R v Roiss

[2020] NSWDC 533

District Court

New South Wales

Medium Neutral Citation:

R v Roiss [2020] NSWDC 533

Hearing dates:

25 June 2020; 26 June 2020

Decision date:

26 June 2020

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Indicative terms of imprisonment:

SEQ 001 – 6 months

SEQ 006 – 1 year

SEQ 007 – 2 years & 6 months

SEQ 010 – 4 years & 6 months

SEQ 014 – 3 years

SEQ 015 – 2 years

SEQ 016 – 14 months

SEQ 017 + Form 1 matters [SEQ 13, 021, 026] – 4 years with 3 year NPP

Aggregate sentence:

Convicted. Sentenced to a term of imprisonment of 6 years, with a NPP of 4 years and 6 months commencing on 26 July 2019 and expiring on 25 January 2024, and a balance of term of 1 year and 6 months commencing on 26 January 2024 and expiring on 25 July 2025.

Backup offences [SEQ 019, 020, 022, 023, 024, 025] withdrawn and dismissed.

Catchwords:

CRIME – Drug Offences – supply prohibited drug – cannabis, cannabis resin, cocaine, MDMA, ketamine, lysergide - knowingly deal with the proceeds of crime – possess prohibited drug, N,N dimethyltryptamine, gammabutrylactone, harmine - early plea – possession of indicia of supply – quantity not sole determinant of sentence in overall circumstances of location of all of the smorgasbord of drugs at the same place and time along with profit admitted to be 1 year’s supply – Ellis discount inappropriate – subjective matters , drug use, gambling – aggregate sentence

Legislation Cited:

CrimesAct 1900

Crimes (Sentencing Procedure)Act 1999

Drugs (Misuse and Trafficking) Act 1985

Cases Cited:

Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act1999, No. 1 in [2002] NSWCCA 518

R v Thomson; R v Houlton (2000) 49 NSWLR 383

Category:

Sentence

Parties:

Regina
Sebastian Roiss

Representation:

Counsel:
Defence: Mr A Wong

Solicitors:
Crown: Mr K Ng
Defence: Ms N Ralph

File Number(s):

2019/00233062

Judgment

1. Sebastian Roiss appears for sentence in respect of eight offences, and in respect of one of those offences, a further three offences are to be taken into account on a Form 1. The offences are as follows.

1. Sequence 1, supply of prohibited drug, 1.78 grams cocaine, contrary to s 25(1) of the Drugs (Misuse and Trafficking) Act. The maximum penalty provided is 15 years’ imprisonment.

2. Sequence 6, supply of prohibited drug, 358.8 grams of cannabis leaf contrary to s 25(1) of the Drugs (Misuse and Trafficking) Act. The maximum penalty is ten years’ imprisonment.

3. Sequence 7, supply of prohibited drug, 40.41 grams of cocaine, contrary to s 25(1) of the Drugs (Misuse and Trafficking) Act. The maximum penalty is 15 years’ imprisonment.

4. Sequence 10, knowingly deal with the proceeds of crime, being $155,255 cash contrary to s 193B(2) of the Crimes Act. The maximum penalty is 15 years’ imprisonment.

5. Sequence 14, supply of prohibited drug, 76.9 grams of methylenedioxymethylamphetamine (MDMA), contrary to s 25(1) of the Drugs (Misuse and Trafficking) Act. The maximum penalty is 15 years’ imprisonment.

6. Sequence 15, supply of prohibited drug, being 57.2 grams of ketamine, contrary to s 25(1) of the Drugs (Misuse and Trafficking) Act. The maximum penalty provided is 15 years’ imprisonment.

7. Sequence 16, supply of prohibited drug, being 38.8 grams of cannabis resin, again contrary to s 25(1) of the Drugs (Misuse and Trafficking) Act. The maximum penalty provided is 15 years’ imprisonment.

2. There is no standard non‑parole period in respect of any of those seven offences provided by the legislation.

1. Sequence 17, supply of prohibited drug, being 0.83 grams of lysergide, contrary to s 25(2) of the Drugs (Misuse and Trafficking) Act. The maximum penalty provided is 20 years’ imprisonment and there is a relevant standard non‑parole period of ten years.

