R v Raccosta

FACTUAL BACKGROUND

1. The facts giving rise to the various offences are set out in a Statement of Agreed Facts. In May 2019, police attached to the Kings Cross Drug Unit conducted a controlled operation with respect to the suspected supply of drugs. On 25 May 2019, three female police undercover operatives went to the vicinity of the Kanga House Backpackers Hostel in Victoria Street, Potts Point. The circumstances which led the police to that location is not revealed in the Agreed Facts.
2. In the course of a conversation with a small group of persons at the front of the backpackers hostel, the offender agreed to supply six capsules of MDMA to the three female police operatives. The capsules were to be $25 each and the purchase price of $150 in total was given to the offender. The offender had gone back inside the hostel to obtain the drugs which were separately packaged in six small, twisted-up cigarette roll papers. One of the operatives asked the offender for his mobile phone number for future contact. The offender provided his mobile phone number.
3. The contents of the six capsules were subsequently analysed. They contained a total of 0.58 grams of MDMA with a purity of 86%. Several hours later on the same evening of 15 May 2019, one of the operatives called the offender on his mobile phone and asked if they could call past and "get two more". A short while later the operatives returned to the backpacker hostel in Victoria Street, Potts Point and exchanged $50 for two additional capsules which were similarly wrapped in cigarette rolling paper.
4. These two additional capsules were subsequently ascertained to contain 0.21 grams of MDMA with a purity of 77%. It would be obvious from the quantities thus far referred to that each capsule or separate container contained approximately .1 of a gram.
5. Six days later, on 31 May 2019, one of the police operatives made arrangements by text message with the offender to meet up in the vicinity of the backpacker premises. The offender was in fact living at those premises. At about 9pm on the evening of 31 May, the offender spoke with the operatives who had attended and advised them that he did not already have "it" and he would have to "make it". The offender then invited the three police operatives to his room in the hostel.
6. The intending purchasers asked for a gram which they agreed to pay $200 for. In the course of the conversation, the operatives indicated that they had a party to go to the following day and said that they would probably like to get another gram the next day. The offender said to them: "Tell me how much you want, I give you". The operatives also asked if the offender would be around the following weekend which was a long weekend. The offender indicated that if they had friends who were asking for drugs, that they should not send the friend but should accompany any friend to see him.
7. The offender then obtained a small block of MDMA which was described in the Agreed Facts as being bigger than a credit card in dimension and approximately half a centimetre thick. The offender chipped portions of the substance from the block and weighed the portions on a set of scales. They appeared to be dark grey granules. He placed the dark grey granules of MDMA into a portion of plastic and then melted the ends of the plastic together with a cigarette lighter to seal it before handing the plastic package to one of the operatives. The police then paid the agreed amount of $200 before leaving the hostel with the supplied drug. The MDMA which had been supplied was subsequently ascertained to be 0.99 grams with a purity of 76%.
8. The three separate supplies of MDMA from the offender to the police operatives within the space of 30 days comprised the offence of ongoing supply which has been charged.
9. Shortly before midnight the same night, police returned to the vicinity of the backpackers hostel. They observed the offender and another man leave the area in a taxi. Police followed the taxi and stopped the vehicle a short time later in Surry Hills. The offender was arrested and conveyed to Kings Cross Police Station where he was found to be carrying 50 small packets of MDMA. These small packets were all contained in a resealable plastic bag which had been secreted in the front of the offender's pants. The contents were subsequently ascertained to be a total of 4.5 grams of MDMA with a purity of 76%.
10. In an interview with police, the offender said that it had been his intention to sell the individual packets to people at the Burdekin Hotel. He had intended to charge $20 for each packet. The substantive charge with respect to the 4.5 grams of MDMA, namely supplying more than the indictable quantity of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act is the second substantive offence before me for sentence.
11. Later that night in the early hours of 1 June, police executed a search warrant on the room occupied by the offender at the backpackers hostel. A bag located in a locked cabinet contained what appeared to be brown rocks. These were subsequently ascertained to be 49.9 grams of MDMA, again with a purity of 76%. The Agreed Facts state that the prosecution accepts that this quantity of MDMA was the block or brick from which the quantity of one gram given to the police earlier that night had been obtained. That additional quantity of MDMA in the offender's possession has been included in the aggregate amount relevant to the supply charge under s 25(1).
12. A separate small bag in the same locked cabinet held a further amount of 4.99 grams of MDMA with the identical purity of 76%. This amount has also been included in the aggregate possession for the purpose of supply giving rise to the count of supply.
