R v Col

[2021] NSWDC 89

District Court

New South Wales

Medium Neutral Citation:

R v Col [2021] NSWDC 89

Hearing dates:

5 March 2021

Decision date:

25 March 2021

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial sentence. For orders see [85]

Catchwords:

Fraud; multiple supply prohibited drugs and deal with proceeds of crime offences; aggregate sentence

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drug Misuse & Trafficking Act 1985

Cases Cited:

Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1

Caristo v R [2011] NSWCCA 7

Imbornone v R [2017] NSWCCA 144

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Fidow [2004] NSWCCA 172

White v R [2016] NSWCCA 190

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Ercan Col (Offender)

Representation:

Counsel:
P Allport

Solicitors:
M Heywood

File Number(s):

19/153203

Publication restriction:

Nil

REMARKS ON SENTENCE

1. The offender is to be sentenced in respect of the following matters to which he has pleaded guilty:

Count 1/Sequence 14 – Dishonestly obtain property by deception pursuant to s 192E(1)(a) of the Crimes Act 1900.

The maximum penalty for this offence is 10 years imprisonment and there is no Standard Non-Parole Period.

Count 2/Sequence 3 – Supply drugs on an ongoing basis pursuant to s 25A(1) of the Drug Misuse & Trafficking Act 1985 (“DMTA”).

The maximum penalty for this offence is 20 years imprisonment and/or a fine of $385,000. There is no Standard Non-Parole Period.

Count 3/Sequence 4 – Supply prohibited drug greater than indictable and less than commercial quantity pursuant to s 25(1) of the DMTA.

The maximum penalty for this offence is 15 years imprisonment and/or a fine of $220,000. There is no Standard Non-Parole Period.

Count 4/Sequence 7 – Knowingly deal with proceeds of crime pursuant to s 193B(2) of the Crimes Act 1900.

The maximum penalty for this offence is 15 years imprisonment. There is no Standard Non-Parole Period.

Count 5/Sequence 8 – Supply prohibited drug greater than large commercial quantity pursuant to s 25(2) of the DMTA.

The maximum penalty for this offence if life imprisonment and/or a fine of $550,000. There is a Standard Non-Parole Period of 15 years imprisonment for this offence.

2. The offender has asked that the following offence be taken into account on a Form 1 attached to Count 2/Sequence 3, supply prohibited drugs on an ongoing basis:

Sequence 5 – an offence of supply prohibited drugs pursuant to s 25(1) of the DMTA.

The maximum penalty for this offence is 15 years imprisonment and/or a fine of $220,000.

The offender has admitted his guilt in respect of this offence and has asked that it be taken into account on sentence.

3. The offences occurred between 6 April and 15 May 2019. The offender was arrested on 15 May 2019 and has been in custody on remand since that date.

The sentence hearing

4. The sentence hearing took place on 5 March 2021. The Crown Sentence Summary became Ex A. It contained a Statement of Agreed Facts which may be summarised as follows.

Count 1/Sequence 14

5. In early April 2019 the offender, using the name Nicholas Dodds, applied for a loan through Sydney City Toyota to purchase a vehicle. For identification the offender produced a Victorian driver’s licence in the name of Nicholas Dodds, which included a photograph of the offender. He also produced a HSBC credit card in the name of Nicholas Dodds, and a Commonwealth bank statement in the same name, listing an address in Zetland, as additional identification. As a result of producing those documents, the offender obtained a 2018 model Toyota Kluger valued at $55,283.00, financed through Toyota Finance Australia Limited. RMS records indicate that Nicholas Dodds disposed of the vehicle on 27 April 2019 by selling it for $32,000.00.

6. Police investigation revealed that the offender had rented a short-stay apartment in Sussex Street, Sydney using the name Nicholas Dodds. He had used a false driver’s licence in that name to secure the booking.

7. A search of the premises at Sussex Street on 22 April 2019 revealed a fraudulent NSW driver’s licence in the name of Nicholas Ian Dodds, various pre-paid cards and gift cards, driver’s licences, a Medicare card and other cards in various female names, and a printer. Also found was a Huawei mobile phone attached to a mobile number ending in 2489. Subsequent forensic analysis located the offender’s DNA on the internal SIM card holder of this phone.