3. When being dealt with for that offence, Sequence 17, the offender has asked the Court to take into account a further three offences, being:

1. Sequence 13, possess prohibited drug, 0.95 grams of N,N‑dimethyltryptamine, contrary to s 10(1) of the Drugs (Misuse and Trafficking) Act, in respect of which the maximum penalty would be two years, if dealt with separately, and

2. Sequence 21, possess prohibited drug, being 1,094.1 grams of gammabutrylactone or GBL, again contrary to s 10(1) of the Drugs (Misuse and Trafficking) Act 1985, in respect of which the maximum penalty if dealt with separately would be two years’ imprisonment; and

3. Sequence 26, possess prohibited drug, being 0.63 grams of harmine, again contrary to s 10(1) of the Drugs (Misuse and Trafficking) Act and again, the maximum for that offence if it was dealt with separately, is two years’ imprisonment.

4. The offender was committed for sentence on 13 February 2020 from Central Local Court and he is entitled to a discount of 25% for the utility of the pleas alone, in respect of each offence. The facts are agreed and are as follows:

1. At around 6.30pm on 26 July 2019 police were patrolling in the Barrangaroo area.

2. They noticed William Pointon standing on the corner of Erskine and Shelley Streets. He was texting on his phone and looking up and down the street. He appeared to be waiting to meet up with someone.

3. A short time later, the offender approached Pointon. They shook hands and had a short conversation. The two walked together for about a minute before Pointon handed the offender $900 cash and the offender handed Pointon three bags containing a total of 1.78 grams of cocaine (Sequence 1). They shook hands and walked off in different directions.

4. Police stopped Pointon, who gave them permission to take photographs of his text message exchange with the offender. The pictures recorded the following exchange:

Pointon: I’m after three bags.

Offender: Of C? K? Mix? Ha, ha.

Pointon: C.

Offender: OK no problem bro.

Pointon: Awesome! We’re gunna head your way to the bars so maybe 30 mins but I’ll let you know. (smiley face)

Offender: OK cool.

Pointon: Just getting the cash out then can meet you.

Offender: OK coming.

Pointon: Sorry hold up. Having ATM issues.

Offender: OK.

Pointon: Sweet. You can come now. You on your way?” (smiley face)

5. Police also stopped the offender who was handcuffed and searched. Located on him were the following:

• In his pants pocket, five ex‑gel capsules being 0.39 grams of MDMA and 0.04 grams of cocaine;

• One bag of cocaine being 0.56 grams. In his jacket pocket, two bags of cannabis totalling 6.2 grams and in his wallet, $900 in cash.

1. He was accordingly found in possession of a total of 0.39 grams of MDMA, 6.2 grams of cannabis and 0.6 grams of cocaine.

7. Police asked the offender where he was living and he informed them that he was living in a unit in Shelley Street, Sydney, and that the entrance was from Lime Street, and he lived there by himself.

Search of Shelley Street Unit

8. Around 9.45pm on 26 July 2019, police went to the offender’s unit. They searched the unit and found the following things:

The Living Room Lounge:

• Three Samsung phones,

• one SIM card.

Living Room on Floor behind the Lounge:

• One Samsung phone.

Living Room Table:

• a box containing 2 grams of cannabis leaf and 0.07 grams of DMT,

• a plastic container with white powder being 0.68 grams of cocaine,

• $1,500 cash,

• a drug ledger,

• a further $25 cash,

• a resealable plastic bag containing brown powder which was not a prohibited drug,

• a resealable plastic bag with three capsules inside, being 0.31 grams of MDMA,

• a plastic container with powder inside, not being a prohibited drug,

• a set of scales,

• six x USB,

• three x SD cards,

• three x SIM cards.

Living Room TV Cabinet:

• One Samsung phone.

Living Room in Briefcase:

• Resealable bag containing crystals being 34.6 grams of MDMA and 47.1 grams ketamine,

• resealable bag containing brown matter being 38.8 grams cannabis resin,

• resealable bag containing orange tablets being 32.44 grams of MDMA,

• LSD tabs being 0.83 grams lysergide,

• resealable bag containing two capsules, being 0.2 grams MDMA,

• a plastic container with powder, being 8.96 grams MDMA,

• a plastic container with powder, being 9.64 grams of ketamine,

• a plastic container containing two plastic containers with white powder,

• five plastic containers with white rocks, being in total 39.13 grams of cocaine,

• two resealable bags with brown powder, being 0.88 grams DMT,

• a resealable bag with leaf matter, being 0.63 grams harmine, and

• a resealable bag with white powder being 0.46 grams ketamine.

Dining Room on Printer:

• One exercise book being a drug ledger.

