R v Despotovski

[2020] NSWDC 873

District Court

New South Wales

Medium Neutral Citation:

R v Despotovski [2020] NSWDC 873

Hearing dates:

2 October 2020

Decision date:

02 October 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of 1 year 10 months. Non parole period of 12 months.

Catchwords:

CRIME – Make collusive agreement with member of NSW Police

SENTENCING — Relevant factors on sentence - integrity of the administration of justice – drug dealer seeks information from serving police officer - late guilty plea- accumulation on existing sentence totality - special circumstances

Legislation Cited:

Police Act 1990 (NSW

Cases Cited:

Postiglione v The Queen (1997) 189 CLR 295

R v Despotovski [2020] NSWDC 110

R v Hoyn [2020] NSWDC 834

Category:

Sentence

Parties:

Goran Despotovski (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr D Roff (for the offender)
Ms J Hopper (for the Director of Public Prosecutions)

Solicitors:
McGirr Lawyers (for the offender)

File Number(s):

2018/00375206

Publication restriction:

No publication of any information that might identify the Undercover Police officer, including publication of any operational pseudonym.

sentence – ex tempore revised

1. On 15 April 2020 I sentenced Goran Despotovski to five years and seven months imprisonment for supplying a large commercial quantity of cannabis leaf. His non-parole period of three years and six months commenced on 20 December 2019, and his current parole date is 19 June 2022: see R v Despotovski [2020] NSWDC 110.

2. Mr Despotovski pleaded guilty to the supply offence. At about the same time he was also arrested and charged with an offence of making a collusive agreement with a member of the New South Wales Police Force. That offence carries a maximum penalty of seven years imprisonment: s 201B of the Police Act 1990 (NSW). His plea to that charge came just before the date fixed for trial. A reduction of 5% of the otherwise appropriate sentence is justified. Sentencing is not meant to be an arithmetical exercise. When I apply the discount, I am not obliged, as I understand it, to break the sentence down into weeks, days or hours. He will probably get a benefit beyond the statutory provision, simply to avoid such a circumstance.

3. His guilty plea indicates an acceptance of responsibility, belated though it was, it did save some court time. Whether it indicates remorse or regret or an acceptance of the inevitable is impossible for me to say.

4. There are agreed facts for sentence. They start with this premise; Despotovski was a drug dealer. He met Dennis Hoyn, who at the relevant time was a Senior Constable of NSW Police, on 4 December, at a hotel in Wollongong. The offender asked Hoyn to look someone up for him on the NSW Police records system and provided him with details and descriptions of that named person. He told Hoyn that this person owed him a substantial amount of money. Hoyn was convicted after trial and has been sentenced: R v Hoyn [2020] NSWDC 834.

5. The two men exchanged phone numbers. Unbeknownst to either of them, there was a lawful listening device operating on Despotovski's phone. He was later recorded talking to his wife about the meeting.

6. The following day Despotovski and Hoyn had a conversation about meeting at the hotel. During the phone call Despotovski asked how Hoyn had gone with his “homework,” to which Hoyn ultimately replied "I'll show ya, I'll show ya." It is clear that Despotovski was concerned that the person nominated might be an undercover operative. He and his wife discussed leaving the State if they received information confirming that belief.

7. On 5 December the two men met at the local hotel. Hoyn showed Despotovski screenshots that he had obtained from the police information system. Despotovski gave Hoyn $300 in cash, which he used for gambling at the hotel that night. Hoyn did not bring much money to the hotel. When he left the hotel he had $200 in his possession.

8. Hoyn and Despotovski were spoken to by police that night. In a police interview, Despotovski made a number of denials that were contradicted by the agreed facts. He told police the money exchanged was for Hoyn to place bets on behalf of Despotovski. That answer does not explain the fact that Hoyn had cash on him when he was spoken to that night.

The offence - objective seriousness

9. Offences such as this are serious as they threaten the integrity of the administration of justice. They potentially pose a danger to police sources of information, and could jeopardise important investigations. Generally, a retributive sentence is required to appropriately punish those who seek to interfere with the integrity of our justice system. Deterrent sentences are required to let others, who might be similarly inclined, know the consequences of such actions. Given Despotovski's occupation at the time was a drug dealer and gambler, and as he is already serving a lengthy period of full-time custody, only a custodial sentence could meet all the purposes of sentencing.

10. The case for the offender has not changed since my earlier judgment. He is in his mid-forties. He has a supportive and loving family. He has the continuing support of his wife, and accommodation and employment available to him on release. He has apparently used his time in custody well, and no longer has any drug or alcohol issues; matters which of course will have to be tested on his release. He says in his late twenties depression caused him to change from an athletic young man to one who took up gambling. His history sets out a number of other matters that led to a downward spiral.

11. Despotovski has had problems with the law in the past. He has attempted to get his life back in order before and failed. It appears that prior to his arrest for the supply cannabis matters, gambling was his major preoccupation. He was living off the income of his drug supply operation and his gambling.

12. He now says he has learned some important lessons that gaol is meant to teach. He is amenable to interventions. His psychologist, Dr Protulipac, concludes that his mental state meets the criteria for Post-Traumatic Stress Disorder, chronic-type Major Depressive Disorder and Panic Disorders with Agoraphobia. He has strong family support.

13. He has been in custody during the COVID-19 pandemic. He will remain in custody during the pandemic, with the restrictions placed on all prisoners by the necessary measures taken by Community Corrections to prevent COVID-19 getting into the gaols. If COVID-19 does get into the gaols, he qualifies for consideration for early release to parole.

14. A sentencing judge must consider the totality of all criminality involved when a person comes for sentence, even though that person comes for sentence on two different occasions. This is a different offence, but it is related to the matters for which he is currently serving a sentence. The total period he spent in custody should adequately and fairly represent all his criminality. Postiglione v The Queen (1997) 189 CLR 295.

15. There must be some independent punishment for this offence. That is the only way I can meet all the purpose of sentencing, do justice to the seriousness of what he did, and punish him for his crime’s potential impact on the community to. Unless I was to extend the sentence beyond that which is justified, this will mean that the earlier non-parole period I fixed will have to be reduced. I fixed that period in order to enable Despotovski to be supervised and monitored in the community, and to enable him prove that his behaviour in custody could be replicated in the community. It is an unfortunate fact that that period will have to be reduced, but it does justify a significant finding of special circumstances for this matter.

16. I have structured the sentence so that the length of the sentence reflects the seriousness of what was done and partial accumulation, but I have also adjusted the starting dates to allow for a significant period on parole. The formal orders are that had it not been for the plea of guilty, a sentence in the order of two years would have been imposed. Taking into account the statutory 5% reduction and making some allowances for rounding, there will be a sentence of one year and ten months.

Orders

17. The formal orders of the Court are: In accordance with your guilty plea you are convicted. There will be a non-parole period of 12 months. That sentence will commence on 19 November 2021, which means that you will be released to parole on this sentence on 18 November 2022 - that is an extension of the earlier sentence by five months. There will be a parole period of ten months which will run concurrent with the existing parole period.

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Decision last updated: 16 March 2021