District Court New South Wales Medium Neutral Citation: R v SHAH; R v ATTRA [2023] NSWDC 45 Hearing dates: 9 December 2022 Date of orders: 3 March 2023 Decision date: 03 March 2023 Jurisdiction: Criminal Before: NOMAN SC DCJ Decision: Both offenders convicted. SHAH: Aggregate sentence imposed. Indicative sentences nominated: Conspiracy: 16 years; Attempt to possess (reduced by 5%): 11 years and 5 months. Term of imprisonment of 17 years with a non-parole period of 11 years to commence on 19 November 2019. Eligibility for release to parole arises on 18 November 2030 and the term will expire on 18 November 2036. This is a ratio of 64%. ATTRA: Conspiracy: Term of imprisonment of 16 years with a non-parole period of 10 years to commence on 19 November 2019. Eligibility for release to parole arises on 18 November 2029 and the term will expire on 18 November 2035. This is a ratio of 62%. Catchwords: SENTENCING — Penalties — Imprisonment – conspiracy to traffic a commercial quantity of a border controlled drug – attempt possess cocaine Legislation Cited: Criminal Code Act 1995 (Cth) Category: Sentence Parties: R; Mehboob Shah; Balraj Attra Representation: Counsel: Crown: Ms Rodger Defence (Shah): Mr Radojev Defence (Attra): Mr Price Solicitors: Crown: Mr Milne Defence (Shah): Mr Williams Defence (Attra): Mr Moussa File Number(s): 2019/346152 2019/364149 JUDGMENT 1. The offenders, Mehboob SHAH [SHAH] and Balraj ATTRA [ATTRA], appear for sentence after having been found guilty of an offence of conspiring with each other and others to traffic a commercial quantity of the controlled drug cocaine. This was refined during the trial to require "the Dubai male" as a further co-conspirator. This offence is contrary to section 302.2(1) and section 11.5(1) of the Criminal Code (Cth). The offence nominates the period of involvement as between about 29 October 2019 and 19 November 2019. 2. SHAH also appears for sentence after pleading guilty to an offence of attempting to possess cocaine, an unlawfully imported border-controlled drug. This offence is contrary to section 307.5 and section 11.1(1) of the Criminal Code (Cth). The offence nominates the period of involvement as between about 17 October 2019 and 19 November 2019. The offender was charged with attempt because the cocaine had been substituted with an inert substance by the ABF prior to its controlled delivery. The plea of guilty was entered on 15 November 2021, being the date listed for the original trial. Submissions were advanced on the offender's behalf that it warranted a reduction of 10%. The Crown advanced 5%. I determine it warrants a reduction of 5%. The plea was maintained in the index trial. The plea is to be regarded as a late plea entered in response to a strong body of evidence. There is some limited utilitarian value. However, some evidence supporting this count was called in the defended conspiracy count. This plea facilitated the course of justice. It does not of itself reflect remorse. It presented as a recognition of the inevitable. 3. The maximum penalty for both offences is life imprisonment. 4. ATTRA gave evidence during the trial denying any knowledge of the offence. He provided innocent explanations for words on intercepted calls and messages and acts observed. 5. SHAH did not give evidence and relied upon his version to police. 6. Despite denying involvement in the conspiracy, the offenders signed agreed facts, tendered as Exhibits 12, 13 and B in the trial. The matters listed were readily supported by evidence if necessary. However, this agreement meant that some matters did not require further evidence to be led and thus reduced the possible length of the trial. There were summary documents tendered by consent. This course, whilst not reflecting an acceptance of guilt or an expression of remorse, did result in a reduction of court time which facilitated the course of justice. There is undoubted utilitarian benefit. This will be reflected in some moderation to sentence. 7. In each case the Crown tendered a bundle containing the proposed facts for sentence derived from the evidence at trial. 8. The offenders maintain their innocence to the conspiracy count and did not provide an indication of what facts were open or not open to be found consequent to the verdict. 9. I formally note that if I am to determine a matter adverse to the offender it must be proven beyond reasonable doubt. There is a lesser onus on matters raised in mitigation. Any determination cannot be inconsistent with the verdict of the jury. 10. The nature and circumstances of the offence are set out in the Facts contained in Exhibit A. I have had regard to the very detailed full facts. They seek to summarise the evidence called at trial. There was no real challenge to any of the evidence of what was captured through physical or electronic surveillance. The challenge primarily focussed on what was occurring on the captured images and was meant by the words used in messages and calls. I recite only parts. 11. I note the facts are largely common to both offenders. 12. In July 2019 a dry run of 18 pallets was sent from Mexico by 'Valentin Montano' and received by SES. It is not known who this person is or where he was located. He was not charged. Montano sent instructions to SES, the innocent receiving company of the second lot of 18 pallets for the packages to be weighed and photographed. Montano continued to liaise with the receiving company about the pallets. On 20 September 2019, the consignment containing 1,890 aluminium ingots packed on 18 pallets with each pallet containing 105 aluminium ingots arrived in Sydney from Mexico. Police analysis revealed that a total of 233 aluminium ingots spread out over 8 pallets contained cocaine. The gross amount of cocaine was 233kgs or 185.5kgs pure with a purity ranging from 78.1% to 82.6%. Police substituted the cocaine with an inert substance. 13. On 30 September 2019 Montano organised for the second lot of pallets to be stored with the initial 18 pallets. 14. On 17 October 2019, SHAH attended Kennards Storage and rented unit O02 for a period of one month and paid in cash, using his own address and phone number. Subsequently additional storage units were rented. This date marks the commencement of the charged period for the accepted conduct. On 20 October 2019 SHAH emailed Montano, using his own address, about the details of receiving the 36 pallets. The following day Montano organised with the company for the 36 pallets to be delivered to Kennards; requesting the two separate deliveries be marked to be capable of being distinguished. On 23 October 2019, Montano provided SES the mobile number of 'Josef', using SHAH's number, who would receive the delivery. The pallets were delivered on 29 October 2019 and stored in three separate storage units rented by SHAH. On this same date ATTRA applied for and received his visa to travel to Australia. He travelled to Australia using his own identification documents. He took no steps to mask his identity. 