Mr Jim Donevski stood trial before a jury and myself in September 2023, and on 27 September 2023 was found guilty by the jury of an offence of supplying a prohibited drug being not less than the large commercial quantity. The maximum penalty for that offence is life imprisonment and a standard non-parole period is specified, namely, 15 years. Those are important guideposts in the sentencing exercise to which I have had regard.
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FACTS
The facts on which the offender is to be sentenced are to be determined by the Court, but must be consistent with the verdict of the jury. Matters of aggravation must be proved beyond reasonable doubt, while matters in mitigation only need to be proved on the balance of probabilities.
The Crown included as part of its sentence materials a copy of the Crown Case Statement. Counsel for the offender accepted that this represents an accurate overview of the relevant evidence admitted at trial.
I find the following facts:
The relevant events occurred on 27 November 2021. On that day police were conducting surveillance in connection with an ongoing investigation into the supply of prohibited drugs by a Mr Sami Dario. That investigation had commenced some weeks earlier and included the use of electronic surveillance devices to monitor Dario's activities.
At about 5.20pm on 27 November 2021 police were conducting physical surveillance in the Yagoona area which was aimed at monitoring the supply of drugs by Dario. At about 5.25pm police were monitoring surveillance devices that had been installed in an industrial warehouse in Rookwood Road, Yagoona. Police observed Dario to remove multiple items from boxes which he placed into black plastic bags. He was then seen to leave the warehouse carrying the black plastic bags and enter a Toyota Hilux vehicle before driving away from the warehouse. At about 5.30pm surveillance police saw Dario in the Hilux travelling in a southerly direction from the northern cul-de-sac and of Graf Avenue, Yagoona. The vehicle being driven by Dario continued along Graf Avenue in a southerly direction and then turned left onto Brunker Road, where police lost sight of it.
At around the same time, however, police saw the offender, Jim Donevski, standing near a gold Mazda 6 sedan, which was registered in his name and parked at the cul-de-sac end of Graf Avenue. Police saw the offender place some items into the Mazda and then drive off. Police followed the offender's Mazda and eventually stopped it in Silverwater. The offender produced his driver's licence and appeared to police to be nervous. When asked where he was coming from the offender initially said he was on his way to a friend's house in Riverwood, but had received a call and was instead travelling somewhere else. When questioned further the offender said "I'm actually not going to my friend's I just came out for a drive and I'm on my way home now".
Police searched the Mazda. Inside they found 12 unlabelled one litre bottles containing a clear liquid. Two of the bottles were found in a Coles brand shopping bag in the rear footwell along with some personal items belonging to the offender. One of the those items was some prescription medication in the name of the offender. Six bottles were found inside a knotted black plastic bag and a further four bottles inside another knotted black plastic bag. The offender was cautioned and made no comment in relation to the bottles which were seized by police for forensic analysis. The offender, however, was not arrested at this time and was allowed to leave. Analysis of the contents of the bottles later revealed that they contained a total of 11,509.2 grams of GBL, that is gamma butyrolactone, with a purity of 87 to 90%. On 17 March 2022 police attended the offender's home and arrested him.
Those are the relevant facts concerning the offence.
[3]
OBJECTIVE SERIOUSNESS
Turning then to the objective seriousness of it.
The offence is obviously a potentially very serious one given the prescribed maximum penalty and the specified standard non-parole period. However, it is important that I make an assessment of the relative seriousness of the particular example of the offence before the Court by reference to its facts.
The quantity and purity of the drug is a very relevant matter, although it is just one of a number of factors to be considered. In this case the quantity of GBL, which is the subject of the deemed supply offence committed by the offender was 11,509 grams. The prescribed large commercial quantity is 4,000 grams and so the quantity was close to three times the large commercial quantity. The drug was also of high purity, namely, 87 to 90%.
While it is sometimes useful to apply labels to persons who participate in drug supply, this is not always possible to do with accuracy, because often the Court has limited evidence about the discussions and arrangements between the various participants. This case is an example of such a situation and I am left to draw any available inferences from the evidence admitted in the trial. There is no direct evidence as to the precise role that the offender played in any hierarchy of drug supply. The Crown submitted that while little is known of the offender's role I should find that he was a "courier or middle man", but that his role was critical to "the overall enterprise". The Crown further submitted that the offence is aggravated by its being planned and being part of organised criminal activity and that the offence was committed for financial gain.
In my view the offender's role was essentially that of a courier. I am satisfied that the drugs had been dropped off to him by Dario and that his role was to pass them on to someone else. While I accept that the offender was no doubt doing this for some form of financial or other material benefit I am unable to quantify what that benefit was. The offender told the psychologist, Ms Cornell, that he had been promised $200. I approach this with some scepticism, but I am satisfied that any financial benefit to be received by the offender was fairly minimal. There is for instance no evidence of substantial amounts of money being found or any indicia of wealth. My conclusion that any financial benefit that the offender expected to receive would have been modest is consistent, in my opinion, with observations made in other cases about the drug GBL being a "low reward" drug. See the discussion by Dhanji J in Bott v R [2023] NSWCCA 255 at paras 83-102.
