DPP v Kozak

1. Nicholas John Kozak stands to be sentenced today after pleading guilty to an offence of trafficking in a controlled substance other than cannabis, namely cocaine, contrary to s 603(7) of the Criminal Code 2002 (ACT), and an offence that has been transferred from the Magistrates Court of possession of property suspected to be proceeds of crime, contrary to s 114C of the Crimes Act 1900 (ACT). The maximum penalty for the drug trafficking offence is imprisonment for a period of 10 years or a fine. The maximum penalty for the offence of possession of property suspected be the proceeds of crime is imprisonment for a period of two years or a fine. Although a fine is a penalty available in each case, I do not consider that would be an appropriate penalty in this case.

Circumstances of Offending

2. The circumstances of the offence are set out in an agreed statement of facts. On 24 June 2022, police performed a traffic stop on a tow truck carrying another vehicle, both of which were owned by the offender. The offender and another person were in the tow truck. A search of the vehicles produced a black Samsung mobile telephone carefully concealed with what is described as a sophisticated concealment, and a hydraulic arm connected to the air conditioning controls. The phone and the hydraulic arm appear to have been placed in that way to facilitate the concealment of the phone and other substances. Police also found a freezer bag containing 90.858g of cocaine which, upon analysis, proved to have a purity of 28 percent, and benzocaine. There was also a Coles plastic bag containing 120 boxes of Panadol Extra, a known cutting substance. Benzocaine is also a substance commonly used to cut or mix with cocaine to increase its volume, decrease its purity and increase the yield and profits.

3. Months later, on 9 February 2023, police executed a search warrant on a white Ford Ranger owned by the offender. They located $10,000 in cash in that vehicle. A search of the offender's residence revealed a further $40,000 in cash held at the premises. There was forensic evidence connecting all of those items with the offender. The amount of $50,000 cash is the property suspected to be the proceeds of crime which is the basis of the transferred charge.

4. The offender was arrested on 9 February 2023. He spent one night in custody solely attributable to these offences. Objective Seriousness

5. The prosecution’s written submissions note the factors to be taken into consideration by the Court in determining the objective seriousness of a drug trafficking offence. Those factors were identified by the Court of Appeal in Bui v The Queen [2015] ACTCA 5 at [41]. The relevant factors are, firstly, the role of the offender. In the present case, as submitted on the offender’s behalf, I am satisfied that, while he is more than a street-level offender, he is not at the top of a sophisticated hierarchy. He seems, so far as the limited material before me reveals, to have effectively been running his own business in the trade of cocaine. It is clear that the index offence was not an isolated incident, and that he was indeed making some profit from the sale of that drug.

6. Secondly, it was noted in Bui that the amount of the drug is not of chief importance but remains a relevant factor. As to the weight of the drug, the prosecution noted that the quantity was 15 times the trafficable quantity of 6g specified in the Criminal Code Regulation 2015 (ACT). Conversely, as submitted by Mr Maher on behalf of the offender, it was considerably less than the next level specified in the Regulation, the commercial quantity, which is three kilograms: see Criminal Code Regulation s 8 and schedule 1. In short, I accept the offender’s submission that this, by reference to the weight of the drug, is an offence towards the lower end of offences involving the trafficable quantity.

7. Finally, the motivation for the offence is highly relevant. A pre-sentence report tendered at the sentence hearing records a comment by the offender that he had let his addiction control his choices and actions during that time. It was submitted on behalf of the prosecution that he had other choices, and that the primary motivation for the offending should be seen to be a financial motive, which would render the offence more serious. Doing the best I can, based on my reading of the pre-sentence report and accepting the submissions put on behalf of the offender, I accept that his use of the drug cocaine certainly informed his early decisions to sell the drug. It is known to be an expensive drug, and he frankly admitted developing an expensive habit.

8. The nature of the organisation found by police does suggest that he later moved into trading more for profit. Even so, I do not regard him to be a person at the high end of the scale of seriousness in terms of running an organisation purely for profit. I would assess his motivation to be mixed, probably involving a dominant motivation in the first instance of supporting a habit, but developing into a more commercial motivation at some point. I accept, as submitted by the prosecution, that the trafficking offending was not an isolated offence based on deemed trafficking by reason of the amount of the drug located, but rather that the circumstances suggest that the offender was in fact trafficking. That said, as I have already indicated, it is not the most serious of offences of its kind. I would assess the objective seriousness of the trafficking offence to be relatively low. The proceeds of crime offence is of similar seriousness.

