R (Cth) v [Person A]; R (Cth) v [Person C]; R (Cth) v John Tobin

1. [1]

   HER HONOUR: Person A, Person C, and John Tobin each pleaded guilty in the Local Court to a number of charges of conspiracy to import a commercial quantity of a border controlled drug, contrary to ss 11.5(1) and 307.1(1) of the Commonwealth Criminal Code. That is an offence which carries a maximum penalty upon conviction of imprisonment for life, or a fine fixed at 7500 penalty units, or both.

2. [2]

   Person A pleaded guilty to three such charges, being:

   1. (1)

      A conspiracy to import a commercial quantity of heroin and cocaine between about 14 August 2014 and 31 May 2015 (sequence 7);

   2. (2)

      A conspiracy to import a commercial quantity of cocaine between about 1 September 2015 and 25 December 2016 (sequence 8); and

   3. (3)

      A conspiracy to import a commercial quantity of cocaine between about 1 May 2016 and 5 November 2016 (sequence 2).

3. [3]

   These offences encompass what have come to be known as the Fijiian Conspiracy, the Eclipse Conspiracy, the Saxon Progress Conspiracy, and the First and Second Dalrymple Conspiracies.

4. [4]

   Person C entered pleas of guilty to two counts of conspiracy to import a commercial quantity of cocaine contrary to the Criminal Code, and one count of supplying a large commercial quantity of a prohibited drug, being cocaine. The latter offence is a contravention of s 25(2) of the Drugs (Misuse and Trafficking) Act 1986 (NSW) and carries a maximum sentence upon conviction of imprisonment for life, a fine fixed at 5000 penalty units, or both. A standard non-parole period of 15 years imprisonment is specified by the NSW Crimes (Sentencing Procedure) Act 1999.

5. [5]

   The three charges relate to:

   1. (1)

      A conspiracy to import a commercial quantity of cocaine between about 1 September 2015 and 25 December 2016 (sequence 10);

   2. (2)

      A conspiracy to import a commercial quantity of cocaine between about 1 May 2016 and 5 November 2016 (sequence 2); and

   3. (3)

      An agreement to supply a large commercial quantity of cocaine between about 1 September 2015 and 25 December 2016 (sequence 4).

6. [6]

   The charges encompass the Saxon Progress Conspiracy and the First and Second Dalrymple Conspiracies. The agreement to supply relates to some of the anticipated product of the conspiracies.

7. [7]

   Person C has also admitted his guilt in relation to a further five offences, and asked the Court to take those offences into account when he is sentenced for the State offence of supply, pursuant to s 33 of the Crimes (Sentencing Procedure) Act. Those offences are all contrary to the State Drug (Misuse and Trafficking) Act, being three offences of possessing a precursor intended for use in the manufacture of a prohibited drug, contrary to s 24A(1)(a); possessing drug manufacturing apparatus, contrary to s 24A(1)(b); and possessing parts of a mechanical pill press, contrary to s 11B.

8. [8]

   Mr Tobin entered pleas of guilty to two offences, being:

   1. (1)

      A conspiracy to import a commercial quantity of cocaine between about 1 September 2015 and 25 December 2016 (sequence 4); and

   2. (2)

      A conspiracy to import a commercial quantity of cocaine between about 1 May 2016 and 5 November 2016 (sequence 2).

9. [9]

   These conspiracies encompass the Saxon Progress Conspiracy, and the First and Second Dalrymple Conspiracies.

10. [10]

    Thus, Person A alone is to be sentenced with respect to his role in the Fijiian and Eclipse conspiracies. Only Person C is to be sentenced for the supply offence. All three offenders are to be sentenced for their respective roles in the Saxon Progress and First and Second Dalrymple conspiracies. The principle of parity applies to that extent.

11. [11]

    The offenders were arrested on 25 December 2016 and each has been in custody since that date. They were charged as a consequence of a long running police investigation, designated Operation Okesi. The investigation involved extensive electronic and physical surveillance by police of the offenders and their encrypted communications, and the deployment of at least one undercover operative, over a period of more than 30 months. The investigation targeted the offenders and others who were engaged together in the planning and execution of a number of proposals to bring large amounts of border controlled drugs into Australia.

12. [12]

    The facts of the crimes are set out in Ex. A.4, a lengthy statement with which each offender agrees. The following account of the facts is drawn from that document. It does not purport to refer to every detail of the offences, but is intended as a reasonably comprehensive summary of it.

Facts of the Offences

1. [13]

   This offence, charged against Person A alone, encompasses the Fiji and Eclipse Conspiracies. The Fiji conspiracy occurred between about 14 August 2014 and 13 January 2015, and involved Person A, [REDACTED] Joseph D’Agostino and Frank D’Agostino, and two other [REDACTED] men, Benjamin Sara and Jose Garcia. The events related to the Eclipse Conspiracy commenced at the end of the Fiji conspiracy and continued for a number of months, between about 13 January 2015 and 31 May 2015. Other than Person A, Joseph D’Agostino and Frank D’Agostino were again involved, together [REDACTED] Michael Pirrello and Francesco Pirrello.

2. [14]

   Person A became involved in the Fiji conspiracy when he was approached by [REDACTED] Joseph D’Agostino about a quantity of drugs that were arriving into Fiji and which would become available for importation into Australia. D’Agostino discussed with the offender Person A using his experience in the commercial fishing industry to arrange for the drugs to be collected in Fiji and brought back to Australia on an ocean-going vessel.

3. [15]

   Person A met with both Joseph D’Agostino Frank D’Agostino on 14 August 2014 in Double Bay, where they discussed the need for caution in using mobile phones so as to avoid police surveillance, the possible use of floats on the side of a boat as a general method to conceal drugs once they had been collected (an idea later abandoned), fuel costs and crew wages, the possible quantity of drugs; and their respective share from the importation, being 20 per cent of the value of the importation shared between them. The offender queried whether the 20 per cent was based on the wholesale value or the street value of the drug, and they discussed how to ensure that they received payment.

4. [16]

   The Australian point of contact for the drugs in Fiji was Mr Sara. He and Mr Garcia joined the meeting, and there was further discussion.

5. [17]

   Later, the offender gave Frank D’Agostino a float for him to give to Mr Garcia to see if it would be suitable for concealing the drugs.

6. [18]

   At some point Mr Sara confirmed that the drug to be imported was heroin in an amount of 28kg. Mr Garcia advised Joseph D’Agostino and Person A about the importation, as well as indicating that he could use Person A for a larger importation in the future.

7. [19]

   Person A arranged for a man known as Person B to liaise with Benjamin Sara and travel to Fiji to collect the drugs. Unfortunately for the conspirators, Person B was an undercover police operative.

8. [20]

   On 15 and 19 September 2014, the offender Person A met with Person B to discuss the plan for Person B to go to Fiji and bring the drugs back by boat. The offender provided updates to Person B as to the plan, including that it would be a trial of a smaller amount of drugs in preparation for a bigger importation; that a vessel was to be chartered near Fiji to collect the drugs under cover of doing scientific research; possible quantities, types, and sources for the drugs; and likely timing. The offender discussed methods of transferring the drugs at sea and bringing them back to shore, mooting the possibility of using Michael Pirrello and Francesco Pirrello who had a boat that they could use. The need to avoid the use of mobile phones to defeat surveillance was referred to. Arrangements for payment were also discussed, with the payment to be 10% of the value of the drug, to be shared equally by the offender Person A with Person B.

9. [21]

   The offender Person A met with Garcia on 19 September 2014 and with Joseph D’Agostino and Benjamin Sara on 20 October 2014 to discuss the importation. After Mr Sara left, Joseph D’Agostino confirmed with Person A that the importation from Fiji was a trial which, if successful, would allow for a bigger importation on the next occasion. They were to meet with Garcia to provide an update in the next few days. Person A confirmed that he wanted Person B to be on the vessel that brought the drugs back from Fiji.

10. [22]

    On 21 October 2014, there was a further meeting between Person A and Person B, with the offender providing an update on the planning, based on discussions he had had with Joseph D’Agostino, Garcia and Sara, including:

11. [23]

    Person A made enquiries with a boat broker about obtaining a vessel from Fiji that could do survey work in international waters. He later confirmed with the broker that a charter of the vessel ‘The Northern Odyssey’, a Fiji based research vessel, would cost $3,500 per day. This vessel was to be used to bring the drugs back to Australia.

12. [24]

    On 22 October 2014, the offender Person A met with Joseph D’Agostino at a café in Sydney. The offender Person A was to talk to Person B about going to Fiji to check the product and bring it back. Person A referred to his concern that he would spend the rest of his life in gaol if caught.

13. [25]

    After a short time, Garcia joined them at the café. He said the drugs would be ready to leave Fiji in mid-November 2014 at the earliest, a date Person A said he could be ready for. The men discussed the charter, the transfer of drugs, the quantity of drugs, Person A sending someone to Fiji to check the drugs, and bringing them back in aluminium scientific suitcases. The offender was said to be the only person needing to know how it would be done. Garcia confirmed he would get the contacts in Fiji ready.

14. [26]

    Later that day, Person A again spoke with the boat broker to confirm the availability of “The Northern Odyssey” for charter in the last two weeks of November 2014. He told the broker that he would send someone over to become familiar with the boat and the crew and that he was looking to use it every 3-4 months. The offender then met Person B and confirmed that the Fiji importation was proceeding. He said he would organise a meeting with his mate who would watch it all (this being a reference to Mr Garcia). They then discussed the charter arrangements, an equal split in their payment, and a bigger importation that was going to be from near Japan.

15. [27]

    Between 4 November 2014 and 3 December 2014, the offender and others continued with the organisation of the Fiji importation. Person A met with and called Person B on five occasions to provide updates on the planning. On these occasions they discussed,

    1. (1)

       the timing for Person B to travel to Fiji, and obtaining two Blackberry mobile phones for him;

    2. (2)

       the need for the container ship delivering the drugs to get past Customs in Fiji;

    3. (3)

       although Person A had not raised it with them, the possibility of Michael Pirrello and Francesco Pirrello being available with fishing boats to bring the drugs to shore if they arrived via the charter vessel;

    4. (4)

       the quantity of the drugs, being 100kg in total; and

    5. (5)

       a likely payment of between $800,000 and $1 million once the drugs came ashore.

16. [28]

    There was discussion of the prospect of buying a boat if the importation was successful and using it for further importations.

17. [29]

    In this period, the offender Person A continued to negotiate for the charter of the “Northern Odyssey” with the boat broker and he met with Joseph D’Agostino to discuss Person A flying to Fiji, the arrival of the drugs, the charter arrangements, and expenses.

18. [30]

    On about 4 December 2014, Garcia warned the offender Person A that the Fiji importation was too great a risk for the amount of money, in circumstances where Garcia’s group wanted to use Person A for a separate drug importation involving a ton.

19. [31]

    Person A conveyed Garcia’s warning to Person A, but said he would continue to help Person A with the charter boat arrangements for the Fiji Importation. He did not want Garcia to know he was still involved as, if the next importation succeeded, they would each receive $5 million. Joseph D’Agostino joined the meeting and was introduced by Person A to Person B. The men discussed Person B going to Fiji to check the product, when the container with the drugs would be released from Customs in Fiji, using Blackberry devices to communicate, and Garcia wanting to save Person A for another importation because he was a “cleanskin”.

20. [32]

    On 8 December 2014, the offender Person A met with Person B during which Person A informed him of an earlier meeting he had had with Joseph D’Agostino and others. They discussed Person A arranging the charter of the vessel but he said he didn’t want to be too involved because of what he had told Garcia about not participating. Person A asked about money for expenses and the offender gave him $3,000 in cash, to cover the cost of a Blackberry to be obtained from Joseph D’Agostino and Benjamin Sara.

21. [33]

    Final plans for the Fiji importation occurred between 8 and 13 December 2014. Person A had a further meeting with Joseph D’Agostino and Benjamin Sara, and also communicated via Blackberry with Sara about the importation and Sara’s contacts in Fiji.

22. [34]

    Person A called an agent for the “Northern Odyssey” to obtain contact details of the person in Fiji responsible for chartering it, made arrangements directly with that person, passed on the contact details to Person A, and provided an update to [REDACTED] Joseph D’Agostino.

23. [35]

    Person A travelled to Fiji as previously arranged and met the person responsible for the drugs, Ethan Kai. They thereafter used Blackberry devices to communicate about the importation. Kai told Person B that he had a person in Fijian Customs who would take delivery of the container when it arrived.

24. [36]

    The offender Person A confirmed with Person A that the local agent for the “Northern Odyssey” was expecting Person A to be in contact in Fiji. Person A attended the “Northern Odyssey”, inspected the vessel and met its crew. He spoke with Person A by phone in which they discussed the “Northern Odyssey” taking at least 10 days to travel from Fiji to the coordinates in waters off Australia where the drugs would be transferred to another vessel.

25. [37]

    On 19 December 2014, Kai told Person A via Blackberry that there may be an issue with the container holding the drugs and that he should return home. On 20 December 2014, Kai’s contact in Fijian Customs was arrested before he could take delivery of a container containing quad bikes and spare parts. Fijian authorities searched the container and found approximately 30kg of heroin concealed within the tyres of one of the quad bikes.

26. [38]

    The seizure by Fijian authorities consisted of 80 blocks of compressed powder weighing 28.15kg, comprising heroin of between 57.3% and 67% purity, yielding a total pure weight of 18.73kg of heroin. In 2014-2015 in NSW, the median wholesale value of 28.15kg of cocaine was approximately $7.6 million and the median street value was approximately $21.1 million.

27. [39]

    Between 20 December 2014 and 13 January 2015, there were Blackberry communications between some of the conspirators and Person A about the loss of the shipment. Person A met separately with Joseph D’Agostino and Person A to discuss the failed importation. He told Person A that he had heard that the importation was disrupted within Fijian Customs, and he had promised Garcia that he would cut ties with Joseph D’Agostino. Garcia’s next deal would involve a small freighter leaving in around February.

28. [40]

    Undeterred by the failure of the Fijian importation, Person A told Person A that he wanted to buy a boat and use it for the next importation involving Garcia’s contacts, but would prefer to collect the drugs in international waters to limit the risk of detection.

29. [41]

    The Eclipse Conspiracy was hatched at this time, with relevant events occurring between about 13 January 2015 and 31 May 2015. The conspirators were Person A, [REDACTED] Joseph and Frank D’Agostino and [REDACTED] Michael and Francesco Pirrello. Mr Garcia had decided not to use Person A after the Fijian failure and was not involved.

30. [42]

    As already noted, during the course of the Fijian conspiracy there had been occasional conversations between Person A and Mr Garcia about a future, larger, importation. On 21 October 2014, in a meeting with Person A to plan the Fijian importation, Person A spoke about another importation that Joseph D’Agostino had mentioned, of about 600kg of cocaine coming from Colombia on board a submarine, with the payment being about 20% of the value of the cargo, or $12 million, to share between the Australian participants.

31. [43]

    Person A was to arrange the collection at sea, and a satellite phone was to be used to contact the Colombian vessel.

32. [44]

    The offender Person A asked [REDACTED] Francesco Pirrello, a commercial fisherman, if he was interested in a job collecting drugs from Australian waters using his fishing vessel, the “Kaybeanna”. Francesco spoke to his brother and business partner Michael, and later confirmed that they were interested. He suggested a faster boat, such as one used by a friend of the brothers, the “Eclipse”.

33. [45]

    Between 13 January 2015 and 22 April 2015, Person A met with Joseph D’Agostino to plan the Eclipse Conspiracy.

34. [46]

    Joseph D’Agostino gave dates for the arrival of the Colombian submarine in mid-April 2015, and confirmed that the cargo would be 400kg of cocaine, packed in kilogram blocks, double wrapped in plastic to make them waterproof. Person A suggested possible co-ordinates off Sydney where their boat could meet the Colombian vessel, including a location about 200 miles off shore, in international waters, thus limiting the risk of surveillance by Australian authorities. They discussed the arrangements for the boat to collect the drugs and the need for a satellite phone to communicate with the submarine.

35. [47]

    Person A made inquiries of a satellite phone retailer, asking about a device that would operate around Lord Howe Island and could be moved between boats. He told the D’Agostino brothers that he would buy the phone.

36. [48]

    He also met with and spoke to Michael Pirrello and Francesco Pirrello, following which they confirmed their agreement to be involved in the importation. He and [REDACTED] Francesco discussed which boat to use and it was agreed that the “Eclipse” was preferable because it was fast and did not need additional crew. They also discussed the use of a satellite phone to contact the Colombian vessel.

