R v Decresci

[2025] NSWDC 81

District Court

New South Wales

Medium Neutral Citation:

R v Decresci [2025] NSWDC 81

Hearing dates:

4 February 2025

Date of orders:

4 February 2025

Decision date:

04 February 2025

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

State matters – A sentence of imprisonment of 1 year 10 months with a non-parole period of 1 year

Commonwealth matter – A sentence of imprisonment of 4 years with a non-parole period of 2 years

Catchwords:

CRIME — Drug offences — Commonwealth offences — Aiding and abetting the importation of a commercial quantity of border-controlled precursor

CRIME — Drug offences — Supply prohibited drug

SENTENCING — Aggravating factors — Record of previous convictions — Breach of conditional liberty

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Form 1 offences — Moral culpability — Maximum penalty — Objective seriousness — General principles — Crushing sentence — Deterrence — General deterrence

SENTENCING — Subjective considerations on sentence — Drug addiction — Strict upbringing —Serious accident when a young adult

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Code 1995 (Cth)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 253 CLR 58

DPP v Gao [2021] VCC 1513

Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520

Jones v The Queen [2010] HCA 45

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

R (Cth) v Madgwick [2018 NSWCCA 268

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

R v Holder; R v Johnston [1983] 3 NSWLR 245

R v Windle [2012] NSWCCA 222

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

The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550

Category:

Sentence

Parties:

Marino Decresci (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
A Chauvet (for the offender)

Solicitors:
One Group Legal (for the offender)
C Buckthought solicitor advocate for Public Prosecutions (NSW) (Crown)

File Number(s):

2023/102613

JUDGMENT – ex tempore revised

Facts for sentence

1. In August 2022, Australian Border Force examined a consignment sent to an address in a suburb of Wollongong. It had been sent by a company specialising in shipments from China. Examination of the consignment revealed a powder that did not match the consignment label. It was opened and later analysed to be found to be 3-phenyl-2-methyl glycidic acid, sodium salt, also known as P2P glycidic acid, with a purity of 82%. The net weight of the P2P glycidic acid was 4.135 kilograms. Three other consignments to the same address were intercepted and analysed. Each was found to contain P2P glycidic acid. The total net weight was 16.62 kilograms.

2. New South Wales police, who ultimately took over the matter, were unable to find evidence that the offender sourced the product, paid for the product, arranged for the import of the product, or received a financial reward. However, New South Wales police accept the offender appears to have been used as a conduit through which the packages could be received without disclosing the actual intended recipient.

3. The offender had nominated his partner and her address as the person and the place to receive the consignments. The offence was charged as aiding and abetting the importation of a commercial quantity of border-controlled precursor, pursuant to s 307.11(1) Criminal Code 1995 (Cth). It carries a maximum penalty of 25 years imprisonment and / or a substantial fine.

4. In October 2022, New South Wales police were granted a telephone interception warrant to monitor the offender’s telephone. Between 24 October 2022 and 29 March 2023 a large number of telephone calls and messages were intercepted. The calls revealed that during that period the offender was supplying others with a prohibited drug known as gamma butyrolactone (‘GBL’). He would take an order and make a supply soon after. The amounts supplied varied from 10 millilitres up to about 180 millilitres. During the period, 590 millilitres was supplied. Prices varied, but the offender would charge his purchasers about $50 for 50 millilitres of GBL. The drug was supplied in liquid form and often referred to as ‘drinks’. That offence was charged as supply a prohibited drug, 590 grams of gamma butyrolactone pursuant to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW). It carries a maximum penalty of 15 years imprisonment.

Form 1 matter

5. The intercepts also revealed that in October / November 2022 the offender supplied to others a total of 4 grams of methylamphetamine. That offence was also charged pursuant to s 25(1) Drug Misuse and Trafficking Act. The offender admitted his guilt to that offence. He asks that I take it into account when I sentence for the other supply offence on a Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1. It is appropriate that I do.

6. I do not sentence for that matter, but when I take it into account, greater weight needs to be given for the need for personal deterrence and retribution to the crime for sentence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39]-[42].

The guilty plea

7. The offender pleaded guilty to the two charges for sentence when he was before the Local Court. As a matter of law, I am required to reduce the State sentence by 25% to reflect the utilitarian value of that plea. That is a statutory provision. The plea of course, has other values that will be taken into account.

8. So far as the Commonwealth offence is concerned, his plea must be taken into account. In accordance with the usual practice, a reduction in the otherwise appropriate sentence of 25% is required to reflect the various values of his cooperation with the course of justice and other matters relating to that early plea.

A proportionate sentence

9. I am sentencing for both State and Commonwealth offences. The principles relating to sentencing proceedings are governed by the Common Law and specific statutes, both Commonwealth and State. The respective State and Commonwealth statutes require I consider similar, but separate, considerations. Each sentencing exercise is thus distinct, but the overall sentencing outcome must, ultimately, reach a result that is a proper reflection of what was done and the various sentencing principles, to which I will now turn.

