R v Voukelatos

[2023] NSWDC 304

District Court

New South Wales

Medium Neutral Citation:

R v Voukelatos [2023] NSWDC 304

Hearing dates:

28 July 2023 & 15 August 2023

Date of orders:

18 August 2023

Decision date:

18 August 2023

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Specify an aggregate term of imprisonment of 6 years 3 months with a non-parole period of 3 years 9 months

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Commercial quantity

CRIME — Firearms offences — Use/Possess prohibited pistol/firearm

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

SENTENCING — Relevant factors on sentence — Form 1 offences

SENTENCING — Relevant factors on sentence — Deterrence

SENTENCING — Relevant factors on sentence — Multiple offences

SENTENCING — Relevant factors on sentence — Purposes of sentencing

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Sentencing procedure — Expert reports

SENTENCING — Sentencing procedure — Reasons for sentence

Legislation Cited:

Confiscation of Proceeds of Crimes Act 1989

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Customs Act 1901

Drug Misuse and Trafficking Act 1985

Firearms Act 1996

Cases Cited:

Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518

Bugmy v The Queen [2013] HCA 37

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

Imbornone v R [2017] NSWCCA 144

Markarian v R [2005] HCA 25

Muldrock v The Queen [2011] HCA 39

R v Osenkowski (1982) 5 A Crim R 394

R v Qutami [2001] NSWCCA 353

R v Valentini (1989) 46 A Crim R 23

Regina v Henry et Al [1999] NSWCCA 111

Tepania v R [2018] NSWCCA 247

The Queen v Olbrich [1999] HCA 54

Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14

Texts Cited:

Diagnostic and Statistical Manual of Mental Disorders Fifth Ed.

Category:

Sentence

Parties:

Rex (Crown)
Eftimos Truthe Miles Voukelatos (Offender)

Representation:

Michal Solecki (Solicitor for the ODPP)
William Barber (Counsel for the Offender)

Office of the Director of Public Prosecutions (Crown)
Richard Cummins Solicitors (Offender)

File Number(s):

2022/00123891

JUDGEMENT ON SENTENCE

Introduction

1. Eftimos Truthe Miles Voukelatos appears for sentence charged with two offences:

Sequence Six

Between 23 December 2021 and 28 April 2022, in Roselands in the State of New South Wales, did supply an amount of a prohibited drug, namely cocaine, being an amount which was not less that the commercial quantity applicable to the prohibited drug.

S 25(2) Drug Misuse and Trafficking Act 1985 Law part code 3183

Sequence 18

On 29 April 2022, at Roselands in the State of New South Wales, did possess a pistol, namely, a gel ball air gun, not being authorised to do so by a licence or permit.

S 7(1) Firearms Act 1996 Law part code 53108

2. The offender acknowledged his pleas of guilty in the Local Court and adhered to them in this court.

Additional Offences

3. When deciding upon the sentence for the offence of supply prohibited drug I am asked to consider the following additional offences set out in a Form One signed by the offender and on behalf of the Crown:

1. Seven offences of supply prohibited drug contrary to s 25(1) Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for 15 years and a fine represented by 2,000 penalty units.

2. One offence of knowingly direct activities of criminal group contrary to s 93T(4A) Crimes Act 1900 for which the maximum penalty is imprisonment for 15 years.

3. One offence of knowingly deal with the proceeds of crime contrary to s 193B(2) Crimes Act 1900 for which the maximum penalty is imprisonment for 15 years.

4. Three offences of possess prohibited drug contrary to s 10(1) Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for two years and a fine represented by 20 penalty units.

4. When deciding upon the sentence for the firearms offence I am asked to consider the following offences set out in a second Form One signed by the offender and on behalf of the Crown:

1. One offence of possession of ammunition without holding a licence, permit, or authority, contrary to s 65(3) Firearms Act 1996 for which the maximum penalty is a fine represented by 50 penalty units.

2. One offence of not keep firearm safely contrary to s 39(1)(a) Firearms Act 1996 for which the maximum penalty is imprisonment for two years and a fine represented by 50 penalty units.

5. The offender admitted his guilt for each of these offences and confirmed his wish that they be considered.

6. Thus, the offender asks that I take into account on sentence pursuant to section 32 Crimes (Sentencing Procedure) Act 1999, the further offences listed in the Form 1 for each principal offence.

7. The offences of supply prohibited drug are separate from and in addition to the incidents of supply cocaine upon which the principal offence of supply prohibited drug in more than the commercial quantity is brought, though when the matter was first before me on 28 July 2023 neither party could definitively state that this was the case. In the adjournment period sought by the offender this was resolved.

8. All offences, those for which sentence is to be imposed and the additional offences were committed in the sequence of misconduct upon which the offender embarked until his arrest.

9. He must be sentenced to an aggregate term of imprisonment with appropriate concurrence and accumulation of the sentences identified for each of the principal offences that will provide appropriate punishment for the totality of the offending to which the offender pleaded guilty, subject to the consideration that must be given to the offences on the Form 1 documents to be taken into account.

10. I note that having availed himself of this arrangement, the offender has the benefit of not facing separate punishment for the additional offences. I have reviewed the principles enunciated in Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518.

11. The additional offences should impinge upon the sentences for the principal offences in which they are to be taken into account, requiring an appropriate increase in the sentence that would otherwise be applied to each principal offence standing alone, thereby to reflect the need for greater weight to be given to the aspect of personal deterrence arising from the extent of the offender’s misconduct, and the community’s entitlement to retribution for those offences: Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518 at [42].

Penalties

12. The maximum penalty for supply of the prohibited drug is imprisonment for 20 years with a standard non-parole period of ten years for the purposes of Part 4 Div. 1A Crimes (Sentencing Procedure) Act 1999.

13. The maximum penalty for the firearms offence is imprisonment for 14 years with a standard non-parole period of 4 years.

The Pleas of Guilty

14. The offender was committed for sentence from the Local Court on 13 April 2023 after pleas of guilty. The Crown concedes that in respect of each offence pursuant to s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999 there is a discount of 25% to be applied to the sentences that would have otherwise been specified.

Pre-Sentence Custody

15. The offender was first arrested on 29 April 2022 and has been in custody since. The aggregate sentence which I impose, pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 is commenced on that date.

The Facts

16. In September 2021 Strike Force Giovanni commenced an investigation into the supply of prohibited drugs and established a telephone service XXXX XXX 527 was used to facilitate the enterprise.

Sequence Six – 23 December 2021 to 28 April 2022, in Roselands – supplied cocaine in an amount not less than the commercial quantity

Sequence Eight – (Form One) – knowingly direct activities of criminal group

17. Between 23 December 2021 and 28 April 2022, the supply of cocaine was arranged by messages to and from the telephone service. The amounts supplied varied each time, from one bag up to 21 bags, with an overall 444 bags with a total weight of 266.4 grams supplied. The average weight of the bags was 0.6 grams supplied for $300.00 each.

