R v Eneliko

[2020] NSWDC 588

District Court

New South Wales

Medium Neutral Citation:

R v Eneliko [2020] NSWDC 588

Hearing dates:

23 July 2020; 6 October 2020

Date of orders:

6 October 2020

Decision date:

06 October 2020

Jurisdiction:

Criminal

Before:

ADAMS QC ADCJ

Decision:

Full time imprisonment

Catchwords:

CRIME - supply prohibited drug namely methylamphetamine in an amount not less than the large commercial quantity

Legislation Cited:

Drug Misuse and Trafficking Act 1985

Crimes (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

Office of the Director of Public Prosecutions (Crown)
Christopher John Eneliko (Offender)

Representation:

Counsel:
I Lloyd QC

Solicitors:
M Vassall, Solicitor Advocate (Crown)
S Chamas (Offender)

File Number(s):

2019/00138056

Publication restriction:

None

Judgment

Introduction

1. Christopher Eneliko pleaded guilty in the Local Court to the charge of supplying on 2 May 2019 a prohibited drug namely methylamphetamine in an amount not less than the large commercial quantity, namely 60 kg, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The applicable sentence is a maximum of life imprisonment and/or 5000 penalty units. It carries a standard non-parole period of 15 years. He was arrested for this offence on 2 May 2019 and has been in custody since that date, from which his sentence will commence. Given the timing of his plea, he is entitled to a discount of 25% in respect of the sentence that is to be imposed.

Facts

2. These are taken from the agreed facts. During the course of a police investigation, an undercover police officer contacted the offender by telephone offering to sell a large quantity of methylamphetamine and to arrange a meeting at which the offender would collect it. The offender said “he was told to take the call and go to a meeting” and “he was not sure if he was the money man or the amount involved”. On 1 May 2019 the offender told the UCO that he would attend the meeting and give the UCO a code. If the UCO had the same code, the offender would collect the product from him. The offender told the UCO “that is all he knew and he was only to collect the product”. The UCO mentioned an amount of USD450,000.

3. On 2 May the offender exchanged codes with the UCO who told him the location at Milperra where the vehicle was parked which contained the product. In fact, police had provided substitute material. There was no methylamphetamine. The offender travelled to Milperra, collected the van containing the boxed substitute and drove to Condell Park where he met an accomplice, Jason Tran. They transferred the boxes into another van. Tran drove it to an apartment building in Rhodes. The offender took the van he had driven back to Milperra and then went by taxi to Rhodes where he assisted Tran move the boxes of substitute into the apartment. It appears he was in possession of a set of keys to the apartment.

4. Later on, in the evening of 2 May 2019, the offender was arrested in the vicinity of the apartment building. When police searched the apartment, they found in addition to the boxes, various indicia of supply, including scales, Blackberry phones, freezer bags, a money counter and safes. Neither the DNA nor the fingerprints of the offender was found on any of these items. Aside from the keys and the fact that offender had assisted Tran to move the boxes into the apartment, there was no evidence linking him to it. It was apparent that it was not used as a residence. The offender declined to comment on any alleged offending when interviewed.

Objective seriousness

5. Although, in ordinary parlance, this offence would be described as an attempt to obtain methylamphetamine for supply since, though it was the offender’s intention to obtain methylamphetamine and he believed he had done so, no drug was actually handed over, it is comprehended within the meaning of “supply” by virtue of the extended definition of “supply” in s 3 of the Drug Misuse and Trafficking Act 1985. Of course, this does not require the facts to be disregarded. The seriousness of the offence is marked by the maximum term of life imprisonment which it carries and the very significant standard non-parole period.

6. The evidence establishes that the offender was a trusted courier of what he believed to be a large quantity of methylamphetamines. Although he was given only limited details of the transaction, he was aware that it involved a substantial quantity. It does not appear that he handled any of the consideration. There was no risk of any drugs being released into the community, as there were none. Although he said he was motivated by the need to repay his debts (discussed below), there is nothing to indicate what he expected to get in return for his work. I accept that he had no interest in the drugs as an organizer or entrepreneur, and there is no evidence that he was to have a role in their further distribution. However, he was prepared to participate in what was clearly a very substantial enterprise of drug supplying, however relatively minor his own role was to be. Even so, considering the range of seriousness captured by the offence, which involves at the more serious end those who organize and profit from the distribution of drugs, the offender’s involvement was very much at the lower end. At the same time, the quantity was very substantial indeed and this must increase its seriousness. Weighing these factors, I assess the objective seriousness of the offence at significantly less than middle of the range but still substantially more serious than the low end.

Prior offences

7. The offender has two trivial driving offences on his record. They are not such as to deny him leniency or being treated as otherwise of good character (except for his self-confessed use of illicit drugs).

Subjective features

8. Tendered without objection were reports by Dr Richard Furst, Forensic Psychiatrist and Ms Ann Marie De Santa Brigida, Clinical psychologist. The offender is 25 years of age. He was adopted and raised by his maternal aunt although he was unaware that she was not his mother. He discovered this when he was in his mid-teens and this appears to developed intense feelings of betrayal and anger. His home situation was difficult as his adoptive step-father was frequently drunk and violent. His academic performance declined and his behaviour at school worsened, requiring an extensive period of counselling. He did not do well enough, in the result to go onto tertiary education. After achieving his HSC he worked at pick and pack jobs for the ensuing 3 to 4 years until about twelve months before his arrest.

9. The offender used a variety of drugs since the age of 19 years, including cannabis, cocaine and MDMA. His use of cocaine started with “one bag” on weekends, increased to “2-3 bags” (ie 1.3g to 2g) and then into the weekdays. He was also a very heavy drinker and likely alcohol dependant. He developed an addiction to gambling which absorbed all his income after rent. He resorted to short term loans which he could not repay. At the time of his arrest he owed about $4000 in rental arrears and a little over $2000 in fines to the State Debt Recovery Service.

10. Subject to what is noted below, the offender does not have any significant material psychiatric or psychological issues. He was assessed as at low risk of reoffending, providing of course that he deals effectively with his addictive behaviours

11. Ms De Santa Brigida considers that the offender meets the diagnostic criteria for Post-traumatic stress disorder. However, the basis for this is, to my mind slight. At all events, none of the symptom she describes have any apparent connection with the offending. Nor is there anything that suggests he has found this condition has made imprisonment more difficult for him. Psychological testing has revealed a moderate degree of generalised anxiety disorder but there is nothing that suggests anything other than perhaps a mild difficulty with the custodial context. Overall, the most significant feature that, I accept, contributed to his addictive behaviours was his accidental discovery when still a teenager that he had been given up for adoption by his mother to his aunt. His difficulties with finding a way of pro-social interaction were thus not entirely of his own making and require some adjustment of his culpability.

12. Also tendered is a letter from a close friend who has known him for many years, playing Rugby League and working with him. He speaks of the offender’s positive characteristics of encouraging friends and lending a helping hand to those in need. He recalls that the offender changed when he was a teenager and became angry and frustrated in his life. He believes that this offense is an aberration and the offender can learn from it.

13. The offender’s paternal aunt has provided a testimonial in which she refers in moving language to his good qualities, especially as seen in the family context. She also believes his offence is out of character. She mentions visiting the offender on a number of occasions since his arrest and his expressions of deep regret for his actions, which she believes to be genuine.

14. The offender has written a letter to the Court in which he explained, in part, how he came to be involved in this transaction. It is less than detailed, perhaps understandably, but what has been omitted means that its utility in terms of understanding how he actually became involved is relatively limited. At the same time, he expresses what seems to me genuine remorse for his offending, mentioning the great shame and anguish he has brought upon his family and also appreciating the great risk for the community represented by what he was doing, had it been successful. He recognizes that he needs help to deal with his addictions and the underlying personal issues that have, to a significant degree, triggered and reinforced them.

15. Although his account of how he came to be involved in the current offence lacks credible detail, it is plausible that his drug use brought him into contact with a person or persons who thought they could use him and part at least of his motive was to attempt to earn a relatively large sum to enable him to pay his debts. There is no evidence as to what he expected to receive for couriering the drugs. It is unlikely to have been a substantial sum.

16. This is the offender’s first offence and first experience of prison. I accept that he is genuinely remorseful and that his prospects of rehabilitation are good as long as he can abstain from drug use and gambling. Both of these issues are exacerbated by his alcohol dependence. The support of his family and friends is a positive factor but clearly he will need a lengthy period of intervention when he is released. This is not only in his interest but also in the public interest. I find there are special circumstances justifying a variation in the statutory calculus specified in s 44 of the Crimes (Sentencing Procedure) Act 1999.

Sentence

The starting point is an overall sentence of 8 years imprisonment which, when adjusted by the utilitarian discount of 25 per cent is a term of 6 years imprisonment commencing 2 May 2019. The non-parole period, taking into account special circumstances, is 3 years and 6 months, with the balance of term 2 years and 6 months. The offender will be eligible to be considered for release on parole on 1 November 2022.

Decision last updated: 06 October 2020