R v Singh; R v Mamuti; R v Pardoe; R v Yilmazlar - [2020] NSWDC 226

District Court

New South Wales

Medium Neutral Citation: R v Singh; R v Mamuti; R v Pardoe; R v Yilmazlar [2020] NSWDC 226
Hearing dates: 10 March 2020
Decision date: 08 May 2020
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Offender - Singh: Aggregate term of imprisonment of 3 years 8 months with a non parole period of 1 year 7 months 20 days;
Offender - Mamuti: Aggregate term of imprisonment of 6 years with a non parole 3 years;
Offender - Pardoe: Aggregate term of imprisonment of 3 years 3 months with a non parole period of 1 year 7 months 19 days;
Offender - Yilmazlar: Term of imprisonment of 1 year

Catchwords: CRIMES - SENTENCE - Supplying prohibited drug greater than the commercial quantity - participating in a criminal group contributing to criminal activity - supplying a prohibited drug in an amount greater than the large commercial quantity - supplying a prohibited drug greater than the indictable but less than the commercial quantity.
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW): ss 25(1) and (2); Crimes Act 1900 (NSW), s 93T(1)
Category: Sentence
Parties:
Regina (Crown)
Offender: Vishal Singh
Offender: Stephen Mamuti
Offender: Thomas Pardoe
Offender: Metin Yilmazlar
Representation:
Ms Sullivan (Crown Prosecutor)
Mr Roff - (Counsel for offender Singh)
Mr Blair - (for offender Mamuti)
Ms Richardson (for offender Pardoe)
Mr Townsend (for offender Yilmazlar

File Number(s): 2018/287766; 2018/287776; 2018/288997; 2018/287770
Publication restriction: Nil

Judgment

Vishal Singh and Thomas Pardoe, you both appear for sentence today in relation to two principal offences.
First, supplying a prohibited drug greater than the commercial quantity for that drug.
This involves a contravention of s 25 (2) of the Drug Misuse and Trafficking Act. The maximum penalty for that offence is 20 years imprisonment. There is a standard non-parole period of 10 years imprisonment.
Secondly, participating in a criminal group contributing to criminal activity.
This involves a contravention of s 93T (1) of the Crimes Act. The maximum penalty for that offence is 5 years imprisonment. There is no standard non-parole period.
Stephen William Mamuti, you appear for sentence in relation to one principal offence, that is, supplying a prohibited drug in an amount greater than the large commercial quantity for that particular drug.
This also involves a contravention of s 25 (2) of the Drug Misuse and Trafficking Act. But, because of the quantity of the drug, the maximum penalty for that offence is life imprisonment. There is a standard non-parole period of 15 years imprisonment.
In relation to this principal offence, you have asked me to take into account four matters on a Form 1 which I have certified – those four matters being: one matter of knowingly directing the activities of a criminal group; one matter of knowingly dealing with the proceeds of crime; and two matters of possessing a prohibited drug.
In addition to the one principal offence and the four matters on the Form 1, you have also consented to me calling up three s 9 bonds which were imposed on you in the Local Court and which – because of the principal offence and Form 1 matters – you have breached. One of those bonds was for possessing a prohibited drug; the other two were for possessing a restricted substance.
Metin Yilmazlar, you appear for sentence in relation to one principal offence, namely, supplying a prohibited drug greater than the indictable but less than the commercial quantity of that particular drug. This involves a contravention of s 25 (1) of the Drug Misuse and Trafficking Act. The maximum penalty for that offence is 15 years imprisonment. There is no standard non-parole period.
In relation to this principal offence, you have asked me to take into account one matter on a Form 1 which I have certified – that matter being participating in a criminal group which contributed to criminal activity.
