R v Paul Xiradis

[2018] NSWDC 423

District Court

New South Wales

Medium Neutral Citation:	R v Paul Xiradis [2018] NSWDC 423
Hearing dates:	04 May 2018
Date of orders:	04 May 2018
Decision date:	04 May 2018
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	1 year and 3 months suspended sentence pursuant to s 12 of Crimes (Sentencing Procedure) Act 1999
Catchwords:	CRIME – SENTENCE – Supply of 5.23 grams of cocaine – Young man of prior good character – Offence out of character – Excellent prospects of rehabilitation – Offender in full-time employment in a respectable job
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	Regina (Crown) Paul Xiradis (Offender)
Representation:	Counsel: Mr N Angelovski (Crown) Mr W Terracini SC with Ms C Wasley (Offender)   Solicitors: ODPP (Crown) Marsdens Law Group (Offender)
File Number(s):	2017/34727
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Paul Xiradis stands for sentence as a consequence of pleading guilty to a charge that on 2 February 2017 at Surry Hills in this State he did supply a prohibited drug, namely cocaine. The amount of cocaine supplied was 5.23 grams. The indictable quantity for supplying cocaine is 5 grams, so that the amount supplied by the offender was slightly greater than the indictable amount. The amount actually supplied should be contrasted with the commercial quantity, which is 250 grams, that is, it is a little over one fiftieth of the commercial quantity. The purity of the drug supplied has not been tested.

2. The facts are fairly straightforward. The offender was driving a silver BMW on Crown Street, Surry Hills. It was seen to stop in front of the Clock Hotel. A male passenger entered the vehicle. The vehicle was driven off and then returned to Crown Street. Police, who were observing the vehicle, formed the view that the driving might be drug-related. Plain clothes police approached the driver’s window and, after identifying themselves, spoke with the offender. The police also spoke to the offender’s passenger, Dean Mrakas.

3. The police advised the offender of their intention to search both him and his vehicle. Prior to searching the vehicle the offender told the police that they would find about nine or 10 bags of cocaine inside the car. The offender was arrested and formally cautioned. He participated in a roadside electronic record of interview and made several admissions to having cocaine in the driver’s side door compartment. He also told the police that he had cash inside the driver’s side door compartment. Police searched the vehicle and located $1,550 in the driver’s side door. There were thirty-one $50 notes. The offender was asked how much money was in his side door and he said he thought he had about $600. The police also found nine bags of cocaine in the driver’s side door compartment.

4. The offender and Mrakas were escorted to the Surry Hills charge room and they were introduced to the custody manage. Mrakas was searched and found on his person were two resealable plastic bags containing cocaine. Those bags of cocaine had been supplied to Mrakas by the present offender. Those two bags of cocaine weighed 1.5 grams.

5. The offender then participated in an electronic recorded interview. He confirmed that it had been his intention to collect the passenger, drive the passenger around the block, and complete a drug transaction whilst doing that. The offender told the police that Mrakas was a purchaser from him and that he desired to obtain two bags of cocaine for the total price of $400. The offender told police that Mrakas was not his first purchaser that evening and that there had been either two or three earlier transactions on that evening.

6. The offender asks me to take into account on a Form 1 the offence of supplying 1.5 grams of cocaine to Mrakas and dealing with the proceeds of crime, namely $1,550 in cash. The Crown seeks, and the offender does not oppose, a forfeiture of that amount of cash to the Crown.

7. The offender had only prior dealing with police. On 8 March 2014 he was detected to possess a prohibited drug. For that offence he appeared at the Waverly Local Court on 7 May 2014, and was dealt with under s 10 of the Crimes (Sentencing Procedure) Act1999. He was required to enter into a bond to be of good behaviour for three months. There was no suggestion that he did not observe that bond. However, it is clear that in 2014 the offender was using a prohibited drug.

8. The circumstances in which the offender came to commit this offence are unusual. The offender had developed a gambling habit/problem/addiction. According to a history given by him to a psychologist, Mr Bradley Jones, he was gambling between $200 and $500 daily on poker machines. Because of that gambling addiction the offender’s father took control of his weekly wages and his savings or other sources of income. To maintain his gambling habit, and in order not to argue with his father, whom he was not prepared to ask for money to continue gambling, the offender approached a drug supplier, who offered to employ him to drive and deliver quantities of illegal drugs in return for which he would be paid cash. The offender intended to use that cash income to continue his gambling habit. According to the histories given by the offender this was the first occasion on which he undertook this line of “work”.

9. The following submission has been put to me by Mr Terracini on behalf of the offender:

“The offender’s mental conditions contributed to the commission of the offence in a material way so that his moral culpability should be moderated. Mr Jones opines at par 26-27 that although the offender’s mental condition did not impact upon his judgment, the offender engaged maladaptive behaviours of gambling and substance use to alleviate his depressed mood which led to his father taking over his finances, and the offender’s lack of finances was a catalyst to him [sic] engaging in the offending.”

The important thing to bear in mind that there is no suggestion about the offender’s diagnosed psychiatric or psychological problems impacted upon his decision making/his judgment. He chose to circumvent his father’s control of his income by taking up the “work” of selling prohibited drugs at street level in order to obtain money. The exercise was purely cynical. There are many other ways of earning money than turning to crime and there are crimes which do not have the impact on our community that selling illegal drugs has.

10. The provision of illegal drugs leads to addiction, leads to lives being ruined and to major distress for members of the drug addict’s family. Taking up the selling of drugs to earn money is a cynical exercise which ultimately can affect many members of our society to their great hurt and society’s great detriment.

