[2010] NSWCCA 194
R v Anderson (1981) VR 155
R v Henry [1999] NSWCCA 111
(1999) 46 NSWLR 346
Source
Original judgment source is linked above.
Catchwords
[2010] NSWCCA 194
R v Anderson (1981) VR 155
R v Henry [1999] NSWCCA 111(1999) 46 NSWLR 346
Judgment (14 paragraphs)
[1]
Solicitors:
Chidiac Legal (for the offender)
C Buckthought for Public Prosecutions (NSW) (Crown)
File Number(s): 2022/44933
[2]
Agreed facts
In 2021 the New South Wales Police established a strike force to investigate the supply of prohibited drugs in the Illawarra. As the resident judge I have already dealt with a number of people apprehended because of that police operation.
Police used a number of surveillance techniques in their task. Their suspicions having been alerted, an optical and listening devices were installed in a storage shed used by Cavit Alpertonga. Their suspicions were also alerted by the fact that he was using an encrypted phone service.
Cavit Alpertonga has a cousin, Abdulkarim Alpertunga. He was also a suspect in the police operation. Though his matters were listed for sentence today, they have been adjourned until later in the year.
R v Alpertonga [2023] NSWDC 606 | Case summary | Zoe
On 19 January 2022, with his cousin, Alpertunga was detected opening a vehicle stored in the shed. His cousin unzipped his jacket and placed five black gloves in a car battery storage box. It is accepted that each of those gloves contained an ounce of cocaine. The facts still use imperial measures. In total it was 140.175 grams.
On 20 January 2022, while his cousin waited outside, Alpertonga entered the shed and removed two of those gloves, that is, 2 ounces of the drug. On 22 January 2002, in the presence of his cousin and another man, he produced three of the bags but left with only one of them. On 25 January 2022 he attended the unit by himself and took another of the gloves. The agreed facts do not tell me the fate of the remaining ounce of cocaine.
He continued to attend the shed between 25 January and 13 February 2022. On 13 February, Alpertonga and his cousin again entered the shed, his cousin had a black satchel bag with him. It appears to the police that things were being hidden in the shed.
On 14 February 2022 police executed a covert search warrant at the shed. They found $72,750 packed in bags. One of the bags containing money was examined. The offender's fingerprints were found on it.
On 15 February the surveillance device records Alpertonga and another acquaintance entering the shed. Alpertonga is recorded as saying, "it's gone … my money … it was right there, fucking hell bro … I swear to God bro. There was about 75 grand there." Later that day Alpertonga was arrested. Police searched his home, and a further quantity of cash was found. Also found were black PVC gloves that matched that used to package the cocaine.
The agreed facts indicated that the usual street value of an ounce of cocaine was between $7,500 and $8,000. 5 ounces, that is 140.175 grams, had an estimated street value of between $37,500 and $40,000.
[3]
Plea of guilty
When he was in the Local Court, Alpertonga admitted his guilt to two serious offences:
Knowingly Take Part in the Supply of a Prohibited Drug: s 25(1) Drug Misuse and Trafficking Act 1985 (NSW), that offence has a maximum penalty of 15 years' imprisonment; and
Deal with Property Reasonably Suspected of Being the Proceeds of Crime: s 193C(2) Crimes Act 1900 (NSW), that offence has a maximum penalty of 3 years.
Those maximum penalties are important guides to the exercise of my sentencing discretion.
[4]
Strict bail
Alpertonga spent 3 days in custody before being released to very strict bail for a short period. It amounted to home detention. His bail conditions were moderated during his time in the community. There were exceptions to enable him to leave with family members to attend medical and legal appointments, to go to work and to attend his mosque. There were drug and alcohol restrictions, non-association and non-contract restrictions, travel restrictions and he had to surrender electronic devices to police. There were curfew and curfew compliance conditions. Police had power to inspect his phones and computer. There was drug testing. He has kept to those strict bail conditions.
[5]
Objective seriousness
Any sentencing exercise requires an assessment of the seriousness or gravity of the offence. It is a critical component of the sentencing process. I sentence according to the agreed facts.
It is accepted that Alpertonga knowingly took part in the supply of drugs. The agreed facts reveal that he provided premises for the storage of the drugs and took other steps to facilitate their supply: s 6 Drug Misuse and Trafficking Act. So far as the money is concerned, the agreed facts are silent as to the source of that money. It is a significant quantity of cash for someone who is otherwise employed as a cement renderer.
The obvious inference is that the money had something to do with the supply of illicit drugs, but whatever its source, any illicit cash in the community can be used to promote other crimes, to purchase drugs, or for legitimate purposes. As tax is not paid, the community suffer.
