R v Baric

[2020] NSWDC 949

District Court

New South Wales

Medium Neutral Citation:

R v Baric [2020] NSWDC 949

Hearing dates:

Friday 7 February 2020

Date of orders:

Thursday 20 February 2020

Decision date:

20 February 2020

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

Sentenced pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to an aggregate sentence of 8 years imprisonment with an aggregate non-parole period of 5 years.

Order made by consent in terms of short minutes of order that the sum of $3,480 to be forfeited to the State. Further, that all property otherwise forfeited be disposed of forthwith.

Catchwords:

CRIME — Supply prohibited drug — Two substantive offences — 2.077 kilograms of methylamphetamine — 270.4 grams of heroin — Large commercial quantity — Four Form 1 offences — Pleaded guilty in Local Court — Drugs supplied to undercover police in exchange for money several times over one-month period — Police surveillance captured meetings between police and offender — Total of $141,000 provided in exchange for drugs — Offender provided mobile device to undercover police for purpose of drug transactions — Purity of methylamphetamine relatively high — Offender had significant role in supply of illegal drugs — Offender not at top of drug hierarchy — Objective seriousness at the top of the bottom range – offender is 24 years old — Offender has no prior convictions.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW): ss 5, 53A;
Drug Misuse and Trafficking Act 1985 (NSW): ss 25(1) – (2).

Category:

Sentence

Parties:

Regina (The Queen)
Nicholas Baric (The Offender)

Representation:

Counsel:
Mr. P. Boulten SC (The Offender)
Solicitors:
Ms. C. Moore (The Crown)
Ms. E. Yazbek and Mr. M. Blair (The Offender)

File Number(s):

2019/00075071

Judgment

1. The offender Nicholas Baric is before the Court for sentence after pleading guilty in the Local Court to two charges as follows. The first, sequence 9, is a charge pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) that between 9 February and 7 March 2019 at Strathfield he supplied 2.077 kilograms of the prohibited drug methylamphetamine, being a quantity not less than the large commercial quantity applicable to that prohibited drug. This offence carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years. When sentencing for this offence the offender asks could I take into account four additional offences to be found in a schedule to a Form 1 document signed by him and on behalf of the DPP and exhibited in these proceedings. Those four additional offences are the following:
    

1. A further charge of supplying the commercial quantity of a prohibited drug, namely heroin, in the quantity of 270 grams, on 26 February 2019. This is also an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. If sentenced separately it would attract a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years.
    

2. A charge of dealing with the proceeds of crime on 7 March 2019 at Pyrmont being the sum of $3,480 in cash located in his vehicle when it was searched by police at the time of his arrest.
    

3. A charge of possessing 1.55 grams of cocaine on 7 March 2019, also at the time of his arrest.
    

4. A charge of supplying a prohibited drug on 7 March 2019, namely six vials of Alprazolam with a total weight of 77.57 grams. This is a charge contrary to s 25(1) of Drug Misuse and Trafficking Act 1985, brought as a deemed supply. If this were sentenced separately it would attract a maximum penalty of 15 years imprisonment.
    

2. The second substantive offence for which I sentence the offender today is sequence 15, also an offence contrary to s 25(2) of Drug Misuse and Trafficking Act 1985, namely that on 7 March 2019 at Pyrmont he offered to supply 700 grams of the prohibited drug heroin, which is an amount not less than the commercial quantity of that drug. This offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years.
    

3. The offender pleaded guilty to these charges early in the Local Court and was committed for sentence. In those circumstances it is appropriate to view these pleas as being entered early which reflects the utilitarian value of these pleas of guilty. I will discount the appropriate sentences by 25%. That course is argued on behalf of the offender and supported by the Crown.
    

4. Some of the offending was committed together with the offender Justin Na. Regrettably the two offenders, even though they both pleaded guilty in the Local Court and were committed to this Court for sentence, did so at different times and were given different sentence dates. This should not have happened and should not happen.
    