11. Objectively the crime committed by the offender, albeit towards the bottom of the range of offences of supplying illicit drugs, calls for a custodial sentence. A summary of the opinion of Mr Bradley Jones is this:

“Mr Xiradis revealed he was raised in a supportive and loving home environment. His childhood and adolescence is unremarkable and he achieved expected developmental, educational and social outcomes. He felt a sense of non-inclusion within the family unit and feelings of inadequacy, however these appear to have little rational basis. He began working for himself at a young age and made success in this regard, however underlying feelings of inadequacy and depressed mood resulted in him [sic] engaging in gambling and substance abuse. These behaviours led to his father taking control of his finances and that subsequently led to him [sic] engaging in the offending behaviour. Results of assessment indicate Mr Xiradis experiences comorbid disorders in the areas of substance use, gambling and depression.”

Mr Jones diagnoses a gambling disorder and an amphetamine type substance use disorder as well as a persistent depressive disorder, otherwise known as dysthymia. The first two “diagnoses” are merely stating the obvious: that the offender had a gambling problem and that he also was using illicit drugs.

12. It would appear from a close reading of Mr Jones’s lengthy report that for some irrational reason the offender perceived that his parents favoured his elder brother, Nicholas, who is some four years older than the offender, and gave him greater love and support than they gave to the younger son. There is nothing to support that. It appears to be some misperception of reality by the offender. In any event, it caused the offender to suffer a depressive illness and when the offender finished school, he did what many people do, having obtained the age of 18, their majority, and their freedom from school discipline, he took up drinking alcohol, smoking cannabis and experimenting with cocaine. His use of alcohol and cannabis decreased but his use of cocaine increased such that by the age of 20, he was a regular user.

13. The offender is now 23 years old and was 22 at the time he committed these offences. Mr Jones first interviewed the offender on 22 February 2017, just over a fortnight after he committed these offences. On examination, Mr Jones noted that the offender was dysthymic, that his affect was flat and that at times became emotionally distressed during the assessment. Tests conducted by Mr Jones indicated that the offender was at low risk of reoffending, that the offender would benefit from supervision for the identified areas of finance and his emotional/psychological state. He recommended cognitive behaviour or therapy, abstinence from illicit drugs and urinalysis to confirm abstinence from illicit drugs. He also recommended drug relapse prevention counselling, gambling counselling and monitoring of the offender’s environment to ensure that he had support networks to limit his exposure to gambling and the chance to relapse into drug use.

14. Mr Jones re-examined the offender on 9 April 2018, that is about one month ago. The offender told Mr Jones that he had completed a gamblers treatment course at Sydney University and had begun regular psychological treatment with a psychologist at Kingsgrove in July 2017 and that he had been abstinent from illicit drugs for ten months and that in the meantime he had obtained, in essence, a promotion in his employment. Testing on that occasion indicated the offender had mild levels of anxiety and minimal levels of depression. In other words, there had been a decrease in his depressive illness but there was some persisting anxiety but that is completely understandable in anybody awaiting standing sentence for supplying illicit drugs, indeed, in anyone standing for sentence where a custodial sentence might be imposed.

15. A letter from Dr Christopher Hunt of the University of Sydney Gambling Treatment and Research Clinic confirms that the offender completed the gambling addiction course offered at the University. A letter from Dr Sam Daniels, a physician, indicates that he has continued the treatment of the offender for depression, anxiety and panic attacks since 15 January this year.

16. There are references from the offender’s uncle who has known him all his life, from, in essence, the chief executive of his employer who has known him since he was five years old and from the chief financial officer of a group of companies of which his employer is a member, all indicating that the offender is hardworking, well regarded, deeply remorseful for what he has done and extremely unlikely to reoffend. Everyone agrees that the offender made a serious error of judgment and that includes the offender himself, but, according to his employer, he remains a “respectful, trustworthy and diligent young man”. But for this foolish conduct on the evening of 2 February 2017, the offender would be otherwise seen as an upright member of our community.

17. Although a custodial sentence is called for, the Crown agrees that a fulltime custodial sentence need not be imposed. The offender has not been assessed for the imposition of an Intensive Corrections Order. However, he appears on my assessment of the material before me to have largely conducted his own rehabilitation and I accept that he will not reoffend, that therefore the prospects of rehabilitation are excellent. The offender has done all the right things to rehabilitate himself, such that it appears to me that at the current time Community Corrections could probably offer the offender little that he has not already done. Recently the offender has been employed on a fulltime basis by his employer as a project manager, which his employer describes as “a very senior and responsible role and a very significant achievement for someone so young”.

18. In my view the appropriate sentence to pass in this case is a sentence to be suspended pursuant to s 12. In my view the appropriate sentence before any discount is 20 months imprisonment. I discount that by 25% for the offender’s plea of guilty at the earliest available opportunity such that the sentence becomes one of 15 months imprisonment and that will be suspended pursuant to s 12.

19. Paul Xiradis, on the charge that on 2 February 2017 at Surry Hills in this State you did supply a prohibited drug namely cocaine, you are convicted. I sentence you to a term of imprisonment of one year and three months. Under s 12 of the Crimes (Sentencing Procedure) Act 1999 I order that the execution of the sentence be suspended. I direct that you be released from custody on condition that you enter into a good behaviour bond for a term of one year and three months commencing today. Conditions of the bond are as follows:

1. you are to appear before the Court if called upon to do so at any time during the term of the bond;

2. you are to be of good behaviour;

3. you are to reside at [redacted] or;

4. you are to advise the Registrar of the Court by prepaid registered post of any change of residential address during the term of the bond.

In passing that sentence I have taken into account the matters on the Form 1.

20. Now Mr Xiradis you realise that if you commit any crime over the next one year and three months you are likely to be called up and dealt with and if the offence is something other than trivial or something which I cannot excuse my only role will be to fix a non-parole period and you will be going into gaol fulltime.

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Decision last updated: 15 January 2019