R v Arseniou

[2024] NSWDC 175

District Court

New South Wales

Medium Neutral Citation:	R v Arseniou [2024] NSWDC 175
Hearing dates:	28 March 2024
Decision date:	17 May 2024
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 7 years with a non-parole period of 3 years 6 months.
Catchwords:	CRIME - SENTENCE - supply prohibited drug not less than the large commercial quantity - supply prohibited drug not less than the commercial quantity - knowingly deal with proceeds of crime.
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW): s25(2); Crimes Act 1900 (NSW): s193B(2)
Cases Cited:	DPP (C’th) v De La Rosa (2010) 79 NSWLR 1
Category:	Sentence
Parties:	Rex (Crown) Aristotelis Arseniou (Offender)
Representation:	Mr Bucksath (ODPP Parramatta) Mr Buchen SC (Offender)
File Number(s):	2022/325301
Publication restriction:	Nil

1. Aristotelis Arseniou, you appear for sentence today in relation to the following five principal offences.

2. First, supplying a prohibited drug not less than the large commercial quantity for that drug (being 12.02 grams of LSD – the threshold quantity for the large commercial quantity of that prohibited drug is 2 grams. I note, however, that that weight includes the 32 perforated cardboard sheets which were “impregnated” with lysergide). This is sequence 1.

3. Sequence 1 involves a contravention of s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for that offence is life imprisonment. There is a standard non-parole period of 15 years imprisonment.

4. Secondly, supplying a prohibited drug not less than the commercial quantity for that drug (being 497.5 grams of cocaine – the threshold quantity for the commercial quantity of that prohibited drug is 250 grams). This is sequence 2.

5. Sequence 2 also involves a contravention of s25(2) of the Drug Misuse and Trafficking Act. By having regard to the quantity of the prohibited drug, however, the maximum penalty for that offence, in those circumstances, is imprisonment for 20 years. There is a standard non-parole period of imprisonment for 10 years.

6. Thirdly, supplying a prohibited drug not less than the commercial quantity for that drug (being 418.5 grams of cocaine). This is sequence 3.

7. Sequence 3 also involves a contravention of s25(2) of the Drug Misuse and Trafficking Act. By having regard to the quantity of the prohibited drug, however, the maximum penalty for that offence in those circumstances is imprisonment for 20 years. There is a standard non-parole period of imprisonment for 10 years.

8. Fourthly, supplying a prohibited drug not less than the large commercial quantity for that drug (being 640.41 grams of MDMA – the threshold quantity for the large commercial quantity of that prohibited drug is 500 grams). This is sequence 13.

9. Sequence 13 involves a contravention of s25(2) of the Drug Misuse and Trafficking Act. The maximum penalty for that offence is life imprisonment. There is standard non-parole period of 15 years imprisonment.

10. Finally, knowingly deal with the proceeds of crime (being $629,910.00). This is sequence 15.

11. Sequence 15 involves a contravention of s193B(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 15 years. There is no standard non-parole period.

12. In addition to those five principal offences, you have asked me to take into account two matters on a Form 1, both of which I have certified and which are to be taken into account in connection with sequence 1. Those two matters are: first, knowingly take part in the supply of a prohibited drug in an amount greater than the small, but less than the indictable, quantity for that drug (being 1.01 grams of MDMA) - this is sequence 6; and secondly, supplying a prohibited drug greater than the indictable quantity, but less than the commercial quantity, for that drug (being 374.5 grams of Ketamine – the threshold quantity for the indictable quantity of that prohibited drug is 12.5 grams) - this is sequence 14.

13. The facts surrounding your offending are contained in a Statement of Agreed Facts which, recast by me as to style but not substance, are as follows.

14. Between January and February 2022, you were enrolled as a student at the University of Technology Sydney, studying marketing and finance.

15. And you were living with your mother in the Sydney suburb of Greystanes.

16. However, your activities were not limited to those studies. You also were supplying the illegal drugs I have already referred to - and in the circumstances I shall now more particularly describe.

