By Paul Gregoire and Ugur Nedim
On 30 December 2011, Canadian authorities detected the secretion of various illegal drugs within a commercial oven, which was set to be flown to Sydney and delivered to an Italian restaurant in the NSW Central Coast town of The Entrance.
The illicit substances were removed from the oven, and the consignment was allowed to continue on.
The seized drug shipment included 3.96 kilograms of cocaine, 2.25 kilograms of MDMA, 1.34 kilograms of methamphetamine and 3.79 kilograms of PMMA: a drug similar in effect to MDMA, but more dangerous.
The total street value of the drugs was somewhere between $5.1 million and $8.7 million.
The Australian Federal Police (AFP) intercepted the consignment once it arrived in Australia on 7 January 2012. Officers inserted packages of an innocuous substance into the oven to replace the missing prohibited drugs.
Under the provisions of section 15GI of the Crimes Act 1914 (Cth), AFP officers were granted authority to carry out a controlled operation. These special operations allow law enforcement officers or other specified people to participate in activities that would usually be considered unlawful.
Then AFP officers, along with the freight company, facilitated the delivery of the oven.
A minor role
Mr W was involved in organising the transportation of the oven from the Italian restaurant to Storage City in West Gosford, where the drugs were to be stored.
Mr W wasn’t one of the main players in the drug importation enterprise, which was organised by Reese Thomson, George Tourvas and Alan Dong.
According to Mr W, he participated due to pressure and threats from Mr Thomson. There was no evidence Mr W was to receive a financial gain from the venture.
Colluding with police
On 11 January, Mr W attended Hornsby police station, where he told officers that he was being pressured by the Hells Angels Outlaw Motorcycle Gang to assist them in the importation of 100 kilograms of heroin hidden in an oven.
Officers told Mr W that they would apply for a controlled operation authority that would allow him to participate in criminal acts without the fear of prosecution. However, this would take a couple of days, and in the meantime, he would still be liable for any crimes he committed.
Mr W continued on with the importation operation. He received the consignment and transported it to the storage facility. And on 18 January, the AFP controlled operation was broadened to allow for Mr W’s participation.
On the following day, Mr W began removing the oven frame with an angle grinder to recover the illicit substances. He then arranged to meet with Mr Thomson. And at that point, AFP officers moved in and arrested Mr W at the storage facility, as well as arresting Thomson and Dong at The Entrance.
The disputed sentence
Mr W pleaded guilty in Gosford District Court to aiding and abetting the attempted importation of commercial quantities of border controlled drugs, contrary to sections 11.1, 11.2 and 307.1 of the Criminal Code Act 1995 (Cth).
The maximum penalty for the offence is life imprisonment and/or a fine of $1.575 million.
The court heard that 54-year-old Mr W had no relevant prior criminal convictions. The defendant told the court that Mr Thomson, who carried a flick knife and possessed a handgun, had threatened to wipe out his entire family if he went to police.
On 10 October 2013, NSW District Court Judge Roy Ellis sentenced Mr W to 5 years and 6 months behind bars, with a non-parole period of 3 years.
This was after allowing for a 50 percent discount to a starting point sentence of 11 years gaol time, due to his early guilty plea and the assistance he provided to authorities.
A single comparable case
Mr W appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) in July 2014 on five separate grounds.
NSWCCA Justice Robert Hulme rejected the ground which claimed that the sentencing judge had erroneously found that Mr W’s conduct after his confession contributed to his overall criminality, and the ground that his Honour had erred in failing to consider that the offending had been carried out under duress were unfounded.
However, his Honour agreed that Judge Ellis had placed undue weight upon the sentence imposed in the 2011 case R v Holland, which also involved the importation of prohibited substances and assistance given to police by the defendant.
During the District Court sentencing proceedings, the prosecution raised three cases which it claimed were similar to Mr W’s, and this triggered extensive remarks by the sentencing judge in regard to one of the cases, which was Holland.
In determining Mr W’s sentence, Judge Ellis took the 12 year sentence imposed in the Holland case as his starting point. He then added a year to that, after comparing the criminality of both cases and he arrived at a sentence of 13 years.
But his Honour then subtracted two years off the 13 year sentence to give credit to Mr W for having come forward to police. So, this led him to a sentence of 11 years, before the 50 percent discount was applied.
“This demonstrates an approach that has all the appearance of having been driven by a single so-called comparable case,” Justice Hulme said.
The NSWCCA justice found the sentencing judge failed to undertake a process of weighing up the subjective and objective facts of the current case, nor had he considered other relevant cases as a yardstick.
Matters to consider in sentencing
His Honour also upheld a ground of appeal that asserted Judge Ellis had failed to properly regard Mr W’s cessation of criminal activity, as well as his reporting of the offence to police.
The justice noted the sentencing judge had acknowledged the confession was to Mr W’s “credit” and in the community’s interest.
However, Justice Hulme pointed out that section 16A of the Crimes Act requires a court to take into account certain relevant matters when passing a sentence, which includes personal deterrence and rehabilitation.
His Honour found the sentencing judge had failed to take these matters into consideration. And while personal deterrence carried little weight in Mr W’s case, his good prospects of rehabilitation was a relevant consideration.
“Whether, and if so how, to resentence”
Justice Hulme took the fifth ground of appeal, that the sentence was manifestly excessive, into account when determining whether to resentence.
His Honour made clear that Mr W’s sentence should not have provided an example of what might happen to a person who is tempted to import illegal drugs. Rather, his sentence should have reflected what can become of someone who assists law enforcement authorities in preventing crime.
Along with their being no basis to find that Mr W was likely to reoffend, Justice Hulme found that there were “other subjective features warranting leniency, such as good character, remorse, good prospects of rehabilitation and an element of ill-health.”
Released from gaol
The appeals court ruled that the correct sentence should have been 4 years, which would be reduced to 2 years after the 50 percent discount was applied. This would result in a non-parole of 1 year.
The NSWCCA granted the appeal and resentenced Mr W on 24 September 2014, which was more than two months after the new non-parole period had expired. However, Mr W had already been granted bail at the conclusion of the appeal hearing on 28 July.
“The court was of the view that it was inappropriate for the applicant to remain in custody any longer,” Justice Hulme concluded.