37. [49]

    Person A was again involved, with the offender Person A meeting with him on 13 separate occasions in this period to discuss the planning for the importation. The planning discussions included obtaining appropriate containers in which to store the drugs; using satellite telephones to communicate, buying another phone as necessary; how to transfer the drugs from the Colombian vessel and the role of Michael Pirrello and Francesco Pirrello; and the timing of the meeting with the Colombian vessel, with a likely departure date for it of about 27 or 28 April 2015. At one point the offender told Person A that he had been asked to store the drugs once onshore, but had refused.

38. [50]

    Various options were canvassed to avoid detection. Person A suggested a cover of a fishing trip and having fish on board; allowing [REDACTED] the “Kaybeanna” to be tracked as usual by the Australian Fisheries Management Authority (“the Fisheries Authority”) so that it would look like a normal trip; sending the boat’s usual crew on a course as an excuse for them to be off the boat; using another boat that was not tracked to collect the drugs from the Colombian vessel; transferring the drugs to the “Kaybeanna” at sea; handling the drugs under a large covered deck on the ”Kaybeanna”, where the handover would take place; being careful in the use of phones; only using Michael Pirrello and Francesco Pirrello and no other crew; and collecting the drugs at night.

39. [51]

    The anticipated payment was a total share of $3 million which would equate to $1 million for the offender Person A, $1 million for Person A and $1 million for Michael Pirrello and Francesco Pirrello, with a separate share for Joseph D’Agostino. Person A wanted to be paid in product as he did not want to wait for cash.

40. [52]

    On 25 April 2015, after acquiring a satellite phone for about $3,500, the offender Person A met with the D’Agostino brothers at a hotel in Haymarket. From there he telephoned [REDACTED] Francesco to confirm that the importation was proceeding. In this period, Joseph D’Agostino also provided Person A with the satellite phone number for the Colombian vessel.

41. [53]

    Between 25 April 2015 and 10 May 2015, the offender Person A used the satellite phone he had purchased to contact the Colombian vessel, including 37 unsuccessful attempts; and a successful call on 27 April 2015, during which Person A, referring to himself as “Bill”, spoke to an unidentified male about the co-ordinates for the rendezvous and their transmission, and the arrival of the vessel within 17 to 25 days.

42. [54]

    There was a further successful call on 5 May 2015 in which co-ordinates and arrival dates were again discussed.

43. [55]

    Separately, Person A continued to take steps to arrange the collection of the drugs and provide updates on his communications with the Colombian vessel to other participants, including in meetings with Michael Pirrello and Francesco Pirrello, Joseph D’Agostino, and Person A. Person A also met the owner of the “Eclipse” to arrange to use the boat for a purported fishing survey.

44. [56]

    On 21 May 2015, Person A met [REDACTED] Francesco in Ulladulla to discuss the importation. He confirmed that the quantity of drugs was 400kg, and that containers would be used to transfer the drugs from the Colombian vessel and store them on the “Eclipse”. The arrangement was for Michael Pirrello, possessed of a satellite phone with which to contact the Colombian vessel, to also be at sea on the “Kaybeanna” to help in case of bad weather. The meeting point would be outside the 200 nautical mile national economic zone, and the operation would take a day and a half.

45. [57]

    On 25 May 2015, the offender Person A called [REDACTED] Michael about the timing of the importation. He then purchased a number of plastic 60 litre drums, with round screw lids, and spoke to the owner of the “Eclipse” about loading them onto the vessel, purportedly to store water samples from the survey.

46. [58]

    On 26 May 2015, Person A met with Joseph D’Agostino and discussed the timing of the arrival of the Columbian vessel. On 27 May 2015, the offender called [REDACTED] Francesco to confirm that they would depart from Sydney in the following few days and to have the “Eclipse” available. Separately, the offender had decided to exclude Person A from the importation, so he told him the importation had been delayed by a few weeks due to mechanical issues on the Colombian ship.

47. [59]

    On 28 May 2015, the offender Person A inspected the “Eclipse” and later met Michael Pirrello and Francesco Pirrello on board the “Kaybeanna” at the Sydney Fish Market. He telephoned [REDACTED] Joseph D’Agostino to ask if he had an update from the Colombian vessel, and made two unsuccessful attempts to contact it using the satellite phone. In the afternoon, he met both Joseph D’Agostino and Frank D’Agostino at a café in Pyrmont, and the satellite phone was used to call the Colombian ship, with the call diverting to voicemail.

48. [60]

    Person A next confirmed with his nephews Michael Pirrello and Francesco Pirrello that the “Eclipse” would depart the following day. It was agreed that the offender Person A and [REDACTED] Michael would be on the “Eclipse” to try to locate the Colombian vessel and collect the drugs, with Francesco Pirrello on the “Kaybeanna” to assist in transporting the drugs back to shore, or in case of trouble. The offender Person A made a number of further attempts to contact the Colombian vessel using the satellite phone prior to departure, without success.

49. [61]

    Francesco Pirrello took the “Kaybeanna” with three crew members out to sea that evening to fish, but it was ready to assist the “Eclipse” as required.

50. [62]

    On the morning of 29 May 2015, the offender Person A met with [REDACTED] Joseph D’Agostino at a café in Pyrmont where they spoke about a number of matters connected with the “Eclipse” importation: bringing the drugs back to the Sydney Fish Market, covering the drugs with fish so that it looked normal; needing a ute to transport the drugs once they arrived; getting around security at the Sydney Fish Market, using a cover-story about the “Kaybeanna” also being at sea but having a mechanical issue necessitating its return; and making sure that Person A did not know what was going on. The offender and [REDACTED] Michael then made further arrangements for their departure, including loading the plastic drums onto the deck of the “Eclipse”.

51. [63]

    That evening, the offender and Michael Pirrello departed from the Sydney Fish Market on board the “Eclipse” and travelled about 230 nautical miles off the coast. Francesco Pirrello was fishing on the “Kaybeanna” about 120 nautical miles away, and they made contact with each other at least twice during the voyage.

52. [64]

    On 31 May 2015, after waiting at the agreed rendezvous point and being unable to make contact with the Colombian vessel, the offender Person A and Michael Pirrello returned to Sydney. The offender then used a mobile phone registered in a false name to try to contact [REDACTED] Joseph, without success.

53. [65]

    The “Kaybeanna” also returned to Sydney.

54. [66]

    On 1 June 2015, the offender made contact with Joseph D’Agostino and asked him to find out what had gone wrong. There was a further discussion at a meeting between the offender and the D’Agostino brothers on 6 June 2015. It was not known what happened to the Colombian vessel.

55. [67]

    The next two charged offences, brought in common against all of the three offenders before the Court, encompass three conspiracies, being the Saxon Progress conspiracy and the First and Second Dalrymple conspiracies. There is a degree of temporal overlap in the charges as particularised.

56. [68]

    The Saxon Progress conspiracy commenced around 1 September 2015, a few months after the failure of the object of the Eclipse conspiracy, and continued until 31 March 2016. The First Dalrymple conspiracy followed, with relevant events occurring between about 1 May 2016 and 5 November 2016. The Second Dalrymple conspiracy, which forms part of a charge taken together with the Saxon Progress conspiracy, commenced on 1 April 2016 after both the Saxon Progress and the First Dalrymple conspiracies had failed to meet their objects, ending in the arrest of the conspirators on Christmas Day 2016.

57. [69]

    In an attempt to keep some comprehensible sequence relevant to the charges as particularised, I will turn now to the First Dalrymple conspiracy, even though, chronologically, it followed the Saxon Progress events.

58. [70]

    The events concerning the First Dalrymple Conspiracy occurred between about 1 May 2016 and 5 November 2016, and involved each of the three offenders, together with [REDACTED] Peter Spero, and two other men, Darren Mohr and Graeme Toa Toa.

59. [71]

    After the Saxon Progress conspiracy concluded without achieving its object Person A continued in discussions with Person C, who had been involved in the Saxon Progress events, about an importation involving another man who participated in the proposed Saxon Progress import, Jonathon Cooper.

60. [72]

    Separately, Joseph D’Agostino was in discussion with Person A using Blackberry devices about other importations, including the possibility of an importation from Thailand, where the supplier would be a source known as “Gutterball”. Frank D’Agostino introduced Person A to Darren Mohr, who acted for Gutterball in Australia. Person A subsequently met Darren Mohr on a number of occasions, later communicating via Blackberry with him and Gutterball to plan the further importation, for 500kg of cocaine.

61. [73]

    Steps in furtherance of the first Dalrymple conspiracy began on 2 May 2016, when Frank D’Agostino introduced the offender Person A to Darren Mohr at a park in Double Bay for an initial discussion about importing drugs on behalf of a Thailand based individual known as “Gutterball”. Person A and Person C had previously arranged that Person C would be in the area of the meeting with Darren Mohr, to check whether he knew Mohr. Person C did not recognise him, and did not join the meeting.

62. [74]

    A few days later, Gutterball contacted Person A directly via Blackberry to further plan the importation.

63. [75]

    Other steps were taken to advance the importation plans between 18 May 2016 and 31 August 2016. In that period, Darren Mohr flew to Thailand, returning on 25 June 2016 after about five weeks away. Person A continued to communicate with Gutterball via Blackberry about the importation, and met Darren Mohr when he returned from Thailand.

64. [76]

    At that meeting, the offender Mr Tobin was initially present, as the representative of the D’Agostino brothers, but Mohr asked him to leave. Darren Mohr did not want Joseph D’Agostino or anyone acting for him to be involved.

65. [77]

    In this mid-May to end-August 2016 period, the offenders Person A and Person C met on at least 9 occasions, to discuss the planning for the importation, including communications. Person A was able to pass on to, and discuss with, Person C information he had received from Gutterball and Darren Mohr on a number of aspects of the plan.

66. [78]

    The discussions included a proposal that the shipment from Thailand would arrive on a cargo ship in about October 2016, with Gutterball sending someone to the place of origin of the drugs to confirm the logistics; with consideration given to the location of the off-shore rendezvous, possibly around New Caledonia, New Zealand or Vanuatu.

67. [79]

    It was noted that the transfer of the drugs needed to occur on the cargo ship’s regular route as it slowed, but did not stop, as stopping could arouse suspicion, with a suitable boat to collect the drugs from the cargo ship. Blackberry devices were to be used for communications.

68. [80]

    As to payment, which Darren Mohr had said would be in cash, the drugs having been pre-sold, Person A confirmed that he had told Mohr they would keep a portion until paid. There were also discussions as to compensation for previous failed imports.

69. [81]

    Both Person A and Person C made internet searches to find suitable boats for use on an ongoing basis. They discussed the possibility of purchasing a boat from the United States to avoid the scrutiny of the Fisheries Authority.

70. [82]

    After flying to Chile on 24 August 2016 to inspect the drugs, Darren Mohr returned to Sydney on 31 August 2016, and met Person A. The meeting occurred on 1 September 2016, in a park in Double Bay. Mohr explained the arrangements he had observed in Chile, including his discussions with the captain of the Chilean vessel, the ship being a cargo vessel that travelled a regular Pacific route; the participation of Chilean authorities who would see the ship departed Chile without incident; and arrangements for the packaging of the drugs in one kilogram “bricks”, wrapped in 40kg bags. The men arranged that, when the product was delivered to shore by Person A, it was to be collected from him. Person A would receive payment 30 days after delivery.

71. [83]

    Separately, Person A liaised with Gutterball, providing him with his satellite phone number and learning that the drug to be imported was cocaine in a quantity of about 500kg. The rendezvous with the Chilean vessel was set for October.

72. [84]

    On 2 September 2016, Person A provided an update to Person C as to what he had learned from Mohr and Gutterball about the importation. They also discussed using the “Saxon Progress” again given the imminent arrival of the international ship; and offering the owner of the “Saxon Progress” $1.5 million to use the boat for this and a planned subsequent importation for Jonathon Cooper. Communication with the vessel via satellite phone was discussed. The offenders considered the use of Peter Spero as their representative on the transfer boat, as he was trustworthy and had experience with boats and satellite and radio communications; and paying him a couple of hundred thousand dollars for his involvement.

73. [85]

    Given the time constraints, Person A and Person C deferred plans to purchase a boat from the United States, and again sought to charter the “Saxon Progress”. On 7 September 2016, Person A met representatives of the ship, offering them $1.5 million for a charter over a four month period, giving the purpose of the charter as the collection of a package at sea. The offer was declined.

74. [86]

    The following day Person A spoke with Stuart Ayrton, a boat broker, about purchasing the “Dalrymple”, a fishing boat moored in South Australia, for $275,000. He then contacted a man known to him through his fishing work, Murray Wright, to ask him to captain the “Dalrymple” on a voyage to Fiji. Mr Wright was to assemble a crew; the offender Person A planned to also place his representative on board. Person A arranged for a boat surveyor to inspect the “Dalrymple”, and engaged Mr Wright to make the vessel sea-worthy and bring it from Port Lincoln to Sydney. He took all necessary steps in the following days to finalise the purchase, and arrange for repairs and other work to it, including the installation of a satellite phone with capacity for use in areas surrounding Fiji and New Zealand. He also arranged to fly Mr Wright and his crew to South Australia so that they might sail the boat to Sydney.

75. [87]

    In the period between 10 September 2016 and 1 October 2016 a number of steps were taken to finalise preparations for the importation, with Person A keeping Person C informed of plans, having at least six meetings with him in this period. Person A tested an existing satellite phone (that had been used in the Eclipse and Saxon Progress Conspiracies) to confirm that it was still working, and subsequently used it to contact a representative of the Chilean ship to discuss the impending rendezvous. GPS marks for the rendezvous point, at a location close to the Chilean vessel’s ordinary route, were provided by Person A to Gutterball.

76. [88]

    The offenders Person A and Person C further discussed enlisting Peter Spero as their representative on board the boat, with Person A considering additionally placing the offender Tobin on the boat. The anticipated payment was the sum of $1 million paid by Gutterball, and 10% of the value of the importation overall. Person A expressed some concerns about securing payment, and enlisted Person C’s aid to keep part of the product. Person C said that he could sell their portion of the drugs if they were not paid (this being relevant to the supply charge against him). Profits were to be shared equally between them. The expectation was that a figure of $8 million would be made from the importation with Gutterball.

77. [89]

    Arrangements were also made for a place to store the drugs on being landed. Person A said that he had thought about renting a house for a week or two to make everything look normal, and Person C provided him with a print out of rental properties on the Hawkesbury River that he had found. They discussed the use of a satellite phone, and Blackberry devices, with each monitoring an encrypted group chat involving Gutterball and Darren Mohr.

78. [90]

    In the period between 2 October 2016 and 12 October 2016 further steps were taken to advance the conspiracy. Person C went to Brisbane to enlist [REDACTED] Peter in the plan, arranging for his travel to Sydney. Person A spoke with his Chilean contact as to the date of departure for the Chilean vessel, the date of the rendezvous at sea, and the radio frequency upon which to communicate.

79. [91]

    Person A took urgent steps to ensure the “Dalrymple” was ready for the voyage, including finalising its purchase (using a loan) and repairs for it, and the delivery of a satellite phone to the ship. Once that was attended to, Mr Wright and his crew sailed on the vessel from Port Lincoln to Sydney.

80. [92]

    The offender Person A remained in contact with Gutterball and Darren Mohr via Blackberry about the preparations for the departure of the “Dalrymple” from Sydney to meet the Chilean vessel. Gutterball ultimately provided about $45,000 for the fuelling of the “Dalrymple”, paid via Mohr to Person A. Gutterball’s costs overall were in the order of $4 million.

81. [93]

    There were two meetings between the offenders Person A and Person C in this period, with the two discussing final arrangements for the voyage and taking steps to effect those arrangements. The agreement was for Mr Tobin and Peter Spero to be on board and Person A and Person C took steps respectively to achieve that, briefing the men as to their roles. “Clean” mobile phones were to be used to communicate after the “Dalrymple” returned to Sydney.

82. [94]

    The four men met at a café to discuss the importation, including communicating with the Chilean ship using the satellite phone on board the “Dalrymple”, and by radio when it got closer. Mr Tobin and Peter Spero were to act as representatives for the offenders Person A and Person C, and it was their task to explain to Mr Wright the true purpose of the voyage once the “Dalrymple” was at sea. Further, they were to ensure one of the two was awake and on watch at all times; use the satellite phone to make regular contact with the Chilean vessel; provide the coordinates for the meeting point to the captain; and, prior to the rendezvous at sea, they were to take control of the “Dalrymple” from the crew; and, ensure the drugs were safely transferred onto the “Dalrymple” from the Chilean ship, using the larger vessel’s lifeboats to make the transfer.

