R v Kinch

1. [1]

   HIS HONOUR: The offender has pleaded guilty to involvement in two conspiracies to import illicit drugs into Australia, the first over a period between 2001 and 2003 and the second between 2006 and 2008. In the course of the proceedings each criminal enterprise has been referred to by the name assigned to the investigation of it: Operation “Statice” for the first, and operation “Octans” for the second. In respect of each enterprise I have been supplied with detailed statements of undisputed facts. However, I have also been provided with helpful overviews of the facts, to which I shall refer for the purpose of these remarks, although it will be necessary later to go to some of the detail of the Statice matter.

Statice – charges and facts

1. [2]

   In the Statice matter the offender pleaded guilty to two counts of conspiring to import into Australia a commercial quantity of MDMA, the drug commonly known as ecstasy. In the first count the offence, contrary to s 233B(1)(cb) of the Customs Act 1901 (Cth), is said to have occurred between about 1 July 2001 and 14 December 2001. In the second count the offence, expressed to be contrary to s 233(1)(b) of the Customs Act and s11.5 of the Criminal Code (Cth), is said to have occurred between 15 December 2001 and 14 March 2003. The two counts represent the same conspiracy but were necessary to reflect amendments to s 233B of the Customs Act which came into force on 15 December 2001. Each offence carries a maximum sentence of imprisonment for life.

2. [3]

   The offender also pleaded guilty to a third count: money laundering between 1 February and 31 December 2002, an offence contrary to s 81 (since repealed) of the Proceeds of Crime Act 1987 (Cth) which carried a maximum sentence of imprisonment for 20 years.

3. [4]

   The offender, who was born on 6 July 1958, holds British and Irish citizenship. Between 2001 and 2003, a Dutch based group, referred to in the proceedings as “The Haklander syndicate”, was responsible for international narcotics trafficking and money laundering activities. The syndicate and its associates were involved in the following activities;

4. [5]

   During 2002 the offender visited Australia on a number of occasions in pursuance of these illegal activities. He also travelled to a number of overseas locations for the purpose of meeting senior syndicate members.

5. [6]

   Three separate shipments of MDMA, each not less than the commercial quantity under applicable Commonwealth law, were imported into Australia from the Netherlands in 2002, the first arriving on 28 January, the second on 30 July and the third on 16 December. The estimated total gross weight of the drug imported in the three shipments is in excess of 1.1 metric tonnes, comprising about five million tablets. The drugs had an approximate wholesale value of AUD $60 million and an approximate street value of AUD $200 million.

6. [7]

   Following these importations, the offender was involved in collecting and counting large amounts of cash on behalf of the syndicate, and sending those funds overseas. This conduct is subject of the money laundering offence.

7. [8]

   The offender was a trusted associate of senior Haklander syndicate members, including the syndicate head, Ronald Haklander. Although he was based in Europe, he travelled to Australia during the relevant period to execute and oversee different aspects of the importation enterprise. At first he performed this role personally, but after the first shipment of MDMA had been imported he recruited and directed two accomplices, [redacted], to assist in performing his role.

8. [9]

   His role included:

9. [10]

   Put shortly, the money laundering offence involved the offender receiving large amounts of cash, the proceeds of the importations, and maintaining possession until it could be laundered and repatriated to senior syndicate members overseas. The offender, [redacted] or other syndicate members acting on his behalf collected, counted and delivered large amounts of cash to money launderers based in Melbourne and Sydney on an ongoing basis. The precise amount involved is not known, but it was at least AUD $3.55 million. In Sydney the offender dealt with a money launderer named [redcated] who, with his brother, conducted a money exchange business [redacted]. To this I shall return.

10. [11]

    The indictment in respect of the Statice matter and the detailed statement of facts are to be found in tabs 1 and 2 of exhibit B. They reveal the part played by Dutch syndicate members, [redacted]. [redacted] and [redacted] arrived after the first consignment and their role, particularly [redacted], was to supervise the activities of [redacted] and [redacted] were involved in the handling of the second and third consignments, while [redacted] task was more to assist the offender in the handling of money. The offender also had meetings in early 2002 with senior members of the syndicate, including Ronald Haklander, in Sydney and Bali.

11. [12]

    On 24 December 2002, Australian Federal Police officers executed a search warrant on a vehicle in Sylvania. They found 7 PVC cylinders containing a large quantity of MDMA tablets bearing a logo consistent with those being imported by the syndicate. The tablets weighed 235.5 kilograms (in round figures), and were found to have an average range of purity of about 39%. This led to the arrest of three men as a result of a police investigation, to which it will be necessary to refer later. Two days after the seizure [redacted] left Australia, and on the following day [redacted] also left the country.

12. [13]

    The offender was arrested on 14 March 2003 in relation to related State charges, which were subsequently “no-billed” by the NSW Director of Public Prosecutions. Upon his arrest, he revealed to police that a large number of MDMA tablets were stored in a unit at Millers Self-Storage at Waterloo. A search of the unit recovered about 72 kilograms of the drug. To these matters also I shall return.

13. [14]

    The offender left Australia on 15 February 2004. On 31 May 2008, following a request by the Australian government, he was arrested in Bangkok by Thai police. He contested his extradition to Australia though the Thai court system, but on 26 October 2012 he was extradited in respect of these offences. It will be necessary later to examine the offender’s period of custody in Thailand.

14. [15]

    He has been in continuous custody since his arrest in Bangkok on 31 May 2008.

