HIS HONOUR: Mark Nectarios Cardamis stands for sentence as a consequence of pleading guilty to a charge that on 3 September 2016 at Surry Hills in this State he did supply a prohibited drug namely 10.39 grams of cocaine. That is an offence contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985. That maximum penalty for that offence is 15 years imprisonment and/or a fine of 2,000 penalty units. There is no standard non-parole period. The offender asks me to take into account on a Form 1 two other offences: one of supplying a prohibited drug namely 0.75 grams of cocaine and one of supplying 4.4 grams of the drug 3,4 methylene-dioxi-methylamphetamine commonly known as ecstasy, the amount of ecstasy which the offender had in his possession, which was a trafficable amount, was 3.5 times the indictable amount of that drug.
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Facts
The facts are fairly straight forward. On Saturday 3 September 2016 police were conducting patrols in the area of the Clock Hotel and the Dolphin Hotel which are on Crown Street, Surry Hills. Their surveillance included keeping watch at about 11.45pm. At that time the offender was driving a white Hyundai with his younger brother as his front seat passenger. The offender stopped his vehicle in front of the Clock Hotel where it was sighted by the police. Police then followed the offender's vehicle as he drove along Crown Street and then into Bourke Street where he stopped it in front of the Beresford Hotel. When it was stopped outside the Beresford Hotel police observed RB enter the rear seat of the vehicle. The offender then drove around the corner, performed a U-turn and stopped again in front of the Beresford Hotel. RB then alighted from the car and she was intercepted by the police. It is agreed that while RB was in the offender's vehicle the offender supplied to her 0.75 grams of cocaine. That is one of the matters to be taken into account on the Form 1.
Police then stopped the offender's vehicle. Police advised the offender that they intended to search him and his vehicle as they suspected he was in possession of prohibited drugs. The offender told the police that they were not entitled to search his vehicle as they did not have a warrant. That view of the law was erroneous and the police advised the offender that they did not need a warrant to do so. There was then a little interaction between the offender and the police and eventually the offender and his brother got out of the Hyundai. Police searched the driver's door compartment and found a torn vacuum-sealed bag containing 14 small resealable bags which were later found to contain cocaine and a white envelope containing eight resealable bags which were later found to contain ecstasy. The bags containing the cocaine were clear plastic with a purple sealing strip. When police searched RB they found an identical bag containing the 0.75 grams of cocaine that she had purchased from the offender.
In their search of the offender's vehicle police found two mobile telephones, one of which was a black Nokia that was in the driver's door compartment with the drugs, the other was a white Samsung phone that was in a holder designed to take it near the steering wheel. Police examined the offender's black Nokia telephone and found an incoming message from RB timed at 11.32pm which clearly was an attempt by RB to make contact for the offender with the purpose of his supplying her with a drug. There was similar message from RB to the offender making the arrangements. Later when the black Nokia was in the possession of the police messages were sent to it consistent with the supply of a prohibited drug. Those messages were sent to the phone on 9 September 2016 and 10 September 2016 clearly after the offender's arrest on 3 September 2016. Police examination of the white Samsung telephone indicated that it was not being used for the purposes of supplying drugs. It appeared to be the offender's personal telephone. Police also examined the offender's younger brother's telephone but that did not disclose any evidence consistent with its being used in drug trafficking.
The offender was taken by the police to the Surry Hills police station where he agreed to be interviewed. He told the police of his personal circumstances and admitted that he used cocaine and ecstasy but he had not done so on this evening but he had had some alcohol to drink at the Clock Hotel. The offender also told the police that he did not know anything about the drugs or the black Nokia telephone which were found in the door compartment of his vehicle, but the offender by his plea admits that he did.
