R v Sinkovich

[2009] NSWDC 324

CITATION:	R v Sinkovich [2009] NSWDC 324
HEARING DATE(S):	6 November 2009
JUDGMENT OF:	Conlon SC DCJ
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing procedure) Act 1999
CASES CITED:	R v Way [2004] NSWCCA 131
PARTIES:	Regina Frank John Sinkovich
COUNSEL:	Craig Everson(Crown) Geoffrey Nicholson QC (Defence)

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JUDGMENT

1 HIS HONOUR: On 6 July 2009 following trial a jury returned verdicts of guilty in respect of the following two counts:

2 Count 1, that on 12 June 2008 at Minto in the State of New South Wales he did knowingly take part in the supply of a prohibited drug, namely methylamphetamine.

3 Count 2, that between 29 June 2008 and 5 July 2008 at Minto in the State of New South Wales he did supply a prohibited drug, being not less than the commercial quantity of methylamphetamine.

4 Count 1 is contrary to s 25(1) of the Drug Misuse and Trafficking Act and carries a maximum penalty of fifteen years imprisonment. Count 2 is contrary to s 25(2) and carries a maximum penalty of twenty years imprisonment.

5 Consistent with the verdicts of the jury, I am satisfied of the following facts beyond reasonable doubt. In May 2008 Operation Fiesta was formed to investigate the supply of methylamphetamine in the Minto and Claymore areas. As part of this a controlled operation was authorised on 5 June 2008. On 12 June 2008, a police undercover operative (UCO) known as “Peter” attended Swettenham Road Minto carrying $2,700 in cash. He wore a listening device.

6 The offender Frank Sinkovich drove the co-offender Lowe to this location and waited nearby. Lowe walked to the undercover operative’s car. The UCO’s car could be seen from the position Sinkovich occupied beside his car. Lowe then supplied the UCO with one ounce (31.83 grams, that is gross weight) of methylamphetamine in exchange for the $2,700; later analysed and weighed that indicated a net total of 27.2 grams. During this meeting there was conversation about a further supply. In this conversation the co-offender Lowe referred to Jack (co-offender Tutton) as a person who would chase money for him and that the UCO would meet him the next week. Lowe told the UCO that Jack was “like my uncle... ‘cause my father’s who we work for in this”.

7 Lowe told the UCO to bring an esky or cooler next time to keep the methylamphetamine from drying out. Lowe also gave the UCO a mobile number for future contact. Lowe then left the UCO’s vehicle and returned to where the offender Sinkovich was waiting and they drove from the area.

8 The telephone intercepted material has satisfied me beyond reasonable doubt that this offender and co-offender Lowe were in the business of drug trafficking. Exhibit G1 is a transcript of a conversation on 14 June 2008, that is two days following the commission of the count 1 offence. Lowe commences with telling the offender that he purchased a spa that morning (documentation for that spa was later located at Lowe’s premises during the search of 4 July 2008). The conversation then turned to “truck drivers” and “them eights”. The offender stated that “it’s got to be cash COD but if you want, if you’re not gunna COD its gunna cost the same when you buy one”.

9 On 18 June 2008 in the transcript exhibit M1, Lowe says to the offender “do you know what I forgot, I forgot to do the chapter thing”. Sinkovich asked “Oh where are they”, Lowe responded “They’re in the freezer...there’s writing on the paper, their names are on the paper so have a look…” When police executed the search warrant on 4 July 2009 at Lowe’s premises, they found numerous packages containing methylamphetamine in freezers, totalling 479.69 grams. When Lowe was supplying the undercover operative, there was writing on the packaging of the drugs he supplied.

10 The co-offenders Lowe and Tutton met with the undercover operative on 20 June at the Swettenham Road location. After supplying him with 53.3 grams of methylamphetamine, discussion took place about the possible future purchase of an elbow. The UCO asked for a rough price, Lowe said it would be about “thirty”. Tutton stated that several weeks ago, the prices were running between “thirty” and “thirty-five”.

11 On 30 June 2008 Lowe spoke to the UCO over the phone. The UCO told him that the deal could probably be organised early next week. Shortly after that conversation Lowe called Sinkovich and asked if he could postpone the delivery for another week. Sinkovich said that he would get it anyway as it didn’t matter. Lowe said “okay, but he said definitely next week.”

12 On 2 July 2008 the UCO met with Lowe and Tutton and supplied 53.9 grams for $5,400. The transcript of the conversation which is exhibit MM1 on p 3, indicates that Lowe told the undercover operative “that thing is getting delivered to my home today”. The UCO inquired if he was referring to the “elbow” and Lowe said “yes”.

13 Several pages later in that transcript at p 5, the undercover operative again asked if he would have it by Friday and Lowe responds on this occasion “I got it now, he’s - the boss dropped it off at my house”. In my view this appeared to be an attempt to reassure the UCO that everything was okay in respect of the “elbow” for Friday. That very afternoon Lowe called Sinkovich, see exhibit NN1, and Sinkovich told Lowe that he was just heading off now to Lowe’s place and said that he would be there in half an hour or twenty minutes.