83. [95]

    On the morning of 13 October 2016, the “Dalrymple” arrived from Port Lincoln at the wharf at the Sydney Fish Markets. That day the offenders Person A, Person C, and Tobin, assisted by Peter Spero, helped Mr Wright and his crew ready the ship for its next voyage. Person A told the captain that the purpose of the voyage was to conduct a survey.

84. [96]

    At about 1:45 pm that day Darren Mohr arrived at the wharf to inspect the “Dalrymple”. Person A introduced Mohr to Person C and gave him a tour of the boat. The offender Person A and Mohr then met separately in a café where they discussed the final preparations for the importation, and Mohr confirmed that he would provide cash later that day. This occurred in a park in Double Bay at around 3pm when Mohr gave the offender Person A a brown paper bag containing $45,000 in cash. Person A then arranged for fuel for the “Dalrymple”, returning to the wharf to assist Person C and Peter Spero and Mr Tobin make the boat ready.

85. [97]

    The offender Person A gave Peter Spero the satellite phone number for the Chilean ship, along with an envelope containing the coordinates at which to meet him and Person C at sea after the “Dalrymple” had collected the drugs. A second envelope provided by him to Peter Spero contained payment for Mr Wright and the crew, to be paid during the voyage for its completion.

86. [98]

    There was a momentary difficulty later that night when Darren Mohr came back to the wharf to express his concern at the presence of Mr Tobin on the boat, he having been previously the representative of the D’Agostino brothers. Person A assured Mohr that the offender Tobin would not be on the boat, although this was contrary to his intention.

87. [99]

    He introduced him to Peter Spero, and Mohr quizzed Peter Spero as to how he would handle any problems on the boat. He told Peter Spero that the importation was being professionally run by serious people, and asked if he was carrying a gun. Peter Spero was not. There is no suggestion that any of the offenders were armed at any stage.

88. [100]

    The “Dalrymple” sailed the following morning, 14 October 2016, at about 6:44am. Peter Spero and the offender Tobin were aboard, with the boat captained by Mr Wright and crewed by three hands, one of whom was Graeme Toa Toa.

89. [101]

    During the voyage, the offender Person A communicated with Peter Spero to confirm he had made contact with the Chilean vessel, urging that either he or Mr Tobin should stay close to the satellite phone. Person A separately communicated with the captain about the progress of the voyage and the coordinates.

90. [102]

    Between 14 October 2016 and 17 October 2016 the Chilean vessel called the “Dalrymple” and made brief contact with Peter Spero, managing to communicate only one or two words. Other calls diverted to voice mail. Person A in turn kept Darren Mohr and Gutterball up to date with the ship’s progress via Blackberry communications.

91. [103]

    On 17 October 2016, at sea, Peter Spero told Mr Wright that the true purpose of the voyage was to collect drugs. Mr Wright was offered the amounts previously decided by Person A, being $200,000 for him, and $100,000 for his crew, but Mr Wright refused. Although the offer was increased to $400,000 and then to $800,000, the captain still refused to take part.

92. [104]

    Mr Wright telephoned the offender Person A to complain about the deception over the purpose of the voyage, stating that the voyage could ruin careers. He said that he was turning the boat around. Person A, in a conversation with Peter Spero, described it as “a big problem”. When the crew were told of the purpose of the voyage, two of the three joined the captain in refusing to be involved, despite offers of substantial sums of money. Graeme Toa Toa was prepared to captain the boat and assist with the drug transfer for a bigger payment than initially offered to him, ultimately agreed as $500,000.

93. [105]

    The offender Person A instructed Peter Spero that, if the Chilean vessel got in contact, to say that the “Dalrymple” was having engine problems. He told Gutterball and Darren Mohr that the “Dalrymple” was having fuel problems.

94. [106]

    On 18 October 2016, at about 4am, Peter Spero received a telephone call from the Chilean ship. A heavily accented male voice confirmed the meeting date would be 26 or 27 October 2016 and indicated that he was aware that the “Dalrymple” was having difficulties. Peter Spero reported this contact to the offender Person A. They made arrangements for all of the crew except for Toa Toa to be dropped off at Lord Howe Island. Person A arranged accommodation and flights to Sydney for them. Peter Spero, the offender Tobin, and Toa Toa continued the voyage to meet the Chilean vessel.

95. [107]

    Between 18 October 2016 and 28 October 2016, the offender Person A kept in contact with both Gutterball, from whom he received the times at which contact should be made with the Chilean vessel, and with the “Dalrymple”, providing to Peter Spero updated co-ordinates for the rendezvous. He met Darren Mohr on one occasion to brief him on the ship’s progress.

96. [108]

    The “Dalrymple” arrived at the location of the rendezvous in this period but, despite waiting for three days, no contact with the larger ship was made. Person A instructed Peter Spero to call the Chilean vessel hourly, but this was unsuccessful. He assured Peter Spero that Gutterball had said the ship would soon arrive.

97. [109]

    In Sydney in this period the offenders Person A and Person C met on three occasions to discuss the progress of the voyage, as well as Gutterball’s specifications for the packaging of the drugs in bags or eskies before being collected. Person C purchased 14 large duffle bags for $839 in cash to re-pack the drugs. Their cut from the importation was 10% of the product, or about $10 million. Darren Mohr was to receive 25kg of cocaine.

98. [110]

    On 29 October 2016, the offender Person A was informed by Gutterball via Blackberry that the Chilean vessel had been intercepted by authorities about four or five days earlier near Tahiti and that the captain could not communicate. Person A called the “Dalrymple” and instructed Peter Spero to return to Sydney. He said that he would work out some compensation with Person C.

99. [111]

    In the period 29 October 2016 to 3 November 2016, the offenders Person A and Person C met on three occasions. They discussed the interception of the Chilean vessel and the absence of news articles about it, expressing concern as to whether the Chileans had been able to get rid of their communication devices. Person A said that questions would be asked when the “Dalrymple” returned, and decided to say that the boat had been doing seismic research. He was in contact with the “Dalrymple” about its return voyage to Sydney.

100. [112]

     Person A said that, as they had done the job asked of them by Gutterball, they would require compensation of $400,000 after taking off the $45,000 paid by Mohr for fuel.

101. [113]

     On 5 November 2016 the “Dalrymple” arrived at the wharf at the Sydney Fish Market. The offenders Person A and Person C were at the dock to meet the boat. Person A told the offender Tobin and Peter Spero and Toa Toa that he would pay compensation. The offender Person C drove Peter Spero to the airport where he boarded a flight to Brisbane. Person C later transferred a few thousand dollars to him, money he received from the offender Person A.

102. [114]

     On 11 November 2016, the offenders Person A and Person C met to discuss getting the “Dalrymple” ready for the next importation involving Jonathon Cooper. Person A said he had arranged for Stuart Ayrton to work on the boat. He asked the offender Person C to meet Darren Mohr to collect cash as part of their compensation, as he would not be in Sydney. This meeting, arranged by the offender Person A, took place on 17 November 2016 in Double Bay. Person C was given $40,000 in cash. He handed this money to Person A at a meeting at the Sydney Fish Market on 23 November 2016.

103. [115]

     This is the other of the charges involving Person A, Person C, and Mr Tobin as co-offenders, and encompasses a conspiracy to import drugs using a vessel known as the “Saxon Progress”, and a further conspiracy to import drugs that relates to the second voyage of the “Dalrymple”. As has already been noted, the “Saxon Progress” voyage pre-dated the first voyage of the “Dalrymple”, whilst the conspiracy with which it has been joined, the second “Dalrymple”, was the last of the plans to import border controlled drugs prior to the intervention of the authorities.

104. [116]

     The events concerning the “Saxon Progress” conspiracy occurred between about 1 September 2015 and 31 March 2016 and, other than the three offenders, involved the D’Agostino brothers, Jonathon Cooper, Richard Lipton, James Collins, and Stuart Ayrton. This was chronologically the first of the voyages in which the offenders Person C and Tobin were involved; it was the third for the offender Person A.

105. [117]

     The “Saxon Progress” conspiracy began about three months after the “Eclipse” conspiracy ended.

106. [118]

     After the Eclipse voyage, the offender Person A had continued to discuss with Joseph D’Agostino the possibility of further attempts to import drugs, suggesting a larger boat after his experience at sea on the “Eclipse”. After Joseph D’Agostino went into hiding after failing to appear for sentence for a commercial quantity supply offence, he had his brother Frank provide the offender Person A with a Blackberry device so that they could continue direct communications about the proposed importation.

107. [119]

     The offender Person A subsequently made initial contact with James Collins, the captain of a Tasmanian based vessel known as the “Saxon Progress”, with a view to using it for a future importation. He told Collins that he had a confidential proposal for a charter which Collins should not mention to anyone.

108. [120]

     Separately, Joseph D’Agostino told an associate with a criminal past, Richard Lipton, about the potential for drugs to be imported into Australia using fishing vessels. Lipton in turn conveyed this information to an associate of his, the offender Person C, asking if he knew anyone who could secure drugs internationally. The offender Person C spoke with Jonathon Cooper, an associate from the security industry, who said he had contacts overseas who could send drugs to be collected at sea.

109. [121]

     Jonathon Cooper made arrangements for an importation of 610kg of cocaine on a vessel out of Panama, to be collected by an Australian vessel at sea. The offender Person A was to provide the Australian ship.

110. [122]

     On 5 December 2015, Frank D’Agostino introduced the offenders Person A and Person C to each other at a meeting at a park in Double Bay. Person A said that he could provide a boat to collect drugs at sea, whilst Person C said that his contacts could provide the drugs to be collected from an international ship. They discussed possible coordinates for a meeting for the transfer of what the offender Person C said was likely to be a shipment of cocaine, on either a cargo vessel or a yacht from South America.

111. [123]

     The offender Person C subsequently met with Joseph D’Agostino and Lipton to confirm his involvement. Steps were taken to facilitate communication by use of Blackberry devices.

112. [124]

     Between 10 December 2015 and 9 March 2016, there were at least 13 meetings between the offenders Person A and Person C, and Frank D’Agostino separately and jointly, to plan the importation. A number of subjects relevant to the importation were discussed.

113. [125]

     The offender Person C remained in contact with Jonathon Cooper. The offender Person C provided updates of the progress of the ship to his co-conspirators at these meetings, ultimately confirming that, after some delays, the ship would arrive at the rendevouz point agreed between the offenders Person A and Person C on 15 March 2016. There was a discussion of the requirement of the international vessel for refuelling, in an amount of about 2,000 litres of fuel to be supplied to it.

114. [126]

     There was discussion as to the quantity of drugs to be brought into the country. Initially, there was discussion of a ton, then 300kg plus a ton across two vessels. Eventually, Person C told Person A and Joseph D’Agostino that 610 kg of drugs would be brought in on one boat. Person C said that the drugs would be packaged in 20kg sealed, waterproof boxes.

115. [127]

     They discussed using an inflatable boat to transfer the drugs from the international vessel, storing the drugs in bins on the boat depending on the size of the packages. The offender Person C said that his experience was of cubes of approximately 50 cm.

116. [128]

     The offender Person A was able to confirm that he had a charter boat available in Tasmania. His plan was to make arrangements for the offender Person C to fly to Tasmania to join the boat, with the flight reservation made in a false name, (although it was ultimately Mr Lipton who made these arrangements). The offender Person A provided ongoing updates about the charter arrangements.

117. [129]

     The discussions ranged over payment for the importation, with Frank D’Agostino initially discussing payment of $1 million each with the offender Person C. Later, in discussions with Jonathon Cooper, Person C confirmed that the group would be paid 20% of the value of the drugs, which would be shared between the D’Agostino brothers, Richard Lipton, and the offenders Person A and Person C.

118. [130]

     Another subject of discussion was how best to avoid the scrutiny of authorities. The offender Person A suggested that the advised purpose of the voyage should be survey work, as a fishing expedition would attract the presence on board of an observer from the Fisheries Authority. He later confirmed with Collins that fishing equipment would need to be removed from the boat to that end.

119. [131]

     The best means of communicating between the vessels was considered. The offender Person C thought Wi-Fi enabled Blackberries to communicate from the boat to the international vessel, disabling any GPS units was best, although he observed that the overseas contacts also wanted radio communications between the vessels on agreed frequencies in case the Blackberries failed. The offender Person A confirmed that he would have a satellite phone with Wi-Fi on the boat and would also provide radio frequencies to use, but care was needed, as these would be traceable. It was the offender Person A who later provided a number of suggested frequencies to the offender Person C to pass on to Jonathon Cooper.

120. [132]

     The offender Person A outlined his plan to transfer the drugs to shore after the collection of the cargo from the international ship, being to sail close to shore before transferring the drugs to a second local boat to land. He and the offender Person C discussed security at different wharves, containers in which to carry the drugs, and the composition of the cargo, being 25 kilogram bales containing 1kilogram blocks.

121. [133]

     Once on shore the offender Person C said that he would be responsible for delivering the drugs to Cooper (relevant to the supply charge), less the amount retained by Person A and Joseph D’Agostino as payment. Person A later suggested that he would provide vehicles for transport so that he could change the drop-off point at short notice if needed, although this option was not ultimately pursued.

122. [134]

     The conspirators agreed to meet weekly for updates. With Joseph D’Agostino in hiding, he and his brother were in contact via Lipton and the offender Person C.

123. [135]

     In that same period between December 2015 and March 2016, the offender Person A made further arrangements to charter the “Saxon Progress” with Jonathon Collins and the boat’s owner, including flying to Hobart on two occasions to meet with Collins there. Collins was offered $1 million to assist in the importation as captain. Later, when Collins could not go to sea due to a medical condition, they agreed to each pay Stuart Ayrton $50,000 to take his place.

124. [136]

     The offender Person A called Ayrton to ask if he would be interested in being the skipper or engineer on the “Saxon Progress”, saying he would fly him to Sydney to discuss the job in person. He discussed preparing the “Saxon Progress” with Ayrton and later Ayrton was brought to Sydney by Person A, who paid for the flights. In Sydney, the offender Person A told Ayrton they would be meeting another boat at sea and his payment would be $100,000.

125. [137]

     The offender Person A arranged for a satellite phone for use on the “Saxon Progress” to be linked to the Blackberry used by the offender Person C via wi-fi. He kept Joseph D’Agostino informed throughout by using a Blackberry device.

126. [138]

     The offender Person C was also taking steps to further the object of the conspiracy in this period, meeting with various co-conspirators for updates, including as to the progress of the international vessel, information he received from Jonathon Cooper. He arranged communication devices for the use of the conspirators, and facilitated contact between them.

127. [139]

     The offender Tobin was introduced into the conspiracy, with Joseph D’Agostino telling Person A that Mr Tobin was to be on the boat as his representative. Person A was introduced to Mr Tobin by Frank D’Agostino, and it was agreed that Mr Tobin would be on the boat, follow the drugs back to shore, and take his and the D’Agostino brothers’ share, if they were to be paid with a portion of the drugs.

128. [140]

     Unbeknownst to the conspirators, on 14 February 2016 the South American ship that was to bring the drugs, a Panamanian flagged yacht named the “Vague a L’ame”, was intercepted by the French Navy near French Polynesia. A search of the vessel located approximately 610kg of cocaine (consistent with what Jonathon Cooper had said the amount of drugs would be). The drugs seized from the ‘Vague A L’ame’ were forensically examined by the Australian Federal Police (“AFP”). There were 610 blocks of powder, contained within 46 bales, comprising 610kg of cocaine with a minimum purity of 73.9%, or 449.24kg of pure cocaine. In 2015-2016 in NSW, the median wholesale value of 610kg of cocaine was approximately $129.5 million and the median street value was approximately $182.8 million.

129. [141]

     The seizure of the ship and its cargo was subsequently reported in local Tahitian media but was not discovered by the Australian participants until a later date. Arrangements thus continued for the voyage of the “Saxon Progress”.

130. [142]

     On 8 March 2016, the offender Person A flew to Hobart to supervise final preparations for the “Saxon Progress”, with Collins and Ayrton. Person A provided Ayrton with the coordinates at which to meet the international ship, and told him that they would need to provide it with fuel and other supplies. Person A confirmed that the offender Person C also had the coordinates and would take over once they located the yacht.

131. [143]

     Separately, the offender Person C hired a van in preparation for transport of the drugs to Jonathon Cooper once the “Saxon Progress” returned to port; he then used a one-way ticket in a different name provided by Lipton to fly to Hobart.