The facts surrounding the various principal offences and the matters on the relevant Form 1s are contained in a document entitled “Statement of Agreed Facts” – a document in which, in my respectful opinion, an extensive degree of unnecessary detail is contained: for example, the use of nicknames of one offender; the colours of motor vehicles; and the extensive quoting from texts / SMS messages - much of it in slang or otherwise incomprehensible. As I have often previously stated (but which obviously has been disregarded), if there is agreement as to the substance of the conversations, it should be succinctly stated in comprehensible English; if there is no agreement, it should be the subject of expert evidence and specific submissions – or entirely omitted.
For my purposes, the facts may be summarised as follows.
As at August 2018, Mr Mamuti was the principal and controlling force of the group of which you were all members and active participants.
Between 1 August 2018 and 19 September 2018, the group engaged in 78 individual supplies of methylamphetamine.
A total of almost 800 grams of methylamphetamine was distributed into the general community through those transactions.
More particularly, Mr Mamuti was directly involved in each of those 78 transactions.
In this context, I note that in the “Statement of Agreed Facts” the heading for the facts constituting “Supply 61” nominated only Mr Singh. However, my reading of the facts under that heading indicates that he and Mr Mamuti were involved in the relevant supply.
Of those 78 transactions: Mr Mamuti was solely and directly involved in 34; Mr Mamuti and Mr Singh were directly involved in 23; Mr Mamuti and Mr Pardoe were directly involved in 14; Mr Mamuti, Mr Singh and Mr Yilmazlar were directly involved in 6; and Mr Mamuti, Mr Singh and Mr Pardoe were directly involved in 1.
As I have said, there is no dispute but that Mr Mamuti was the controlling personality in the group and the principal offender.
In the sentence hearing, however, there was some dispute as to the place of the others in the hierarchy of the group.
Looked at globally, I am satisfied that whilst Mr Pardoe and Mr Singh were more trusted by Mr Mamuti than Mr Yilmazlar, each of you was effectively a courier for Mr Mamuti.
The total amount of the methylamphetamine actually supplied by the transactions involving Mr Mamuti was 795.27 grams.
In the supplies directly involving Mr Singh, the total amount actually supplied was 382.54 grams; Mr Pardoe, 333.73 grams; and Mr Yilmazlar, 58.29 grams.
The purity of the drugs was not revealed in the evidence, except for supply number 52. The relevant percentage was 72 per cent. I do not assume that the other transactions were of a similar significant level.
As I shall reveal when I come to consider the subjective circumstances of each offender, the involvement of Mr Singh, Mr Pardoe and Mr Yilmazla was largely, if not exclusively, undertaken to support his own drug habit.
However, in Mr Mamuti’s case, his involvement was not only to support his own drug habit but also for significant financial gain. Indeed, I am satisfied beyond reasonable doubt that that was the dominant purpose in his involvement. In this regard, an SMS message sent by Mr Mamuti on 10 August 2018 in connection with “Supply 20” is instructive: “… I aint in this game 2 make 20 cents”.
However, on the evidence before me, I am unable to make anymore specific finding as to the profits which Mr Mamuti made beyond the $13,600.00 which was found in his possession when he was arrested on 19 September 2018 (and which is one of the matters on the relevant Form 1).
After Mr Mamuti was arrested, his home was a subject of a search by police who found 18.2 grams of testosterone and 7 grams of cannabis leaf. It is the possession of those prohibited drugs which constitute two of the other matters on the Form 1.
Those three matters will not result in any meaningful increase in the sentence for the principal offence involving Mr Mamuti.
However, the remaining matter on the Form 1 – that is, knowingly directing the activities of a criminal group – will result in such an increase.
I note that Mr Singh and Mr Yilmazlar were arrested at the same time as Mr Mamuti. Mr Pardoe was arrested on 20 September 2018.
Insofar as Mr Yilmazlar is concerned, the matter on his Form 1 is participating in a criminal group contributing to criminal activity. Because of his considerably lesser role in the group, there will only be a slight increase in the sentence for his principal offence.
