R v Barlezizian - [2022] NSWDC 379

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Barlezizian [2022] NSWDC 379
Hearing dates: 29 April 2022, 16 June 2022 & 08 August 2022
Date of orders: 10 August 2022
Decision date: 10 August 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Specify an aggregate sentence of imprisonment of 7 years with a non-parole period of 4 years

Catchwords:
CRIME — Drug offences — Ongoing supply
CRIME — Drug offences — Supply prohibited drug
CRIME — Drug offences — Supply prohibited drug — Commercial quantity
CRIME — Drug offences — Supply prohibited drug — Large commercial quantity
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
SENTENCING — Sentencing procedure — Agreed facts
SENTENCING — Sentencing procedure — Reasons for sentence

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Law Enforcement (Powers and Responsibilities) Act 2002

Cases Cited:
Imbornone v R [2017] NSWCCA 144
Muldrock v R (2011) HCA 39
R v Olbrich [1999] 199 CLR 270
Regina v Qutami [2001] NSWCCA 353
s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of [2002] NSWCCA 518
Tepania v R [2018] NSWCCA 247

Category: Sentence
Parties: Regina (Crown)
Dikran Barlezizian (Offender)
Representation:
Tessa Lumsden (Solicitor for the ODPP)
Kieran Ginges (Counsel for the Offender)
Director of Public Prosecutions (Crown)
Regency Lawyers (Offender)

File Number(s): 2020/00204631

REvISED JUDGEMENT

INTRODUCTION

Dikran Barlezizian appears for sentence upon four charges.

THE PROCEEDINGS

The matter was first listed for hearing on April 29, 2022. During submissions it became apparent that I had misperceived the offender’s case when I read the documents filed with the Court. I had thought the offender was a participant in one enterprise that encompassed all of the offences charged, whereas the parties conducted their cases upon the premise that the offender had taken part in an ongoing supply of prohibited drugs and separately had involved himself in another unrelated enterprise transporting other prohibited drugs as an Uber driver.
There were two separate police task forces investigating the offender in these activities each unaware of the activities of the other. The Court’s misperception arose from the statement of agreed facts and representations attributed to the offender by a psychologist as explained later in the judgement.
The offender claims that he was involved in each of these enterprises at the lower, if not the lowest point of the organisational structure. My analysis of the text messages on the offender’s mobile phone when correlated with his representations in the police interview undertaken in preparation for the judgement on sentence to be imposed on May 13, 2022 caused me to doubt the veracity of this assertion.
The offender did not give evidence.
To afford him procedural fairness I announced to counsel the view I had formed to allow the offender the opportunity to advance further material and submissions in support of his case. I expressed the view that at least I should view the electronic recording of the interview and not reach a decision upon the transcript alone.
Unfortunately the Crown did not have access to the recording; one had not been supplied to the offender, and neither the offender’s counsel nor the solicitor representing the director had seen the recording. Inquiries were made whilst the Court briefly adjourned but the officer who had conducted the interview was not available and a copy of the recording could not be obtained.
The hearing was adjourned to June 16, 2022 part heard when it was anticipated that a copy of the recording could be played in court in the presence of the offender and representatives and submissions made in response to my analysis of the material.
I outlined some of the features of the offender’s answers and content of text messages to assist the parties in their further preparation. The proceedings were adjourned for judgement and sentence on July 12, 2022; in the interim the parties provided further written submissions addressing the issues of concern. Unfortunately I was ill on that day and the matter was re-listed to July 28, 2022, but counsel ultimately was delayed in a trial and the next suitable was August 8, 2022. There were further submissions on this occasion and the matter adjourned to today August 10, 2022 for judgement and sentence.
The offences before the Court are:

Sequence 1, between 27 February and 27 March 2020 at Forest Lodge in the State of New South Wales did on three or more separate occasions during the period of 30 consecutive days supply a prohibited drug namely methylamphetamine for financial or material reward. S 25A(1) Drug Misuse and Trafficking Act 1985.

Sequence 3, on 11 July 2020 at Topi Topi in the State of New South Wales did supply an amount of a prohibited drug, namely 0.5343 kilograms of methylamphetamine being an amount that was not less than the large commercial quantity applicable drug. S 25(2) Drug Misuse and Trafficking Act 1985.

Sequence 5, on 11 July 2020 at Topi Topi in the State of New South Wales did supply a prohibited drug namely 309.8 grams of Ketamine. S 25(1) Drug Misuse and Trafficking Act 1985.

Sequence 28, on 11 July 2020 at Topi Topi in the State of New South Wales did supply an amount of a prohibited drug, namely 1 kilogram of gamma‑butyrolactone being an amount which was not less than the commercial quantity applicable to that drug. S 25(2) Drug Misuse and Trafficking Act 1985.

The offender asks that when sentence is determined upon sequence 3 that the Court consider additional offences, these are:

Sequence 4, on 11 July 2020 at Topi Topi in the State of New South Wales did supply a prohibited drug, namely 102.5 grams of cocaine. S 25(1) Drug Misuse and Trafficking Act 1985.

Sequence 16, on 11 July 2020 at Topi Topi in the State of New South Wales did have in his possession a prohibited drug, namely 0.53 grams of amphetamine. S 10(1) Drug Misuse and Trafficking Act 1985.

The offender adhered to his pleas of guilty, confirmed that he wanted the Court to consider the offences on the Form 1 when sentence was determined for sequence 3, and admitted that he was guilty of them.
The maximum penalty for an offence contrary to s 25A(1) Drug Misuse and Trafficking Act 1985 is imprisonment for 20 years and a fine represented by 3,500 penalty units. The maximum penalty for an offence contrary to s 25(2) Drug Misuse and Trafficking Act concerning the large commercial quantity of the drug the subject of the charge is imprisonment for life. There is a standard non-parole period of 15 years for the purposes of a Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999.
The maximum penalty for an offence contrary to s 25(2) Drug Misuse and Trafficking Act 1985 concerning the commercial quantity of the drug the subject of the charge is imprisonment for 20 years represented by 3,500 penalty units. There is a standard non-parole period of ten years for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999 for that offence.
The maximum for an offence contrary to s 25(1) Drug Misuse and Trafficking Act 1985 is imprisonment for 15 years and a fine represented by 2,000 penalty units.
The maximum penalty for an offence contrary to s 10(1) Drug Misuse and Trafficking Act is imprisonment for two years and a fine represented by 20 penalty units.

PLEAS OF GUILTY

The offender pleaded guilty in the Local Court at Burwood during committal proceedings on 24 November 2021. This is a matter to which Part 3 Division 1A Crimes (Sentencing Procedure) Act 1999 applies and in accordance with s 25D(2)(a) of the Act the discount for the utility of the pleas of guilty is 25% of the sentences that would otherwise be identified for each of the offences if they were not admitted. A further discount would be considered upon an assessment of matters to which s 23 Crimes (Sentencing Procedure) Act 1999 applies.

PRE-SENTENCE CUSTODY

The offender was arrested on 11 July 2020 and has been in custody ever since. The sentence I impose shall be taken to have commenced on that date. Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 I shall impose an aggregate sentence that shall be taken to have commenced on that day.

