had sat with Customs for a couple of weeks and “you wanted to make sure everything was fine and there were no issues with it at all”. As you made these arrangements you spoke with Narayan and Sologar updating them on progress.

22. The first container arrived in Sydney on the evening of 1 January 2017. You advised Narayan of that fact. It appears that he made arrangements to have the container transported from the rail yard to Riverstone Business Park at 81 Riverstone Parade in Sydney. In a conversation with Narayan on 1 January 2017 you asked him whether the crates “… look like there’ve been tampered with.”

23. On 5 January 2017 you travelled to Sydney and remained there until 21 January 2017. On the evening of 9 January 2017 you spoke with Sean Faucett to arrange the transport of the remaining piece of machinery to Sydney. You told Mr Faucett that the guys were “pretty eager” to have it sent up to Sydney as soon as possible. Thereafter you arranged to have the separator placed in another container and transported by rail to Sydney. It arrived there on 12 January 2017 and was transported to Riverstone Business Park the following day.

24. You say in your statement that Al Qatrani made arrangements to transfer funds to meet the costs of the transport of the containers, as these arrangements were made. In early January he electronically transferred $3000 into your bank account in part payment for your role in this enterprise.

25. On 15 January 2017, you met Al Qatrani at a car park in Punchbowl Sydney, where he provided you with $47,000 in cash. You used about $10,000 of that money to pay some of the outstanding bills you had incurred in making these arrangements. You used $9000 to pay for your children’s school fees and you deposited the remaining $25,000 into your personal bank account. You told an associate that you had got the “first bit” and that “they told me in two weeks I’d get the rest”.

26. On 27 January 2017, Thumbarian Govender arrived in Sydney from Johannesburg. He was met at the airport by Al Qatrani. Govender had earlier been to Australia in November and December 2016. On 29 January 2017 Al Qatrani, Govender and Narayan went to Riverstone Business Park and tried to access the drugs but discovered that they had been removed. Intercepted telephone calls between Narayan and Al Qatrani referred to the fact that there was nothing in the “thing” and that everyone had been robbed and that they had sent it with household bricks from South Africa.

27. Govender used Al Qatrani’s phone to speak with a person in South Africa telling her that things were not going right in Australia and that they did not send all the right “furniture”. He said he had come for a free ride and it looked like he was returning with no pay. Al Qatrani arranged a flight for Govender to return to South Africa on 5 February 2017. On that day Al Qatrani, Govender and Narayan were arrested.

Intercepted telephone conversations after 5 February

28. Recorded intercepted telephone calls on 6 and 7 February reveal further aspects of your role.

29. On 6 February 2017, you spoke on the telephone with a person named Santos. You said that you had been chasing up your friend in Sydney who was organising the shipment “to know he had got it that it was all good”. The friend in Sydney told you to go there next weekend to be given the rest of the money.

30. You then explained that the Sydney friend called you back a couple of hours later and indicated that there was nothing there. When you asked him what he meant he said “I know you didn’t do anything. I think it’s the assholes in South Africa that have done something, saying that there’s nothing there”.  You said that you asked him if he was serious and you were told that he had opened it, done everything, looked everywhere and there was nothing in there.

31. You said that you had been chasing the man in Sydney up every couple of days because he was waiting for someone to come from South Africa. You said that your Sydney friend told you that Customs came and inspected the container on Friday. The good thing was there was nothing in there, so there was no need to worry. The man in Sydney also told you that if you think you’re getting shafted, you’re getting shafted. You were not getting any money, as there was nothing in there

32. You were concerned you might be ‘in the shit’ if Customs was involved, but thought to yourself how would Customs even know it was in Sydney.

33. You said that you had messaged the man in Sydney saying “fuck you I want my money” and “I’ve done everything man ‘cause my name is on everything man, it’s my company, my name, everything”. You said that the Sydney man had not responded.

34. You said that the big mistake you had made was letting it [the container] go until you got your money. You said you should have said to give you the money before they got their stuff. You were going to keep chasing your money. You said that you did not want the Sydney man to think you were an idiot who believed Customs went in.

