R v Despotovski

Agreed facts

1. In 2018 Despotovski was living in Wollongong with his wife and young child. He had been unemployed for many years. He had been gambling for many years. His family had loaned him tens of thousands of dollars, which he had squandered. He had not repaid their kindness by dealing with his gambling addiction; to the contrary he continued to gamble. He then took an even greater gamble and began to supply cannabis leaf in large quantities.
2. He was working with a drug syndicate based in Sydney. He would arrange with members of that syndicate to deliver quantities of cannabis leaf to drop off points in southern Sydney. He would then collect the drugs to supply to associates in the Wollongong area.
3. Over 30 transactions are detailed. Although the metric system was introduced in this country in the 1970's, as is common for modern drug dealers, Imperial measures were used. Despotovski's usual orders would involve 5 pounds (2.65kg) or 10 pounds (4.53 kg), sometime more, sometimes less; sometimes there were multiple transactions in a day. It appears that depending on quantity, quality and the amount of the cannabis, Despotovski paid about $2,000 to $2,350 per pound. The most common price discussed in the recorded calls was $2,250 per pound. Despotovski would then sell to others down the chain for between $2,450 and $2,700 per pound. He told me today that towards the end of the period of offending the prices went up.
4. At times Despotovski would return poor quality (wet) cannabis and receive a replacement. He was adamant "the people of Wollongong will not take shit stuff." If the offender made about $250 per pound for the total amount the subject of the count he could have profited by about $70,000. He told me he gambled most of that money away.
5. On occasions the offender would have cannabis delivered to his home in Wollongong. He conducted his business from his home. At times his wife assisted him. She has been dealt with by the Local Court for her role. At times deliveries and packaging occurred in the presence of the Despotovski's two year old child. On his arrest, cannabis, drug supply and packaging paraphernalia and over $8,000 in cash was discovered at his home.
6. Most deliveries were made to a location in southern Sydney. Sometimes, particularly in August 2018, there were two deliveries and picks ups a day. Despotovski had the resources available to obtain and then distribute quite large quantities in this period. He dealt mainly with Xuan Phouc Tang (23 transactions) and Van Thang Tran (10 transactions) but on one occasion, in September 2018, he was contacted and negotiated a 20 pound (9.9kg) transaction with Thi Quan Trang.

Drug supply - Assessment of Role

1. Only the penalty range is determined by the quantity of drug supplied. The amount of drug supplied is a relevant consideration to my assessment of the objective seriousness of the offence, however it is not determinative of penalty; so too is the reward, received or expected. A very relevant consideration is the role of the offender. Here Despotovski:

• set up his own supply operation;
• operated from his own home; showing lack of appreciation for the risk of detection but also putting his child and partner at risk of harm;
• maintained and managed the operation at an intermediate level;
• employed and used others;
• distanced himself from the street supplies operation;
• stood to make a financial gain; as the drugs were distributed for profit;
• And, as Ms Steedman, Crown Prosecutor, submits, he was well on top of quality control and managed periods of high demand with ease.

1. Labels can be misleading. While the offender can be characterised as a principal in his own supply operation he was not the principal or kin-pin. He had no direct access to the growers and he was a number of steps removed from those who make the great profits criminalisation of drugs such as cannabis enables. In submissions Mr Hallas puts Despotovski below Tang in any hierarchy of offending. I do not agree. Drug supply operations do not necessarily need strict or linear hierarchies. Each supplier can, and did here, have their own separate roles. This offender's role in the distribution of the drug in the community was more objectively serious than those with whom he negotiated, such as Tang.

