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District Court 29 October 2019

R v Sara

[2019] NSWDC 841

Drugs
CRIMINAL LAW SENTENCE HEROIN ROLE OF OFFENDER MIDDLE MAN PARITY

Citation: R v Sara [2019] NSWDC 841
Court: District Court of New South Wales
Date: 29 October 2019
Judge: Judge W Hunt

Background

The offender pleaded guilty to one count of conspiracy to import a border-controlled drug, namely heroin in a commercial quantity, contrary to ss 11.5(1) and 307.1(1) of the Commonwealth Criminal Code. The conspiracy ran between August 2014 and January 2015 and involved multiple co-conspirators, including two men named Pirrello and Dagostino, as part of a broader police investigation called Operation Okesi targeting drug importation via ocean-going vessels.

The offender's role was that of an intermediary: he served as the Australian point of contact between an overseas syndicate and the local participants who were to transport the drugs from Fiji to Australia. Although the charged conspiracy spanned several months, the court was only satisfied beyond reasonable doubt of the offender's involvement for a period of approximately two calendar months, between 20 October and 23 December 2014.

Unbeknownst to the co-conspirators, a key contact known as "Aaron," who was to take delivery of the drugs in Fiji, was an undercover police operative. Much of the evidence against the offender derived from that operative's involvement, including intercepted Blackberry communications. The conspiracy ultimately concerned approximately 18 kilograms of pure heroin for sentencing purposes.

  • What was the appropriate objective gravity of the offence, given the offender's limited period of involvement and his role as a middleman rather than a principal organiser?
  • How should the court approach sentencing for a conspiracy offence as distinct from a substantive importation offence?
  • What weight should be given to the offender's subjective circumstances, including prior criminal history, mental health, remorse, and voluntary withdrawal from the conspiracy?
  • What parity considerations arose from the sentences imposed on co-conspirators, particularly Pirrello?
  • What discount applied for the guilty plea?

Decision

The court treated general deterrence and denunciation as the primary sentencing considerations, consistent with established authority on commercial drug importation offences. Judge Hunt applied the principles from R v Nguyen and R v Pham [2010] NSWCCA 238, which require a sentencing court to focus on the conspiratorial agreement itself, the overt acts taken in furtherance of it, and the particular offender's role within the broader scheme.

The court found the offender occupied a middleman position. He was not the organising mind of the conspiracy, but he was an important conduit who communicated with overseas participants, conveyed information about the drugs, and facilitated planning meetings. His active involvement was confined to about two months, and he voluntarily withdrew before any importation was completed. The offending was nonetheless serious: the quantity involved was substantial and the offender was aware of both the nature and the weight of the drugs.

On subjective matters, the court noted the offender had a prior relevant criminal record (distinguishing him from co-conspirator Pirrello), but also suffered significantly more serious mental health difficulties. The court accepted genuine remorse and found the offender would be a strong candidate for parole. A 25 per cent discount was applied for the guilty plea.

Turning to parity, the court undertook a careful comparison with Pirrello's sentence. Pirrello had been sentenced as a principal, was older, had no prior record, and had given evidence. The court found the competing differences broadly balanced out and arrived at a starting point sentence of ten years, reduced to seven and a half years after the plea discount.

Orders Made

  • The offender was convicted of conspiracy to import a border-controlled drug (heroin) in a commercial quantity.
  • Sentenced to seven and a half years imprisonment, commencing 27 December 2016 and expiring 26 June 2024.
  • Non-parole period of five years, with the earliest release to parole on 26 December 2021.

Key Takeaways

  • The District Court confirmed that sentencing for a conspiracy offence requires distinct consideration of the conspiratorial agreement itself, the overt acts in furtherance of it, and the individual offender's role, not simply a comparison with the equivalent substantive offence.
  • A middleman or intermediary role in a drug importation conspiracy does not of itself attract a lesser sentence; the court assessed the offender's knowledge, period of involvement, and contribution to the overall scheme as the relevant factors.
  • Where an offender's provable involvement spans only part of the charged conspiracy period, the court sentences on the period of actual involvement established beyond reasonable doubt, even where a broader conspiracy is admitted by the guilty plea.
  • Voluntary withdrawal from a conspiracy before completion is a relevant mitigating factor, but general deterrence and denunciation remain primary considerations in commercial drug importation matters and will often outweigh subjective circumstances.
  • Parity with co-offenders requires close attention to differences in role, criminal history, mental health, and the particular basis of sentence, rather than a mechanical comparison of head sentences.

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code, ss 11.5(1) and 307.1(1)
- Crimes Act 1914 (Cth), ss 16A(1), 16A(2)(a), 17A (Part 1B)

Cases
- R v Nguyen and R v Pham [2010] NSWCCA 238
- DPP v Fabriczy [2010] VSCA 334
- R (Commonwealth) v De La Rosa (2010) 205 A Crim R 1
- R v Irusta (2000) 117 A Crim R 6
- R v Pham, Tran & Dang; ex parte DPP (Commonwealth) [2017] QCA 46
- R v Richards [2001] NSWCCA 160
- R v Taouk (1998) 65 A Crim R 387
- Wong v R (2001) 207 CLR 584
- Xiao v R [2018] NSWCCA 4
- Tyler v R [2007] NSWCCA 247