STATE OF TASMANIA v FAHED ELNIZ and TRACY ELNIZ 26 JUNE 2025
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendants, Fahed Elniz and Tracy Elniz, pleaded guilty to one count of conspiracy to commit the crime of trafficking in a controlled substance. The particulars of the charge were that in Tasmania and Victoria, between on or about 8 April 2019 and 18 December 2019, they conspired with one or more of each other and six other people including Barry Salter, Andrew Fairfield, Melinda Lucas and Katie Shearing, to traffic in methylamphetamine and cocaine. Lucas had been involved in the importation of methylamphetamine from Melbourne to Tasmania on five earlier occasions in 2019; that is in April, June, two in early September and one in early October. The defendants’ pleas were confined to admitting an agreement to commit the importation on 18 December 2019 by Lucas and Shearing, via the Spirit of Tasmania from Melbourne to Tasmania, of 547 grams of methylamphetamine and 83 grams of cocaine. And further, in the case of Ms Elniz, the admitted conspiracy related only to cocaine. Following a lengthy disputed facts hearing, I made findings that the State had not established guilt of the conspiracy in relation to the first two importations, but that I was satisfied beyond reasonable doubt that they had joined an existing conspiracy at a time before the two September importations which continued until and including, of course, the one in December. I have published my reasons to the parties.
What follows is a combination of the undisputed Crown statement of facts and my findings.
The first three importations, which do not involve the defendants, were done at the suggestion or request of Nick Waters – who was then Lucas’ boyfriend – and Fairfield. Salter was the president of the Hobart chapter of the Bandidos OMCG, and Lucas and Fairfield were both members of that Chapter. Waters died in late November 2019. Both Waters and Fairfield were previously known to the defendants. Waters owed money, at least to Mr Elniz, and was in pursuit of money to repay that debt. At some point during the relevant period, Lucas became involved in selling some of the quantities that were imported. Both defendants went to the opening of the Hobart Bandidos club house in June 2019 and moved from interstate to a home near Dover in September 2019. A man called Fish, a Sergeant-at-Arms with the Bandidos, who seems to have had an association with the defendants beforehand and who was involved in the very first of the importations, lived with them for a time after they moved to Tasmania. Within the Bandidos’ organisation, Mr Elniz was what is known as a “Nomad” who is someone not attached to a specific chapter. Such a person was described in evidence as “floating around” being in charge of security and discipline of the group in its entirety, rather than a particular chapter. The State’s case was that the importations resulted from an arrangement between the mainland Central Chapter, which appears to be based in Victoria, and the Hobart Chapter. The evidence did not permit a finding that the illegal activity had been arranged between those chapters as such; that is, that it was an endeavour by the Bandidos chapters as organisational units, but clearly, the association with the Bandidos of all of those involved, apart from Shearing it appears, has relevance to the level of organisation and involvement.
Relevantly, Lucas did three trips to Melbourne, one on 1 September, one on 7 September and one on 8 October 2019. The first three importations in September and October involved bringing 672 grams of methylamphetamine into the State. The sale price of one point of methylamphetamine was between $50 and $100. On that basis, the total value of that quantity was between $336,000 and $672,000. The December importation was done by Lucas and Shearing, using the Spirit of Tasmania. They brought in 547.4 grams of methylamphetamine and 80 grams of cocaine. Using the same pricing, the methylamphetamine was worth between $273,700 and $547,400, with the 80 grams of cocaine – being sold at 0.1 of a gram for $50 – amounting to $41,500. The total value of the drugs the subject of the conspiracy in which the defendants were involved was therefore between $651,200 and about $1.26m.
