Sentence for Conspiracy to Import Drugs

The court sentenced the defendant for conspiracy to import a commercial quantity of pseudoephedrine, taking into account the defendant's guilty plea and the role of the defendant in the conspiracy. The sentence was reduced by 25% to reflect the utilitarian value of the plea.

District Court New South Wales

Medium Neutral Citation: R v [NAME] [2020] NSWDC 18 Hearing dates: 04 February 2020 Date of orders: 07 February 2020 Decision date: 07 February 2020 Jurisdiction: Criminal Before: DCJ Yehia SC Decision: See [134] – [136] Catchwords: SENTENCING – Relevant factors on sentence assessment of objective gravity where [NAME] voluntarily ceases involvement in conspiracy – "Common sense" inference that [NAME] was motivated by financial reward – Assessment of the role of [NAME] in the conspiracy Legislation Cited: Crimes Act 1914 (Cth), s 16A Cases Cited: R v Pickett [2010] NSWCCA 273 R v Burns [2007] NSWCCA 228 R v Kaldor [2004] 150 A Crim R 271 R v [NAME] [2007] NSWCCA 234 R v [NAME]; R v [NAME]; [NAME]; [NAME]; R v Jamal [2010] NSWSC 10 [NAME] v The Queen (2001) 207 CLR 584 Texts Cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association Publishing, 5th ed, 2013) Category: Sentence Parties: [NAME] Director of Public Prosecutions Representation: [NAME] (Crown) [NAME] SC (J [NAME]) File Number(s): 2017/00241009

Judgment 1. [NAME], comes before me to be sentenced in respect of one offence that, between 10 November 2016 and 8 August 2017, he did conspire with [NAME] and others to import a commercial quantity of a border controlled precursor, namely pseudoephedrine. The offence is contrary to ss 11.5(1) and 307.11(1) of the Commonwealth Criminal Code and carries a maximum penalty of 25 years imprisonment.

2. When I sentence him for this offence, I take into account an offence of dealing in money being reckless as to the risk of the property becoming an instrument of crime. This offence is contrary to s 400.6(2) of the Criminal Code. It is contained in a s 16BA schedule and carries a maximum penalty of 5 years imprisonment.

3. The threshold for the commercial quantity of a border controlled precursor is 1.2 kg. The amounts discussed during the currency of the conspiracy ranged between 2500 kg and 600 kg of pseudoephedrine. It is relevant to note at the outset that the Statement of Facts tendered in the proceedings discloses criminal conduct on the part of a number of individuals relating to conspiracies to import illicit substances into Australia. This [NAME] is to be sentenced for his part in one conspiracy only – the specific conspiracy to import a commercial quantity of pseudoephedrine.

4. The Statement of Facts discloses other criminal conduct undertaken by [NAME]'s associates for the purpose of providing context and background. [NAME] and [NAME] have not been charged with the conspiracy to import a commercial quantity of pseudoephedrine. They have either been sentenced or will be sentenced by me in respect of other offences arising from the criminal enterprise or enterprises in which they were involved. 5. [NAME] pleaded guilty to the offence at an early stage of the proceedings and was committed for sentence on 29 May 2019 from [ADDRESS]. The plea of guilty has saved both the cost and time involved in running a trial and I am satisfied reflects significant utilitarian value. The sentence I impose will be reduced by 25% to reflect the utilitarian value of the plea. I am also satisfied that [NAME]'s plea of guilty reflects his willingness to facilitate the administration of justice.

6. Although he was initially charged in respect of a separate and distinct conspiracy to import a substantial quantity of MDMA into the country, that charge did not proceed. He was later charged with the current offences and pleaded guilty. Notwithstanding that the original charge related to a different conspiracy, he has been in custody in respect of his criminal acts since 8 August 2017. He has also been in custody during that time as a result of revocation of parole. [NAME]'s balance of term for the unrelated and earlier offences will expire on 23 September 2021. A parole review is scheduled on 13 February 2020. Clearly this raises the issue of totality and the necessity to determine an appropriate commencement date. I will deal with these issues in due course.

Facts 1. The circumstances giving rise to the offences are set out in the Statement of Facts. It is not necessary to reproduce the entirety of that document in the body of this judgment. I will simply summarise the facts and set out the particular acts undertaken by [NAME] in furtherance of the conspiracy.

2. To be clear, I have had regard to entire contents of the Statement of Facts in determining the issues in dispute, assessing the objective seriousness of the offence and [NAME]'s role in it and determining the appropriate penalty.

3. In March 2016, the Australian Federal Police commenced Operation Veyda, an investigation into the criminal activities of [NAME] and their associates. During the investigation, the AFP identified criminal activities being committed by multiple domestic and international criminal syndicates, including dealing in smuggled tobacco products; dealing in the proceeds from the further sale and distribution of smuggled tobacco products; trafficking MDMA; smuggling tobacco products; and plans to import commercial quantities of border controlled drugs and precursors into Australia. The syndicates were subject to physical and electronic surveillance which involved lawful interception of telecommunications services used by the syndicate; lawful use of listening, optical, tracking and data surveillance devices; deployment of surveillance operatives and the deployment of an undercover officer, '[NAME]', who came to be trusted by [NAME] and [NAME]. 4. [NAME] gradually built a relationship with [NAME] and [NAME] through the successful sale and distribution of smuggled cigarettes purchased from [NAME]. In late 2016, [NAME] informed these two men that he had access to a 'door'. In this context, a 'door' is a person or methodology that is able to facilitate the importation of goods into Australia without them being detected by Australian law enforcement.