It is necessary for me to make an assessment of the objective seriousness of the principal offence of each offender for an offence of its kind. I have emphasised those last words because, as Mr Blair (for Mr Mamuti) pointed out in his submissions in reply, “large commercial quantity” for methylamphetamine is any quantity greater than 500 grams and can include hundreds of thousands of kilograms
Insofar as the supply offence is concerned, the objective seriousness of Mr Singh’s offence is somewhere equidistant between the middle and the bottom of the range; Mr Pardoe’s slightly below that point; Mr Yilmazlar is towards but not at the bottom of the range; and Mr Mamuti’s is slightly below mid-range.
Insofar as the participation in a criminal group offence is concerned, for Mr Singh and Mr Pardoe it is slightly below the mid-range.
Mr Mamuti’s offending is additionally aggravated because he was on conditional liberty – being the three s 9 bonds which he has consented to me calling up and which I shall return to later in these remarks.
I shall now turn to your individual subjective circumstances. But I do note, before doing so, that Mr Mamuti and Mr Pardoe gave sworn oral evidence in the sentence hearing, but that Mr Singh and Mr Yilmazlar did not.
Vishal Singh, you are now 35 years old.
You were born in Fiji. You and your family came to Australia when you were 5 years of age.
You had an unremarkable upbringing – except for an incident when you were 12 years old from which you had recovered well before your offending.
You left school before completing the Higher School Certificate.
The psychological report tendered on your behalf reveals that you are of average intellectual functioning.
After leaving school, you worked consistently until 2013 when you were 29 years of age. At that time, you were involved in a motor vehicle accident, for which you received $32,000 in compensation. You have not worked legitimately since.
For many years you have been using illegal drugs. This started with cannabis when you were 13 years old. And there have been other drugs – but significantly, you have been using ice since you were 20 years old.
You sought professional treatment in relation to your drug issues in 2012 and 2015, but those interventions were unsuccessful.
You have also developed a gambling addiction.
As a result of your drug and gambling addictions you have quickly used up all of the compensation which you received in connection with the motor vehicle accident.
Not only that, your use of illegal drugs has exacerbated the depressive condition that you have had since your mid-twenties.
Without legitimate income and having exhausted your compensation you somehow came to be involved in this group – which I have said was exclusively to support your own drug habit.
Given your long-term abuse of illegal drugs, it is somewhat surprising that you have no prior convictions. The extended period of time over which you participated in this gang’s activities, however, somewhat diminishes the fact that these are your first convictions.
You did not give direct evidence of any remorse during the sentencing hearing; rather, your expressions of remorse were advanced indirectly through the psychologist’s report I have just referred to. The Court is entitled to look with scepticism at expressions of remorse put forward in that fashion. However, by having regard to the contents of the balance of the report and the references from your family, I am satisfied on the balance of probabilities that you are genuinely remorseful.
The plea of guilty was entered at the first available opportunity. It was done in the face of strong Crown case. I shall allow a discount of 25 per cent. I shall not, however, because of that strong Crown case, allow a further discount for remorse.
It has been submitted on your behalf that a further discount should be given for s 23 issues. However, there is no – or no sufficient – evidence to support msuch an additional discount.
Your prospects for rehabilitation are largely dependent on your participation in what the psychologist refers to as “intensive mental health treatment and rehabilitation” – including residential rehabilitation. In this context, you may be able to obtain a position in the William Booth residential rehabilitation program which was available to you in December 2019.
You also have the strong support of your family.
Overall, I regard your prospects of rehabilitation as guarded. However, they would be enhanced by a longer period on parole.
It follows from what I have just said that I have concluded that no sentence other than imprisonment is appropriate.
The sentence must be one that deters not only you, but also others, from this offending conduct. In other words, specific and general deterrence are fully engaged.
Because: of the need for a longer period on parole; this is your first period of imprisonment; you are apparently being held in protective custody; and of the impact of the coronavirus pandemic, I shall make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period.
You have been in custody solely referrable to these matters since 19 September 2018. Your sentence will be backdated to start on that date.
Thomas Pardoe, you are now 38 years old.
You were born in New Zealand. You came to Australia when you were 22 years old.
You grew up in a loving and supportive family.
