Solicitors:
K Adlington (Offender)
Commonwealth Director of Public Prosecutions (Crown)
File Number(s): 2023/00306314
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SENTENCE
HIS HONOUR: Mr Stephen Ersegovic is before the Court to be sentenced for four offences under the Criminal Code 1995 (Cth) and one offence under s 10(1) of the Drug Misuse and Trafficking Act 1986 (NSW). There are, therefore, two parallel sentencing regimes in place.
The New South Wales offence of drug possession involves the offender having 1.17 grams of MDMA. The maximum penalty for that offence is two years custody. That offence is before the District Court on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). Attached to that offence on a form 1 is a second drug possession matter involving 18.1 grams of testosterone and 3.2 grams of trenbolone. My remarks on sentence though are going to focus on the four offences under the Commonwealth Criminal Code.
When sentencing an offender for Commonwealth offences it is necessary to consider Part 1B of the Crimes Act 1914 (Cth). The overarching requirement imposed by Part 1B is that the Court impose a sentence which is of severity appropriate in all the circumstances of the offence or offences. Section 16A(2) of the Crimes Act requires the Court to consider matters listed in that section to the extent that they are relevant.
The four offences under the Code for which the offender is to be sentenced are as follows. The first is an offence under s 307.8(1) which is the offence of possessing a substance being a substance that is reasonably suspected of having been unlawfully imported, the substance being a border controlled drug, namely methamphetamine, and the quantity being possessed being a commercial quantity. The maximum penalty that can be imposed for that offence is life imprisonment or a fine of 7,500 penalty units, which equates to about $1,665,000. That is sequence 13.
The second offence is sequence 15. That is an offence under s 372.1(1) of the Code, being the dealing with identification information in relation to a number of individuals, including banking documentation to pretend to be or to pass himself off as those other people for the purpose of committing an offence or facilitating the commission of an offence, being an indictable offence against the law of the Commonwealth. The maximum penalty for that offence is five years' imprisonment or 300 penalty units, being $66,600.
The third offence is sequence 19, an offence under s 11.1(1) and s 307.6(1) of the Criminal Code. This is an attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely methamphetamine, and the quantity attempted to be possessed being a marketable quantity. The maximum penalty for that offence is 25 years' imprisonment or 5,000 penalty units, being the amount of $1,565,000.
The fourth offence is under s 400.6(1) of the Code, dealing with money or property that was and the accused believed to be the proceeds of an indictable crime, and at the time of the dealing the value of that money or property was in excess of $10,000.
There is also a matter before the Court on what is referred to as a s 16BA schedule. That is an offence under s 372.1(1). This was sequence 16 and it attaches to sequence 15 which I have already referred to. This is the identical offence and also refers to the accused having in his possession identification information. Again, the same maximum penalty can be taken into account, being five years' imprisonment and/or 300 penalty units.
The maximum penalties I have referred to demonstrate the seriousness with which the Commonwealth parliament assesses the assessment of each of those matters. Being Commonwealth offences, there is no applicable standard non-parole period for any of those offences. I have taken into account the timing of Mr Ersegovic's plea of guilty. This is a relevant sentencing consideration under both the New South Wales regime and the Commonwealth regime.
The plea of guilty was entered on 12 June 2024 for the Commonwealth offences. The New South Wales Early Appropriate Guilty Plea legislation does not apply to the Code offences, but given his entitlement to a 25% discount for the single New South Wales offence and the timing of the plea and its utilitarian value, his willingness to facilitate the course of justice and the absence of any reason to do otherwise, I will also reduce the Commonwealth sentences by 25% from the sentence which I would have otherwise imposed had the plea of guilty not been entered.
I have referred to s 16BA of the Crimes Act and the matter which appears there which is also to be taken into account. I confirmed with the offender that he admitted his responsibility for that offence and asked that I take it into account when I deal with sequence 15, which I propose to do. I consider it is appropriate to take that matter into account and I do so in accordance with the principles set out in the guideline judgment; that is with a view to increasing the penalty that would otherwise be appropriate. The Court does so by giving greater weight to the need for personal deterrence and the community's entitlement to extract retribution for the offence. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence - that is sequence 15.