Octans - charge and facts

1. [16]

   In the Octans matter the offender pleaded guilty to conspiring to import into Australia a commercial quantity of pseudoephedrine, a border controlled precursor, intended for use in the manufacture of a controlled drug, methylamphetamine. The offence, contrary to s 307.11(1) and s 11.5 of the Criminal Code, is said to have occurred between 1 January 2006 and 2 June 2008. This offence carries a maximum sentence of 25 years imprisonment.

2. [17]

   The amount of pseudoephedrine the subject of the conspiracy was not less than 300kgs. Under the relevant Commonwealth law the applicable commercial quantity is 1.2kgs. This offence also involved the Haklander syndicate, with which the offender had a close association.

3. [18]

   The offender’s arrest for State offences in 2003, to which I have referred, was effected by police attached to the NSW Crime Commission. Following his arrest, he met Mark Standen, a senior investigator with the Crime Commission. In October of that year he became a registered informer for the Crime Commission, directly managed by Standen.

4. [19]

   Standen became a co-conspirator. During the period of the offending conduct he held the senior position of Assistant Director, Investigations at the Crime Commission. The Crime Commission was established to investigate illegal drug trafficking, organised and other crime, and to confiscate property derived from serious criminal activities. Standen’s duties involved the investigation of organised crime syndicates and the cultivation and management of police informants. At the relevant time he was an experienced narcotics investigator, with extensive knowledge and experience of police and customs methodology and complex narcotics investigations.

5. [20]

   Following the offender’s departure from Australia in February 2004, he maintained contact with Standen. Over time the relationship between the two men developed beyond an appropriate relationship between a law enforcement “handler” and his informer. Standen experienced severe financial difficulties, and from December 2005 the offender arranged for substantial sums of money to be paid to him.

6. [21]

   Some of those payments were made through another co-conspirator, Bakhos (Bill) Jalalaty, an Australian citizen who operated a business called BJ’s Fine Foods at Blacktown. Prior to the offence the business was legitimately involved in food importation and distribution. However, it had not been involved in the importation of container loads of goods. Standen had known Jalalaty for some years, and they became friends. Standen facilitated the introduction of Jalalaty to the offender.

7. [22]

   The three men were participants in the conspiracy to import a commercial quantity of pseudoephedrine from Pakistan into Australia. It also involved the participation of various members of the Netherlands based syndicate, together with their manufacturers and suppliers in Pakistan. The suppliers were responsible for the concealment of the pseudoephedrine in bags of rice to be shipped from Karachi to Sydney. Jalalaty’s food importing business was used as the importer and consignee of the shipments. To this end it was necessary for Jalalaty to expand his business to include the importation of containers of food products. This was funded with money sourced from the offender. The use of Jalalaty’s business was intended to provide a veneer of commercial legitimacy to the enterprise, so as to make detection by quarantine and customs authorities less likely.

8. [23]

   The offender played an organisational role in the importation. Here also, he was involved in funding the Australian side of the enterprise, to the tune of more than $1.7 million. He gave directions to Jalalaty throughout the relevant period about the way he should conduct himself in his dealings with other syndicate members and their Pakistani suppliers. The offender maintained direct contact with senior members of the Dutch syndicate. He also sought and obtained the assistance of Standen in managing and instructing Jalalaty, and by using his position as a very senior law enforcement officer to determine whether the importation had been detected and to minimise the risk of law enforcement action. The offender remained overseas for the period of the conspiracy, while Standen and Jalalaty were largely situated in Australia.

9. [24]

   While their roles were different, the offender and Standen were each principals in the conspiracy. They communicated with each other on terms of equality. Jalalaty’s position in the conspiracy was subordinate. Both the offender and Standen gave him instructions and sought to oversee his conduct.

10. [25]

    Negotiations for the importation of pseudoephedrine took place over 2007 and early 2008 between Netherlands based syndicate members and their Pakistani suppliers. Jalalaty, though his business, transferred funds into a bank account in Pakistan to pay for the shipments of rice, one of which was intended to contain pseudoephedrine.

11. [26]

    A test shipment of rice (without pseudoephedrine) was delivered to BJ’s Fine Foods in October 2007. This was sold by Jalalaty on instructions from the offender. The next shipment arrived on 26 April 2008. It contained about 18,000kgs of Basmati rice and was supposed to contain at least 300kgs of pseudoephedrine. It was offloaded, awaiting customs and quarantine clearance. There were significant administrative delays in obtaining customs clearance, mainly due to the unavailability of the original bill of lading. In May 2008, officers of the Australian Federal police inspected the contents of the shipping container, finding a large number of bags of rice but no pseudoephedrine. Why the drug was not there is unclear.

12. [27]

    On 23 May 2008, the original bill of lading arrived from Pakistan, permitting the container to be cleared. The offender and Standen advised Jalalaty about precautions which should be taken to minimise the risk of being detected by law enforcement authorities. On 28 May, the consignment was delivered to Jalalaty’s warehouse in Blacktown. After being notified of delivery, the offender sent coded emails to Jalalaty and Standen with instructions about what to do with the shipment.

13. [28]

    Around the end of May 2008, Dutch authorities began to arrest senior syndicate members in the Netherlands. The offender sent a coded email to Jalalaty reporting the arrest of those people and requesting he seek Standen’s advice about moving the consignment to a safe destination. Over the next days there were further communications between the conspirators, in which Jalalaty reported his unsuccessful attempts to locate the drugs and the offender asked Standen to help Jalalaty in this respect.