You have been in a stable relationship with your wife since you were 18 years old. There are no children born to that marriage.
You have strong continuing support from your family.
You were a good student at school, which you left at the end of Year 12.
After you left school, you have been continuously in employment. You were working as a storeman immediately before your arrest.
You have no physical or mental health issues.
I have mentioned your strong family support. Sadly, your father, to whom you were close, died in a motor vehicle accident in 2010 when you were 29 years old. This, naturally, upset you deeply. But what surprises me, with your good background, is that, in seeking to cope with your grief, you became involved, for the first time, with illicit drugs.
Initially you were using cannabis. But in 2013, three years after your father’s death, and when you were 32 years old, you started using ice.
Your use / abuse of that drug rapidly escalated. It got to the point where you couldn’t support your drug habit through the income you were legitimately earning.
And so it was, in circumstances not clearly revealed, you became involved in Mr Mamuti’s criminal group. Your reward for your activities in that group was principally to be supplied with ice for your own use, together with what is described as a small amount of cash.
As with Mr Singh, given your long-term abuse of illegal drugs, it is somewhat surprising that you have only a relatively minor criminal history.
That criminal history is not one which would disentitle you to the leniency which, in appropriate circumstances, can be extended to a first offender. But, as with Mr Singh, the extended period of time over which you participated in this gang’s activities somewhat diminishes that mitigating factor.
Unlike Mr Singh, you did give sworn evidence in the sentence hearing – as did your wife. By having regard to that evidence, and the contents of the psychological report, I accept that you are genuinely remorseful for what you have done.
You are willing to undertake the necessary counselling and treatment to deal with your addiction to illegal drugs. Odyssey House is prepared to accept you into its residential rehabilitation program – or at least it was in December 2019.
I have noted that, whilst in custody, the experienced Corrective Officers have selected you to do ground maintenance work. This suggests a significant level of trust.
Overall, I regard your prospects of rehabilitation as being reasonable to good. They would be enhanced by a longer period on parole.
In your case, I have also concluded that no sentence other than imprisonment is appropriate.
And specific and general deterrence are also fully engaged.
However, because: this is your first time in custody; the need for a longer period on parole; and the impact of the coronavirus pandemic, I shall make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period.
You have been in custody solely referrable to these matters since your arrest on 20 September 2018. Your sentence will be backdated to start on that date.
You entered your plea of guilty at the first available opportunity. You will receive a 25 per cent discount for that early plea.
Metin Yilmazlar, you are now 29 years old.
You were born in Australia.
You were brought up in a supportive and loving family.
You were an above average student at High School, which you completed in Year 12. Your Higher School Certificate results enabled you to commence a Bachelor’s Degree at the University of New South Wales in Aviation Management.
Unfortunately, you discontinued that course after three semesters, something you now regret.
However, after leaving university, you have been a hard worker – a landscaper, a forklift driver, a courier, and a worker in the construction industry. It is now your ambition to start your own construction business.
It was after you left university at 19 years of age that a number of interrelated things happened. You developed depression - and you started using illegal drugs which, no doubt, made the depression worse, especially as the illegal drug you initially used was cannabis.
You continued to use / abuse cannabis until you were 27 years of age – at which time you started to use ice.
After you were arrested, you were initially granted bail. Whilst on that bail, you continued to use ice. This was in breach of your bail – and it was revoked. You were then in custody for a little over 7 months before being granted bail again. Whilst in custody, you successfully completed the remand addiction program and you have not used illicit drugs since that time.
Your drug use was strongly disapproved of by your family and caused you to become separated from them. However, your relationship with your family has been substantially restored since you have given up drugs, and they are once again a strong support for you.
And since you have addressed your illicit drug use, your mental health has improved considerably. However, as the psychologist who prepared a report for sentence has noted, there is still some way to go in that regard.
You have a very limited criminal history and are entitled to the leniency which, in appropriate circumstances, can be extended to a first offender.