5. All co-offenders should be sentenced by the same Judge, and together where possible for a number of reasons. First is to ensure uniformity and consistency of approach to all co-offenders involved in the same or connected offences. Second, there are savings in Court time, and the time of individual sentencing judges, if multiple sentence proceedings are avoided. Third, in cases where an offender gives evidence in his or her own sentence proceedings, particularly in relation to that person’s role in joint offending, the evidence should be able to be relied on by the sentencing judge in deciding issues of individual and relative roles for multiple offenders and thus the objective seriousness of an individual’s offending. Unless that is done in circumstances where all co-offenders are present, it is not open to the sentencing judge in later proceedings to rely on evidence given by a co-offender because that evidence is not able to be tested by way of cross-examination on behalf of another co-offender.
    

6. As such, a judge’s findings can only be limited to the specific offender and findings of fact which can potentially impact on the assessment of the role played by a co-offender, and the objective seriousness therefore of a co-offender’s offending cannot be made based on that untested evidence. Not to do so means that even though two offenders committed an offence together, there is a real potential for each of them to be sentenced on somewhat different facts, which is exactly what has occurred in this case. It ought not have occurred here and it ought not occur at all, because it has the potential to bring the administration of criminal justice into disrepute.
    

7. In the matter before me, those who appeared for the Director of Public Prosecutions at the very latest from the very first occasion on which the matters were mentioned in the District Court, ought to have brought to the Court’s attention the fact that there was another offender either already listed for sentence in this Court or for mention or still awaiting committal in the Local Court. Equally those who were appearing for the prosecution ought to have brought this to the attention of the Local Court, which itself ought to have ensured that both of the offenders, if they were to plead guilty, and each did, were committed to this Court together so that they could have been sentenced together.
    

8. For reasons that are no longer known and, in fact more probably than not, do not matter, Mr Na it would appear either was before this Court first in time for sentence or at least was sentenced first in time. I sentenced him on 18 November 2019. At least it has been possible to ensure that the same judge sentenced both co-offenders, but the facts are not the same for each and the findings of fact about the role in particular of Mr Na, based as they were to an extent on evidence given by him at his sentence, are therefore not available on this sentence and in my view, at least more probably than not, would have been relevant.
    

9. The Court is thus hamstrung to an extent in making findings of fact at large in relation to respective roles because of the fact that these matters were not joined at a much earlier stage to ensure, in accordance with the dicta of the Court of Criminal Appeal on many occasions, that co-offenders are as much as possible sentenced together and always by the same judge.
    

10. There are agreed facts before me for this offender. From those I accept that there was a New South Wales police strike force in place from January 2019 which included a controlled operation to target the supply of prohibited drugs by the offender, Mr Baric. A police operative known as AP1 was used as part of this controlled operation. There was physical and electronic surveillance in place which captured evidence of meetings between this offender, sometimes the co-offender Mr Na, and AP1. As part of the controlled operation, AP1 ordered prohibited drugs from the offender, Baric, which was supplied during these meetings.
     

11. Between 6 February and 7 March 2019 the offender, Baric, supplied AP1 with 2.077 kilograms of methylamphetamine and 270.4 grams of heroin and received $141,000 in exchange. The offender, Baric, provided AP1 with a mobile phone device for the purpose of these transactions and arrangements, and that device had software on it so that messages sent between them were encrypted.
     

12. The first offence for sentence, that is the supply of the large commercial quantity of methylamphetamine, is in fact a rolled-up offence involving six separate supplies during the period from 6 February to 6 March, and it is the total of these individual supplies which gives rise to the subject matter of this charge, namely a quantity in excess of the large commercial quantity in the amount of 2.077 kilos. The large commercial quantity of this drug is a quantity in excess of 500 grams. Specifically, these six occasions occurred as follows:
     

The First Supply Occasion

13. During January 2019 there were discussions between Baric and AP1, and arrangements put in place for AP1 to supply drugs for Baric. During those discussions, as I have said, Baric provided AP1 with a mobile phone with encryption software so that they could communicate over this device about the supplies. The first supply occurred on 6 and 7 February. On 5 February 2019 AP1 ordered 5 ounces of methylamphetamine from Baric who met him the following day to confirm the order. Later, on 6 February, the offender delivered a sample of .93 grams to AP1 and confirmed the price for 5 ounces at $3,200 per ounce. On 7 February the offender and the co-offender, Mr Na, met in Strathfield and then went to Mr Na's accommodation where the offender collected three bags of methylamphetamine from Na's room, which he then supplied to AP1 who paid him $16,000. He went back to Na's room and retrieved another 67.5 grams which he also supplied to AP1. The total supplied on this occasion was 207.43 grams with a purity of between 70.5% and 77.5%.
     