Offender’s Circumstances

9. The circumstances of the offender are addressed in the pre-sentence report to which I have referred. It is a favourable report. It notes that the offender had a good upbringing with a supportive family. He reported his social circle to be prosocial. He reported some use of alcohol in his youth, including a period of what might be termed binge-drinking. However, since his arrest almost three years ago, he claims to have been abstinent and there is nothing in the pre-sentence report to contradict that. Indeed, he was subject to urinalysis testing for the purposes of the preparation of the intensive correction order assessment on two occasions and the tests returned a negative result with no illicit substances or alcohol detected.

10. The offender readily accepted responsibility for the offences, stating, as I have already noted, that he had let his addiction control his choices and actions at that time. The prosecution accepted that he has good personal qualities. He is assessed at a low risk of general reoffending.

11. In a separate report provided to the Court, the offender has been assessed suitable for an intensive correction order. In written submissions, the prosecutor observed rhetorically, “what is not clear is the correction that the offender requires”. If it was intended by that submission to suggest that a person who does not obviously require correction in the community should for that reason be considered less suitable for an intensive correction order, I respectfully reject that submission. The purpose of an intensive correction order is to provide a means of serving a term of imprisonment that is less punitive than full-time imprisonment, but at the same time serves the purposes of sentencing by providing ongoing supervision.

12. The offender tendered a vast number of character references. It is not necessary to summarise them in this judgment, save to say that they speak with a single voice as to his having strong personal qualities that augur well for his rehabilitation. I place particular weight on the fact that the offender enjoys the ongoing support of his parents and siblings. It is clear that they are hardworking people who have raised him well. That is a significant factor for his risk of reoffending: cf R v Barlow [2010] NSWCCA 215 at [48]. I am satisfied that he has good prospects of rehabilitation and that he is unlikely to reoffend.

13. The plea of guilty was entered only shortly before the date fixed for trial. However, that was in part due to the period of time that lapsed between the argument of a pretrial application and the determination of that application. I accept that the plea was entered promptly after the publication of that ruling. The offender submitted that, in all the circumstances, he should be allowed a discount of 15% to reflect the utilitarian value of the plea in accordance with s 35 of the Crimes (Sentencing) Act 2005 (ACT). The prosecution submitted that the discount to be allowed should be 10%.

14. The discount I propose to allow is somewhere in between those two figures. To allow for a neater structure of the two sentences, I have applied the discount in a manner that does not exactly reflect the same percentage in each case in the sense that, for ease of calculation and simplicity of the terms of imprisonment, I have applied more discount to the trafficking offence and less discount to the sentence to be imposed for the other offence. However, the overall calculation reflects the proper discount. I propose to impose sentences which, after the application of a discount of between 10% and 15%, will give a total term of imprisonment for two years. I am satisfied that it is appropriate for the offender to serve that sentence by intensive correction.

Orders

15. Nicholas Kozak, please stand: (1) I convict you of the offence of trafficking in a controlled substance other than cannabis, namely cocaine (CC2023/1549), contrary to s 603(7) of the Criminal Code 2002 (ACT). For that offence, I sentence you to a term of imprisonment for 21 months commencing on 18 December 2025 and expiring on 17 September 2027. (2) I convict you for the offence of possession of property suspected to be the proceeds of crime (CC2023/1554) contrary to s 114C of the Crimes Act 1900 (ACT). For that offence I sentence you to a term of imprisonment for 3 months commencing on 18 September 2027 and expiring on 17 December 2027. (3) Pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT), I order that the sentence of imprisonment be served by intensive correction in the community on the following conditions: (a) The core conditions listed in s 42 of the Crimes (Sentencing) Act 2005 (ACT); and (b) A community services condition that the offender perform 200 hours of community service. (4) I direct that the 200 hours of community service be performed within the term of the sentence, which is a period of two years from yesterday, 18 December 2025.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum. Associate: Date: