R v Corey David Edward Magee, R v Jesse Marijonas Vilkelis-Curas

District Court of NSW|2019-10-28

Judgment

The offenders, Corey David Edward Magee and Jesse Marijonas Vilkelis-Curas, come before me to be sentenced in relation offences of: supplying a prohibited drug, not less than a large commercial quantity; and either directing or participating in a criminal group.
Mr Magee is to be sentenced in respect of multiple offences and his role is considerably more serious than the role of Mr Vilkelis-Curas. They are however, loosely speaking, co-offenders and it is appropriate that I deal with them together. That said, the extent of the criminality in each case is significantly different. The penalty I impose on each offender will reflect the difference in the objective seriousness of the role they played in the drug supply activity, their respective subjective cases and the relevant sentencing considerations in each case.
Mr Magee is to be sentenced in relation to six substantive counts. Count 1 is an offence of supplying a large commercial quantity of a prohibited drug, namely 1 kilogram of cocaine. The offence is contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years imprisonment. I pause to note that, although the actual quantity of drugs supplied was less than 1 kilogram (namely, 995.1 grams) the offender has pleaded guilty on the basis that the offer to supply was for 1 kilogram.
When I sentence him for this offence, I take into account one offence on a Form 1 document, namely, knowingly directing the activities of a criminal group contrary to s 93T of the Crimes Act 1900. The maximum penalty for the Form 1 offence is 10 years imprisonment.

Facts

A statement of facts has been tendered in each proceeding. The circumstances giving rise to the offending conduct in each case is summarised below.
Between 5 February and 29 May 2018, police were conducting a controlled operation in relation to the supply of prohibited drugs in New South Wales and southern Queensland. The operation was given the codename Strike Force Trevalsa.
On 7 February 2018, an undercover operative met Mr Magee and they discussed the supply of prohibited drugs, facilitated by the use of an encrypted email application. Magee exchanged his encrypted email address with the undercover operative. That email address commenced with the words 'born4 the game'.
The offender said that his 'coke' was good quality and discussed the price of $210,000 for a kilogram of the drug. The undercover operative made arrangements with Magee to purchase 1 kilogram of cocaine. The offender informed the undercover operative that further communications via the encrypted email would take place and that his driver would facilitate the supply.
From 19 February, the undercover operative communicated with Magee about the supply of the 1 kilogram of cocaine. On 21 February, there was a meeting between them in which further discussions were had about the supply of the prohibited drug. During the course of this meeting, the offender was using his Samsung device with encrypted email Phantom Secure, using the handle 'born4thegame' to email an associate. Magee told the undercover operative that he had someone in Sydney picking up the cocaine and would know the following day when he would be in a position to supply the drug. Nothing came of these arrangements. However, further arrangements were made for the undercover operative to purchase 1 kilogram of cocaine from the offender on 7 March.
On 5 March, Mr Magee sent a message informing the undercover operative of the whereabouts of his driver and his anticipation that his driver would be back on the road the following day.
However on 6 March, the undercover officer received an email from the offender informing him that the driver had not responded to communications and that he might have been 'pinched' with some drug-related money. Communications continued between the two about the supply of a kilogram of cocaine in Sydney and for the undercover operative to meet Mr Magee's new driver.
On 5 March, the driver, Matthew Ivan, had indeed been pulled up by police when he was driving a hire car. He was found in possession of $80,480. Fingerprint comparison was conducted on a $50 note which was part of the cash located in the car. It was found to match Magee's fingerprint.
From 9 March, the offender and the undercover operative continued to communicate via encrypted email about arrangements for the supply of 1 kilogram of cocaine. Arrangements were made for a cheaper price for the kilogram to be supplied in Sydney. Arrangements were also made for the undercover operative to meet the offender's driver at Castle Hill on 13 March. The new driver was to be the co-offender in these proceedings, Jesse Vilkelis-Curas.
Arrangements were made for the undercover operative to meet Mr Vilkelis-Curas at Castle Hill Tavern. The co-offender was using the Wikr handle 'hard2 find'.
At 3:30PM, Vilkelis-Curas met the undercover operative at the Castle Hill Tavern car park. He used the Samsung telephone in his possession to send messages to a contact referred to as 'Patches' on Cipher. Patches was a reference to Mr Magee. Mr Vilkelis-Curas was also in possession of an iPhone as well as an Apple iPad. He sat in the car park at Castle Hill Tavern waiting to get instructions that all was clear to pick up the cocaine from the supplier who was located near Kellyville. However it became apparent that Mr Magee was not able to source any prohibited drugs, so Mr Vilkelis-Curas left and promised to be in touch with the undercover operative.
On 4 April, the undercover operative received a message from Mr Magee which contained a photograph of a white compressed block stamped with '007' inside a plastic bag with a message telling the undercover operative that Magee could supply the 1 kilogram of cocaine in Sydney. Arrangements were made for the undercover operative to meet the co-offender at Bunnings Warehouse in Greenacre on 13 April.
On 12 April, the undercover operative received a message from Magee using the Wikr handle 'born4 the game', informing him that the driver would have the address for the pickup and that Magee was going to make $15,000 and his driver would receive $5,000 before payment for the drugs was handed over. The arrangement was that $20,000 would be taken out of the $210,000 and the remainder would be paid in exchange for the drugs.
On 13 April, the undercover operative together with a second undercover operative attended Bunnings in Greenacre to meet with Mr Vilkelis-Curas. The latter received a message telling him that he was to receive $20,000 from the person at the Greenacre address. He and the undercover operative attended an address at Greenacre. Two males, including a person named Derbas, were waiting at that address. Derbas got into the undercover officer's car with a black backpack and removed a plastic bag, handing it to the undercover operative. The bag contained the kilogram of cocaine. At this point, the undercover operative called the second undercover officer and told him to come to the car with the money in a box.
Derbas sat in the undercover operative's car and counted $195,000. He gave Mr Vilkelis-Curas $20,000 and the rest of the money was exchanged for the cocaine. The drug was later analysed and identified as 995.1 grams of cocaine with a purity of 76%.
On 14 April 2019, a telephone intercept captured a conversation between Corey Magee and his brother Ricky Magee, where the former told his brother that he had had a good day yesterday and made '20 snapper'.
I pause to note that the offence perpetrated by Mr Vilkelis-Curas relates to his conduct in taking the undercover operative to the Greenacre address, being present at the drug transaction, and taking possession of $20,000 to be split between a number of people, with his share being $5,000. He was also willing to attend Castle Hill Tavern on 13 March for the purposes of a drug transaction, although on that occasion Magee was unable to source the drugs.
On 28 May, police were granted a search warrant to search the house of Mr Vilkelis-Curas. During the search, police located a number of items including seven vacuum-sealed bags containing cannabis leaf, a number of mobile phones and an iPad. The cannabis leaf weighed a total of 1560 grams. These facts constitute the offence on the Form 1 document. In relation to the offence of participating in a criminal group, the prosecution relies upon much of the activity that relates to the supply charge. To a large extent the criminality overlaps, although the offence of participating in a criminal group is a distinct and separate offence.
In the meantime, Mr Magee continued to be involved in the supply of prohibited drugs. From 21 May 2018, he communicated with the undercover officer in relation to the supply of 1 kilogram of MDMA for $46,000. A number of communications took place about the cost of the drugs.
On 28 May, the undercover officer sent numerous messages to Magee but never received a response. On 29 May, he again sent a number of messages and made numerous calls without receiving any response. After an exchange of messages, there was an agreement that they may be able to exchange that night at Kingscliff.
On 29 May, the offender was arrested in possession of the mobile phone which had been receiving messages from the undercover operative. He was in possession of five mobile phones. He was offered the opportunity to participate in a record of interview but declined.
The offence of directing a criminal group is contained on a Form 1 document that I must take into account when sentencing the offender for Count 1. The criminality constituting the Form 1 offence overlaps to a large degree with the substantive offence, in that the prosecution relies upon the offender directing and giving instructions to others for the purpose of the drug transaction.
The offender also committed a number of offences of knowingly take part in the supply of Buprenorphine. There are four substantive counts and five offences on a Form 1 document. At the time of this offending conduct, the offender's brother, Ricky, was in custody at South Coast Correctional Centre. Between 5 October 2017 and 30 April 2018, Corey Magee, together with his brother Ricky, Mark Magee, Sean Blazely and David Anderson, was involved in the supply of Buprenorphine to the South Coast Correctional Centre.
Between 5 October 2017 and 30 April 2018, Corey Magee knowingly took part in the supply of a number of packets of the drug to a third party for the purpose of supplying it to the South Coast Correctional Centre. On each occasion I am satisfied that Ricky Magee, the offender's younger brother, instigated the request for the supplies take place.

