R v Prokopis

[2024] NSWDC 607

District Court

New South Wales

Medium Neutral Citation:

R v Prokopis [2024] NSWDC 607

Hearing dates:

17 October 2024

Date of orders:

31 October 2024

Decision date:

31 October 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

Aggregate sentence for the State offences

1   John Prokopis is convicted.

2   I impose an aggregate term of imprisonment of 18 months with a non-parole period of 9 months to date from 7 June 2023. The non-parole period expired on 6 March 2024 and the head sentence will expire on 6 December 2024.

Aggregate sentence for the Federal offences

3   I impose an aggregate term of imprisonment of 2 years and 8 months to date from 7 December 2023 and expiring on 6 August 2026.

4   The offender is to be released on 6 February 2025 after having served 14 months of the sentence, on entering into a recognisance in the sum of $500 to be of good behaviour for 3 years. The further conditions of the recognisance are:

(a)   the offender accepts supervision by an officer of Community Corrections;

(b)   the offender obeys all reasonable directions from Community Corrections;

(c)   the offender is to undertake such treatment or rehabilitation program as reasonably directed by Community Corrections.

5   The offender is to be released on the recognisance on 6 February 2025.

Catchwords:

CRIME — Drug offences — Commonwealth offences — Import/Export border-controlled prohibited plant or drug

CRIME — Drug offences — Supply prohibited drug — Indictable quantity

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code 1995 (Cth)

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147

Hili v The Queen (2010) 242 CLR 520

Johnson v The Queen (2004) 78 ALJR 616

Le v R [2022] NSWCCA 243

R v El Karhani (1990) 21 NSWLR 370

R v Nassir [2020] NSWCCA 88

R v Nguyen (2010) 205 A Crim R 106

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
John Prokopis (Offender)

Representation:

Counsel:
J Song (Crown)
B Green (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
McGirr & Associates (Offender)

File Number(s):

2023/183102

Publication restriction:

None

JUDGMENT

1. John Prokopis (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

Count	Offence	Maximum Penalty/ SNPP
1	Attempt to import marketable quantity of border controlled drug (220 grams of cocaine) contrary to ss 11.1(1) and 307.2(1) Criminal Code 1995 (Cth)	25 years imprisonment
2	Import marketable quantity of border controlled drug (43.5 grams of cocaine) contrary to s 307.2(1) Criminal Code 1995 (Cth)	25 years imprisonment
3	Attempt to import marketable quantity of border-controlled drug (115.6 grams of MDMA) contrary to ss 11.1(1) and 307.2(1) Criminal Code 1995 (Cth)	25 years imprisonment
4	Supply an indictable quantity of prohibited drug (111 grams of MDMA) contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW)	15 years imprisonment
5	Supply of an indictable quantity of prohibited drug (30.5 grams of cocaine) contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW)	15 years imprisonment

2. The offender also asks the Court to take into account the following offences:

1. Importing border-controlled drug (MDMA) contrary to s 307.3(1) Criminal Code 1995 (Cth) on a s 16BA Schedule when passing sentence for Count 2.

2. Attempt to possess a marketable quantity of a border-controlled drug (35.8 grams of cocaine) contrary to ss 11.1(1) and 307.6(1) Criminal Code 1995 (Cth) on a s 16BA Schedule when passing sentence for Count 1.

3. Possess prohibited drug (2 grams of Ketamine) contrary to s 10(1) Drug Misuse and Trafficking Act 1985 (NSW) on a Form 1 when passing sentence for Count 4.

4. Deal with proceeds of crime ($25,975 of Australian currency) contrary to s 193B(2) Crimes Act 1900 (NSW) on a Form 1 when passing sentence for Count 4.

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

State offences

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and have had regard to the matters set out in s 21A of the Act.

5. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

6. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147.

Federal offences

7. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.

8. A court determining a sentence in respect of any person for a Federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].

9. The offender has entered a plea of guilty to the Federal offence in the Local Court. The offender’s plea of guilty has saved the need for witnesses to be called at trial and there is significant utilitarian value in the plea of guilty. The appropriate discount is 25%.

10. I have had regard to the principles relevant to sentencing serious Federal drug offenders set out in R v Nguyen (2010) 205 A Crim R 106 at [72] (Johnson J) and the comments of Bathurst CJ in R v Nassir [2020] NSWCCA 88 at [100].

11. For a Federal offence the non-parole period or recognisance release period is the minimum period that justice requires the offender to serve in custody, fixed by reference to s 16A(1), the relevant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

12. I have taken into account the principles outlined in the guideline judgment relating to the s 16BA offences, which can be applied to federal offences: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147 and Le v R [2022] NSWCCA 243 at [36].

Facts

13. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

Import border-controlled drug (on a s 16BA schedule attached to Count 2)

14. On 12 October 2022 an envelope was delivered to JM in Gymea Bay from a consignor in France. JM did not order anything from France and took the envelope to Miranda Police Station. He told the police that he had seen a male driver in a silver sedan driving around his street, parking and looking in letter boxes. He supplied the registration number of the motor vehicle that had been noted by his wife. The package was examined and found to contain several sealed packets containing a white grainy substance that tested positively for MDMA.

15. On 15 October 2022 police seized another package addressed to MV at the address of his son, CV in Gymea Bay from a consignor in France. Both CV and MV told police that they did not order anything from France and the package was seized.

16. On 22 November 2022 a package was intercepted by Australian Border Force (ABF) that was addressed to the offender’s residence in Gymea Bay from a consignor in France. The package contained 50 grams of a brown powdery substance that tested positive for MDMA. The package was photographed and handed over to the Australian Federal Police (AFP). It was destroyed after being examined.

Attempt to possess a marketable quantity of a border-controlled drug (on a s 16BA schedule attached to Count 1)

17. At around 11:30am on 1 February 2023, and after the postman had come, a witness observed the offender crouching near a letter box in Ellesmere Road, Gymea Bay. The witness had observed the offender attending the same address about three or four times in the weeks prior. After the offender left, the witness located the offender’s wallet next to the letter box. The witness took a photograph of the offender’s drivers licence before returning the wallet to his home address.

18. On 2 February 2023, the witness informed the owner of the property that the offender had been looking through their letter box. The owner reviewed his CCTV footage that depicted the offender running down the shared driveway, looking at the house before turning around and running away.

19. At about 11:40am on 3 February 2023, the offender was observed by the owner of the Ellesmere Road property, driving past the letter box in a silver motor vehicle, doing a lap around the block and returning to Flat Rock Road a few minutes later.

20. On 6 February 2023, CCTV footage depicted the offender climbing over the metal gate from Flat Rock Road to access the driveway of the Ellesmere Road property, walking around the property and looking through the access gate on two occasions at 7:55pm and 10:22pm.

21. At 12:32pm on 7 February 2023, the offender returned and walked down the driveway of the Ellesmere Road property. The owner’s husband, CH, saw the offender and directed him to leave. On the same day a package addressed to CH from a consignor in France was located in the letter box. It was labelled as containing confidential medical documents. Believing it to be suspicious, the owner surrendered it to Sutherland Police Station.

22. The package was examined and found to contain a foil package concealed inside a pamphlet. The foil package contained 50.01 grams of cocaine with a purity of 71.5%, giving a pure weight of 35.8 grams.

Count 1: Attempt to import marketable quantity of border-controlled drug

23. On 8 February 2023, the offender had a conversation over Threema with username “LuckyStarOwner” whereby he organised the purchase of 2 x 110 grams of cocaine for $17,420, being $17,000 for the cocaine and $420 for the decoy. The offender paid for the consignments in cryptocurrency and directed that the package be addressed to “George Brown” at his residence in Gymea Bay.

24. On 28 February 2023 the offender messaged LuckyStarOwner stating, “if these two land bonus $1500 crypto + I’ll buy larger amounts”.

25. On 7 March 2023, LuckyStarOwner provided the offender with the tracking number and warned him against tracking the consignment too many times in case it got flagged.

26. On 15 March 2023, the offender made arrangements with LuckyStarOwner for the second half of his 2 x 110 gram order of cocaine, including to break the cocaine up into smaller pieces and put it between the pages of a magazine. It was agreed that two packages each containing a magazine with 55 grams of cocaine would be sent. The offender provided a consignee address in Yowie Bay and the name “Chris Davidson”.

27. On 17 March 2023, at the request of the offender, LuckyStarOwner provided several photographs of the package as it was being prepared.

28. On 21 March 2023 the offender sent a message to LuckyStarOwner stating that he had set up an email address, that was not linked to his real name, to receive updates on the whereabouts of the package without the need to track it. On 22 March 2023, LuckyStarOwner provided the tracking number.