8. A subsequent search of the offender’s premises at Rosebery revealed cards in the names of two other persons, and a bag containing a card printer, and a card embossing machine.

9. The offender was arrested on 15 May 2019 at a car park in Castlereagh Street, Sydney. The offender was cautioned and searched, and inside his pants pocket police located a set of keys which unlocked a Toyota Kluger vehicle, which was the same vehicle as purchased by the offender on 10 April 2019. A search of the vehicle’s blue tooth connections showed that it was connected to the mobile phone number ending in 2489, together with another mobile phone number ending in 5850.

Count 2/Sequence 3 – supply prohibited drugs on an ongoing basis

10. This offence involved a supply of 77.5 grams of methylamphetamine and a total of 1.5 litres of gamma-butyrolactone (“GBL”) on three separate occasions.

11. Between 8.20pm and 9pm on Thursday 25 April 2019, the offender was monitored and recorded supplying 46 grams of methylamphetamine to another person at Rosebery. No drugs were seized, however, the telephone intercept summary obtained pursuant to a warrant, evidenced the supply.

12. The offender had previously supplied the purchaser with 10 grams and told him he would supply another ounce, namely 28 grams, plus 18 grams, to make a total of 46 grams supplied to that purchaser.

13. Between 9.30am and 1pm on Sunday 5 May 2019, the offender was monitored and recorded supplying 1.5 litres of GBL and 28 grams of methylamphetamine to a person at Mascot. No drugs were seized, however, the telephone intercept summary obtained by warrant confirmed the supply.

14. Between 2.14 and 2.50pm on Monday 13 May 2019, the offender was monitored and recorded supplying 3.5 grams of methylamphetamine to a person in Redfern. No drugs were seized, however, the telephone intercept summary obtained by warrant confirmed the supply.

Count 3/Sequence 4 – supply prohibited drug pursuant to s 25(1) of the DMTA

15. This offence concerned the supply of 140.25 grams of methylamphetamine. Following his arrest on 15 May 2019, police executed a search warrant at the offender’s home at Rosebery and located a safe. Inside the safe the police located 150.09 grams of methylamphetamine and subsequent FASS testing confirmed it to be a total 140.25 grams of methylamphetamine.

Count 4/Sequence 7 – knowingly deal with proceeds of crime pursuant to s 193B(2) of the Crimes Act 1900

16. Inside the safe police located in various bundles a total of $10,000 in Australian currency, in $100, $50 and $20 note denominations. The money was found in close proximity to the drugs, and other indicia of supply such as the multiple clear resealable bags, diary, handwritten notes and numbers, together with numerous phones.

Count 5/Sequence 8 – supply prohibited drug greater than large commercial quantity

17. This offence concerned the supply of 5,437.4 grams of GBL.

18. Also located in the unit and garage was over 4,500 mls of liquid in various bottles, later analysed to be 5,437.4 grams of GBL. Also found were empty vials, measuring jugs and plastic syringes. The items were conveyed to FASS for forensic analysis. Of nine items, two were identified, following forensic testing, in a mixed DNA profile, where the offender could not be excluded as a contributor.

Form 1 – Sequence 5 attached to Count 2/Sequence 3 – supply prohibited drug pursuant to s 25(1) of the DMTA

19. Police also located 32.5 grams of white powder in brick form which was subsequently identified as 31.39 grams of heroin.

20. Exhibit A contained the criminal history of the offender which was extensive. It commenced in 2005 with a number of traffic offences including drive with middle range PCA. Further traffic offences followed in 2006, together with two charges of possessing prohibited drugs. In 2009, the offender was convicted of possession of ammunition without holding a licence, driving whilst disqualified and goods in personal custody. He was sentenced to a term of imprisonment upon conviction of the offence drive whilst disqualified, which was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”), but later upon call up, he was sentenced to six months imprisonment for that offence.

21. In 2010 the offender was convicted of break and enter a house for which he was sentenced to a term of imprisonment of 12 months with a non-parole period of nine months. On the same day he was sentenced to a period of four months imprisonment for supply a prohibited drug.