14. [29]

    During the course of the conspiracy, the offender met with Jalalaty overseas on a number of occasions and on one occasion with Jalalaty and Standen. He regularly communicated with Standen and Jalalaty through a form of covert email communication known as “hushmail”. Email accounts were created using a variety of nicknames and aliases. After an account was established, email messages were created and saved in the draft folder, which then could be accessed by the other users from any online computer. The offender accessed the emails from numerous overseas countries. Coded language was used in their communications.

15. [30]

    The Indictment in respect of the Octans matter and the detailed statement of facts are to be found in tabs 1 and 2 of exhibit A.

16. [31]

    Standen and Jalalaty were arrested and charged in Sydney on 2 June 2008. Both of them have been dealt with for their part of the conspiracy, and it will be necessary later to consider the sentences passed upon them.

17. [32]

    I have had the benefit of extensive reference to authority by the Crown and by counsel for the offender, Mr Dalton SC and Mr Williams. This dealt with relevant sentencing principles, including the approach to sentence for offences of this kind, together with reference to Pt 1B of the Crimes Act 1914 (Cth) and, in particular, s 16A. For the most part it will not be necessary to refer to the statutory provisions, which are familiar, or the authority, which is well established.

Objective gravity

1. [33]

   The objective gravity of both criminal enterprises, especially the Statice offences, hardly needs to be emphasised. The facts speak for themselves. As to the Statice matters, I have earlier referred to the estimated amount of MDMA the subject of the three importations. The Crown provided an estimate of the total amount of pure MDMA based upon the average purity of the tablets seized on 24 December 2002, arriving at a range of 200-410 kilograms. A detailed analysis by Mr Dalton’s junior, Mr Williams, arrived at a figure of about 246 kilograms. Neither process is easily absorbed by the mathematically challenged. I accept the Crown prosecutor’s submission that it is permissible to have regard to a range rather than a specific figure. I approach the matter upon the basis that the pure weight was at least 200 kilograms, a very substantial quantity, vastly in excess of the commercial quantity prescribed by Commonwealth law, 500 grams. I am satisfied that the offender was aware of the magnitude of each importation.

2. [34]

   The offender was not the progenitor of the enterprise, which was conceived and monitored by the Dutch syndicate. Nevertheless, he occupied a senior position, playing an organisational role at the Australian end. Plainly enough, his motive was profit which, no doubt, would have been commensurate with the large quantity of drug imported. The money laundering offence was also very serious. As the Crown prosecutor put it in written submissions, it was integral to the overall criminal enterprise and represents a form of criminality distinct from that involved in the importation conspiracy.

3. [35]

   The Octans offence, while not of the scale of the Statice enterprise, is also of considerable gravity. This is so even though no pseudoephedrine arrived in this country, perhaps the result of a measure of incompetence at some level of the enterprise. The offence had its origin in a corrupt relationship between the offender and a very senior law enforcement officer. It was a further serious episode of criminality, connected to the same Dutch syndicate which was the source of the Statice conspiracy. As recorded in the facts, the offender was a principal in the operation, on a par with Standen and senior to the position of Jalalaty. Here also, of course, his motive was financial gain.

4. [36]

   The “black market” value of 300 kilograms of pseudoephedrine at the time was about $12 million. Such a quantity could have yielded between 141 and 228 kilograms of methylamphetamine, of a value between $22 million and $41 million wholesale on the drug market. Again, the amount of pseudoephedrine is greatly in excess of the prescribed commercial quantity of 1.2 kilograms. Of course, the offender stands for sentence for a conspiracy to import the pseudoephedrine, and it is the value of that drug which is relevant in this sentencing exercise.

5. [37]

   An important factor, and a valuable guide, in the determination of sentence for this offence is the sentence passed upon Standen. After a lengthy trial before James J, Standen was found guilty of the conspiracy, together with related offences of knowingly taking part in the supply of a large commercial quantity of a prohibited drug, and conspiracy to pervert the course of justice. I have been supplied with the remarks on sentence of James J which need not be examined in detail: R v Standen [2011] NSWSC 1422.

6. [38]

   His Honour considered Standen and the present offender to be principals at the same level of criminal responsibility, their role being greater than that of Jalalaty. Standen had no prior convictions and made out a generally favourable subjective case. However, an important consideration in sentencing him was his abuse of his position as a senior investigator. There was considerable overlap between the three offences, although his Honour saw some additional conduct in the supply offence which called for a sentence greater than that to be imposed for the importation conspiracy. For the supply offence Standen was sentenced to imprisonment for 22 years with a non-parole period of 16 years, for the importation conspiracy he was sentenced to imprisonment for 18 years with a non-parole period of 12 years, and for the conspiracy to pervert the course of justice to imprisonment for 3 ½ years. All sentences were to be served concurrently.

7. [39]

   Jalalaty pleaded guilty to the same conspiracy, and was also sentenced by James J: R v Bakhos Jalalaty [2010] NSWSC1561. After allowing him a combined discount “in the vicinity of 40%” for his plea of guilty and assistance he had rendered to the authorities, his Honour imposed a sentence of 10 years with a non-parole period of 6 years.

Subjective case

1. [40]

   The offender is now 57 years old. He has a substantial criminal history in England for robbery, burglary and other offences of dishonesty, and has served terms of imprisonment. However, he has no prior convictions for drug offences.

