R v Tsoumbanellis

[2024] NSWDC 657

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Tsoumbanellis [2024] NSWDC 657

Hearing dates:

15 November 2025, 5 & 10 December 2025

Date of orders:

10 December 2024

Decision date:

10 December 2024

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See pars [55]-[56].

Catchwords:

CRIME – SENTENCE – Knowingly take part in supply of commercial quantity of methylamphetamine – Knowingly deal with proceeds of crime ($24,950) – Offender 70 years of age – Fulltime custodial sentence imposed.

Legislation Cited:

Crimes Act 1900, s 193B(2).

Crimes (Sentencing Procedure) Act 1999, s 21A(2)(ea).

Drug Misuse and Trafficking Act 1985, ss 25(2), 36Y(1)(a).

Cases Cited:

Nil.

Texts Cited:

Nil.

Category:

Sentence

Parties:

Crown – R (NSW)
Offender – Dimitrios Tsoumbanellis

Representation:

Counsel:
Crown – Mr Betts, L.
Offender – Mr Stewart, D.

Solicitors:
Crown – Office of the Director of Public Prosecutions (NSW)
Offender - Ross Hill & Associate Solicitors

File Number(s):

2023/00331348

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Dimitrios Tsoumbanellis stands for sentence as a consequence of pleading guilty to two substantive charges. The first charge was that on the 18^th day of October 2023 at Ultimo in this State he did knowingly take part in the supply of methylamphetamine, being an amount which was not less than the commercial quantity applicable to that drug. That is an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is imprisonment for 20 years. Parliament has fixed a standard non-parole period of ten years.

2. I would have to apply that standard non-parole period if the offender had pleaded not guilty, had been convicted after trial of the offence and the objective seriousness of the offence was in the mid-range.

3. The second substantive offence to which the offender pleaded guilty, is that on the 18^th day of October 2023 at Ultimo in this State he did deal with the proceeds of crime, namely $24,950 knowing that it was the proceeds of crime. That is an offence contrary to s 193B(2) of the Crimes Act 1900. The maximum penalty for that offence is imprisonment for 15 years. There is no standard non-parole period.

Matters on the Forms 1

4. In connection with the first of those substantive offences, the offender asks me to take into account two matters on a Form 1. The first of those offences is known as Sequence 4. The relevant allegation is that between 12.30pm and 4.00pm on 18 October 2023 at Ultimo he did knowingly allow premises, namely Unit 309, 2-12 Smail Street Ultimo, to be used as drug premises, the offender being the occupier of those premises. That is an offence contrary to s 36Y(1)(a) of the Drug Misuse and Trafficking Act 1985.

5. The second matter on the Form 1 is an allegation of an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act. The allegation is that between 12.30pm and 4pm on 18 October 2023 at Ultimo, he did supply a prohibited drug, namely methylenedioxymethylamphetamine, commonly known as MDMA or ecstasy. The quantity of that drug was a small quantity, but less than the indictable quantity.

Agreed Facts

6. The first of the agreed facts is the one that has caused me the greatest concern. That fact records the offender’s date of birth as being in October 1954. He has recently turned 70 years old. At the time of the offending the offender was aged 68 years. In September 2023 police attached to the Sydney City Command began an investigation into the supply of prohibited drugs by the offender. The offender was living with his partner Amurpauk Khamsuwar and two of her children at Unit 309/2-12 Smail Street Ultimo. At the time of the offending the two children of the offender’s partner were aged eight years and five years. The lease of the unit in which the appellant was residing was held by both him and his partner.

7. At 12.26pm on 18 October 2023 after a search warrant and a digital access order had been granted, police conducted a search of the premises. They found on the premises a large number of items which are set out in a table in the agreed facts. They found a number of parcels of methylamphetamine. There was some loose in an exhibit bag. There were 18 resealable plastic bags containing methylamphetamine. There were four plastic bags containing 3,4 methylenedioxymethylamphetamine or ecstasy. The total amount of that drug was 3.18 grams.

8. In a briefcase under his bed the police found $24,950 in Australian banknotes. That is the subject of the second substantive charge. They found a Samsung mobile telephone on the living room coffee table, another mobile phone in shelf in the bedroom and a further two mobile phones found on the bed, I assume, of the couple. On a shelf in the bedroom they found a MacBook Air laptop and on the table on a balcony a small digital scale.

9. During the execution of the search warrant the offender was asked by police, “Are you selling drugs?” to which the offender answered, “Yes”. The offender was arrested at 1.02pm on that day and was transported to Day Street Police Station in Sydney South where he participated in an electronically recorded interview. During the interview the offender made a number of admissions.

