R v Deha Kelekci

[2018] NSWDC 227

District Court

New South Wales

Medium Neutral Citation:

R v Deha Kelekci [2018] NSWDC 227

Hearing dates:

13 July 2018

Decision date:

23 August 2018

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full time custodial sentence. For orders see [94]

Catchwords:

Multiple counts of supply prohibited drugs; aggregate sentence

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985

Cases Cited:

Berryman v R [2017] NSWCCA 297
JM v R [2014] NSWCCA 297
Parente v R [2017] NSWCCA 203
R v Cahyadi [2007] NSWCCA 1
R V Kelekci [2018] NSWSC 1209
R v Van Ryn [2016] NSWCCA 1

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Deha Kelekci (Offender)

Representation:

Counsel:

 

A Williams (Offender)

  Solicitors:
S Jaeger (Crown)

File Number(s):

16/170155

Publication restriction:

Nil

REMARKS ON SENTENCE

1. The offender pleaded guilty on the following three counts on an Indictment upon arraignment on 13 July 2018:

1. Count 1 – supply prohibited drug (4.18 grams of methylamphetamine) pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 (“DMTA”).

2. Count 2 – supply prohibited drug (668 mls GHB) pursuant to s 25(1) of the DMTA.

3. Count 3 – supply prohibited drug (27.8 grams of methylamphetamine) pursuant to s 25(1) of the DMTA.

2. Each of the three offences carried a maximum penalty of 15 years imprisonment and/or 2000 penalty units.

3. The offender also asked to be taken into account on a Form 1 a charge of supplying a prohibited drug (2.25 grams of cocaine) pursuant to s 25(1) of the DMTA. It carried the same maximum penalty of 15 years imprisonment and/or 2000 penalty units. The offender admitted his guilt in respect of that charge.

4. The offender had been committed for trial on 24 January 2017. The trial was listed to commence on 6 November 2017, and a plea of guilty was entered on 20 October 2017 at the District Court.

5. The offences occurred between 6 April 2016 and 1 June 2016. The offender was arrested on 2 June 2016 and has been in custody since that date.

6. The offences were committed whilst the offender was subject to a bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”) imposed on 27 April 2015 for driving whilst his licence was suspended, for a period of 12 months. That bond was called up on 18 February 2016 and was revoked, and a fine was imposed.

7. A further charge of possess prohibited drug is subject to a Certificate pursuant to s 166(1)(b) of the Criminal Procedure Act 1986, and is to be withdrawn and dismissed following sentence.

The sentence hearing

8. The sentence hearing took place on 13 July 2018. The Crown Sentence Summary became Ex A. It contained an Agreed Statement of Facts which contained substantial detail of the investigations that took place prior to the arrest of the offender. It may be summarised as follows.

9. A controlled police operation known as Strikeforce Rockface was authorised to enable the negotiation of purchase of drugs from the offender. During the course of the investigation, police lawfully intercepted mobile telephone services used by the offender (ending in 145 and 045). On 9 March 2016 the offender gave mobile number ending in 145, to an undercover police operative (“UCO”) the following day. A conversation took place with the UCO in which the offender asked the UCO whether he could supply him with “G water”, a pseudonym for the prohibited drug GHB.

10. The UCO notified the offender that he would be away for a few weeks and contact was re-established in late March 2016. The UCO met the offender on 6 April 2016. The UCO was shown two small, clear resealable bags, each containing a small amount of crystals. The UCO purchased the two bags for $250. They weighed 1.09 grams and a presumptive analysis showed they contained 0.68 grams of methylamphetamine, with an average purity of 77.25%.

11. On 11 May 2016, the offender received a telephone call from an unknown male requesting the supply of ice. At 12.26am on 12 May 2016, the offender met that person at the Meriton Hotel, Kent Street, Sydney, and supplied the unknown male with 1.75 grams of methamphetamine.

12. This, together with one further supply referred to below, was the criminal conduct comprising the offending in Count 1 on the Indictment.

13. On 22 April 2016, the offender was contacted by an unknown female, and in code, the offender agreed to supply 60 mls of 4-Hydroxybutonoic acid (GHB) for $300. That supply took place at approximately 12.40am at the Oaks Hyde Park Hotel.

