District Court

New South Wales

Case Name: R v Ibrahim, Moustafa

Medium Neutral Citation: [2020] NSWDC 254

Hearing Date(s): 28 April 2020

Decision Date: 20 May 2020

Jurisdiction: Criminal

Before: Yehia SC DCJ

Decision: Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) I impose an aggregate sentence of 30 years imprisonment commencing on 8 August 2017 and expiring on 7 August 2047. I fix a non-parole period of 18 years imprisonment commencing on 8 August 2017 and expiring on 7 August 2035.

Catchwords: CRIME – conspiracy to import commercial quantity of MDMA – tobacco smuggling – whether and the extent to which an undercover operation and the role of an undercover operative operate to reduce culpability – whether there can be a meeting of the minds between an offender and an undercover operative such as to constitute an overt act in furtherance of a conspiracy

Legislation Cited: Crimes Act 1914 (Cth), s 17A

Cases Cited:

Cam Huynh Giang v R [2017] NSWCCA 25DPP v Fabriczy [2010] VSCA 334Haval Kada v The Queen; Hadil Kada v The Queen [2017] VSCA 339Hili v The Queen; Jones v The Queen (2010) 242 CLR 520Markarian v The Queen (2005) 228 CLR 357Mihelic v R [2019] NSWCCA 2Parris v R [2013] NSWCCA 5R v Elomar & Ors [2010] NSWSC 10R v Ong [2007] VSCA 206R v Pham (2015) 256 CLR 550R v Taouk (1992) 65 A Crim 387Rex v Segal (1929) 45 CCC 32Wong v The Queen; Leung v The Queen (2001) 207 CLR 584

Category: Sentence

Parties:Commonwealth Director of Public ProsecutionsMoustafa Ibrahim

Representation:L Crowley QC with G Wright (Crown)B Walker SC with A Francis (Offender)

File Number(s): 2017/00252518

JUDGMENT1 Moustafa Ibrahim, the offender, comes before the Court to be sentenced in

respect of a number of serious offences which came to light as a result of an

extensive controlled operation undertaken by the Australian Federal Police

(“AFP”) in 2016-2017. He will be sentenced for the following offences:

(1) Firstly, that between about 10 November 2016 and 8 August 2017 he did conspire to import a commercial quantity of a border controlled drug, namely, MDMA. The offence is contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth) and carries a maximum penalty of life imprisonment. This conspiracy is referred to as the “syndicate one transaction”. The co-conspirators included Ryan Watsford, Mostafa Dib, Hakan Arif, Hassan Fakhreddine and Ahmad Ahmad. The quantity of drug the subject of this conspiracy was 594.43 kg of pure MDMA (Sequence 1).

(2) Secondly, that between about 22 March 2017 and 8 August 2017 he did conspire to import commercial quantities of border controlled drugs. This offence is contrary to ss 11.5(1) and 307.1(1) of the Criminal Code

and carries a maximum penalty of life imprisonment. This conspiracy is referred to as the “syndicate two drug transaction”. The conspiracy involved two separate transactions. A co-conspirator in this offence is Steven Elmir. The pure weight of the MDMA the subject of the first transaction in this conspiracy was 392.95 kg. The second transaction involved 344.6 kg of pure MDMA, 91.87 kg of pure cocaine and 12.04 kg of pure methamphetamine (Sequence 18).

When I sentence the offender for this offence, I take into account an

offence on the s 16BA Schedule, namely, that between 8 March and 10

March 2017 the offender did aid and abet, counsel or procure the

commission of an offence, namely trafficking of a commercial quantity of

MDMA. This offence is referred to as “trafficking MDMA”. It is an

offence contrary to ss 302.2(1) and 11.2(1) of the Criminal Code and

carries a maximum penalty of life imprisonment.

(3) Thirdly, that between 14 November 2016 and 9 March 2017 he did deal in an instrument of crime, namely $2,863,870. This is an offence contrary to s 400.3(1) of the Criminal Code and carries a maximum penalty of 25 years imprisonment. The offence is referred to as “tobacco transactions 1, 2 & 3” (Sequence 19).

(4) Fourthly, that between 13 April 2017 and 26 May 2017 he did deal in instrument of crime, namely $1,800,000, contrary to s 400.3(1) of the Criminal Code. The offence carries a maximum penalty of 25 years imprisonment. This offence is referred to as “tobacco transaction 4” (Sequence 12).

When I sentence the offender for this offence, I take into account two

offences on a s 16BA Schedule. The first offence is that, between 9

March and 14 July 2017, the offender smuggled tobacco products, an

offence contrary to s 233BABAD(1) of the Customs Act 1901 (Cth)

which carries a maximum penalty of 10 years imprisonment and/or a

$55 million fine. The second offence that I must take into account is that

between 11 July and 24 July 2017 the offender did deal in proceeds of

crime, namely money worth $1 million or more. The offence is contrary

to s 400.3(1) of the Criminal Code and carries a maximum penalty of 25

years imprisonment and/or 1500 penalty units.

(5) The fifth and last offence for which the offender is to be sentenced is an offence that, on or about 24 July 2017, he did deal in an instrument of crime, namely $2,224,540. This offence is contrary to s 400.3(1) of the Criminal Code and carries a maximum penalty of 25 years imprisonment. It is referred to as the “future tobacco transaction”.

2 The offender was committed for sentence on 18 December 2018 from Central

Local Court. It was a plea of guilty at the first opportunity. Having regard to the

complexity of the issues and the voluminous material, the trial would have been

a lengthy one, necessarily involving cross-examination of the undercover

operative who was central to the criminal enterprise. In those circumstances I

am satisfied that there is significant utilitarian value in the plea of guilty and that

a reduction in sentence by 25% is appropriate to reflect the utilitarian value of

the plea.

3 The case against the offender was a strong prosecution case involving

extensive surveillance, listening device material and telecommunication

interception. Notwithstanding the strength of the Crown case, I am satisfied

that the plea of guilty also reflects a willingness on the part of the offender to

facilitate the administration of justice. The content of the Crown Statement of

Facts is largely undisputed, although there remains some dispute about the

characterisation of the role of the offender and the extent of his criminality.

4 The Crown Statement of Facts is some 55 pages long. Although it is a

voluminous document in itself, having regard to the number and nature of the

offences, I am satisfied that the offender was willing, through his legal

representatives, to engage in a process of at least attempting to distil the

pertinent facts to facilitate the course of justice. A trial would have necessarily

involved complex legal issues including identification of overt acts and

questions of law as to whether conspiratorial liability attaches to acts engaged

in with an undercover operative.

5 The police investigation into these criminal activities was extensive and

resulted in charges being laid against a number of co-conspirators including

Ryan Watsford, Mostafa Dib, Hassan Fakhreddine and Ahmad Ahmad.

6 I sentenced Ryan Watsford on 28 November 2019. His proceedings were

conducted separately. In due course I will set out the offences to which he

pleaded guilty and the sentence I imposed. I made findings in respect of his

role in the criminal enterprise and discounted his sentence significantly.

Following the application of a 60% discount I imposed an aggregate sentence

of 8 years 6 months imprisonment with a non-parole period of 4 years

imprisonment.

7 On 27 April 2020, I sentenced Mr Mostafa Dib for his role in the “syndicate one

transaction”. His proceedings were also conducted separately. Following the

application of a 30% discount he was sentenced, in respect of the syndicate

one conspiracy, to a term of 18 years 2 months imprisonment with a non-parole

period of 12 years imprisonment.

8 Over three days between 5 and 7 April 2020, I heard the sentence proceedings

in the matters of Ahmad Ahmad and Hassan Fakhreddine. That judgment is

reserved, to be delivered on 12 June 2020.

9 In each set of proceedings a Statement of Facts has been tendered and

evidence adduced on behalf of each offender. In the case of Ahmad Ahmad,

for instance, the offender was called to give evidence. I have made findings on

the basis of the specific evidence before me in each proceeding.

10 I am mindful that I must make findings on the Statement of Facts and other

evidence adduced in these proceedings putting aside material adduced in the

proceedings of the co-conspirators. I have expressed a view that it is

unfortunate that the sentence proceedings have been conducted separately.

However, it is incumbent upon me to proceed on the material and submissions

made in these proceedings. One of the consequences is that I may make

findings in these proceedings that are different or inconsistent with findings that

I made or will make in the separate proceedings. That is simply a product of

the way in which the proceedings have been conducted.

The Facts

11 The circumstances giving rise to the offences are set out in the 55-page Crown

Statement of Facts. The facts are not disputed. However, there is a dispute

about the extent of the offender’s role and his position in the hierarchy of this

criminal enterprise. The process of making findings has required a very close

analysis of the facts in this case. It is necessary therefore to summarise the

facts in more detail than ordinarily required, although what follows is only a

summary of the lengthy document. I proceed now to summarise the facts (and

some of the inferences I have drawn from the facts) upon which I will sentence

the offender.

12 In March 2016, the AFP commenced an investigation into the criminal activities

of Ryan Watsford and his associates. In November 2016, the investigation

expanded to include this offender.

13 From November 2016, 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 of MDMA, smuggling

tobacco products, and plans to import commercial quantities of border

controlled drugs into Australia.

14 The investigation of these criminal activities, known as Operation Veyda,

involved extensive physical and electronic surveillance over a period of more

than one year. The surveillance included interception of telecommunications

services, listening devices, deployment of surveillance operatives and,

importantly, the deployment of an undercover officer known as “Zane”.

15 The syndicate members communicated with each other using encrypted text-

based mobile telecommunication devices known as Blackberrys which are

secure from police interception.

16 Between June and August 2016, Watsford attended a number of meetings with

Zane. Their relationship progressed from Watsford seeking advice on

international money laundering methodologies to requesting Zane exchange

unlawfully obtained foreign currency. Moustafa Ibrahim was not a party to

these earlier communications and dealings.

17 It was during these communications that Zane informed Watsford 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.

18 On 12 October 2016, Watsford and Zane met. In the context of discussing a

separate money laundering deal, Zane said: “if you want results, you take

risks”. Zane gave Watsford two cartons of cigarettes purportedly smuggled into

Australia with the assistance of the “door”. After receiving the cigarettes,

Watsford made a number of inquiries with Zane including how he had access

to the cigarettes, the brands he had access to, who he sells the cigarettes to

and how much he charges for the cigarettes. It was then that Watsford said he

had “boys that will buy some”. It was Zane who raised the prospect of doing

business in smuggled cigarettes although Watsford was quick to advise that he

had potential customers.

19 During a subsequent meeting Zane told Watsford that the reason the cigarettes

were so cheap was because tax was not paid on them. On 10 November 2016

Watsford introduced the offender and Fares Derbas to Zane. The three men

agreed and arranged to purchase smuggled cigarettes from Zane. It is an

agreed fact that the evidence does not demonstrate that this offender was

involved in the supply, sale or distribution of smuggled tobacco prior to

November 2016.

20 The first meeting between Zane, Watsford, Ibrahim and Derbas was on 10

November 2016. The offender explained that the potential buyers of the

cigarettes did not want to pay until they saw the merchandise and the men

discussed the logistics of the exchange of the smuggled cigarettes and

payment. The offender provided Zane with his Blackberry handle so that they

could keep in contact directly.

21 The offender said: “I’ll be honest with you, I didn’t want to get myself involved in

this, I thought I could leave it up to them, but obviously I couldn’t”, as a

reference to the smuggled tobacco. Zane told the offender: “we got a door,

basically that guarantees nothing … You gotta organise it first and we can get it

in”.

“Tobacco Transaction 1”

22 On 14 November 2016, after Zane confirmed when the handover of smuggled

cigarettes would occur, Zane, Watsford and the offender exchanged Blackberry

messages about the potential sale of smuggled cigarettes and had a number of

meetings during which the offender and Watsford confirmed that they would

take two loads of smuggled cigarettes each containing 100,000 packets the

following day and the offender confirmed that he would provide a $50,000

deposit to Zane to hold the smuggled cigarettes, which Watsford later delivered

to Zane on behalf of the offender.

23 On the evening of 14 November 2016, Watsford and Zane met at the

Intercontinental Hotel. During that meeting, Zane told Watsford of a

conversation he had had with Fares Derbas in which Derbas enquired whether

Zane could get anything into the country. Zane told Derbas that as long as he

organised it and sourced it, Zane would guarantee it got in and he just

required a fee. Zane had informed Derbas that he did not have the overseas

connections to source substances but that he could guarantee them entering

the country. In response to a question that was not picked up by the listening

device, Zane replied: “anything, anything you want”. Watford asked: “even

kilos?”

24 Zane stated: “yeah. Anything. But, like… They’re not gunna bring fuckin 5, 10

kilos. Like the risk for them - it’s the same doing 5… (indistinct) .. You know, a

bit more--- it’s not worth it. So they do bigger, bigger amounts. But the reason

why I charge what I charge…. Is because I guarantee it’s in…. We got people

in the right places.” Following this conversation Watford and Zane met with the

offender and they continued their discussion about the tobacco handover.

25 I am satisfied that the Zane, in relating the conversation between himself and

Derbas to Watsford, was intending to convey that his “door” could guarantee

the importation of large quantities of drugs from overseas. In stating that his

contacts would not take the risk for 5 or 10 kilos, he was planting the

suggestion that even larger quantities would need to be organised to justify the

risk. Put another way, I am satisfied that Zane initially raised the possibility of

large quantities of illicit substances being imported through the use of the

“door” with Watsford.