THE FACTS

The accuracy and detail of the statement of agreed facts as presented by the Crown were acknowledged on behalf of the offender with some qualification as the matter progressed due to the confusion created in the formulation of the document and representations attributed to the offender in the psychologist’s report tendered.
The parties had filed at the Registry their documents to allow the Court allocated the hearing to review the material prior to the presentation of the matter in court. The impression taken of the material, primarily the statement of facts and the representations attributed to the offender by the psychologist, was that the offender was employed within a single criminal enterprise that extended across the entirety of the offences upon which sentence is to be imposed.
The offender did not give evidence, a decision which he was entitled to make but which enlivened the considerations of the guidance offered by Smart AJ in Regina v Qutami [2001] NSWCCA 353 and more recently offered by Wilson J in Imbornone v R [2017] NSWCCA 144 regarding out of court representations not under oath or affirmation and not tested by cross‑examination. The caution urged applies to the nature and extent of the offender’s role in the activities from which this prosecution arose, as well as the factors unique to the offender upon which he would rely in mitigation.
The statement of agreed facts is structured in the following way. The first section provides the sequence numbers and a short description of the charges upon which sentence is to be determined followed by a summary of the circumstances of an investigation conducted under the auspices of Strike Force Elparra, including the particulars of “the co-offender” named and a summary of the facts for each offence beneath a heading identifying the respective sequence number and a short description.
After dealing with the ongoing supply charge, sequence 1, the document continues in the same format with reference to the further charges as if the entire enterprise was one and not two distinct sequences of misconduct as revealed in the course of submissions by the offender’s counsel, which included that the offender was not part of a single more extensive enterprise but had discreet roles performed at the lower level in each of the two enterprises in which prohibited drugs were available to the community.
I challenged this proposition for as I understood the facts before me this was one extensive enterprise in which the police embarked upon a controlled operation leading to the charge of ongoing supply of prohibited drugs, sequence 1, that did not immediately lead to his arrest, which did not take place until later when he was captured after surveillance as he transported quantities of other prohibited drugs on behalf of a person described as “the co‑offender”.
It is now understood that Strike Force Elparra was concerned with the activities of this offender but that the further conduct of the person described as the co-offender was from another investigation although introduced into the document when dealing with Elparra.
My misunderstanding from the terms of the statement of facts and content of the psychological assessment evaporated when the parties made clear that there were two sets of circumstances in which the offender participated, that they were unrelated, each was the subject of an investigation by a separate police task force, and each of the task forces did not know that the other was engaged upon an investigation of circumstances in which the offender was involved.
The disconnection between the two groups of police was demonstrated during the hearing when material to which s 23 Crimes (Sentencing Procedure) Act 1999 applies was presented separately by each, but not when they were together in the courtroom. The process followed was to have the first officer present their material in the absence of their colleague, after which that officer left the courtroom to be replaced by the other who then presented their material.
Further complications arose because the offender, according to his counsel, did not abandon the import of representations to police and the psychologist as to his lack of knowledge of the prohibited drugs in the receptacles that he was transporting in the second lot of circumstances from which he was charged, and that the Court could not conclude beyond reasonable doubt from relevant basic facts that he had a greater and more detailed knowledge of the contents of the receptacles that he was transporting than he asserted, though he might be found to have had suspicions that he chose to ignore.
Notwithstanding that there might have been scope to test the elements of those offences alleged against him, whether at trial or in contested facts, no opportunity to do so was sought. I was reminded by counsel that an accused person might plead guilty and be held to it even though the decision to do so was borne not of a true consciousness of guilt but to achieve the more beneficial outcome of a lesser sentence that would be lost upon a finding of guilt after contest.
It was submitted that I would determine the objective seriousness of the offending and the offender’s moral culpability according to the elements of the offences established by his pleas of guilty but illuminated by his asserted lack of knowledge in respect of which the evidence is incapable of establishing as the only rational inference to draw that he knew in fact the content of each receptacle that he was transporting at the behest of the co-offender.
I expressed concern at this but, after the opportunity to further conference the offender, counsel asserted firmly that the offender did not wish to resile from his pleas of guilty.
With the clarification provided by the submissions I revisited the statement of agreed facts to assess the objective seriousness of the offences and the moral culpability of the offender upon all the material that was put before me. I note that in the agreed statement of facts dealing with offences involving the transportation of prohibited drugs to the north coast of New South Wales at para [31] the following was included:

“The Crown accepts a plea to the offence on the basis that the offender knew the contents of the jerry can was a prohibited drug with a weight of 1 kilogram (the commercial quantity) but did not know the weight exceeded the 4 kilogram (large commercial quantity) for that drug.”

This paragraph was regarding the quantity of gamma-butyrolactone found in the offender’s possession the subject of the charge in sequence 28. The quantity seized was greater than the 1 kilogram charged which the offender thus acknowledged he knew to be in the jerry can. Upon this offence then he is to be sentenced upon the basis of a quantity of 1 kilogram.
Against this summary the offender is to be assessed in respect of two sequences of misconduct. The first is his participation in the ongoing supply to the undercover operative the subject of sequence 1 which is separate from and had no connection with the other offences, which he committed under the terms of the arrangement he had with “the co-offender”, Rohan Rapyal.
Before I embark upon a description of the facts I note there is no representation included as to his actual knowledge of the existence of the drugs charged in sequence 3, sequence 16, sequence 4 or sequence 5. However, by his pleas and acknowledgement of guilt he admits the supply of these drugs and possession of the drugs the subject of the offence contrary to s 10(1) of the Act.
Questions arose thereupon as to the basis upon which he was admitting these offences considering the responses attributed to him by police when they arrested him.
The term supply is defined in s 3 Drug (Misuse and Trafficking) Act 1985:

“Supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, hoarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.”

It is not suggested that he was not supplying the drug to the intended recipient under the arrangement he admits, namely, that he had been engaged in his role as an Uber driver to convey the items from Sydney for the co-offender in Tweed Heads. By his pleas of guilty he acknowledges the element of knowledge for these further sequences. The offence of supply is satisfied if the Crown proves he knew or believed that the substance was a prohibited drug either by proving that he knew or believed that what was being supplied was a prohibited drug or was aware that there was a significant or real chance that it was. It is uncontroversial that this is the direction given to juries in contested hearings upon this point.
In Schedule 1 Drug (Misuse and Trafficking) Act 1985:

“(a) traffickable, small, indictable, commercial, and large commercial quantities of methylamphetamine are respectively 3 grams, 1 gram, 5 grams, .25 kilograms and .5 kilograms,
(b) traffickable, small, indictable, commercial and large commercial quantities of ketamine are respectively 7.5 grams, 2.5 grams, 12.5 grams. 1.25 kilograms and 5 kilograms,
(c) traffickable, small, indictable, commercial and large commercial quantities of gamma-butyrolactone are respectively 30 grams, 10 grams, 50 grams, 1 kilogram and 4 kilograms”.

The statement of facts which the parties have agreed upon assert the following:

The offender was born on 6 February 1961 and at the material times drove a white Hyundai Santa Fe. He worked as a mortgage broker and an Uber driver using that vehicle.

The co-offender, as described, Rohan Rapyal, was born on 29 May 1992. In July 2020 he lived at an address in Epping. The particulars of the motor vehicle and the address are included in the document.

In November 2019 the police established Strike Force Elparra to investigate the supply of prohibited drugs, namely methylamphetamine, by persons including the offender.

On 4 February 2020 a controlled operation was established to enable police to engage in negotiations with the offender for the purchase of prohibited drugs.

The facts relevant to sequence 1, the charge of ongoing supply of methylamphetamine, are as follow.
The first supply was on 28 February 2020. On that date an undercover operative arranged to purchase 1 ounce of methylamphetamine from the offender for $3,500.
The offender used Wickr handle uber 55. On the same day police monitored the UCO as they attended the vicinity of the tram sheds located in Glebe. About 7.39pm police saw the offender enter the undercover operative’s car; recorded conversations disclosed the witness purchasing one ounce of methylamphetamine in a knotted freezer bag for $3,500 from the offender.
On Monday 2 March 2020 the content of the knotted freezer bag were analysed and confirmed to be 27.92 grams of methylamphetamine with a purity of 73%.
The second supply occurred on 13 March 2020. On that day the undercover operative arranged to purchase two ounces of methylamphetamine from the offender for $6,400. On the same day the police monitored the undercover operative as they attended the vicinity of the tram sheds at Glebe. About 10.22pm the police saw the offender enter the undercover operative’s vehicle; recorded conversations disclosed the undercover operative purchasing two ounces of methylamphetamine in two knotted freezer bags for $6,400 from the offender.
On 16 March 2020 the contents of the knotted freezer bags were analysed and confirmed to be 56.92 grams of methylamphetamine with a purity of 55.5%.

