R v Zotos

[2018] NSWDC 478

District Court

New South Wales

Medium Neutral Citation:	R v Zotos [2018] NSWDC 478
Hearing dates:	21 September 2018; 2 November 2018
Decision date:	02 November 2018
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Form 1 matters - SEQ 3,4,& 5 - taken into account on sentence imposed. Special circumstances found – medical conditions (including Congenital Adrenal Hyperplasia), 1st significant period in custody, need for a longer period on supervised parole to assist in rehabilitation and reintegration into the community. Sentenced to a term of imprisonment for 2 years and 8 months, comprising of a NPP of 20 months to commence on 27/10/18 and to expire on 26/6/20, and a balance of term of 1 year to commence on 27/6/20 and to expire on 26/6/21. Referred to Drug Court – CDTCC referral Backup charge - SEQ 2 - withdrawn and dismissed. I order that the drugs be destroyed Medical reports supplied to Corrective Services in court today
Catchwords:	CRIMINAL – sentence - supply prohibited drug, cocaine – Form 1 matters – possess anabolic or androgenic steroidal agents, testosterone enanthate, oxandrolone – deal with property the proceeds of crime – subjective matters
Legislation Cited:	Crimes Act 1900 Drug Misuse and Trafficking Act 1985
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 R v Thomson; R v Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Regina Dmitri Zotos
Representation:	Counsel: Defence: Mr G James AM QC   Solicitors: Crown: Mr A Brookman; Mr N Lawrence Defence Mr P Kulisiewicz
File Number(s):	2016/00321484

Judgment

1. HIS HONOUR: In this matter, Dimitri Zotos appears for sentence in relation to a single offence of supply prohibited drug, being 50 grams of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty provided is 15 years’ imprisonment and/or a fine of $220,000. There is no relevant standard non-parole period provided.

2. In addition to being sentenced in respect of that matter, he asks the Court to take into account three matters contained on a Form 1.

3. The first being possess anabolic or androgenic steroidal agent, being 7.56 mls of testosterone enanthate. The maximum penalty when dealt with alone is two years’ imprisonment.

4. The second offence is possess anabolic or androgenic steroidal agent, being oxandrolone, 100 mls. Again, the maximum sentence available in respect of that when dealt with alone is two years’ imprisonment.

5. The third offence is deal with property the proceeds of crime, being $6,680. The maximum sentence in relation to that offence when dealt with alone is three years’ imprisonment.

6. The offender was committed for sentence on 19 December 2017 from the Downing Centre Local Court. It is accepted that that the plea of guilty was at the earliest opportunity and he is therefore entitled to a 25% discount for the utility alone of the plea, as referred to in Thomson and Houlton (2000) 49 NSWLR 383.

7. He was arrested on 27 October 2016 and was in custody from 27 October 2016 until 1 November 2016, referred to in the Crown sentence summary as five days, but in my calculation, six days.

8. The facts are as follows:

9. In March 2016 police commenced an investigation in relation to the supply of the prohibited drug cocaine by a delivery service referring to themselves as “Meatie and Sam”. Police alleged that the delivery service was primarily run by the offender Dimitri Zotos and another male who used the fictitious name of “Meatie”, not directly referred to in the facts, but who appears to be a person by the name of M-I-T-R-O-U. Zotos used the fictitious name of “Sam” when interacting with customers in an effort to conceal his identity.

10. Through the use of a controlled operation authority and the lawful interception of mail or telecommunications services police identified the syndicate as being in operation for some time.

METHODOLOGY

11. The delivery service operated from one primary mobile phone number seven days per week. During the course of the investigation the main contact number alternated between 0413454492 and 0412576288. Neither of those phones waas registered in the name of the offender.

12. A text message would be sent out to all customers,

“Hey buddy it’s Meatie just a update, this is our NEW NUMBER, PLEASE DELETE THE OLD ONE AND SAVE THIS ONE we have a new supply of meat and please do not give our number out to anyone without confirming with us prior as this service is for VIP customers only thank you for your support hope to hear from you soon.”

13. Police allege that the word “meat” was code for cocaine which was being sold by the syndicate in 0.7 gram bags for $300 per bag.

14. The offender supplied cocaine in the following way. When a customer wanted to purchase cocaine, they would send a text message or make a phone call to the mobile telecommunication service ending 288. The customer would state their location and ask, often with the use of code, if any syndicate member was available to supply cocaine.