132. [144]

     On 9 March 2016, the offender ordered and paid for additional fuel for the “Saxon Progress” and then picked up the offenders Person C and Tobin from a hotel near Hobart. They went to a local supermarket to buy supplies, and then meet Collins.

133. [145]

     Between 10 March 2016 and 14 March 2016, and still unaware of the seizure of the “Vague a L’ame”, the offenders Person C and Tobin, together with Stuart Ayrton, departed from Hobart on board the “Saxon Progress”. The offender approached the owner of the “Eclipse” to again charter the boat, which he wanted to use to transfer the drugs from the “Saxon Progress” to shore.

134. [146]

     Whilst at sea, difficulties with communications were discovered, and discussions between the ship and the offender Person A were had via text messages and satellite phone about how best to resolve them. Person A sought to obtain necessary equipment to that end, on the basis that the “Saxon Progress” would dock in Sydney for repairs. There were also discussions about moving the meeting point outside the Norfolk Island economic zone.

135. [147]

     The offender Person A kept Frank D’Agostino informed of the problems and developments. They also discussed their expected payment from the importation.

136. [148]

     At sea, Person C spoke to Stuart Ayrton to confirm that the purpose of the trip was to meet a boat at sea and pick up gear to bring back to shore.

137. [149]

     The offender Person A communicated with Ayrton about alternatives if the communication issues were not resolved. When the “Saxon Progress” moored briefly in Sydney Harbour, Person A delivered equipment to resolve the communications problem to the boat by water taxi. The problem was not, however, corrected, and it was agreed the “Saxon Progress” would sail for the previously confirmed meeting point and attempt to contact the international vessel when closer, via satellite phone or short wave radio.

138. [150]

     In this period, the offender Tobin assisted with general duties on board the “Saxon Progress” and acted as the representative of Joseph D’Agostino, ensuring that the importation went as planned and the D’Agostino brothers received their share of any payment, either in drugs or cash.

139. [151]

     Between 14 March 2016 and 31 March 2016, the voyage initially continued, with Stuart Ayrton on board ship confirming to the offender Person A on shore that the “Saxon Progress” was again on its way and expected to meet the international ship in about three days. Thereafter, Jonathon Cooper learned that the vessel had been intercepted by the French Navy. This information was relayed to the offender Person A through Richard Lipton and then the D’Agostino brothers. Using a public telephone, Frank D’Agostino told the offender Person A to bring the Saxon Progress back as soon as possible.

140. [152]

     The offender Person A immediately called Stuart Ayrton and told him that everything had been called off and the boat should return to Tasmania. Person A also spoke with the offender Person C to confirm that the importation was not going ahead. This was discussed between him and the offender Tobin.

141. [153]

     The offender Person A subsequently spoke again with Stuart Ayrton and confirmed that the “Saxon Progress” was returning. He asked Ayrton to pass on his number to Person C without the knowledge of Mr Tobin, intending to communicate with the offender Person C without the involvement of the D’Agostino brothers.

142. [154]

     The conspirators later had various separate discussions about the failed importation, and compensation for the offender Person A for expenses. The offender Person C communicated with Jonathon Cooper via Blackberry about the latter; Cooper told Person C that he would meet him in a few days to pay cash in compensation for the failed import.

143. [155]

     The offender Person A later paid about $5,000 to Stuart Ayrton, and told him about the seizure of the yacht by the French Navy. Separately Person A arranged for about $45,000 to be paid to the owners of the “Saxon Progress” for the charter.

144. [156]

     The offenders Person A and Person C agreed to meet independently of the D’Agostino brothers, and exchanged Blackberry contact details.

145. [157]

     Undeterred by this setback, Person C discussed with Cooper new potential routes and coordinates for a further importation. He and the offender Person A discussed with Frank D’Agostino this further importation using Jonathon Cooper’s overseas contacts, and the anticipated payment for it, being 10% of the value of the cargo for Person A, and 10% going to the offender Person C, the D’Agostino brothers (and, through them, the offender Tobin), and Richard Lipton.

146. [158]

     On 11 April 2016, the offenders Person A and Person C met in Berry, NSW, where Person C gave Person A the first instalment of compensation from Jonathon Cooper, being US$18,000 in cash. They discussed further importations, aiming to collect about half a ton of drugs.

147. [159]

     The events concerning the Second Dalrymple Conspiracy occurred between about 1 April 2016 and 25 December 2016, overlapping with the end of the First Dalrymple Conspiracy, although involving a different group of conspirators, being the offenders Person A, Person C and Tobin, together with Jonathon Cooper, Richard Lipton, Stuart Ayrton, Graeme Toa Toa and Reuben Dawe.

148. [160]

     Between about 1 April 2016 and 29 August 2016, the offenders Person A and Person C communicated via Blackberry devices and had at least 11 meetings in which they discussed the mistakes of the yacht involved in the Saxon Progress Conspiracy and what could be done differently; and the need to be paid for the expenses of the Saxon Progress prior to undertaking a further importation. There were discussions concerning the vessel to be used in the next import and its size, with consideration given to asking Jonathon Cooper’s syndicate to fund the purchase of a specific vessel in Miami, Florida, for $3 million.

149. [161]

     As matters progressed, the two discussed updates on the location of the incoming international ship and how long it would take to arrive off Australian waters. They discussed the crew to be on board the vessel used to meet the international ship and take possession of the drugs, and the importance of not nominating boat or crew until a few weeks before the voyage in case of checks made by the Fisheries Authority. The route of the international ship and the rendezvous with the local boat was a further subject of discussion and planning, with Person C as a conduit between Jonathon Cooper and the offender Person A in deciding possible locations.

150. [162]

     The quantity of drugs to be collected from the international ship was discussed as being about 700kg, with the offender Person C confirming that Jonathon Cooper would pay 20% of the drug value, estimated at $3 - $4 million per 100kg. Plans and suggestions were made for different methods of concealing and transferring the drugs, such as putting the substance in the water with a satellite tracker.

151. [163]

     The offender Person C told the offender Person A that his contacts could provide a money laundering service for Person A, at a cost of 10% of the sum.

152. [164]

     The men discussed the possibility of importing one or two tons, once a year, with the potential profit of continuing to work with Cooper’s group put at $80 million. They also discussed another importation involving a Greek group that Joseph D’Agostino had suggested to Joseph Person A, a group on the West Coast known to him through the involvement of the offender Tobin.

153. [165]

     During at least six of the meetings between the offenders Person A and Person C, Person C passed on payment he had obtained from Cooper to Person A for Person A’s expenses from the previous “Saxon Progress” importation and costs for the present importation. The funds amounted to about $120,000. Person C kept the D’Agostino brothers and Richard Lipton informed of the compensation he had paid to Person A on Cooper’s behalf.

154. [166]

     Between about 30 April 2016 and 24 September 2016, Person C had at least 13 meetings with Richard Lipton in which they discussed:

     1. (1)

        liability for the failed Saxon Progress Conspiracy and who would pay Person A’s costs;

     2. (2)

        updates on the location and timing of the incoming boat, which Person C received from Cooper;

     3. (3)

        updates on Cooper and a representative of the international syndicate inspecting the local boat;

     4. (4)

        their share of the profits, including confirmation that the D’Agostino brothers would be paid despite no longer being directly involved in the planning for the importation; and

     5. (5)

        the need to be cautious and use different methods of secure communications.

155. [167]

     The offender Person C discussed with Lipton providing him a portion of the drugs after they had arrived, for him to sell. Person C was aware that the offender Person A needed him and Lipton to distribute his share of the drugs. The offender Person C was confident of moving a few kilograms but needed Lipton’s assistance to sell the full share of the payment in a short time frame. They discussed other potential drug supply opportunities, wholesale and retail prices of cocaine in the market, and when to organise buyers for the drugs they would sell.

156. [168]

     The offender Person C discussed with Richard Lipton that, should payment for the importation be in drugs rather than cash, Lipton would sell the shares of the offenders Person A and Person C, at least 50kg of cocaine, through his contacts. (This is all relevant to the supply charge.)

157. [169]

     Person C also told Lipton that he was storing material for making drugs for another person and was interested in Lipton selling it for him. He mentioned a broken pill-press, 15 litres of hydroiodic acid and 10 litres of hypophosphorous acid, the chemicals being precursors used to manufacture methamphetamines. He was asked by Lipton to provide a list of the material. (This is relevant to the charges against Person C on the Form 1 document.)

158. [170]

     Jonathon Cooper had arranged with the offender Person C for an overseas representative of the drug syndicate to meet him and Person A to inspect the vessel they were to use for the transfer. A meeting between them, Cooper, and the syndicate member, Farid Mhennaoui, was arranged for 4 August 2016 at the Sydney Fish Market.

159. [171]

     At the meeting the offender Person C introduced Jonathon Cooper to the offender Person A; Farid Mhennaoui introduced himself as “Carlos”. The group spoke in a café and then, having not at this time purchased the “Dalrymple”, Person A showed them his nephews’ boat, the “Kaybeanna”.

160. [172]

     Afterwards, during a car trip, Cooper, Mhennaoui, and the offender Person A discussed future plans: the areas that Person A could operate in, timeframes for organising a vessel, and using a wood-chip business Person A was interested in as a cover for future importations. Person A later passed on to Person C, who had not been present, the details of the discussion.

161. [173]

     At the request of Joseph D’Agostino the offender Person A introduced him to Cooper and Mhennaoui, as well as representatives of the Greek group that were interested in a separate importation involving Joseph D’Agostino and Mr Tobin (which did not ultimately proceed).

162. [174]

     On 5 August 2016, the offender Person C confirmed via Blackberry with Cooper that Mhennaoui (referred to as “the inspector”) was happy to proceed with the importation. Person C also met with Lipton and later Person A.

163. [175]

     A vessel had now to be found to be used in the importation, resulting eventually in the acquisition of the Dalrymple, already considered in the context of the First Dalrymple conspiracy. Between 5 August 2016 and 30 August 2016, the offenders Person A and Person C took various steps to purchase a large twin hulled ocean going vessel, the “Rogue”, berthed in Miami, and having a 7000 mile range and space under the hulls in which to conceal drugs, which Person A considered suitable for their purposes. The purchase price was about A$3 million. Person A gave Person C a folder of information about the “Rogue” to pass on to Cooper, in the hope his syndicate would fund the purchase. Cooper indicated that his group was interested but he needed the approval of others.

164. [176]

     In the meantime, Person A had a number of telephone conversations with a boat broker about purchasing the “Rogue”, indicating that he would organise inspection and survey reports. He spoke to Stuart Ayrton about travelling to the United States to inspect the ship. The planned purchase was, however, deferred, as Cooper’s syndicate was only prepared to fund it after the current importation succeeded.

165. [177]

     Around early September 2016 Joseph D’Agostino was arrested on the outstanding warrant and remanded in custody. Following that, Jonathon Cooper provided new Blackberry devices to Person C for him and Person A to use to communicate about the importation. The Blackberries operated as part of a closed chat group that involved the three Australian based men, and two overseas representatives of the syndicate.

166. [178]

     The offenders Person A and Person C expected to be paid about $16 million for the importation with Cooper.

167. [179]

     In early September 2016, the Dalrymple was purchased by the offender Person A, and it was used in the first of the like named conspiracies.

168. [180]

     With preparations at this stage continuing for both voyages, between 8 October 2016 and 3 December 2016, the offenders Person A and Person C had a number of meetings to finalise preparations for the ship for the second voyage, involving Jonathon Cooper’s group.

169. [181]

     The international ship, a sailing vessel, was expected to arrive in 35-45 days. Crew for the local ship was to include Stuart Ayrton and Graeme Toa Toa, and the offenders discussed payments to them. The offender Person A later met with the offender Tobin, and confirmed that Tobin would be on the boat as a representative of the D’Agostino brothers, as they had originally introduced Person A to Person C and would thus receive a cut of the money made.

170. [182]

     The offender Person A thought Cooper might fund the purchase of a rigid hulled inflatable boat at a cost of about $50,000 to be used for the transfer at sea of up to half a ton of drugs, and then for conveying the drugs to shore. Tests of such a boat would be necessary to ensure it had enough speed and power for the work. Other equipment would also be necessary, including maps and a plotter, a four-wheel drive vehicle to transport the drugs, and night-vision equipment, which Cooper insisted was to be on board the transfer vessel.

171. [183]

     The offender Person A hired a house on the Hawkesbury River that had a private boat ramp for the use of the conspirators. He used his credit card, something he told Person C he had wanted to avoid.

172. [184]

     On 5 November 2016 and again on 19 November 2016, the offender Person C met with Richard Lipton and told him that he and Mr Tobin would be on board the local ship. He said that he would deliver the separate portion which was his and Person A’s payment to Lipton about two weeks later, for Lipton to sell (this being relevant to the supply charge).

173. [185]

     Person C complained about doing everything, including being involved in the planning, picking up items in preparation for the trip, going out to sea to collect the drugs, and then also being responsible for transporting them to Cooper.

174. [186]

     On 20 November 2016, the offender Person C visited the “Dalrymple” at the Sydney Fish Market, where he met the offender Tobin. They spoke in a café about the importation. Mr Tobin wanted to know what his share would be for participating in the importation, and was told by Person C that he would receive either 10kg of cocaine or the equivalent in cash, depending on how payment was received. Mr Tobin agreed to that. They discussed the failure of the plan for the “Saxon Progress”, for which Tobin had not been paid.

175. [187]

     The plan to purchase an inflatable boat was progressing, with Cooper agreeing to provide $50,000, which he gave to Person C, who passed it on to Person A. On 25 October 2016, Person A made enquiries with a boat store about purchasing an inflatable boat, and gave the information he received to the offender Person C. Person C inspected the boat the following day and confirmed to Person A that it was suitable. Person C ordered the inflatable boat and paid a deposit of $10,000 using some of the money that Cooper had provided through him to Person A.

176. [188]

     The offender Person C later transferred the remainder of the purchase price over a number of days, in bank deposits of less than $10,000, to avoid the requirement for identification. He had a tow-bar fitted to his utility to transport the inflatable boat and dropped off tyres at the “Dalrymple” to be used as supports for the boat, as well as obtaining other items in preparation for the voyage, including 12 more duffle bags to hold the drugs, for which he provided receipts to Person A.

177. [189]

     Between 6 November 2016 and 2 December 2016, the three offenders, together with Graeme Toa Toa and Stuart Ayrton, attended to the final preparations for the voyage. Person A arranged for Mr Dawe to travel to Sydney to work for him. He spoke on multiple occasions with Toa Toa and Ayrton to arrange for them to prepare the “Dalrymple” for departure, and agreed to pay Toa Toa $1 million to be the captain on the voyage. Separately, he agreed to pay Ayrton $1.5 million to be in overall charge of the boat. The offender Person C attended the “Dalrymple” where she was docked at Sydney Fish Market on a number of occasions to pay Ayrton and Toa Toa cash wages for their work on the boat, on Person A’s behalf. Separately, Person A made a further payment of $5,000 to Ayrton for his role in the preparations. The offender Tobin was also in contact with Toa Toa on behalf of the offenders Person A and Person C about payments.

178. [190]

     The offender Person C made a number of test trips in the inflatable boat, with Toa Toa and Ayrton, or Ayrton alone, on Pittwater and the Hawkesbury River, confirming it as suitable for its purpose. Person C and Ayrton also purchased a map of the Tasman and Coral Seas around Northern New Zealand and Fiji, at the request of the offender Person A, to use during the rendezvous with the international vessel. Person C separately bought thermal imaging equipment, to assist if the transfer of the drugs was at night, using $5,400 provided by Cooper.

179. [191]

     On 22 November 2016, the offender Person A met with Stuart Ayrton at the Sydney Fish Market and they discussed the plans for the proposed importation, including the use of the inflatable boat, the length of the anticipated 14 day return voyage; and the plan to have Person C bring the drugs to shore on the inflatable boat and meet Person A.

180. [192]

     On 29 November 2016, the offender Person A met with the offender Tobin and Ayrton and Toa Toa to update them as to the timing for the voyage and the coordinates for the meeting with the international ship. Mr Tobin, who was available to board the “Dalrymple” because, as he told Person A, his court case in Queensland had been adjourned for sentencing, wanted more regular communication from Person A.

181. [193]

     In this period, the offenders Person C and Person A maintained communications with Cooper and the overseas representatives of his syndicate via the Blackberry chat group.

182. [194]

     On 3 December 2016, Person A provided a final update on the planning for the voyage to Ayrton and Toa Toa, including the plan to have the inflatable boat leave Sydney separately and be loaded on to the “Dalrymple” at sea, to avoid suspicion. Later, the offenders Person C and Tobin arrived at the Sydney Fish Market to help prepare the “Dalrymple” for departure. Person C separately communicated with Richard Lipton via text messages.

