R v Zaied [2019] NSWDC 909

District Court New South Wales

Medium Neutral Citation: R v Zaied [2019] NSWDC 909 Hearing dates: 23 July 2019 Decision date: 26 July 2019 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Sentenced to a total term of imprisonment of 6 years 4 months; non-parole period 3 years 10 months; forfeiture order for $10,330 of currency. Catchwords: CRIME – Commonwealth - sentence – import marketable quantity border controlled drug – deal with proceeds crime – foreign national acting on behalf of foreign criminal group – planning and premeditation – comparative sentences – pleas of guilty. Legislation Cited: Commonwealth Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) (Criminal Code) Cases Cited: DPP(Cth) v De La Rosa [2010] NSWCCA 194 DPP(Cth) v Gow [2015] NSWCCA 208 R v Engert (1995) 84 A Crim R 677 R v Holland [2011] NSWCCA 65 R v Nakhla [2011] NSWCCA 143 R v Niketic [2002] NSWCCA 425 R v Nikolovska [2010] NSWCCA 169. R v Palu [2002] NSWCCA 381 R v Qutami (2001) 127 A Crim R 369 R v Xiao [2018] NSWCCA 4 Category: Sentence Parties: Regina (Crown) Bilal Zaied (offender) Representation: Counsel: Mr G James QC (offender)

Solicitors: Ms Ibbett (DPP (Cth)) Mr Abbas (offender) File Number(s): 2018/00213412 Publication restriction: No

Judgment 1. Bilal Zaied appears today for sentence in relation to two offences. One offence is an offence contrary to s 307.2(1) Criminal Code (Cth) hereinafter referred to as the Code, to be considered in conjunction with s 11.2(1) of the Code. That is an allegation that the prisoner between 1 January 2018 and 1 March 2018 did aid and abet the commission of an offence namely the importation of a marketable quantity of the border controlled drug, namely cocaine. That offence carries a maximum penalty of 25 years imprisonment. 2. The second offence is an offence contrary to s 400.9(1A) of the Code and that is an offence of dealing with money namely $10,330 worth of currency and it being reasonable to suspect that the money was proceeds of crime and the value of the money was less than $100,000. I appreciate in the Code there is a gradation of crimes under that provision by reference to the amount of proceeds of crime recovered. The maximum penalty for that offence is imprisonment for two years. 3. The prisoner was arrested as I understand it, endeavouring to leave Australia, firstly, in March 2018. I was informed by the Crown and by Mr James QC that the prisoner was in custody for a month and two days. I bear in mind to his favour, that he was then released, although he could not leave Australia. He was on bail and he was subsequently easily located and arrested on 11 July 2018 in respect of the two offences and has been in custody since that date. 4. I am proposing to backdate the prisoner's sentence to a date one month and three days before 11 July 2018, so the orders I make involve a sentence that will start on 8 June 2018. 5. The facts in relation to this prisoner I need to relate because as is apparent from any understanding of the Commonwealth sentencing procedures and of people in the operation of s 16A(2) of the Act I am required to identify precisely what the prisoner did. These are an agreed statement of facts I hasten to say. 6. The facts state in summary form in para 1, that the prisoner between 4 January 2018 and 1 March 2018 was part of an "Australian/French syndicate that imported cocaine concealed primarily within Pringles tubes and other food items". The prisoner is specifically charged with aiding and abetting the import of a marketable quantity of the border controlled drug cocaine in a quantity of 1.95 kilograms. A marketable quantity of that particular border controlled drug may be between above 2 grams and below 2 kilograms. The charge is concerned with 14 separate consignments that arrived in Australia from France during the charge period. 7. The prisoner's actions are categorised in four discrete areas. 1. Tracking consignments whilst in transit from France to Australia. 2. Passing on prospective consignee details to unknown French nationals. 3. Providing directions and instructions to Australian based syndicate members to facilitate the collection of the incoming consignments. 4. Receiving receipts of payments made by Australian based syndicate members to unknown syndicate members based offshore and passing those receipts onto other unknown syndicate members. 1. As a prelude to the matters I am concerned with, the facts state that the prisoner between 7 November 2017 and 29 November 2017 made a number of payments through MoneyGram International and they are identified in para 4 of the facts. These payments included a payment made on 7 November 2017 of $7,190 sent to a person called Vincent Hamon in France, a payment made on 15 November 2017 of $7,199 made to Marine Mauriac through MoneyGram International, a payment on 23 November 2017 of $2,390 made to Lilya Bouchair and on 25 November a payment of $2,885 made to Lazhar Zaied. 2. I should point out in relation to the name Lazhar Zaied that that is a name that appears in medical records that have been produced in relation to family members of the prisoner. These payments were made not by the prisoner but in the name of other people, including a person by the name of 'Frandon', who is described in the facts as being in effect a person in Australia organising people to receive the drugs that were sent from France. 3. There are in the facts, details of messages received by the prisoner in relation to the payment of monies and also details provided to other people by the prisoner through WhatsApp, of images or photographs of MoneyGram receipts. 