18. The total paid according to this analysis was therefore $133,200.00 in the period of 18 weeks and one day between 23 December 2021 and 28 April 2022.

19. Only the offender made calls and received calls on this phone service, which operated as a call centre with which purchasers made contact requesting delivery, whereupon a courier would attend a location arranged by text message.

20. The offender also used telephone service XXXX XXX 870 for which a telephone interception warrant was issued and the use of the service thereby monitored over nine weeks during which,

1. The offender identified himself as Eftimos Truthe Voukelatos, or Truthe, or ‘T’;

2. He was the sole person to answer incoming calls and make calls from the service;

3. 99 telephone calls and 63 text messages were identified as relating specifically to the investigation;

4. The offender arranged drug supplies using this phone service including on 27 February 2022 in conversation with Theo Mouhtaris to whom the offender gave an address and quantity for delivery thus,

“Kent Street … 383 and he wants two”.

5. On 4 March 2022, the offender called his partner Britney Hickling and said,

“Oh can you grab the, I think it’s the SB one … but Whatsapp and just tell that cunt she’s there…”

She responded that they needed two minutes to which the offender said,

“...say yeah but she’s there blue Mazda”.

21. On 16 December 2021, a controlled operation authority was obtained and thereupon controlled operations hereunder were undertaken.

First Controlled Purchase – Sequence 15 – (Sequence Six Form One) Supply prohibited drug

22. On Friday 4 February 2022 Witness One sent a message to telephone service XXXX XXX 527 requesting drugs – at 8:28pm Witness One entered a white Camry XXX38J and paid $900.00 for three bags from a female with dark hair and skin – at 8:31pm Witness One exited the vehicle and it drove off – upon analysis the drugs were found to contain 1.73 grams of cocaine – 52.5% purity.

Second Controlled Purchase – Sequence 16 – (Sequence Six Form One) Supply prohibited drug

23. On 19 February 2022 Witness One arranged to purchase five bags by telephone service XXXX XXX 527 – at 7:22pm Witness One entered a white Hyundai XXX11K containing two men in the front - registered to Yusuf Kbayli – he was supplied the bags for $1,500.00 – upon analysis they contained 2.95 grams of cocaine with 55% purity.

Third Controlled Purchase – Sequence 2 – (Sequence Six Form One) Supply prohibited drug

24. On Friday 25 February 2022 Witness One arranged to purchase five bags by telephone service XXXX XXX 527 – at 4:21pm he entered a white Camry XXX6AQ driven by Tylah Hickling, cousin of the offender’s partner and purchased five bags for $1,500.00 – upon analysis these were 2.99 grams of cocaine – 58% pure.

Fourth Controlled Purchase – Sequence 17 – (Sequence Six Form One) Supply prohibited drug

25. On Friday 25 February 2022 Witness Two arranged to purchase two bags by telephone service XXXX XXX 527 – Witness Two entered the white Camry XXX6AQ and was given two bags by Tylah Hickling for $600.00 – upon analysis this was 1.23 grams of cocaine with a purity of 60.5%.

Fifth Controlled Purchase – Sequence 3 – (Sequence Six Form One) Supply prohibited drug

26. On Saturday 12 March 2022 Witness One arranged to purchase cocaine by telephone service XXXX XXX 527 – at 5.03pm entered the white Camry XXX6AQ and purchased five bags for $1,500.00 – upon analysis this was 3.26 grams of cocaine – 23% purity.

Sixth Controlled Purchase – Sequence 4 – (Sequence Six Form One) Supply prohibited drug

27. On Friday 25 March 2022 Witness Three arranged to purchase cocaine with a message to telephone service XXXX XXX 527- at 7.07pm he entered the white Camry XXX6AQ and purchased two bags for $600.00. The driver introduced himself as Danny, undertook a similar transaction, and drove to a 7-11 and then to Mount Street, Roselands. Upon analysis the powder was cocaine, 0.58 grams in one bag 54% purity and 0.6 grams in the other 51% purity.

Seventh Controlled Purchase – Sequence 5 – (Sequence Six Form One) Supply prohibited drug

28. On Thursday 18 April 2022 Witness One arranged to purchase cocaine by telephone service XXXX XXX 527 – about 5.40pm Witness One obtained five bags for $1,500.00 from Tiaharna Close in a blue Mazda XXX4SG on Ramsgate Avenue, Bondi – Close said she works regularly for $50 per bag delivered and usually makes $800.00 at night and $5,000.00 to $6,000.00 a week – she said the work was arranged by her friend,

“…ya my friend, it’s her partner”.

Upon analysis the substance was 2.92 grams of cocaine 48.5% pure.

29. These offences involved the supply of 27 bags at $300.00 each, totalling $8,100.00.

30. To suggest other than that these are but some transactions upon which the offender engaged on and near to these dates is implausible, and inconsistent with the understanding that these seven transactions are separate and distinct from the offences grounding Sequence Six. However, it is not possible to extrapolate with any precision how many more transactions there were, notwithstanding the acknowledgement by Tiaharna Close that she usually made between $5,000.00 and $6,000.00 each week as a deliverer.

31. On Friday 29 April 2022 police executed a search warrant at the Roselands address. The offender and Danny Ioane were present. Evidence of the following offences was found.

Sequence 11 – (Sequence Six Form One) Knowingly deal with proceeds of crime.

Sequence 13 – (Sequence Six Form One) Possess prohibited drug.

Sequence 14 – (Sequence Six Form One) Possess prohibited drug.

Sequence 18 – Possess unauthorised pistol.

Sequence 12 – (Sequence 18 Form One) Not keep firearm safely.

Sequence 10 – (Sequence 18 Form One) Possessed unauthorised ammunition.

32. The offender identified the firearm in a laundry cupboard, describing it as,

“… just a gel blaster”.

33. The offender acknowledged the presence of cannabis in a drawer, and his black Samsung phone on the kitchen bench in a black leather case. These were seized – there was $1,260.00 cash in the case. Items seized were,

1. 143 grams of cannabis leaf,

2. 0.51 grams of cocaine,

3. $2,000.00 cash from bedroom one,

4. A 9 mm parabellum calibre cartridge from the top shelf of a kitchen cupboard,

5. A Glock 18 gel blaster,

6. A clip seal bag with gel blaster rounds,

7. 28 mobile phones.

34. The offender did not hold a licence or permit for the pistol, identified as a battery-operated gel ball air gun without a serial number. It is reasonably capable of being raised and fired using one hand and does not exceed 65 cm in length.