29. On 24 March 2023, the consignment was intercepted by the ABF. An examination of the consignment found 75 grams of powder inside a magazine that tested positive for cocaine. The consignment was handed over to the AFP and subsequently destroyed.

30. On 26 March 2023, the offender notified LuckyStarOwner that the first 110 grams and 55 grams had not arrived. He asked LuckyStarOwner if he was going to have to cop the $17,000 loss or was there something that they could work out. A few weeks later he asked for a refund to which LuckyStarOwner replied that he or she did not do refunds. The offender and LuckyStarOwner subsequently discussed updating delivery methods, including utilising DHL and placing the drugs in a decoy.

31. On 11 April 2023, the offender provided LuckyStarOwner with consignee details including his name, “John Prokopis”, and an address in Belrose.

32. On 18 April 2023, LuckyStarOwner provided the tracking number and informed the offender that the consignment had passed customs. On the same day the offender forwarded a picture of the outside of the consignment and stated, “our partnership has begun”.

33. On 19 April 2023 the offender sent a photograph of a mound of white powder to LuckyStarOwner, and stated, “getting it ready for my customers will message you shortly for next order”. He also stated that he did a purity test on the cocaine that came back very high and that his customers were pleased with it and he had already received $7,000 from sales of the cocaine.

34. On 26 April 2023, the offender and LuckyStarOwner did another deal for 45 grams of cocaine for $4,885. The offender confirmed payment via bitcoin and provided the same consignee details as the previous consignment. The offender subsequently confirmed that the 45 grams arrived.

Count 2: Import marketable quantity of border-controlled drug

35. On 3 May 2023, the offender arranged with LuckyStarOwner to purchase 51 grams or 52 grams of cocaine for $3,700. Payment was made by bitcoin. The offender provided the same consignee details as the previous 2 consignments and suggested that the drugs be concealed in a camera (decoy) like the previous order.

36. On 9 May 2023, LuckyStarOwner sent the offender the tracking number and warned him not to check on the tracking of the package too much. On 9, 12, 14 and 18 May 2023 the offender made enquires with LuckyStarOwner as to the delivery status of the consignment.

37. On 10 May 2023, the ABF intercepted the consignment. An x-ray of the consignment revealed abnormalities. Inside the clock a foil package was located that contained 51.8 grams of cocaine with a purity of 84%, giving a pure weight of 43.5 grams.

Count 3: Attempt to import a marketable quantity border-controlled drug

38. On 12 May 2023, a consignment described as being a “motorcycle helmet” arrived in Australia addressed to “Harry Johnson” at an address in Yowie Bay.

39. On 21 May 2023, an ABF officer conducted an x-ray on the consignment which revealed abnormalities in the interior of the helmet. An incision was made in the interior wall of the helmet, and two concealed bags containing white powder were located. One of the bags tested presumptive positive for MDMA Hydrochloride.

Controlled operation

40. On 5 June 2023, the consignment was collected, and its contents unpacked by NSW Police. A clear vacuum sealed bag containing white powder was located within the small silver bag.

41. Forensic examination revealed that the powder contained MDMA with a purity of 76.0%. The total gross weight of the white powder was 204.7 grams and the calculated pure weight of the MDMA was 115.6 grams.

42. On 6 June 2023, the MDMA was replaced with an inert substance and the motorcycle helmet was reconstructed so that it could be used to conduct a controlled delivery to the offender.

43. Investigators arranged for DHL to update the tracking status of the consignment so that it aligned with the intended controlled delivery date of 7 June 2023.

Messages with “Weedwire”

44. On 4 May 2023, “Weedwire” messaged the offender via an encrypted messaging application stating, “[Hey] bro I put around 200g + MDMA in the decoy could you pay me 30g on the next order the 20g is for you” and “The ketamine is also overweight”.

45. On 10 May 2023, the offender discussed with Weedwire the decoy, the tracking of the consignment and confirmed that the drugs were all powder.

46. Between 12 May 2023 and 7 June 2023, Weedwire provided the offender updates about delivery status of the consignment, including screenshots from DHL containing the tracking code.

DHL enquiries

47. Between 16 May 2023 and 6 June 2023, the offender made five enquiries with DHL regarding the delivery status of the parcel. He identified himself as “Harry”, the name provided in the consignee details, and made the enquires via phone using both his mobile phone and a pay phone.