22. In 2013 the offender was convicted of an offence of deal with property suspected proceeds of crime for which he was imposed a fine of $2,000 and placed on a bond pursuant to s 9 for two years. He was subsequently called up in respect of that sentence, and served a term of imprisonment of one month.

23. In 2014 he was convicted of an offence of goods in personal custody and imprisoned for a period of two months, possess false document to influence exercise of public duty, for which he was imprisoned for six months, and larceny, for which he was imprisoned for two months.

24. Also in 2014 the offender was convicted of 16 offences involving dishonesty, together with possession of prohibited drugs, and possession of a prohibited weapon for which he was sentenced to 15 terms of imprisonment to be served concurrently, the longest of which was 14 months with a non-parole period of 8 months, terminating on 26 February 2015.

25. In December 2015 the offender was convicted of a further offence of drive motor vehicle during disqualification period, second offence, and police pursuit – not stop – drive dangerously, for which he was sentenced by way of imprisonment for four months and 12 months respectively, with a non-parole period in respect of the second sentence of four months, concluding on 12 December 2015.

26. In 2016 the offender was convicted of resist officer in execution of duty and goods in personal custody, for which he was sentenced to two periods of imprisonment of 29 days to be served concurrently, concluding on 30 May 2016.

27. In December 2016 the offender was convicted of supply prohibited drug, possess prohibited drug and goods suspected stolen, for which he was sentenced by way of three intensive correction orders for 18 months, 14 months and 4 months respectively.

28. In December 2016 the offender was convicted on two offences of possession of prohibited drugs and escape police custody, for which he was sentenced by way of three intensive correction orders for 14 months and 18 months respectively. He was also convicted in 2018 of possession of prohibited drug and three charges of dishonestly obtain property by deception, for which he was sentenced by way of an aggregate sentence to a term of imprisonment of 16 months with a non-parole period of 10 months, concluding on 1 September 2018.

29. In 2018 the offender was convicted for offences which occurred in 2017 of dishonestly obtain financial advantage (three counts), possess identity information to commit indictable offence (two counts), and dishonestly obtain property by deception, for which he was sentenced to an aggregate sentence of 16 months with a non-parole period concluding on 1 September 2018.

30. In 2019 the offender was convicted of eight offences of dishonestly obtain property by deception, some of which were taken into account on the Form 1. He was sentenced on five of the offences to a term of imprisonment of six months on each offence, to be served concurrently. Those terms concluded on 1 May 2018.

31. Exhibit A included a Sentencing Assessment Report (“SAR”) under the hand of Ms C MacRae dated 8 December 2020. The author noted that since leaving school, the offender stated that he had held a consistent record of employment in retail and labouring jobs, however, at the time of the offences he had been unemployed for one year, owing to his drug addiction. The offender’s history of anti-social behaviour primarily related to his ongoing drug abuse, which commenced in 2004, following the breakdown of his marriage. Under the heading “Attitudes”, the author stated that the offender:

“Demonstrated insight into his offending and acknowledged that his drug addiction was controlling his life.”

32. At the time of the offences he had a drug debt of approximately $40,000 and his motivation for using the fraudulent identification to purchase a vehicle was his drug debt. The offender indicated that his current incarceration had been a wake-up call and he was motivated to commence intervention to address his drug addiction.

33. Under the heading “Insight into impact of offending”, the offender identified the harm caused to the wider community as a result of drug supply. He expressed disbelief at how easy it was for him to purchase a vehicle with a fraudulent identification and credit card. The offender stated that he was ashamed of himself for the offending.

34. The offender stated a willingness to enter residential rehabilitation upon his release from custody, and a willingness to undertake community service work. He had previously been subject to a 200 hour community service order, but was subject to breach action following repeated failures to attend. He was assessed as a medium risk of re-offending. He was also assessed as suitable to undertake community service work.

The Crown submissions

35. The Crown relied on a detailed written outline of submissions on sentence. The offender was age 42 at the time of the offending, and in respect of the fraud offence, pursuant to s 192E(1)(a), the Crown submitted that the offender used multiple false identifications to purchase a relatively new motor vehicle valued at more than $55,000. The offence involved planning and sophistication and the offender had to attend the car dealership on several occasions to effect the ruse. The value of the vehicle was substantial and the offence involved considerable deception. Such offences are difficult to detect and in this case, the offender was detected as a result of a police investigation into his other offending.