Objective Seriousness

Clearly, the offences of supplying large quantities of prohibited drugs are very serious offences involving the supply or offer to supply of a substantial amount of drugs. The High Court in Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 was critical of an approach the placed reliance upon the quantity of the drug as the chief factor relevant to determining the appropriate sentence. I am mindful that the quantity of the drug is not the sole or determinative factor in sentencing although it remains a relevant and important factor to take into account in determining the appropriate penalty.
I must also take into account the role of each offender, including the acts he undertook in the process of supply, the degree to which he was involved in the planning, any decision-making role that he had, and the extent to which he controlled or organised the activity.
Corey Magee gave evidence in the sentence proceedings explaining his involvement in the drug-related activity. He had a visit with his younger brother, Ricky, in custody in December 2017. Ricky told him that he owed a significant amount of money and that he had been approached in custody in respect of that debt. The offender was also contacted by phone by those to whom the debt was owed, pressuring him to 'fix' the debt and threatening harm to both himself and Ricky. He gave evidence that the debtors knew his address and had already been in contact with Ricky in custody.
He gave evidence that he became involved in an effort to pay down the debt. He received $15,000 in respect of the supply of large quantity of cocaine and was to receive about $3,000 had the supply of MDMA gone through. He paid the debtors the $15,000 he obtained from the drug supply.
He agreed that his role was to line up the supply and he acted as a middleman.
I am satisfied in his case that in relation to Count 1, he was responsible for facilitating the drug transaction. His role was an intermediary between the undercover officer and the up-line supplier. His role included giving instructions and directing drivers. I find that he was a trusted individual who had the capacity to source large amounts of drugs for financial gain.
There is no evidence that the offender enriched himself as a result of this criminal activity. I accept that the financial motive in his case was to pay down his brother's debt in order to prevent any harm to his brother or to himself. However, the fact that he engaged in this conduct for financial gain remains an aggravating factor.
There was some planning involved in the criminal conduct as evidenced by the use of techniques aimed at avoiding detection. However, the planning does not rise above that inherent in offences of this type and does not constitute an aggravating factor.
On behalf of Mr Magee, it is submitted that the drugs were supplied to an undercover officer and not distributed in the community.
While it is relevant to take into account the fact that drugs supplied to undercover police will not be disseminated into the community, of itself this is usually unlikely to lead to other than a very minor diminution of culpability: R v Chan [1999] NSWCCA 103 at [21]. Where a charge of supplying drugs has arisen out of circumstances in which the drug has been acquired by a person cooperating with police, it is open to a sentencing judge to give no weight or very slight weight to the consideration that the supplied drugs have not been disseminated into the community: Taysavang v R [2017] NSWCCA 146 at [50]; Truong v R [2006] NSWCCA 318 at [26]. The prevailing consideration, where drug supply has been foiled, is that the offender fully intended the drugs would be disseminated and it was no act of the offender which stood in the way of such dissemination: Taysavang v R at [49]; Hristovski v R [2010] NSWCCA 129 at [41]; R v Achurch (2011) 216 A Crim R 152 at [97].
In the present case, both offenders intended that the drugs would be disseminated into the community. The only reason that they were not was because the purchaser was an undercover operative. In those circumstances, while I have taken into account that the drugs were not in fact disseminated into the community, that fact operates to only slightly reduce the offender's culpability.
In Mr Magee's case I find that the offence of supplying a large commercial quantity of cocaine falls below the middle of the range of objective seriousness. I make that finding because the planning was not elaborate. Furthermore, while the quantity of drugs supplied with substantial, it was not -as is sometimes the case - in the order of multiple kilograms. Indeed, while there was an offer to supply 1 kilogram, which is the threshold for a large commercial quantity, the actual amount supplied with less than 1 kilogram.
In respect of the offence of offering to supply MDMA, the quantity involved twice the threshold quantity for large commercial supply. However I am not persuaded that there was planning or organisation involved in the offence that operates to constitute an aggravating factor. It was not sophisticated criminal conduct and no drugs were actually supplied. Mr Magee was unable to source the drugs, and while there was communication between him and the undercover operative about the price, there was no concerted effort by the offender to source MDMA and it appears that he was avoiding messages left by the undercover operative until after 12:34 PM on 28 May 2018.
I am satisfied that this offence falls below the middle of the range of objective seriousness but not at the lower end of the range having regard to the quantity involved.
Mr Magee's role in the supply of Buprenorphine is below the middle of the range of objective seriousness although not in the lower end of the range. While there was a degree of coordination and planning involved, the methods used were relatively unsophisticated. Many of the attempts at supply were successful for various reasons. I accept that the criminality involved family members and friends making haphazard and highly risky attempts to procure drugs for Ricky Magee.
However, this cannot be categorised as criminal conduct falling at the lower end of the range of objective seriousness having regard to the fact that the drugs were to be sent to a custodial facility. This factor operates to increase the objective seriousness of the offences into the range above the lower end but below the middle.
When I sentence Mr Magee for Count 1, I take into account the Form 1 offence of directing a criminal group. The offence of directing a criminal group is a discrete offence and I am satisfied that the sentence I impose for the substantive offence must reflect the need for personal deterrence and retribution arising from the additional criminality. However, there is a large degree of overlap between the criminality involved in Count 1 and that involved in the Form 1 offence. In those circumstances, the extent to which the penalty is increased is modest. I am also mindful that the penalty imposed should be significantly less than that which would have been imposed had the Form 1 offence been prosecuted separately.