15. This failure to seek to hide their identity demonstrates poor planning, a lack of sophistication or ill-placed confidence. It reflects neither was at the apex of what was apparently an international operation. 16. ATTRA was involved and was attending Australia well before any difficulty was detected with the contents. His departure coincides with the contents arriving within SHAH's control. His first act upon arrival was to attend Kennards, to meet with SHAH, and to assist in identifying the target pallets. 17. In summary, for count 1, between about 29 October 2019 and 19 November 2019, SHAH and ATTRA conspired to traffic a controlled drug, namely, 233 kilograms of cocaine containing 185.5 kilograms pure, secreted within 233 aluminium ingots. For count 2, between 17 October 2019 and 19 November 2019, SHAH attempted to possess an unlawfully imported border-controlled drug, namely cocaine, which he believed was secreted inside the same 233 aluminium ingots. 18. ATTRA travelled to Australia as the representative of an overseas syndicate including the DUBAI MALE. Among other things, ATTRA was responsible for inspecting the ingots upon their delivery to Kennards (rented by SHAH) and was involved in the delivery of drug samples to prospective local purchasers of the drugs. SHAH was trusted by DUBAI MALE and ATTRA to receive, store and then selectively remove the ingots which contained drugs from Kennards Storage. On the instructions of the DUBAI MALE and ATTRA, SHAH extracted the secreted substances from the selected ingots and conveyed the extracted substances to prospective purchasers of the drugs. 19. On 29 October 2019, SHAH called the DUBAI MALE. SHAH confirmed that twelve pallets came in one trip and that he had sent photographs to "uncle". SHAH agreed to send close-up photographs to the DUBAI MALE. 20. On 30 October 2019 SHAH attended Bunnings warehouse and purchased pliers, a hammer, two pairs of gloves, and four screwdrivers. SHAH attended Kennards and removed approximately six aluminium ingots, placed them into the boot of his car and transported them to his residential premises at Auburn. 21. That SHAH took the ingots with what he believed to be drugs to his own home, thereby increasing his connection, reflects poor planning, an absence of sophistication or confidence in avoiding detection. 22. Later that afternoon, SHAH received a call from the DUBAI MALE at 5:34pm. SHAH confirmed that he had taken six out and was working on three. Between about 6:10pm and 7:00pm, SHAH met with RAHIM and they travelled to Kennards where they removed approximately 12 aluminium ingots and transported them to SHAH's residential premises. SHAH recruited the assistance of RAHIM to remove the drugs from the ingots. Rahim was not charged. 23. At approximately 7:43pm, ATTRA arrived in Sydney. At 9:20pm, the DUBAI MALE called SHAH and told him "my brother Raj, he is also there. He will meet you, meet you. I will give your number to him. He will speak to you tomorrow morning, God willing". I accept this is a reference to ATTRA. 24. On 31 October 2019, between 10:45am and 11:26am SHAH drove to RAHIM's residential premises at Auburn and they travelled in the same vehicle to Kennards, where they removed further aluminium ingots from pallet 8 and placed them into the car. They returned to SHAH's residential premises at Auburn where they unloaded the aluminium ingots. 25. At 11:25am SHAH phoned the DUBAI MALE. They discussed having 34 pieces and needing another 24. The DUBAI MALE said there should be 29 pieces in one pallet. SHAH said he had found only 17 pieces. SHAH agreed to re-examine pallet 8 before opening a second pallet. 26. Between about 11:33pm and 12:16pm SHAH and RAHIM travelled from SHAH's residential premises to Kennards where they met with ATTRA. ATTRA drove his cousin's car. SHAH, RAHIM and ATTRA entered storage unit O14 and examined the aluminium ingots from pallet 8. ATTRA left. SHAH and RAHIM removed further aluminium ingots and placed them into the car. SHAH and RAHIM returned to SHAH's residential premises where they unloaded the aluminium ingots. 27. At 12:41pm the DUBAI MALE called SHAH. SHAH told the DUBAI MALE "he [ATTRA] told me to cut it from the back. Get the machine for it. The machine is there in the warehouse. I have to get the machine. We will get the machine. We will cut it from the back and then we will see what is happening". The DUBAI MALE asked SHAH "Is my brother with you?"; SHAH responded "No, he [ATTRA] left". SHAH then asked the DUBAI MALE "Alright. Give ten pieces or ten [indecipherable]"; the DUBAI MALE responded "Give ten kilos. Give twenty pieces, twenty of the small pieces." I accept the references, as suggested by the Crown, are references to ATTRA. 28. At about 12:45pm, SHAH and RAHIM attended Bunnings where they purchased an angle grinder before returning to SHAH's residential premises. 29. At about 2:20pm SHAH and RAHIM travelled to Lidcombe and departed in a rented van. SHAH and RAHIM then travelled to Kennards where they examined the aluminium ingots from pallet 8 and departed without removing any further aluminium ingots. 30. At about 6:00pm SHAH and RAHIM travelled to Auburn in the van. 31. At 6:44pm SHAH received a call from an unknown male. SHAH told him that he had broken open one pallet and only found 18 pieces, despite being told that there were 29 inside. SHAH said he has received about $100,000 but had asked for another $20,000 –$30,000. 32. At 7:11pm ATTRA called SHAH, they discussed not pulling out anymore given SHAH had already opened one. They agreed to meet the next day to plan what to do. Later that evening, SHAH and the DUBAI MALE spoke over the phone a number of times. In those conversations SHAH confirmed that 36 pallets had arrived, the DUBAI MALE told SHAH that tomorrow "He will come. Raj will come too" in the context of discussing the opening of further ingots. I accept this to be a reference to ATTRA. 33. On 1 November 2019 SHAH discussed with others and ATTRA disposing of the rubbish; which I accept is a reference to the aluminum. SHAH and Rahim drove and disposed of ingots. At 3:05pm ATTRA phoned SHAH. They discussed giving someone a sample of "500". The content of the call demonstrates ATTRA provided the instructions. 34. On 2 November 2019, at 12:01pm, ATTRA called SHAH. SHAH said "I was looking at storage etcetera here.". ATTRA raised the issue of truck access and SHAH said "Trucks can get in here but we will not put them in big trucks. We will put them in small trucks. Right?." After discussing the fact that "This morning's work has been done", ATTRA told SHAH "As for what needs to be done, at two o'clock, [we will talk about] John, who we had given ten … We will meet there at half-past one, one-forty, or two o'clock. We will plan as to how we should get them back from him. I will be there shortly … Half-past one, twenty to two. I have given him time at two o'clock. He is coming at two o'clock. He will bring back the ten. I will come there shortly. We will plan as to how we should get them back from him." SHAH responded "Alright". ATTRA repeated "Alright? I will come there to the side, to the same place where we had met… I will be there half-past one, twenty to two. Bring the young boy/kid with you." SHAH said that he would try and that "His phone is switched off. He was not at home. [indecipherable] gone." ATTRA told SHAH "But bring him with you. Then we will plan about how to do things. We will do it all there, near one another, to make sure, [indecipherable] we will take it. Okay?" At 12:44pm SHAH called ATTRA and addressed him as "Brother Raj". SHAH said "Those boys have been gone since morning. They are not here... And this is very wrong. What you are doing is extremely wrong. This is a very wrong work/job. What we are doing is extremely wrong. We are absolutely slapping ourselves, and we don't even realise what it is that we are doing." ATTRA then asked, "Huh, then what should we do? Make a suggestion." SHAH responded "Then give it to him. Once you have given it to him, then you have given it to him. They will pay if they are trustworthy to you... Then finish it with him. Tell him to pay after one week. Pay. It is not a problem." ATTRA responded, "No problem. Hmmm. Alright, I will call brother." 35. At 1:18pm, SHAH called Rahim HAMZA (HAMZA) and asked "you were not answering your phone, you made me stress a lot, on the other mobile." HAMZA told SHAH "I have come here to, what is it called, to Bass Hill, the other one was asleep, I told him that I am going to where I got the job yesterday to tell them I am not doing it, to finalize everything, to get rid of the responsibility and take it off from my head'. Four minutes later at 1:22pm, SHAH called HAMZA again. HAMZA told SHAH "Haji Sahib, he was asleep ok." 36. Later that evening, at 8:00pm, ATTRA called SHAH. SHAH addressed ATTRA as "Raj brother". They agreed to meet the next day "for five to ten minutes" to make a plan for Monday. SHAH asked ATTRA "Get the full number. Alright?" ATTRA responded "Yes, I will get everything. Alright? Okay.". 37. On 3 November 2019 at 11:50am ATTRA received a text message from SHAH which read "Auburn girls high school auburn". At 11:54am, ATTRA called SHAH and told him he was standing outside the school. 38. At 12:06 pm ATTRA was observed driving his cousin's car with SHAH as front passenger at Auburn. At 12:09pm, SHAH and ATTRA were observed walking in the park adjacent to Auburn Girls High School. SHAH and ATTRA sat at a picnic table and engaged in conversation until 12:47pm. During that period SHAH was observed operating a mobile phone. At about 12:48pm the two men left the park and departed in different vehicles. 39. At 8:11pm, SHAH and ATTRA spoke over the phone. ATTRA asked "Was everything done well/appropriately?". SHAH responded "Not well. Cha cha said that the person/man will not come. He told me to return. Look, this is not going properly. This is all going wrong. I just kept my mouth closed and returned. What could I do?" ATTRA responded that it was not a big problem and that he would meet him tomorrow morning. ATTRA then told SHAH "Okay. Mine is from five to five, six, seven, eight, nine, ten, eleven.". SHAH said he will start working the next day at 7:00am. 40. On 4 November 2019, SHAH received a call from the DUBAI MALE at 2:09am. SHAH told the DUBAI MALE "There was a phone call from there. He said not to open the pallet tomorrow." The DUBAI MALE confirmed "Yes, don't open it, don't open it. Actually, there is not much work tomorrow. Just do the ten o'clock work/job." They then discussed payments of money. The DUBAI MALE said "If I pay it here tomorrow, you will get it the day after tomorrow, on Tuesday. You should carefully think and let me know the time. This is just between you, me and Raj brother. The end." I accept this to be a reference to ATTRA. 41. On 5 November 2019 at 9:03am, ATTRA called SHAH and asked if he would be free at 10:00am. SHAH said "He said that one-two has to be opened." ATTRA responded "Yes. So, I will be free by ten o'clock. I think". 42. At 9:08am, ATTRA phoned SHAH and said "The new one that you are going to open... I also need .one or two small spoons from that. I need to show it to someone so that they can be sure. Alright?" After discussing whether the sample needed to come from a particular number, SHAH said "I know that. It has to be taken out from five to twelve." ATTRA responded "Okay, alright." I accept this to be a reference to samples of the drugs extracted from the ingots. 43. Between 9:52am and 10:52am, SHAH, RAHIM and an unknown male attended Kennards. They entered units O02 and O14 and removed a number of aluminium ingots before travelling to SHAH's premises. The unknown male carried a cardboard box inside SHAH's premises via the garage door. 44. At 10:54am, ATTRA called SHAH and asked "Sir, are you free?". SHAH said that he was free to which ATTRA responded "Then I will get there in five minutes.… Right now I am sitting here at the nearby McDonald's.". SHAH then said "Alright, if you are at McDonald's then I will come to McDonald's." 45. At 10:54am, SHAH exited his premises and drove to McDonald's, Auburn, where he met with ATTRA for several minutes. At 11:09am SHAH and ATTRA were observed walking in the McDonald's carpark, they entered their respective vehicles, and departed separately. 46. Later that evening at 7:36pm, SHAH called ATTRA and said "Raj brother? How are you? Alright?". ATTRA said "Alright. Thank you." and SHAH then said "You will get it tomorrow. A little bit.… Do you want one or two? One or two?". ATTRA responded "No, no. A little, a little, a little.". SHAH clarified "One or two, right?" ATTRA then said "Yes, a little one.". SHAH then asked ATTRA "Did Chacha do my work/job?... So he says that he has done it and that I should call Raj. This is what he said to me." ATTRA responded "he said he was doing it." 47. On 6 November 2019 at 10:03am SHAH called ATTRA to find out where he was. ATTRA told SHAH "Here. I am going about in the area/neighbourhood. I am on my way." At 10.04am ATTRA received a text message from SHAH which read "139 Arthur st parramatta". At 10:20am, ATTRA drove on to Arthur Street, Parramatta, and stopped. SHAH walked to and entered the passenger side. At 10:23am ATTRA and SHAH (holding a mobile to his ear) drove along Arthur Street, Parramatta, and stopped outside Ace Panel Beating. At 10:25am SHAH exited the vehicle briefly and walked out of sight before being observed in the driver's seat of a vehicle. At 10.25am ATTRA received a text message from SHAH which read "78 Paul street auburn". I accept this was related to providing some of the drugs to these premises. I accept it proven that both offender's were aware that drugs were to be supplied. 48. Between 10:26am and 10:44am SHAH and ATTRA drove in convoy to Chisholm Road, Auburn, where SHAH stopped to pick up RAHIM. At 10:45am ATTRA in his car and, SHAH and RAHIM in the other car, were stopped on Paul Street, Auburn. 49. At 10:46am SHAH called ATTRA and said "Did you not get the SMS? What is the reason?". ATTRA responded "No, I have come further ahead/forward, at the end of the road, straight ahead" SHAH asked "Shall I come down/downwards?". ATTRA responded "Come straight. I am standing at the road-crossing.". 50. At 10:46am SHAH, completed a lap of Paul Street and then parked opposite ATTRA's car. At 10:49am SHAH exited his vehicle and walked to ATTRA's vehicle and sat in the passenger seat next to ATTRA. At 10:53am SHAH exited the vehicle and returned to his vehicle his own. ATTRA drove out of sight. 51. Between 10:53am and 10:59am SHAH drove up and down Cumberland Road, around several adjoining streets, before stopping outside and entering his residential premises. SHAH's premises were diagonally opposite the corner of Paul Street and Cumberland Road, where ATTRA's vehicle was parked between 10:49am and 10:53am. 52. Later that afternoon at 3:03pm, SHAH received a call from the DUBAI MALE. The DUBAI MALE assured SHAH he had sent him his money using the Hawala system and explained how it worked. 53. At 5:17pm, SHAH received a call from an unidentified male whom asked to speak to "Haji". SHAH confirmed he was Haji. The unidentified male then said "I calling from my friend tell me to call you you don't know how to add me is it ". SHAH and the unidentified male agreed to exchange details via text message so they could add each other on 'We Chat'. 54. Less than two hours later, at about 7:00pm, SHAH, with the assistance of an unidentified male (UM3), delivered a white plastic bag to another unidentified male (UM4), on Cornwall Road, Auburn. I accept this observed conduct involved providing some of the extracted powder. 55. At 7:01pm, the DUBAI MALE called SHAH and said "Mr Haji, he is standing/waiting. He is standing/waiting.". SHAH responded "Done, done, done". The DUBAI MALE then said "And [indecipherable] and give the number.". SHAH responded "Okay, just wait. Thanks, thanks." Forensic inspection of SHAH's seized mobile revealed that SHAH took a photograph of a $20 note at 7:07pm near Progress Park on 6 December 2019. I accept this use of tokens is how people are identified and how the exchange system operates. 56. Later that evening at 8:26pm, SHAH called an unknown male and asked him for a Hawala contact in Dubai. The unknown male told SHAH "In Dubai, we have Islam Badshah's son, Tariq." SHAH asked the unknown male to send him the contact number for the Hawala in Dubai; SHAH said he would send the Hawala contact 123,000 and that the unknown Male would receive it in Islamabad. 57. That evening, at 11:53pm, the DUBAI MALE called SHAH and told him "Mr Haji, brother Tariq has been spoken to. Alright? Brother Tariq lives in the silver building. He is far from our bazar. We just got hold of cash. He said to bring it tomorrow and give it. Alright?". 58. In that same call, the DUBAI MALE told SHAH to extract more of the substance from the substituted ingots so that he had 16 kilograms. The DUBAI MALE said "The delivery of sixteen kilos is tomorrow. God willing. Look, ours passed simply. Sixteen kilos. Sixteen KG. You have a delivery of sixteen kilos. And that is what I am thinking about. He will then pay the money as well in the evening. You should keep that money as well" and told SHAH that the payment would be 2 million dollars. As SHAH expressed concern about holding so much money, the DUBAI MALE suggested making two separate payments of 1 million dollars. SHAH suggested they exchange half the substance for half the money, twice. The DUBAI MALE agreed. SHAH and the DUBAI MALE set the time for the exchange at 8:00pm the next day. 59. The DUBAI MALE asked SHAH to video call the "Mexicans" 60. On 7 November 2019 at 3:52pm the DUBAI MALE asked SHAH to send him a "token". The DUBAI MALE pressed SHAH to get a note as soon as possible. SHAH informed him that he would send the token after he met up with the "kids/children". 61. Later that evening at 9:42pm the DUBAI MALE called SHAH and told him he was giving him the 'confirmation number' and then added "Giving you the receipt, receipt.". Later than evening, SHAH and the DUBAI MALE spoke over the phone about the token. The DUBAI MALE then told SHAH that he had just spoken to the man in Peshawar. The DUBAI MALE told SHAH he had spoken to the Peshawar man about the goods being bad. 62. At 10:50pm the DUBAI MALE called SHAH and told him he would get his $50,000 worth of expenses first thing on Monday. 63. On 8 November 2019 SHAH phoned ATTRA at 9:11am. SHAH informed ATTRA that "So, chacha has not paid the money. And just like that, everything, the whole system has closed" and claimed "these people have done a great excess/injustice with me, and are you here or are you going away?". ATTRA told SHAH that he would contact them to ask what was going on. The conversation involved SHAH complaining about the situation in Dubai and ATTRA advising him to wait and that he would do something. 64. At 9:43am SHAH called the DUBAI MALE and left a voicemail on his phone saying "Hi Haji, when you get a chance, I am in great difficulty, I am in great difficulty, understand, I am in great difficulty, I need someone ahead, are doing a trade, ok, understand. I need someone for the trade, a big party is needed, not a small party, a big party is needed, ok." 65. At 3:05pm ATTRA received a phone call from an unknown male in South Australia who introduced himself as "Grant…Barnabas' son". GRANT asked ATTRA whether he would be able to travel down to South Australia to which ATTRA responded "Ah, no, because I needed somebody to have a look at it, see. That's the problem… So I just need somebody to have a look at it, verify it – you know, what percentage is – it is. And then we see what to do." ATTRA confirmed he needed it tested to determine the percentage. 66. Evidently others were organising this contact between ATTRA and GRANT. It did not emanate from ATTRA or SHAH. The operation was sophisticated in having access to persons interstate to assist with the testing and movement of the drugs. 