36. The Crown submitted that the offender’s drug supply offending is objectively very serious. He had a capacity to supply large amounts of a variety of different illegal drugs, and was supplying substantial amounts of drugs on an ongoing basis. The Crown submitted that it was not street level dealing. The offender was dealing in ounces of methylamphetamine and using drug code with his customers. The Crown submitted he was operating at no less than a mid-level in the drug supply hierarchy.

37. In respect of the Form 1 offence, the Crown submitted that the offender was dealing in substantial quantities and 31.39 grams of heroin were found in his house. This would have ended up in the community as a very large number of street deals and would have caused substantial harm.

38. The offender was also found with multiple indicia of drug supply including cash, drug deal bags, handwritten notes and numerous phones. It was submitted that he was heavily immersed in a constant supply of significant quantities of heroin, ice and GBL for profit.

39. With respect to the commercial supply of GBL, the Crown submitted the offender was involved in both the manufacture and supply of this drug. He had autonomy and control over his drug supply operations and was operating at a mid to high level in the drug supply hierarchy in respect of GBL. The objective criminality for this offence fell above the mid-range.

40. For the supply of methylamphetamine and heroin, the objective criminality of the drug supply offending fell at no less than mid-range.

41. The Crown submitted that aggravating factors pursuant to s 21A(2) of the CSPA, were that the offender had a lengthy criminal record, that the offending involved multiple criminal acts, and was a planned and organised activity, committed for financial gain.

42. The Crown submitted the only mitigating factor was the late plea of guilty for which he was entitled to a utilitarian discount on sentence of 10%.

43. In respect of subjective factors, the Crown submitted that the assertion by the offender recorded in the SAR, that his current offences “were committed for the purpose of repaying his drug debt” of $40,000 amounted to a self-serving and untested out of court statement which should be treated with caution, bordering on circumspection and given little if any weight, relying on Imbornone v R [2017] NSWCCA 144 at [57].

44. The Crown submitted that the offending demonstrated a level of drug supply and fraud activity that went far above and beyond what was required to repay a drug debt of $40,000. It was offending that was consistent with a mid‑level commercial drug supplier who was dealing drugs for profit with a significant level of planning, control and sophistication.

45. The Crown referred to the offender’s long history of offending for drug supply, dishonesty and fraud offences. It submitted that he has a long history of non‑compliance with the law and court orders. Since 2010, the offender has been released to parole on four occasions and subjected to an ICO once. His longest period out of custody during the last decade is about 13 months. He committed the present offences seven months after his release on parole, and about five weeks after the completion of his balance of parole.

46. The Crown submitted that the offender’s drug addiction is not a mitigating factor. He had been given several opportunities to address his drug addiction, including the Drug Court Program, however, these have all been unsuccessful. His criminal activity has escalated and he has had custodial breaches which have included being in possession of a drug implement and possession of prohibited drugs.

47. The Crown submitted that there was no evidence that the offender had demonstrated any progress towards rehabilitation, and his offending had become more serious. It was submitted that his prospects of rehabilitation are low, whilst his prospects of re-offending are high.

48. The Crown submitted that there was minimal remorse and no real insight shown by the offender into his offending. Substantial weight must therefore be given to general and specific deterrence, punishment and protection of the community in sentencing this offender. It was submitted there was no compelling case for a finding of special circumstances.

49. In her oral submissions, the Crown rehearsed the written submissions in respect of the objective seriousness of each of the offences. The Crown submitted there was a significant dispute as to the categorisation of the nature of the drug dealing operation. The offender inferentially was asking the court to find that he was dealing prohibited drugs as a street supplier out of necessity to pay off a drug debt. In the Crown’s submission, the offending here was far greater than street level dealing. Further, there was insufficient evidence that the offending was borne out of necessity to pay off his drug debt.

50. The Crown noted that when he was arrested in May 2020, the offender was still in possession of the vehicle the subject of Count 1, and also $10,000 in cash. He also had possession of significant assets in terms of the drugs themselves.