When I sentence the offender for Count 3 on the indictment, I take into account five offences on a second Form 1 document, namely, offences of supplying Buprenorphine. These offences operate to increase the penalty that I would have otherwise imposed in respect of Count 3 to reflect the need for personal deterrence and retribution arising from the additional criminality. Here, there are five separate occasions of supplying Buprenorphine demonstrating a persistent course of conduct on the offender's part.
I turn to consider the role of Jesse Vilkelis-Curas and the objective seriousness of the offence of knowingly take part in the supply of a large commercial quantity of cocaine. Although I accept, having regard to his age and absence of prior relevant criminal conduct, that the offender was somewhat scared and apprehensive about being involved in this serious criminal conduct, I do not accept that he was reluctant. That this is so is evidenced by the fact that he was willing to attend the proposed drug supply in March 2018. On that occasion, the transaction could not proceed. He made himself available again on 13 April knowing that the sale of a large quantity of prohibited drugs was going to take place.
However, I find that his role in the offence was very limited. This is not a case where he was the courier or deliveryman of the drugs. Mr Derbas fulfilled at least that role. This is not a case where this offender was in possession of the funds that were to pay for the drugs. He was given information on a 'need to know' basis. At all times, he was following directions or instructions from Corey Magee. I am not persuaded that he fulfilled an essential role in the drug transaction.
On the statement of facts before me, his role was limited to meeting the undercover operative to take him to the Greenacre address and then taking possession of $20,000 to be split between a number of people, with his cut being $5,000.
He admitted in evidence that he committed the offence for financial gain. He used the money he obtained to pay off gambling debts and to buy further drugs for his own use. The fact that he committed the offence for financial gain is an aggravating factor.
The objective seriousness of this offence, having regard to his role in it, is at the lower end of the range for this offence category. It can be distinguished from those cases where the offender performed the role of a courier transporting the drugs from one location to another. It can also be distinguished from cases where the offender is a trusted participant who is involved in the organisation or direction of the criminal activity.
While there was some planning involved which included the use of encrypted devices, I am not persuaded that the planning was above that inherent for these types of offences. Furthermore, I am not persuaded that this offender was involved in planning or organising the criminal activity. Instead, he followed directions and instructions.
While the quantity of cocaine involved was substantial, I repeat, it falls at threshold of large commercial quantity, namely 1 kilogram. The arrangement made between Mr Magee and the undercover operative was for the sale of 1 kilogram of cocaine. The actual quantity supplied was just less than 1 kilogram.
When I sentence the offender for this offence I take into account the offence of supply cannabis on the Form 1 document. I am satisfied that that offence operates to increase the otherwise appropriate sentence for the substantive offence in order to reflect considerations of specific deterrence and retribution arising from the additional criminality.
The offender must also be sentenced for the offence of participating in a criminal group. To a large extent, the criminality involved in this offence overlaps with the criminality involved in the offence of knowingly take part in the supply of cocaine. However, having regard to the fact that it is a discrete and separate offence, I am satisfied that there should be a measure of accumulation reflected in the aggregate sentence that I will impose. The extent of that accumulation is moderated having regard to the extent of overlap of the criminality and taking into account the principle of totality.
The offences of knowingly take part in the supply of a large quantity of prohibited drug and supplying a large quantity of prohibited drug carry a standard non-parole period of 15 years imprisonment. I remind myself that the standard non-parole period is not the starting point or the endpoint at arriving at an appropriate sentence. Instead, I am required to take into account all of the factors relevant to sentencing. In doing so, I have had regard to the two legislative guideposts, the maximum sentence and standard non-parole period.
I decline to impose the standard non-parole period. In the case of Mr Magee, I decline to do so because he pleaded guilty at the first opportunity and I am satisfied that the offences fall either just below the middle of the range or below the middle of the range of objective seriousness. I have also had regard to his subjective case.
In the case of Mr Vilkelis-Curas, there will be a substantial departure from the standard non-parole period because the offender pleaded guilty at the first opportunity, his role falls in the lower end of the range of objective seriousness, and having regard to his very compelling subjective case.
The offences of supplying prohibited drugs in large commercial quantities and to a correctional facility are extremely serious offences that warrant condign punishment. General deterrence, denunciation and the protection of the community are relevant sentencing considerations that must be reflected in the ultimate penalty. In the case of Corey Magee, specific deterrence is also a relevant and important factor having regard to the persistent nature of his offending conduct and the number of offences for which he is to be sentenced.
Furthermore, he has a record of prior convictions including offences of affray and damaging property for which he received suspended sentences in 2016. In 2011, he was dealt with in Brisbane Magistrates Court for unlawful possession of weapons and possessing dangerous drugs. He was fined for those offences.
The weight to be given to specific deterrence in the case of Mr Vilkelis-Curas is significantly moderated having regard to the fact that he has no relevant criminal record and has demonstrated excellent rehabilitation.
Each offender is a relatively young man. In each case I have also had regard to the principle of rehabilitation and the protection of the community that successful rehabilitation affords. I turn now to consider each subjective case.

