R v Ristevska

Facts for sentence

1. In May and June 2021, a police strike force established that Ristevska and her partner, Mr Abdul-Hamid, were supplying illicit drugs in southern Wollongong. They would source their drugs from upline suppliers in Sydney. The drugs were then supplied to customers from their home, for profit. The group consisted of Ristevska, her partner, Abdul-Hamid, and two other men, Mr Trevana and Mr Brisbane.
2. The extent of Ristevska's participation in the group included; making arrangements for customers to attend the premises so they could be supplied with the prohibited drugs methylamphetamine and heroin, and using the home to store and process mid to large quantities of methylamphetamine and heroin, for supply to customers. She acted under the direction of Abdul-Hamid controlling the supply of those drugs in terms of quantity and price.
3. The two supply offences arose out of a trip to Sydney in July 2021 by Abdul-Hamid and Trevena to purchase illicit drugs. The two men were stopped and arrested on their way back to the Illawarra. Police searched the vehicle and inside a secret compartment found the heroin and methylamphetamine, the subject of the charges.
4. Ristevska had not gone to Sydney. She was arrested at her home that day. The home was searched, and the cash and a can of capsicum spray (a prohibited weapon) were found.
5. After 12 days in custody Ristevska was granted bail. Soon after she and an upline supplier discussed the prospect of recovery of the drugs that they believed to still be concealed in the car seized by police. They directed Trevena to go the police holding yard. Nothing apparently came of this, and in any event, the drugs had been seized earlier. She was rearrested on 15 September 2021 and has been in custody ever since.

Drug Supply

1. The prosecution accept that Ristevska was not directly involved in the purchase of the drugs and that she was not aware of the exact quantity purchased. Nevertheless, her business stood to benefit from what was being purchased and it was her intention that the drugs be distributed in the local community for her and Abdul-Hamid's profit. It is her purpose that is being punished, not her hands on involvement, putting this matter low in the scale of serious offending.

Criminal Group

1. Ristevska was engaged in all aspects of the group's activities and benefited both in drugs for her own use and money to support herself for the two months the group was active. She did what she was told by Abdul-Hamid but played some independent role. There is no evidence she or Abdul-Hamid lived a lavish lifestyle. She operated from her own home. The use of that home as drug premises indicates how low in the hierarchy this operation was, as the coming and going of customers made her and her partner's drug supply business vulnerable to detection.
2. Drug supply operations rarely come with an organisational chart, but this operation was a street level operation providing services to walk-in customers, indicative of this being relatively low in the scale of such criminal groups.

The Form 1 matters

1. Aspects of the criminal group's activities are illustrated are by the Form 1 matters. I do not sentence for these matters but the presence of a prohibited weapon at drug premises, is an aggravating factor in the assessment of the criminal group offence. Care must be taken. If the Form 1 matters inform my assessment of the seriousness of a matter for sentence in a general sense, those Form 1 matters cannot not be taken into account twice.

Proceeds of crime

1. Drug suppliers, like most small businesses, may have varying amounts of stock and cash on hand at different times in the business cycle. The cash found is indicative of the scale of the operation and one reason for the operation was cash not just drugs. But given the huge profits made by those senior in drug supply hierarchies, the proceeds here are again, indicative of this being a street level operation.

Accumulation and concurrence

1. Each count involved discrete acts of criminality, however, each count had some common features and the purposes of sentencing apply to each; and those purposes overlap. The sentences for the methylamphetamine supply matter can comprehend and reflect the criminality for the other supply. They were part of the same transaction and Ristevska was not aware of the amounts supplied.
2. Similarly, the criminal group sentence can comprehend and reflect the criminality of the proceeds matter, as the group was set up to make the profits illustrated by that offence. There must be some partial accumulation. While part of the same overall enterprise, the offences had their separate aspects and there is no discount for multiple offending. I note that the aggregation of all of the sentences must be a just and appropriate measure of the total criminality involved: Mill v The Queen (1988) 166 CLR 59 at [62] to [63].

Maximum penalties

1. The following maximum penalties apply:

• Supplying Less than the Commercial Quantity of Drug - 469 grams of methylamphetamine: s 25(1) DM&T Act; 15 years imprisonment.
• Knowingly Deal with the Proceeds of Crime: s 193B Crimes Act 1900; 15 years imprisonment.
• Participate in a Criminal Group: s93T Crimes Act 1900; 5 years imprisonment.

1. The maximum penalties provide sentencing measures to be balanced with all other relevant factors. They also invite a comparison between this case and other cases. The consistent application of principle requires careful consideration be given to other decisions of this and appellate courts. Here however, it is accepted the most serious offence objectively is the one that carries the lower maximum. This illustrates the need for individualised and not formulaic sentencing.
2. A point made by High Court Justices Bell and Gaegler in The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [46] applying Hili v The Queen (2010) 242 CLR 520; [2010] HC 45: "… sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases."

Criminal Record

1. Ristevska has relevant criminal convictions for drug supplies in 2014 and 2015. The similarities between her earlier offending and this matter disentitle her to leniency and mean greater weight must be given to personal deterrence and community protection.

Subjective case.