15. When the delivery driver was a short distance away from the transaction location, they would send a text message or make a phone call to the customer to come out and meet. The customer would then get into the passenger seat of the vehicle and state how many bags they required. The vehicle would drive a short distance or remain stationary. The driver would retrieve the required number of bags requested by the customer. The bags would be handed to the customer, who provided payment in exchange for the cocaine. The customer would exit the vehicle and the driver would travel to another location to conduct a further transaction.

16. Through the use of call charge records, police estimate that there was a customer base of between 700 to 800 people. New customers could only be introduced by pre-existing customers. The referral system operated to insulate the syndicate from detection by law enforcement. The members of the syndicate acted together in a co-ordinated fashion with a common goal of supplying customers with cocaine in a timely manner and at a convenient location.

17. Zotos answered the calls from customers and arranged to meet with them to deliver bags of cocaine.

18. Zotos was employed to bring cocaine to the customers. Zotos would be sent an address and phone numbers of customers to meet with. Police observed Zotos meeting with customers and officers made one controlled purchase of cocaine from Zotos in the course of the investigation.

19. Police obtained evidence of Zotos supplying cocaine as the driver on numerous occasions in the course of the investigation, (15 July to 20 October 2016).

TELEPHONE INTERCEPTS - 0412576288

20. On 18 August 2016, police commenced the lawful interception of the mobile phone ending 288. This phone was used by Zotos. Between 18 August and 13 October 2016, police intercepted a significant number of messages and phone calls relating to the supply of cocaine. On 11 August 2016, the offender sent out a mass message to over 700 numbers, informing customers that this was the new contact number.

21. Between 18 August and 13 October 2016 police believe the phone was used to negotiate the supply of cocaine at arranged meetings between the syndicate members and customers. For each transaction the customers would contact the syndicate on this phone number. Through a number of texts and calls, the syndicate would agree to meet with a customer.

SUPPLY ON 19 AUGUST 2016

22. At about 1pm on 19 August 2016, police were conducting surveillance on Sussex Street, Haymarket, near the Golden Century Chinese Restaurant. At about 1.10pm, police observed a person by the name of “Mostafa” and another male walk out of the Golden Century and walk south on Sussex Street before they returned to the restaurant.

23. A short time later police observed Zotos to drive past on Sussex Street in a black VW Polo, registration number COQ74Y. The vehicle parked about 50 metres south on Sussex Street from the Golden Century. A short time later Mostafa exited the restaurant and entered the passenger side of the vehicle. Police followed the vehicle along Sussex Street into Thomas Street and Ultimo Road before it turned into Quay Street and entered the Wilson carpark located at the end of Quay Street. A short time later the vehicle left the carpark and Mostafa exited the vehicle on Quay Street. Police followed the vehicle and Mostafa, who was now walking along Ultimo Road in the direction of Golden Century.

24. Police stopped Mostafa and arrested him for possession of a prohibited drug. He was searched, and two envelopes were located in his jacket pocket. The envelopes contained a total of 10.69 grams of cocaine.

25. In a recorded call to the service ending 288, to “Sam”, that is, the offender, the following was recorded by way of conversation:

Sam, “Hey mate”.

Paulie, “Hey mate it’s Paulie, Dane’s friend, can we postpone it for a bit there is a bit of heat around, that’s all”.

Sam, “Mate, I am just about to pull up, does he want to drop in and we will go for a bit of a drive?”

Paulie, “I’m just go down further and we’ll come and meet you”.

Sam, “Whereabouts bro?”.

Paulie, “Hang on bro”.

DM, “Hey buddy, I just noticed there are three cars out the front and they have people in them. I don’t know if it’s related or not”.

Sam, “Do they have the light on the dash?”.

DM, “Yeah, 100%”.

Sam, “Okay, so they are undercover”.

DM, “Yeah”.

Sam, “Okay, what we are going to do is I’m at Raben Footwear. I’m going to turn left and you can come down, jump in the car and we’ll go for a little drive”.

DM, “Yeah, no worries”.

Sam, “I just seen another one, he’s in front of me at the minute”.

DM, “I just don’t know, I’m a bit cautious because one of them has just walked into the restaurant upstairs”.

Sam, “Are you outside?”

DM, “I’ll just send someone out now. Is that you outside in the black car now?”

