R v Jolevski

[2002] NSWCCA 472

CITATION:	R v Jolevski [2002] NSWCCA 472
FILE NUMBER(S):	CCA 60442/02
HEARING DATE(S):	26 November 2002
JUDGMENT DATE:	2 December 2002
PARTIES :	Regina Toni Jolevski
JUDGMENT OF:	Mason P at 1; Sperling J at 2; Bell J at 24

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	0/11/0185
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

COUNSEL :	Mr R Hulme SC for the Crown Mr S Odgers SC for the Appellant
SOLICITORS:	Mr S E O'Connor for the Director of Public Prosecutions Aitken McLachlan Thorpe for the Appellant
CATCHWORDS:	Criminal Law - sentencing - Crown appeal - no question of principle
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999, s9 Drug Misuse and Trafficking Act 1985, s25A
CASES CITED:	McArthur [2002] NSWCCA 390
DECISION:	Appeal dismissed.

- 16 -IN THE COURT OF

60442/02

Mason P
Sperling J
Bell J

Monday, 2 December 2002

R v Jolevski

Judgment

1 Mason P: I agree with Sperling J.

2 Sperling J: The respondent Toni Jolevski was born on 8 August 1972. He was charged with the offence of supplying a prohibited drug (methylamphetamine) on an ongoing basis between 21 September 2001 and 22 October 2001, contrary to s25A of the Drug Misuse and Trafficking Act 1985. The offence is constituted by the supply of a prohibited drug for financial or material reward on three or more separate occasions during any period of 30 consecutive days. The maximum penalty prescribed for the offence is imprisonment for 20 years and / or a fine of 3,500 penalty units.

3 The respondent pleaded guilty to the charge at the earliest possible time. On 16 August 2002, Kinchington DCJ, having taken evidence on 1 August 2002, deferred sentence upon the respondent entering into a bond pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999 to be of good behaviour for a period of 18 months from 16 August 2002. Additionally, His Honour imposed a fine of $3,000. A further offence of possessing a prohibited drug, committed on 21 October 2001, was taken into account on Form 1.

4 The Crown has appealed against the sentence.

5 In brief, the facts constituting the offence charged were as follows. The respondent supplied tablets containing methylamphetamine to an undercover police officer, “Jenny”. They had met in the Zen nightclub at Kings Cross where police were carrying out an operation targeting drug dealing at that establishment. The respondent supplied four tablets to the operative on the first meeting. They exchanged telephone numbers and maintained contact in the ensuing weeks, during which there were three further occasions of supply. Details of the four transactions are as follows.

22 September 2001	4 tablets	1.12grams	7% purity	$160
29 September 2001	7 tablets	1.96g	4.5%	$280
20 October 2001	13 tablets	3.77g	3.0%	$500
21 October 2001	5 tablets	1.52g	Not tested	$250
TOTAL	29 tablets	8.37g	$1,190

6 In his evidence before the sentencing judge, the respondent claimed that he had not supplied illicit drugs to any other person, either before or since his arrest. Further, he claimed that he made the supplies in question only because the undercover officer prevailed upon him to do so.