14. On 29 April 2016, the UCO met the offender at Pyrmont and they drove to Ramsgate, where the offender got out of the car and approached another vehicle. He then returned, and the offender supplied the UCO with a clear, resealable bag containing a small amount of white substance in it.

15. On 12 May 2016, the offender supplied an unknown male with 45 mls of GHB.

16. On 13 May 2016, police intercepted another transaction, in which an unknown male ordered 20 mls of GHB, which was supplied within 20 minutes.

17. On 15 May 2016, police intercepted another telephone order for GHB. On this occasion 30 mls of GHB was supplied on Windmill Street, The Rocks. On the same day, another telephone intercept revealed an order for a supply of 30 mls of GHB, which was supplied at a Hungry Jacks outlet.

18. On 16 May 2016, the offender received a text message with an order for 20 mls of GHB, which was supplied to an unknown person on Goulburn Street, Haymarket.

19. On 18 May 2016, another text message in code ordered 20 mls of GHB, which was supplied by the offender to an unknown male at the Meriton Apartments on Pitt Street, Sydney.

20. On 20 May 2016, the offender, by coded text message, arranged to supply 20 mls of GHB to an unknown male.

21. On the same day, police intercepted a telephone call which involved a further order for 20 mls of GHB.

22. Later that night, an unknown female, in a coded telephone call, ordered 50 mls of GHB. Shortly thereafter, the offender met an unknown female on Oxford Street, Sydney and supplied 50 mls of GHB.

23. On 22 May 2016 at midnight, the offender received a telephone call from a person known as “Megan”, requesting in code a supply of GHB. At approximately 1.30am on 23 May 2016, the offender supplied that person with 30 mls of GHB.

24. A short time thereafter, the offender received a further telephone call ordering GHB in code. An arrangement was made to meet at the Shangrila Hotel in Cumberland Street, where the offender was seen on CCTV arriving at 1.38am. The offender supplied an unknown male with 50 mls of GHB.

25. On 25 May 2016, the offender received a number of text messages from an unknown person ordering GHB in code. That led to a supply to that person of 100 mls of GHB.

26. On 28 May 2016, an unknown female, by code, ordered a quantity of GHB. At 7.42pm that evening the offender supplied the unknown female with 30 mls of GHB.

27. On 30 May 2016, an unknown person, by telephone, ordered by code a supply of GHB. Just after 9pm, the offender supplied a female named “Karly” with 50 mls of GHB.

28. At 12.09am on 31 May 2016, the offender received a telephone call from an unknown female, ordering by code, GHB. At 2.03am the offender supplied that female with 20 mls of GHB at Milsons Point.

29. At 5.17pm on the same day, the offender received a telephone call from an unknown female, in which she ordered GHB by code. Further communications took place, in which the offender disclosed the price he paid for GHB ($4 for ml), and the sale price ($7 per ml) That led to a transaction in which the offender knowingly took part in the supply of 30mls of GHB.

30. At 10.38pm, the offender received a further text message from the unknown female, following which, they met at Town Hall, and he supplied her with 30mls of GHB, and 1.75 grams of methamphetamine (which related to Count 1).

31. On 1 June 2016, the offender received a text message from an unknown female, in which a further order was placed for the supply of GHB by code. An arrangement was made to meet in Kings Cross where the offender supplied the unknown female with 30mls of GHB. Each of those supplies constitute the offence in Count 2, supplying 668 mls of GHB.

32. The UCO met the offender on 5 May 2016 in Haymarket. They drove the UCO’s car to Darlinghurst, where the offender showed the UCO a number of clear resealable bags and a small package of crystal shards in a black box. The offender supplied the UCO with a quantity of cloudy, small shards, for which the UCO gave the offender $3,500, previously issued to him by police. The offender took the cash and placed it in his pocket and left the vehicle

33. The drug was sent for analysis and it was found there was no prohibited drug identified in the crystalline substance, which weighed a total of 27.8 grams. That was the conduct comprised in the offence in Count 3 on the Indictment.

34. The offence on the Form 1 of supply prohibited drug (2.25 grams of cocaine), which was attached to Count 1, occurred on 25 May 2016 when the offender received a call from an unknown male ordering cocaine in code. That led to the offender agreeing to supply 2.25 grams of cocaine to the unknown male at the Meriton Hotel on Kent Street.