2. [41]

   His background is sketched in a psychological report of Dr Mark Milic. It discloses a socially disadvantaged upbringing, and his movement in an anti-social milieu since his childhood. He first came to police attention early in his life. He has family in England, including two children from a marriage which has not endured. He has had gainful employment, and appears to have achieved some stability when he moved to Portugal, where for some years he ran a restaurant. He hopes to return to that country upon his release.

3. [42]

   He described to Dr Milic his experience of prison conditions in Thailand, to which I shall turn in a moment. He said that this had left him with ear and eye infections, and an enduring anxiety.

4. [43]

   Dr Milic completed his report with the observation that the offender “had a disadvantaged childhood and began to live a street-oriented rather than home-oriented lifestyle from an early age.” He “demonstrated talent at school and in work, but was not able to make the most of his abilities.” Dr Milic also observed that, as a result of his incarceration in Bangkok, the offender “developed generalised anxiety disorder, as described in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders”, that he also has “symptoms of post-traumatic stress disorder”, and that his worries about chronic physical health problems “have delayed his recovery from his mental health condition.”

5. [44]

   An affidavit of the offender was read in which he recounted his experience of custody in Thailand. He described the conditions as “terrible.” He shared an unfurnished cell with a concrete floor with a large number of other prisoners. The toilet was an unscreened hole in the ground. They were normally locked in the cell for 14 hours a day. It was hot, and plagued by mosquitos and ants. Lights were kept on 24 hours a day, the entire complex was noisy and sleep deprivation was a major problem.

6. [45]

   At times he was ill, suffering from dysentery and infections in his eyes, ears and on his skin. He was able to buy antibiotics, but his access to a doctor was limited. He could buy his own food but, when it was not available, the food provided was substandard. He could buy a bottle of water but, if it was not available, he had to drink tap water which invariably made him sick. There was a shower in an open yard which hardly ever worked. It was necessary to wash in a communal trough, which was also used to wash plates and eating utensils.

7. [46]

   He was beaten on two occasions, and he saw other prisoners beaten for minor infractions of discipline. A number of prisoners were killed while he was there, one of them stabbed in front of him. There were also a number of attempted and successful suicides. There were no guards on duty at night.

8. [47]

   There was a period of several weeks when the whole of Bangkok was flooded, and water in the prison was at waist height and was fouled by sewage and pollution. When he was required to go to court, he was barefoot and was required to wear chains on his legs as well as handcuffs.

9. [48]

   This is sufficient to portray the conditions the offender faced. I have not referred to every detail of the affidavit, which is unchallenged.

Assistance

1. [49]

   When the offender was arrested on 14 March 2003, he was charged with 2 counts of supplying ecstasy in a commercial quantity (s 25 of the Drug Misuse and Trafficking Act 1985) and 1 count of money laundering (s 73 of the Confiscation of Proceeds of Crime Act 1989). He had been under investigation since early 2002 by a joint taskforce comprised of NSW and Australian Federal police and the NSW Crime Commission. One of the storage units which he had hired for the Statice offences was at the premises of Rent-a-Space at Waterloo. On 4 March 2003, police executed a search warrant at that storage facility and found AUD $500,000 in a bag.

2. [50]

   At this time the offender was living in a unit at the Quay apartments in Sydney, which he and [redacted] had rented in April 2002. A search of those premises revealed keys to two safety deposit boxes at the Martin Place branch of the Commonwealth Bank, in one of which was located AUD $30,000. On 10 March 2003, a telephone conversation between the offender and a Dutch syndicate member, Petrus Dekker, was intercepted. The conversation revealed a joint interest in the marketing of pills, and there was what police believed to be a coded reference by the offender to the $500,000 in the storage facility.

3. [51]

   There was evidence suggesting that by 12 March the offender was concerned that he was under police investigation. Ms Kirstie Chambers, a person engaged to clean the offender’s apartment and with whom he had social contact, told police that on 14 March the offender asked her to remove a number of items from the apartment and from a storage locker in the car park of the building. In particular, she was asked to remove a plastic bag which had been secreted in the car park and dispose of it. She did so, throwing it from the car park to a laneway below. The bag was located and was found to contain ecstasy tablets.

4. [52]

   It is the offender’s case that in 2003 he assisted authorities by the provision of information about the Statice enterprise and other criminal activity, which should be reflected by a reduction of the sentence which he might otherwise face in respect of the Statice charges. The provision of this information had been the basis of an application for a permanent stay of the Statice prosecution, which he later abandoned. I shall turn to that matter later. This issue of assistance is contentious, and was the subject of careful examination of a large volume of material. I have been assisted by helpful submissions on this aspect by counsel, and I am able to deal with it relatively briefly.

5. [53]

   Upon his arrest, the offender agreed to supply information to assist ongoing police investigations in exchange for later assistance for him at court. He revealed that he had a further large sum of money in a hotel room at Coogee, which the police had in any event intended to search as they had information from Ms Chambers that he had stayed there the previous night. A search was conducted, and about AUD $227,000 cash and about $15,000 in foreign currency was seized.

6. [54]

   After he appeared in court and bail was refused, the offender said that he was happy to continue discussions with police and the Crime Commission. I have already referred to the information he supplied concerning the MDMA tablets, part of the third consignment, at the Millers storage unit at Waterloo. He said that that unit was controlled by [redacted], as was the $500,000 at the Rent-a-Space premises.

