R v Losco

[2019] NSWDC 837

District Court

New South Wales

Medium Neutral Citation:	R v Losco [2019] NSWDC 837
Hearing dates:	13 December 2019
Decision date:	13 December 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of eight years and three months. Non‑parole period of five years and five months.
Catchwords:	SENTENCING – Supply drugs –principal directly supplying to individual users – rolled up quantities of drugs – multiple offences - supply to individual users. SENTENCING - Relevant factors on sentence – extensive record – just released from custody – various drugs and cash in possession – role – used another – standard non parole period – long standing behavioural problems – need for significant assistance on release to parole – structure of sentence – need to maintain offender’s motivation.
Legislation Cited:	Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985
Cases Cited:	Markarian v The Queen (2005) 228 CLR 357
Category:	Sentence
Parties:	Roberto Losco (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defender (for the offender)   Solicitors: Legal Aid NSW (for the offender) Ms A Bird (for the Director of Public Prosecutions
File Number(s):	2019/00008955

SENTENCE - EX TEMPORE REVISED

Introduction

1. In October 2018, Wollongong Drug Unit investigators set up a strike force. One of the targets of that strike force was Roberto Losco.  Losco had been released from gaol on 29 July 2018. His criminal record indicates fairly regular offending since his mid to late 20s. Very shortly after his release from gaol he set up and engaged in a drug supply operation of some breadth.

2. Losco was sourcing methylamphetamine from an up‑line supplier in Sydney. He had multiple mobile phones, which he utilised only for short periods. He was in direct contact with a number of regular customers. He also employed his co‑offender, Peter Ryan, to act as his driver. Losco he paid Ryan and supplied him with drugs. Ryan would take Losco to Sydney for drug pickups and make deliveries on his behalf. Ryan would also bring customers to Losco. Ryan is also for sentence today.

Agreed facts

3. There was a considerable body of telephone intercept and surveillance material obtained between December 2018 and the date of arrest, 9 January 2019. It is set out in more detail in the agreed facts but in summary it demonstrates what Losco and Ryan did including their travels to Sydney.

4. On 9 January 2019 they went to meet someone in Sydney to obtain methylamphetamine. That man is to be sentenced in Penrith next year. Later that day, Losco and Ryan together with a woman were arrested in Ryan’s car as they left the Headlands Hotel in Austinmer. The car was searched, as was the hotel room. Methylamphetamine was found in both locations: 91.44 grams was found in the car. That amount relates directly to Ryan’s matters for sentence today.

5. A search warrant was executed at Losco’s residence. Methylamphetamine and other items were found. The total amount of methylamphetamine found at both locations was 659.25 grams; a large commercial quantity of methylamphetamine is 500 grams. Also located in the hotel room and home were quantities of 3,4-Methylenedioxymethylamphetamine (MDMA). The total amount of MDMA found, which relates to the count before the Court, was close to 34 grams. Other quantities of the drug were found and will be dealt with on Form 1s.

6. There is a third supply prohibited drug count for sentence. It relates to 0.95 grams of Buprenorphine. Nineteen strips of that drug had drug had been obtained for on‑supply to a prisoner in a New South Wales Correction Centre. I will not name the intended recipient as he has a trial listed in Wollongong Court in 2020 and publication of his name may prejudice his trial. While only a small amount of the drug, the nature of the intended supply and where the drugs were intended to be supplied to, justifies a separate count. There is related Burenorphine supply matter on a Form 1. Although it involves a greater quantity of the drug it is accepted that the offence for sentence is the more serious.

7. It is late on a Friday. The agreed facts, which I have had the opportunity of reading overnight, are detailed and comprehensive and do not need to bet set out in full in this judgment. All of the material so far as the third charge indicates, is that there was a relatively sophisticated plan to introduce the drugs into a Correctional Centre.

8. So far as the other matters are concerned the agreed facts detail what Mr Fraser, Public Defender, who appears for the Mr Losco, submits is a slightly unusual case for a supply of a large commercial quantity of a drug. This is not a case where he sought to minimise the risk to himself by using others to distribute the drugs for him; again with the exception of Ryan.

9. Losco did not appear to place any barrier between himself and the ultimate users of his product. Rather, he was obtaining drugs in bulk and then selling them in small quantities to quite a number of regular users. Such is the quantity of the drugs that he had in his possession that that would have meant quite a considerable distribution within the community, but apart from matters involving Mr Ryan, he was the principal and main distributor.

10. Mr Fraser’s submission cuts both ways. Losco was not in the same class as a principal who take the profit without the risk; he assumed the risk but he was directly responsible for almost all the distribution to users in the community.

