R v Maraivalu [2021] NSWDC 237

District Court New South Wales

Medium Neutral Citation: R v Maraivalu [2021] NSWDC 237 Hearing dates: 30/3/21, 30/4/21 Date of orders: 30/4/21 Decision date: 30 April 2021 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Convicted and sentenced to imprisonment for 8 years 9 months with a NPP of 4 years 6 months (2/9/19-1/3/24). Catchwords: Crime – Sentence – Attempt to possess commercial quantity of methylamphetamine Legislation Cited: Commonwealth Crimes Act 1914 Category: Sentence Parties: Commonwealth DPP – Crown Senitiki Maraivalu - Offender Representation: Ms New for Crown Ms Kluss for Offender File Number(s): 2019/274388

sentence

FACTS 1. This case for sentence arises from the contents of a package which arrived in Australia from Laos in July 2019. The package was addressed to a Michael Tama at a café in Wetherill Park and was said to contain coffee. On 21 July 2019 the package was screened by Australian Border Force officers and as a result it was passed on to New South Wales Police. 2. Once the package was deconstructed it was found to contain 20 half-kilo bags labelled, "Dao Coffee beans". On further examination, each of the bags was found to contain a clear heat-sealed package of methamphetamine. In total, the gross weight of methamphetamine was 10.16 kilograms which ranged in purity from between about 77 and 80.5%. The pure weight of methamphetamine was calculated to be 7.17 kilograms. 3. Inquiries by police determined that the addressee, Mr Tama, and the café named on the package were not involved in the importation. Police prepared substitute bags containing an inert substance after which the package was reconstructed with the intention of detecting the persons associated with the importation and subsequently the package was delivered to an Australia Post office at Wetherill Park. 4. Before that, however, and in fact between 22 and 26 July 2019, six telephone calls had been made to the Australia Post customer service centre and each of those calls was recorded. The first three of the calls were made from a telephone number ending in 661, a number which around that time was being used by Edwin Joseph Hae. In those phone calls the caller identified himself as Michael Tama and provided details including the tracking number for the package. 5. Also, on 25 July 2019 a telephone number ending in 446 made a call to the Australia Post call centre. It was after this, and in fact on 13 July 2019 that police took the reconstructed package to the Australia Post branch at Wetherill Park. After that, police remained at the branch and monitored the CCTV footage with the intention of observing anyone who attended to collect the package. 6. At about 6.15 in the morning of that day, an SMS text message was sent from this offender to the number ending in 446, to which I have just referred. That number was recorded in the offender's mobile phone directory under the name, "Edd.ddee". The content of the SMS was simply a phone number ending in 614, which was in fact the offender's phone number. 7. About two minutes later, an outgoing telephone call of about two seconds duration was made from the offender's phone to the 446 number which, as I have just noted, was saved in the offender's phone as "Edd.ddee". At about 1.09pm that day, Edwin Hae made contact via Facebook Messenger with a man named Duane Ulae. The name or handle used by Mr Hae on Facebook Messenger was, "Edi Gee". 8. A number of messages were exchanged between Mr Hae and Mr Ulae, in which Hae asked Ulae to drive him to Wetherill Park, offering to pay him $120 tomorrow for driving him. Hae explained in these messages that, "We're just going to Guildford first, then Wetherill Park, then back home", and said, "Pick me up from mine at, like, 3.15". At about 3.28pm that day, Ulae, who was driving a grey Ford Territory vehicle, picked up Mr Hae from outside his unit block. 9. Shortly after that, they picked up this offender from Guildford Railway Station. At about 4pm the vehicle arrived at an address in Guildford West, where the offender got out of the car and entered some premises before returning to the car about five minutes later. After this the vehicle containing Hae, Ulae and this offender drove to Wetherill Park and stopped about 200 metres from the post office. 10. At about 4.15 that afternoon, Hae walked towards and then passed the post office before sitting at a bus stop. He was using his telephone from time to time. Between about 4.17 and 4.27pm the offender was on the phone to Mr Hae. During this period and, in fact, at about 4.21pm, the offender entered the post office. At the time he had a white ear bud headphone in his left ear. 11. He approached the parcel pick-up window in the post office where he handed to a staff member a proof of age card and two documents. One of the documents was a collection authorisation dated 25 July 2019 which purported to authorise the offender as agent for "Michael Tama". 