The defendants are to be sentenced for the single crime of conspiracy. It is possible for a conspirator to be found guilty even in the absence of proof any overt act of furtherance of the conspiracy on their part. In relation to the sentencing process, it is the content of the conspiracy which primarily influences the gravity of the offending. That looks at the nature of the substantive criminal offence agreed to. But a court will need to assess the content, duration and reality of the conspiracy, what is done in furtherance of it, and the role of the offender in that. In this case, the evidence does not permit a finding of when and in what circumstances the conspiracy was entered into by the defendants, nor does it permit any precise findings about whether there was any involvement in the September importations, but the evidence does satisfy me that that they were involved in the arrangements for Lucas to travel to Melbourne on those two occasions to obtain drugs. By late September, Fairfield was chasing Lucas for money. This was most likely due because of a debt she owed for drugs she used herself, and/or sales she had made. The evidence satisfies me that in respect of the October importation, Ms Elniz flew to Melbourne to facilitate Lucas being given the drugs. Up until that point, Lucas had flown to and from Melbourne. On this occasion, due to scanning devices at the airport, one or other of the defendants told Lucas to use the Spirit of Tasmania and arranged for Fairfield to pick her up at Devonport. On the evidence, the defendants then became involved in threatening behaviour towards Lucas in pursuit of money she owed. That activity started about five days after the October importation. In mid-October, Lucas texted an unknown person saying that certain people who I am satisfied were the defendants, were “throwing demands” at her including that she had to pay them that day. In a later text message she reported that people, again, undoubtedly the defendants, were demanding money from her, and she still had a product of theirs that had not been sold. There are two text messages from Ms Elniz, one originating from Mr Elniz and forwarded, with threats to Lucas such as tracking her down and punching the fuck out of her, and saying “don’t push me you lying junkie”. By text message to a person on 14 November, Lucas reported demands for further money or she would get all her teeth smashed out. Lucas’s evidence shows that for two or three of the September/October trips she would give the drugs to either or both defendants and/or Fish and would meet to give them money; on one particular occasion meeting both defendants and giving Ms Elniz $5,000, instead of an expected $8,000. Of course, the defendants are not to be punished for the threats or any involvement in trafficking activities as such, because they are not charged with them, but these matters are relevant to the context of the conspiracy as I have explained.
Relevant to the December importation is a message sent by Lucas on 15 November saying that she had been messaging Mr Elniz, that he has calmed down but won’t wait for his money, that he is sending his wife to talk to her, and that he wants her and two friends “to do a run”. Lucas spoke to a police officer on 19 November 2019, complaining of these threats along with the people involved driving in the vicinity of her home. She provided the names of the defendants. The fact that she again went to Melbourne after this report is likely to be an indication of the pressure applied to her, and no doubt, her own addiction for which she needed funds. As to this importation, messages and phone contact between various people indicate the level of involvement of the defendants. At 9.12 am Fahed Elniz called Salter. Shearing missed a call from Tracy Elniz at 9.34 am and rang back at 9.42am with the call occupying eight seconds. There were four calls and one missed call between Salter and Tracy Elniz between 9.46am and 10.03am on 17 December. It is not disputed that Ms Elniz was on the same plane as Lucas and Shearing to Melbourne which left at 11.10am. At 6:31pm there was a call from Salter to Tracy Elniz. There are several messages between Ms Elniz, Lucas and Fairfield all of which clearly relate to the delivery of the drugs to Lucas in Melbourne. There were three contacts between Ms Elniz and Salter on 18 December, and across the two days, 17 and 18 December, Mr Elniz and Salter were in contact on 11 occasions. There was also considerable contact between the two defendants relating to Ms Elniz meeting someone in St Kilda with reference to an unnamed male person, one of which stresses that this person should not open or touch anything. I cannot be satisfied as to where precisely where the defendants sit in the distribution chain. Plainly they were involved in enlisting Lucas as courier and did so for their own benefit one way or another. I am satisfied they had an influential role in bringing drugs into this State for the purposes of sale. But it would seem probable that the drugs were sourced, directly or indirectly, from someone perhaps higher up the chain but at least with access to larger amounts.