The drugs were late analysed forensically and the 14 resealable plastic bags contained a total of 10.39 grams of cocaine with a purity of 57.5%. If I divide 10.39 grams by 14 it indicates to me that the average content of each small resealable plastic bag was 0.792 grams which is very close to 0.8 grams which is the usual quantity of cocaine supplied in Australia. The going rate for supplying that drug is $300 per bag which is admitted in the agreed facts in this case and is consistent with other cases of cocaine trafficking with which I have been involved in recent months. The eight resealable plastic bags contained 4.4 grams of ecstasy with a purity of 62.5%.
It is clear that the second matter on the Form 1 is the deemed supply of the ecstasy contained in the eight resealable plastic bags found in the offender's vehicle and his primary plea is to the deemed supply of the 14 resealable plastic bags contained in his car at the time of his arrest.
There was clearly one supply to RB, the circumstances strongly suggest that the offender intended to supply at least some, if not all of the other 14 bags of cocaine and perhaps also the bags of ecstasy.
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Personal circumstances
The offender comes before this Court as a man of prior good character, he has no criminal history whatever. There is no suggestion that he has at any earlier time involved himself in supplying drugs. The offender was born on 18 October 1986 he is presently 30 years old. At the time that he committed these offences he was 29 years old. How he came to be involved with drugs is set out in the history which he gave to Mr Neil Ballardie, a clinical psychologist under whose care the offender came on 17 November 2016. That history is this:
"Mr Cardamis started consuming alcohol regularly when he was about 18 years of age. His pattern of consumption was to binge drink with friends on weekends. This lasted for about a year. After this his pattern reduced to drinking to moderation once a week with the occasional binge drinking a few times a year. He believes he does not have a problem with his level of alcohol consumption. Mr Cardamis said he tried cannabis once but did not like it. He tried MDMA when he was 21 years of age but at the time felt it did not have much effect on him. When he [was] 28 years he began socialising with a group of people who were into taking drugs. He tried cocaine with them occasionally and found it helped significantly with his concentration. He said he started consuming it more regularly when he was 29 years of age when he had programming deadlines at work. He said he was surprised how much it assisted him to focus. He said when he went out to clubs with these new friends he also started taking MDMA, which he found made him more confident and easier to engage. He said mixing cocaine and MDMA made him feel calmer, less anxious and more social. However, he commented that he felt more depressed and anxious the next few days following the taking of these drugs. He said that while he began to prefer taking cocaine by himself as it helped him when solving complex problems and when he felt he needed to socialise more, he would occasionally combine it with MDMA when he went out. Mr Cardamis said he has not taken any other prohibited drugs and had never abused prescription medication."
It would appear that when he was 28 he fell into unsuitable company, with peers who led him astray, that he then succumbed to taking cocaine and ecstasy. The evidence before me does not tell me why the offender took to supplying the drug, it may be as a way of reducing the cost to himself. Such is the usual pattern of those who become involved in supplying drugs.
For many, many years the policy of the law as stated continually by the Court of Criminal Appeal was that a person who supplies drugs on more than one occasion to a degree where his or her activities could be described as "trafficking" or who is substantially involved in supply, must receive a fulltime custodial sentence unless there are exceptional circumstances. This principle is usually referred to as a principle in R v Clark (NSWCCA, 15 March 1990, unreported). However my research in another case indicates the principle had been stated by the Court of Criminal Appeal in the 1970's. The Crown has submitted that in this case the offender was involved in drug trafficking and that there are no exceptional circumstances to warrant a non-custodial penalty.
However, in recent times there has been some amelioration of the "policy" and an explanation of its origin and purpose. The relevant authorities are EF v R [2015] NSWCCA 36 and Robertson v R [2017] NSWCCA 205, a decision which was handed down after this sentence hearing commenced on 20 July 2017 when I ordered the preparation of an ICO report. In Robertson v R, Simpson JA with whom Harrison and Davies JJ concurred, reviewed at length the history of the "policy" that those involved in drug trafficking should be sentenced to a fulltime custodial sentence and indicated that the authorities unduly fettered the discretion of a sentencing Judge and that since the court had been empowered to make an ICO such a penalty could be imposed, even for those involved to some extent in drug trafficking. The extent of this offender's trafficking was small. However, it would have continued but for the intervention of the police and the offender's apprehension.