Sam, “Yeah”.

DM, “Okay, I’ll send someone out now to the black car”.

The call tower location in respect of that call was Goulburn Street, Sydney.

SUPPLY ON 16 SEPTEMBER 2016

26. On 16 September 2016, a text message was sent to the mobile phone ending 288 asking to catch up for “1 drink”. A short time later the offender attended Bridge Street, Sydney driving his personal vehicle, the Black VW Golf COQ 74Y. A male entered the passenger side door of the vehicle and a short time later the male exited the vehicle. Police stopped the male who was found in the possession of one small clear resealable bag containing cocaine. The bag was confirmed to contained 0.72 grams of cocaine with a purity of 47%.

SUPPLY ON 30 SEPTEMBER 2016

27. On 30 September 2016, a text message was sent to the mobile phone ending 288 at about 3.01pm from a registered source. The registered source received a call from the mobile number ending 288. At the time the registered source was near the corner of Market and Clarence Street, Sydney. A male alleged to be the accused agreed to meet the registered source in a minute.

28. At about 3.04pm, the registered source received a call from the same number. The registered source was told by the male that he was at a set of lights on Market Street. The registered source saw a white van and a black VW Golf stationary at the lights. The male on the phone alleged to be the offender agreed that he was in the black VW.

29. The registered source entered the black VW. Zotos was seated in the driver’s seat. Zotos asked the person, “How many?” The registered source replied “two” and was handed two resealable bags by the offender. The registered source confirmed “Six, isn’t it” and handed Zotos $600. The transaction was electronically recorded. Each of the bags was confirmed to contain approximately 0.7 grams of cocaine with a total weight of 1.43 grams and a purity of 54.5%.

ARREST OF ZOTOS ON 27 OCTOBER 2016

30. At about 12.50pm on Thursday, 27 October 2016, Zotos was seen by police to leave premises at 1 Jack Brabham Drive, Hurstville, where he resided in Unit B230. At the time, Zotos was driving a black Jeep, CG52ZA. The vehicle was last seen travelling at high speed up Forest Road just prior to Zotos sending a number of text messages which were intercepted by police. The text messages were arranging to meet with customers.

31. At about 1.30pm, a male was seen to drive into the Caltex Stoney Creek Road, Kingsgrove, after arranging with the offender on the mobile ending 288 to meet at the service station. The male used an ATM before driving across Stoney Creek Road and into Maluka Place opposite the service station.

32. Police observed the VW Golf motor vehicle COQ74Y driving in Donald Street, Hurstville, before turning around and driving into Maluka Place. The male was seen to enter the passenger side of the car for a short period of time.

33. At this time, police approached the vehicle in an attempt to stop the car. However, the driver’s door was locked. The accused, Zotos, reversed up the street and drove up Stoney Creek Road. Police located a resealable bag containing 0.7 grams of cocaine on the ground where the male had been stopped by police. The male denied any knowledge and claimed that he was just giving “his friend” $300 that he owed him.

34. On the same day at 5pm, Senior Constable Carroll contacted a number on the COPS system for Zotos and requested that he attend Kogarah Police Station. At about 7.45pm that same day, Zotos attended the police station with his solicitor. The accused was arrested and entered into custody.

35. What is referred to as 10am on the same day in the facts, but presumably 10pm on the same day, police executed a search warrant on the premises of Zotos located at 1 Jack Brabham Drive, Hurstville. During the search of the premises, police located the following items relating to the three offences contained on the Form 1:

• 7.56 mls of testosterone enanthate

• 16 mls of Oxandrolone

• $6,680 in Australian currency,

36. The total amount of cocaine the police observed Zotos to supply was 2.85 grams, that being composed of the three quantities on 16 September, 30 September and 27 October 2016. However, on the basis of the intercepted telephone calls since 15 July 2016 until 27 October 2016, there had been numerous supplies of cocaine by the offender in quantities of 0.7 grams per bag. The total amount of cocaine the offender supplied is 50 grams.

37. No further information was provided in the facts as to how many supplies were represented by the 50 grams. However, it is apparent that allowing for the four supplies, three of which were observed being 10.69 grams, 0.72 grams, 1.43 grams and 0.7 grams, that the balance of the 50 grams asserted in para 28 is some 37.09 grams.