For her part in the six importations, Lucas was sentenced to three years and ten months’ imprisonment, with a non-parole period of one half. The sentencing judge said he would impose a head sentence of about 30% lower than he otherwise would have imposed, solely because of Lucas’s promise to provide assistance in relation to future proceedings. Lucas has a prior conviction in August 2017 for trafficking in a controlled substance. There are other drug related offences in her recorded history. Shearing was made the subject of a drug treatment order with a custodial component of two years, while Fairfield, for his involvement in the December importation, was sentenced to three years and six months, with a non-parole period of one half. Salter was charged but later discharged in this Court. I note that both defendants failed to appear in this Court on 14 October 2024 having been directed to do so and were arrested on 21 October with some degree of cooperation on their part. They have remained in custody.
The defendant, Fahed Elniz, is now 50 years old. He has prior convictions in New South Wales, Victoria and South Australia. In New South Wales there are several charges of possessing a prohibited drug, going back to 1994, and in 2004 there is a conviction for supplying a prohibited drug in a commercial quantity, for which he was sentenced to two years’ imprisonment with a non-parole period of 18 months. More recently, there is a conviction in Victoria for possessing cannabis. Further personal circumstances are as follows. He grew up in a housing commission area in Campbelltown in Sydney, the oldest of six children. He is of Lebanese parentage, and as his family were the only Lebanese people in the area, that led to early and ongoing experiences of racism and a sense that he did not belong. He struggled generally with school and, regrettably, was the victim of sexual abuse while at school which contributed significantly to drug use, which started when he left school in grade 9 when he was about 15 years old. He was then using amphetamine and has done so at varying levels of frequency throughout the course of his life. He has long-standing mental health issues as a result of the trauma he suffered as a young person, and although not formally diagnosed with PTSD, I am told he exhibits some of the symptoms of that disorder. It probably goes without saying that his history of prior offending is connected to his drug habit.
He met Ms Elniz when he was 15. They have six children ranging in age between 12 and 30 and he has nine grandchildren. He joined the Bandidos as he was drawn to the idea of a brotherhood and had a keen interest in motorcycles. Despite his continuing drug use and imprisonment, he has operated several successful businesses over a number of years in New South Wales, and later it would seem, in Victoria. He and Ms Elniz moved to Tasmania in September 2019 in order to pursue a fishing business, also involving Fairfield. That business got into financial difficulty. He and Ms Elniz were to take over a café in Dover at a time of the last of the importations, but Mr Elniz was then arrested and that put an end to that venture. He spent some time in custody and was then bailed with a residential condition in New South Wales. On his return, I was told that he was able to stop his drug taking and committed no offences. He put an end to his involvement with the Bandidos and now has no associations with that group. The couple separated about three years ago, these proceedings apparently having taken a toll, but they lived in the same house until April 2024 and remain on good terms. Mr Elniz mostly spent his time as the primary carer for his young daughter, a situation which lasted for about three years before being arrested and brought to this State in October 2024. I was told of supporting correspondence from his mother and a family friend who attest to his commitment to his family and to his rehabilitation. Since being in custody, Mr Elniz has experienced difficulties in that he is not able to practise his religion as it is not capable of facilitation within the prison. In furtherance of his rehabilitation, he has participated in a number of programs while in prison and he appears to have engaged appropriately in those.
