R v Cantarakis

[2024] NSWDC 650

District Court

New South Wales

Medium Neutral Citation:

R v Cantarakis [2024] NSWDC 650

Hearing dates:

29 October 2024

Date of orders:

29 October 2024

Decision date:

29 October 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

A sentence of imprisonment of 1 year and 4 months to be served subject to an Intensive Correction Order

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Cocaine

SENTENCING — Guidelines for sentencing — Role of guidelines

SENTENCING — Mitigating factors — Good character — Late plea of guilty — No notable record of previous convictions

SENTENCING — Penalties — Intensive Correction Order

SENTENCING — Relevant factors on sentence — Deterrence — Objective seriousness — Consideration of an Intensive Correction Order

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Youth

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Blackman & Walters [2001] NSWCCA 121

Blakeney v R [2022] NSWCCA 277

Clarke-Jeffries v R [2019] NSWCCA 56

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

R v Blair (2005) 152 A Crim R 462

R v Geddes (1936) 36 SR (NSW) 554

R v Herring (1956) 73 WN (NSW) 203

R v Shi [2004] NSWCCA 135

R v Windle [2012] NSWCCA 222

Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

Yardley v Betts (1979) 22 SASR 108

Category:

Sentence

Parties:

Dimitri Cantarakis (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
D Pace (for the accused)

Solicitors:
Simon Joyner Lawyers (for the accused)
M Rollestone solicitor advocate for Public Prosecutions (NSW) (Crown)

File Number(s):

2023/176830

JUDGMENT – Ex temore revised

Introduction

1. It needs to be stated and restated – the supply of unlawful drugs in our community causes many and different harms. There is harm done to the individual users of the drug. There is harm done to the families of those users, who have to put up with the problems created by their loved ones using the drugs. There are also significant economic harms to the community because of the often large and untaxed profits made from the sale of illicit drugs. The sale of illicit drugs often leads to other crimes being committed by people to obtain funds for drugs or as a consequence of criminals trying to get their hands on drug money.

2. There may be a better way, they may be suggested at the forthcoming drug summit, but as someone who was involved in the first drug summit, I am not going to hold my breath waiting. Police, in order to intercept drug supply operations, have to employ surreptitious surveillance and allow drug operations to continue in order to trace suppliers and those they supply to. On occasions they may go too far, but this case is not one of them.

Agreed Facts

3. A lawful police investigation was investigating a local criminal Mustajab Turi; who is to be sentenced in February 2025. Surveillance devices had been placed on his telecommunications and in Turi’s apartment. He was buying cocaine from Sydney and distributing it to others, who would then either use or distribute it further. He was an associate of Dimitri Cantarakis but that association was not drug related. However, on 25 May 2023 Turi entered into an arrangement with Cantarakis for Cantarakis to collect a quantity of cocaine and return with it to the apartment in Wollongong.

4. For reasons that are still not entirely clear, it may have something to do with Cantarakis’ own drug use, he agreed to engage in this operation. He collected the drugs, and he delivered them to Turi. A subsequent search warrant found 194.9 grams of cocaine.

5. Soon after Cantarakis was arrested. He spent just under four months in custody before being allowed strict bail. The bail was effectively home detention. He kept to the conditions of his bail.

The guilty plea

6. When the matter was before the Local Court, he did not accept responsibility for his actions and the matter was listed for trial. After, listing negotiations continued. They led to a fresh indictment being presented. He then plead guilty before this Court to an offence of supplying a prohibited drug: Drug Misuse and Trafficking Act 1985 (NSW), s 25(1). That offence carries a maximum penalty of 15 years’ imprisonment. That maximum is an important guide to the exercise of my sentencing discretion, it conveys Parliament’s view of the relative seriousness of the offence.

7. Although the plea came late and to a different indictment that was originally presented, the provisions of s 25D Crimes (Sentencing Procedure) Act 1999 (NSW) permit only a 5% reduction in the otherwise appropriate sentence to reflect the utilitarian value of the plea. He will have that benefit. He will also have the benefit of a reduction of the otherwise appropriate sentence to reflect the fact he was on effectively home detention with his liberty was curtailed during the remand period.

The seriousness of the offending

8. A judge is required to identify all the factors relevant to sentence, discuss their significance and make a value judgment about the appropriate sentence given all the factors of the case; paying appropriate regard to the often conflicting purposes of sentencing. Sentences must be proportionate to what was done. An assessment of the objective seriousness of the offence is essential to setting the parameters and the appropriate sentencing outcome: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51].

9. In making this assessment I have been assisted by Crown submissions from Mr Rollestone, solicitor advocate for the Director of Public Prosecutions, and Mr Pace, of counsel, for the offender. Those submissions help inform this judgment. So far as matters of fact and principle are concerned, there is very little between them. I thank counsel for their assistance.

Supply offence

10. In regard to an offence of supply, the role of the offender is relevant, very relevant to my assessment of the seriousness of the offence. Here, it is accepted Cantarakis was in no way a principal in the drug supply operation. He was a courier. The quantity of drugs supplied is important; 195 grams is a lot more than the 5 gram indictable quantity.

11. There is no evidence he was involved in any other similar activity. The offence occurred over a few hours on a single day.

12. All I know about his rationale for engaging in this process is that he expected some reward but, reviewing the Agreed Facts, what that ‘something in return’ might be I do not know.