Dining Room on Cabinet:

• One book being a drug ledger,

• two plastic bags containing green leaf matter being 121.9 grams of cannabis, multiple resealable plastic bags,

• two sets of scales,

• six plastic bags, each containing cannabis seeds being a total of 1 gram,

• 3 x hemp wraps not being a prohibited drug,

• one resealable bag containing white powder not being a prohibited drug,

• two capsule fillers.

Dining Room on Chair in Green Bag:

• $3,800 cash.

Dining Room on Chair in Black Bag:

• $9,000 cash.

• a set of keys for “Guardian Vaults”.

Dining Room in Cupboard:

• Paperwork regarding safety deposit box at “Guardian Vaults”.

Dining Room on Floor:

• a bottle with 1,094.1 grams of GBL.

• One container with cannabis being 202.4 grams of cannabis.

On the Kitchen Bench:

• two containers of empty capsules.

In the Fridge:

• one resealable bag containing syringes.

In the Main Bathroom:

• 25.3 grams of cannabis leaf was located and

• a plastic container, and

• scales.

Search of 151 Castlereagh Street - Guardian Vaults

9. Around 1.45pm on 30 July 2019 police went to the Guardian Vaults business in Castlereagh Street, Sydney. They were allowed access to a vault box leased by the offender.

10. Inside the vault box police found $170,000 in Australian currency. The currency was all in $50 and $100 notes.

Total Amounts of Drugs Seized

11. The offender was in possession of the following total amounts of prohibited drugs for the purpose of supply. These totals include the drugs found in his possession on arrest and also the drugs found inside his apartment:

• Cannabis leaf - 358.8 grams (Sequence 6);

• Cocaine - 40.41 grams (Sequence 7);

• 3,4-methylenedioxymethylamphetamine (MDMA) - 76.9 grams (Sequence 14);

• Ketamine - 57.2 grams (Sequence 15);

• Cannabis resin - 38.8 grams (Sequence 16);

• Lysergide (LSD) - 0.83 grams comprising 51 individual cardboard squares and multiple cardboard fragments (Sequence 17).

12. The offender was in possession of the following amounts of prohibited drugs for personal use as accepted by the Crown and which were located in his apartment:

• N,N-dimethyltryptamine (DMT) - 0.95 grams (Sequence 13 - Form 1);

• Gammabutrylactone (GBL) - 1,094.1 grams (Sequence 21 - Form 1);

• Harmine - 0.63 grams (Sequence 26 - Form 1).

Total Amount of Cash Seized

13. The offender was in possession of a total amount of $185,225 cash. This includes the amount seized from him on arrest, found in his apartment and located in the vault box.

14. Of that total amount $155,255 was the proceeds of drugs supply (Sequence 10). The remaining $30,000 had been provided to the offender by his parents when they came from Germany to visit him in Australia. Not referred to in the Facts is that the prosecution has accepted that assertion on the basis of correspondence from the offender’s parents, as I was informed from the bar table, being assertions on how they had come to Australia on three separate occasions, each time bringing with them $10,000 in cash, the maximum amount which did not need to be declared and providing it to their son.

Arrest and Charging

15. After his arrest, the offender was taken to a police station and consented to a DNA sample being taken as well as agreeing to participate in an ERISP. During the ERISP he was assessed as being honest and forthright with police and made the following admissions or statements:

1. That he had supplied Pointon with the cocaine in return for $900;

2. That he possessed all of the prohibited drugs and cash in his apartment;

3. That he had cash stored in the vault box at Guardian Vaults and that it was his cash;

4. That he supplied cocaine, ketamine and MDMA for financial gain;

5. That the GBL in his unit was for personal use. He accepted that it was a large amount but told police he had to buy it in that quantity. He said he would never sell it because of the potential for misuse;

6. When asked whether he had sold LSD, he stated, “it can happen, yes but it’s more for personal use”, and, “it’s mainly just for me”. He said if he sold LSD, he would sell it for $30 a tab;

7. That he had lost control of his life and accepted that he had an “horrendous amount” of drugs;

16. He was then charged in relation to the present offences.

5. The offender was detected as a result of the fortuitous observation by police of a single transaction in the street in respect of 1.78 grams of cocaine. That amount is approximately half of the traffickable quantity of 3 grams and less than the indictable quantity of 5 grams.

6. In the absence of some of the other charges, it would have been dealt with in the Local Court where the maximum that could be imposed is two years. In respect of Sequence 6, it was 358.8 grams of cannabis leaf being 58.8 grams more than the traffickable quantity and a little over one‑third of an indictable quantity, which is 1 kilogram.

7. In respect of Sequence 7 relating to 40.41 grams of cocaine, that was more than eight times the indictable quantity but substantially less than the next level of seriousness, being a commercial quantity, which is 250 grams.