The Second Supply Occasion

14. The second supply occurred on 12 February. On 11 February AP1 again contacted Baric to arrange further supplies in a similar way as before. The offender, Baric, met up with the co-offender, Na, went to his accommodation and Na retrieved two bags of methylamphetamine and gave them to Baric. The offender Baric then met AP1 in the afternoon and supplied him these two bags. AP1 gave Baric $8,000 in payment for the balance of the methylamphetamine which had been supplied on 7 February. The total supplied on this occasion was 111.6 grams with a purity of between 73% and 80%. There was an arrangement then put in place between AP1 and Baric, that AP1 would sell these drugs for the offender and pay him for them at a later date.
     

The Third Supply Occasion

15. The third supply occurred on 15 February 2019. AP1 messaged the offender advising that he had an order for 10 ounces or more of methylamphetamine. They met at the Star City Casino to confirm the order, later that day on 15 February 2019 the offender drove to Mr Na's accommodation and collected drugs from there. He then met AP1 again at Star City Casino to supply the drugs to him. There was electronic surveillance in place in AP1's room. Baric gave AP1 five bags of methylamphetamine for which AP1 paid $31,500. He also supplied him a further 3 bags which, similarly to the previous arrangement, was to be paid for later once it had been sold by AP1. In this meeting AP1 also gave the offender a further $12,800 for the drugs, the balance of the drug supplied to him on 12 February. The total amount supplied on 15 February was 444.5 grams of methylamphetamine. There is no evidence about the purity of the drugs on this occasion.
     

16. I note that it was only by this stage, that is by the third supply, that the large commercial quantity had been reached. Before 15 February the total supplied as part of this controlled operation was just under 400 grams. It should also be noted however that this individual supply which occurred on 15 February 2019, in its own right, would amount to a charge of supplying a commercial quantity of methylamphetamine, towards the top of the range at least for the quantity of this drug which ranges between 250 grams and 500 grams. At the time of this supply, which occurred on 15 February, Baric and AP1 also spoke about Baric's ability to supply AP1 with heroin.
     

The Fourth Supply Occasion

17. The fourth supply occurred on 20 February. The offender and AP1 met in Strathfield on that day to discuss a further supply. That was in the afternoon. The offender then left and met the co-offender, Mr Na, who then went to his own accommodation and returned with the drugs. He got into the back of the offender's car, there was an unknown male sitting in the passenger seat and the offender Baric was driving. The three of them then drove back to Strathfield Plaza and picked up AP1 who sat in the back of the car alongside the co-offender, Mr Na.
     

18. Baric told AP1 to give Mr Na the money for the drugs and he handed Na the sum of $18,900 in cash in payment for the drugs which were to be supplied and which Mr Na had collected from his accommodation. Baric told AP1 to give Na the money, so he handed him $18,900 in cash. Mr Na then handed AP1 three bags of methylamphetamine at Baric's direction. The money paid by AP1 on this occasion was for some of the drugs supplied earlier on 15 February. This particular supply on 20 February amounted to three bags of methylamphetamine and a total weight of 163.2 grams, with a purity of between 79% and 80.5%. AP1 made a part payment of $11,500 for this with the same arrangement in place, namely that he would pay for the balance after selling the drugs.
     

The Fifth Supply Occasion

19. The fifth supply occurred on 26 February 2019. The events of this day comprise part of the first charge involving supply of a large commercial quantity of methylamphetamine and also a separate charge of supplying 270.4 grams of heroin, which is the first of the Form 1 offences. The offender and AP1 were in communication with each other between 20 and 26 February in relation to the purchase of heroin, in large part. They used some coded words for heroin and methylamphetamine, although they were not of a particularly sophisticated nature. AP1 said that he had a customer for heroin and that he had arranged a hotel room for the purposes of the supply. The offender Baric went to AP1s room at Star City Casino on the afternoon of 26 February where the supplies were subject to electronic surveillance.
     