The third supply was on 26 March 2020. On that day the undercover operative arranged to purchase two ounces of methylamphetamine from the offender for $6,400. On the same day the police monitored the undercover operative as they attended the vicinity of the tram sheds at Glebe. The offender drove to the tram sheds in a grey Suzuki motor vehicle. About 7.20pm the police saw the offender sit with the undercover operative on a park bench near the tram sheds. Recorded conversations disclosed the undercover operative purchasing two ounces of methylamphetamine in two knotted freezer bags for $6,400 from the offender. A freezer bag was concealed in an Allen’s Fantail’s packet. Later the undercover operative met with the offender at McDonald’s, Stanmore to obtain the second packet. The second packet was concealed within a seasoned seaweed bag.
On 27 March 2020 the contents of the knotted freezer bags were analysed and confirmed to be 55.8 grams of methylamphetamine with a purity of 74.5%.
This concludes the statement of facts dealing with the ongoing supply.
There was a significant period of time between March 26, 2020 and when the offender was captured on July 11, 2020 at the Topi Topi Truck Stop. It was pointed out in the course of submissions that in that period, though the offender was kept under surveillance, there was no other occasion when he was detected in the supply of prohibited drugs. He was not charged with the ongoing supply until his arrest on 11 July 2020. I’m not entirely clear why there was that delay and there are to my mind questions about the interaction or lack of interaction between the two police strike forces that were engaged with these enterprises as their target. But I can offer no further comment upon that with the material that I have.
About 2am on July 11, 2020, the offender attended the address in Epping where “the co-offender” lived. The co-offender placed a red jerry can and a parcel wrapped in bubble wrap inside the offender’s white Hyundai. The offender then travelled in his car north on Cambridge Street to the Pacific Highway. He was kept under surveillance as he drove up the Pacific Highway to the north. At 5.45am the offender was required to stop at the Topi Topi Truck Stop on the Pacific Highway about 59 kilometres south of Taree. The police approached the vehicle. The offender was the driver and sole occupant. The police told the offender his car would be searched.
Before this occurred a video recording was made in which the offender was asked under caution whether the car contained prohibited drugs. The offender replied, “There are two parcels I have been asked to take to Tweed Heads. I haven’t looked but I presume from your appearance here and your questions that it is a drug.”
Police asked where the two parcels were. The offender replied, “There is one in the front and one in the back”. Insofar as that representation by the offender might be interpreted to be a denial of knowledge at that point that he was carrying prohibited drugs, by reason of the pleas of guilty to the charges that have him before court it must be accepted that if that was what he was intending to communicate he was not being truthful.
There was a further conversation in the facts, video recorded. The police, “Whereabouts in the car, can you tell me?” Offender, “Between the back seats”. Police, “Between the back seats, um, how long have you had that parcel for?” Offender, “Just before leaving Sydney”. Police, “Just before leaving Sydney. Can you tell me what’s in it?”. Offender, “I don’t know”. Police, “You don’t know?”. Offender, “I haven’t even touched the parcel”. Police, “You haven’t touched the parcel, can you tell me who gave you the parcel?”. Offender, “Just a person”. Police, “A person and where did you meet them?”. Offender, “Carling...Epping”. Police, “What do you think is in the parcel?”. Offender, “I don’t know”. Police, “You don’t know”. Offender, “I don’t want to know, I don’t need to know”. Police, “Do you believe it is a prohibited drug in that parcel?”. Offender, “Assuming since you are here I don’t know”. Police, “How much do you get paid to drop the parcel off?”. Offender, “I have to go back and talk about it”. Police, “Have you done this before?”. Offender, “One, one time”. Police, “How much did you get paid?” Offender, “I won’t say at the moment I would rather not say”.
Once again the denial of knowledge is displaced by the offender’s pleas of guilty and the manner in which the case has been presented on his behalf.
The offender directed the police to a red 20 litre jerry can in the footwell of the middle row of seats as one of the parcels, and an Australian post express satchel wrapped in bubble wrap in the third rear seat footwell as the second parcel. He told the police that there was something in the glovebox. The police seized the jerry can. There is an image included in the statement of facts of that item.
Police located an Australia Post express satchel wrapped in bubble wrap also in the rear footwell. Inside the satchel was a black cardboard radio box. The black cardboard box contained five heat sealed packages which each contained white powder. Four heat sealed packages were inside the black box, one package was loose in the express post bag. There are four images of this item at stages of deconstruction.
Police searched the remainder of the car and located a small black leather bag inside the glove box. Inside the black leather bag the following items were located:

Three clear resealable bags containing a crystal substance.

A small resealable bag containing a crystal substance.

A small set of electronic scales.

Empty small clear resealable bags.

Inside the offender’s left hand jumper pocket police located a paper envelope containing two small resealable bags each containing a crystal substance and a glass pipe. Police located a second glass pipe in the centre console of the car.
The item, the subject of sequence 28, supplying a prohibited drug, commercial quantity, gamma-butyrolactone, followed upon the seizure of a total quantity of 23.601 kilograms which is greater than the large commercial quantity for that drug.
As I noted, at para [31] in the agreed facts the Crown accepts that the plea to the offence was on the basis that the offender knew the contents of the jerry can was a prohibited drug with a weight of 1 kilogram but did not know the weight exceeded the 4 kilograms, the large commercial quantity for that drug. At 23.601 kilograms clearly it was well in excess of the amount specified for the large commercial quantity.
Upon analysis the jerry can contents were found to have a purity of 80.5%. There was DNA on the red jerry can matching the profile of the co‑offender Rapyal.
The large commercial quantity of methylamphetamine found in the Australia Post parcel was the subject of sequence 3. It weighed a total of 534.35 grams or .53435 kilograms. This was made up of the various quantities that were seized in the vehicle. The first of 266.8 grams, with DNA of the co‑offender Rapyal on the packaging, the purity of 76%, the second of 249.8 grams with the purity of 80% with the DNA or Rapyal on the packaging, the third, 16.36 grams, purity not tested, and the fourth, 1.39 grams, purity not tested.
Sequence 16, the charge of possessing amphetamine which is included on the Form 1, relates to the black bag inside the glove box of the motor vehicle. The first quantity was 0.01 grams, the second quantity was 0.52 grams. Both contained caffeine, total weight therefore was 0.53 grams.
Sequence 4, also on the Form 1 of supplying a commercial quantity of cocaine of 102.59 grams, upon analysis there were two quantities, one containing 101.6 grams with the DNA corresponding with that of Rapyal on the packaging, the second of 0.99 grams, without any DNA. This was also in the glove box of the car, apart from the larger quantity which was found in the plastic package.
Sequence 5, the ketamine, commercial quantity, 309.8 grams, the drug as described in the table included at para [35] in relation to this offence. The DNA of Rapyal was found on the packaging in each case. There were four quantities, the first was in a crystalline form and the other three in powder form.
The offender was arrested and conveyed to Taree Police Station where he was introduced to the custody sergeant. He had his rights read and explained to him under Part 9 Law Enforcement (Powers and Responsibilities) Act 2002. Immediately after his arrest he agreed to engage in activities which I shall describe in greater detail later in this judgment.
At 10.13am that day he participated in an electronically recorded interview. The representations made in the course of that included:

He owned the white Hyundai Santa Fe purchased in August 2018.

He admitted meeting the witness at the tram sheds in Glebe, but declined to comment in relation to the supply of methylamphetamine on the three occasions.

He adopted the comments he made to police at the Topi Topi truck stop.

He confirmed he did not wish to comment on the contents of the packages. His response was, “No because I didn’t know what’s in there”, answer 38, 40 through to 50.

There were two other family cars to which he had access, a white Honda Accord and a grey Suzuki. The Accord was in his name and the Suzuki belonged to his son.

He was driving the packages to Tweed Heads. He did not know how much he would be paid but admitted having done the delivery to Tweed Heads once before. That appears at answer 74 through to 76.

About 1.54pm on 11 July the police executed a search warrant at the co‑offender’s residence in Cambridge Street, Epping. The co‑offender was arrested and substantial quantities of prohibited drugs, including GBL, ketamine, cocaine and methylamphetamine were located.
The facts relevant to sequence 1 require further comment.
To summarise, the offender supplied a total of 5 ounces or 140.14 grams of the drug for which he exchanged $16,300 in three separate transactions, the first on 28 February 2020, a leap year, the second 14 days later on 13 March 2020, and the last 13 days after that on 26 March 2020. He delivered the first and second quantities in a Hyundai motor vehicle and the third in a Suzuki motor vehicle. He was arrested on 11 July 2020, after the further offences.
He participated in an interview on 30 September 2021. He admitted to meetings at the tram sheds in Glebe where the transactions occurred, but declined to comment upon the three occasions of supplying the drugs to the undercover operative. He admitted ownership of the Hyundai motor vehicle and he had access to the other vehicle, one of two that were available from his family.
He gave no evidence to explain this misconduct, however in the report by psychologist Marcelo Rodriguez, written on 22 April 2022, he is attributed with the following facts:

He was drug abstinent until the age of 57 when he began using methamphetamine offered to him by an acquaintance when completing a business proposal.

He ingested the drug using a pipe and found it energised him and allowed him to complete vast amounts of work.

The drug was immediately addictive.

His tolerance increased. He became dependent and would spend $300 for it, lasting him five to seven days.

He would be drained, slept all day, was irritable and abusive to his wife, and had no insight into his behaviour.