17. On 4 May 2021, an online covert operative (“OCO”) attached to the New South Wales Police Cybercrime Squad placed an order on a “darknet marketplace” (and paid $110.00) for a prohibited drug.

18. A package, in response to that order, was sent by you and received by the OCO on 10 May 2021. It contained 1.01 grams of MDMA with a purity of 76 per cent.

19. It is these facts which constitutes sequence 6.

20. On 25 and 28 October 2022, you were placed under physical surveillance by the Cybercrime Squad.

21. Shortly before midday on 25 October 2022, you were observed leaving the property at Greystanes. You were accompanied by an unknown female (i.e., unknown to the police). You got into your motor vehicle with that other person and drove to a place where two Australia Post mailboxes were situated in the suburb of Girraween. You got out of your motor vehicle and placed several items in one of those mailboxes. You then drove away.

22. After you left the mailboxes, officers connected with the Cybercrime Squad opened the mailbox and seized several mail items which you had placed in the mailbox.

23. The first of those items was addressed to premises in South Yarra, Victoria. It contained 28 grams of MDMA, the purity of which is not known. This is part of rolled up sequence 13.

24. The second item was addressed to premises in Osborne Park, Western Australia. It contained 27.8 grams of MDMA, also with an unknown purity. It is also part of rolled up sequence 13.

25. The third item was addressed to premises in Secret Harbour, Western Australia. It contained 56.2 grams of MDMA, also with an unknown purity. It is also part of rolled up sequence 13.

26. The fourth item was addressed to premises in Bentley, Western Australia. It contained 418.5 grams of cocaine with a purity of 15 per cent. This is sequence 3.

27. The fifth item was addressed to premises in Quinn’s Rocks, Western Australia. It contained 497.5 grams of cocaine with a purity of 23.5 per cent. This is sequence 2.

28. The sixth item was addressed to premises in Bentley, Western Australia. It contained 493.5 grams of MDMA with a purity of 75 per cent. This is part of rolled up sequence 13.

29. On 28 October 2022, you were again observed to leave the property in Greystanes. You drove away from those premises but, on this occasion, you were unaccompanied. You drove to the same Australia Post mailboxes to which you had driven on 25 October 2022. And, again, you placed a number of items in that mailbox, after which you drove away.

30. And again, after you left, members of the Cybercrime Squad seized the items you had placed in the mailbox. There were four such items.

31. The first of those items was addressed to premises in Pennant Hills, New South Wales. It contained 27.8 grams of MDMA, the purity of which is not known. This is part of rolled up sequence 13.

32. The second item was addressed to premises in North Melbourne, Victoria. It contained 7.11 grams of MDMA, also with an unknown purity. This is also part of rolled up sequence 13.

33. The third item was addressed to premises in Heidelberg, Victoria. It contained 12.02 grams of LSD, also with an unknown purity. This is sequence 1.

34. The fourth item was addressed to premises in Bentley, Western Australia. It contained 374.5 grams of Ketamine, also with an unknown purity. This is sequence 14.

35. On 31 October 2022, police executed a search warrant at the Greystanes premises. 74 exhibits were located and seized by police, including a number of items consistent with drug supply activities as well as what you and the Crown have described in the agreed statement of facts as “various luxury items”. In this context, I note that, in addition to the “various luxury items” contained in the agreed statement of facts, Exhibit C contains references to you acquiring a number of what are referred to therein as “high end motor vehicles”.

36. One of the items seized was your Apple iPhone. It was subjected to analysis and, ultimately, that analysis revealed that you had four meetings with associates of a person (who may or may not have been connected with your drug supply activities) known as “Kitty Crypto”. In each of those meetings, and after you had transferred an amount of cryptocurrency to “Kitty Crypto”, you were supplied by an associate of Kitty Crypto with an amount of cash. Where you obtained those amounts of cryptocurrency from is not revealed in the agreed statement of facts.