7. [55]

   In the middle of March 2003, the offender provided further information in response to a Crime Commission summons. He provided details of the progress and methodology of the Statice enterprise, including the involvement [redacted]. He spoke generally of his long standing connection with the Dutch syndicate, its involvement in the manufacture of ecstasy and its interest in importing the drug into Australia. He revealed that what had been recovered from the December shipment was only a portion of it, and that there had been previous importations. However, he did not in terms disclose what he knew of the first and second consignments and his involvement in them. He also sought to convey that the role [redacted] in the enterprise was more senior than it was. In assessing the value of this information, it is necessary to have regard to what was already known to authorities through police investigations.

8. [56]

   Put shortly, apart from evidence relied upon for the State charges against the offender, it was known that he was part of a syndicate involved in the importation and supply of ecstasy in Australia, and [redacted] had also been identified as participants. In particular, in relation to the December consignment [redacted] of a fictitious business name, “Rosa Nova”, as the consignee, and of the Millers storage facilities leased in that business name, had come to light. It was in the course of this police investigation that the search of the motor vehicle at Sylvania on 24 December 2002 was conducted and three men, Carl Hinke, Francis Ballis and Wayne Moore, were arrested.

9. [57]

   Investigations revealed that in the afternoon of 24 December 2002 material the subject of the December consignment was delivered to the Millers facility. A search conducted of two units in the facility in February 2003 located items consistent with the manner in which the ecstasy found in the car had been packaged.

10. [58]

    Accordingly, given the fruits of this investigation, the Crown prosecutor questioned the value of the information provided by the offender in March. Further, in addition to noting the fact that the money which the offender disclosed was in the hotel room in Coogee would almost certainly have been discovered by police, he argued that the same was true of the 72 kilograms of ecstasy found in the Millers Self-Storage unit. That unit was in the name of [redacted], who was known by police to be the offender’s “right hand man.” Moreover, it was very close to the units searched by police in February 2003 and which were understood to have been the location where material from the December shipment had been housed. The Crown prosecutor argued that, in the course of routine police work following that search, it was likely that a unit in the name of [redacted] would also have been searched.

11. [59]

    From March and over the ensuing months until September 2003, the offender gave some further information relating to [redacted], and whom he described as being in charge of the syndicate and responsible for transporting drugs from the Netherlands to locations around the world. He also provided information about [redacted] money laundering operation.

12. [60]

    In October 2003, by which time he was at liberty on bail, the offender participated in a controlled operation, which he had suggested, directed to [redacted]. He initially told police that he had $1.5 million of syndicate money which could be used for that purpose. However, he said that [redacted] insisted that any transfers at that time would have to be in cash and that, of the $1.5 million, $1.1 million was readily accessible in that form. In the event, $300,000 was sent overseas, but it was successfully collected in Paris by a person unknown. As to the remaining $900.000, he said that he no longer had control of that money as he had been under significant pressure from the Dutch syndicate to return it. The operation was terminated, and it seems that no useful information was derived from it.

13. [61]

    In assessing the value of the offender’s assistance in relation to the [redacted] money laundering operation, I received the evidence of a senior AFP officer, Detective Superintendent Benjamin McQuillan. He said that the information supplied by the offender about the [redacted] was already known to police, but at the time was not investigated because there was limited law enforcement focus on money laundering as an offence and there were higher operational priorities. He said, however, that the offender’s provision of information and his participation in the controlled operation constituted a significant factor, among others, in the decision to pursue an investigation. In the event, the [redacted] were convicted of money laundering offences (unrelated to the present offences) committed in late 2003, and those convictions were upheld on appeal[redacted].

14. [62]

    The offender also provided other information about criminal activities in which he had not been involved. Of most value was information concerning the importation into Australia of 157 kilograms of MDMA, which police were able to seize and which led to the arrest and conviction of two people. The Crown acknowledges that this was of significant benefit to Australian law enforcement. Otherwise, information in this category was assessed as of intelligence value only.

15. [63]

    There is no doubt that in providing this information the offender was acting out of self-interest. Information was supplied over a period as negotiations continued relating to the disposition of the charges he faced. The Crime Commission, at the instigation of Standen, made strong representations to the Director of Public Prosecutions to have bail granted and charges against him dropped. At the outset, it was said that he would plead guilty to the supply offences if the money laundering charge was dropped. The money laundering charge and one supply charge were dropped. However, it was conveyed that he would not plead guilty to the remaining supply charge but might plead guilty to a reduced charge. Further representations were made and ultimately, as Ms Chambers had become unavailable as a witness, the remaining supply charge was no billed in January 2004. The offender had been released on bail on 4 July 2003 and, as I have said, he left the country in February 2004.

16. [64]

    The Crown prosecutor acknowledged that the information provided by the offender resulted in, or contributed to, significant seizures of drugs and investigations into serious criminal conduct. However, he noted that all of the information was in the form of criminal intelligence. At no stage did the offender provide a statement for use by prosecuting authorities or sign an undertaking to give evidence in any future prosecution. The Crown prosecutor argued that he had not given the authorities his full and frank co-operation, and that the information he provided was selective. He noted the offender’s omission to disclose the full extent of his involvement in, and knowledge of, the Statice importations, and what he described as his “selective assistance” in the money laundering controlled operation, by providing only a portion of the proceeds of crime to which he had access.

17. [65]

    The Crown prosecutor also argued that the offender had received a substantial benefit for his assistance through the disposition of the State charges which he had faced. Rather than the usual recognition of his assistance by a reduction of sentence, he was effectively rewarded by the termination of the prosecution. He noted that the State charges were serious and that there appeared to be a strong Crown case. In the event of conviction, the offender would have faced a significant custodial sentence.