35. On 2 June 2016, the offender was arrested. He participated in an ERISP interview, in which he admitted smoking marijuana and using ice a couple of times a week. He told police that there were drugs at the hotel room he occupied at the Criterion, and said it was his personal use. The offender agreed that the mobile phone ending in 145 was his phone for the last six months. He denied being the user of mobile phone ending in 045.

36. The offender also admitted using GHB (only once or twice), and the last time he used it was three months ago. He also admitted he had previously used cocaine, the last time being six months ago. He denied being a drug dealer or a drug supplier. When confronted with the detail of the transactions outlined above, he denied supplying drugs to anyone.

37. The offender also denied that a gram of ice found in the hotel room was his, and denied that the black book found in that room was his. He did not know who the other mobile phones found in that room belonged to.

38. Police executed a search warrant at Room 12 in the Criterion Hotel, which search revealed drug paraphernalia, together with a dark coloured book/diary with a ledger inside, a number of syringes, a set of digital scales, and a resealable bag containing a crystalline substance inside, coming to a total weight of 0.42 grams, a make-up dispenser containing two small resealable bags, one of which contained 0.39 grams of crystalline substance, and glass pipe.

39. The two mobile phones ending in 145 and 045 were subscribed to fictitious persons, and had been activated on 4 February 2016 and 23 February 2016, respectively.

40. Exhibit A also contained the criminal antecedents of the offender. They were not extensive. As outlined above, he had been convicted on 27 April 2015 of driving whilst suspended and placed on a s 10 bond for 12 months. On 18 February 2006, he was convicted of an offence of contravene prohibition/restriction in AVO, and fined $300. On 1 October 2015 he had been convicted of drive vehicle with illicit drug present in his blood and fined $400 and disqualified for three months. On 14 January 2016, he had been convicted of an offence of destroy or damage property and fined $600. On 8 June 2016 he had been convicted of driving a motor vehicle during period of disqualification and fined $1000 and disqualified for 12 months. Earlier, on 24 January 2012, he had been convicted of possess prohibited drug and fined $500.

The offender’s evidence

41. The offender tendered a bundle which comprised the following exhibits:

Report of Mr Tim Watson-Munro dated 2 July 2018 (Ex 1)

Affidavit sworn by the offender on 13 July 2018 (Ex 2)

Certificate – Remand Addiction Course (Parklea Gaol) (Ex 3)

42. The offender also gave sworn evidence that the information outlined in his affidavit, Ex 2, was truthful and accurate, and that the information provided by him to the psychologist, Mr Watson-Munro, (Ex 1) was also truthful and accurate.

43. In his affidavit, the offender had set out his personal history. He was born in Istanbul, Turkey on 7 February 1983, where his family remained. His father passed away in 2016, just after he was taken into custody. In 2004, he had applied for a student visa to learn English and relocated to Sydney shortly thereafter. He completed the course in English and then enrolled in a business management course, which he completed in 2007. He thereafter attended a chef’s college for approximately eight months, where he attained a certificate to work as a chef, and worked in a restaurant in Bondi Junction for approximately two and half years. He met his former partner in 2007, and made a decision to try to obtain permanent residency in Australia.

44. In 2010, the offender left his job as a chef and purchased a truck, registering his own transport company “FB Couriers”. He obtained a contract to deliver furniture from warehouses to locations on the Central Coast. His business flourished, allowing him to purchase another delivery truck and employ two people to assist him. He was also able to help finance his partner to open a hairdressing salon in North Sydney, and in 2013, they opened a second salon in Neutral Bay.

45. In 2015, the offender described making “a reckless decision which resulted in the loss of his licence”. He was no longer permitted to drive and lost the contract for delivery of furniture. Both trucks he owned were repossessed by the bank and the loss of income affected the hairdressing business. The relationship failed and he moved out in late 2015. The offender deposed that at that time he now appreciates that “he was entering a form of depression” and that he did not know how to deal with it. He started to recreationally use the drug ice, which use escalated to smoking three to four points per day, costing approximately $100. He started to gamble, lost the friends he had, and became addicted to drugs.