The amount of cash, and the offender's apparent acceptance that it was his, means that the community dangers inherent in illicit cash being allowed to circulate mean that this is a reasonably serious example of its type.
So far as the supply offence is concerned, there are many matters that are often used to determine the objective seriousness of such offences that are absent here. There is no evidence he provided the funds or as to what, if any, his share in the profit might be. There is no evidence of any role in the management or operation of the supply, or that he engaged in any commercial supply in the sense of dealing directly to users. There is no evidence that he had any decision-making role apart from his control of the storage facility.
He appears to have had the role of warehouseman, but as the Crown submission notes, by reference to the decision of Wood CJ at CL in R v Shi [2004] NSWCCA 135 at [34], absent the involvement of people such as Alpertonga, drug supply networks would simply collapse.
The agreed facts establish that he was involved in the supply of a significant quantity of illicit drug. His crime was committed without regard to public safety. There was some organisation, although I could not accept the Crown submission that it was sophisticated.
I am not required to nominate this offence on some hypothetical range: R v RE [2023] NSWCCA 184 at [35]. But each crime was so serious that a custodial sentence was warranted. One reason for harsh sentencing is to signal to the community that anyone who involves themselves in the distribution of illicit drugs, particularly a quantity of 140 grams, faces the real risk of having their liberty taken away from them, and not just by bail restrictions, but by having a cell door close on them.
[6]
Subjective case
The offender is still a young man. He was born in 1989. He has had one appearance in a Local Court, but I treat him as a first offender. He is entitled to the leniency often given to first offenders. I am sure having his liberty taken away and his onerous bail conditions had a salutary lesson on him. This will be taken into account in reduction of sentence.
There is a brief Sentence Assessment Report. That report indicates that he is capable of performing community service. It does not go into any significant details about his background or the circumstances of the offence. It does not address his drug use or need for rehabilitation. But it does indicate that he is at low risk of reoffending, perhaps as a consequence of him demonstrating his capacity to abide by his bail.
I have the benefit of a comprehensive psychological report from Ms De Santa Brigida (Exhibit 1), to which I will soon refer, and a letter from the offender (Exhibit 2). He did not give evidence but there is nothing controversial in this evidence. Nothing in the subjective material goes to objective facts or my assessment of objective seriousness of the offence. I believe I can act on what is set out.
He asked for a chance. He says that his arrest was a "blessing in disguise" because it has helped him change his life. He had been "in a dark place," and he thought he would never make his way out of it. He is very proud of the support that he has received from his family.
He says he is deeply sorry, but as Madam Crown points out, while that can be accepted, his reflection is more about the loss to himself and the harm he has caused his family. It shows no insight into the harm illicit drugs cause the community, both individual users and the community in general.
There is a character reference from a fellow worshipper at his local mosque (Exhibit 3). He who speaks of the offender's attendance at the mosque and his engagement in mosque activities, including helping serve and cook food for charity fundraisers. There is a letter from his employer (Exhibit 3) who speaks of him as a "hardworking, reliable, and trustworthy employee" and a person of good character.
[7]
Drug use
I am prepared to accept from all the material before me that he did have a cocaine use problem and that he required funds to support his habit. He also appears to have been tempted by the lifestyle associated with drug use and the easy access to cash associated with the drug trade.
I am prepared to accept the material before me that he has had, during his time on remand, to make some important choices, to go down the path of association with criminals and drugs or to go back to his family and take the support that they offer, to work with the mosque and others, to be a hardworking member of the community. It would appear on the material before me that having attended at the crosswords, he has made the right choice. But I must still consider the seriousness of the crime for which he is to be sentenced today: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346.
[8]
Psychological report
Ms De Santa Brigida's report is important in a number of respects. It sets out his family history, which is uncontroversial. He was not exposed to neglect, physical or other abuse, he has strong family support. She reports him saying, "I'm very remorseful. I was stupid thinking I was cool. It was out of my character and it wasn't worth it."
The Crown submissions stress, appropriately, the need for sentences for drug supply matters to carry with them an element of general deterrence, that is, by the severity of the penalty imposed to bring home to members of the community exactly what this offender now understands; that being involved in drug supply and having access to large sums of illicit cash is "stupid", and ultimately, is not "cool". It is inconsistent with a person whose family history and background disposes them to being a good community citizen, not a bad one.
Sadly, as is often the case, it takes arrest and the prospect of gaol to bring that lesson home to individuals and, sadly, no matter how often judges say if you get involved in the supply of drugs you could end up in gaol, few people listen. The message is sought to be reinforced by heavy maximum penalties and gaol sentences, which sadly, take a while to filter through to individuals in the community.