67. At 10:06pm ATTRA called SHAH and said 'I have not forgotten about you. I have just spoken with them. I mean, I am sorting something out. So, I will meet with you tomorrow. Alright?..... Everything is happening under control. There was a little misunderstanding at the other end. I will tell you tomorrow about what is happening. So, everything will happen. So, keep the boys a little under control, then everything will happen. 68. SHAH said 'Look, I told the boys [indecipherable] as you had said to keep the working going [indecipherable]'. 69. ATTRA said 'No, no brother. Wait for a little bit. Everything will fall in line. Tomorrow night I will get you to understand about what is happening and what is not happening. I have just spoken with the main [indecipherable]. He has explained to me about what it is. I will tell you tomorrow morning. Okay?' 70. At 10:29pm ATTRA called GRANT and told him to cancel 'Sunday', that ATTRA would come to GRANT first and "then we make a plan about how to about everything". ATTRA said he would let GRANT know when. 71. On 9 November 2019 at 9:00am, a male calling himself 'John' called SHAH and discussed meeting each other. 'John' said he was in Queensland and asked SHAH when he wanted him to come down. 'John' said he would come by plane and then drive back. SHAH told 'John' tomorrow was a good time for him to meet. 72. At 11:56am, ATTRA called SHAH. ATTRA said "I thought we should have a little chat... We will meet tomorrow. We have to talk a little bit for Monday, about what these people are doing, about what they are not doing. So that no one has any hard feelings." SHAH said there weren't any issues. ATTRA told him he would call SHAH "tomorrow morning". 73. On 10 November 2019 at 1:49am the DUBAI MALE sent ATTRA a message saying "Brother call me". 74. On 11 November 2019 at 10:51am ATTRA called SHAH and told him "I spoke to chacha yesterday evening. Someone is also coming to see them today. So, they are making arrangements to get you the paper. I am waiting for that… I will call you when I get the paper." 75. On 12 November 2019 between 11:31am and 11:39am, SHAH and ATTRA were observed in conversation at Auburn Central Shopping Centre. 76. Later that afternoon at 3:41pm, SHAH was seen entering the driveway to Kennards and exiting at 3:48pm. 77. On 13 November 2019 at 7:56am, the DUBAI MALE called SHAH and told him that his $50,000 payment was now available and that he had already sent the receipt for the payment. He apologised for the delay and explained it was "There was a delay because the circumstances here were not appropriate. We were expecting to receive money from another place. There was a delay in that. And then what happened is that there was holiday here one day and a holiday there the other day". SHAH then said "Alright, you have deposited fifty thousand and it took one month". About 45 minutes later SHAH called ATTRA. ATTRA told SHAH that he had received a message from "Cha cha" last night at around 12:00am or 1:00am. They discussed the $50,000 being ready to pick up. 78. On 14 November 2019, at about 2:30pm ATTRA telephoned an unknown male and said "the material/stuff has not turned out good" 79. ATTRA then said "the material/stuff that they were working on today, they gave me some sample, I passed it ahead, it did not turn out good… they were saying there is something to do with it. There is still some workmanship required to do with it. First, let them tell me, than we would look what to do about it.". 80. ATTRA then asked the UM "anyway, you may please find out where is the boys' restaurant… it will make it easy for the give and take.". 81. Later that afternoon, at 2:37pm, the DUBAI MALE called SHAH and requested him to video call the Mexicans tomorrow. The DUBAI MALE promised to pay SHAH in return. The DUBAI MALE told SHAH "How it will happen, he will tell you about the product. For example he will tell you to open that number, which is yellow, once you open that. Sitting there he only will guide you and identify that which one you have to take out. He will just tell you that and you will understand everything." 82. That evening at about 9:45pm ATTRA received a call from an unknown male and ATTRA said he had received a call from 'Chacha'. ATTRA discussed with the unknown male making Cha Cha understand they needed money. 83. ATTRA said "Ask him, alright? Ask him how much it is. When you speak to him, tell Chacha that this is how much they are asking for [not clear]. And the remainder will have to be paid to him. The last part is also pending. Please do something next week. Clear the thing." 84. On 16 November 2019 at 10:57pm SHAH received a call from the DUBAI MALE. They discussed showing the Mexicans and telling them that the "stuff is bad". The DUBAI MALE promised SHAH that he would pay him another $50,000. SHAH informed the DUBAI MALE that they have tested "it" and it has no smell, no effect and no value at all. 85. The DUBAI MALE said "I always get such big jobs on two to three occasions per year". In discussing the Mexicans, The DUBAI MALE said 'Whatever conversation I have with them on Monday or Tuesday, I will tell them to finalise it. And whatever it is, I will get fifty for you, God willing. Don't you worry. It is your right/trust, I will get it to you." 86. SHAH said "The people have had it tested here. I have had it tested. The boys had it tested." 87. At 11:56am Montano sent SES an email with the subject heading "New quote/ 10 pallets/ urgent". In that email, Montano requested a quote for the cost of retrieving ten pallets from Kennards and storing them at SES for 15 days. 88. At 5:25pm on 17 November 2019, SHAH received a call from the DUBAI MALE in which contact with the Mexicans was discussed. 89. The DUBAI MALE said 'Kindly, don't tell them anything, Mr Haji. Don't tell them anything. I have some honour/respect. I do a little work with them.' 90. SHAH asked about money, saying 'Okay, so the five will be done today and the remaining fifty is not known yet'. 91. The DUBAI MALE said '[indecipherable] to do the video-call. It will be decided afterwards via video-call as to what should be done and what should not be done. And then I will tell you as to what you should do, and what there is and what there isn't. [indecipherable] what to open and show. First, i/we need to speak to them and then the rest. Alright, Mr Haji?' 92. On 18 November 2019 at 9:41am the DUBAI MALE sent ATTRA a WhatsApp message "Good Morning Bhai". The DUBAI MALE and ATTRA then called each other. At about 12:01pm, ATTRA called SHAH and asked him whether he would be free at about 2:00pm. ATTRA told SHAH that when he was near Woolworths he would call him. At 2:00pm ATTRA spoke with SHAH and confirmed "I have arrived". 