51. In response to a submission made on behalf of the offender, that he was now a different man from the time of the offending, the Crown submitted there was little evidence to establish that, even on the balance of probabilities. The SAR gave a picture that there was no demonstrable change.

The offender’s submissions

52. In a detailed written outline of submissions, counsel for the offender conceded that the index offences were objectively serious. It was submitted that a key issue for determination on sentence is the extent to which the offender’s subjective characteristics, including a significant drug dependence, ameliorate the objective seriousness of his role in the offending. This was submitted as “arguably being analogous to a blue collar role in white collar commercial enterprise”. It was submitted that the offender acknowledges his criminal liability and authorship of his own downfall in that light.

52. The offender submitted that the Agreed Facts as summarised above, ground the following facts and inferences:

1. That the offender’s reliance on illicit drugs escalated after the breakdown of his marriage in 2004;

2. That the offender’s criminal antecedents commence in 2005;

3. That at the time of the instant offending he was inferentially being supplied with illicit drugs on tick (credit) given his debt of $40,000.00 to his dealer’

4. That a reasonable inference is he was ‘working off’ his debt via his role as a street supplier of illicit drugs;

5. That at the time the instant offences were committed, it is likely that the offender was drug dependent;

6. That at the time the instant offences were committed, the offender’s mindset was focused on obtaining illicit drugs to satisfy his own addiction;

7. That it is unlikely the offender received any financial benefit from his offending, given the existence of a significant debt;

8. That the debt owed to a drug dealer was inferentially a recruitment incentive to participate in what is conceded was a commercial enterprise;

9. That the discharge of the debt via the offender’s participation in the sale of illicit drugs, and payment in kind, was inferentially a performance incentive;

10. That the existence of such incentives suggests the relationship between the offender and his upline suppliers was one of employee/employer;

11. That it is inferentially available to the court to find that such a relationship is indicative of underworld enterprise bargaining in which the employer retains the upper hand;

12. That the offender was motivated to assume the risks associated with the street-level supply and/or warehousing of illicit drugs as a result of addiction, rather than the prospects of profit;

13. That the offender’s candid admissions in his SAR are indicative of both insight and;

14. That the offender recognises his criminal liability and the objective seriousness attached to it;

15. That guilt was ultimately acknowledged by the offender in relation to the drug matters;

16. That the dishonesty offence in relation to the unlawful obtaining of a vehicle should properly be viewed through the prism of the foregoing facts and inferences;

17. That the proceeds of crime offence should properly be viewed through the prism of the foregoing facts and inferences;

18. That the offender has been routinely imprisoned for drug-related offending for the better part of a decade (see Department of Corrective Services custody record annexed to Crown bundle).

54. Whilst acknowledging that the offences were objectively serious, the offender submitted that the index offences have an aetiology in long-term drug abuse. It was submitted that the court would find that the degree of the offender’s addiction and hence vulnerability to recruitment, was substantial, being the cumulative result of sustained drug abuse.

55. It was further submitted that there was no evidence available to ground an inference that aside from a role analogous to warehouseman/forklift driver, that the offender played an organisational or management role. Thus, it was submitted that the role of the offender fell around the nominal mid-range of objective seriousness. It was submitted that the role of the offender is critical in the exercise of the sentencing discretion, and in this case should be properly juxtaposed against the extent of the offender’s addiction and resultant vulnerability to exploitation.

56. Counsel for the offender conceded the aggravating factors relied on by the Crown in s 21A(2)(d), (m) and (n), however, it was submitted the majority of these were subsumed by the elements of the respective offences and thus were precluded from consideration as aggravating features of the offending. If that submission was not accepted, the court was required to determine the degree of any aggravation and whether or not that has been established to the requisite standard of proof, relying on White v R [2016] NSWCCA 190.

57. Counsel submitted that the following were relevant mitigating features pursuant to s 21A(3) of the CSPA:

• (3)(i) Remorse

• (3)(j) Offender not fully cognising with the consequences of his actions

• (3)(k) Pleas of guilty before Local Court.