You did not give sworn evidence in your sentence hearing, but because of the contents of the psychologist’s report and the references tendered on your behalf, I accept that you are genuinely remorseful.
You will receive a 25 per cent discount for your early plea of guilty.
Provided you continue to receive the psychological support referred to in the psychologist’s report, your prospects for rehabilitation are in my view reasonable. In fact, you have already made very substantial and positive efforts in that regard.
As with all the other offenders, no sentence other than one of imprisonment is appropriate. And in this regard, both specific and general deterrence are fully engaged.

Mr Mamuti, before turning to your subjective circumstances, I shall now set out briefly the facts concerning the three s9 bonds which you have consented to me calling up.
On 17 November 2017, the police were conducting surveillance at a semi-rural property at Edmondson Park. Two houses were constructed on that property, and you lived in one of them.
The police saw you drive up to and park outside your house.
The police shortly thereafter conducted a search of that house.
Amongst other things, they found 40ml of testosterone enanthate (which is a prohibited drug), 74 tablets of Clenbuterol, and 9 vials of Hygetropin Human Growth Hormone (both of which are prescribed restricted substances).
In terms of their objective seriousness for offences of their kind, each is towards but not at the bottom of the range.
By having regard to that fact, and the sentence I shall impose for the principal offence of supplying a prohibited drug greater than the large commercial quantity of that drug, I order that no action be taken in relation to the breaches of the three s9 bonds.
You are now 32 years of age.
You had a dislocated childhood, the details of which are set out in the psychological report tendered on your behalf. For my purposes, it is sufficient to note that that childhood should be described as dysfunctional and, therefore, taken into account in the manner which the High Court has directed sentencing Judges to do in Bugmy v The Queen.
You left school at the end of Year 10.
You then started an apprenticeship but did not complete it because of your developing illegal drug issues which commenced when you were 15 years old.
In addition to illegal drugs, you also had a developing problem with alcohol and other substances such as steroids and growth hormones.
Furthermore, you have had a chronic gambling problem – the extent of which you have not acknowledged.
You have had an intermittent work history.
One of your absences from the workforce occurred when you were about 19 or 20 years old and after you had observed the death of a cousin. This led to Post-Traumatic Stress Disorder for which you received treatment.
You are said to be in a stable long-term relationship with a lady with whom you have had four children – although, how it could be said to be a stable relationship - given your absences from the workforce (and therefore legitimate income) and your unaddressed drug and gambling issues - has not been explained.
You have a lengthy criminal history which means you are not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender. However, the numerous matters on that record are not of a kind that constitute an additional aggravating factor in connection with the present offending.
I accept that you are now genuinely remorseful for your criminal offending.
It is significant to note there are also concrete examples of your remorse: you have not used drugs whilst in custody; you have not committed any other offences whilst in custody; you have been working productively whilst in custody – and, in fact, you have been employed as a sweeper, which reflects the trust and confidence which the experienced officers have in you .
Overall, my assessment of your prospects of rehabilitation are that they are reasonable. They would be enhanced by a longer period on parole. For that reason, and because this is your first time in custody, I shall make a finding of special circumstances.
Although, as I have said, your upbringing reduces your moral culpability, general and specific deterrence are still significantly engaged – along with the need to encourage your rehabilitation.
You entered an early plea of guilty and, therefore, will receive a discount of 25 per cent.
The sentence will be backdated to 19 September 2018.
Mr Singh, in your case, I intend imposing an aggregate sentence.
Accordingly, it is necessary for me to state the indicative sentences underpinning that aggregate sentence.
In relation to the supply a prohibited drug offence, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 4 years. However, after the discount of 25 per cent, the indicative sentence is 3 years imprisonment.
In relation to the offence of participating in a criminal group, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 2 years. After the discount of 25 per cent, the indicative sentence is 1 year 6 months.
For these offences, I sentence you to an aggregate term of imprisonment of 3 years 8 months.
Having found special circumstances, I fix a non-parole period of 1 year 7 months 20 days to date from 19 September 2018 and which expires today. You are therefore eligible for parole today.