10. The resealable bags were located on the balcony and contained a crystal substance which was ice. The accused had been given that substance by a supplier to sell. Once he sold it, the offender would pay the supplier to him the money that he obtained from the sale. Six resealable bags containing a crystal substance located in the living room weighing 330 grams was ice which the offender intended to supply. A small container containing a crystalline substance located in a kitchen cupboard next to the dishwasher was also ice and that ice was owned by the accused. The offender admitted that the multiple resealable bags located on the balcony table contained ice and belonged to him. The two small resealable plastic bags containing a crystalline substance located in the laundry the offender admitted to be ice. The small digital scale located on the balcony was used by the accused for weighing the bags of drugs.

11. The offender admitted to selling drugs in amounts of either 2, 3 or 4 grams. The offender also admitted that the black briefcase located under the bed contained cash between $20,000 and $25,000 that was money acquired from selling the drugs. The offender admitted that he paid to the individual, who supplied him with the drugs, that money. He admitted that he was the only person who had access to that briefcase. The offender said that he had last had access to the briefcase on 17 October that year, on the night prior to the execution of the search warrant when he put more money inside the briefcase. The offender admitted that generally he puts money into the briefcase every second day.

12. He went on to admit that he received a supply of prohibited drugs every three months from the supplier to him. That three monthly supply was worth about $45,000 which he then sold during each three month period. The offender admitted that he had most recently supplied illicit drugs on the weekend prior to the execution of the search warrant and his arrest. The offender also admitted to the police that he knew that he was breaching the conditions of his parole. The offender admitted that he himself was a drug user and was using approximately 1 gram of methylamphetamine each day. From other information contained in the materials before me it is clear that he smoked that drug.

13. The offender admitted that he made about $10,000 profit from selling the drugs supplied to him by someone higher in a chain. In other words the offender admitted to making about $40,000 per annum out of supplying drugs. That of course would be money from which he paid no income tax. At the relevant time the offender was in receipt of benefits from the Commonwealth of Australia. Initially, he had been on an Invalid pension, more recently he had gone onto the Age pension.

Criminal History

14. The offender has a criminal history that is consistent with a regular supplier of drugs, a practice in which he appears to have been engaged over a number of years throughout his seventh decade, and speaks of an addiction that he probably acquired shortly after he turned 60. Another unusual fact in this case.

15. The offender’s criminal history goes back to 1977. However, the offences that he committed in his relative youth were few, but of historical interest. In 1977, he was convicted on three occasions of conducting an unlawful game. In 1977, he was convicted on one occasion of selling liquor without a license. In 1983, he was again convicted of playing an unlawful game, which the criminal history describes as Manilla.

16. The next recorded conviction was for an offence committed between 14 January 2003 and 10 July 2003. That offence was supplying a prohibited drug. For that offence he was placed on a bond to be of good behaviour for a period of three years.

17. The next offending occurred in February 2016. On that occasion he was found guilty of possessing a prohibited drug and possessing equipment for the administering of prohibited drugs. On that occasion he was placed on a bond to be of good behaviour for a period of 12 months and the drugs were ordered to be destroyed and the implement for the administration of drugs was forfeited to the Crown. I suspect that the implement was probably an ice pipe.

18. The next offence occurred on 4 January 2018. That was the possession of prohibited drug for which a fine of $330 was imposed. At the same time, he committed an offence of shoplifting for which he was fined $250.

19. The first charges laid against him at the Day Street Police Station here in the city were drug offences, in essence. The first set of offences occurred on 14 August 2020. They were goods in personal custody suspected of being stolen and dealing with property the proceeds of crime, as well as supplying a prohibited drug greater than the indictable but less than the commercial quantity. There is also a further count of possessing a prohibited drug and a further count of possessing or attempting to possess a prescribed restricted substance.

20. On 8 October 2020, less than two months later, he was again charged with two counts of possessing a prohibited drug, one count of possessing or attempting to possess a prescribed restricted substance, supplying a prohibited drug greater than the small quantity but larger than the indictable quantity, and dealing with property the proceeds of crime, that property being valued between $5,000 and $10,000. For those offences the Central Local Court imposed, essentially, an aggregate sentence of 20 months imprisonment, commencing on 14 October 2020 and expiring on 13 June 2022 with a non‑parole period of ten months concluding on 13 August 2021.