It is not clear to me what the proposition that he had no insight into his behaviour is intended to convey. The information provided is discursive and not in direct speech and therefore represents the psychologist’s perception of what was said, whatever that might have been.
Beneath the heading “Account of the Offence” the following appears;

“Mr Barlezizian said that as he became more tolerant and dependant on ice, he thought that buying large amounts of ice would reduce the cost for himself and others. He said that “money was an issue” amongst his friends and acquaintances who were also using ice. At no stage, apparently, did he intend profiting from supplying drugs. The sole purpose of buying commercial quantities was for his personal use and the use of his close friends. One of his friends (John) asked him to help a female acquaintance (Emily) to find “meth”. He was unaware that he was dealing with police informants and “Emily” was a police officer.”

His narrative continues with reference to the conduct found in the other sequences; I shall refer to those attributions when I deal with them. As noted above a strike force deployed in respect of the offence charged in sequence 1 was given the name Elparra; the strike force deployed for the extensive multi-agency investigation culminating in the arrest of the offender for the further offences was given the name Kooreal. Police engaged in that work attended the Mid‑North Coast Correctional Centre on September 30, 2021 where the offender participated in the electronically recorded interview upon which he relies for his version of events. The transcript and the accompanying images which were shown to the offender as it proceeded were tendered in the offender’s case.
The detective who conducted this interview as I understand is from Strike Force Kooreal set up for the expanded investigation beyond the circumstances of the offence of ongoing supply. This notwithstanding, the interview commenced with reference to the ongoing supply offence and the source of those drugs said to be by a woman of the name “Sienna”.
At question 23 the detective advised that he was making enquiries into a drug supply and drug syndicate in the Sydney Metro Area and said that he believed the offender was involved. The offender responded;

“Well, I had no understanding or idea about, ah, existence of a syndicate. Ah. I knew a person, a lady, as you are saying is part of the, or was, or is, I don’t know, part of a syndicate, but that was just one individual that I used, ah, to get us some drugs off.”

He said he received drugs from this woman three times, question 24 and question 51, he knew her by the name Sienna, question 25, her number was in his phone, question 26, he knew her car and had been to her home about two or three times. Her address was in Enfield and that was in his GPS. He described the premises, question 28 and following.
I was asked specifically to consider the answer to question 44 but as recorded it is not entirely clear to me, moreover it is now acknowledged by the offender that the woman Sienna was the source of the drugs supplied on March 26, 2020 but the drugs acquired for the other two transactions the subject of the ongoing supply came from another source which challenged the response to question 23 quoted above.
His response to question 44 was;

“Well the initial first time I was there just to introduce to get to know each other...she would refer to me by, ah, another person that I now, ah, by the name of Matt. Ah, we just sort of talked about it and I was interested in supply because another person was, wanted some drugs so I thought I’ll make maybe ah, a little bit of, ah, money to cover my addiction. So, next time I was there to discuss the details, ah, and, ah, I can’t even remember what was the purpose of the third time, cause I took the drugs off her not in her place.”

He collected the drugs from her at random spots away from the house that she would nominate, question 45 and following. He said they were using some sort of social network platform but could not remember what it was. He had a few of those on his phone, question 50. He described the woman, question 52 and following. He came to first meet her through a person they both knew in the period when COVID started and drugs were difficult to find. The person told him to contact her because she could be able to supply drugs, question 61.
He was asked at question 63 what his “sole purpose” in the syndicate was, to which he responded;

“well, I was never part of a syndicate, what I wanted is a person who can provide me with drugs and that’s all.....I knew her it was just a simple business transaction.”

The difficulty I have with this upon my analysis of the entire responses concerning this offence, the quantities, and the money involved, and the content of screenshots taken from his phone, question 151 and following, is that he wanted more than a simple transaction for the acquisition of drugs. It was subsequently acknowledged that the initial proposition advanced that he was solely engaged so he could have the advantage of acquiring drugs for his use and for use of his associates without any financial gain was not correct, and that he did receive a modest financial return from these activities in addition for the acquisition of drugs for his consumption and that of his friends.
His assertion that he sought drugs which, he said, was to facilitate his continued use and the use of others not identified, and the quantity of drugs specified, and that he was prepared to engage upon the ongoing supply with, he said, the sole purpose of satisfying the asserted need, is therefore qualified with the acknowledgment that he had, as said on his behalf a modest financial return.
To this end he sold 140.14 grams of the drug which he exchanged for $16,300, which he said he returned for the benefit of his supplier. There was another source of drugs for two of the transactions involved for the transfer of funds to Sienna and at least one other.
From each transaction he said his return was $100 in exchange for drugs to cover his addiction and not for financial gain, question 64. His answer was;

“Well, I was making, personally for myself, ah...$100, ah, which was to exchange for drugs and buy some for myself...but not for financial gain for myself, it was to cover my addiction.”

He said to the psychologist he was spending $300 on drugs that would last him up to seven days.
The transactions for the charge of ongoing supply were three in number over 27 days. If he is accurately represented in the psychologist’s report he would have needed $1,200 for a period of 28 days. There was no evidence revealing how the shortfall would be accommodated. He said later he received $100 for each ounce he supplied which would bring the total of $500 only. It was said in the course of submissions ultimately that his acquisition of the drugs using money that was derived in these transactions was supplemented from his earnings in his legitimate employment.
He exposed his knowledge of the price for this drug depending upon the time that it was sold, question 69. He said he did not sell “a ball” to anybody to make money for himself, he was one of a group who would put money in to buy a big amount which was cheaper, to be split amongst them so that it would cost them less, question 71. This must be a description given in respect of transactions in addition to those the subject of the charge of ongoing supply.
It is not known how many were in this group, how these transactions occurred to the benefit of this group, and there is no material upon which to correlate the transactions and the reward from his asserted purposes behind his activities.
He was shown images of packaging and the drugs from the transactions on March 26, 2020. He admitted that this was provided to the undercover operative. In response to question 77 he said,

“Well that was a request, R, by a person that used to ask me for drugs, saying that he has a friend who is interested to buy and her supplier is away, so asked me to help her and I agreed and I got in touch with the undercover police officer who told me what she wants and we agreed on a price and I basically…got in touch…Sienna and she provided me with the drugs which I took off her and were passed on to the police officer, got the money, went back to Sienna and paid her the money and that was the end of the transaction.”

The reference to a person who used to ask him for drugs bespeaks the supply of drugs to another person at some point in the past. The reference to an agreement he reached on a price bespeaks a measure of control in the transactions, with at least some authority to negotiate.

The reference to his contact made with Sienna, his receipt of drugs from her, and returning money to her bespeaks a measure of trust between them.
He said there were only three transactions with Sienna. He met her once at Glebe and twice at Zetland for the transactions, question 83. This must be read now in light of what is conceded that there was another source of the drugs for him. He and Sienna would normally communicate in text messages, question 88. He described the particulars of the transaction with Sienna and later with the undercover operative including the packaging to mask the presence of prohibited drugs inside, question 84 and following.
The package depicted in the photograph shown was completely sealed, question 100. In response to question 101 he said, “I had no idea what was inside. Well, I assumed because that’s what, what I requested for should be inside.” He was shown a police surveillance log of March 26, 2020 at question 108 and following. This includes images which he confirmed were of the drugs provided to him by Sienna for supply to the undercover operative. He identified Sienna in the images and her motor vehicle and described the transaction with her and with the undercover operative.
From the money he gave Sienna she gave him back $100 for each ounce of the drug, question 123. He said he did not know Sienna’s family name, question 130. He described his use of his motor vehicle and his son’s vehicle which was available to him, question 133 and following. He said, he and Sienna had recreationally used drugs “or testing all the drugs” which they smoked using pipes, question 143 and following.
He answered questions regarding the phone he used and the contact that Sienna recorded on the phone the police seized at his arrest, question 149 and following. He was shown images of screen shots taken from the phone. In response to further questions he confirmed the supply of drugs that came from Sienna and that she paid him from the money he brought to her, question 164 and following.
At question 160 it was put that he had said she supplied him with the methamphetamine on numerous occasions, which he confined to three occasions at question 161. He said on these occasions he only dealt with her, question 163. At question 165 it was put that she gave him money back from what he provided her and at question 166 he confined that to once.
At question 167 and following he was asked about text messages on his phone including the reference to pretzels by Sienna.
The material before the offender in the course of the interview was provided to the Court; this comprises a series of pages numbered 8-1 through to 8-13 depicting screen shots taken from the offender’s phone. That it is the offender’s phone is consistent with the image on p 8-1 showing Sienna as a contact with her number.
The messages throughout are on their face generally in cryptic terms. Those on the left side of the screen on a blue background are from Sienna, those to the right of the screen on a grey background are transmitted from the offender on this phone.
The first of them is on 14 March at 20.42. This was on a date after the second of the transactions in the ongoing supply. The first of the messages is from Sienna which in its terms suggest that this was an introductory contact or at least a contact from someone that the communicator, Sienna, might have thought would not be recognised by the offender.
She began in this, “Hey it’s Matt’s friend, he mentioned that U were interested in meeting up?”. There’s a response from the offender and then further messages between them with regard to making contact. On the page 8-2 there’s a message from Sienna on 24 March at 02.53, “Do you want a bag of pretzels again?”. That is acknowledged to be code for the provision of drugs. It is consistent with an earlier transaction which must have predated, it would appear, the first of the messages on 14 March at 20.42. As I noted that was after the second of the transactions of ongoing supply the subject of sequence 1.
The messages reveal a measure of familiarity between the two of them, co-operation as to when they might meet to transact their business, adjustment of the time at which they were to meet because of their particular circumstances at the time of contact.
The entries on p 8-5 suggest that the offender was having some difficulty making contact with Sienna. The fourth message appearing on that page from him is in the following terms, “Should I look somewhere else or there is still some hope for today?”. That carries the implication that the offender had other avenues for sourcing his drugs.
She had responded advising that she had been sick. He then at 15.40 on 3 April, two days after his enquiry as to whether he should look elsewhere he communicated in the following terms,