18. [66]

    The Crown prosecutor further argued that the development of the offender’s corrupt relationship with Standen during this period, and his subsequent serious offending, overrode any benefit on sentence to which he might have been entitled as a result of his assistance. He submitted that it would be contrary to the public policy underlying the extension of leniency for assistance to the authorities to allow the offender any further benefit, given that his subsequent offending was the product of that corrupt relationship and was an abuse of the benefit he had received of gaining his liberty after the prosecution of the State charges was discontinued.

19. [67]

    In response to that last submission, Mr Dalton accepted that the offender’s assistance was born of self-interest, and that it was apparent from his subsequent offending that it did not demonstrate any element of remorse or any step towards rehabilitation. He submitted, however, that the pragmatic purpose of rewarding assistance on sentence, the encouragement of offenders to provide information about criminal activity, would be served by a measure of leniency.

20. [68]

    The fact that the offender was unwilling to provide formal statements or give evidence based upon the information he supplied was due to his fear, probably well founded, of reprisal by the Dutch syndicate. Nevertheless, Mr Dalton submitted that the information he supplied was significant and of considerable value. As to the Statice importations, while the information was of a general nature, it revealed the extent of the involvement of the Dutch syndicate and the scope of the enterprise. His information about [redacted] and his participation in the controlled operation contributed to a successful investigation [redacted], and there was no denying the significance of his information concerning the importation of 157 kilograms of MDMA.

21. [69]

    Mr Dalton argued that the benefit the offender derived from the termination of the State prosecution was limited. He challenged the strength of the Crown case in that prosecution. He argued that the coded telephone conversation of 10 March 2003 did not necessarily refer to the $500,000 found in the storage facility and noted that, in any event, that facility was rented in the name of [redacted]. He relied upon the unavailability of Ms Chambers, arguing that, even if s 65 of the Evidence Act 1995 could have been brought into play, the Crown case was significantly weakened by her absence. He added that, if the prosecution had proceeded and the offender had pleaded guilty, he would have been unlikely to have received a sentence above the order of 6 years with a non-parole period of 4 ½ years.

22. [70]

    The offender now faces sentence for the Statice offences. Effectively the only benefit he has received for his assistance, Mr Dalton argued, was his liberty from 4 July 2003, when he was released on bail, to 31 May 2008, when he was arrested in Thailand. Moreover, the period between July 2003 and January 2004, when the prosecution was terminated, was one of conditional liberty. If the Statice prosecution had proceeded following his arrest in March 2003, Mr Dalton argued, the criminality of the State offences would have been subsumed within the criminality alleged in that prosecution. The assistance the offender had afforded, he said, was such as might have earned him a discount of the order of 40%, a very substantial reduction. For example, if a sentence of 30 years was a starting point the discount would amount to 12 years.

23. [71]

    In all the circumstances, Mr Dalton submitted, some reduction of sentence on account of the offender’s assistance in 2003 is called for. I accept his argument that the offender’s subsequent conduct does not disentitle him from any reduction of sentence. However, the leniency it affords him can only be limited. His assistance was of value, but that value was attenuated by the considerations raised by the Crown prosecutor. I hesitate to assess the strength of the Crown case on the State charges, and I do consider that the termination of that prosecution was a benefit to the offender which should be taken into account on this issue. In assessing the measure of leniency, of course, regard must still be had to the need to impose a sentence which adequately reflects the offender’s criminality. For that reason it is also necessary to have regard to the Crown’s concession that the sentences for the two enterprises should be concurrent, a matter to which I shall turn later.

24. [72]

    There is a separate issue of recent assistance by the offender to be considered, but before doing so it is convenient to deal with the significance of his abandonment of the permanent stay application.

25. [73]

    As the submissions of counsel developed, this aspect of the matter can be dealt with briefly.

26. [74]

    At an early stage of the proceedings in this Court the offender, then differently represented, filed an application for a permanent stay of the proceedings on the basis that to proceed with them would be unfair and an abuse of process. Put shortly, the application was based upon the fact that the information he had given to the Crime Commission about the Statice conspiracy had been provided on the basis that it would not be used against him, and that he would be given assistance with relation to bail and consideration of the narrowing of the charges brought against him.

27. [75]

    As I have said, he attended the Crime Commission in mid-March 2003 pursuant to a summons. At no stage was he informed of the protections under the relevant legislation, the New South Wales Crime Commission Act 1985, applicable to a hearing held by the Commission: in particular, s 13, requiring that such a hearing was to be held in private, and s 18B, providing that nothing said at such a hearing would be admissible against him in any subsequent proceedings. He was at the time charged with relevant offences, and considerations such as those examined in the line of authority including Lee v The Queen [2014] HCA 20, 253 CLR 455, arose.

28. [76]

    The information he provided was disseminated to police in this country and the Netherlands, and was available to them in the pursuit of their investigations.

29. [77]

    The AFP investigation into the Statice importations was re-instated in mid-2005, when authorities became aware of a possible corrupt relationship between the offender and Standen. As the investigation progressed, statements about the conspiracy, incriminating of the offender, were taken from [redacted].