183. [195]

     Between 3 December 2016 and 16 December 2016 a number of steps were taken in furtherance of the conspiracy.

184. [196]

     The “Dalrymple”, with Person C, Mr Tobin, and Ayrton and Toa Toa on board left port about 3 December 2016, and sailed towards the rendezvous point, the Dalrymple cohort maintaining communication with the offender Person A via satellite phone, with Person A using a Blackberry to pass on updates to Cooper.

185. [197]

     On land, Person A arranged for Mr Dawe to travel to Sydney to assist in moving the “Dalrymple” to Brisbane once it returned from the voyage.

186. [198]

     The “Dalrymple” arrived at the rendezvous point and confirmed its position with Person A, who relayed information about the progress of the international vessel that he had received from Cooper. Person A, Person C and Ayrton discussed moving the meeting point outside the Fijian exclusive economic zone to limit the risk of detection.

187. [199]

     On 17 December 2016, Person A provided last minute updates to the “Dalrymple” about the location of the ship it was to meet, and the two vessels located each other. The offender Person C and Graeme Toa Toa lowered the inflatable boat from the “Dalrymple” to use to collect the drugs from the second ship. Although the boat was damaged because of a heavy swell, the two were able to pilot it to the international ship about 200 metres away. Two crew on the international vessel passed sacks containing blocks of cocaine to the men. Person C and Toa Toa tallied the amounts passed to them as they took each sack, confirming that there was 500kg of cocaine. The transfer took about an hour, after which the inflatable boat returned to the “Dalrymple”.

188. [200]

     Tobin and Ayrton helped Person C and Toa Toa to transfer the drugs from the inflatable boat into a freezer room on the “Dalrymple” where the cargo was packed into duffle bags.

189. [201]

     The “Dalrymple” then commenced its journey back to Sydney. The inflatable boat was to head for Parsley Bay boat ramp at Pittwater, the lease on the property rented by the offender Person A on the Hawkesbury River having ended. The offender Person A received numerous updates via satellite phone from the “Dalrymple” confirming the return voyage.

190. [202]

     On 22 December 2016, Mr Dawe arrived in Sydney at the request of Person A. The following day Person A told him that the “Dalrymple” was returning with drugs, offering Dawe $30,000 to $40,000 to assist with unloading the drugs from the inflatable boat. Mr Dawe told Person A that, after the “Saxon Progress” voyage, the offender Tobin had asked him to be involved in an importation into Western Australia of over one hundred kilograms of drugs, but he refused.

191. [203]

     On 25 December 2016, Person A spoke with Person C who was on board the “Dalrymple” and confirmed that the inflatable boat would arrive at Parsley Bay boat ramp at about 9 o’clock that evening. He picked up Mr Dawe and they drove to Parsley Bay boat ramp where Dawe reversed the utility with the trailer for the inflatable boat into the water, awaiting its arrival. On the “Dalrymple” at sea off Sydney, the inflatable boat was lowered into the water and, as Toa Toa held the boat steady, Person C, Tobin, and Ayrton transferred the drugs in the duffle bags on to the inflatable boat. The offender Person C then took over the inflatable boat and sailed towards Pittwater, whilst the “Dalrymple” travelled on to Sydney. Person C sent Person A a text message to tell him he was about to arrive.

192. [204]

     At 9:44pm, Person A and Mr Dawe met Person C in the inflatable boat at the Parsley Bay boat ramp. Mr Dawe got into the inflatable and helped Person C dock the boat with the waiting boat trailer. At that point, police intervened, seizing the drugs and arresting the three men. A few minutes later, other police boarded the “Dalrymple” whilst she was still off the coast of Sydney and arrested Mr Tobin, Ayrton and Toa Toa.

193. [205]

     The drugs seized at Parsley Bay were forensically examined. The importation was made up of 500 individual blocks of powder, constituting 501kg of cocaine at a purity of between 74.8% and 79%. The pure weight was 388.8kg. At that time, December 2016, in NSW the median wholesale value of 501kg of cocaine of the type and purity imported was approximately $106.5 million. The median street value was approximately $150.3 million.

194. [206]

     The offenders Person A and Tobin refused to be interviewed by investigating police. Each refused to comment about the allegations and indicated that he wanted a lawyer present. The offender Person C participated in a record of interview under caution, in which he denied being involved in aspects of the importation but agreed that he participated in various meetings and telephone calls that had been lawfully recorded by police.

195. [207]

     This charge, which Person C alone is to be sentenced for, relates to an agreement or agreements reached by Person C to deliver imported drugs on the arrival of the illicit cargo in Sydney.

196. [208]

     With respect to the Saxon Progress conspiracy, Person C agreed to take delivery of the expected 610kg of cocaine being imported, and deliver them to Jonathon Cooper.

197. [209]

     During the First Dalrymple conspiracy, where there were some concerns held by Person A and Person C about receiving their payment of about 10% of the value of the drugs, Person C said he could sell their portions of the drugs if they were not paid, splitting the proceeds equally between them. He later discussed the possible sale with Richard Lipton.

198. [210]

     In relation to the Second Dalrymple conspiracy and during its currency, Person C agreed to provide a portion of the drugs to Mr Lipton to sell after the cargo had arrived, as he needed Lipton’s connections to move anything more than a few kilograms. He anticipated potentially having to sell both his own and Person A’s share of the drugs, which would be at least 50kg of cocaine. He discussed prices and strategies for selling the drugs with Mr Lipton and arranged to deliver the drugs to Lipton so that they could be sold.

199. [211]

     On 26 December 2016, police searched Person C’s residence in Croydon, seizing three mobile phones and two sets of electronic scales.

200. [212]

     On 27 December 2016, police searched Person C’s storage unit at Waterloo, seizing 25 litres of hypophosphorous acid, 10 litres of methylformamide, 1 litre of safrole, a 5 litre heating mantle, a rotary evaporator, three splash heads, multiple distillation heads, five condensers, six round bottom flasks, and parts of a mechanical pill press. Possession of these items constitute the offences on a Form 1 to be taken into account when sentence is imposed for the s 25(2) offence.

201. [213]

     The following items were also seized from the storage unit: a book entitled, “Secrets of Methamphetamine Manufacture”; a book entitled, “Microwaves in Organic & Medicinal Chemistry”; a black wallet with an AFP badge in glad wrap; a mechanical stirrer, a manual on operating an evaporator and cardboard boxes containing a separating graduated funnel, test-tubes and other types of laboratory glassware.

Other Evidence in the Crown case

1. [214]

   As exhibits A5, A6, A7, and A8 the Crown tendered details of the offenders’ respective antecedents.

2. [215]

   The offender Person A has no criminal history (Ex. A5).

3. [216]

   The offender Person C has two matters against him in NSW (Ex. A6). There is a traffic matter from 2004 dealt with pursuant to s 10 of the NSW Crimes (Sentencing Procedure) Act, which is of no relevance, and a conviction from June 2005 for possessing a prohibited drug. That offence was dealt with by way of a fine.

4. [217]

   Since going into custody the offender has attracted one institutional offence against his name, being an offence of damaging or destroying property from June 2017. In his oral evidence (to which I will return) the offender explained this infringement as relating to a part of a broken telephone which another inmate asked him to destroy. He did as he was asked, and was institutionally charged. The Crown did not challenge his account of the incident and, accepting his description, it is of no real relevance for present purposes.

5. [218]

   The offender John Tobin has a criminal past from the Australian Capital Territory, NSW, and Queensland.

6. [219]

   In the ACT in July 1979 the offender was fined for offences of hindering and resisting police. In NSW in 1985 he was fined and disqualified from driving for an offence of driving with a high range proscribed concentration of alcohol.

7. [220]

   In Queensland, and setting aside his lengthy traffic history, which is of no real significance, the offender has entries against him from 2006 for possessing dangerous drugs, obstructing a police officer, and soliciting for prostitution. In each case no conviction was recorded but fines were imposed.

8. [221]

   More recently, and much more significantly, the offender was before the courts in Queensland for 6 counts of supplying a dangerous drug, one count of possessing a dangerous drug in a quantity deemed to be for supply, one count of possessing a dangerous drug, and one count of possessing drug related equipment (being scales and weights). The drugs the subject of the charges were cocaine and 3,4-methylenedioxyamphetamine, or MDMA. These are the sentence proceedings that the offender told his Second Dalrymple co-conspirators had been adjourned in Queensland, during a meeting with them on 29 November 2016, thus leaving him free to crew the “Dalrymple” on its second voyage of importation.

9. [222]

   A draft statement of facts from the Queensland authorities is Ex. A8. Although only a draft, the offender took no issue with the Queensland facts in this Court. The statement reveals a series of connected offences which occurred in the context of the offender’s involvement with a drug supply network which sold drugs in the south east of Queensland and on the Gold Coast. The particular counts relate to the offender’s acts in selling or otherwise distributing relatively small amounts of cocaine and MDMA, in quantities of a few grams. On a search of his home in October 2014, a little over 134 grams of cocaine was located, together with other paraphernalia connected with the supply of drugs.

10. [223]

    The offender was at liberty on bail for these offences when involved in the offences in this State.

11. [224]

    [REDACTED].

12. [225]

    [REDACTED].

13. [226]

    [REDACTED].

14. [227]

    [REDACTED].

15. [228]

    [REDACTED].

16. [229]

    [REDACTED].

17. [230]

    [REDACTED].

18. [231]

    [REDACTED].

19. [232]

    [REDACTED].

20. [233]

    [REDACTED].

21. [234]

    [REDACTED].

22. [235]

    [REDACTED].

23. [236]

    [REDACTED].

24. [237]

    [REDACTED].

25. [238]

    [REDACTED].

26. [239]

    [REDACTED].

27. [240]

    [REDACTED].

The Subjective Cases

1. [241]

   Each of the offenders gave evidence before the Court and each tendered other, documentary, evidence.

2. [242]

   Tendered before the Court as Exhibit P1.1 is a psychological report under the hand of Mr Sam Borenstein, dated 17 November 2018, prepared for the purpose of these proceedings. Mr Borenstein conducted an interview with the offender Person A on 13 November 2018, and had regard to other documentary material supplied to him.

3. [243]

   The offender Person A was raised in Sydney in relatively poor circumstances, as one of five children born to Italian parents. His father worked as a fisherman. The offender left school at the completion of Year 8 to commence an apprenticeship in panel beating at TAFE. He then worked as a panel beater for approximately four years, before becoming involved in the family fishing business.

4. [244]

   When the offender was 27, he suffered a spinal injury whilst on board a fishing trawler, requiring surgery to his back. Thereafter, he was unable to continue to physically work on the fishing boats, and took on a management role.

5. [245]

   Person A has been married for 40 years, and has three adult children and two young grandchildren. The offender told Mr Borenstein that his relationship with his elderly mother was “strained”. He described a fractured relationship with his elder brother.

6. [246]

   The offender Person A told Mr Borenstein that he was approached by [REDACTED] Joe D’Agostino, and agreed to become involved in a “project”, which he soon became aware involved the importation of heroin and cocaine into Australia. He said that at the time, he was “angry”, “stressed” and in turmoil as a result of several failed business ventures, and so agreed to be involved. He soon realised, however, that “I was out of my depth…I got to the point where I’d had enough…I had a change of heart.” He said that he was told that “not showing up was not an option”, and that he felt relieved and “relaxed” upon his arrest as “I would have had to keep going or I would have been killed. I see it now, I couldn’t see it before”.

7. [247]

   He told Mr Borenstein that he feels “calm” in prison, with “no stress, no phone, no demands”, but that he misses his family. He said that since being incarcerated, he has lost a considerable amount of weight, and has “changed [his] whole life around”, and now attends to his physical and mental health.

8. [248]

   He is a diagnosed diabetic, and continues to take medication for this condition. He also takes an antidepressant, prescribed following the death of his father in 2011. Patient Health Summaries tendered as Exhibit P.14 dated 4 October 2018 and 12 January 2017, confirm that the offender suffers from diabetes and psoriasis and takes daily medication for treatment of these conditions.

9. [249]

   At interview, the offender reportedly presented as an open and honest historian – a result confirmed by normal results on the Paulhus Deception Scale assessment, ruling out “impression management or misrepresentation”. The offender’s mood was eurythmic; his affect, normal and reactive. He did not display symptoms of a psychiatric disorder such as psychosis, with normal thought content and process. There was no evidence of delusions, hallucinations, ideas of reference or feelings of passivity.

10. [250]

    The defendant was assessed by Mr Borenstein using the Personality Assessment Screener (PAS) tool, which measures potential problem areas in mental health. His total score indicated “marked” potential for “emotional and/or behaviour problems of clinical significance”. His results indicated symptoms of apprehension and distress, elements highly correlated with measures of depression and anxiety. Mr Borenstein opined that such a PAS profile “confirms Person A’s propensity to act impulsively without considering the consequences of his actions when subject to stress”; confirms “a degree of social detachment and discomfort in close relationships”; indicates that he “has entertained suicidal thoughts without intent”; confirms his previous anger management issues, and “confidently rules out serious psychiatric disorder”.

11. [251]

    The offender’s results when assessed using the Depression Anxiety Stress Scale (DASS 21) were normal for symptoms of depression, mild for symptoms of anxiety and normal for symptoms of stress.

12. [252]

    Mr Borenstein opined that at the time of the offence, Person A’s mental state was characterised by “worsening stress, and symptoms of lowered tolerance to frustration, mood fluctuation, angry outbursts, sleep disturbance, weight gain and tendency to act impulsively without considering the consequences.”

13. [253]

    The offender expressed his guilt and remorse for his actions to Mr Borenstein, and demonstrated an understanding of the impact drugs have on the wider community.

14. [254]

    Also tendered on behalf of the offender Person A were ten character references including from his wife, [REDACTED], dated 25 October 2018; from his three children; from his sister and brother in law; and from former colleagues and close friends.

15. [255]

    Common to all are references to the offender as a hard worker; a loyal and generous friend; and a good man dedicated to his wife, children and grandchildren. Each writer expressed shock at Person A s arrest and the nature of the charges, and asserted that the offences are completely out of character. Person A’s wife and children speak of the noticeable change in the offender in the period prior to his arrest, when he became increasingly angry, stressed and depressed. Since his arrest, however, each author notes that the offender appears “relaxed”, and “like the weight of the world had been taken off his shoulders”. Several of the authors note that the offender had expressed to them his remorse for his conduct.

16. [256]

    Also tendered before the Court as Exhibit P.13 is a Patient Health Summary relating to his wife [REDACTED] dated 4 October 2018, which confirms that she suffers from various health ailments including thyroid cancer, lupus and osteoporosis. In her letter to the Court, his wife makes reference to her husband’s steadfast support for her in overcoming these medical issues, describing him as her “rock”, and notes that since his arrest, her health has “deteriorated”.

17. [257]

    Also before the Court as Exhibit P.15 is a letter under the hand of the offender, in which he expressed his “sincere apology, remorse and deepest regrets to all the people I have hurt and the relationships I have disrupted from my actions”. He describes that he wishes to offer “no excuse” for his conduct, and speaks of his “devastation” in witnessing the effects of his arrest on his wife and children. He states that now that he has witnessed “the effects drugs have on young men”, he sees the prospective damage to the community caused by his actions as “terrifying”. His oral evidence was to similar effect.

18. [258]

    The offender writes that since entering prison, he has taken up yoga and meditation, and has been working on improving his reading, writing and spelling. He states that he wishes to “proceed forward” and continue repairing the damage [he has] done to everyone around [him] and achieve [his] goals”.

19. [259]

    The offender Person A gave evidence before the Court on 4 December 2018. He told the Court that he has been housed at [REDACTED] since October 2017, but was previously housed for a period of nine months at the Metropolitan Remand and Reception Centre (“MRRC”).

20. [260]

    [REDACTED].

21. [261]

    [REDACTED].

22. [262]

    The offender gave evidence that at the MRRC, he was locked in his cell from 6, 7 or 8 o’clock at night, until 7.30am the following morning. Otherwise, he had the ability to move around the gaol unimpeded, as a “sweeper”. He said that educational opportunities were limited.

