R v Tesoriero

[2019] NSWDC 617

District Court

New South Wales

Medium Neutral Citation:	R v Tesoriero [2019] NSWDC 617
Hearing dates:	12 April 2019
Date of orders:	16 July 2019
Decision date:	16 July 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	Full time custodial sentence. Decision at [114] - [118]
Catchwords:	CRIME – sentencing – multiple drug offences – firearms offence – remorse shown – special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Firearms Act 1996
Cases Cited:	Hewitt v R (2007) 180 A Crim R 306 Lowe v R (1984) 154 CLR 606 Pearce v R (1998) 194 CLR 610 The Queen v Pham (2015) 256 CLR 550
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Daniel Tesoriero (Offender)
Representation:	Counsel: Ms K Tennant (Crown) Mr D Provera (Offender)   Solicitors: ODPP (Crown) CRIMLAW Criminal Defence Lawyers (Offender)
File Number(s):	2015/371050
Publication restriction:	None

Judgment

1. The Offender appears before the Court today for sentencing after pleading guilty to the charges relating to H number ending 395 on the Crown Sentence Summary (Exhibit A), including an ex-officio account to which attaches a Form 1.

2. In sentencing, the Court has regard to the guideposts of maximum penalties and the standard non-parole period, if one exists. The maximum penalty is Parliament’s assessment of the seriousness of the offending. The standard non-parole period is to be applied unless circumstances justify a departure from it.

3. The offences for which the Offender is to be sentenced and the applicable guideposts are:

1. the ex-officio count, being supply more than the commercial quantity of prohibited drug in breach of s25(2) of the Drug Misuse and Trafficking Act 1985, being 295 grams of methylamphetamine. That offence carries a maximum penalty of 20 years imprisonment and/or a fine of 3500 penalty units, and has a standard non-parole period of 10 years. I note that sequence 46 attaches to this count by reason of a Form 1 document which has been signed;

2. sequence 8 being 5.13 grams of methylamphetamine, sequence 10, being 13.98 grams, sequence 47 being 80.08 grams and sequence 48 being 223.8 grams, which are all charges of supply more than the indictable quantity of a prohibited drug in breach of s25(1) of the Drug Misuse and Trafficking Act. Those offences carry a maximum penalty 15 years imprisonment and/or a fine of 2000 penalty units for each of those three offences; and

3. sequence 9, being supply prohibited firearm to a person unauthorised to possess it in breach of s51(1)A(a) of the Firearms Act. That offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years imprisonment.

4. In addition, by admitting guilt to the matters on the s166 certificate, the Offender has requested that the Court sentences him for the following additional charges, being sequence 3, 50 grams of testosterone, sequence 4, 0.73 grams of methylamphetamine and sequence 5, 0.72 grams of methorfhan, being charges that possess a prohibited drug in breach of s10(1) of the Drug (Misuse and Trafficking) Act.

5. Also on the s166 certificate is sequence 49 being 1.7 grams of methylamphetamine and sequence 50 being 1.75 grams of methylamphetamine being charges of supply between the small and indictable quantity of a prohibited drug in breach of s25(1) of the Drug (Misuse and Trafficking) Act.

6. There is also the charge I have mentioned on the Form 1 signed by the parties. By signing that the certificate to that document, I confirm I have taken that charge into account as it attaches to the relevant offence, being the ex-officio count in the Crown’s summary. The charge on the Form 1 is to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principle offence to which the Form 1 relates. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence and the second is the community’s entitlement to extract retribution for serious offending. That charge is sequence 46 being knowingly deal with the proceeds of crime in breach of s193B(2) of the Crimes Act and as I have already said, it attaches to the ex-officio count.

7. Finally there is the backup charge being sequence 2, being the charge of possess a prohibited drug, which the Crown withdraws and I dismiss.

8. The Offender was born in 1985 and is now 33 years of age. The offending was committed between 21 July 2015 and 17 December 2015 when the Offender was 29 and 30 years of age. The Offender was arrested and charged on 17 December 2015.

9. On 17 December 2017, the Offender was committed for sentence in the Gosford Local Court. The Offender traversed his plea on 14 June 2018, having the matter remitted to the Gosford Local Court on 12 October 2018. The Offender was committed for trial and subsequently pleaded guilty to an amended indictment on 13 December 2018. The Offender has been in custody for these offences since his arrest on 17 December 2015, and his sentence will be backdated to that date.

10. The evidence on sentence comprised the following:

1. the Crown Sentence Summary (Exhibit A);

2. a report by Istvan Schriener, Psychologist, dated 13 May 2018 (Exhibit 1);

3. a supplementary report by Mr Schriener dated 8 April 2019 (Exhibit 2); and

4. the Offender’s Written Submissions (MFI 1).

11. The facts agreed between the Parties are lengthy and provide as follows:

12. In July 2015, investigators attached to Gosford Detectives formed Strike Force Aylesbury to investigate supply of prohibited drugs and firearms by the Offender. Investigators employed an undercover operative, surveillance and intercepted telephone services used by the Offender. Investigators intercepted the Offender’s telephone. Approval was sought and obtained from the Assistant Commissioner for an authorised controlled operation and undercover officer Zane met with the Offender and at times contacted him on the intercepted telephone service. These intercepted telephone calls captured the Offender both purchasing and supplying methylamphetamine.