7 The following are extracts from the respondent’s evidence given at the sentencing hearing:

Q. You told the police lady - I think her pseudo name is Jenny - in a statement dated 20 October 2001, “I have never done this before” - referring to supplying drugs - “I just did it to help you out, I don’t deal to anyone else.” Did you say that to her?
A. Yes I did.
Q. Was that a statement of truth?
A. Yes it was.
Q. Is this case all about you being asked to supply her with what you believed was the drug ecstasy over this 30 day period?
A. Yes it is.
Q. Had you ever supplied to any person before?
A. No.
Q. Have you ever supplied to any person since?
A. No.
Q. Had she not prevailed upon you, would you have supplied her?
A. No I wouldn’t have.
… … …
Q. Would you tell his Honour how that occurred?
A. Well I was basically just dancing at the time and made some eye contact with Jenny.
Q. Prior to that had you taken ecstasy?
A. Yes I had.
… … …
GOLDSWORTHY: Q. How does ecstasy make you feel?
A. It gives you a euphoric feeling, you’re a little more friendly to everybody you meet and you think everybody’s your friend and--
Q. Does it make you trusting?
A. Definitely.
Q. And very open?
A. Yes you find yourself having long winded conversations with people you’ve just met, tell them your whole life story. On the regular basis, that will happen three or four times in a night.
… … …
Q. Did the conversation at some stage turn to whether you could get her some drugs?
A. Yes it did, after I had been speaking to her for awhile. I would have been about five minutes intermittently, then she said to me “Oh you look like you’re having a good time, why don’t you - do you know anywhere I can get any pills?” I said “Well as a matter of fact I do” and that’s when--
Q. You introduced her I think to someone you know as Jake?
A. Yes that’s right, I introduced her to a person I’d met that night and his name was Jake, but he’s referred to in the police records as--
Q. How did you know he had drugs?
A. Because that’s who I got my drugs off that night.
… … …
Q. You facilitated her being supplied that night by introducing the two?
A. Yes I introduced her to Jake yes.
Q. With some ecstasy tablets, or what you believed to be ecstasy?
A. Well I just introduced her to Jake, I didn’t - I just introduced her to Jake in the premise that she was looking for some ecstasy pills.
Q. At some stage before you left, did she take your number?
A. Yes she did.
… … …
Q. Did you understand when you gave her your number then, that she would be asking you for more drugs?
A. No, I give my number out on a regular basis to people and get their numbers. Sometimes I look at my phone at the end of the night and say “Who’s that number on there?”.
Q. You’re not a native of Sydney, I think you came from Melbourne?
A. I came from Melbourne, I’ve only been here three years.
Q. Just answer what I’m asking you. She, as part of the chit chat with you, told you that she was a country girl?
A. Yes.
Q. Did you think that in speaking to her and perhaps meeting her later for coffee, you were helping a newcomer to the city?
A. Yes.
Q. Did you intend at that time to supply her with drugs?
A. No.
Q. What happened after that?
A. Well it would have been on the Tuesday or the Wednesday she had called me - that’s the following Tuesday or Wednesday she had called me - we had a brief conversation. Then a day or so later she called again and then she brought up whether that she was going to go out that weekend and said would I be able to get her any pills.
… … …
Q. How many occasions does it say she called you in the brief?
A. She called me on 15 occasions.
Q. And how many times does the brief say you called her?
A. Four.
Q. Were there more calls than that?
A. Definitely. That’s probably only about half of the number of calls that were made.
Q. In addition, the material that’s recorded as representing the conversation, was that all of the conversation or just snippets here and there?
A. Not at all, that is just only snippets. We had extensive conversations, sometimes five to ten minutes long and every odd day.
Q. Most of the time, is it fair to say, she was calling you?
A. Yes most of the time.
Q. I don’t want to go into each conversation unless his Honour would like to hear it, but in effect, it led to her asking you to supply her with some ecstasy, or what you believed was ecstasy?
A. Yes, yes.
… … …
HIS HONOUR: Q. On all the occasions that she rang you or that you spoke with each other, was ecstasy discussed, or were there other?
A. Ecstasy was discussed hardly ever. She hardly ever made reference to it. It would only be she would call me on the Monday or the Tuesday and then make follow-up calls and I’d probably call her back and then on about the Wednesday or Thursday she’d say “Oh by the way I’m going out this weekend, do you think you can arrange some pills?”
… … …
Q. You never initiated any conversation “Do you want some more drugs?”?
A. That’s right yeah.
GOLDSWORTHY: Q. Did you have a ready supply of ecstasy?
A. No.
Q. You did supply her with, the facts say on the next occasion which is 28 September, you supplied her with seven?
A. That’s right yes.
Q. Were you only supplying her on each occasion with what she asked for?
A. Yes.
Q. How did you get the drugs that you gave to her?
A. I actually purchased those off that boy that I’d met, Jake, that night that I had actually met her coincidentally.
HIS HONOUR: Q. Did you ever make any profit out of these, or did you--
A. Well no I didn’t actually make a profit as such.
Q. What do you mean by that?
A. I mean by that is that when I would have purchased, I would have given to her more or less for what I had bought them for and maybe there’d probably be one pill left over if I bought - not money profit but I guess profit in - leftover in pill.
GOLDSWORTHY: Q. Why were you giving her drugs. That’s the $64 question for you to--
A. Yeah I still ask myself that question now. Basically she was being - I could emphasise with - with her situation. Well she didn’t know anybody apparently, she was out of town and then she was always talking about how’s she’s coming into town and she’s now basically like the link for all of her friends, who were coming into town as well. Her brother and his friends were coming into to meet her, so she basically said well her dealer has gone overseas, you know. She then started talking about you know how that’s like, when you can’t them, you know, I don’t want to go into a club and start asking people for it. You know if you can--
Q. Did you feel sorry for her to a point?
A. Yes definitely.
… … …
Q. Is that a factor in the fact that you were trying to help her out?
A. I guess if you’re asking me if a boy had been calling me and I don’t think I would have been in this situation.
… … …
Q. On the last occasion I think you gave her five--
A. On the last occasion yes.
Q. --and you were arrested shortly after that?
A. Yes, yes.
Q. And you had a further I think four in your possession?
A. Six.
Q. A further six in your possession I beg your pardon?
A. Yes.
Q. Why did you have 11?
A. Well during that week, the lead up to that week, what had happened is that she had actually called and then alluded to the fact that she wanted something in the vicinity of $1000 worth of pills.
Q. That’s in the brief of course?
A. That’s in the brief yes. And so I purchased as much as I could for her and then when I went to see her on the Thursday, she only gave money for half of those, the 500 or something around that amount.
… … …
Q. Do you say in summary, that the only reason you gave these drugs to this young girl, are the reason that have been outlined to this Court?
A. That’s right.