8. In relation to Sequence 10, which is an offence of knowingly deal with the proceeds of crime in the sum of $155,255, the offender has accepted by his plea that it was the proceeds of crime, and during the course of his giving evidence on sentence, he accepted that it was profits from his drug dealing business that he had been conducting for a period of approximately one year. $155,255 is a significant sum of money, representing profit from his drug distribution. I will comment later on further sums relevant to profits from his business.

9. Although offences contrary to s 193B(2), money may involve significantly higher sums, $155,250 collected as profit over a one year period, indicates that the offender has been involved substantially in the business of drug distribution for profit.

10. Sequence 14, 76.9 grams of MDMA, is more than 63 times the indictable quantity of 1.25 grams and more than half of the next level of seriousness in terms of quantity, being a commercial quantity, which is 125 grams.

11. Sequence 15, being ketamine, 57.2 grams, is substantially more than the indictable quantity of 12.5 grams but significantly less than the next level of seriousness, being a commercial quantity, which is 1,250 grams.

12. Sequence 16, being cannabis resin in the quantity of 38.8 grams, is more than the small quantity but less than the indictable quantity. The traffickable quantity being 30 grams, it is just a little below the traffickable quantity and over one‑third of the indictable quantity of 90 grams. That again is a matter which, in the absence of the other charges or the particular circumstances of this matter, could have been dealt with in the Local Court where the limitation on sentence is a two years imprisonment.

13. Sequence 17, being 0.83 grams of lysergide, or LSD as it has been referred to in the facts, is a commercial quantity, being nearly double the commercial quantity threshold and is at approximately the halfway point between a commercial quantity and a large commercial quantity. A traffickable quantity is 0.003 grams. An indictable quantity is 0.005 grams. A commercial quantity is 0.0005 kilograms or 5 grams and a large commercial quantity is 0.002 kilograms.

14. In addition, when being sentenced in respect of that last offence, the Court is required to take into account the three matters contained on the Form 1, being 0.95 grams of DMT and 1094.1 grams of GBL, Sequence 21, and 0.63 grams of harmine, Sequence 26.

15. I accept that Sequence 17 can be said to fall towards the lower end of objective seriousness for a commercial supply, given the quantity involved, but when dealing with that offence, the Court must take account of the three Form 1 offences.

16. I accept that Sequence 13, DMT, is of relative insignificance in this sentencing exercise, and of course it was accepted that it was for personal use.

17. However the offence relating to GBL, being Sequence 21, relates to what was slightly in excess of a commercial quantity, enough to last in terms of personal use for a considerable period of time.

18. In addition, the 0.63 grams of harmine, being an hallucinogen, is also in my view a significant quantity, in view of which, in the circumstances, in my view, each of the three possession charges are in themselves serious offences and they must warrant an appreciable increase in the sentence that would have otherwise been imposed in respect of Sequence 17, although they do not increase the objective seriousness of Sequence 17. Greater weight must be placed on principles of retribution and denunciation when considering an appropriate sentence for Sequence 17 as referred to in the Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 in [2002] NSWCCA 518.

19. In my view, it is not sensible to assess the independent objective seriousness of each individual offence unless required in the circumstances where all of the drugs, bar the 1.78 grams of cocaine actually supplied, were found on the one occasion, distributed in various locations throughout the offender’s premises. The individual quantity in respect of any charge is relevant to the individual charge, and is of course relevant to any sentence that might be imposed in respect of that charge.

20. However quantity alone is of course not the sole determinant of an appropriate sentence. In my view, each of the offences needs to be assessed in the overall circumstances of the location of what can reasonably be described as a smorgasbord of drugs on a single occasion in the offender’s premises, and where he was found to have retained in the vault $155,255 being the profits from his activities as a drug distributor for a period admitted by him to be approximately one year.

21. In addition, when giving evidence on sentence, he stated that he was a frequent gambler. My note may be defective but my memory is that he said some two to three times a week during the period, on occasions spending up to $30,000. That is a loss of up to $30,000. His evidence was that his regular gambling involved losses of $2,000 or perhaps $5,000 but certainly up to $30,000. That, together with the $155,000 that he was in possession of, indicates a very lucrative business of drug distribution, although I am not sentencing him in respect of an offence of distributing drugs over a one year period but only in respect of the specific quantities that were found in his possession, or had been supplied to Mr Pointon, and of course the acknowledged proceeds of crime. Those matters are relevant to a finding that this was clearly not a one‑off, and that the overall circumstances indicate that he was involved to a serious degree with the distribution of prohibited drugs.