13. The following facts relate to sequences 8 and 9. Sequence 8 being supply indictable quantity of prohibited drug, 5.13 grams in respect of which a guilty plea was entered on 12 October 2018 in the Gosford Local Court. Sequence 9 is supply of a pistol, in respect of which a guilty plea was entered on 12 October 2018 in the Gosford Local Court.

14. On 21 July 2015, undercover officer Zane and the Offender made arrangements to meet, for the purposes of the Offender supplying the undercover officer with a quantity of methylamphetamine. Undercover officer Zane drove to Narellan McDonalds and parked his car in the car park at about 2pm. About ten minutes later the Offender and an associate drove into the car park in a silver Mercedes Benz. The car was driven by the Offender’s associate and the Offender was seated in the passenger seat. After a short time the undercover officer, who I shall refer to simply as Zane, got back into his car and followed the silver Mercedes to “Don’s Tiles Australia” in Narellan. Zane got out of his car and approached the Offender, who introduced himself as Nick.

15. They had a conversation for a short time, which was electronically recorded. During the conversation Zane used his right hand to indicate a pistol by extending his index finger and middle finger and using his thumb pressed down on his index finger. At 2.31pm Zane and the Offender got back into their cars and they left the location. The mobile number 0412 132 991, which was used by the Offender and was subject to intercept, was entered into Zane’s phone, saved under the contact name “Nick”.

16. At about 3.30pm Zane was directed to meet the Offender at a car park in Narellan town centre. Ten minutes later the silver Mercedes Benz arrived and parked behind Zane’s car. The Offender entered the passenger side of Zane’s car and a conversation took place, which was recorded. During the conversation, the Offender placed two sandwich bags containing a white crystalline substance in the centre console of the car. The Offender left the car a short time later and returned to his car before leaving the car park.

17. At 5.37pm, the silver Mercedes returned and parked next to Zane’s car. The Offender again entered the car and sat in the passenger’s seat. That conversation was also recorded. During the course of the conversation, the Offender handed Zane a brown paper KFC bag. Zane saw a black coloured shopping bag inside the brown paper bag and inside that was a silver coloured revolver style firearm with a wooden handle.

18. Zane handed the Offender $6,800.00 which he took with his right hand. Zane shook the Offender’s hand and the Offender got out of the car. He returned to the Mercedes which then left the car park. The substance provided by the Offender was analysed and found to be methylamphetamine with a total weight of 5.13 grams.

19. The purity of the methylamphetamine in one of the sandwich bags was found to be 61% and 68% in the other. The firearm was subsequently analysed and found to be an imitation Smith & Wesson model 3 Schofield six chamber revolver. The firearm displayed similar external features in the form of size and appearance although it was not designed to propel a projectile by means of an explosive.

20. The following facts relate to sequence 10 being supply an indictable quantity of prohibited drug 13.98 grams methylamphetamine in respect of a which a guilty plea was entered on 12 October 2018 at the Gosford Local Court.

21. On 23 July 2015, Zane called the Offender on the number he had previously provided. There was no answer. A short time later, he received a call from the Offender on that number and they had a short conversation, which was recorded.

22. On 25 July, Zane again called the Offender on that number, and a short time later he received a call from the Offender from a different number, being 055 ending 283. They had a conversation which included the following:

“UCO: Bro just with those cars, they weren’t the best. I’m not bagging it otherwise I wouldn’t be talking to you. I’m just saying you know how you said you had those luxury cars overseas?

Offender: yeah, yeah

UCO: I’ll probably just wait for those to come.

Offender: Yeah that’s fair enough

UCO: What I really need though, are those trucks. I got people hassling me for them man.

Offender: Bro honestly, I’m just waiting to hear back from a mate about them… As soon as I hear from him I’ll call you

UCO: Yeah sweet man. Well for Tuesday I’ll just get the rest of the tyres you owe me.

Offender: Yeah buddy, not a problem”

23. At about 4.05pm that afternoon, Zane received a text message from the Offender using telephone service number ending 991. The Offender said, “You like Cadillacs bud”. Zane replied, “Yeah bro why’s that?” The Offender replied, “Cause you want it, it’s yours for 12K and when I get the money back to ya I will give you 15 and you can give back”.

24. At 10.51pm that evening Zane received a text message from the Offender from the same number ending 991. The Offender said, “LOL shit that was to the wrong person that message but I have one for sale if you want it”. Zane replied “Ha ha thought so all good bro”.

25. On 28 July, Zane sent the Offender a text message asking if they were catching up that day. They had a short conversation at 3.05pm which was recorded. After the phone call the Offender sent Zane a text message, the message said:

“Hey bud sorry about the inconsisity [sic] but look… But next time when I see u instead of getting the front cuts and that getting the whole car as u will be Quite happy with it and I have a few toe [sic] truck drivers so delivery will never be an issue that I give y my word on.”

26. Between 1 and 3 August, Zane and the Offender communicated by text message and phone in relation to meeting up for the purpose of another supply. A further conversation took place on 11 August and 13 August with arrangements made to meet on 14 August.