13. The total aggregate quantity accordingly was 59.39 grams of MDMA. I should note in passing that the trafficable quantity of MDMA is 0.75 grams and the indictable quantity is 1.25 grams. The commercial quantity is 125 grams.
14. The Crown's written submissions suggest that the offender had possession of "nearly 12 times the indictable quantity of MDMA". I confess to having no understanding of how that calculation and submission comes about. To the extent that it plays some relevance, the quantity of MDMA with respect to the supply charge of 59.39 grams reflects in excess of 47 times the indictable quantity. Another way of looking at that quantity against the hierarchical quantification prescribed by the legislation is that the quantity of MDMA in possession for the purpose of supply reflects roughly half the quantity which constitutes a commercial quantity which of course would then carry an increased maximum penalty.
15. In the course of the police search of the offender's premises, a small bag on a table in the room contained the 0.11 grams of cocaine to which I have made reference. It had a purity of 38.5%. A charge of possession of what is defined as less than a small quantity has been placed on the Form 1. The offender told police that the cocaine was for his own use.
16. A comparatively small quantity of cash, namely $565, was also located in the locked cabinet. The offender admitted that the cash had come from the $200 paid to him by the three female undercover operatives earlier that night and the balance, namely $365 had come from selling MDMA the night before.
17. The charge of dealing with the proceeds of crime as I have already indicated has similarly been placed on the Form 1. I will take both of those additional offences into account in determination of an appropriate sentence for the ongoing supply substantive offence.

OBJECTIVE SERIOUSNESS

1. In the course of his police interview, the offender admitted to selling MDMA "every weekend" for the past three to four months. He told police that he bought what he described as large rocks of MDMA for $5,000 each. He would subsequently sell the MDMA in smaller quantities of approximately 0.1 grams for $20 or $25. He would sell the MDMA over a period of approximately two weeks. It would appear that the net result was that he was making approximately $5,000 profit from each block or rock.
2. In the course his interview with police, the offender said that he was supplying drugs as a source of income to pay for his accommodation at the hostel and to purchase food as well as to "take some gift for me". In the course of sworn evidence during the sentence proceedings before me, the offender said that he wanted "more money for take back in Italy".
3. It is clear that the way in which the offender was chopping up the larger quantity of MDMA in order to on-supply quantities of approximately 0.1 grams, did not use strictly scientific or necessarily mathematical precision in its methodology. His assertion to police that he would double the cost of what he purchased in sale price would appear to be at best an approximation. Assuming that the blocks which he purchased for $5,000 were approximately 50 grams (a loose assumption, I should note in passing, given that the supply of approximately one gram to the police operatives left the remainder of the block which is accepted as being the block, assuming that no other quantities were taken from it was still 49.9 grams). Sales of 20 to $25 for 0.1 of a gram would yield a value of the block somewhere between $10,000 if sold at $20 per dose and $12,500 if sold at $25 per dose. However, without getting lost in arithmetical precision, it is clear that the offender was involved in ongoing supply for not insubstantial profit for himself.
4. Although he is not charged for ongoing supply beyond the period in the offences before me, if he had been making approximately $5,000 per fortnight for between three to four months, he must have made a profit of something in the vicinity of approximately $30,000 to $40,000. There is no evidence in the material before me as to the disposition of such funds.
5. Consideration of the logical conclusion from his admissions to police, together with his oral testimony in the sentence proceedings leads to the irresistible conclusion, as submitted by the Crown, that the offender was essentially a mid-tier street-level dealer. He was running his own drug supply business. There is no suggestion that he was part of a broader syndicate, nor that he was working for somebody else. However, he was obviously able to source $5,000 blocks of MDMA and then to conduct his own distribution and supply business for profit. His precise role does not require any further description and I note the observations of the High Court in this regard in The Queen v Olbrich (1999) CLR 270.
6. The conduct of a criminal enterprise relating to prohibited drugs sold for profit has been described as more reprehensible than supplying drugs solely in order to fund personal drug addiction, see Kwon v R [2011] NSWCCA 58 and I will insert the citation. A financial motive is a relevant factor in the assessment of moral culpability (see Dang v R [2013] NSWCCA 246.
7. Whilst I note that there is no necessity in the absence of a standard non‑parole period for the Court to make a specific assessment of objective seriousness, the Crown has put a submission that the ongoing supply, viewed objectively, falls below the mid-range but not right at the bottom of the range of objective seriousness for such types of supply. Whilst the Court of Criminal Appeal has made numerous observations regarding the concept of "trafficking to a substantial degree" (see for example Parente v R [2017] NSWCCA 284, (2017) 96 NSWLR 63) the offence of ongoing supply, by its very nature, invites consideration of a variety of circumstances. These include the weight and purity of the drug, the role and level of participation of an offender, the sophistication of the criminal enterprise and the anticipated financial benefit or reward. Viewed against these considerations, I agree with the Crown's assessment of objective seriousness.