4. In relation to the charge of aiding and abetting the importation of cocaine the statement of facts refers to what are described as 14 consignments of quantities of cocaine, three consignments that apparently arrived in Australia on 4 January 2018, another ten consignments which arrived in Australia on 26 February 2018 and a further consignment that arrived the day before 25 February 2018. The modus operandi of the importing of the cocaine to various named recipients within Australia was to send cocaine in smaller quantities to different addresses, including I hasten to say Ms Frandon, in circumstances where the total number of consignments by pure weight added up to the 1.95 kilograms. 5. The three consignments addressed to different people in Bondi that arrived on 4 January 2018 had a pure weight in the first instance of 152.7 grams, the second instance 80.7 grams, and the third instance 89.9 grams. Each of the consignments of cocaine were found in Pringles tubes. I do not need to recount the names of the people who were the consignees. 6. The prisoner, when he was finally arrested, had to give up his phone to police. A later examination of that phone showed that there were 261 messages exchanged between one of those recipients, Shaun Pike, and the prisoner between 1 January 2018 and 7 February 2018 thus establishing the prisoner knew that person. 7. Between 1 January 2018 and 4 January 2018, the date of the arrival of those first three consignments in Australia, the prisoner tracked those consignments using his mobile phone. The prisoner also, prior to the consignments arriving, exchanged messages with Frandon presumably in relation to the incoming packages. 8. With regard to the importations on 25 and 26 February 2018, these, like the earlier consignments, were intercepted by Australian Border Force officers and the combined pure weight of that cocaine was 1.63 kilograms. 9. The prisoner had on his phone a text message from the number attached to Ms Frandon referring to the name and address of one of the named recipients of the consignments that arrived in February 2018. Thus, it was shown in the details being provided to the prisoner of people who were likely recipients. 10. On 22 February 2018 the prisoner received multiple images of consignment notes, that is, before the packages arrived in Australia, that came to him via WhatsApp from Pike, the person to whom I earlier referred, and these images were of consignment notes relating to consignments numbered 9, 10, 11, 12, 13 and 14. The prisoner between 22 January 2018 and 4 February 2018 used his mobile phone to track consignments 9 to 14. 11. I just pause to point out there is some inconsistency in the facts referring to events happening between 22 February and 4 February in reverse order. 12. On 25 February 2018, the date of the arrival of the fourth consignment, the prisoner sent a text message to Frandon's number which read "just to let you know a good number of the parcels are in the country so they should be delivered today". 13. On 26 February 2018 the prisoner and Frandon exchanged messages indicating the arrival of the consignments and the number of consignments that were ready to collect with Frandon giving some details as to, as I understand it, where they were to go. 14. On 5 March 2018 the prisoner again received images of consignments via WhatsApp from Pike showing consignment notes relating to consignments 9, 10, 11, 12, 13 and 14. 15. I pause for a moment to point out, although it was not a matter discussed before me, the facts are somewhat silent upon the circumstances of what happened after the consignments arrived in Australia. Whether people were arrested or whether the consignments were actually ever delivered, albeit no doubt with inert substances or substituted substances in them. All I know from the facts is that the prisoner booked a one way ticket on Qatar Air from Melbourne to Paris. He boarded a Tiger flight from Sydney to Melbourne on 8 March with the intention of departing from Melbourne and travelling to Paris. He was arrested at Tullamarine Airport where he was found to be possession of $10,330. He had not completed a declaration stating that he was departing Australia with cash in excess of $10,000, which might be seen as a beginner's error, and a high reading of cocaine was found inside his wallet which is said to be consistent with him himself being a cocaine user. Although that may be so, the extent to which the prisoner had any other connection with the importations of cocaine is not clear because I do not know from what the facts reveal what happened to the actual cocaine shipments once they were intercepted by the Australian Border Force. 16. The prisoner when arrested was ultimately released on bail, presumably charged in relation to the possession of the cash first but subsequent investigations led to his arrest in July for the principal offence. 17. The prisoner arrived in Australia according to the movement records, tendered without objection, initially on 14 November 2016. He remained in Australia until 29 June 2017 when he flew out of Australia on QF 25 and then returned to Australia on 21 September 2017, the precise details of his travels are not confirmed within that information but that date of 14 November is of some significant in light of some new material that has been tendered on behalf of the prisoner. 