38. An additional fact was agreed by the parties on the hearing that the 50 grams was supplied in 50 to 60 transactions in amounts of approximately 0.7 grams. 37.09 grams at 0.7 grams per deal equates to approximately 52 separate deals at $300 per deal, that is an amount of some $15,600. Added to that, the three observed deals, being in effect four deals at approximately 0.7 grams, would bring the total to $16,800. There is no information available to the Court as to the amount paid for the supply of the 10.69 grams on 19 August 2016.. Presumably, being supplied in a more significant quantity, it would have been sold at less than $300 per 0.7 grams. However the facts indicate that certainly the quantity supplied, including the 10.69 grams, must have been in excess of $17,000.

39. It is evident from the facts that the offender was prepared to deliver to the Sydney central business district as well as to at least the area of Kingsgrove and Hurstville. It was an ongoing operation from 15 July 2016 until 27 October 2016, being approximately three and a half months.

40. From the offender’s conduct on 27 October 2016, it is reasonable to infer that he had two vehicles available to himself, one being a vehicle that he did not use for deliveries, being a black Jeep CG52ZA, and that on that day after leaving his premises, he swapped to the vehicle that was observed on a number of occasions associated with supplies, being the VW Golf, COQ 74Y.

41. In the past, particularly in the 70s, 80s and 90s, those who wished to obtain small supplies of prohibited drugs frequently utilised the services of people located in public streets in places such as Kings Cross and Cabramatta, to name two of the more notorious venues. Since that time, of course, with the advent of mobile phones, the trade in respect of particularly small quantities of prohibited drugs has changed to mobile telephone services, and delivery on request. That change has made it very difficult for the authorities to maintain a check on the supply of prohibited drugs by interrupting the supply lines. It is usually only in the circumstances where some infiltration can be made for an officer or an agent to be recognised as a buyer and then carry out a number of transactions before the network can be terminated.

42. On this occasion, the offender appears to have been one of two principals carrying on the distribution for a significant period of time of generally small quantities of cocaine, but also able to supply more significant quantities such as the 10.69 grams supplied on 19 August 2016.

43. While 50 grams in total is a relatively small quantity covered by the range applicable to this offence, the provision of the 50 grams over a period of approximately three and a half months in the manner in which it was provided is of serious concern. I assess the objective seriousness of the offence as falling not at the lowest end of the range, but between the lowest end of the range and the midrange.

44. When I referred previously to the offender as a principal, it would appear that he was operating at least in a partnership of two. There is no evidence of any more senior person being involved in the distribution. Also of serious concern is the partnerships advertising of the availability to supply a prohibited drug to a customer base of 700 or more users.

45. As to subjective matters, before the Court is the offender’s criminal history, which indicates a single offence in 2012 of common assault in respect of which he received a s 10 bond. I regard that offence has having no relevance to the current sentencing.

46. Also provided to the Court is a bundle of material, being Exhibit Z1, containing a reference from Mr John Kandylas, dated 12 September 2018. Mr Kandylas is an accountant who asserts a personal and business relationship with the offender of ten years, who regards the offender well and indicates that he has expressed remorse and being deeply upset, although he does not indicate how that was expressed.

47. Further, there is a medical report from Dr Janaki Seermaran, dated 13 August 2018, being a referral to Professor Terry Diamond at the Prince William Wing at St George Hospital in relation to the offender. It refers to his current medications as being Augmentin, Florinef and two different forms of Hysone tablets, being in different strengths.

48. The offender suffers from congenital adrenal hyperplasia (CAH) and he requires the Florinef and Hysone as daily medication. He was further indicated in the referral letter as suffering from an anxiety disorder, depression and suicidal thoughts, these being in relation to his past medical history rather than an assertion as to his current history by Dr Seermaran.

49. As to the congenital adrenal hyperplasia, he was apparently diagnosed with that when he was approximately seven years of age, and has required ongoing medication since that time, and will require such medication for the balance of his life. Non-compliance with the medication can have serious side‑effects such as a hypertensive crisis and sudden heart attack. He requires a liver blood test every six months to monitor his treatment.

50. There is also a medical report from Dr Kuan, dated 25 May 2012, in relation to a “large bucket‑handle tear of the lateral meniscus”. There is no information before me that that continues to be of any problem, the injury having occurred in 2010.