58. It was submitted that the offender’s post-arrest conduct was indicative of remorse, “given the demonstrable evolution of his insight”. This was acknowledged in his SAR. It was further submitted that his plea of guilty constituted considerable utility despite the late timing of it.

59. The offender conceded that some degree of accumulation was appropriate to reflect the totality of the offender’s criminality in accordance with R v Cahyadi [2007] 168 A Crim R 41 at [27]. It was submitted that any degree of accumulation must be “a just and appropriate measure of the total criminality involved”, relying on Postiglione v The Queen (1997) 189 CLR 295.

60. The offender submitted that any degree of accumulation may be reduced given the physical and temporal proximity of each of the index offences in what was an ongoing course of criminal conduct.

61. The offender submitted that the offender’s drug addiction was a critical factor leading to the commission of the index offences. In sentencing, the court could not find there was other undetected criminal activity by the offender.

62. Counsel for the offender submitted that a finding of special circumstances should be made pursuant to s 44(2), relying on Caristo v R [2011] NSWCCA 7 and R v Fidow [2004] NSWCCA 172. A finding of special circumstances was warranted here, given the offender’s addiction to illicit drugs, the severity of that addiction, the aetiology of the index offending following a marital breakdown, the emergent insight of the offender whilst in custody, the prima facie risk of institutionalisation given the offender’s custodial history over the past decade, and the need for extended supervision and/or support against a relapse into illicit drug use upon release from custody.

63. Counsel conceded that both general and specific deterrence are relevant considerations in sentencing for drug supply offences.

64. Consistent with a finding of special circumstances, it was submitted on behalf of the offender that any period of parole should be lengthy and accompanied by supervision.

65. In his oral submissions, counsel for the offender submitted succinctly that the offender was before the court for sentencing as a different man from the person who offended. He now had the support of his mother and sister, and as a man in his 40’s, had expressed desire to get off the merry-go-round of drugs and incarceration.

Determination

66. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

67. In assessing the objective seriousness of the offending in Count 1, I take into account that the offender used multiple false identifications to purchase a relatively new motor vehicle valued at more than $55,000. The offender used a false name, false driver’s licence with his own photograph, a false credit card and forged bank statement. The value of the vehicle was substantial and I find in all of the circumstances the objective seriousness of the offending fell within the mid-range for an offence pursuant to s 192E(1)(a) of the Crimes Act, albeit towards the lower end of the mid-range.

68. The offending in Count 2 involved supply of prohibited drugs on an ongoing basis, being 77.5 grams of methylamphetamine and 1.5 litres of GBL. The indictable quantity of methylamphetamine is proscribed as 5 grams and the commercial quantity 0.25 kilograms. The indictable quantity of GBL is 50 grams and the commercial quantity proscribed as 1 kilogram. The offence pursuant to s 25A of the DMTA involves supply on three or more occasions during any period of 30 consecutive days. In assessing the objective seriousness of the offending, the role of the offender is an important factor. Here, although no drugs were seized, the transactions as outlined in the Agreed Facts involved large volumes of the prohibited drugs, for example, 1.5 litres of GBL and 28 grams of methylamphetamine, which were not street level deals. I accept the Crown’s submission that the offender was operating at no less than mid-level in the drug supply hierarchy. The objective seriousness of the offending was within the mid-range for an offence pursuant to s 25A(1) of the DMTA.

69. The offending in Count 3, supply prohibited drug pursuant to s 25(1) of the DMTA, involved the supply of 140.25 grams of methylamphetamine. As set out above, the prohibited drugs were discovered upon search of the offender’s premises. Six separate items in clear plastic bags were found in a safe in those premises and one item comprising three clear resealable bags was located in the main bedroom. The certified weight ranged from 1.99 grams to 42.5 grams of methylamphetamine. The objective seriousness of the offending fell within the mid-range of an offence pursuant to s 25(1) of the DMTA, albeit towards the lower end of the mid-range.

70. Count 4 was the offence of knowingly deal with proceeds of crime which was $10,000 in cash, pursuant to s 193B(2) of the Crimes Act. This sum was located in the safe in the offender’s residence. The objective seriousness of the offending fell in the low-range of objective seriousness for an offence pursuant to s 193B(2), based on the amount, and at the middle of the low‑range.

