R v Kaplantzi

[2023] NSWDC 42

District Court

New South Wales

Medium Neutral Citation:	R v Kaplantzi [2023] NSWDC 42
Hearing dates:	22 February 2023
Decision date:	17 March 2023
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 3 years
Catchwords:	CRIME - SENTENCE - Supply prohibited drug - expert witnesses - departure from Code of Conduct
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW) s 25(2), s 25(1)
Cases Cited:	Bugmy v R (2013) 249 CLR 571
Category:	Sentence
Parties:	Rex (Crown) Manuell Kaplantzi (Offender)
Representation:	Mr Ye (DPP) Mr Maarraoui (Counsel for the offender)
File Number(s):	2020/00092887
Publication restriction:	Nil

1. Manuell Kaplantzi, you appear for sentence today in relation to three offences.

2. First, supplying a prohibited drug (commonly known as MDMA) in an amount not less than the commercial quantity for that drug (Count 2). This involves a contravention of s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for that offence is imprisonment for 20 years. There is a standard non-parole period of imprisonment for 10 years.

3. Secondly, supplying a prohibited drug (cocaine) in an amount greater than the indictable, but less than the commercial, quantity for that drug (Count 3). This involves a contravention of s25(1) of the Drug Misuse and Trafficking Act. The maximum penalty for that offence is imprisonment for 15 years. There is no standard non-parole period.

4. Thirdly, supplying a prohibited drug (cannabis) in an amount greater than the indictable, but less than the commercial, quantity for that drug (Count 4). This also involves a contravention of s25(1) of the Drug Misuse and Trafficking Act; however, the maximum penalty for this offence is imprisonment for 10 years. There is no standard non-parole period.

5. The facts upon which you are to be sentenced are largely agreed and contained in a document entitled “Statement of Agreed Facts”. (I shall refer to and resolve the areas of dispute later in these remarks on sentence).

6. For my purposes this afternoon, the agreed facts may be summarised as follows.

7. As at November 2019, you were approximately 52 years old; and you had a son (Andrew) who was aged approximately 23 years.

8. In November 2019, a Police Strike Force was established to investigate the supply of prohibited drugs within the southwest metropolitan region of Sydney – which is where your son lived.

9. As a result of the investigations of that Strike Force, your son was “… identified as an upline supplier [of prohibited drugs] capable of selling commercial quantities of prohibited drugs at short notice”.

10. As at February 2020, your son had (at least) one mobile phone, which had the number …303. That phone number “… was established to facilitate the supply of cocaine and [MDMA] to persons who called the number”. The phone was used by your son to contact family members, his de facto, and customers wanting to purchase drugs. Orders were placed using code words. Your son subsequently supplied prohibited drugs to “customers” as well as “family members”.

11. On 5 February 2020, the police obtained a telephone intercept warrant in connection with that mobile phone, and the telephone calls on it were subsequently monitored by police.

12. In addition, physical surveillance by police of your son’s drug related activities was undertaken.

13. On 21 March 2020, police investigators intercepted a phone call on that mobile phone between you and your son, in which you (in code) placed an order for cocaine.

14. On 24 March 2020, police intercepted another phone call on that mobile phone between you and your son, in which you (again in code) placed an order for MDMA.

15. Later on 24 March 2020, you and your son met at, or near, his residential premises in Liverpool. This meeting was the subject of police surveillance, which recorded your son providing you with items which you placed inside the front glove box compartment of your motor vehicle.

16. A short time later, you drove away from those premises – soon after which, you were pulled over by police and your vehicle was searched.

17. As a result of that search, the police found 214.7 grams of MDMA and 56.2 grams of cocaine.

18. There is no dispute that those prohibited drugs were provided to you by your son at the time the items I earlier referred to were placed inside the front glove box compartment of your motor vehicle. The only rational inference is that those drugs were those items.

19. It is these facts which constitute Counts 2 and 3 (I note that they are deemed supply matters).

20. But that quantity of MDMA and cocaine was not all the police found when they searched your motor vehicle.

21. In the cargo compartment, they found 5 resealable bags which contained a total of 2.268 kilograms of cannabis leaf.

22. As I have understood this Statement of Agreed Facts, this cannabis was not part of the drugs supplied (on this occasion) to you by your son.

23. It is these facts which constitutes Count 4 (which I also note is a deemed supply matter).

24. The Statement of Agreed Facts does not state the purity of the MDMA or the cocaine, nor the value of any of the three types of prohibited drugs. And I have not speculated about those matters adversely to your interests.

25. The Statement of Agreed Facts also does not expressly state the basis on which the cocaine and MDMA was supplied to you by your son: for example, as a gift; for money (and if so, in what amount?); on credit, etc.

26. It is necessary for the Court to make a finding of the objective seriousness of each offence for an offence of its kind.

27. In making such a finding, relevant factors include the weight or quantity of the drugs, the purity of the drugs, the value of the drugs, and the role of the relevant offender in the (here, deemed) supply.