46. The offender deposed that he was thankful that he was charged with the offences on 2 June 2016. If he had not been charged, he did not know where he would be now or what person he would have become. Shortly after being taken into custody, he was violently assaulted in his cell by three or four men, and to this day he is unsure why that occurred. He has been in protective custody since. He suffered a broken jaw in that incident. Protective custody means that he has had limited access to programs, limited contact with other inmates, and limited time outside his cell. He had, however, competed the Remand Addiction Certificate course. He had also obtained work in custody, at first in the print shop, and later as a sweeper.

47. The offender deposed that his mother had flown from Turkey in February 2018 and had visited him twice weekly until she left in April 2018. Other than that, he had been visited only by friends on three occasions.

48. The offender deposed that he felt that he had let down those around him enormously. He regretted that he was unable to attend his father’s funeral. He had not taken any drugs whilst in custody and had been doing everything in his power to ensure that he was able to abstain from drugs upon his release. He had also gained insight into the effect drugs had on the community by seeing first hand when other inmates tried to detox from various stages of addiction. The offender deposed that he was ashamed of himself for ever being involved in the misery of drug supply. Upon his release, he hoped to get his licence back and start work again. He wanted to become a hard working member of the community, which had accepted him into its culture and country.

49. The offender gave oral evidence that his use of ice had started immediately following the breakup of his relationship. It had escalated to daily usage, costing him between $100 and $150 per day, which caused him to start supplying. Whilst in custody, he had not used drugs, and on random urinalysis each test had been negative to prohibited drugs. He had started training and was now looking healthy, he had gained 15-20 kilograms in weight and mentally he gave evidence that his mind was now very clear, having reflected on his past conduct. He was ashamed of himself for his criminal conduct, he was glad that he was arrested and able to get away from his drug activities. Further, he now realised that he was depressed following the breakdown of his relationship, something he had not experienced before. He had had no prior treatment for mental health issues, and given the recommendations made by Mr Watson-Munro, he wanted to pursue treatment for it.

50. In addition to the drug Remand Addiction Course, he had done a course in custody on warehousing and also food and hygiene, which had helped him.

51. The offender gave sworn evidence that he would never use prohibited drugs again. He had good contacts in the transport industry to start work again and was determined to regain his licence and recommence his transport business. He was really sorry for his part in supplying drugs in the community

52. In cross-examination, the offender said that he first became aware that he was depressed when he spoke to a psychologist in gaol. He had been advised by his solicitor of his father’s death and it was his first time in custody.

53. When asked about the 2012 offence of possession of prohibited drugs, he gave evidence that it comprised two tabs of MDMA, which were detected in his possession at a music festival. From 2015 he had smoked ice to the extent of three to four points a day and had become addicted. He had gone cold turkey in gaol.

54. The report of Mr Tim Watson-Munro (Ex 1) outlined the offender’s personal background as well as his drug, alcohol and psychological history. Psychometric testing reflected a Depressive Disorder. Mr Watson-Munro opined that the offender presented as a cooperative, but depressed and anxious man, who had expressed appropriate remorse for his behaviour. He was suffering a moderate Depressive Disorder and escalating anxiety with the approach of his sentence. He expressed a strong desire not to use drugs again, but conceded he would benefit from professional assistance to reinforce the progress he had made to date. That treatment should involve cognitive behaviour therapy, utilising systematic desensitisation for his anxiety, development of relapse prevention strategies, social skills training for his diminished self-esteem, as well as supportive and motivational psychotherapy.

The offender’s submissions

55. Learned counsel for the offender conceded that the s 5 threshold had been crossed, and no other penalty other than a term of imprisonment was warranted in the circumstances of the three offences which took place over a period of seven weeks. However, given that the offender had been in custody for a period of some two years and two months, the time in custody already spent would be sufficient for a non-parole period. Count 1 involved the supply of 4.18 grams of ice in three transactions. The indictable quantity was 5 grams and the commercial quantity 250 grams.

56. Count 2 involved the supply of 668 mls of GHB. The indictable quantity was 50 grams (the equivalent of 50 mls) and the commercial quantity was 1000 grams (1 kilogram). There were nine separate transactions and therefore the amount approximated two-thirds of the commercial quantity.