Controlled delivery

48. At about 9:50am on 7 June 2023, a police officer wearing plain clothes attended the offender’s address with the reconstructed parcel in the guise of delivering the item from DHL. As the undercover officer walked away, the front door opened and the offender collected the parcel.

49. The offender sent a photograph to Weedwire of the motorcycle helmet, accompanied by the message, “DHL arrived. How do I get the stuff”.

Arrest and record of interview

50. At about 10:20am, as investigators knocked on the front door of the premises, the offender was located exiting the garage and approaching the rear sliding door, where he was arrested.

51. Under caution, the offender admitted that he possessed scales, small clear resealable bags and two ounces of MDMA contained within 56 resealable bags.

52. The offender was conveyed to Sutherland Police Station. The offender accepted the opportunity to participate in an electronically recorded interview. The offender confirmed his residential address but declined to make any further comment regarding any of the allegations put to him.

53. The offender provided the pin code to his mobile phone. Police reviewed the contents of certain messages believed to involve the importation of prohibited drugs.

54. A digital analysis of the offender’s laptop seized during the search warrant found it to contain open tabs of information relating to bitcoin and parcel tracking.

Execution of search warrant

55. A Commonwealth search warrant was executed at the offender’s residence. Police immediately located the motorcycle helmet on the kitchen table, which had been removed from the box and had its interior lining pulled out.

56. A number of items were seized from the offender’s bedroom including three sim card packs and one sim card, one laptop, two invoices with the names “Harry Johnson” and “Brett Scott”, $25,975 in cash in two bundles in the dresser, 56 bags each containing 1.2 grams of brown powder, 58 bags each containing 1.1 grams of white powder and scales.

57. A number of additional items were also seized from the office of the premises including 46 bags each containing 0.9 grams of white powder, one pair of disposable gloves and packing with powder reside, bitcoin paperwork and hundreds of small resealable bags.

Count 5: Supply prohibited drug

58. Police conducted testing and weighed the 46 resealable bags of white powder located in the office of the offender’s residential premises. The powder was cocaine with a total combined weight of 30.5 grams.

Count 4: Supply prohibited drug

59. Police conducted testing and weighed of the 114 small resealable bags of white and brown powder located in the offender’s bedroom. The substance was MDMA with a total combined weight of 111 grams.

Deal with proceeds of crime (Form 1 attached to Count 4)

60. The total amount of cash concealed within the dresser area of the offender’s bedroom was $25,975.

Possess prohibited drug (Form 1 attached to Count 4)

61. During the search of the garage area the offender was seen exiting at the time of arrest, investigators located white powder on a plate which was transferred into a clear resealable bag. Initial analysis identified the powder as ketamine with an estimated weight of 2 grams.

Sentencing Assessment Report

62. The Court received a Sentencing Assessment Report (SAR) dated 14 October 2024. The following is a summary of that report.

63. The offender benefits from a close and supportive relationship with his mother, who has confirmed her desire to provide both accommodation and emotional support to the offender upon his release.

64. The offender was employed in the cleaning and retail industries prior to his arrest. He indicated an intention to initially return to work as a cleaner upon release and has a desire to re-enrol at university in the medium-long term future.

65. The offender has no prior history of offending.

66. He has been held on remand at Parklea, Kariong and Clarence Correctional Centres since his arrest and has demonstrated excellent conduct in custody.

67. The offender was aware at the commencement of his involvement in the offences that what he was becoming involved in was illegal but that he had not fully considered the consequences.

68. He reported that his involvement in the offences stemmed from “social pressure” and described developing friendships with people involved in the distribution of illicit substances and being propositioned to involve himself in such activities. He acknowledged that some portion of his motivation also was to derive a financial benefit.

69. The offender presented with a significant level of insight into the impact of his offending upon the community. He expressed a willingness and ability to undertake both offence targeted interventions and community service work.

70. Community Corrections assessed the offender at a medium-low risk of reoffending according to the Level of Service Inventory – Revised.

71. The offender has been assessed as suitable to undertake community service work and Community Corrections can provide up to 18 hours of work per month.

The Offender’s Case on Sentence

72. The offender relied on the following documents:

1. report of Dr Jason Gallate dated 8 October 2024;

2. support letter of Jinane Taoube dated 7 September 2024;

3. character reference of Claudio Aravena dated 11 October 2024;

4. character reference of Wayne Owen dated 10 October 2024;

5. character reference of Timothy Parker dated 2 October 2024;

6. character reference of Caterina Cambouris dated 26 August 2024; and

7. character reference of Jason Spataro dated 19 August 2024.