The offender has a very strong subjective case. The offender was born in Australia and grew up in the Eastern Suburbs of Sydney. He has two older brothers and a younger brother. His nuclear family was intact until his father died about four years ago. The offender described his father as a hardworking, considerate and loving man who always put his family first. Unfortunately the offender's father was 50 years old when the offender was born which made it somewhat difficult for him to feel close to his father because of the age difference.
The offender described his mother as a strong and independent woman whose first role in life was the raising of her children. The offender considered that he had a well-adjusted, fairly normal upbringing although he may have been somewhat overprotected by his Greek mother.
The offender was a high achiever at school, his primary and high schooling were completed at the St Spyridon College. He studied hard. He matriculated and then attended university and graduated in engineering. His engineering degree is in mechatronics and in electrical engineering. He has in recent times been self-employed in his profession. According to Mr Ballardie the offender's level of literacy is above average and his intellectual functioning appears to be in the high/normal range. There was no indication that the offender has suffered from any major mental illness and he has had no significant medical problem. Everything points to his being led astray by a poor peer group.
Since his arrest the offender has sought to bring his life under control. He commenced seeing Mr Ballardie on 17 November 2016 on referral from his treating General Practitioner, Dr Alexandra Hodgkinson. The referral was because it was thought that the offender was suffering from depression and anxiety. I hasten to point out that anyone who had been arrested and charged with a serious offence and might be facing a fulltime custodial sentence would be anxious and depressed. Unsurprisingly Mr Ballardie thought the offender was suffering from anxiety and depression. He also thought the offender was suffering from ADHD and had been suffering that condition throughout his schooling and university career and believed the offender should be treated for it. For obtaining a better diagnosis the offender was referred to Dr Nicholas Cassimatis who did indeed diagnose ADHD and commenced the offender on a course of Ritalin. The offender first saw Dr Cassimatis on 8 December 2016. In a report of 13 July 2017 Dr Cassimatis said this:
"..he was functioning better with psycho-stimulant medication. Without it he was much more distracted, inattentive, disorganised, impulsive, likely to follow peer pressure and be more likely to seek simple routes to solve problems.
Therefore it was my view that there was a link between the offending conduct and the mental health condition.
The mental condition of ADHD was currently in remission because of his taking the medication Ritalin, 10 mg tablets, and it was working significantly well. While taking this medication there was a great prospect for him to be rehabilitated and unlikely to reoffend."
The offender also commenced on 22 November 2016 the Positive Lifestyle Program and he has completed it. The components of the program were self-awareness, anger management, depression, stress, loneliness, grief and loss, creative problem solving, assertiveness, self-esteem and goal setting. The offender has remained abstinent from illicit drugs since his arrest and there are before me a large number of drug assays to prove that fact.
Some relevant information is also contained in the ICO report. The maker of the report, Mr Bruce McSoriley, contacted the person for whom the offender was working and that person said that the offender's work ethic was excellent and that he was conscientious and his relationship with his fellow workers was positive. In the past the offender has had relationships with young women. According to the ICO report the following has occurred:
"Mr Cardamis advised that he met his current partner, (an overseas student from Brazil) soon after he was arrested and charged with the offences. He said that his girlfriend graduated with a degree in Engineering from a University in Brazil and came to Australia three years ago to learn the English language. His partner was interviewed and stated Mr Cardamis and herself enjoyed a close relationship and that she is supportive of him, particularly at this present time."
The ICO report also tells me that the offender has attended a SMART drug recovery program at St Vincent's Hospital since his arrest and appears to have completed that course.
The offender's chances of reoffending are in my view low, the prospects of rehabilitation are excellent. In my view it would be contrary to the offender's rehabilitation to incarcerate him on a fulltime basis. Equally that would not be in the interests of our community, in the interests of the State. He has an important, worthwhile work and he is behaving appropriately in our community and has much to offer.
