R v Bakhos Jalalaty [2010] NSWSC 1561 (20 December 2010)

Last Updated: 31 October 2011

NEW SOUTH WALES SUPREME COURT

CITATION:
R v Bakhos Jalalaty [2010] NSWSC 1561


JURISDICTION:


FILE NUMBER(S):
2009/7108

HEARING DATE(S):
17 May 2010, 6 July 2010, 4 August 2010, 16 August 2010, 17 August 2010, 29 November 2010, 30 November 2010, 20 December 2010

JUDGMENT DATE:
20 December 2010

PARTIES:
Regina
Bakhos Jalalaty

JUDGMENT OF:
James J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
T Game SC, H Dhanji SC - Crown
C Steirn SC, B Clark - Offender

SOLICITORS:
Commonwealth DPP - Crown
O'Brien Lawyers - Offender


CATCHWORDS:


LEGISLATION CITED:
Commonwealth Criminal Code - ss 307.1, 307.2, 307.11
Commonwealth Crimes Act Part 1B - S 16A(1), (2), 21E

CATEGORY:
Sentence

CASES CITED:
R v Sukkar [2006] NSWCCA 92; (2007) 172 A Crim R 151

TEXTS CITED:


DECISION:
I sentence you to imprisonment for 10 years to date from 2 June 2008. I fix a non-parole period of 6 years to date from 2 June 2008. The earliest date on which you will be eligible for release on parole will be 2 June 2014. In accordance with s 21E of the Crimes Act I state that the sentence and the non-parole period have been reduced because of your promises of future assistance and I specify that but for the promises of future assistance the sentence would have been one of imprisonment for 12 years with a non-parole period of 7 years 2 months.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

CRIMINAL LIST

JAMES J

MONDAY 20 DECEMBER 2010

2009/7108 REGINA v Bakhos JALALATY

REMARKS ON SENTENCE

1. HIS HONOUR: On 17 May 2010 Bakhos Jalalaty pleaded guilty before me to a charge that between 1 June 2006 and 2 June 2008 he conspired with Mark William Standen and others to import a substance, intending to use or believing that another person intended to use the substance to manufacture a controlled drug, the substance being a border-controlled precursor namely pseudoephedrine and the quantity being a commercial quantity,

2. The charge is a charge of conspiring to commit an offence under s 307.11 of the Commonwealth Criminal Code, for which the maximum penalty is imprisonment for 25 years or a fine of 5,000 penalty units or both.

3. The proceedings for the sentencing of the prisoner have been protracted. The proceedings on sentence commenced on 17 May 2010, were mentioned on a number of occasions and were continued on 16 August, 17 August, 29 November and 30 November. On 30 November the proceedings were stood over to today for delivery of these remarks on sentence and the formal passing of sentence.

4. Mark William Standen who is referred to in the charge against the prisoner has also been charged with a similar offence. Standen has pleaded not guilty to that charge and has maintained his plea of not guilty. A trial of Mr Standen on the charge of conspiring to commit an offence under s 307.11 of the Code and on other charges has been fixed to commence on 2 February 2011.

5. The evidence in the proceedings on sentence included:-

For the Crown:-

A core outline of facts which became Exhibit A in the proceedings on sentence.

A statement of facts which became Exhibit B in the proceedings on sentence.

A number of volumes of transcripts of recorded conversations, emails, faxes and other documents became Exhibits C to F. Affidavits by Ms Helen Brown, a solicitor in the Office of the Commonwealth Director of Public Prosecutions, which became Exhibit G. A volume of documents produced on subpoena by the New South Wales Crime Commission, which became Exhibit H. A letter from the New South Wales Crime Commission dated 30 November 2010 supplying information about assistance provided or promised to be provided by the prisoner which became Exhibit J. Statements about the amount and value of the drug that could have been manufactured using 300 kilograms of pseudoephedrine, which became Exhibits K and L. Certain other statements which became Exhibits M and N.

For the prisoner:-

1. A report about the prisoner by a forensic psychiatrist Dr Westmore dated 18 August 2010.

2. Extracts from records of the New South Wales Department of Corrective Services about the prisoner, who has been continuously in custody since he was arrested on 2 June 2008.

6. No oral evidence was given in the proceedings on sentence.

7. It is apparent that law enforcement authorities became aware of the conspiracy and, indeed, of the possibility of a conspiracy coming into existence, at a very early stage. The authorities conducted extensive electronic surveillance of the conspirators or potential conspirators, including recording conversations between Standen and Jalalaty and intercepting telephone conversations between them. The authorities obtained email correspondence between Jalalaty, Standen and another man named James Kinch. In the emails the conspirators used nicknames and aliases and code expressions in an attempt to conceal their identities and the true meaning of their communications. A system was devised and applied whereby draft emails could be viewed by the intended recipients without the emails being overtly sent.

The Facts of the Offence

8. The core outline of the facts of the offence is a document of only five pages. The statement of facts is a much larger document of 30 pages, with many pages of annexures containing transcripts of conversations between co-conspirators. The only objection by counsel for the prisoner to any part of either document was an objection to part of paragraph 10 of the Statement of Facts. I am satisfied that the part of paragraph 10 which was objected to is established to the requisite standard by other evidence to which no objection was taken.