Parity

1. On 13 March 2020 I sentenced Tang to a term of 4 years 6 months imprisonment with a non-parole period of 2 years 8 months for his role in supplying Despotovski with 67 kg of cannabis. He was sentenced on the basis he was an intermediary for others and acting on commission. He had the benefit of an early guilty plea and a strong subjective case. I made a finding of special circumstances: R v Tang [2020] NSWDC 96.
2. Lilly Desoptovska, the offender's wife, was sentenced in the Local Court for her involvement in the supply of 12 kg of cannabis leaf and for belonging to a criminal group. Her 12 months sentence is being served subject to an ICO and her completing 100 hours of community service. Others involved are awaiting sentence or trial.
3. This sentence must be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability; like must be compared with like. Here, while there can be some proportionality between each co-offender, their different personal and criminal histories and level of offending justify a real difference between the sentences imposed and how, so far as Mrs Despotovska is concerned, it is to be served.

Record

1. I have received details of the offender's criminal record and goal history. His record particularly a prior drug supply offence means he cannot get the leniency often given first offenders. That prior supply was committed for the same professed reason as the current matter but it was two decades earlier. While it must aggravate the sentence that must be imposed it does not do so to any significant extent.
2. This is Despotovski's first time in custody. To his credit he has no gaol discipline matters. He is working as a sweeper and on painting maintenance.

Offender's personal history

1. The offender is now 43. He has a supportive and loving family. His parents, now retired worked hard and provided for him and his sister. He has the continuing support of his wife and accommodation and employment available to him on release. He was reported to be in good physical health but he told me today he has placed a request to be examined for breathing and heart problems. He is on a waiting list to be checked in hospital. He has apparently abstained from alcohol and drug use while in custody. He is not taking any medications.
2. The offender gave evidence, via video link from gaol on sentence, what he said was not controversial. He also wrote a long letter to the court apologising for his crimes. He told me how in his 20's he went from being an athlete to a depressed man who took up gambling. He said the catalyst for his downward spiral was his reaction to finding the body of his closest friend after his suicide. After this he took up drinking alcohol to excess and cannabis use. He stopped caring about himself and lost fitness and the will to play football.
3. After he was given a chance and not gaoled for drug supply in 2001 he stopped gambling and drug dealing and started working legitimately. However, over time he resumed excessive drinking, drug use and gambling and fell inevitably into debt. He said he took up cannabis supply to make money but any profit was gambled away. He said today that he lost control of his life and that at the time of offending was living a sad life, where he had lost almost everything.
4. In his letter he wrote of the horrors he had witnessed in gaol. He spoke of his regret at what he done to his family and others whom he had let down. He has work available on release and expressed a willingness to engage in rehabilitation programs.
5. I received a comprehensive Sentence Assessment Report (SAR): exhibit B. The SAR is a positive one. It indicates Despotovski is amenable to interventions and management in the community when released to parole. It reports he is now conscious of the impact of his offending on his family and the community in general. I am prepared to accept he is showing insight and understanding and regret. I accept that he has had time to reflect and that if he acts as promised he has reasonable prospects of not re-offending on release.
6. A report was also received from Dr Protulipac a clinical psychologist: exhibit 1. Despotovski told Dr Protulipac that he was offered the opportunity to make money by buying and selling cannabis. He said took that opportunity to earn quick cash and having done so increased the amounts traded to make more.
7. The material about his background, work and study history and family formed the basis of the psychologist's professional opinions and is relevant to the offender's prospects and future risk.
8. Dr Protulipac notes that Despotovski had only received brief treatment for his psychiatric problems in 2002. He reported current symptoms relating to the trauma of finding his friends body and a violent assault on him in 2009. He describes the offender as a man of low average intelligence who is polite and cooperative. He presents as being remorseful and embarrassed by his crime. He showed no signs of psychosis but was visibly anxious with prominent depression and hypervigilance. They are, I note, symptoms common to most prisoners; understandably so given the conditions and violence in our gaols.
9. Dr Protulipac concludes Despotovski's mental state met the criteria for Post-traumatic Stress Disorder (PTSD), chronic type; major depressive disorder and panic disorder with agoraphobia. He concludes that these underlying conditions caused Despotovski significant impairment to judgment at the time he offended (p10). He suggested the offender's remorse and desire for change can be leveraged into formal treatment and that on release a plan can be put in place that will reduce the risk of further offending. His report details that plan; which involves appropriate psychological treatment with pharmacological treatment to treat depression and anxiety.
10. References were received from his mother and friends: exhibit 3. All spoke of a man from a loving family who have sought to help but in doing so they fed his gambling addiction for many years. They spoke of his current resolve to overcome his gambling problems.
11. His father has had heart surgery and other chronic conditions. He needs ongoing support. Hardship to family is an unavoidable consequence of a custodial sentence and is not generally a mitigating consideration: R v Edwards (1996) 90 A Crim R 510; Hoskins v R [2016] NSWCCA 157. That said, any impacts of a long custodial sentence must be synthesised along with all other factors. He needs to be with his father he cannot. Despotovski's wife and child will be without a husband and father. These things will impact on them and he will feel their loss.
12. All this evidence allows for some understanding of how Despotovski came to commit this crime. It also allows for some understanding of the man now to be sentenced and how to structure the sentence.