I will deal now with the facts in relation to each of these matters, commencing with sequence 13, the offence of possessing a commercial quantity of an unlawfully imported border controlled drug.
On about 16 December 2022 the offender communicated via text message with the owner of a storage unit. He purported to be a person by the name of Andrew Stanton and he agreed to lease the storage unit in that person's name. The offender then met with the owner of the storage unit, signed a lease and provided fraudulent New South Wales driver's licence identification information to the owner. That licence displayed a photo of the offender.
About five months later the owner of the storage unit had not been paid any of the storage fees. The owner attended at the unit and he noticed that the roller door to the unit was closed but not locked. He opened the roller door up and he saw inside the unit cardboard boxes which he thought were suspicious and consequently contacted police. Police attended the unit. They opened one of the boxes and found inside it 20 plastic containers containing a white substance. The white substance was tested and returned a presumptive result for methamphetamine. Forensic testing was ultimately carried out which confirmed that it was in fact methamphetamine.
A search warrant was executed on the storage unit and a total of 40 plastic containers were seized. The total pure weight of the methamphetamine that had been stored in the storage unit was 15,976.7 grams. Amongst other things found in the unit were two shipping boxes addressed to a company called Aerotech Aviation in Alice Springs. They had been imported from the United Kingdom on 30 January 2023. A sticker on the shipping boxes was from Paul's Customs and Forwarding Solutions Pty Ltd, which noted their arrival in Australia on 6 February 2023. I note that it is not alleged by the Crown that the offender had anything to do with the importation of the methamphetamine itself, but rather, merely possessed them within that storage unit and knew they had been imported.
It is important to note that the amount of 15,976.79 grams is considerably more than what is required for a product to fall within the definition of a commercial quantity of methamphetamine, being 750grams.
Sequence 15 is the offence of dealing with identification information and I will also deal with the matter at sequence 16 which appears on the schedule. In this instance, the offender dealt in identification information by using information to pretend to be or to pass himself off as a series of fictitious persons and to create bank accounts in the names of such identities which were then used to process payments for companies, rent for storage facilities, freight invoices and all with the purpose of facilitating the commission of the indictable offences against the Commonwealth Code, namely in this case the importation and/or possession of border controlled drugs.
On 18 October 2022, the offender leased storage space under a false name. On about 9 July 2023 police executed a covert search warrant at that storage cage where they located storage tubs which contained a large number of items which are set out in the very detailed statement of facts before me. Amongst the items seized were leases and business cards in other people's names, 30 SIM cards, two mobile phones, tracking devices, covert CCTV cameras, an electronic countersurveillance sweeper device, multiple letters addressed to other people.
In relation to the matter on the 16BA schedule, this related to the offender being in possession of driver's licences in the name of 11 other people, three Medicare cards in the names of other people and Australia Post receipts for leases also in the name of other people. The offender used the fraudulent identification to lease PO boxes and storage facilities in order to facilitate the possession of the unlawfully imported border controlled drugs. That is, he had the important role of organising a place for the drugs to be stored until their further distribution. On three occasions he was detected presenting himself at post offices using a false identity and on three occasions he leased a post office box using a false name.
Sequence 19 is the offence of the offender attempting to possess a marketable quantity of an unlawfully imported border controlled drug. On 15 June 2023, a consignment was intercepted by United States authorities. It was found to contain 2.64 kilograms of a substance suspected of being methamphetamine which was concealed in some shoes. The facts reveal that the offender had some knowledge of this consignment but it is not the subject of a charge and I do not take it into account when I am sentencing the offender. It is presented before the Court in the facts in order to demonstrate that the offence involving the attempt to possess a marketable quantity of border controlled drug for which he did plead guilty, was not an isolated incident and that he knew the item being imported and for which he has pleaded guilty to, was a border controlled drug.
