R v Sopronick

[2014] NSWDC 12

District Court

New South Wales

Medium Neutral Citation:	R v Sopronick [2014] NSWDC 12
Hearing dates:	7 February 2014
Decision date:	07 February 2014
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment consisting of a non-parole period of 2 years and a head sentence of 5 years.
Catchwords:	CRIMINAL LAW - Sentence - Attempt to possess commercial quantity of prohibited drug - Gamma-butyrolactone - GBL - Receiving package containing drug
Category:	Sentence
Parties:	The Crown Benjamin Michael Sopronick
Representation:	Mr Hatfield - Crown Director of Public Prosecutions - Crown Michael Bowe - Offender
File Number(s):	2013/20877

SENTENCE

1. HIS HONOUR: Judges have to sentence offenders for their involvement in a wide variety of illegal drugs. Not all of those drugs are equal in the harm that they cause to the users of them, but rarely is there ever evidence put before a judge which would enable an informed decision to be made as to whether one particular drug causes more harm than another. In any case, authority in New South Wales suggests that Parliament has decided how serious various drugs are by attributing particular quantities to them in appropriate legislation.

1. In this case the offender is to be sentenced for attempting to possess more than seven kilograms of a drug known Gamma-butyrolactone, more commonly known as GBL, in circumstances where the commercial quantity of that drug is one kilogram. Attempting to possess the commercial quantity exposes the offender to life imprisonment. So looking only at the quantity which the offender attempted to possess and the definition of the commercial quantity of that drug the offender's criminality was of high order.

1. But there is another factor, which it is agreed between the Crown and Mr Bowe who appears for the accused, that I need to take into account. I was asked to take into account that the street value of the drugs which the offender attempted to possess was between $32,850 and $43,800. To put that into context a street value of seven kilograms of cocaine or heroin would have been in the millions. So in assessing the offender's criminality I will take into account a number of factors, including that there was seven times the commercial quantity involved, and that the street value of the drugs was in comparison to many other narcotic substances relatively low.

1. The offender knew a man who has not been named in court and to whom we have referred as Mr X. The offender, who is gay, was a very close friend of Mr X. He enjoyed his company and regarded him as a good looking, successful, caring and honest man. Mr X was a user of GHB, a drug treated identically to GBL, the relevant drug in this case. In that regard Mr X was doing something which is quite common in a gay community using GHB for recreational purposes. The offender too was a user of that drug. So when Mr X asked the offender to take delivery of a package, for no financial award to the offender, he agreed, despite suspecting, to what must have been a level approaching certainty, that the package contained drugs.

1. So it was that on 3 January 2013 Customs were able to intercept a package containing approximately 7.3 litres of GBL addressed to a Benjamin Slater at the offender's address. Testing revealed that there were drugs contained within the package and these were replaced with an inert substance. That explains why the charge that Mr Sopronick faces is one of attempt.

1. The package was given to a police officer who, pretending to be a UPS courier driver, tried to deliver the package. No one was home the first time the driver went, so a delivery slip was left with a telephone number for the consignee to ring. Shortly afterwards someone who identified himself as "Ben" rang the driver. This was the offender contacting the driver, who returned to the premises and gave the package to the offender. There was a listening device within the package and what could be heard thereafter was the package being opened and moved. After that the offender went out to dinner. When he came back police knocked on the door. Fearing detection the offender threw the consignment out the window. Police entered the premises and arrested the accused and seized the damaged packages from the street.

1. It is the offender's case that he was acting for his friend, not for any payment, and that his role was simply to receive the package and hand it over to either Mr X or someone nominated by him. Police obviously intervened before that could occur. There is no evidence to suggest what the offender said was inaccurate. I will accept that he has demonstrated on the balance of probabilities that his role was limited to that which I have described.

1. It is important to remember that this was not an isolated incident. The offender faces no charges in relation to any prior importations, but admitted in evidence that he had done something similar a few times before. Of course he is not to be sentenced for offences with which he has not been charged, but in those circumstances he is not entitled to say that this was the only time that he had acted this way. A leniency that he would otherwise be entitled to is denied him.

1. The offender gave evidence as to his life. It is clear that he is incredibly hard working and industrious, and before his arrest was in an occupation that he enjoyed. He was entitled to be proud of his success in achieving that position through the hard work that he had put in, including studying. He accepts that he only has himself to blame for the position he now finds himself in, in gaol with a prospect of him remaining there for some time to come.

1. The offender has one prior conviction for drug possession but gave evidence that he had been using drugs well beyond that. It seems to me that drug use was so common in the circles in which the offender mixed that he had a distorted view as to the seriousness of drug use and drug possession. Since going into custody no drugs have been detected in his system, apart from a dirty urine analysis as to which was done very soon after he entered into custody and which probably resulted from drug consumption before his arrest.

1. I accept that the offender is remorseful for what he has done. Perhaps the best evidence of that comes from something that I will speak about with some circumspection. He has spoken to police in an effort to assist them. The value of that assistance was not high, but it appears that the offender has done what he could. That is of relevance of course to any discount for assistance, but also assists in the demonstration of remorse.

1. The offender entered a plea of guilty to this matter at what was a fairly late stage and so in order to reflect his willingness to facilitate the course of justice and also to reflect his assistance I will impose a sentence upon him which is about 15% less than it would otherwise have been.

1. This is a case where the offender was, in effect, taken advantage of. Mr X needed some way of getting GBL into the country in a way that reduced the risk that he would be detected as a drug importer. It was he who took advantage of Mr Sopronick's friendship with him. Mr Sopronick was foolish in the extreme to do what was asked of him because, as he well knew at the time, what he was doing was involving himself in something that was almost certainly a serious criminal offence.

1. The Crown handed up a schedule of what it said were comparative cases. It revealed a wide disparity in sentences imposed in various courts across the country for offences related to GBL or GHB. I have to say that I do not recall any other offence where there is such a variation in sentencing. This of course has made my job harder. The comparative cases have been of little assistance. I have approached this matter taking into account the maximum penalty, the quantity involved, the offender's role, the value of the drugs and the offender's subjective circumstances in deciding the appropriate sentence.

1. I have also had to make a decision as to the non-parole period. Under Commonwealth law it use to be the case that there was what was described as a "norm" that the non-parole period would usually be 60 to 66% of the head sentence. The High Court has relatively recently held that there is no such norm. There is a tendency on the part of the judicial officers, despite that decision, to continue to do something similar to what they had been doing before.

1. I prefer to consider what was happening before what was said to be the norm was introduced, and before in State law statutory ratios were introduced. In those days the non-parole period was often in the order of 40% of the head sentence. I consider that current sentencing for Commonwealth offences would often see a non-parole period of that proportion imposed, and so it will be in this case. The non-parole period reflects the minimum period that I consider the offender should spend in custody given all the circumstances of this case.

1. The offender is sentenced to imprisonment. I set a non-parole period of two years to date from 22/01/13 and a head sentence of five years. The non-parole period will expire on 21/01/15 on which day the offender is eligible to be released to parole.

1. Mr Sopronick, do you understand what I have just done. You must spend at least two years in custody but it is backdated to when you were arrested. So you must remain in custody until 21 January next year. You are eligible to be released on parole after that. Whether you will be released or not is not a matter for me, it is up to the Parole authorities. If you are released you will be serving a sentence, although you will be in the community, until 21/01/18. So while you are on parole there is always a risk that if you do something wrong you will go back into custody to serve out the remainder of your sentence. Do you understand that?

1. OFFENDER: Yes. your Honour.

**********

Decision last updated: 17 March 2014