28. I have already referred to the first three factors.

29. As to the fourth (i.e., your role), this is an issue in dispute.

30. The Statement of Agreed Facts goes no further than I have set out.

31. In this context, I note that you did not give sworn evidence in the sentence proceedings.

32. On the question of your role, the Statement of Agreed Facts was “supplemented” by a sentencing assessment report and part of the report of a psychologist, dated 19 February 2023.

33. It is appropriate here to pause to make some observations about that report.

34. The author purported to subscribe to the Expert Code of Conduct. Clause 2 of the Code provides:

“An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness”.

35. This duty is, to my observation over many years, frequently honoured in the breach than the observance.

36. Of concern in the present case is the fact that, simultaneously with purporting to comply with the Code, the author of the report was prospectively offering his services (no doubt, for financial reward) to you. The conflict of interest is glaring. In an appropriate case, such a substantial departure from the Code could result in a significant reduction in the weight to be given to a report. However, no submission to that effect was made by the Crown in this matter.

37. Returning then to the evidence concerning your role, the sentencing assessment report (tendered without objection), under the heading “Attitudes”, recorded as follows:

“

• Mr Kaplantzi claimed to be using a mixture of substances on the day of his arrest, which he suggested affected his memory of the events. He stated that he could not recall his arrest and was unable to verbalise any insight into his thought pattern on the day.

• Despite this, he reported feeling under pressure to purchase the illicit substances from his son, stating that he [I assume this to be a reference to Andrew Kaplantzi] had asked on numerous occasions to help him [I again assume this to be a reference to Andrew Kaplantzi] out.

• Mr Kaplantzi stated that he was unsure what he was going to do with the substances and denied any intention to sell them” (my emphasis).

38. In contrast, the report of the psychologist at page 10 recorded:

“With the Covid-19 pandemic backdrop, Mr Kaplantzi was aware that there would be difficulties in sourcing illicit substances. His addiction to these substances was severe, and he purchased a larger than normal quantity in order to support his own addiction during this time”.

39. I note that, during submissions at the hearing on 22 February 2023, your counsel confirmed that it was your position that you had, in effect, purchased all of these three types of prohibited drugs in bulk for your personal use with no intention on your part of selling for commercial gain any of the cocaine, MDMA, or cannabis.

40. The version of events offered in the sentencing assessment report is not only internally inconsistent but (at least in relation to the third dot point) improbable. The psychological report is inconsistent with the sentencing assessment report.

41. Given these inconsistencies and improbabilities, and given that no version was advanced by you under oath, in the result, I am not satisfied, on the balance of probabilities, that the totality of the three substantial quantities of prohibited drugs was obtained by you for the sole purpose of your personal use. Given your long history of drug abuse (to which I shall return), I am satisfied, on the balance of probabilities, that some of those drugs may well have been acquired for that purpose, but in what precise proportion I am unable to say.

42. In these circumstances, I have assessed each offence as just below the mid-range of objective seriousness for an offence of its kind.

43. There are no additional aggravating factors.

44. As I have already noted, you did not give oral evidence during the sentence hearing. Instead, your subjective circumstances are set out in the documents contained in Exhibit 1 which include, amongst other things, the report of the psychologist, together with an apology letter written by you. Because you did not give sworn evidence, I have treated those last two mentioned documents with some caution.

45. Ultimately, I am (unless otherwise indicated) satisfied on the balance of probabilities of the following facts.

46. You are now 55 years of age.

47. Your early home life was marked by significant domestic violence. That violence was compounded by a serious sexual assault upon you when you were in a Juvenile Justice centre.

48. Your upbringing was, therefore, dysfunctional, thereby reducing your moral culpability in the manner directed by the High Court in Bugmy v R (2013) 249 CLR 571. In this respect, I reject the Crown’s submissions.

49. You were expelled from school in Year 8 and have had no further formal education.

50. You commenced employment when you were 18 years old and appear to have been in constant employment until you were 23 years old when you were involved in a serious motor vehicle accident. You are still suffering from some of the physical consequences of that accident.

51. After the motor vehicle accident, you were unemployed for a number of years. However, for approximately 9 years, until the COVID-19 pandemic lockdowns, you ran what is described as “dog couriering business” – but the “breeding” aspect of that business continued during those lockdowns.

52. You have long-term issues with alcohol and prohibited drugs.

53. You commenced abusing alcohol when you were 15 years old; however, with the assistance of a rehabilitation centre, you ceased using alcohol 11 years ago.

54. You started using cannabis also at age 15 years and that has been a daily problem for you ever since.

55. There was a period when you were between 19 and 29 years of age when you were using amphetamines.

56. At the time of your arrest, you were abusing cocaine, cannabis and MDMA.

57. Your personal abuse of drugs is likely to be causally connected with the (so far) untreated consequences of your dysfunctional upbringing. But that does not explain your possession of so much of the drugs which were found in your possession and which were not for your personal use.

58. Unlike your problem with alcohol, there is no evidence that, up until now, you have sought professional assistance in relation to your illicit drug use – and whatever may be underpinning it. However, I have noted and accept the assertion in your letter of apology, which is part of Exhibit 1, that you have not used illicit drugs since you have been taken into custody. In this context I note an absence of disciplinary action in the Corrective Service Records.