35. You said they had given you money at the start including money to pay off all the bills. You said you really only got 3 to 3 and half thousand dollars extra when you had been promised “250” i.e $250,000.

36. On 7 February you spoke with Sologar in another intercepted telephone call. You asked to speak with ‘Fidge’ i.e. Narayan, about the container that had come in from Melbourne to make sure everything was still there and fine with it. You were told there had been huge problems with those containers and you said you were trying to figure out what was happening. You said that you had heard that Customs had come out to check the containers and you were trying to work out why.

Arrest and Interview

37. On 8 February 2017 you were arrested at the premises of a company known as Transport Removals and Storage in Sunshine West. At that time police located and seized your iPhone and a laptop from your car. Subsequently, a search warrant was executed at your home and investigators seized, among other things, documents in the name of MNZ, and a fumigation certificate from the shipping container that had originally contained the machinery.

38. When interviewed by police you confirmed your personal details. You said that you had worked for Transcorp for 3 days in sales and that you had “slightly heard” of Hard Rock Coal Mining Company. You admitted that you had used Braywin. You admitted that you were from Sydney, that you knew people in Sydney and that you did work for Parma Sologar through MNZ. You otherwise exercised your right to remain silent.

39. That afternoon you spoke with your wife over the phone. You said “I knew about it” but “I didn’t organise anything”. You said you did it for her and the kids. You said you got involved because of Imad, (i.e. Al Qatrani) the guy you had picked up from the airport and got the money from.

40. Your wife clarified that you were referring to Imad Al Qatrani you said:

Him, he got me, he said look I have got this shipment coming in. I didn’t know anything about it at first. Then you know, he sort of promised me good money if it came in and cleared. N…, N…, N…, N…, it’s done.

41. Your wife asked you if you organised it, you responded as follows:

No, I didn’t organise anything. All they asked me to do was, you know, arrange for it to be cleared. N…, I had an idea of what was in there… I had an idea of what was in there. The amount of money he promised me.

42. Later in the conversation you asked your wife rhetorically where she thought you got the money for the Christening and the Crown.

43. The interrogation of your phone and laptop revealed extensive incriminating material including contacts for Al Qatrani, Narayan, Sologar, Sean’s Removals, 25 WhatsApp sessions with Al Qatrani between 4 January and 6 February, computer images of one of the containers and various documents, invoices and certificates pertaining to the movement of the containers.

Co-offenders

44. There were three co-offenders charged in respect of this importation - Narayan, Govender and Al Qatrani.

45. Narayan pleaded guilty to attempting to possess the same quantities of drugs as you did. He entered his plea at a relatively early stage on 15 November 2017. He was sentenced in the District Court of NSW on 27 July 2018 to a total effective sentence of 11 years six months with a non-parole period of 7 years. I will return to his position shortly.

46. Govender and Al Qatrani were also charged with the same offence involving the same quantities of drugs. Those accused are listed for trial on 17 June 2019.

Personal Circumstances

47. You were born in June 1978 and are now 40 years of age. You were 38 at the time of the commission of these offences.

48. You are married with three children aged 16, 14 and two. You have two older sisters who are both supportive of you, one works as a psychologist and the other assists in administering her practice. Your father was of Syrian descent and your mother was Lebanese. The family emigrated to Australia in 1969. They have generally worked as self-employed tailors.

49. You grew up in Sydney attending St Jerome Primary school in Punchbowl and then St John’s College in Lakemba to Year 10 level. You completed Year 11 and 12 at a Catholic college in Bankstown. Although you felt that you had reasonable academic capacity, you did not do as well as you would have liked in your final examinations. After completing year 12 you attempted a course in information technology but did not complete it because you did not enjoy it. Similarly you started an accounting course but left before completing that also.