5. In November 2016, [NAME] contacted this [NAME] and asked him and [NAME] to attend a meeting with [NAME] and [NAME], which they did. At the meeting, [NAME] and [NAME] left the company of [NAME] and [NAME] to have a private discussion about possible drug importations. [NAME] and [NAME] were excluded from that private discussion.

6. It should be noted that on 22 November 2016, [NAME] and [NAME] had a successful dealing with [NAME] in relation to the purchase of 100,000 packets of smuggled cigarettes for $620,000. These separate dealings between these three men in respect of the purchase of smuggled cigarettes continued into March 2017, where, on 9 March 2017, the purchase of 190,000 packets of smuggled cigarettes for over $1 million was successfully affected. This [NAME] had no part to play in that criminal activity.

7. Following the private discussion, [NAME] and [NAME] returned to the company of [NAME] and [NAME] where there was a brief discussion concerning smuggled tobacco. After that meeting, the five men participated in communications in which references were made to various illicit substances being available in various locations around the world. The focus of the communications then turned to making arrangements in relation to the importation of pseudoephedrine from Lebanon which included [NAME] stating that he was able to get 2,500 kg of pseudoephedrine from Lebanon.

8. In the initial stages of the conspiracy, before [NAME] was comfortable having direct communications with [NAME] used [NAME] as a conduit for communications between [NAME] and [NAME], who was in turn communicating with [NAME]. I pause to note, that although this was done to maintain some distance between [NAME] and the criminal enterprise, [NAME] had already met with [NAME] and discussed arrangements in relation to the importation of a substantial quantity of pseudoephedrine from Lebanon. In those circumstances, any attempt to protect [NAME]'s identity or place some distance between him and the criminal enterprise before January 2017 was unsophisticated.

9. On 29 November 2016, [NAME] sent [NAME] a Blackberry message which [NAME] forwarded to [NAME] who then forwarded it to [NAME]. It said: "If u get throught to him I can get sudo from lebanon 2500kg I can get talag fro china also from cyprus and greece i can get anything from there also rake [cocaine] from south america and philipens get rake and these blokes want to put as much as they can I mean tones and they will also pack it the guy has done my head in he wants a answer"

1. At this point there was no direct communication between [NAME] and [NAME] because they were not in possession of each other's Blackberry contact details. On the same day, [NAME] sent a further Blackberry message asking [NAME] how he wanted the substance packed. [NAME]'s response was forwarded to [NAME]. [NAME] sent [NAME] a further reply advising that they had to tell him the source country so he could pick the right shipping company and to identify the commodity so that he could determine how it would be packed in light of the fact that liquid would be packed differently than powder.

2. That message was forwarded to [NAME] who replied on [NAME]'s behalf: "Sudu [pseudoephedrine] from lebannon".

3. Further communications were exchanged between [NAME] and [NAME] about what form the pseudoephedrine would take and the exact amounts so that [NAME] could organise the cover load.

4. At about 5:53PM on 2 January 2017, [NAME] sent [NAME] a Blackberry message asking about what [NAME] had exactly said in respect of the importation so that he could send that information back to [NAME] as soon as possible. [NAME] forwarded this message to [NAME] who replied five minutes later stating: "2100kg sudo it comes in powder and tell us how he wants it back [packed]". 5. [NAME] forwarded [NAME]'s response to [NAME] as sent to him, including the apparent error in relation to the word "packed". Once again, [NAME] acted as a conduit forwarding Blackberry messages which related to the initial planning stages of the conspiracy.

6. On 4 January 2017, [NAME] picked [NAME] up from his house in Vaucluse. They drove to the Sheraton Hotel where [NAME] met with [NAME] for about 40 minutes while [NAME] remained in a car nearby. [NAME] and [NAME] then spoke to [NAME] for a short time before [NAME] departed. This [NAME] was not present.

7. On 5 January 2017, [NAME] met with [NAME] where they discussed commodities and weights for the importation of pseudoephedrine from Lebanon. [NAME] related the particular questions that he wanted to ask [NAME] regarding importation specifics such as cover load, origin port, packing, methodology and deposits to be paid to [NAME] for the importation.

8. There is no evidence that this [NAME] was aware of any of the specifics or that he had any decision-making role to play in relation to these details. Further, there is no suggestion that he deposited or was to make any deposit to [NAME] in respect of this importation.

9. During the course of their meeting, [NAME] told [NAME] that the others were avoiding meeting [NAME] to avoid law enforcement scrutiny being placed on their relationship. [NAME] suggested that if [NAME] was comfortable giving [NAME] his Blackberry handle they could communicate directly. In response to this suggestion, [NAME] said that he did not even deal with [NAME] himself. The conversation suggests that there was still some reluctance to provide [NAME]'s contact details at that point. 10. [NAME] sent Blackberry messages throughout the conversation to [NAME] relaying [NAME]'s questions regarding the importation. When asked by [NAME] as to who he was messaging, [NAME] responded: "you met him with the beard. That's [NAME] right-hand man, [NAME] … he did 10 years gaol with Michael [a reference to [NAME]] … Very trustworthy people. The 4 of us are very trustworthy."

1. At about 8:30PM on 5 January 2017, [NAME] and [NAME] met. During that meeting, [NAME] explained that [NAME] and [NAME] did not want to deal with him directly because they did not know him. Discussions then took place between [NAME] and [NAME] about the proposed amount of pseudoephedrine.

2. On 6 January, [NAME] sent [NAME] details of the company to be used as the consignee and the cover load for the pseudoephedrine importation. [NAME] forwarded that message to [NAME] who replied on behalf of [NAME]: "Hey do we have to find a broker there or does he no [know] a broker".

3. Clearly, while there had been discussion of the quantity and form of the pseudoephedrine and [NAME] had provided what were purportedly legitimate details in respect of the consignee and cover load, [NAME] was still uncertain as to who would find a broker.

4. It was later that day that [NAME] provided [NAME] with [NAME]'s Blackberry handle to give to [NAME] so that they could contact each other directly. He told [NAME] not to refer to [NAME] by name but rather as "the other guy". After 6 January, there were no further intercepted messages from [NAME] about the importation. I am satisfied that there is no evidence that [NAME] was aware of messages between the other co-conspirators after 6 January.

5. One of the issues I must determine is the duration of [NAME]'s involvement in the conspiracy. It is submitted on his behalf that I would find that his involvement ceased on 6 January 2017. The Crown relies upon one further act which took place on 1 March 2017. That act is relied upon as an act committed in furtherance of the conspiracy.

6. The act relied upon is a phone call made by [NAME] on the evening of 1 March 2017 to [NAME], asking her whether she was prepared to accompany his mate [[NAME]] on an all-expenses paid trip to Lebanon, staying in separate rooms. 7. [NAME] also spoke to [NAME], effectively to get her approval for Ms [NAME] to go on the trip. Following the conversation with Ms [NAME], nothing came of this arrangement and [NAME] made no further requests or enquiries regarding the possibility of travel by Ms [NAME] or anyone else.

8. The Crown relies upon this material in support of the contention that it was an act committed by [NAME] in furtherance of the conspiracy, effectively an attempt by him to provide a female cover for [NAME] when he travelled to Lebanon in connection with the importation of pseudoephedrine. 9. [NAME], on behalf of [NAME], submits that I could not be satisfied beyond reasonable doubt that this was an act in furtherance of the conspiracy.

10. In determining this issue, I have had regard to the fact that, between 6 January and 1 March 2017, there is no evidence to suggest that this [NAME] committed any act in furtherance of the conspiracy.

11. Furthermore, there is no evidence to establish that [NAME] knew, on 1 March 2017, the purpose of [NAME]'s trip to Lebanon. While I might be suspicious about [NAME]'s approach to Ms [NAME], I am not satisfied beyond reasonable doubt that his proposal to her was so as to provide a cover to [NAME] in connection with this particular conspiracy and am not therefore satisfied that it was an act in furtherance of the conspiracy.

12. I am satisfied therefore that the duration of [NAME]'s involvement in the conspiracy was between late November 2016 and 6 January 2017, a relatively short period.

13. A further fact in issue in the proceedings is whether [NAME]'s involvement ceased voluntarily or because he was no longer needed. I will return to this issue in due course.

14. On 10 January, there were communications about the packaging of the pseudoephedrine. There is no evidence that [NAME] was aware of any of these discussions, details, plans or arrangements.

15. On 10 February, [NAME] sent a message to [NAME] advising that the importation was on hold because of the war in Syria. There is no evidence that [NAME] was aware of this communication. Nor is there any evidence that [NAME] was aware of communications between the co-conspirators in the period between 16 February and 24 February 2017 as set out in paragraph [47] of the Statement of Facts.

16. Between 2 and 14 March 2017, discussions between [NAME] and [NAME] turned to progressing a proposed importation of a substantial quantity of MDMA from the Netherlands. It is not alleged that this [NAME] was a participant in that conspiracy.

17. In order to progress the importation from the Netherlands, [NAME] required the co-conspirators to pay $25,000 each to cover the costs of the freight forwarder, cover load and other expenses.

18. On 14 March 2017, this [NAME] delivered [NAME]'s $25,000 to [NAME] and [NAME], who then handed over to [NAME]. This conduct constitutes the criminality involved in the offence set out in the s 16BA schedule.

19. On 6 April 2017, [NAME] told [NAME] that he would progress the pseudoephedrine importation from Lebanon after securing funds from the successful importation of the drugs from the Netherlands. It would appear that at that stage he did not have the funds to progress the importation of pseudoephedrine. [NAME] said that there was 600kg of pseudoephedrine waiting in Lebanon but he had run out of money. There is no evidence that this [NAME] was informed of this communication.

20. No pseudoephedrine was imported as a result of the conspiracy. On 26 May 2017, approximately 800 kg of MDMA was seized by police after [NAME] had collected it from the Netherlands by agreement with [NAME] and [NAME].

21. There is no evidence that this [NAME] was involved in the sourcing or financing of the pseudoephedrine to be imported. There is no evidence of [NAME] had a direct financial interest in the pseudoephedrine to be imported or any intended sale or distribution of the pseudoephedrine.

22. The conspirators communicated with each other using encrypted text-based mobile telecommunication devices, namely Blackberry devices. Many of the conspirators used a Blackberry device before the commencement of the conspiracy.

23. This [NAME] was arrested on 8 August 2017.

Disputed issues and the role played by [NAME]

1. In sentencing [NAME] I am required to have regard to the matters set out in Part 1B of the Crimes Act 1914 (Cth), and more specifically to the matters set out in s 16A. The governing principle under s 16A(1) is the imposition of a sentence which is of a severity appropriate in all the circumstances of the offence. In doing so I have taken into account, amongst other things, the matters listed in s 16A(2) as far as they are relevant.

2. Before I set out my findings in respect of the objective seriousness of the offence and [NAME]'s role in it, I must resolve a number of factual issues that arose during the course of submissions.

3. The first issue is as to the period in which this [NAME] was involved in the conspiracy.

For the reasons set out above, I am satisfied that he was involved in the conspiracy between late November 2016 and 6 January 2017, a relatively short period of about six weeks.

4. The second issue is whether his involvement ceased voluntarily or came to an end because he was no longer needed. The Crown submits that I would infer that, by 6 January, [NAME] had become comfortable in conducting direct communications with [NAME] and it was for that reason that [NAME] provided [NAME]'s Blackberry handle. 5. [NAME] submits that I would find on a balance of probabilities that [NAME] ceased his involvement voluntarily having regard not only to the material contained in the Statement of Facts but also the evidence given by [NAME]'s sister, [NAME].

6. Ms [NAME] gave sworn evidence which included the following: [NAME] comes from a loving and supportive family. During the 9 years that he spent in custody for unrelated matters, family members continued to have close contact with him. [NAME] and his family were very excited and enthusiastic about his release in September 2016.

7. Following his release, he returned to reside with his parents. The witness observed that, upon coming home, [NAME] spoke of his plans which included marriage and completing a course that he had started in custody. He attended to his assignments and commenced working on a casual basis with his [NAME].

8. Sometime following his release, the family became concerned about [NAME] spending time with associates he had met in custody. Some of these associates were his co-conspirators. As a result, the family conducted an intervention. In the first week of 2017, [NAME]'s father told him that he must stop mixing with these associates. Essentially, the family rallied and intervened to talk some sense into [NAME]. Miss [NAME] gave evidence that, having regard to the nature of the family dynamics, their father was highly respected and, from her perspective, what he said had some import.

9. Following this intervention, she observed that [NAME]'s behaviour appeared to change. Amongst other things, he spent more time at home. In cross-examination, she conceded that she could not exclude the possibility that he continued to have some contact with his previous associates, although she maintained that his behaviour did appear to change and he was spending more time at home.

10. It is clear from the objective evidence that [NAME] did not completely break ties with [NAME] and [NAME] following 6 January 2017. The offence contained in the s 16BA schedule demonstrates that he continued to associate with these individuals and, on that occasion, associate in a criminal fashion by handing over [NAME]'s cash being reckless as to the risk that the money would become an instrument of crime.

11. However, the objective evidence establishes that [NAME] ceased involvement in the conspiracy following the 6 January 2017, that is, a period that coincides with the family intervention.

12. Furthermore, there is little if any evidence to persuade me that between 5 January 2017, when [NAME] was telling [NAME] that he did not deal directly with [NAME] himself, and 6 January, when [NAME] provided [NAME]'s contact details, that [NAME] had become more comfortable in dealing directly with [NAME].

13. But even if that were the case, it is not inconsistent with [NAME] voluntarily ceasing his involvement. It may well be that [NAME], on 6 January, was willing to communicate directly with [NAME] and that [NAME] provided [NAME]'s contact details following a direction from [NAME].

14. What is important is that the objective evidence establishes that, following that day, this [NAME] had no further involvement in the conspiracy. Although he continued to be trusted, as evidenced by the commission of the offence on the s 16BA schedule, having regard to the evidence given by his sister and the absence of further involvement by him in the conspiracy I am persuaded on the balance of probabilities that he ceased involvement voluntarily.

15. What then is the significance of this finding? His voluntary cessation is relevant to a number of matters including the weight to be given to specific deterrence, an assessment of [NAME]'s remorse and prospects of rehabilitation. There is also a public policy to be served in providing encouragement to offenders to cease criminal activities: R v Pickett [2010] NSWCCA 273; R v Burns [2007] NSWCCA 228.

16. The third issue to determine relates to [NAME]'s motivation. The Crown submits that I would find that [NAME] was involved in the conspiracy for financial gain. Although there is no specific evidence [NAME] was to receive a financial reward for his role in the offence, the Crown contends that the "common sense" inference is that [NAME] was involved for profit. In support of that contention the Crown relies upon the cases of R v Kaldor [2004] 150 A Crim R 271 (at [104]) and R v [NAME] [2007] NSWCCA 234 (at [32]). 17. [NAME] submits that there is a distinct lack of evidence suggesting that [NAME] had a financial interest in the substance sought to be imported. Further, that this is clearly not a matter where a "common sense" inference can be drawn that [NAME] would receive a financial reward. The cases relied upon by the Crown are distinguished. In [NAME] in respect of the inference drawn had come to Australia from Hong Kong and spent 22 months here for the purpose of conducting multiple complex transactions and "test runs" involving containers being received to a warehouse resulting in the actual importation of 73kg of heroin.

18. In Kaldor, it was considered appropriate to infer that a "drug courier" who had agreed to, and assisted in, bringing a guitar case in to Australia with him from Vietnam containing half a kilogram of heroin, was doing so for financial reward. It is submitted on behalf of [NAME] that he cannot be described as either a "drug courier" or "drug importer". It is submitted that the limited role played by [NAME] does not dictate that any "common sense" inference be drawn as to anticipated financial reward.

19. While I accept that [NAME] played a limited role (for reasons I will come to) I am satisfied beyond reasonable doubt that he was motivated, at least to some degree, by financial reward. True it is that he had come to know [NAME] and [NAME] through his own experience in custody during his formative years, and while I am prepared to accept that such an association may bring with it a sense of loyalty, [NAME] had entered into an agreement relating to the importation of a substantial quantity of pseudoephedrine. Over a period of some weeks he was privy to information about the quantity proposed. He acted as a conduit, passing information through Blackberry messages from one co-conspirator to the other in furtherance of the conspiracy.

20. I am satisfied that a "common sense" inference can be drawn to the requisite standard that [NAME] was motivated, at least in part, by financial reward. I take this into account as a factor adverse to him. That said, the evidence does not establish the extent of the financial benefit he anticipated he would receive and, having regard to his limited role in the conspiracy, whatever financial benefit he stood to gain would have been modest in my view.

21. I accept that [NAME] was a willing participant in the conspiracy, playing a facilitative role by passing messages about the proposed importation to and from [NAME] to be passed on to [NAME]. I also accept that he was a trusted participant by the initiators of the conspiracy.

22. While his role in that regard allowed [NAME] to initially remain at arms-length from [NAME] had met with [NAME] and the other co-conspirators in November 2016. Any attempt to keep [NAME] at arms-length was relatively unsophisticated and unlikely to have been successful in concealing his identity.

23. I am satisfied that [NAME] played a limited role for a limited duration. While a trusted participant, he was not included in aspects of the discussions relating to the importation. This is evidenced by his exclusion from discussions on 18 November 2016 when there was a meeting at [NAME]. [NAME] and [NAME] walked away from [NAME] and [NAME], into a laneway, to conduct private discussions. 24. [NAME] described [NAME] as "[NAME] right-hand man", that he held such a position is not borne out by the evidence. There is no evidence that [NAME] was involved in the sourcing or financing of the pseudoephedrine to be imported or that he assisted in that regard. There is no evidence that he had a direct financial interest in the pseudoephedrine to be imported. There is no evidence that he was to have any involvement in any intended sale and distribution of the pseudoephedrine. There is no evidence that he undertook any decision-making role or had any control about any aspect of the planning involved in the conspiracy.

25. In light of these circumstances, notwithstanding that he was motivated by some degree of financial reward, I am satisfied that his role was at the lower end of the scale. I am satisfied that not only was his culpability lower than that of his co-conspirators, but that it was significantly lower by comparison.

Objective gravity of the offence 1. However, an assessment of the objective gravity of the offence is not limited to findings in respect of the role played by [NAME]. [NAME]'s role and physical acts are relevant to the assessment of his criminality, they are not the starting point for such an assessment. I must also determine the nature and scope of the conspiracy.

2. The principles relevant to sentencing in conspiracy cases were summarised in the case of R v [NAME]; R v [NAME]; [NAME]; [NAME]; R v Jamal [2010] NSWSC 10. Whealy J said (at [15]): "While the assessment of the criminality of each of the offenders will not overlook, as a relevant matter, his particular act or acts in furtherance of the conspiracy, it is clear that the criminality of an [NAME] in a conspiracy case goes well beyond the mere recognition of his or her actions and role in the enterprise. The primary aspect of the assessment of individual criminality is well understood to be on a broader basis. The gravamen of the offence – the essential feature – is the agreement to participate in organised criminal activity. The sentence must reflect the organisational nature of the conspiracy rather than by confining the sentencing discretion to the identification of the role of an [NAME] with specific reference to the physical acts that he undertook … It is necessary, as a consequence, to examine the nature and scope of the conspiracy and to assess on a basis, generally common to all the participants, the level of criminality exhibited by the conspiracy itself."

1. I turn then to analyse the nature and scope of the conspiracy. The agreement involved the importation of a very substantial quantity of pseudoephedrine. Although the quantity of pseudoephedrine proposed changed over the months – from 2500kg to 2100kg to 600kg – on any view of it, the quantity involved was very substantial.

2. In [NAME] v The Queen (2001) 207 CLR 584, the High Court cautioned against giving undue weight to the quantity of the substance involved in the importation. While the quantity of the border controlled precursor remains a relevant and important factor, it is not the primary or determinative factor in assessing objective seriousness.

3. The High Court observed that in general, the larger the importation, the higher [NAME]'s level of participation, the greater [NAME]'s knowledge, and the greater the reward [NAME] hopes to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence in the sentences that are or were imposed: at [64].

4. The Crown submits that the criminal enterprise utilised sophisticated methods to engage in criminal activity on a very significant scale. I reject that submission. Although the conspiracy involved multiple co-conspirators and the use of encrypted devices to communicate without detection, I am not persuaded that the methodology utilised was sophisticated. The attempts made to avoid surveillance were not sophisticated having regard to the fact that there were a number of meetings in public between the co-conspirators.

5. The fact that each participant occupied a particular role is not unusual in matters of this type. It is inherent in an offence of this kind that particular individuals will take on specified roles.