9. In the sentencing of the prisoner I have endeavoured to take into account all of the contents of both Exhibits A and B (and the other exhibits) but will refer to only some of them in the account I will now give of the facts of the offence, that is of the nature and circumstances of the offence. In my account I will generally follow the structure of Exhibit B, in first stating some more general facts and then referring to some more specific facts.

More General Facts

10. As is alleged in the charge to which the prisoner pleaded guilty, there was between about 1 June 2006 and 2 June 2008 a conspiracy to import into Australia a quantity of the chemical pseudoephedrine, which is a border-controlled precursor under the Commonwealth Criminal Code. The parties to the conspiracy were Jalalaty, Standen, Kinch, a number of persons in the Netherlands collectively referred to as “the Dutch Syndicate” and some persons in Pakistan.

11. Jalalaty is an Australian citizen who was a director of a legitimate wholesale food importing and distribution business known as BJ’s Fine Foods, which conducted its operations at premises at Blacktown.

12. Another director of the business was Jalalaty’s wife, whom he married in 1998. Between 1980 and 1995, that is before she married Jalalaty, Mrs Jalalaty had been an officer in the Australian Federal Police. While with the Australian Federal Police she had met Standen, who was then also an officer in the Australian Federal Police. It was she who introduced Jalalaty to Standen.

13. During the period of the conspiracy Standen was the Assistant Director, Investigations, with the New South Wales Crime Commission. The functions of the New South Wales Crime Commission included investigating illegal drug trafficking and organised crime. Standen’s duties as a senior manager of the Commission included investigating organised crime syndicates, cultivating and managing police informants and managing highly sensitive information, including procedures used by Customs for detecting illicit drug importations. Standen was an experienced narcotics investigator and had worked in senior positions in the Australian Customs Service, the National Crime Authority and the Australian Federal Police.

14. Kinch is an Irish citizen who had lived in various parts of the world including Sydney. In 2003 Kinch became a registered informer for the Commission and as an informer was subject to the management of Standen.

15. Kinch had had a long association with members of the Dutch Syndicate, who were involved in international narcotics trafficking and money laundering.

16. The parties to the conspiracy agreed that the pseudoephedrine to be imported would be concealed in a shipment of rice from Pakistan to Jalalaty’s business.

17. Jalalaty’s role in the conspiracy would be to receive the shipment of rice with the pseudoephedrine concealed in it, in the course of the carrying on of his food importation and distribution business; to arrange for the clearance of the container in which the rice and pseudoephedrine would be packed; and to sell the rice so as to give the importation the appearance of legitimacy.

18. In October 2007 a test shipment of rice, which did not contain any pseudoephedrine, arrived in Sydney and was received by Jalalaty’s business.

19. A shipment of about 18,000 kilograms of rice, which was to have contained 300 kilograms of pseudoephedrine concealed in it, arrived in Sydney on 26 April 2008 for delivery to Jalalaty’s business. The shipment was offloaded, pending clearance by Customs and Quarantine authorities. Australian Federal Police officers examined the bags in which the rice was packed but found no pseudoephedrine.

20. On 28 May 2008 the consignment was delivered to the warehouse of Jalalaty’s business.

21. On or about 31 May members of the Dutch Syndicate were arrested in the Netherlands. On 31 May 2008 Kinch was arrested in Thailand. He is defending proceedings to extradite him to Australia. On 2 June 2008 Standen and Jalalaty were arrested in Sydney. They have remained continuously in custody since they were arrested.

More Specific Facts

22. I will now refer to some of the facts in the part of Exhibit B which is headed “Detailed Facts in relation to the offence”.

23. In the year 2000 Jalalaty purchased premises at Blacktown for his business, which had a licence to import food products.

24. In December 2005 Standen asked Jalalaty to allow an overseas’ friend of Standen to deposit a sum of money intended for Standen into Jalalaty’s business’s bank account. Jalalaty agreed to this course.

25. On 19 December 2005 a sum of just over $47,000 was deposited into Jalalaty’s business’s bank account. Jalalaty made payments to Standen out of the amount which had been deposited in the bank account.

26. In January 2006 Jalalaty had a meeting in Bangkok with Kinch. Jalalaty desired to obtain capital to expand the food importation section of his legitimate business and this accorded with Kinch’s plans to facilitate the importation of narcotics into Australia by the Dutch Syndicate.

27. By 25 February 2006 Jalalaty had received approximately $1,000,000 in cash from Kinch, for the purpose of expanding the food importation section of Jalalaty’s business. Standen was aware of the delivery of the cash and asked for, and received, some payments from Jalalaty out of the amount received by Jalalaty.

28. Between 28 February 2006 and 31 July 2006 Jalalaty invested $US 580,000 out of the money he had received from Kinch, through an investment broker named Bruce Way, who traded under the name of CWL Investments.

29. In April 2006 Jalalaty took a three year lease on new warehouse premises at Blacktown. The warehouse was to be used to hold an increased amount of stock “and to create a legitimate importation profile with Australian Customs”.

30. In November 2006 Mr Way advised Mrs Jalalaty that there would be delays in the payment of interest on the sums Jalalaty had invested with CWL. Jalalaty sought the assistance of Standen in seeking to recover the monies he had invested with CWL.

31. In January 2007 Jalalaty had a meeting in Dubai with Standen, Standen’s then girlfriend and Kinch. Standen’s girlfriend recorded in her diary that Kinch “thought I wasn’t to be trusted”. It can be inferred that Kinch was uncomfortable discussing the planned importation in the presence of Standen’s girlfriend.

