R v Arcella

[2020] NSWDC 833

District Court

New South Wales

Medium Neutral Citation:

R v Arcella [2020] NSWDC 833

Hearing dates:

12 October 2020

Decision date:

12 October 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of 3 years. Non parole period of 1 year 9 months.

Proceeds of crime order - $750

Catchwords:

CRIME – Supply prohibited drug not less than the commercial quantity – Deal with proceeds of crime.

SENTENCING — Relevant factors on sentence — police expert on drug codes - commercial supply of cannabis - proceeds of crime order

Legislation Cited:

Crimes (Administration of Sentences) Act 1999

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act1986

Drug (Misuse and Trafficking) Act 1985

Cases Cited:

R v Despotovski [2020] NSWDC 110

Category:

Sentence

Parties:

Gavin Arcella (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr M Valentin (for the offender)

Solicitors:
Paul Kenny & Associates (for the offender)
Mr R Taylor, Solicitor Advocate (for Director of Public Prosecutions)

File Number(s):

2018/00392048

sentence – ex tempore revised

1. On 24 August 2020 Gavin Arcella came for trial in the Wollongong District Court.  He was arraigned and pleaded not guilty for the principal offence of supplying the prohibited drug, cannabis leaf, in not less than the commercial quantity.  On 26 August 2020 a jury found him guilty of that charge.  He must now be sentenced for that offence, which carries a maximum penalty of 15 years imprisonment.  That maximum is one of many guides to the exercise of my sentencing discretion.

2. When the matter was committed for trial from the Local Court a number of matters were also sent to this Court on a s 166 Criminal Procedure Act1986 certificate. Sequences 3 to 12 were back-up offences and will be marked withdrawn and dismissed.  Sequence 1 related to a charge that Arcella supplied cannabis leaf. When police went to his premises on 20 December 2018 they found a bag containing 376 grams of cannabis leaf; described by the Forensic and Analytical Science Service analyst as “partly mouldy vegetable matter”.  $750 in fifty dollar notes was also found in his wallet.  I am asked to deal with these related matters to which he has pleaded not guilty.  There is also a factual dispute in relation to the quantity of cannabis actually supplied which I must resolve.

Facts for sentence

3. There is no dispute that Arcella was a customer of Goran Despotovski.  I sentenced Despotovski on 15 April 2020: see R v Despotovski [2020] NSWDC 110. The issue at trial was whether Arcella was purchasing ounces or 28 gram packets of cannabis from Despotovski for his own use or purchasing pound bags of cannabis for sale to others further down the chain of supply. Although we left Imperial measures behind in the last century, drug dealers still seem bound by old traditions. The sales here were said by the Crown to be in pound lots; a 1 pound is equal to 2.543 kilograms.

4. Critical to the jury's assessment was their interpretation, with the help of a police expert on drug codes, of lawfully intercepted telephone conversations between Arcella and Despotovski between August and October 2018.  My findings of fact must be consistent with the jury's verdict which accords with how the case was presented by the Crown at trial.  While I have no doubt that Arcella was a regular user of cannabis I also, as did the jury, have no doubt that he was buying pound bags of cannabis from Despotovski and selling them for profit.  It was alleged in all that 38 kilograms of the drug was purchased from Despotovski in ten transactions.  On sentence a dispute was raised about three of the transactions; those of 12 September 2018, 17 October 2018 and 23 October 2018.

5. Having reviewed, and made my own independent assessment, of the conversations and the matters raised at trial and a finding of guilt relating to a rolled-up transaction, I have formed the view that while the conversation of 17 October fits a pattern, particularly as to how the quantity purchased was to be described by the use of the text numeral 5, the transactions of 12 September and 23 October, while suspicious, may not relate to the actual supply of cannabis. Even if they did, no quantity could be determined beyond reasonable doubt.  In all the circumstances, that would reduce the amount supplied by this offender from the 38 kilograms alleged to approximately 31 kilograms. I intend to sentence on that basis.

6. While the quantity of the drugs supplied is important, so too are the number of transactions. However, neither are determinative of the sentence, which must be synthesised by reference to all available material.  In the circumstances here, I sentence on the basis that there were eight transactions, with a total quantity in pound bags of approximately 31 kilograms. The offender did so in order to take his cut or profit from his supply to others further down the line of supply.

7. The commercial nature of the transaction, the quantity the number of transactions all indicate that while he may well have been a user, he was also seeking to profit.  A small part of the enormous profits that can be generated by the illicit sale of cannabis in our community. And while there are many in the community who would prefer to see this particular drug decriminalised, the current situation is that set out in the Drug (Misuse and Trafficking) Act 1985. 

8. Anyone who seeks to engage in the commercial supply of cannabis faces a potential maximum of 15 years imprisonment.  Where there is a commercial flavour to the transaction notwithstanding that the person may have been introduced to the trade because they themselves were a user, a custodial sentence must be seriously considered and imposed as both a deterrent to the individual offender and to others who would seek to profit from the sale of illicit drugs.  The maximum penalty recognises that it is not just the harm caused by ingesting the drug, but the harm to the community in general generated by the profits made by such illicit supplies.

9. Here, the offender was using his own home, a home he shared with his wife and children.  A moments thought about the risk he placed them under should have caused him to stop his trade.  I recognise that there are some matters, to which I will refer shortly, that indicate that he was not thinking as clearly as he should have been. 