37. At the first meeting, which took place between 14 and 15 January 2022, you received $192,960.00.

38. At the second meeting, which took place between 29 and 30 January 2022, you received $161,450.00.

39. At the third meeting, which took place between 6 and 7 February 2022, you received $116,100.00.

40. And at the fourth meeting, which took place between 22 and 23 February 2022, you received $159,400.00.

41. The total amount that you received at those four meetings was $629,910.00. This is sequence 15. What connection, if any, exists between the supply prohibited drug offences and the knowingly deal with the proceeds of crime offence is, at best, opaque in the agreed statement of facts.

42. It is necessary for the Court to make a finding of the objective seriousness of each of the principal offences for an offence of its kind.

43. In relation to sequences 1, 2, 3 and 13, important factors in determining the objective seriousness of the offending commonly are:

1. the quantity of the relevant drug - and the extent to which the quantity exceeds the relevant threshold amount;

2. the purity of the relevant drug;

3. the role played by an offender; and

4. (to the extent known) the value of the drugs.

44. In relation to those four factors:

1. the quantity of the relevant drug, and the extent to which it exceeds the relevant threshold amount, is established beyond reasonable doubt in the agreed statement of facts;

2. the purity of the relevant drug is only known for:

1. the last of the six items in “rolled up” sequence 13 (75 per cent);

2. the item in sequence 3 (15 per cent); and

3. the item in sequence 2 (23.5 per cent)

3. your role is the subject of but “scant information” (to borrow a phrase from your senior counsel) in the agreed statement of facts. As Mr Buchen SC correctly submitted on your behalf, the agreed statement of facts is silent as to: the provenance of the various drugs; the terms upon which you came to receive them; how the orders were placed or received; and whether there was any supply chain or hierarchy (or what your role in any such chain or hierarchy was); and

4. there is no evidence of the value of any of the drugs.

45. In the result, and bearing in mind the competing onuses of proof (for example, I would need to be satisfied, beyond reasonable doubt, that you had the role of a principal; or I would need to be satisfied, on the balance of probabilities, that you were a mere “foot soldier” (again to borrow an expression from Mr Buchen) – neither of which findings I am able to make) I shall not draw any inference adverse to your interests in relation to the evidentiary lacunae I have just referred to.

46. Taking these various considerations into account, I have concluded that:

1. sequences 1 and 13 fall considerably below the mid-range for offences of their kind;

2. sequences 2 and 3 fall below the mid-range for offences of their kind; and

3. sequence 15 falls slightly below the mid-range for an offence of its kind.

47. There are no additional aggravating factors for any of the principal offences.

48. In relation to sequence 1, it is necessary to consider to what extent (if at all) the matters on the Form 1 will increase the sentence for that principal offence. Insofar as sequence 6 is concerned, it will result in no meaningful increase in the sentence for sequence 1. Insofar as sequence 14 is concerned, it will result in a very modest increase in the sentence for sequence 1.

49. You did not give sworn evidence in the sentence hearing. Rather, your additional subjective circumstances were provided to the Court through the following documents:

1. a report by Mr Borenstein, a psychologist, dated 30 January 2024;

2. affidavits by your mother and girlfriend both made 20 March 2024;

3. two references;

4. an apology letter from you;

5. medical records concerning your father; and

6. certificates of achievement and similar documents which relate to your time in custody to date.

50. I am satisfied, on the balance of probabilities, that you had a troubled and traumatic childhood. Your father is an Australian of Greek heritage. Your mother is an Australian of Chinese heritage. Your father’s marriage to your mother was not his first marriage. From his first marriage, your father has adult children – and they have resented your father’s marriage to your mother and, sadly it would seem, your birth.

51. Mr Borenstein has comprehensively set out in his report the many troubling and traumatic aspects of your childhood which were not limited to the consequences of the troubled marriage between your parents. The history contained in that report is supported by the affidavits of your mother and girlfriend, and your own letter.