Importantly, Ms Santa Brigida's professional interest piqued some important things revealed by the history that she was given. Alpertonga in both primary and high school, was in special education classes. She then conducted a number of comprehensive tests to ascertain Alpertonga's level of intellectual functioning. Her testing revealed that although superficially capable of working and existing as a normal community member, he has a number of intellectual problems. She concludes:
"Whilst it is evident Mr Alpertonga has made adaptions in his everyday life, he scored in the extremely low range in the conceptual domain, or as high, or higher, than only 2% of [his] age matched peers."
She also noted that his "offending appears to have paralleled his substance abuse problem."
Her testing, which is comprehensive and set out in the report, puts him at an extremely low range of intellectual functioning as measured by accepted testing. He does have struggles with areas of executive functioning. The tests were designed to avoid any suggestion of malingering and deception. Those struggles, I am prepared to accept, while not causally related to his offending, made him more vulnerable than others who do not have that disability, and therefore require a nuanced approach to sentencing.
[9]
Intellectual disability
Intellectual disability attracts the same application of proper principles as they do for a person with a mental illness: R v Anderson (1981) VR 155. It can involve an amelioration of their moral culpability with a consequent need to denounce the crime. A person with the level of intellectual functioning revealed as here, is a less appropriate vehicle for those general deterrence principles the Crown submissions speak to.
If he was gaoled, Alpertonga would be more vulnerable to antisocial influences than if he was in the community. He would find his time in custody more onerous than a person without his disability. Generally, people with an intellectual disability need help in recognising and applying learned behaviour, making them more vulnerable to influence in a positive way, but also a negative way: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
In her risk assessment Ms Santa Brigida appropriately focuses on dynamic risk areas. It would appear that the strict bail he was placed on removed him from the influence of others who saw drug use and access to illicit money as being "cool".
His heavy drug use put him in contact with those who supply drugs. His pay as a concrete renderer would not have met his need for the drug. He involved himself in the drug trade. But it needs to be said again, the need to acquire funds is not an excuse to commit crimes and is not of itself a matter of mitigation.
It is also clear, as the Crown points out, that he was interested, by his own admission to Ms Santa Brigida, in obtaining funds to pay for a wedding and to fund his lifestyle, funds that were not available to a concrete renderer. He saw a way of leading a lifestyle that was not deserved by hard work.
Drug use can explain the impulsivity of offending. Here it is more relevant to his subjective case because it enables me to consider what steps can be taken to overcome the problem and impacts on his prospects of recidivism and rehabilitation, which in turn go to the question of community safety.
It is of particular importance where a person using drugs also has an intellectual disability and because of that disability means that they have less capacity to exercise appropriate judgment and personal choice. It is particularly important here where steps can be taken to address underlying problems.
[10]
Submissions
I am indebted to Ms Buckthought, solicitor for the Director of Public Prosecutions, for her written and careful oral submissions. I am grateful to Mr Royce, for his comprehensive written and oral submissions.
Mr Royce noted that there were a multiple number of mitigating factors, as set out in s 23(3) Crimes (Sentencing Procedure) Act 1999 (NSW). The offender has no criminal record. He is a person of otherwise good character. If he keeps to the promises he has made to his family, he is unlikely to reoffend, and his prospects are good.
I must be guarded in finding he is remorseful, but he has certainly shown regret and acceptance of responsibility. And of course, there is his plea of guilty, which is taken into account generally, and requires a reduction of 25% in any indicated sentences.
Two areas of dispute between the parties were:
1. The level of sophistication of this operation, to which I have already alluded; and
2. The question of whether the offender voluntarily desisted from offending prior to being caught.
There is no evidence that he was otherwise involved in the supply of illicit drugs, but the absence of evidence is not evidence of absence, and he still had access to the large sum of cash. There is also a submission that these matters could have been disposed of in the Local Court. With respect, the decision - to send the matter to this Court - is a matter for the Director of Public Prosecutions. "Unless this Court is able to clearly determine the offence in question … ought to have remained in the Local Court, then this argument is theoretical at best": Wise v R [2006] NSWCCA 264 at [31] and Zreika v R [2012] NSWCCA 44 at [109]. Both matters were of sufficient seriousness to be dealt with in this Court. With respect I do not give that submission any weight.
[11]
Structure
There are two matters for sentence, they are separate and, on the facts before me, distinct. They require independent punishment. But many of the purposes of sentencing overlap and considerable concurrence is required.