6. Two further matters are relied upon by the Crown in support of the contention that the criminal enterprise utilised sophisticated methodology and was at an advanced stage of planning. The first is what is asserted to be ready access to very significant stockpiles of pseudoephedrine and "international connections that in fact did pack pseudoephedrine as required in 20kg bags and ensure they were ready to be placed in cardboard boxes". 7. [NAME] claimed to have ready access to significant quantities of pseudoephedrine, there is no objective evidence to support his assertions in that regard. In fact, he was clearly unable to advance the agreement to import 2500kg of pseudoephedrine. The proposed quantity was then reduced to 2100kg of pseudoephedrine and, some weeks later, reduced again to 600kg of pseudoephedrine 8. A second matter relied upon by the Crown in support of the contention that the criminal enterprise was at an advanced stage of planning is a communication on 10 January 2017 sent by [NAME] to [NAME] claiming that the pseudoephedrine was ready in 20kg bags and asking whether they should be put in cardboard boxes with or without plastic lining.

9. I have some difficulty accepting that [NAME]'s claim was in fact truthful. Not only was the proposed quantity of pseudoephedrine reduced on more than one occasion but on 14 March 2017 [NAME] informed [NAME] that he was cutting out his contact in Lebanon and wanted nothing more to do with them.

10. This communication suggests some frustration on the part of [NAME] with his contacts in Lebanon in advancing the preparations for the importation. If the pseudoephedrine was in fact available and packed on 10 January, it is unlikely that [NAME] would be cutting ties with his contact in Lebanon by 14 March.

11. I am not persuaded that the conspiracy was at an advanced stage of planning. I find that the conspiracy was at an early stage of planning and far removed from the implementation stage. I make these findings for the following reasons:

1. I am not satisfied that [NAME]'s asserted capacity to import substantial quantities of pseudoephedrine from Lebanon was realistic; 2. no broker had been arranged and, on 6 January 2017, [NAME] was still enquiring whether they had to find a broker or whether [NAME] knew of a broker; 3. whatever arrangements were in place between [NAME] and his contact in Lebanon appear to have well and truly fallen through by 10 January 2017. Thereafter, the agreement to import pseudoephedrine appears to have been placed on hold until the importation of MDMA was completed.

1. In assessing the moral culpability of [NAME], I am asked to have regard to the involvement of [NAME] in the conspiracy. While it is accepted that the key conspirators were clearly very receptive to forming the relevant agreement, but for the involvement of [NAME], the conspiracy would not have been brought into existence. [NAME] submits that it only became a possibility as a result of [NAME] offering a "door" to facilitate the importation. Furthermore it is submitted that the conspiracy was not going to be successfully carried out and therefore there was no risk of harm occurring through the distribution of drugs in the community. 2. [NAME] was a willing participant in the conspiracy for a period of weeks. There is no suggestion that he was pressured or forced to participate. I have however taken into account the role of the undercover officer in the particular circumstances of this case because he played an important role in bringing the conspiracy into existence. He made it known to the conspirators that he had a "door", a service which would enable the importation.

3. Furthermore, it is evident that there was never any possibility that the pseudoephedrine would be used to manufacture illicit substances resulting in the dissemination of drugs into the community.

4. However, the weight to be given to this factor is moderated in light of the fact that it was through no positive act of [NAME] that the pseudoephedrine was not successfully imported and in view of the fact that I am satisfied that the conspirators enthusiastically embraced [NAME]'s offer of a "door".

5. I am satisfied that the nature and scope of the conspiracy was limited, as was the role of [NAME]. I find that the offence falls below the middle of the range of objective seriousness but not at the lower end of the range having regard to the fact that the agreement involved the importation of a substantial quantity of border controlled precursor into Australia.

6. In determining the appropriate penalty, I take into account the offence contained in the s 16BA schedule. The scheduled offence represents additional criminality that should be reflected in the sentence imposed for the principal offence by way of additional weight to be given to retribution and specific deterrence.

7. General deterrence, denunciation and punishment are relevant and important considerations in determining the appropriate penalty. Notwithstanding my finding that the offence falls below the middle of the range of objective seriousness, this is a serious offence involving an agreement to import a substantial quantity of pseudoephedrine into Australia. Such criminal conduct must be met with condign punishment that sends a message to other potential importers of illicit substances that the courts are prepared to proceed by way of lengthy custodial penalties.

8.

In all the circumstances, the only appropriate penalty is full-time imprisonment. In determining the seriousness of this offence I have also had regard to the maximum penalty.

Subjective Circumstances 1. [NAME] is 31 years old. His subjective case is before me by way of a psychological report and numerous references. His sister has given evidence in the proceedings and [NAME] has written a letter to the court setting out his remorse and his intentions to work and marry once released from custody. 2. [NAME] has spent much of his adult life in prison. From 2007 until September 2016, [NAME] was in custody serving a sentence for unrelated offences of robbery while armed with a dangerous weapon and one offence of maliciously inflicting grievous bodily harm. He was released on parole on 23 September 2016 and within a short time became involved in the agreement to import pseudoephedrine. He committed the present offences while on parole. The fact that he did so is a matter adverse to him and relevant to my assessment of the weight to be given to specific deterrence and his prospects of rehabilitation.

3. His record of previous offending includes these serious offences for which he received a lengthy period of imprisonment and it disentitles him from the leniency that would be afforded a first-time [NAME] or a person with a relatively minor record. 4. [NAME] was born in Australia. His family moved around a great deal in his developmental years and as a result he attended four different primary schools. 5. [NAME], a Community Liaison Officer at Granville Boys High School, confirmed that he had known [NAME] during years 10-12 of high school and found him to be "understanding and humble", and "no trouble". 6. [NAME]'s history of employment is very brief, which is attributable to his periods in custody. He was employed as a bricklayer for two months, and employed as a courier with [NAME] for a period of two months. It is noted that he also completed a Statement of Attainment from [NAME] in 2016. 7. [NAME] has no history of illicit substance abuse prior to a motor bike accident in 2006. He had decided to take a friend's motorcycle for a short ride. He sustained injuries to his right leg which required two surgical procedures, and an injury to his left knee.