32. Negotiations took place between members of the Dutch Syndicate and persons in Pakistan for a shipment of pseudoephedrine from Pakistan to Australia.

33. In June 2007 Jalalaty was sent packages of samples of food products by members of the Dutch Syndicate.

34. In June 2007 Jalalaty sold the business BJ’s Fine Foods but he remained as a consultant to the business.

35. On 26 June 2007 a fax was sent to BJ’s Fine Foods purportedly by a company in Pakistan called MDL, confirming that BJ’s Fine Foods was willing to take delivery of food and beverage products from the Middle East, India or Pakistan.

36. In late June 2007 an associate of Standen’s visited Mr Way and arranged for Mr Way to attend the New South Wales Crime Commission the following day. At the New South Wales Crime Commission Mr Way was interviewed by Standen about Jalalaty’s lost investment funds. Standen told Mr Way that no records would be made of the meeting.

37. On 1 July 2007 Kinch sent an email to Jalalaty in the following terms:-

“hi there, I saw sales managers yesterday they are happy to go on, they raised a few points but I suggested that they run everything by you as third hand messages always cause mix-ups. They say there is a good profit margin for you to work with so all sounds good. Just one thing can you please remember NOT to mention in any way shape or form anything to do with your ex mrs job or maurice’s business as this would finish the whole thing !! take care, Hilary and bob”.

38. The reference “sales managers” in the email was a reference to other parties to the conspiracy. The reference to “your ex mrs job” was a reference to Mrs Jalalaty having been a police officer and the reference to “maurice’s business” was a reference to Standen’s occupation as a law enforcement officer. “Hilary” and “Bob” were aliases.

39. On 25 August 2007 Kinch sent an email to Jalalaty in which he said inter alia, “Are you 100% sure that you want to? I only ask as I need the test doing before I can start the serious one as there is too much at stake to mess serious people about ...” At about this time Kinch was observed in the Netherlands with members of the Dutch Syndicate.

40. On 25 August 2007 Jalalaty replied to Kinch, “I am 100% with you”.

41. On 5 September 2007 Jalalaty received a fax purporting to be from Elegant Hosiery Pty Limited Lahore, acting on behalf of MDL. The fax provided a container number and stated that the container with 1700 kilograms of rice would arrive in Sydney within twenty days of its departure from Pakistan.

42. On 15 September 2007 Jalalaty and Standen met at a café in Sydney. They discussed the incongruity of rice being sent by a company named Elegant Hosiery and whether such a name would attract attention on the part of the authorities. Standen gave advice to Jalalaty about how Jalalaty should respond in the event of his being arrested. Standen also spoke about Customs procedures for inspecting imported containers. Jalalaty and Standen also discussed the profit that could be made from the venture. Standen said, “They will probably make from 100 to 120 a kilo”. Jalalaty then said, “So if they bring in 100 kilos it makes 12 million profit and he goes half with ..... biggest mule and we go thirds”.

43. On 4 October 2007 the test shipment of 1700 kilograms of rice, not containing any pseudoephedrine, arrived in Sydney, consigned to BJ’s Fine Foods Blacktown. On 7 November 2007 the rice was delivered to BJ’s Fine Foods warehouse. In an email Kinch told Jalalaty to sell all the rice and Jalalaty sold all the rice.

44. On 24 October 2007 Mrs Jalalaty arranged an international money transfer to Pakistan as payment for, or towards, the next shipment.

45. On 8 November 2007 a fax was sent by MDL to Jalalaty acknowledging receipt of the payment and saying that, as soon as a further payment was received, MDL would continue to finalise the second shipment. Dutch words in the fax and a Dutch fax number in the fax header indicate that the fax was sent from the Netherlands.

46. In mid November 2007 Kinch and Jalalaty had a meeting in Dubai.

47. On 23 November 2007 Standen and Jalalaty had a meeting in Sydney. Jalalaty reported on his meeting with Kinch in Dubai. Jalalaty said that there would be 60 bags in the next shipment “that’s 300 kilos”. Standen said “Right down the back of the container”. Jalalaty and Standen discussed the amount of money that would be made on the basis of $100,000 a kilo. Standen discussed Customs inspection procedures, as well as his own previous experience with investigations into the importation of drugs concealed in food.

48. On 5 December 2007 Mrs Jalalaty arranged a further international money transfer to Pakistan.

49. On 12 December 2007 Standen and Jalalaty had a meeting in Sydney. Jalalaty told Standen that Kinch had advised him not to access emails at home but at internet cafes.

50. At a meeting between Standen and Jalalaty on 10 January 2008 Jalalaty said that “the next (shipment) will be a live one”.

51. In an email from Standen to Kinch on 20 February 2008 Standen said, with reference to Jalalaty (who in communications was often referred to as “Myrtle” and as being female):-

“I will do some necessary coaching (again). I will be cautious in believing everything she says. I need her help now, so I will stick with her but with a more wary approach this time”

52. On 21 February 2008 in an email from Kinch to Standen, Kinch said with reference to Jalalaty:-

“She is a proper Walter Mitty, you cannot believe a word she says”.