21. On 6 October 2021, that is within weeks of the conclusion of the non‑parole period for the offences of 2020, while he was still on parole the offender committed another series of drug offences. There were two counts of possessing a prohibited drug, one being the possession of 0.54 grams of methylamphetamine and another of possessing a combined weight of 10 millilitres of gamma hydroxybutyrate. There was also an offence of dealing with property the proceeds of crime, that was $250 in Australian banknotes which were found within the inner lining of a facemask during the COVID-19 pandemic.

22. The offender was sentenced in the Downing Centre Local Court, but there was an appeal to this Court and the appeal was allowed in part. On that occasion the appellant was sentenced to an aggregate sentence of 18 months imprisonment, commencing on 21 May 2022 and expiring on 20 November 2023 with a non-parole period of ten months commencing on 21 May 2022 and expiring on 20 March 2023.

23. On 23 May 2022, the appellant committed another series of offences. They were these: supplying a prohibited drug, namely 0.26 grams of methylamphetamine, supplying a prohibited drug, namely 3.2 grams of methylamphetamine, dealing with certain property, namely one 750 millilitre bottle of 2006 Riverwood Shiraz suspected of being the proceeds of crime, dealing with property, namely $8,750 in Australian banknotes that there were reasonable grounds to suspect was the proceeds of crime, supplying a prohibited drug, namely 28.6 grams of methylamphetamine, and supplying a prohibited drug, namely 200 millilitres of gamma hydroxybutyrate. The papers relating to that offence are Exhibit C.

24. Originally, the appellant was dealt with in the Downing Centre Local Court, but again there was an appeal to this Court and an aggregate sentence of 18 months imprisonment was imposed, commencing on 21 May 2022 and concluding on 20 November 2023, with a non-parole period of ten months commencing on 21 May 2022 and concluding on 20 March 2023.

25. It can be seen then that the offences for which I must sentence the offender occurred on 18 October 2023, the last period of imprisonment having concluded on 20 March 2023, but the head sentence did not expire until 20 November 2023. Of course, the commission of offences when one is on parole is considered an aggravating factor. To commit crimes whilst at conditional liberty is always an aggravating factor.

26. One matter which was the subject of some little debate before me was a submission made by the Crown, that there was in the current case an aggravating factor pursuant to s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999, in that at the time of the offences the two young children of the offender’s partner aged eight and five were residing in the premises and the premises were used to store prohibited drugs for the purpose of supply, including the living room, the balcony and the kitchen. The Crown omitted to point out that it also included the laundry.

27. S21A(2)(ea) states that the following is an aggravating factor:

“The offence was committed in the presence of a child under 18 years of age.”

28. That aggravating factor has not been infringed because there is no evidence that the offender actually supplied prohibited drugs to anybody in the presence of the children. However, in my view the fact that the drugs were kept in the residence in which the offender and his partner and the children resided must be taken into account, because there is no evidence that the children were protected from the drugs, in that for example, there were bags of drugs found on the balcony table with the scales, and the drugs could easily be discovered by the children in the places where they had been left and that exposed them to a danger. I take into account the matter on the Form 1, that is the owner occupier knowingly allowing his premises to be used as drug premises is one matter on the Form 1 and one matter to which the presence of the children was probably a relevant aggravating factor to that offence, and if not an aggravating factor as such, it certainly increases the culpability for that offence because it appears to have been inadequate protection for the children from coming across the drugs.

29. It can be seen from the matters that were dealt with initially by Central Local Court on 20 January 2021 and by this Court on appeal, the offences of October 2021 and the offences of May 2022, that the offender has on each occasion come back to peddling drugs, probably to maintain his own drug addiction.

Personal Circumstances

30. I turn to consider the offender’s personal circumstances. They are mainly described in a report of Dr Paul Pusey, a clinical and forensic psychologist, who interviewed the appellant via AVL on 25 October 2024 and prepared a report bearing the date 5 November 2024. At the time of the interview the offender had been in custody for 12 and a half months and for the 12 months immediately prior to the interview he had been detained at the Clarence Correctional Centre near Grafton.

31. Mr Tsoumbanellis was born in Greece. He is the second of four children born to his parents. He has an older sister who died approximately ten years ago and he has two younger brothers who are both alive but living in Greece. It would appear that both offender’s parents are now deceased. There is definite reference in Dr Pusey’s report to his mother as having died over seven years ago, but no direct evidence in the report of the date of the death of the offender’s father, but that seems likely considering what is recorded by Dr Pusey.