93. At about 2:05pm, ATTRA phoned 'UM' and said "Yes, they say the stuff is not right. They are saying there is something required to be done with it…… "I don't know, I have no idea how to make it right, now we have to wait. I have asked someone in London… they will tell me in a little while… If I could not figure it out in a couple of days then I will come back". 94. ATTRA also said "Let us see what happens today. If something did not happen today or tomorrow then I will come back… Ok I will get back to you. If any movement happens then I will call you." 95. Both offenders were arrested on 19 November 2019. Material from the ingots was located at the offender SHAH's home. SHAH's DNA was located in a storage shed. 96. Both offenders were captured on electronic and physical surveillance interacting with each other and contacting others including the co-conspirator, the DUBAI MALE. The culpability of both SHAH and ATTRA for the conspiracy offence is high. 97. I accept the Crown's submission that SHAH acted at the direction of the DUBAI MALE and ATTRA. I do not accept the Crown's submission that SHAH's culpability for this offence was slightly less than ATTRA's. Although under direction SHAH's engagement was frequent and purposeful. He needed guidance, instruction and on occasion reassurance. ATTRA provided this assistance but he was performing his own role to progress the offence. On balance, they present as equally culpable. Both were evidently trusted in the organisation and trusted to perform the roles allocated. 98. There were submissions about when ATTRA gained knowledge of what was occurring. Counsel for ATTRA advanced submissions it may have been evolving after he arrived and increased as he performed more roles; that he may have arrived for his stated family purposes and coincidentally assisted a friend innocently and then less and less innocently. I do not allow for this possibility. His evidence was implausible on the family reasons. The transcript does not adequately reflect the poor presentation as a witness. Much of the explanation appeared contrived and inherently unbelievable. I am satisfied beyond reasonable doubt that he organised to travel to Australia at the time SHAH was expecting delivery and he attended to provide assistance. 99. I accept the Crown's summary of the roles of the known co-conspirators as: 1. The DUBAI MALE was the overseas co-ordinator and organiser of the trafficking. He appears to have been involved in the procurement of the ingots containing the cocaine from a Mexican syndicate. He supervised both SHAH and ATTRA remotely, and advised SHAH that ATTRA was coming to Australia to be involved in the venture. 2. ATTRA was a trusted agent of the DUBAI MALE and was sent to Australia to assist SHAH. ATTRA advised SHAH, gave him directions as to the extraction of the substance from the ingots, and directed SHAH to provide samples to other parties. ATTRA oversaw the transfer of the samples to these other parties. 3. Under the supervision of the DUBAI MALE and ATTRA, SHAH had a very hands-on role which included: warehousing and storage of the imported ingots, extraction of the (substituted) cocaine from inside the ingots and providing samples for the purpose of quality testing by prospective purchasers. SHAH appeared to have expended his own funds in the process and is recorded asking for further funding and/or payment from the DUBAI MALE. 1. The jury's guilty verdict on the shared count of conspiracy must be that they found both offenders' intended to conspire with at least each other and the DUBAI MALE to traffic in a commercial quantity of a controlled drug, that each accused intended to give effect to the purpose of the conspiracy and at least one conspirator committed an overt act. I am satisfied that this involvement commenced as at the date of the commencement of the offence. I am satisfied both accused committed more than one overt act as demonstrated by those facts that are detailed above and I have accepted. 2. The Crown nominated a list of overt acts attributed to each offender. I accept both lists. 3. Overt acts committed by ATTRA include, but are not limited to: 1. He applied for a visa and bought tickets to Australia on 29 October 2019; 2. He travelled from Dubai to Australia, arriving in Sydney on 30 October 2019; 3. He attended Kennard's Storage on 31 October 2019 to meet with SHAH and inspect the consignment of aluminium ingot pallets; 4. He instructed SHAH as to which pallets were loaded and which layers within pallets were so loaded; 5. He knew that the aluminium ingots needed to be broken open and advised SHAH on how to extract the drugs from the ingots, further suggesting that SHAH should obtain tools to break the ingots open and more efficiently access the drugs; 6. He liaised with the DUBAI MALE about developments, including prospective purchasers; 7. At SHAH's request, he discussed with the DUBAI MALE the payments the syndicate owed to SHAH; 8. On 1 November he instructed SHAH to organise samples of "500" (500gms) and told SHAH he was looking for someone who could "take the stuff from you in the middle and pass it ahead"; 9. On 5 November he asked for a sample "two small spoons" to be taken from pallets 5-12; 10. He met with SHAH on several occasions to coordinate the transfer of samples to prospective buyers; 11. He sought a third party to test the secreted substance and determine its purity; and 12. He spoke to prospective purchasers. 1. Overt acts committed by SHAH include, but are not limited to: 1. The rental of the Kennard's Storage units in Guildford where he received the consignment of 18 pallets (containing the substituted ingots) and stored them at Kennard's Storage between 29 October 2019 and 19 November 2019; 2. He employed others to help move the ingots and carry out other tasks; 3. He liaised with the DUBAI MALE about developments and his payment; 4. On 30 October 2019 he attended Bunnings Lidcombe and purchased pliers, a hammer, two pairs of gloves and four screw drivers; 5. On the same date, he removed approximately six of the aluminium ingots from Kennards storage, put them in the boot of his car, and transported them back to his residence in Auburn; 6. Later on the same date, he tried to extract the cocaine from the ingots; 7. On 31 October 2019 he met with ATTRA to inspect the ingots and received instructions as to which pallets were loaded and the need to obtain an angle grinder to extract the substance and a van to move the substance; 8. On the same date he again attended Bunnings Lidcombe and purchased an angle grinder to break open the ingots and rented a van, as advised by ATTRA; 9. He later broke open several of the substituted ingots in order to remove the secreted substance; 10. He met with ATTRA on several occasions to coordinate the transfer of samples to prospective buyers; 11. He prepared a sample of 500g at the direction of ATTRA on 5 November 2019; 12. He liaised with prospective purchasers; and 13. He coordinated the delivery of samples of the secreted substance to prospective buyers including the delivery of a white plastic bag to Cornwall Rd Auburn on 6 November 2019 containing the 500g sample block with the assistance of those he had employed. 