R v Milan Banic

[2018] NSWDC 55

District Court

New South Wales

Medium Neutral Citation:	R v Milan Banic [2018] NSWDC 55
Hearing dates:	16 March 2018
Date of orders:	21 March 2018
Decision date:	21 March 2018
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1 For each offence the offender is convicted. 2 I impose an aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 3 years. The sentence is to date from 15 November 2016. The non-parole period will expire on 14 November 2019 and the head sentence will expire on 14 May 2021. 3 The offender will be eligible to be released on parole on 14 November 2019. 4 The offender is an eligible convicted offender within the meaning of section 5A Drug Court Act 1998. I direct that he be referred to the Drug Court to determine if he should be the subject of a compulsory drug treatment order.
Catchwords:	CRIMINAL LAW – offence - plea of guilty – supply prohibited drug on ongoing basis – knowingly deal with proceeds of crime – deal with identity information SENTENCE – mitigating factors – aggravating factors – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty – low range of objective seriousness SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – background of offender – drug issues – appropriate matter for referral to Drug Court – prospects of rehabilitation
Legislation Cited:	Crimes Act 1900 ss.192J, 193B Crimes (Sentencing Procedure) Act 1999 ss. 5, 21A(2)(n), 21A(3)(k), 21A(3)(i), 21A(3)(h), 22, 53A Drug Court Act 1998 s.5A Drug Misuse and Trafficking Act 1985 s.25A
Cases Cited:	R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Regina (Crown) Milan Banic (Offender)
Representation:	Counsel: Mr L Brasch (Offender)   Solicitors: C Hyland, Solicitor for Public Prosecutions (Crown) Bannisters lawyers (Offender)
File Number(s):	2016/00343803; 2017/00137588
Publication restriction:	None

sentence

1. Milan Banic (the offender) appears for sentence after he pleaded guilty in the Local Court to the following charges:

1. one count of Supply prohibited drug on an ongoing basis contrary to section 25A Drug Misuse and Trafficking Act 1985. The maximum penalty for the offence is 20 years imprisonment and/or a fine of $385,000. The offender also asks the Court to take into account one count of supply prohibited drug being 13.59g of methylamphetamine and one count of goods in custody on a Form 1 when dealing with this offence.

2. one count of Knowingly deal with proceeds of crime contrary to section 193B Crimes Act 1900. The maximum penalty for the offence is 15 years imprisonment. The offender also asks the Court to take into account one count of supply prohibited drug being 13.99g of heroin and one count of possess a prohibited weapon being a flick knife on a Form 1 when dealing with this offence.

3. eight counts of Deal with identity information contrary to section 192J Crimes Act 1900. The maximum penalty for each offence is 10 years imprisonment. The offender also asks the Court to take into account a further 5 counts of dealing with identification information on a Form 1 when dealing with Sequence 4 of these offences.

Facts

2. The parties presented 2 agreed statements of facts that can be summarised as follows.

Ongoing supply offence

3. In July 2016 Police commenced an investigation into the supply of prohibited drugs by the offender and his partner, Berbejirosa Beja. On 18 August 2016 Police obtained telephone intercept warrants for a mobile telephone service used by the offender. Between 18 August 2016 and 21 December 2016 there were hundreds of telephone calls and text messages intercepted. Police reviewed some of these and isolated information relating to 4 occasions of supply, but there were other similar communications in that period.

Supply 1

4. On 24 August 2016 a customer enquired with the offender as to the purchase of a ‘half ball’ of heroin or 1.75g. The offender replied with a price of $650. The customer met with the offender and was supplied 1.75g of heroin for $650.

Supply 2

5. On 9 September 2016 a customer enquired with the offender as to the price for an ‘eight ball’ or 3.5g of heroin. The offender stated in a telephone conversation that the price would be ’12’, or $1,200. On 12 September 2016 the customer requested a price for 2 ‘eight balls’ or 7g of methylamphetamine. The agreed price was $900 after some negotiation. The customer met with the offender and was supplied 7g of mehtylamphetamine for $900.

Supply 3

6. On 13 September 2016 a customer enquired with the offender as to the price for half an ounce of methylamphetamine. The agreed price was $1,800. The customer then asked for a price on an ounce and was quoted a price of $3,500. The customer met with the offender and was supplied a half ounce of methylamphetamine for $1,800.

Supply 4

7. On 15 September 2016 a customer enquired with the offender as to the purchase of a ‘half ball’ of heroin or 1.75g. The offender replied asking if the customer had the $650 to pay for the drugs. The customer replied that they had $550 and the offender agreed to supply 1.3g of heroin for that price. In later text messages the customer agreed to pay $650 for a half ball of heroin. The customer met with the offender and was supplied with 1.75g of heroin for $650.