52. The Crown has not challenged anything about the subjective case advanced on your behalf.

53. For my purposes, it is sufficient for me to set out the “opinion” section of Mr Borenstein’s report:

“Mr Arseniou is facing a number of drug related offences as set out in the Statement of Agreed Facts.

Mr Arseniou has no criminal antecedents.

Mr Arseniou is an only child, and for as long as he can recall, his parents fought and eventually separated and divorced in 2017, and lived under the same roof till 2019.

As a child, Mr Arseniou felt constantly on edge and feared occasions when his parents would fight, which would frequently end with his mother becoming so distraught she would throw and smash items, and Mr Arseniou was hit to his head and left a scare over his eyebrow. Mr Arseniou said he attempted to intervene and protect his mother, and later in life he understood the arguments centred around finances and Mr Arseniou’s father gifting his restaurant to his daughter from his first marriage, which left Mr Arseniou’s mother financially disadvantaged. They lived together in acrimony, and there was significant tension impacting negatively on Mr Arseniou’s emotional and psychological development, compounded by him being singled out, harassed and bullied in primary and high school.

Mr Arseniou was identified as a “half caste”, and fun was made of his surname and the age of his father, referred to by peers as Mr Arseniou’s grandfather. Mr Arseniou was bullied, harassed and he struggled to form friendships. He was a loner, and regularly sought inclusion, which occurred towards the end of high school, and he began clubbing and he entered a social milieu, defined by drug and alcohol use and gambling.

Over the years, Mr Arseniou struggled with significant traumatic events, which included the death of his uncle and cousin, and his father’s diagnosis of terminal cancer. Mr Arseniou relied on a maladaptive coping mechanism, i.e. drugs, including cocaine, Endone, Xanax, alcohol and gambling.

Mr Arseniou could not cope with the reality of his life, defined by cumulative traumas, and witnessing his mother’s deteriorating mental health, “I would comfort her and there was no-one to comfort me”. Mr Arseniou said he became caught up in a drug culture, and over time, “I felt normal”.

Mr Arseniou said leading up to and during the offending period, his academic (university) studies suffered during Covid-19 and he was attempting to reach academic requirements online whilst consuming drugs and alcohol and gambling.

Mr Arseniou said he is now burdened by guilt, remorse and contrition knowing the impact drugs have on individual lives, relationships and the broader community.

Mr Arseniou continues to feel indirectly responsible for his girlfriend’s decision to terminate a pregnancy in August 2021.

Mr Arseniou understands the need to engage in intensive psychological treatment, knowing his father will soon die of metastatic cancer. Mr Arseniou struggles with recurring nightmares of being left alone.

Mr Arseniou said leading up to and during the offending period, and in the company of others and using drugs, he felt a sense of relative inclusion and belongingness, in contrast to his school and family life. Mr Arseniou said drugs, alcohol and gambling allowed him to escape reality, and he realises he needs to learn how to cope without drugs, alcohol or gambling.

There is nothing in Mr Arseniou’s history to predict criminogenic or antisocial tendencies.

Mr Arseniou was struggling with symptoms of severe depression and complex post traumatic stress (PTSD), leading up to and during the offending period, impacting negatively on judgement, and behavioural choices.

Mr Arseniou’s diagnosis is complex Post Traumatic Stress Disorder (PTSD), Recurrent Major Depression and Substance, Alcohol and Gambling Disorders leading up to and during the offending period, which he relied on exclusively to avoid the reality of his life circumstances, and in particular his father’s terminal cancer and mother’s deteriorating mental health in the wake of his parents’ marital breakdown.

Psychological treatment assisting Mr Arseniou learn more effective ways of managing feelings, and improved emotional and psychological resilience, will, in my opinion, mean the likelihood of him relapsing into using substances, alcohol and gambling as maladaptive coping mechanisms and significantly reduce the likelihood of him reoffending.”