1. I am satisfied both offenders actually knew that the ingots contained a quantity of a border controlled drug, and that it was the drug cocaine. 2. There is no evidence that offender SHAH had knowledge of the specific weight or value of the border controlled drug secreted in the ingots. He must have appreciated it was a significant amount. 3. The offender ATTRA was aware of the location of the drugs and that each ingot contained two bags. He was aware of where to locate the ingots that contained the drugs in each pallet. He was well informed in the number of ingots containing drugs. I am satisfied he had knowledge of the specific weight of the border controlled drug secreted in the ingots. He may not at the time of the conspiracy have had knowledge of the value. Given the amount however he must have understood it to be of significant value. 4. The offenders' roles are to be determined based upon a scrutiny of what each did and when he did it within their participation in the conspiracy and roles performed by others. There was evidently involvement of a number of persons internationally, likely to be in South America and Dubai. 5. Their roles or involvement are different. SHAH was considerably more exposed to detection and conducted more of the preparation and labour. SHAH was involved in preparation for receiving the drugs, storage and extraction for supply. He evidently had contacts to provide with the cocaine once extracted. ATTRA provided supervision and guidance with access to contacts. Both were involved over many days and steadily progressed in their endeavours with almost daily progress. 6. The range for commercial quantity of cocaine is above 2 kg. The amount is well above the lower end of the commercial quantity. The estimated value of the consignment is between $43-63 million. 7. Given the denial by both offenders, there is no evidence of the reason either offender became involved. SHAH repeatedly expressed interest in receiving payments. The sums discussed indicate an expectation of a high yield operation. As an example, the call SHAH was engaged in on 6 November 2019 amply demonstrates high yield quantum being discussed to be shared. ATTRA was not captured discussing his benefit. Given the importance of the role performed by each I comfortably determine each was involved for a non-specific but sizeable profit. That both would involve themselves in such a large scale offence, against decades of good character, speaks of the lure of money. That is not to say it reflects greed to the exclusion of need. There is no evidence either was a user of illicit drugs or owed money. The only credible explanation is it was for financial gain. I proceed on this basis. The quantum is not disclosed. It would not have been insignificant. 8. Although both provided an important role they were part of a much larger operation with others more relevant and more protected. There is no suggestion they stood to gain anything other than a relatively small component of the multi-million dollar assessed value of the drugs. 9. I do not have inappropriate regard to the quantum of drug. Each was involved over weeks and each performed various acts important to progressing the conspiracy. Counsel for the offenders submitted the offending fell below the mid-range. Counsel for the Crown submitted the offending for both at the top of the middle range. 10. Having regard to each offender's role and state of mind, the duration of involvement, the type, quantity and purity of the border controlled drug, I assess this offence as one at the upper end of the mid-level seriousness for an offence within the offence provision. ATTRA sits modestly higher in objective seriousness. This is on an understanding of the differences in the roles and the overt acts each completed. I consider the Crown correctly stated the position in submitting "ATTRA's involvement in the conspiracy was significant and central to the offending conduct. He was closer to the more senior members of the Dubai based syndicate and had a higher level of responsibility and culpability than SHAH …. SHAH was in the highly trusted position of receiving, unloading, and deconstructing the aluminium ingots and then taking possession of the drugs". 11. In considering SHAH's involvement in the attempt to possess offence, although a discrete offence, there is considerable connection in the criminality between offences. It reflects an earlier period of involvement. The offender did all he could to achieve the goal. The attempt arises only because of the substitution of the drug. The content of the SAR does not reflect remorse or insight but rather a limiting of his behaviour and the seriousness of his involvement. Similar expressions of offence minimisation were made to the psychologist. His actions were not overly sophisticated but they were effective. 12. The offender ATTRA is now aged 64 and the offender SHAH is now aged 52. 13. There has been a delay in finalising this matter. The first trial could not proceed and there was the inevitable delay in relisting the trial. There would undoubtedly have been stress associated with the delay and the uncertainty of the outcome. After verdict there could only have been an expectation of a full-time sentence. SHAH was always looking at a sentence because of his plea to one count. Although recognising the not particularly long delay and the impact of the delay it does not warrant amelioration to sentence. 14. ATTRA had medical issues in custody some of which have been addressed and others not finalised. His mobility is impaired due to the required hip replacement. He remains housed in the prison hospital. 15. I accept contemplating surgery in a foreign country whilst deprived of local family support must be more challenging. I shall allow for this additional distress in determining sentence. 16. Whilst he has been in custody his wife experienced medical issues. In May 2022 she suffered a TIA and was paralysed. She was undergoing treatment for the paralysis. Subsequently she had surgery for a hiatus hernia. Further surgery and treatment is foreshadowed. Her prognosis is not favourable. Her health issues are placing added responsibility on their daughter. As a consequence of the offending his daughter's marriage also ceased. She gave birth to her child, and the offender's grandchild, whilst he was incarcerated. She carried a difficult burden and will continue to do so without the support of the offender. I take this impact to the offender's family into account. I also allow for the added stress occasioned to the offender based on his knowledge of their difficulties and that his predicament contributes to those difficulties. 17. ATTRA was engaged in business. He was progressing to retirement. His background including international study and work, and providing the same for family, bespeaks relative wealth. He and his family are now ostracised in their community due to this offending. I acknowledge that he has encountered anxiety whilst on remand. This is relevant hardship worth accommodating in sentence. 18. There has been no genuine expression of remorse. The offender continues to deny the extent of his involvement. His evidence at trial and post-verdict explanations do not reflect an acknowledgement of his conduct nor remorse over the extent of it. His family and authors of correspondence refer to remorse but it is the remorse and embarrassment of his predicament. 19. SHAH's position differs. He has family in Australia and has been able to maintain contact whilst on remand. His son attended court. Despite speaking various languages as reflected in the intercepts, SHAH advances difficulty communicating in gaol. He does have sufficient language skills in English to communicate at least on a rudimentary level. 20. SHAH experienced disadvantage as a child including being exposed to domestic violence and violence and lawlessness in the community in Pakistan. He was successful in business and worked in Saudi Arabia, and Pakistan. He was involved in international importing of goods. He relocated to Australia, worked in different occupations and claimed refugee status to obtain citizenship. This background is acknowledged. It does not inform his understanding of the criminality he was engaged in. He well understood the extent of the illegality he decided to participate in. 21. The offenders have no prior convictions and I approach each as a person of otherwise good character. 22. The offender ATTRA's good character would have assisted in having a visa obtained for his arrival and to avoid detection or suspicion at the point of entry. SHAH's good character would not have assisted him in the acts he performed. This good character nonetheless serves to entitle both to some leniency. 23. It is difficult to reconcile both offenders committing such serious offending as a first offence and when aged in their 50s and 60's. The reason each succumbed is not disclosed. It reflects a serious error of judgement. I accept, based on the long-term good character, that both offenders have reasonable prospects of rehabilitation, are unlikely to re-offend and personal deterrence is of limited significance. I determine this offending to present as an aberration. 24. I particularly note the importance of general deterrence and denunciation and the importance of reducing the level of access to illicit drugs due to the enormous damage inflicted by them upon society. I observe this substance was not disseminated into the community. 25. I am required to impose a sentence that reflects the seriousness of the offending measured against the guidance provided by the maximum penalty and allowing for the amelioration as appropriate for relevant subjective factors. I am guided also by sentencing authority on the application of principle and comparative cases. I note that I am required to have regard to current sentencing practices throughout the Commonwealth and to strive for consistency. Counsel provided a schedule of cases. Comparative cases provide some guidance, but each involves offences of differing seriousness and differing subjective cases. Counsel for ATTRA relied on two cases from the schedule. Counsel for SHAH embraced the guidance provided by these cases. I am assisted by these cases and the findings on the seriousness of the offending. Although quantity is but one factor it cannot be overlooked each case involved a significantly lesser quantity. No one case is entirely comparable; each is of differing objective seriousness and differing subjective features. Sentences for pleas can be adjusted to inform the pre-reduction starting point. Each does inform principle and provide a guide. 26. In determining an appropriate sentence, I have reviewed the cases and the submissions advanced by the parties. 27. It was accepted that only a sentence of full-time imprisonment is appropriate. I have considered the objective seriousness and the subjective features. I have considered the possible options for resolution of this matter. Only a sentence of full-time imprisonment is appropriate. 28. ATTRA is a Kenyan National. He is also distanced from family and friends and is unlikely to receive many visitors. He does have a cousin and their family in Sydney but it is indicated that there is no continued support. 29. SHAH, although a long-term citizen of Australia, has limited English. However, his first language is not uncommon within the gaol system and it is contemplated he will be housed with some prisoners with whom he may readily communicate. He has family based in Sydney. 30. I anticipate ATTRA will be deported upon release. It is no doubt his desire to return to family overseas. This likely outcome is not relevant to the sentencing exercise. 31. I take into account the highly restrictive conditions each has experienced on remand due to COVID. This includes increased periods in cells, fewer programs and limited or remote visits. 32. I determine it appropriate that they share the same starting point for the common offence. I made a finding of equal culpability despite the different conduct. Both have compelling subjective factors that differ but warrant the same amelioration. 33. SHAH's separate offending warrants some accumulation but this is moderated based on common features. 34. Both offenders are convicted. 35. I shall backdate the sentence to reflect the period on remand. Sentence will commence on 19 November 2019. 36. The offender SHAH: I intend to impose an aggregate sentence. I nominate the following indicative sentences: 1. Conspiracy: 16 years imprisonment 2. Attempt to possess, reduced by 5%: 11 years and 5 months imprisonment 1. I impose a term of 17 years with a non-parole period of 11 years to commence on 19 November 2019. Eligibility for release to parole arises on 18 November 2030 and the term will expire on 18 November 2036. This is a ratio of 64%. 2. The offender ATTRA: 1. Conspiracy: 1. I impose a term of 16 years with a non-parole period of 10 years to commence on 19 November 2019. Eligibility for release to parole arises on 18 November 2029 and the term will expire on 18 November 2035. This is a ratio of 62%. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2023