On about 12 September 2023, a consignment arrived in Australia addressed to someone by the name of Carl Edwards. It arrived from Pakistan and it was intercepted by the Australian Border Force. An examination of the consignment revealed it contained metal poles and inside those poles had been hidden a white powder. Forensic testing of the white powder determined that it was methamphetamine. The total pure weight of the methamphetamine was 642.99 grams which is defined as a marketable quantity.
On 20 September 2023, police took possession of the consignment. The metal poles containing the drugs were removed by police and replaced by empty metal poles. The substituted consignment was then placed out for delivery and on or about the following day the offender, using the name "Sandman" exchanged messages with a person who I will refer to as his handler being called Pando.
The offender was recorded on an intercepted phone call speaking to the UPS delivery service. During the call the offender provided the customer service operator with a tracking number and inquired when the parcel containing the metal poles would be delivered. The offender then arranged to meet the delivery person the next day in order to collect it.
On 22 September 2023 the offender was observed by surveillance operatives at a Marrickville address. He approached the UPS driver and asked for the delivery in the name of Carl Edwards. He then took possession of the substituted consignment. He was then observed driving using anti surveillance techniques. The offender was observed driving back to the storage cage where he left the substituted consignment. Later that day police conducted a second covert search warrant of the storage unit where they found the substituted consignment unopened in a bag. On the following day, 23 September 2023, the optical surveillance device hidden inside the cage captured the offender inspecting contents of various plastic tubs. A metal pole was visible in his hand. Later that day, the offender sent two images to Pando of the opened consignment box in the bag where the metal poles were visible.
I will now deal with sequence 20, the offence of dealing with the proceeds of crime. The offence here involves $53,500 of money and property that the offender knew to be the proceeds of an indictable crime. It is not entirely clear how that figure was calculated in that the facts refer to $43,000 in cash and a $26,000 Rolex watch, as well as a separate amount of four and a half thousand dollars which was located in a bag that the offender had on his possession at the time he was arrested. Those funds, being the four and a half thousand dollars, had come from a deal that the offender had struck with Pando to deliver some drugs interstate during September 2023.
On or about 26 September 2023 the offender was arrested by police. At that time he had in his possession three mobile phones. At that time he was searched and he was found not only with the four and a half thousand dollars in cash, but also a number of identification cards. A search of his vehicle revealed two hidden compartments in the rear floorboards. A search warrant was subsequently executed at the offender's residence in Illawong. It was during that search that police found the $43,000 in cash and the Rolex watch I have already referred to.
During that search, the following two items were also found at the offender's residence. Firstly, there was the 1.17 grams of MDMA which is before the Court for sentence. Also found were vials of liquid which were subsequently tested and found to be 18.1 grams of testosterone and the 3.2 grams of trenbolone which are before the Court on a form 1.
I will deal with the objective circumstances and the objective seriousness of those offences shortly. I do wish to point out that the offender has only one entry on his criminal history being a drug possession matter for which he received a two year conditional release order. His antecedents entitle him to some leniency in this matter given his age and given his very good criminal history. I do note though that the offender which is before me for sentencing did occur while the conditional release order was in place, however I do not use that to aggravate the sentence in any way.
Dealing now with the s 16A of the Crimes Act and the matters to which the Court is to have regard when passing sentence. The Court must impose a sentence or make an order that is of a severity that is appropriate in all the circumstances of the case. I will deal with some but not all of the subsection set out in s 16A of the Crimes Act. I will deal firstly with the nature and the circumstances of the offence at 16A(2)(a). This section is essentially the Court's opportunity to consider the objective seriousness of the offences.
An essential part of the sentencing process is the assessment of the objective gravity of each offence for which an offender is to be sentenced. The parameters of the appropriate sentence ensures the sentence imposed is proportionate to the offence committed. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders.
I will start with what is the most serious of the matters before the Court, being sequence 13, the possessing of a commercial quantity of an unlawfully imported border controlled drug. As I have already indicated, the amount concerned was 15,977 grams of methamphetamine, almost 27 times the amount which is defined as a commercial quantity which is 750 grams.