35. There is an image of the weapon in the statement of facts.

36. The offender did not give evidence enlivening the circumspection discussed in the judgements of Smart AJ in R v Qutami [2001] NSWCCA 353 and Wilson J in Imbornone v R [2017] NSWCCA 144 which stand as authority.

Co-Offenders

37. Danny Ioane was arrested with the offender at Roselands and charged with dealing with the proceeds of crime and supply more than small but less that the indictable quantity of prohibited drugs. Sentences indicated in the magistrate’s court on 26 May 2022 were six months and twelve months respectively with an aggregate sentence of 15 month to be served by way of an intensive corrections order.

38. Tiaharna Close was sentenced on 7 December 2022 in the Local Court to a community correction order of 15 months for an offence of supply less than the small quantity of a prohibited drug.

39. Questions of parity do not arise.

The Offender

40. In the absence of evidence of the facts upon which the offender would rely in mitigation, as I noted, circumspection for which the judgements of Smart AJ in R v Qutami [ibid] and of Wilson J in Imbornone v R [ibid] stand as authority is appropriate.

41. The offender will be 28 years of age this year, born in late 1995. He has a record of antecedents that prevents him from asserting that he is otherwise a person of good character.

1. In February 2017 he was imprisoned for dealing with property suspected to be the proceeds of crime, supply prohibited drug, and possess prohibited drug.

2. In the same month for supply of more than the indictable quantity and less than the commercial quantity of cannabis he was imprisoned.

3. In August 2017 he was imprisoned for supplying more than the indictable quantity but less than the commercial quantity of cannabis, and for participation in a criminal group.

4. In May 2015 he was placed on a bond pursuant to s 10 Crimes (Sentencing Procedure) Act 1999 for driving whilst his licence was suspended.

5. In October 2014 he was fined and disqualified for driving whilst his licence was suspended and fined for negligent driving.

6. In February 2018 for driving whilst his licence was suspended, he was fined and disqualified.

7. In July 2019 he was fined for possession of a prohibited drug.

8. In September 2020 for possession of steroids he was convicted without penalty.

9. In June 2021 he was fined for damaging property and ordered to pay compensation.

10. In February 2022 for driving with an illicit drug in his blood he was convicted without penalty other than disqualification.

42. The offender was assessed for a Sentence Assessment Report written on 24 July 2023. According to this he represented:

1. He was living with his de facto partner and children at Roselands and intends to return there when released. He wants to return to concreting work. He will be supported by his sister, grandfather and aunt who live near to him. He has a dysfunctional relationship with his mother.

2. His father is deceased, according to this report,

“… as a result of a criminal network shooting”.

3. His schooling was inadequate. His final years were in a behavioural management school. He was expelled in year eight for violence.

4. He has no formal training and is without qualifications – he worked as a labourer until COVID-19 restrictions prevented him from doing so.

5. His employment in custody in buy-ups was terminated because of theft. There is no mention of this in the custodial record in the Crown bundle. He relinquished his position in the kitchen to avoid conflict and threats after an assault. This is not further described. He has been a sweeper since June 2023.

6. He is said to have minimal criminal history. The use of the term minimal is inappropriate. The report correctly states though that his offending now is substantial because of its nature and that of his associates involved in it.

7. He has a propensity to return to crime regardless of the consequences. This is a fair assessment in light of the various outcomes in other proceedings which have not served to provide rehabilitation.

8. It is reported that he made threats to assault any potential cellmates on two occasions in May 2023. This does not appear in the custodial record.

9. He incurred two offences of Failure to Comply with Centre Routine in January 2023. This is not included in the custodial record.

10. Regarding the offending he is attributed with the following,

1. He experienced financial hardship and stress after decreased employment from COVID-19.

2. Aware of the dangers from and negative impact of his return to supplying drugs to both him and the community, he returned to it as a justifiable means of steady income.

3. He further minimised the offending asserting that he did not administer drugs in the presence of his partner and children but would return home under the influence of them.

4. His desire for financial reward from minimal effort overrode his consequential thinking and concern for the community.

5. As his supplying increased, he relapsed into use and returned to an anti-social lifestyle with poor decisions.

6. He minimised the firearm as a mere toy, removed from a young relative to ensure safety.

1. He denied any nefarious purpose for the 9 mm Parabellum cartridge in his possession, recovered from the pet that found it beneath the house. He forgot about it, not wanting to dispose of it in household waste.

11. Notwithstanding pro-social influences in his life he chose to return to criminality, which he attributed to contact from a former associate.

12. At the time of the offending he was a chronic user of drugs from his supply.

13. His recent relapse was spurred by stress and self-management of Attention Deficit Disorder.

14. Substance uses in the past caused him to offend, and he was aware of the ramifications from his return to it.

15. He has not used drugs since return to custody. This was not verified, but if true it challenges any suggestion that he was burdened by dependence such that he could not desist unaided. In any event, subject to the consideration of the Bugmy principles, and with regard to what was said regarding drug use by Spigelman CJ and Wood CJ at CL in Regina v Henry et Al [1999] NSWCCA 111, s 21A(5AA) Crimes (Sentencing Procedure) Act 1999 provides,

In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.

16. The Chief Justice wrote,

[173] As a joint judgment of the Court put it in Valentini (1989) 46 A Crim R 23 at [25]:

“This Court has said on countless occasions that addiction to heroin is not to be considered as a factor for the reduction of what would otherwise be an appropriate sentence for the nature of the offences which have been committed. It serves, however, to provide an explanation for the commission of the offences.”

This has been reiterated in a number of later cases (eg Stanford NSWCCA 23 November 1993; Atkins NSWCCA 27 May 1998).

[174] Drug addiction is one of the circumstances of a particular offence that is relevant to the sentencing exercise. It may, for example, be pertinent to the issue of impulsiveness/planning or to the weight to be given to rehabilitation in a particular case.

and subsequently,

[196] It was submitted that the degree of moral culpability of a particular offender is diminished by addiction. Evidence was put before the Court that there is, at least in some cases, a genetic predisposition to addiction and that addiction generally is not simply a state of mind but has a neurobiological or physiological base. It was put that an addict’s decision to perform a criminal act was not “a completely free choice.”

[197] In my opinion drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary, just as it varies for individuals who are not affected by addiction. There are a number of aspects of the relationship between drug addiction and crime which indicate that moral choices are made.

[198] First is the original decision to experiment with drugs which, in the usual case, is a completely free choice. The addictive quality of drugs, together with the anti-social behaviour which so commonly results from addiction, is so widely known that persons who choose a course of addiction must be treated as choosing its consequences.