71. Count 5 involved the supply of greater than large commercial quantity of GBL. The quantity supplied was 5.437 kilograms against a large commercial proscribed amount of 4 kilograms. The GBL was found in various containers in a number of locations in the offender’s home. Also found were empty vials and measuring jugs, together with plastic syringes. The objective seriousness of the offending was within the mid-range of offending for an offence pursuant to S 25(2) of the DMTA.

72. The following are aggravating factors to be taken into account on sentence pursuant to s 21A(2) of the CSPA:

(2)(d) The offender’s record of previous convictions. As set out above, the offender has a lamentable history of offending involving dishonesty and prohibited drugs.

(2)(n) Each of the offences were part of a planned or organised criminal activity, and in respect of Count 1, that planning was somewhat sophisticated involving a false identity and fraudulent means of identification.

(2)(o) The offending was clearly committed for financial gain as evidenced by the offender acquiring the motor vehicle valued at over $55,000, the $10,000 in cash, being proceeds of crime, and being reflected by the large quantities of prohibited drugs involved.

73. The offender entered a late guilty plea and is entitled to a 10% utilitarian discount on sentence in respect of that plea. General deterrence is important in sentencing for drug supply offences. A clear message must be sent to like‑minded members of the community that Parliament has proscribed heavy maximum penalties, for example, the maximum penalty of life imprisonment for Count 5, the offence pursuant to s 25(2) of the DMTA, and the courts will impose condign punishment for such offences. The maximum penalties for these offences reflect the gravity of the harm done to the community by supply of large quantities of prohibited drugs.

74. Specific deterrence is also important in the sentencing exercise here, given the offender’s appalling criminal history. He is now into his 40’s, and in the last decade has been released on parole on no less than four occasions. His recidivism reflects a spectacular failure of rehabilitation which must be taken into account in assessing whether he has any prospects of rehabilitation. Given his failure to address his drug addiction in the past, and acknowledging that he has been through the Drug Court program, I find that his prospects of rehabilitation are low. I note in the SAR the author assesses the offender as a medium risk of re-offending. That assessment must have relied upon the offender committing to his rehabilitation under supervision when he is released to the community. He has acknowledged, by his express desire to get off the merry-go-round of drugs and incarceration, that he is at risk of institutionalisation.

75. I take into account the following maximum penalties:

Count 1 – S 192E(1)(a) of the Crimes Act – 10 years imprisonment

Count 2 – S 25A(1) of the DMTA – 20 years imprisonment and/or a fine of $385,000

Count 3 – S 25(1) of the DMTA – 15 years imprisonment and/or a fine of $220,000

Count 4 – S 193B(2) of the Crimes Act – 15 years imprisonment

Count 5 – S 25(2) of the DMTA – life imprisonment and/or a fine of $550,000, together with a Standard Non-Parole Period of 15 years imprisonment.

I also note that the maximum penalty in respect of Sequence 5 on the Form 1, of supply prohibited drug pursuant to s 25(1) of the DMTA, is 15 years imprisonment and/or a fine of $220,000.

76. The maximum penalties and the Standard Non-Parole Period in respect of Count 5/Sequence 8 of 15 years imprisonment are guideposts in the sentencing process.

77. I have had regard to the subjective features outlined by counsel for the offender. With respect to the subjective features of the offender, I accept that he was addicted to prohibited drugs at the time of the offending, however, that is not a mitigating factor on sentence. It does explain the offending in part, however, the explanation provided by the offender to the author of the SAR, that his motivation for offending was the fact that he had accrued a drug debt of approximately $40,000.00, and he felt beholden to his drug dealer, must be treated with circumspection. I therefore do not accept the assertion contained therein that the offender’s current offences were committed for the purpose of repaying his drug debt. The offences were clearly committed for financial gain as evidenced by his retention of the vehicle fraudulently obtained by deception, and the amount of cash found in his premises. I do, however, accept that the offender’s current incarceration has been a “wake-up call” and he is now motivated to commence intervention to address his drug addiction.

