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CDPP v Rogation [2022] VCC 1360

The offender was sentenced following pleas of guilty to 1 count of conspiring to import a commercial quantity of a border-controlled precursor contrary to ss 307.11(1) and 11.5(1) of the Commonwealth Criminal Code and 1 count of conspiring to manufacture a commercial quantity of a controlled drug contrary to ss 305.3(1) and 11.5(1) of the Commonwealth Criminal Code. Offending for importation offence related to at least 33.9 kilograms of ephedrine and 37.3 kilograms of pseudoephedrine. Offending for manufacturing charge related to sufficient precursors to produce at least 24.975 kilograms of methamphetamine.

Nature and Circumstances: Offending on both conspiracies was serious and offender’s moral culpability was high. The quantity of drugs imported into Australia was at least 28 times the commercial quantity for ephedrine and 31 times the commercial quantity for pseudoephedrine. The quantity of methamphetamine precursors imported would have facilitated the production of at least 33.3 times the commercial quantity. Offending was motivated by profit. In relation to charge 1, offender had a trusted role and undertook significant hands-on activity, although at the direction of others. Offender performed a number of acts including travelling between Australia and Canada, hiring vehicles, and transferring and receiving funds. In relation to charge 2, offender’s participation was confined to passing on access to a storage unit which they hired to their co-conspirators, but their role reveals the trust reposed in them by the syndicate.

Delay: Period of offending ended in August 2012. It was not until December 2016 that the offender’s extradition request was presented to Canadian authorities. In March 2020 offender was extradited to Australia. Delay is a powerful mitigating factor in offender’s case. Offender has had this matter hanging over their head since at least the commencement of the extradition proceedings; there was stress and uncertainty during this period. Offender has demonstrated significant reformation over the years and presents with positive rehabilitation prospects. The 10 year delay means that the court is sentencing a man very different from the one who committed the offences.

Hardship: Offender has experienced lockdowns and restrictions in custody, at times serving months in highly restrictive lockdown conditions, and recently contracted COVID. The prospect of deportation and the complexities surrounding offender’s possible release on parole are not capable of moderating their sentence. Offender’s unique custodial conditions are to be taken into account. Offender is likely to continue to serve their time in prison in a different country, isolated and separated from their family and friends for a lengthy period. Offender’s elderly father’s ill-health and the needs of their young family weigh heavily on them in custody.

Parity: In relation to charge 1, offender’s substantial involvement in the conspiracy and overt acts are a clear basis of distinction to those co-offenders who have been sentenced. Each was involved for a confined period and had a limited role to perform and were not part of conspiracies to import or manufacture. In relation to charge 2, offender sits somewhat alone in the conspiracy given their limited involvement in the acts in furtherance of it. Offender’s role and level of involvement can be distinguished from their co-conspirators. There are important differentiating factors that justify a degree of disparity, including the substantial delay and the circumstances of COVID-19.

Offender sentenced to 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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