[199] Secondly, the submissions in this Court were in error in identifying the relevant conduct as the craving associated with withdrawal. The material presented to the Court did not suggest that the choice faced by addicts was between this negative feeling and the need for money to allay it. Rather the choice may often be the desire for the positive feeling said to be associated with a drug induced euphoria. The desire to bring about that state of “well-being” is, relevantly, a moral choice.

[200] Thirdly, nothing in either the process of addiction or its neuro-biological and physiological basis, leads ineluctably to the commission of crime, let alone the commission of crimes of violence against persons, such as armed robbery. Not all persons who suffer from addiction behave in this way. Those that do so, make a choice.

[201] Finally, individuals do emerge from addiction. They do so with difficulty and generally need significant amounts of help. The decision to persist with an addiction, rather than to seek assistance, is also a choice.

[202] There is no warrant, in my opinion, to assess a crime induced by a need for funds to feed a drug addiction, as being lower in the scale of moral culpability than other perceived requirements for money.

17. After detailed consideration of authority and knowledge acquired by the courts regarding addiction to drugs the Chief Judge at Common Law wrote (all but one of the citations omitted),

[273] In my view the relevant principles are as follows:

(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;

(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:

(i) the impulsivity of the offence and the extent of any planning for it;

(ii) the existence or non existence of any alternative reason that may have operated in aggravation of the offence, eg that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;

(iii) the state of mind or capacity of the offender to exercise judgment, eg if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act;

(c) It may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might:

(i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword,

(ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery, or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete

(iii) justify special consideration in the case of offenders judged to be at the “cross roads”: Osenkowski (1982) 5 A Crim R 394.

[274] To go further, and to accept the fact of drug addiction as a mitigating factor generally, would not be justified in principle. Moreover, it would involve an exercise in irresponsibility on the part of the Court, if it were understood as a message that committing the crime of armed robbery to feed a drug habit is less deserving of censure than would otherwise be the case.

18. The offender was financially motivated with this as his only source of income, which he chose over financial support from the Commonwealth as it was more profitable and convenient.

19. He immediately accepted that his actions were harmful and dangerous to the community and his family. He expressed feelings of remorse and regret because of his offending causing his removal from his family. His willingness to engage in intervention strategies was yet to be demonstrated. He is suitable and willing to engage in community service of 14 hours a month.

20. A mental health assessment is suggested considering his advice of stress factors and Attention Deficit Disorder.

21. Response to prior supervision was satisfactory and his stability led to suspension of supervision focused upon alcohol and other drug use and lifestyle.

22. He is assessed with a medium risk of re-offending. Structure of a supervision plan, if thought appropriate, is suggested.

43. Psychologist Mr Chafic Awit from Bridges Psychology Clinic provided a report written on 24 July 2023 with diagnoses of,

Attention Deficit Hyperactivity Disorder; Generalized Anxiety Disorder; Persistent Depressive Disorder; Substance Use Disorder.

44. The psychologist reached his opinions on his assessment of the offender, the agreed facts, the particulars of the offences, and his criminal history. The report advances the following,

1. He is the sole child of his parents’ union formed after they had a child each from former relationships.

2. His father was shot dead when he was aged two and his mother formed another relationship with a man who brought his daughter to that union. He continues to look to this man as his father, though the relationship was not stable with violence on the part of his mother and ended when the offender was 13. Thereafter she had other partners from time to time, mostly violent. She was an alcoholic and cannabis user. Her partners were addicts, some heavier users than others, addicted to cocaine and ‘Ice'.

3. He said his deceased father was embroiled in the drug world and that was why he was shot. He discovered this when he was five, after he was told falsely that he died in a car crash. The actual cause of death he said has long impacted on him.

4. Although the family moved house every year for about ten years it was always within the same area, and he remained at the same school. The home was ever burdened with violence and drug use.

5. At about the age of ten he was diagnosed with Attention Deficit Hyperactivity Disorder and his mother attempted to have him take Ritalin and dexamphetamines. He did so for a short time. He described poor concentration, distraction, distraction of other students, back answering teachers, failure to complete study tasks, forgetfulness, fidgeting and restlessness. In years five and six he was sent to a behavioural school.

6. He reported molestations for some of which he said he has lodged legal claims, the arrangements for which are not further described. He is attributed with the assertion that his abuse of drugs was his means of numbing his thoughts about these events:

1. In year four when in foster care for three months, after his mother had neglected him, his foster mother gave him a sex toy to use on her. This was one of multiple incidents.

2. In year five during detention a male teacher grabbed his genitals and attempted to force himself on the offender and was rubbing up his leg. This is not further described but is said to be the event which he found the most difficult to discuss.

3. In year seven his art teacher offered him cannabis and attempted to force himself on the offender. This was not further described.

4. In the year that followed in a special education class a female teacher sat on his lap and had him touch her genitals.

7. His mother ran off when he was 14, and from then on he was in and out of refuges and on the streets, exposed to violence and drug use.

8. Other trauma he experienced after which he sought drugs to numb his thoughts included,

1. When he was 16, his girlfriend’s miscarriage, and his cousin’s death in a car crash during a police pursuit.

2. When he was 17 his grandmother’s drowning when on holiday in Greece, and his best friend’s suicide in gaol.

9. His education comprised of,

1. Attendance at a public school in years five and six, with attendance at a behavioural school four days each week, reducing over time as his behaviour improved.

2. Attendance at high school through years seven and eight with half of year eight at a behavioural school.

3. Expulsion from school to attend Youth Off the Streets after his mother left.

4. Attempt at a spray-painting apprenticeship with which he did not persist.

10. His employment history commenced after high school at age 15. He worked in demolition up to four days a week for less than a year. He was unemployed until incarcerated in 2016 for a year, after which at age 21 he began concreting work in which he has worked since. He also spent time in gaol from age 20. He worked consistently until COVID-19 limited his shifts by 50%.

11. He consumed alcohol from 13, replaced with illicit drugs by 18 after his friend suicided in gaol.

12. He gambled from age 16, reaching up to one to two days per week. As described, this might have been with poker machines.

13. He used cannabis from age ten until his arrest. He sought medicinal cannabis but was arrested midway through the application process. At age 15 he used MDMA and ecstasy, which I understood to be the same illicit drug, and was introduced to cocaine at age 17. By age 18 he was heavily addicted and continued so until his arrest.

14. He is drug free in gaol and agrees to an inpatient program upon release.

15. The discussion of his psychosocial history includes,

1. His age at 27 years.

2. His remand status of 15 months.

3. His two children aged two years and eight months born to his partner Britney Hickling to whom there is reference in the facts and with whom he has been the last four years.

4. His stepson aged six years.

5. He has not sought psychological assistance previously, coping alone and numbing his thoughts with drugs. According to the report at para 16,

In reflecting over the course of his life, he advised that the (sic) feels that he commenced suffering what he believed was Anxiety and Depression symptoms from the period he was placed in Foster care…being ripped from his mother was difficult as it was, let alone repeated incidents of molestation.