“It is nice to hear back from you rven” [which I take to be] "“even" better that you feel okay. Give me a few days to get rid of what I got and I will be in touch. and stay safe”.

Then the last message on the page;

“I urgently need two balls for the game this afternoon. If you can do half oz will work as well. See if you can help”

Then on page 8-06 a message from Sienna is in the following terms, this is on 7 May at 21:59;

“Hey u, have anything at that moment by any chance?”

He responded at 22:00;

“I will have in about two hours.”

At 22:04 he said,

“Okay. I am picking up in about in a hour. Will message you when ready.”

At 22:08 he wrote;

“Darling with the current shortage the prices are up big time. a B is 700. Is that okay?”

The significance of this is the communication from him to Sienna, presented to be his source of drugs for his purposes earlier described. Then on 7 May 23:21, she wrote;

“I was going to see if I could a one quarter but my mate hasn’t brought the money to me yet so do u reckon I could u a bit later to get more?”

Then shortly after,

“I can come to u the second time if that’s easier.”

Then on page 8-8, she writes;

“He shouldn’t be too far tho but if u want to leave it til tomorrow that’s understandable.”

He responded;

“It was around pretty much all night let him know when she was ready.”

Her message I should note from 8 May at 22:12. She responded at 23:11;

“No worries...thanks! He’s nearly here apparently.”

She continued on 9 May at 00:17,

“Hey yep he wants one please.”

At 00:26, “Where can we meet?”
He responded,

“Hello. At the moment I can do only half. Is it okay?”

That was at 00:40. She said;

“Yeah that’s cool.”

That is a response that could only be read as being relevant to him providing her with drugs.
This was explained in terms with the proposition that she was looking to acquire from him, drugs that had been provided to assist with her need to fulfill an obligation to the person with whom she was then dealing. It was not the normal arrangement that they had and it should not be seen to be evidence upon which one could conclude beyond reasonable doubt that his role was to any great degree beyond that which he has acknowledged in the presentation of his case.
At question 195 of the interview, he acknowledged that the text on 7 May between 20:03:18 and 23:22 was with regard to Sienna’s request for drugs from him.

THE GRAVITY OF THE MISCONDUCT

Accepting the proposition that his role was confined to supplying drugs so that he might have a source of drugs to fund his habit and the habit of his friends, whether by access to the substance or with access to the money he might receive for the provision of drugs, the content of those transmissions put in question in my view the implication that he was in a role subordinate to the woman Sienna throughout all of this.
I find that he was a participant with Sienna in the acquisition of supply prohibited drugs, each with their role to perform. I do not accept the responses dealt with so far in the judgement are entirely truthful, drawing upon my analysis of the transcript and the content of the screenshots from the phone to which I have referred.
There were further submissions qualifying what had been in the initial stages of this case in recognition that the material leaves alive the proposition that he derived something beyond what he initially claimed, said to be a modest return. I remain of the view that the offender minimised the extent of his activities in the supply of drugs in his responses to the police.
After the ERISP was played in court once it was it retrieved, the offender’s counsel provided further submissions, as I have said, supplementing those of April 26 and June 14 2022. In the supplementary submissions, the offender abandoned some of the propositions earlier advanced.
He had earlier submitted that he did not make any money out of the transactions other than the better priced methylamphetamine below what he otherwise would have paid. The submissions now advanced were:

“If it is accepted that the offender’s purchase of drugs from ‘Sienna’ was for the purpose of supplying the UCO on one (or two) occasions, but not all occasions, then his evidence of receiving $100 per ounce from her as a kick-back would also relate to his purchases from her, such as from his group of users. That is, whilst his benefit for purchasing for his ‘user-group’ enabled them all to achieve cheaper prices, he may also have received a modest financial kick-back which he used to supplement the cost of his drug use.”

He had earlier submitted that he met with his supplier Sienna for the express purposes of obtaining drugs to on supply to Emily, the undercover operative, at her request. In the supplementary submissions qualifying that earlier position:

“Contrary to earlier submissions which assumed all supplies to the UCO were from Sienna, with greater clarity it appears that Sienna supplied the offender with the drugs on 26 March 2020, but that he is not likely to have sourced the drugs from her for the supplies to the UCO on 28 February and 13 March, as they pre-dated his introductory text message with Sienna on 15 March, and were supplied in ‘freezer bags’ rather than professionally sealed food packages.”

I interpolate here that I referred to the message on 14 March at 20.42. It may be that there is a typographical error in the supplementary written submissions.

“It is still submitted, however, that the offender was a street level ‘dealer’, generally utilised in his work as an Uber driver to collect and deliver the drugs for his group of users, and that the offending to the UCO represents a larger supply than he would ordinarily have engaged. To that end, it is accepted that the offender’s supply to the UCO was of a larger quantity than a ‘street deal’.
In terms of quantities of drugs that he would obtain and then distribute to his ‘group’, in his interview with Det. Tomasic, the offender said that he would sometime [sic] purchase a half ounce for the group, whose members all put money in (answer 271, and answer 185). He said that his personal ‘batch’ was one and a half or two grams (answer 203), which was what he gave to Sienna (for her friend) and which was returned to him shortly afterwards.
It appears that the offender attempted to source some drugs for Sienna from another supplier (see text messages 8-7 on 7 May: Sienna - ‘Cos I was just thinking I could bring u the money before u see ur friend and maybe u could get an extra one?’ Offender - ‘Let me see how much he has got. I can always go back’).”

The earlier submissions asserted that he did not open the packages which he had received from Sienna which all appear to have been professionally disguised as genuine commercial grade food packages. The supplementary submission is that:

“This is certainly true for the 26 March (the third) transaction, but as the earlier two supplies appear to have been in freezer bags, and were not likely from Sienna, this submission is not now advanced in respect of the first two supplies to the UCO. Mr Barlezizian’s other purchases from Sienna for the group are likely to have been received in food packaging. They refer in their messages to a Pretzel package, which is not one that was on‑supplied to the UCO.”

The earlier submission was that his profit was to be $500. The submission now made is:

“The above submission was premised on Sienna being the offender’s source for all the drugs he supplied to the UCO ‘Emily’. The submission remains true for the supply on 26 March, which relates to $200 being paid to the offender. There is no other direct evidence as to where the offender sourced the other one (or more likely two) earlier supplies to Emily, however it is likely to have been from whomever the offender was then purchasing drugs for the benefit of his group of users. Nor is it there [sic] evidence as to what his profit from doing so would have been.”

The following submissions earlier made are no longer pressed by reference to the transcript pages and at p 12.35:

“Then 67, ‘I was requested on three occasions, 2 ounces on two times and one ounce on the first or second time, altogether 5 ounces’. Now that relates to the 5 ounces that were sold to the undercover operative, your Honour.”

That reference is to transcript of the proceedings before me on 29 April 2022. The passage appears at p 12 line 35.
The submission now made in place of that is:

“As submitted above, this appears to relate to the supply on 26 March 2020. It may have also related to the offender’s supply to his user-group, or it may have also related to the other supplies made to the UCO but sourced from another supplier, however there is no direct evidence of this and both inferences are equally open”.