Ordinarily the amount of the drug involved in an importation is a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type. However, it is by no means the only matter that the Court takes into account. A critical consideration is the offender's actual involvement in the transaction and what he or she had to do with the possessing of the border controlled drug.
It was conceded by Mr Hammond, who appeared on behalf of the offender at the sentence hearing, that the facts reveal that the offender while far from being the principal in the importation, nonetheless, had an important role and was essentially not on the bottom rung in terms of criminality. The offender had organised the storage unit by negotiating its lease and between December 2022 and May 2023 had responsibility for it, and by virtue of his plea, knew what it contained. There is however no evidence the offender had anything to do with the importation itself, nor any ultimate drug supply or even that he necessarily unpacked the drugs himself.
It is also important to note that the difficulty of detecting importation offences and the very negative social consequences which flows from drug importation and drug supply make general deterrence a critical issue in this case. The sentence to be imposed for drug importation matters must signal to would be drug traffickers and people who assist them, that there are potentially significant punishments for doing so. The Crown submits that the offender played an indispensable part in the drug syndicate's operations, but I do not find that the facts necessarily go that far.
Mr Ersegovic gave evidence during the sentence hearing and as he explained in his evidence, his role was to do what he was told by others. He was in my view an important but dispensable cog in the machine of an operation that he had no control over. His involvement with the particular storage shed was for months, which elevates the seriousness of his conduct. I do not accept though that his attempt to conceal his activities and remove any connections between the false identities and his legal identity demonstrates a sophisticated operation as was submitted by the Crown.
In my view, the steps that the offender took were in the circumstances of an offence of this nature, fairly basic. The level of sophistication lies in the creation of the false documents that he used, but the offender was not responsible for creating those documents and is not to be punished for doing so. He merely used them to facilitate other people's ends. I also do not accept the Crown's submission that the offender had stored numerous tools consistent with drug distribution and drug supply inside the unit. Perhaps with the exception of some boxes, none of the seized items appear connected with drug supply in my view.
The objective seriousness of the offence is higher if the Court is satisfied beyond a reasonable doubt that the offender knew the substance was a border controlled drug. It was submitted that the significant lengths taken to set up the false names and the use of multiple identities to avoid detection combined with the fact that there were overseas parcels located in the storage shed, would lead the Court to find that the offender knew that the substance he was dealing with and had in his possession was a border controlled drug. I agree, and also add that the offender's own evidence before me was that he was working for people who he knew to be involved in the drug supply business, and that he was acting at their direction.
I accept the Crown's submission that it can establish beyond reasonable doubt that he knew the substance was a border controlled drug, and that elevates the objective seriousness of his criminality. I also accept that there was a financial motive, but that finding is mitigated to a large degree because he was not doing this for profit, but rather to pay off a debt to the very drug dealers that he was working for.
The offender gave evidence during the sentence hearing that he had been unable to pay for the drugs that he had been buying, and that it had been made very clear to him that if he was not prepared to assist his suppliers in any way they requested, that he could be placed in danger. He said, "They were serious people and I was worried what may happen if I didn't do what they said." It was submitted that the conduct was done under non-exculpatory duress, that is, as was accepted by Mr Hammond, that the degree of duress under which the offender operated was not enough to give rise to a defence to the actual charge.
The offender was cross‑examined in relation to the threats but he maintained that he had been scared and felt he had no choice but to comply. Non‑exculpatory duress may be taken into account by the Court as a mitigating factor for two reasons. Firstly, it may affect the degree of the offender's subjective or moral culpability, and their prospects of rehabilitation. It is relevant to the assessment of objective gravity if an offence is committed because of threats or fear of harm to oneself or others, rather than financial profit or greed. These matters can bear upon the moral or true culpability of an offender. Where the offender satisfies the Court that the commission of the offence was affected by duress, the weight given to that factor involves the Court considering matters including the form and duration of the criminal conduct, the nature of the threats made and opportunities available to the offender to report the matter to relevant authorities.