26 Once raised however, the offender expressed an interest in the possibility by

asking Zane: “do you want me to ask them if they can organise a container”, to

which Zane responded: “let me talk to my guy first … I don’t want to sit here

and promise you my guys want to do it”. The offender then lowered his voice

and told Zane: “I’ve got litres in Lebanon and 50 kegs of Coke in Lebanon….

Hundred litres of the oil – raw oil … I’ve got 50 kegs … Sitting there ready to

come up”. Zane said: “we asked for … Just a total fee”.

27 The offender asked how much Zane required, to which Zane responded that

“they” wanted $50,000 up front to pay off the right people and then on delivery

they wanted more. The evidence does not demonstrate that the offender in fact

had these drugs in Lebanon and there were no further discussions about this.

However, this conversation demonstrates the offender’s willingness to engage

in discussions about the potential importation of border controlled drugs.

28 This evidence does not constitute an overt act in furtherance of any conspiracy.

It is relevant, however, to the extent of the offender’s willingness to engage in

criminal conduct which extended beyond tobacco importations. The extent of

his willingness to participate in the drug conspiracies is hotly contested by the

offender.

29 On 15 November, Zane met with Watsford, Fares Derbas and Talal Derbas

and provided a truck containing 100,000 packets of smuggled cigarettes which

Talal Derbas drove away and returned to Zane empty. Zane was provided with

two boxes containing $550,050 cash. There was however some problem with

this transaction and Zane messaged the offender stating: “these guys are

amateurs. My guys are filthy. They said they can’t do the rest of the week. Bro,

in my opinion I think we should do it tonight to keep them happy”, to which the

offender replied: “yeah I’m going there now if money is there am going to grab

it and bring it first”. Zane replied: “you’re right. Shit doesn’t get done without

you there. Ryan and Fares were good it was the other blokes, they’re

amateurs”.

30 The suggestion is that, at least in the mind of the undercover operative, the

offender’s presence and involvement increased the chances of the transaction

going smoothly. Zane later met with Watsford, Fares Derbas and Talal Derbas

in the same location and provided a truck containing 100,000 packets of

smuggled cigarettes which was again driven away. Zane then met with

Watsford, Fares Derbas and the offender in a car park where the offender

provided Zane with $600,000 in cash.

“Tobacco Transaction 2”

31 Between 17 and 21 November 2016, Watsford, Zane and the offender had

multiple discussions in person and via Blackberry in which Watsford advised

Zane that the offender had arranged for a new Blackberry device to be used by

Zane. The three discussed the purchase of more cigarettes which Zane said

would be smuggled into Australia later in November. The offender confirmed

that he would pay Zane $600,000 for 100,000 packets of smuggled cigarettes

and they arranged a meeting on 22 November.

32 On that date, Watsford and Zane exchanged messages to confirm the time and

location of the handover of the smuggled cigarettes. Watsford then met with

the offender and, whilst in his company, exchanged Blackberry messages with

Zane advising that the offender would provide Zane with an additional $20,000

due to the change in time explaining that the offender would charge the buyers

an extra $20,000.

33 Zane later communicated to Watsford that he would not complete the handover

without the offender and Watsford present because things would not run

smoothly. Zane was told by Watsford that neither he nor the offender could

attend the handover but vouched for Fares Derbas telling Zane that Derbas

was the offender’s cousin and that he should complete the handover with

Derbas, saying: “we trust Fares, its Mick’s cousin, bro”. Watsford then sent a

Blackberry message to Fares Derbas advising him that the offender’s

instructions were to hand over to Zane $620,000.

34 The offender also spoke to Zane and tried to persuade him to complete the

handover. Zane was reluctant to do so and the handover was conducted in the

presence of the offender and Watsford. $620,000 was paid for 100,000 packets

of smuggled cigarettes.

35 Between 27 November 2016 and 4 March 2017, Zane had multiple meetings

and Blackberry communications with the offender and Watsford both

separately and together about the possibility of Zane selling further loads of

smuggled cigarettes. He explained that he anticipated that three more loads of

smuggled cigarettes would arrive in early March and also advised as to their

cost. On 7 March 2017 there was a failed tobacco transaction, with Watsford

returning the truck containing the smuggled cigarettes to Zane and Zane

handing back two cooler bags containing $750,000.

“Tobacco Transaction 3” and “Trafficking MDMA”.

36 On 8 March 2017, the offender met with Zane when they discussed a further

attempt at the sale of smuggled cigarettes which was to take place the

following day after the failed transaction conducted by Watsford.

37 During that conversation, and in reference to the failed transaction, the

offender told Zane that he thought the buyers were just trying to get the

cigarettes at a cheaper price and Zane confirmed that Watsford told him that

the buyers wanted to renegotiate. The offender then said: “I was gonna bash

Ryan yesterday… I’m sick of him not listening to what someone tells him to

do”.

38 The offender asked Zane whether he would be interested in purchasing MDMA

from a third party, EF, and Zane agreed. The offender told Zane that he could

provide an initial sample of MDMA or a full kilogram if Zane preferred, saying:

“but you, you and him just, you can deal with each other. He goes if you want,

he’ll give you a full one to take tonight”. The offender then said that Zane and

EF could deal with each other directly via Blackberrys which the offender would

provide. The suggestion that Zane do business with EF demonstrates the

offender’s connections with individuals who could source drugs. It also

demonstrates his willingness to engage in drug-related offending, albeit that he

was content for Zane and EF to communicate directly.

39 Later that evening, the offender and Zane exchanged Blackberry messages

during which Zane confirmed that he would purchase a full kilogram which he

could sell for $45,000. The offender and EF also exchanged messages during

which EF confirmed that the MDMA could not be paid for in cigarettes because

he needed to pay his supplier in cash. The offender confirmed he would have

the cash for EF and forwarded this exchange to Zane telling Zane that he and

EF could communicate directly.

40 Zane attended the Merrylands chicken shop to pick up the drugs. He collected

a heat-sealed plastic bag containing MDMA from EF’s associate. The gross

weight was 991.7 g with a purity of 51.8%. The pure weight of MDMA was

517.85 g (these facts relate to the offence of trafficking of MDMA on the s

16BA Schedule).

41 The evidence does not establish that the offender received any money arising

from the drugs supplied to Zane by EF. However, the offender’s involvement

indicates his willingness and preparedness to be involved in drug-related

activity involving significant quantities of a prohibited substance.

42 On 9 March 2017 Zane attended the offender’s mother’s house and handed

over a truck containing 125,000 packets of smuggled cigarettes. Later that

evening he returned to the offender’s mother’s house and the offender

provided Zane with the keys to the truck which was now empty and a bag

containing $644,350 cash for the smuggled cigarettes. The offender explained

that he had deducted $42,000 from the total amount he owed Zane for the

cigarettes as he had given it to EF to offset the money owed to EF for the

supply of the MDMA.

43 During the time that these transactions involving the smuggled cigarettes were

taking place there were also discussions and arrangements in respect of the

conspiracy to import MDMA (the syndicate one transaction). The facts in

relation to that transaction will be set out more fully below. In relation to that

transaction and on 9 March 2017 at the meeting in which the offender

deducted the $42,000 from the total amount owed to Zane to pay EF, the

offender told Zane: “I gave you my 50”, which was a payment for himself and

Watsford for the use of Zane’s “door” service for the syndicate one drug

transaction. The offender personally invested $25,000, as did Watsford, being

part of the door fee for the importation of the MDMA.

44 While at the offender’s mother’s house, Zane was introduced to EF. Zane, EF

and Ibrahim agreed that EF would provide a further 5 kg of MDMA to Zane for

$205,000 which was to be paid by the offender to EF. The payment would be

deducted from the total amount the offender owed Zane for the second lot of

smuggled cigarettes that was to be delivered later that evening. A couple of

hours later, Zane again met with the offender and provided him with the truck

containing 65,000 packets of smuggled cigarettes for which he was later paid

$152,470. The offender explained that he had already withheld $205,000 as

payment to EF for 5 kg of MDMA.

45 The offender told Zane that he had two contacts to sell smuggled tobacco

should there be any opportunities in the future and expressed his willingness to

progress the importation of smuggled tobacco from Dubai in partnership with

Zane.

46 On 10 March 2017, Zane and EF exchanged messages arranging the pickup of

the 5 kg of MDMA. Zane was provided with 5 heat sealed plastic bags

containing MDMA. The gross weight was 4996.1 grams with a purity of 47.4%.

The pure weight was 2368.16 grams. Although the offender was not a direct

beneficiary of these drug transactions, he facilitated them by putting Zane in

contact with EF. His actions in this regard further point to his willingness to be

involved in drug-related activity, albeit that in the transactions between Zane

and EF he did not obtain a financial benefit.

47 The offender, Watsford and Fares Derbas each made $60,000 from the sale of

smuggled cigarettes. Given that Watsford owed the offender $25,000 and also

owed money for the “door” fee, the offender gave Watsford $10,000 as his cut.

“Tobacco Transaction 4” and “Syndicate One Drug Transaction”

48 During the meeting on 10 November 2016 when the conversation related to

smuggled cigarettes, Zane asked the offender and Fares Derbas what

Watsford had told them. The offender responded: “he says you can get

anything you want”. Derbas enquired whether Zane could bring in firearms to

which Zane replied: “you got to organise it first, and we’ll guarantee gets in”.

49 The offender then asked Zane: “why don’t youse bring in rack (cocaine) and

shit like that?” Following further conversation set out at [57] the conversation

turned once again to cigarettes. Towards the end of the conversation the

offender said: “anything you get, you want to bring in just let me know, I’ll move

anything you want” and that he would be “your fuckin right-hand man, you

know no one’s going to want to rob me...” to which Zane suggested that they sit

down and discuss further.

50 Once again, this conversation suggests that the offender was willing and

prepared to be involved in drug-related activity. More importantly, he asserts

that no one is going to want to rob him, an indication of his standing

among those with whom they were conducting their illegal business. The

offender provided a guarantee or assurance that his involvement would reduce

the risk that they would be ripped off.

51 It was on 14 November 2016, during a conversation about the logistics of one

of the tobacco handovers, that the offender asked Zane: “do you want me to

ask them if they can organise a container”.

52 On 18 November 2016 Watsford, Zane and the offender me,t during which time

Zane explained he was looking at using a company from the region to disguise

the pseudoephedrine and that it cost $50,000 for the freight forwarder and

$350,000 for the door. I pause to note that discussions in respect of the

pseudoephedrine were not productive, stalled, and are not the subject of any

charge.

53 Zane said: “see, for them it doesn’t matter, you can bring in 50, you can bring

in 500, it doesn’t matter… The risk is the same”. Zane then raised the subject

of bringing in drugs: “so I was thinking - obviously with your contacts or

connections over there and how cheap it is over there and what you were

saying the other day, you want to bring them in. We should get in some sort of

partnership and bring stuff in, you know what I mean.”

54 It was Zane who reintroduced the subject of bringing drugs into the country

using the offender’s contacts overseas and suggesting a partnership. The

offender immediately responded: “well then, I’ll need to bring in my other

partner involved in it… He’ll speak to you more about like the bb (Blackberry),

then you can speak with him over the bb.”

55 The offender suggested that he make the introductions that same day and

Zane replied that he had a meeting but he might be able to shuffle things

around. While the offender was on his mobile phone, Zane said to Watsford:

“but you know what, don’t bank on it (the cigarettes) don’t rely on it, do other

business as well, because if you rely on that and it doesn’t come through,

you’re fucked”. This statement by Zane was a further example of the way in

which he kept the conversation alive about the possibility of importing drugs

using the “door” service.

56 Towards the end of that meeting Zane told the offender: “we’ll sit down and talk

about the other thing, because even if you want, like, however you want to

work it out… I can cover it for you, I can cover it”. Later in the conversation the

offender expressed his gratitude to Zane in relation to the earlier tobacco

transaction stating: “I am indebted to you and your mate because you helped

us out”. Zane responded: “you’re not indebted to us, Bro”. The offender said to

Zane: “I owe you’se”, to which Zane replied: “I know what you mean”, but

reiterated that he and the offender were partners to which the offender replied:

“yeah, I’d love to have you as my partner”.

57 I am satisfied that during this conversation it was Zane who reintroduced the

possibility of using the door service to import drugs. The offender expressed

his gratitude to Zane for facilitating the importation of smuggled tobacco, an

activity that the offender profited from. I am also satisfied that this conversation

reveals a willingness and preparedness on behalf of the offender to introduce

Zane to someone who could source drugs overseas.

58 Indeed, later that day (18 November 2016) a meeting took place attended by

the offender, Zane, Watsford, Mostafa Dib and Jodeh. At one point the

offender, Dib and Zane left the others and discussed the possibility of importing

illicit substances from Lebanon and other places around the world such as

China.

59 Zane told Dib that as long as he had the contacts overseas he could ensure

that the product gets in to which Dib replied: “that’s easy for me”. Dib

responded: “this side is easy for me”. In this conversation Dib was representing

that he had the overseas contacts who could source large quantities of border

controlled drugs and Zane was confirming that he had the means by which to

ensure that the drugs would enter the country.

60 This offender suggested that they have another meeting and Dib again

confirmed that he had people overseas and said: “I’m gunna have a crack”, a

reference to sourcing drugs overseas, to which the offender responded: “mate,

it’s worth it for all of us”, once again demonstrating his willingness to be

involved in the agreement to source drugs overseas for the purpose of

importing them into Australia.

61 On 27 November 2016, while in Thailand together, Zane told the offender that

the door service fee was a flat $350,000 to be paid when the goods arrived to

secure their release. The offender told Zane that he had told Dib that the fee

was actually 20% of the amount to be imported and suggested that after they

pay the door fee, he and Zane could split the remainder of the 20%

commission.