57. Count 3 involved the supply of 7.8 grams of ice, which again was well short of the commercial quantity of 250 grams.

58. The offence on the Form 1, supply 2.25 grams of cocaine, was less than half of the indictable quantity of 5 grams.

59. Counsel submitted that the most serious offending therefore was that comprising Count 2, because of the amount involved and the number of transactions. However, characterisation of the role of the offender was an important factor in the sentencing process. The offender’s role here was that of a user/dealer at a low level, meaning street level, supplying GHB to a small customer base. The phone interventions made it clear that he had regular customers and also that he was supplying to end users. He was also able to source the different drugs on request. Counsel conceded that the offence on the Form 1 meant that there must be some accumulation in penalty, however, the principle of totality was important in the sentencing process here.

55. Count 3 was a more significant quantity of the substance which purported to be ice, when in fact it was not a prohibited drug at all. This was consistent with the offender trying to step up his operation by acting as a middle man, in which he became a party to a scam or rip off.

56. Counsel referred to the offender’s addiction to the drug ice, which quickly escalated to daily use and the proceeds from his drug supply activities, which were minimal, were used to support his own habit. Whilst his addiction did not excuse or mitigate his criminal conduct, it was relevant to the motivation, namely, “his need rather than greed”.

57. Counsel submitted that the Agreed Facts outlined that the offender was purchasing GHB at a cheap price of $4 per ml and selling it at $7 per ml, a small profit of $3 per ml. The total profit from the sales comprised in Count 2 was therefore $1,860.00. Counsel acknowledged the need for general deterrence in the sentencing process, however, this was a relatively small level of profit making.

58. Counsel submitted that there were significant subjective features to be taken into account. The offender’s criminal history did not deprive him of considerable leniency. Further, the offender had arrived from Turkey in 2004 on a student visa. His work history had been successful until he lost his licence, causing him in turn to lose his business. That led in turn to the breakdown of his relationship, and to social isolation, which led to his drug addiction.

59. The death of his father, following the offender’s incarceration, had also led to guilt about his father’s death, which counsel described as “survivor’s guilt which was accentuated by him being in custody”.

60. The offender had described his ice addiction from 2015 as the “worst period of my life”. He had had no mental health treatment, but hoped to receive treatment following his release. He had detoxed and been abstinent from prohibited drugs whilst in custody, and had no misconduct charges against him. He had also been in employment in a trusted position as sweeper, and completed programs.

61. Counsel submitted that the court would take into account the insight the offender had achieved into his conduct and his expressed remorse. He had acknowledged the harm caused by his offending conduct and taken responsibility for his involvement in the drug industry. He was genuinely remorseful, and had plans to re-establish a transport business upon his release. It was submitted that his rehabilitation augers well for the future and that he was unlikely to re-offend, however, he would be assisted by further treatment. For those reasons a finding of special circumstances should be made.

62. Counsel finally submitted that there should be some partial accumulation for the offences, however, this was an appropriate case for an aggregate sentence pursuant to s 53A of the CSPA.

The Crown Submissions

68. The Crown relied on a written outline of submissions in which it set out the well-known sentencing principles relating to drug supply sentences, as set out in Parente v R [2017] NSWCCA 203.

69. The Crown submitted that the criminal conduct in Count 1 of supply methylamphetamine, was below the mid-range of objective seriousness. The criminal conduct in Count 2, of supply GHB, was slightly below the mid-range of objective seriousness for an offence pursuant to s 25(1) of the DMTA.

70. The Crown submitted that the objective seriousness of the criminal conduct in Count 3, of supply 27.8 grams of methylamphetamine, was at, or slightly below, the mid‑range of objective seriousness for such an offence, and the objective seriousness of the offence on the Form 1, of supplying 2.25 grams of cocaine, was at the lower end of objective seriousness for such an offence.

71. It was submitted that the offending constituted serious offending. General deterrence was of prime importance in drug supply cases, and specific deterrence was also of prime importance to deter offenders from committing similar offences in the future. The offender was also subject to a s 10 bond at the time of the offences.

72. The Crown submitted that the offender’s criminal history did not aggravate the seriousness of the offending, but did disentitle him to leniency.

73. On the offender’s subjective case, he was now 35 years old, and was 33 at the time of the offending. His prospects of rehabilitation could be viewed to be guarded. The offender had a significant issue with drug addiction in the past which was linked to his offending.