Related matters

11. A number of other drugs and items were seized following his arrest. They are on a s166 Criminal Procedure Act 1986 certificate. Guilt has been admitted and sentences will be indicated as part of an aggregate sentence. Those matters indicate that Losco was dealing for personal profit but he was also using his own products. He was prepared to provide whatever was needed to drug users in the community in order to make a profit. He says that he was motivated to pay off a large debt. He says he was also motivated because of his own drug use. I am prepared to accept that, not that it mitigates his crimes. It is also clear from all the material before me that he was without moral compass and acted without thought of the consequences. He was seeking to profit from the drug use of others and gain the substantial profits, the material profits, that those who supply drugs have come to expect.

Seriousness of offending

12. Objectively Losco was the principal in his own supply operation. He was buying in bulk and supplying himself. He was supplying, and using Ryan to supply others. He used a hotel room; understandably given he was living with his pro‑social sister and deceiving her as to his drug use. He was the regular supplier of small amounts and was in possession of drugs for supply and money the product of his supply operation. He had a store of MDMA available for retail distribution. He had just purchased his next supply of methylamphetamine.

13. Losco was still engaged with the people he had met in gaol and was proposing to engage in supplying drugs within the gaol environment, a particularly serious crime in itself. He was after easy money and he wanted to establish himself without the need for hard work. If ever there was a definition of greed it is that. The fact that he was not as greedy as some other drug suppliers I have dealt with is the only thing that could be said to his advantage.

Maximum Penalties

14. A s 25(2) Drug Misuse and Trafficking Act supply of a large commercial quantity offence carries a maximum penalty of life imprisonment. There is a standard non‑parole period of 15 years. One of the ways in which drug offences are structured is the quantity of drugs. The rolled up quantity here was very close to the bottom level cut‑off for a large commercial supply offence. The other end of the scale is unlimited. People sentenced to life imprisonment are generally involved with significantly greater sums than this offender.

15. Losco is also to be sentenced for two s 25(1) Drug Misuse and Trafficking Act 1985 offences relating to the supply of the MDMA and the Buprenorphine. There are also the six matters on the s 166 certificate to be dealt with. Each if dealt with in the Local Court, in all the circumstances, would have justified a short custodial sentence. Each requires a short sentence be indicated.

16. I have to pay particular attention to the maximum penalties and the standard non‑parole periods. They are sentencing measures that have to be balanced with all other relevant matters. There needs to be a comparison between this case and other cases but I do not start simply with the maximum and make proportional deductions from it, particularly in cases where as here there are significant head sentences potentially available. The standard non‑parole period is one matter I take into account but I do not compare this offence with some abstract one.

Other related matters

17. As Mr Fraser points out there are some unusual features of this case. One does not simply go to the quantity and compare like quantities with other like quantities. I have to give content to the standard non‑parole period but there are reasons here, in the subjective case, the plea of guilty and the quantity of drugs, for a substantial variation from it.

18. Each of the three counts that were committed for sentence has a Form 1 attached to it. Those matters have to be taken into account but I do so as directed by the High Court in Markarian v The Queen (2005) 228 CLR 357 as part of my synthesis of all relevant factors. I do not sentence for those Form I matters but they do mean that greater weight has to be given to personal deterrence and retribution.

19. Losco pleaded guilty at the earliest opportunity. I will reduce each indicated sentence by 25% to reflect his early plea. I will take care when I accumulate the various sentences that that benefit is not eroded.

20. Losco has a criminal record. It is an extensive criminal record, and he has offended against the community on many occasions. He is not to be punished because of that record but it does mean that greater weight has to be given to community protection when I come to formulate the appropriate sentence.

Subjective matters

21. Losco is now old enough to have made a number of important choices in his life. When he was released to parole, he made promises to his family, the State Parole Authority and himself not to offend but he has not kept those promises. He breached his parole by re- offending very shortly after being released. I cannot find that he left gaol intending to offend but the short period of time between when he left gaol and when he commenced reoffending indicates that he had failed to learn the lessons meant to be taught by a custodial sentence. Again, that is not unusual. All of the research that I am aware of shows that harsher and longer punishments often fail to deter offenders, particularly where they have a longstanding problem with drug addiction. That longstanding problem is reflected in the material before me.

22. Losco came from a solid but conservative home. His childhood is described in the report from the psychosocial report of Ms Jelen as difficult: exhibit 1. Both his mother and father were not physically well. As a young man he experimented, and used, on a regular basis illicit drugs. He had problems with school, particularly with the English language aspect of it. He left school at Year 10. That said, he was a hard working young man and he was able to establish his own business and form two important relationships. It is not clear what business problems occurred but it is not unsurprising that problems did arise because drug use and running a successful business are incompatible; his drug use won out, his relationships broke down and he ended up in gaol.

23. It is clear from all the material, including the telephone intercepts that are set out in the agreed facts, that he has failed to break associations with those in gaol when he was released, both on this occasion and previously. And, once he started using illicit drugs in the community, it was very easy for him to make what he calls a “stupid call” and commence the supply and distribution of drugs in the community.