20. The offender produced a block of heroin in a plastic bag together with six further plastic bags of heroin. He told AP1 that the combined weight was a bit less than 350 grams. He also supplied three further plastic bags containing methylamphetamine. AP1 paid him $11,800 which is the balance due for drugs that had been supplied on 15 February. The offender said he would leave to try to obtain more heroin to make up a total of 350 grams.
     

21. AP1 paid the offender, Baric, $42,000 for the heroin supplied and took possession of the methylamphetamine on the same basis as previously, namely that payment would be made once it had been sold. Baric was in communication with AP1 during the rest of the day indicating that he was attempting to supply more heroin but ultimately advising that he was not able to supply more heroin that day. They arranged that it would be supplied on a day in the future. On this day, 26 February, Baric supplied AP1 with 151.8 grams of methylamphetamine and 270.4 grams of heroin.
     

The Sixth Supply Occasion

22. The sixth supply occurred on 7 March. Between 28 February and 6 March the offender and AP1 were in contact in relation to further drug supplies, in particular the supply of heroin. Baric met AP1 on 4 March at Strathfield to discuss this. The co-offender, Mr Na was present at that meeting. There was an arrangement that Baric would supply heroin to AP1, but he had difficulty sourcing it. On 7 March in the afternoon the offender messaged AP1 and during the course of these messages offered to supply him 700 grams of heroin for the sum of $107,000. The specifics of these messages and therefore the details of this offer to supply can be found on p 6 of the agreed facts.
     

23. Later that evening they met in AP1s room at Star City Casino. Baric told AP that he was not able to produce the heroin without taking the cash to his supplier and AP said that he would not hand over the cash without seeing the heroin. Baric did however supply AP1 with methylamphetamine in the form of a block for which AP1 agreed to pay $83,000. The total weight of this methylamphetamine was 998.1 grams. All of this was also subject to electronic surveillance and the offender, Baric, was arrested before the $83,000 was handed over. He was taken into custody and charged. He did not participate in an electronic interview. He has been in custody bail refused ever since, namely from 7 March 2019. His sentences will be backdated to commence on that date.
     

24. After his arrest police searched Mr Baric’s room and car. In his room they found three small bags containing a white powder which were analysed. Two of them were found to contain a total of 1.55 grams of cocaine. That is the substance of the third Form 1 offence, namely sequence 13, possession of a prohibited drug. They also located six vials of liquid which were found to contain 77.57 grams of alprazolam which is a prohibited drug. The commercial name for this substance is Xanax which is an anti-anxiety medication in the benzodiazepine family. This is the subject matter of the fourth Form 1 offence, namely sequence 14, the deemed supply of this prohibited drug. The indictable quantity of this drug is 25 grams and the commercial quantity is 1.25 kilograms.
     

25. Police also located a money counter and a quantity of cash totalling $51,150 which came from funds handed over to Baric as part of the controlled operation during the preceding months, thus something less than half of the controlled money was recovered. An amount of approximately $895,000 however was not recovered in controlled money that was handed over in payment for the drugs supplied.
     

26. The offender’s car was also searched and in that, police found a document which appeared to be a drugs sale ledger, together with the sum of $3,480 in cash. This was not from the funds handed over as part of the controlled operation and is the subject matter of the second Form 1 offence, sequence 12, namely dealing in the proceeds of crime. By asking that it be taken into account, the offender admits that these funds were in fact the proceeds of crime. There will be a forfeiture order made by consent in relation to these funds at the conclusion of the sentence.
     

The Seriousness of the Offending

27. Both of the substantive offences are serious. All drug supply charges are, but the maximum penalties here, if nothing else, make that abundantly clear. Drugs cause enormous problems in the community including for those who become addicted to them and also to others in the community who become the secondary victims when drug addicts commit offences to fund their addictions. The cost of investigating drug supply, in an attempt to prevent the supply of drugs into the community, and in particular in large amounts, is high and is another cost borne by the community. For that reason alone, the sentences for all drug supply offences and particularly serious drug supply offences, should send a message of general deterrence so that it is clear that those who would involve themselves in commercial drug supply, especially where the quantities are large, will be sentenced to lengthy periods of full time imprisonment.
     