Subjective Circumstances: Corey Magee

The offender has been on remand at Mid-North Coast Correctional Centre since 29 May 2018. He is 27 years old and was aged 25 and 26 at the time of committing the offences. The offender's subjective case is before me by way of a number of documents. He has also given evidence during the proceedings. He confirmed the truth and accuracy of the background contained in the various documents.
As indicated above, the offender has prior criminal record in New South Wales and Queensland. While his record does not operate as an aggravating factor, it disentitles him to the leniency that would be afforded a first-time offender or a person with a relatively minor record.
Dr Lennings prepared a report in which he sets out a number of matters including the offender's background. The offender's antisocial behaviours increased when his younger brother, Ricky, was incarcerated in 2016. His drug use also increased after his brother's arrest. He described feeling overwhelmed and pressured into this offending conduct, stating that he 'wasn't in the right head space' and was unable to comprehend the consequences of his actions due to his drug use. At the time of the present offending, he had a 'substantial' drug habit and was 'pretty messed up and not thinking straight'.
The offender acknowledged his peer group were involved in drug use and admitted they were influential on his criminal offending. I accept that he became involved in the offences of supplying large quantities of drugs in an effort to assist his younger brother who owed a large debt and was being threatened. However, the evidence does not rise to the point of establishing non-exculpatory duress. Instead, it explains the context in which the offences were committed and explains the offender's involvement in this large-scale drug activity.
Mr Magee recounts a difficult childhood and adolescence during which he was exposed to multiple and severe child protection risks. His parents separated when he was a child, after which he lived with his father. His mother suffered from postnatal depression which affected the attachment between the offender as a child and his mother. She also experienced severe prescription drug abuse problems which impacted her parenting of the offender.
The offender's father had a disability which prevented him from working, and was addicted to cannabis. Because of his inability to generate an income, the offender's father could not afford a house and often lived with disreputable peers who were engaged in criminal activities, the use of drugs and alcohol, and violence, although his father was not himself violent.
Mr Magee recounts his early years as being formed by parental dysfunction, police involvement related to his parents' drug misuse, and his mother eventually entering rehabilitation. The offender describes the things he saw between the ages of 12 and 17 as 'not normal' for a child.
When the offender was 14, he was exposed to a hostage situation where police surrounded the house in which police were seeking to arrest a person. The offender was not held hostage but was caught inside the house during the incident. The offender was exposed to the use and possession of firearms by the people around him, sudden home invasions, and an environment of substance abuse and community violence.
He was 'pushed around and given a hard time' by his father's associates, and experienced significant violence from them. He experienced physical and psychological abuse. He had little contact with his mother and he believed that his relationship with her in his childhood involved psychological abuse, although they currently get along.
Having regard to his father's activities and the associates to which the offender was exposed during childhood, he grew up without much respect for authority and learned as a child to resent the police because of his father's behaviour.
Despite this dysfunction at home, the offender attended school and left after finishing Year 10. His behaviour at school was at times poor and he reports multiple suspensions. He has had a strong work ethic and worked three jobs as well as studying while he was in school. He says that he liked work because it was an escape from the adverse living conditions he was otherwise exposed to. From a young age he had to be self-reliant and provide for himself. He has maintained employment since leaving school in the trade and labour industry. In 2016 he bought his own business, still holding other employment to subsidise his business earnings during quieter periods.
The offender started drinking alcohol at about age 16. He reports a history of binge-drinking, at times for up to a couple of days at a time, but denies that alcohol was a factor in his offending, with only the occasional episode of heavier drinking. His criminal history reveals one low range alcohol-related driving offence committed when he was 19.
He began smoking cannabis at about the same time as he began using alcohol. Once his father found out he was smoking, they would share cannabis together. For 10 years he smoked every day, and smoked heavily on most of those occasions. He stopped smoking when he entered custody and states that he is determined not to use cannabis again because he has gained insight into the negative effects it had on him.
The offender also abused cocaine (and, to a lesser extent, MDMA), a habit which worsened when his brother went to gaol. He reports becoming reckless in the way he lived and his drug use became problematic as a result.
Dr Lennings notes that the offender displayed good insight into his behaviour, accepting responsibility for his actions and showing appropriate remorse. In his letter to the court, the offender states that he has spent the last 18 months contemplating why he made the decisions he did in his life. I accept that he has developed genuine insight into his offending conduct and takes responsibility for the potential harm involved in the dissemination of drugs into the community. I have had the opportunity to observe him give evidence in the proceedings and assess his demeanour. Having done so, I accept that he is remorseful.
Since entering custody, the offender has completed a six-month intensive learning program. He is currently employed at the Intensive Learning Centre as a teacher's aide and staff report that he is the first inmate to be employed as a teacher's aide at this correctional centre. He has also completed an addictions course and has avoided using drugs since being in custody. He has done a 'positive lifestyles' course and completed courses related to his personal religious development.
Notwithstanding the usual limitations and restrictions that apply to remand prisoners, it is to his credit that he has completed: a remand addictions course; a 'Christianity Explained' course; the Salvation Army Positive Lifestyle program; the intensive learning program; and progressed to being employed in that program as a teacher's aide.
His progress in custody is commendable, particularly having regard to the limitations that exist for those on remand accessing programs. Furthermore, his time in custody has not been without difficulty. On one occasion, he was ushered into a cell and assaulted. When attempting to escape, his fingers were deliberately jammed in the cell door. As a result, he lost the top of two of the fingers on his right hand. This has been, and will continue to be, a constant reminder of his criminal conduct and the consequences of his irresponsible decisions.
Dr Lennings states that the offender presents as a young man who has paradoxically and somewhat surprisingly emerged from a downward spiral of poor health, drug abuse, short-term focused decisions and family dysfunction into a young man with a clear set of life goals, a sense of personal responsibility and the development of a moral compass. It is paradoxical because it has occurred whilst he has been in custody for these offences.
He is currently in a relationship which began in March 2017. His fiancée visits him in gaol. His partner does not use drugs, and her family are prosocial and have the potential to be a positive influence on the offender. Dr Lennings states that, in the past, the offender's prosocial relationships and employment appear to have been important protective factors that 'regrettably lost some of their potency' after his brother was gaoled in 2016.
Dr Lennings opines that the offender's drug use was promoted by his upbringing in an environment where drug use and antisocial behaviours were normalised, which left him with a behavioural response that was family- rather than socially focussed, and caused him to act impulsively rather than thoughtfully. Dr Lennings considers that the offending appears to have been a function of his substance abuse, loyalty and concern for his brother, lack of prosocial reasoning at the time, and some anti-authoritarian attitudes. Dr Lennings believes that the offender currently presents as showing strong positive prognostic features.
Having regard to his positive rehabilitation while in custody, and the offender's substantial remorse, I am satisfied that he has good prospects of rehabilitation. That rehabilitation will be facilitated by an extended period of supervision upon his release to the community.
He will however have to spend a further period in custody having regard to the serious nature of the offences and the role he played in them.