Mental Illness

1. Mr Hallas submits that I should reduce the otherwise appropriate sentence because the offending was, in Dr Protulipac's opinion, influenced and governed by the offender's psychiatric illness. Principles relating to how mental illness can and should be taken into account on sentencing are well known: DPP v De La Rosa [2010] NSWCCA 194, (2010) 79 NSWLR 1, at [177]; R v Verdins [2007] VSCA 102; 16 VR 269 at 276 at [32].
2. Here, while I accept that Depotovski's condition helps explain why he took up gambling and sought to relieve his debt burden, I cannot accept that his moral culpability was appreciably lessened by any mental condition. His conditions will affect how he serves his sentence, particularly given the recent COVID-19 pandemic, but sadly depression and anxiety are conditions suffered by most prisoners. While relevant, his conditions cannot otherwise have a significant impact on a punishment that must consider all the circumstances; denunciation and deterrence remain very relevant sentencing objectives.

Gambling

1. Despotovski says that he was motivated to commit the offences because he was in debt and had problems arising from gambling. His family told me how much of their money he had squandered feeding that addiction. He told me he did not repay his debts and still owes his family and friends many thousands of dollars. The need for quick cash and a gambling addiction that lead to this need does not excuse the offending or exculpate the offender.
2. Economic duress and continued association with career criminals does not of itself does not mitigate an offender's objective criminality: R v Ceissman [2004] NSWCCA 466 at [24]. As with a drug addiction, while a gambling problem may explain why an offender has committed an offence generally it does not warrant the extension of leniency. However, the reasons why an offender took up both drug use and gambling and any efforts to efforts to overcome their addictions can go to the offender's prospects of rehabilitation: Siwek v R [2017] NSWCCA 178; Henry v The Queen (1999) 46 NSWLR 346 at [275].

COVID-19

1. The present crisis has increased apprehension by prisoners about infections in gaols, as it does in the community in general. As a community we are being asked, urged and compelled to self-isolate. This cannot happen in a gaol. Prisoners cannot practice physical distancing, particularly sweepers whose job it is to clean within the gaols. Prisoners are personally unable to implement social distancing. They are completely reliant on the authorities; who have complete control over their lives.
2. Social visits have been suspended for an indefinite period, although access to telephone calls has increased: CSNSW memo response to COVID-19, 25 March 2020. Absence of visits from family and friends is an additional hardship.
3. These concerns and considerations apply to every prisoner sentenced and for sentence. I am however sentencing this offender today based on current knowledge of COVID-19and the response to the crisis as advised by Corrective Services NSW
4. If and in reality, it is when COVID-19 enters gaols early parole may be given some prisoners: s276 Crimes (Administration of Sentences) Act 1999. The offender falls into a category that might be considered for early parole.
5. I cannot predict what will happen to this offender but the lack of visits reducing any capacity to remain in contact with pro-social friends and family, and that heightened anxiety and concerns, are relevant factors that must be synthesised along with all other matters. The extent, to which those may be taken into account is a matter to be resolved on the particular facts of this individual case: Brown v R [2020] VSC 60 at [48]. Here his depression and anxiety will be exacerbated. Although I note his health concerns (they are not supported by other evidence) nothing in particular puts Despotovski at greater risk than every other prisoner.