Other offences

8. On 15 November 2016 Police executed a search warrant at the residence of the offender and Beja. Police seized 13.99g of heroin from a bedside table (Form 1 supply offence), 13.59g of methylamphetamine from various places in the bedroom (Form 1 supply offence), numerous clear resealable plastic bags and a number of drug ledgers from a safe.

9. Police also seized the sum of $9,000 in cash (proceeds of crime offence), a flick knife (Form 1) as well as property reasonably suspected as being stolen, including; mobile phones, laptop computers and drones (Form 1).

Deal with Identification Information offences

10. On 5 August 2016 Police obtained information from the Commonwealth Bank of Australia about significant fraud on its customers through a process known as Host Card Emulation (HCE) fraud. HCE is the process underlying the use of the ‘Tap and Go’ payment systems on mobile telephones.

11. Information as to the identification of a credit card is obtained and then the victims are contacted by offenders, posing as medical practitioners or staff, insurance companies, telecommunication companies and other legitimate businesses to obtain the necessary further information to verify the victim’s identity with the bank. Credit card information of the victim that is then installed onto a mobile device used by the perpetrators to purchase goods at various locations.

12. The extent of the fraud is estimated at more than $1.5 million since 1 May 2016 involving at least 40 victims, with a further 40 possible victims. The fraud has involved the purchase of over 400 mobile telephones, particularly Apple iPhones. During the investigation Police located over 27,000 forms of personal identification belonging to the victims and potential victims.

13. Police have identified the offender and a number of co-offenders in the criminal syndicate, including Shady Baydoun.

14. The offender has been linked to the following offences, ha involved the offender sending an image of documents or credit cards from his mobile telephone to the mobile telephone believe to be used by Baydoun.

15. At 10.35pm on 15 October 2016 the offender sent an image of a credit card ending in numbers 146. (Form 1).

16. At 4.44am on 16 October 2016 the offender sent an image of a credit card ending in numbers 303. (Form 1).

17. At 9.29am on 16 October 2016 the offender sent an image of a letter addressed to Mr Garth Coffey which included Mr Coffey’s address (Form 1).

18. At 10.04am on 16 October 2016 the offender sent an image of a letter addressed to Mr Tibor Bec, which included Mr Bec’s address, the number of his Commonwealth Bank credit card and its expiry date.

19. At 3.07am on 17 October 2016 the offender sent an image of a letter addressed to Mr Mohit Kumar which included, Mr Kumar’s address, the number of his Commonwealth Bank/American Express credit card and its expiry date.

20. At 3.07am on 17 October 2016 the offender sent an image of a letter addressed to Mr David Andreallo which included, Mr Andreallo’s address, the number of his Bankwest debit card and its expiry date.

21. At 3.08am on 17 October 2016 the offender sent an image of a letter addressed to Ms Yan Tong, which included Ms Tong’s address, the number of her Commonwealth Bank credit card and its expiry date.

22. At 3.27pm on 18 October 2016 the offender sent an image of a letter addressed to Mr Colin Seibert which included Mr Seibert’s address, the number of his Commonwealth Bank debit card and its expiry date.

23. At 3.29pm on 18 October 2016 the offender sent an image of a letter addressed to Mr John Kaitinis which included Mr Kaitinis’ address, the number of his Commonwealth Bank debit card and its expiry date.

24. At about 8.57pm on 20 October 2016 the offender sent an image of a hand written note, which included the address, date of birth and drivers licence number of Ms Patricia Ikonomou. (Form 1).

25. At about 8.57pm on 20 October 2016 the offender sent an image of a hand written note, which included the address, date of birth and drivers licence number of Mr David Warner (Form 1).

26. At 3.29pm on 18 October 2016 the offender sent an image of a letter addressed to Mr Anthony Ramsey, which included Ms Ransey’s address, the number of his St George Bank debit card and its expiry date.

27. At 6.21pm on 24 October 2016 the offender sent an image of a letter addressed to Ms Minying Xie, which included Ms Xie’s address, the number of her HSBC credit card and its expiry date.

28. On 8 May 2017 the offender was charged with the identification offences. He declined to be interviewed.

Pre-sentence report   

29. The Court received a PSR that can be summarised as follows.

30. The offender was first supervised in 2009 on a good behaviour bond for dishonesty offences and later on parole in 2011. He was compliant with supervision and engaged in drug and alcohol counselling.

31. The offender was born in the former Yugoslavia and has traumatic childhood memories of war in his early years. At age 9 he came to Australia with his mother and siblings and reunited with his father who had already re-located to seek employment. The offender lived with his family in Melbourne for 2 years before coming and settling in Sydney.

32. The offender’s mother died in 2004 and his partner committed suicide in 2014. Both of these deaths had a significant adverse effect on his mental state.