18. The prisoner has a prior finding of guilt. That was, driving with an illicit drug present in his blood when he was arrested on 17 September 2017. He was dealt with at Manly Local Court on 14 September 2017, fined $500 and disqualified from driving a motor vehicle for three months. The significance of that conviction seems to me to be concerned with what was put on his behalf about him being a person who used drugs, particularly cocaine. 19. The prisoner did not give oral evidence before me but tendered material in his case which I was asked to take into account. First of all the prisoner wrote a letter of apology to the Court in handwriting, I am assuming is in his hand. I understand that he understands English, he has not asked for an interpreter in the course of the proceedings. He claimed to have accepted full responsibility for his offending. He claimed that being in gaol had made him realise how drugs had a big impact on people with addiction and how it can "destroy families and communities". One might have thought he would have known that before he went into gaol. But be that as it may I note that is what he states. He said that he let his family and his girlfriend back in France down. He said he was a taxi driver in Paris, coming to Australia on a working holiday and that he had made "poor decisions" and his life started to "spiral out of control". He said he was "spending time with the wrong people and constantly taking drugs". 20. He said that after the 13 months of continuous time in custody he was "proud to tell" me that he was drug free, which I am prepared to accept, and he says that he is a better person and more thoughtful about his life. 21. He said he has been busy working seven days a week in custody, working at the laundry, and I have a number of documents that reflect upon his industry in custody working at the Metropolitan Remand and Reception Centre at Silverwater. He is described variously by the prison officials as; "showing initiative, keen to learn new skills, being polite and courteous, getting along with other inmates, completes his duties on time and always works according to instruction, eager to help out, having a good work ethic", being happy to complete the tasks available to him, volunteering to help other inmates from time to time and generally being cooperative with the authorities and being seen favourably by prison officers and other staff. I take that into account very much in his favour. He is described as both a good worker and an efficient worker. One officer reporting as of July 2019, that there is "never an issue" with the prisoner. 1. In the history the prisoner gave the psychologist, if I could just identify a matter out of that, I am informed the prisoner has trade based qualifications. As I understand it he is trained as a plumber in France although had difficulty getting employment in that area. He spoke of some harassment of himself. I am assuming the prisoner is a person of the Islamic faith. If not of the Islamic faith, certainly with family from North Africa, I have very close friends living in Paris who are Tunisian of origin and I have had a great deal of contact with those people over the years and matters of which he speaks, in areas of Paris that are very poor where people from North Africa generally congregate, some degree of harassment on the basis of race and religion are matters which I am aware of and familiar with. The claims of those matters by the prisoner I do not disbelieve for a moment. The prisoner said that he came to Australia to get a change from life in Paris and to try and get some work in Australia. 2. In the context of the chronology of the offending and the chronology of the prisoner's presence in Australia I could not conclude beyond reasonable doubt that he came to Australia to commit these offences. I could assure him if I had a belief that that was so to the point that I would be satisfied of it beyond reasonable doubt a more condign sentence would be imposed. I am prepared to accept in a general sense that the prisoner is a person who is a user of drugs, the extent of his dependency on drugs however I could not conclude. I am not particularly satisfied with the psychological report for reasons I will come to in a moment. It may be that the prisoner is to some extent a reliable historian. But in my view, the conclusions reached by the psychologist are very much dependent upon the reliability of the history given by the prisoner which the Crown has not had an opportunity to test but I will come back to the authorities that deal with that matter. 3. In the prisoner's background he speaks of a brother who has had a great deal of illness throughout his life which I understand to be so. I have been provided with some medical records concerning the health of both his mother and his father. But, this is not a case where it could be claimed, and nor was it claimed, that there are third parties who are dependent upon the prisoner, his presence in Australia belies that fact, and it is not a case that in any way provides evidence of dependency of third parties of the exceptional character that warrant consideration of that matter as some sort of mitigating factor. 4. One matter that I drew to the attention of the prisoner's counsel today, and I have to place it on the record, is that it was tendered on his behalf a report from a person described as a psychiatrist in France in which that person claimed that he saw Mr Zaied on 18 November 2016. The report states that the prisoner "shows symptoms of anxiety and depression with stress and exhaustion of work". I pause for a moment to point out that the prisoner from the history he gave to the psychologist, and from what he tells me, he was working as a taxi driver at the time before he came initially to Australia. There was a claim in this report that he lost interest and had what was called emotional anaesthesia as it was translated, accompanied by "impaired judgment". 