Citation: R v Zaied [2019] NSWDC 909
Court: District Court of New South Wales
Date: 26 July 2019
Judge: Norrish QC DCJ
Background
The offender, a foreign national, was sentenced following guilty pleas to two Commonwealth offences. The first was aiding and abetting the importation of a marketable quantity of cocaine (1.95 kilograms) into Australia between January and March 2018, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). The second was dealing with $10,330 in cash where it was reasonable to suspect the money was proceeds of crime, contrary to s 400.9(1A) of the Code.
The offender was part of an Australian/French syndicate that concealed cocaine primarily inside Pringles tubes and other food items posted from France to various Australian addresses in 14 separate consignments. His role involved tracking consignments in transit, passing consignee details to French syndicate members, directing Australian-based members on collecting the packages, and relaying payment receipts between syndicate participants using WhatsApp.
He was first arrested in March 2018 at Tullamarine Airport, where he was attempting to board a flight to Paris on a one-way ticket. He was found carrying $10,330 in undeclared cash. After a period of custody and release on bail, he was re-arrested on 11 July 2018 and remained in custody from that date.
Legal Issues
- What was the appropriate sentence for the drug importation offence, taking into account the offender's role, the quantity of cocaine, the degree of planning and premeditation, and his status as a foreign national acting on behalf of an overseas criminal organisation?
- How should the second offence (dealing with proceeds of crime) be treated in relation to the principal offending?
- What credit, if any, should the offender receive for his pleas of guilty?
- How should the sentence be structured, including the non-parole period and the treatment of time already spent in custody?
Decision
The District Court identified the offender's conduct as involving significant planning and premeditation. He played a coordinating role between French-based syndicate members and Australian receivers, tracking 14 separate consignments over an extended period and communicating regularly through encrypted messaging. The Court noted that, while he was not the organiser of the enterprise, his role was more than peripheral.
The Court considered the offender's status as a foreign national recruited by a foreign criminal group as an aggravating factor, consistent with the approach taken in cases such as DPP(Cth) v De La Rosa and R v Xiao. The quantity of cocaine, 1.95 kilograms pure weight at the marketable quantity level, also informed the seriousness of the offending. The Court reviewed comparative sentences from relevant authorities to calibrate an appropriate term.
In relation to the proceeds of crime offence, the Court declined to impose a cumulative or partially cumulative sentence. It treated that offence as a consequence of the principal offending and structured the sentence accordingly, with the six-month term running concurrently from the same commencement date.
The Court gave the offender credit for his pleas of guilty and backdated the sentence to 8 June 2018, accounting for the earlier period of custody in March 2018. His Honour noted that defence counsel's estimate of a likely one-and-a-half to two-year extension of custody was, in the Court's assessment, overly optimistic given applicable sentencing patterns.
Orders Made
- For the drug importation offence (sequence 31): convicted and sentenced to imprisonment with a non-parole period of three years and ten months commencing 8 June 2018, expiring 7 April 2022, with a balance of term of two years and six months expiring 7 October 2024.
- For the proceeds of crime offence (sequence 32): convicted and sentenced to six months imprisonment commencing 8 June 2018, expiring 7 December 2018 (already expired at time of sentencing).
- Forfeiture order by consent under the Proceeds of Crime Act: the sum of $10,330 in seized currency forfeited to the Commonwealth.
(Note: The judgment contains an apparent typographical error, recording the expiry of the non-parole period as "7 April 2011" rather than 2022. The correct date, on the arithmetic of the sentence, is 7 April 2022.)
Key Takeaways
- The District Court confirmed that a foreign national recruited by an overseas criminal organisation to facilitate drug importation into Australia faces significant aggravation at sentence, in line with established Court of Criminal Appeal authority including De La Rosa and Xiao.
- A coordinating or intermediary role in a drug importation syndicate, even where the offender is not the principal organiser, can attract a substantial sentence where the conduct involves sustained planning, encrypted communications, and multiple consignments over an extended period.
- Where a proceeds of crime offence arises directly from the same criminal enterprise as the principal drug offence, a sentencing court may treat it as a consequence of that enterprise rather than imposing additional cumulative terms.
- Backdating a sentence to account for an earlier, separate period of remand custody is an available sentencing mechanism under Commonwealth sentencing provisions and was applied here to credit time spent in custody prior to formal arrest on the charges.
- Under s 16A(2) of the Crimes Act 1914 (Cth), Commonwealth sentencing requires precise identification of the offender's actual conduct, and agreed statements of facts play a central role in anchoring that analysis.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 11.2(1), 307.2(1), 400.9(1A)
- Crimes Act 1914 (Cth), s 16A(2) and Pt 1B
- Proceeds of Crime Act (Cth)
Cases
- DPP(Cth) v De La Rosa [2010] NSWCCA 194
- DPP(Cth) v Gow [2015] NSWCCA 208
- R v Engert (1995) 84 A Crim R 677
- R v Holland [2011] NSWCCA 65
- R v Nakhla [2011] NSWCCA 143
- R v Niketic [2002] NSWCCA 425
- R v Nikolovska [2010] NSWCCA 169
- R v Palu [2002] NSWCCA 381
- R v Qutami (2001) 127 A Crim R 369
- R v Xiao [2018] NSWCCA 4