27. For each of the two substantive sentences, the s 5 threshold is clearly reached, and only full-time custody would suffice to deal with the objective seriousness. Specifically, each of these offences is serious in its own terms and particularly so the offence of supplying the large commercial quantity of methylamphetamine. The total supplied was 2.077 kilograms, just over four times the large commercial quantity. It is therefore a significant quantity of methylamphetamine, which I take into account in assessing the objective criminality.
     

28. The Court is however aware that for charges of supplying a large commercial quantity of this or any other drug, the quantities can exceed this by tens if not hundreds of kilograms. The quantity here is nowhere near the top of the range of offences capable of being dealt with under this section and at just over 2 kilograms is in fact, if anything, towards the bottom of the range in terms of the quantity of offences charged under this section which come before the court.
     

29. A submission was put on behalf of the offender that the fact that this was a large commercial quantity has to be viewed with knowledge that this most serious form of drug supply was only able to be charged because the individual supplies on six occasions was combined. That much is correct. The submission went further however, as I understand it, that the large commercial quantity was only reached by the fifth supply. That does not seem to be the case here. On the quantities to which I have already referred, the large commercial quantity was reached at the time of the third supply, and by that stage the quantity of methylamphetamine supplied by the offender had exceeded 500 grams. In fact, the sixth supply, which forms part of this overall offence, represents an individual supply of a large commercial quantity in its own right. To that extent the offender has benefited to an extent by the fact that each of these six occasions has been aggregated to give rise to one charge.
     

30. The purity here is relatively high and it has been argued on behalf of the Crown that, to an extent, this informs the objective seriousness here. It seems to me, that in the circumstances of the charge brought here, that is not the case. These are not street level deals but are charges of supplying a large commercial quantity of this drug. It would be expected that the purity would be as it is here, given that these drugs would ultimately, had they ever been likely to reach the street, have been diluted several times and to have passed through many hands before being sold to individual users. The purity in my view here is not a factor that elevates the objective seriousness.
     

31. The offender's role, however, is significant in assessing the objective seriousness. He was significantly involved in the supply of illegal drugs, as is clear from the facts. He supplied or offered to supply two drugs, methylamphetamine and heroin. There was significant planning on his part. He provided AP1 with the encrypted device to allow communication about the supplies and did so, I infer, in order to avoid detection. There were codes used but they did not appear to be sophisticated.
     

32. He did not store the drugs himself but was clearly aware of the location at which they were stored. Whilst much of the evidence about this issue on which Mr Na was sentenced is not formally before me on this sentence, one finding made in Mr Na's sentence is available by clear inference here, namely that Mr Na was at the very least acting as a storehouse man or storeman for the drugs, which allowed the offender Baric to have some distance between himself and the drugs which he ultimately supplied. That increases the level of organisation and planning.
     

33. Baric, I accept, was a principal in this drug supply operation to the extent that he was the point of contact with the purchaser AP1, and it was he who established the supply relationship with AP1. Baric advised AP1 of the price. He used his own vehicle to meet AP1 and on one occasion to conduct a supply, an actual supply. He personally handed over the drugs to AP1 except for the occasion when they were physically handed by Mr Na to AP1, however, in circumstances where I accept it was this offender who directed that. He personally had retained a significant amount of the purchase funds which were found in his possession on his arrest.
     

34. On the other hand, however, whilst he was a principal in this drug supply operation to that extent, he was not, on the evidence before me, at the top of any hierarchy nor close to it. There is no evidence on this sentence about how the drugs came into the possession of Mr Na and thus no evidence that this occurred via the agency of the offender Baric.
     

35. It must be noted that his mobile phone was being intercepted during the whole of this period and there is no evidence before the court in the nature of intercepted calls which indicates any connection he had with the actual delivery of the drugs to Mr Na. Nonetheless his involvement was significant.
     