In my view the offender's evidence before me on duress was not particularly strong. There was no evidence as to the nature of any threat he had received, nor whether there was one threat or many. There was no evidence about who the threat involved, nor why he took it seriously. There was no evidence of him having ever experienced or witnessed other people being dealt with harshly by these people from whom he felt the need to take instructions. There was no evidence why he thought these "serious people" would in fact harm him, or anything which caused him to have that fear. There was no evidence why he could not extricate himself from the relationship with these people and report them to the police, although I accept that that may be unrealistic given the circles in which he was moving in at that time and of course his drug addiction.
However, when I consider his evidence, I came to the view that it was vague and unpersuasive. While I accept the offender believed he could be harmed, it struck me that his actions were really more motivated by convenience, realising he was over his head with debt from his drug abuse and that his motivation - rather than to respond to a threat that had been made to him - was directed to simply being able to pay off the debt owed to his superiors in the drug business. I do accept though that at all times he was acting at the direction of others and was by no means a decision maker in the drug supply business.
The evidence set out in the statement of agreed facts show a regular contact between himself and "Pando". Clearly Pando was the superior and the offender was simply a worker following his directions. I accept the offender's evidence to that effect and that mitigates his role in the charge for sequence 13.
With respect to sequence 15, the charge under s 372.1(1) of the Code, it is a charge that deals with identification information. The offence involves any person who is using identification information which is a defined term in a way that will be connected to the attempt to facilitate the commission of an offence against the Commonwealth criminal law or a foreign indictable offence.
Identification information is defined as information or a document relating to a person whether living, dead, real or fictitious, but is capable of being used whether alone or in conjunction with other information or documents, to identify or purportedly identify a person. It includes driver's licences, passports and credit cards amongst other things. Crimes of this character involving an undermining of the community's trust in fundamental documents required for simply living in the 21st century.
General deterrence is of considerable importance in my assessment in this matter. While the offender did not create the identities that he used in the commission of these offences, he was involved in using them for a period of perhaps up to nine months and on each occasion used them for the purpose of assisting his masters in carrying out these offences. The presence of the charge under s 16BA is taken into account here.
With respect to sequence 19 which is the matter involving the marketable quantity of methamphetamine in the amount of 642.99 grams, the same considerations I have set out for sequence 13 apply here. I note that a marketable quantity of methamphetamine is between 2 grams and 750 grams, so the amount of 642.99 grams is many, many multiples above that basic marketable quantity.
What is clear from the statement of agreed facts is that once again the offender was acting at the instruction of Pando. He made several attempts over the course of a number of days to access the content of the metal poles. Although the offender's conduct indicates that he is at a low level in the drug importation hierarchy, I accept the Crown's submission that his engagement was still important.
He attempted to gain access to the goods during the period 17 September to 26 September 2023 and his ongoing dealings with Pando during that time demonstrates for lack of a better phrase a real commitment to the cause. I make the same findings with respect to his knowledge as to what the product was and the fact that there was a financial motivation, albeit to pay off a drug debt rather than for his personal profit.
With respect to sequence 20 and the amount of $53,500, the amount involved with this offence is highly significant. For offences of this nature, it is common that an offender will be a person facilitating the laundering of ill-gotten money or property, or actually involved in that process. That does not arise in this case. The money seems to be held based on the evidence that the offender gave before the Court for the purpose of him actually paying back a drug debt. The offender's evidence was that $20,000 of the cash belonged to his mother and he had borrowed it from her to help pay off his drug debt and that the other $23,000 was his money which was also going to be used for the same purpose. He was not challenged about that evidence.
The most important consideration in sentencing an offender for an offence under this division of the Criminal Code will be to consider what the offender did because there may be little or no evidence before the Court as to the organisation behind the offence, the source of the funds, or the ultimate use to be made of them. Given the evidence of the offender, it seems that the evidence in this case was not being used for him as part of a money laundering process, but rather simply money he was going to pay to his masters in order to pay off a drug debt, so the money might be more properly characterised as an instrument of crime, rather than the proceeds of crime, although this makes no little difference.
