Citation: R (Cth) v D'Agostino [2021] NSWSC 291
Court: Supreme Court of New South Wales
Date: 26 March 2021
Judge: Wilson J
Background
The offender faced sentencing on three separate conspiracies to import a commercial quantity of a border controlled drug, each an offence under ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth) and each carrying a maximum penalty of life imprisonment. The three conspiracies were referred to by the names of their intended routes or vessels: the Fiji Conspiracy, the Eclipse Conspiracy, and the Saxon Progress Conspiracy. All three involved planned importations of substantial quantities of heroin into Australia.
The offender pleaded guilty to the Fiji Conspiracy and was convicted by jury on the remaining two counts. The factual basis for all three offences was determined by reference to the evidence led at trial, which included agreed statements of fact, recorded conversations, and evidence from an undercover police operative.
The origins of the offending lay in the offender's financial difficulties from around 2013. He drew on contacts in the deep-sea fishing industry, accessed through a co-offender known in the proceedings as Person A, and on his own knowledge of and contacts within the illegal drug trade. The offender initiated the conspiracies, brought together the key participants, and coordinated logistics including communications security and overseas supply.
Legal Issues
- What factual findings should be made about the offender's role and seniority within each conspiracy, given substantial disagreement between the offender and the Crown?
- How should the offender be characterised for sentencing purposes: as an initiator and principal, or in a lesser role?
- What individual and aggregate sentences were appropriate given the objective seriousness of the offences, the offender's role, and relevant personal circumstances?
- How should the principle of totality apply to produce a just aggregate sentence, including having regard to a concurrently running State sentence?
- What parity considerations arose from the sentences imposed on co-offenders, including Person A and Person C?
Decision
Wilson J found that the factual dispute between the Crown and the offender about his role was substantial, with little agreement between the parties on any aspect of the conspiracies. On the evidence, including recorded conversations and undercover operative accounts, the court found the offender was an initiator and principal in relation to counts 1 and 2, and an initiator and important facilitator in relation to count 3. He brought the co-conspirators together, organised logistics, directed communications security measures, and was central to the planning of each importation.
The court assessed the objective seriousness of the offending as very high. Each conspiracy involved commercial quantities of heroin and sophisticated planning. The offender's financial motivation, his senior role, and his drawing on prior drug offending knowledge were all relevant factors. The court noted that the offender was on conditional liberty with respect to unrelated State drug matters at the time, which pointed toward some accumulation of penalty against those proceedings.
Applying the totality principle, the court structured the aggregate sentence to provide a significant degree of concurrence with the running State sentence. Had individual sentences been imposed, they would have totalled considerably more than 30 years. The aggregate sentence commenced on 8 September 2018, being two years after the offender's arrest on the State matters, to reflect appropriate but not excessive concurrence.
Parity with co-offenders Person A and Person C, sentenced in related proceedings, was also considered. The court was satisfied the sentence imposed was consistent with those outcomes given the relative seniority and roles of the respective offenders.
Orders Made
- The offender was convicted of counts 1, 2, and 3 of the indictment.
- He was sentenced to an aggregate term of imprisonment of 30 years, commencing 8 September 2018 and expiring 7 September 2048.
- A non-parole period of 20 years was set, expiring 7 September 2038.
Key Takeaways
- An offender who initiates conspiracies, recruits co-conspirators, organises logistics, and directs communications security will be sentenced as a principal, not merely as a participant, even where the financial resources are largely supplied by others.
- Where an offender is on conditional liberty with respect to separate offending at the time of the subject offences, some accumulation of sentences against those proceedings is appropriate, notwithstanding the operation of the totality principle.
- The totality principle can produce a significant reduction in the aggregate sentence compared with the sum of individual sentences, but does not override the need for a sentence that reflects the overall criminality.
- Substantial factual disputes at sentencing, in the absence of a special hearing, are resolved on the evidence adduced at trial, including agreed facts, recorded conversations, and undercover operative testimony.
- Parity with co-offenders sentenced in related proceedings is a relevant consideration, and disparities in outcome should be explicable by reference to differences in role, seniority, and individual circumstances.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 11.5(1) and 307.1(1)
- Crimes Act 1914 (Cth), s 16A
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)
Cases:
- D'Agostino v R [2019] NSWCCA 259
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1
- Imbornone v R [2017] NSWCCA 144
- R (Cth) v Person A; R (Cth) v Person C [2018] NSWSC 1953
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- R v Robert Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 115 A Crim R 104
- Xiao v R [2018] NSWCCA 4; (2018) 329 FLR 1