23. [263]

    The offender was transferred [REDACTED] a little over a year ago. Conditions there are more restrictive: he told the Court that he is allowed out of his cell between 7am and 11am, and between 12 noon and 2.30pm, but is otherwise locked in. During the course of his day, apart from correctional officers, he has contact only with his cell mate. There are reportedly no work opportunities available to the offender, and limited educational opportunities. The offender attends tutorials irregularly but intended to be weekly, for 15 minutes, to improve his writing and reading. He finds progress difficult, as he has been unable to see an optometrist about replacing his glasses, and gets bad headaches. The offender also attested that he has been to the prison hospital due to recurrent vomiting, and was referred six or seven months ago for a gastronomy and a colonoscopy, neither of which has occurred. He also has dental complaints that are yet to be addressed. The offender gave evidence that he is allowed two visits each week for one hour each.

24. [264]

    With some obvious distress, the offender described the break-down of his relationship with his older brother [REDACTED]. Prior to his arrest, his relationship with his brother was “strained” but civil. Since his arrest, [REDACTED] has reportedly become “very, very angry” with the offender and his family [REDACTED].

25. [265]

    [REDACTED].

26. [266]

    In relation to his offending conduct, the offender told the Court that,

27. [267]

    He gave evidence that before being incarcerated, he had never been involved in illicit drugs. Now that he has seen the detrimental effect of these substances on the community, the offender attested that he feels “ashamed of [himself] for the possibility of making the situation worse”.

28. [268]

    Tendered on behalf of the offender Person C as Exhibit S1.1, is a report of Dr Kerri Eagle, forensic psychiatrist, dated 20 November 2018 and prepared for the purpose of these sentencing proceedings. In compiling her report, Dr Eagle conducted an interview with the offender on 16 November 2018, and had regard to other documentary material supplied to her.

29. [269]

    The offender Person C was born and raised in North Queensland, as the eldest of four siblings. His father worked as a farm hand; his mother, as a house wife. He described his upbringing as “good”, and said that he felt loved. He denied being exposed to violence or abuse in or outside the home.

30. [270]

    The offender left high school at the completion of Year 10. He was never suspended or expelled from school, and described himself as a “good student”. Thereafter, he commenced work in a furniture manufacturing job for approximately 12 months, before working seasonal shifts in a sugar mill. He stated that he was able to maintain fairly consistent employment over the years, across various jobs. He described having attended TAFE for three years in around 2009, where he trained as a carpenter. He also completed a three year TAFE course in bricklaying, obtaining a qualification.

31. [271]

    The offender denied a history of illicit substance use or excessive consumption of alcohol. He said he smoked cigarettes occasionally.

32. [272]

    In 1994, one of the offender’s younger brothers died unexpectedly. The offender went to see a psychiatrist and was prescribed an anti-depressant medication, but did not find the experience helpful and did not return for further treatment. He told Dr Eagle that he had “felt depressed my whole life”, and that “you keep thinking you’ll get over it”.

33. [273]

    Approximately one year prior to his arrest, whilst the offender was working as a carpenter on a building site, he began to experience severe knee pain. Upon undergoing scans, he was told he would need both knees replaced. The offender began to take the medication Oxycontin daily to assist him with pain relief. He said he obtained the Oxycontin from “the street”, and had not been prescribed the medication.

34. [274]

    As a result of his knee pain, the offender was forced to reduce his working hours to part time and move into a granny flat, due to his reduced income and increasing financial pressure.

35. [275]

    Prior to this, the offender had lived with his long term partner of six years. He described the relationship as “good”, but that it had deteriorated when the offender began to experience financial hardship and was forced to move into the granny flat. He told Dr Eagle that he remains close to his former partner and family, but has no close friends. The offender has one adult son, with whom he remains in contact, and who is reportedly supportive of his father and has visited him in custody.

36. [276]

    The offender told Dr Eagle that at this time, his life “spiralled out of control”. He said he felt depressed, in constant pain, and was “living day to day”. He was in a desperate financial situation, felt no enjoyment from anything and had no motivation. He told the doctor that he hit “rock bottom” and “couldn’t see a way out”.

37. [277]

    When he was approached about an opportunity to participate in drug importation, he said he saw it as “an answer to my situation”. He said he initially had reservations but thought, “if I don’t do this, what am I going to do?” He told Dr Eagle that he was unwilling to seek assistance from his family, as it would be perceived as “run[ning] to Mummy”, and that as the eldest brother, “[he] was meant to be the rock”. He maintained that he was “not thinking clearly at the time” and that “all [he] could see was that this would solve my problem”.

38. [278]

    At interview, the offender was reportedly cooperative, but downcast and restricted in affect. He told Dr Eagle that his mood was “up and down”, and he appeared teary at times. He was logical and coherent, and displayed no abnormality of speech.

39. [279]

    He said that he had initially felt “very emotional” upon entering custody, and that his experience of incarceration in the “main gaol” was “horrible”. He reported feeling “embarrassed” and said that he “regretted the whole thing”. He said his offending behaviour demonstrated an error of judgment, which he attributed to his not thinking clearly at the time. The offender was prescribed an antipsychotic, mood stabilising medication, Zyprexa, which assisted in reducing his anxiety.

40. [280]

    He continues to take Zyprexa and reported that his appetite, sleep and weight had been stable. The offender told Dr Eagle that he attended the gym approximately four times per week, but otherwise did not take part in any activities, none reportedly being available.

41. [281]

    The offender denied experiencing paranoia, perceptual disturbances or misinterpreting events. He denied experiencing suicidal thoughts. He told the doctor that he was “not mentally up to study”, and had poor concentration as a result of excessive ruminations about the past and future. He displayed themes of helplessness and hopelessness in his thought content, and was preoccupied with his incarceration and legal circumstances.

42. [282]

    Person C reportedly displayed some insight into the circumstances giving rise to his offending conduct, including his substantial financial stress and the deterioration of his mood. He acknowledged that he ought to have sought professional help.

43. [283]

    Dr Eagle had a telephone conversation with Person C’s sister, [REDACTED], who corroborated several aspects of the offender’s educational and employment history. She described the offender as “very intelligent” and “very empathetic” and considered his offending behaviour to be out of character.

44. [284]

    Ms Fletcher reported that the offender was “depressed” and crying each night for a period of two years before the offence was committed. She confirmed that at the time, he was experiencing financial stress. She told Dr Eagle that both she and her sister were supportive of the offender, and would continue to provide support to him upon his release.

45. [285]

    Dr Eagle diagnosed the offender Person C with major depressive disorder, currently in remission on treatment with a mood stabiliser. She noted that in the period prior to the index offences, the offender described symptoms consistent with a depressive episode including “persistently low mood, anhedonia (reduced interest or pleasure), hopelessness, poor concentration and worthlessness”, in the context of financial stress and physical pain.

46. [286]

    Dr Eagle considered that, as a result of these symptoms, the offender “likely developed distorted cognitions that contributed to his involvement in the events giving rise to the Index Offences”. He developed an “overly negative outlook of his circumstances”, which prevented him from “considering alternative (albeit more challenging) solutions to his predicament”.

47. [287]

    At interview, however, Dr Eagle reported that the offender

48. [288]

    As to his prospects of rehabilitation, Dr Eagle noted that the offender has few criminogenic needs or risk factors; he does not have an anti-social personality; has demonstrated a capacity for empathy; has no history of illicit substance abuse; has a stable and supportive family; and work skills and prospects for future employment. She also noted, however, that the offender was associated with antisocial peers in the context of the offences and appears to have a lack of prosocial recreational activities.

49. [289]

    Dr Eagle concluded that if,

50. [290]

    [REDACTED].

51. [291]

    Also tendered before the Court as Exhibit S.1.2 was a handwritten letter from the offender, dated 27 November 2018. In it, the offender speaks of his feelings of depression and sadness as a result of his separation from his family (in particular, his elderly parents). He accepts full responsibility for his conduct, and says that he feels “deeply ashamed”.

52. [292]

    He reflects that he now has an appreciation of the damaging effects of illicit drugs within the community and that he is “disgusted and ashamed” of the part he played in the perpetuation of that industry.

53. [293]

    He expresses his hope that upon his release, he can successfully integrate into society and become “a valuable member of the community”.

54. [294]

    Tendered before the Court as Exhibit S.1.3 are a number of character references provided by the offender’s two sisters, his nephew, niece, and former partner. Common to all are references to the offender’s good character, his personal qualities, his health ailments, and their effect on his employment and financial situation, his strained circumstances at the time of the offences, his regret for his conduct and wish to atone, and his strong continuing familial support.

55. [295]

    Person C gave evidence before the Court on 4 December 2018. He told the Court that, for the last year he has been housed at [REDACTED], having first been held for a period at Long Bay. He told the Court that he is locked in his cell from 2.30pm until 7am the following morning, and between 11 and 12am. He is housed in a cell by himself, but during the periods out of his cell, is able to interact with other inmates. He told the Court that he was “possibly” interested in study opportunities [REDACTED], but that they were “quite involved, like long term, three to four year subjects” (T44:32). The offender said that there are no work opportunities available to him in custody.

56. [296]

    Person C confirmed the truthfulness of what he had told Dr Eagle. He agreed he told the doctor that at the time of the offences, his “life spiralled out of control”, attesting that he was “at a physical, financial and emotional low and I was destitute” (T45:39). He told the Court that he is in need of two knee replacements, but that no arrangements are currently in place in relation to this.

57. [297]

    Person C confirmed that he has obtained various qualifications from TAFE, including a Certificate III in Bricklaying and a Certificate IV in Building Studies. He said he had been employed all his life as a labourer and carpenter, but due to the deterioration of his knees, was unable to continue, and was forced to move into a granny flat. At this point, he made the decision to become involved in these offences.

58. [298]

    The offender stated that all his family, with the exception of his brother who is now in custody, reside in Queensland, including his elderly parents, who he has not seen for two and a half years. He expressed a wish to serve part of his sentence in Queensland so as to be closer to them. He is fearful that he will never see his parents again, as they are too frail to travel interstate to see him.

59. [299]

    The offender acknowledged that he has been institutionally reprimanded for one offence in June 2017 of destruction or damage to property, and was placed on a form of good behaviour bond in gaol. He gave an explanation of that conduct, which I accept.

60. [300]

    The offender told the Court that, faced with the same criminal opportunities again, “I would run the other way as fast as I could”, and that he “absolutely, very much” regrets his involvement, particularly now that he has witnessed the destructive effects of drugs within the community.

61. [301]

    In cross-examination, however, he acknowledged that he had occasional previous experience in relation to the illegal trade in narcotic drugs before he agreed to become involved in these conspiracies (T51:27).

62. [302]

    Of his conduct, he said,

63. [303]

    Tendered before the Court as Exhibit T1 is a report from Mr Peter Scoufis, clinical psychologist, dated 5 December 2018. Mr Scoufis saw the offender on several occasions between 13 November 2014 and 16 July 2015. In preparing his report for these proceedings, Mr Scoufis had regard to these previous consultations, as well as a recent telephone conversation with the offender.

64. [304]

    Mr Tobin told Mr Scoufis that his father was an alcoholic who abandoned the family when he was aged 10 years. He said he had not seen his father for 30 years. His mother also abused alcohol and the offender disclosed to Mr Scoufis that she had sexually abused him between the ages of 10 and 13 years. He has two sisters and has been estranged from both for substantial periods of time.

65. [305]

    After completing the School Certificate, the offender became an electrician. Thereafter, he played professional football for Eastern Suburbs Rugby League Club and was self-employed as a newsagent. He subsequently became a salesman and, after the age of 52, was unemployed.

66. [306]

    The offender told Mr Scoufis that he had a partnership with a woman for 25 years, and the couple had two sons. This relationship broke down, however, and he now has little contact with his family.

67. [307]

    Mr Tobin confirmed to Mr Scoufis that he had a long-standing history of alcohol and intravenous drug use of cocaine spanning 30 years. He said that he used these substances as a “way of making himself feel better”; that they made him feel “euphoric” and relieved his depression.

68. [308]

    The offender said he had first seen a psychologist at age 50 for depression, and attended on a weekly basis for about one year. He saw a psychologist, Dr Bruce Whelan for two years, in 2013 and 2014, to address his substance misuse and mood disturbance.

69. [309]

    At the time of his initial consultations with Mr Scoufis in 2014, the offender presented with,

70. [310]

    Mr Scoufis referred the offender to his general practitioner, who prescribed him an anti-depressant, Lexapro.

71. [311]

    When Mr Scoufis last saw the offender on 16 July 2015, his mood appeared to have improved and he appeared calmer and more reserved. He told Mr Scoufis that he was in touch with his sisters and youngest son, after a long period of estrangement. He described occasional urges to use substances but said that he was managing to resist them.

72. [312]

    Mr Scoufis felt that the offender demonstrated some insight into his need to resolve issues such as his feelings about childhood abuse and his resort to illicit substances to ameliorate feelings of loss, anxiety and mood disturbance. However, he emphasised that in order for Mr Tobin to maximise his chances of rehabilitation, he should “seek psychiatric help for his apparent affect and mood disorder”, in conjunction with pharmacotherapy and intensive psychotherapy. Upon release, he suggested that the offender comply with a regular, sophisticated pathology regime for drug screening, coupled with psychotherapy.

73. [313]

    Also tendered on behalf of the offender Tobin as Exhibit T2 is a character reference from Mr Phillip Barlow, dated 5 December 2018. In it, Mr Barlow attests to his long friendship with the offender dating back to 1970, when both men attended the same school. He describes the offender as an “exceptionally gregarious and popular person”, who was generous with his time and a talented sportsman. Following the end of his playing career, however, Mr Barlow writes that the offender became increasingly “erratic or manic”, expressed to him thoughts of suicide, disclosed his childhood abuse and began to take drugs. He said that the offender had expressed remorse for his actions and a wish to “move forward in a positive way with the remainder of his life”.

74. [314]

    Exhibit T3 is a letter to the Court from Mr Steve Gillis, dated 26 November 2018. Mr Gillis writes of his friendship with the offender over 35 years; his generosity; sporting prowess and professional rugby career. Though he acknowledges he has not been in touch with the offender for at least the last 20 years, he describes the “John Tobin I knew”, necessarily decades ago, as “genuine, kind, caring and hard working”.

75. [315]

    Mr Tobin gave evidence before the Court on 6 December 2018. He confirmed the truth of what he had told Mr Scoufis concerning his background and upbringing.

76. [316]

    The offender confirmed to the Court that his cocaine use began following the end in 1987 of his career playing first grade football for Eastern Suburbs Rugby League Club. He said that he commenced cocaine use to “get that high, that level of euphoria” he experienced whilst playing football (T87:23), and to deal with the trauma of childhood abuse. He said he “rarely stopped” his cocaine use from that time until his arrest in relation to these offences.

77. [317]

    The offender told the Court his separation from his wife in 2012 was precipitated by his cocaine use. He acknowledged that he was also acquiring and selling cocaine in Queensland at the time of the importation offences, in order to support his addiction – conduct for which he is also facing criminal charges, matters for which he will eventually be sentenced.

78. [318]

    The offender told the Court that he had attended school with Joe D’Agostino, who was later a groomsman at his wedding. He said that he had remained “fairly close” with Mr D’Agostino until he was about 30 years of age, before again reconnecting in about 2012 or 2013. He described his participation in the offences as prompted by “blind” and “unquestioning” loyalty to Mr D’Agostino (T88:49; T89:8), which he considered to be “not an excuse”, but a “justification” for his conduct (T89:16).

79. [319]

    He told the Court that his “main” reason for becoming involved in the offences was both as a consequence of his unquestioning loyalty to Mr D’Agostino, and to ensure that he would “have a never-ending supply of cocaine” (T89:25).

80. [320]

    The offender said that he did not know how many hundred kilograms of cocaine would be imported as a result of the Saxon Progress enterprise, but agreed that he thought it was “a very large quantity” (T92:45). He maintained under cross-examination that prior to either of the Saxon Progress or the first Dalrymple shipments, he was unaware of what he was going to get paid for his part in these enterprises and had not discussed this with any other person involved (T101:36-43).

81. [321]

    The offender acknowledged having a conversation with Person C in late November 2016 about receiving payment for his contribution to the second Dalrymple enterprise in the form of 10 kilograms of cocaine, or its monetary equivalent. The offender estimated, under cross-examination, that this would represent approximately $2 million in street value. He told the Court that the 10 kilograms were to be shared between himself, Joe and Frank D’Agostino, with him receiving a 2 kilogram share. He told the Court in cross-examination that he was “more so interested in the drugs, not so much the money” (T91:25).

82. [322]

    The offender also acknowledged that he was aware at the time that his conduct would constitute a breach of his bail conditions for the Queensland matters imposed in November 2014 (T102:14).