27. On 14 August at 6.10pm, Zane attended the car park at Bunnings located in West Gosford. A short time later the Mercedes Benz parked directly next to Zane’s car with the Offender occupying the driver’s seat, a female passenger in the front seat.

28. The Offender exited his vehicle and sat down in the front passenger seat of Zane’s vehicle. They had a conversation which was electronically recorded. During the conversation, the Offender reached into his right pocket, to retrieve a knotted sandwich bag containing crystalline substance. As he was doing this, the Offender held a mobile phone and called Zane’s mobile. Zane’s phone began to ring and the number showing was ending 489. Zane saved this number as “Mick 2”.

29. The Offender then handed Zane the sandwich bag and Zane passed $1,000 to the Offender which he began counting. After he finished, Zane then handed the Offender a further $2,000. Zane and the Offender then shook hands before the Offender got out of Zane’s car and re-entered the Mercedes through the driver’s door before driving away.

30. The substance provided by the Offender was analysed and found to be methylamphetamine with a total weight of 13.9 grams and a purity of 79.5%.

31. The following facts relate to sequence 47 (previously sequence 11), namely supply indictable quantity of prohibited drug, being 80.08 grams of methylamphetamine, in respect of which a guilty plea was entered on 12 October 2018 at the Gosford Local Court. Between 20 and 22 August 2015 Zane made and received received a number of calls and text messages from the Offender using mobile service ending 489. On 2 September 2015, further calls and messages were exchanged with Zane telling the Offender he was after “two cars”.

32. Further texts and calls were made and exchanged on 9, 10, 14, 15, 21 and 22 September. On 22 September 2015 arrangements were made between Zane and the Offender to meet for the purpose of further drug supply. At 2.25pm Zane attended the McDonald’s in Warnervale and parked in the car park. A short time later the Offender got out of the silver Mercedes Benz and walked towards Zane’s vehicle.

33. The Offender entered Zane’s vehicle and sat in the front passenger seat. Zane and the Offender had a conversation, which was recorded. During the conversation the Offender reached into his pants and removed a resealable plastic bag containing a white crystalline substance. He put it into a black shopping bag which was placed near his feet. While the bag was at his feet he showed Zane two separate knotted bags. Zane handed the Offender a white plastic bag containing $15,250 in cash. The Offender remained in the car for a short time before returning to his motor vehicle. The Offender returned and had a further conversation with Zane before returning to his car and leaving the car park.

34. The substance provided by the Offender was analysed and found to be methylamphetamine with a total weight of 80.08 grams, the purity in one of the bags was 78% and 75.5% in the other.

35. The following facts relate to sequence 48 (previously sequence 12), being the supply of an indictable quantity of a prohibited drug, namely 223.8 grams of methylamphetamine, in relation to which a guilty plea was entered on 12 October 2018 in Gosford Local Court. Between 4 October and 27 October Zane and the Offender were in contact with each other with the Offender using mobile service ending 429. These calls and text messages were all lawfully intercepted.

36. On 27 October arrangements were made between Zane and the Offender for a further supply to take place. This supply was for approximately 8 ounces (226.79 grams) of methylamphetamine.

37. On 27 October at 1.45pm Zane attended Thornleigh McDonald’s and parked his car in the car park. At 1.55pm a blue coloured Toyota FJ Cruiser entered the same car park and parked next to Zane’s vehicle. The Offender got out of the passenger side of the cruiser and walked over to Zane’s vehicle. They began a conversation, which was again recorded. During the conversation the Offender leaned into the car and placed a brown paper bag under the front seat. Zane shook hands with the Offender and then retrieved the brown paper bag to look inside. Zane noticed there were two resealable plastic bags inside each containing a crystalline substance. Zane wrapped up the bag and put it back under the seat.

38. The Offender opened the rear passenger door and took possession of a grey Timberland branded shoebox containing $36,800 in cash. Zane got out of the vehicle and the Offender sat on the passenger seat of the vehicle. A short time later the men shook hands and the Offender re‑entered the cruiser he had arrived in before leaving the car park.

39. At 2.50pm Zane returned to the same car park where he had previously met with the Offender. At 3.05pm the cruiser returned to the car park and parked. The Offender approached Zane’s vehicle and then the men had a conversation, which was recorded. During the conversation the Offender placed a resealable plastic bag containing a crystalline substance into the footwell of the driver’s side door. The substance provided by the Offender was analysed and found to be methylamphetamine with a total weight of 223.8 grams. The purity of the methylamphetamine in the first two bags was tested as 75% and 78% respectively, while the purity of the final bag was not tested. In total, the Offender supplied Zane with 322.91 grams of methylamphetamine between 21 August and 27 October 2015.

40. The following facts relate to sequences 49 and 50, being the related offences on the s166 Certificate. As part of the investigation, numerous calls and text messages made by and sent to the Offender were intercepted and recorded by the Police. A number of these calls showed that the Offender was supplying methylamphetamine to other customers in addition to Zane.

41. For Sequence 49, being supply indictable quantity of prohibited drug being 1.75 grams of methylamphetamine, the facts are as follows. On 25 September 2015, at 4.18pm, the Offender received a phone call on a mobile service ending 429 from a male who identified himself as Nathan:

“‘Nathan’ asked the Offender: “have you got?”