62 The offender told Zane that if he introduced Zane to someone they would never

rip him off because the offender would have introduced Zane as a good friend

and that he would be the guarantee that Zane would definitely deliver. He also

confirmed that Dib was trustworthy and that he would provide Dib with Zane’s

Blackberry handle so that they could communicate directly. The offender asked

Zane that if he did do business with Dib that he tell him about it so that if

anything goes wrong he would know about.

63 This is a further conversation in which the offender reassured Zane that his

involvement by way of introducing the parties meant that Zane would never be

ripped off. In essence he was introducing Zane as a good friend and someone

who could be trusted to do business with. The very fact that the offender was

doing the introductions reduced the risk of those with whom they were doing

business ripping Zane off.

64 During this conversation the offender told Zane to get involved in the “ecs” (a

reference to MDMA) but added: “it’s scaring me to tell you the truth…”. It

appears that on this occasion the offender was afraid of being detected. Zane

replied: “don’t get involved then”.

65 The offender then told Zane: “I don’t want the 30 (this was a reference to a

30% commission). I will give it to you, and you can give me a present out of

it… You and Ryan can go halves… I like the cigarettes, but the other thing (the

drugs) you and Ryan go halves”.

66 The offender also told Zane during that conversation: “you, Ryan and him go 3

ways, that’s not a problem, not a fucking problem… All I am doing is an

introduction for you then see you’se later, do what you’ve gotta do, but the

guarantee is still there that nothing can go wrong if I introduce you to these

people”.

67 The offender further told Zane: “look, if I can hook you up with my mate, you’re

a good bloke, you brought us in,[ind] alright it was Ryan, but at the end of the

day, it’s become me at the end of the day, you know what I mean, you brought

us in, you helped us make money, everyone’s got, everyone’s having a laugh

[a reference to the tobacco profits], so if I can help you out with my connections

why not, you’ve done it for us. And these boys I’m giving you are good boys,

not fucking scumbags… Ferry’s got money… good boy... I won’t introduce you

to fuckwits”.

68 I am satisfied that during this conversation, at this stage of the conspiracy, the

offender was telling Zane that he did not want a cut or a commission and

preferred to be involved in the smuggling of cigarettes. He maintained that, in

respect of the drug importation, he would introduce Zane to those who could

source the drugs, people who were trustworthy and dependable, and by virtue

of the fact that he was the one conducting the introductions, provide a

guarantee that nothing would go wrong.

69 At this point of the conspiracy, 27 November 2016, I am satisfied that the

offender, while a participant in the agreement to import MDMA into Australia,

considered that his contribution to the enterprise was to introduce Zane (the

door) to Dib (the person with the overseas contacts) and to provide the

guarantee that the parties would not cheat each other. It was by virtue of the

very fact that he was conducting the introductions that he would guarantee that

nothing would go wrong.

70 At this point of the conspiracy, he was content to do this for “a present” as

opposed to a cut or a commission.

71 Between 25 February and 14 March 2017, Dib forwarded to Zane Blackberry

messages which contained chains of communication that Arif sent to

Fakhreddine which were forwarded to Ahmad and then forwarded to Dib.

These messages contained information from Arif about the cocaine and MDMA

including that the price for the MDMA was €4000 per kilogram and the purity

was 86%. Dib told Zane that the quality was good so Zane would not need a

sample.

72 This chain of communication did not include the offender. I am satisfied that the

communications were passed through intermediaries, namely Ahmad and

Fakhreddine, to provide a buffer or distance to the upper-level players such as

Dib and Arif.

73 On 25 February 2017, Dib sent a message to Zane indicating that he had met

with his contacts in relation to the MDMA and that his contacts were happy for

Zane to go to Holland to inspect the product. Dib and Zane exchanged a

number of messages in which Zane enquired as to how much deposit was

required and Dib responded that he was not sure but would push for the lowest

amount. It was during these exchanges that Dib enquired of Zane how much

MDMA he wanted.

74 Zane nominated the initial amount as between 100 and 150 kg and that despite

assurances, he still wanted a sample. He offered to go and collect and pack

the MDMA himself as well as Dib’s cocaine. I am satisfied that during this

conversation the quantity of MDMA was nominated by Zane as between 100

and 150 kg. Although the initial quantity identified by Zane was a substantial

amount of MDMA, the ultimate quantity the subject of the conspiracy was

substantially more than 150 kg of MDMA, some 800 kg of impure MDMA.

75 A question has arisen as to whether the significant increase in the quantity of

MDMA was a result of Zane talking up the operation and encouraging the

parties to agree to larger quantities of MDMA.

76 The increase in the quantity of MDMA was largely the result of Dib and Arif’s

desire to take advantage of Zane’s door service by putting on a larger quantity

of MDMA. The ultimate breakdown of the drugs reveals that Arif’s cut was

some 456 kg of MDMA. However, Zane was not completely passive in what

became an ever-increasing quantity of drugs. In April 2017, Dib informed Zane

the amounts of MDMA would be 180 kg for Zane, an extra 20 kg for someone

else in Australia and the syndicate was putting on an extra 200 kg which would

be a total of 400 kg.

77 It was during this conversation that Zane told Dib: “the way I was looking at it, it

took a container, you know what I mean, we’re putting on 4, 450 total. We got a

container that’s what I’m saying there is much more space, we could put more

on and get a cut out of it”.

78 I cannot find that it was as a direct result of these representations by Zane that

the ultimate quantity was 800 kg of impure MDMA. In my view it is more likely

that the increase in the quantity of MDMA was the result of Dib and Arif’s

desire to take advantage of the door service. However, Zane was not

completely passive in the discussions about increasing the quantity of MDMA

or taking advantage of the opportunity to import a larger quantity of the drug.

He was encouraging an approach that took full advantage of the door service

by importing larger quantities of MDMA.

79 Zane’s encouragement of increased quantities of drugs was also evident in his

discussions with the offender in respect of the syndicate two conspiracy, where

on 24 March 2017 he told the offender that “50 to 100 [a reference to 50 to 100

kilograms] isn’t worth the door. Let’s not fuck around while we have the door

let’s go bigger”.

80 On 27 February Zane and Dib exchanged further messages in which Dib

stated: “Bro 150 Kgs rake and 150 MDMA just waiting to work out what

percentage my mate is gonna get out of the rake because when you get fixed

up, M (the offender) gets a cut, Ozzy (Watsford) gets a cut, I get a cut, my

mate won’t have anything left”.

81 It is an agreed fact that at this stage of the conspiracy, there is no evidence of

the specific percentage that the offender was to receive of the proceeds of the

importation.

82 On 28 February, the offender suggested that he would go with Zane to the

Netherlands. During this conversation Zane told the offender: “all it is, all his

getting is 200 [a reference to 200 kg of MDMA]”, to which the offender

responded: “that’s why he [Dib] was asking are we going to get anything out of

that. I said I don’t know, I don’t even know what you’ve been talking about, to

tell you the truth, until recently you know what I mean?” This would accord with

the fact that this offender was not included in the Blackberry message

communications on 25 and 27 February.

83 Zane told the offender and Watsford that he needed to know how the drug was

to be packaged so that the cover loads matched, to which the offender replied:

“well when are you free next so I can organise?” Zane responded: “maybe at

the end of this week if he [Dib] is free”.

84 Dib and Zane exchanged messages about the quantity Zane would purchase

and the cut Dib would receive. Zane explained that he needed a full 150 kg of

MDMA so that if Dib’s cut was 30 kg, he would purchase 180 kg of MDMA in

total.

85 On 2 March 2017 Zane communicated with Watsford confirming that he

needed $25,000 from each of them to cover all costs including the door

deposit. This offender was not a recipient of this message.

86 The offender, Dib and Watsford agreed that they would each contribute

$25,000 to cover the costs of everything Zane had to organise. On or about 9

March 2017 the offender provided Zane with $50,000 (being his contribution

and that of Watsford) and stated his willingness to contribute a further $50,000

for the door.

87 The offender also agreed that he would go to the Netherlands with Zane to

collect the sample. Zane complained to the offender about Dib pulling out of

the trip to the Netherlands and about the fact that Zane believed that he was

doing all the running around. In response to this complaint the offender said:

“you know what I might get you to do, say listen…. The boys upped, they want

20%.” The offender also said of Dib: “he’s got the connections but I’m going to

get my own connections man, you know I’m going to put my feelers out when

I’m ready”.

88 This is another example of a conversation in which the offender expressed his

willingness and preparedness to be involved in drug-related activity by making

his own connections and cutting out middlemen like Dib.

89 The offender reassured Zane that it would be either him or Watsford that

accompanied him to the Netherlands. The offender complained that he didn’t

even want anything to do with it but may now have to fly over there with Zane.

90 Zane raised the issue of storage to which the offender replied: “that’s between

you and them, bro, as I said to you, I don’t even want to get involved in this

shit, I am only getting involved in this for you. I swear to God, I’m only getting

involved to make sure…”

91 On 14 March 2017 the offender met with Zane and told him that Dib said that

“they” wanted the money to be exchanged in Australia rather than overseas.

The money would be left with the offender to hold onto and once Zane was

happy with the product the offender would hand over the money. During this

conversation the offender said to Zane; “after this first one goes (the

importation of the border controlled drugs) I’m staying out of…. That’s you’se

and them now you know what I mean? I’ll just focus on the cigarettes and you

will have two things going on but you don’t have to worry about it, all you have

to worry about is bringing the cigarettes in and you don’t have to worry about

anything else. I’ll control the cigarettes.”

92 Later in the conversation the offender told Zane: “I vouch for you, like I’ve

known you all my life. That’s what you’ve got to understand. It falls on my head

because I sit there and vouch for you”.

93 Dib then attended and they continued to discuss the importation. Dib explained

that his contact in the Netherlands would not put the drugs in packages or in

boxes for Zane. Dib and the offender confirmed that they did not want the

Netherlands syndicate to know anything about what company Zane was using

because they were concerned that they would try to piggy back on the

container. They then discussed how the handover was to take place. The

offender confirmed that he would be in the Netherlands on the 19th and told

Dib: “I will be your eyes and ears over there”.

94 At that stage Dib confirmed that the load would be 200 kg of MDMA, 180 kg

was for Zane which included (30 kg for Dib) and 20 kg for the person who

facilitated the contact with the oversea syndicate. They discussed the costs of

the MDMA and the offender said to Dib: “if he can get more, let me know….

Cos if we gonna do it, fuck it, might as well put more on”, to which Dib replied:

“yeah I may as well may as well, they’re gonna put more to, I’ll throw it on with

you to man.”

95 In the course of one day the offender expressed conflicting views about the

drug importation. On one occasion he expressed a preference for the tobacco

smuggling operation and a disinterest in the drug importation. On another

occasion, he expressed an interest in putting more drugs on if Dib could source

them. I am not persuaded that this conflicted position demonstrates that the

offender was coerced or manipulated by Zane to participate in the conspiracy

to import border controlled drugs. He was a willing participant motivated by

profit although, on occasion, he did express a disinterest in the drug

importation and a preference for the smuggled tobacco enterprise. Ultimately,

however, he continued to participate in the drug conspiracies.

96 Between 18 and 22 March, Dib exchanged messages with Zane. The offender

was copied into some of these messages in which Zane and Dib discussed

when and where they would meet his contacts in the Netherlands to collect the

sample of MDMA. This message chain originated from Arif via Fakhreddine

and Ahmad. It included the precise details for the meeting.

97 On 22 March Zane, another undercover operative and the offender met two

unknown men in Amsterdam who provided Zane with 1 kg of MDMA which was

the sample. Later the same day the offender suggested to Zane that they offer

his door service to another person by the name of Steven Elmir. He told Zane

that Elmir was a person who could source drugs from all over the world and

they could charge him 20% of the total amounts to be imported.

98 He provided Zane with Elmir’s Blackberry handle. During this conversation the

offender told Zane that he shouldn’t even have been there with him because it

had nothing to do with him. He said the only reason he accompanied Zane was

to give Dib peace of mind. The offender told Zane that the other blokes he was

putting him in contact with “are very, very good” (a reference to Elmir).

99 The offender introduced the possibility of Zane doing business with Elmir

without any prompting from Zane. The conversation demonstrates that the

offender was able to put Zane in direct contact with Elmir, a person who could

source drugs from all over the world.

100 On the one hand, his willingness to introduce Zane to people who had the

overseas contacts or were able to themselves source drugs, speaks of his

willingness and preparedness to participate in conspiracies to import

substantial quantities of drugs into Australia. On the other hand, his

representations, on occasion, demonstrate that his interest was in the

smuggled tobacco rather than the drug importation. During the conversation on

22 March 2017 the offender told Zane: “that’s what I’m happy with you know (a

reference to the smuggled cigarettes). But you know all this stuff (a reference

to the drugs) I don’t want nothing to do with it to tell you the truth. I want to

hook you up with all these blokes, here you go, this is it… Give me all the

cigarettes, you take this, I take the cigarettes, see you later you know what I

mean?”

101 Insofar as the percentage for the cut of the MDMA was concerned, the offender

told Zane: “you and Ryan… Just give me all the cigarettes. You’se take all of

this. I don’t want anything to do with this anymore. I don’t want nothing to do

with the drugs. I don’t want nothing to do with that, this is all a favour to you, to

get you going”. He went on in that conversation to tell Zane that Elmir will want

to do a test run and advised: “you know what we should say to him? All right

you want us to do a test run. Not a problem but let us buy… What we want and

put it on the same container as well”. These representations are a further

example of the offender’s conflicted position.