Subjective Circumstances: Jesse Vilkelis-Curas

Mr Vilkelis-Curas is 24 years old. He was 22 years old at the time of the offending conduct. Although he came under notice in 2016 for driving with an illicit drug present in his blood, he was dealt with by way of a non-conviction. I am satisfied that he has no relevant criminal record and is a person of good character.
His subjective case is set out in a number of documents and he has given evidence before me during the sentence proceedings. He impressed me as a sensible, honest and responsible young man who has achieved a significant degree of rehabilitation.
His childhood can only be described as severely disadvantaged and deprived. He was not only exposed to family violence and drug use, but, importantly, exposed to significant drug supply activity undertaken by his mother and her then partner.
The offender grew up with his two brothers in Western Australia. At that time he was in the care of his mother. Also residing with them was her partner. The children were sometimes taken by their mother on drug deals. The offender recalled witnessing major drug deals in which his mother was involved. On occasion, she hid money in one of the children's pants when they were pulled over by police. The children witnessed their mother handling drugs on many occasions and were present on occasion when their property was searched by police.
The offender and his brothers witnessed their mother exhibit violent behaviour connected with her activity as a drug dealer. The people with whom she associated and to whom the offender and his brothers were exposed included drug dealers, bikies, people capable of serious violence and thieves.
In addition, the offender was exposed to family violence. Episodes included his mother threatening to cut his brother's throat, threatening to kill herself, threatening the offender with a knife, damaging property, and verbal abuse directed at the offender and his brothers. On one occasion, she pushed the offender to the floor and proceeded to kick and punch him. She had to be restrained by her partner.
Drug-related activity was normalised in the household. The offender's mother sometimes told drug dealing associates that she had trained the children well.
The offender escaped this environment at the age of 13. He came to Sydney to live with his grandfather, initially on holidays but then refused to return to Western Australia.
From about the age of 13, he started drinking alcohol, and at the age of 15 commenced using cannabis. He dropped out of school. His drug use escalated and he started using cocaine. He quickly became addicted to that drug at about the age of 19. He also developed a gambling addiction.
In August 2018, the offender self-referred to Byron Private Treatment Centre with the support of his family to address his problematic substance use, primarily cocaine. He presented as highly anxious and fearful about the future. He stated that cocaine use helped him cope with feelings of inadequacy related to his upbringing.
In a letter dated 17 September 2018, David Godden, Psychologist, provided a prognosis stating that it was 'essential that the offender adhere to a commitment of abstinence from all substances', and recommended long-term therapy.
On 1 April 2019, the offender was referred to Headspace Lismore by his general practitioner for management of anxiety and depressive symptoms. He has attended Headspace Lismore for psychological support and intervention since 31 May 2019. He first presented with anxiety symptoms in the context of his pending criminal proceedings. As at 13 September 2019, he had attended five sessions. He continues to attend counselling.
The offender's developmental history is marred by attachment disruption, interpersonal trauma, exposure to criminal behaviour, chronic substance use and substance-related behaviours by adults in his life. Dr Caspersz, Clinical Psychologist, states that 'children exposed to such experiences can be vulnerable to developing maladaptive coping styles, poor emotion regulation, addictive behaviours, anxiety and depression'. The offender reported developing addictive behaviour related to gambling and polysubstance abuse in more recent times, leading to financial debt and subsequent drug-related criminal activity aimed at releasing him from this debt.
Dr Caspersz reported that the offender has engaged meaningfully with various intervention services including drug rehabilitation, drug education, and psychiatric and psychological treatment. He assessed the offender as possessing adequate capacity to make good choices in the future, and considered that a custodial sentence would be counter-productive to the offender's healthy development.
The offender has been employed full-time since October 2018 and is considered by his employer to be a highly valued employee. A letter from the offender's employer dated 14 June 2019 states that they are aware of the drug-related charges against the offender, describing him as 'a hardworking reliable staff member … very well-liked by his co-workers and customers alike'. Not only has he remained in that employment but has also been promoted.
The Sentencing Assessment Report dated 21 October 2019 assesses the offender at a medium-low risk of reoffending. Community Corrections consider that no conditions other than a supervision condition are required, and have assessed the offender as suitable to undertake community service work.
Having observed the offender in the witness box, I am satisfied that he is genuinely and deeply remorseful. He struck me as a young man who has developed a great deal of insight into the dangers of drug use and drug supply. He has also demonstrated a significant degree of initiative in voluntarily seeking out treatment.
Mr Velkelis-Curas was in custody referable to these offences between 29 May and 14 August 2018, a period of 2 months and 17 days. As indicated above, he spent six weeks at a residential rehabilitation program at Byron Private Hospital. The Crown has tendered photographs of that establishment which depict clean, luxurious rooms with what appears to be gourmet food and pleasant surroundings. It is a shame that individuals without funds cannot be treated in similar facilities. Notwithstanding the luxurious nature of the accommodation, the offender was not allowed to leave the facility without supervision. He did not have family contact except on two occasions, namely on Family Open Day and on his birthday. He attended mandatory counselling sessions and complied with all directions.
Put another way, notwithstanding the luxurious accommodation, the program involved a level of restriction upon his freedom and I am satisfied that the offender's participation in the program qualifies as a period of quasi-custody. I will have regard to 50% of the time he spent in the program, namely, 3 weeks. In determining the appropriate term of the period of imprisonment I will have regard to a period of 2 months 17 days plus 3 weeks pre-sentence custody.

Bugmy/Millwood Considerations

The subjective case of each offender demonstrates deprivation and disadvantage suffered during childhood. Their most formative years were marred by violence and excessive drug use.
In Bugmy v The Queen (2013) 249 CLR 571, the majority stated at [43]-[44]: [43] The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. [44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision
In the decision of R v Millwood [2012] NSWCCA 2, Simpson J explained the relevance of evidence of an offender's background of deprivation. She said at [69]: … I am not prepared to accept that an offender who has had the starting life the respondent had bears equal moral responsibility with one who has had what might be termed a normal or advantaged upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his or her behavioural decisions …
This is not to suggest that such an individual bears no moral responsibility. Rather, it is to recognise in the appropriate case the way in which childhood disadvantage and deprivation can continue to have an impact on a person's capacity to mature and make sound decisions, thereby reducing their moral culpability.
Although it is an unfortunate aspect of sentencing that one regularly sees cases in which childhood deprivation and disadvantage exist, that commonality does not diminish the relevance and significance of the deprivation and disadvantage in the individual case. The impact of such a background on the individual coming before the court remains relevant and may operate to significantly reduce the moral culpability of that offender for the reasons set out above. I am satisfied in each case that the moral culpability of the offenders is reduced having regard to their deprived and disadvantaged childhoods.
In the case of Mr Vilkelis-Curas, the childhood disadvantage and deprivation is not limited to exposure to family violence and drug use. During a period in his most formative and impressionable years, he was exposed to the very type of drug supply activity in which he later became involved. This was behaviour that was normalised from a very young age. His own mother made it so. His childhood experiences made him vulnerable to developing maladaptive coping styles and addictive behaviours.