The Offender replied: “What’s that?”

‘Nathan’ asked again: “Are you good?”

The Offender replied: “Yeah always”.

‘Nathan’ then asked the Offender how much for a half b (half an eight ball; 1.75 grams).

The Offender replied: “Four hunge”.”

42. The male agreed with that price and the Offender told the male he would give the drugs to another associate known as ‘Pom’ who would meet up with him. Further intercepted calls show that the supply of 1.75 grams of methylamphetamine took place in Narellan.

43. The following facts relate to sequence 50, being supply indictable quantity of prohibited drugs, namely 1.75 grams of methylamphetamine. On 29 September 2018 at 9.15pm the Offender received a call on mobile phone service ending 429. The Offender asked the male “Same again?” The male replied “No, just half.” The Offender told the male to ‘come down’. At 11.13pm the Offender called the same male and said to him that arrangements were made to meet at a service station known to both men. The male asked “You wanted four, yeah?” and the Offender replied “Yeah, yeah, yeah.” At 12.02am the Offender called the male and told him he was parked and just to pull up beside him. The Offender met up with the male and supplied him with 1.75 grams of methylamphetamine.

44. The following facts relate to the ex-officio charge, supply commercial quantity of prohibited drug, being 495 grams of methylamphetamine, to which a guilty plea was entered on 13 December 2018 at Gosford District Court. The following facts also relate to sequence 46 (previously sequence 6), deal with the proceeds of crime, namely $8,870.00 on the Form 1 attaching to the ex-officio charge of commercial quantity.

45. On 14 November 2015 Zane received a text message from the Offender using mobile service ending 565, the message read “Hey bud it’s old mate with the cars, new number, you want to catch up this weekend”. Zane replied that he wasn’t available this weekend but would call the Offender in the coming days. Between 19 November and 27 November Zane made and received a number of calls and text messages to and from mobile phone services ending 565, 429 and 489. These calls and text messages were to and in response to calls and texts sent by the Offender.

42. Between 14 December and 17 December 2015 Zane made and received a number of calls to and from the Offender using mobile service ending 565. On 14 December Zane called the Offender and spoke with him for a period of time. During the conversation Zane told the Offender “I need 10 cars and he wants to get another 5.” The Offender replied “Done.” Zane asked if it was the same stuff he had been giving him and the Offender replied that he thinks it might be different. Zane asked the Offender what the price would be for 15 cars and the Offender said he would get back to him.

43. The following day the Offender sent Zane a text message saying “Hey bud, all the cars are cleaned and washed, you're looking at around 45 mark each.” On 16 and 17 December the Offender was also calling another male, which was intercepted and, during a call on 16 December, the Offender said at 10.12pm “I need it tonight because I need to see him at 10 in the morning cuz”. The male replied “Yeah”. The Offender said “And I just don’t want to fuck around.” Following that arrangements were made for the male to meet up with the Offender.

44. A further call was intercepted at 11.58pm, where the same male could be heard telling the Offender he was passing through Terrigal now and would be with the Offender soon. Four minutes later the Offender called that male back and said to him “Oi I forgot to tell you can you put 15 in, 15 in one and two and a half in the other?” The male replied that it was already done.

45. At 12.19am on 17 December 2015 Police received information that the Offender and the male were meeting up and surveillance was conducted to monitor the meeting. The Offender and the male were seen standing together at the intersection of Kite Crescent and Hamlyn Road. Two motor vehicles were parked a short distance away.

46. On 17 December 2015, at 10am, the Offender was seen carrying a brown cardboard box from a hotel he was staying in to his motor vehicle. The Offender entered the passenger seat of a dark blue Mercedes Benz with another male in the driver’s seat and two females seated in the rear of the car. The two females were searched and were found to be in possession of $2,000. It is accepted between the Parties that this money was the Offender’s money and it was the proceeds of crime.

47. At 11.31am surveillance conducted on the Offender captured him in the blue Mercedes, still in the passenger seat with the car travelling north on the Central Coast Highway. Police surveillance continued to monitor the car with the Police following it to a McDonald’s car park in Warnervale. Police saw the motor vehicle enter the car park and park the motor vehicle at approximately 12.07pm.   

48. At 12.36pm a number of plain clothes Police approached the Offender and began speaking with him, They asked the Offender for ID and noticed he was visibly shaking as he handed Police his driver’s licence. Police asked the Offender if the car was his and he told them it was and that he had bought it the previous day. The Offender was asked if there was anything in the car that shouldn’t be. The Offender replied “No, go ahead and search it, rip it to pieces if you want, there’s nothing in there, go on, have a look.”

49. One of the officers began searching the motor vehicle and a short time later a cardboard box was located in the front passenger footwell of the motor vehicle, inside the cardboard box were a number of plastic bags containing a white crystalline substance. The Offender was placed under arrest by Police and cautioned. When asked who owned the box the Offender told Police he had never seen it.

50. Located in the glove box of the car were three resealable bags all containing a white crystalline substance. During the search drugs were found comprising 495 grams of methylamphetamine.