And then at p 49 point 47 of the transcript counsel referred to financial reward submitting that it was $500 not $16,000; the submission continued that although this was no doubt a commercial enterprise the role of the offender was at the very low end of it.
The submission made in the supplementary document is:

“Whilst the $100 p/oz applied for the 26 March supply to the UCO, obtained from Sienna, it is not known what payment (in money, drugs or otherwise) was derived by Mr Barlezizian from the earlier deliveries. Given the quantities, and that Mr Barlezizian had elsewhere said he obtained some benefit in obtaining drugs for his group, it would be open to the Court to find that the offender did receive some benefit from the earlier supplies to the UCO, however it is submitted that such a benefit would likely to have been modest, and in line with what he received from Sienna”.

The precise level of participation by the offender and the precise benefits he derived or was to derive is not clear. So much is conceded in the terms of the supplementary submissions. The submissions on his behalf have included, to some extent, invitation to the Court to consider alternative options that might be available from the material tendered but without evidence from the offender to provide the knowledge that he must have to explain the features of his assertions that excite suspicion the Court is left with the task of assessing the objective seriousness of the offending from the documents.
The offender is not to suffer from his decision not to give evidence for that is his right and he is permitted to leave the Crown with the burden of establishing the facts upon which it would rely to show his criminality according to the standard beyond reasonable doubt. Although the offender could be observed in his responses to the police in the ERISP I find that his presentation, his demeanour, did not assist me in coming to a decision that I should accept him as truthful in all that he had to say. It was pointed out that this was an interview of some length but my perception of the questions posed by the police officers was that they were given or administered to elicit information and at no time in the course of the interview were any questions put to him to test the truth or accuracy of the assertions that he was making. However, he has no onus of proof regarding the facts upon which to assess the objective seriousness of his misconduct and his decision not to give evidence I put to one side. The Court is left to come to its decisions upon the statement of facts which he has admitted for the sentencing and the pleas of guilty to the charges. Though I doubt that he was truthful regarding his level of participation in these transactions it does not follow that I should find alternative facts when there is no evidence of them or when upon the direct evidence that I have any such alternative is not the only rational inference to draw.

SUBMISSIONS

There were lengthy submissions provided by the parties on the occasions this matter has been before the Court.
The Crown’s first submissions written on 27 April 2022 brought to attention in relation to the charge in sequence 1 that there was one type of drug supplied. He was the person who supplied the undercover operative with the drug. There was no evidence that he did not fully appreciate the consequences of his conduct. The period in which the transaction occurred is noted. There was use of an encrypted message service, Wickr, to conduct the drug supplies, there were negotiations with the person to whom the drugs were supplied as to the price and where the transaction should occur. There was consistency in the amount and the cost on each of the transactions consistent with this being a commercial enterprise. The total amount of the drug and the total amount of cash exchanged is referred to and the purity of the drug described in each case. The Crown also points to the indicia of supply found in the offender’s motor vehicle when he was ultimately detained. These were the electronic scales, clear resealable bags, some of which contained amphetamine. He also had a glass pipe with three bags of methylamphetamine on his person.
The Crown asserts that the offending of the ongoing supply falls about the middle range of objective seriousness.
With regard to the search of the offender’s car sequences 3, 5 and 28 the Crown referred to the level of sophistication involved in that activity including the sophisticated nature of the packaging in which the drugs were found, the methylamphetamine being within heat sealed packs in the Australia Post bag.
The Crown reminded me of the general principles relating to the sentencing of offences contrary to s 25(2) Drug Misuse and Trafficking Act including the quantity, purity and the circumstances of the offence and the role of the offender.
For sequence 3 the Crown advances the argument that it falls below mid‑range of objective seriousness, referring to the amount of the drug just over the large commercial quantity, the packaging of the drug, the purity.
The offence charged in sequence 28 is said to be at the lower end of the range of objective seriousness, referring to the amount, high purity, the knowledge that the offender knew that the container had in it a prohibited drug.
Sequence 5 is said to be below mid-range bearing in mind the quantity 24 times over the indictable quantity but below the commercial quantity, the purity was not tested and the packaging revealed a measure of sophistication.
I am reminded of the approach to the Form 1 offences. I am reminded of the mitigating factor of the pleas of guilty to which I have already referred.
I am reminded of his pre‑sentence custody, the s 23 issue is to be dealt with, and there is reference to the psychologist’s report of 22 April 2022. It is noted that there is no opinion as to a causal connection between whatever the psychologist identified as a disorder and the offending which might reduce his moral culpability.
The Crown notes that the offender’s substance use is a relevant matter as part of the offender’s subjective case, but I do not overlook the fact that he made a choice to use drugs and choose to continue to do so because of the benefit he perceived the drug provided.

The need for personal deterrence and general deterrence is noted and the Crown would not be heard against a finding of special circumstances.
The Crown then provided further submissions with regard to the ERISP. It says in some of these there were challenges to what was put on behalf of the offender. I am confident that I have satisfactorily proceeded through the material from that topic and I do not need to proceed with any further analysis.
The Crown notes the information provided by the offender regarding Sienna was limited and the interview related only to the events of 26 March. She had no involvement of the events of 28 February or 13 March 2020. The introduction to Sienna occurred around late‑March after both of those supplies had occurred. The different packaging of the supplies on the first and second occasion contrasting to that on the third occasion is noted. Again, the Crown noted that the offender spoke only of 26 March 2020 when dealing with Sienna.
The Crown does not submit that the offender’s position in the hierarchy is changed upon their analysis, but the expanse of his involvement in the supply of prohibited drugs was broad, multifaceted and this increased his overall culpability. This was challenged on behalf of the offender and there was discussion regarding that.
I take the view that the language used in that part of the Crown submission should be read down to the range of misconduct by the offender that extended beyond that which he initially was prepared to admit and perhaps beyond that which was ultimately acknowledged, but ultimately his overall culpability does not increase largely.
The true nature of his involvement is said to have been obscured by the content of his ERISP and what he told his psychologist. The reasons are there discussed.
There is a challenge to the financial reward that he initially confined but which was later amplified in the further submissions as I have noted.
The submissions on behalf of the offender concede that full-time custody is inevitable and that there is no other option available to the Court. The principles for assessing the misconduct include his role, his motivation, his drug addiction, the application of general and specific deterrence, his subjective case, the utility of his pleas of guilty and the s 23 matters.
I am reminded of the principles for which R v Olbrich [1999] 199 CLR 270 at [27] are authority. I have already summarised those.
There are no aggravating features. Mitigating factors are addressed, including his participation in the interview, limited financial gain, the purpose of participating in this activity to facilitate himself and his group of users, his participation in that group for six to eight months.
His perception was that he was helping out Emily because her own dealer was unable to supply at the time. It was said he was not motivated by greed. He was being paid Uber rates for the delivery to the North Coast.
His profit was limited. His role was a courier or low‑level dealer.
He was a person of otherwise good character. There is a reduced need for specific deterrence. His prospects for rehabilitation are strong. Remorse and contrition should be found and totality must be brought to account.
Further submissions were made on 14 June 2022. It was said amongst other things on this occasion that his unprompted admissions to having purchased drugs from Sienna on other occasions support his credibility in what he referred to in those answers, but it is the case in my assessment that the answers might have been intending to confine his activities on the face of things to Sienna. However, I would not express a concluded view in terms that he was seeking to do so but simply slipped up in some of his responses expanding the range of his activities.
On balance I think the submission that was made must be given some weight. I have already dealt with the further submissions conceding the matters that must be abandoned.