73. The following is a precis of the evidence relied upon by the offender, I will try not to repeat matters set out in the SAR.

74. The offender’s family is from a Greek background. He is the youngest of two children born to his parents. He has one older sister.

75. He has few memories of his early childhood. Both of his parents were punitive. His mother once threw food in his face after he refused to eat his dinner and he was hit when he broke a lava lamp. The offender stated that he understood that his mother loved him.

76. The offender told the psychologist that his father instilled a sense of fear in his children and as a result he felt insecure growing up. He was often hit as a punishment for minor things. He often retreated to his dimly lit room and locked the door. He could not recall any positive childhood memories.

77. The offender liked primary school despite being a “mischievous” kid. The psychologist stated that the offender appeared to have behavioural issues as he received 30 misdemeanour notifications and reported often getting into fights with other children. Despite this, he had a small circle of good friends and average grades.

78. The offender felt immediately anxious when he began high school as it was a large school with new people. The offender reported hating high school and he withdrew into his shell. He had considerable facial hair in early high school and was relentlessly bullied for this and other juvenile matters. He only spent time with a small group of boys, who did not play sport and were not popular.

79. The offender felt frustrated, angry and sad. His grades suffered as a result, only receiving pass or sub passing grades for easy subjects.

80. The offender initiated his first contact with a mental health professional when his mother took him out of school to see a psychiatrist. The offender found this unhelpful and only saw this psychiatrist once. The offender was then taken to a psychologist, whom he also did not find helpful. He remembered that he kept everything to himself and barely spoke, which did not help the therapeutic process.

81. The offender’s next mental health intervention, while he was still in high school, was with psychologist, Jinane Taoube. The offender found this to be a different experience. Although the offender found this experience helpful, he was also uncomfortable and only saw Ms Taoube a handful of times. He still largely kept to himself during the sessions but reported that for the first time he found a person who appeared to understand him and did not judge him.

82. The offender’s parents separated in 2017, when he was 17 years old. His parents kept their impending divorce a secret from him and his sister until he had finished the HSC. Neither child had any idea of the separation and they felt completely blindsided by this. At this time, the offender was enrolled in exercise physiology at university, but dropped out in the aftermath of his family breakdown.

83. The offender became very depressed and withdrew into his room, often spending 16 hours of daylight locked inside with the curtains drawn, and not talking to anyone. He was angry and frustrated and refused to see his friends and remained in this condition for nearly two years. He had a casual job at a supermarket, where he limited his interactions with customers and staff. He swept floors for his father at night but did not speak with his father when doing so.

84. When his father left, the offender felt abandoned and that his father’s strict moral stance and punitive interventions seemed hypocritical. The offender could not speak to his father and they still have a very distant relationship.

85. After approximately two years of social isolation, the offender reinitiated contact with Ms Taoube. He told her small parts of how he felt. He found these sessions helpful, and he got some perspective on what was happening in his life.

86. He slowly started to see his friends in person, but this did not alleviate his depression. The offender resumed sprint training after seeing Ms Taoube, finding that his coaches and training partners were the only genuine people in his life.

87. Around this time the offender turned to drugs to “escape” his social and generalised anxiety. He took cocaine for the first time when he was around 19 or 20 years of age. He told the psychologist that he felt “ok” for an hour or two but then felt “disgusted with [himself]”. Despite this, the offender continued to take cocaine for six to eight months before stopping for a significant period of around six months. The offender also used MDMA and ketamine during this period.

88. When he quit cocaine for the first time, he saw this as an attempt to get away from the criminal life. However, the “friends” that he had made pressured him to use drugs again. This started off on a small scale, but the offender was ultimately dragged back into using both ketamine and cocaine, and having set up a supply line, he started to supply a small amount of cocaine to a small group of “friends”. He felt that his life “split in two”. He was sprint training and working hard and that made him feel happy, but would then use drugs and associate with anti-social peers and he would feel guilty and depressed for resorting to drug use. The offender eventually found this lifestyle exhausting. He felt like he could not speak to his sister or mother about his problems.