36. The Crown submits that his criminality is aggravated because there is a series of criminal acts. Even if this is strictly the case here, because there were six occasions in which he supplied drugs, it is a fact that the series of individual supplies is the very reason why the Crown is able to charge this offender with supplying the large commercial quantity of this drug, in an amount of 2.077 kilos, and in those circumstances it seems to me it is not open to treat the fact that there were a series of criminal acts as an aggravating factor.
     

37. The Crown, in my view quite fairly, submits that the objective seriousness is in the low range, albeit they say towards the top of that range. In the circumstances I accept that that is an appropriate characterisation.
     

The Subjective Case of the Offender

39. There are some mitigating circumstances available. This was, as I have said, a plea of guilty entered early. I accept that he comes to court as a person with no prior convictions, which is a statutory circumstance of mitigation. However, it would not be appropriate to regard him as a person of prior good character or of overall good character given that he was engaged in this drug supply in a planned way, on more than one occasion, over a period of months. His lack of convictions is a mitigating circumstance, but it plays little part, in my view, in determining the appropriate sentence here.
     

40. The fact is however that as a result of there being no prior convictions, this amounts to his first prison term and his relative youth and other subjective factors to which I will refer soon, play some part in an assessment of the appropriate sentence, and in particular, the length of the relevant non-parole periods on a finding on special circumstances.
     

41. The offender is now 24, and in fact as I understand it, today is his birthday. He grew up in Sydney, regrettably in some circumstances of dysfunction. He was bullied by his siblings to an extent. His father was often verbally and physically aggressive and violent in the household. He felt that his parents were emotionally absent, albeit that they were, no doubt, doing what they thought was best, working hard to support their family. He had a relatively good education up to HSC level, but towards the end of high school started to associate with anti-social peers and to truant. This of course had a negative impact on his education.
     

42. After leaving school, he worked in a printing factory where his father worked. He had to leave after about two years because of a medical condition, eczema, from which he has suffered since a child. This had caused him both physical and emotional pain because of the self-consciousness that arose as a result of the appearance of eczema and the way that he was often bullied and treated differently. The condition had the habit of flaring up, particularly so in times of anxiety.
     

43. I accept that he started to use a series of drugs including methylamphetamine, heroin, and Xanax about three years before his arrest in connection with a flare-up of this condition. He used the drugs in larger quantities than he had already been using as a form of self‑medication to deal with the physical pain of the eczema.
     

44. I accept also that he was to an extent ostracised at school because of this medical condition, and that in part was the reason why he spent time with anti-social peers, in order to feel accepted. It was with that group that he also started to use prohibited drugs. He had used drugs from an earlier age, about 13, but increased that use from the age of about 18 when he started to mix with a different group of friends who also used drugs. This group allowed him to use drugs on a credit basis and as a result, I accept he ran up a drug debt of several thousand dollars. By the time he was arrested, he was using a half a gram of methylamphetamine per day. I accept that his drug debt at the time of his arrest was around $15,000. As I have said, he used methylamphetamine, heroin, and also the drug Xanax at least from the age of 20, and his drug and addiction escalated thereafter.
     

45. In the course of a psychological report undertaken by Ms Anita Duffy, he gave a history that he decided to stop using drugs about a week before he was arrested in connection with having met a girl who did not use drugs. Whether or not this can be accepted on face value, it seems to be a matter of some contention giving the items found in his room on arrest, especially a relatively large quantity of heroin and more than a minimal amount of alprazolam. Even more importantly, in assessing this claim, was the fact that at the time of his arrest, in fact on that very day, he had already agreed to supply more heroin to the undercover operative.
     

46. However, I do accept that since going into custody he has not used drugs and he has expressed a desire to remain free of drugs. They have been available to him, and he has frankly told the psychologist that he has felt tempted to use drugs in gaol from time to time but has not done so.
     

47. He has completed some programs in custody when he was initially at Long Bay, but since being moved to his current correctional facility there have been no courses available to him. He has however detoxed, and in my view, has a realistic attitude to drugs and an insight into the reason he was using drugs and the reason why he therefore allowed himself to commit these serious offences.
     