50. Your work history, however, suggests that you have a strong work ethic. For most of your working life you have worked several jobs at once, working in positions such as data entry with the CBA and Optus, delivering pizzas and working for the TAB whilst at the same time working in managerial positions for a removals and relocation company.

51. You met your wife on the Internet and married her when you were 22 years of age and agreed to come and settle in Melbourne with her.

52. I was informed that you do not have any problems with respect to alcohol or drugs, however, since moving to Melbourne you did develop a gambling problem. Your parents had both been heavy gamblers and I was told that when you developed symptoms of escalating depression and anxiety you started to gamble heavily, chasing losses and sustaining substantial debts, which in turn put pressure on your family unit. It appears that your wife also had some difficulties with gambling.

53. In April 2012 you were charged with attempting to obtain property by deception. At the time you were employed at the TAB. I was told that you used some of the store takings to bet on your own account and as your losses accrued you panicked and furiously gambled in an attempt to recoup the money taken.

54. In September 2012 you were convicted of that offending in the Magistrates Court at Broadmeadows and you were placed on a 12 month Community Correction Order with conditions as to supervision and treatment. You were also required to perform 300 hours of community work. You completed that order without incident.

55. At that time of that appearance you were assessed by Mr Tim Watson Munro, a consultant forensic psychologist, who reported that you had impressed as a prodigious worker and in the context of you remaining free of gambling he expected that your prognosis would improve dramatically.

56. You describe yourself, however, in the lead up to the commission of this offence, as feeling miserable. You and your wife had been frequently arguing about matters such as money, parenting, work and family and were rarely intimate. You had become somewhat alienated from your family in Sydney and your own circle of friends. You and your family were experiencing quite severe financial problems mainly caused by gambling and living beyond your means.

57. For the purposes of your plea you were assessed by Dr Nicholas Owens, consultant psychiatrist, who provided a report of 11 February 2019. Dr Owens formed the view that you displayed symptoms suggestive of recurrent depression and, although the symptoms were relatively mild at the time of his assessment, he noted that in the past you have had “suicidal ideation and more protracted periods of sad mood associated with problems with sleep, energy and motivation as well as associated anxiety.”

58. Dr Owens also thought that you suffered from an anxiety disorder, most likely obsessive compulsive disorder involving obsessional ruminations and compulsive behaviours. In his view, it is likely that you meet the diagnostic criteria for pathological gambling and, whilst it was not possible to diagnose personality disorder on a single assessment, there were “good grounds to suspect that Mr Nasser may have some traits of personality disorder, particularly anxious/avoidant and dependent traits.”

59. In addition you have had some serious physical medical problems. In 2014 you were diagnosed with hypercholesterolaemia. In February 2016 you had a coronary artery stent inserted because of episodes of chest pain. You were also diagnosed with hypertension and suffer from gout. These conditions are managed with numerous medications.

60. Having regard to those matters Dr Owens stated:

[64] The offending appeared to take place in the context of increasing distress associated with a combination of stressors: worsening financial situation associated with gambling, relationship difficulties with his wife, social isolation and the effects of longstanding problematic personality traits which together may have formed fertile ground for decisions based on poor judgment and lack of due diligence. I am not able to determine whether or not Mr Nasser’s depressive symptoms at the time of the offending were of such severity that they had a causal impact on his decision-making at the material time. While untreated depression is known to impair judgement, it is difficult to retrospectively tease this effect apart from Mr Nasser’s personality variables as well as the impact of his gambling disorder on his decision-making.

[65] In the event that Mr Nasser is sentenced to a period of imprisonment, I do not think that this would necessarily place him at risk of relapse of depression or make his OCD worse. This is because he is expecting a prison sentence and is currently able to access psychiatric treatment for his depression and OCD. Nevertheless I think that imprisonment is likely to be experienced as more burdensome by Mr Nasser than by other people who do not suffer from these conditions.

61. There are good reasons to suppose that you are genuinely remorseful for your involvement in this criminal enterprise. Although you made only limited admissions at the time of your arrest, it is accepted that you indicated at a relatively early stage in the proceedings your preparedness to plead guilty to an appropriate indictment.