89. The offender stated to the psychologist that he took full responsibility for his behaviour, realising it was up to him to stop taking the drugs and that “no one made [him] stay” in that lifestyle. The offender stated that he did not get caught on purpose, but during the events that led up to his arrest he was acting recklessly because he did not care anymore.

90. While in custody the offender has spoken to inmates who have a lot of time to serve. He told the psychologist that listening to their stories has helped him to see how drugs have negatively impacted their lives.

91. The offender has witnessed violent acts in custody but has avoided becoming a victim of violence. The offender has experienced panic attacks almost every night, consisting of rapid breathing and increased heart rate. He tries to calm himself by watching television and talking to himself.

92. The offender expressed remorse to the psychologist and to his character referees. He takes full responsibility for his actions. He appreciates that his offending was not victimless. The psychologist stated that he appeared to genuinely want to put his life on a productive path and to make amends.

93. Each of the offender’s character referees describe him as polite, respectful and reliable as well as someone who is willing to go out of his way to help or encourage others. They were each shocked by the charges brought against the offender and from their conversations with him since his arrest, state that he has displayed a commitment to rehabilitation when he is released from custody.

94. The psychologist opined that the offender meets the criteria for a diagnosis of Generalised Anxiety Disorder, Major Depressive Disorder, Social Anxiety Disorder and Panic Disorder.

95. The psychologist further opined that the offender’s Generalised Anxiety Disorder and Social Anxiety Disorder were partial causal factors in his offending behaviour. The offender’s depression and social anxiety stemming from his behavioural and developmental troubles in primary school, his social isolation in high school and disconnect from his father, resulted in something of a two speed life. He re-established limited social connection through the use and distribution of drugs, but that ruptured his relationships with his mother and sister.

96. The psychologist opined that the offender was a low risk of reoffending.

97. The psychologist recommends that the offender attends upon Ms Taoube on a weekly basis for a period of at least 12 months and on an ongoing intermittent basis thereafter once he is released from custody.

Consideration

Nature and circumstances of the Federal offences

98. Count 1 involved two orders by the offender for 110 grams of cocaine at a cost of $17,000 from a supplier in Canada in the period between about 7 March 2023 and 24 March 2023. The drugs were sent in 3 separate consignments. The first consignment was addressed to “George Brown” at the offender’s residence. The second consignment was intercepted on its arrival into Australia, addressed to “Chris Davidson” at an address in Yowie Bay, containing 75 grams of cocaine of untested purity. The third consignment was addressed to the offender at a relative’s address in Belrose.

99. Count 2 involved the importation of 43.5 grams of cocaine at a cost of $3,700 in the period of about 3 May 2023 to 10 May 2023. The drugs were sent in a foil package concealed within a clock radio. The consignment was sent to the offender at a relative’s home in Belrose.

100. Count 3 involved the attempt to import 155.6 grams of pure MDMA in a motorcycle helmet in the period of about 13 May 2023 and 7 June 2023. The consignment was originally addressed to “Harry Johnson” at an address in Miranda but redirected by the offender to his own residence shortly before delivery.

101. Each offence involved a marketable quantity of the drug, which involves a range of 2 grams to 2 kilograms.

102. The offender employed means to avoid detection including the use of false names and addresses, as well as attending the false addresses to retrieve the packages after they were delivered. The offender used an encrypted messaging application and gave instructions on how to conceal the drugs. He also made payment for the drugs by cryptocurrency.

103. The offender negotiated the supplies of drugs to be imported and arranged payment for them. The offender regularly tracked the packages and made enquires of the suppliers.

104. The offender’s purpose for importing the drugs was to sell them for a profit. As the only participant in his sole trader operation, the offender stood to receive all of the profit from his drug importation and subsequent supply.

105. The offences involved some planning and premeditation, however his actions in effecting the importations were unsophisticated and clumsy. He exposed himself to being detected through a number of means.

106. I have taken into account the maximum penalty for the offences.

Objective seriousness of the State offences

107. Count 4 was a deemed supply of 111 grams of MDMA. The drug was packaged for sale to retail buyers. The facts demonstrate that the offender had been disseminating the drugs imported into the community. The amount of the drug was a bit less than half of the commercial quantity. The offence was committed for financial gain and the offender stood to receive all of the profit from the sale of the drug.