53. On 26 February 2008 an email purportedly from MDL in Dubai was sent from a Dutch fax number to Jalalaty’s home fax number, informing Jalalaty that a container was ready to depart from Pakistan and that the shipping documents would be sent as soon as the ship departed.

54. On 2 March 2008 Jalalaty viewed a coded draft email from Kinch, in which Kinch referred to a meeting he had had with members of the Dutch Syndicate, at which some members of the Syndicate had said that they were upset with Jalalaty’s behaviour and in which Kinch told Jalalaty “Please stop and think before doing silly things”.

55. On 11 March 2008 Standen and Jalalaty had a meeting in Sydney. Standen discussed how Customs select which containers being imported should be examined and the procedures used by Customs in examining those containers.

56. On 14 March 2008 Kinch sent a message to Standen saying, “I need you to keep an eye on Myrtle as she is young and naïve”.

57. On 31 March 2008 a container ship left Pakistan with a container consigned to BJ’s Fine Foods.

58. On 1 April 2008 Kinch sent an email to Standen in which Kinch said:-

“Can you assist Myrtle with getting her answers in place”.

59. On the same day Jalalaty viewed a draft email from Kinch, which included:- :-

“Listen this is important for you. This is your insurance. If by any chance there was a problem, here is the scenario”.

Kinch then outlined the explanation Jalalaty should give, if he was apprehended, including that he had been informed by the exporter in Pakistan that there had been a change in the supplier of the goods.

60. Jalalaty responded with a draft email saying “I understand your scenario and I will keep it for insurance”.

61. On 26 April 2008 a vessel arrived in Sydney with the container consigned to BJ’s Fine Foods. The container was unloaded from the vessel. Jalalaty and Standen expected the container to contain pseudoephedrine concealed within the rice.

62. Considerable delay was experienced by Jalalaty in receiving original shipping documents for the consignment so as to enable it to be cleared.

63. On 10 May 2008 Kinch sent an email to Standen containing false information about an alleged shipment of methylenedioxymethyl-amphetamine from China, concealed in bath salts.The email was sent by Kinch to ensure that authorities in Sydney were diverted to another investigation, so that resources would not be allocated to the container consigned to BJ’s Fine Foods.

64. On 15 May 2008 Jalalaty travelled to Dubai in a final attempt to secure the original shipping documents required to clear the shipment, after weeks of telephone calls and emails to the suppliers in Pakistan had been unsuccessful. In Dubai he had a meeting with Kinch.

65. On 19 May 2008 Jalalaty returned to Sydney. On the same day Kinch emailed Standen. In the email Kinch spoke of Jalalaty’s energy and enthusiasm but “she handles like a locomotive with full steam without tracks and in the dark, talk about a bull in a china shop”.

66. On 23 May 2008 the original bill of lading for the consignment arrived from Pakistan and the container was able to be cleared.

67. On 26 May 2008 Standen telephoned a Customs liaison officer to find out what jobs Customs were looking at and whether there was any interest by Customs in the consignment to BJ’s Fine Foods.

68. On 28 May 2008 the consignment of rice was delivered to BJ’s Fine Foods at Blacktown.

69. 0n 31 May 2008 Standen saw a draft email from Kinch saying with reference to Jalalaty:-

“I am so happy you are keeping an eye on Mirt and the kids as I was getting really worried. She did not seem to be coping that well”.

70. On the same day Jalalaty saw a draft email from Kinch, which discussed the recent arrest of the Dutch Syndicate members.

71. As previously noted, Standen and Jalalaty were themselves arrested on 2 June 2008.

Some findings of fact about the offence

72. I will state some findings of fact about the nature and circumstances of the offence, some of which repeat facts I have already found earlier in these remarks but which do not repeat all of the facts I have already found. I am mindful that facts adverse to the prisoner can be found only if I am satisfied of them beyond reasonable doubt, whereas facts favourable to the prisoner can be found on the balance of probabilities.

73. The conspiracy to which the prisoner was a party was a conspiracy to import a single quantity of pseudoephedrine. Pseudoephedrine is a precursor, which was intended to be used in the manufacture of a controlled drug. The quantity of pseudoephedrine agreed to be imported was the very large amount of 300 kilograms, which is 250 times the commercial quantity for pseudoephedrine set by the Commonwealth Criminal Code. No pseudoephedrine was actually imported.

74. The motive of the conspirators, including the prisoner, was to share in the very large profit expected to be gained from the carrying out of the conspiracy.

75. In the proceedings on sentence counsel for the prisoner submitted that I should exercise caution in considering the evidence of the Crown witnesses Mr Green, a crime scene scientist, who said that 300 kilograms of pure pseudoephedrine hydrochloride would be expected, with the use of other necessary chemicals, to produce a maximum of 228 kilograms of methylamphetamine hydrochloride and federal agent Fox, who estimated that 228 kilograms of methylamphetamine hydrochloride would have a potential value of more than $36 million.

76. I accept that I should not simply adopt the figures stated by these witnesses. However, I do make a finding that 300 kilograms of pseudoephedrine could have been used to produce a large amount of methylamphetamine hydrochloride, having a value of many millions of dollars.

77. It is apparent from some of the recorded conversations between Standen and Jalalaty that Jalalaty was aware of the magnitude of the criminal enterprise and believed that he would make millions of dollars as his share of the profits of the criminal enterprise.

78. The conspiracy involved a high degree of planning, although I accept that most of the planning was done by conspirators other than Jalalaty.