62. You have followed through on that plea and in so doing you have facilitated the course of justice. You wrote a letter to the court,  which you confirmed on oath in the witness box in which you say “I feel disgusted and will be eternally remorseful for my actions and ashamed for my role”. You say that you are ashamed and embarrassed for what you have put your family through over the last two years and whilst you have been incarcerated you appear to have done all that you could to rehabilitate yourself.

63. You have also now made a statement to police setting out your role in this offending and have undertaken to give evidence against the two men alleged to be responsible for the importation of these drugs. I will come to the significance of this future cooperation shortly, but for present purposes the fact that you have undertaken to cooperate in this way will be taken into account as being very much confirmatory of your remorse.

64. A large number of family and friends have provided helpful references which enable an insight into your more positive qualities. Your wife speaks of you as an exceptional father who was nurturing and attentive to your children. Whilst she acknowledges your weaknesses, she nonetheless regards you as a hard-working caring generous family man. Your eldest 16 year old son has provided a reference in which he describes what it is like to now be without you.

65. I interpolate that Mr Wallwork, who appeared on your behalf, did not submit that your immediate family’s predicament was so exceptional as to mitigate sentence due to the hardship flowing to your family resulting from your incarceration. However, it is evident in all of the material that has been provided on your behalf that you will acutely feel the very real hardship of knowing that your family will have to survive without their father, husband and main breadwinner.

66. Your extended family also remain supportive of you. Your older sister Carol, herself a psychologist, stated that even with all that you have put the family through she regards you as “the kindest and most loving of brothers”. Many of the others who have provided references speak of your generosity of spirit and how you acutely feel the position you have placed your family in.

67. The team manager of your son’s football team describes how over a period of three years you impressed him as one of the most helpful parents in their team who was dedicated to your family and wanted to be involved as much as possible.

68. A consistent theme throughout all the references is how shocked your friends and family were that you should involve yourself in this offending. Importantly the authors of these references indicate they are prepared to continue to support you and your family, and, in my view, that support enhances your prospects for rehabilitation.

69. Turning now to the work that you have done in custody which has been directed towards rehabilitation. I was told that you have conducted yourself as a model prisoner over the last two or so years since you have been detained. You work as a library billet two hours each day and have not been subject to any management or disciplinary incidents.

70. Since October 2017 you have undertaken weekly counselling sessions in a gambler’s help program. Your counsellor Ms Lynn Clancy in a report of 22 January 2019 describes you as having been proactive in the program attending all sessions regularly and undertaking all of the tasks requested of you. She notes that you’ve been prepared to explore all aspects of your gambling behaviour and that you’ve acknowledged that these behaviours have contributed to the choices you’ve made over the last few years. It appears you are making good progress and that process is ongoing.

71. You have also completed a large number of educational courses and programs to assist in your rehabilitation. One such program is known as ATLAS which consists of numerous practical workshops designed to help build knowledge and skills that will assist you upon your eventual release. You have also obtained TAFE certificates in subjects such as general education, cleaning and kitchen operations and information technology.

72. It is also of some significance that you have become a peer listener over the last 11 months or so. In that role you have supported many inmates by providing them with some insight into your experiences and in listening to theirs. You say that working as a peer listener has provided you with a good deal of insight into your own issues.

73. On the subject of your prospects for rehabilitation Dr Owens view was that:

[62]….While he appears to have found his current counselling to be of tremendous help in understanding his difficulties, specific and tailored psychological treatment for depression and OCD is strongly recommended. It is possible that this may be available within the prison setting, and is best organised following assessment by a psychiatrist.

[63] Treatment of his gambling problem is not currently required but will become so in the event that he is released into the community, which will involve a significant risk of relapse. I would recommend linkage with Gamblers Anonymous as well as individual gambling counselling at that point.