108. Count 5 was a deemed supply of 30.5 grams of cocaine. The drug was packaged for sale to retail buyers. The facts demonstrate that the offender had been disseminating the drugs imported into the community. The amount of the drug was a bit over 10% of the commercial quantity. The offence was committed for financial gain and the offender stood to receive all of the profit from the sale of the drug.

109. I have taken into account the maximum penalty for the offences.

Deterrence

110. General deterrence is a fundamental consideration in serious drug offences. The sentence must be of such a severity to deter others from engaging in drug related activities. The sentence must signal to would be participants in drug offences that the financial and other rewards will be neutralised by the risk of severe punishment.

111. General deterrence may be given less weight when the offender suffers from a mental condition because the offender is not an appropriate person to be made an example of. This is such a case.

112. There is also a need for specific deterrence, but it is reduced to some extent. The offender has demonstrated insight into his offending conduct and is willing to accept interventions.

Aggravating factors for the State offences

113. There are no relevant aggravating factors.

Contrition and remorse

114. The offender has accepted responsibility for his actions and expressed remorse to the psychologist and to his referees. I am satisfied that he is genuinely contrite.

Character, antecedents, age, physical and mental condition

115. The offender is 24 years of age and has no prior convictions. He is in good physical health.

116. The offender presents with a complex mental condition characterised by significant symptoms of anxiety and depression that commenced from an early age. He experienced social isolation that led him to drug use which were both primary drivers in his criminal offending. I am satisfied that his moral culpability for the offences is reduced and that the penalty imposed should provide for rehabilitation through mandating treatment for the offender’s mental health.

Prospects of rehabilitation

117. The offender has good prospects of rehabilitation. The offender has demonstrated considerable insight into his offending. He has recognised the destructive nature of drug use and the impact it has had on his family. The offender is willing to accept interventions and has pro-social plans for the future.

Comparable sentences

118. I have had regard to the comparable cases referred to me by the parties and I have taken into account the limitations of that exercise: Hili v The Queen (2010) 242 CLR 520.

Other matters

119. I have taken into account the conditions imposed on prisoners in New South Wales in response to the COVID-19 pandemic, which I accept may continue to be imposed for some time into the future. I am satisfied that the offender’s time in custody has been made more onerous by the restrictions imposed to deal with the COVID-19 pandemic and his mental condition.

120. The offender has been in custody since the date of his arrest on 7 June 2023 and I will back date the sentence imposed to that day to take into account his presentence custody.

Penalty

121. John Prokopis is convicted.

122. I have considered s 17A Crimes Act 1914 and s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate, for the reasons set out in this judgment.

123. This is an appropriate case to impose an aggregate sentence for the State offences and a separate aggregate sentence for the Federal offences, pursuant to s 53A Crimes (Sentencing Procedure) Act 1999. The two sentences will then be partially accumulated to reflect the totality of the criminality involved.

Aggregate sentence for the State offences

124. The sentences I would have imposed after allowing for the appropriate discount, had separate sentences been imposed are:

1. Count 4 – taking into account the matters on the Form 1 – 15 months;

2. Count 5 – 9 months.

125. I make a finding of special circumstances. This is the offender’s first time in custody and he has mental health and addiction issues that warrant a longer parole period.

126. I impose an aggregate term of imprisonment of 18 months with a non-parole period of 9 months to date from 7 June 2023. The non-parole period expired on 6 March 2024 and the head sentence will expire on 6 December 2024.

Aggregate sentence for the Federal offences

127. The sentences I would have imposed after allowing for the appropriate discount, had separate sentences been imposed are:

1. Count 1 – taking into account the matters on the s 16BA schedule – 18 months;

2. Count 2 – taking into account the matters on the s 16BA schedule – 15 months;

3. Count 3 – 2 years.

128. I will impose an aggregate term of imprisonment of 2 years and 8 months to date from 7 December 2023 and expiring on 6 August 2026.

129. The offender is to be released on 6 February 2025 after having served 14 months of the sentence, on entering into a recognisance in the sum of $500 to be of good behaviour for 3 years. The further conditions of the recognisance are:

1. the offender accepts supervision by an officer of Community Corrections;

2. the offender obeys all reasonable directions from Community Corrections;

3. the offender is to undertake such treatment or rehabilitation program as reasonably directed by Community Corrections.

130. If the offender fails to comply with the conditions of the recognisance release order, further action may be taken against him. This may require the offender to return to Court.

131. The offender is to be released on the recognisance on 6 February 2025.

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Decision last updated: 20 December 2024