10. A sentence must be proportionate to what was done. That requires some assessment of the objective seriousness of the offence. That assessment is essential to setting the parameters of the appropriate sentencing outcome. In doing so the maximum penalties are important guides to the exercise of my sentencing discretion.

State offences

11. So far as the supply offence is concerned, it would appear that the offender was using the drug GBL himself. He had a small number of customers. The amounts supplied over the period were at the lower end of what one would expect for from a street level dealer, which he apparently was. He had access to a quantity of the drug, some of which he supplied to others; many were regular customers.

12. The trade in illicit drugs ultimately relies upon people at the lower level supplying to end users. For that reason, while they are properly described as low in the hierarchy of drug supply matters, their role is absolutely critical. Without them drug supply networks would not exist, and low level dealers thus contribute to the harm illicit drug supply causes; economically, to our life as a community life and to individual drug users and their families. Because Decresci chose to sell and obtain a benefit from the sale of illicit drugs, and given all the matters before me, a custodial sentence of some length is warranted to reflect the seriousness of what he did, low level or not.

Commonwealth offence

13. So far as the Commonwealth matter is concerned, 16 kilograms of drugs were consigned to the offender. There is no evidence that he was aware of how much would be sent, but he made himself available as a conduit and aided and abetted those who would, using the precursor to, manufacture drugs for distribution into the community. The maximum penalty reflects the potential harm that offences such as this can cause, both personal and economic. Illicit importations require those who are gullible or desperate to take risks, risks not taken by those further up the chain. He was low in the hierarchy; he took the risks; and he pays the penalty. Those who he worked with and for have not been, and it appears will not be, brought to justice.

14. The amount is important, it fixes the penalty range. The number of consignments is important. Here, however, the offender’s role was unsophisticated, and thankfully, the drugs were intercepted. I can accept, so far as matters of this type are concerned, it is at the low end, although the weight is certainly a matter that cannot be ignored. It still calls for a substantial and retributive sentence.

Other factors

15. The offender has a criminal record for many drug related matters. He has been to gaol for drug supply offending. In 2016 he was sentenced to 5 years imprisonment by Judge Conlon. He is not to be punished for relapsing into drug use or drug supply, but his criminal history is relevant to determining the proper sentence. It indicates that this offending was not an uncharacteristic aberration.

16. He was also, from March 2022 when these offences occurred, subject to bail from the Local Court. He was going through the MERIT Program. That these offences were committed while subject to conditional liberty is an aggravating factor that must be taken into account.

17. He was arrested on 29 March 2023 and has been in custody since then. The sentences will commence from that date.

18. I note from the gaol record that he has no disciplinary matters and that he has been working hard in gaol and is a respected member of his work teams. He appears to have been attempting to use his time in custody to his full advantage.

Subjective case for the offender

19. I have the benefit of Judge Conlon’s sentencing remarks from 2016 and material that was before his Honour at that time.

20. Decresci’s personal history is relatively uncontroversial.

21. He was raised strictly by migrant parents. He was able to work and have a family. But it appears after an accident while he was in his 20s, he dabbled in, and then came to abuse, increasing amounts of illicit drugs. Since then, he has spent a number of years in custody. He has been able to work, but it would appear that despite initial success in staying away from illicit drugs, he relapses. And when he relapses, it is not just into drug use but engagement in drug supply offences, and here, also the importation of illicit substances.

22. He wrote a letter to the Court. It was not tested by cross-examination. He puts forward excuses for his behaviour. He indicates that he ashamed of what he did. He says, and I accept that, he regrets the impacting of his offending both on himself, but more particularly, his family. He says he wants to get his life back on track. He explains how he came to resume drug use. Despite his earlier experience of custody, he said in his letter, he “buckled”. He says he has had a lot of time to reflect on his life during his time in custody and he is committed to being in “a good place”.

23. His family still support him. They have provided references speaking to the good sides of his nature and offering support. Support from prosocial members of the community is very important toward a person’s rehabilitation. But it is also important to note that that support was there when on each occasion he has relapsed into drug use and crime.

24. So far as his gaol time is concerned, it is clear he has done everything possible to prove that he is a good prospect for rehabilitation. But past behaviour is also an indicator of future behaviour and, while he is not to be punished for his earlier failures, I cannot ignore the fact that he has made promises such as those he made to the Court and his family today and on previous occasions; and he has not been able to keep those promises.

25. A report of psychologist Dr Borenstein is before the Court. It notes he has a Substance Use Disorder and there is a treatment plan for his post-release and a copy of the report and the treatment plan should go with the warrant. The report reveals anxiety, depression and reckless behaviour, all consistent with someone with his history of gaol and drug use. I could find no real reflection in the reports of actual remorse, but there is an acceptance of responsibility and some insight and reflection on his criminal behaviour.