24. His supply operation was not elaborate. It was obviously easily detected by police. As a regular drug user he was not focusing on right or wrong or even self protection. He had lost the capacity for rational and moral decision making.

25. The report of Ms Jelen indicates that with the help of the EQUIPS programs he now has some insight and motivation. His sister is his one pro‑social support in the community and she is still here for him. He has family he would like to re‑establish relationship with.

26. He will need to prove himself in the community. To date he has failed, and failed dismally and criminally, in those efforts. Ms Jelen indicates that he will need psycho‑educative drug programs. What that means in laymen’s terms is psychological help, probably Cognitive Behaviour Therapy and help getting it through to him that he needs help. He has some insight into his problem and now appears remorseful but it is hard to gauge whether it is regret for the position he has put himself rather than remorse for those to whom he supplied in the community.

27. Each count involves discrete acts of criminality, however, each count related to the business he was running and had many common features.

28. The purposes of sentencing apply to every matter I must sentence him for. Those purposes overlap. The sentences for the three principal offences should be partly cumulative but there can be substantial concurrence. The aggregation of all the sentences must be a just and appropriate measure of his total criminality. The severity of the sentence should not operate to destroy his prospects of working towards rehabilitation and reform but he will have to spend a substantial period in custody before he has that opportunity.

29. His progress to date is encouraging. There is one discipline matter on his record but given his prior history that one matter pales into insignificance as against the certificates that have been provided.

30. He went into custody on 9 January 2019. He is serving balance of parole until 27 May 2020. His fresh offending requires that I increase the otherwise appropriate sentence to reflect that it was in breach of parole. I have to be careful not to double punish. There should, however, be some discrete, punishment for his failures on parole that are not related to this offending. I propose to commence the sentence after a few months have been served.

Special circumstances

31. I will make a finding of special circumstances. He has some motivation to change his ways. It is in his interests that he engages in rehabilitation programs while he is in custody. It is in his interests that he engages in a treatment plan in custody and on release. He, as Ms Jelen indicates, will need to participate to all programs available in the prison system. He will have to wake up to himself.

32. The programs are designed for people such as himself and designed to address addictive behaviour. If he does not address those problems he will not get parole. When he is on parole he will be required to be supervised for as long as possible because for quite a number of years he has been unable to live or adjust to normal community life and he will need help in doing so. I also need to take into account the effective accumulation of these sentences. That said the aggregate sentence and its minimum term must also reflect all the relevant purpose of sentence including the seriousness of the crimes he committed.

Submissions

33. I received comprehensive submissions from Mr Fraser, Public Defender who appears for Losco, and Ms Bird, Solicitor for the Director of Public Prosecutions. I hope this judgment has done justice to them. I have sought to take into account all of the matters that they raised with me in their written and oral submissions.

Synthesis

34. The offender’s used the profits from his drug supply to purchase more drugs, which he was to use to supply to others in the community. He chose to fund his own drug use by supplying to others. He also sought to make a profit. He sought to make money, much more money than he could have obtained by hard work in the community. His own drug usage and his time in gaol did not leave him with a clear head to think about the consequences for himself or for others. He was operating a business in a clandestine and apparently efficient manner.

35. He chose to operate, as his sister said, in a “different world” but it is not the world that anyone in the community should think is either attractive or one that is without risk. One risk is that you will spend significant portions of your life in custody. Sending that message is one reason given for the significant sentences that must be imposed for matters such as this. The retail distribution of drugs in our community, and here a number of different drugs, and the attempt to distribute drugs in a custodial setting, require a considerable custodial penalty.

36. There is always community interest in appropriate and just punishment in matters such as this. The market for illicit drugs provides an incentive, an economic incentive for others to engage in behaviour such as Losco’s. Everyone in the community has to understand the consequences, for that reason the gaol door must close, and close for a considerable amount of time.

ORDERS

37. I have to indicate sentences for each of the nine matters. Each of the indicated sentences reflect a reduction of 25%.

38. For the large commercial supply I indicate a sentence of six years and nine months with a non‑parole period of four years.

39. For the supply of MDMA I indicate a sentence of three years.

40. For the supply of Buprenorphine I indicate a sentence of one year and ten months.

41. For the s 166 matters:

• for possess cannabis a sentence of one month;

• for possess MDMA a sentence of one month;

• for supplying a quantity of Gamma butyrolactone I indicate a sentence of nine months;

• for the three prohibited weapons matters I indicate individually sentences of nine months.

42. There will be a total aggregate sentence in this matter of eight years and three months. It will commence on 9 April. There will be a non‑parole period of five years and five months. You will be eligible for release to parole on 8 September 2024. There will be a parole period of two years and ten months reflecting the finding of special circumstances. The sentence will expire on 8 July 2027. Total sentence starting on 9 April 2019 expiring on 8 July 27.

43. Liberty to restore if there is an issue with regard to any freezing orders.

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Decision last updated: 03 March 2020