8. Following the motor bike accident, [NAME] was prescribed Tramadol (a painkiller which is a partial opiate agonist). He stated that he was initially prescribed 200 mg but that he started to abuse the drug.

9. Following his use of Tramadol, [NAME] started to use cannabis, averaging two 'joints' per day for one to two months, and subsequently started to smoke 'cones' until his incarceration. Following the accident, he used cocaine two days per week, and started to consume alcohol, averaging 10 alcoholic drinks over the course of Friday–Sunday.

10. A psychological report by [NAME] dated 19 October 2007 states that [NAME] had amnesia from the accident and presented with very poor autobiographical memory. In November or December 2019, [NAME] disclosed to [NAME], Psychologist, that sometime after the motor bike accident he was also hit with a baseball bat "on the right side of the frontal lobes". He did not seek medical intervention.

11. In her report (dated 4 January 2020), [NAME] asserts that [NAME]'s presentation during interview was "somewhat perplexing" in that he has no criminal record prior to age 18, and has few adolescent criminogenic factors that would be considered to predict adult course criminality. 12. [NAME] acknowledges a report prepared by [NAME], Psychiatrist, in relation to civil proceedings related to the motor bike accident, and apparently relied upon in the earlier proceedings. Dr [NAME] expressed a view that: [[NAME]'s] criminal legal team should be alerted to the fact that I am of the opinion that the motorbike accident is likely to have had a significant impact on his mood state prior to the offending behaviour and the offending behaviour may have been influenced in a significant way because of his depression and his illicit drug abuse.

1. Psychologist, [NAME], concurred with these findings and stated: While the drugs enabled [[NAME]] to reduce his pain and gain some control over his moods, it also reduced his ability to make sound and rational judgements and decisions. I also agree that he does not have antisocial personality disorder and, in my opinion, this makes the possibility of re-offending much less likely.

1. This has not occurred, however, [NAME] having gone on to reoffend and finding himself once again before the Court for sentencing. Despite this, [NAME] defers the diagnosis of Anti-Social Personality Disorder, based on the fact that some conduct problems must be present before the age of 15 for this diagnosis to be applicable. This assertion is made along the guidelines specified in the Diagnostic and Statistical Manual of Mental Disorders (DSM–5). 2. [NAME] concurs with Dr [NAME] and [NAME] that the accident has had a significant effect on [NAME]'s mood state and his illicit drug abuse.

3. An earlier psychological report by [NAME] dated 28 June 2007 makes the diagnosis of Adjustment Disorder with depressed mood. The initial report also noted that he satisfied the diagnostic criteria for Post-Traumatic Stress Disorder and the results of the Impact of Events Scale supported this finding. However, the subsequent report dated 19 October 2007 notes the primary diagnosis as Adjustment Disorder with depressed mood. 4. [NAME] notes that, while the majority of Adjustment Disorders abate within six months after the cessation of the stressor, some do not abate, but instead continue and become a severe and persistent form of the disorder. There are indications that this may have occurred with this [NAME], and the results of psychometric testing indicate the presence of marked negative affect.

5. Her report also notes that when the motor bike accident occurred, [NAME] was still young and he possibly did not have the resilience to cope with the long-term consequences of the accident. It is noted that his previous adult criminal offences revolve around threats of violence or violence, and this may be linked to adjustment problems which never actually resolved and have gone on to become a persistent form of the disorder. 6. [NAME] opines that lengthy periods of incarceration have not resulted in [NAME]'s desistence from crime, and what he actually requires is psychological or psychiatric intervention to overcome the persistent form of an Adjustment Disorder with disturbance of conduct. 7. [NAME] was administered a brief neuropsychological screening battery known as the Repeatable Battery for the Assessment of Neuropsychological Status Update (RBANS) (Form A). His scores were reasonably consistent, falling in the 'Low Average' range for 4 of the 5 domains (Immediate Memory, Visuospatial/Constructional Abilities, Language, and Delayed memory), with a total Index Score of 83 also falling in the 'Low Average' range. 8. [NAME]'s responses on the Personality Assessment Screener (PAS) indicated significantly marked potential for problems within the Negative Affect domain. [NAME] opines that follow-up assessments are very likely to identify significant problems with depression, anxiety, personal distress, tension, worry and feeling demoralised. A follow-up evaluation has not been conducted. 9. [NAME]'s responses also indicated marked potential for problems with Acting Out. He is 'very likely to be impulsive, and sensation-seeking' and follow-up evaluation in this area is also strongly recommended. 10. [NAME] scored on the high side of the moderate range for risk of recidivism. In reporting this result, however, [NAME] notes that she considers there to be 'a significant issue that compromises the validity of actuarial tools of risk assessment' concerning the unreliability of applying group-based risk evaluation to the assessment of risk on an individual basis: The actuarial approach emphasizes static factors, which do not change over time, and ignores crucial dynamic factors such as the effects of treatment and lack of victim access that may affect level of risk. In addition, it is difficult to formulate treatment and prevention management programs based solely on static factors. It must also be remembered that a group based instrument cannot specify if an individual will reoffend, as actuarial measures are designed to assess level of risk to groups and not to individuals.