83. [323]

    When asked how he perceived his actions with hindsight, he replied,

84. [324]

    In cross-examination Mr Tobin accepted that he had gone into the venture “with his eyes open” (T90:34). He admitted that he knew he was becoming involved in a large, international drug conspiracy involving numerous other parties, but said he was not aware of where the drugs had come from.

85. [325]

    Of his role, he said,

Sentencing Considerations

1. [326]

   All three offenders are to be sentenced for federal offences. Section 16A(1) of the Crimes Act 1914 (Cth) requires the Court to impose sentences of severity appropriate in all of the circumstances of the offences, taking into account those matters listed in s 16A(2) insofar as known and relevant, together with any other matter the Court regards as relevant. Statutory considerations include objective matters such as the nature and circumstances of the offending, subjective matters personal to the offender, and wider concerns including the need for the sentences imposed to punish, and deter; the deterrence being of both the individual and others.

2. [327]

   The offender Person C additionally faces sentence for a serious State offence, to which the Crimes (Sentencing Procedure) Act is relevant. That Act sets out the purposes to be achieved by sentence at s 3A, and the matters to be considered by the Court in determining sentence are to be found in Part 3 of the Act and, in particular, Divisions 1 and 1A.

3. [328]

   Although the statutory regimes are different, the sentencing principles to be applied are largely common to both State and Commonwealth sentencing regimes. Common law principles applicable in NSW are also relevant.

4. [329]

   The significance of the maximum penalties for each offence is one of the features common to all offences, with the Court obliged to have regard to the maximum penalty specified for each offence as a legislative guide on sentence. In each case the maximum penalty is imprisonment for life. With respect to Person C and the offence contrary to s 25(2) of the State Drug (Misuse and Trafficking) Act, a standard non-parole period (“SNPP”) of 15 years imprisonment is specified in the Table to Division 1A of the Crimes (Sentencing Procedure) Act for this offence, this being the other relevant legislative guide that the Court must have regard to in fixing sentence for that offence.

5. [330]

   I propose to consider the objective seriousness of these crimes, as committed by each of the three offenders, before turning to other features relevant to sentence.

6. [331]

   As an overall statement, and noting that the offenders Person C and Tobin were not involved in all five conspiracies, the crimes before the Court are all extremely grave, involving sophisticated and extensive planning, with the plans largely executed, and which were carried out with an intention of introducing to Australia vast quantities of cocaine and (to a lesser extent) heroin, resulting in profits of staggering amounts of money.

7. [332]

   The fact that only the fifth and final conspiracy resulted in a successful importation hardly lessens the gravity of these crimes. The failures in achieving the object of each of the first four conspiracies chronologically was not due to any want of planning or effort by the offenders. Each did all he could in his respective capacity to ensure the success of these sophisticated and ambitious plans; it was events occurring internationally, entirely beyond the control of the offenders, which thwarted the objects of their respective actions.

8. [333]

   As each of the offenders have acknowledged, only a significant custodial sentence is appropriate by way of sentence; no other sentence is properly available in the circumstances of these matters.

9. [334]

   It is necessary to consider the specific role played by each of the offenders in the conspiracies and the crimes in which each was involved.

10. [335]

    As already noted, Person A was involved in each of the five conspiracies, reflected by the three offences to which he has pleaded guilty. In each, he played a high level, critical role, using his knowledge of fishing vessels, sailing, and departure from and entry to Australian ports, to facilitate the crimes.

11. [336]

    The offence charged as sequence 7 encompasses the Fiji and Eclipse conspiracies.

12. [337]

    The Fiji Conspiracy: The possibility of participating in an importation of drugs was raised with the offender by [REDACTED] Joseph D’Agostino. The offender agreed to participate with him and others (Joseph’s brother Frank, Pepe Garcia, and Benjamin Sara) in an importation of heroin and pseudoephedrine from Fiji, initially estimated as a quantity of about 100kg. Subsequently, the amount the conspirators were expecting to import was revised down, with an anticipated 40kg of heroin and 20kg of pseudoephedrine anticipated to arrive. The drug eventually seized by Fijian authorities was 28kg of heroin, with a purity of between 57% and 63%, equating to 18.73kg pure heroin. (Much more would be derived from that amount, by mixing it with other substances for sale.) That amount is to be considered against the minimum commercial quantity of 2kg.

13. [338]

    The offender was critical in effecting the object of that conspiracy; it is fair to regard him as the principal for the Australian side of the operation. He met with all of the Australian based participants, liaising with and between them about matters such as identifying a boat to collect the drugs in Fiji; liaising with the Fijian contact Benjamin Sara; identifying someone to collect the cargo in Fiji (the police operative Person B), and thereafter making necessary arrangements for his travel to Fiji for that purpose; chartering the boat to bring the drugs from Fiji to Sydney; discussing measures to limit the possibility of surveillance by the authorities and acquiring Blackberry telephones to that end; and advising on possible methods of bringing the drugs ashore without detection.

14. [339]

    The only thing that prevented the offender and his co-conspirators from achieving the object of the conspiracy was the intervention of Fijian authorities.

15. [340]

    The offender’s initial and principal motivation for his involvement in this large scale operation was greed: the offender expected to obtain between $800,000 and $1 million from the importation, less expenses and a share to be paid to Person B. Later, he also expected to use the import as a smaller test run for a much larger importation discussed with Pepe Garcia.

16. [341]

    The Eclipse Conspiracy: Undeterred by the fate of the Fijian conspiracy the offender Person A entered into another agreement with Joseph D’Agostino and Frank D’Agostino and, after introducing them to the conspiracy, Michael Pirrello and Francesco Pirrello, to import a very large amount of cocaine into the country. He was, again, at the apex of the conspiracy in Australia, with the D’Agostino brothers. This too was a highly sophisticated plan to introduce a very substantial quantity of cocaine into Australia, using large commercial fishing vessels and high-tech communications equipment.

17. [342]

    Initially, the agreement the offender reached was for the importation of 600kg, although this was later revised downwards to 400kg of cocaine, to be imported from Colombia.

18. [343]

    To effect the conspiracy the offender provided advice about meeting locations for the proposed transfer of drugs at sea; and introduced Michael Pirrello and Francesco Pirrello into the conspiracy, arranging with them for the use of their large commercial fishing boat, and that of another similar boat, owned by a friend [REDACTED], to that end. He arranged for Michael Pirrello and Francesco Pirrello to act as crew; discussed with the Australian based conspirators methods of concealing and transporting the drugs; liaised directly with the international ship about the drug transfer; and obtained a satellite phone for use in effecting the plans at sea. He was on the ship designated to collect the drugs at sea.

19. [344]

    His motivation was again financial; Person A expected to receive about a million dollars for himself and another million dollars for Michael Pirrello and Francesco Pirrello. After moving to exclude Person B from the importation, the million dollars that would otherwise have gone to Person B increased the offender’s expectation of profit.

20. [345]

    The offender’s role and acts places him at the highest level of these conspiracies.

21. [346]

    The offence charged as sequence 2 encompasses the First Dalrymple conspiracy.

22. [347]

    For this offence the offender reached agreement with his co-offenders Person C and Tobin, together with Darren Mohr, Peter Spero, Graeme Toa Toa, and members of an overseas syndicate based in Thailand to import into Australia about 500kg of cocaine, to be transferred at sea from a Chilean ship.

23. [348]

    The offender was again of pivotal importance in the conspiracy. He liaised with all Australian conspirators, and had direct contact with the Thailand based conspirator known as Gutterball, including by encrypted electronic devices. He was responsible for the Australian operation, and in this role took all necessary steps to buy and fit out a boat for the collection of drugs at sea. He was responsible for securing the crew for the local vessel, and assigning roles and payment to those lower down the hierarchy.

24. [349]

    His motivation in participating in what was a highly sophisticated conspiracy was entirely financial. His expectation was for an immediate payment of $1million on arrival of the drugs on shore, with a total of $8 million anticipated. The only thing that prevented the enormous profits expected from being realised was the failure of the international vessel to rendezvous at the meeting co-ordinates.

25. [350]

    The offender is again at the highest level of the planning and organisation of this conspiracy.

26. [351]

    The offence charged as sequence 8 encompasses the Saxon Progress and Second Dalrymple conspiracies.

27. [352]

    The Saxon Progress conspiracy involved the offender agreeing with his co-offenders, and the D’Agostino brothers, Cooper, Lipton, Collins, and Ayrton, for the importation of about 610kg of cocaine into Australia.

28. [353]

    The offender’s role was of very considerable significance, having oversight of the Australian side of the operations. It was he who arranged for the charter of the “Saxon Progress”, and he who arranged for the ship to be captained, initially by Collins and, when Collins became unavailable due to a medical condition, by Ayrton. He liaised with the Australian members and, through Person C, with the overseas syndicate. The offender suggested meeting locations for the transfer of drugs at sea, means of transport and concealment of the drugs once received, and made decisions about payments to crew.

29. [354]

    His motivation was financial; the offender expected to receive at least one million dollars from the importation, and later, believed he would receive 10% of the value of the cargo.

30. [355]

    The drugs ultimately seized by French authorities, which would otherwise have been brought by the conspirators into Australia, was about 610kg of cocaine, with a purity of almost 74%, which equates to over 449kg of pure cocaine. The value of the cargo was around $130 million at wholesale rates. The profit from street sales would have been much greater.

31. [356]

    The Second Dalrymple conspiracy involved the offender agreeing with his co-offenders and others (being Cooper, Lipton, Ayrton, Toa Toa, and Dawe), to bring into Australia about 500kg of cocaine, using the Dalrymple to collect drugs at sea.

32. [357]

    The offender was one of the conspirators responsible for the planning of the importation. He liaised with Person C about the plan, discussed with him and through him Jonathon Cooper the purchase of a large sea going vessel to be used on an ongoing basis for drug importations, investigated the options of a ship to purchase, met with local and international members of the conspiracy, arranged for the Dalrymple to be used to collect drugs at sea, took necessary steps to secure an inflatable boat to aid in the collection and delivery of the drugs, arranged for crew for the boat, and planned for a suitable location at sea for the transfer of drugs.

33. [358]

    The plan brought some 501kg of cocaine into Australia with a purity of between 74% and 79%, equating to about 388kg of pure cocaine. The wholesale value was about $106 million. The offender expected to receive between $3 and $4 million dollars, to be shared with his Australian co-conspirators.

34. [359]

    This was a very sophisticated and well-planned operation, with the offender directly liaising with Jonathon Cooper and his overseas syndicate for the importation. He was, with Person C, at the apex of the local planning.

35. [360]

    The offender’s moral culpability is at the highest level. His role was pivotal, and he was prepared to introduce others into the criminality of drug importation, including Michael Pirrello and Francesco Pirrello, Captain Wright, and Captain Wight’s three crew, one of whom was induced to participate. The quantity of drugs, whilst not determinative of the seriousness of crimes such as these, is significant, and the amounts involved here are staggeringly large. The quality of the drugs was consistently high, meaning that there was considerable scope for its bulk to be increased by the addition of cutting agents. Even if the offender did not know that, he did appreciate the great value of the cargo. The damage that could be done by such vast amounts of drugs flooding into the country is almost incomprehensible.

36. [361]

    The offender did all of this motivated by a desire for financial gain.

37. [362]

    His overall criminality is at the very highest level.

38. [363]

    The offender Person C was involved in fewer conspiracies than Person A and his criminality is less than Person A’s on that basis alone. There is also a distinction to be drawn between their respective roles and the acts each undertook in furtherance of the conspiracies charged in common against them.

39. [364]

    As already noted, Person C was involved in three of the five conspiracies, reflected by the two offences to which he has pleaded guilty.

40. [365]

    The offence charged as sequence 2 refers to the First Dalrymple conspiracy, which followed the Saxon Progress conspiracy in time.

41. [366]

    The agreement that the offender reached with his co-offenders and other co-conspirators was to import drugs through a Thailand based syndicate, ultimately confirmed as about 500kg of cocaine, with the collection of the drugs for importation to Australia to take place at sea.

42. [367]

    After checking to see whether he knew one of the conspirators, Darren Mohr, by observing his meeting with Person A, the offender together with Person A planned for the importation. He took necessary steps to introduce Peter Spero to the conspiracy and bring him to Sydney to act as crew on the Dalrymple when she sailed for the rendezvous point, together with instructing him in his tasks. He met with Mohr, the representative of the Thailand group, when Mohr visited the Dalrymple, and he purchased the bags that were to be used to conceal the drugs for arrival in Sydney.

43. [368]

    Like Person A, the offender was motivated by a desire for financial gain. He expected to receive a half share of the anticipated $8million the importation would bring him and Person A.

44. [369]

    The offence charged as sequence 10 encompasses the Saxon Progress and Second Dalrymple conspiracies.

45. [370]

    The Saxon Progress conspiracy involved the offender agreeing with his co-offenders, and the D’Agostino brothers, Cooper, Lipton, Collins and Ayrton, for the importation of about 610kg of cocaine into Australia.

46. [371]

    The offender played the vital role of introducing a contact with access to drugs internationally that were available for export (Jonathon Cooper) to the offender Person A, who had the nautical experience and knowledge necessary to arrange for the importation of drugs that were collected at sea. He thereafter facilitated communications including via Blackberry device between Person A and Cooper to arrange for the rendezvous at sea; and assisted in planning for the transfer of the drugs and the movement of the cargo to Australia. He was on board the Saxon Progress to directly supervise the collection and importation of the drugs.

47. [372]

    Like Person A the offender was well aware that the arrangement was for a large amount of cocaine to be brought into Australia, with only the intervention of the French authorities preventing the importation of about 610kg of cocaine, with a purity of almost 74%, equating to over 449kg of pure cocaine. The value of the cargo was around $130 million at wholesale rates. The profit from street sales would have been much greater, something the offender, who had some previous knowledge of the drug trade at street level, understood.

48. [373]

    The offence charged as sequence 4 reflects the offender’s agreement to supply cocaine between about 1 September 2015 and 25 December 2016. The cocaine was part of the product to be realised from the Saxon Progress, and the First and Second Dalrymple Conspiracies.

49. [374]

    Although this offence is directly connected to the Commonwealth offences, it represents distinct criminality in that, apart from introducing the drugs into Australia, the offender was prepared to transport it, in the case of the 610kg of cocaine expected to arrive off the Saxon Progress; and pass it on to others involved in the conspiracies for distribution by sale, in the case of drugs received after the First and Second Dalrymple offences, to ensure that he and Person A received the money owed to them for their role in the conspiracies.

50. [375]

    The offender discussed prices and strategies for selling the 50kg of cocaine that he was to deliver to Richard Lipton for sale. The offender was not unaware of the risks involved in moving drugs in Australia for sale; during the Saxon Progress negotiations he told Frank D’Agostino about his previous experience of selling pills from a car and hating when people would show up late as it increased the risk. He was prepared to take the risk.

51. [376]

    The Crown has submitted that the Court should infer that the offender expected to be paid by Person A for liquidating his share of the drugs, but I am not able to conclude that that is the only conclusion reasonably available, and do not make the finding urged upon the Court in the absence of clear evidence of it.

52. [377]

    The quantity involved in the supply is substantial: 610kg from the Saxon Progress, 10% of the cargo from the First Dalrymple conspiracy, and about 50 kg from the Second, in circumstances where the large commercial quantity of cocaine pursuant to Schedule 1 of the Drug (Misuse and Trafficking) Act is 1 kilogram.

53. [378]

    The only feature of this offence that brings it below an offence at the top of the range is the fact that the offender went no further than agreeing to supply the drug, without in fact supplying it. Whilst an agreement to supply is caught by the broad definition of supply set out in s 3 of that Act, it is less objectively grave than an actual supply of the same amount. However, it must be noted that the only thing that prevented the offender from doing that which he had agreed to do was the intervention of authorities.

54. [379]

    Overall, the offender’s culpability is high, although falling short of that of Person A for those offences charged in common, in that Person A had a more significant managerial and oversight role than did Person C. Whilst I accept that the offender’s deep depression and sense of despair prior to entering the conspiracies did have an adverse impact on his capacity to exercise sound judgment, and thus has some mitigating impact on his criminality, the extended nature of these conspiracies dictates that the level of mitigation cannot be great. These were not impulsive decisions quickly made and quickly carried out; the offender was involved in these events over a period of about 15 months. Depression cannot explain his continuing willingness over that extended period to involve himself in serious crime, and the increased role he played over time. That is attributable to a desire for financial gain.

55. [380]

    Of the three offenders the gravity of the crimes committed by John Tobin is the lowest. Mr Tobin was involved in three of the conspiracies, reflected by two offences.

56. [381]

    The offence charged as sequence 2 reflects the First Dalrymple conspiracy.

