IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE	Revised
Not Restricted
Suitable for Publication	
CRIMINAL JURISDICTION

CR 24-01024

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
NITISH KUMAR		

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JUDGE:	HIS HONOUR JUDGE MOGLIA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	30 January 2025	
DATE OF SENTENCE:	6 February 2025	
CASE MAY BE CITED AS:	DPP v Kumar	
MEDIUM NEUTRAL CITATION:	[2025] VCC 67	

REASONS FOR SENTENCE
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Subject:		CRIMINAL LAW - sentencing
Catchwords:			Guilty plea – attempting to possess commercial quantity of unlawfully imported border controlled drug – trafficking controlled drugs – facilitating import – intentional participation – not primary organiser – good character – no criminal history – reasonable prospects of rehabilitation – general deterrence - rehabilitation
Legislation Cited:	Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:				Lee v R [2021] NSWCCA 318; Lu & Huang v R [2021] NSWCCA 68; Kwan & Kwok [2020] NSWCCA 313; Blango v The Queen [2018] VSCA 210
Sentence:		Total effective sentence: 10 years; non-parole period 6 years; s 6AAA: 13 years; non-parole period 10 years
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	E. Addams	Office of Public Prosecutions	
			
For the Accused	A. Patton	Dribbin & Brown Criminal Lawyers	

HIS HONOUR:  
1	Nitish Kumar, you have pleaded guilty to attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, namely methamphetamine, between 1-5 February 2024 (Charge 1), and to trafficking controlled drugs, namely methamphetamine and heroin, on 5 February 2024 (Charge 2).  
2	You have also signed a notice relating to three other offences that you wish the court to take into account in sentencing you on Charge 1, pursuant to 16BA of the Crimes Act 1914 (Cth).  Those offences are trafficking methamphetamine on 31 December 2023; possessing a marketable quantity of methamphetamine between 18-19 January 2024; and trafficking methamphetamine on 31 January 2024.  The prosecutor agrees that I should take account of them, and I will.
Summary of offending
3	The agreed basis for your guilty plea is set out in the prosecution opening dated 23 December 2024.  
4	In summary, on 3 January 2024 a consignment arrived in Australia from Canada consisting of eight pallets containing 319 bottles of 'Gain' branded detergent.  Twenty-one of those bottles contained liquid that was 27.7 per cent methamphetamine, totalling 39.54 kilograms of that drug, pure.
5	Police seized those bottles and repacked the remainder, ready for a controlled delivery.  
6	Prior to this time, while you had been in Australia, you had maintained contact with somebody you knew from the UK called 'Guerro'.
7	On 17 January 2025 you discussed with Guerro the logistics of getting the consignment to a warehouse unit that you would rent, and whether you would agree to take on the job.  You were initially reluctant to do so and refused a number of times.  Ultimately, however, you agreed to take possession of the pallets, saying, 'this is the last time I am doing anything like that'.
8	Over numerous messages you discussed with Guerro whether the warehouse was too small for the job, the need to hire a new one, your concern about getting caught, potential delivery dates, equipment you would require, addresses, phone numbers and false names, how much money you would make, referring to ‘20K’ and ‘120K’, the possibility of buying into future consignments, and how the drugs would be transported-on after you had extracted them.
9	On 19 January 2024 you rented the storage until at Wilson Storage, Bentleigh East using your own name, address, phone number, and email, providing a copy of your own passport. 
10	On 30 January 2024 you extended that rental for a month, having confirmed the pallets would fit in the space.
11	On 1 February 2024 you met the delivery driver Guerro told you about, using the name 'Nick'.  You directed the driver to the loading dock and then assisted unloading.  You gave the driver your details and told him a story about running a legitimate import business.  
12	Over the following days you sent Guerro numerous photos and videos of the consignment and discussed it with him as you were unpacking the bottles and searching for the drugs.  You discussed how you would provide the drugs to others who would pick them up, including using concealment tactics.  You rented a car for that purpose.
13	On 4 February 2024, however, police arrested you at the storage unit surrounded by detergent bottles.  They seized your phone and the keys to the unit (Charge 1).
14	On 5 February 2024 police searched your flat and found three separate quantities of methamphetamine totalling 26.3 grams pure.  They also found a bag containing a powder found to be 51.3 per cent heroin, pure weight 
20.4 grams.  You possessed those drugs for the purpose of sale (Charge 2).  
15	Additionally, by your s16BA notice, you accept that you trafficked methamphetamine on 31 December 2023 and 31 January 2024 and possessed a marketable quantity of that drug on 18 and 19 January 2024.
16	Police interviewed you, during which you denied being known as Nick or Nick Singh and when asked about a zip-loc bag of drugs, you denied any awareness of anything like that.  
17	In spite of your denials, police analysis of your phone revealed your conversations with Guerro on the Theema platform since 
15 December 2023, and your true involvement in the offending.  
18	You have remained in custody since your arrest.
19	You pleaded guilty on 16 September 2024 following a contested committal conducted on 21 June 2024.  I regard your guilty plea to have been at a relatively early stage in the proceeding.  I find your plea represents your ultimate acceptance of responsibility, your willingness to facilitate the course of justice and that it also has utilitarian benefits to the community, by avoiding the need for a trial and all the resources that that would require.  