51. A video recorder was then obtained and a search continued of the rest of the motor vehicle. The Offender was searched by Police and found in the wallet of the Offender was $6,870 in cash. It was accepted as between the Parties that this money was the Offender’s money and that it was the proceeds of crime. The Offender was then conveyed to Gosford Police Station and offered the opportunity to participate in a recorded interview which he accepted. In relation to the cardboard box, the Offender told Police he didn’t even know the box was there. These items were subsequently sent for analysis and found to be methylamphetamine with a total weight of 495 grams. Of that total weight one of the bags, the one containing 434 grams of methylamphetamine, was tested and found to have a purity of 82.5%. It is accepted between the Parties that the Offender believed that he was in possession of only 495 grams (the amount that he had asked DA, that is the co-Offender, for and that he is to be sentenced on the basis that he was in possession of only 495 grams).

52. The following facts relate to sequences 3, 4, 5, being related offences. Sequence 3 is possess prohibited drug 10 grams of testosterone, sequence 4 is possess prohibited drug 0.73 grams of methylamphetamine, and sequence 5 possess prohibited drug 0.72 grams of methorphan. In respect of all sequences, the Offender pleaded guilty on 12 October 2018.

53. The facts are as follows. At 2.12pm on the same date a search warrant was executed at the Gledswood Hills home of the Offender. Located in the bedroom of the Offender were three items which were sent off for testing and found to contain 10 grams of testosterone, 0.73 grams of methylamphetamine and 0.72 grams of methorphan. Those are the facts agreed between the Parties.

54. An essential part of the sentencing exercise is to determine the objective gravity of the offending. The starting point of course is the legislative guidepost to which I have already referred. Next, one has regard to the particular circumstances of the offending in assessing the overall criminality. It is clear from the Agreed Facts that the offending took place over a considerable period of time, with a considerable amount of planning, based on the quick turnaround the Offender was able to provide the undercover operative with drugs and a firearm.

55. The Crown submitted the objective seriousness of the drug offences were at the mid-range, based on the purity of the drugs and the level of the sophistication in the drug-selling operation. The Crown did concede that the objective seriousness of the firearm offence was below the mid-range.

56. It was submitted on behalf of the Offender that the drug offences are in the mid-range of objective seriousness and the firearm offence is in the low range of objective seriousness.

57. The circumstances which exist here demonstrate that the drug offences are at the mid-range of objective seriousness, particularly when having regard to the quantity and purity of the drugs. I also accept that the firearm offence is at the low range of objective seriousness.

58. I now turn to consider the subjective case. It is largely derived from the two psychologists’ reports referred to and also sworn evidence by the Offender.

59. The Offender reported to the Psychologist that he was the eldest of three siblings having a good relationship with his mother and siblings. The Offender described disliking his father at an early age but has grown to respect him. The Offender attended school until Year 11, then departing to complete a four year apprenticeship as a roof tiler.

60. In his early school years, the Offender was diagnosed with ADHD and was prescribed Ritalin. Regarding his mental health, the Offender reported past anxiety and depressive symptoms, which escalated following a home invasion and assault when the Offender was 25 years of age.

61. The Offender started experimenting with drugs at the age of 25, beginning by using cannabis to help him sleep. He described being immediately hooked on ice at the age of 29. The Offender reported that, since being taken into custody, he has completed a drug and alcohol course, having felt that being incarcerated has a positive side. With regard to his account of the offences, the Offender recalled that a friend had put him in touch with the undercover operative to whom he had sold the drugs and the replica firearm.

62. The Offender said to the psychologist that he was motivated by making enough money to support his drug habit and that he was a middle man. He stated to the Psychologist that this was the first time that he had sold illegal substances, although in cross-examination that was shown to be false.

63. Mr Schriener, the psychologist, noted from his assessment that he found the Offender to be suffering from a major depressive disorder whilst being in remission for substance abuse disorder. In his 2019 report, Mr Schriener noted that the Offender continued to receive strong external support from family and friends. The Offender also mentioned a health issue that had started in the last year, where he noticed a lump on his leg and he had recently been told that it may be cancer or a tumour.

64. The Offender gave sworn evidence before the Court and was extensively cross-examined by the Crown Prosecutor. During examination-in-chief, the Offender adopted the history he gave to the psychologist. When asked about the offending behaviour, he said he would never offend in this type again and that custody has been good for him as he has been able to stop taking methylamphetamine. When asked how he would remain abstinent in the community, the Offender stated that he would aim to stay fit and focussed, as well as set goals for the future.

65. The Offender was cross-examined about the extent of his drug use through 2015. He said that he first tried it at a friend’s house and became addicted. The Offender estimated that his habit cost him approximately $300 per day and confirmed that he was selling drugs to support his own habit. The Crown Prosecutor tested the Offender on the facts that the Offender sold approximately $81,000 worth of methylamphetamine over the offending period, in excess of what a $300 a day habit would have been.

66. The Offender was also asked about previously selling cannabis in 2011, which contradicted what the Offender told the Psychologist. It was put to the Offender that his purpose of selling methylamphetamine was for profit which he denied. This was based on the number of text messages exchanged between the Offender and the undercover operative, the level of planning that was apparent from the messages and the use of code words in the messages.