Submissions

1. I am indebted to Mr Hallas and Ms Steedman, Crown Prosecutor for their comprehensive written and succinct oral, submissions. I have taken them into account in formulating these reasons. I hope this judgment does justice to them.

Guilty plea

1. The guilty plea in the Local Court requires a reduction of 25% in the otherwise appropriate sentence: s25D (2) Crimes (Sentencing Procedure) Act 1999. The acceptance of responsibility inherent in the plea and other evidence of Despotovski's regret and understanding about the impact of dug supply offences also gives me some comfort that progress to rehabilitation is being made.

Special Circumstances

1. The evidence relating to the offender's need; for psychological treatment, assistance dealing with his gambling addiction in the community, help adjusting to normal community life, all provide a basis for a finding of special circumstances. However, in so finding I am mindful of a requirement that the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offence and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].
2. It also important to note that studies reveal that offenders who received parole supervision upon release from custody take longer to commit a new offence, were less likely to commit a new indictable offences and committed fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497., 2011 BOCSAR, http://www.bocsar.nsw.gov.au/Documents/parolesupervisionandreoffending.pdf

Guidance

1. While every offence and every offender requires individualised treatment courts must in the exercise of their undoubted discretion take guidance from a number of sources. They include: the maximum penalty of 20 years, which provides one sentencing measure to be balanced with all other relevant factors. The maximum penalty also invites a comparison between this case and other cases. They include; the decisions of other courts, particularly those designed to give guidance; and of course, the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm done by drug supply crimes to individuals and the community.

Synthesis

1. I have endeavoured to identify all the factors that are relevant to the sentence and discuss their significance. Having considered them I must then makes a value judgment as to what is the appropriate sentence given all the factors relevant to the crime and the offender: Hili v The Queen (2010) 242 CLR 520.
2. Dr Protulipac recommends therapeutic options be preferred to punitive ones. I accept that therapeutic options may be more useful in helping Despotovski not reoffend but in large commercial drug supply matters mitigating considerations can go only so far.
3. It bears repeating that the sale of illicit drugs causes considerable harm not just to those who purchase and ingest such drugs but to the community in general. The illicit trade in drugs is one of the principal sources for crime in the community. It is not just the sale of drugs; it is the crimes that are committed by those who seek to obtain funds for drugs and the destruction to family life and personal life these crimes cause. The maximum penalty and current general sentencing guidance reflect a perceived community interest in appropriate and just punishment of such offences for a significant and telling period.
4. In order to reflect these considerations a retributive sentence is required. Retribution is the expectation that those who engage as the offender did in the commercial supply of drugs for profit and over a lengthy period will be punished; and punished severely. A proper sentence marks the Court's view of the seriousness of the crime, and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203, at 205.
5. There may come a time where we, as a community, have to reassess the extent to which retribution and deterrence influence sentences for drug supply matters and whether the evidence shows such concepts do in fact protect society by reducing the incidence of future crimes. But for the moment they remain very relevant sentencing principles that must apply in large commercial drug supply matters such as this.
6. Had it not been for your early guilty plea and taking account the Form 1, a sentence of 7 years 6 months would have been imposed.

ORDERS

1. There will be a non-parole period of 3 years 6 months commencing 20/12/2018 and expiring 19/06/2022. The balance of the sentence of 2 years 1 month is to commence upon the expiration of the non-parole period on 19/06/2022 and expiring on 19/07/2024. The total sentence is 5 years 7 months.
2. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 19/06/2022.
3. I make a drug destruction order.
4. Pursuant to s 18 (1) of the Confiscation of Proceeds of Crime Act 1989, I order that the sum of $8,235.00 be forfeited to the State.
5. The back-up charges are withdrawn and dismissed

Amendments 11 May 2020 - Typographical error in cited text 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: 11 May 2020