74. In oral submissions, the Crown agreed that the s 5 threshold had been crossed. It was conceded that the offender did, on the evidence, have a relatively good subjective case, which should be taken into account on sentence, however, there would be concern about his prospects of full rehabilitation from his drug addiction, and his prospects of re-offending.

75. The Crown submitted that general and specific deterrence were important in sentencing for drug supply cases, and that there must be some reflection of the separate offences in accumulating the sentences.

Sentence imposed on 31 July 2018

76. When this matter was called on for sentence today, the court was informed that on 31 July 2018 the offender had been sentenced by N Adams J in the Supreme Court of New South Wales, for an offence of hindering the discovery of evidence contrary to s 315(1)(b) of the Crimes Act 1900 (NSW). That offence arose out of events which took place in November 2015 in Sydney, and were unconnected with the three offences for which the offender is being sentenced. Her Honour sentenced the offender to a non-parole period of 7 months commencing on 2 June 2016 and expiring on 1 January 2017, and a balance of term of 4 months commencing on 2 January 2017 and expiring on 1 May 2017 – see R V Kelekci [2018] NSWSC 1209. In her remarks, her Honour referred to the current matters listed for sentence and stated “any principles of totality would be a matter for the sentencing judge when sentencing on those matters” (see [45]). Her Honour also found special circumstances which led to a variation between the statutory ratio of non-parole period and head sentence.

77. The Crown also tendered an updated custodial history which became Ex B. That document confirmed the sentence imposed by N Adams J.

Determination

78. 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.”

79. I accept the Crown’s submission that the objective seriousness of the offence in Count 1 of supply 4.18 grams of methylamphetamine is below the mid‑range of seriousness, given the amount of prohibited drugs supplied and the small amount of money involved. For an offence pursuant to s 25(1) of the DMTA, this fell below the indictable quantity and was towards the lower range of objective seriousness for such an offence, particularly given his role as a user/dealer involved in street level transactions.

80. I accept the offender’s submission that the offence in Count 2 of supply 668 mls of GHB was the most serious offence here. The supply involved nine transactions and the amount of GHB was approximating two-thirds of the commercial quantity of that prohibited drug. There were 19 separate transactions to a number of people, all of which were conducted by a mobile phone, either through text message or phone call. There was some organisation and planning in these transactions which involved a coded language, and whereby arrangements would be made to meet the end users at various locations. The offending took place over a period of seven weeks. I find the objective seriousness of the offending was just below the mid-range of objective seriousness for an offence pursuant to s 25(1) of the DMTA. It still constituted serious offending.

81. The objective seriousness of the supply charge in Count 3, was at or slightly below the mid-range of objective seriousness for supply of methylamphetamine. It was over five times the indictable quantity, although well below the commercial quantity of 250 grams. The supply took place in exchange for $3,500, and it is irrelevant that the substance was later found not be a prohibited drug.

82. I further find that the offence on the Form 1, of supplying 2.25 grams of cocaine, was at the lower end of objective seriousness for an offence pursuant to s 25(1) of the DMTA.

83. The offender was subject to a s 10 bond to be of good behaviour at the time of the offending, although that bond had almost expired. It was revoked and a fine was imposed.

84. I find that the offender was involved in the substantial supply of drugs. However, his role in that supply was that of a user/dealer, supplying end users on a street level basis. The conduct in Count 3 indicated a change in his modus operandi, to that of middle man, although, he was the subject of a scam as far as that transaction was concerned. However, I find that he was supplying drugs to not profit, but to feed his own addiction to the drug ice. The fact that the police, upon execution of the search warrant, found the paraphernalia of drug dealing, including the ledger, syringes, digital scales and other drugs, indicates that he was involved in the substantial supply of prohibited drugs.

85. General deterrence is important in the sentencing for drug supply offences. A clear message must be sent to the community that Parliament has proscribed severe penalties for such offences, in this case 15 years imprisonment in respect of each offence, and the Courts will impose lengthy periods of imprisonment in appropriate cases. A strong message must be sent to like‑minded members of the community that they will be subject to these harsh penalties in cases of substantial drug supply. Specific deterrence is also important here, and the offender must understand the serious consequences of his criminal conduct.