30. [78]

    The Crown prosecutor submitted that the stay application would not have succeeded because the prosecution could have proceeded upon evidence independent of the offender’s admissions in the course of his discussions with the Crime Commission. Apart from the statements taken from [redacted], he pointed to the information produced by the police investigation prior to the offender’s arrest in March 2003 to which I have earlier referred. Significantly, he also relied upon the fact that [redacted] initially contacted Dutch police on his own initiative between July and September 2003, and provided information about the syndicate and the Statice importations. The AFP was made aware of this approach in September 2003.

31. [79]

    It is unnecessary for present purposes to consider recent cases on stay applications in circumstances such as these. The crucial issue in the offender’s application would have been the extent to which the prosecution case was the product of the derivative use of information provided by him to the Crime Commission. Mr Dalton acknowledged that, in the light of [redacted] early, unsolicited provision of information, the stay application might not have succeeded. He added, however, that it would have been open to the offender to explore in evidence the circumstances in which [redacted] came forward, apart from an examination of the process of obtaining statements from [redacted], and that this would have been a process of some length and complexity.

32. [80]

    Alternatively, Mr Dalton argued that, at the very least the application might have led to a temporary stay of the proceedings so that a new prosecution team, from whom the information supplied by the offender was withheld, might be engaged. This would have involved further considerable delay and expense. Although not conceding that this alternative result would have been the outcome, the Crown prosecutor fairly acknowledged that it would be a reasonable argument.

33. [81]

    These opportunities, Mr Dalton said, were foregone by the offender when he abandoned the application. In so doing he facilitated the course of justice. The Crown prosecutor’s position was that minimal weight should be given to this matter, standing alone, and that it should be dealt with as an aspect of the assessment of the value of the pleas of guilty. I accept that it entitles the offender to a measure of leniency, albeit modest, but I agree that it should be taken into account in relation to the guilty pleas.

34. [82]

    In the later part of 2015, after the offender had entered his pleas of guilty in the present proceedings, he provided further information to authorities in relation to alleged criminal activity between 2003 and 2006. This is the subject of two confidential exhibits. He signed a statement concerning these matters and undertook to give evidence about them if required. [redacted]. It seems that the utility of this information is questionable but, in the light of the offender’s undertaking to provide continued assistance, its value has been assessed as medium. [redacted].

35. [83]

    The assistance provided so far by the offender merits some recognition in the sentences in respect of both criminal enterprises. However, I accept the Crown prosecutor’s observation about the piecemeal way in which the offender provided the information, revealed by the confidential exhibits, which again suggests an approach whereby he was bargaining for the extension of a benefit. I note the offender’s undertaking to provide further assistance but, [redacted], I do not consider that that warrants any further reduction of sentence.

Pleas of guilty

1. [84]

   The proceedings in this Court have had a long history, which I need not recount. The offender had been committed for trial in respect of both the Statice and the Octans matters, and his pleas of guilty were entered very late. It must be said that there was considerable delay at an early stage when the offender had different legal representation, and when little or nothing seems to have been done to advance the matter. When his present legal team came into the matter significant progress was made, and negotiations were pursued responsibly and as expeditiously as was reasonably possible.

2. [85]

   It is difficult to see any demonstration of remorse by the pleas. The Crown case in respect of both enterprises was strong, and it appears to me that pleas of guilty to the charges agreed upon were a recognition of the inevitable. Nevertheless, they demonstrate some willingness to facilitate the course of justice and, to adopt the parlance of New South Wales law, they have considerable utilitarian value. (On this I can see the force of the observations of Basten JA in Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208 at [26]-[28], but this is not the occasion to pursue that issue.) The pleas of guilty averted what would otherwise have been two lengthy trials and, in the Statice matter, a substantial application for a permanent stay of the proceedings. This must be recognised in the sentences passed. I propose to specify a combined discount of sentence on account of the pleas and the offender’s assistance, the course adopted by James J in Jalalaty.

3. [86]

   I have difficulty with Mr Dalton’s submission that the offender should be entitled to greater leniency on the basis of an Ellis factor, that is, a disclosure to the Crime Commission of criminality which would be unlikely to have been otherwise discovered: R v Ellis (1986) 6 NSWLR 603, per Street CJ at 604. As noted above, while he disclosed aspects of the enterprise which might not then have been known by the police, he was already under suspicion in relation to it. Moreover, the information he provided was on the basis that it would not be used against him. The situation was very different from that considered in Ellis.

Other factors

1. [87]

   It is common ground that in relation to the Statice matters leniency should be extended to the offender because of the conditions of custody he endured in Thailand between his arrest on 31 May 2008 and his extradition on 26 October 2012, a period of about 4 years and 5 months. Mr Dalton submitted that this should be recognised by a significant reduction of the non-parole period as a proportion of the head sentence. Indeed, his position was that an allowance should be made for double the time that the offender spent in Thai custody. However, I accept the Crown prosecutor’s submission that it should be reflected in the overall sentence and that it is neither necessary nor appropriate to apply a mathematical formula. It is a matter of considerable significance, which has some bearing on the non-parole period but which should be also reflected in the head sentence, given that release at the expiration of the non-parole period is not guaranteed. True it is that the offender was incarcerated in Thailand as long as he was because he contested his extradition, but it was his right to do so.

2. [88]

   In relation to the Statice matters Mr Dalton also argued that the period the offender spent in custody in 2003 should be taken into account. I think that this is appropriate. It seems to me, and was fairly acknowledged by the Crown prosecutor, that the offences for which the offender was then in custody are sufficiently related to the criminality of the Statice matters to permit that course. That period of custody, from 14 March to 4 July 2003, amounts to 3 months and 20 days. But for that period, the sentences for the Statice offences would commence from the day the offender was arrested in Thailand, 31 May 2008. A further backdate of 3 months and 20 days would mean that they commence on 11 February 2008.