33. He has been housed at the John Morony Correctional Centre and has incurred no misconduct charges. He has not been given the opportunity to participate in courses whilst he has been on remand.

34. After he completed school the offender completed a number of tertiary qualifications at TAFE and worked at a large computer company. He resigned from this position after 4 years as a result of his increasing illicit drug use. Since then he has been employed sporadically as a labourer, a telemarketer and as a storeman. He has remained unemployed from about 2014 since his partner committed suicide. He lived off the supply of drugs and was not on social security for 2 years prior to his arrest.

35. The offender first smoked cannabis at the age of 18. He first experimented with methylamphetamine in 2003, with his use of both cannabis and methylamphetamine increasing after the death of his mother. He smoked ice off and on after that, with his use increasing after the suicide of his partner. He was smoking $600 worth of ice and $400 worth of heroin per day at the time of his arrest.

36. The offender linked his offending history to the need to fund his use of illicit substances.

37. The offender agreed with the facts and accepted that he committed the offences of his own volition and without regard for the victims. He expressed remorse for his actions.

38. The offender was assessed as a medium risk of re-offending and suitable for supervision. He expressed a desire to seek treatment for his mental health and his substance dependency.

The offender’s case on sentence

39. The offender tendered a report of Ann Marie De Santa Brigida, psychologist dated 8 March 2018. The psychologist saw the offender on one occasion for the purpose of preparing the report. The psychologist’s report can be summarised as follows. I will not repeat matters of history that have been set out in the PSR.

40. The offender’s father is now aged 67. He worked in the mining industry until he had an accident 12 years ago and he has not worked since. His mother died from an aneurysm and cardiac arrest in 2004 and he was deeply distressed by her death. He has 2 siblings and he is close to his family. They have been visiting him in custody.

41. In 2014 he was in the process of ending a relationship with his partner when she committed suicide. He did not see her body but she sent him a photo with something around her neck.

42. He was a good student and attended TAFE after leaving school. He worked for an IT firm for 12 months and then for Acer Computers between 2004 and 2008, receiving a number of promotions in that time. He left that employment as a result of drug use and a gambling problem that caused a decline in his work performance.

43. He was incarcerated and on his release worked as a packer. He went to gaol again and on his release worked as a formworker for 5 months. He then worked emptying containers and then as a telemarketer. He left as a result of his partner’s suicide and has not returned to work.

44. At age 24 he first experimented with smoking ice. His use escalated using 5 points every 3 or 4 days until age 27 when he ceased work with Acer. His use of ice then escalated further to 5 points per day until he was incarcerated in 2009. On his release he quickly relapsed and he was incarcerated in 2010.

45. He remained abstinent from drugs from his release from custody in 2011 until his partner’s suicide in 2014. After that he first tried heroin and his use of heroin escalated to the point where he would smoke 1g per day. His ice used progressed to smoking 1g per day also.

46. In 2007 he began to gamble on poker machines on a daily basis, spending all of his spare money. This pattern continued until his arrest.

47. The psychologist administered psychometric testing. She opined as a result of her interview with the offender and the test results that he meets the criteria for a diagnosis of posttraumatic stress disorder (PTSD) based on the trauma suffered in his childhood, the death of his mother in 2004 and his partner in 2014. He also meets the criteria for substance use disorder in relation to both ice and heroin.

48. The offender also tendered a letter of apology and letters from his father, his sister and a long term friend. In his letter to the Court the offender expressed remorse. He has had some bad experiences in this period of custody and has remained abstinent from drugs. He described his drug use as a way of dealing with ‘emotional pain’.

49. The offender’s father confirmed the long history of decline in his son. The offender has expressed remorse to his father. His father is planning a new start for him in Serbia when he is released from custody, where he has extended family support.

50. The offender’s sister set out the emotional impact the death of their mother had on the offender. The offender has also expressed remorse to her.

51. Mr Kesic, a family friend described a long and normal relationship between them. They bonded over computers and were friends who socialised together after work and in the Serbian community. Mr Kesic described the offender as generous, family oriented and community minded. That changed when the offender’s mother died. He shut everyone out of his life and mixed with drug users. Mr Kesic is prepared to assist the offender to reintegrate into the community.

Consideration

Objective seriousness of the offences

52. An offence under section 25A is generally considered to be more serious than an offence of supply simpliciter under section 25. An offender charged with a section 25A offence cannot rely on an argument that the act of supply was an isolated event. The maximum penalty provided for is a clear legislative intention to discourage the ongoing trade in drugs, which depends entirely upon the availability of a person such as the offender. The offender supplied 3.5g of heroin and 22g of methylamphetamine in the 4 particularised supplies, but this is representative of the offender’s operation. There was some planning and use of a mobile phone to make arrangements for the supply of the drugs. The offender had a high drug usage at the time. He can be regarded as a user dealer, but this case is not at the low end of that category. I have taken into account the matters on the Form 1. The offence is in the low range of objective seriousness.