22. As to subjective matters, before the Court is the offender’s New South Wales criminal history, and he has never been convicted of any offence in New South Wales. There is no evidence that he has been convicted in any other State, nor in any other country, although he informed the psychologist, Meaghan Godbee, that in his native country, Germany, he had some convictions for speeding and driving while under the influence of cannabis. Those offences are of no real relevance to the sentence to be imposed in relation to these offences. Apart from the criminal history there is a report from Meaghan Godbee, psychologist, dated 23 April 2020, an extract from Justice Health records dated 2 April 2020, a letter from Patrick Roiss, being the brother of the offender, dated 22 May 2020, a letter from his mother and father, Anita and Gunther Roiss, dated 15 June 2020, a letter to the Court from the offender, a letter of attendance in respect of the Remand Addictions Program dated 16 June 2020, and as previously indicated, the offender gave evidence on sentence. Subjective matters are taken from that material.

5. He was 39 years of age at the time of the offence and is now 40 years of age. He is of German descent, having been born in Frankfurt and growing up there as the middle of three children born to his parents. His parents have remained married throughout his life and he has described their relationship as generally positive. He never witnessed any violence or separations between his parents. However, his mother was short‑tempered and had a drinking problem, and on occasions, particularly when intoxicated, would hit or push him. She would also occasionally verbally abuse him by referring to him as a failure or an idiot. However, despite that there were clear occasions where he felt loved by his mother and acknowledges that she protected her children from external harm, so he always felt safe around her.

6. Ms Godbee states that, “this suggests he developed disrupted attachment to an unpredictable caregiver”. He described his father as strict, and his father would act on reports of his misbehaviour from his mother. However, he felt safe and cared for by his father. He had no experiences of abuse or other trauma during his childhood other than what I have referred to in relation to his mother.

7. He moved out of home at age 19 to attend university and migrated to Australia some nine years ago. Since his arrest his visa has been cancelled. He described his childhood as being difficult, with what he referred to as unnecessary abuse. He had started school at a common age in Germany, being seven. He claims to have been informed as a child that he had ADHD but as that was not an accepted diagnosis in Germany at the time, it went unmanaged. He stated that he struggled with reading and writing and had particular difficulties with one teacher at the school that he was who referred to him as being “slow”. He ultimately transferred to another school where he began to enjoy school more and he denied any social or behavioural difficulties thereafter. He was an academically average student who failed to obtain the qualifications at school which would have allowed him to immediately attend university.

8. Having finished high school, he completed an apprenticeship in metalwork before later returning to school to earn sufficient qualifications to be admitted at university. He then undertook a degree in nanotechnology and material science. Halfway through that course, he determined to travel to New Zealand and spent approximately one year in New Zealand before returning to Germany and enrolling at a new university in order to complete the degree. Although he did complete the degree, it took him approximately twice as long as it should have taken, due to his difficulties in passing subjects from time to time.

9. When he initially came to Australia, he arrived on a student visa and studied leadership and management. He has had periods of both employment and unemployment. He has primarily done metalwork but has also been employed as a labourer, carpenter and waiter. For approximately a period of a year before being arrested, he was unemployed. That of course coincides with the period in which he says he was dealing drugs.

10. He has no physical issues, although in his childhood injured his collarbone in a cycling accident, which causes him some discomfort. He was apparently waiting for surgery prior to his being arrested and entering custody. He commenced consuming alcohol at the age of ten and regularly from the age of 14, and wanting to be seen as “cool”. By his late teens he was drinking up to ten beers per day but reduced his alcohol consumption in his early 20’s. He now only drinks alcohol on a few occasions per year.

11. He began smoking cannabis at the age of 16 and continued throughout his 20’s on a daily basis for a few years at a time. He returned to everyday use in his early 30’s and estimated that he had consumed up to 10 grams per day and that this continued until his arrest in respect of these matters.

12. He noted that his use of cannabis contributed to a feeling of paranoia as is common particularly where used over a significant period of time. He began using ecstasy, LSD, methamphetamine and methylamphetamine at the age of 18, methamphetamine being otherwise known as “speed”, and methylamphetamine as “ice”. In particular, he used it when going to clubs on the weekends. At the age of 21, he decided he did not want to engage in regular substance abuse and began to distance himself from his drug using friends.