3. [89]

   Further as to the Statice matters, the Crown prosecutor submitted that there should be some accumulation of sentence for the money laundering offence upon the sentence for the conspiracy. I agree. I accept his submission that, while the money laundering is closely allied with the offender’s role in the importations, it represents a distinct form of criminality.

4. [90]

   That said, the Crown prosecutor fairly submitted that it would be appropriate for the sentence for the Octans conspiracy to be concurrent with the sentences for the Statice offences. He recognised that those offences are relatively stale, that the investigation of them did not recommence until 2005 and that there was, accordingly, significant delay in the prosecution of them. However, he added, correctly, that totality must be taken into account, so that the overall sentence is of sufficient severity to recognise the criminality of all the offences.

5. [91]

   I take into account the offender’s troubled upbringing which, no doubt, affords some explanation for his criminal history. He is now a mature man, facing a lengthy prison term. Nevertheless, in all the circumstances, any assessment of his prospects of rehabilitation must be guarded.

Sentencing

1. [92]

   Counsel have supplied me with a number of judgments and summaries of decisions on sentence for offences involving large scale drug importing. Some of these cases are included in the extensive review of sentences of this kind by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, 79 NSWLR 1. Some were after trial, others after pleas of guilty, and in some assistance to the authorities was a factor. They cover a lengthy period, from the 1990s to recent years, embracing cases before and after the repeal of s 16G of the Crimes Act (Cth). In some imprisonment for life was imposed, while the others demonstrate a considerable range of determinate sentences.

2. [93]

   Grave as the Statice conspiracy is, it does not call for the maximum sentence and the Crown prosecutor did not argue that it did.

3. [94]

   In relation to the Statice matter I was also supplied with the remarks on sentence of Wayne Moore, one of the men arrested in relation to the December shipment to whom I have earlier referred. On 2 September 2004 Kinchington DCJ sentenced him to imprisonment for 20 years with a non-parole period of 15 years for the offence, also under s 233B of the Customs Act, of possession of a prohibited import, being a commercial quantity of MDMA. His Honour arrived at that sentence after a discount of 25% for that offender’s plea of guilty and co-operation with authorities. His Honour described Moore as a member of a syndicate involved in the importation into Australia of a commercial quantity of ecstasy, saying that, while he was not a principal in the organisation, he was a “senior and trusted member” of it.

4. [95]

   The Crown prosecutor also supplied a schedule of sentencing decisions in money laundering cases. These cover a period relevant to the Statice offence, from the mid-1990s to 2004. I have had regard to all this sentencing material in determining the sentences which I must impose.

5. [96]

   As I have noted, the first 2 counts on the Statice indictment embrace the same conspiracy to import MDMA. In my view, the practical course is to pass the same sentence on each of them, to be served concurrently, that sentence representing the criminality of the conspiracy as a whole. I must assess a starting point of a sentence for the conspiracy and the money laundering offence, having regard to their objective gravity, to the offender’s background and antecedents and, particularly, to his experience in custody in Thailand. I must then reduce that to recognise his pleas of guilty and his assistance to the authorities. Mr Dalton realistically acknowledged that the starting point for the conspiracy could not be less than 30 years. I am of the view that, but for the Thai custody, it would need to be of the order of 35 years. The appropriate starting point, I find, is 32 years. I would discount that sentence for the plea of guilty and assistance by 30%, producing a figure, rounded off, of 22 ½ years.

6. [97]

   For the money laundering offence, again having regard to the Thai custody, my starting point would be 10 years. A 30% reduction produces a figure of 7 years. I shall accumulate that sentence upon the sentence for the conspiracy by 2 years. The aggregate sentence, then, is 24 ½ years. I shall set a non-parole period amounting to 65% of that figure which, again in round figures, is 16 years.

7. [98]

   In the Octans matter, I accept Mr Dalton’s submission that the appropriate starting point is imprisonment for 18 years, the term imposed upon Standen for that offence. While it is true that, unlike Standen, this offender has a criminal history and had been involved in previous serious drug offences, on the other hand, Standen’s abuse of his position as a senior law enforcement officer was a significant aggravating factor in his case. I would reduce that period by 20% in recognition of the offender’s plea of guilty and assistance to the authorities, resulting in a rounded off term of 14 ½ years. I shall fix a non-parole period of 10 years, and this sentence will be directed to be served concurrently with the sentences for the Statice matter.

8. [99]

   Accordingly, as to the Statice indictment, the offender is sentenced on each of the 1st and 2nd counts, conspiracy to import MDMA, to imprisonment for 22 ½ years, commencing on 11 February 2008 and expiring on 10 August 2030. On the 3rd count, money laundering, he is sentenced to imprisonment for 7 years, commencing on 11 August 2025 and expiring on 10 August 2032. I set a non-parole period of 16 years, commencing on 11 February 2008 and expiring on 10 February 2024.

9. [100]

   As to the Octans indictment, for the offence of conspiring to import pseudoephedrine the offender is sentenced to imprisonment for 14 ½ years, commencing on 11 February 2008 and expiring on 10 August 2022. I fix a non-parole period of 10 years, commencing on the 11 February 2008 and expiring on 10 February 2018.

10. [101]

    The offender will be eligible for release on parole on 10 February 2024.