36. There is a discharge summary from Bankstown Aged and Mental Health Care. He was admitted on 28 August 2015 and discharged on 1 September 2015, having been brought to the hospital by his brother after attempting to hang himself as a result of a failed relationship. Apparently at the time that he was discharged he was in good spirits and had hopes for the future.

37. There is a further document from South West Sydney Local Health District in relation to an attendance at hospital on 6 March 2018 indicating that he had been brought to hospital as a result of the sudden onset of a flush all over his body while driving a truck.

38. He was located by ambulance officers, who had been called, lying on grass and found to be hyperventilating. The only diagnosis provided was that it appeared to be stress‑related hyperventilation. There was no information as to any sequelae.

39. There is a further reference from West Trans, being a transport company, under the hand of Vhaislav Ilich, being the National Operations Manager, dated 13 September 2018. It indicates the offender since 5 May 2017 has been employed as a general hand and progressing to being an all‑rounder/heavy vehicle driver and eventually leading a group of drivers on behalf of the company. He is held in high regard by Mr Ilich, who is fully aware and was aware when the employment started, of the offender’s charges. He states:

“I have witnessed his hardworking nature and his ability to easily adapt to new roles within the company. I was aware of his offences when I hired him and notwithstanding his crimes I was convinced he was genuine and sorry about what he had done and I was prepared to give him a chance. I never once regretted my decision to take him on board; he encompasses all the important traits you look for in a worker, including reliability, punctuality and eagerness to learn. In addition to these traits Dimitri is well‑liked by his co‑workers and is always around to lend a helping hand even outside his own daily duties.”

55. He otherwise goes on to refer to the offender having expressed his sorrow in relation to his previous decisions to commit criminal offences. In addition, there is a letter from the offender dated 14 September 2018. I note that the offender did not give evidence on sentence, so that the Court could not assess for itself the issue of remorse and contrition. His letter is in general expressing his regret, remorse and contrition, particularly in relation to the effect on his family and the community. I note that he states:

“When I went to gaol I had the realisation how drugs had been the worst decision of my life and I vowed never again to do drugs, sell drugs or involve myself in any criminal activities ever again.”

56. It is a shame that that realisation had not come to him before he embarked on a career of providing prohibited drugs to the community at large. In addition, there are a number of urinalysis reports as to collections on 17, 24, and 31 August 2018 and 8 September 2018. No prohibited drugs were detected on urinalysis on any of those occasions. However, I note that they cover a very short span of time, the offender having been arrested on 27 October 2016.

57. The offender, in various documentation before the Court, has claimed to others that he ceased using prohibited drugs as of the date of his arrest. The only objective evidence is the urinalysis reports that I have referred to. All other references are simply his assertions. In addition, there are affidavits provided by the offender’s legal representative, Mr Pawel Kulisiewicz of Macquarie Lawyers, which in essence is in relation to the difficulties in ensuring that when the offender was arrested and in custody for six days, he received the appropriate medication.

58. In addition there is a confidential psychological initial report from Eleni Michael, psychologist, dated 22 October 2015, relating to the offender’s assessment and treatment for anxiety and anger issues relating to his recent self‑harm attempt, being the attempted suicide that I referred to earlier. He received treatment on 12 and 26 September 2015, 3, 13, 17 and 21 October 2015. The report indicates that his treatment was only in the initial stages, and that it might be thought to re‑refer him for a further four sessions under the Medicare scheme. There is no information as to any further referral.

59. In addition, there is a report from the Sydney Children’s Hospital dated 4 August 2004 in relation to his diagnosis with congenital adrenal hyperplasia and its seriousness. In addition, there is an affidavit from the offender. It restates some of the material in relation to his CAH and the need for ongoing treatment. It makes various assertions about the difficulty of getting treatment when previously in custody, the fact that he has attended on his psychologist on at least nine occasions at the time of the affidavit, being 20 September 2018 and asserting again that he is ashamed and disgusted by his actions and sorry for them, and claiming that he has not touched cocaine or any illicit substance since the date of his arrest. As I previously referred to, there is no objective evidence, with the exceptions of the four urinalysis reports which cover a limited span of time since he was arrested until today.

60. There are in additional two reports from a psychologist, Mr Awit. The first of those is dated 14 September 2018.

61. The offender is one of three children, being the youngest to his parents. He is said to have had an unhappy upbringing as he believed himself to have been the black sheep of the family.