79. The conspiracy continued over a long period. The period alleged in the charge was from about 1 June 2006 to 2 June 2008, the date of the arrest of Standen and Jalalaty. In the proceedings on sentence a large amount of evidence was admitted, without objection, of events occurring before 1 June 2006 (see, for example, paragraphs 42 to 51 of the statement of facts and the supporting documents).

80. In the proceedings on sentence counsel for Jalalaty submitted, as is clearly the case, that Jalalaty was aware of Standen’s position as a senior law enforcement officer and at times appeared to submit that this factor in some way mitigated Jalalaty’s criminality. I will deal a little later in these remarks with the comparative roles in the conspiracy of Jalalaty and Standen. However, in my opinion, the fact that the conspiracy would involve corrupt conduct by a senior law enforcement officer tends to aggravate the seriousness of the conspiracy

81. In its written submissions the Crown anticipated that submissions would later be made on behalf of Jalalaty that he had become a party to the conspiracy, only as the result of pressure from Kinch, after Jalalaty had become unable, through the loss of the monies he had invested with CWL, to repay the monies which Kinch had lent him and that this measure of duress was a mitigating factor. I infer that the Crown’s anticipation of submissions of this kind was based on parts of the report by Dr Westmore in which Dr Westmore recorded an account given to Dr Westmore by the prisoner about the circumstances of his offending.

82. Ultimately, no such submissions were made by counsel for Jalalaty. It was conceded by counsel for Jalalaty that it was not the case that Jalalaty had become a party to the conspiracy because of pressure exerted on him by Kinch as a result of Jalalaty losing the money Kinch had lent him.

83. Earlier in these remarks I referred to Jalalaty’s role in the conspiracy. His role was to develop his legitimate food importing and distribution business so that the importation of the rice with pseudoephedrine concealed in it would be less likely to attract the attention of the authorities; to take the usual steps required on an importation of goods, such as arranging for the production of shipping documents to enable the clearance and release of the container holding the goods after it arrived in Sydney; and to arrange for the sale of the rice in the ordinary course of his business so as to make its importation seem a legitimate business transaction. Jalalaty was performing this role, up to the time he was arrested. In performing his role Jalalaty made a number of overseas trips. He performed his role energetically.

84. It was submitted by counsel for Jalalaty that, of the three conspirators Kinch, Standen and Jalalaty, Jalalaty had “the most minor role” and counsel for the Crown conceded that Jalalaty’s culpability, though grave, was not as grave as that of Kinch and Standen.

85. Jalalaty’s role as an apparently legitimate importer of foodstuffs was a crucial part of the conspiracy and I find that he should be regarded as a principal. However, I accept that his role was somewhat less than that of Kinch or Standen and that his culpability, though grave, was not as grave as that of Kinch or Standen.

86. I take into account that Kinch was an experienced international criminal and that he carried out most of the negotiations with members of the Dutch Syndicate. Standen had the important role of corruptly advising the other conspirators and corruptly using resources available to him within the New South Wales Crime Commission and with other agencies such as Customs, to further the carrying out of the criminal enterprise.

87. That Jalalaty should be regarded as being at a lower level than Kinch and Standen is further demonstrated by the directions, advice and reprimands each of the other two from time to time gave to Jalalaty and the communications between Kinch and Standen about the need to supervise and monitor Jalalaty and the comments made by Kinch and Standen about what they perceived as Jalalaty’s naivety and impetuosity.

88. Each of Standen and Kinch gave Jalalaty advice about what he should say to the authorities in the event of his being arrested. Jalalaty followed Standen’s advice when he was interviewed after being arrested.

89. The Crown accepted, and I find, that Jalalaty was naïve and inexperienced in the importation of illicit drugs and that he was to some extent taken advantage of by the other conspirators. However, the Crown disputed, and I do not find, that Jalalaty was regarded as “something of a joke” by Kinch and Standen

General subjective circumstances

90. The prisoner did not give evidence in the proceedings on sentence. A pre-sentence report was prepared and forwarded to the Court but neither counsel tendered it in the proceedings on sentence.

91. The principal source of information about the subjective circumstances of Jalalaty is Dr Westmore’s report. Part of Dr Westmore’s report records an account of his offending behaviour given by the prisoner to Dr Westmore when Dr Westmore saw the prisoner on 24 July 2010. The Crown objected to this part of the report being used for any purpose other than as part of the history given to Dr Westmore on which Dr Westmore had partly based his opinions about the prisoner and I made a ruling to that effect.

92. However, I did not understand the Crown to object to my using other parts of Dr Westmore’s report in which he recorded what the prisoner had told him as being evidence of the truth of the prisoner’s assertions and the following account of the prisoner’s subjective circumstances is based on those other parts of Dr Westmore’s report.

93. The prisoner was born in Lebanon on 19 December 1962. He migrated to Australia with his parents when he was 8 years old.

94. The prisoner was married for the first time in about 1987. The marriage lasted about 3 years. There is a son of the marriage, now 21 years old, who visits his father in prison.

95. The prisoner met his present wife in 1993. They married in 1998 and the marriage is still subsisting. There are two children of the marriage. The prisoner’s wife and children visit the prisoner in prison.