13. It was at that time he decided to return to university as part of a plan to overhaul his life. He then abstained from illicit drugs other than cannabis until his mid-30’s. In the three years leading up to the index offence, he was struggling with a relationship break‑up and consuming alcohol and cannabis. Over time he started spending time with other drug users and was ultimately using cocaine, ketamine, ecstasy, LSD, GHB, ice and prescription medications such as Xanax on a daily basis. As previously referred to, the psychological report indicates that he was gambling frequently during this period, spending up to $30,000 per occasion and that his gambling and drug use continued up until his arrest.

14. Having been taken into custody, he experienced withdrawal symptoms for approximately a six‑week period. At the time of the psychological report, he had not completed any rehabilitation program, but he has subsequently attended the Remand Addictions Program, attending two separate sessions on 12 June 2020 and three separate sessions on 16 June 2020. He has had difficulty in being able to enter any programs while in custody, particularly because he has on occasions been transferred between custodial centres regularly, and of course each time he is transferred to a new centre he goes to the bottom of the list for such programs at that centre.

15. He claims to have commenced his career in Australia as a drug distributor because he was a drug user who ran up large amounts of debt because he was using large amounts of drugs and gambling, and that he then entered into an arrangement with his dealer in order to assist his dealer and to pay off his debts. He informed the psychologist that he has since recognised the impacts that all drugs have on people and he regrets his behaviour.

16. I have difficulty with the suggestion that anyone does not recognise the adverse impact that prohibited drugs can have on individuals. There is constant publicity in the media about the adverse effects, including leading to death, that occur on a regular basis in respect of consumers of various prohibited drugs. To suggest that he has only recognised the adverse impact since his arrest, in my view cannot be accepted. He must have been aware well before that time.

17. He relates the triggering of his recent return to the abuse of prohibited drugs in a significant manner to the breakdown of his relationship with his Japanese girlfriend, which commenced when he was approximately 33 years of age and lasted for approximately seven years. However she had returned to Japan after the first four years and the remaining three years were in effect a long distance relationship of a declining nature.

18. He asserts that he was diagnosed with a bipolar disorder by a psychiatrist at the age of 27. No report has been provided to the Court as to diagnosis of a bipolar disorder at that time, or at any time since with the exception that in the extract of the Justice Health records, there is a note, 2 April 2020, that someone within the Justice Health system, presumably a psychiatrist rather than a nurse, had the impression that he may suffer from bipolar‑2 disorder and it was recommended that he continue with the prescription drugs, Palperidone and Citalopram.

19. His evidence on sentence was that he has felt assisted and more “normal” as a result of those prescriptions. The psychologist, in her report, stated that he had described some indicators of mania but that there were not enough symptoms to meet the full criteria for a diagnosis of bipolar disorder. That was on the basis of the account that he provided during the assessment which took place by way of audio visual link on 1 April 2020 for approximately 1 hour and 40 minutes. He is said to have attempted to commit suicide, according to his report, by overdosing in early 2019, but having had no suicidal planning or intent since that time but occasional thoughts of self‑harm when contemplating his future. He is also said by the psychologist to have some traits consistent with obsessive compulsive disorder, that being the engaging in excessive cleaning in his early 20’s and washing his hands several times per hour. He has never had any mental health treatment before entering custody.

20. He indicated that while in custody, he has been able to talk with his parents and siblings in Germany on a regular basis, two or three times per week. His brother’s letter to the Court and his parents’ letter to the Court indicate that they are supportive of him and that they will continue to support him in the future. His brother refers to him as being a very family-oriented person with whom he always had a very good relationship. His parents refer to him as someone who always helped them, although they were aware that he had commenced smoking marihuana at the age of 16. They were clearly concerned at that time, as they then consulted a psychologist who unfortunately informed them that he was a normal child, and it was normal at that age and that the smoking would stop, which clearly it did not except perhaps for some periods.

21. His parents state:

“We are sure that the stay in prison has changed him positively which we have already noticed on our phone calls and when he comes back he will start again.”

40. In his letter to the Court he stated:

“I really feel sorry and ashamed of what I did. I don’t have any justifiable excuses and I am willing to take the punishment that I deserve.”

41. He also states that since being in prison he has not used any drugs which he regards as a positive thing.

42. I note that the Corrective Services Conviction, Sentence and Appeals Report is before the Court and that since his arrest on 26 July 2019, there is no reference in that report to him having breached prison regulations in any way and there is no reason why I should not accept the offender’s evidence in the circumstances that he has managed while in custody to cease using prohibited drugs and has, as is suggested, sought to turn his life around.