102 Between 23 March and 4 April Zane and Dib exchanged messages (with this

offender being copied into some of those messages) in which Dib asked Zane

whether he was satisfied with the sample and they discussed how the drugs

would be packed and whether the cocaine and MDMA would be marked

differently. During some of these exchanges Dib forwarded Zane’s questions to

Arif via Ahmad and Fakhreddine.

103 Arif explained that the drugs would be packed whichever way Zane wanted and

noted that if Zane wanted three tonnes that would be no problem. These

messages from Arif were forwarded to Dib and then to Zane. Dib provided

updates to Zane about the quantities of the drugs which fluctuated over time.

104 Dib and Zane discussed how the drugs and money would be exchanged and

they agreed that the offender would hold the money in Australia and once Zane

was satisfied with the drugs he would message the offender who would then

hand over the money on Zane’s behalf. They also discussed the possible

deposit that Arif’s syndicate now wanted and the increase in the cost of the

MDMA from €4000-€4500 per kilogram. Ultimately no deposit was required.

105 Over two days on15 and 16 March the offender told Zane that he had someone

else that wanted to do something from Vietnam. This contact is referred to as

“Thehillbilly Roy”, but the evidence does not demonstrate that any

arrangements in relation to the importation of border controlled drugs were

made with this contact.

106 Between 6 and 12 April 2017 Zane and the offender met and discussed the

importation of cigarettes. Later in the conversation and in the context of the

syndicate one importation, Zane asked the offender: “why don’t you throw on?”

(A reference to this offender purchasing drugs from the Netherlands), to which

the offender responded: “I’ve got no cash flow”. Zane said: “if you throw on,

you’ve done all this for me, if you throw on whatever, however you want, I’m

not going to take 20% from you, no way I would ever do that”. Notwithstanding

Zane’s suggestion that the offender “throw on”, the offender repeated that he

had no cash flow.

107 Following the increase in the price of MDMA, Dib confirmed that he and Ahmad

were going to cover the extra €500 per kilogram sought by Arif. He confirmed

that the $350,000 door fee would be split with this offender paying $100,000,

Zane paying $125,000 and Dib and Ahmad splitting the remaining $125,000.

Arif’s syndicate would not lock in an exchange rate given that the rate was

fluctuating.

108 The offender confirmed that he would have $1,800,000 ready for the purchase

of the smuggled cigarettes facilitated and organised through Zane but would

withhold $1,120,000 to be paid to Dib, on Zane’s behalf (and also $240,000 to

be paid to Elmir for 50 kg of cocaine that Zane was going to purchase in

relation to the syndicate two drug transaction). This meant that the offender

only needed to give Zane $440,000 for the smuggled cigarettes.

109 Various arrangements were made by the offender to source the cash for the

handover. Between 7 and 14 May 2017 a proposal was made by Dib to

increase the size of the importation by 400 kg. Arif confirmed that 800 kg was

available and the money needed to be ready by 21 May. Dib sent a message

to Zane in which the offender was copied in confirming that the new load was

800 kg of MDMA and 50 kg of cocaine. It subsequently became clear that the

cocaine could not be arranged.

110 On 19 and 20 May 2017 there were numerous tense messages exchanged

between Arif, Fakhreddine, Ahmad and Dib about last-minute changes to the

plans for the handover because Arif was concerned about conducting the

handover on a Sunday as a result of increased law enforcement presence in

the Netherlands.

111 At 4:55PM on 20 May the offender sent a message to Zane in which he stated

that he no longer wished to be involved in the drug importation and that

Watsford would take over and take the offender’s commission. Shortly after this

exchange Watsford sent a message to Zane advising that the offender did not

want to be involved in the drug importation and that he was taking over.

However that change of heart did not last long. About one hour later the

offender sent Zane a further message in which he apologised for his earlier

message and explained that “he just freaked out for a moment”. He confirmed

that he would take care of the cash handover the following day because he

understood that Zane felt safer if he attended to it.

112 Although, the offender expressed an intention to withdraw from the conspiracy.

He did not do so. He confirmed his willingness to attend the meeting where the

cash would be handed over in payment for the drugs. Although Watsford

expressed an intention to take over from the offender, he did not do so and I

am satisfied that his involvement in the conspiracy essentially diminished

following March 2017.

113 Dib and Zane exchanged messages in which they expressed their frustration at

the changes proposed. There was a failed handover on 21 May 2017.

114 On the same day the offender discovered that Watsford and another man by

the name of Chester had respectively skimmed $35,000 and $30,000 from the

cash that was to be used by the offender to purchase 900,000 packets of

cigarettes from Zane. The offender instructed Chester to attend his house and

bring proof that the money taken was to settle a debt incurred by Chester. That

day, Watsford met with the offender and told him that he would pay the money

back that evening but was unable to do so. Later that evening the offender sent

a message to Zane stating that Watsford and Chester had robbed him of

$65,000 which meant that he had to run around and find it. He also said that he

had bashed Ryan and expressed his frustration and anger.

115 On 23 May Chester attended the offender’s house and had the middle part of

his head shaved by the offender as punishment for taking the money. The

offender took photographs of Chester’s new haircut and circulated them to a

number of associates. On 26 May 2017 the offender instructed Watsford to

attend his home. The offender shaved the middle part of Watsford’s head as

punishment for taking the money and again circulated photographs to Zane

and other associates.

116 On 26 May 2017, Zane, in the Netherlands, collected 34 plane boxes

containing MDMA. He sent a message to the offender advising that he was

unloading the product and confirmed that he had checked it and was happy for

the offender to hand over the money. The offender handed over $1,120,000

cash to Dib and Ahmad. After Ahmad counted the money, Dib, Ahmad and

Fakhreddine departed with it. Following the exchange of the MDMA and the

money, the shipment of MDMA was seized by the Netherlands police.

117 Forensic examination of the MDMA revealed the total gross weight was 797.08

kg with a purity of between 71% and 78.1%. The pure weight was 594.43 kg.

The street value was between $79.7 million and $398.5 million. The wholesale

value was between $29.5 million and $35.1 million.

118 On 7 June 2017 the offender and Zane met and discussed how the drugs

would be collected once they arrived in Australia. The offender explained that

the drugs would go to Fakhreddine. The offender and Zane discussed future

importations with Arif, who would receive a cut.

119 Between 9 June and 20 July 2017, Zane had a number of communications with

Dib, the offender and Arif about how the 800 kg of MDMA would be distributed

upon its arrival.

120 On 15 June, the offender and Zane met in Dubai where they discussed the

progress of the importation and potential future importations with Elmir, Arif and

other associates. During this conversation, Zane and the offender agreed they

did not need the drama or the headache of dealing with Dib and Arif. The

offender said: “we may as well not do business cos I don’t need it…. We’ve got

other people… We’re are not petty cunts… We’re gonna make millions…

fucking million a week… We’re talking about tens of millions, even making

hundreds of millions of dollars”. The offender had well and truly embraced the

notion of making a large amount of money from the importation of large

quantities of border controlled drugs.

121 These representations are inconsistent with the notion that he was a reluctant

participant in the agreements to import border controlled drugs. The suggestion

made in the written submissions filed on behalf of the offender that some of

these representations were made in a state of unknown sobriety lacks an

evidentiary foundation. There is no evidence from which I could find that the

offender was affected by alcohol or other substance such as to have impacted

upon what he said.

122 On 20 July 2017 Dib forwarded a message chain setting out the revised

breakdown of the 800 kg of MDMA:

SYNDICATE ONE SHARE AMOUNT (KG)

M. Ibrahim 30 + 20 (door fee)

Unknown Person 50

Dib/Ahmad74 (introduction

fee)

Arif/Fakhreddine 456

Zane150 + 20 (door

fee)

Syndicate One Total 800 kg MDMA

123 Between 22 June and 11 July 2017, 900,000 packets of cigarettes arrived in

Sydney from Dubai. Zane provided the offender the keys to the warehouse in

Parramatta where they would be delivered. The offender attended the

warehouse where he was met by other associates who began loading boxes of

smuggled cigarettes onto a truck for distribution to unknown places in Sydney.

124 The total number of cigarette sticks imported by the offender, Fares Derbas

and others facilitated through and assisted by Zane was 18 million. The total

amount of duty evaded through the importation was over $11 million.

125 The offender sold the 900,000 packets of smuggled cigarettes for $8 per

packet with $7.50 a packet being allocated to the offender, a total of

$6,750,000. Fares Derbas was allocated $450,000. The two men completed

the distribution of tobacco within a week.

“Future Tobacco Transactions”

126 On 19 July the offender and Zane exchanged messages in which the offender

confirmed that he wanted to purchase more smuggled cigarettes. On 24 July

2017 the offender arranged for associates to deliver $2.25 million cash to a

hotel in Balmain where he was meeting with Zane. During that meeting the

offender and Zane discussed the further proposed importation of tobacco.

127 The offender told Zane that he intended to on sell each packet for $8.50 and

thought they would each receive $3.2 million after deducting the cost price of

$2.25 million. He confirmed that he would pay the people who invested in the

transaction from his own cut.

Syndicate Two Drug Transaction

128 The ‘Syndicate Two Drug Conspiracy’ involved two separate drug transactions.

The offender disputes that he was a participant in the second transaction. The

offender does not accept conspiratorial liability for this transaction and disputes

that he had any meeting of the minds with Elmir in respect of this attempted

second importation.

129 On 22 March 2017 during the drive to the meeting location to collect the 1 kg of

MDMA sample in respect of the syndicate one transaction, the offender and

Zane discussed Elmir’s capacity to source drugs from around the world. The

offender told Zane that if they used Elmir’s syndicate they would not need

anyone else because they were well respected and had a lot of people working

with them. They discussed the commission but the offender clarified that the

commission would be split between Zane and Watsford because the offender

would just be happy with the cigarettes and he did not want anything to do with

the drugs. He was simply doing a favour by introducing Zane to Elmir.

130 The offender told Zane not to tell Dib that they were dealing with Elmir because

it was none of their business. He talked about him and Zane making a “fucking

50 million dollars each”. It is hard to accept that he was there referring to profits

made from smuggling tobacco as opposed to money made from the

importation of drugs. In any case, when Zane raised Watsford in the

conversation, the offender said: “you let me drive with the other blokes. It’s got

nothing to do with Ryan. It’s our share mate. I’ll be straight out with you….

Ryan’s got the cigarettes, but this other stuff…. He’s too scared to go and do

anything. Like he was supposed to be here with you”. The offender said that he

can’t get the lion’s share for sitting back and doing nothing, “it doesn’t work like

that.”

131 On 24 March 2017 the offender and Zane exchanged numerous messages

regarding an importation of drugs sourced from Elmir’s syndicate. The offender

asked Zane if Elmir’s drugs would be put on the same container as Dib's

without Dib knowing. Zane confirmed that they would be.

132 The offender and Elmir exchanged messages which the offender then

forwarded to Zane. In these messages the offender confirmed the commission

would be 20% to get the ball rolling and the offender would confirm with Elmir

whether he was purchasing drugs as part of the importation or simply taking a

commission. Elmir told the offender that his associates could import 500 kg if

they wanted to do “a massive amount”. The offender forwarded these

messages to Zane stating: “I’m trying to get this done for us so what’s the most

he can put on with us”.

133 He told Zane to message Elmir directly with the questions he needed

answering. Zane asked the offender if he had told Elmir that they already had a

container coming out of Holland. Zane said that 50 to 100 wasn’t worth the

door. He said “let’s not Fuck around while we have the door let’s go bigger”.

The offender responded: ‘you just tell him that”. This is another representation

from Zane suggesting that they take advantage of the door by importing a

larger quantity of drugs.

134 Between 24 March and 1 April Zane and Elmir exchanged numerous

messages discussing the quantity of drugs proposed for the importation; that

the 20% door fee would cover the packing by Zane; the need for the drugs to

be heat sealed; and that Elmir would need to get the cover load ready. These

communications were conducted directly between Zane and Elmir.

135 Between 1 April and 3 April, the offender forwarded to Zane a series of

messages he had exchanged with Elmir which included discussions about how

Elmir would source the drugs; the prices Elmir charged for cocaine and MDMA

and the fact that the offender could not purchase any drugs at the moment as

he had put all his money into cigarettes but "for the next one he could". The

offender also vouched for Zane.

136 Between 10 and 19 April 2017 Zane exchanged messages with the offender

and Elmir about the proposed importation including the quantity of the drugs

and pricing. On 10 May 2017 the offender, Zane and Elmir met in Dubai where

they discussed packaging, timing of the importation, delivery in Australia and

sourcing the drugs from other locations.

137 On 15 May 2017 the three men met again during which time they discussed

collection date and ongoing importations. On 22 May 2017 Zane and Elmir

exchanged numerous Cipher messages regarding the arrangements for the

collection of the drugs. Later that day Zane and another undercover operative

attended the meeting point in the Netherlands and collected the MDMA and

part of the cocaine.

138 The gross weight of MDMA the subject of this conspiracy is 502.30 kg with a

purity of 77.9% and 78.6%. The pure weight is 392.95 kg. The street value of

the impure MDMA was between approximately $50.23 million and $251.1

million. The wholesale value was between $18.58 million and $22.1 million.

The total gross weight of cocaine was 20.03 kg with a pure weight of 15.77 kg.

The street value of the impure cocaine was between approximately 4 million

$12 million. The wholesale value of the impure cocaine was between

approximately $3.7 million and $5.6 million.