86. The offender does have substantial subjective factors to be taken into account. He arrived in Australia in 2004 on a student visa. He obtained qualifications following courses of study and quickly obtained employment, first as a chef, and from 2010 to 2015, in his own transport business. His drug use was clearly responsible for the loss of his licence, which led both to the loss of his business and to his failed relationship. He turned to drugs, and his use of ice quickly escalated to daily use, which in turn led to his drug supply activities to feed his addiction.

87. The offender gave impressive evidence of his abstinence from drugs, once in custody, and his remorse for his offending. He acknowledged responsibility for his criminal conduct, his need for ongoing relapse prevention treatment and his plans to become a useful member of society upon his release. He also suffered the grief of losing his father whilst in custody.

88. I find there are special circumstances here pursuant to s 44(2) of the CSPA, for a prolonged period of supervision to assist in the offender’s relapse prevention. It is no small thing to overcome an addiction to prohibited drugs, particularly a highly addictive drug such as methylamphetamine. I will therefore vary the ratio between his head sentence and non-parole period to enable him to undergo the treatment recommended by Mr Watson-Munro, as set out above. Neither the offender nor the Crown addressed the court on whether the offender was entitled to any discount for his plea of guilty, which was entered on 20 October 2017, some two weeks prior to his trial, which was listed on 6 November 2017. In those circumstances, it is not an early plea of guilty, and I would find a utilitarian discount of 10%.

89. This is an appropriate case for an aggregate sentence pursuant to s 53A of the CSPA. However, as a matter of transparency in sentencing, I am bound to provide the indicative sentences for each offence. In doing so, I have regard to the maximum penalty in respect to each offence, and the offence on the Form 1, of 15 years imprisonment and/or 2000 penalty units. The maximum penalties are guideposts in the sentencing process. I also take into account the subjective matters put on behalf of the offender and the 10% utilitarian discount on sentence in arriving at the following indicative sentences:

Count 1 – supply prohibited drug 4.18 grams of methylamphetamine – 1 year and 10 months imprisonment

Count 2 – supply prohibited drug 668 mls GHB – 2 years and 9 months imprisonment

Count 3 – supply prohibited drug 27.8 grams methylamphetamine – 2 years and 3 months imprisonment.

90. I have also certified that I have taken into account the offence on the Form 1, which must lead to some accumulation on sentence.

91. In aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be just and appropriate to the totality of the offending behaviour. I must also have regard to the sentence imposed by N Adams J referred to above. The offender submitted there should be some partial concurrency with her Honour’s sentence, whilst the Crown submitted any sentence should commence on 1 January 2017. I note, as her Honour did at [46] of her remarks on sentence, that I have a broad discretion in regard to the commencement date.

92. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

93. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]:

“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.”

94. In JM v R [2014] NSWCCA 297 the Court of Criminal Appeal set out the relevant principles to be applied in arriving at an aggregate sentence – see also Berryman v R [2017] NSWCCA 297. It is important that the aggregate sentence arrived at reflects the totality of the criminality involved.

95. I intend to sentence the offender to a total term of imprisonment of 3 years and 9 months imprisonment, with a non-parole period of 2 years and 6 months imprisonment. In applying the principles outlined above, the sentence is to commence on 1 January 2017.

Orders

96. I make the following orders:

1. You are convicted of the following offences:

Count 1 – supply prohibited drug (4.18 grams of methylamphetamine) pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 (“DMTA”).

Count 2 – supply prohibited drug (668 mls GHB) pursuant to s 25(1) of the DMTA.

Count 3 – supply prohibited drug (27.8 grams of methylamphetamine) pursuant to s 25(1) of the DMTA.

2. I sentence you to a non-parole period of 2 years and 6 months imprisonment, to commence on 1 January 2017 and to terminate on 30 June 2019.

3. The balance of term will be 1 year and 3 months imprisonment to commence on 1 July 2019 and to terminate on 30 September 2020.

4. I order that the drugs the subject of each of the offences be destroyed pursuant to s 39P of the Drug (Misuse and Trafficking) Act 1985.

5. The charge the subject of a Certificate pursuant to s 166 of the Criminal Procedure Act 1986 is dismissed.

6. I have certified that I have taken into account the charge on the Form 1.

97. 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: 24 August 2018