12. The other document, which was dated 24 July 2019, purported to be an authority signed by Michael Tama authorising the offender to pick up the parcel on his behalf. That document included the tracking number for the package. Forensic evidence was later recovered from each of these documents, showing that they had previously been handled by Mr Hae. After the package was handed to the offender he exited the post office at about 4.27pm. 13. About two minutes later, at 4.29pm, the offender and Hae had a telephone conversation of about 23 seconds duration and they then returned to the Ford Territory vehicle where the offender placed the package into the boot area. After this, the vehicle containing Ulae, Hae and the offender drove to an address in Guildford where they arrived at about 4.50pm, upon which the offender took the package into the premises. 14. At about 5pm the three men exited those same premises and walked to the Ford Territory vehicle which Ulae drove with Mr Hae in the front passenger seat and the offender in the back seat. Police stopped the vehicle and all three men were placed under arrest. The offender and Hae were each found to be in possession of a mobile phone and an Australian passport. 15. Inside the Ford Territory vehicle, police found the Australia Post collection authorisation showing the offender as the agent for Michael Tama, as well as a letter dated 24 July 2019 purportedly authorising the offender to collect the package. A search by police of the offender's residence at Guildford located the package which had not been opened. 16. The offender voluntarily participated in an interview with police in which he told them, in summary, the following: that a few months ago he had run into Michael Tama who was an old friend and that he saw Tama again last week when Tama asked him if he could pick up a package as he was going away for work. He said that he was given a letter and told to pick up the package on Wednesday or Thursday. 17. The offender said that Edward, which presumably is Edwin or Edi Hae, is the brother of his de facto partner and that it was while he was walking home that he saw Hae and Ulae and it was then that he asked for a lift to the post office. He also told police that his brother in law, that is Mr Hae, was on the phone, presumably while the offender was in post office, and that he did not know why Hae had walked to the post office before he did. 18. He denied contacting anyone while picking up the parcel but said that after collecting it, he had placed the package on the rear seat of the vehicle and they had gone to his home. He told police that this was the first time he had collected mail for Michael Tama and thought it was odd that he would ask him to collect a parcel. 19. The offender told police that he did not know anything about the package but he was going to keep it until Michael Tama called him as he claimed not to have Michael's number. The offender also agreed that the telephone number ending in 614, to which I referred earlier, was in fact his own number. Edwin Hae was also arrested and charged and I am informed is due to face trial later this year. 20. When spoken to by police, Mr Ulae said that he had driven the offender and Mr Hae to the post office and stayed in the car while they went in and came out with a box. Ulae told police that he had received a message from his mate, Edi Hae, asking if he could drive Hae to pick something up but that Hae did not explain what was going on other than saying it was important and urgent. 21. He told police that after picking up the box from the post office and getting back into the car, the offender and Hae were laughing and cheering like they had won lotto or something. He said also that he did not know the offender and that he was taking directions from Hae. I note that Mr Ulae was subsequently released and has not been charged with any offence. 22. Those, in summary, are the agreed facts, rearranged somewhat in form but not as to substance, upon which the offender is to be sentenced. 23. The offender, of course, was charged and is now for sentence on an offence of attempting to possess a border controlled drug, namely methamphetamine, being not less than the commercial quantity. The maximum penalty for that offence is one of life imprisonment. The maximum penalty, of course, is a guidepost in the sentencing exercise to which I have had regard. 24. The offender was committed for trial on 12 June 2020, at that stage maintaining a plea of not guilty and was arraigned on a joint indictment with Edwin Hae on 26 June 2020 when a trial date in July 2021 was set. However, in early September 2020 he advised the Crown of an intention to plead guilty and on 26 November 20 20 he did, in fact, plead guilty to the current offence. He is, as the Crown accepts, entitled, therefore, to a discount on account of that plea of guilty, the quantity of which I will address later in these remarks.