139 The breakdown of the 500 kg of MDMA and 20 kg of cocaine for the first

transaction of the syndicate two conspiracy is as follows:

SYNDICATE TWO SHARECOMMODITY

AMOUNT (KG)

M IbrahimMDMA

Cocaine

50 + 30 (door

fee)

2 (door fee)

Elmir MDMA 80

Elmir’s Unknown Syndicate AssociatesMDMA

Cocaine

240

16

ZaneMDMA

Cocaine

50 + 30 (door

fee)

2 (door fee)

Total500 kg MDMA

20 kg Cocaine

140 On 15 June 2017 the offender and Zane met and discussed a number of things

including further importations and future commissions. This is further evidence

of the offender’s willingness to be involved in drug-related activity

Arrangements for further importation by Syndicate Two (disputed liability)

141 On 22 June Zane and Elmir met in Dubai. During their discussions, Zane said

to Elmir: “if you want to go again you tell me where and you tell me how much

and I’ll start to arrange it tonight. I’ll start getting a cover load sorted

straightaway”. Elmir discussed bringing the drugs in from Greece and Holland

and said that MDMA was easy. The offender was not party to these

discussions.

142 The following day Zane confirmed the 250 kg was the minimum but that they

wanted to do 500 kg. He said that he would fill the offender in but the offender

was not included in these communications. Further communications on 24

June between Zane and Elmir related to the quantity of MDMA and the door

fee. The offender was not a recipient of these messages nor was he informed

of the specifics of the discussions between Zane and Elmir at this stage.

143 Between 1 July and 4 July 2017 Zane and Elmir exchanged messages about

the next importation. There is no evidence that this offender was informed of

the specifics of the discussions at this stage.

144 On 6 July Zane sent a message to the offender letting him know that he was

sorting out stuff with Elmir and that his uncle was picking up 500 kg of MDMA

and 200 kg of cocaine from Elmir’s associates in the Netherlands and that

“obviously we get our 20% from that but please brother don’t tell anyone…” To

which the offender replied: “Sweet bro, sounds mad”.

145 On 16 July 2017 Zane and the offender met. During this meeting they

discussed the offender’s travel plans to Thailand with his brothers. The

offender also told Zane about a conversation he had with Elmir who had

become paranoid and suspicious about Zane. He again vouched for Zane

telling Elmir that he trusted him 100%. Zane told the offender about the

quantities of drugs that had been arranged with Elmir. The evidence does not

demonstrate that the offender had negotiated, or been party to the negotiations

between Zane and Elmir in relation to the quantity is the subject of this

importation.

146 On 18 July Zane’s uncle (another undercover operative) attended a meeting

place in Rotterdam where he collected the drugs. After the successful

handover, Zane sent a message to the offender confirming that it was “all

sorted”. The total gross weight of MDMA the subject of this transaction was

498 kg with a pure weight of 344.6 kg.

147 The total gross weight of cocaine was 116 kg with a pure weight of 91.87 kg.

The gross weight of methamphetamine was 15 kg with a pure weight of 12.04

kg.

148 The substances were to be divided as follows:

SYNDICATE TWO – TRANSACTION TWO COMMODITY AMOUNT (KG)

M Ibrahim

MDMA

Cocaine

Methamphetami

ne

49.5 (door fee)

11.5 (door fee)

1.5 (door fee)

Elmir

MDMA

Cocaine

Methamphetami

ne

399

93

12

Zane

MDMA

Cocaine

Methamphetami

ne

49.5 (door fee)

11.5 (door fee)

1.5 (door fee)

Total

498 kg MDMA

116 kg cocaine

15 kg methamphetamine

149 On 7 August 2017 the offender was arrested in Dubai. Between 8 August and

17 September 2017 he was held in the custody of the authorities in the United

Arab Emirates. On 13 August 2017, DFAT staff visited the offender in custody

in Dubai at which time he advised that during his arrest and afterwards he was

beaten by police officers and forced to sign a document in Arabic that he did

not understand. He was asked about what he meant by being beaten but he

did not elaborate further.

150 On 17 September 2017 he was extradited to Australia.

Areas of Dispute and FindingsThe disputed liability for the second transaction in the Syndicate Two Conspiracy

151 The offender does not accept conspiratorial liability for the second transaction

which involved 344.6 kg of pure MDMA, 91.87 kg of pure cocaine and 12.04 kg

of pure methamphetamine. It is for the Crown to establish the offender’s

agreement in respect of this drug transaction beyond reasonable doubt.

152 The offender submits that, after Zane’s collection of the first quantity of “Elmir

drugs”, Zane and Elmir commenced preparations for the second transaction.

The offender was not party to the next arrangements and there was no meeting

of the minds as between the offender and Elmir in respect of the second

transaction. It is agreed that Zane exposed the offender to his arrangements

with Elmir by keeping him informed as to those arrangements. However, this is

said not to constitute a meeting of the minds. The drugs, the subject of this

second transaction, were collected by police operatives on 18 July 2017.

153 The offender submits that it is not enough that the offender had knowledge of,

or acquiesced on the face of it, to profit from the arrangements asserted by

Zane. Furthermore, it is submitted that this sham orchestrated by Zane,

namely, asserting that he was cutting the offender into a profit, is not a criminal

conspiracy to import narcotics.

154 The Crown submits that the evidence establishes beyond reasonable doubt

that the offender was party to an agreement to import the drugs the subject of

the second transaction. The Crown relies upon the following facts:

(1) the offender encouraged Zane to use Elmir as a contact for sourcing drugs to be preferred over Dib;

(2) he introduced Zane to Elmir’s associate for the purpose of discussing the quantity and commodity of drugs to be imported;

(3) the offender communicated with Elmir so as to alleviate his suspicions about Zane;

(4) the offender agreed to take 20% (to be shared with Zane), from Elmir and his syndicate, of the drugs collected on 18 July 2017. He is said to have promoted that percentage to both Zane and Elmir.

155 I make the following findings: the offender introduced Zane to Elmir and

encouraged him to use Elmir to source drugs, preferring him over Dib. That he

did so was not for the purpose of one transaction only but with an intention to

conduct future importations (plural).

156 On 10 July 2017 it was Zane who made arrangements with Elmir to have

Hawchar attend the meeting so he could speak to him about Elmir’s business.

On 11 July, Zane, Hawchar and the offender met at the Sheraton Hotel during

which time Zane explained to the offender how to find a warehouse where the

cigarettes were stored. Zane and the offender also had a conversation in

relation to whether Elmir decided to give Dib a cut of the drugs or profits.

157 I do not accept the Crown’s submission [CWS at 54 (b)] that the offender

introduced Zane to Hawchar for the purpose of discussing Elmir’s business. It

appears that Zane had already made arrangements with Elmir for Hawchar to

attend the meeting.

158 I am satisfied that the offender communicated with Elmir to reassure him and

alleviate his suspicions that Zane might be a police officer. He told Elmir that

he trusted Zane “a hundred percent”. It is unclear as to when the offender had

this conversation with Elmir but it appears to have been after the first

successful transaction on 22 May 2017. His actions in vouching for Zane could

only have been to ensure that Elmir would continue to engage in the second

transaction.

159 I am also satisfied that the offender agreed to take 20% of the drugs, to be

shared with Zane, from Elmir and his syndicate. On 6 April 2017, the offender

told Zane in relation to Elmir: “we’re gonna make 20% on everything”. That

the arrangement was for the offender to share in a 20% commission with Zane

is supported by the fact that on 26 June 2017, during the course of a message

exchange between Zane and the offender, Zane told him that Elmir was

bringing something else in from Holland and Taiwan but “it’s 20% between us

for now”. On 6 July 2017, Zane sent a message to the offender updating him

about the second transaction stating: “obviously we get our 20% from that but

please brother don’t tell anyone…” The offender replied: “Sweet bro, sounds

mad”.

160 In addition to these communications, the final breakdown of the drugs supports

the contention that the offender had agreed to take 20% to be shared with

Zane.

161 I am satisfied that there was an agreement between Zane, Elmir and the

offender to import the drugs the subject of the second transaction and that the

offender intended that the objective should be carried into effect. Even if there

can be no meeting of the minds between the offender and Zane, there was a

meeting of the minds between the offender and Elmir that the second

transaction go ahead. The offender vouched for Zane in furtherance of the

conspiracy, in an effort to ensure that the transaction went ahead.

162 That said, the offender’s direct involvement in this transaction was limited. He

was not included in many of the messages between Zane and Elmir in which

the negotiations and arrangements were communicated.

163 While I am satisfied that the Crown has established conspiratorial liability

beyond reasonable doubt, the role played by the offender in this second

transaction of the syndicate two conspiracy is significantly less than the role he

performed in the syndicate one conspiracy and the first transaction of the

syndicate two conspiracy.

The role of the offender in each offence

164 The offender is to be sentenced for criminality spanning what may be

described as three syndicates. The first can be described as the tobacco

syndicate, which included the offender, Ryan Watsford and Fares

Derbas (sequences 19, 12, 15 and sequences 13, 14 on the s 16BA

Schedule). His criminality in these offences included the sale and distribution of

smuggled tobacco which involved the offender dealing with the instruments in

proceeds of crime to the value of $2,863,870. On another occasion he was

involved in the importation of 900,000 packets of smuggled tobacco from Dubai

and dealt with a total sum of $1.8 million to purchase the smuggled cigarettes

from Zane. He also engaged in plans to import a further amount of smuggled

tobacco and dealt with a total sum of $2,224,540 to facilitate that importation.

165 The second syndicate can be described as the MDMA Dib syndicate which

was a conspiracy that included the offender, Watsford, Dib, Ahmad,

Fakhreddine, Arif and Saki to import 800 kg of MDMA into Australia (sequence

1).

166 The third syndicate can be described as the Elmir syndicate which was a

conspiracy that included the offender, Elmir and various unknown contacts of

his, to import commercial quantities of border controlled drugs. Common to the

operation of each syndicate was the undercover operative Zane.

167 In determining the offender’s role in each syndicate and thereby his role in the

offences, a number of preliminary issues must be addressed. The first issue is

whether the apparent meeting of the minds as between Zane and the offender

constitute criminal acts? Are the conversations and arrangements as between

the offender and Zane relevant to determining the extent of the offender’s

conspiratorial liability or are they relevant to motive and the application of

specific deterrence?

168 The second issue is whether the offender was a willing and enthusiastic (as

opposed to a reluctant) participant in the conspiracies to import border

controlled drugs.

Is the apparent meeting of the minds between Zane and the offender a criminal act?

169 The offender submits that it is critical to appreciate that the apparent meeting of

the minds (on any topic) as between Zane and the offender is not a criminal

act. The Statement of Facts is replete with examples of arrangements forged

between these two men. The offender submits that whilst these arrangements

may be relevant to motive and the application of specific deterrence, they

amount to no offence at all.

170 Mr Walker SC points out that it is essential to the existence of a conspiracy

there are at least two persons who agree or combine together to accomplish an

unlawful act. It is essential that each of the two parties to the conspiracy has

knowledge or is deemed to know the carrying out of the purpose involves the

commission of a criminal act. If only one of them has such guilty knowledge, it

is not a conspiracy: Rex v Segal (1929) 45 CCC 32. The critical question in a

conspiracy is whether or not a common design exists to commit an unlawful

act; here, to import into Australia a commercial quantity of border controlled

drugs.

171 The offender submits that it would be quite wrong to import into an evaluation

of the objective seriousness of the charged criminal conspiracies things

otherwise agreed as between Zane and the offender and only between those

two men, in light of the fact that Zane was an undercover operative acting

pursuant to a controlled operation. He did not intend that the drugs be imported

into Australia. There was no intention on his part to commit a criminal act and

therefore it cannot be said that there was a common design as between Zane

and the offender.

172 The Crown relies on the case of R v Ong [2007] VSCA 206 in support of the

contention that there can be a meeting of the minds between an offender and

an undercover operative. In that case, Ong’s co-conspirators included

undercover police officers of the Royal Thai police force. One of the

undercover operatives was engaged to collect the heroin in Bangkok and

transported to Australia. Thai and Australian police cooperated to bring the

heroin to Melbourne by aeroplane. In that case, the undercover police officer

was said to have intended to import the heroin into Australia and that

constituted a crime despite the fact that the police were not liable in respect of

its commission. The fact that they were not liable in respect of the commission

of the crime was held not to preclude their status as parties to the agreement

constituting the conspiracy in that case.

173 Having reviewed the authorities, I am not persuaded that the arrangements

forged as between Zane and the offender alone are acts in furtherance of the

conspiracy. However, on those occasions where the offender was participating

in a two-way conversation that includes a co-conspirator, there is a meeting of

the minds between the offender and the co-conspirator such as to establish

conspiratorial liability.

174 However, the arrangements forged between Zane and the offender alone are

relevant to the offender’s motivation and a determination of the extent of his

willingness to participate in the drug conspiracies.

Was the offender a willing and enthusiastic (as opposed to reluctant) participant in the conspiracies to import drugs?

175 There is no issue that the offender embraced the tobacco enterprise for the

purpose of obtaining a significant financial benefit. There is an issue, however,

as to what extent he embraced the conspiracies to import border controlled

drugs and whether, in truth, he was a willing or enthusiastic participant or

whether his involvement was motivated by his indebtedness to Zane, who in

turn manipulated and pressured the offender to participate in the drug

conspiracies.

176 A chronology (MFI 2) sets out the relevant dates and events. It is not

necessary to reproduce that 16-page document in the body of this judgment. In

summary, between June and November 2016, Watsford and Zane conducted

discussions in relation to money laundering and smuggled tobacco.

177 On 10 November 2016, Watsford introduced Zane to the offender, the purpose

of which was to bring the offender into the tobacco enterprise already forged.

The tobacco transactions continued over the course of the following 8 months.

It is clear that the offender was a willing and enthusiastic participant in the

tobacco transactions and that he was motivated by desire to make a financial

gain.