67. The Offender gave evidence that at this point of time he was predominantly only supplying drugs to the undercover operative. With regards to supplying a pistol, the Offender stated that the undercover operative was interested in purchasing a pistol from the person who introduced him to the Offender. The Offender said that he facilitated the purchase of the pistol between his associate and the undercover operative.

68. Notwithstanding the inconsistencies between what was told to the psychologist and certain aspects of his evidence, I generally found the Offender to be a frank and honest witness. He made a number of concessions against his interest and I found that he was not in any way attempting to obfuscate or hinder the Court in the sentence hearing proceedings.

69. The Offender’s mother, Olga Tesoriero, also gave sworn evidence before the Court. She recalled that towards the offending period, she noticed a marked change in the Offender’s behaviour, generally being evasive and not attending family events. Throughout this period, the Offender’s parents continued to assist him financially.

70. Since the Offender went into custody, his mother had noted that her son had shown remorse and embarrassment that he has put himself and his family into this position. His mother stated that when he is released, the Offender will live with his family and work with his father in his caravan business. Mrs Tesoriero also noted that, as a teacher, she has had some exposure to drug use in young people which she believed would be of assistance in managing her son upon release.

71. The Offender’s friend, Ms Bugeja, also gave evidence. She recalled that at the time of the offending she had noticed the Offender become increasingly withdrawn. Since his time in custody, she had noted that the Offender had gone back to the person he was before the offending period.

72. The Court may also have regard to any aggravating or mitigating circumstances particular to the offending, the former to be proven beyond reasonable doubt and the latter on the balance of probabilities. In terms of potential aggravating factors, it was submitted that the supply of methylamphetamine was a planned and organised activity and that it was a series of acts and the offending was committed for financial gain.

73. Plainly, it is clear that the vast number of offences and text messages between the Offender and Zane demonstrated the supply of methylamphetamine was an organised and planned activity. It was found in the matter of Hewitt v R (2007) 180 A Crim R 306 at [24] that the statutory aggravating factor of planning should only be found when the level of planning goes above and beyond what is ordinarily expected of the offence.

74. Experience dealing with Offenders who breach s25 of the Drug Misuse and Trafficking Act shows that it is quite common for planning to occur. I find the planning this Offender took is reflective of the number of charges which he faces and does not in any way aggravate the offending pursuant to s21A. Similarly, as the Offender faces sentencing for 11 offences, it would be inappropriate for his offences to be aggravated by the statutory factor of a series of criminal acts.

75. As stated earlier, I found the Offender to be frank and honest in giving evidence. Whilst there are discrepancies between sworn evidence, the agreed facts and the psychologist’s report as to several matters, including how much money he made from the supply of the drugs, I cannot find beyond reasonable doubt that the statutory aggravating factor of financial gain is made out.

76. The mitigating factors which exist here include the Offender’s guilty plea and the remorse demonstrated by the Offender, which I find was genuine remorse.

77. The Offender has a previous conviction for cultivate a prohibited plant between a small and indictable quantity, having been charged on 26 August 2010. For that offence, the Offender was sentenced to an intensive corrections order. Besides that offence, his criminal history is unremarkable. Whilst the Offender has a relevant criminal history, it does not become a statutory aggravating factor. It does, however, disentitle him to a finding of good character and any leniency which might flow from such a finding.

78. Consistent with my finding concerning remorse and my observations of the evidence of the Offender’s mother, I consider the risk of re-offending to be low and I consider the prospects of rehabilitation to be good.

79. The psychologist diagnosed the Offender as having a substance use disorder, for which he is in remission. As explained previously, it was put to the Offender that he committed this offending for financial gain whilst it was his evidence that he was supplying to fund his habit. It has been found in the common law that addiction can mitigate the offending behaviour in certain circumstances, for example, if the offending is impulsive by reason of the addiction or if the Offender’s state of mind is seriously affected by the use of drugs.

80. The text messages in the agreed facts show that, at the time of the offending, the Offender was in a relatively sound frame of mind whilst interacting with the undercover operative. I find that whilst the Offender was addicted to methylamphetamine, at the time of the offending, it does not mitigate his moral culpability.

81. The intuitive process of sentencing involves synthesising the objective seriousness of the crime and the subjective circumstances of the Offender to arrive at a sentence that best meets the objectives of sentencing set out on s3A of the Crimes (Sentencing Procedure) Act, which in turn largely reflect the purpose of sentencing in common law, including the protection of society, deterrence, retribution and adequate punishment.

82. The purposes of sentencing often overlap, and may point in different directions and reach different conclusions. Of necessity, the promotion of the rehabilitation of the Offender, if successful, is the best way of ensuring the Offender does not commit further similar offences. Yet, the promotion of rehabilitation may point to a different conclusion or different synthesis and factoring into the sentence adequate punishment and denunciation of conduct. In any event, each of the purposes of sentencing under s3A are guidelines to the fixing of an appropriate sentence and none of them can, nor should, be considered in isolation.

83. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime, having regard to the objective circumstances. In sentencing, there must be reasonable proportionality between the sentence and the circumstances of the crime. The relative importance of the objective facts and the subjective features will vary in every case, and due weight must be given to the objective circumstances as the Court engages in the process of assessing the appropriate sentence by way of instinctive synthesis.