Section 5 Threshold: Corey Magee

Having regard to the serious nature of the offences Mr Magee committed and his role in them, the only appropriate penalty is one of full-time imprisonment. Each offence is constituted by discrete offending conduct and I am satisfied that there should be a measure of accumulation reflected in the aggregate sentence I impose. In determining the extent of that accumulation, I have had regard to the principle of totality.
I find special circumstances warranting a variation of the statutory ratio. I do so because the offender is a relatively young man who has shown positive prospects for his future rehabilitation. He will require an extended period on parole to receive counselling and supervision to prevent relapse into drug use. This is the first time that he serves a sentence of full-time imprisonment. Furthermore, there will be a measure of accumulation reflected in the aggregate sentence.
I note that the offences of supplying Buprenorphine could have been dealt with in the Local Court. However, having regard to the pleas of guilty to two offences of supplying large commercial quantities of prohibited drugs, it is highly unlikely that the offences of supplying Buprenorphine would have proceeded in the Local Court.
In determining the appropriate indicative sentences for these offences, I have had regard to the principle of parity. The co-offender, Ricky Magee, was sentenced at Lismore District Court on 14 June 2019 to an aggregate sentence of 1 year 3 months for four counts of supplying Buprenorphine. Indicative sentences of 6 months and 9 months were identified by the sentencing judge.
Mark Magee was dealt with in the Local Court by way of an 18-month Community Corrections Order for one offence of supplying Buprenorphine, participating in a criminal group, and offences of possession of prohibited drug and prohibited weapon.
Sean Blazely was also sentenced in the Local Court to 12 months imprisonment, with a non-parole period of 3 months, for six offences of supplying Buprenorphine and one offence of participating in a criminal group.
Lastly, David Anderson was sentenced in the Local Court to a 2-year Community Corrections Order for six offences of supplying Buprenorphine and an offence of participating in a criminal group.
I have no information about the co-offenders' subjective cases or their criminal histories. Clearly, the present offender faces much more serious offences of supplying or offering to supply large commercial quantities of prohibited drugs. In those circumstances, while the principle of parity applies to the offences of supplying Buprenorphine, I must also sentence him for the more serious offences involved in Count 1 and 2 in the indictment.

Section 5 Threshold: Jesse Vilkelis-Curas

The maximum penalty and the standard non-parole period reflect the seriousness with which these offences are considered, and I am satisfied that, notwithstanding this offender's significantly lesser role, the s 5 threshold has been passed and a term of imprisonment is warranted. The question in his case is whether I can proceed by way other than full-time custody.
The preliminary question relates to the length of the term of imprisonment I consider appropriate in respect of each offence. For the offence of knowingly take part in the supply of a large commercial quantity of cocaine, I am satisfied of the following matters. Firstly, his role in the offence was very limited and falls at the lower end of objective seriousness. Secondly, he pleaded guilty at the first opportunity and has demonstrated significant remorse and insight. Thirdly, his childhood disadvantage and deprivation operate to significantly reduce his moral culpability for the reasons set out above. Fourthly, I am satisfied that he has excellent prospects of rehabilitation and is unlikely to reoffend. Fifthly, he has already served a period of full-time custody and a period of quasi-custody.
Taking all of those matters into account, I am satisfied that a term of imprisonment of 2 years is appropriate for the offence of knowingly take part in a commercial supply of cocaine. I am satisfied in respect of the s 166 offence, taking into account the plea of guilty at the first opportunity, that a sentence of 8 months imprisonment is appropriate.
Taking into account some measure of concurrency, the aggregate sentence I will impose is a term of 2 years 6 months imprisonment. I turn then to consider whether that sentence can be served by way of an aggregate Intensive Corrections Order.
The Crown submits that, having regard to the maximum penalty and the standard non-parole period, the only appropriate penalty is one of full-time imprisonment.
Mr Cochrane has provided me with the decision in R v Qi [2019] NSWCCA 73. He does not rely upon it but, rather, seeks to distinguish it. The case involved a Crown appeal against sentence. The respondent had been sentenced to an Intensive Corrections Order for an offence of supplying a large commercial quantity of methylamphetamine. The appeal was upheld. The respondent was sentenced to a period of 3 years imprisonment with a non-parole period of 18 months.
During the course of his judgment, Button J stated that it would only be in 'very exceptional circumstances' that a sentence other than full-time imprisonment would be imposed for an offence of supplying a large commercial quantity of methylamphetamine. His Honour referred to other offences for which Parliament has provided a maximum penalty of life imprisonment. His Honour referred to sexual intercourse with a child under 10, murder, and aggravated sexual intercourse without consent in company.
While each of these offences carries a maximum period of life imprisonment, the factual circumstances and objective seriousness of offences in each of these offence categories vary. The offence of murder can involve a wide range of criminal conduct ranging from a single stab wound to organised contract killings, but each such offence involves the taking of human life.