[67] I think that Mr Nasser’s rehabilitation could be impeded by failure to obtain treatment for his depression and OCD, as well as his gambling disorder. Reduction of the risk of reoffending is more likely to occur following such treatment. This is because remission of depressive symptoms is likely to lead to improvement in self esteem and overall coping skills, and learning ways to manage anxiety and obsessional thinking will add to his sense of self-competency and promote hope for more lasting recovery. However risk of reoffending is also likely to be reduced by linkage with gambling counselling services nearer the time of release.

Cooperation

74. Returning to the issue of your cooperation with the authorities. As I have indicated on 28 February 2019, you signed a statement which set out your role in this enterprise and your dealings with your co-accused, particularly, Imad Al Qatrani. You swore that the contents of that statement were true and correct and you gave the following undertaking on oath:

I, Tony Nasser, undertake to co-operate with law enforcement agencies, pursuant to section 16AC of the Crimes Act 1914 (Cth), and in particular to do the following things:

(a) To give full and frank evidence for the Crown in accordance with my statement dated 28 February 2019, which is attached and marked “Annexure A”, or any statement to be given in furtherance of this undertaking, in any proceedings, including confiscation proceedings, relating to any offence that the Crown may nominate in respect of any person, including:

Thumbarian GOVENDER

Imad Yousef AL QATRANI

(b)To provide to Federal Agent Matthew Standing, a member of the Australian Federal Police, or any other officer of the Australian Federal Police, any further statement in writing reasonably required by the Australian Federal Police regarding my knowledge of and participation in any matter related to the undertaking referred to in paragraph (a).

(c)To confer with officers of the Australian Federal Police, the Commonwealth Director of Public Prosecutions, and counsel briefed by the Commonwealth Director of Public Prosecutions, in relation to any proceedings referred to in paragraph (a) above and to provide upon request a supplementary statement(s) of any further evidence in relation to matters arising from any such conference.

I acknowledge that I have been provided with a document setting out the provisions of section 16AC of the Crimes Act 1914 (copy attached and headed “Section 16AC of the Crimes Act 1914”).

I acknowledge that I understand the effect of section 16AC. I understand that the CDPP can appeal against the inadequacy of my sentence if I fail to co-operate entirely or in part in accordance with this undertaking.

75. In addition to giving that undertaking a letter of assistance was tendered on the plea, which confirmed that you had provided previously unknown information of yours and others involvement in the offending. The account you gave was assessed as being consistent with the other evidence collected to date, it acknowledged your undertaking to give evidence against co-accused and that in so doing you have placed yourself at risk.

76. The assistance was said to be of medium value to the authorities.

Defence submissions on sentence

77. In his written outline of submissions Mr Wallwork stated: “It is conceded that the accused played a central role in the commission of the offence. However, he was not the controlling mind behind an international and costly enterprise.”

78. He argued that the sentence imposed should reflect your financial and psychological vulnerability at the time, the work that you have done in custody to address those vulnerabilities, your genuine remorse, the continuing support of your family and friends, your excellent prospects for rehabilitation and importantly your co-operation with the authorities together with your undertaking to give evidence in the trials of your co-accused.

Prosecution Submissions

79. Mr Dickie, on behalf of the Commonwealth Director of Public Prosecutions, submitted that you played a vital role in what would have been, but for the authorities intervention, the successful importation of very substantial and valuable quantities of drugs. You were the sole person with the responsibility of arranging for the arrival and the movement of the drugs to Sydney.

80. He noted that your role provided a degree of legitimacy and distance for others involved. You used your own name and details and you must have been aware that carried a high risk. The circumstances associated with the importation were such that you must have appreciated that you were involved in the importation of a very substantial quantity of drugs, worth a significant amount of money.

81. The time frame specified in the Indictment spans 78 days. There was likely to have been preparation prior to the importation in setting up MNZ Relocations. There would have been further contact with other offenders, at least, to receive payment. Accordingly, your involvement was sustained and there was plenty of time for you to reflect on what you were doing.