84. Before sentencing the Offender to imprisonment, I must be satisfied, having considered all possible alternatives that no sentence other than imprisonment is appropriate. In this case, the Crown contended that the s5 threshold has been met and that a term of imprisonment is warranted, with the Offender agreeing with such a contention. I find, pursuant to s5, that the only appropriate sentence for the Offender is a term of full-time custodial imprisonment.

85. In accordance with s22 of the Crimes (Sentencing Procedure) Act, the Court must also, in passing sentence, have regard to the guilty plea, as to the fact it was made, the circumstances in which it was made and the timing of the guilty plea. After taking such matters into account, the Court may impose a lesser penalty than would otherwise be imposed.

86. This matter has a long procedural history including a traversal of plea. The Offender pleaded guilty to all except two charges in the Local Court and, in my opinion, is entitled to a 25% discount for those charges.

87. With regards to the two outstanding charges, one of them placed on the Form 1 and the other to which he pleaded guilty on the amended ex-officio count, I find the Offender is entitled to a slightly reduced discount of 20% for those counts to which he pleaded guilty in the District Court. I also observe that the pleas of guilty were made in the face of a very strong Crown case.

88. Parity arises in this matter by reason of the involvement of the co-Offender. It is a complex process in this particular case. There should be a proper relationship between the sentences imposed on co-Offenders. This requires a comparison of the sentence imposed on each Offender and evaluation of their involvement in the commission of the offence and their antecedents.

89. The decision in Lowe v R (1984) 154 CLR 606 is cited as the principal source of the parity principle. Dawson J, with who Wilson J agreed, summarised the parity principle as follows at 623:

There is no rule of law which requires co-Offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each Offender or his involvement in the offence are different then different sentences may be called for but justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-Offenders for the same offence ought not to be such as to give rise to a justifiable sense of a grievance on the part of the Offender with the heavier sentence or to give the appearance that justice has not been done.

94. It was submitted on behalf of the Offender that in the co-Offender’s sentencing proceedings there was no evidence that showed that this Offender’s role in the drug supply operation was higher than that of the co‑Offender.

95. It was submitted on behalf of the Crown that strict parity does not arise due to the following factors unique to this Offender:

1. there was indicia of ongoing supply and profit;

2. there was evidence that the Offender was involved in a wider-ranging drug supply operation;

3. the Offender is being sentenced for a further four supply charges; and

4. the Offender is not entitled to any reduction for assistance, as his co-Offender was pursuant to s23.

96. The co-Offender’s sentence cannot be totally ignored in sentencing for this Offender, albeit only on the ex officio count. What will occur, however, is a degree of accumulation with the other offending for which this Offender is to be sentenced.

97. It is agreed, and I find, that special circumstance exists so as to vary the statutory ratio of parole to non-parole. This is based on this being the Offender’s first time in custody and the need for further rehabilitation in the community.

98. For the sake of consistency I have had regard to statistics, although mindful of their limited use. For the offence of supply a prohibited drug of less than the commercial quantity the statistical population is over 2,000 cases with over 1,100 of those cases resulting in imprisonment ranging from 18 months to 3 years. For the supply of a prohibited drug of a commercial quantity the population is 280 cases; 262 of those cases resulted in imprisonment with sentences largely ranging from four to six years with non-parole periods ranging from two and a half to four years. For the offence of supply a prohibited firearm the population consists of 27 cases; 23 of which resulted in imprisonment ranging between two and four years with non-parole periods of between 12 months and two and a half years. Notwithstanding the fact that I have referenced those statistics I am mindful of their limited use as explained by Bell and Gageler JJ in the matter of The Queen v Pham (2015) 256 CLR 550 at [49]. I am satisfied however that having regard to those matters the sentence to be imposed on this Offender is not inconsistent with sentences for other like Offenders.

99. Taking into account the time spent in prison prior to today the sentence will commence on 17 December 2015. In terms of discounts, as I have stated previously, the sentences for all offences except the ex officio count will be discounted by 25% while the ex officio count will be discounted by 20%.

100. I intend to impose an aggregate sentence pursuant to s53A of the Crimes (Sentencing Procedure) Act. I am first required to record the sentence which I would otherwise have imposed in respect of each count on the indictment. The Court has a discretion to aggregate sentences in certain circumstances and I believe the circumstances which exist here justify that approach. To approach the sentencing exercise in an alternative fashion would run the risk of imposing a sentence which was, in the circumstances, crushing. So before announcing the indicatives I again note the charge on the Form 1 attaches to the ex-officio count on the indictment.

101. I provide the following indicative sentences, being the sentences I would have imposed but for the fact that I am imposing an aggregate sentence.

102. In relation to the offence being sequence 3 on the s166 certificate, possessing prohibited drug being testosterone in breach of s10(1) of the Drug Misuse and Trafficking Act, I would have sentenced the Offender to a period of imprisonment of four months, which after discount is a sentence of three months.

103. In relation to sequence 4, being possession of 0.73 grams of methylamphetamine in breach of s10(1) of the Drug Misuse and Trafficking Act, I would have sentenced the Offender to a period of imprisonment of eight months, which after discount would have been a period of imprisonment of six months.