59. There are references in the psychological report to previous diagnoses of schizophrenia, bi-polar disorder and anxiety disorder. The psychologist came to his own conclusion and opinions in relation to the second and third diagnoses. As to the condition of schizophrenia, there is no formal medico-legal report in evidence addressing whether you suffer from that condition. Within Exhibit 2, however, there are two reports which make passing reference to you having a history of schizophrenia. The first report is from Dr Mackay (a head and neck surgeon) to your general practitioner (Dr Islam) dated 8 August 2022. The second is a report from Dr Cox (another head and neck surgeon) to Dr Islam dated 15 September 2022. Neither of those specialists, however, purports to diagnose you with schizophrenia.

60. In the result, I am not satisfied, on the balance of probabilities, that you do suffer from schizophrenia. Indeed, I note that, in the psychologist’s report, under the heading “Treatment”, he wrote:

“…

• Mr Kaplantzi to (sic) referred to a Psychiatrist to determine if he is also suffering from Schizophrenia.    

…”

61. I am satisfied however on the balance of probabilities that you do suffer from bi-polar disorder and anxiety – and that those conditions reduce your moral culpability. For that reason, general deterrence is somewhat reduced. But specific deterrence is fully engaged.

62. You have a lengthy criminal history – most of which is relatively minor in nature. However, in 2002, you were sentenced for aggravated dangerous driving occasioning death whilst under the influence of drugs for which you served a not insignificant period of imprisonment. You are, therefore, not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender. However, your criminal history is not an additional aggravating factor of your offending.

63. You have written a letter of apology, as I have already noted. You did not give sworn evidence as to the truth of the contents of that document and, as I have already noted, I approach it with caution including, but not limited to, your expressions of remorse. I have, however, noted from the letter that you have stated that you are a head sweeper in the gaol in which you are currently being detained, which indicates a significant level of trust and confidence being placed in you by the experienced officers.

64. On balance, I regard your prospects of rehabilitation as being guarded.

65. Parity is a significant sentencing consideration.

66. Your son was sentenced by her Honour, Judge Beckett, on 21 January 2022 for three principal offences. Of those three principal offences, your son was to be sentenced for the same counts 2 and 3 as for you. However, the third principal offence (in his case sequence 9) is not the same as count 4 for you; and a number of matters on a Form 1 (to be taken into account with sequence 2) were also taken into account by her Honour.

67. Insofar as her Honour’s remarks on sentence were concerned, I note that her Honour also took into account Bugmy principles in relation to your son. I also note that certain exculpatory evidence concerning the circumstances in which those drugs were supplied to you was not accepted by her Honour.

68. Her Honour had regard to the fact that your son was a “relatively young man”.

69. Your son received a 25 per cent for early pleas, whereas you will receive a discount of 10 per cent for late pleas.

70. Whereas you have a lengthy criminal history, your son had no prior convictions.

71. Your son’s criminality, insofar as sequences 2 and 3 are concerned, were, on her Honour’s findings - and in the agreed statements of facts before me - slightly more serious than your offending.

72. Her Honour found that your son had “good prospects of rehabilitation"; whereas I have concluded that your prospects are guarded.

73. In relation to sequence 2, after the 25 per cent discount and by having regard to the matters on the Form 1, an indicative sentence of 2 years 5 months imprisonment was determined by her Honour.

74. In relation to sequence 3, after the discount of 25 per cent, an indicative sentence of 13 months imprisonment was determined by her Honour.

75. No sentence other than full-time imprisonment is appropriate for any of the three principal offences for which you are to be sentenced today.

76. I also intend imposing an aggregate sentence upon you. It is therefore necessary for me to state the indicative sentences underpinning the ultimate aggregate sentence – which will be backdated by 139 days to take into account your pre-sentence custody (I note that at the sentence hearing on 22 February 2023 it was agreed between you and the Crown that the then relevant backdating would have been 116 days; the additional 23 days takes into account the time which has elapsed since that hearing).

77. In relation to count 2, except for the discount of 10 per cent, the indicative sentence would have been imprisonment for 3 years 6 months. After the discount, the indicative sentence is imprisonment for 3 years 1 month. The indicative non-parole period is 2 years.

78. In relation to count 3, except for the discount of 10 per cent, the indicative sentence would have been imprisonment for 2 years. After the discount, the indicative sentence is imprisonment for 1 year 9 months.

79. In relation to count 4, except for the discount of 10 per cent, the indicative sentence would have been imprisonment for 2 years; and, after the discount, the indicative sentence is imprisonment for 1 year 9 months.

80. Manuell Kaplantzi, for the three offences of supplying a prohibited drug being counts 2, 3 and 4, I sentence you to an aggregate term of imprisonment of 4 years 6 months.

81. Because of your various and not insignificant physical disabilities which will make imprisonment more difficult for you, and notwithstanding your age and that this is not your first time in custody, I make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period.

82. I fix a non-parole period of 3 years to date from 29 October 2022 and which will expire on 28 October 2025.

83. I fix a balance of 1 year 6 months to date from 29 October 2025 and which will expire on 28 April 2027.

Decision last updated: 17 March 2023