I have considered the offender's moral culpability in relation to this matter and all of the offences that I have referred to. There is no submission made on his behalf that he had suffered from childhood deprivation. On the contrary, the offender had a very positive childhood and was from a very good home. There is also an absence of mental health issues. I have found that his moral culpability is not reduced.
I acknowledge though that he did have an ongoing drug problem at the time that these offences occurred, and that is an important consideration as part of his subjective case and it does go a significant way to explaining his conduct. The offending clearly forms part of an ongoing course of conduct. Specific and general deterrence are clearly critical considerations for the offences and there is no reason in this matter not to give full weight to those considerations. I note the Court is required to consider those matters by virtue of s 16A(2)(j) and (ja).
I also consider the degree to which the offender has shown contrition for the offence, a relevant consideration of s 16A(2)(f) and the character, antecedents, age, means and physical or mental condition of the offender, a relevant consideration of s 16A(2)(m) of the Crimes Act.
As already noted, there was evidence by the offender during the sentence hearing. His evidence was important because he expressed not only his genuine remorse for committing the offences but gave some background to them. He explained that he had been using a significant amount of illicit drugs during the time the offences occurred, sometimes up to $10,000 a week, and had become heavily indebted to his suppliers. As a way of paying them back, he undertook the tasks they asked of him which give rise to the offences before me for sentence today.
He did not attempt to blame anyone but himself for the mistakes, and he regretted not speaking to his family and seeking their assistance. He is clearly remorseful and clearly has significant insight into not only the harm that he has done to himself but the difficulty it has caused for his family as well, and also for the wider community. I have no hesitation in accepting his evidence and I have no hesitation in accepting that he is truly remorseful for his actions.
The offender also gave evidence that he has not used any illicit substances since being in custody, and that he intends to remain clear throughout the balance of his term and into the future. He has been attending Narcotics Anonymous, and he wishes to keep doing so into the future. He said, and I accept, that he finds this very beneficial. He gave evidence that upon his release he wishes to work and have a normal family life and to repay the faith that has been shown to him from his family and friends.
He stated that he is disgusted with himself, particularly as he now sees firsthand through his time in custody the damage that drugs can do. I found him to be a highly credible witness who has now developed insight and genuine remorse in relation to his conduct, and I find that he has very good prospects of rehabilitation.
In addition to Mr Ersegovic's oral evidence, he also supplied the Court with a very thoughtful handwritten letter which set out several, perhaps surprising, insights. His view, and it is a view echoed by the very powerful letters from both his mother and father. I note that his parents are in court again today. He stated in his letter to me, "Gaol has taught me many things. I can't help but feel this is where I needed to be at this point in my life." He goes on to explain his background with work, with drugs, his commitment to a new life, and the love of his family. His parents, his aunty and a friend, all of whom provided written testimonials to the Court, all speak very highly of him and give their undertaking to support him into the future. All of this is very important in terms of his ongoing rehabilitation, and I have certainly taken it into account in setting the sentence I am shortly going to impose.
Also before the Court was a report from psychologist Julie Dombrowski. In that report, Ms Dombrowski refers to the offender as having a very happy, loving and supportive family, with good hardworking parents when he was being raised. He finished high school and worked for a while before eventually losing his job through poor performance as a result of his drug use. The report says this in relation to Mr Ersegovic's drug use:
"He started using cocaine and gamma hydroxybutyric acid (GHB) on weekends in social contexts at the age of 18. His use of these substances increased until he was using both substances heavily on most days, particularly after his grandfather's death when he was 22. At age 23 he also started smoking methamphetamine regularly. He told me he was using up to 7 grams of cocaine, 3 grams of methamphetamine and 150 mils of GHB weekly at the time of his involvement in the subject offending. He also reported a history of sporadic alcohol, cannabis, MDMA and ecstasy and non‑prescribed benzodiazepine during his late adolescence and early adulthood."
The offender was born in February 1998 and is currently 26 years of age, and was between the ages of 24 and 25 at the time these offences occurred. Ms Dombrowski psychometric testing found him to be a low to moderate risk of reoffending, but he needs substance abuse treatment which is ongoing. She considers this an important matter in terms of his rehabilitation. She states that the drug usage of the past was connected to antisocial peers, the breakdown of his relationship with a former girlfriend and the death of his grandfather. He is committed to remaining drug free in her view.