43. He gave evidence on sentence as to remorse and contrition and as I inadvertently do not have my notes with me at the moment, I cannot refer to the specific references that he made. However, I accept particularly in the light of his assessed, honest and truthful ERISP and what I interpreted as frank evidence on sentence, particularly in relation to his gambling, that he is indeed genuinely remorseful and contrite in relation to his offending.

44. I also accept in the circumstances where he has apparently already managed to cease using any prohibited drugs, and in the circumstances where although he has used prohibited drugs for many years, he has no other criminal history, that there is a reasonable to good prospect of his not re‑offending and that he has substantially entered on the journey of rehabilitation.

45. The offender has acknowledged that he was in possession of significant quantities of prohibited drugs for the purpose of supply for profit. Profit is almost always associated with drug distribution. The scale of the offender’s participation in drug distribution, I have already referred to, but in addition, it is necessary to take into account that he was actively supplying different types of drugs, that he stored an inventory of different drugs in his apartment to be accessed when required, that within his apartment the drugs were variously packaged and in different locations, although clearly some of them were not already packaged for supply.

46. However there were significant indicia of the supply in his apartment. That is, three separate sets of scales, cash in different denominations in different places, five mobile phones, multiple resealable plastic bags, capsule fillers and drug ledgers spanning over two books with one separate loose leaf book. There were a number of other powders, both white and brown, which were not prohibited drugs but in respect of which I infer beyond reasonable doubt that they were for the purpose of adulterating prohibited drugs to obtain a greater financial reward on distribution. He had of course not yet profited from any of the drugs actually found in his premises, but at least as to those he accepts were for supply, he intended to do so.

47. He stated to the Court in his evidence that one of the reasons for his participation in drug supply was because:

“I started to buy bigger and bigger amounts and wanted to have a lot of drugs so I could show off to people I was hanging out with.”

48. And elsewhere, that it proved an attractive feature to women. He also stated that when dealing drugs, he started to use more and more, especially cocaine and he was using up to 5 grams a day and drinking up to ten to 20 bottles of beer and half a bottle of whisky/rum”, and using ketamine on top as that helped to calm him down and control his mood swings. He was also smoking a lot of cannabis to calm himself down, being sometimes 100 cones and 20 joints a day, (five to 10 grams a day), as well as taking GBL, and up to two times per week, LSD.

49. I accept that the offender had a significant addiction to prohibited drugs, but it is clear from the evidence before the Court that he was not simply a drug user/dealer in the sense of using the proceeds simply to finance his own addiction, but using them as a matter of lifestyle. He had been unemployed and would not have been receiving any benefit from the Australian government during the period prior to his arrest, when he asserts that he was dealing in drugs, yet was able to finance his lifestyle in Australia as well as accruing $155,250 which he stored in a security vault.

50. One of the matters raised by Mr Wong on the offender’s behalf is that he should be entitled to an Ellis discount. There is no evidence before the Court that he provided the police with any information in relation to any other person at all, let alone information that resulted in anyone being charged. Mr Wong’s submission seems to rest on the fact that the offender was regarded as being frank during the course of the interview and provided the password to his mobile phone as well as identifying the key to the Guardian Vault and paperwork relating to where he had stored the profits.

51. There is no suggestion in this matter that providing his password to his mobile phone or phones led to any other person being arrested or charged and it would appear to be inevitable from the location of a vault key and the paperwork relating to the vault, that inevitably investigators would have located his profits.

52. I do however take into account that he was apparently found to be frank in relation to making relevant admissions during the ERISP. Of course, that also had the advantage to him of the prosecution accepting his assertions in respect of the three possession charges contained on the Form 1 as being prohibited drugs for personal use rather than supply, despite the fact in particular that the GBL was more than a commercial quantity.

53. In the overall circumstances I regard all of the offences as serious and I have already, as required, placed Sequence 17 on the range of seriousness as required, it being an offence to which attaches a standard non‑parole period of ten years. I have taken into account in relation to each of the offences the maximum penalty provided by the legislation as well as the fact that in relation to a number of sequences, being 1, 6 and 16 and although being sentenced separately for each of those in this Court, each could have been dealt with in the Local Court in the absence of other more serious charges.

54. I have taken into account the purposes of sentencing as referred to in s 3A of the Crimes (Sentencing Procedure) Act, and in my view, it is important that any sentence imposed in relation to this offending provide for both specific and general deterrence. The harm to individuals and the community that arises from the distribution of prohibited drugs has long been recognised and in particular is recognised by the significant terms of imprisonment that are provided for in relation to the offences currently before the Court.