54. The psychological conditions noted by Mr Borenstein, and the disrupted and challenging aspects of your upbringing, to some degree, reduce your moral culpability for your offending. They also moderately reduce the full application of the principle of general deterrence. (cf. DPP (C’th) v De La Rosa (2010) 79 NSWLR 1 at [77].)

55. Furthermore, given the absence of a criminal history and your first, and confronting, custodial experience, specific deterrence is not a material consideration in this sentencing exercise - but it is still of some relevance.

56. One sentencing factor, however, that is fully engaged is the need to encourage your rehabilitation. In this regard, I accept as genuine and insightful the expressions of remorse in your unsworn letter and the second-hand expressions of remorse in the affidavits made by your mother and girlfriend and in the psychologist’s report.

57. By having regard to those expressions of remorse, your early pleas of guilty in relation to the drug offences, the circumstances of your plea of guilty to the proceeds of crime offence, the absence of any prior convictions, your relatively young age, the ongoing support of your mother and girlfriend, and the courses you have already successfully completed whilst on remand, I am satisfied, on the balance of probabilities, that you have good prospects of rehabilitation. And those prospects would be further enhanced by a longer period on parole.

58. In just referring to the matters I have taken into account in assessing your prospects of rehabilitation, I mentioned the timing of your pleas of guilty.

59. In relation to the four supply prohibited drug offences, you will receive an effective discount of 25 per cent for those pleas; and in relation to the dealing with the proceeds of crime offence, you will receive an effective discount of 10 per cent for that offence.

54. In addition to the discounts for the pleas of guilty, you are also entitled to a further discount for each of the five principal offences because of the contents of Exhibit C. That additional discount will be, in relation to all principal offences, 15 per cent (past). So that, effectively, for each of sequences 1, 2, 3 and 13, there will be a combined discount of 40 per cent; and for sequence 15, there will be a combined discount of 25 per cent.

55. No sentence for any of the five principal offences other than a period of full-time imprisonment is appropriate.

56. I intend imposing an aggregate sentence which will commence on the date of your arrest, 31 October 2022. The discounts I have referred to will be applied to the indicative sentences underpinning that aggregate sentence.

57. In determining the aggregate sentence, as the drug supply offences arise out of what can reasonably be described as a set of “common factual circumstances”, and as a deliberate act of leniency, there should be a substantial degree of effective concurrency for those four offences.

58. In fixing the non-parole period for the aggregate sentence, I make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. I make that finding because: your prospects of rehabilitation would be enhanced by a longer period on parole; this is your first period of imprisonment; and your relative youth.

59. In relation to sequence 1 (and taking into account the two matters on the relevant Form 1), except for the combined discount of 40 per cent, the indicative sentence would have been imprisonment for 3 years. After that discount, the indicative sentence is imprisonment for 1 year 9 months; and the indicative non-parole period is 10 months.

60. In relation to sequences 2 and 3, except for the combined discount of 40 per cent, the indicative sentences would have been imprisonment for 5 years. After that discount, the indicative sentences are imprisonment for 3 years; and the indicative non-parole periods are 1 year 6 months.

61. In relation to sequence 13, except for the combined discount of 40 per cent, the indicative sentence would have been imprisonment for 6 years. After that discount, the indicative sentence is imprisonment for 3 years 7 months; and the indicative non-parole period is 1 year 9 months.

62. In relation to sequence 15, except for the combined discount of 25 per cent, the indicative sentence would have been imprisonment for 6 years. After that discount, the indicative sentence is imprisonment for 4 years 6 months.

63. Aristotelis Arseniou, for the offences in sequences 1, 2, 3, 13 and 15, I convict you and sentence you to an aggregate sentence of imprisonment of 7 years.

64. I fix a non-parole period of 3 years 6 months to date from 31 October 2022 and which will expire on 30 April 2026.

65. I fix a balance of 3 years 6 months to date from 1 May 2026 and which will expire on 30 October 2029.

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Decision last updated: 17 May 2024