In cases involving the sexual assault of a child under 10, sexual acts involving penetration perpetrated against children of that age are particularly heinous having regard to the vulnerability of the victim and the substantial long-term psychological and emotional impact that often flows.
His Honour referred to these offence categories to demonstrate the seriousness with which they are treated. Parliament has seen fit to reflect the seriousness of these offences in the maximum penalty applicable. However, his Honour was not purporting to promulgate any sort of prescriptive rule or test. It appears to me that his Honour was simply stating that, in cases involving a maximum penalty of life imprisonment, there would have to be very good reason to proceed by way other than full-time imprisonment.
Clearly, his Honour was not promulgating a prescriptive rule. I do not proceed upon the basis that His Honour's remarks constitute a guideline or prescriptive rule.
That said, there are very exceptional circumstances in the case of Mr Vilkelis-Curas. Whether exceptional circumstances exist in a particular case is an evaluative judgment. The word 'exceptional' is a powerful one. It connotes something remarkable. There are remarkable circumstances that exist in this offender's case. I have already referred to those circumstances above but for clarity I will repeat the circumstances here.
Firstly, although the offence is a serious one involving a maximum penalty of life imprisonment, this offender's role was peripheral. The objective seriousness of the offence he committed falls at the lower end of the range.
Secondly, his moral culpability is significantly reduced having regard to the particular lifestyle that he was exposed to during his formative years. It is nothing short of exceptional that he was exposed to serious drug supply activity perpetrated by his mother and her partner. Not only did he know about it, he was exposed to it in a very direct way. In addition he was exposed to significant drug use and family violence. So extreme were those conditions that at the age of 13 he sought to escape.
Thirdly, the offender is genuinely remorseful and has developed a great deal of insight into his offending conduct.
Fourthly, he has excellent prospects of rehabilitation and I am satisfied is unlikely to reoffend.
Fifthly, he has served a period of full-time custody and a period of quasi-custody. To return him to prison now will serve no sensible purpose. He has been punished, having regard to the period of loss of liberty and the period to which he will be subject to further restricted liberty in the community.
General deterrence and denunciation are achieved not only by the time he has spent in custody but also by virtue of the fact that he will have a lengthy term of imprisonment hanging over his head. Specific deterrence carries very little weight having regard to his excellent rehabilitation and unlikelihood of reoffending.
The safety of the community is best served in this case by allowing this young man to continue his rehabilitation in the community. How can it be said that returning him to prison and potentially undoing the significant rehabilitation achieved to date will serve any purpose of sentencing?
General principles must, of their nature, be adjusted to the individual case if justice is to be achieved. A sentencing process must be capable of discriminating between cases. There is a public interest in punishment. But if the desire to punish results in a person who would otherwise not become a confirmed criminal becoming such, that sentencing process is inconsistent with the public interest. It is to be recognised that imprisonment may convert a person who will not be a persistent criminal into one who is. This is particularly so where the person to be sentenced is a first offender of a comparatively young age: R v Lattouf (Court of Criminal Appeal (NSW) 12 December 1996, unrep).
There must always be a place for the existence of mercy where a sentencing judge's sympathies are reasonably excited by circumstances of the case: R v Osenkowski (1982) 5 A Crim R 694.
In determining whether the offender should be returned to custody, I bear in mind the remarks of the New South Wales Court of Criminal Appeal in the decision of Mainwaring v The Queen [2009] NSWCCA 207 at [71]: Any period of imprisonment must be understood for what it is: onerous, unpleasant, oppressive and burdensome. It is, as it should be, the last available punitive resort in any civilised system of criminal justice. Public discussions about the need to deter crime by the imposition of heavier sentences are not always obviously, or at least apparently, informed by an appreciation of the significance of full-time incarceration upon men and women who receive such sentences.
The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits: R v Blackman and Walters [2001] NSWCCA 121. I am satisfied that the safety of the community is best served by allowing this offender to serve his term of imprisonment in the community where he can continue in his treatment, maintain his employment, and become a contributing member of the community.
The sentence imposed upon Mr Vilkalis-Curas is significantly less than that imposed on Mr Magee. While they may loosely be referred to as co-offenders, I am not of the view that the principle of parity applies to any great extent. Mr Magee fulfilled the role of a middleman, trusted to source large quantities of drugs and engaged in instructing others. His role is significantly greater than that of his co-offender. Furthermore, he is being sentenced for six substantive offences. Mr Vilkelis-Curas is being sentenced for two substantive offences. Lastly, while each has a compelling subjective case, Mr Vilkelis-Curas has demonstrated excellent rehabilitation. In those circumstances, very different sentences will be imposed.