48. I accept that his involvement in these supplies, at least in part, was to satisfy his substantial drug debt, but his involvement as I said, was higher than just a user/dealer.
     

49. I accept from the psychological report and also from material in Justice Health documents tendered on this sentence, that he suffers from a generalised anxiety disorder and a persistent depressive disorder, reducing the extent to which he is an appropriate vehicle for general deterrence. However, it does not in my view, operate to any great extent in that regard. His anxiety, I accept, is related to his eczema and to that extent, in part, had a connection with his increased use of drugs which ultimately led to his offending on this occasion.
     

50. The evidence indicates that he has a further medical condition known as SVT, supraventricular tachycardia, which is a rapid heartbeat as a result of disrupted electrical impulses of the heart. This was first seriously noted in February 2018. He had had some chest pain since he was 18 but did not seek treatment. In February 2018, he experienced intense chest pain which he thought was a panic attack. He went to Concord Hospital where the SVT was diagnosed. He saw a cardiologist there and wore a monitor for a short period, but no further symptoms were noted. There is no evidence that he has in fact received any further formal treatment for this condition. I do accept however from the medical notes tendered that he has had at least one other SVT episode since being in prison custody. There is a referral in place for him to be seen again at Concord Hospital, but the prison authorities have not yet put that referral into place.
     

51. The offender, himself, has written a letter of apology to the Court. I accept that it is genuine and that it indicates insight into his offending. It is, in fact, on my finding evidence of genuine remorse and contrition. He has in that apology stated that prison has saved his life because it has shown him what is likely if he goes back to abusing drugs. His family is available to support him and one silver lining of what is a relatively dark cloud for him for the time being is that he has re-established a stronger bond with his father and with his family generally. He is participating in bible studies and attending chapel. He hopes to start an apprenticeship as a carpenter on his release from custody with a company run by a friend. There are also other references and letters from both members of his family and friends, all of whom speak highly of him. Clearly, none of them was aware of his extensive drug use at the time nor his criminal offending.
     

52. His prospects of rehabilitation, in my view, are relatively good given the supports in the community, the fact that he is likely to be able to obtain employment and the courses that he has undertaken in custody. His prospects for rehabilitation, however, are entirely dependent on his ability to remain free of the use of illegal drugs and he will need, in my view, a longer than normal period of supervision in the community on his release to ensure that he does not relapse into drug use.
     

53. I accept the opinion of Ms Duffy that once he becomes a sentenced prisoner, his overall prospects of rehabilitation would be enhanced if he has access to programs such as ‘EQUIPS Addictions’ or the intensive drug and alcohol treatment program conducted at Windsor. This program, according to Ms Duffy, can be continued in the community once he is released and, in my view, that would have the impact further of improving his prospects of rehabilitation.
     

54. There is no strict parity here with the co-offender, Mr Na. The factual circumstances and the involvement of each of them in the drug supply was different. Further, Mr Na was sentenced in relation to the methylamphetamine, for the offence of being knowingly involved in the supply of methylamphetamine. His actual involvement seems, on the facts before me here, to be limited to the one occasion when he was in company with AP1 and Baric in the car. Being knowingly involved in the supply of this drug is of lesser seriousness than actual supply. The quantity involved for Mr Na was also less than half the quantity the subject matter here.
     

55. His subjective circumstances, however, were not dissimilar. He was sentenced by way of an aggregate sentence but for the offence for which he is a co-offender, the indicative sentence for Mr Na of 4 years and 6 months with a 3-year non-parole period was determined by using a starting point of 6 years. Mr Baric’s sentence for this offence must be higher, given his greater involvement and the greater quantity. Mr Na also had a number of significant Form 1 offences and so does the offender, Mr Baric, in relation to this offence and two of them are of relative seriousness. The offence of possessing 1.55 grams of cocaine, in my view, is of a very low objective criminality and should not be taken into account in any way which would increase the sentence for the substantive offence. Dealing with the suspected proceeds of crime, in my view, is equally part of the overall factual matrix and, itself, should not increase the appropriate sentence.
     