104. In relation to sequence 5, being on the s166 certificate relating to the methorphan in breach of s10(1), I would have sentenced the Offender to a period of imprisonment of four months, or after discount three months.

105. In relation to sequence 8, being supply more than indictable quantity of a prohibited drug, being 5.13 grams of methylamphetamine, in breach of s25(1), I would have sentenced the Offender to a period of imprisonment of two years, resulting in 18 months after discount.

106. In relation to sequence 9, being the firearm offence, I would have sentenced the Offender to a period of imprisonment of 16 months, or 12 months after discount. In respect of that matter I provide an indicative non-parole period of eight months.

107. In relation to sequence 10, being supply more than the indictable quantity of a prohibited drug, being the 13.9 grams of methylamphetamine to the undercover operative in breach of s25(1), I would have but for the aggregate sentence imposed a sentence of two years, resulting in a sentence of 18 months after discount.

108. In respect of sequence 47, being supply more than the indictable quantity of prohibited drug, being 80.08 grams of methylamphetamine sold to the undercover operative on 22 September 2015, in breach of s25(1), but for the aggregate sentence I would have imposed a sentence of three years, resulting in a sentence after discount of two years and three months.

109. Next, in relation to sequence 48, being supply more than the indictable quantity, being 223.8 grams of methylamphetamine sold on 27 October 2015, in breach of s25(1), I would have imposed a sentence of four years, or three years after discount of 25%.

110. In respect of sequence 49, being supply more than the indictable quantity of a prohibited drug, namely 1.75 grams of methylamphetamine sold to ‘Nathan’, in breach of s25(1) of the Drug Misuse and Trafficking Act, I would have imposed a sentence of one year, which after discount would result in a sentence of nine months.

111. Next is sequence 50, being supply more than the indictable quantity of a prohibited drug, being 1.75 grams of methylamphetamine sold to another male on 29 September 2015 in breach of s25(1), I provide an indicative sentence of one year, which after discount is a sentence of nine months.

112. In relation to the ex-officio count, being the supply of 495 grams of methylamphetamine which the Offender was preparing to sell to the undercover operative on 19 December 2015, in breach of s25(2) of the Act, with the Form 1 attaching, I provide an indicative sentence of five years, resulting in four years after discount of 20%, and I provide an indicative non-parole period of three years for that offence.

113. I have also had close regard to the principles of totality as discussed in the matter of Pearce v R (1998) 194 CLR 610. Those principles require me, after having arrived at the indicative sentences in relation to each offence, to then stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the total criminality involved.

114. Mr Tesoriero, you are convicted of the six offences set out in the Crown Sentence Summary, being:

1. the ex officio count of supply more than the commercial quantity of a prohibited drug, being 495 grams of methylamphetamine in breach of s25(2) of the Drug Misuse and Trafficking Act. I note this offence has the Form 1 offence attaching to it, being knowingly deal with the proceeds of crime; however the conviction relates only to the ex officio count, namely the 495 grams;

2. sequences 8, 10, 47 and 48, being the supply more than the indictable quantity, namely 5.13 grams of methylamphetamine, 13.98 grams of methylamphetamine, 80.08 grams of methylamphetamine and 223.8 grams of methylamphetamine respectively, being supply more than the indictable quantity of a prohibited drug in breach of s25(1) of the Drug (Misuse and Trafficking) Act; and

3. sequence 9, being the supply of a prohibited firearm to a person unauthorised to possess it, in breach of s51(1A)(a) of the Firearms Act.

115. Further, you are convicted of the offences on the s166 certificate, being sequences 3, 4 and 5, all being charges of possess a prohibited drug in breach of s10(1) of the Drug Misuse and Trafficking Act. Those three convictions relate respectively to 10 grams of testosterone, 0.73 grams of methylamphetamine and 0.72 grams of methorfhan.

116. Finally, you are also convicted of two further offences, namely sequence 49 and sequence 50, being charges of supply between the small and the indictable quantity of a prohibited drug, in breach of s25(1) of the Drug Misuse and Trafficking Act. Sequence 49 relates to 1.75 grams of methylamphetamine, and sequence 50 relates to 1.75 grams of the same drug.

117. I note that sequence 2, namely the backup charge on the s166 certificate, is withdrawn and dismissed.

118. In respect of those convictions, I impose an aggregate sentence of eight years, commencing 17 December 2015 and expiring 18 December 2023. I impose a non-parole period of four years and six months, commencing 19 December 2015 and expiring 18 June 2020.

119. It may not be necessarily apparent to you but I have reduced the non-parole period considerably in your favour, down from 75% to just four years and six months out of eight years, so it’s almost down to 50%. The reason I have done so is that I believe that you will be assisted by being back in the community with your strong family support and friend network, and I also accept your evidence that you have decided to cease the use of drugs and the likelihood of you reoffending, therefore, is quite low. So it’s to your advantage and for that purpose that the non-parole period has been reduced.

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NOTE:

A. Revised without access to file at the request of NSW Corrective Services;

B. If required, a certified copy of these remarks will be provided upon request.

Decision last updated: 21 April 2020