8 In cross-examination, the respondent denied telling the undercover police officer “Jenny”, on the first occasion, that he normally bought in bulk. Otherwise, there was no challenge to the respondent’s evidence in relation to his account of what occurred or in relation to his motivation for what occurred or in any other respect.

9 In these circumstances, the sentencing judge was entitled to accept the respondent’s account of his conduct in every particular, which he apparently did.

10 His Honour had before him a Probation and Parole Service pre-sentence report. The following is an extract.

Notwithstanding these offences, Mr Jolevski does not present as a drug dealer, and his account of being snared into the episode is plausible. He said he was affected by ecstasy at the time he was approached by the police operative, and was thus more amenable than he would otherwise have been. He claims he made not more than $90 from all transactions. He presents as most regretful of his involvement.

11 The respondent is recorded as having told the author of that report that he made “not more than $90 from all transactions”. In his evidence at the sentencing hearing, the respondent said, as I have recorded -

I would have given to her more or less for what I had bought them for and maybe there’d probably be one pill left over if I bought - not money profit but I guess profit in - leftover in pill.

This was not a serious discrepancy, if it was a discrepancy in all.

12 His Honour also had before him report by Dr Wendy-Louise Walker, psychologist. The following is an extract from her report.

Mr Jolevski admits that he provided “ecstasy” pills to the undercover police woman, whom he believed to be a vulnerable young woman from the country trying to fit into city life. He is very sorry this happened and berates himself for his own stupidity in using illegal drugs in the first place and for his having been gullible and irrationally trusting enough to obtain “ecstasy” for a young woman he had just met, especially when she was insistent on his getting the drug for her and, according to both himself and Zoë [his partner] separately, phoned him at home on so many occasions that Zoë became irritated, even jealous.
… … …
While Mr Jolevski is immature for his age, impulsive and unduly trusting, he does not have a criminal orientation or a malevolent value system. On the contrary, he impresses as imaginative, a helper rather than a user of people, imaginative, forward looking and innovative rather than conservative. He himself has valued our sessions and he himself requested that he continue seeing me for weekly counselling to help him “grow up” in important areas.
… … …
He was asked to get some of the drug for the police woman and, stupidly, did so, believing her to be a young woman from the country. She phoned him repeatedly at home according to both his account and that of Zoë, with further requests for larger supply of the drug. He said that her pressure was consistent and strong. He did not realise that, as he now believes, she was trying to get him to make 3 supplies of the drug to her in a 30 day period. He was bewildered and when arrested and charged and it took some time for him to realise what had happened.
Mr Jolevski is very remorseful about having broken the law, he is very sad that his own good name (and likely career) are wrecked and he is bewildered about the extent of the perceived entrapment. He does, however, realise the gross stupidity of use of illegal drugs and of breaking the law, putting all his career and success at risk over some hedonistic socialising.
… … …
After having interviewed Mr Jolevski for 11 hours and having done formal personality testing, I am confident of my opinion of him as not suffering any mental disorder, but rather as being immature, impulsive and somewhat hedonistic as well as highly intelligent and successful in his studies and career. He is not, in my opinion, criminally oriented or psychopathic. He is booked for ongoing therapy with me, with inter alia goals of developing his sense of general responsibility (not just in the workplace but in the world in general) and of addressing other areas of coping and behaving not developed in his life experience. I believe his prognosis for a law-abiding and high-achieving life is excellent.