178 On 14 November 2016, in a conversation between Zane and Watsford, Zane

raised the subject of using the “door” to guarantee “anything”. I am satisfied

that during that conversation it was Zane who introduced the possibility of

using the door service to import drugs. Zane also raised the possibility of

importing large quantities of drugs because it wasn’t worth the risk to bring in

“five or ten kilos”.

179 The offender then joined the meeting and asked Zane “do you want me to ask

them if they can organise a container?” The offender also referred to having

access to drugs in Lebanon. The evidence does not establish that he did in fact

have access to drugs in Lebanon but the conversation is one example of the

offender’s willingness to engage in discussions about the importation of border

controlled drugs.

180 On 18 November 2016, Zane suggested to the offender that they enter into a

partnership and “bring stuff in”. His suggestion was predicated on his

understanding that the offender had contacts or connections to source the

drugs and that Zane could provide a guaranteed “door” to bring the drugs into

the country.

181 I am satisfied that during this conversation Zane was encouraging the idea of

using the “door” to import large quantities of border controlled drugs. He

suggested the partnership; he discouraged reliance on the cigarettes alone and

suggested to the offender that he could assist with financing – “I can cover it for

you, I can cover it”.

182 But the offender, on 18 November 2016, embraced the opportunity presented

by Zane by immediately suggesting he would need to bring in his “other

partner” (a reference to Dib) for the purpose of discussing further the proposed

importation of border controlled drugs. True it is that the offender expressed his

gratitude to Zane for providing the opportunity to make money from the

smuggled tobacco, but I am not persuaded that the offender embraced the

opportunity presented by Zane simply because he felt indebted to him. This is

simply not borne out by his subsequent representations and actions. He did not

simply introduce Zane to Dib and have nothing further to do with the

arrangements and negotiations

183 There were occasions when the offender expressed a disinterest in the drug

transactions. Examples of those representations include that on 27 November

he told Zane that he liked the cigarettes but as to the drugs, Zane and

Watsford could “go halves”. That apparent expression of disinterest was

precipitated by the offender telling Zane that he had told Dib that the fee was

20% of the amount to be imported and that after the door fee was paid Zane

and the offender could split what was left over of the commission.

184 On 5 January 2017, the offender said that he didn’t want anything to do with

the importation of the drugs and he only wanted to be involved in the purchase

of smuggled cigarettes.

185 On 14 March 2017, he conveyed that he didn’t want anything to do with the

importation of drugs and expressed some frustration about having to fly over to

the Netherlands in connection with the importation. He repeated that he wanted

to focus on the cigarettes and that after the syndicate one transaction he was

staying out of it.

186 However, on other occasions, by both words and deeds, the offender

demonstrated that he was a willing participant in the drug conspiracies. I am

not persuaded that he was an unwilling or reluctant participant, notwithstanding

that on occasion he expressed a disinterest in the drug importations. Nor am I

persuaded that he was a “naïve” participant. I am satisfied that the prosecution

has established that the offender was a willing participant in the drug

importations, motivated by the fact that he was to obtain a significant portion of

the drugs on each occasion. I make this finding for the following reasons:

(1) On 18 November the offender introduced Dib to Zane and during a meeting on that date the three men walked away from the cafe to discuss the possibility of importing illicit substances from Lebanon and other places;

(2) In March 2017 the offender agreed that he would contribute $25,000 to cover the costs of everything Zane had to organise. I am satisfied that this was a contribution to the door fee in respect of the importation of drugs because this arrangement included Dib contributing $25,000 to the costs. Dib was only involved in the syndicate one transaction. The offender also stated his willingness to contribute a further $50,000 for the door.

(3) On 8 March 2017 the offender asked Zane whether he would be interested in purchasing MDMA from a third party, EF, and Zane agreed. Not only was the offender a willing participant in the syndicate one transaction, he also willingly aided and abetted, counselled or procured the trafficking of the commercial quantity of MDMA;

(4) On 14 March 2017, the offender said of Dib that he had his connections but that the offender was going to get his own connections and put his “feelers out”.

(5) On the same date, although the offender expressed a desire to focus on the cigarettes only, he engaged in discussions with Zane and Dib about the importation of MDMA, confirming that they did not want the people in the Netherlands to know anything about what company Zane used because they were concerned that the Netherlands syndicate would try to piggy back on the container;

(6) The offender confirmed that he would attend the Netherlands and be Dib’s “eyes and ears over there”.

(7) During the conversation about the cost of the MDMA in respect of the syndicate one conspiracy, the offender said to Dib: “if he can get more, let me know…cos if we’re gonna do it, fuck it, might as well put more on”.

(8) On 22 March 2017, while in the Netherlands, the offender again expressed a disinterest in the drugs and a focus on the cigarettes. However in the same conversation the offender suggested that they offer Zane’s door service to another supplier, Elmir, a person who could source drugs from all over the world and charge 20% of the total amounts to be imported. On this occasion the offender was able to provide Elmir’s Blackberry handle to Zane. The offender also suggested that they tell Elmir that they would buy whatever they wanted and put it on the same container.

(9) On 20 May the offender sent a message to Zane stating that he no longer wished to be involved in the drug importation and would not attend the handover. However one hour later he sent a further message explaining that he “freaked out for a moment”, telling Zane that he wouldn’t let him down and that he would be there to take care of everything.

(10) On 26 May 2017 the offender handed over $1,120,000 cash to Dib on behalf of Zane.

(11) The offender’s share of the drugs in the syndicate one conspiracy was 30 kg of MDMA +20 kg for the door fee;

(12) On 15 June 2017 the offender and Zane met in Dubai during which time they discussed the progress of the importation and potential future importations with Elmir, Arif and other associates;

(13) On the same day the offender had a conversation with Zane about doing business with someone other than Dib’s group, during which he said: “we’re not petty cunts. We’re going to make millions….fucking million a week. We’re talking about tens of millions, even making hundreds of millions of dollars”. I am satisfied that this was a reference to making profits out of the drug importations as opposed to the smuggled tobacco. While the offender’s expectations about the extent of the profits may have been exaggerated, his representations clearly reflect that he was enthusiastic about obtaining a significant financial gain from the importation of border controlled drugs;

(14) On 24 March 2017 in the course of exchanged messages between the offender and Elmir the offender confirmed the commission would be 20% to get the “ball rolling”. In the course of the messages to Zane, the offender added: “I am trying to get this done for us so what’s the most he can put on with us”;

(15) On 6 April 2017 the offender told Zane: “We’re gonna make 20% on everything”.

187 I am satisfied that the evidence establishes that Zane provided the opportunity

to import large quantities of border controlled drugs and encouraged the use of

the “door” service for such importation. I am also satisfied that Zane, on a

number of occasions, suggested that larger quantities be imported so as to

take full advantage of the door service. However, the examples referred to

above demonstrate, clearly in my view, that the offender was a willing

participant in the conspiracies to import substantial quantities of drugs into

Australia. Although on occasion he expressed a preference for the smuggled

tobacco transactions, he embraced the suggestion that the door service be

used to import border controlled drugs; he made the introductions necessary to

facilitate each drug conspiracy; his purported cut of the drugs was significant;

and he participated in not one but two conspiracies to import substantial

quantities of border controlled drugs into the country.

Objective SeriousnessThe drug conspiracies

188 The assessment of criminality includes consideration of the offender’s

particular acts or acts in furtherance of the conspiracy. However, that

assessment goes well beyond the mere recognition of the offender’s actions

and role in the enterprise. In R v Elomar & Ors [2010] NSWSC 10, Whealy J

said at [15]:

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 offender 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 … the level of criminality exhibited by the conspiracy itself.

189 The weight of the border controlled drugs in each conspiracy was substantial.

The value of the drugs was also substantial. The evidence does not establish

that the offender was to engage in street level dealing. However the wholesale

value of the drugs was very high, attracting significant potential profit. I bear in

mind that the weight of the drug is not the chief or determinative factor in

determining the seriousness of the offences although it remains a relevant

factor: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584.

190 Each conspiracy to import border controlled drugs involved a high degree of

criminality. The conspiratorial agreement related to the importation of very

substantial quantities of drugs. It involved planning and organisation on an

ongoing basis over several months. The offender was involved in two separate

conspiracies each having links to professional, international criminal

syndicates. Although sophisticated, I am not persuaded that the degree of

sophistication exceeds that inherent in offences of this type, namely

agreements to import substantial quantities of border controlled drugs. Having

regard to the quantity and the value of the drugs, the nature of the

conspiratorial agreement and the methodology used, I am satisfied that each

conspiracy is properly characterised as objectively very serious.

191 The Crown submits [CWS 20] that the element of concert which differentiates

the offence of conspiracy from the substantive offence makes the offence of

conspiracy more serious than if an individual were acting alone to plan and

commit the offence, as the likelihood of the crime occurring is increased by the

involvement of multiple participants making a commitment to each other to do

so: DPP v Fabriczy [2010] VSCA 334 at [19]. That cannot be said of the

present case having regard to the fact that there was never any likelihood that

the drugs would be imported into Australia.

192 In this case, the fact that a number of offenders were acting in concert to

achieve an unlawful act/acts did not increase the likelihood of the crime/s

occurring because of the nature of the undercover operation (a matter about

which I will have more to say in due course). I am not persuaded that the

offences of conspiracy here are more serious than substantive offences.

193 There was never any risk that these large quantities of drugs would reach

Australia. From the outset this was a police undercover operation and the

drugs were seized by police before they made their way into the country.

194 The weight to be given to the fact that the drugs were not disseminated into the

community will vary from case to case. Here, a primary consideration remains

that the offender intended that substantial quantities of drugs reach Australia to

be disseminated into the community and it was through no act of his that no

such risk arose. The dissemination of drugs into the community constitutes a

significant aggravating factor. However, the absence of an aggravating factor

does not thereby constitute a mitigating factor. The fact that the drugs were not

actually disseminated into the community as a result of the police operation is

not a factor that reduces the moral culpability of the offender: Cam Huynh

Giang v R [2017] NSWCCA 25.

195 I am satisfied that the indicative sentence in respect of the syndicate two

conspiracy (sequence 18) should be higher than the indicative sentence for the

syndicate one conspiracy (sequence 1). That is because the syndicate two

conspiracy involved two separate transactions (albeit that the offender’s role in

the second transaction was relatively minor). Furthermore, in determining the

appropriate indicative sentence for the syndicate two conspiracy, I must take

into account the offence of trafficking MDMA on the s 16BA Schedule which in

itself is an objectively serious offence carrying a maximum penalty of life

imprisonment.

196 I turn to consider the role of the offender in each of the drug conspiracies. The

Crown submits that the offender’s role should be characterised as a principal

and organiser who exercised autonomy, was personally invested in the

importations and stood to make significant profits from them. He is said to have

performed crucial physical acts in furtherance of each conspiracy and was

trusted to make decisions and relate information to ensure the conspiracies

could proceed.

197 The offender takes issue with the characterisation of his role as an organiser

and trusted high-level participant who exercised significant autonomy. His role

and that of Watsford is said to be comparable. His role is said to be less than

that of Dib. The assertion that “this offender was in no more critical position

than Watsford” fails to properly characterise the role he played and the

autonomy he exercised.

198 I am not persuaded that this offender’s role is comparable to Watsford, or that it

sits under the role played by Mostafa Dib. The fact that the offender was less

“hands on” than Dib in attending to the tasks required in connection with the

syndicate one transaction, does not establish that he had a lesser role. Indeed,

it is not unusual for individuals who hold some seniority in a drug hierarchy to

distance themselves from the criminal activities by performing less direct tasks.

199 The offender’s acts in furtherance of the agreement the subject of the

syndicate one transaction includes:

(1) introducing Dib to Zane as someone who is able to source illicit substances and was keen to import such substances using Zane’s “door” service (November 2016);

(2) contributing a $25,000 deposit for the costs associated with the “door” (9 March 2017);

(3) in company with Watsford, meeting with Jodeh to take Dib’s $25,000 contribution to the costs associated with the “door” (14 March 2017);

(4) offering to contribute a further $50,000 for the costs associated with the “door”;

(5) liaising with Zane and Dib about how the money handover would take place in Sydney upon receipt of the drugs to Zane’s satisfaction in the Netherlands;

(6) agreeing to hold the money in Australia for handover once Zane had checked the drugs;

(7) travelling to the Netherlands with Zane and collecting a sample of the MDMA (22 March 2017);

(8) attending the meeting on 26 May 2017 and handing over $1,120,000 in cash after receiving word from Zane that he had successfully received the MDMA in the Netherlands;

(9) introducing Zane via Blackberry to Arif (15 June 2017).

200 The offender was a trusted and respected participant in the enterprise. His role

extended beyond merely making introductions. By his own representations, the

fact of his participation provided the guarantee that the enterprises would run

smoothly with a reduced risk of being “ripped off”.

201 On 10 November 2016, he told Zane: “anything you want, anything you want to

bring in just let me know, I’ll move anything you want” and that he would be “

your fucken right hand man, you know no one’s going to want to rob me”.

202 During a conversation on 27 November 2016, in relation to the syndicate one

drug transaction, the offender told Zane: “you, Ryan and him go 3 ways….. But

the guarantee is still there that nothing can go wrong if I introduce you to these

people”. In his trusted role, the offender vouched for Zane on more than one

occasion, facilitating the smooth running of the enterprise.

203 That the offender did demonstrate autonomy and a decision-making role is

evidenced by the fact that he had the contacts and connections which resulted

in introducing Zane to Dib (and through him the Arif syndicate) and to Elmir.