6. He was homeless, with other negative events.

7. He struggled with his mood from age ten, sleep issues, worthlessness, and hopelessness, low motivation, loss of interest in life, uncontrollable worry, nervousness especially when sleeping rough, with a bleak outlook.

8. He had financial difficulties for as long as he could recall due to drug misuse, inconsistent work, all leading to difficulty providing for his family.

16. Upon mental health examination there were no symptoms observed other than,

… evidence of Anxiety and Depression symptoms during the interview.

This was not further described.

17. Psychometric testing was used for screening purposes and not in place of the clinical judgement reached upon a skillset that included active listening, analysis, and critical thinking. Nonetheless the report offers at para 21 and following,

1. The Depression Anxiety Stress Scale 21 indicated moderate levels of depression and moderate levels of anxiety. The offender said he felt worse up to and during the offending period.

2. The Jasper/Goldberg Adult ADHD questionnaire evidenced severe Adult ADHD symptoms. The psychologist repeated here that this was not for diagnosis.

18. The report repeats the diagnoses to which I referred, appearing on the first page of the report.

19. The report continues with what these features characterise according to the Diagnostic and Statistical Manual of Mental Disorders Fifth Ed. However, this is not evidence of what the offender has suffered or exhibited of which there is no evidence other than the attributions given by the author of the report.

20. In the conclusions and recommendations portion of the report the author writes,

1. The offender expressed remorse and accepted responsibility, not wishing to excuse his actions.

2. He was doing well after leaving prison at age 21 with consistent employment raising his family.

3. He struggled to support his own addiction and family when COVID-19 arose.

4. His work reduced by 50% as his addiction increased. When asked by someone whether he could acquire drugs the offending was “kick started.” He embarked upon his crimes to support his habit and his family.

5. He had no excuse for the weapon or the ammunition. He should not have had it and regrets that he did so. Counsel represented in court that he had taken it from his nephew and had forgotten about it.

6. Whilst in custody these 15 months he has reflected, acknowledged the destructive impact of illicit drugs to his life and the community, realising his responsibility for the addiction of others and the consequent impact upon their families and finances. His children have been without him for the whole of this period, as was his partner left to raise them alone.

7. The offender appears to have struggled with mental health and had long term drug use to cope. The author writes,

It is further the professional opinion of the writer that Mr Miles Voukelatos’ decision-making ability had been impaired to some extent by his underlying conditions in relation to the offences. These disorders are highly correlated with impaired decision-making which is well documented in Psychological literature.

….

Mr Miles Voukelatos advised that after finding himself struggle to support his addictions and family, he made a number of poor decisions. His use of illicit substances would have also had some impact on his decision-making ability.

8. The psychologist anticipates that ongoing psychological intervention will reduce the risk of re-offending, against his acknowledgement that his family’s hardship due to his actions would also act as a deterrent.

21. A treatment plan is offered.

45. On 28 July 2023, the hearing was adjourned to 15 August 2023 for further hearing after debate with counsel about submissions that were unsupported by evidence but rested upon instructions only. I accept that counsel faithfully represented those instructions, but it remained that they were unsupported by evidence and were advanced against my disquiet regarding the conclusions and opinions given by the psychologist Mr Awit. The offender sought time to consider evidence that might be called, and I granted his application to adjourn for that purpose.

46. On 15 August 2023, the offender called Mr Awit only. Examination-in-chief was concise. He adopted his report and then faced cross-examination and brief re-examination. His evidence included,

1. The offender’s attention deficit hyperactivity disorder and other suggested diagnoses were likely in varying degrees to have afflicted him for much of his life.

2. The opinions formed were from the offender’s self-reporting upon clinical assessment in only one session using skillsets Mr Awit acquired over his career employing carefully structured and selected questions. The use of psychometric testing was not for diagnostic purposes.

3. The offender expressed remorse for his actions.

4. The suggested contrast between the opinions Mr Awit offered about the offender during the offending period and the skill demonstrated in the organisation, management, and operation of the sophisticated enterprise in which he supplied cocaine, and the qualities attributed to him by his partner and paternal aunt and the person who would offer him employment, against his background of past offending did not cause Mr Awit to move from his conclusions, but it is noteworthy that he sought to rationalise his position against the absence of proof to him of negative aspects of the offender’s conduct and past behaviour.

5. With reference to paragraph 29 of his report he suggested that the offender had a long struggle with all of his mental health problems which impacted upon his capacity to make appropriate decisions, but Mr Awit could not say to what extent.

6. Mr Awit conceded that if he made poor decisions to embark upon these crimes, the same considerations would have impacted upon decisions in his personal life.

7. Mr Awit’s opinion in re-examination was that he was likely to have embarked upon hasty decisions both globally, in respect of the decision to embark upon the enterprise, and in the day-to-day operational decisions for the continued operation of the enterprise.

47. The offender tendered a letter from a concrete pumping business confirming that he has a full-time position available upon release.

48. The offender tendered a character reference from his paternal aunt. To her the offender is said to have expressed shame and “genuine regret and significant embarrassment over the matter”. The reference includes the following,

1. She lived through the offender’s troubled childhood.

2. His mother uses prescription and other drugs.

3. When the offender was aged ten months his father was murdered when a security/bouncer. This is not as written elsewhere suggesting that his father was involved with drugs and killed when the offender was aged two years.

1. His education suffered because “he was singled out,” which is not explained further, and moving locations and places unable to make connections. He refused counselling, became withdrawn and isolated.

2. His only happiness was at home with his grandparents.

3. In 2020 the offender introduced his partner and her son. The family dynamic is positive.

4. The offender struggled from being absent from the birth of their second child and the children’s milestones.

5. He feels shame and guilt from being absent from his frail grandfather.

6. He is interested in construction which he will pursue when released.

49. The offender tendered a document from his partner. She is anxious over their future, financial and otherwise. He was the “steady rock” in their home. He has been there for her after she mastered the anxieties from the challenges in her earlier life and has been a source of strength throughout her pregnancies and childbirth including the premature birth of their daughter. He was a pillar of strength. Circumstances have been challenging in his absence without his emotional and financial support. She accepts his remorse and sincere regret. His plans for the future are not to affiliate with this behaviour (as said in her document) but to raise their children, have more children and gain employment.

50. The offender provided a handwritten document which he prepared over the luncheon adjournment when the matter came before me for hearing, after I expressed concerns about the approach taken to the presentation of the matter on his behalf. I have read the document, which summarises attributions found elsewhere in the material. It remains that this is not evidence of more than the creation of the document.