10. Arcella said he was not guilty. He is not being punished for that but he does not get the reduction of the expressions of remorse and an early plea of guilty would otherwise entitle him to.  In the circumstances despite the subjective case made for him, there is no alternative than a sentence of full-time custody.

11. So far as the facts finding on the s 166 matters are concerned, there is no doubt a quantity of cannabis found. It seemed to be packaged as is described in the telephone intercepts. Arcella had no other source of income other than the sale of cannabis, but he is also a user of the drug. There is evidence that some of the cannabis supplied by Despotovski to him between August and October fitted the description of that found in his home. Scales were also found were but so too were “bongs” for smoking cannabis and some of the cannabis had been prepared for smoking. In the circumstances I could not be satisfied beyond reasonable doubt that the cannabis he possessed, while it may have been some of the cannabis purchased for the purpose of supply, was intended to be supplied by him. I find him not guilty of the related supply offence. He was clearly in possession of it and I find him guilty of that possess drug offence. Given that I cannot be certain as to where the cannabis came from, whether it was in fact part of that supplied by Despotovski, it would be inexpedient to punish him further for that offence.

12. There is no evidence before me that he had an income other than the supply of cannabis and social security payments.  Given his obvious commitment to his family, I find beyond reasonable doubt that the $750 in $50 notes came from his profits.  Given the indictable matters that were before me, there seems no other reasonable explanation for possession of that sum.  I find him guilty of deal with the proceeds of crime in the sum of $750.

13. The subjective material before me is set out in a Sentence Assessment Report and a short letter from his daughter's treating psychologist, Ms Drysdale, of 6 October.  His daughter suffered a traumatic incident and that incident has led to trauma and emotional and functional difficulties for the whole family.  His wife has her own problems with depression and anxiety. Ms Drysdale, while she is not specifically treating the present offender, recognises that he too is reporting symptoms of anxiety, depression and post-traumatic stress disorder.  It is clear, from the telephone recordings that were before me, that he has taken the role of principal carer in his family.  His two children will suffer as a consequence of his incarceration, as will his partner.

14. He has been before the courts before but has avoided gaol sentences.  He has had problems with illicit drugs before. He is not entitled to the leniency often given to first offenders.  I am prepared to accept that he is, and was until recently, a long term cannabis user, and that other stresses on his family, both economic and as a consequence of what occurred with his daughter, caused him to seek an easy option to obtain funds.  When he is incarcerated he will not be able to provide for his family.  When he is incarcerated because of the COVID pandemic restrictions he will have limited access to programs which were recommended in the Sentence Assessment Report and his face-to-face visits with his family will be, at least for the moment, prohibited.

15. Like everyone in the community he will live with a sense of anxiety as to what might happen if COVID enters the gaols, but I note that he would from my understanding of the recent amendments to the Crimes (Administration of Sentences) Act 1999 qualify for early parole should COVID get into the gaol.  Nevertheless it is a matter I should and do take into account.

16. The Sentence Assessment Report is on the whole positive.  It indicates that he had demonstrated a commitment to addressing his mental health problems and will seek appropriate referrals.  He will participate in any programs that can be made available to him. His reintegration into the community upon release will be assisted by Community Corrections supervision.  Given that material, and noting this is his first time in custody, and that he appears to be making a break from his cannabis using and dealing associates, a finding of special circumstances is justified.

17. How then to synthesise all of those factors?  I have the sentencing results for the other offenders caught along with Despotovski.  Arcella’s case is quite different. I do not simply compare the quantity of drugs involved.  There is no indication here that he was part of a syndicate. He simply took advantage of his contacts with Despotovski to supply Despotovski's cannabis further down the line.

18. The fact of the custodial sentence is an important matter here.  That sentence should serve the principles of general deterrence.  As I said earlier, he is not entitled to a reduction in sentence that would come from a plea of but he is not to be punished for going to trial.  His incarceration will cause harm to his family.  Those circumstances are unfortunately tragic but not exceptional.  Nevertheless, the loss of a principal caregiver will have an impact on his family and is a matter that I can and should take into account in formulating the overall sentence.

19. I am reasonably confident that he will not reoffend but every such finding has to be guarded, particularly given his now expressed regret for his offending. 

Orders

20. In all the circumstances I have determined that so far as the possess prohibited drug matter, sequence 2, is concerned it is inexpedient to record anything more than a conviction. I dispose of the proceedings pursuant to s. 10A Crimes (Sentencing Procedure) Act 1999.

21. So far as the deal with the proceeds of crime offence there will be a sentence of three months’ imprisonment which will date from today.  Given that the proceeds were on the material before me, and part of the commercial venture for which the jury found him guilty, that sentence should be made concurrent.

22. For the indictable offence you are convicted. There will be a sentence of three years imprisonment.  The formal orders of the Court are that there will be a non-parole period of one year and nine months to date from 12 October 2020.  You will be released to parole on 11 July 2022.  There will be a balance of a term of one year and three months which will commence on 12 July and expire on 11 October 2023. 

23. I make a drug destruction order if that is required.

24. I make a proceeds of crime order of $750.

**********

Decision last updated: 08 February 2021