5. The only problem with that report so far as it takes me, it is very brief and it does not set out any basis upon which the conclusions are reached, is that Mr Zaied arrived in Australia on 14 November 2016. So it is highly unlikely that he was visiting that doctor on 18 November 2016. Ultimately I ignore that report and I do not regard it as providing any support at all for the findings of the psychologist. 6. I come back to the findings of the psychologist because as is well known many judgments of the Court of Criminal Appeal reflect upon the circumspection a Court must have in relation to claimed diagnosis or assessments of prisoners that are not confirmed by satisfactory evidence. Out of Court hearsay representations generally are not "satisfactory evidence". To bring to bear a case in point I dealt with a woman earlier this week; a Chinese woman with no English who beat her four month old baby. That is a horrifying case, a very sad case indeed for the child. But when I dealt with her, as I did on the day of the proceedings, there was a body of evidence that had shown that the young woman had been mentally ill since she was a child in China. She had had many hospitalisations in Australia and in China. There was ample evidence of many doctors having diagnosed her as suffering from schizophrenia and other conditions. There could be no doubt, although the woman was not "mentally ill" in the legal sense, that she had a severe mental illness that was causally related to her conduct towards her child. This is not that case. 7. The Crown in its written submissions refers to cases like Qutami (2001) 127 A Crim R 369 particularly at [58] where Smart AJ, as he then was, reflected upon reliance on psychiatrists and a psychologist upon statements made by the prisoner out of court. He said: "While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements." 1. Similar observations were made by Wood CJ at CL in Niketic [2002] NSWCCA 425 particularly at [4], again a judgment with which the other judges, Smart AJ and Howie J agreed. And of course, there is the Howie J judgment in the decision from approximately 2002 of R v Palu [2002] NSWCCA 381. Thus, I come to the psychologist's assessment of the prisoner. He undertakes, first of all a clinical examination and reflects upon symptoms that to him reflect symptoms by reference to DSM-5 consistent with "generalised anxiety disorder" and other symptoms that are consistent with a diagnosis of "major depressive disorder". The facts of the matter are though, with the greatest of respect, that while they may be symptoms exhibited at the time of the clinical examination conducted by the psychologist who has seen the prisoner in custody for the purposes of the preparation of the report one could not reliably conclude the same symptoms existed when the prisoner was at large and committed the offences with which I am now concerned. 2. True it is, the psychologist undertook what he said were psychometric testing using what is known as the 'Beck Anxiety Inventory', which is a self‑reporting measure of anxiety and depression. He concluded from applying that test that the prisoner had 'moderate anxiety' during the period of offending consistent with the symptoms reported in DSM-5 for generalised anxiety disorder, and also had moderate depression during the period of offending consistent with DSM-5 diagnostic criteria for major depressive disorder. Again, I approach those conclusions with circumspection. The history given by the prisoner to the psychologist is the prisoner being heavily addicted to cocaine with a daily habit, struggling to support his addition to cocaine, et cetera, et cetera. But what I have is a great deal of information about activities by the prisoner in his role in aiding and abetting this series of importations which is inconsistent with the prisoner being disabled by his dependency on cocaine. He was a user of cocaine, I do not doubt that it may be true that he was a heavy user of the drug from time to time, but from that position to leap to a position of heavy addiction over a number of months creating the disorders identified by the psychologist is another matter. 3. I have produced in his case a medical report which may have a typographical error in it, but at its face value is either in relation to another person claiming to be this prisoner, or which has been produced to the Court, if not by the prisoner, by somebody to mislead the Court. Certainly, as I said, I could not rely upon that as a contemporaneous document to the existence of conditions that would support the findings of the psychologist. The psychologist's opinion thus of the psychological nexus between the purported conditions of the prisoner and the offences before the Court I could not conclude as being made out on balance, if it be a matter required to be established by the prisoner. 4. I am mindful of what the psychologist says about the relationship between drug usage and the existence of conditions such as anxiety disorder and major depression. I accept that there can be a causal relationship between drug usage and those conditions but the extent to which those conditions, if they existed relevant to this matter, is incapable of being established on this unsatisfactory evidence. 