57. [382]

    This offender, like Person A and Person C, involved himself in an agreement with his co-conspirators to import a large quantity of cocaine. Whilst the offender may not have been aware of the precise amount of cocaine involved, being an expected 500kg shipment, I have concluded that he was aware that a large quantity of drugs was involved. He could not have failed to notice the use of expensive equipment such as a large ocean-going vessel and sophisticated communications devices. That, together with the number of people involved, was a clear indication that this was a significant importation; the offender must have known that in a general sense, and agreed to participate on that basis.

58. [383]

    Knowing that, he stood ready to meet with Person A and Person C on behalf of Joseph D’Agostino; he assisted with the preparations to ready the Dalrymple for sail; he went aboard for the voyage to meet the international vessel, to protect the interests of Joseph D’Agostino, and render any assistance needed during the voyage; and, with Peter Spero, he negotiated with the crew after the illegal purpose of the voyage was made known to them. Thereafter, the offender facilitated attempts on board the Dalrymple to contact the international vessel, and he kept Person A updated as to events.

59. [384]

    He agreed to be involved because of an expectation of receiving payment, in either cash or cocaine. The evidence does not disclose the extent of the payment promised to or expected by Mr Tobin. I am satisfied that it would have been a relatively significant amount in either money or drugs, but a substantially lower payment than Person A, Person C, or the D’Agostino brothers anticipated receiving.

60. [385]

    Whilst he had no role in the overall planning and management of the intended importation, and did not act independently of the D’Agostino brothers, the offender was their trusted representative on board the Dalrymple, with sufficient authority to take necessary steps, such as negotiating with the unwilling crew, to effect the object of the conspiracy. His role was necessary to the furtherance of the conspiracy, if at a much lower level than either Person A or Person C.

61. [386]

    The offence charged as sequence 4 comprehends the Saxon Progress and the Second Dalrymple conspiracy.

62. [387]

    The offender was a participant in the Saxon Progress agreement with his co-offenders and others to import some 610kg of cocaine via transfer on the open ocean. As representative of the D’Agostino brothers, the offender assisted in readying the ship for departure, and acted on board as crew as required. His overall role was to ensure that the interests of the D’Agostinos were protected.

63. [388]

    Unlike his co-offenders, the offender was not as knowledgeable about the details of the shipment, although I have concluded that he was aware that a large scale importation was involved. He knew through his involvement in it of the sophisticated nature of the importation, utilising as it did numerous individuals, a large and expensive ocean going vessel, and complex communications system. All of those features pointed to a significant importation and the offender could not have been as ignorant of that as he claimed in his evidence to the Court.

64. [389]

    With that knowledge the offender was to ensure that the interests of the D’Agostino brothers were protected during the importation, by retaining on their behalf an amount of the drugs if necessary.

65. [390]

    The Second Dalrymple conspiracy involved the offender’s agreement to participate in acts intended to achieve the object of the conspiracy, being to import a large amount of cocaine. Again, although the offender said in oral evidence he was not aware of the quantity of drugs involved (being 500kg) I am satisfied to the requisite standard that he understood that the importation was for a large amount of cocaine. It would be impossible for him to protect the interests of the D’Agostino brothers if he had no idea of the amount of drugs involved.

66. [391]

    The offender assisted with readying the Dalrymple for embarkation; gave such assistance as necessary on board the boat during its voyage; and aided with the physical transfer of the drugs onto the Dalrymple at sea. He was again to protect the interests of the D’Agostino brothers, including by retaining a share of the drugs as payment on their behalf if necessary.

67. [392]

    He materially contributed to the conspiracy, albeit in a role where he had no authority over the events, and no capacity to act independently, rather, acting at the behest of others.

68. [393]

    Whilst his initial impulse to participate may have rested in part on his strong friendship with Joseph D’Agostino, and his loyalty to him, I do not accept that that impulse was born of “blind loyalty” as the offender asserted in his evidence before the Court. The offender had not seen Joseph D’Agostino for some years prior to these events. It is very unlikely that he would take the considerable risks involved in importing drugs into Australia out of mere loyalty to a man he had not seen in many years. It is far more likely that the offender, as a heavy user of cocaine who was already involved in the trade in illicit drugs in Queensland, saw the proposed importations as an opportunity to gain not insignificant amounts of money, or drugs, or both.

69. [394]

    Joseph D’Agostino was in custody at the time of the last of the relevant events and could not have profited directly from the Second Dalrymple importation. The offender continued to participate nevertheless. His motivation was principally the desire for drugs and money.

70. [395]

    Nevertheless, the offender’s culpability is much lower than that of Person A and Person C, and came about at least in part because of his own addiction. Although drug addiction cannot mitigate crime (other than in rare circumstances that do not apply here), it does give some context to the offender’s participation in these events.

71. [396]

    The damage inflicted upon the community, had the drugs intended to be imported into the country in fact reached and been distributed upon our shores, would have been dramatic. The courts daily see the consequences for individuals and families of illicit drugs: descent into criminality is typical; the fracturing of relationships common; and adverse impact upon health and well-being universal, with death not uncommon. The community as a whole suffers greatly. Illegal drugs are frequently referred to as a scourge on the community, and the description is deserved.

72. [397]

    All of the offenders were prepared to involve themselves in schemes that, ultimately, would have contributed to this damage, Person C additionally by agreeing to take an active role in the distribution of the drugs.

73. [398]

    Fortunately, the authorities were alive to the offender’s crimes, and there was no realistic possibility that these drugs would ever be distributed, but that positive feature is not attributable to the offenders. These were schemes of high criminality and great moral turpitude.

74. [399]

    Each offender entered a plea of guilty in the Local Court to the offences charged against him.

75. [400]

    With respect to the State offence charged against Person C, it is appropriate that the sentence to be imposed upon him is reduced upon the sentence that would otherwise have been imposed. The quantification of the discount will be considered when I turn to the issue of assistance to the authorities.

76. [401]

    With respect to the Commonwealth offences against all three offenders, the Crown does not dispute and the Court accepts that, notwithstanding the overwhelming nature of the case against the offenders, the pleas entered by the offenders demonstrate contrition, acceptance of responsibility, and a willingness to facilitate the course of justice. The overall value of the pleas to the justice system, inhering in them being those features I have just mentioned, should be acknowledged by a discount on the sentences that would otherwise have been imposed. [REDACTED].

77. [402]

    For Mr Tobin, the discount on the sentence that would otherwise have been imposed should be in the order of 25%.

78. [403]

    [REDACTED].

79. [404]

    [REDACTED].

80. [405]

    [REDACTED].

81. [406]

    [REDACTED].

82. [407]

    [REDACTED].

83. [408]

    [REDACTED].

84. [409]

    [REDACTED].

85. [410]

    [REDACTED].

86. [411]

    [REDACTED].

87. [412]

    [REDACTED].

88. [413]

    [REDACTED].

89. [414]

    [REDACTED].

90. [415]

    Person A is a person of former good character. To a not insignificant extent, his good character made him attractive as a co-conspirator, since his activities were less likely to arouse suspicion, and he was less likely to be under surveillance by reason of it. That feature of the matter detracts from the mitigating effect of good character to some extent, although it does not extinguish it altogether. Person A is entitled to call in aid to some extent his long years of honest participation in society.

91. [416]

    Person C has one relevant conviction, although the time that has passed since that offending reduces its significance greatly. The Court would have been able to conclude that the lapse of over a decade since that time demonstrated Person C’s capacity to lead a law abiding life, but for the evidence that establishes that he had operated (in a small way) as a supplier of prohibited drugs in at least some of those years.

92. [417]

    His criminal record, but more particularly, his acknowledged recent supply activity is such as to deny him the degree of leniency that would otherwise have been allowed.

93. [418]

    Mr Tobin has a criminal history of sporadic episodes of criminality separated by periods when he has not been before the courts. On his own admission however, much of his adult life has been tainted by illicit drug use, and thus ongoing criminality. There is as a consequence no basis to extend him leniency in that regard. The Queensland matters are of more direct relevance: they contribute to a conclusion that the offender had a continuing attitude of disobedience to drug prohibition laws, giving greater prominence to issues of specific deterrence.

94. [419]

    Person A is now aged 65 years of age. Person C is aged 58 years. Mr Tobin is aged 59 years.

95. [420]

    As older offenders facing sentence for offences which carry life imprisonment as a maximum penalty, the sentences imposed upon each may mean that each spends a significant part or even most, of the years left to them in prison. At an early stage of his offending, Person A, not without some foundation, speculated that, were he to be caught, he would spend the rest of his life in prison. Had it not been for the assistance he provided, and his early plea, that would have been a likely outcome.

96. [421]

    Age, as has been observed, however, is not a licence to commit crime: R v Holyoak (1995) 82 A Crim R 502 at 507. Whilst the age of the offenders needs to be taken into account, this cannot give rise to an expectation that the elderly can offend with relative impunity: R v McLean [2001] NSWCCA 58; 121 A Crim 484 at 492 [44]. The sentence imposed must remain one that is commensurate with the seriousness of the criminality involved, and is one that accords with the general moral sense of the community: R v McLean at 492 [45]. Those principles must be applied, however, in circumstances where the respective ages of the offenders mean that even relatively moderate sentences (relative to the grave criminality of the crimes) would in effect represent life sentences. Some moderation is necessary.

97. [422]

    However, it is appropriate to have regard to the fact that, as older men in a prison environment, the offenders are all more likely to experience health issues than younger men, and all will find a prison environment more onerous as time passes, and strength declines. All will be increasingly vulnerable in prison.

98. [423]

    Additionally, each of the offenders has health concerns. Person A suffers with diabetes and psoriasis, and has a history of back injury. He has recently experienced gastric and dental issues, and these recent complications together with issues as to his vision remain untreated.

99. [424]

    Person C requires both knees to be replaced, a procedure which has not been undertaken in the almost two years he has been in custody. His condition was sufficiently serious to lead him to give up full-time work, and I accept it is a disabling condition to an extent, and painful.

100. [425]

     Mr Tobin is dealing with the long term adverse impact of childhood trauma.

101. [426]

     All three offenders have depression.

102. [427]

     Ill-health will have an adverse impact for each in their experience of a custodial environment. Although Justice Health must be assumed and expected to provide proper medical care for each offender, I accept that necessary treatment may sometimes be slower in delivery than would be the case for a person in the community.

103. [428]

     To this extent for each of Person A, Person C and Mr Tobin, sentence must be mitigated.

104. [429]

     General deterrence must feature in the sentences to be imposed on each offender. It is a very significant feature, because of the serious social harm done to the community by offences of importing drugs, and supplying drugs, together with the difficulty of detecting and preventing importations. Sentences imposed must act as a deterrent to others who might, like the offenders, be tempted by the money to be made from crimes like these.

105. [430]

     Specific deterrence is also a consideration, but one of limited significance in the case of each offender.

106. [431]

     Person A is formerly of good character; he has a solid work history, and supportive family. I accept that he will never again involve himself in crime.

107. [432]

     His prospects for the future are good.

108. [433]

     Person C’s prior criminal conduct is limited. He too has a strong employment history and is a qualified tradesman. His sisters and son are supportive. I accept that his experiences over the last two years are such that he would, as he said in evidence, run the other way if asked to participate in drug crime again.

109. [434]

     His prospects are also good for the future.

110. [435]

     Whilst Mr Tobin’s circumstances are such that the Court must be rather more guarded as to his future prospects, because of his long standing drug addiction, overall I accept that he has learned a lesson from his incarceration over the last two years. Particularly given that it is likely he will have limited or no access to drugs for some time to come, and is thus likely to lose the immediacy of cravings for drugs, I have concluded that his prospects for the future are reasonable.

111. [436]

     Age must have some bearing on my conclusion with respect to each man: advancing age is likely to significantly reduce the chances that any of these men will be involved in crime in the future.

112. [437]

     Each of the offenders has given evidence of their remorse for their crimes and, as I have already observed, their pleas are some evidence of contrition.

113. [438]

     Whilst it is likely to be the consequences of having been detected in their crimes that most contributes to feelings of regret, I accept that each is remorseful for his crimes. [REDACTED]. Each expressed considerable shame for their behaviour, and great regret for the impact it has had on their respective families.

114. [439]

     Although these crimes occurred in an overall sense as part of a course of conduct insofar as each offender participated, and there must be a degree of concurrence as a consequence, I do not accept that complete concurrence is appropriate. The importation offences were separate crimes, involving separate conspirators, albeit with a degree of overlap, separate plans, separate acts, and some gaps in time between the offending conduct.

115. [440]

     Whilst it related to the products of the conspiracies, and was confined to supplying the drugs to a co-conspirator, the supply offence against Person C (taking into account as it does the Form 1 offences) involves separate criminality, the essence of which was the offender’s willingness to take steps to further the distribution of these drugs into the community. That too requires a degree of accumulation of sentence.

116. [441]

     The principle of totality must operate in the circumstances of this matter to both reduce the sentences that would otherwise apply to the individual offences, and to increase the level of concurrency, to avoid a wholly crushing sentence, and render meaningless the discounts applied in recognition of the pleas of guilty and assistance to authorities.

117. [442]

     I have considered the differing roles of the offenders and their differing criminality. The parity principle is relevant to the sentences to be imposed with respect to the offences common to all three, and I have taken it into account.

The Sentences to be Imposed

1. [443]

   The offenders are convicted of the offences charged against each.

2. [444]

   Bearing in mind that there are multiple offences to be dealt with, and applying the decision of the NSW Court of Criminal Appeal in DPP v Beattie [2017] NSWCCA 301 at [141]–[146], I have decided to impose aggregate sentences with respect to the Commonwealth offences.

3. [445]

   For all offences (sequences 2, 7, and 8), pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW): the offender is sentenced to an aggregate term of 22 years and 6 months imprisonment. The non-parole period is 14 years to date from 25 December 2016, expiring on of 24 December 2030. The offender will be first eligible for parole on 24 December 2030. The balance of term is a period of 8 years and 6 months, expiring on 24 June 2039. The indicative sentence for each individual charge is as follows:

4. [446]

   Sequence 7, conspiring to import commercial quantities of border controlled drugs: 10 years imprisonment

5. [447]

   Sequence 8, conspiring to import commercial quantities of border controlled drugs: 12 years and 6 months imprisonment

6. [448]

   Sequence 2, conspiring to import commercial quantities of border controlled drugs: 8 years imprisonment.

7. [449]

   Sentencing discount applied to the aggregate sentence: 50% [REDACTED].

8. [450]

   [REDACTED].

9. [451]

   For the NSW offence of Supply Not Less than the Large Commercial Quantity of Prohibited Drug (sequence 4), and taking into account the offences on the Form 1 document: the offender is sentenced to 10 years imprisonment, to date from 25 December 2016 and expiring on 24 December 2026. The non-parole period is a term of imprisonment of 6 years and 6 months, expiring on 24 June 2023. The balance of term is 3 years and 6 months.

10. [452]

    For all Commonwealth offences (sequences 2 and 10), pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW): the offender is sentenced to an aggregate term of 16 years imprisonment, to date from 25 December 2017 and expiring on 24 December 2033. The non-parole period is 10 years, expiring on 24 December 2027. The offender will be first eligible for parole on 24 December 2027. The balance of term is a period of 6 years, expiring on 24 December 2033.

11. [453]

    The indicative sentence for each individual charge is as follows:

12. [454]

    Sequence 2, conspiring to import commercial quantities of border controlled drugs: 6 years imprisonment.

13. [455]

    Sequence 10, conspiring to import commercial quantities of border controlled drugs: 13 years imprisonment.

14. [456]

    Sentencing discount applied to the aggregate sentence: 40% [REDACTED].

15. [457]

    Taken as an overall sentence, inclusive of both sentences imposed, the total term is one of 17 years imprisonment. The earliest release date is 24 December 2027.

16. [458]

    For all Commonwealth offences (sequences 2 and 4), pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW): the offender is sentenced to an aggregate term of 12 years imprisonment, to date from 25 December 2016 and expiring on 24 December 2028. The non-parole period is 8 years and 6 months imprisonment, expiring on 24 June 2025. The offender will be first eligible for parole on 24 June 2025. The balance of term is a period of 3 years and 6 months, expiring on 24 December 2028.

17. [459]

    The indicative sentence for each individual charge is as follows:

18. [460]

    Sequence 2, conspiring to import commercial quantities of border controlled drugs: 6 years and 1 month imprisonment.

19. [461]

    Sequence 4, conspiring to import commercial quantities of border controlled drugs: 8 years and 11 months imprisonment.