Consideration

51. There are written submissions from the Crown, but the offender’s counsel addressed orally.

52. The Crown submitted that the offence of supplying the commercial quantity of cocaine falls just below the middle range of objective seriousness. The factors informing this are,

1. The offender was the sole operator of the telephone service used in the supply of 266.4 grams of cocaine in 444 bags the subject of the charge in sequence six. This is 16.4 grams above the commercial quantity of 250 grams.

2. The transactions were for quantities extending from one bag to 21 bags, with an average weight of 0.6 grams for consideration of $300.00.

3. The transactions were from 23 December 2021 until 28 April 2022, a period of 127 days.

4. The offender was the principal in the enterprise.

53. For the firearms offence, the Crown submits that the objective seriousness rests at the mid-point, according to the following factors,

1. The weapon was a battery-operated gel ball air pistol without an identifying serial number.

2. It was found by police in the circumstances of the investigation of the supply of prohibited drugs.

3. The Crown asserts that there is no explanation for the possession of the weapon, but there are attributions in the material and a representation by counsel to explain his possession of the item.

54. Since these are standard non-parole period offences there is need to consider the provisions guiding the sentencing task:

1. Section 54A(1) Crimes (Sentencing Procedure) Act 1999 provides that the standard non-parole period for an offence is that which is included in the table to the provisions.

2. Section 54A(2) provides the standard non-parole period represents the non‑parole period for an offence in the table within the middle of the range of objective seriousness considering only the objective factors affecting its relative seriousness.

3. Section 54B(2) provides the standard non-parole period is to be taken into account when determining sentence without limiting the matters otherwise required or permitted to be taken into account.

4. Section 54B(3) requires the Court to record its reasons for setting a longer or shorter non-parole period identifying each factor considered.

5. The objective gravity of the offence is assessed upon consideration of the objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders, but by reference to the nature of the offending bringing to account relevant factors provided in s 21A of the Act except those that are essential elements or integral characteristics of the offence.

6. Fixing the non-parole period is but part of the task whereby the court determines sentence whether guilt is admitted or established after trial, and whether the offence is within the low, middle, or high range of objective seriousness. The court must identity all relevant matters bearing upon the sentence in the process of intuitive synthesis discussed for example by McHugh J in Markarian v R [2005] HCA 25 reported at (2005) 228 CLR 357 at 378. The standard non-parole period and maximum penalty are legislative guideposts for the sentencing court with other established sentencing practices and by reference to matters identified where relevant in ss 3A, 21A, and 22 of the Act.

55. Johnson J provided guidance regarding the assessment of objective seriousness for all offences in Tepania v R [2018] NSWCCA 247. After discussing the provisions for standard non-parole offences with reference to the second reading speech and Explanatory Memorandum for the amended provisions his Honour continued,

[112]   In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence…

[113] … In Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14, it was observed (at 476-477) that a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability.

[114]   In Muldrock v The Queen (at 140 [58]), it was observed that the applicant’s limited moral culpability may mean that retribution and denunciation did not require significant emphasis.

56. Accordingly, the court must in all offences, including standard non-parole period offences, assess the objective seriousness of the offence and the offender’s moral culpability in its commission, in the process of intuitive synthesis of all relevant factors and with reference to the maximum penalty and standard non-parole period. Assessment of objective seriousness is a matter of judgement upon which minds might differ. It is often difficult to be precise, and it is not to be overlooked that there might be a measure of overlap between the concepts of objective seriousness and moral culpability considering the remarks by Johnson J.

57. Upon my assessment of the material, I agree with the Crown's submission that the offender’s conduct in the commission of these offences brings each within the mid-range of objective seriousness.

58. It does not follow however that the sentences and the non-parole to be identified as appropriate in each case should be calculated as a percentage of the period specified, for this would be to ignore the required intuitive synthesis of all the relevant factors including the offender’s moral culpability which often has the effect of reducing the sentence and the period of non-parole to below that which might otherwise result from such an impermissible calculation.

59. The relevant aggravating factors from s 21A(2) Crimes Sentencing Procedure Act 1999 are that the offender has a record of previous convictions: s 21A(2)(d). These do not aggravate the offending or the otherwise proportionate sentence but inform consideration of the need for specific deterrence and prospects for rehabilitation. It is also an aggravating factor relevant in this case that this was planned organised criminal activity: s 21A(2)(n). It was conduct in the pursuit of financial gain: s 21A(2)(o). Financial gain is an integral characteristic of the supply of prohibited drugs which I do not bring to account as an aggravating factor.

60. Pursuant to s 21A(3) I take into account mitigating factors, the offender pleaded guilty to the offences: s 21A(3)(k), I have already indicated the discount to be applied. Counsel relies upon this for evidence of contrition and remorse of which there is no further evidence other than by way of representations attributed to him by others: s 21A3(i) of the Act.

Sequence Six

61. When the matter came before me on 28 July 2023 the offender’s counsel sought to minimise the seriousness of these offences to the extent of a submission that considering the period of pre-sentence custody it was not beyond the range of appropriate options to deal with the offender by way of an intensive corrections order. I disagreed. There were further submissions to the following effect,

1. The offender should be seen as a street level dealer.

2. He would not have continued in the enterprise if he were arrested at the first opportunity provided by the first controlled delivery.

3. Contrition is demonstrated in the pleas of guilty and the resort to the provisions for additional offences to be considered.

4. The offender has suffered already significant punishment awaiting sentence, including the considerations arising from the impact of COVID-19 in the custodial setting.

5. There is a viable treatment plan available. He achieved abstinence without intervention in custody where there are no programs for remand prisoners.

6. The reasons for his offences arose in economic necessity from loss of employment opportunities against the psychological assessment enlivening the principles provided by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194.

7. Cocaine does not have the deleterious impact of methylamphetamine in the community.

62. On 15 August 2023, counsel added to his submissions from the earlier occasion with the following propositions,

1. This was supply of cocaine at the street level which in the modern era is achieved in circumstances such as are before the court, with the use of mobile telephone technology. Regardless of the organisation involved in the use of the technology this remains at the low level for the immediate consumption of the ultimate purchaser.

2. Counsel once more urged consideration of the judgement of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [ibid].

3. I was reminded of the pleas of guilty reflecting utility and remorse.

4. Counsel urged the view that police allowed the offender to continue in the enterprise when he could have been interdicted when first detected whereupon he would not have faced his current predicament.

5. He was motivated to support his family because of COVID-19’s impact upon his legitimate income earning activity.

6. A sentence of no more than three years could be imposed in the aggregate, bringing to account the custody to date, to be served by way of an intensive correction order commencing from the date of judgement.