I accept the Crown's submission though that the offender's drug addiction does not mitigate his sentence, however in my view it does go an enormous way to explaining his conduct. Ms Dombrowski finds that he is not an inherently antisocial person which I accept, but there is clearly a link between the drugs and the offending and providing he remains abstinent from the drugs, Ms Dombrowski appears to conclude that he should not reoffend. This again is a very important consideration for the Court.
I referred a moment ago to the fact that he is 26 years of age. He is still relatively young and it is hoped that he has learnt his lesson as a consequence of the time he has spent in custody to date, and will continue to spend into the future. As a young person, the Court is entitled to take into account that he may well be immature in his decision making, and I have done so.
He has been in custody since 26 September 2023 and his sentence will commence on that date. As there is more than one offence before the Court for sentence, I must consider the principle of totality. The totality principle is a recognised principle of sentencing that requires the aggregation of multiple sentences to reflect what the Court considers to be a just and appropriate sentence.
Relevant to my consideration in this case is that while there are different types of offences committed, they are all bound up in the same type of overreaching criminal enterprise to which he found himself enmeshed. The criminality involved a number of different actions taken at the behest of his masters that had occurred over many months.
I intend to impose an aggregate sentence which will address the issues of totality. I note that the Court's ability to impose an aggregate sentence for a Commonwealth offence was confirmed by the Court of Criminal Appeal last week in the case of R v McGregor [2024] NSWCCA 200. I will set out the indicative sentences for each of the discrete sentences and then pronounce the aggregate sentence shortly.
I am satisfied that the threshold of s 17A of the Crimes Act is crossed for each of the offences under the Criminal Code. This was accepted as inevitable by Mr Hammond. As Commonwealth offences, there is no legislated parole period which needs to be varied by the Court making a finding of special circumstances. Here I propose to set a non‑parole period of 62.5% of the head sentence.
I am doing so to assist the offender when he is released from custody in order to have the benefit of Community Corrections reintegrate him into the community and to provide him with any ongoing rehabilitation that he may need as well as possibly providing him further educational opportunities and perhaps work opportunities should he require their assistance.
I am taking into account the 25% discount for the plea of guilty and I make the following orders with respect to Mr Ersegovic's matter.
Firstly, the offender is convicted in relation to each of the charges for which he pleaded guilty.
With respect to sequence 10 which is the drug possession matter, noting sequence 11 on the form 1, I order that that matter be dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). That is that no further penalty will be imposed upon him.
In respect of the offence of s 307.8(1), being sequence 13, the offence of having in his possession a substance that is reasonably suspected of having been unlawfully imported, the indicative sentence is one of six years. In respect of the offence at 372.1(1) being sequence 15, taking into account the matter on the 16BA schedule, this being the offence of dealing with identification information for the purpose of committing an offence or facilitating the commission of an offence, the indicative sentence is one year and six months.
In respect of the offence at s 307.6(1), and s 11.1 being sequence 19, the offence of attempting to possess a marketable quantity of a border controlled drug, namely methamphetamine, the indicative sentence is one of four years. In respect of the final Commonwealth offence being 400.6(1), sequence 20, dealing with money or property that the accused believed to be the proceeds of crime in the amount of more than $10,000, the indicative sentence is one of one year and six months.
The total term of imprisonment I will impose on the offender is one of eight years commencing 26 September 2023. It will expire on 25 September 2031. I fix a non‑parole period of five years. It will commence on 26 September 2023 and it will expire on 25 September 2028. This represents a non‑parole period of 62.5% of the head sentence. The offender will be eligible for release on parole at the expiration of the non‑parole period subject to the terms of s 19AL of the Crimes Act 1914.
Finally, I note that I have also made orders which were agreed by consent by the parties under s 316 of the Proceeds of Crime Act for the forfeiture of property that was seized by the Crown.
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Decision last updated: 17 December 2024