8. The actual supplies relied upon for the substantive 25A(1) offence clearly related to comparatively small quantities of the drug. The total purchase price in the three individual supplies relied upon for that ongoing supply offence was $400.
9. It was a relatively simple operation conducted by the offender in comparison with other ongoing supplies which regularly come before the Court. However, there was obviously a level of planning and organisation in order to operate the enterprise of regular distribution to street-level users.
10. It is important to note that the offender has confessed, in effect, to ongoing supply involving substantially greater quantities of the drug than the three supplies which constitute the specific offence charged under s 25A before me. That evidence is significant in a contextual understanding of the nature of the ongoing supply and the nature of the business enterprise which was being conducted by the offender for financial gain. It is, however, also demonstrative of a level of remorse and contrition in his voluntary disclosure of that background.
11. However, he does not fall to be sentenced with respect to that uncharged conduct.
12. The separate substantive offence relating to the possession of approximately 60 grams found at his premises in the hostel are similarly submitted by the Crown to fall below the mid-range of objective seriousness, albeit the Crown describes it as just slightly below that range.
13. Whilst it is difficult to be dogmatic as to precisely where in a perceived range of objective seriousness an individual case actually falls, I agree with the Crown to the extent that the objective seriousness of the relevant possession for the purpose of supply of 59.39 grams of MDMA falls to some extent below the mid‑range.

SUBJECTIVE FEATURES

1. I turn now to the offender's subjective features. Material relating to the background of the offender was presented to the Court in two reports from Dr Carmelo Pollicina, a registered psychologist. The accuracy of the matters reported by the psychologist was attested to by the offender himself who gave sworn evidence in the sentence proceedings.
2. The offender is presently 29 years of age having been born in Italy on 5 December 1990. He is the elder of two sons. He attended high school in Saronno which is located on the outskirts of Milan. The psychologist's report indicates that the offender attended high school until fourth year and then suspended his schooling. Assisted by an interpreter, the offender said he attended school until 19 years of age. I attach no importance to this disparity. He gave evidence before me which I accept that he had worked in the graphic design industry in Italy. He said that he had never been in trouble with police anywhere in the world prior to the present matters with the exception of being caught with a joint of marijuana in Milan when he was approximately 19 or 20. He said that he had been fined 50 euro for that offence.
3. The offender described to the psychologist having had a positive relationship with his mother, notwithstanding that he thought that she could become over bearing as a consequence of what he described as hyper-controlling and hyper-protective attitudes. He described his relationship with his father as being "rather detached" and said that he had spent little time together with his father. He described his father as being authoritarian and rigid, perhaps due to the fact that his father was in the military in Italy.
4. He also describes his relationship with his younger brother as being "strained". On the basis of a claimed attendance on a psychologist by the offender at around the age of ten and a description of some learning difficulties at school, together with an assertion of bruxism, (ie. teeth grinding) since childhood, the psychologist expressed an opinion that the offender had a possibly undiagnosed ADHD disorder. The psychologist goes on in his report to link that possible diagnosis in a causative relevance to ongoing substance abuse by the offender. Dr Pollicina further expressed an opinion of the need for regular psychological and pharmacological treatment with respect to ADHD. I note the limitation on the ability of a psychologist to make a diagnosis as contrasted with the expertise of a medical practitioner or psychiatrist (see Jung v R [2017] NSWCCA 24).
5. In a second report by the psychologist, Dr Pollicina, he refers to a telephone conversation with the offender's mother in Italy in which she said that she had consulted a psychologist in Italy when the offender was a child as a consequence of developmental delays especially in his speech following his premature birth at seven and a half months. Dr Pollicina was of the view that this information lent further support to his strong suspicion of undiagnosed ADHD leading to a predisposition to take illicit substances.
6. Notwithstanding his PhD, Dr Pollicina is similarly beyond his expertise in expressing additional diagnoses of reactive depression and stress and illicit substance use disorder. Notwithstanding that some symptoms consistent with criteria set out in DSM5 may well be present, such factors in my view play little significance in an assessment of the moral culpability of the commercial enterprise which the offender was conducting.