Despite the stated policy of the law, statistics available to me from the Judicial Commission indicate that as at September 2016 197 persons have been sentenced in the preceding seven years for supplying cocaine in an amount less than the commercial quantity. Only 32% of those persons were sentenced to imprisonment fulltime, 39% of those persons were given a suspended sentence pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999, 18% of those persons were punished by the imposition of an Intensive Corrections Order.
The offender has also put before me a reference indicating what comes through from all the other evidence before me that the offender is otherwise a man of good character and held in high repute in his community.
The offender is contrite, in his letter to me, exhibit 6, he said this:
"The arrest was a wake-up call and [I] have been extremely ashamed of my actions. It has been difficult to speak to my family, who are active members in the church community about the arrest as I know they would not be proud of me. Spending more time with my family now though has given me a different perspective on life. I was not the best role model to my younger brother who was present on the day of my arrest and I wish I played a better role in being a protective older brother."
Mr Ballardie on the same subject said this:
"Mr Cardamis acknowledged his mistake in committing the offence and said he was ashamed and disappointed by his behaviour. He said one positive thing to come out of what happened to him was finally getting the help he has known for a long time he has needed, being diagnosed with adult ADHD and receiving treatment for this disorder. He said he understands better now the negative impact of drugs on society, how it ruins people's lives and how easy it is to become addicted. He said he no longer socialises with the people he previously took drugs with and he feels he has nothing in common with them. I believe he has taken full responsibility for his actions and is genuine in his remorse and regret over the index offence."
Mr Ballardie has been seeing the offender regularly since 17 November 2016. His report is dated 16 July 2017 and in it he said that his intention was to continue to treat the offender and the next scheduled appointment that he had with the offender was on 8 September 2017 which would indicate he was seeing the offender almost every two months. I am persuaded that the offender is truly remorseful, that he realises the actions that he undertook had the prospect of ruining the lives of others and that fact is well known to any Court where at least two thirds of all criminal offences result from illicit drug taking, in one way or another.
The offender pleaded guilty at the earliest available opportunity and the Crown concedes that the offender is entitled to a 25% discount for the utilitarian value of his plea and for the remorse that it shows.
Happily the ICO assessment report prepared by Mr McSoriley dated 6 September 2017 tells me that the offender is suitable for the imposition of an ICO, that he has signed an undertaking to comply with all the obligations of an ICO. The offender made it clear to Mr McSoriley that he would make time available on weekends to perform the community service component of such an order.
I have reached the view that the starting point for the offender's crime is a sentence of 18 months imprisonment, I discount that by 25% to account for the offender's early plea of guilty. That reduces the head sentence to 13.5 months which I round down as required by the authorities to 13 months. It is in my view appropriate that the sentence be served by way of intensive correction in the community.
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Sentence
Mark Nectarios Cardamis, on the charge that on 3 September 2016 at Surry Hills in this State you did supply a prohibited drug namely 10.39 grams of cocaine you are convicted. I sentence you to imprisonment for a term of one year and one month commencing today. I order that the sentence be served by way of intensive correction in the community. You are to report to the Community Corrections Office in Sydney City within seven days. In passing that sentence I have taken into account the matters on the Form 1. Sequences 5 and 6 are withdrawn and dismissed.
DRAGICEVIC: I'd also ask that a drug destruction order be made.
HIS HONOUR: I order that the drugs be destroyed.
Mr Cardamis I am required to advise you of the consequences of your failure to comply with the ICO. They are that the Department of Corrective Services and/or the Parole Board can impose sanctions upon you including a period of home detention, as a rap over the knuckles, but if you make any serious default in complying with the ICO the Parole Board will just revoke the ICO and if for example after one month they revoke the ICO you'd end up going to gaol fulltime for a year, do you understand?
OFFENDER: I understand.
HIS HONOUR: If you mess it up you will find yourself in custody in gaol without a non-parole period.
OFFENDER: Thank you.
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Decision last updated: 06 February 2018