While I also accept that the offence occurred against a background of "organised criminal activity", namely, by Mr Dario, I do not regard this offender's role as being appropriately described as "organised criminal activity" because I see his role was being somewhat peripheral, in that he was performing a fairly simple task of being a courier of the drugs to an intended recipient. Also, the offence involved no sophistication given that the offender was using his own car and had placed some of the bottles of GBL into a bag which contained his own personal items, rendering the finding of guilt by the jury a virtual certainty.
Having regard to all the objective facts and the matters to which I have referred I assess the objective seriousness as being towards or in the low range for this type of offence.
[4]
SUBJECTIVE MATTERS
Turning then to subjective matters.
The offender is now aged 54 and was 52 at the time of offending. His background is summarised in the psychological report of Paige Cornell.
He emigrated from Macedonia with his parents and older brother when he was aged two. He described his parents as having a loving relationship and denied exposure to violence or abuse. He said, however, that he was exposed to instability, financial disadvantage and attachment disruption. Linked to this is a history of mental health problems experienced by the offender's mother. The offender reported that his mother's mental health resulted in her being unable to work for long periods and required the father to stop working at times to care for her. The offender also reported that he himself missed considerable periods of school due to the same problems and the need to look after his mother, who had unpredictable moods and behaviours. The offender told the psychologist that due to problems he experienced at home he began to spend most of his time outside the house by the time he was about 12. Nonetheless he maintained a close relationship with his parents until their deaths.
The offender attended school until about Year 9 and reported feelings of anxiety where he would shake and become withdrawn from others which he attributed to an incident in early high school where he was slapped by a teacher.
The offender began using cannabis at age 13 and continued with this until aged about 30, when he started using heroin which he continued to use from that time until his arrest for this offence. He also has a history of problematic gambling, but says that he has stopped this since his mother's death in 2019.
The psychologist ultimately reached the conclusion that the offender presented with a depressive disorder, generalised anxiety disorder and severe opioid use disorder. This last disorder is said to be in early remission in a controlled environment. The psychologist expressed the opinion that the offender was experiencing these disorders at the time of offending, but that the opioid use disorder was the primary precipitant to the offending behaviour.
The Crown submitted that little weight ought to be given to parts of the psychological report. The Crown argued that the history provided to the psychologist about the offender's childhood contains inconsistencies and that even if they are accepted it does not amount to hardship. I accept that a degree of caution needs to be taken to the contents of the psychological report given that it is largely based on a history provided by the offender which was not subject to scrutiny via cross-examination. The Crown argued in part that there are inconsistencies in the history and also that the history does not support a conclusion that there was deprivation. The Crown submitted also that there is no clear evidence about how the offender's mother's mental health impacted on the offender and the fact that he maintained a close relationship with both parents until their deaths does not support a "Bugmy" finding.
I have considered all of these submissions by the Crown, however, and while I have approached the history in the report with some caution I am satisfied that the offender's childhood was significantly impacted by financial difficulties as well as his mother's unstable mental health. In my view, firstly, these are problems that might frequently be expected to be experienced by people migrating to another country where they are faced with foreign customs and a foreign language, and I see no obvious inconsistencies in this regard in the history provided in the report.
The report also notes that the offender's mother's mental health dominated his developmental experience and explains that he was required to take time off school to assist his mother and interpret for her and that his mother had fluctuating moods where her behaviour would be unpredictable and he "felt loved and hated at the same time". The psychologist explains, in terms that I accept, that this is an indication of an attachment disruption and refers elsewhere to the offender's account being indicative of an inappropriate level of responsibility for a child. Negative impacts like these are well known in children raised by parents with mental health problems and are consistent with common sense. I note also the fact that the offender's criminal history indicates, somewhat pointedly, that at age ten he was charged by police and placed before Yasmar Children's Court for trespassing. This is another piece of the offender's history which provides support for his description of his family life having been unstable and disrupted.
Also I do not accept the Crown's argument that the suggested background and childhood depravation is inconsistent with the offender having had a close relationship with his parents until their deaths. The history is in my view, consistent with a man who has always been very close to his parents despite their problematic behaviour, and I see nothing remarkable or improbable about such a situation.
I also accept that the offender has himself suffered from significant mental health problems of the kind described by the psychologist. This is given further support by the fact that police observed the offender to be nervous and physically shaking when they stopped him on the day of the offence and by the fact that they found alprazolam tablets in the offender's name in his car.
Further support for the offender's own psychological problems and his mother's history of mental problems comes from the medical "full summary" document, dated 13 November 2023, which was admitted in the sentence proceedings.