14 On 3 July 2008 the meeting in respect of the “elbow” was confirmed for 12 noon on 4 July 2008. I am satisfied beyond reasonable doubt that the offender Sinkovich was indeed the person Lowe referred to as “the boss” and also that Sinkovich was the person to organise the collection and on-supply to Lowe. Accordingly so far as the joint criminal enterprise was concerned to supply the elbow, the offender was slightly above Lowe in the hierarchy.

15 On 4 July 2008, the UCO met with Lowe and Tutton just before midday at Swettenham Road for the supply of one pound (sixteen ounces) of methylamphetamine for $32,000. They entered the undercover operative’s car with Lowe in the front passenger seat and Tutton in the rear. Lowe removed the three packages from his backpack. Tutton passed him an esky from which Lowe removed an ice pack to keep the drugs cool. The gross total weight supplied to the UCO during this transaction was 512.8 grams. Later analysed and weighed it showed a net total of 443.8 grams. The UCO then handed over the money to Lowe and as he began to count it other police officers moved in and all were arrested. The drugs were seized, as was the $32,000 in cash.

16 At 12.20pm the same day search warrants were executed at premises at 11 Bernardo Street, Rosemeadow. Lowe was leasing those premises. When police entered those premises, the offender Sinkovich was sitting on a lounge watching “Underbelly”. He told police that the house was not his, but he had stayed there overnight. Police noticed that the bonnet of his car was still hot.

17 As earlier indicated the police, following the execution of that search warrant, located 479.6 grams of methylamphetamine in various packages in the freezers. They found eighteen cannabis plants being hydroponically grown and 1650.4 grams of packaged and loose cannabis leaf. They also located various firearms and about $30,000 in cash.

18 The offender Lowe pleaded guilty to charges in respect of all drugs and other items located in those premises. I have referred to this evidence as when taken in conjunction with the listening device material presented in the offender’s trial (some of which I have referred to) I am satisfied beyond reasonable doubt that Lowe was substantially involved in drug trafficking and that this offender had a similar involvement.

19 In respect of count 1, that is knowingly take part in the supply, my assessment of the objective seriousness of the offence is that it falls within the mid range for offences of this type. The offender was an integral part of the supply, allowing Lowe to conduct the actual transaction.

20 In respect of count 2, a standard non-parole period of ten years applies. Section 54B of the Crimes (Sentencing Procedure) Act provides that a court is to set the standard non-parole period fixed for the offence, unless the court determines there are reasons for setting a non-parole period which is either longer or shorter than the standard non-parole period. In accordance with the decision in R v Way one must ask whether reasons exist for not imposing the standard non-parole period. That question is to be answered by considering the objective seriousness of the offence in order to determine whether it falls within the mid range of objective seriousness for offences of the relevant kind. This assessment includes consideration of the applicable circumstances of aggravation and mitigation provided for in s 21A(2) and s 21A(3) and also having regard to the general provisions of s 21A(1)(c) of the Crimes (Sentencing Procedure) Act.

21 In respect of this charge of supply not less than the commercial quantity, I am satisfied as I have already indicated that it involved a considerable degree of planning. First there were those negotiations between Lowe and the UCO in respect of the purchase price and the time frame when the delivery could be made. This offender was the go to man for the supply of the commercial quantity. It involved this offender organising for the supply and collection of the commercial quantity and then organising its supply to Lowe so that he could on-supply it to the UCO. A driver had to be organised to take Lowe and Tutton to the Swettenham Road location. A large sum of money changed hands. The amount supplied was almost twice the prescribed commercial quantity (250 grams). The offender Sinkovich waited at Lowe’s premises while the transaction was going down. My assessment of the objective seriousness of this offence so far as this offender is concerned, is that it falls slightly above the mid range.

22 The factors that I have taken into account under s 21A(3) are that the offender does not have any significant history of criminal offending. Accordingly it must be said that he has reasonable prospects of rehabilitation. There has been no remorse exhibited, indeed despite an overwhelming prosecution case he continues to deny his guilt. The courts have said time and time again that those who involve themselves in trafficking of illicit drugs for profit can expect to receive substantial custodial sentences.

23 SUBJECTIVE CIRCUMSTANCES

24 The offender is now fifty-four years of age. He has only a minor criminal record, being four convictions in 1974/75 for which he received small fines. The pre-sentence report (dated 5 November 2009) prepared by Shannon Mulligan, Probation and Parole Officer, is exhibit B. It contains the following background information.