62. Apparently he and his father always clashed, his father being an alcoholic who was violent to property but not persons, and who verbally abused the offender, belittling him and put him down since childhood. As to his education, he struggled with schooling due to a lack of interest. He attended the Connells Point Public School for primary school and then Maris College, Kogarah. He left school in Year 10. He was seven, I said six before, it was seven when the CAH was diagnosed as a result of the early onset of puberty.

63. He apparently no longer has an adrenal gland and it is said that any significant injury or increased stress can cause him to black out and may lead to a heart attack. He is required to take medication three times per day and variations to the regime can significantly impact on him. After departing school in Year 10 he commenced employment as a cabinet maker shop fitting apprentice for approximately a year and a half before being made redundant and then moving into the field of metal fabrication for a further period of approximately one and a half years.

64. He was then asked to work for his then partner’s father, labouring on cooling towers which he did for approximately one year before his relationship broke down and ended and the work also ended. He was approximately 22 at that time. He had a considerable amount of time off work due to his inability to cope with the break‑up. As previously noted, he has been recently employed by West Trans Logistics.

65. When he was 21, his then partner ended the relationship suddenly, having commenced to see someone that he knew, and he informed the psychologist that he remained in bed for approximately three months as a result.

66. He denies any illicit substance use prior to the end of the relationship in 2015, and commenced using illicit substances from the age of 22. This illicit substance use is said to have developed into an addiction quickly in respect of cocaine, and as he was struggling to maintain employment, he found it difficult to support his addiction, which of course led to the offences before the Court. Having attempted suicide in 2015, he denies any further suicidal ideation.

67. I note that he has over time, particularly since being diagnosed with CAH, suffered from symptoms of anxiety and depression. His current circumstances as at 14 September 2018 were said to have included an increase in anxiety due to the pending sentence, and there is a reference in the psychologist’s report to his having attended Narcotics Anonymous, although there is no information as to when that commenced or when it ceased, or even the duration of such attendances.

68. The psychologist indicates that he has expressed shame and remorse in relation to the offences, and the offender informed the psychologist that his drug addiction arose as a response to his ongoing anxiety and depressive symptomology arising from the relationship breakdown in 2015.

69. I accept that that may have been a significant factor in his turning to the use of the prohibited drug, but I do not accept that it was causal in relation to his offending over a three and a half month period in the manner in which he offended. No doubt his election to deal in prohibited drugs was an indirect result.

70. There is a further current reference from Mr Awit, dated 1 November 2018. It indicates that the offender has now had a total of some 13 consultations with Mr Awit to assist him in relation to any psychological needs.

71. There is a Sentence Assessment Report dated 30 October 2018 under the hand of Peter Fitzgerald; again it indicates that the offender has expressed remorse for his actions and that he appeared to have a level of insight into the impact of his offending and a willingness to undertake intervention as demonstrated by his current engagement with Mr Awit. He is said to have accepted responsibility but to have attributed his offending behaviour in part to his negative associates. Although the offender did not give evidence on sentence, I accept that he is indeed remorseful and contrite in relation to his offending.

72. He is assessed by both Mr Awit and Mr Fitzgerald as being at a low risk of re-offending. I accept in the circumstances that that is an appropriate, in each case, assessment.

73. It has been submitted by Mr James AM QC that this is a matter in respect of which the Court could appropriately be deal with by way of a sentence to be served by way of an Intensive Correction Order. Implicit in that is, of course, an acceptance that the offending conduct requires a sentence of imprisonment to be imposed because it crosses the s 5 threshold.

74. When the matter was last before me on 21 September 2018, I adjourned the matter to today for the sake of a full Pre‑Sentence Report being obtained, requesting special consideration as to the offender’s suitability for an ICO. However, as indicated on that occasion and during the proceedings, I had not formed a conclusion that a sentence of two years or less, which would then be eligible for consideration to being served by an ICO, would be appropriate and indicated that the request for the assessment should not be taken as an indication that such a sentence would be provided.

75. I have reflected on all of the material before me and I am of the view that a sentence of two years imprisonment or less would fail to reflect the objective seriousness of the offending conduct. As previously referred to, it was a significant distribution conducted over a period of approximately three and a half months, comprising a large number of separate transactions, and in all a significant sum of money and, in my view, a significant total of cocaine was involved ranging from supplies of 0.7 grams to 10.69 grams available on request for delivery in at least the Sydney Central Business District and apparently Kingsgrove and Hurstville areas.