20	I also accept that your plea represents a degree of regret and remorse.
Personal circumstances
21	You were 28 at the time of the offending and you are now 29.  
22	You were born in India and spent your early years in the Philippines.  Tragically your father was killed there when you were about five, and you moved to the UK with your mother when you were eight.  You grew up there with your mother and a stepfather, who you say was abusive towards you both.
23	You completed Year 11 at school and then technical and further education in sport science.  You progressed to university where you obtained a degree in music production.  
24	In 2019 at the age of about 24, you and a friend established a home renovation company.  It did not do well and you wound it up in 2021.
25	In 2022 you travelled to America with your then fiancé.  During the trip, however, your relationship came to an end, partly you say, due to the impact the business failure had on you both.
26	At the end of 2022 you travelled to Australia alone.  You have not been employed whilst here.  
27	Your mother still lives in the UK and you maintain contact with her.  She supports you and in spite of a number of health problems, she proposes to live with you and support you upon your release.  You have expressed a desire to care for her and live with her when that occurs.
28	Your mother, Anupam Chaula, grandfather Sashi Pal, grandmother Sadesh Bhopal, uncle Vipan Kumar, aunt Seema Sharma, and uncle Sanjiv Kumar, all provided character references about you (Exhibit 1).  
29	They report that you excelled academically with dedication, focus, and eagerness to learn.  They state that you are polite and disciplined and enjoy a good reputation.  They attest to your drive to follow your passions in acting and music and have been entrepreneurial in your business venture.  
30	You have no prior criminal history.
31	It is of some note, however, that prior to moving to Australia you were questioned by the UK Crime Authorities about your dealings with Guerro and his possible involvement in drug trafficking.  Ultimately, it was not alleged that you had knowingly been involved in anything of that kind, at that time.
32	Your counsel Mr Patton explained on your behalf that before you were put on notice of Guerro's possible involvement in drug trafficking, and before your departure for Australia, you had loaned him £25,000, representing most, if not all, of your money.  
33	Thus, it was submitted you were, through no fault of your own, reliant on Guerro for the repayment of the money and so under pressure to offend in order to make good that loan – the kind of pressure that reduces your moral culpability.
34	You provided no details of the terms of that loan or the rationale for engaging in what was described, other than you had previously loaned money and that he had repaid.
35	As I expressed during the plea hearing, I found it hard to accept that in the lead up to relocating to a new country where you had no source of income or work lined up, you would loan all of your remaining funds to somebody without such details, only to become penniless once you arrived.  
36	I do not accept that you were thereby a victim of undue pressure from Guerro to offend in this way, or that any financial arrangement, whatever it truly was, serves to reduce your responsibility for your actions for the criminality they involved.
37	While I do not make any finding against you about the loan to Guerro or suggest that you had planned joint offending with him at the time of your move to Australia, nor do I find in your favour that your arrangement with Guerro was such that you were an unwilling victim, or under duress to offend.  
38	The only explanation for the offending that can be accepted is that you dealt with the drugs as alleged, in order to make a substantial sum of money.
39	Since your arrest in the matter, you have been employed six days a week in the staff kitchen in the prison, classified as an essential worker there.  Your counsel Mr Patton submitted that you have not undertaken any vocational or rehabilitative programs in custody due to the demands of this job.  
40	You are however involved with the prison fellowship program.  A volunteer with that program, Rene Steven, provided a character reference for you (Exhibit 2).  She described you as respectful and well-mannered and honourable.  She has observed your regret for your actions and the distress it has caused your mother.  I accept that.
Sentencing issues
41	The maximum penalty for Charge 1, attempting to possess a commercial quantity of border-controlled drug is life imprisonment.  For Charge 2, trafficking, it is 10 years.  
42	I will not, of course, convict you of, and will not impose sentence on, the offences in the s 16BA notice, but I will increase the sentence on Charge 1 to account for that conduct in the way that the prosecutor set out, and alongside all other considerations.
43	The nature and circumstances of your offending are, I find, most grave, as indicated by the maximum penalty of life imprisonment on Charge 1. The offending in Charge 2 and the offences to be taken into account by way of context tend to confirm that assessment.
44	Your role in the offending was not, I find, of the lowest level, although I accept you were reluctant to work with Guerro as alleged in Charge 1.  
45	In spite of this, you ultimately agreed to cooperate in a significant way.  You rented a storage unit, provided the address to those sending the drugs, made enquiries to ensure the unit was suitable for the size of the consignment, you met the delivery and assisted unloading it, you provided information and photographs to Guerro once it had arrived, you rented a car to transport the drugs, and spent hours over a number of days unpacking the consignment in an attempt to recover the methamphetamine.
46	I note that some of the arrangements you made involved you providing your own ID and not seeking to disguise your conduct.  I accept that this reflects a somewhat reduced criminality as compared to other offenders, whose attempts at concealment reflect a higher culpability.