Indeed it was this offender who suggested that they deal with Elmir because he

considered him more reliable than Dib. Furthermore, it was this offender who

asked Zane whether he would be interested in purchasing MDMA from EF.

204 In respect of the syndicate two drug transaction, the offender performed

following acts in furtherance of the conspiracy:

(1) introducing Zane to Steven Elmir as a person who could source drugs from all over the world (22 March 2017);

(2) travelling to Dubai and facilitating an introduction in person between Zane and Elmir (10 May 2017);

(3) attending meetings in Dubai on 10 May and 13 May 2017 during which the offender, Zane and Elmir discussed the logistics for the importation;

(4) communicating with Elmir about the timing of the shipment of the drugs from the Netherlands.

205 A further indication of the senior role of this offender is that he stood to receive

50 kg of the total MDMA imported as a result of the syndicate one drug

transaction, comprised of a door fee of 20 kg and 30 kg. The offender stood to

receive a total of 80 kg of MDMA in respect of the first transaction of the

syndicate two drug conspiracy, comprising of his purchase of 50 kg together

with the commission to him of 30 kg of MDMA.

206 The fact that the drug split in each case was a sham arrangement and that, in

truth, the offender did not stand to make anything from the drug transactions, is

not to the point. The point is that he was aware of the breakdown of the drugs.

He purportedly stood to gain a substantial quantity of the drugs. The negotiated

profit is not meaningless in this case because it is a further indication of the

offender standing in this hierarchy.

207 Watford contributed $25,000 to the door fee. However, I am satisfied that he

was not allocated a portion of the drugs the subject of the syndicate one

transaction. His involvement in the syndicate one transaction diminished

significantly after March 2017. Watsford did not have the overseas

connections. That this offender was more senior in the enterprise than

Watsford is also demonstrated by the way he administered punishment to

Watsford when he uncovered that Watsford had cheated him of $30,000. On

26 May 2017, the offender instructed Watford to attend the following day. Upon

attendance the offender shaved the middle part of Watford’s head as

punishment for taking the money. He took photographs of Watsford and sent

them to Zane and other associates.

208 Of course this offender had no control over the “door” or any information about

the door other than that provided by Zane. The person who was the principal or

lynchpin in the Sydney-based group was Zane. He purported to guarantee the

successful importation of border controlled drugs and tobacco products. His

“door” service was crucial, indeed essential. The lynchpins in the overseas

drug syndicates were Arif and Elmir. Without them there would be no drugs.

209 In respect of each offence of conspiracy to import a commercial quantity of

border controlled drugs, I find the objective seriousness to be of a high (as

opposed to the highest order) having regard to the substantial quantity of

border controlled drugs the subject of the conspiracies; the planning,

organisation and methodology involved; the lengthy period of several months

over which each conspiracy was on foot; and the degree of coordination and

communication between the Sydney-based syndicate and the overseas

syndicates.

210 In terms of the offender’s role, I find that in respect of each conspiracy, he was

a trusted and willing participant who engaged in the criminality expecting

significant financial gain. I am satisfied that this offender played a significant

role, slightly higher than that of Dib and well above Watsford in the syndicate

one transaction. Although the crucial decisions about pricing and logistics in

respect of the drug conspiracies were largely made by Arif and Elmir and Zane,

this offender was consulted and was included in some of the communications.

211 I am not persuaded that his role is properly characterised as the principal in

each conspiracy. As indicated above I am satisfied that the Zane was the

principal in the Sydney-based syndicate and that Arif and Elmir were the

principals in the overseas-based syndicates.

212 However, the offender’s criminality is of a high order in that he exercised

autonomy and a degree of decision-making power. His involvement extended

beyond making introductions. His ongoing presence and participation was

regarded as guaranteeing the smooth running of the enterprises. He was

involved in and consulted about the importation of border controlled drugs. He

was personally invested in the importations and/or stood to make significant

profits from them. In that respect he was important, and indeed, essential to the

instigation of each conspiracy (by making the introductions) and to the smooth

running of each operation once it had commenced.

213 But to be clear, he was not a “lynchpin” in the same sense as Zane (in the

Sydney-based syndicate) and Arif and Elmir (in the overseas-based syndicate).

Without Zane, the opportunity to import border controlled drugs would simply

not have arisen having regard to the fact that he provided (or purported to

provide) the essential means by which the border controlled drugs could be

imported into Australia. Without Arif and Elmir there could have been no

importation because there would have been no product.

214 For completion, I add that the uncharged conduct relied upon by the Crown

(outlined in Annexure A) provides context as to the way in which the enterprise

developed and to counter any suggestion that the offender’s conduct was an

aberration or constituted an isolated incident. I do not take into account the

uncharged conduct in increasing the objective seriousness of the offences to

which the offender has pleaded guilty. The offender makes no submission that

his offending was an isolated incident.

The nature and scope of the tobacco transactions and the offender’s role in those offences

215 The scheme of money laundering offences set out in Chapter 10 of the

Criminal Code makes clear that the two primary factors in determining the

seriousness of an offence are the amount of money involved and the state of

mind of the offender. There is no issue that the offences relating to the

smuggled tobacco were on foot at all relevant times over the course of 8

months from November 2016 until the offender’s arrest in August 2017. By the

time of his arrest, his share of the proceeds of the tobacco sales was

$6,750,000 (minus costs).

216 Three tobacco transactions comprise a rolled up charge (sequence 19) ,

spanning a period of about 4 months in which the offender engaged in 3

transactions totalling $2,863,870 for the purchase of tobacco purportedly

smuggled into Australia.

217 His involvement included attending meetings where logistics, distribution and

payment were discussed. He provided $50,000 deposit for the transaction. He

had an oversight role in relation to the delivery by Watsford and Fares Derbas

of the first handover of $550,050 and the second handover of $600,000 in cash

to Zane in exchange for the smuggled tobacco.

218 In relation to the second transaction, the offender negotiated with Zane

regarding the price of the tobacco; he arranged a new Blackberry handle for

Zane to facilitate ongoing covert communication; he financed the transaction

and had an oversight role in respect of the delivery by Fares Derbas of

$620,000 cash to Zane.

219 Following the failed transaction on 7 March 2017, the offender stepped up his

hands-on involvement as evidenced by the fact that by the third tobacco

transaction he took more control of the logistics of the enterprise.

220 I am satisfied that the offender’s role in the tobacco transactions was more

significant than that of Watsford. Although each stood to make significant

financial gain, the offender demonstrated more control. On occasion, he

directed Watsford and Fares Derbas to physically deal with the money on his

behalf and he took personal control of transaction three when he perceived that

Watford was unreliable having regard to the failed tobacco transaction.

221 In respect of tobacco transaction 4, the offender dealt in $1.8 million to import

900,000 packets of smuggled tobacco from Dubai. Zane again provided the

means of the importation. The offender borrowed money to assist in financing

the importation and directed a number of associates to assist in the financing of

the enterprise.

222 I am satisfied that this offender played a senior role in tobacco transaction 4

and exercised a degree of authority over others in the enterprise. That he

wielded authority is demonstrated by the events on 21 and 26 May when he

“punished” Watsford and Chester for allegedly skimming $35,000 and $30,000

respectively.

223 In relation to the future tobacco transaction, the offender engaged in

discussions with Zane for the importation of a substantial quantity of smuggled

tobacco which would be funded by the offender using the proceeds of the

tobacco for transaction. He arranged with Fares Derbas to have $2.25 million

in cash available and either physically engaged in or oversaw the transfer of

the cash into Zane’s car.

224 In respect of each of the tobacco transactions, I am satisfied that the offender

played a senior role. He was personally invested and obtained a substantial

financial benefit. I am also satisfied that he played a more senior role than

others involved in the transactions including Watsford and Fares Derbas.

Role of undercover operative and reduction in culpability

225 Mr Walker SC submits that it is legitimate to discount the sentence by reason

of the circumstances in which an offender was led to commit the offence,

including dealings with an undercover police officer acting as an agent

provocateur. In this case, the submission is made that it is clearly open to

conclude that the offender would not have engaged in the importation offences

without Zane and that his culpability is otherwise reduced.

226 The Crown submits that “the fact that the offender committed the offences in

circumstances involving dealings with an undercover police officer is relevant

on sentence. However, the question is not whether the offender can show that

but for the involvement, encouragement or incitement by police, he would not

have committed the crime; but rather, whether in all circumstances of the case,

the involvement of the police was such as to diminish his culpability”: [CWS

95]. In support of that contention the Crown refers to the case of R v Taouk

(1992) 65 A Crim 387 at 404.

227 The submission does not accurately reflect the statement of principle

enunciated in that case by Badgery-Parker J (with whom Clarke JA and

Abadee J agreed):

It is abundantly clear that, were it in this State a defence to a criminal charge to show that police officers entrapped the accused by inducing him to commit a crime which he would not otherwise have committed, the appellant would have failed to establish that defence. However, when it comes to sentence, the question is not whether the accused can show that but for the involvement, encouragement or incitement by police he would not have committed the

crime, but rather, whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have done so, and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as diminished his culpability.

228 The Crown submits that, in the circumstances, involvement of the police was

not such as to diminish the offender’s culpability because he was plainly

prepared to import large quantities of illicit substances by any means possible

and to purchase smuggled tobacco from whomever he could. The Crown

further submits “it is feasible that, without assistance, the offender would have

made progress in carrying out the illicit drug enterprise as he embarked upon

given his connections through Dib and Elmir”: [CWS 97].

229 I do not accept the submission that, without assistance, the offender would

have made progress in carrying out the illicit drug enterprise. There is no

evidence that the offender was engaged in, or had contemplated dealing in,

smuggled tobacco or importing border controlled drugs prior to Zane

presenting the opportunity to do so through the door service. This is not a case,

for instance, where the offender was engaging in drug-related activity with an

intention to import border controlled substances into Australia before the

involvement of the undercover operative.

230 However, once the opportunity was presented, the offender immediately

embraced it. I accept that his involvement in the tobacco transactions was

more consistently enthusiastic then his involvement in the drug importations.

He did, on occasion, express a disinterest in the drug importations. But overall

he was a willing participant who continued his involvement in the conspiracies

being motivated by the desire to make the potential financial gain.

231 The statement of principle enunciated in Taouk remains good law. Whether,

and to what extent the involvement encouragement or incitement by police

operates to reduce an offender’s culpability must be judged on the basis of the

facts in each case.

232 In the sentence proceedings of the co-offender Mostafa Dib, Mr Buchen SC

relied upon what was described as the critical and instrumental role of Zane to

submit that there was never any prospect or risk the drugs would be imported

into Australia and that his involvement “tends to impact on the seriousness of

the offence”. The role Zane played in initiating and driving the enterprise was

said to be a relevant factor in assessing the culpability of Mr Dib, although it

was conceded, in that case, that it was not a factor that “should have

pronounced significance in the sentencing exercise”.

233 A great deal more emphasis has been placed on the role played by Zane and

the relevance of the undercover operative to an assessment of this offender’s

culpability. As a result, it is necessary to provide more detailed reasons in

relation to whether and to what extent the police participation is relevant to that

assessment.

234 Since the decision in Taouk, a number of cases have dealt with the issue of

whether an offender’s culpability is diminished by reason of the involvement

encouragement or incitement by police to commit the crime. I do not intend to

set out a detailed or comprehensive summary of those authorities. There is no

question about the accuracy of the stated principle; the question is whether it

applies at all, and if so, to what extent, in the particular case: Cam Huynh

Giang v R [2017] NSWCCA 25; Mihelic v R [2019] NSWCCA 2; Parris v R

[2013] NSWCCA 5.

235 The Victorian Court of Appeal has provided valuable guidance in relation to the

factors that may be relevant in assessing the impact of police involvement on

the culpability of an offender: Haval Kada v The Queen; Hadil Kada v The

Queen [2017] VSCA 339.

236 The first matter worth noting is that, unlike many cases involving covert police

operations, here, the undercover operative was pivotal or instrumental in the

offending conduct from the very outset. There is no evidence that this offender

was engaged in, or contemplated, dealing in smuggled tobacco or agreeing to

import large quantities of border controlled drugs prior to Zane’s involvement.

237 Zane presented the opportunity for this offending conduct to take place by

introducing the notion of a door service that guaranteed the importation of illicit

substances into the country without detection. This is not a case where the

agreement to import large quantities of border controlled drugs was

accommodated within the offender’s existing drug-related operation or supply

lines. There is simply no evidence that the offender was involved in the

smuggling of tobacco or drug-related activity of any kind prior to being

introduced to Zane.

238 Zane dealt directly with the offender. Indeed, it is open to conclude that the two

men developed a friendship and trusting relationship (genuinely held on the

part of the offender).

239 On the other hand, once the opportunity was presented by Zane, the offender

wholeheartedly embraced the tobacco transactions. He also embraced and

was a willing (as opposed to reluctant) participant in the drug conspiracies. He

engaged in the offending for substantial profit.

240 Zane presented the opportunity to conduct these potentially lucrative criminal

enterprises. Was there a real possibility that but for the assistance,

encouragement or enticement by police he would not have committed the

crime? Would the offender have engaged in the offending conduct without the

opportunity presented by Zane? The answer to that question must be no

because it was the guarantee of the door service that precipitated reaching out

to the overseas syndicates who could source the border controlled drugs.

241 In the circumstances of this case, having regard to the particular interplay

between the involvement of Zane, the extent of the undercover operation and

the offender’s conflicted position about the drug importations, I am persuaded

that the offender’s culpability is diminished. I make this finding because there is

no evidence to suggest that the offender was contemplating or engaging in

drug-related activity prior to Zane presenting that opportunity by guaranteeing a

method of importation that would not attract law enforcement attention. It is

partly for this reason that I am not persuaded that the offending conduct falls

into the highest order.