13. It appears his was a one-off involvement in Turi’s otherwise extensive network. That said, absent the involvement of people prepared to act as Cantarakis did, drug distribution networks would collapse: R v Shi [2004] NSWCCA 135; R v Blair (2005) 152 A Crim R 462. It is, sadly, not unusual for those who are making profits, large profits, from supplying drugs to utilise others to take the risk.

14. For the reasons I have outlined, any involvement in crimes such as this, is serious and is treated seriously by the courts and generally attracts a custodial sentence and, more often than not, a full-time custodial sentence.

Subjective case

15. Cantarakis was born in 2001. He is still young. He has one matter on his record, which I can safely ignore. Leniency is often given to first offenders, even for drug matters, and he is entitled to a degree of leniency.

16. Of particular importance here, is that he has served three months and 19 days on remand before being granted strict bail. I do not underestimate the lived experience of gaol. His letter to me indicates that he has no intention of ever repeating that experience. His letter is one that I would expect of a maturing young man who has solid plans for his future. He expresses an appropriate degree of regret and shame for what he did. He is now well aware of the impact of his offending on himself and his family, who provide support, as the references before me indicate.

17. The material still shows some lack of insight into the impact of drug use on others and the community, and while he may not get the benefit of remorse, he is not to be punished for it. It is very hard for people involved in drugs to express the same sort of remorse that courts expect when there is an individual victim of a case. He is still young, and he still has much to learn: Blakeney v R [2022] NSWCCA 277 at [78].

18. I have the benefit of a report prepared by Ms Cullen, a psychologist. She has comprehensively gone through Cantarakis’ childhood and his background. She has applied her skills and tested him. She gives a history of a young, but immature man who has solid plans for his future. While he is superficially at least, confident, he still has a lot of growing up to do. It is clear at the relevant time he was not thinking at all about the consequences for himself, let alone others. He has been significantly impacted by his time in custody and he has suffered the restrictions of his strict bail conditions.

19. She notes that he has demonstrated sound accountability and that while on bail he has reengaged with his family and his church. She noted that at the relevant time, although he was experimenting with business and other vocations, he lacked direction. He appears to have found that direction and is engaged in online studies for a professional university degree.

20. He is, on all the material before me, a young man of some promise who has the support and capacity to overcome this significant blemish in what will be, I trust, an otherwise exemplary life.

21. The law does recognise that young people can take a while to mature and learn. Sometimes, people’s cognitive and emotional immaturity continues well into their twenties and the capacity to make good decisions can be impacted upon, particularly if they are involved with illicit drugs or see some attraction in the lifestyle of those who obtain money without working for it: Clarke-Jeffries v R [2019] NSWCCA 56.

22. At about the time Cantarakis was born the then Chief Judge at Common Law had this to say:

“The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits.” Blackman & Walters [2001] NSWCCA 121

“If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm …”: Blackman & Walters [2001] NSWCCA 121 (Wood CJ) at CL referring, with approval, Yardley v Betts (1979) 22 SASR 108 at [112]-[113].

Synthesis

23. A court has to take into account, as I said, all material facts; there are no golden rules: R v Geddes (1936) 36 SR (NSW) 554 at [555]-[556]; Markarian at [65].

24. Personal deterrence objectives have been met by, his conviction, the four months’ gaol, and his strict bail. A gaol sentence can mark the Court’s view of the seriousness of the crime and signal to others what will happen if they do as he did: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. General deterrence, that is, a signal to others in the community that to behave as Cantarakis did will be treated seriously, will be met by a sentence of imprisonment to be imposed, and the fact that there was a period of presentence gaol.

Consideration of an Intensive Correction Order (‘ICO’)?

25. It is accepted, by the prosecution that were I to reach a view that a sentence of less than two years could be imposed, the option of serving the sentence by intensive correction in the community was open to me. In this case, I accept the defence submission that a sentence of less than two years could be imposed, taking into account all relevant considerations.

26. A principled approach must be followed. The stages are; firstly, no penalty other than imprisonment is appropriate. That is conceded. The length of sentence can be less than two years. I then have to consider the paramount consideration of community safety. Community safety is not simply achieved by incarcerating someone: Yardley v Betts.

27. Importantly, in a Sentence Assessment Report before the Court, experienced Corrections officers speak highly of Cantarakis and his prospects for the future. They do not suggest any supervision conditions. But conditions are important to the making of an ICO as there must be one additional condition. He is able to, and he should do, some community service.

28. Adopting the forward-looking approach explained by the Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, it compels, in this case, that the offender be given a ‘break’ and that the balance of his sentence be served subject to intensive correction in the community.

Orders

29. I have rounded to Cantarakis’ advantage. My initial assessment after reduction for the plea was a sentence of 1 year and 8 months. He served four months. So, the total sentence will be one of 1 year and 4 months. It will be served subject to intensive correction in the community. The additional condition will be a community service work condition requiring the performance of community service work for 125 hours.

30. Order explained to the offender:

“There are very important standard conditions for an ICO. The first is that you do not commit any further offences. The second is you submit to supervision by Community Corrections. There are many directions which can be given to you by Community Corrections. Given their report, I do not anticipate that they will impose additional conditions on you, but you have to understand, if people put temptation in your way or if you feel that you are not able to cope during the period of the sentence, turn to the Corrections officers. They will not punish you, they will put you in touch with people who can help.”

31. The formal orders of the Court are: There is a sentence of 1 year and 4 months’ imprisonment to be served subject to ICO in the community with standard conditions and an extra condition of 125 hours community service. You are to report to Wollongong Community Corrections within seven days.

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Decision last updated: 04 March 2025