1. Having regard to the limitations of the risk assessment, it is only one of a number of factors I have taken into account in assessing [NAME]'s prospects of rehabilitation and likelihood of reoffending.

2. I have had regard to the letters of support tendered on behalf of [NAME] and the evidence given by his sister. I accept that he comes from a loving and supportive family and that upon his release he will continue to be supported by them.

3. I accept that [NAME] is genuinely remorseful for his involvement in these offences. [NAME] confirms that [NAME] worked for him as a groundsman in 2017. [NAME] proved to be diligent in all aspects of his work. He is described as having been reliable and punctual. He presented with a positive attitude and completed the assigned tasks without any issues. 4. [NAME] commenced a certificate in building and construction through [NAME] and upon his release intends to complete his qualifications, obtain employment and marry. 5. [NAME] is Director of an organisation called [NAME] ('the Organisation') which provides various services for children, youth and women including counselling, spiritual growth workshops in a safe place to socialise. One of the aims of the Organisation is to help boys in Western Sydney by providing services so as to give them an opportunity to come off the streets and congregate in a place where they feel welcome, safe and supported.

6. Mr [NAME] confirms that, prior to [NAME]'s incarceration, he volunteered with some of the local community organisations. He also confirms that [NAME] has expressed an interest in joining the Organisation more formally to speak to youth groups and share his own experiences with them in an effort to emphasise how crucial it is to make good choices in life. [NAME] will be accepted as a mentor, if he chooses, upon his release.

7. Having regard to [NAME]'s criminal record and the commission of the present offences while on parole I am guarded about his prospects of rehabilitation. However this is not a case where it can be said that he has poor or no prospects of rehabilitation. He has the continued support of his family. He is remorseful for his criminal conduct. Importantly, although he did not completely sever ties with his criminal associates, he voluntarily ceased his involvement in the conspiracy in January 2017. Rehabilitation remains an important consideration in this case and I will structure a sentence so as to facilitate that rehabilitation on supervised parole.

8. What weight is to be given to specific deterrence? I am not persuaded that the weight to be given to specific deterrence is substantially or significantly moderated. Instead, I am satisfied that the weight to be given to specific deterrence can be moderated to some degree. Specific deterrence remains an important consideration in light of [NAME]'s criminal history and the haste with which he became involved in further serious criminal offending upon his release to parole in 2016.

9. The weight to be given to specific deterrence can however be moderated because I am satisfied that he demonstrated some maturity and capacity for restraint by voluntarily ceasing his involvement in the conspiracy.

10. The Crown has provided a schedule of other relevant cases, although concedes that none of those cases are of any real assistance having regard to the particular factual circumstances of the present case.

11. Although there are a number of co-conspirators, none of them were charged with the conspiracy to import pseudoephedrine and as such none of them have been sentenced or will be sentenced for this offence. They have been charged with other offences in which this [NAME] was not involved. As such, the parity principle does not apply. Having regard to the particular roles played by each participant in this conspiracy, I am satisfied that [NAME]'s degree of culpability is significantly lower than that of his co-conspirators.

12. I note that there is no judicially determined norm or starting point for the period of imprisonment a [NAME] should serve in prison before release. In setting the non-parole period I must determine the minimum period [NAME] is to spend in custody to reflect the objective gravity of the offence.

13. Although originally charged with a different conspiracy, a charge not pursued, it is accepted that he has been bail refused in respect of the present offences since 8 August 2017. Upon his arrest, he was serving the parole period of a sentence imposed for the earlier offences of armed robbery. He was released on parole on 23 September 2016. His parole was revoked solely as a result of the commission of the present offences. The breach of parole report notes that Community Corrections recommend that the parole be revoked by reason of the serious nature of the allegations, in combination with the fact that he engaged in this conduct within a short time frame following his release on parole.

14. The balance of parole will expire on 23 September 2021. A parole review is scheduled on 13 February 2020. Where, as is the case here, the parole has been revoked by reason of the offence for which [NAME] is to be sentenced, I have a discretion to direct the sentence commences on a date so that it is concurrent partially concurrent or wholly cumulative upon that sentence.

15. In determining that question, I have had regard to the fact that the earlier offences involved completely separate criminality and were of a very serious nature. On the other hand, the sole reason for the revocation of parole was as a result of the commission of these offences. Furthermore, I have already taken into account the fact that [NAME] was on parole at the time he committed the offences as a matter adverse to him and in determining that specific deterrence remains a relevant and important consideration. I have also had regard to the fact that he was subject to parole at the time he committed the present offences in determining that I am guarded about his prospects of rehabilitation.

16. In those circumstances, while there will be a measure of accumulation, the degree of accumulation will be modest.

17.

Accordingly, [NAME] is convicted.

18. Taking into account a discount of 25% for the plea of guilty and the offence on the s 16BA schedule, I impose a sentence of imprisonment consisting of a non-parole period of 3 years imprisonment commencing on 8 November 2017 and expiring on 7 November 2020, with a balance of term of 3 years imprisonment. The total term is 6 years imprisonment.

19. The starting point before the application of the discount is 8 years imprisonment. 20. [NAME] will be eligible for release on parole at the expiration of the non-parole period.

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Amendments 26 February 2020 - Correction of typographical error in File Number. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2020