32. The offender told Dr Pusey that he came from a large but very poor family in Greece. He only attended school to year 6 in Greece, but then joined his father who was a farmer and he worked with him before at the age of probably 15 or 16 he started working as a crew member on cargo ships. That was how he made his way to Australia when he was 16 years old. He then started sending money back to Greece to support his family. The offender told Dr Pusey that he had to work to help support his family. Since he came to Australia the offender has not gone to school at all.

33. He described himself as doing “reasonably well” until 2010. He was married for 40 years, but divorced his former wife “about ten years ago”. As a result of that relationship he has a son who was born in 1976. His son is now 48 years old. His wife he had met in Greece and, according to Dr Pusey, they divorced in a period between 2011 and 2013.

34. The appellant told the doctor that his last period of employment was as a chef, but he stopped that work when at the age of 60 he had a coronary bypass surgery. The offender told Dr Pusey that at that point he retired from working and went on the Disability Support Pension. He went on to say that after he was last released from gaol he went onto the Aged Pension.

35. The offender told Dr Pusey that:

“After 2010-2011, after I got sick and [had] my operation, I stopped working and started hanging around with the wrong people. That led to use going our own separate way.”

36. At first, I believed that the word ‘use’ should be ‘us’ referring to the separation of the offender and his former wife, but it appears that it also led to drug use. So, I have left the word ‘use’ in the quotation made by Dr Pusey.

37. At [46] of his report Dr Pusey records this:

“Mr Tsoumbanellis reported that his substance use commenced between the ages of 58-60. He disclosed that: “I started using methamphetamine because I was an idiot. I caught up with some friends and they were smoking it. I started smoking it and then little by little and before I knew it, I began to like it”.”

38. He went on to tell Dr Pusey that at the time of his arrest, presumably on this occasion, he was a daily user of methylamphetamine, but his only use of it was to smoke it. He told Dr Pusey that he had never used any other illicit substances and also denied consuming alcohol, because he did not like it.

39. The offender’s retirement from work following his triple bypass surgery appears to have put the offender at a loose end and led to his taking up using methylamphetamine and that also led to his falling into the wrong company.

40. Commencing at [31] of his report Dr Pusey said:

“Mr Tsoumbanellis denied that he finds it easy to make friends. He articulated that, “I find it difficult to make friends with people I don’t know. I think it’s because I came here when I was young. I can’t trust people and they can’t trust me. I don’t know what else to say about this.”

Mr Tsoumbanellis denied that he felt that his decision making was overly influenced by the decisions made by other people.

Mr Tsoumbanellis admitted, “In the last few years, I was with negative people. The people I socialised with outside of my partner were junkies because I was a junkie.”

Mr Tsoumbanellis disclosed that he believes that there is a relationship between his social relationships and his offending. He states that, “Yes, I reckon there is. I was friends with these people, and we tried to please each other. We were all from the same background of drug using. The offence came from me trying to support my habit”.”

41. It will come as no surprise that the diagnosis made by Dr Pusey was of substance use disorder. The substance is, of course, methylamphetamine. Dr Pusey said this:

“In relation to the charges for which he is due to be sentenced, during his clinical interview, Mr Tsoumbanellis acknowledged his guilt in relation to his offending. It is a positive prognostic indicator that he is able to demonstrate a level of insight into the causal mechanism of his offending, and in particular the need for a total cessation of his substance use to reduce his risk of recidivism.”

Sentencing Assessment Report

42. There is as Sentencing Assessment Report which is Exhibit D. The risk assessment contained in it is that the offender has been assessed at a medium risk of reoffending according to the Level of Service Inventory-Revised. The Sentencing Assessment Report provides a supervision plan which includes referral to an alcohol and other drug service for relapse prevention, a referral for a Mental Health Assessment with a General Practitioner following up any recommendations for behaviour changing exercises targeted at drug relapse and building a more prosocial attitude and lifestyle, and a referral to EQUIPS addiction and foundations programs. Programs such as the latter and other programs are available for those in custody to try to wean them off their drug addiction.

43. Considering the offender’s criminal and custodial history, in my view the offender must be sentenced to a fulltime custodial sentence. He must realise that doing what he does will only cause him to spend more time in prison. He has to realise that he must make the best use of his current period of imprisonment to do courses which will help him try to overcome his addiction. When released from custody, rather than going back to consuming methylamphetamine and dealing in it, he must perhaps go into a residential rehabilitation facility if he needs that to try to stay away from drugs.

