Citation: R v Jehad Jodeh [2020] NSWDC 18
Court: District Court of New South Wales
Date: 7 February 2020
Judge: DCJ Yehia SC
Background
The offender pleaded guilty to one count of conspiring to import a commercial quantity of a border controlled precursor, namely pseudoephedrine, between November 2016 and August 2017. The conspiracy involved several co-participants and was uncovered during AFP Operation Veyda, which used surveillance, telecommunications interception, and an undercover operative known as "Zane" to infiltrate a criminal network involved in smuggled tobacco, MDMA trafficking, and plans to import large quantities of illicit substances.
The offender's role in the pseudoephedrine conspiracy was principally that of a conduit. In the early stages, he relayed Blackberry messages between one co-conspirator (Dib) and another (Watsford), who in turn communicated with the undercover officer. The quantities discussed ranged from 600 kg to 2,500 kg of pseudoephedrine, far exceeding the 1.2 kg commercial quantity threshold. The offender voluntarily withdrew from the conspiracy in January 2017, several months before the conspiracy concluded.
At the time of his arrest in August 2017, the offender was on parole for earlier armed robbery offences. His parole was revoked solely because of the present offending. A second, schedular offence of dealing in money recklessly as to it being an instrument of crime was also taken into account on sentence.
Legal Issues
- How should the offender's voluntary and early withdrawal from the conspiracy affect the assessment of objective seriousness?
- What weight should be given to the "common sense" inference that the offender was financially motivated?
- What was the offender's role in the conspiracy, and how does a conduit role affect the sentencing assessment?
- How should the revocation of parole interact with the commencement date of the new sentence, and what does totality require in these circumstances?
- What discount applies for the early guilty plea, and what utilitarian value does it carry?
Decision
Objective seriousness and voluntary withdrawal: DCJ Yehia SC found that the offence remained objectively serious despite the offender's early and voluntary withdrawal from the conspiracy. The quantities discussed were vastly in excess of the commercial threshold, and pseudoephedrine is a precursor to methamphetamine, a drug with significant social harm. The voluntary withdrawal was nonetheless treated as a mitigating factor going to objective gravity, reducing the seriousness of the offender's personal involvement.
Financial motivation: The court drew a common sense inference that the offender was motivated by financial reward. No evidence displaced this inference, and the court treated financial motivation as an aggravating feature of the offending.
Role as conduit: The court accepted that the offender's role was secondary to that of the principal organisers. He acted primarily as a message relay between Dib and Watsford during the early phase of the conspiracy, and he was excluded from private discussions where the substantive arrangements were made. However, his participation still advanced the conspiracy, and the court declined to treat his role as so minor as to substantially diminish the overall seriousness of his conduct.
Totality and sentence structure: The court noted that the revocation of parole had been caused solely by the present offending, and that the offender had already been in custody since August 2017. Having regard to totality, DCJ Yehia SC directed a modest degree of accumulation rather than full concurrence or full accumulation. A starting sentence of 8 years imprisonment was reduced by 25% for the early guilty plea, producing a total term of 6 years, with a non-parole period of 3 years commencing 8 November 2017.
Orders Made
- The offender was convicted of the conspiracy offence, with the schedular money-dealing offence taken into account.
- A sentence of 6 years imprisonment was imposed, comprising a non-parole period of 3 years commencing 8 November 2017 and expiring 7 November 2020, with a balance of term of 3 years.
- The starting point before the 25% plea discount was 8 years imprisonment.
- The offender is eligible for release on parole at the expiration of the non-parole period.
Key Takeaways
- Voluntary and early withdrawal from a conspiracy can reduce the objective gravity of the offender's personal involvement, but does not transform the offence into a less serious category where the quantities and nature of the substance remain significantly above the threshold.
- A common sense inference of financial motivation is available where no evidence suggests an alternative explanation, and the court treated that inference as an aggravating factor without requiring direct proof.
- Acting as a conduit in a drug importation conspiracy is a recognised secondary role, but the court found it still meaningfully advanced the conspiracy and did not attract treatment as minimal or negligible participation.
- Where parole is revoked solely because of the offence being sentenced, a sentencing court retains discretion over the commencement date and may direct modest accumulation rather than full concurrence or full accumulation, informed by totality principles.
- An early guilty plea attracting a 25% discount will be recognised both for its utilitarian value and as reflecting the offender's willingness to facilitate the administration of justice, in line with the sentencing framework under the Crimes Act 1914 (Cth).
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 11.5(1), 307.11(1), 400.6(2)
- Crimes Act 1914 (Cth), s 16A; s 16BA (schedule offence procedure)
Cases:
- R v Pickett [2010] NSWCCA 273
- R v Burns [2007] NSWCCA 228
- R v Kaldor (2004) 150 A Crim R 271
- R v Lee [2007] NSWCCA 234
- R v Elomar; R v Hasan; R v Cheikho; R v Chiekho; R v Jamal [2010] NSWSC 10
- Wong v The Queen (2001) 207 CLR 584