55. I have not found that the offender was in possession for the purpose of supply for a profit as an aggravating feature, as it is almost always a feature of supply offences.

56. I have taken all of those matters into account as well as the previously expressed 25% utility discount for the early plea. I intend to proceed by way of an aggregate sentence, and in those circumstances I am required to provide an indicative sentence in relation to each of the offences, and in respect of Sequence 17, an indicative non‑parole period as there is a relevant standard non‑parole period provided for that offence.

57. It is clear in relation to this matter that the s 5 threshold has been passed and that there can be no alternative on sentence other than a sentence of fulltime imprisonment. So much has been acknowledged by Mr Wong, barrister, on behalf of the offender, in the course of the hearing. Such a concession was of course entirely appropriate.

58. Sequence 1, supply of prohibited drug, 1.78 grams cocaine, the indicative sentence is six months’ imprisonment.

59. Sequence 6, supply 358.8 grams cannabis leaf, the indicative sentence is one year.

60. Sequence 7, supply of prohibited drug, 40.41 grams of cocaine, the indicative sentence is two years six months.

61. In respect of Sequence 10, knowingly deal with the proceeds of crime, $155,255 cash, the indicative sentence is four and a half years’ imprisonment.

62. In respect of Sequence 14, being supply, 76.9 grams of MDMA, the indicative sentence is three years.

63. In respect of Sequence 15, supply 57.2 grams of ketamine, the indicative sentence is two years.

64. In respect of Sequence 16, supply 38.8 grams of cannabis resin, the indicative sentence is 14 months.

65. In relation to Sequence 17, supply 0.83 grams of lysergide, taking into account the three matters contained on the Form 1, being Sequence 13 possess 0.95 grams DMT, Sequence 21 possess 1,094.1 grams GBL, and Sequence 26, possess 0.63 grams of harmine, taking into account what I have previously said about that particular charge and the relationship to it of the Form 1 offences, the indicative sentence is a term of imprisonment of four years with an indicative non‑parole period of three years.

66. I have also taken into account that all of the drugs were located on the one occasion, with the exception of the 1.78 grams which was the result of an actual supply, the concepts of totality and accumulation in order to arrive at the aggregate sentence. There must in my view be some accumulation between each of the offences, although to a relatively small degree.

67. Accordingly, taking all of those matters into account, the sentence which will date from 26 July 2019, when he was arrested, is a non‑parole period of four years, six months with a balance of term of one year, six months, giving a total sentence of six years. He will first be eligible for parole on 25 January 2024, and the sentence will expire on 25 July 2025.

68. Although this is the offender’s first time in custody, I have not found that that justifies special circumstances, and as I have found he has significantly progressed on the path of rehabilitation and conquered while in custody his consumption of prohibited drugs, noting of course that it is frequently evidenced in matters before this Court that as much as they should not be, New South Wales’ prisons are rife with prohibited drugs being available. It is to the offender’s credit that he has managed to cease use in those circumstances.

Mr Roiss, that means that you will first be eligible for parole on 25 January 2024 and the balance of term or potential parole period is one year and six months, the entire sentence finishing on 25 July 2025. It will be a matter for the authorities as to whether you are released on parole on or about 25 January 2024. That will, to a great extent, depend on how you go while in custody.

I suggest that you take advantage of any programs while in custody to assist you to continue not to use prohibited drugs and also to take such courses as might increase your qualifications in order to obtain employment when you are released. I have noted of course from the material before me that your Australian visa has been terminated, and there can be in those circumstances an entirely reasonable expectation that you will be deported when released on parole. However, that is not a matter that I can take into account. I simply note it.

I have also taken into account that you will be serving your sentence at least somewhat geographically removed from your parents and siblings, unless they choose to personally attend Australia. However it is evident that you have been able to keep up a reasonable level of communication with them while in custody and they have apparently are able in terms of their finances, to visit you from time to time while you have been in Australia for the last nine years. So in those circumstances while being somewhat removed from your family, I anticipate that your time in custody will not be as onerous as it might have been while removed from your immediate family.

Now, is there any error that I have made that anyone has worked out?

CRASE: No your Honour.

RALPH: No, your Honour.

HIS HONOUR: Or anything I have missed in this unfortunately tedious process that is necessary?

RALPH: No, your Honour.

HIS HONOUR: All right. Then that completes the matter. Mr Roiss, do you need any of the dates repeated?

OFFENDER: No, I’m sorry. No, your Honour.

HIS HONOUR: All right. Then I will adjourn.

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Decision last updated: 16 September 2020