56. The other two Form 1 offences are of greater objective seriousness, that is, the actual supply of 270.4 grams of heroin and the deemed supply of 77.57 grams of Alprazolam. They ought be taken into account in a meaningful way when assessing the appropriate sentence for sequence 9.
     

57. With those considerations in mind then, I have concluded that, absent the plea of guilty, the starting point for the offence of supplying a large commercial quantity of methylamphetamine should be 10 years which, after a discount of 25%, would give rise to a sentence of 7.5 years. There are special circumstances, namely, his youth, the fact that this is his first time in custody, the need for a longer than normal period of supervision in the community and the fact that to at least some extent, his medical and psychological conditions and, in particular, the medical conditions of SVT and eczema, are likely to make his experience of custody a little more onerous. I would set a non-parole period of 4.5 years for that offence.
     

58. For the remaining substantive offence, that is the offer to supply a commercial quantity of 700 grams of heroin, the objective seriousness is at the bottom of the range for offences capable of being charged pursuant to s 25(2). It was an offer to supply, not an actual supply of heroin. A submission made on behalf of the offender was that it was not actually capable of being supplied, in circumstances where the offender was arrested on the day, he had not brought heroin to the meeting with AP1 and he was not found in possession of heroin which was capable of meeting that transaction of 700 grams. It may be that the evidence, and appropriate inferences, does not enable that proposition to be put at quite so high a level. The evidence overall establishes that the offender had contacts which would be likely to enable him to satisfy at least a supply of heroin, given that he had done exactly the same thing earlier, albeit in a lower amount of 270 grams, but in reality, so far as that point is concerned, the evidence is silent.
     

59. He has pleaded to making an offer to supply 700 grams of heroin and the evidence is not sufficient in my view to make a finding that this was not an offer that he intended to make good. He did not in fact, however, supply 700 grams of heroin and it is to be sentenced as an offer only. It is for that reason at the bottom of the range for offences capable of being dealt with under this section as an offer to supply a commercial quantity of a prohibited drug.
     

60. In terms again of parity, a proposition was put on behalf of the offender, as I understand it, that even though it was accepted that Mr Na’s involvement with the large commercial quantity supply was less and therefore it would be expected that a higher sentence would be imposed on Mr Baric, nonetheless the two offenders could be seen to some extent as being relatively equal overall because Mr Na was also being sentenced for the supply of a large commercial quantity of ecstasy.
     

61. I am not persuaded by that argument. The charge involving Mr Na’s deemed supply of that quantity of ecstasy, at least on the evidence before me on this sentence, has nothing to do with this offender and there is no connection. In any event Mr Na received a separate indicative sentence for that offence and it was a deemed supply, namely that quantity was in his possession.
     

62. The sentence for the second matter for the offender before me, that is the offer to supply 700 grams, in my view gives rise to a starting point of 4 years, reduced to 3 years after a 25% discount, and with the same finding of special circumstances I would set a 2 year non‑parole period.
     

63. If these two sentences were completely aggregated that would give rise to 10.5 years with a 6.5 year non‑parole period. That is a little excessive in my view. I have decided to deal with the sentences here by way of an aggregate sentence of 8 years, with an aggregate non‑parole period of 5 years, both of which will commence on 7 March 2019.
     

Formal Sentence Orders

64. For those reasons I make the following formal orders:
     

1. The offender is sentenced pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to an aggregate sentence of 8 years imprisonment commencing 7 March 2019 and expiring 6 March 2027, with an aggregate non‑parole period of 5 years commencing 7 March 2019 and expiring 6 March 2024, with parole thereafter of 3 years commencing 7 March 2024 and expiring 6 March 2027.
    

1. I have taken into account Form 1 offences being sequences 5, 12, 13, and 14 when sentencing for sequence 9.
    

2. The indicative sentences are as follows:
   Sequence 9: 7.5 years, with a 4.5 year non‑parole period.
   Sequence 15: 3 years, with a 2 year non‑parole period.
    

4. I make orders by consent in terms of short minutes of order, dated 7 February 2020, that the sum of $3,480 be forfeited to the State. Further, that all property otherwise forfeited be disposed of forthwith.
    

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Decision last updated: 14 November 2022