82. Mr Dickie pointed to some of the telephone intercept material revealing your financial pressures and submitted that your motivation was the chance of making a very substantial amount of money - $250,000. You had received some part payment, in the order of $50,000 or so.

83. The prosecutor accepted that you indicated that you were prepared to plead guilty to an appropriate charge at an early stage in these proceedings. There was a delay in the entry of that plea due to some legal discussion about the form of the charge, but I did not understand Mr Dickie to contend that delay should diminish the reduction in sentence that should otherwise flow to you by reason of the early indication of your plea.

84. It was submitted that your prior conviction has some relevance in that it shows a preparedness in the past to break the law. He noted that whilst your progress in prison with respect to rehabilitation is encouraging, you must nevertheless be sentenced for a very serious breach of the law.

85. It was accepted that you were contrite and your assistance and undertaking to provide future co-operation exposed you to risks and merited a significant discount. Nevertheless, the sentence must seek deter others and in all of the circumstances a substantial term of imprisonment is warranted.

Comparative cases

86. Mr Dickie referred to 10 comparable cases involving decisions of intermediate appellate courts that might serve as yardsticks to illustrate the possible range of sentences available.[1] Those decisions provided some limited assistance.

[1] Blango v The Queen [2018] VSCA 210; Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270; Alvarez v The Queen [2018] QCA 162; R v Scott [2017] SASCFC 96; Jaafar v R [2017] NSWCCA 223; R v Schelvis & Hildebrand (2016) 263 A Crim R 1; R(Cth) v Yuan (2015) 252 A Crim R 422; DPP v Peng [2014] VSCA 128; Balloey v R [2014] NSWCCA 165; Thi Kim Phung Nguyen v The Queen [2012] VSCA 119.

87. I have also had recourse to the sentencing remarks of her Honour Judge Norton in the matter of Narayan. Her Honour found that Narayan played an important role in that he transported the container from the rail yard to his own premises and stored them there. He was clearly trusted by those more senior in the syndicate. He also assisted in the unloading of the machinery from the container. There was no evidence that he was aware of the very large amount of drugs involved. However, he was clearly reckless as to what was in the container given that he was paid well in excess of the normal freight rate. Her Honour stated:

“The amount of the payment is not so large as to allow me to find to the requisite standard that the offender was aware that such large quantity of drugs was involved. The offender received $20,000 while Mr Nasser speaks of expecting to receive $250,000. This demonstrates that although the offender played an important role in a sophisticated operation he was not a principal or even mid-tier or mid-level participant in this sophisticated operation. I accept the submission made by the defence that he was the person who was used to transport and store the goods whilst the others who are more involved in the system stayed in the background and minimised the risk to themselves[2].”

[2] P 15 Sentencing Remarks, Shalesh Narayan 27 July 2018

88. Ultimately, her Honour formed the view that the appropriate starting point in sentencing Narayan was 16 years. That sentence was reduced by slightly less than 30% for the plea, which resulted in a head sentence of 11 ½ years and a non-parole period of seven years was fixed.

89. You must be sentenced on the basis that you played a more important role than Narayan. You had a greater level of knowledge, you played a more extensive and important role in facilitating the importation and you stood to gain a considerably greater amount of money. That said, it was accepted that you did not stand to share in the profits of this enterprise and that you were not in any sense a principal. Like Mr Narayan you were no doubt recruited to enable those responsible for this importation to maintain some distance from the enterprise to minimise their risk of detection. In sentencing you I must be mindful of the sentence imposed on Narayan and the principle of proportionality.

Consideration

90. In my view, the nature of the tasks you performed and the reward that you hoped to gain were clearly commensurate with a sophisticated drug importation. I am satisfied that you engaged in this criminal enterprise understanding that it must have involved a substantial quantity of drugs that were likely to be worth a very large amount of money. Although as I have said you were not a principal and were not to share in the profits derived from this enterprise, you still stood to gain $250,000 - a considerable amount of money. You clearly gave no thought to the misery and dysfunction that would be caused by having a large amount of drugs released into our community.