7. Counsel noted there is a suggested treatment plan.

8. In the alternative, a finding of special circumstances is open.

63. The Crown countered with reliance upon their written submissions and additionally,

1. The offender was the principal in this enterprise.

2. He has poor prospects of rehabilitation against the background of past offending and his propensity to return to crime regardless of consequences.

3. He was not servicing a drug debt but was driven by the desire for an income appropriate to his perceived entitlement for him and his family.

4. His partner who offers support was a participant in one of the events that have him before the court attracting care when considering her views.

5. The opinions of Mr Awit are of limited value and must be in large measure speculative.

6. The principle for which the decision in De La Rosa [ibid] is authority does not apply in this case.

7. No sentence other than imprisonment is appropriate.

64. I agree with the Crown submissions in response to counsel. The offender’s submissions fail to grasp the significance of the crimes upon which the offender engaged.

65. The trafficking in the prohibited drug upon which the offender engaged is accurately described as organised criminal activity. The prohibited drug trafficked was cocaine. In Schedule 1, Drug Misuse and Trafficking Act 1985 the traffickable quantity specified for this drug is three grams, the small quantity one gram, the indictable quantity five grams, the commercial quantity 250 grams and the large commercial quantity one kilogram.

66. When considering all of the charges pending, including the additional offences, the total weight of the cocaine transacted by the offender and those acting as his agents was 282.66 grams (of which 16.26 grams was supplied in the commission of the additional offences) in 471 individual bags (of which 27 were supplied in the commission of the additional offences) for $141,300.00 (of which $8,100.00 was acquired in the additional offences). If the representations attributed to the deliverer in Sequence Seven by Witness One are accurate, namely that she works regularly for $50 per bag delivered, usually makes $800.00 at night, and $5,000.00 to $6,000.00 a week, as one of the deliverers employed in this enterprise, she alone could have received as her reward up to $90,000.00 upon the assertion that she made $5,000.00 per week.

67. The provisions in the Act creating the offences of supply prohibited drug in its various forms specify the maximum punishment available to the Courts depending upon the quantity of the drug the subject of the charge. In this case the maximum penalty is imprisonment for 20 years with a standard non-parole period specified at 10 years.

68. The case for the offender was presented upon the basis that he was aware of the quantity the subject of the charges. No other conclusion can be drawn from the evidence presented, considering his position as principal in the enterprise with responsibility for the organisation of product, and deliveries in response to the orders received on the mobile phones over which he had control.

69. Proceedings for the determination of sentence for the supply of prohibited drugs invariably include reference to the sentencing Court’s obligation when assessing the objective gravity of the offence to synthesise the range of factors that will inform that assessment. These include the quantity of the drug, the purity of the drug, the activities in which the offender is shown to have engaged in their role and the nature and extent of the enterprise in which the offender was engaged. Though the quantity of the drug is an important factor it is not determinative of the assessment but must be considered with the other relevant factors to be found in the evidence before the Court.

70. This resonates with the judgement of the plurality in The Queen v Olbrich [1999] HCA 54 at para [19] and following beneath the heading, “The distinction between couriers and principals”. From para [19]:

[19] Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act 1901. One may be charged with importing the drugs, others may be charged with conspiracy to import prohibited imports, or being knowingly concerned in the importation of such imports. If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. In that context, a distinction between ‘couriers’ and ‘principals’ may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a ‘courier’ or a ‘principal’ must not obscure the assessment of what the offender did.

[20] There are, of course, cases in which only one offender is prosecuted but it is clear that the importation is part of a business venture that is organised hierarchically. In such a case a distinction between courier and principal might be useful to indicate where an offender fitted into the hierarchy of the organisation. And that, in turn, might assist in identifying the nature of that offender’s criminality. But there is no evidence, one way or the other, to suggest that this was such a case. There was nothing before the primary judge which revealed that the respondent was part of any business venture of that kind. All that was known was that the respondent asserted that he was to be paid $15,000 for importing the heroin. That is, the respondent asserted that the importation of such a large quantity of heroin was for his financial gain rather than for some other purpose such as his own use.

[21] Whether others stood to gain from the respondent’s conduct does not, it seems to us, affect what sentence should have been passed on him. That depended on what he had done and who he was, not on what others may have hoped to gain from his activity. But even if this were thought to be a useful enquiry, it was one that could not be pursued in this matter because there was no evidence about it.”

71. Although concerned with the crime of importation the essence of the reasoning is apposite.

72. It is more often than not argued, as it was for the offender, that an offender’s role is to be assessed to fall at the lower end of the range of the misconduct contemplated by the provision under which the prosecution is brought particularly when an offender might be assessed to have been at the end of a series of transactions leading to the ultimate consumer of the product at which point the quantity in each transaction is most often relatively small. At this level individual suppliers would be found to be at the lower end of the scale of objective seriousness for the offence of supply prohibited drug but in cases where there are multiple transactions alleged to have occurred over time the seriousness of the misconduct is greater; if the supply is of a larger quantity of the drug or if with greater purity such that the purchaser could in turn reduce the potency and increase the bulk for on-supply the seriousness of the misconduct is greater.

73. If the conduct is placed further back in the supply chain the misconduct is at a more serious level, the assessment of which will be informed by the quantities and purity of the drug in the transactions and the extent to which, without interdiction, it would be available to further marketers and their clients and whether there is capacity for further on-sale.

74. As with any enterprise, illicit or otherwise, the sourcing and distribution of product until it reaches the end consumer involves complex and detailed commercial activity involving consideration of logistics and economics if the enterprise is to succeed. Organised criminal activity delivering prohibited drugs to its ultimate market carries with it the additional need for clandestine and covert activity to defeat the efforts of law enforcement agencies deployed to the interdiction of the substances and the detection and prosecution of the participants. I do not accept the submissions that the offender should be allowed some consideration from the tactical decision not to interdict him and his activities soon after he was first detected in them. He was not encouraged to conduct this enterprise by anything other than his wish for financial gain.

71. Cocaine is not a drug that emanates in this country. It is the product of processes in other places after which it is imported to Australia. The offender’s success in the enterprise must have depended upon his relationship with another distributor providing a ready source of the cocaine he had available to supply.

72. The submission diminishing the significance of cocaine against another prohibited drug fails to consider the deleterious effects of the drug reflected in its inclusion in Schedule one of the Act. I do not hold with the argument that policy considerations ought to encourage the decriminalisation of this substance. Those foolish enough to use it, notwithstanding the expense, are at serious risk of harm.

73. It is not appropriate in this instance to approach the supply of the cocaine according to a notional hierarchical structure in which there are offenders engaged in senior management roles, lesser management roles and executive functions leading to the ultimate transactions. The offender I find was the principal in this endeavour, with access to the product which he then chose to market in his enterprise using agents or employees for delivery, with the required organisation and management skills.