26. It is clear that, while in custody and when given supports in the community, he is able to lead a relatively law-abiding life and work and live with others as part of the community. But he is clearly, from his history, prone to relapse and that must be addressed pre and post release. I will give full effect to those mitigating factors which are set out comprehensively in the material before me and in the submissions of his counsel, Ms Chauvet.

27. The submissions of both counsel differ really on questions of emphasis. In terms of matters of principle, they are not far apart. I have had regard to the other cases to which I have been referred, in particular, R (Cth) v Madgwick [2018 NSWCCA 268 and DPP v Gao [2021] VCC 1513, in the table provided by the Crown: MFI 1. The consistent application of sentencing principle must be considered and the guidance offered by appellate courts is always welcome. Each case, however, and every individual is different, and in different matters a mix of matters must be considered: The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [47]; Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520; Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 253 CLR 58 at [74].

28. I have regard to the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act and the various provisions applicable from s 16A Crimes Act 1914 (Cth). They are again addressed in the written submissions and there is little to distinguish them. It really is, as I said, a matter of emphasis.

29. Ms Chauvet asks that I not impose a ‘crushing’ sentence on Decresci. Given the offender is now in his late 50s he should have motivation to continue his positive progress demonstrated by his work and programs he is engaged in in gaol. But what is ‘crushing’ really depends upon the perspective of the observer and has to relate back to the requirement that some weight be given to the guidance offered by the maximum penalties, and the objective seriousness of both offences.

30. A request was made that I structure the sentence so that he could effectively be released to a State Intensive Correction Order today. I cannot give effect to that submission. There is a need to impose custodial sentences of some length. I must attempt to meet the purposes of both Commonwealth and State legislative provisions. They require considerable weight be given to deterring this offender and others.

31. I can however structure the overall sentence in a way that the offender can utilise, should he be released to parole, to work towards his rehabilitation. When given structure and support Decresci can stay away from drugs and away from crime. It is when supports are removed and when he is subject to particular stressors that he then resorts to drugs and soon after to the commission of serious crime.

32. I am required to impose both an appropriate sentence for each State and Federal offence. I am also required to structure the sentences such that the overall sentence is just and appropriate to the totality of his crimes: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63]. This can require some downward adjustment in each sentence in order to achieve an appropriate relativity: R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260].

Synthesis

33. Synthesising all those matters. I have not, given the state of the list, summarised extensively the matters in mitigation put before the Court. I will give them full weight. It is not suggested that the offender has either mental health or other matters in his background that mean his moral culpability is significantly diminished any way. But I do not underestimate what happens when a person’s mind is befuddled by illicit drugs. It is clear that when he is free of drugs Decresci is capable of making sound, rational decisions. But it would appear that once he resumes the use of illicit drugs, he loses that rationality. He then puts aside the positive supports given to him by his family, he focuses solely on himself and his drug use.

34. As a consequence, he found himself in a position where he agreed to a proposition, that is, to receive a large quantity of imported precursors that put him at considerable risk of losing his liberty. And, while he may have sought to deal with his own methylamphetamine problems by using GBL, he soon was in a position where he was selling that drug to others; a crime whose consequences he well knew would lead to him being returned to gaol again.

35. We do not punish people for their human failings, we punish them for human failings that cause harm to others, and illicit trade in drugs does that to our community. Retribution is the concept that just punishment will be imposed. That punishment should let others know who attempted to offend as this offender did what will happen to them if they succumb to the temptation to aid and abet the importation of precursor drugs or supply drugs to others in the community: 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.

36. A constant refrain of the courts is that given the social consequences that follow such crimes deterrence must be given weight, and stern punishment is required or warranted in almost every case where offenders supply drugs at any level. A significant sentence is justified because of the interests in the community in such retribution; often referred to as general deterrence.

37. Mitigating factors will be given appropriate weight and the sentence will be structured so that he can earn his release and be supervised for as long as practicable. But the minimum time spent in custody must also reflect the seriousness of what he did.

Orders

38. In relation to both matters there will be convictions. The State offence has a Form 1. It also has the 25% reduction for the utilitarian value of the plea required by the statute. There will be a sentence of 1 year and 10 months, a non-parole period of 1 year which will date from the day he went into custody 29 March 2023.

39. The Federal sentence will commence 8 months after he went into custody for the State matter. That sentence taking into account the plea of guilty is 4 years imprisonment. It will commence on 29 November 2023. There will be a non-parole period of 2 years. He will be eligible for release to parole on 28 November 2025. There will be a parole period of 2 years from that date, the sentence will expire on 28 November 2027.

40. The overall effect of my orders is a total sentence of 4 years and 8 months. The minimum time Decresci must spend in custody before becoming eligible for parole is 2 years and 8 months.

41. I make a drug destruction order in relation to the Commonwealth offence.

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Decision last updated: 24 March 2025