In conclusion I accept that the offender's childhood and adolescence was significantly affected by the family's relative poverty, his mother's mental health and the instability that was caused to the offender's development by reason of these factors.
It is relevant that I have regard to the well known principles discussed in a number of cases. The most prominent of these is Bugmy v The Queen (2013) 249 CLR 571, which discussed, by reference to the general principles noted by Simpson J (as her Honour then was) in R v Millwood [2012] NSWCCA 2, where her Honour said:
"I would reject the proposition that there was little in the circumstances of the offender that assisted him by way of mitigation. I am not prepared to accept that an offender who has the start in life that 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".
While I do not suggest that this a classic Bugmy case of "profound" childhood depravation, I regard the offender's background as a highly relevant factor in the instinctive synthesis that I must perform in sentencing him. I think his background provides context and some explanation for his continuing psychological struggles into adulthood and for his serious drug problems. His background reduces his moral culpability to some degree, because it made it more difficult for him to live a stable life and avoid problematic drug use, gambling, and making unwise choices such as those that led to the commission of the offence before the Court.
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REMORSE / PROSPECTS OF REHABILITATION
Turning then to considerations of remorse and prospects of rehabilitation.
The sentencing assessment report notes that the offender denied that the drugs belonged to him and made reference to having lent out his car to others. However, the psychological report also notes that the offender acknowledged his offending and said he was offered $200 to transport the items somewhere, but did not know what they were. I regard these latter comments as closer to the truth and I am satisfied that the offender was effectively acting as courier of the drugs for others.
The psychological report notes that the offender "demonstrated significant remorse" and said he was "100% remorseful" and "very sorry". I have trouble in accepting these statements as being genuine remorse given their rather superficial content and given that they do not appear to accord with the offender's own attitude to illicit drugs which he has abused for some decades. However, it is positive that the offender acknowledged his offending to the psychologist and admitted that he had been offered money for his role. On balance, therefore, I accept that there is some limited remorse.
The sentencing assessment report notes that the offender is assessed as a medium risk of reoffending. He has a long history of mental health and drug problems and it would be unrealistic to expect that he will be able to seamlessly extricate himself from these with complete success into the future. On the other hand his criminal history is minimal. Given this and the fact that he is now 54 years of age I think his prospects of rehabilitation are reasonable and I think he is a fairly low risk of reoffending in the future.
[6]
ONEROUS CUSTODY
The psychological report notes that the offender's mental health has deteriorated since entering custody and suggests that as a result the offender's time in custody has been and is likely to continue to be particularly onerous. That is due not only to an exacerbation of his depressive and anxiety symptoms, but also due to a lack of pharmacological treatment and the social isolation that the offender is experiencing.
In taking into account these matters I accept that the offender's time in custody will be particularly difficult for him. I have taken this into account in determining the overall sentence and in particular in my finding of special circumstances for varying the ordinary ratio between head sentence and non‑parole period.
[7]
BAIL
In determining the sentence I have also taken into account the fact that the offender has for a long time been subject to quite restrictive bail conditions which to some degree have had a punitive effect.
[8]
PARITY
I was provided with a copy of the sentencing remarks of Abadee DCJ in R v Alfar (Unreported) 7 August 2023. That offender was a brother and co‑offender with Mr Dario in the drug enterprise that was being conducted by Dario out of the warehouse at Yagoona. Mr Alfar received a 25% discount after he pleaded guilty to offences of manufacturing and supply, and also had an offence involving proceeds of crime, being cash in excess of $3,000,000, taken into account on a Form 1 document.
While I have considered the sentence imposed in that matter it is important for parity purposes to compare "like with like": See Green v The Queen (2011) 244 CLR 462 at para 30. In my view the offences, the facts relating to those offences, and Mr Alfar's involvement in those offences are of a very different character to the offence for which Mr Donevski is to be sentenced and the facts relating to that offence. The differences are such that in my view there are no true "parity considerations" to be taken into account in relation to the outcome in Alfar's case. I note that neither counsel for the Crown nor counsel for the offender submitted that any true parity considerations arise from the sentence imposed by Abadee DCJ.
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DETERMINATION
I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 which I do not propose to recite. I am satisfied for the purposes of s 5 of that Act that no penalty other than full time imprisonment is appropriate.
I have made an adjustment by way of a finding of special circumstances to the ratio between head sentence and non-parole period based upon this being the offender's first period in custody and his mental health issues.
I impose a head sentence of three years imprisonment. I impose a non‑parole period of one year, ten months. Each of those will date from 26 September 2023 so as to take into account pre-sentence custody. The head sentence, therefore, will expire on 25 September 2026. The non‑parole period will expire on 25 July 2025.
I direct that a copy of the psychological report of Ms Cornell be sent to Corrective Services and to Justice Health.
Ms Crown, Mr Carroll, anything to raise?
LEWIS: No, your Honour.
CARROLL: No, your Honour.
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Decision last updated: 20 February 2024