THE OFFENDER

The offender was born in 1961 and will turn 61 years of age this year.
He has one criminal antecedent of no significance for driving with a low range prescribed concentration of alcohol for which he was fined and disqualified. I would have thought at that stage of his life that he might have done better in that matter, bearing in mind he had no other record of a criminal nature, but I do not know what his past traffic record might have been. Be that as it may that offence has no bearing on what I am about to do.
He was assessed by psychologist Marcelo Rodriguez on 14 February 2022 via audio visual link to the facility where he was held. The history noted in that I will come to.
The psychologist referred to his circumstances, including that he was married with two adult children, his employment as a mortgage broker and as an Uber driver. He is a diabetic, he needs medication. He was assessed as having suffered from depression and anxiety over the last 19 months. Bearing in mind he was arrested on 11 July 2020 and this assessment was on 14 February 2022, a period of 19 months, it would seem that the depression corresponds or coincides with the arrest and his custodial circumstances. His mood has improved dramatically, though, over time, subject to anxiety over his court case, which is understandable.
He is missing his family, including his grandchildren. He has gained weight, he has normal appetite, and it would appear that his time in gaol has enabled him to rid his dependence upon methylamphetamine. There is no history of any psychotic symptoms.
He was born in Armenia. He came to Australia at age 33 in 1994. He lost his mother in 2021 at her age of 83, he was in custody at that point.
His father passed away recently, again while he was in custody, a matter that must have caused him some significant distress, in gaol when his parents were at the end of their lives.
He had a happy childhood. There is no evidence of any misuse or abuse of the offender as a child. He had an interest in sport. He was an elite runner. There were no challenges to his education. He graduated with a Bachelor of Arts and Education and completed a PhD although he did not defend his thesis. The topic was psychology and linguistics.
He worked as a casual teacher. He was an English teacher in Armenia and in Australia worked as a casual teacher or as a replacement at TAFE because he did not have the necessary experience to gain a full-time job as a teacher. In the 90s he became a mortgage broker working for three companies. He started his own financial company 21 years ago.
He has children of whom he is proud and he became trusted in the Armenian community. There was no history of drug use other than smoking tobacco and drinking alcohol. He did not start using illicit substances until the age of 57 when he began to use methylamphetamine after an acquaintance offered it to him in the midst of completing a business proposal. He consumed the ice by way of a pipe. It became immediately addictive and increased his energy to complete vast amounts of work. It is said that he would use up to $300 to acquire the drug which lasted him five to seven days. He tried cocaine on half a dozen times in the last few years. There is reference to his diabetes. He is attributed with the proposition that he thought that acquiring large amounts of ice would reduce the cost to himself and others because money was an issue among his friends. It is said at no stage did he intend on profiting from the supply of drugs, that the sole purpose of dealing in commercial quantities was for his personal use and those of his close friends. This must be of course qualified by what has been conceded.
He said that a person known to him asked him to take packages to Tweed Heads at Uber rates, he said he was unaware of the contents and did not ask but suspected that they were prohibited substances. That assertion must be qualified with what I earlier noted.
He was diagnosed upon his self-report that at the time he would have met the clinical criteria for amphetamine type substance use disorder. There is a passage beginning at p 7 of the report suggesting that there is a connection between his substance use disorder and the offences because it was likely he was impaired in decision-making, likely to have been affected to the point that his ability to use moral reasoning was seriously compromised.
I do not accept that. Self-induced intoxication that might have had that impact is not a matter in mitigation for the misconduct; it was his decision to embark upon the use of these drugs for the benefit that he perceived it provided.
I accept, though, that there are good prospects of rehabilitation to which the report speaks and the risk of recidivism is low.
The material tendered includes a document from his daughter who speaks of her father in most affectionate and glowing terms. She speaks of his contribution to the community, the loss of his parents and the upset that caused for him, the difficulty he is experiencing because he has not had access to family including his grandchildren. She speaks of his embarrassment and that he did not want to burden his family with his diminishing mental health. That must be a reference to his decision to embark upon the use of amphetamine which is said to make the diagnostic criteria for the disorder identified by the psychologist.
His son provided a document which again speaks of his father with affection and in the most glowing of terms. Some of the propositions advanced cannot be relied upon. It cannot be said that he did not fathom fully the ethical or moral implications and the repercussions of what he was doing. I do not accept that. It might be the son’s perception and I do not suggest that he is other than sincere in what he writes, but I do not accept that is a fair or accurate description of the offender’s decision to engage in this activity. His involvement with the community and the extent to which it relies upon him is also noted. He attributes his father with remorse.
There is a reference from a Mr Pirumyan who has known the offender since the day he came to Australia. He identifies that as having occurred in 1995. Again he speaks in positive terms.
I accept that but for this conduct, serious though it is, the offender is a person, or was at least at the time of the offending, to be accepted as a person of good character.

FINDINGS

In each of these cases I am obliged to assess the objective seriousness of the offences and in conjunction with this bring to account my finding as too the offender’s moral culpability. I have already referred to the factors advanced by the Crown for the assessment offered as to objective seriousness for each of the offences upon which sentence is to be imposed. I have undertaken the task of assessing objective gravity for each of the offences drawing upon the guidance provided by Johnson J in Tepania v R [2018] NSWCCA 247. His Honour there wrote of standard non-parole period offences and those that do not have a non-parole period specified for them. The provisions introducing the standard non-parole periods are found in Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999 which were amended to their present form after the decision in Muldrock v R (2011) HCA 39.
Dealing with the legislation, his Honour identified the following propositions at para [109]. First, s 54B within that division applies wherever a court imposes a sentence of imprisonment for a standard non-parole period offence, and must be read as a whole. The standard non-parole period is a matter to be considered by the Court as part of a single stage and not a two stage process in determining appropriate sentence, without limiting the matters that are otherwise required or permitted to be taken into account in a process of instinctive synthesis:- s 54B(2) and Muldrock v R at [131]-[132].
The concept of a standard non-parole period is explained in s 54A(2) as an abstract one. It includes only the objective factors affecting the relative seriousness of the offence when it is in the middle range of seriousness.
In construing s 54B as a whole it is important to keep in mind that s 54B(6) provides that a sentencing court is not required to identify the extent to which the seriousness of the offence in question differs from the abstract notion or theoretical offence referred to in s 54A(2). An assessment of the objective gravity of the offence is necessary, as required at common law, but the sentencing judge is not required to undertake a process of identifying features of the offence which were considered or not taken into account when considering the role of the standard non-parole period in a particular case. The task of the sentencing court is to consider all factors which bear upon the process of instinctive synthesis in a particular case including the legislative guideposts constituted by the maximum penalty and the standard non-parole period.
After referring to the second reading speech and explanatory memorandum published in respect of the amendments to this legislation his Honour continued speaking of the obligation of a court when sentencing for an offence whether or not a standard non-parole period offence to make an assessment of objective gravity applying general law principles so that all factors that bear upon the seriousness of the offence are taken into account unless excluded by statute.
Motive, provocation and non-exculpatory duress may be taken into account in this way. Factors personal to the offender that are causally connected with or materially contributed to the commission of the offence, including a mental disorder or mental impairment may be taken into account in this fashion.
It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence as his Honour noted and motive for the commission of an offence is an important factor on sentence.
His Honour then dealt with the concept of moral culpability and the flexible use of that term in various authorities. His Honour noted that mental abnormality may diminish moral culpability as an antecedent criminal history might illuminate moral culpability. If there is limited moral culpability, retribution and denunciation do not require significant emphasis.
Assessment of objective seriousness for an offence is often a matter of judgement upon which minds will differ and it is often difficult to be precise in specification of the level of objective seriousness. However, on my assessment of the material bringing into account the guidance provided in the decision to which I have referred and bearing in mind those factors to which I referred when dealing with the Crown’s submissions upon this point, I have come to the view that sequence 1 should be found to be marginally below mid‑range, sequence 3 is below mid-range, sequence 28 should be found to be in the lower range and sequence 5 is below mid-range.
To be as transparent as I might, I should refer to the factors that bring me to that decision. I differ with the Crown to the extent that in sequence 1, I have the offence marginally below mid-range, whereas the Crown places it at middle-range of objective seriousness. The Crown has spoken of the sequence of offending in the ongoing supply charge, that it could not be said that he did not fully appreciate the consequences of his conduct, his conduct was premeditated, and he must have appreciated that he was enmeshing himself in organised criminal activity, although I do not bring that to account as an aggravating factor.
The number of the transactions, there is the use of the encrypted messaging service, there is the manner in which the transactions were negotiated, there is the sophistication in the concealment of the methylamphetamine in the Allen’s Fantails packet for the third supply on 23 March 2020. There is the quantity of the drug in each case and the amount of money that was exchanged for it and there is the overall quantity amounting to less than the commercial quantity but 20 times more than the indictable quantity. The purity was also brought to account. The total financial reward in the transaction of $16,300 cash was significant but it could not on the material before me allow a finding that that money found its way into his pocket. There is also the indicia of supply to which the Crown referred found in the offender’s vehicle when he was arrested.
The offence in sequence 3 is below mid-range as I have said and the Crown has made a submission in those terms. As regard to the amount involved, that there were five separate amounts of methylamphetamine, the packaging that was employed, the purity that was found upon analysis and where the drugs were found.
Sequence 28 is in the low range upon the understanding that he, according to his belief, had one kilogram, the commercial quantity but not the large commercial quantity of gamma-butyrolactone. It was at the highest end of the scale for commercial quantity for that drug but did not read the large commercial quantity. As I noted, the commercial quantity is 1 kilogram, the large commercial quantity 4 kilograms. That last proposition needs to be qualified in the sense that the accepted quantity for the assessment of sentence is at the highest point for commercial quantity before extending into the large commercial quantity. Purity was high, 85.5% and there is the basis once the Crown accepted the plea of guilty as repeated in the submissions.
With regard to sequence 5, the charge involving Ketamine, this is said to be below mid-range with which I agree. The quantity was 24 times the indictable quantity, the purity was not tested, the packaging though was sophisticated as described.
It does not follow that one determines sentence upon the placement of the offence upon the scale of seriousness in some arithmetical exercise as is made clear by Johnson J. One needs to synthesise that consideration with all of the other factors, including the level of moral culpability, and subjective matters that are to be brought to account to determine what is the appropriate sentence.
The offender’s moral culpability is not in my judgement reduced by the circumstances in which he engaged in these activities. Once again, assessing moral culpability is an imprecise exercise, but I do not find the content of the psychologist’s report sufficient to come to the view that his moral culpability was reduced.
Drawing upon the content of the interview and the explanations attributed to him by the psychologist and bringing into account the concession ultimately advanced that he gained financial benefit from these activities, I find that he engaged upon the use of methylamphetamine for the benefits he perceived from his ingestion of the drug at a time when he was a man of accomplishment and well into, if not toward the end of his middle age. He had gainful employment, was not in financial need and chose to supply the drugs acquired from the woman known as Sienna and from other sources which he then sold on, thereby profiting to enable the continuation of his lifestyle choice in using the drug, reducing his cost of doing so, and reducing the cost of the drug to his associates. the profit to him extending beyond the costs of acquisition of the drugs to the admitted modest additional return, not quantified with any precision.