7. The offender gave evidence that he left Italy some six years ago at the age of 23. He spent four years in the United Kingdom where he was employed in a variety of occupations including working on building and construction sites as well as casual work in the hospitality trade. After four years in Britain, the offender came to Australia on a working visa in February 2018. He consistently stayed at the backpackers hostel in Potts Point with the exception of some periods of time when he was away from Sydney. That would appear to have been all up about three months doing work on farms. This was apparently a fundamental condition of the visa which he had in fact been granted. He told the Court he spent one week in Cairns where the picking work proved not to be available before spending about 88 working days in Griffith where he packed oranges.
8. In the course of his evidence, he said that he had not originally intended to sell drugs whilst in Australia. However, he had commenced to do so, according to his account, to assist him in paying for his own drugs. He said at the time of the offences, he was using cocaine and marijuana as well as taking MDMA. Having been in custody since his arrest in May 2019, he said that he had remained clean from drug use whilst in custody.
9. The offender gave evidence that his visa has now been cancelled and that he expects to be deported to Italy immediately upon his release from custody. The circumstance that the offender will in all likelihood be deported upon his release from custody is a matter that this Court is required to effectively ignore. The principle that the policy of the Commonwealth Government with respect to matters of immigration plays no part in the separate functioning of the State criminal laws has been long recognised.
10. In R v Chi Sun Tsui (1985) 1 NSWLR 308, Sir Laurence Street CJ with whom Slattery CJ at CL and Roden J agreed referred to the different functions of the Commonwealth and the State with respect to the implementation of a sentence on the one hand and the prospect of deportation on the other. Street CJ said at [310]: "The Commonwealth authorities stand by in order to allow the penal consequences of the State criminal laws and where appropriate the Commonwealth criminal laws to be carried through in accordance with their ordinary effect. When the time arrives for custodial restraints to be relaxed or terminated so that a prisoner will go free, then the Commonwealth department intervenes if the case is thought to require intervention and puts in motion the deportation machinery. The two matters of serving out sentences passed by criminal courts and of implementing the immigration laws stand in entirely separate compartments. The Commonwealth stands back in order to allow the criminal and penal laws and orders to be carried through to the point where the criminal is freed from custody. The Commonwealth then proceeds in accordance with the policy enunciated by the minister on its behalf".
11. His Honour the Chief Justice went on to hold in that particular matter that a consideration by the sentencing judge, the late Judge Collins, to not impose a non-parole period because of the futility of there being supervision after release did not represent the appropriate approach under the legislation then in force. That authoritative statement of principle and its application to the determination of a proper sentence, including the specification of a non‑parole period has consistently been followed in New South Wales. It has been restated as recently as December last year (see Hanna v The Environmental Protection Authority [2019] NSWCCA 299).
12. Accordingly, the prospective imminent deportation of the offender as well as the practical reality given the present state of inability to move between sovereign nations in light of the ongoing viral pandemic are matters which play no part in my consideration of an appropriate sentence.
13. The offender has expressed remorse for his offending and has told the Court that he now recognises the harm that drugs do to the community. He expressed regret that he had contributed to that harm by supplying drugs to purchasers. He acknowledges his criminal culpability and said that he knew that what he was doing was wrong. He said: "I know that I made a mistake. I did what I did. It was a time of need. I took the drugs. More money for take back in Italy. I know it was wrong".
14. Whilst the offender was no doubt motivated in part by a desire to get drugs for his own use, it would seem clear from all of the evidence that his use might more properly be described as recreational rather than the type of addiction which regularly comes before the courts. He had employment as a truck driver delivering furniture and indeed was driving a truck on the night of the last occasion he met with the undercover operatives. He clearly held down other labouring positions as and when he was able to obtain such employment. He was running an organised small, ongoing drug supply business for, as I have described, not inconsiderable profit.
15. In addition to the evidence directly relating to the offender, a number of documents were tendered indicating that the offender's father has as recently as 17 February 2020 been admitted to a medical cancer centre in Milan where he has been diagnosed with a form of leukaemia. The purpose of the tender of the medical report indicating that the offender's father has received some transfusions and has commenced the appropriate therapy for "hairy cell leukaemia" was no doubt to support a submission that the offender should be released sooner rather than later so as to be able to return to Italy and see his ailing father. It was, however, not submitted that the material would permit the Court to come to a finding that there were exceptional circumstances with respect to his family. I do note, notwithstanding the offender's description of his past relationship with his father to the psychologist, that he has expressed a desire to return to Italy to obtain employment, to remain drug free and to reside with his parents in Milan.