47	Nevertheless, your involvement was essential to the operation and reflects an intentional participation in it, knowing that the imported substance was methamphetamine.  The quantity of methamphetamine you attempted to possess was 39.54 kilos, being 52.72 times the commercial quantity of that substance.  You stood to profit substantially from your involvement, indicated at least by the messages with Guerro about making ‘20K‘ or ‘120K’ for your trouble, and the opportunity to buy into future importations.
48	I expect the value of the imported drug was very much higher than the profit you discussed with Guerro.  So while I find your role to be higher than that of a mere courier, I do not find that you were a primary organiser or major player in the importation of the drug.  This will be reflected in your sentence.  It will also permit me to give appropriate weight to other factors including your personal circumstances.
49	As to Charge 2, the quantities of drugs were much lower. However, the 
26.3 grams of meth and the 20.4 grams of heroin alleged are not insubstantial and reflect your overall involvement in the drug trade during those months.
50	The consequences to our community of this trade in drugs are very significant.  The harm caused to the ultimate users can be dire.  The cost to the community of treatment for addiction, and of policing and prosecuting offenders is great. So, I must give significant weight in sentencing you to deterring others from such offending.
51	You have no criminal history which means I will not give great weight in sentencing to deterring you specifically from further offending, but I do not lose sight of the fact of your combined offending during those months, which occurred after effectively being put on notice by the UK National Crime Agency about dealing with Guerro.
52	In any case, much to your credit, consistent with your otherwise good character, you pleaded guilty to these offences which has the benefits I have already outlined.  
53	As to your personal circumstances, I accept your family supports you and holds you in high regard but for this episode, in your otherwise promising life.  Your shame in the face of such support has been demonstrated and I expect that you feel your fall from grace most keenly.
54	You have demonstrated your abilities in schooling and university and have the capacity, should you so wish, to return to a productive and prosocial way of life.  I find in those circumstances your prospects for rehabilitation to be reasonable to good.
55	In arriving at your total sentence I have considered the effect of taking into account the s 16BA offences in the sentence on Charge 1.  That sentence, increased as it is because of your possession and trafficking in December 2023 and January 2024, in my view reflects your ongoing involvement in the drug trade during that period.  
56	The offending in Charge 2 is, I find, closely tied to if not already adequately described by the basis for the increased sentence in Charge 1, as I have just set out.  In those circumstances, while Charge 2 is rightly deserving of a term of imprisonment, in this case I will make that period wholly concurrent.
57	The prosecutor referred me to a number of comparable appellate cases exemplifying relevant principles and applicable sentencing practices.  
58	In Lee, an aggregate sentence of 13 years and three months was imposed, after a very late plea for attempting to possess 55 times the commercial quantity of methamphetamine, combined with trafficking a commercial quantity of another drug.  
59	In Lu and Huang, 10 years was imposed for attempting to possess 44 times the commercial quantity of methamphetamine.  They were quite involved in planning, but beholden to instructions from another; they were otherwise of good character and had good prospects.  A co-offender was found guilty after trial and was sentenced to 16 years.
60	In Kwan and Kwok, the sentence was reduced to 16 years on appeal for attempting to possess 44 times the commercial quantity of methamphetamine.  They had travelled to Australia for the purpose of dealing in drugs.  They were aware of the substance they were attempting to possess and while they pleaded guilty early, they did not have favourable prospects of rehabilitation.
61	In Blango, the sentence was 15 years for attempting to possess 74 times a commercial quantity of methamphetamine involving 33 consignments.  He was a member of a criminal syndicate, took steps to avoid detection, and was involved in the offending in a 'senior and trusted managerial capacity'.  He had a relevant criminal history albeit not for drugs.  He pleaded guilty on the eve of trial.
62	Of course, the results in these cases do not bind me in any numerical sense, but I have had regard to them in the way I have described.
63	The prosecutor submitted that in light of the seriousness of the offences, only a term of imprisonment that attracts a non-parole period should be appropriate.  Your counsel did not dispute this and I will impose such a sentence. 
64	I sentence you as follows.
Charge 1, attempting to possess a commercial quantity of methamphetamine, you are to be imprisoned for 10 years.
Charge 2, trafficking in drugs, you are to be imprisoned for 18 months.  
65	Both of those sentences are to commence today and so the total effective sentence is 10 years.
66	I fix a non-parole period of 6 years.
67	I declare that you have served 367 days in custody to date and direct that that be reckoned as a period already served under this sentence.
68	In accordance with s6AAA of the Sentencing Act 1991 (Vic), but for your guilty plea I would have imposed 13 years and fixed a non-parole period of 10 years.
69	Without the need to make orders I nevertheless note that you have signed a notice relinquishing ownership of a number of items that police seized from you during the investigation, including a laptop and two mobile phones.

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