74. He was engaged upon a sophisticated supply of prohibited drug with a source of the product for which he would no doubt be obliged to pay, to be sold on for profit calculated to provide an adequate return against the investment in resources including payment of those delivering for him.

75. I find that the offender’s participation in this crime is within mid-range, and that no sentence other than imprisonment served in custody is appropriate: s 5 Crimes (Sentencing Procedure) Act 1999.

Sequence Eight

80. I accept the Crown submissions that the court must implement the policy of the legislation to control possession and use of firearms by honest citizens, as well as the disarming of criminals, and that absence of evidence of a criminal purpose does not necessarily mitigate, but in the absence of evidence that this item was possessed for some nefarious purpose, whether or not connected with the supply of cocaine, and notwithstanding that there is no evidence of the reason he had the weapon submitted by counsel, I find that the offender’s commission of this crime is below mid-range, but not below the half way point between mid-range and low range. Whether he took the weapon from his nephew or had it from another source, the fact is that he had the weapon with suitable ammunition. The image provided depicts what could be taken for a true Glock pistol which in the wrong hands could be used for criminal purpose.

81. No sentence other than imprisonment served in custody is appropriate: s 5 Crimes (Sentencing Procedure) Act 1999.

The Offender’s moral culpability

82. There is no evidence from the offender other than by way of attributions represented by others in their documents. The history includes challenges in his formative years, by reason of his mother’s imperfect parenting and episodes of sexual molestation but there is no opportunity to assess the truth or accuracy of these bare assertions, even with the assistance that might be gleaned from the document provided by his paternal aunt.

83. It is upon that history that the psychologist came to the opinions offered in the report.

84. The qualities attributed to him by his partner do not sit comfortably with the proposition that his life experiences led to the diagnoses suggested by the psychologist, which in turn caused him to take the wrong path and make wrong decisions.

85. Upon the material before me he chose the course taken, notwithstanding the qualities reported by those who provided references, and efforts of courts in the past and by way of his parole toward rehabilitation, in which he clearly failed.

86. He had the benefit of his relationship, and the children for whom he claims affection and responsibility, and if his partner’s document and those of others supporting him are credible and accurate, he was someone of substance who fulfilled for her all that one might expect in a strong relationship with a partner and father of her children. Yet, when economic challenges beset him, rather than take the option of benefits he could have had from the Commonwealth, he chose to embark upon the well organised enterprise for the supply of cocaine with which he is charged, because of the better returns it provided.

87. I have brought to account the decision in Bugmy v The Queen [2013] HCA 37. At paragraph [43] of the judgement the court wrote (citations omitted),

[43] The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

[45] The point was made by Gleeson CJ in Engert in the context of explaining the significance of an offender's mental condition in sentencing:

[82] A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender."

[46]… An issue for determination on the remitter is whether the appellant's background of profound childhood deprivation allowed the weight that would ordinarily be given to personal and general deterrence to be moderated in favour of other purposes of punishment, including rehabilitation, to the extent that Judge Lerve allowed.

[47] The appellant's case also relies on the evidence of his mental illness. As noted, the significance of a mental disorder to sentencing was the issue in Engert. Gleeson CJ observed that the existence of a causal relationship between an offender's mental condition and the offence does not automatically operate to reduce the sentence and that the absence of such a connection does not automatically mean that the sentence will not be reduced...

88. The court was concerned with consideration of deprivation suffered by Indigenous Australians, but it is clear that the reasoning applies to any person of whatever culture who may have experienced such challenging circumstances.

89. I proceed upon the basis that the representations attributed to the offender are factual, but I am not persuaded that they provide reasons why the seriousness of the offending or the offender’s moral culpability should be reduced. I am not persuaded of the opinions given by the psychologist against the history of the events leading to this prosecution for offences motivated by the desire for financial reward with demonstrated organisational and management capacity over time. The offending was not in any measure spontaneous and could not be said to be ill considered against the offender’s patent organisation and management of his enterprise.

90. I do not accept the psychologist’s opinion that the offender’s decision-making ability was impaired by his underlying conditions in relation to the offences. The offender’s advice that after finding himself struggle to support his addictions and family, he made poor decisions, with use of illicit substances having some impact on his decision-making ability, is met by the sophistication of the enterprise of which he was in charge.

91. All purposes of sentencing provided in s 3A Crimes (Sentencing Procedure) Act 1999 must be considered.

92. I am satisfied that the sentences identified as appropriate, leading to the aggregate sentence upon which I have settled, should ensure that the offender is adequately punished for the offences, should go some way toward prevention of crime by deterring the offender and other persons from committing similar offences, should ultimately protect the community from the offender, should promote the rehabilitation of the offender, should make the offender accountable for his actions, should be seen to denounce the conduct of the offender, and recognises the harm done to the community.

93. The offender is attributed with expressions of remorse, which he replicated in the written letter prepared over the luncheon adjournment when the hearing was first before me. His pleas of guilty are consistent with remorse, but the offender has not gone further and acknowledged all aspects of his criminal enterprise. He was not obliged to do so and suffers no additional penalty as a result, but the weight to be attributed to his claim of contrition and remorse and the extent that it will ameliorate his punishment will be assessed in that light.

94. Considering his antecedent history, and repeated offending in this context, his prospects for rehabilitation at best are moderate. Nonetheless it is open to find that he is sincere in his wish to avoid in the future the predicament with which he now faces.

The Sentences

95. The offender is convicted of each principal offence.

96. For the offence charged in sequence six, and bringing to account the additional offences, and allowing a discount of 25% to the sentence that would have otherwise applied, upon conviction I specify as appropriate a sentence of imprisonment of 6 years with a non-parole period of 3 years 6 months.

97. For the offence charged in sequence 18 and bringing to account the additional offences and allowing a discount of 25% to the sentence that would have otherwise applied, upon conviction I specify as appropriate a sentence of imprisonment of 2 years 3 months with a non-parole period of 1 year 3 months.

98. I impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999. The offender is sentenced to a non-parole period of 3 years 9 months from 29 April 2022 to expire on 28 January 2026, with a further period during which he shall be eligible for parole of 2 years 6 months which will expire on 28 July 2028.

99. There are special circumstances considering his age, the stage of life which he has reached with his partner, his prospects for employment, all of which aggregate to support the proposition that he should have an extended period at large on parole to encourage and facilitate his rehabilitation.

100. There is an application by the Crown for the confiscation of cash. I make orders pursuant to s 18(1) Confiscation of Proceeds of Crimes Act 1989 that cash in the sum of $3,260.00 seized from the residence in Roselands on 29 April 2022 be forfeited to the State.

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Decision last updated: 18 August 2023