25 The offender was born in Croatia and emigrated to Australia with his mother when he was four years of age, his father having relocated to Australia some three years prior. He was educated to School Certificate level prior to undertaking an apprenticeship as a heavy vehicle mechanic, specialising in radiator repairs and servicing. He was employed in various companies before ultimately commencing his own business in 1989. He informed the Probation Officer that he ultimately closed down his business in order to pay costs associated with the property settlement following the dissolution of his marriage. Since he has been in receipt of a parenting payment given his role as sole caregiver to his four children. He had two other children by an earlier de facto relationship. It appears that the offender gained full legal custody to three of his younger children. The Family Court made a final parenting order on 30 July 2007 granting residency to the offender.

26 Since his incarceration Family Law Court action was again initiated in respect of the two youngest of the offender’s children (being fourteen and ten years). On 17 August 2008 residency and responsibility for those two children went to the offender’s twenty-one year old daughter, Stacey, pending a further court order. These proceedings are apparently scheduled to return to the court on 15 December 2009. The Probation Officer was advised that the offender’s fourteen year old daughter currently resides with her mother.

27 The offender has continued to receive the support of his family during his remand. In his present custody he is employed as a sweeper and has successfully completed the Hygiene Operation and Workshop Education Program.

28 He informed the Probation Officer that he had previously been the President of the Wollongong Chapter of Rebels Motor Cycle Club. However, he retired from the club some years ago but continues to retain his membership status as a result of his having attained twenty years of service.

29 Exhibit 1 is a report (dated 5 November 2009) under the hand of Professor Stephen Woods, clinical and forensic psychologist. That report indicates that the four daughters from his now former partner are aged twenty-one, eighteen, fourteen and ten. The offender informed the psychologist that his eighteen year old daughter suffered extensive and severe facial injuries when aged about three following her attack by a dog. Due to her young age facial surgery could not be commenced for some years and she has experienced a difficult childhood, being the subject of cruel jokes by other children. She is apparently to undergo further reconstruction facial surgery in early 2010.

30 The offender stated that his former partner was deeply traumatised by the dog attack and required anti-depressant medication. Her mental state deteriorated and she ultimately suffered a mental breakdown. Stacey, the eldest daughter, stated that her mother was subsequently diagnosed as suffering schizophrenia. In 2003 the children were removed from their mother’s care by DOCS and returned to the offender. In order to care for them he sold his radiator business and was granted a sole parenting pension in approximately 2005. He and the children have since resided in rental accommodation, that is since about 2005.

31 His psychologist stated that the offender disclosed to feeling he has failed his children. He reported to suffering sleep disturbance and to being unable to stop ruminating and worrying about them. Upon consideration of the psychologist’s report I am satisfied that the offender’s incarceration will most likely negatively impact upon the children. That view is confirmed by my reading of the affidavit of Stacey Sinkovich dated 30 September 2008 prepared for an earlier bail application (now exhibit 3).

32 The psychologist concluded that his assessment of the offender was that he is suffering from a range of symptoms of adjustment disorder with mixed anxiety and depressed mood (severe). He stated:

33 “Whilst it is to be expected that any reasonable parent would suffer grief and loss with depressed mood as a result of being incarcerated and thus separated from their family, it is likely that Mr Sinkovich’s reaction has been particularly aggravated by his awareness of and concern for his children’s special circumstances. The risk of Mr Sinkovich’s condition deteriorating to the extent that he develops a major depressive order must be considered.”

34 Exhibit 2 contains various reference/testimonial material. They generally refer to him as being a valued, trusted and honest person who has a strong commitment to his family. The letter (undated) of Eralp Hassan stated that the offender had been a positive influence upon him and when Mr Hassan’s fourteen month old son was involved in a motor vehicle accident leaving him paralysed, the offender organised a benefit night to send the child overseas for medical treatment.

35 I have considered the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. These courts continually see the devastating impacts on the lives of so many people, both young and not so young, of these drugs. Accordingly in respect of offences of this nature the element of deterrence both specific and general is a significant factor to be taken into account when considering the appropriate sentence.

36 In considering the appropriate penalties, I have also turned my mind to the question of totality. The variation in what is the standard non parole period for this offence comes about only as a result of my consideration of the totality issue.

37 At fifty-four years of age, this will the first time the offender has been required to serve a custodial sentence. In my view this is sufficient reason to make a finding of special circumstances and vary the statutory ratio. When dealing with offences after trial for which a standard non-parole period applies, there must be an appropriate relationship between that period and the objective criminality of the offence regardless of the other matters that may be taken into account by way of mitigation.

38 Mr Sinkovich can you please stand. In respect of both offences you are convicted. Concerning the first offence of knowingly take part, I sentence you to a non-parole period of two years to date from 4 July 2008 and to expire on 3 July 2010. I sentence you to an additional term of two years to expire on 3 July 2012.

39 In respect of supplying a drug not less than the commercial quantity, I sentence you to a non-parole period of nine years to date from 4 July 2009 and to expire on 3 July 2018. I sentence you to an additional term of four years to expire on 3 July 2022. You will become eligible for parole on 3 July 2018.

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