16. While sympathetic to his desire to see his father in light of the recent diagnosis, I should observe that he has apparently not seen his parents nor lived with them for in excess of six years. I should similarly note that "hairy cell leukaemia" is described as generally having a 90% survival rate of persons with that diagnosis for five years or more after diagnosis and treatment. Whilst the fact that persons who come to Australia and commit offences in this jurisdiction are invariably subject to deportation upon the expiration of a non-parole period and the clear expression of principle by the appellate courts that such a consideration ought play no part in the determination of an appropriate length of sentence, I am aware that the lack of English as a first language and the absence of family visitors and extended friends are factors which have some relevance in a consideration of the hardship of incarceration as contrasted with a local offender.
17. An assessment of whether special circumstances exist which would warrant a variation of the statutory ratio with respect to fixing a non-parole period is a matter in respect of which there is a considerable degree of variability in judicial opinions and in what the appellate courts have considered appropriate or not (see for example the consideration of the Chief Judge in the Land and Environment Court, Preston J, referred to in Hanna v Environment Protection Authority to which I have earlier made reference).
18. In my view, however, the circumstance of the offender being a foreign national serving his first period of time in custody and with English not being his first language and the absence of any family contact, these are matters which in my view make his period of incarceration a greater hardship than upon others. His evinced desire to remain drug free and his prospects of rehabilitation, together with the factors to which I have already made reference, in my view warrant a finding of special circumstances.
19. I note that the offender pleaded guilty in the Local Court. He is accordingly entitled to a 25% discount on the sentence which would otherwise be appropriate. I bear in mind the maximum penalties for the substantive offences which have been charged and the principle of totality which similarly requires focused consideration.
20. I propose to proceed by way of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act. The allowable discount will be reflected in both the indicative sentences and the aggregate sentence itself.
21. With respect to the offence of ongoing supply, taking into account the matters on the Form 1, the indicative sentence will be a period of two years. With respect to the deemed supply of the MDMA in his possession, noting that his possession was approximately half the commercial quantity specified, there will be an indicative sentence of two years.
22. There will be a total aggregate sentence of three years and a minimum term to be served of two years. The minimum term will be backdated to commence on the date the offender went into custody, namely 25 May 2019 and will accordingly expire on 24 May 2021.
23. HEATHCOTE: I think the date might be wrong, your Honour.
24. HIS HONOUR: Is the date wrong?
25. STUART: Yes.
26. HEATHCOTE: Yes, actually on the Crown cover sheet, it has got--
27. HIS HONOUR: Sorry, pardon me.
28. HEATHCOTE: The Crown says that he has been in custody since 1 June. I think he was arrested actually in the early hours, sorry--
29. HIS HONOUR: It was the early hours of--
30. HEATHCOTE: Late on the 31st, sorry. The search warrant was issued on the 31st.
31. HIS HONOUR: That is so, it was prior to the 31st which was the--
32. HEATHCOTE: It was prior to the 1st so it should date from the 31st.
33. HIS HONOUR: It should be the 31st. Do you agree with that, Ms Stuart?
34. STUART: Yes, I would agree with that.
35. HIS HONOUR: All right, thank you. I apologise, Mr Raccosta. I will just revise what I said then
36. The minimum term will be backdated to commence on the date that the offender went into custody effectively which was 31 May 2019. The minimum term will accordingly expire on 30 May 2021. The additional term will expire on 30 May 2022.
37. Mr Raccosta, I propose to leave the bench in a moment but I will leave a copy of the draft remarks and I will ask the interpreter and counsel to ignore the spelling mistakes that may appear in it. I did not have the chance to revise it.
38. In addition to the orders that I have made, the Court is asked to make an order forfeiting the sum of $565 which was seized in the early hours of 1 June. That order is consented to and I will of course make that confiscation order. If necessary, I direct that the drugs be destroyed.
39. Are there any other orders, Ms Stuart?
40. STUART: No other orders are sought, your Honour.
41. HIS HONOUR: Were there some 166 matters that I need to say anything about or not?
42. STUART: I understand that they are the matters that were on the Form 1 so they have already now been dealt with.
43. HIS HONOUR: All right, I thought that was so but I thought I had better check.
44. STUART: No further orders are required in relation to the 166.
45. HIS HONOUR: All right. Mr Raccosta, I will leave the line open so that you can have a brief discussion with your counsel, solicitor and the interpreter if necessary and I trust that your father will survive the treatment that he is getting and that circumstances by the time you are eligible for release will be such that you will in fact be able to get back to Italy rather than spending time looking at Skype and worrying about your future like everybody is. All the best for the future, sir.
46. OFFENDER: Thank you, your Honour.

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