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District Court 13 July 2011

R v Alen MORADIAN

[2011] NSWDC 130

DrugsFraud & dishonestyTraffic & driving
CRIMINAL KNOWINGLY DEAL IN THE PROCEEDS OF CRIME DRIVING MATTERS ASSISTANCE OPERATION SCHOALE

Citation: R v Alen MORADIAN [2011] NSWDC 130
Court: District Court of New South Wales
Date: 13 July 2011
Judge(s): Judge Haesler SC

Background

The offender pleaded guilty to two serious drug offences arising from Operation Schoale, a joint NSW Police and Crime Commission investigation into cocaine importation, supply, and related financial crime. The offences were importing more than a commercial quantity of cocaine into Australia (between October and December 2006) and supplying a large commercial quantity of that cocaine (between October 2006 and July 2007).

The importation involved the offender and a partner engaging a corrupt freight industry insider, referred to only as "Mr T," to facilitate the smuggling of a cocaine shipment concealed within a consignment of concrete-cutting saw blades. Mr T had previously assisted two other major importers, who were subsequently convicted and sentenced to sentences approaching thirty years. The offender and his partner paid Mr T approximately $1.5 million for his services and arranged a further $1 million to be sent to the United States as partial payment for the cocaine.

The offender also sought to have a number of additional matters dealt with on a Form 1 (a procedural mechanism that allows related offences to be taken into account at sentencing without separate conviction). These included knowingly dealing in proceeds of crime totalling over $1.6 million and nine driving-related offences.

Legal Issues

  • What quantity of pure cocaine was imported, given a factual dispute between the Crown and the defence?
  • What was the appropriate starting sentence, given the objective seriousness of the offending?
  • What reductions were warranted for the utilitarian value of the guilty pleas and the offender's assistance to authorities?
  • How should the sentences for the two principal offences be structured and accumulated?

Decision

Issue 1: Quantity of cocaine imported

The defence conceded that at least 40 kilograms of pure cocaine was imported but disputed the Crown's contention that the quantity exceeded 120 kilograms. The court found beyond reasonable doubt that well over 65 one-kilogram packets were imported, yielding more than 40 kilograms of pure cocaine, but accepted the defence position that the Crown had not established the higher figure of 120 kilograms or more. The court's finding took into account Mr T's evidence about multiple loads being carried into the premises, the significant sums expended on the importation, and ledgers found at the offender's home, without accepting the Crown's most expansive estimate.

Issue 2: Objective seriousness

The court characterised the offending as very serious. Both offences carry maximum penalties of life imprisonment and a standard non-parole period of 15 years. The court noted the planning involved, the large sums paid to facilitate the importation, the involvement of associates, and the broad reach of the operation as revealed by Operation Schoale. Before any discounts, the court assessed appropriate sentences of 13 years for supply and 22 years for importation, producing a total of 24 years.

Issue 3: Discounts for plea and assistance

The court applied reductions from those starting points to reflect the utilitarian value of the guilty pleas and the substantial assistance the offender provided to authorities. The judgment notes that modest adjustments were made to percentages and dates in the offender's favour, consistent with the sentencing court's view that sentencing should not be a strictly mathematical exercise.

Issue 4: Accumulation and total sentence

The court imposed separate sentences for supply (9 years) and importation (15 years and 4 months), accumulating the importation sentence by 1 year and 5 months. The non-parole period for the importation offence was adjusted to preserve the benefit of the plea and assistance reductions. The resulting total sentence was 16 years and 9 months, with a non-parole period of 10 years and 5 months.

Orders Made

  • Count 1 (Supply of large commercial quantity of cocaine): Convicted. Non-parole period of 6 years commencing 25 July 2007, expiring 24 July 2013. Parole period of 3 years, expiring 24 July 2016. Total sentence: 9 years.
  • Form 1 (driving offences): Minimum and automatic disqualification periods of 2 years apply to four "drive while disqualified" matters, dating from 25 July 2007.
  • Count 2 (Importing commercial quantity of border controlled drug): Convicted. Term of imprisonment of 15 years and 4 months commencing 25 December 2008. Non-parole period of 9 years expiring 24 December 2017, subject to s 19AL of the Crimes Act 1914 (Cth), with a parole period of 6 years and 4 months.
  • Total: 16 years and 9 months imprisonment, with a non-parole period of 10 years and 5 months. The offender is to be released to parole on 24 December 2017, subject to federal parole provisions.

Key Takeaways

  • Where a factual dispute arises at sentencing over drug quantity, the prosecution must prove the disputed quantity beyond reasonable doubt; the court here declined to adopt the Crown's highest estimate and made its own finding based on all available evidence.
  • Both the federal importation offence under the Criminal Code Act 1995 (Cth) and the state supply offence under the Drug Misuse and Trafficking Act 1985 (NSW) carry maximum penalties of life imprisonment, signalling the legislature's view of their extreme seriousness.
  • Reductions from a sentencing starting point for guilty pleas and assistance to authorities applied even in cases of very serious large-scale drug importation, and the court explicitly rejected a purely mathematical approach to calculating those reductions.
  • Accumulation of sentences was employed to reflect the distinct criminality of the importation and supply offences, while the non-parole period was calibrated to preserve the practical effect of discounts for plea and cooperation.
  • Associates of the offender who were convicted of related Operation Schoale offences received a range of sentences, providing a comparative context the court used in assessing the appropriate penalty for the offender's own significantly more serious role.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Code Act 1995 (Cth)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Road Transport (Drivers Licensing) Act 1998 (NSW)

Cases
- Nguyen and Pham [2010] NSWCCA 238
- De La Rosa [2010] NSWCCA 194
- Hili (2010) 85 ALJR 195