5. It is the case, as McClellan CJ at CL in De La Rosa said ([2010] NSWCCA 194), particularly at [177]-[178], where an offender is suffering from a mental illness or an intellectual handicap or other mental problems there are various principles which a court must take into account. Where the person's mental health contributes to the commission of the offence in a material way the prisoner's moral culpability may be reduced. The conditions may have the consequence that an offender is an inappropriate vehicle for general deterrence. It may mean that the custodial sentence may weigh more heavily on the person because the sentence will be more onerous. It may reduce or eliminate the significance of specific deterrence. 6. Conversely, it may be that because of the person's mental illness they present more of a danger to the community. In these circumstances considerations of specific deterrence, that is, in other words personal deterrence, may result in an increased sentence such as was discussed by Gleeson CJ in Engert (1995) 84 A Crim R 677. But in this matter I could not conclude that I could on the material have regard to any of those matters. I make the point by reference to the material produced by the prisoner himself that whilst it is true that he is a long way from home and that would no doubt be distressing for him, and that the people that may visit him from time to time may not be as close to him as family living in the country who would attend, but from the reports of his work activities there is nothing about his mental health at the present time that would suggest that a custodial sentence would weigh any more heavily on him by reason of mental health than other people. 7. That is another interesting thing about the prisoner's circumstances, without being critical of him. I certainly make no personal criticism of him. But there is no evidence from anyone within the Justice Health system to indicate the prisoner has been in need of any specific treatment or any specific medication to deal with anything that could be called an inherent condition or a chronic condition that might otherwise be capable of being identified as existing at the time the prisoner committed the offences with which I am concerned. 8. I have had regard to the medical records that relate to his younger brother. He is known as I understand from the material as Zinadeine, born in July 2009 and other medical documents relating to other family members. As I said earlier, nothing exceptional arises out of that material. I have a character reference from a person called Morgane Caillard who I take it to be the partner of the prisoner, but at least is a friend. This referee speaks positively of his assistance in her life and she speaks of him being a "real man", "trustworthy" and "loyal". She also describes him as being "ambitious" and she indicates that she would seek to help him make good decisions in his future and I do not have any reason to doubt that. That letter, as with the other documents from France, have come in the French language and have had to be translated and are accurately translated according to the certificates of the translators. 9. Just one other matter about the prisoner's circumstances in custody. I have already touched upon it. A relevant factor in this case was the fact the prisoner is here in prison in Australia, a considerable distance away from his family. Whether they have been able to visit him in the last 13 or so months I do not know, but it is unlikely that they would be able to do so frequently. I would accept that his family in France are not wealthy people and there is a degree of isolation. I am not satisfied beyond reasonable doubt the prisoner came to this country to commit these crimes. 10. I turn, thus, to the submissions that were made by the parties. Mr James QC made oral submissions and they were skilful submissions indeed. He took exception to the charge of aiding and abetting the importation of a marketable quantity of border controlled drug being described as a "rolled up charge". It is one charge relating to a series of acts of the prisoner, and I must say in the context of the very helpful submissions made by Mr James, the one matter that he specifically in my view did not address and is very relevant to the assessment of the appropriate sentence in this matter, is that the crime that the prisoner admits to in that respect is a series of criminal acts over an extended period of time. 11. To touch upon a matter arising out of the Crown submissions, this is not an impulsive offence. It is not an offence that has occurred over a relatively short period of time. There is a considerable degree of deliberation and planning. Not sophisticated planning perhaps, bearing in mind the prisoner used his own phone to do things such as track importations and the like. No doubt he thought he would not be identified because, as was pointed out in the course of oral submissions, he had removed himself from an identifiable position. The consignments were not addressed to him. They were addressed to other recipients. 12. Whether all those recipients knew that cocaine was coming I am unable to say. The facts do not assist me. But when finally arrested foolishly carrying over $10,000 out of the country, although the authorities may have had intelligence on him and had picked him out for investigation beforehand, the interception of him led to the identification of some of the incriminating evidence. 