I fix a balance of 2 years 10 days to date from 9 May 2020 and which will expire on 18 May 2022.
Thomas Pardoe, I also intend imposing an aggregate sentence on you.
In relation to the supply offence, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 3 years 6 months. After the discount of 25 per cent, the indicative sentence is 2 years 7 months.
In relation to the participating in a criminal group offence, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 2 years. After the discount of 25 per cent, the indicative sentence is 1 year 6 months.
For these two offences I sentence you to an aggregate term of imprisonment of 3 years 3 months.
I fix a non-parole period of 1 year 7 months 19 days to date from 20 September 2018 and which expires today. You are therefore eligible for parole today.
I fix a balance of 1 year 7 months 11 days to date from 9 May 2020 and which will expire on 19 December 2021.
Metin Yilmazlar, for the offence of supplying a prohibited drug greater than the indicatable but less than the commercial quantity, and taking into account the matter on the Form 1, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 2 years 2 months. Because of the discount of 25 per cent and subject to one matter to which I shall immediately refer, I would have sentenced you to a term of imprisonment of 1 year 7 months.
However, I do note that you spent 7 months on remand before being granted bail and accordingly the term of imprisonment is 1 year.
Mr Townsend, on your behalf, asked for any sentence, if it were less than two years, to be served by means of an intensive corrections order. Any such order must contain conditions. Regrettably, a sentencing assessment report was not previously requested for you. Before finally determining how you are to serve your sentence, I wish to have the advantage of a sentencing assessment report and, in particular, to know: (a) whether the Community Corrections will supervise you; and (b) whether you are suitable for community service.
Accordingly, your sentence hearing is further adjourned to 3 July 2020 at 10:00am, and I order the preparation of a full sentencing assessment report to be available for that date.
To the extent necessary, your bail is continued to that day.
It is an additional condition of that bail that you report, by telephone, to the Officer in Charge of the Liverpool Community Corrections Office, for the purpose of such a report before 4pm tomorrow, 9 May 2020.
Stephen Mamuti, of the offence of supplying a prohibited drug in an amount greater than the commercial quantity, and taking into account the matters on the Form 1, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 8 years. Because of the plea, the term of imprisonment is 6 years.
I fix a non-parole period of 3 years to date from 19 September 2018 and which will expire on 18 September 2021.
I fix a balance of 3 years to date from 19 September 2021 and which expire on 18 September 2024.

Decision last updated: 22 May 2020

Medium Neutral Citation:	R v Singh; R v Mamuti; R v Pardoe; R v Yilmazlar [2020] NSWDC 226
Hearing dates:	10 March 2020
Decision date:	08 May 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Offender - Singh: Aggregate term of imprisonment of 3 years 8 months with a non parole period of 1 year 7 months 20 days; Offender - Mamuti: Aggregate term of imprisonment of 6 years with a non parole 3 years; Offender - Pardoe: Aggregate term of imprisonment of 3 years 3 months with a non parole period of 1 year 7 months 19 days; Offender - Yilmazlar: Term of imprisonment of 1 year
Catchwords:	CRIMES - SENTENCE - Supplying prohibited drug greater than the commercial quantity - participating in a criminal group contributing to criminal activity - supplying a prohibited drug in an amount greater than the large commercial quantity - supplying a prohibited drug greater than the indictable but less than the commercial quantity.
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW): ss 25(1) and (2); Crimes Act 1900 (NSW), s 93T(1)
Category:	Sentence
Parties:	Regina (Crown) Offender: Vishal Singh Offender: Stephen Mamuti Offender: Thomas Pardoe Offender: Metin Yilmazlar
Representation:	Ms Sullivan (Crown Prosecutor) Mr Roff - (Counsel for offender Singh) Mr Blair - (for offender Mamuti) Ms Richardson (for offender Pardoe) Mr Townsend (for offender Yilmazlar
File Number(s):	2018/287766; 2018/287776; 2018/288997; 2018/287770
Publication restriction:	Nil