Jesse Vilkelis-Curas

Accordingly, the offender is convicted of each offence.
Taking into account the discount of 25% for the plea of guilty, I note the following indicative sentences would have been imposed: 1. Knowingly take part in supply of prohibited drug - large commercial quantity of cocaine, taking into account the Form 1 offence: 2 years imprisonment. 2. For the offence of participating in a criminal group contained on the s 166 certificate: 8 months imprisonment.
Pursuant to s 68 of the Crimes (Sentencing Procedure) Act 1999, I impose an aggregate sentence of 2 years 6 months imprisonment to be served by way of an Intensive Corrections Order. That sentence will commence today 30 October 2019.
The standard conditions that apply during the term of the order are that the offender: 1. must not commit any offence; and 2. must submit to the guidance and supervision of Community Corrections for as long as they deem necessary.
I impose the following additional conditions for the duration of the order, that the offender: 1. must complete 150 hours of community service work; and 2. must continue with psychological counselling and treatment at Headspace Lismore or another facility for which he is eligible.
I direct that the offender attend the Community Corrections Office at Lismore within seven days of today to facilitate the administration of the order.
I make an order pursuant to s 29(1) of the Confiscation of Proceeds of Crime Act 1989 that the offender pay to the State of New South Wales a drug proceeds order in the sum of $5,000.

Corey Magee

The offender is convicted.
Taking into account a 25% reduction in sentence to reflect the utilitarian value of the pleas of guilty, I set out the following indicative sentences: 1. Count 1 - supply prohibited drug (large commercial quantity cocaine) taking into account the s 93T offence on the Form 1: 5 years imprisonment, non-parole period 3 years imprisonment. 2. Count 2 - supply prohibited drug (large commercial quantity 3,4-methylenedioxymethylamphetamine): 4 years imprisonment, non-parole period 2 years 3 months imprisonment. 3. Count 3 - supply prohibited drug, taking into account the Form 1 offences: 9 months imprisonment. 4. Count 4 - supply prohibited drug: 6 months imprisonment. 5. Count 5 - supply prohibited drug: 6 months imprisonment. 6. Count 6 - supply prohibited drug: 6 months imprisonment.
Taking into account a finding of special circumstances, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 I impose an aggregate sentence of 6 years 6 months imprisonment commencing 29 May 2018 and expiring 28 November 2024.
I fix a non-parole period of 3 years 6 months commencing 29 May 2018 and expiring on 28 November 2021.
The offender will be eligible for release at the end of the non-parole period subject to the supervision and guidance of Community Corrections for as long as they deem necessary.
I make an order pursuant to s 29(1) of the Confiscation of Proceeds of Crime Act 1989 that the offender pay to the State of New South Wales a drug proceeds order in the sum of $15,000.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2019

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