13. Mr James indicated in his submissions, that the Crown's written submissions actually stated the law to be applied in respect of general sentencing principles that arise under Commonwealth law. He said, correctly, that I was required to not put a label upon the offending of the prisoner but to identify precisely what he did and I have already done that. Mr James, however, sought to describe him as a, "facilitator", which seems to me to be putting a label upon what he did. He took objection in the Crown's submission, to the analysis of the prisoner's offending by the use of the word, "prominent", in describing the prisoner's role. In the context of Mr James' submissions, it is worthwhile noting what the Crown did say, with which I can agree, that the offender was an active member of a network of people situated in Australia, engaged in a drug importation enterprise whereby numerous individual packages containing drugs, were sent through mail to Australia to be on‑sold to the community. 14. It is quite clear, the prisoner was aware of the fact that individual consignments being sent into the country, even if it was not known by the prisoner exactly the quantities that were being delivered. But by reference to matters concerning the transfer of monies and the like, the prisoner had some idea of the amounts of money that were being transferred back to Europe, in particular France, arising out of the transactions that had occurred or were to occur. 15. The Crown analysis of his role was that of a conduit between the French side of the operation and the Australian collectors, including the person, 'Frandon.' But the Crown itself used the word, "facilitator". The Crown also submitted that the accused conducted himself in a way as to remove himself from immediate exposure to the packages. As I said, however, he did so in a fairly clumsy or unprofessional way by modern drug importing standards. 16. The Crown submitted, the prisoner operated with a degree of autonomy and provided direction and instruction to other Australian syndicate members, regarding the transfer of money and the collection of packages. 17. To that assertion, I would add this qualification. I am not sure that the correct expression is "autonomy". Because I and the Crown do not know the extent to which the things he did were the subject of particular instruction. Certainly, he had the authority and responsibility to give instruction and to give direction, and also to be provided with the information which he could provide back to France. The Crown concedes that he was not a "principal". At one stage, with respect to the learned Crown prosecutor who skilfully represented the Director's interests, she used the expression, "courier" as being an equivalent role. 18. This is a very unusual case. It is very rare to find somebody to be sentenced in relation to being an aider and an abetter to an importation. Normally, the detection of people involved in an importation, gives rise to charges that focus upon more direct, active involvement in the character of the relevant importation. He performed a number of tasks, as earlier identified. He performed them over a period of time and they were essentially a series of criminal acts that aided and abetted the relevant importation with which he has been charged. 19. As the Crown says, there was a degree of pre‑meditation and planning. But coming back to something I mentioned before, the Crown in its submissions, notes that offences which are, "unplanned, impulsive and opportunistic, or committed spontaneously", are generally regarded as less serious than those that are planned. That may be so but I do not think I have ever seen an importation in my entire life - and I have seen quite a few - that was, "unplanned, impulsive, opportunistic, or committed spontaneously". 20. The weight of the drugs, of course, is a relevant factor, as acknowledged by Mr James, and I am mindful of the range of weights that comprise or constitute a marketable quantity, bearing in mind the upper limit is 1.99 kilograms. Mr James was correct that I was not to speculate about matters relating to his role. He claims the offending is, "well below the middle range of objective seriousness". This expression which comes from the Crimes Act (Sentencing Procedure) Act 1999, is now finding its way into both the Crown and the defence description of the character of offending. There is nothing in the Crimes Act 1914 (Cth) that refers to, "middle range of objective seriousness". It should be borne in mind, when the expression is used, what Spigelman CJ said in the decision of R v Way (2004) 60 NSWLR 168, which was swept away by the High Court in Muldrock v R (2011) 244 CLR 120. But I think it still stands, that "the middle range of objective seriousness is not a narrow band". I think the way it is used by both the Crown and the defence from time to time, seems to think that the middle range of objective seriousness is the thin line cutting through the middle of the range of offences contemplated by a particular provision. 21. The Crown actually uses the expression itself, that the accused actions place him, "within the middle range of objective seriousness", of such offending. I honestly do not know what that means. All I know is that the prisoner played a substantial role. His involvement was important and the offending is serious. I accept the prisoner is not a principal and his financial reward may have been limited, compared to that of other people, but then again, the role of other people is not fully explained to me even those people who have been named in the facts but I have no doubt the prisoner was acting on instruction again. If he had come from France for the purposes of this offending or, to put it another way, if I can be satisfied beyond reasonable doubt that he had, and I cannot, then the significance of his role may have seen to be greater. 