96. For some years down to the time of his arrest the prisoner conducted his own legitimate food distribution business.

97. Apart from the present offence, the prisoner has no criminal history.

98. The prisoner is being held in a form of protective custody and he is confined alone in his cell for 20 hours a day. He does have access to television, radio and books and receives regular visits from members of his family and friends.

99. Further information about the prisoner’s present and likely future conditions of custody is contained in Exhibit J, which I will deal with later in these remarks.

100. In Dr Westmore’s opinion, the prisoner is not suffering from a major depressive disorder and Dr Westmore did not identify any psychotic symptoms. In Dr Westmore’s opinion, it is probable that at times the prisoner becomes depressed and anxious in mood.

Commonwealth Crimes Act Part 1B

101. Under section 16A(1) of the Crimes Act I am required to impose a sentence or to make an order that is of a severity appropriate in all the circumstances of the offence.

102. Section 16A(2) provides that, in addition to any other matters, a sentencing court must take into account such of the matters listed in sub-section (2) as are relevant and known to the court. I will now refer to these matters.

(a) The nature and circumstances of the offence have already been considered by me earlier in these remarks.

(b) (c) (d) These matters are not applicable in the present case.

(e) No injury, loss or damage in fact resulted from the offence, because no pseudoephedrine was ever imported.

(f)(g)(h) I will deal separately with each of these matters later in these remarks.

(fa) No submission was made to me that this matter is relevant.

(j) I accept that there is little need for personal deterrence.

(k) I take into account the need to ensure that the prisoner is adequately punished for the offence.

(m) The character, antecedents, cultural background, age, means and physical or mental condition of the offender – I have already dealt with these matters, so far as they are relevant and known to the court.

(n) I accept that the prisoner has good prospects of rehabilitation.

(p) I accept that a sentence of imprisonment will probably have some effect on the prisoner’s wife and children but no submission was made in the proceedings on sentence that the effect would be unusual or exceptional.

103. Apart from the matters listed in s 16A(2), I am required to take into account the need for general deterrence, which is an important matter in sentencing for drug offences.

The prisoner’s plea of guilty

104. A sentencing court is required to take into account the fact that the offender pleaded guilty to a charge of the offence (s 16A(2)(g)).

105. An issue which arose in the proceedings on sentence was whether the prisoner’s plea of guilty should be regarded as an early plea. To resolve this issue it is necessary to refer to some parts of the history of the criminal proceedings against the prisoner.

106. In late June 2008, that is not long after his arrest, counsel then acting for Jalalaty raised with an officer of the New South Wales Crime Commission the possibility of Jalalaty providing assistance to the New South Wales Crime Commission and the Australian Crime Commission. The officer of the New South Wales Crime Commission advised Jalalaty’s counsel to deal only with the Australian Crime Commission. Counsel approached the Australian Crime Commission but the Australian Crime Commission was advised by the Australian Federal Police not to have any dealing with Jalalaty.

107. In June 2009 an investigator with the Police Integrity Commission contacted Jalalaty’s present counsel and asked whether Jalalaty might be prepared to assist the Police Integrity Commission in a matter apparently connected with the present offence. On 30 June 2009 a meeting was held at the office of the Police Integrity Commission, which was attended by, among others, Jalalaty’s counsel and officers of the Australian Federal Police. The meeting was brief. Jalalaty’s counsel received the impression that the Australian Federal Police were not interested in receiving information from Jalalaty.

108. A joint trial of Jalalaty and Standen on charges including the charge to which Jalalaty has pleaded guilty was fixed to commence in February 2010. On 16 December 2009 that trial date was vacated on the grounds that the High Court had heard and had reserved judgment on two appeals involving charges of conspiracy under Commonwealth law, the judgments in which might have ramifications for the trial of Jalalaty and Standen, and that it was undesirable to proceed with the joint trial until after the High Court had handed down its decisions.

109. Judgments in the two appeals were handed down by the High Court and a fresh date of 31 May 2010 was fixed for a joint trial of Standen and Jalalaty. A consequence of Jalalaty pleading guilty on 17 May 2010 was that the trial date of 31 May 2010 had to be vacated.

110. It was submitted in the proceedings on sentence by counsel for Jalalaty that by reason of the making in 2008 and 2009 on behalf of Jalalaty of what were described as “overtures”, which had been rebuffed by the Commonwealth authorities, Jalalaty’s plea of guilty should be regarded as an early plea or a plea entered at the first reasonable opportunity.

111. I do not accept this submission. Even if overtures to assist were made by Jalalaty and rejected, it would still have been reasonably open to Jalalaty to enter a plea of guilty. Jalalaty did not plead guilty, or indicate that he would plead guilty, until May 2010, nearly two years after he had been arrested and after one trial date had been fixed and vacated and another trial date had been fixed, which was then only about two weeks away.

112. I find that the plea of guilty was a late plea of guilty and not a plea of guilty entered at the first reasonable opportunity and this finding reduces the allowance which should be made for Jalalaty’s willingness to facilitate the course of justice.

113. A court sentencing a Commonwealth offender is not required to quantify a separate discount for a plea of guilty and I do not propose to do so in the present case, particularly as the plea of guilty overlaps with other matters such as cooperation or assistance.

The prisoner’s cooperation

114. Paragraph (h) of section 16A(2) of the Crimes Act requires a sentencing court to take into account, so far as is relevant and known to the court, the degree to which the offender has cooperated with law enforcement agencies in the investigation of the offence or of other offences. What is often referred to as “assistance to law enforcement authorities” can be taken into account as falling within this paragraph.

115. In considering the prisoner’s plea of guilty I summarised some of the history of the criminal proceedings against the prisoner up to the time of his entering his plea of guilty.

116. On 13 May 2010, shortly before the prisoner entered his plea of guilty, there was a meeting between senior counsel for Jalalaty and senior counsel for the Crown, solicitors in the Office of the Commonwealth Director of Public Prosecutions and Australian Federal Police officers. Senior counsel for Jalalaty was informed that, if Jalalaty changed his instructions to his legal advisers, pleaded guilty and offered to provide assistance, officers of the Australian Federal Police would conduct an induced interview of Jalalaty and make an assessment of the value of the offered assistance.

117. On 17 May 2010, after Jalalaty had entered his plea of guilty, I was informed by the Crown Prosecutor that there were real prospects of Jalalaty giving evidence for the Crown at a trial of Standen. It was clearly then contemplated by the prosecution that Jalalaty would be interviewed by officers of the Australian Federal Police and an assessment made of the value of any assistance from Jalalaty in the prosecution of Standen.

118. However, Jalalaty declined to be interviewed by the Australian Federal Police, giving as his ground what was said to be the position taken by the Australian Federal Police at the meeting on 30 June 2009, and, instead of being interviewed by the Australian Federal Police, he made a long statement of several hundred pages to officers of the New South Wales Crime Commission.

119. In the proceedings on sentence I was informed by the Crown Prosecutor that the Crown will not be calling Jalalaty as a witness at Standen’s trial. Reference was made to decisions of this Court in which it has been held that the discount in sentencing allowed for assistance to the authorities is for assistance that is accepted and used by them and, if the authorities reject the proffered assistance and it is not used, the prisoner will not have given any assistance and will not be entitled to any discount on that basis.

120. On 29 November 2010 a letter of 18 pages from the New South Wales Crime Commission detailing assistance allegedly provided by Jalalaty was handed to the Crown. However, this letter was later withdrawn and replaced by a much shorter letter from the New South Wales Crime Commission dated 30 November 2010, copies of which became Exhibit J in the proceedings on sentence. Exhibit J consists of a complete copy of the letter of 30 November 2010 together with a redacted copy in which certain parts of the full letter which are asserted to be confidential are blacked out.

121. Exhibit J is confined to assistance and promised assistance by Jalalaty, otherwise than in connection with the prosecution of Standen.

122. In Exhibit J it is stated that on 12 May 2010 Jalalaty through his lawyers advised the New South Wales Crime Commission that he wished to become a human source, that is an informer, for the Commission. Jalalaty became registered as a human source for the Commission. Jalalaty’s wife was also registered as a human source.

123. In Exhibit J it is stated that Jalalaty did not oppose any information by way of assistance he provided to the Commission subsequently being provided to the Australian Federal Police. Jalalaty’s reasons for not wishing to deal directly with the Australian Federal Police included that he had persuaded his wife to provide assistance (and her assistance would include information about corruption on the part of certain Australian Federal Police officers) and that he had been advised by the barrister who had been his counsel in 2008 that in the barrister’s experience the Australian Federal Police did not deal fairly with offenders who sought to provide assistance to the Australian Federal Police and thereby obtain a benefit in being sentenced. Without necessarily accepting that Jalalaty’s reasons for not dealing directly with the Australian Federal Police are well founded, I do not consider that I should regard his reluctance to deal directly with the Federal Police as adversely affecting the allowance which might be made in his favour for assistance.

124. Exhibit J proceeds to supply particulars of the assistance provided and promised to be provided by Jalalaty. I do not propose to disclose any of these particulars in these remarks.

125. Exhibit J states that the Commission has conducted enquiries for the purpose of checking the accuracy of the information provided by Jalalaty. Enquiries made so far have corroborated parts of that information and enquiries by the Commission are continuing. The Commission assesses the value of Jalalaty’s assistance as being medium to high and, subject to the result of pending investigations, potentially high.

126. Exhibit J states that as a result of his giving assistance Jalalaty has placed himself at risk and the level of risk is assessed by the Commission as being high. While in custody Jalalaty has received a card from Kinch, indicating that Kinch is aware of where Jalalaty is. Exhibit J states that “Jalalaty has been in protective custody for much of his time on remand and is likely to remain in protective custody until he completes his sentence”. Exhibit J also states that Mrs Jalalaty is also at risk and has sold the family home and has relocated. I accept these parts of Exhibit J.

127. The Crown Prosecutor informed me in the proceedings on sentence that the Crown accepts the New South Wales Crime Commission’s assessment of the value and significance of the assistance provided and promised to be provided by Jalalaty.

128. Although the Crown will not be calling Jalalaty as a witness in Standen’s trial, it is likely that the Crown will call Mrs Jalalaty as a witness and the Crown accepts that part of the assistance provided by Jalalaty has been to encourage his wife to come forward and assist the authorities. Mrs Jalalaty demonstrated in a short hearing held last week her willingness to give evidence for the Crown at Standen’s trial.

129. Counsel for the prisoner referred me to the decision of the Court of Criminal Appeal in R v Sukkar [2006] NSWCCA 92; (2007) 172 A Crim R 151, in which it was said that a combined discount of more than 40 percent for a plea of guilty and assistance should be granted only very exceptionally, if at all, where there is no evidence that the offender will spend the sentence or a substantial part of it in more onerous conditions of custody than those of the general prison population.

130. Counsel for the prisoner submitted that in the present case there was evidence in Dr Westmore’s report, Exhibit J and the records of the Department of Corrective Services that the prisoner had spent his time on remand and would spend his sentence in more onerous conditions of custody than those to which members of the general prison population are subject. The Crown had accepted in the proceedings on sentence that the prisoner had been subject, and would continue to be subject, to more than usually onerous conditions of custody. In these circumstances, it was submitted, the prisoner should receive a combined discount for his plea of guilty and assistance of not less than 50 percent.

131. I do not consider that the prisoner should receive a combined discount as high as 50 percent. My principal reason is that the plea of guilty was not an early plea of guilty entered at the first reasonable opportunity but a plea entered at quite a late stage in the criminal proceedings against the prisoner. I consider that a combined discount for the plea of guilty and the assistance should be in the vicinity of 40 percent. I am, however, mindful of criticisms by the High Court of a two-stage approach to sentencing, as distinct from taking into account the plea of guilty and the assistance as part of a synthesis of all relevant factors.

Contrition

132. Under s 16A(2)(f) of the Crimes Act a sentencing court is required to take into account the degree to which the person being sentenced has shown contrition.

133. Counsel for the prisoner submitted that I should infer contrition on the part of the prisoner from his plea of guilty and his assistance. Counsel referred to parts of Dr Westmore’s report in which Dr Westmore recorded some of the prisoner’s assertions to Dr Westmore.

134. Counsel for the Crown disputed that the prisoner had shown contrition. The Crown submitted that the plea of guilty had been entered in the context of a strong Crown case and that the offer of assistance had been prompted by pragmatism, that is a desire to obtain a less severe sentence, and not by contrition.

135. The prisoner did not give evidence in the proceedings on sentence. The account of his offending which he gave to Dr Westmore is different in important respects and more exculpatory of him than what I have found to be the facts of the prisoner’s offending. In my opinion, there is force in the Crown’s submissions. I am not satisfied that the prisoner has shown contrition.

Comparable cases

136. I was informed in the proceedings on sentence that there is no previous case in which a person has been sentenced for an offence under s 307.11 of the Criminal Code.

137. There have been cases of sentences for offences under s 307.1 and s 307.2 of the Criminal Code. However, these cases are of limited assistance, because s 307.2 applies to the importation of a marketable quantity as distinct from a commercial quantity and, although s 307.1 applies to a commercial quantity, the maximum penalty is imprisonment for life and not 25 years.

The sentence

138. Having considered all other available sentences, I am satisfied that no sentence other than a sentence of imprisonment is appropriate in all the circumstances of this case.

139. The sentence of imprisonment will commence on 2 June 2008, the date on which the prisoner was arrested and from which he has remained in custody.

140. The assistance from the prisoner described in Exhibit J includes promises to provide assistance to law enforcement authorities in the future and I am required by s 21E of the Crimes Act to specify the amount by which the prisoner’s sentence has been reduced by reason of those promises to provide future assistance.

141. Having regard to the nature and circumstance of the offence, the plea of guilty, the assistance, the other subjective features of the prisoner, all of the matters under s 16A(2) of the Crimes Act which are relevant and known to me and to general principles of sentencing, I have determined that I should impose a head sentence of imprisonment of 10 years.

142. As the head sentence exceeds 10 years I must fix a non-parole period or make a recognisance release order. I have determined that I should fix a non-parole period. There is no normal ratio for a non-parole period to bear to the head sentence for a Commonwealth offence. Having taken into account all of the relevant circumstances, I consider that the minimum period that justice requires that the prisoner serve in custody is 6 years and I fix a non-parole period of 6 years.

143. Bakhos Jalalaty, I sentence you to imprisonment for 10 years to date from 2 June 2008. I fix a non-parole period of 6 years to date from 2 June 2008. The earliest date on which you will be eligible for release on parole will be 2 June 2014. In accordance with s 21E of the Crimes Act I state that the sentence and the non-parole period have been reduced because of your promises for future assistance and I specify that but for the promises of future assistance the sentence would have been one of imprisonment for 12 years with a non-parole period of 7 years 2 months.

144. I am bound to explain to you what the effect of the sentence is. It means that you will serve a minimum term of imprisonment of 6 years before being eligible for release on parole, which release would be available for a period of up to a further 4 years. After 6 years you may be released on parole. If so, that would be subject to supervision as well as subject to various conditions, including a condition that you be of good behaviour. If during any period of release on parole you re-offend or breach any of the conditions of parole, then that parole may be revoked, in which event you will be liable to return to prison to serve the balance of the sentence. Alternatively, the parole may be amended to provide a partial return to prison or altered provisions as to the supervision or conditions to which you would be subject.

145. I further inform you that if you do not comply with your undertaking to give assistance in the future then the Commonwealth Director of Public Prosecutions will be entitled to appeal to the Court of Criminal Appeal which may then re-sentence you. In so doing the Court of Criminal Appeal would take into account the remarks that I have made about what the appropriate sentence would be but for your promises to assist in the future. It will be a matter for that court to determine in all the circumstances what an appropriate substituted sentence would be.

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LAST UPDATED:
13 September 2011