91. The use of your own name and personal details to carry out many of the tasks required to get the containers to Sydney and the fact that you were to receive a flat fee and not a share of the profits are facts which help locate your position within the hierarchy of this enterprise with some reasonable degree of confidence. As I have indicated you played a more important role than Narayan but you were well below the principals as Al Qatrani and Govender appear to be.

92. You must have known that what you were taking an enormous risk in engaging in this criminal enterprise – a risk not just to you, but as you have come to see since your arrest, a risk to the well-being of those closest to you. Now that risk has been realised, and in sentencing you I must seek to demonstrate to those who might be tempted to take similar risks, that it is simply not worth doing so.

93. I accept the prosecutor’s sentencing submissions save that I would not be inclined to give much weight to your prior conviction. It seems to me that whilst that was a serious matter it can only have limited relevance in the formulation of the sentence that must now be imposed.

94. I also accept Mr Wallwork’s submission, relying upon Dr Owen’s assessment, that you were psychologically vulnerable at the time you decided to involve yourself in this importation. On any view you clearly lacked sensible judgment. I accept that you will find imprisonment somewhat more burdensome by reason of your psychological vulnerabilities.

95. In custody you have shown that you are prepared to do the work necessary to address the underlying psychological conditions that disposed you to this offending. In addition, the continuing support of your friends and immediate and extended family enhances your rehabilitative prospects which in the circumstances I am prepared to accept are very good.

96. Fortifying that conclusion is the remorse you have expressed, your early indication of a plea of guilty and importantly your past and future co-operation with the authorities. In that respect the principles governing the discount for an offender who cooperates with the authorities are well known and need not be restated. Suffice to indicate that they are helpfully summarised in the state context in Haamid v The Queen [2018] VSCA 330 at paragraphs [24] and [25].

97. Public policy dictates that offenders like you should be encouraged to provide information and other forms of assistance to the authorities to help them bring other offenders to justice. The sentencing discount you will receive will seek to achieve that.

Sentence

98. Having regard to all relevant mitigating and aggravating factors you will be sentenced as follows: on the charge of attempting to import a commercial quantity of border controlled drugs you will be convicted and sentenced to a total effective sentence of 12 years and six months imprisonment. I will fix a non-parole period of 8 years and six months.

99. That sentence will commence from today’s date, but I will make a  declaration that you have already served 827 days by way of pre-sentence detention as part of that sentence. I will cause that declaration to be noted in the records of the court.

100. The total effective sentence I would have imposed but for your undertaking to cooperate with law-enforcement authorities and your plea of guilty is 20 years imprisonment with a non-parole period of 16 years.

101. The combined reduction I have given by reason of your plea of guilty,  your past cooperation and your future cooperation is 7 years and 6 months.

102. Pursuant to s 16AC of the Crimes Act 1914 I will make a declaration that but for your undertaking to cooperate I would have sentenced you to a term of imprisonment of 16 years with a non-parole period of 12 years. I will cause that declaration to be noted in the records of the Court

103. That means that - but for your undertaking to cooperate in the future, I would have added 3 years and 6 months to the head sentence and to the NPP of your sentence.

104. Putting aside the sentence I would have imposed but for your undertaking to cooperate, I must now declare that but for your plea of guilty I would have sentenced you to a total effective sentence 20 years and fixed a non-parole period of 16 years. I will cause that declaration to also be noted in the records of the Court

105. Accordingly, your sentence may be summarised as follows:

(a)The total effective sentence you will be required to serve his 12 years and 6 months and you will be eligible for parole after the service of 8 years and 6 months.

(b)I have declared that you have already served 827 days of that sentence by way of pre-sentence detention.

(c)Had you not pleaded guilty and undertaken to assist the authorities you would have been required to serve a sentence of 20 years with a non-parole period of 16 years. That sentence has been discounted by 3 years and 6 months by reason of your future cooperation with the authorities, it has been further reduced by 4 years because of your past cooperation and plea of guilty.