53. The proceeds of crime offence relates to his possession of the $9,000 in cash that he knowingly received from the sale of drugs. The amount of cash involved is not significant. I have taken into account the matters on the Form 1 of which the drug charge is more significant than the possess prohibited weapon. I have had regard to the maximum penalty. The offence is in the low range of objective seriousness.

54. The dealing with identification information charges reveal a sophisticated and organised criminal operation. The only evidence against the offender was that he was providing that operation with primary identification documents and credit card numbers. There is no evidence that he was involved in extracting identity information from the victims over the telephone or that he used the mobile devices to obtain goods. Nevertheless, the role played by the offender was crucial to the success of the enterprise. I would infer that the offences were committed for financial gain. I have taken into account the matters on the Form 1 when deciding on the penalty for sequence 4 and the maximum penalty for each offence. I note that the dealing with identification documents could have been dealt with in the Local Court. The offences are each in the low range of objective seriousness.

Deterrence

55. General deterrence is of significance in sentencing offenders for drug supply, money laundering and identity theft offences. Persons considering committing these types of offences should be aware by references to the penalties given for them that they will meet with significant punishment if they choose to participate in such offences.

56. General deterrence may be afforded less weight when the offender suffers from a mental condition. The extent of the reduction depends on the circumstances of the case. It is clear that the offender has suffered the symptoms of PTSD in 2004 and 2014 following the death of his mother and partner, respectively. Both these events resulted in escalating and uncontrolled drug use and gambling that led to drug and dishonesty offences to fund his drug use. Addiction is not normally an excuse but can be an explanation for a person’s behaviour. The offender had responded well to drug intervention and supervision and only relapsed after a further tragic event. There is some casual connection between the offender’s mental condition and his offending conduct. His moral culpability is slightly reduced.

57. There is a need for specific deterrence. The offender has a history of drug use that has led to his offending. The offender needs to understand by reason of the sentence imposed that he will meet with significant punishment if he continues to offend.

Aggravating factors

58. The offender has a record of previous convictions, but in my view they are insufficient to amount an aggravating factor for the offences.

59. The dealing with identification documents offences were part of a planned or organised criminal activity: section 21A(2)(n) Crimes (Sentencing Procedure) Act 1999.

Mitigating factors

60. The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has had some success with drug rehabilitation in the past and by remaining abstinent from drugs since November 2016, whilst he has been in custody. The offender has insight into his addictions and wants to pursue treatment. The offender has good prospects of rehabilitation if he can re-engage with treatment for his addictions and commence treatment for his mental condition.

61. The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has in his letter to the Court and in what he has said to the author of the PSR, the psychologist and his family, accepted responsibility for his actions and I am satisfied on the balance of probabilities that he has expressed genuine contrition and remorse.

62. The appellant entered a plea of in the Local Court: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The appellant is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount in this case is 25%.

No alternative to imprisonment

63. I have considered section 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

Sentence

64. For each offence the offender is convicted.

65. This is an appropriate matter in which to impose an aggregate sentence pursuant to section 53A Crimes (Sentencing Procedure) Act 1999.

66. The sentences, after allowing for the discount for the plea of guilty, that I would have imposed if separate sentences were imposed are:

Supply on an ongoing basis   
(taking into account the matters on the Form 1)

30 months

Knowingly deal with the proceeds of crime

(taking into account the matters on the Form 1)

12 months

Deal with identification documents Sequence 4          

(taking into account the matters on the Form 1)

6 months

Deal with identification documents Sequence 5

6 months

Deal with identification documents Sequence 6

6 months

Deal with identification documents Sequence 7

6 months

Deal with identification documents Sequence 8

6 months

Deal with identification documents Sequence 9

6 months

Deal with identification documents Sequence 12

6 months

Deal with identification documents Sequence 13

6 months

67. I find that there are special circumstances. The offender will benefit from a longer period of supervision on parole to assist him with drug and alcohol rehabilitation and to obtain treatment for his mental condition.

68. I impose an aggregate term of imprisonment of 4 years and 6 months to date with a non-parole period of 3 years. The sentence is to date from 15 November 2016. The non-parole period will expire on 14 November 2019 and the head sentence will expire on 14 May 2021.

69. The offender will be eligible to be released on parole on 14 November 2019.

Referral to the Drug Court

70. The offender is an eligible convicted offender within the meaning of section 5A Drug Court Act 1998. I direct that he be referred to the Drug Court to determine if he should be the subject of a compulsory drug treatment order.

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Decision last updated: 21 March 2018