It is accepted in both submissions that custodial sentences are required, that is, the threshold in s 5 Crimes (Sentencing Procedure) Act has been crossed.
[12]
What is an appropriate sentence in a case such as this?
When I consider the quantity of drugs and the harm drugs cause the community, there is a community interest in appropriate and just punishment for offences, including those where a person provides storage for illicit drugs. That said, the community has to understand that problems caused by illicit drugs cannot be solved simply by arresting or gaoling our way to a solution: W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, "Supply-Side Reduction Policy and Drug-Related Harm" (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1.
There is a wealth of evidence that harsher prison sentences for users and conventional law enforcement cannot cure the social problems, the health problems, and the personal problems, ultimately the policy problems, related to drug use in our community: NSW Bar Association, "Drug Law Reform" (November 2014) 24 Criminal Law Committee Discussion Paper 1; United Nations Office on Drugs and Crime, "World Drug Report" (2009) 1, 163.
The purposes of sentencing require custodial sentences for both matters be formulated. So much is accepted. When I come to then determine the length of the sentence, I have to take into account all of the relevant matters to which I have alluded, including the purposes of sentencing. Those purposes do not all point in the same direction.
Having determined the length of the independent penalties to be indicated and considered matters relating to totality of punishment, aggregate sentence of less than 3 years can be imposed.
A defence submission is made that community interest and community safety would best be met by Alpertonga serving his sentence in the community, subject to strict conditions.
The concept of community safety, as used in the s 66 Crimes (Sentencing Procedure) Act, is broad. As the section makes clear, community safety is not always achieved by simply locking someone up. The concept recognises that in many cases incarceration can have the opposite effect. The evidence here, is that an easily influenced man with an intellectual disability has fallen into involvement in drug supply because of his drug use and criminal contacts. The evidence is that he would not benefit from being locked in a cell with drug users and other criminals. While his intellectual disability has already been taken into account when it came to formulate the length of the sentence it is of additional importance in this consideration.
The concept of community safety is inextricably linked to a person's rehabilitation. The High Court in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 set out relevant principles. They were helpfully summarised by Gleason JA in R v Zheng [2023] NSWCCA 64. They really require a forward-looking approach.
To sentence this young man to gaol would be a backward-looking approach. I believe that the community safety and the community interest would best be served by this man serving his sentence subject to supervision in the community. I will direct that the sentence be served subject to intensive correction in the community.
[13]
Orders
Mr Alpertonga, if you could stand, please.
What all that means is that a gaol sentence is about to be imposed upon you. That sentence will be effectively hanging over your head, it will be hanging over your head for a period of 2 years and 3 months. That sentence has been reduced because of all the material before me. The decision that it be served in the community is one that is focused on your rehabilitation. I made that decision in the community interest noting the need for community safety. You would be perhaps worse off if you went to gaol rather than being released into the community. But that does not mean that if you breach the conditions of the Intensive Correction Order that you will not be sent to gaol, but that will be a decision for the State Parole Authority.
There is a standard condition of your Intensive Correction Order that you be of good behaviour. That is important - no crime. If you are not of good behaviour you could serve the balance of your sentence in custody. You must report to Community Corrections Wollongong tomorrow, today, but within 7 days. You have to accept their supervision.
There are four additional conditions:
1. That you perform 250 hours of community service. That may interfere with your paid work. Well, that work is going to have to suffer, you cannot refuse to do your community service;
2. That you engage in drug rehabilitation and relapse prevention programs as directed. They will put you in touch with people who can provide those programs;
3. During the period, you shall abstain from taking illicit drugs and submit to drug testing as required; and
4. Finally, there is a non-association order with your cousin, Abdulkarim Alpertunga.
Those conditions will be explained to you by your solicitor and the Court's Registrar.
In relation to each matter, you are convicted. The sentences I will indicate reflect the 25% reduction for your early plea of guilty.
In relation to the Knowing Take Part in Supply, there will be a sentence of 1 year and 10 months. In relation to the Possess Proceeds of Crime, there will be a sentence of 1 year and 1 month.
There will be an aggregate sentence of 2 years and 3 months to be served subject to intensive correction in the community. It will commence today and expire on 3 January 2026. The conditions of that Intensive Correction Order are those I have just explained to you.
I will make a forfeiture order to the State of New South Wales in the sum of $79,650. I will sign it in chambers if you need a formal order.
A copy of Ms Santa Brigida's report (Exhibit 1) should be forwarded to Community Corrections, as that will assist them, I am sure.
[14]
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Decision last updated: 28 February 2024