13 An impressive body of favourable character evidence was tendered at the sentencing hearing.

14 The sentencing judge summarised the objective facts of the case in his remarks on sentence as follows:

1. At about 12.00 am on Saturday 22nd September 2001 two undercover operatives positioned themselves at a table near the dance floor of the club where they were approached by the accused and engaged in conversation during which the supply of the prohibited drug ecstasy was discussed. The accused left the table and returned shortly thereafter with a person named Jay. Jay and the undercover operatives engaged in a conversation during which Jay agreed to supply the undercover operatives with 4 ecstasy tablets for $160.00.
2. The undercover operatives, Jay and the accused then walked to a corridor near the toilet, where further conversation took place in relation to the supply of the ecstasy tablets and the two undercover operatives handed over $160.00 in pre recorded “buy money” to Jay in return for which the accused handed the undercover operative 4 small green tablets with a superman logo on them.
3. The undercover operatives returned to the table next to the dance floor where the accused again spoke to them and supplied them with his mobile telephone number. The undercover operatives exited the club and returned to a location in Surry Hills where the drugs were secured. Police conducted checks on the mobile phone number supplied to the undercover operatives by the accused and those checks confirmed the identity of the accused and his home address.
4. On the 27th of September 2001 and undercover operative contacted the accused on his mobile telephone number and discussed the purchase of further prohibited drugs. Following this initial conversation a number of subsequent conversations took place during which the same topic was discussed but no drugs were supplied as a result thereof until about 11.20 pm on 28th September 2001 when police contacted the accused and arranged to meet him outside the Zen Nite Club where they would purchase a further quantity of ecstasy tablets.
5. About 12.10 am on 28th September the accused met the 2 undercover police operatives on the footpath outside the Zen Nite Club before entering the club. Once inside the club the accused and undercover operatives walked to a hallway at the rear of the club where the accused supplied the undercover operatives with 7 small white tablets wrapped in plastic in exchange for which the undercover operatives handed the accused $280.00 in pre recorded buy money. The accused then exited the club and was seen to leave the vicinity of the Club in a commodore sedan. Checks upon the vehicle revealed that the accused was the registered owner thereof. Video surveillance of the club shows the accused entering and exiting the premises on the 28th September 2001.
6. On the 19th October 2001 undercover police sought to meet the accused inside the Zen Nite Club where he would supply them with a further quantity of Ecstasy tablets for $500.00. The accused expressed concern to the undercover operatives about attending the Club, carrying such a large amount of tablets and arrangements were made to conduct the transaction in Kellet Street, Kings Cross which is approximately 30 metres East of the club.
7. About 12.05 pm on the 20th October 2001 the accused met with two undercover operatives sitting in a covert police vehicle, in Kellet Street, Kings Cross. The accused entered the rear driver’s side door of the vehicle and sat in the middle of the rear seat and handed one of the undercover operatives a small resealable plastic bag, containing 13 small blue tablets. In return for this the undercover police operative handed the accused $500.00 in pre recorded buy money. The accused exited the vehicle and walked away. Police have clear video footage of the accused entering and exiting the covert police vehicle.
8. On Saturday 20th October 2001 undercover operatives again contacted the accused on his mobile telephone and arranged to meet him in Kellet Street, Kings Cross where he was to supply the operatives with further ecstasy tablets.
9. About 12.05 on Sunday 21 October 2001 two undercover police waited inside a covert police vehicle at the corner of Kellet Street and Bayswater Road, Kings Cross. Shortly thereafter the accused was observed to arrive in a taxi with another male person at the corner of Bayswater Road. The accused exited the taxi and walked up to and entered the covert police vehicle and sat in the rear seat. The accused after a short conversation with the undercover operatives handed one of them 5 blue round tablets wrapped in foil. In exchange for these tablets the operative handed the accused $250.00 in pre recorded buy money. The accused exited the covert police vehicle and began to walk back to the taxi and the undercover operatives left the area. As the accused approached the taxi he was stopped and arrested by other police and conveyed to the Kings Cross Police Station where he was searched. Located in the accused’s rear pocket was his wallet inside which police found a small plastic resealable bag which contained 6 small round blue tablets. These tablets were identical to the tablets the accused had been supplying to the undercover police operatives. The accused informed police that these 6 tablets were ecstasy (these facts relate to the matter on the Schedule).

15 As to the respondent’s subjective circumstances, his Honour recorded that the respondent was in a permanent relationship with an English woman, whom he would probably marry in the near future, provided she could obtain permission to stay in Australia. The respondent had no criminal record and, until the time of committing the subject offence, was entitled to be regarded as a man of good character. He had pleaded guilty from the outset. The sentencing judge accepted that the plea was a genuine sign of remorse and contrition. The respondent was presently employed as an actuary with a large accounting firm and was on his was to qualifying as a chartered accountant. His Honour had no doubt that the respondent’s prospects of advancement with his present employer were now somewhat diminished and that the criminal conviction would adversely impact on his future employment prospects for a considerable time. The respondent had every prospect of effecting his own rehabilitation. He had not sought to excuse his criminal conduct in any way and took full responsibility for the way he had behaved. His Honour accepted the opinion expressed in the pre-sentence report that the respondent seemed to be immature and impulsive and that immaturity rather than deliberation seemed to be the primary component in what had occurred, and that the experience seemed to have been most salutary.

16 His Honour made the following assessment of the respondent’s criminality:

The offence committed by the offender is one of the most serious drug related offences in this State. While the primary purpose of the legislation which gives rise to this offence is to target dealers who have organized their affairs in such a way as to limit the full effect of the Drug Misuse and Trafficking Act 1985 it also rightly catches up those on the fringe of that illicit professional activity such as this offender. From the material that has been placed before me in these proceedings I am satisfied that while the offender was caught up by the police operation I have previously identified herein I am also satisfied that the operation had as its main objective the exposure and arrest of professional dealers in illicit drugs who operated from the club in question. To my mind this offender was not such a professional dealer but was a person who was part of the drug user culture who also frequented that club and who only intended to help out a person (who turned out to be an undercover police operative) who he believed was also a fellow traveller and drug user. Having said that I do not want it to be thought that his criminal conduct was acceptable in any way because it was not and it is clearly inexcusable. However I feel he has learnt his lesson, and the impact that this conviction will have on his life will be felt by him for many years to come.

17 His Honour recognised that conviction for the offence in question would ordinarily warrant a full-time custodial sentence. However, his Honour said:

To my mind this is a unique and exceptional case and I have approached the sentencing task entrusted to me herein in this way because I am satisfied firstly that he was not in the business of a street drug dealer / vendor, secondly there is no likelihood of the offender ever appearing before this or any other Court on any criminal charge in the future, thirdly that his early plea of guilty represents genuine remorse and contrition on his part, fourthly that he has now effectively put his life in order and has put his use of drugs behind him, fifthly the probable impact and consequences that this conviction will have on his future lifestyle and employment prospects is such that it seems that the orders I propose to make will adequately punish him for his criminal conduct over the period in question.

18 The sentencing judge’s reasons for regarding the present case as unique and exceptional can be summarised as follows: the respondent was not in the business of dealing in drugs; there was no likelihood of repetition; remorse and contrition were genuine; the respondent had ceased using illicit drugs himself; the conviction was likely to have an adverse impact on the respondent’s future, personally and professionally.

19 A sentence by way of bond for an offence against s25A is not without precedent. Statistics referred to by the Crown include two cases where the only penalty imposed was a s9 bond. That was out of some 36 cases on the database. The facts of the two cases were not brought forward for examination. The court was informed that they were not decisions of this Court. Assuming they were decisions at first instance, there was apparently no Crown appeal in either case.

20 The case of McArthur [2002] NSWCCA 390 was said to involve a level of criminality very close to that in the present case. In that case, this Court reduced a sentence of 14 months imprisonment with a non-parole period of seven months to a sentence of ten months with a non-parole period of five months and 20 days. The consequence was that the appellant was entitled to be released immediately. The offender had involved herself in the business of a regular supplier of so as to enable the business to continue in his absence. Notwithstanding that that offender made no profit for herself out of her activities, she was nonetheless involved in an ongoing business of supplying an illicit drug. That is a feature which, on the findings made by the sentencing judge, is not shared by the present case.

21 The feature of the present case which is of most significance, as was recognised by his Honour, is that the respondent was not engaged at all in the business of supplying an illicit drug and, by inference, would never have been involved in criminal activity at all had it not been for the blandishments of an undercover police officer. That is not to suggest that police conduct in this case was improper, but it is an aspect of the case which limits the respondent’s criminal responsibility to a very low level.

22 Section 25A covers a wide range of conduct involving a wide range of criminal culpability. On the findings made by the sentencing judge, this offender was, as his Honour put it, “on the fringe of that illicit professional activity”. On his Honour's findings, the case was at the lower end of the range of conduct covered by the section so far as criminal culpability is concerned.

23 On the findings made by the sentencing judge, which were amply justified on the evidence, a lenient view was warranted. In my opinion, the penalty imposed was not so manifestly inadequate as to call for the intervention of this court on a Crown appeal. Indeed, my own view is that, on those findings, the penalty was no more lenient than was appropriate. I would dismiss the appeal.

24 Bell J: I agree with Sperling J.

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