Turning then to Ms Elniz, she is now 49 years old. She has two prior convictions in New South Wales, one in 1998 for using a carriage service to menace or harass a person, and one in 2012 for possessing a prohibited drug. Since this offending, she has not been of good behaviour. She has been convicted of supplying a prohibited drug and dealing with the proceeds of crime. Those offences were committed in New South Wales and while on bail for this offending. She was made the subject of an intensive correction order for 10 months. Of course, a lot of her personal circumstances mirror what I have mentioned in relation to Mr Elniz. I was told that Ms Elniz was the primary carer for the family in the early years. When the family moved to Echuca in Victoria, and Mr Elniz was fully engaged with his businesses, Ms Elniz became badly addicted to cocaine. It was partly her drug addiction and the efforts required to run the business then being operated that led them to looking at the alternative business of fishing in Tasmania. A decision was made to move. After being charged with these offences they returned to New South Wales and all children still live there. The youngest is now of course separated from both parents and this has had a salutary effect on Ms Elniz in terms of the effect of her offending. Her daughter is suffering with anxiety and depression and is now dependent on her older sisters to care for her. Another child has mental health issues and an intellectual disability. Ms Elniz was his primary carer until she was arrested, and she greatly feels the loss of her ability to look after him. When she returned to New South Wales after being charged, she trained as a disability support worker and worked in that role for about two years but lost the employment when her working with vulnerable children clearance was not renewed. I have a reference from her then employer who attests to the value she was to the company and the high level of care she provided. She moved on to a security firm in a clerical position. That was also terminated when she was not able to obtain a police clearance. That led to a relapse into cocaine use and heavy gambling. Debt resulted and she took to working as a driver for a drug dealer and it was that which led to her conviction. She was refused bail after being arrested on that matter and spent five days in custody. I was told she has not used drugs since that time and has been committed to doing both drug and alcohol programs under the corrections order. She had been addicted on and off from 2014, which led to personal and financial struggles. I was told her involvement in this conspiracy was a direct result of debts that arose for her drug use in Echuca. Time in custody has seen her free from cocaine use. Lastly, I was told that she has had a difficult time in prison, having been assaulted on five occasions and being spat on by someone who has hepatitis C. I was also told she has a real sense of shame in relation to the offending and her drug use, which led to it. She wants to make amends in her life.
At this point I would note that the defendants had difficulty in obtaining legal representation and the pleas, while late and qualified, at least obviated the need for a long and undoubtedly cumbersome jury trial. I should also note that in approaching the sentencing task, I have been somewhat guided by sentences imposed by judges of this Court for crimes of trafficking and in particular which involved greater amounts of methamphetamine and longer periods of offending.
Mr Elniz and Ms Elniz, this Court has stressed many times that commercial dealings in drugs, particularly methylamphetamine, normally attract harsh punishment. Methylamphetamine is a very damaging and harmful drug in the community in several different ways. It is of course very damaging, if not destructive, in its direct effects on individuals and their families, and its use often leads to serious crimes of violence and dishonesty. Cocaine is not dissimilar. Sentencing must be primarily directed to condemning this sort of activity and deterring others from offending. In this case, the conspiracy related to bringing drugs into this State. Drugs from the first three importations no doubt found their way into the community. Unlike some cases with a much longer period involved, it can be said that the period for which the conspiracy operated was in the order of four to five months, but it was ended by police action. I take into account the personal circumstances of you both as I have set them out. I note the difficulties faced in prison which includes being away from your family. It seems to me that you Mr Elniz have some prospects of rehabilitation, as do you Ms Elniz notwithstanding the offence committed while on bail. In the end I can find no proper basis to distinguish between you. First, the facts speak for themselves. Next, you Mr Elniz have a conviction for supplying a commercial quantity of drugs for which you were imprisoned, although it was about 15 years before the current matter. I believe you had a closer involvement with making arrangements for the supplies to Lucas. Those things can be offset in respect of Ms Elniz’s situation by her much more active roles in the October and December importations and by the aggravating factor of her drug offending while on bail. You are both convicted and sentenced to seven years’ and six months’ imprisonment. In the case of Mr Elniz that will commence on 26 September 2024 to take account of all time in custody, and in the case of Ms Elniz that will commence on 21 October 2024. I order that you both not be eligible for parole until you have served one half of your sentence. I order the forfeiture of the following devices being ‘phones, tablets or the like. The three devices seized from Melinda Lucas, the two devices seized from Katie Shearing, the one device seized from Andrew Fairfield, the one from Mr Elniz and the one from Tracy Elniz.