22. So far as the $10,300 is concerned, I am prepared to understand that is proceeds of crime from his involvement in the commission of the offence. However, reflecting upon it, it could well be or could well include, cash that was required to be paid to people in France for their role in this importation. I can see the existence of a very reasonable possibility that not all the cash was necessarily for his personal use. The prisoner has cast no light on these matters. It is a matter of 14 steps, 15 steps, from the dock to the witness box but he has not taken that journey. Not that I hold that against him as the sentence I impose reflects. But the truth of the matter is, there are many things known to him that are not known to me and for good or evil, I cannot speculate about them. Certainly, I do not believe the money comes from working as a plumber or a taxi driver in Australia, or working as a taxi driver in France. 23. With regard to the plea of guilty, I propose to give the prisoner a discount of 25%. The Crown accepts that it is a plea entered with the first reasonable opportunity. It is a plea of high utilitarian value. There is a strong circumstantial evidence case or perhaps even a direct evidence case against the prisoner, but having said that, in accordance with the judgment of Xiao [2018] NSWCCA 4, and noting s 16A(2)(g) of the Crimes Act 1914 (Cth), I am required to recognise the plea of guilty and Xiao permits the Court to give a discrete discount which I have. By reference to s 16A of the Crimes Act 1914 (Cth), I must sentence the prisoner in accordance with Pt 1B of the Commonwealth Crimes Act. I must take into account, relevant matters under s 16A(2) so far as they are relevant and known to the Court and fix a sentence appropriate in all the circumstances. 24. I am required to give weight to general deterrence. The only appropriate sentence is clearly a custodial sentence noting the terms of s 17A of the Act. I have dealt with the nature and circumstances of the offence pursuant to subpara (a) of s 16A(2). I have noted that the offending is part of a "course of conduct" (see (c)). I am required to give weight to general deterrence pursuant to s 16A(2)(ja). I have noted the plea of guilty. I am prepared to accept by reason of the plea of guilty of prisoner and the expression of contrition, that there is an expression of contrition that is worthy of some recognition in the sentence as a mitigating factor. It is not a strong case of contrition but it is expressed nevertheless making allowances for the prisoner being a person coming from another culture. 25. I have taken into account the prisoner's age, character, antecedents and background. The prisoner being born in October 1991 was at the time of the offending was 26 years of age and would be now 27 years of age. So he is a mature man. He is not a child and certainly a person who has travelled, not a person who has been sheltered in any way. I have noted the circumstances of his upbringing which are not controversial. 26. I have not been drawn to any other particular matters under s 16A(2) that I should take into account other than the ones I have expressly referred to or implied or referred to by reference to the evidence available to me. With regards to one aspect of the case, that is, the use of comparative cases, the submission of Mr James in his usual skilful and forceful way was that there were not any comparative cases in the cases provided by the Crown. This is a topic that requires just a little bit of examination because I have undertaken some research in relation to the matter in the context of some experience I had in another case. Particularly, I was referred to two decisions, the decision of Holland [2011] NSWCCA 65, specifically what Justice McClellan said at [3], and the decision of Gow [2015] NSWCCA 208. I pause for a moment to note that the Crown did provide me with four or five judgments which it said might provide some assistance as comparative cases. The cases the Crown said were most relevant in this regard were the decision of Nakhla [2011] NSWCCA 143 and a related decision of the Court of Criminal Appeal in Nikolovska [2010] NSWCCA 169. These two people, although their appeals were held separately, were concerned with the importation of about 1.4 kilograms of pure cocaine. But there are quite a number of differences from here. First of all, they were not aiders and abetters but they were involved in the actual importing. I note in relation to Ms Nikolovska that she proved assistance to Mr Nakhla in the context of her working for Qantas and having a security clearance. Clearly her offending involved a significant breach of trust. There are many observations made in those two cases about matters of sentencing in this regard, some of which I have already specifically referred and I have had regard to those judgments. But ultimately the extent to which they provide assistance as "comparable cases" because of differing circumstances is very limited. 