1. Ristevska did not give evidence. She tendered two personal references from her father and a family friend, which spoke to her good character. Each referee assured me she would not reoffend again. Her father noted the difficulties she is facing, mentally and physically, while in custody and the stressful living conditions inside gaol. He believes that she would benefit from a full-time drug rehabilitation program.
2. I do not ignore the lived reality of gaol, particularly during the pandemic, where the need to quarantine against infection has exacerbated already harsh conditions by additional lock downs and restrictions on visits, work and programs.
3. A letter from Lives Lived Well, Exhibit 3, indicated a 6-week residential rehabilitation program was available to her on 14 February 2022.
4. Mr Singh also relied on the findings I had made in 2016 about her background and relationship to Abdul-Hamid. She can earn a living as a hairdresser and run a hairdressing business. If she is able to overcome her drug addiction and separate herself from the influence of drugs and her partner, she may be able to resume a law-abiding life in the community. She was able to do so until her late 20s, but at least twice before, she has made promises to the court, but resumed drug use, and then supplied dugs for profit.
5. A Sentencing Assessment Report (SAR) was put before the Court. It indicates that her parents will provide support and housing for her. She appears to have the enduring support of an extensive network of law-abiding friends and work associates.
6. She reports that at the time of committing the offences she was using heroin and "ice" daily and was unable to put conscious thought into the magnitude of her actions. She reports experiencing increased levels of depression and anxiety. That decline in her mental health she put down to financial stress due to the downturn in her business during the pandemic lock downs and her extensive illicit drug dependency.
7. The SAR author was concerned about the potential for destructive mental health consequences should she have further contact with her partner Abdul-Hamid. The SAR notes she has spent time in custody reflecting on her offending behaviour and how she appreciates the impact of her offending on other drug users. The SAR noted Ristevska's willingness to engage in treatment and put forward a supervision plan. That plan involved referral to agencies that could help her in dealing with her mental health and drug addiction problems.

Parity

1. Brisbane and Trevena were dealt with in the Local Court. Brisbane received a 12-month sentence for his role participating in a criminal group and a proceeds of crime offence. That sentence was subject to an Intensive Corrections Order. While I have some idea of his respective degree of culpability, I know nothing about other aspects of the case for and against him.
2. Trevena was sentenced to concurrent sentences of 18 months imprisonment with a non-parole period of 9 months for his role in the two supply offences and his role in the criminal group. I heard an appeal against his sentence on 16 November 2022. I varied his sentences. I confirmed each of the 18 months sentences but rewarded him for his efforts toward drug addiction rehabilitation by reducing his non-parole period to 7 months, to allow him to commence a Community Corrections supervision plan.
3. The relative leniency of those other sentences must be considered but Ristevska's role in the criminal group offence was more involved. While there is a need, so far as possible, to ensure equal justice between those involved in the same crimes, her role and her criminal history justify a real difference in the time she will serve in prison: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49; Afu v R [2017] NSWCCA 246.

Synthesis

1. The aggregate sentence must properly reflect the objective seriousness of what was done and Ristevska's personal circumstances. It is accepted that so serious were her crimes, and the harm done by her organised criminal group to our community, that only a full-time custodial sentence could be imposed. Ristevska will benefit from supervision in the community and engagement with a rehabilitation program, justifying a finding of special circumstances to allow her longer on parole. But her prospects remain guarded.
2. While I accept that Ristevska has a long-standing problem with drugs, possibly used to self-medicate her problems with anxiety and depression, drug use cannot excuse her crimes. Her commitment to her partner Adul-Hamid remains unexplained. Financial hardship caused by the pandemic does not excuse her crimes. Ristevska has shown that she can lead a lawful life in the community, but she also has continued to commit serious crimes, despite knowing the consequences. The relative leniency of this sentence may be her last chance.
3. The sentence must be backdated 450 days to give her credit for pre-sentence custody. There is a finding of special circumstances but the minimum period in gaol must reflect the many purposes of sentencing, including the seriousness of the crimes and the need here for personal deterrence. Hopefully a place will be available at a rehabilitation program in May 2023.

Orders

1. The indicated sentences take into account the early plea of guilty.

Indicated sentences 1. Supplying Less than the Commercial Quantity of Drug: I indicate a sentence of 18 months. 2. Supplying Less than the Commercial quantity of Drug: I indicate a sentence of 18 months. 3. Knowingly Deal with the Proceeds of Crime: I indicate a sentence of 9 months. 4. Participate in a Criminal Group: Taking into account the matters on the Form 1, I indicate a sentence of 2 years 3 months.

Aggregate sentence

1. There will be an aggregate sentence of 3 years.
2. There will be a non-parole period of 1 year 9 months commencing on 28 August 2021 and expiring on 27 May 2023 on which date you will be released to parole subject to supervision. The balance of the sentence of 1 year 3 months is to commence upon the expiration of the non-parole period on 28 May 2023 and expires on 27 August 2024.

Amendments 20 December 2022 - Typographical error in catchwords. 20 December 2022 - Restricted 27 September 2023 - Typographical errors amended and details inserted to adhere to unrestricted status of judgment 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: 27 September 2023