242 However, the extent of that diminution is not substantial because, although

there was a degree of encouragement and perhaps enticement on Zane’s part,

no coercion or pressure was applied. The offender was not a reluctant or

unwilling participant.

Section 16BA Schedule

243 In sentencing the offender for sequence 12, I take into account two further

offences, and in imposing a sentence for sequence 18, I take into account a

further offence, as contained on the s 16BA Schedule. These offences do not

operate to increase the objective seriousness of the substantive offences. They

are however relevant to assessing the weight to be afforded specific

deterrence and retribution. Each offence on the Schedule is itself an objectively

serious offence in which the offender played a crucial role.

244 General and specific deterrence and denunciation are important sentencing

considerations in this case having regard to nature of the criminality and the

duration over which the offender engaged in it. During a period of some

months, the offender participated in not one but two conspiracies to import

substantial quantities of border controlled drugs into the country. Condign

punishment will be meted out to those who engage in such activity, not only to

deter the individual offender, but also to deter other like-minded individuals.

245 The money laundering offences also constitute serious criminal activity. Money

laundering is difficult to detect, investigate and prosecute. It is for this reason

the general deterrence is a significant factor when sentencing for such

offences.

246 This is not the first time that the offender comes before the Court having

committed a criminal offence. Apart from driving offences, he has been

convicted for possessing an unauthorised firearm in 1997; assault occasioning

actual bodily harm in 2000; the possession and supply of prohibited drugs in

2005; and hindering an investigation in 2006. In addition, he was sentenced to

imprisonment for 9 years 4 months with a non-parole period of 6 years and 6

months having pleaded to a charge of manslaughter in 2008.

247 His record does not contain convictions for drug-related offences of the

magnitude for which I must sentence him, but he is not entitled to the leniency

that would be extended a first-time offender or a person with a relatively minor

record.

Subjective Circumstances

248 The report of Sam Borenstein, Clinical Psychologist, includes a summary of the

offender’s background. He is the youngest of six children, having three older

brothers and two older sisters.

249 The offender’s father died in 2014, aged 71, of a heart attack. His childhood

was a difficult one. His mother migrated to Australia from Lebanon with five

children. The family suffered dislocation and poverty during the offender’s

childhood. It appears that the offender’s father was absent for significant

periods during his childhood, travelling to and from Lebanon. The offender’s

father was a chronic gambler and essentially left the burden of parenting his

children to his wife.

250 The offender attended school until the end of Year 8. He struggled with literacy

and was placed in special classes. He also experienced bullying at school. He

has worked as a builder’s labourer but his employment history is poor having

regard, at least in part, to the fact that he has spent a significant portion of his

adult life in custody. Since 2002, he has spent approximately 14 years of his

life in prison. I am satisfied that if not already institutionalised he will certainly

be so by the time he is released. This is a relevant consideration in determining

the time that justice requires the offender spend in custody serving the non-

parole period.

251 The offender’s mother confirms that the family came to Australia in 1972 from

Lebanon to flee the Civil War, as refugees. She came to Australia with five

children. Her sixth child, the offender, was born in Australia. The offender’s

mother confirms the history of bullying that the offender experienced at school.

He was also subjected to beatings by his older brothers. In his teenage years

he gravitated towards and associated with a negative peer group.

252 When the offender was released from custody on the last occasion he was

having great difficulties gaining employment. Not long after his release his wife

suffered a miscarriage which was devastating for both of them. Thereafter he

increased his use of MDMA cannabis and alcohol. Having set out at some

length the offender’s involvement in the offences, I reject the suggestion in the

psychological report that the offender was subjected to a degree of

manipulation which included emotional coercion on the part of the Zane.

253 Mr Borenstein opines that the offender’s intelligence is no better than low

average and likely falls in the borderline range. His response to vocabulary

items are said to be simplistic and naïve. I accept that the offender’s

intelligence is no better than low average which appears to be consistent with

his learning difficulties and semi literacy at school. I am not however of the

view that his low intelligence reduces his moral culpability having regard to the

nature and extent of his involvement in the offences.

254 The offender’s wife remains supportive of him. In her letter to the Court, Ms

Hall, describes the anguish and concern experienced following the shooting of

the offender outside his home in 2015. He was hospitalised for a period of time

and became more paranoid. He experienced complications as a result of the

gunshot wound although there is no evidence to suggest that he has an

ongoing medical condition as a result.

Hardship in custody

255 The offender has been held in segregation for discrete periods, the last being

between 6 and 20 November 2019. I accept that those periods in segregation

would have had a detrimental effect upon his mental health. However, as I

understand the evidence he has been released from segregation and is

housed in the main prison population. Although the offender has experienced

onerous conditions during discrete portions of his time in custody, I cannot find

that his future custody will be similarly onerous because the evidence does not

establish that he will be placed in segregation in the future.

256 The offender’s mother is 72 years old and suffers from a number of medical

conditions including breast cancer (in remission). In light of the sentence that I

must impose upon him, there is a real chance that his mother will never see

her son as a free man. In addition, due to Mrs Ibrahim’s failing health she is no

longer able to visit her son in custody. I am prepared to find that the inability to

see his mother will weigh heavily on the offender during his time in custody.

257 The decision to impose a lengthy term of imprisonment that will see the

offender disconnected from his mother is not taken lightly. But it is incumbent

upon the Court to impose a proportionate sentence having regard to the

objective gravity of the offences, the relevant sentencing principles and the

offender’s subjective case.

Remorse

258 Exhibit 1 is a document entitled “Letter of Apology”, however it does not contain

an apology or any expression of remorse. The offender’s pleas of guilty reflect

some remorse on his part although this was a strong Crown case against him.

There is little other evidence to demonstrate remorse or contrition.

Future prosects

259 Having regard to the offender’s criminal record and the nature and extent of the

offending involved in these offences, I am guarded about his future prospects

of rehabilitation. In light of the lengthy term of imprisonment to be imposed, it is

however difficult to predict with any precision the offender’s future prospects

and the likelihood of his reoffending.

Penalty

260 The proper approach to sentencing involves the weighing of all relevant factors

in order to reach a conclusion that a particular penalty should be imposed. The

Court should avoid taking a mathematical approach as this would depart from

the principle because it does not take into account that there are many

conflicting and contradictory elements which bear upon sentencing an offender:

Markarian v The Queen (2005) 228 CLR 357.

261 Clearly, having regard to the nature and scope of the offences, the only

appropriate penalty is one of full-time imprisonment of some length: s 17A

Crimes Act 1914 (Cth). I am mindful that in setting the non-parole period there

is no starting point or judicially determined norm as a percentage of the head

sentence for the period of imprisonment that a federal offender should serve in

custody before release to parole. It is wrong to begin from some assumed

starting point and then seek to identify special circumstances. Sections 16A(1)

and 16A(2) make it plain that all of the circumstances must be taken into

account in setting the non-parole period just as they must be taken into

account in imposing a sentence of imprisonment.

Accumulation and totality

262 I will proceed by way of an aggregate sentence. In doing so I must consider

questions of accumulation or concurrence as well as the principle of totality. In

this case each of the drug conspiracies and money laundering offences

involved separate and distinct episodes of criminal activity. I am satisfied that

some accumulation between the sentences for each offence is required to

reflect the separate criminality involved.

263 In determining the extent of the accumulation I have had regard to the fact that

the offender’s criminality is properly understood to be an interrelated series of

transactions involving Zane and the door service that he provided. I have also

had regard to the overall criminality in all of the offences and have applied the

principle of totality in determining what, if any, downward adjustment is

necessary.

Parity

264 The principle of equal justice requires, as far as the law permits, that like be

treated alike and that differential treatment be meted out to reflect differences

between those who are relevantly different. The parity principle requires that

where two or more offenders are involved in the same criminal conduct or

enterprise there should not be such disparity between the sentences imposed

so as to give rise to a justifiable sense of grievance. The effect of the

application of the principle may vary according to the circumstances of the

case including differences between the charged offences, the role of each

offender, and the subjective cases.

265 I bear in mind that I must first determine the appropriate sentence having

regard to the objective criminality and other relevant factors in this case, and

then consider whether the sentence needs further adjustment because of the

parity principle. I do not use the co-offenders’ sentences as a starting point and

then increase or decrease the sentence by reference to other factors.

Ryan Watsford

266 Ryan Watsford was sentenced to an aggregate term of imprisonment in

respect of a number of offences, some of them common to the offences in this

case. For his involvement in the syndicate one offence the starting point of the

sentence was one of 16 years imprisonment. I found that his offending was just

below the middle of the range of objective seriousness and that he was acting

under the direction of this offender. I also found that this offender performed a

more substantial and senior role in the offending conduct.

267 For the reasons set out above, I am not persuaded that this offender’s role is

comparable to that of Watsford. The extent of his involvement from the outset

was more extensive. It included introducing Zane to those who could source

the border controlled drugs; exercising a degree of responsibility and

autonomy; being invested in the enterprise; and standing to gain what can only

be described as a substantial cut of the drugs. I am satisfied that this offender’s

role is higher than that of Watsford.

268 Furthermore, in respect of the “tobacco 4 transaction” (sequence 12 in this

case and sequence 7 in Mr Watsford’s case), the starting point of the indicative

sentence here must be greater not only because I am satisfied that this

offender played a more senior role, but because the money involved in the

offence here is $1.8 million as opposed to $440,000 in Mr Watsford’s case. In

addition, here I must take into account two offences on the s 16BA Schedule.

269 A further point of distinction favouring Mr Watsford overall was his positive

subjective case. He came before the Court with no prior criminal history …

[redacted] … a level of remorse of a high order.

Mostafa Dib

270 Mostafa Dib was sentenced in respect of one offence relating to the syndicate

one transaction. Following an application of 30% reduction in sentence, I

imposed a term of imprisonment of 18 years and 2 months with a non-parole

period of 12 years imprisonment. The offender and Dib were personally

invested in the syndicate one importation and stood to make significant profits

from it. Both performed crucial physical acts in furtherance of the conspiracy

and both were trusted to make decisions in respect of it.

271 This offender undertook less “hands-on” tasks than Dib. However, I find that he

played a slightly more serious role than Dib because his involvement operated

to make the various pieces fit together and assured that the drug enterprises

ran smoothly by reducing the risk that they would be “ripped off”. He

guaranteed trust between the two sides. That his position was slightly higher

than that of Dib is also evidenced by the fact that he suggested to Zane an

alternative source for the drugs (namely Elmir) when tensions arose in respect

of the syndicate one transaction.

Ahmad and Fakhreddine

272 I have not yet sentenced the co-offenders, Ahmad and Fakhreddine. For

completion I am satisfied that the roles of these co-offenders were less than

that played by this offender. On the facts before me in these proceedings,

Ahmad and Fakhreddine did not exercise autonomy or decision-making

responsibility. They essentially acted as a buffer or “wall” to shield the more

senior participants.

273 While the principle of parity remains relevant and has been taken into account

in determining the appropriate penalty in respect of the relevant offences, this

offender has also pleaded guilty to a second conspiracy, involving the Elmir

syndicate. The overall criminality of this offender is greater than that of his co-

offenders. The aggregate sentence that I impose upon him must reflect that

additional criminality and will therefore be greater than that imposed on his co-

offenders.   

Comparative sentences

274 I have been provided with and considered a “Schedule of Other Relevant

Cases” (Annexure A). In doing so I have been mindful of the approach to the

use of comparative cases set out by the High Court in R v Pham (2015) 256

CLR 550. I am also mindful when considering sentences imposed in previous

cases, either by reference to charts or schedules, of the limitations of that

exercise as indicated by the High Court in Hili v The Queen; Jones v The

Queen (2010) 242 CLR 520. It is necessary to consider sentencing practices

across Australia and decisions of intermediate appellate courts to ensure

national sentencing consistency in the application of relevant sentencing

principles. If such analysis yields discernible sentencing practices and possibly

a range of sentences then those comparable sentences may be used as a

yardstick that might serve to illustrate, but not define, the possible range of

available sentences.

Determination

275 The offender is convicted in respect of each offence.

276 Taking into account a 25% reduction in sentence to reflect the utilitarian value

of the pleas of guilty, I set out the following indicative sentences:

(1) Conspiracy to import commercial quantity of border controlled drug (Sequence 1 – “Syndicate One Transaction”): 21 years imprisonment.

(2) Conspiracy to import commercial quantity of border controlled drug (Sequence 18 – “Syndicate Two Transaction”), taking into account s 16BA Schedule offence (Sequence 20 – trafficking MDMA): 22 years 6 months imprisonment.

(3) Deal in instrument of crime (Sequence 19 – “Tobacco Transactions 1, 2 and 3”): 7 years 6 months imprisonment.

(4) Deal in proceeds of crime (Sequence 12 – “Tobacco Transaction 4”), taking into account s 16BA Schedule offences (Sequences 13 and 14): 8 years 6 months imprisonment.

(5) Deal in instrument of crime (Sequence 15 – “Future Tobacco Transaction”): 6 years imprisonment.

277 Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) I

impose an aggregate sentence of 30 years imprisonment commencing on 8

August 2017 and expiring on 7 August 2047. I fix a non-parole period of 18

years imprisonment commencing on 8 August 2017 and expiring on 7 August

2035.

278 The offender will be eligible for consideration for release on parole at the

expiration of the non-parole period subject to the guidance and supervision of

Community Corrections for as long as they deem necessary.

**********

Amendments

24 June 2020 - Amended to correct typographical error in file number.

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