78. Whilst I accept that the offender acknowledges responsibility for his offending conduct, and that his late plea of guilty facilitates the administration of justice in the face of a strong Crown case, his late plea does not demonstrate remorse so as to be a mitigating factor of any significance pursuant to s 21A(3)(i), nor am I persuaded that a mitigating factor arises pursuant to s 21A(3)(j), on the basis that the offender was not fully aware of the consequences of his actions because of his age or disability. Given the nature of the offending and its objective seriousness, carried out for financial gain, this has not been established as a mitigating factor.

79. I do not accept the submission made on behalf of the offender that his post‑arrest conduct was indicative of remorse, “given the demonstrable evolution of his insight”. Whilst I accept that he is now motivated to address his drug addiction, I am not satisfied that this amounts to remorse to the extent that it has become a mitigating factor to be taken into account on sentence.

80. The offender’s criminal history does not entitle him to any leniency in the sentencing process. Nor am I persuaded that a finding of special circumstances should be made here, given his numerous failed attempts at rehabilitation. Any sentence to be imposed for the index offences will provide a sufficient period on supervised parole for the offender to undergo rehabilitation upon his return to the community.

81. I intend to sentence the offender by way of an aggregate sentence pursuant to s 53A of the CSPA. To ensure transparency in the sentencing process, I provide the following indicative sentences, taking into account the objective seriousness of the offending, the aggravating factors set out above, and the 10% utilitarian discount on sentence. The indicative sentences are as follows:

Count 1/Sequence 14 – offence pursuant to s 192E(1)(a) of the Crimes Act 1900 – 3 years and 7 months imprisonment

Count 2/Sequence 3 – supply prohibited drugs on an ongoing basis pursuant to s 25A(1) of the DMTA – 4 years and 6 months imprisonment

Count 3/Sequence 4 - supply prohibited drug greater than indictable and less than commercial quantity pursuant to s 25(1) of the DMTA – 3 years and 3 months imprisonment

Count 4/Sequence 7 - Knowingly deal with proceeds of crime pursuant to s 193B(2) of the Crimes Act 1900 – 2 years imprisonment

Count 5/Sequence 8 - Supply prohibited drug greater than large commercial quantity pursuant to s 25(2) of the DMTA – 5 years and 6 months imprisonment

82. I certify that I have taken into account the matter on the Form 1 attached to Count 2/Sequence 3 of an offence pursuant to s 25(1) of the DMTA. That has led to some accumulation in sentence in respect of Count 2/Sequence 3.

83. In arriving at an aggregate sentence, I must take into account the principle of totality of criminality. The principle is described by Howie J in Cahyadi v R 168 A Crim R 41; [2007] NSWCCA 1; at [27] as follows:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

84. Here, there must be some accumulation as the separate offences made up an ongoing course of criminal conduct. I intend to sentence the offender to an aggregate sentence of 8 years and 4 months imprisonment, with a non-parole period of 6 years and 3 months imprisonment, commencing on 15 May 2019.

Orders

85. I make the following orders:

1. You are convicted of the following offences:

Count 1/Sequence 14 – Dishonestly obtain property by deception pursuant to s 192E(1)(a) of the Crimes Act 1900.

Count 2/Sequence 3 – Supply drugs on an ongoing basis pursuant to s 25A(1) of the Drug Misuse & Trafficking Act 1985 (“DMTA”).

Count 3/Sequence 4 – Supply prohibited drug greater than indictable and less than commercial quantity pursuant to s 25(1) of the DMTA.

Count 4/Sequence 7 – Knowingly deal with proceeds of crime pursuant to s 193B(2) of the Crimes Act 1900.

Count 5/Sequence 8 – Supply prohibited drug greater than large commercial quantity pursuant to s 25(2) of the DMTA.

2. I sentence you to an aggregate sentence pursuant to s 53A of the CSPA.

3. You are sentenced to a non-parole period of 6 years and 3 months imprisonment commencing on 15 May 2019 and terminating on 14 August 2025.

4. The balance of term will be 2 years and 1 month imprisonment commencing on 15 August 2025 and expiring on 14 September 2027.

5. I have certified that I have taken into account the matter on the Form 1 attached to Count 2/Sequence 3.

86. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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Decision last updated: 25 March 2021