FORM 1

When I impose sentence on sequence 3, I am asked to bring to account the Form 1 offences. The offender asked that pursuant to s 32 Crimes (Sentencing Procedure) Act 1999 I assess the sentence for sequence 3 with consideration to be given to the offences listed in the Form 1. These were in respect of prohibited drugs found in the offender’s possession when he was arrested on 11 July 2020. There must be identified a sentence for sequence 3 that will provide appropriate punishment for it, subject to the consideration that must be given to the offences on the Form 1 as a consequence of which there will be an increase in what would otherwise have been imposed. Having availed himself of this arrangement, the offender has the benefit of not facing separate punishment for the additional offences but he has also provided utility in bringing those offences to conclusion.

I have reviewed the principles found in the Attorney-General’s application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of [2002] NSWCCA 518.
The additional offences should impinge upon the sentence for the principal offence requiring an appropriate increase in the sentences that would otherwise be applied to the principal offence, standing alone, thereby to reflect the need for greater weight to be given to the aspect of personal deterrence arising from the extent of the offender’s misconduct, the community is entitled to retribution for these offences.

THE DETERMINATION

The purposes for which a court may impose sentence upon an offender are expressed in s 3A Crimes (Sentencing Procedure) Act 1999. These are in essence a statement of common law principles that have evolved in this area of jurisprudence over the years. First there must be adequate punishment for the offence. Second one must prevent crime to the extent possible by imposing a sentence that will deter the offender and other persons from committing similar offences. I accept that the prospects for rehabilitation of this offender are strong and that general deterrence is the predominant consideration at this point within the context of s 3A(b).
The sentence should also provide protection to the community from the offender. I do not see this as a significant feature of this case bearing in mind the prospect for rehabilitation and what I accept to be remorse. There is a need to promote the rehabilitation of the offender. I am satisfied that, as I said, the prospect of rehabilitation is strong. He must be made accountable for his decisions to put himself at risk, taking drugs when there was absolutely no justification for him doing so, and thereupon embarking upon or entering the world of drug supply to facilitate his wish to continue down that path. His conduct is to be denounced and one must recognise the harm done by his commission of these crimes. It is noted that some authorities speak of the significance of the interdiction by the police removing these drugs from the street, however that was not the result of anything the offender was doing. So as far as he was aware he was supplying drugs to this undercover operative and elsewhere, notwithstanding the nature of the substance and the harm it causes to the community.
The question of moral culpability needs to be assessed of course with regard to what is provided by the psychologist. As I said earlier I do not accept that I should attribute weight to the proposition advanced on page 7 of the report that he was impaired in decision making because of his use of methylamphetamine; self-induced intoxication is not a matter of mitigation by force of s 22A(5AA) Crimes (Sentencing Procedure) Act 1999. Moreover, as I said he embarked upon this lifestyle later in life. There was no need for him to do so. He was a man of substance and means. It was his decision to choose that path. It should not now be relief from it in mitigation of his misconduct.
I have taken into account the additional offences, I’ll certify the Form 1 to confirm that I’ve done so.
The offender is convicted of each of the offences to which he has pleaded guilty. I shall announce sentences which I find appropriate and that I would have imposed were he being sentenced separately upon each of them.
For sequence 1, ongoing supply of methylamphetamine, the indicative sentence is one of 3 years and 10 months reduced by a discount [1] of 25% for the plea of guilty, 15% for assistance, and 5% for future assistance.
1. The material upon which the discounts for assistance were determined is analysed in a confidential judgement not for publication, secured on the court file to which access is restricted to the parties and an appellate court if required.
For the offence in sequence 3, supplying a large commercial quantity of methylamphetamine, and bringing into account the Form 1 offences, I specify a non-parole period of 2 years and 6 months with a head sentence of 4 years and 11 months. Once again this was reduced by 25% for the plea of guilty and 15% for assistance to authorities and 5% for future assistance.
For the offence in sequence 5 of supplying 309.8 grams of ketamine, the sentence is one of 2 years and 5 months reduced by 25% for the plea of guilty and 15% for assistance and 5% for future assistance.
The offence in sequence 28, supply commercial quantity of gamma-butyrolactone, I specify a non-parole period of 2 years with a head sentence of 3 years and 10 months reduced by a discount of 25% for the plea of guilty and 15% for assistance to authorities and 5% for future assistance.
The application of those discounts to the starting point in the sentence has resulted in periods that included a number of days. I have discarded those to come to sentences expressed in years and months.
The aggregate sentence is one of 7 years including a non-parole period of 4 years.
Thus, I sentence the offender to a term of imprisonment of 4 years non-parole period from 11 July 2020 to expire on 10 July 2024. I impose a further period of imprisonment for 3 years to commence at the expiration of the non-parole period, and that shall expire on 10 July 2027.
I find special circumstances. The offender has not been in gaol before this. He has made good progress toward rehabilitation according to the report provided by the psychologist and he needs an extended period during which he will be required to re-integrate in the community after having served the custodial component. I have also brought to account the limitations that might be imposed upon him by reason of the assistance he has provided and might well need to provide. I have brought to account the burden created by the Covid-19 pandemic. He is presently in a pod where there are multiple cases of Covid-19; indeed he is infected as well. There are limitations that are imposed upon the people in custody by reason of those circumstances and also the lost opportunity to interact with family who are unable to attend and visit as they might have otherwise done.
I noted that this has caused distress within his family. He has not seen one grandchild, born since he was arrested. I have also considered the loss of his parents while he was serving the custody awaiting the determination of this matter.
No other orders were sought by the parties.

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Endnote

Amendments

30 August 2022 - Added Endnote

05 December 2022 - The restriction limiting the publication of the open judgement with the neutral citation R v Barlezizian [2022] NSWDC 379 is lifted

Decision last updated: 05 December 2022

Medium Neutral Citation:	R v Barlezizian [2022] NSWDC 379
Hearing dates:	29 April 2022, 16 June 2022 & 08 August 2022
Date of orders:	10 August 2022
Decision date:	10 August 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Specify an aggregate sentence of imprisonment of 7 years with a non-parole period of 4 years
Catchwords:	CRIME — Drug offences — Ongoing supply CRIME — Drug offences — Supply prohibited drug CRIME — Drug offences — Supply prohibited drug — Commercial quantity CRIME — Drug offences — Supply prohibited drug — Large commercial quantity SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences SENTENCING — Sentencing procedure — Agreed facts SENTENCING — Sentencing procedure — Reasons for sentence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited:	Imbornone v R [2017] NSWCCA 144 Muldrock v R (2011) HCA 39 R v Olbrich [1999] 199 CLR 270 Regina v Qutami [2001] NSWCCA 353 s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of [2002] NSWCCA 518 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) Dikran Barlezizian (Offender)
Representation:	Tessa Lumsden (Solicitor for the ODPP) Kieran Ginges (Counsel for the Offender) Director of Public Prosecutions (Crown) Regency Lawyers (Offender)
File Number(s):	2020/00204631