76. Both specific and general deterrence are important in relation to this matter. In respect of general deterrence, offences conducted by way of mobile phone and delivery services are extremely difficult for the authorities to detect and infiltrate and they require in the circumstances significant sentences of imprisonment to be imposed as a deterrent to others.

77. I note that the offender has a medical regime which requires ongoing treatment. He was of course at the time of the offending fully aware of his medical condition, and must have inevitably taken into account in committing the offence that he would be at risk, if detected, of receiving a prison sentence. Nonetheless, he elected, despite knowing his own health requirements, to participate to a significant degree in offending conduct in relation to the supply of a prohibited drug.

78. As a result of the suggestion that prison would be hard for him because of his medical requirements and the risk of adverse consequences if his regime was not followed in prison and the defence relying on the material in relation to what happened during the time that he was originally in custody for six days as somehow being an indication of what would happen while in prison, a request was made for a report from the Justice Health and Forensic Mental Health Network for a report as to his treatment in custodyl. Such a report was provided to the Court by Dr Gary Nicholls of the Justice Health and Forensic Mental Health Network, dated 30 October 2018. In short, and simplified, his report indicates that there will be no difficulty in the offender continuing if in custody to receive an appropriate level of treatment on a daily basis in relation to his medications and also in relation to any required ongoing treatment or assessment.

79. I accept that there is a reasonable prospect of rehabilitation in the circumstances.

80. In determining the sentence, I have taken into account all of the matters that I have referred to.

Mr Zotos, would you please stand?

81. You are convicted in relation to the offence of supply a prohibited drug, being 50 grams of cocaine, between the dates of 15 July 2016 and 27 October 2016. When sentencing you in respect of that offence, I take into account the three matters contained on the Form 1, being possess anabolic or androgenic steroidal agent testosterone and Oxandrolone, and deal with property the proceeds of crime $6,680.

82. I have taken into account that those matters are relevant to the sentence to be imposed in relation to the supply of a prohibited drug and must result in at least some marginal increase on the sentence that would have been otherwise provided for the single offence, consistent with the Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 by giving greater weight to personal deterrence and retribution.

83. I also note Mr James’s submissions in relation to the recent amendment to the legislation in respect of sentencing and the increased relevance in the determination of sentence of the issue of rehabilitation. However, I do not accept in this matter that that brings the matter within the range of a sentence of two years or less.

84. The sentence is a non-parole period of 20 months which will backdated from today by six days to take into account the previous period of custody. The sentence will commence on 27 October 2018. The non-parole period will expire on 26 June 2020. The balance of term is one year, the total sentence being two years and eight months, so that is a sentence of two years and eight months commencing on 27 October 2018. The total sentence expires on 26 June 2021 and the non-parole period expires on 26 June 2020.

85. You should understand, Mr Zotos, that when released on parole, if you are in breach of the conditions of parole, you will almost inevitably be returned to custody.

86. I have made a variation in the statutory relationship between the term of the sentence and the non‑parole period in order to provide for a more significant balance of term, being one year, to assist in relation to Mr Zotos’ rehabilitation and return to the community. If I did not refer to it before in dealing with the subjective matters, I note that the offender was born in April 1993 and is approximately 25 years of age now. In my view, Mr Zotos is probably eligible for consideration of participation in a Compulsory Drug Treatment Order and so I will refer this matter to the Drug Court as a CDTCC referral.

HIS HONOUR: Is there any other matter, Mr James?

JAMES: Yes, the sentence is less than three years, is your Honour still required to make an automatic release order?

HIS HONOUR: No, there is now a statutory release for any sentence less than three years, so there is now no need to make the usual order for his release at the termination‑‑

JAMES: So that he will be released on parole by force of the statute at the expiration of the non‑parole period?

HIS HONOUR: Yes that's right.

JAMES: Could I indicate to your Honour also that a recommendation in line with what Justice Health has referred to in the report, that he be detained at a metropolitan correctional centre with immediate access to hospitals.

HIS HONOUR: Mr James, what I propose to do is to actually provide to Corrective Services now a copy of the report from Dr Nicholls as well as - I thought I had brought down copies of them, but Mr James, do you have any further copies of the reports that were part of Exhibit Z1?

JAMES: Is your Honour indicating Mr Awit’s reports?