Offender’s Health

44. One of the reasons this matter was adjourned from an earlier occasion was because I was concerned about the offender’s general health. I had envisaged the offender being medically examined to comment upon his general health, but that did not occur. Exhibit 2 was tendered when the matter last came before me. Exhibit 2 comprises various records of Justice Health relating to the offender. The only concerns expressed appear to have been the need for referral back to a cardiologist. The notes are replete with references to IHD which I assume is Ischaemic Heart Disease, and “HTN” which I assume means hypertension, to CABG, which I assume means Coronary Artery Bypassed Grafting and GORD, which I assume means Gastro-Oesophageal Reflux Disease.

45. The most recent notes indicate that the offender has never had a myocardial infarction. That he has some arthritis, which at the age of 70 would be abnormal not to have, and that as far as GORD is concerned, that was not causing any current problem. The arthritis appears to affect the right wrist, but the offender told an examiner on 14 November 2023 that that was not causing any significant pain. On one occasion in December 2023 the offender had a lower respiratory tract infection, there is nothing unusual about that. The last medical record in Exhibit 2 refers to some dental surgery which was practiced in July 2024, but indicates that there is no significant problem in that regard.

46. As far as I can ascertain, the offender will not be at risk if sentenced to a further period of imprisonment. However, he must understand that when he is released on this occasion he cannot merely return to smoking methylamphetamine, he cannot go back to selling drugs to support his habit. It is in his own interests and, if he wishes to return to the relationship with his partner that was interrupted by his most recent arrest, he must care for her and her children and that means again staying away from illicit drugs.

Consideration

47. I have had recourse to the statistics provided by the Judicial Commission.

48. For the first offence of supplying a prohibited drug in a commercial quantity, the 80% range of head sentences, that is removing the lowest 10% and the highest 10%, gives a range of head sentences between six years and two and a half years. The same range of non-parole periods is between three years and six months, and 18 months. The median sentence, that is the sentence in the middle of the range is a head sentence of three years and six months, and a non-parole period of two years.

49. When I factor in matters on a Form 1, prior convictions of a similar type with custody, a plea of guilty and the drug in question being amphetamine, that is of any sort, the statistics give me a head sentence of 48 months with a non-parole period of 30 months which of course is two years and six months.

50. I intend to impose an aggregate sentence. For the first offence, that is supplying a prohibited drug in a commercial quantity, and bearing in mind the two matters on the Form 1, supplying the small quantity of MDMA and being the owner and occupier of premises knowingly allowing them to be used as drug premises, I give an indicative sentence of four years with a non-parole period of two years and six months.

51. For the second substantive charge, knowingly deal with the proceeds of crime, I believe this to be at the lower end of the range. The offender was amassing money with which to buy more drugs from the supplier to him so that he could continue supplying to those lower in the chain. For that offence I give an indicative head sentence of two years and an indicative non-parole period of one year and six months, although the latter is not strictly necessary because the matter does not carry a standard non-parole period.

52. With those indicative sentences I have reached the view that the head sentence should be four years and six months and the non-parole period should be three years. The sentence will commence 18 October 2023.

53. It must be noted that, when citing the statistics from the Judicial Commission, the highest age that can be inserted is “50 years plus”, which has not been of any great current utility.

54. It is clear from the sentence that I have announced but not yet imposed, that I have not applied the statutory ratio between the head sentence and the non-parole period. Implicit in that is a finding of special circumstances. Those circumstances are the offender’s age and the need to have him on parole for a substantial period of time so that he may be assisted by Community Corrections to abstain from illicit drugs.

Sentence

55. Dimitrios Tsoumbanellis, on the charges to which you have pleaded guilty you are convicted. I sentence you to imprisonment. I set a non-parole period of three years, commencing on 18 October 2023 and expiring on 17 October 2026. I impose a further period of imprisonment of one year and six months, to commence upon the expiration of the non-parole period and expiring on 17 April 2028. The total sentence is therefore four years and six months, comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period. I have taken into account the matters on the Form 1. That is an aggregate sentence.

56. The indicative sentences are for Sequence 3: four years with a non-parole period of two years and six months. For Sequence 5: two years with a non-parole period of one year and six months.

57. Any other orders sought?

58. ANASTASIOU: Yes your Honour. One further matter. I’ve got a copy of a signed short minutes of consent order in relation to the $24,950 that was seized.

59. HIS HONOUR: By consent orders in accordance with Short Minutes of Order, which I have executed.

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Amendments

14 March 2025 - In "Decision" heading on coversheet change "par" to "pars".

Decision last updated: 14 March 2025