27. But that brings me back to Holland. What compelled his Honour Justice McClellan to speak in Holland on the topic with which I am concerned was the use being made in submissions, as he understood it, about his analysis of a number of cases that was conducted by him in the decision of De La Rosa to which I earlier referred at [216]-[254]. In those paragraphs he sought to classify largely by result various aspects of importation or possession of commercial and marketable quantities of border controlled drugs and the range in sentences that he could research had been imposed in relation to that offending and trying to identify categories of offending. For example, in relation to commercial importation he identified, four categories of offending. As he said in the subsequent decision of Holland that it was wrong to seek out his categories in De La Rosa to impose a sentence appropriate to the category that he had identified in that judgment. He said in Holland that a judge should proceed on the basis that other cases, that is, supposedly comparative cases, "can stand as a yardstick against which to examine a proposed sentence." 28. In the decision of Gow, Justice Basten, who gave the leading judgment of the Court at paras [35]-[51], sought to examine supposedly comparative cases. Admittedly, that case was one concerned with a commercial quantity of the drug although some of the commercial quantities were just above the 2 kilogram limit. In fact in that case of Gow the amount of drug in pure weight was 2.3 kilograms of pure cocaine. Justice Basten in his usual erudite and learned way noted what Justice Fullerton said in a case of Webber, who had noted that there had been a line of cases after De La Rosa in which the categorisation of offenders by Justice McClellan in that case had been found to be of limited assistance where manifest excess or inadequacy of sentence was alleged. She noted in her judgment as did Justice Basten what Justice McClellan had said in Holland to which I have referred. Justice Basten said at [39], "A more helpful exercise would involve identifying the key characteristics of the case under appeal and then seeking cases which are comparable in the sense of revealing similar characteristics and then identifying the range of sentences imposed in those cases. The value in such an exercise is that it will identify technical disparities such as the existence or not of a plea and at what stage, allow proper weight to be given to separate features and allow important factors, such as activity of the offender to be assessed more accurately than by reference to imprecise labels." 1. In that regard I note a number of cases that his Honour Justice Basten analyses involving greater quantities of cocaine as well as the cases provided to me by counsel for the Crown in this matter. I cannot find a case that provides sufficient comparable features for any useful analysis to be undertaken. But I do note, although the sentence I impose might be below those, for example, identified by Justice Basten in Gow and from Gow itself, those cases involve what might be called greater complicity of offenders concerning a greater quantity of cocaine. That is a commercial quantity of cocaine. But nevertheless sentences that are not that much out of step, if I could use that expression in a proportional way, from the decision I have reached in this particular matter. 2. I do not believe in imposing an accumulative or partially accumulative sentence for the second offence, I believe what it represents is a consequence of the prisoner's involvement in the principal offending. 3. I have had regard to all other matters identified by the parties in their submissions. I have specifically had regard to the other statutory provisions required to be considered under pt 1B. The Crown is correct that the only order that could be made is to impose a term of imprisonment of some substance to be served by way of full-time custody. 4. Thus, I am sorry Mr Zaied, as I said you are more interested to know what sentence I impose. I will proceed to sentence you, however, I need to also note that in sentencing you I have taken into account the orders I am required to make under the Proceeds of Crime Act by consent that you are to forfeit the sum of $10,330 in currency seized from you on 11 March, to the Commonwealth and I will put that order on the file. Could you stand up please Mr Zaied. 5. You are convicted. In relation to the import marketable quantity of border controlled drug, you are sentenced to a term of imprisonment of three years ten months by way of non-parole period commencing on 8 June 2018 and expiring on 7 April 2011 with a balance of sentence of two years six months imprisonment expiring on 7 October 2024. That is sequence 31. 6. In relation to the sequence 32 offence, deal with proceeds of crime, you are convicted. You are sentenced to six months imprisonment to commence from 8 June 2018, expiring on 7 December 2018. That sentence is now expired. You can take a seat thanks very much. Anything else Mr Crown? 7. BRUMMERT: No your Honour. 8. HIS HONOUR: Anything else gentlemen? 9. ABBAS: No your Honour, thank you. 10. HIS HONOUR: Mr Zaied, do you understand the sentences I have imposed? The non-parole period is three years ten months. One matter I did not specifically mention, no disrespect to your learned, very able, experienced counsel. But he suggested to me, you might remember in submissions, that an appropriate non-parole period might be an extension of your time in custody for one and a half years to two years. That estimate by your counsel was, with respect to sentencing patterns, quite optimistic. You are excused, thank you Mr Zaied.