HIS HONOUR: Mr Awit and‑‑

JAMES: We have a - I can provide your Honour with a bundle.

HIS HONOUR: ‑‑Dr Seermaran.

JAMES: I can provide your Honour with a bundle which includes Mr Awit’s report, the Kogarah Medical Centre report from Dr Seermaran and the other medical material giving the medical background, including the up to date report from Mr Awit.

HIS HONOUR: Yes, if you just hand up that material I’ll sort out what needs to go. I will provide a copy of the report of Mr Awit of 14 September 2018, the report of Dr Seermaran, being really a referral, of 13 August 2018, the report from Dr Thanos of 31 October 2016, the discharge summary from the MH Adult Discharge in relation to his suicide attempt, the document relating to his stress‑related hyperventilation from the Fairfield Health Service as to his attendance on 6 March 2018. I’ll return the remainder of the material you just handed up. Is there anything else you think is necessary, Mr James?

JAMES: Simply the recommendation, your Honour, from the Justice Health - if your Honour were to provide either the Justice Health letter which would then go to Corrections or alternatively to make a recommendation that is referred to in that‑‑

HIS HONOUR: Yes, well, that is part of the bundle that’s being provided, my associate already has that in order to hand it to Corrective Services.

JAMES: Your Honour’s recommendation would add some significance to Justice Health.

HIS HONOUR: That’s a matter for the authorities, Mr James.

JAMES: There is one peculiar matter, your Honour. A question has arisen concerning the new legislation and its effect, whereas here persons have asked the Court to take into account matters on a Form 1 by way of an addition to sentence. There is some controversy as a legal matter concerning the impact of that which can remove the area for discretionary consideration of an ICO from two years to three years. Where there are, as here, matters on a Form 1, it’s a matter for your Honour, and it might be appropriate, although normally a judge would not state the sentences or the admission to sentences that might be caused by taking the Form 1 into consideration, it may however be appropriate in a case of this kind if it should fall within the three years, having regard to the sentence that your Honour’s passed, it’s a matter for your Honour but it’s a matter I should raise since it may make some difference.

HIS HONOUR: Yes, all right, thank you, Mr James. I don’t agree with you, I don’t propose to take any particular course in relation to that. In my view the legislation is clear, I can’t see the problem. I’ll adjourn.

LAWRENCE: Your Honour. might I just for clarity I note that there was a sequence as a back‑up offence and I wanted to confirm that that’s been withdrawn.

HIS HONOUR: That’s sequence‑‑

LAWRENCE: Sequence 2.

HIS HONOUR: Yes I’ll note that sequence 2, being possess cocaine, is withdrawn and dismissed, and Mr Crown, do you need an order for the disposal of the drugs? I note there is - I’m not sure how much they interrelate but there is - well at least the steroids and so on require an order.

LAWRENCE: Yes.

HIS HONOUR: The balance I presume has already been destroyed because of the small quantities, and who was actually charged with possession of it.

LAWRENCE: Yes. The only other thing I’ve been asked to raise your Honour is I’ve been contacted by the solicitors for defence in respect of the co‑offender.

HIS HONOUR: Yes, I’m aware of their request that the reasons be made available because Mr Mitrou is the name of the co‑offender, is it, said to be a co‑offender.

LAWRENCE: Co‑offender, yes, your Honour, and he is technically part heard before‑‑

HIS HONOUR: All right, I will request that the reasons be provided with some speed as there is another relevant sentence matter in relation to another offender before the District Court or Local Court.

LAWRENCE: District Court before his Honour Judge Townsend.

HIS HONOUR: District Court on 9 November. But is he charged with the same offences? Probably not, I would’ve thought.

LAWRENCE: I believe there’s some in distinction but I’m not certain.

HIS HONOUR: There may be some overlap.

LAWRENCE: There is certainly overlap.

HIS HONOUR: I doubt if the reasons here have a lot to do with the sentence in that matter but who knows.

JAMES: I can indicate to your Honour we understand he’s charged with exactly the same offence, the facts differ slightly but not culpably materially and there’s some difference in relation to the Form 1 offence, that’s one of the reasons why I raised the question of the Form 1 offences with your Honour.

HIS HONOUR: Yes, well without a Form 1 I’m sure the person who has to deal with the co‑offender will make an appropriate decision. I’ll adjourn.

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Decision last updated: 01 March 2019